Mr C Forrest v Amazon Web Services Emeasarl UK Branch and others: 2210418/2023 and 2215062/2023
EMPLOYMENT TRIBUNALS
Case No 2210418/2023, 2215062/2023
Between
Mr C ForrestClaimant1. Amazon Web Services EMEASARL UK Branch 2. Jo Barry 3. Joe Carroll 4. Addy Charman 5. Gözde Demiral 6. Norm Driskell 7. Paddy Fitzpatrick 8. Kerry Jean Garcia-Deleito 9. Mark Andrew Brian Hammerton 10. Carolyn Marie Kenyon 11. Kathryn Rosen 12. Abigail Russell 13. Shahar Vigder 14. Wendy Ruth Collidge 15. Stacey Kelly 16. Kurt Walters PUBLIC PRELIMINARY HEARINGRespondent
Before
Employment Judge BrownIn person for claimantMr M Humphreys (instructed by Counsel) for respondentDate 8 October 2025
JUDGMENT
[1]No Strike Out Judgment or Deposit Orders are made, on either the Claimant’s, or the Respondents’ applications. Case Numbers: 2210418/2023 & 2215062/2023 2 of 18
REASONS
[1]The Claimant brings complaints of protected disclosure detriment; automatic unfair dismissal on the grounds of protected disclosure; ordinary unfair dismissal; disability discrimination (failure to make reasonable adjustments, discrimination arising from disability; direct discrimination; indirect discrimination; harassment); victimisation; and “personal injury”, against the Respondents.[2]He presented his first claim, number 2210418/2023, on 20 June 2023 and his second claim, number 22150624/2023, on 15 September 2023.[3]At a previous private preliminary hearing on 26, 27, 29 February & 1 March 2024 I had established a List of Issues in the claims. I made orders for the parties to provide further information and responses in relation to the protected disclosures relied on by the Claimant. I gave the Respondents permission to file and serve amended grounds of resistance and ordered them to add their specific legal and factual defences to the claims into the List of Issues and send it to the Claimant.[4]This hearing was listed to consider the parties’ strike out and/or deposit applications and to give further directions. It was conducted in person, although members of the public could view the public parts of the proceedings by remote video link.[5]The summary below is not intended to be a verbatim record of what each party said to me. It is simply a summary. I have paraphrased much of what was said, both by me and by the parties.[6]I had previously agreed that the Claimant should take breaks from the hearing when he needed to do so, on account of his disabilities. I had agreed that his wife, who attended to support him, might need to assist him in identifying when breaks were required. The Claimant’s Strike Out Applications[7]I did not strike out the Respondents’ responses.[8]It is not proportionate for me to address every detail of the Claimant’s application for strike out here, nor every document he has referred to in support. I have addressed what I understand to be the different categories of the Claimant’s contentions.[9]It was, at times, challenging to follow the Claimant’s written arguments, partly because he relied on extracts from documents, rather than the whole documents, which obscured the context of the extracts and the proper construction of the documents themselves.[10]The Claimant also referred, in considerable detail, to things which appeared to be irrelevant. In particular, the Claimant spent many paragraphs alleging that previous judges in the case had acted wrongly. The appropriate fora for challenging decisions of Employment Tribunal Judges are the Appeal Courts. Only a Judge of a Higher Court has the power to review another Employment Judge’s decision. Case Numbers: 2210418/2023 & 2215062/2023 3 of 18[11]What was relevant for the purpose of the strike out application was the Respondents’ conduct and/or the merits of their Responses. Judges’ conduct was not to be taken into account. I therefore disregarded the Claimants’ submissions regarding other Judges’ decisions and conduct.[12]I also did this partly because I considered that this would be fair to both parties. The Claimant had addressed his complaints and allegations about other Judges’ decisions and actions with with such vigour – for example, suggesting that they would be guilty of misfeasance in public office and liable to be sent to prison for life – that an objective person might consider that there was some implied pressure on all Judges, including me, not to make decisions with which the Claimant disagreed, at risk of being themselves subjected to such allegations. This was particularly so when the conduct of other Judges was irrelevant to my decision, so an objective person might consider that these matters could only be being raised for tactical reasons. An objective person might therefore consider that there was a risk that I would be inappropriately influenced in my decision-making. For this reason too, it was sensible for me to make clear that I had disregarded the Claimant’s submissions regarding other Judges.
Relevant Law
[13]An employment judge or tribunal has power, at any stage of the proceedings, either on its own initiative or on the application of a party, to strike out all or part of a claim or response on any of the following five grounds (see SI 2013/1237 Sch 1 r 37(1)):(a) that it is scandalous or vexatious or has no reasonable prospect of success (r 37(1)(a));(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious (r 37(1)(b));(c) for non-compliance with any of the Rules or with an order of the tribunal (r 37(1)(c));(d) that it has not been actively pursued (r 37(1)(d));(e) that the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out) (r37(1)(e). Claimant’s Grounds for seeking Strike Out: R’s Approach to the Substantive List of Issues (a) that it is scandalous or vexatious or has no reasonable prospect of success (r 37(1)(a)); (c) for non-compliance with any of the Rules or with an order of the tribunal (r 37(1)(c))[14]The Claimant contended that the Respondents’ Responses had no reasonable prospects of success because the Respondents did not provided any legal and factual responses to his detriment claims, contrary to my order paragraph 9, dated 6 March 2024.[15]The Claimant said that the Respondents’ List of Issues, sent to the Tribunal on 29 April 2024, had not included the Respondents’ legal and factual responses to his alleged detriments.[16]He pointed out that the Respondents had amended the List of Issues, for example to include, at paragraph [25], their admission that he was a disabled person at the relevant times by reason of his ADHD condition. Other amendments were made at paragraphs [26] regarding knowledge of disability and [34] regarding the legitimate aim relied on in the Indirect Discrimination and Discrimination Arising from Disability sections. Case Numbers: 2210418/2023 & 2215062/2023 4 of 18 Decision: Non Compliance with Order / No Reasonable Prospects of Success: List of Issues[17]I noted that my relevant orders included the following: “Amended Response and Complete List of Issues 8. By 22 April 2024 the Respondents have permission to file and serve amended Grounds of Resistance, responding to the claims as clarified in the list of issues and, as clarified by the Claimant, in respect of the Respondents against whom legal liability for detriment is alleged.. 9. By 29 April 2024 the Respondents shall add their specific legal and factual defences to the Claimant’s claims into the List of Issues and send it to the Claimant.”[18]I also noted that, in the Respondents’ Amended Grounds of Resistance dated 22 April 2024, they had provided a factual narrative response at paragraphs 3.2 – 3.42, to each one of the Claimant’s alleged detriments as set out in the List of Issues.[19]At paragraph 5 of the Amended Grounds of Resistance, the Respondents had also pleaded: “5. Paragraphs 7 – 9 of the List of Issues – the Protected Disclosure Detriment Claim5.1 The Respondents have set out in paragraph 3 of these Amended Grounds of Resistance their position on each of the alleged unlawful acts relied on by the Claimant. That position is repeated. To the extent that those acts are admitted as having occurred or are so found by the Employment Tribunal, it is denied that they had anything whatsoever to do with any protected disclosures made by the Claimant.5.2 It is denied that any of the alleged detrimental acts, as listed in paragraph 2 of the List of Issues, amount to a detriment within the meaning of section 47B of the Employment Rights Act 1996.5.3 None of the alleged detrimental acts, as listed in paragraph 2 of the List of Issues, if found by the Tribunal to have been done, were done on the ground that the Claimant had made a protected disclosure(s).5.4 To the extent that any act relied on by the Claimant was done more than 3 months prior to filing the ET1, as adjusted for the provisions of ACAS Early Conciliation, it is denied that the Tribunal has jurisdiction to hear the claim or allegation.”[20]I concluded that the Respondents had pleaded both a legal and a factual defence to the Claimant’s alleged protected disclosure detriments, in their amended Grounds of Resistance. They had denied causation of any of the alleged detriments, they had denied that the alleged detriments amounted in law to detriments, and they had pleaded a jurisdictional time bar.[21]They had pleaded the same defences in the victimisation claim, at paragraph 6 of the Amended Grounds of Resistance.[22]In Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2022] EAT 204 (15 June 2023, unreported) HHJ Tucker held that a list of issues could be an exceptionally Case Numbers: 2210418/2023 & 2215062/2023 5 of 18 useful case management tool, bringing clarity and structure, but emphasised that a list of issues is no more than that. It is not a pleading. She reminded Employment Tribunals that they should avoid slavish adherence to a list of issues, or the elevation of it to a rigid and formal pleading, precluding a fair and just trial of the real issues in the case.[23]Following Moustache, I decided that the Respondents’ pleading in the case, their Amended Grounds of Resistance, did plead a comprehensive defence to the Claimant’s claims. This element of the Claimant’s argument for strike out relied on elevating the List of Issues to the status of a pleading, which would prevent a fair trial of the defences in the Respondents’ Grounds of Resistance.[24]I further decided, in any event, that the Respondents were not in breach of my order 9 of 6 March 2024. My order did not require the Respondents to include, in the List of Issues, every evidential nuance and detail on which the Respondents rely to defend the claim. A List of Issues is a summary document, setting out the legal claims and brief factual basis of them, and the legal defences and brief factual basis for those. If the Respondents had included the factual detail of their responses to the individual detriments, the list of issues would have become unwieldy and little more than a replication of the pleadings. It would not have been a useful document.[25]The Respondent had added its legal defences to the list of issues. The resulting final list of issues makes clear what is in dispute and what is not. It is not deficient.[26]Accordingly, strike out for breach of a Tribunal Order was not appropriate. Claimant’s Grounds for Seeking Strike Out: Court of Appeal Order. Grounds:(a) that it is scandalous or vexatious or has no reasonable prospect of success (r 37(1)(a));(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious (r 37(1)(b));[27]The Claimant relied reasons given by Lady Justice Andrews for an Order she made on a 15 May 2024, refusing the Claimant leave to appeal to the Court of Appeal and also refusing the Claimant’s application to amend his claim. He said that Andrews LJ had decided that, “Many of the documents upon which the Respondent relies (such as minutes of meetings) were not contemporaneous documents but can be shown to have been created after the event, often by the Respondent’s lawyers.” He argued that she had therefore found that the Respondents had falsified documents. Decision: No Reasonable Prospect; Unreasonable Conduct: Court of Appeal Grounds[28]Put briefly, it did not accept that Andrews LJ had decided this.[29]The application before LJ Andrews was for leave to appeal against EAT Judge James Tayler’s order dated 15 January 2024, refusing the Claimant’s second application for reconsideration of a refusal to expedite his EAT rule 3(10) hearing.[30]LJ Andrews did say that she had read the documents in the core and supplementary bundles filed for the appeal, and also the many other documents that Claimant had sent to the Civil Appeals office. Case Numbers: 2210418/2023 & 2215062/2023 6 of 18[31]However, I did not accept that, having read those documents, she had assumed the role of decision maker in relation to the central facts of the claim. Andrews LJ’s role was simply to decide on whether to give leave to appeal an interlocutory decision on the timing of another appeal hearing in the EAT. Indeed, Andrews LJ made explicit the limited nature of her decision making role in paragraph 17 of her reasons, “… the question for me is whether he is able to establish a real prospect of successfully appealing against Judge Tayler’s decision, which is a case management decision made by a specialist Tribunal judge, refusing a second application for reconsideration of his earlier decision to refuse expedition of the appeal.”[32]If Andrews LJ had assumed any decision making role on the central facts of the case, I have no doubt that she would have made that clear to both parties and invited submissions from both. To have done otherwise would have been a breach of natural justice.[33]In any event, on a true reading of the reasons Andrews LJ gave for her order, her paragraph 9 simply set out what the Claimant’s case is. She made that clear in the first two sentences of the paragraph, where she explained that she was essentially summarising the Claimant’s Grounds of Complaint. “[§9] I consider it unnecessary for the purposes of this application to go into the details of the Nov 2023 Grounds or to catalogue each and every complaint made. Suffice it to say that Mr Forrest alleges that he made a protected disclosure on 5 January 2023 [see “PD3.3” in the index of protected disclosures for this present Case] and that this was the true reason for his dismissal.”[34]For the remainder of the paragraph, Andrews LJ continued to summarise the Claimant’s claim, “ He claims that the metadata demonstrates that his employers (in particular, a Ms Stacey Kelly [R15 here]) took the decision to dismiss him long before any supposed investigation took place, and that the disciplinary process relied on by the Respondent was a charade/construct. Many of the documents upon which the Respondent relies (such as minutes of meetings) were not contemporaneous documents but can be shown to have been created after the event, often by the Respondent’s lawyers. Mr Forrest says that the metadata also shows that the timing of the investigation was engineered to coincide with steps that were being taken in proceedings in the ET in which he was also the claimant against this Respondent, Case 2208865/2022, which have since been linked with this matter in the ET.”[35]LJ Andrews also summarised the Claimant’s claim in the immediately preceding and the following paragraphs, [8] and [10].[36]Accordingly, I found that LJ Andrews’ reasons for refusing leave to appeal did not constitute a determination that the Respondents had falsified documents. They were not a basis for considering strike out of the Respondents’ Responses. Claimant’s Grounds for Strike Out: The Manner in Which the Proceedings have been Conducted has been Scandalous, Unreasonable, or Vexatious, so that a Fair Hearing is no Longer Possible (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious (r 37(1)(b)); that the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out) (r37(1)(e)[37]The Claimant relied on the case of Arrow Nominees v Blackledge [2000] EWCA Civ 200 where the Court found that a litigant had destroyed documents and relied on forged documents in evidence. In that case, Chadwick LJ said, Case Numbers: 2210418/2023 & 2215062/2023 7 of 18 “[§54] But where a litigant’s conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled – indeed, I would hold bound – to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him... A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke." “[§61]... I venture to suggest that a judge faced with an application to strike out in circumstances such as those in the present case ought to address the question whether the better course would not be to resolve the issue, before the trial begins (or, perhaps, as a preliminary issue at the start of the trial), whether full disclosure of the fraudulent conduct has been made. If, in the absence of cross-examination, the judge cannot resolve that issue at the interlocutory stage, then he is left in the position that he cannot be confident that there is no substantial risk that the trial (if it proceeds) will be a fair trial. Indeed, he can be reasonably confident that it will be unfair - in the sense that it will give rise to a detailed examination of issues which ought not, properly, to be occupying the time of the court at the trial... if he is not satisfied that there has been full and frank disclosure of the fraudulent conduct, then, for the reasons which I have already given, it seems to me that the correct response is to refuse to allow the party in default from taking any further part in the proceedings - with whatever consequences follow from that.“[38]The Claimant contended that it could be demonstrated, partly through metadata analysis of the Respondents’ (allegedly) contemporaneous documents, that the Respondents had indulged in forgery, perjury and deliberate destruction of evidence in this case. He said that the Tribunal could be satisfied that he had shown a prima facie case of this. As a result, he contended that the Tribunal should refuse to allow the Respondents to take any further part in the proceedings.[39]He contended that, if the Tribunal was against him on striking out, the Tribunal should instead order that the authenticity of the disputed documents and the truthfulness of the Respondents' statements be determined as a preliminary issue, per Arrow Nominees at [61].[40]The Claimant produced a large bundle of documents. Many of the documents had what he said were features of the metadata attached to them. He particularly drew the Tribunal’s attention to the following: Joe Carroll[41]The sworn witness statement of Joe Carroll, the Respondents’ alleged dismissing officer, dated 25 July 2023, relied on in the interim relief hearing in this case. The Claimant contends that forensic analysis of the signature shows that the signature was written from left to right. He points out that date format “7/25/2023”, written next to it, is US-style, rather than British, putting the number of the month before the number of the day. He also relies on the “unique metadata attributes of the scanned file”. He contends that all this strongly suggests that the final ‘signature’ of “Mr Carroll’s” 25 July 2023 witness statement was forged by a US-based Lawyer. Case Numbers: 2210418/2023 & 2215062/2023 8 of 18[42]He also relies on these matters as part of his evidential argument that US lawyers and / or US Amazon employees were involved, both, at crucial stages of the disciplinary proceedings against him, and in the handling of his protected disclosures and this litigation.[43]He contends that there is overwhelming evidence that the true decision maker/s on his dismissal was not Mr Carroll, but others, including US lawyers and senior Amazon employees, in a Royal Mail Group v Jhuti [2019] UKSC 55, [2020] IRLR 129 – type case.[44]So, for example, he contends that metadata shows that an invitation letter sent in the name of Mr Joe Carroll it was “created” on “22 May 2023 at 14:38” by Ms Kathryn Rosen “RosenKA” (“Principal Employment Solicitor”).[45]He also contends that metadata for a subsequent alleged 5 June 2023 interview “Investigation Meeting Minutes 8.6.2023.pdf” shows that this file was ‘modified’ just 27 minutes before the Claimant’s dismissal and that the “Author” was “tinjodie”; Ms Jodie Tinsley (tinjodie@amazon.co.uk).[46]He also contends that Ms Tinsley, who apparently generated a “Policy: Disciplinary - UK” on 22 May 2023, did not herself do this, despite it stating “Welcome, Jodie Tinsley”. The Claimant contends that the timestamps and metadata show that the Policy was, in fact, generated by Savannah Silver, a US based lawyer. He relies on documents being uniquely attributable to Ms Silver, because he says that she has used, at important stages, a typically US-based PDF Producer (“cairo 1.17.4”) programme.[47]He contends that the file sent by Ms Tinsley, showing a GMT time, “Welcome, Jodie Tinsley” “22/05/2023, 15:05” (GMT) - when the time was 16:05 BST on 22 May 2023 - shows that, in fact, it was Ms Silver who had generated the document from the USA. He says that she did so using ‘virtual machine’ clock settings (GMT), causing the printed (by ‘virtual machine’ using GMT) time to lag BST by 1-hour, p410 of his documents.[48]He further contends that Ms Carolyn Kenyon and Ms Savannah Silver drafted a letter dated 8 March 2023 in response to the Claimant’s 18 January 2023 protected disclosures. The report alleged that the Claimant violated Amazon’s “Confidential Information Policy” by his protected disclosures in a letter dated 18 January 2023 to the Regional Secretary, of the London Central Employment Tribunal, p314 of his bundle.[49]He therefore contends that this shows a crucial link, illustrated by the involvement of US-based lawyers and Amazon decision makers at these times, between his protected disclosures and the later stages of the disciplinary proceedings against him.[50]More broadly on the merits of the case, the Claimant contends that Mr Carroll’s witness statement asserts, at paragraph 9.2, that, on 22 May 2023, Ms Stacey Kelly gave Mr Carroll the reason for dismissal, so that Mr Carroll was not the decision maker. I considered that this was not a good argument. The relevant paragraph states that Ms Kelly advised that Mr Carroll that he should disregard, in his decision-making, the Claimant’s claim against the First Respondent. The paragraph also states that Ms Kelly told Mr Carroll that he was being asked to make a decision on whether the Claimant had refused to work his contractual hours on particular dates. Luke Waite Case Numbers: 2210418/2023 & 2215062/2023 9 of 18[51]The Claimant also relies on documents allegedly created by Luke Waite, who was the Respondents’ named grievance officer. He says that metadata shows that each of the three documents sent to the Claimant bearing Mr Waite’s name was created by Ms Rosen, a solicitor at Eversheds Sutherland LLP, on 24 April 2023, 2 May 2023 & 18 May 2023, respectively. He says, for example, that the metadata of the 18 May 2023 outcome of grievance document shows RosenKA as the author, p162 his documents. He contends that this is significant because, on 18 May 2023, Luke Waite misrepresented to the Claimant that investigations been carried out independently, by different individuals within the business, when, in fact, documents in all those investigations had been drafted by Ms Rosen, so that the investigations were not conducted independently at all.[52]He contends that Mr Waite reports to Stacey Kelly HR, who also later briefed Mr Connolly regarding the Claimant’s dismissal. He contends, therefore, that Ms Kelly was also coordinating the handling of his protected disclosures and his subsequent dismissal.[53]He also says that Mr Waite’s signature on his statement for the Interim Relief hearing was not authentic in that it was not ‘eIDAS’13 or s7 Electronic Communications Act 2000 Compliant (e.g. not DocuSigned). He says that it was added by Taylor Wessing. He notes UK Law Society Guidance on electronic signatures which states “The person alleging that the document was not authentic...would need to prove, on a balance of probabilities, that this was the case”. He says that DocuSign integrates with the software14 used by “Taylor Wessing LLP”; but was not used. ET3s Changed[54]The Claimant also relies on apparent, unexplained changes made to the ET3s after they had been filed on behalf of the Respondents in this case. He says that this was done using a pdf editor programme.[55]He contends that, for example, an original ET3 had included Eversheds Sutherland as the Respondent, giving an address of Eversheds in Salford. He contends that, when Taylor Wessing filed a bundle with the Tribunal for a December 2023 preliminary hearing, Taylor Wessing must have realised they made a mistake in revealing Eversheds’ involvement and changed the name to Amazon in the formal sections of the ET3s. However, they forgot to change the original post code and the title, “Mrs”, C Bundle p164. He says that similar changes were made to an ET3 for Joe Carroll, C Bundle p165.[56]He contends that the Respondents’ representatives therefore changed formal Tribunal documents using PDF editor or photoshopping. He contended that that is scandalous conduct. Falsified AWOL Policy[57]The Claimant contends that, during the disciplinary proceedings against him, Mr Hammerton, from Eversheds Sutherland falsified a ‘PCP’ to legitimise the Police having been sent to the Claimant’s home on Saturday 11 February 2023.[58]He contends that the real “AWAL“ policy states, C Bundle p591: “If Amazon is unable to contact you by telephone and if you are absent for three or more days without contacting Amazon, a letter will be sent”. He contends that Mr Hammerton, wrote, 6 March 2023: “standard AWAL processes and contacting the police”; C Bundle p366 Mr Hammerton, 30 March 2023: “the standard AWAL process, to contact the local police”. Case Numbers: 2210418/2023 & 2215062/2023 10 of 18 Documents Backdated[59]The Claimant contends that the Respondent created documents on 25 May 2023, including minutes of meetings said to have taken place earlier, for example on 26 April 2023. He points to the metadata showing the creation date for these minutes as 25 May 2023, his bundle p188, 189, 190. He contends that these documents were backdated to create a false paper trail.[60]He makes similar contentions about meeting notes created on 1 March 2023, C Bundle p276, 280, 283, 286. False Assertion that Disciplinary Processes were Independent[61]The Claimant also contends that the Respondent made false assertions about the independence of disciplinary hearings. He contends that, in a formal grievance outcome of 22 March 2023, Ms Kathryn Rosen, a Senior Associate at Eversheds Sutherland, said, “I have not seen evidence to support the stance in your grievance that the investigations outlined above have not been conducted independently of one another. Each investigation has been carried out by a different individual within the business. There is no indication that the outcomes of each disciplinary investigation and two of the disciplinary hearings have not been independent. The evidence that I have seen shows that they have all been determined on their unique set of facts as demonstrated within this letter.”[62]However, he contends that metadata shows that 3 documents bearing Mr Luke Waite’s name “Created” by Ms Rosen on 24 April 2023, 2 May 2023 & 18 May 2023, respectively. He says that documents related to Mr Carroll’s investigation, for example, an invitation letter dated 22 May 2023 were also created by Ms Rosen, as was a 24 April 2023 letter bearing the name of Mr Norm Driskell.[63]He also contends that the metadata for a further grievance outcome dated 18 May 2023, C Bundle, p162, shows that the author was also Ms Rosen.[64]He therefore contends that Ms Rosen was, in fact, in the background, creating documents used in many different processes, despite her assertion of the independence of the processes. Documents Drafted by Persons other than the Stated Authors[65]He says that, 8 March 2023, a report was sent by Mr Nayan Gulati, which was in fact drafted by Carolyn Kenyon. The Claimant acknowledged that Mr Gulati prefixed his cover email, “On behalf of Carolyn Kenyon”. Submissions Made by Lawyers[66]The Claimant contends that submissions made by barristers in these proceedings, both at the interim relief hearing and in applications for strike out were knowingly false. Decision: Unreasonable Conduct of Proceedings / Fair Hearing no Longer Possible: Fraud Grounds Case Numbers: 2210418/2023 & 2215062/2023 11 of 18[67]I acknowledge the guidance in Arrow Nominees that, where documents may be fraudulent, a Judge should determine before the trial “whether full disclosure of the fraudulent conduct has been made.” And that “if he is not satisfied that there has been full and frank disclosure of the fraudulent conduct, then, for the reasons which I have already given, it seems to me that the correct response is to refuse to allow the party in default from taking any further part in the proceedings - with whatever consequences follow from that.”[68]However, in this case, I do not accept, at this stage, that there is evidence that fraudulent documents were created by the Respondent. The requirement to make a determination as to whether there has been “full disclosure” of such fraudulent conduct does not arise.[69]Moreover, I do not consider that it is possible to make a fair determination of allegations of fraud regarding documents, at a preliminary hearing in this case. The contents of the documents and the circumstances of their creation are matters which are central to the substantive issues and can only fairly be established at a final hearing.[70]My observations on the allegations of fraud in relation to the current documents and evidence available, including the document metadata, are as follows:[71]Joe Carroll:a. Whether Mr Carroll’s witness statement was signed by him, or authorised by him to be signed, will be a matter which can only be fairly decided having heard witness evidence from Mr Carroll. Further, even if the solicitors acting for the Respondents did not follow the correct process in attaching a signature to the statement, which may be improper, Mr Carroll may still have given instructions for the drafting of the witness statement and may have approved all of its contents. If that is the case, the witness statement may not have been misleading in any way, save as to the fact that it may not have been properly signed. The materiality of any breach of process (even if there was one), to the issues in the substantive case, is yet to be established.b. The fact that solicitors or members of HR departments may have been involved in creating or drafting documents in a disciplinary process is not necessarily improper or misleading. Solicitors and HR personnel may produce first drafts of documents, on instructions and in discussion with the decision maker. The document can still be the decision maker’s document. So long as the person who signed the relevant document agreed with its contents, their signature on it is not necessarily misleading. Whether the purported decision maker did, in fact, make the relevant decision, when a document was first drafted by another person, will be a matter for evidence at the final hearing.c. The Claimant’s contentions regarding the metadata and format of documents are properly a matter for both expert and non-expert witness evidence. The significance of the time zone and format of documents is likely to be a matter for expert evidence.d. There is no sufficient basis for me to conclude, at this stage, that there has even been a likelihood of fraud in relation to the Joe Carroll documents.e. The proper conclusions about who were the relevant decision makers is a central issue in the Claimant’s automatic unfair dismissal case. The Claimant’s contentions about the misleading nature of documents are so intertwined with the substantive issues in the case that I do not consider that it is possible, or appropriate, to make a decision about them at a preliminary stage, without hearing all the evidence. Case Numbers: 2210418/2023 & 2215062/2023 12 of 18[72]Luke Waitea. The Claimant contends that Ms Rosen, a solicitor, drafted many of the documents in supposedly independent grievance and disciplinary investigations. He contends that she was a controlling mind behind many of the decisions made in these processes. Again, his contentions in this regard are quintessentially matters to be determined at the final hearing. It is not possible at this stage, without full witness evidence and without examining the full course of correspondence, to decide to what extent Ms Rosen was involved in drafting the relevant documents (or provided templates), whether the documents were substantive documents or simply procedural steps, whether she drafted documents on instructions from the decision makers, and what inferences are to be drawn from all of this.b. Further, regarding Ms Kelly, without hearing all the evidence, it is simply not possible to determine to what extent Ms Kelly was involved in any decision making.c. As with Mr Carroll’s statement, the significance of the form of Mr Waite’s signature on his witness statement is something which cannot be determined without hearing evidence from him.[73]ET3s Changeda. The names and addresses on some formal parts of the ET3 documents were changed by the Respondents before being included in documents for a preliminary hearing. The materiality of the changes is something which can only be fairly decided having heard the Respondents’ (or their solicitors’) explanations for the changes. These changes to the formal documents may, or may not, have any bearing on the case, in that they may not have been misleading in relation to any issue to be determined in the proceedings.b. I do not accept that, at this stage, it is possible to say that there has been even any likelihood of fraudulent conduct on the part of the Respondents, or their solicitors, in this regard.[74]Falsified AWAL Policya. The Claimant confirmed that he was not contending that Mr Hammerton had falsified a document and pretended that it had been the relevant written policy at the time the Claimant was visited by the police. Essentially, the Claimant contends that Mr Hammerton misrepresented to him that the Respondent had a practice of sending police to an absent employee’s address, when, in fact, the Respondent’s written policy simply says a letter will be sent.b. However, whether there was such a practice of sending police to check on an employee when they did not attend work, notwithstanding the terms of the written policy is, again, something which needs to be determined having heard witness evidence.c. A company may well have a practice which is not fully reflected in written policies. I do not accept that there is evidence of fraudulent conduct because a different practice, compared to a written policy, has been described to the Claimant in correspondence.[75]Documents Backdated Case Numbers: 2210418/2023 & 2215062/2023 13 of 18a. Whether documents were backdated to create a false chronology of events, or whether the documents were created after relevant events, but accurately reflected the dates and events in question, is, again, something which needs to be decided having heard evidence from the person who created those documents.b. Proof of backdating might simply show, for example, that a document, sent to the Claimant and containing meeting notes, was created at a later date than when the purported meeting took place.c. I do not accept that the fact that a document, or documents, have been created after the event is evidence, in itself, of falsity.[76]False Assertion that Processes were Independent a. I refer to my comments about Ms Rosen’s involvement, above.[77]Submissions Made by Lawyers a. I did not accept that there was any proper basis for asserting that barristers misled the Tribunal, without knowing what instructions the barristers had been given by their clients and what documents the barristers had seen.[78]In summary, at this preliminary stage, the Tribunal is not in a position to make a finding that there has been fraudulent or unreasonable conduct by the Respondents.[79]The evidential case regarding documents on which the Claimant relies is so intertwined with the merits of the claim that it would not be possible, at a preliminary hearing, to separate the issue of falsification of documents from the decision on the true reason for the Claimant’s dismissal, or for the alleged detriments.[80]Without a finding of fraudulent or unreasonable conduct the application for strike out on that ground must fail.[81]Furthermore, a fair hearing is only possible if it is a full final hearing on the merits. Striking out the Respondents’ responses would deprive all Respondents of the right, even, to meet the allegations made against them. That would clearly deprive the Respondents of any fair determination of the claims.[82]The Claimant’s allegations of fraud can still be advanced by him, front and centre of his claim to the Tribunal, at the final hearing. The Tribunal at the final hearing is capable of identifying whether documents are misleading, or false, and making appropriate findings. It can disregard any false documents. It can reject evidence based on false documents. The Claimant can still have a fair hearing on the merits.[83]For completeness, in the absence of fraud, where there are central disputes of fact, it is not appropriate to strike out. I agreed with the Respondent that, in reality, the Claimant has set out his evidential case; he has made a series of allegations and assertions. He has identified documents on which he will rely and lines of cross examination. But all of those are disputed. There are central disputes which can only be resolved by a full Tribunal, having heard all the evidence. The Respondents’ Applications for Strike Out and Deposit Order Case Numbers: 2210418/2023 & 2215062/2023 14 of 18[84]The Respondents sought strike out on the grounds of “no reasonable prospect of success”. They sought deposit orders under r39 ET Rules of Procedure 2013, in the alternative. The test for making a deposit order in respect of an allegation is that it has ‘…little reasonable prospect of success…’ Rule 39(1).[85]Their application had 2 aspects:a. “.The Named Respondents Application”, which related to 4 named Respondents: i. Ms Garcia-Deleito, the Eighth Respondent. Ms Garcia-Deleito, is a lawyer, partner, and Head of Employment and Immigration at Stevens & Bolton LLP. ii. Mr Hammerton, the Ninth Respondent. Mr Hammerton, is a lawyer and partner at Eversheds Sutherland LLP. iii. Ms Rosen, the Eleventh Respondent. Ms Rosen, is a lawyer at Eversheds Sutherland LLP. iv. Mr. Walters, the Sixteenth Respondent. Mr Walters, is a senior employment lawyer based at Amazon's headquarters in Seattle. His role is AGC, Labor and Employment. The Respondents sought to strike out all claims against the four named Respondents, or alternatively, deposit orders for any claims or allegations pursued against those four.b. “The Issue 2(v) Application.” This referred to issue 2(v) in the List of Issues: “Using Mr Nayan Gulati to send a letter on 9 March 2023 drafted by Carolyn Kenyon and Savannah Silver, to conceal their involvement.” The allegation is of victimisation and protected disclosure detriment. Again, the Respondents seek a deposit order as an alternative to their strike out application.[86]The Respondents relied on Ahir v British Airways plc [2017] EWCA Civ 1392. They contended that, where the case advanced by a Claimant is so inherently implausible, it is open to the Tribunal to conclude it has no reasonable prospects of success: Ahir, paragraphs [23]-[24]. They relied particularly on Ahir at paragraph [16], where the Court of Appeal said that, “…Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context….” .[87]The Respondents contended that, “where there is a ‘…straightforward and well-documented innocent explanation…”, a case cannot proceed on a Claimant’s mere assertion that it is untrue, without being able to advance some basis for the Claimant’s assertion, Ahir at paragraphs [19] and [24]. The Third Party Solicitors[88]In respect of Ms Garcia-Deleito, Mr Hammerton and Ms Rosen, all are lawyers at solicitors’ firms, not in-house at the First Respondent. They have provided employment law advice to the First Respondent . The Respondents contend, however, that neither Ms Garcia-Deleito, Case Numbers: 2210418/2023 & 2215062/2023 15 of 18 nor Stevens & Bolton LLP, where she is a partner, have acted for the First Respondent in relation to employment matters for over 10 years.[89]The Claimant served a table entitled ‘Attribution of Alleged Detriment to Each Respondent’. In it, the Claimant set out the items of correspondence which he alleges against the Third Party Respondents were partly responsible for producing. He relies on metadata showing their authorship, in support of his allegations. The Respondents contend that the person who is responsible for sending the document is clear on the face of the documents. They say that there is nothing on the face of the documents to link the third party solicitors to them and that the metadata does not identify the solicitors as the legally relevant decision makers. The Respondents contend that there is no proper basis for doubting the straightforward explanation that the person who sent each letter was the person responsible for its contents.[90]Further, the Respondents say that it is normal commercial practice for employers to engage lawyers and other professionals to advise on preparing documents, including dismissal and invitation letters, so there is no adverse inference to be drawn from their involvement. Decision – the Third Party Solicitors[91]I did not strike out the Claimant’s complaints against the named solicitor Respondents.[92]The Claimant’s case is a Royal Mail Group Ltd v Jhuti [2019] UKSC 55 - type case: if a person in the hierarchy of responsibility above the employee determines that he should be dismissed for a reason, but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason, rather than the invented reason.[93]The Claimant relies, not only on the metadata showing that certain individuals drafted documents, but on his contention that the metadata shows that Ms Rosen and Mr Hammerton, who both worked for Eversheds and were acting for the First Respondent in relation to the Claimant’s employment matters, were involved in both:a. drafting documents over the whole course of the disciplinary and grievance processes; andb. supposedly independent processes.[94]He will ask the Tribunal to draw inferences, from the evidence, that there was a hidden plan to dismiss him because of his protected disclosures, and that the solicitors assisted the other Respondents to achieve this goal. For example, he says that, in his evidence bundle, metadata at p374 shows that the author of a letter regarding the disciplinary appeal is RosenKA. He says that the metadata for a 22 May 2023 invitation to disciplinary hearing to be held on 24 May was drafted by RosenKA too, p409. He says that the metadata for a 24 April 2023 letter inviting him to a grievance meeting shows that RosenKA drafted it, p379.[95]The Claimant also relies on the timing of the drafting of documents, to contend that the supposed decision makers could not, in fact, have made the relevant decisions because they did not have time to review the documents before sending them out.[96]He says that a grievance outcome email, for example, sent to him by Luke Waite at 18.25 on 18 May 2023, p395, was sent 17 minutes after metadata shows that Ms Rosen had completed the lengthy draft, p400. He notes that Mr Waite’s letter says, “I have not seen evidence to support the stance in your grievance that the investigations outlined above have not been conducted independently of one another. Each investigation has been carried out by a different individual within the business”, p404. The Claimant contends that Ms Rosen’s Case Numbers: 2210418/2023 & 2215062/2023 16 of 18 involvement in a number of different processes disproves this assertion. He relies on other invitations to grievance meetings drafted by Ms Rosen, with an apparently short editing time allowed to the manager from Amazon who, on the letter’s face, sent it to the Claimant, pp96-99.[97]He relies on the whole course of the documentation to ask the Tribunal to draw inferences as to whether there was an invented reason to hide the true reason for his dismissal. He contends that a number of individuals coordinated to ensure his dismissal.[98]He also relies on these individuals’ alleged responsibility for the detriment of dismissal -Timis v Osipov [2018] EWCA Civ 2321 – as the basis for his claim against the First Respondents that they are also responsible for the detriment of dismissal.[99]Just as in the Claimant’s strike out application, I have decided that it is not possible, at a preliminary hearing, to determine who was actually responsible for the contents of the contemporaneous documents. Whether there was a concerted plan to dismiss the Claimant can only be decided having heard all the evidence. The metadata showing the involvement of solicitors “behind the scenes” is an important part of the Claimant’s evidential case. The proper characterisation of their involvement will be a matter for the final hearing.[100]For the same reasons, I did not make a deposit order in relation to the claims against Ms Rosen and Mr Hammerton.[101]In relation to Ms Garcia-Deleito, I had considerably more pause for thought on the subject of a deposit order. It may be that her name appears on the metadata of documents, but there seems to be nothing else which links her to the case, at all. There seems little reason to doubt the Respondents’ assertion that she has not been involved in advising the First Respondent on employment matters for years.[102]However, as the Claimant points out, the Respondents themselves rely only on assertions regarding Ms Garcia-Deleito. They have not themselves produced any contemporaneous evidence to show that Ms Garcia-Deletio was not involved. The parties make competing assertions regarding Ms Garcia-Deletio’s involvement. The Claimant can at least point to metadata, apparently indicating her involvement in producing documents, C evidence bundle p360. It may be that, following full disclosure in the case and/or exchange of witness statements, that a deposit order in relation to the claims against Ms Garcia-Deleito is appropriate. Strike Out Application: Mr Walters[103]The Respondents also seek to strike out all claims against Mr Walters, R16. Mr Walters, is a senior employment lawyer based at Amazon's headquarters in Seattle. His role is AGC, Labor and Employment.[104]The Claimant’s case against Mr. Walters is set out in paragraphs 71-76 of the Claimant’s second ET1 attachment. The Claimant alleges that Mr Walters co-ordinated the Claimant’s dismissal.[105]The evidence on which the Claimant relies is an email dated 9 January 2023, forwarded to the Claimant on 13 January 2023,[106]The email records an ethics line report made by the Claimant. In his report, the Claimant gives the approximate time relevant to the report as being ‘…Since 22 November Case Numbers: 2210418/2023 & 2215062/2023 17 of 18 2022 when AWS was notified of UK Employment Tribunal Case 2208865/2022: ‘Forrest v Amazon Web Services EMEA SARL UK Branch’…’. The email forwarding the report instructs, “…Please coordinate the investigation of this matter with @kurtwalt, as the reporter alleges there is on-going litigation regarding these allegations…Please note this report names an AWS HR manager…”.[107]The Respondents agree that the reference to @kurtwalt is a reference to Mr. Walters.[108]On the basis of this instruction, which was copied to the Claimant shortly afterwards, the Claimant asserts that Mr Walters ‘…co-ordinated sham processes with the objective of securing the Claimant’s dismissal’ List of Issues Part 2(f).[109]The Respondents contend that this assertion is speculative and fanciful. They say that there is no identified response from Mr Walters, nor anything to suggest he took an active role in the processes leading to the Claimant’s dismissal. Decision – Mr Walters[110]I did not strike out the claim against Mr Walters, nor make a deposit order. Disclosure of documents had not yet been provided. The Claimant alleges that there has his dismissal and the detriments were coordinated because of his protected disclosures. There is some evidence that Mr Walters was asked to coordinate the investigation into one of the Claimant’s protected disclosures. The absence of further evidence of Mr Walters’ involvement may be due to the early stage of the proceedings. It was premature to consider strike out, or deposit order, of the claim against him. Strike Out Application: Issue 2(v) List of Issues[111]The Issue is “Using Mr Nayan Gulati to send a letter on 9 March 2023 drafted by Carolyn Kenyon and Savannah Silver, to conceal their involvement (& violation of s.27 EqA 2010 & s.43J ERA1996)”.[112]The issue relates to a letter written by Mr Gulati, an HR Partner, to the Claimant dated 8 March 2023, inviting the Claimant to attend an investigatory meeting, with Ms Kenyon and Mr Gulati, on 15 March 2023. The letter is also expressly sent on her behalf[113]The Claimant conceded that Ms Kenyon should be removed from the allegation. Decision – Issue 2(v)[114]I did not strike out the issue as concerning Ms Silver, nor did I make a deposit order. The Claimant drew my attention to the metadata of the letter itself, C evidence Bundle p300, which he said showed that it was created on 8 March, with the author being SilverS -Savannah Silver, a Texas attorney. He also said that the attached policy, p298, 299, 301, was created using an obfuscation software more commonly used in the US, where Ms Silver is based. I considered that the issue of whether Ms Silver’s involvement was concealed by the Respondents was something which needed to be determined after having heard all the evidence. Further Particulars of Detriment Table[115]The Respondents asked that the Tribunal make case management orders regarding the Claimant’s Detriment Table, to ensure that the detriments reflect the Respondents already Case Numbers: 2210418/2023 & 2215062/2023 18 of 18 identified in the List of Issues; and the Claimant’s pleaded case. They said that the detriment table was inconsistent with the pleaded case and the List of Issues and appeared to be a scattergun approach, drawing excessive numbers of Respondents into the allegations.[116]Again, I did not require the Claimant to limit the Respondents he contends were responsible for detriments before disclosure of documents. It is not appropriate to require the Claimant to say that certain Respondents were not involved in certain decisions before he has seen full disclosure and when he alleges a concerted, hidden effort by a number of Respondents to dismiss him. The Claimant acknowledged that disclosure would help identify the issues and the relevant Respondents. _____________________________ Employment Judge Brown Date: 16 July 2024 SENT to the PARTIES ON 16 July 2024 .................................................................................. .................................................................................. FOR THE TRIBUNAL OFFICE Case Number 2210418/2023 & 2215062/2023 1 EMPLOYMENT TRIBUNALS Claimant Respondents Mr Charles Forrest v 1. Amazon Web Services EMEA SARL UK Branch 2. Jo Barry 3. Joe Carroll 4. Addy Charman 5. Gözde Demiral 6. Norm Driskell 7. Paddy Fitzpatrick 8. 9. 10. Carolyn Marie Kenyon 11. Kathryn Rosen 12. Abigail Russell 13. Shahar Vigder 14. Wendy Ruth Collidge 15. Stacey Kelly 16. Kurt Walters 17. Isak Vigil Heard at: London Central On: 2 June – 3 July and 21 July – 4 August 2025 In Chambers: 5 – 8 August, 2, 3, 4, 11, 12, 15 and 16 September 2025 Before: Employment Judge P Klimov Tribunal Member F Benson Tribunal Member T Shaah Appearances: For the claimant: in person For the respondent: Mr Humphreys of counsel Case Number 2210418/2023 & 2215062/2023 2[117]R4 and R17(joining by a video link from the USA) gave their evidence. No applications were made on that day.[118]At 19:55, Rs’ solicitors wrote to the Tribunal and C with a list of C’s questions they would be sending to the metadata expert (18 in total), and which questions they would not be sending to the expert. This was in accordance with the EJ Brown’s orders. For each question they said they would not be sending to the expert, they gave detailed reasons why that question would not be put to the expert. Day 13 – Wednesday, 2/07/25[119]Before the start of the hearing, at 9:57am, C sent an email to the Tribunal, enclosing two documents disclosed to him by Rs on 9 December 2024 (BeXT Guidelines – Missing Employee Welfare Check, and BeXT Guidelines – Missing Employee Welfare Check) and saying that these two documents were fabricated and tampered with. He said: Case Number 2210418/2023 & 2215062/2023 30 “Please then see Bundle Page 3889, as relied upon by R’s Barrister in re-examination on 16 June 2025. Please 'spot the difference’ between BeXT Guidelines - Missing Employee Welfare Check.doc as now attached and Bundle Page 3889. I cannot properly or fairly cross-examine Ms Kelly (R15), or anyone else, on Issue 2(b) ("Sending the Metropolitan Police to the Claimant's home on 11 February 2023, having made an unfounded allegation regarding the welfare of his wife”) when fabricated evidence is being relied upon by the Respondents.”[120]The difference between the disclosed document (BeXT Guidelines - Missing Employee Welfare Check.doc), as disclosed to C on 9 December 2024, and the corresponding document in the bundle (pp.3889 – 3891) was that the former had a footer and the document in the bundle did not. The footer had the following text: Amazon Confidential Last Reviewed By: shatabdp@, meissnr@, roonefla@, suesmith@[121]C did not identify any other difference in the contents of these documents.[122]R15 gave her evidence. Shortly after starting to cross-examine R15, C asked for a break. A 10-minute break was called. Upon return from the break C again raised the issue of the footer being removed from the BeXT Guidelines - Missing Employee Welfare Check document and said that Rs’ solicitors tampered with evidence and he could not properly cross-examine R15. Rs’ counsel objected to C’s continuous allegations of impropriety. The Tribunal asked C several times if he wanted the BeXT Guidelines - Missing Employee Welfare Check document with the footer to be admitted in evidence and added to the hearing bundle. C did not answer the Tribunal’s question. C continued to make allegations against Rs’ solicitors and counsel of them fabricating and tampering with evidence, without telling the Tribunal if he wanted that document (with the footer) to be admitted in evidence. Not being able to elicit a clear answer from C, the Tribunal, on its own initiative, ordered that the two documents disclosed by Rs to C on 9 December 2024 be admitted in evidence and added to the bundle. These documents had been provided by Rs’ solicitors over the lunch break. The Tribunal then asked C if he would be taking R15 to these documents in cross-examination, as he had said earlier that he could not fairly cross-examine her on Issue 2(b), because of the BeXT Guidelines - Missing Employee Welfare Check document in the hearing bundle had been fabricated or tampered with (by reason, as the Tribunal understood C, of the footer being removed). However, following the Tribunal’s order, both versions of that document were now before the Tribunal in evidence. Surprising, C said that he would not be asking R15 any questions about that document. Day 14 – Thursday, 3/07/25[123]R12 and R11 gave their evidence. After the lunch break, C asked the Tribunal to look at the questions Rs were sending to the expert, arguing that Document Owner: BeXT L&D Version: 1 Last Updated By: shatabdp@ Last Update Date: Feb-7-23 Case Number 2210418/2023 & 2215062/2023 31 Rs not including his question 1.1 (“Your report makes no reference to ACPO Good Practice Guidelines for Digital Evidence or ISO standards. Please clarify why your report neither cites nor complies with these standards.” 10) would make the resulting report of no assistance to the Tribunal. The Tribunal explained that pursuant to the EJ Brown’s orders given at 9 th PH, it was up to Rs which of the C’s questions to pass to the expert11. The Tribunal also explained that any arguments as to what weight the Tribunal should give to the expert evidence is a matter for the parties to deal with in their final submissions.[124]At the end of the R11’s evidence, the Tribunal announced that on its own initiative it was proposing to strike out the C’s claims against R11 and R16 on the same basis as with respect to R8 and R9. The Tribunal gave C until 10am on Monday, 7 July to send his submissions as to why his claims against R11 and R16 should not be struck out.[125]R11’s evidence concluded the Rs’ case. There was a brief discussion about possible technical set up to allow for C’s cross-examination to be conducted in writing (pursuant to the EJ Brown’s reasonable adjustments orders). It was agreed that Rs’ solicitors would write to the Tribunal and C with their proposal. The hearing was adjourned until Monday, 21 July 2025. Adjournment until 21 July 2025[126]On Monday, 7 July 2025, C sent his submissions why his claims against R11 and R16 should not be struck out. Rs sent their reply to the submissions later that day.[127]On Friday, 11 July 2025, C sent an email, attaching his appeal papers to the EAT against the 13 June order. In his covering email he said: “Paragraph 3.3 of that 13 June 2025 Case Management Order granted leave to submit a supplemental witness statement by today regarding issues arising from the expert report, if so advised. The Grounds of Appeal address these matters in considerable detail, examining the Respondents' report, the circumstances of its production, and its implications for the proceedings. These grounds effectively set out the position that would have been covered in any supplemental witness statement.”[128]On Monday, 14 July 2025, Rs’ solicitors wrote to the Tribunal with their proposal for a technical set up for C’s cross-examination.[129]On Tuesday, 15 July 2025, C sent an application to amend the list of issues (“Inclusion of 17 January 2024 OFSI Disclosure as Protected Following 10 Rs’ reasons for not sending this question to the expert were: “This question appears to be an attempt to introduce new guidelines and standards to the letter of instruction. The Metadata Expert's instructions were comprehensively set out in the letter of instruction. The Claimant was given the opportunity to comment upon the draft letter and all of the Claimant's changes were included in the final letter without amendment.” 11 “18. By 21 February 2025 the parties shall send to the other (or the Claimant shall send to the Respondents) any further questions they wish the expert to be asked. It will be a matter for the other party (or Respondents alone, if they only are instructing an expert) which, if any, of those questions they choose to put to the expert. [emphasis added]” Case Number 2210418/2023 & 2215062/2023 32 Statutory Designation of HM Treasury as Prescribed Person on 26 June 2025”).[130]On Thursday, 17 July 2025, the Tribunal responded to the Rs’ proposal on the technical set up. The Tribunal said: “The cross-examination method proposed by the Respondents is acceptable, subject to the following: 1. the resulting cross-examination Microsoft Word document, containing questions and answers ("the XE Document"), will need to be shared with the Tribunal too, 2. the procedural status of the X-E Document will be one of the Respondents' contemporaneous minute of that part of the hearing. Even when shared with the Claimant and the Tribunal, it will remain the Respondents' document. 3. For the avoidance of doubt, the X-E Document will not be considered as the record of the proceedings or a transcript of the hearing. 4. The X-E Document may only be used for the purposes of these proceedings. It must not be shared with third parties without the Tribunal's permission. 5. Any interventions or clarification questions from the Tribunal panel will be made orally. However, if the Claimant is proposing to respond to the Tribunal's interventions/questions in writing, he may do by typing his answers in the X-E Document. […] If the Claimant wishes to make any comments on the above, he must write to the Tribunal and the Respondent as soon as possible.”[131]On the same day, C replied, raising various objections. He said that the set up was fundamentally incompatible with the EJ Brown’s orders, which gave him permission to wear “noise cancelling headphones to minimise distraction during his own evidence”, meaning that he would not be able to hear the Tribunal’s interventions and questions. He also objected to the X-E document being considered as the Rs’ note. He again raised issues of inadequate disclosure and sought various clarifications.[132]On the same day, Rs’ solicitors sent an updated hearing bundle, with additional documents admitted or produced since the start of the hearing being added at the end (pages 10,528 – 11,359).[133]Later that day, C sent an email, entitled " Submission of Medical Evidence from treating Consultant Psychiatrist” with a letter, dated 16 July 2025, from Dr Wise, C’s consultant psychiatrist, in which Dr Wise answers several questions C had asked him to answer during his appointment with Dr Wise on 14 July 2025. Later, C explained to the Tribunal that he had an appointment with Dr Wise to renew his medication prescription and thought that since he was paying for that appointment, he could use this opportunity to get Dr Wise to answer his questions, which C thought would help the Tribunal to decide his claim.[134]On Sunday, 20 July 2025, C sent to the Tribunal a 117-page document, entitled: “C’S APPLICATION:(1) FOR STRIKE OUT UNDER RULE 38(1)(b) (DISHONEST CONDUCT OF R’S LEGAL REPRESENTATIVES, FORGERY, PERJURY AND SYSTEMATIC DISCLOSURE SUPPRESSION)12;(2) FOR WASTED COSTS;(3) FOR PREPARATION TIME;(4) FOR THE TRIBUNAL TO MAKE A MOTION FOR 12 The 6 th C’s SO Application Case Number 2210418/2023 & 2215062/2023 33 CONTEMPT TO THE DIVISIONAL COURT;(5) FOR THE RECUSAL OF EJ KLIMOV ON GROUNDS OF APPARENT BIAS;(6) FOR SPECIFIC DISCLOSURE SO AS TO ENABLE ATTRIBUTION OF LEGAL LIABILITY PURSUANT TO TIMIS V OSIPOV”. Day 15 – Monday, 21/07/25[135]At the start of the hearing, the Tribunal said that it would announce its decision on its proposal to strike out C’s claims against R11 and R16 later that day. Rs objected to the C’s application to amend the list of issues, and to Dr Wise’s letter of 16 July being admitted in
evidence.
[136]The Tribunal said that the C’s 20 July applications would be considered in due course once the Tribunal and Rs have had a chance to review them, and Rs have made their submissions.[137]C’s objections to the technical set up were discussed. The Tribunal asked C if he would be wearing noise cancelling headphones in crossexamination. C said that he would. The Tribunal said that if it needed to intervene it would signal to Rs’ counsel, who would then ask C to pause, which instruction would then appear on the C’s computer screen in the X-E Document, in the same way as Rs’ counsel’s cross-examination questions.[138]We pause here to explain that the technical set up involved two laptops (one before Rs’ counsel and one before C, placed on the witness table) and a large screen in the hearing room. C’s cross-examination was conducted via a shared Microsoft Word document (“the X-E Document”) visible to all participants (either on the large screen in the hearing room or as a “shared screen” on CVP for those joining remotely). Rs’ counsel asked his questions orally, which through the MSWord Dictate function automatically appeared as typed-up questions in the X-E Document. C gave his answers by typing them underneath the question. From the technical point of view, the process worked reasonably well, although some of the questions were not transcribed correctly, and sometimes there was a short time lag between Rs’ counsel asking his question and that question appearing in the X-E Document.[139]The Tribunal also directed that at the end of C’s evidence, the X-E document must be shared with C and the Tribunal without making any edits or corrections, including without correcting any errors of voice-to-text automatic transcription.[140]Upon the Tribunal’s enquiry C confirmed that he would not be providing a supplemental witness statement with respect to the metadata expert report (he was given leave to provide such a statement in the Tribunal’s 13 June orders).[141]C also confirmed that he was not submitting Dr Wise’s letter of 16 July as expert evidence, but as something that may assist the Tribunal, because it Case Number 2210418/2023 & 2215062/2023 34 contained a rational analysis and answers questions relevant to his medical condition.[142]C objected to the updated bundle submitted by Rs, arguing, amongst other things, that Rs had taken that opportunity to tamper with other documents in the bundle, which he had detected by comparing the size of the original bundle in Mb and the size of the updated bundle (with the additional pages removed). C claimed that the difference in size meant that Rs’ solicitors applied “scrambling techniques” to the bundle, thus tampering with the evidence. He invited the Tribunal to undertake technical interrogation of the bundle to verify that, which invitation the Tribunal declined, explaining that its role was to consider evidence before it, but not to search for them. C then said that it would be an impossible task for him to review all pages in the original bundle and the new bundle to determine which pages had been tampered with.[143]The Tribunal ordered that C should review the additional documents added to the bundle (all of which were common or previously disclosed documents) and confirm by 10am on Tuesday, 22 July if he had any objections to those documents being added.[144]Rs’ counsel again raised the issue of C using the proceedings to make serious allegations of dishonesty against Rs’ solicitors and counsel, all of which were denied in the strongest possible terms.[145]The Tribunal invited C to start giving his evidence. C refused and argued back that his recusal application had to be determined first. The Tribunal explained that it had already ruled that the recusal application would be determined once both the Tribunal and Rs have had a chance to consider it and after hearing Rs’ submissions. The application was voluminous. It was not possible to deal with it quickly, and, considering the tight timetable it would not proportionate to delay the start of C’s evidence, as it would risk not being able to conclude the hearing within the allocated trial window. The Tribunal again invited C to start his evidence. C refused and continued to argue back. The Tribunal asked C if he would be giving his evidence, or if he did not wish to give his evidence, he could withdraw his witness statements, and the hearing would then proceed to the final stage of the parties’ written submissions. C continued to argue that the Tribunal must deal with all his applications first.[146]The Tribunal warned C that continuing to argue back when the decision had been made and explained to the parties could amount to unreasonable conduct of the proceedings, for which an appropriate sanction may be imposed by the Tribunal, up to the strike out of the claim. The Tribunal asked C again whether he would be giving his evidence. C asked for a break to take legal advice. The Tribunal allowed that.[147]After the break, C said that he would be giving his evidence. Case Number 2210418/2023 & 2215062/2023 35[148]In the witness statements bundle, there were two witness statements (with numerous attachments) by C:(i) a short 3-page (13 paragraphs) statement, signed by C on 30 May 2025, and(ii) a longer 51-page (225 paragraphs) statement, also signed by C on 30 May 2025. Both contained a statement of truth as their last paragraph.[149]I took C through the usual procedure to swear in his evidence in his first statement. However, when I attempted to do the same with respect to his second (longer) statement, C said that it was not his witness statement, but it was his narrative statement (that is how it was entitled). I explained to C that if he wanted the Tribunal to consider as evidence what his says in his second statement, he needed to swear the truth of the evidence there in the same way as he had just done with respect to his first statement. C said again that it was not his witness statement but his narrative statement. I asked C to explain what he meant by “narrative statement”. C said that the Tribunal must consider the totality of evidence before it but did not answer my question. I asked C again whether he wished to rely on his narrative statement as his witness evidence to the Tribunal. C said that the narrative statement was not a witness statement, and he would not be swearing in on that statement. I asked C if he then wanted the Tribunal to consider his narrative statement as his written representations under Rule 42 of the ET Rules. C did not give a clear answer to that question either. Not being able to make any further progress with C on this question, the Tribunal decided that C’s witness evidence in chief would be those in his first 3-page witness statement and his narrative statement would be considered as his written representations under Rule 42 of the ET Rules.[150]Rs’ counsel started cross-examination. In addition to the question appearing in the X-E Document on C’s screen, C was taking detailed handwritten notes of each question. It considerably slowed down the proceedings. The Tribunal intervened to explain that all questions appear in the X-E Document, as would be C’s typed-up answers, which document would be shared with C at the end of his evidence. The Tribunal also pointed out that he had his support in the hearing room, who appear were taking copious notes on their computer. C stopped taking handwritten notes.[151]At the end of the hearing on that day, after some discussion, it was decided that Rs would make their submission on the C’s recusal application on Wednesday, 23 July 2025, and that C other applications in the 20th July document would be considered after the end of the C’s evidence. That is because if the C’s recusal application was successful, it would be inappropriate for this Tribunal to deal with any other applications. However, as C confirmed, if his recusal application was unsuccessful, he still wanted the Tribunal to deal with his other applications in the 20 July letter.[152]The Tribunal announced its unanimous decision on its proposal to strike out C’s claims against R11 and R16, declaring that C’s claims against them were scandalous, vexatious and had not reasonable prospect of success, but deciding not to strike them out. C asked for written reasons. Case Number 2210418/2023 & 2215062/2023 36 Written reasons for that decision are in Appendix 2.3 – Written Reasons for the decision not to strike out C’s claims against R11 and R16 Day 16 – Tuesday, 22/07/25[153]At 1:02am C sent a “Supplemental application for the recusal of EJ Klimov”. At the hearing C confirmed that this supplemental application should be considered as additional submissions to his 20 July recusal application and dealt with together.[154]At 9:45am, C sent an email, entitled: “C's Objection to Respondents' Bundle Application” with his written submissions on the additional documents being added to the bundle.[155]Before the start of the hearing, C passed to the Tribunal a 1-page document, entitled " Summary of eligibility for coronation medal”. C explained that this document showed that he was eligible for the coronation medal by reason of his past military service. Rs’ counsel said that he had not seen that document and could not comment on its relevance or admissibility. The Tribunal directed that C must share a copy of the document with Rs, and if Rs objected to its admissibility the Tribunal would deal with that issue then.[156]Rs’ counsel made submissions on the admissibility of the Dr Wise’s letter. C replied to the Rs’ submissions.[157]The Tribunal said that it would announce its decision on the C’s application to amend the list of issues and the admissibility of the Dr Wise’s letter at 2pm.[158]C’s evidence continued.[159]At 2pm, the Tribunal announced its unanimous decision on the C’s application to amend the list of issues, refusing it for the reasons given orally. The Tribunal also announced its unanimous decision on the admissibility of Dr Wise’s letter in evidence, ruling it to be inadmissible. C asked for written reasons. Written reasons for these two decisions are in Appendix 2.4 – Written Reasons for the decision to refuse C’s application to amend List of Issues and Appendix 2.5 – Written reasons for the decision to refuse to admit Dr Wise’s letter of 16 July 2025 in evidence, respectively.[160]C asked when his 2 nd recusal application would be considered. The Tribunal said that as it had indicated earlier the decision would be announced after hearing from Rs, which would be on Wednesday, 23 July 2025, other applications in the C’s 20 July letter (unless the recusal application succeeds) would be considered after C has finished giving his evidence13 . 13 The unanimous decision and reasons on the C’s 20 July application form part of this Judgment and are recorded in Appendix 2.8 – Decision and Reasons for refusing the remainder of the C’s 20th July application. Case Number 2210418/2023 & 2215062/2023 37[161]Rs’ counsel said that with respect to the C’s objections to the additional documents added to the bundle, these documents were largely documents generated by both parties during the hearing, and as such were not evidence, and he would not be taking C to these documents in cross-examination. The Tribunal said that in the circumstances there was no urgency in determining this issue, and it would be dealt with on Wednesday, time permitting. Day 17 – Wednesday, 23/07/25[162]Rs’ counsel addressed the Tribunal on the issue of additional documents in the bundle and the C’s recusal application. C replied to the Rs’s submissions.[163]C’s cross-examination continued for the rest of that day. Day 18 – Thursday, 24/07/25[164]At the start of the hearing, the Tribunal announced its unanimous decision on additional documents in the bundle, dismissing C’s objections. C asked for written reasons. Written reasons for that decision are in Appendix 2.6 – Written reasons for dismissing C’s objections for having additional pages added to the hearing bundle[165]Rs’ counsel said that Rs had no objections to allow the C’s additional document (Summary of eligibility for coronation medal) admitted in evidence. The Tribunal admitted the document and asked for it to be added to the bundle.[166]The hearing proceeded with C being cross-examined.[167]At 11:40am when the Tribunal asked C to pause and take off his headphones. C asked if that was an order. The Tribunal said that it was14 . C did not take his headphones and continued to type in the X-E Document. The Tribunal repeatedly asked C to stop typing and remove his headphones, so that the Tribunal could talk to him. These instructions were repeated by Rs’ counsel and appeared in the X-E Document, thus being clearly visible to C. C ignored the Tribunal’s instructions and continued to type. The Tribunal asked Rs’ counsel to close his laptop, anticipating that this would also close the X-E Document on the C’s laptop screen. It did not work, and C continued to type into the X-E Document, ignoring the Tribunal’s instructions to stop. This 14 On several occasions during C’s cross-examination when the Tribunal asked C to pause and remove his headphones, so that he could hear what the Tribunal wanted to communicate to him, C refused to do so, asking the Tribunal if that was an order. Initially, the Tribunal tried to explain that we were asking C to remove his headphones, so that he could hear what we wanted to communicate to him. Unfortunately, C continued to insist to be told if that was an order by the Tribunal. Faced with this lack of cooperation on the part of C, on several occasions I had to say that the request to remove the headphones was the Tribunal’s order. After every such intervention by the Tribunal, C was allowed to put his headphones back on before the next cross-examination question from Rs’ counsel. Case Number 2210418/2023 & 2215062/2023 38 continued for about 5 minutes. The Tribunal asked C’s companion, who was sitting next to C to ask C to stop. The companion tapped C on his shoulder (a method C had previously indicated as a way of getting his attention – more on this in the Reasonable Adjustments section below). C ignored his companion’s attempts to draw his attention. The Tribunal called security and asked them to close C’s laptop. Security arrived and closed the screen of the C’s laptop. C did not resist.[168]When the C’s laptop was closed, thus ceasing his ability to type, C became emotional, he took some medals from his bag, showed them to the Tribunal. He said that he had been waiting for this for 2 years, it was very hard for him and his family. That all he wanted was a fair trial. He said that he had been constantly interrupted. He asked the Tribunal to strike him out and said that he would go to any police station.[169]The Tribunal adjourned the hearing until 12:15pm to give C time to compose himself. At 12:15pm, C asked (via the clerk) for more time, which was granted. Later, through the clerk, C passed a message that he was hyper-stimulated and could not leave the claimants’ waiting room. The Tribunal asked the clerk to enquire whether C would appoint his companion to represent him to discuss how to proceed. C passed a message that he would but asked for some time to discuss this with his companion.[170]The hearing resumed at 1pm. The C’s companion, Mr Philip Turner, appeared for C. Mr Turner said that C had suffered a “neurodiverse meltdown” because of “hyperstimulation” and was not able to make any decisions at this stage. He asked for the hearing to be adjourned until midday on Monday, by which time C would be able to tell whether he would continue with the proceedings. Rs did not object for the hearing to be adjourned until Monday.[171]The Tribunal adjourned the hearing until 10am on Monday, 28 July 2025.[172]The Tribunal gave detailed directions, which were later that day confirmed in writing: “This is to confirm the directions given by the Tribunal at the end of the hearing today, 24 July 2025, together with further details to assist the parties. 1) The hearing is adjourned until 10am on Monday, 28 July 2025, when it will resume with the Claimant concluding his evidence. It is anticipated that the Claimant's evidence (including any questions from the Tribunal and re-examination) will finish on that day by 1pm, the latest. 2) If for medical reasons the Claimant is unable to continue with his evidence on Monday, he must provide the relevant medical evidence as soon as possible (and no later than 4pm on Friday, 25 July 2025), which medical evidence must explain in reasonable detail:(i) the nature of the medical condition, which makes the claimant unfit to give his evidence on Monday,(ii) why the medical practitioner considers that the claimant is unfit to give his evidence on Monday, 28 July 2025, between 10am and 1pm (in the same way as he has been giving his evidence this week),(iii) what reasonable adjustments will assist the claimant to finish giving his Case Number 2210418/2023 & 2215062/2023 39 evidence on Monday (for 1 - 3 hours with breaks), and (iii) if, in their opinion, no such reasonable adjustments would enable the Claimant to continue with his evidence on Monday, the prognosis as to when the claimant would be fit to continue. 3) Mr Humphreys proposed that on Monday he would give to the Claimant a list of his remaining questions, which the Claimant could keep on the witness table when answering these questions. If the Claimant considers that this adjustment would assist him with giving his evidence, he must write to the Respondent and the Tribunal as soon as possible to confirm that, so that Mr. Humphreys could prepare the list in advance. 4) The Claimant's second witness, Mr. Garelick, must be available from 10am until 4:30pm on Monday, 28 July 2025 to give his evidence. It is not anticipated that MR Garelick's evidence will take more than 1-2 hours to hear. If the claimant decides not to call Mr. Garelick to give his evidence, he must write to the Tribunal and the respondent as soon as possible to confirm that. 5) At the hearing, Mr. Turner (who the Claimant has appointed as his representative for the purposes of the case management discussion today) said that the Claimant was considering whether he wished to continue with his claim. If the Claimant decides to withdraw his claim, he must write to the Tribunal and the respondent before 9am on Monday, 28 July 2025, to confirm that. 6) The Claimant is reminded that until he is released by the Tribunal as a witness, he remains under oath and must not discuss any evidence with anyone. This, however, should not stop the Claimant from discussing with his wife or his other support other matters related to these proceedings, provided such discussions do not involve any discussion about his or any of the evidence before the Tribunal.”[173]On 25 July 2025, C sent a lengthy email with attachments, including a confirmation for a video appointment with Dr Wise, on Monday, 28 July at 11:30am and an auto-acknowledgement from his GP practice, which C said was the acknowledgment of his request for a Fit Note. C said that he was not withdrawing his claims. C did not ask for the hearing to be postponed. Day 19 – Monday, 28/07/25[174]C did not attend the hearing. The C’s second witness, Mr Garelick was in attendance. The clerk tried to contact C. C said that the Tribunal should read his email and that he had an appointment with his psychiatrist and put the phone down. The clerk called C again. The clerk said that the Tribunal had not received any further emails from C, following his email on 25 July. The clerk asked C if he had sent a communication, applying to postpone the hearing. C said that he had not, because he had made an emergency appointment with the psychiatrist.[175]At 11:16am, the Tribunal wrote to the claimant: “[…] 4) The clerk contacted the claimant on the phone to find out the reason for the claimant's nonattendance and whether the claimant had made an application to postpone the hearing. The claimant said that he was not attending the hearing, because of his emergency appointment with the psychiatrist at 11:30am. He said that he had not submitted an application to postpone the hearing for that reason. 5) There is no application from the claimant to postpone the hearing. Accordingly, the hearing will start at 11:20am. If the claimant does not attend, the hearing will proceed in his absence. The claimant may attend by video. The joining instructions are attached. 6) The claimant's attention is drawn to Rule 47 of the Employment Tribunal Procedure Rules 2024.” Case Number 2210418/2023 & 2215062/2023 40[176]The hearing started at 11:25am. C did not join the hearing. No one appeared on C’s behalf. Upon hearing from Rs’ counsel, the Tribunal issued the following orders: “1) The hearing is adjourned until 2pm on Monday, 28 July 2025. 2) The claimant or his representative must join the hearing at 2pm to confirm the claimant's position with respect to him continuing to give his evidence and calling Mr Garelick to give his evidence. 3) The claimant and/or his representative may join the hearing by video (CVP). […] Reasons: The hearing started at 11:25am, pursuant to the earlier directions by the Tribunal. The respondents attended the hearing. The claimant did not attend or was represented. The Tribunal converted the hearing to a case management hearing (in private) to discuss how to proceed. Mr Garelick was in attendance as the claimant's witness. Upon hearing from Mr Humphreys, on behalf of the respondents, and from Mr Garelick, concerning his availability, and considering the claimant's email of last Friday about his medical appointment at 11:30am, the Tribunal decided to adjourn the hearing until 2pm, by which time the claimant's medical appoint will have finished and the claimant would be able to tell the Tribunal his position about him continuing to give evidence and calling his second witness (Mr Garelick), who will be in attendance at 2pm.”[177]At 1.50pm C sent an email, asking for the hearing to be adjourned until 10am, on Tuesday, 29 July 2025. In that email C said: “This morning I have spoken with both my NHS GP (who telephoned me at 1058hrs) and Dr Jan Wise, treating Consultant Psychiatrist (via video consultation at 1130hrs). I am expecting to receive each of their respective expert medical opinions before the end of today - though clearly I have no control over the internal mechanisms of an NHS GP Practice or a Consultant Psychiatrist’s clinic. I do not yet, myself, know what their expert opinions are. Without those opinions I cannot make informed legal decisions. The Tribunal is respectfully referred to Teinaz v Wandsworth BC [2002] I.C.R. 1471 CA (attached). To that end, it would seem both sensible and proportionate to postpone until 10am tomorrow (29 July 2025), to be reviewed thereafter upon receipt of medical evidence. That is especially the Case where the medical issues may or may not be attributable to the Tribunal’s own failure to implement the reasonable adjustments ordered by Employment Judge Brown in CMO dated 17 March 2025, in accordance with the Equal Treatment Bench Book.”[178]In the same email C complained about the Tribunal asking C’s companion to touch him on his shoulder to attract C’s attention when he was typing his answers in the X-E Document. More on this in the Reasonable Adjustments section below.[179]The hearing resumed at 2.06pm. C did not attend and was not represented. The Tribunal converted the hearing to a private hearing for case management to discuss how to proceed. The Tribunal asked the observers and Mr Garelick to leave the room. Upon hearing from the Rs’ counsel, the Tribunal adjourned the hearing until 10am on Tuesday, 29 July 2025 and issued the following orders: “Upon considering the claimant's email of 28 July 2025 and Mr Humphreys' submissions in response, the Tribunal makes the following orders: 1) The claimant's application to adjourn the hearing until 10am on Tuesday, 29 July 2025 is granted. The application was not opposed by the respondents. Case Number 2210418/2023 & 2215062/2023 41 2) The hearing will resume at 10am on Tuesday, 29 July 2025, with the claimant concluding his evidence. 3) If the claimant considers that he will not be medically fit to give his evidence, starting at 10am on Tuesday, 29 July 2025, he must write to the Tribunal and the respondents by 9am on Tuesday, 29 July 2025, explaining why and providing the relevant medical evidence. The medical evidence must address the matters stated in paragraph 2 of the Tribunal's orders dated 24 July 2025. 4) At the same time, (i.e. by 9am on Tuesday, 29 July 2025) the claimant must confirm whether he will be calling his second witness (Mr Garelick) to give his evidence on Tuesday, 29 July 2025. 5) Finally, in his email of 25 July 2025, the claimant did not respond to paragraph 3 of the Tribunal's orders of 24 July with respect to Mr Humphreys' proposal to prepare a list of his remaining crossexamination questions. Mr Humphreys informed the Tribunal that as a result he had not prepared such a list. If the claimant will be giving his evidence, starting at 10am on Tuesday, 29 July 2025, and considers that such a list would assist him in giving his evidence, he must write to the respondents and the Tribunal as soon as possible to confirm that, so to give Mr Humphreys sufficient time to prepare the list.”[180]At 10pm, C sent a lengthy email, enclosing a Duplicate Fit Note, issued by Dr M Obiamiwe, signing C off as not fit for work until 24 August 2025 with the diagnosis of “ADHD” and “Psychiatric harm caused by failure to implement reasonable adjustments” 15 . In the same email C made various complaints, including about the hearing on 28 July being “ex parte”, as C was not in attendance. C said that his second witness, Mr Garelick, would not be able to attend the hearing on 29 July. With respect to his ability to continue with the hearing, C said: “6.4 Regarding medium term prognosis, I am awaiting Dr Wise's expert opinion following the emergency consultation on 28 July 2025. Regarding short-term prognosis, the 28 July 2025 GP Note establishes grounds for postponement until Monday 25 August 2025…” Day 20 – Tuesday, 29/07/25[181]C did not attend the hearing in person or via a representative. At 10:20am, the clerk tried to call C three times, the calls did not connect. At 10:45am, the clerk emailed C: “On your application the hearing was adjourned until 10am, today, 29 July 2025. You did not attend the hearing. The clerk tried to call your several times, but you phone was not connecting. Please confirm the reason for your non-attendance. The hearing will start at 11am. If you are not in attendance and not represented, the hearing will continue in your absence. You may join the hearing by video: […][182]C did not respond. 15 No further explanation was provided by the Doctor what the diagnosed “psychiatric harm” was, what “reasonable adjustments” should have been implemented, and on what basis she made her medical determination that the diagnosed psychiatric harm was “caused by failure to implement reasonable adjustments”. No explanation was provided why it was a duplicate and not the original Fit Note. Case Number 2210418/2023 & 2215062/2023 42[183]The hearing started at 11am. C did not attend and was not represented. The Tribunal decided to proceed with the hearing in public to discuss how to proceed. Rs accepted that C’s email of 28 July at 10am should be treated as an application to adjourn the hearing until 25 August 2025. R opposed the application. R proposed to adjourn the hearing until Monday, 4 August 2025 by which time Dr Wise’s opinion should be available.[184]The Tribunal announced its unanimous decision on the C’s second recusal application. The Tribunal refused the application for the reasons announced at the hearing orally. These reasons are reproduced in Appendix 2.7 – Written reasons for refusing C’s second recusal application. The hearing was then adjourned until 12.30pm.[185]At 11:25am C sent an email, containing a letter from Dr Wise, dated 28 July 2025. The letter explained that on 25 July C contacted Dr Wise for an emergency appointment, which was arranged at 11:30am on 28 July. Dr Wise said that C described to him “symptoms consistent with a dissociative episode as part of an Acute Stress Reaction/Adjustment Disorder whilst giving evidence”. The letter went on to describe what C had told Dr Wise during the consultation, concluding with the following statement “I have increasing concerns that increased anxiety levels are becoming pervasive and that a relapse is imminent”. Dr Wise also referred to his earlier letter of 16 July, which he said contained his “existing concerns as [C] returned to a trial”.[186]The letter did not address the specific questions, as directed by the Tribunal on 24 July and repeated on 28 July.[187]Rs made submissions on the Dr Wise’s letter. In short, Rs’ position was that the letter did not advance the matter any further as it had failed to answer the critical questions concerning C’s fitness to resume giving evidence and gave no prognosis. The hearing was adjourned until after lunch.[188]At 2:30pm the Tribunal announced its unanimous decision on the C’s application to adjourn the hearing until 25 August 2025. The application was refused. The Tribunal, however, adjourned the hearing until 10am on Thursday, 31 July 2025, and gave various case management orders, which together with the reasons for the refusal to adjourn the hearing until 25 August were sent to the parties on the same day at 5:36pm.[189]In particular, the Tribunal ordered: “[..] 2. The hearing is adjourned until 10am on Thursday, 31 July 2025, when it will resume with the Claimant concluding his evidence. It is anticipated that the Claimant's evidence (including any questions from the Tribunal and reexamination) will finish on that day by 1pm, the latest. 3. If the Claimant considers that for medical reasons, he will not be able to:a. resume giving his evidence at 10am on Thursday, 31 July 2025, and/orb. otherwise participate in the hearing, Case Number 2210418/2023 & 2215062/2023 43 he must send to the Tribunal and the respondent by 9am, on Thursday, 31 July 2025 the relevant medical evidence, which must deal with the questions set out in paragraph 2 of the Tribunal’s orders, dated 24 July 2025. 4. The Claimant must by 9am, on Thursday, 31 July 2025 confirm whether he calls his second witness, Mr. Garelick, to give his evidence to the Tribunal on Thursday, 31 July 2025. If so, whether Mr. Garelick will be attending in person or by video.”[190]On 30 July, Mr Garelick emailed the Tribunal, saying that he was not available to attend the hearing on 31 July, but would be available on 1 August. Mr Garelick did not copy C on his email. The email did not say whether C asked Mr Garelick to attend the hearing on 31 July or 1 August to give his evidence. Day 21 – Thursday, 31/07/25[191]C did not respond to the Tribunal’s orders of 29 July.[192]The hearing started at 10am. Rs attended the hearing. C did not attend and was not represented. The clerk tried to call C three times. The line was disconnected. At 11:45am the clerk tried to call C again. The line remained disconnected.[193]The Tribunal converted the hearing to a private hearing for case management. Upon hearing from Rs’ counsel, after an adjournment, at 11:46am the Tribunal announced its unanimous decision to adjourn the hearing until 10am on Monday, 4 August 2025. The Tribunal also made “an unless order” in the following terms: “[..] 2. Unless the Claimant:(i) resumes giving his evidence at 10am on Monday, 4 August 2025, or,(ii) if he considers that for medical reasons, he will not be able to resume giving his evidence at 10am on Monday, 4 August 2025, and/or otherwise participate in the hearing, sends to the Tribunal and the Respondents by 9am on Monday, 4 August 2025 the relevant medical evidence, which must deal with the questions set out in paragraph 2 of the Tribunal’s orders, dated 24 July 2025, the Claimant’s evidential case will be deemed concluded, and the hearing will proceed to the final submissions (in writing) stage. 3. If the Claimant wishes to call his second witness, Mr. Garelick, to give evidence to the Tribunal, the Claimant must confirm by 9am on Monday, 4 August 2025 that he calls Mr. Garelick to give his evidence, and Mr. Garelick must attend the Tribunal (either in person or by video) at 10am on Monday, 4 August 2025 to be ready to give his evidence. The Claimant must specifically confirm if Mr. Garelick will be giving his evidence by video and ask for the joining instructions to be sent to Mr. Garelick.”[194]These orders together with written reasons were sent to the parties at 2:02pm on the same day.[195]At 11:55pm, Mr Garelick emailed the Tribunal, complaining that he had not received any response to his earlier email, concerning attending the hearing on 1 August. He again did not copy C. Case Number 2210418/2023 & 2215062/2023 44[196]On Friday, 1st August, the Tribunal wrote to Mr Garelick (copying the parties) explaining that Mr Garelick was C’s witness and it was C’s decision whether to call Mr Garelick to give his evidence, and that despite the Tribunal’s orders for C to confirm that, so far, no response had been received from C. Mr Garelick responded a few minutes later, saying that he was communicating with C “separately”. Day 22 – Monday, 4/08/25[197]C did not respond to the Tribunal’s orders of 31 July. C did not attend the hearing and was not represented. Rs were in attendance. At 10am, the clerk tried to call C four times, after 3-5 rings the calls were disconnected without being answered.[198]Mr Garelick was in attendance. He explained that he was still not sure whether he needed to attend and came just in case. Mr Garelick confirmed that C did not ask him to attend the hearing. Rs said that they were not seeking a witness order against Mr Garelick. The Tribunal concluded that since C did not confirm that he was calling Mr Garelick as his witness and Rs were not asking the Tribunal to order Mr Garelick to give his evidence, the Tribunal would not hear from Mr Garelick, and his witness statement would not be considered as evidence before the Tribunal.[199]Pursuant to the terms of the “unless order” of 31 July, the Tribunal confirmed that the C’s evidential case was at an end, the hearing should proceed to the stage of final submissions (in writing). The relevant orders with written reasons were sent to the parties at 12:30pm on that day. Rs were ordered to send to C and the Tribunal the X-E Document, which they did later that day. Day 23 – Tuesday, 5/08/25[200]Rs sent their closing submissions, pursuant to the 4 August orders. C did not send his submissions. At 11:32am, the Tribunal wrote to C asking if he was intending on sending his closing submissions. The Tribunal ordered C to reply by 4pm. The order stated: “[…] On Monday, 4 August 2025, the Tribunal made various orders, including: "By 10am on Tuesday, 5 August 2025, the parties must send to each other and the Tribunal their written submissions. The Respondents must provide their representations on the Claimant’s outstanding applications of 20 July 2025 in their submissions." The Tribunal has received the Respondents' submissions, but not the Claimant's. The Tribunal has not received any communications from the Claimant. Before the Tribunal starts deliberations, it wishes to clarify whether the Claimant will be making any submissions for the Tribunal to consider. The Claimant, therefore, must write to the Tribunal and the Respondents by 4pm today, Tuesday 5 August 2025: Case Number 2210418/2023 & 2215062/2023 45(i) to confirm whether he will be making submissions;(ii) if so, whether he needs more time to send his submissions;(iii) if so, why and how much time he needs;(iv) if the claimant needs more time to make his submissions for medical reasons, the claimant must say so and send the relevant medical evidence, or state when such medical evidence will be available. The Claimant may, if he so wishes, appoint a trusted person (for example, Mr Turner, who represented him at the end of the hearing on 24 July) to act as his representative for communication with the Tribunal.”[201]C did not respond.[202]At 5:46pm, the Tribunal sent an order, extending time for C to reply until 10am on Wednesday, 6 August 2025. The order warned the claimant that failure to comply with the Order may lead to the Tribunal taking an action pursuant to Rule 6(2) of the Employment Tribunal Procedure Rules 2024.[203]Separately, the Tribunal sent to Rs clarification questions on their final submissions. Day 24 - Wednesday, 6/08/25[204]C did not respond to the Tribunal’s orders of 4 and 5 August. Day 25 – Thursday, 7/08/25[205]Rs sent their answers to the Tribunal’s clarification questions. Nothing was received from C.[206]On its own initiative, the Tribunal wrote to the parties as follows: “[..] Reference is made to the Tribunal's orders of 4 August, 5 August (sent at 11:32am) and 5 August (sent at 5:46pm), to which the Tribunal has not received any response from the Claimant. It is, of course, for the Claimant to decide whether or not he wishes to make any submissions, for the Tribunal to consider when making its decisions on the merits of his claim. Considering the Claimant's unexplained prolonged silence and his total lack of engagement with the Tribunal's correspondence since 30 July 2025, it appears to us that the Claimant does not wish to make any submissions. The Tribunal has now received the Respondents' reply to its clarification questions and is ready to start deliberations. The Tribunal expects the deliberations to take several days. The Tribunal will produce a written Judgment, which will be sent to the parties in due course. Meanwhile, if the Claimant decides to make written submissions, he may, within the next 7 days, make an application for late admission of his submissions. In any such application, he must explain why he did not make his submissions pursuant to the Tribunal's orders, and why, he says, it is in the interests of justice for his late submissions to be considered by the Tribunal. The Respondents will be given a reasonable opportunity to make representations on any such application.”[207]C did not respond.[208]On 14 August 2025, the Tribunal wrote to C, reminding him that the 7- day period stated in the 7 August letter was due to expire the following day. Case Number 2210418/2023 & 2215062/2023 46[209]C did not respond.[210]On 29 August 2025, the Tribunal wrote to the parties, referring to its previous correspondence to C of 4, 5, 7 and 14 August, which was left unanswered, and informing the parties that the Tribunal would deliberate and decide the claim, starting 2 September 2025. Meanwhile, the parties were ordered to provide dates to avoid for the purposes of listing a preliminary hearing in the C’s First Claim, pursuant to the EAT’s orders.[211]C did not respond16 .
Evidence
[212]The Tribunal heard from 17 witnesses for Rs: R2-R17 and Mr Luke Waite, R1’s Employee Relations Manager, who heard part of the C’s second grievance. The Tribunal heard from C. As noted above, C stopped giving his evidence on 24 July 2025.[213]The Tribunal was referred to various documents in the hearing bundle, initially containing 10,527 pages (1,058 documents). During the hearing, the bundle was updated to add documents generated during the hearing (the Tribunal orders and the parties’ applications) and different versions of the documents already in the bundle. The final version of the bundle had 12,366 pages (1,127 documents). The bundle contained a very large number of duplicate documents. Despite this extraordinary volume of documents, in evidence the witnesses and the Tribunal were taken only to no more than 200-250 pages of documents. Witnesses’ Credibility[214]We found all R’s witnesses credible and helpful.[215]It is true that some of the witness statements (R2, R5, R6, R7, R12, R14, R15 and Luke Waite’s) referred to EJ Brown’s comments at paragraphs 26 to 37 of her 19 March 2025 orders (see paragraph 62 above) to the effect that the witness was aware of these comments and had regard to them when searching for relevant documents. However, in cross-examination, some of those witnesses said that they had not seen the 19 March Orders document before. 16 We note from the EAT orders that C was able to engage in correspondence with the EAT, making an application on 21 August 2025 for expedition of the sift of his appeal against the Tribunal’s 13 June orders, and, on 30 August 2025, making an application for a review of the EAT’s decision of 27 August 2025 to stay his appeal. Therefore, we consider that it is very unlikely that C’s nonresponsiveness can be explained by any health-related impediments (his was signed off work until 24 August 2025 – see paragraph 180), or other circumstances beyond his control, which circumstances prevented him from responding to the Tribunal’s orders and communications. Case Number 2210418/2023 & 2215062/2023 47[216]At the first sight, such answers appear inconsistent with the statements in their witness statements. However, how and when EJ Brown’s comments at paragraphs 26 to 37 of her 19 March 2025 orders were conveyed to Rs’ witnesses by the Rs’ solicitors is not material (and most likely be privileged information in any case). Therefore, not seeing the 19 Orders as a document does not necessarily mean that the witness could not have been made aware of the comments at paragraphs 26 to 37 of that document.[217]Furthermore, Rs’ witnesses said that they were assisted by the Rs’ external solicitors in preparing their witness statements (which is not unusual and quite proper). Therefore, this apparent inconsistency between what they say in their witness statements about paying regard to EJ Brown’s comments and then, when taken in cross-examination to the Orders document itself, them saying that they had not seen that document, in our view, is the product of the Rs’ solicitors applying a set legal language across Rs’ witnesses’ statements, rather than allowing the witness to use his/her own language to express what he or she knew about EJ Brown’s comments.[218]More importantly, all Rs’ witnesses gave evidence about what steps they personally had taken to search for and disclose relevant documents. We are satisfied that these steps were reasonable and in accordance with the EJ Brown’s orders.[219]In any event, this apparent inconsistency in and of itself is not a strong enough reason to cast a long shadow of credibility across all the evidence they gave. On the substantive issues in the claim, all Rs’ witnesses gave in main clear and cogent evidence, which evidence was consistent with contemporaneous documentary evidence.[220]For completeness, since C raised that matter several times in his evidence, none of the Tribunal members saw Mr Vigder becoming emotional, wiping tears from his eyes, or otherwise displaying any emotional reaction when answering C’s question in cross-examination.[221]Returning to our assessment of the witnesses’ credibility, unfortunately, our assessment of the credibility and cogency of C’s evidence is very different. Firstly, his witness statement contained virtually no factual evidence relevant to the issues in the claim. Instead, it contained quotes from various EJ Brown’s orders, extracts from the EAT judgment and the Court of Appeal judgment in unrelated cases, a quote from a hearing by the Business and Trade Commons Select Committee, a screengrab from a seminar, at which Rs’ counsel gave a presentation, and numerous allegations of Rs’ failure to provide disclosure. It was only three pages long, but had numerous documents appended to it – from newspaper articles and the Ministry of Defence letter to C from July 2015 to various diagrams, heat maps, and C’s Case Number 2210418/2023 & 2215062/2023 48 prior applications to the Tribunal. In short, it did not deal with any relevant substantive issues in the claim.[222]The C’s second “narrative” statement, which C insisted was not his witness statement (see paragraph 149 above), despite being much longer, still had very little factual evidence on the relevant issues. The statement was largely quotations from various documents and arguments, concluding that “[C’s] dismissal represents an unprecedented ‘Iago-Jhuti’ scenario combining bad-faith instigation with pretence of decision-maker blindness”.[223]In cross-examination C gave equally unhelpful evidence. C was evasive in his answers. He did not answer the vast majority of the questions posed to him by Rs’ counsel. Instead, he was making lengthy arguments and submissions, often on different issues to the one being explored with him by Rs’ counsel. The Tribunal intervened several times to explain to the claimant that his role at that stage of the proceedings was one of a witness of fact, and that he just needed to answer the questions posed to him by Rs’ counsel to the best of his knowledge and belief, thus assisting the Tribunal in establishing all relevant facts in his claim. The Tribunal also explained to C that he would have the opportunity to put all his arguments when presenting his final submissions, but that would come later, after the Tribunal has heard his oral evidence. Unfortunately, C largely ignored the Tribunal’s directions and continued to make arguments and allegations instead of providing factual information.[224]Moreover, C tried to avoid giving any evidence on the facts, which were clearly within his knowledge and directly relevant to the key issues in the claim, notably, what he was doing on the days when, according to Rs, he was absent from work without authorisation, and for which unauthorised absence Rs said C was dismissed.[225]Rs’ case was that C was dismissed for unauthorised absence from work on those days, which C contested as not being the real reason for his dismissal. Yet, neither in his witness statement nor his “narrative statement” did C explain what he was doing on those days.[226]Equally, in cross-examination C did not give straight and clear answers about that. Even when it was put to him that on one of those days (31 January 2023) he was attending a hearing in the First-tier Tribunal (Social Entitlement Chamber) with respect to his benefit claim for Personal Independence Payment (as was evidence by that Tribunal’s judgment of that date) instead of being at work, C still would not accept that, instead trying to deflect the questions by talking about how many points the Tribunal had awarded him, the length of his benefits award, referring to his crossexamination of Luke Waite, complaining about being asked to pause, and so on. Case Number 2210418/2023 & 2215062/2023 49[227]The Tribunal intervened to explain that the issue of whether C was at work or not on those days was one of the key issues in the claim. The Tribunal would need to make a factual finding on this question, not least because C was pursuing a claim for wrongful dismissal. Since C’s did not deal with this question in his witness and narrative statements, it was his chance to give his direct evidence on this by answering Rs’ counsel’s questions, which questions were simple and straightforward and did not require a lengthy response. The Tribunal explained that C did not have to give a “yes or no” answer, and he, of course, may expand his answers, but he still needed to answer the question posed to him. The Tribunal asked C to stay focused on the question before him. A 10-minute break was called.[228]When the hearing resumed, Rs’ counsel posed the same question to C about what he was doing on 31 January 2023. Regrettably, as on many other occasions, C ignored the Tribunal’s directions. Instead of answering the question, he argued that Rs’ counsel was trying to score points against a disabled employee, that the benefit claim hearing was to determine Parliament support for disabled citizens, that the question was shameful and incredibly hypocritical, and so on.[229]Another striking example of C’s unhelpful, evasive and obfuscating evidence he gave in cross-examination was his repeated refusal to answer a simple and direct question from Rs’ counsel, when it was put to C that none of the many and lengthy documents he generated during the internal disciplinary and grievance proceedings (including his 22 March letter, his 3 May email, his 25 May letter) addressed the relevant disciplinary allegations against C (refusal to engage with his colleagues and customers on work related matters, not performing his work duties, unauthorised absence).[230]C repeatedly referred to his 22 March letter, saying that it was a comprehensive document containing over 10,000 words, but would not answer where in those 10,000 words one finds his answers to these specific allegations. When Rs’ counsel pressed C on that, every time C tried to divert the line of questioning by raising irrelevant matters, such as metadata, the EAT decision with respect to his First Claim, that his 22 March letter was a protected act, his cross-examination of Rs’ witnesses, asking the Tribunal to “draw severe adverse inference” from Rs’ counsel taking C to his 22 March letter because, C said, there were six copies of that document in the bundle. C tried every possible angle to avoid engaging on the question put to him.[231]When Rs’ counsel and the Tribunal asked him to pause because he was digressing from the subject and not answering the question, C complained about being interrupted. When the question was repeated and C was given another chance to answer it, he would still not answer the posed question but raise yet another irrelevant argument. Case Number 2210418/2023 & 2215062/2023 50[232]Another troubling feature of C’s evidence was his propensity to misquote, take out of context, or otherwise distort the clear meaning of what had been said or written. For example, in his “narrative statement” C said (at [101]) that there was a “.. pattern of [Rs] acknowledging yet denying my submissions continued throughout”. He raised that matter several times. In support of that he referred to the statement in Ms Vuillermoz’s Investigation Report of 1 March 2023 (see paragraphs 378 - 381 below) “Charlie did not provide written Representations”, which C said was contradictory with Ms Vuillermoz later in her report quoting from C’s email to her of 1 February 2023.[233]C, however, took this statement out of its proper context. The full paragraph reads [emphasis added]: “….There was a review of Charlie’s job description; a review of Charlie’s employment contract; a review of Amazon’s UK Disciplinary Policy; a review of documents provided by Charlie on 1 February 2023 and conducting interviews with Charlie's manager and skip level manager. I also invited Charlie to a disciplinary investigatory meeting on 2 February 2023 (Document (‘Doc.’) 1). Charlie did not attend and was therefore offered the opportunity to provide written representations by 1pm on 7 February 2023 (Doc. 2). Charlie did not provide written representations. I have taken account of all of this information in compiling my Investigation Report.”[234]Later in the report Ms Vuillermoz specifically acknowledges C’s email of 1 February 2023 as C’s evidence against allegation of repeated refusal to follow reasonable management instruction. There is no contradiction in Ms Vuillermoz’s report. There is no denying that C had made his submissions on 1 February. All it says is that C did not respond to Ms Vuillermoz’s invitation of 2 February to send further written representations by 7 February 2023.[235]Another example of that is C asserting in his “narrative statement” (at [180]) “…Joe Carroll’s (R3) witness statement at paragraph 9.2 states that on 22 May 2023 Stacey Kelly (R15) gave him the reason for my dismissal…”. Mr Carroll’s statement made for the Interim Relief hearing says nothing of the kind. What Mr Carroll actually says is: “9.2 On 22 May 2023, I spoke to Stacey briefly and she explained to me that that there were two other disciplinary issues that were bring (sic) dealt with separately to the allegation that I was being asked to form a view on and that Charlie bringing a claim against the Respondent. She told me that these were separate matters and should not play any part in what I was being asked to look at, that is whether Charlie had refused to work his agreed contractual hours on Monday 30 January 2023 to Thursday 2 February 2023, Monday 6 February 2023 to Thursday 9 February 2023, Monday 27 February 2023 and Tuesday 28 February 2023 because of unauthorised absence from work. I proceeded on this basis.”[236]There is nothing in that statement which says that Stacey Kelly gave Mr Carroll “the reason for [C’s] dismissal”. The statement does not mention Ms Kelly giving Mr Carroll any reason, nor is there any mention of dismissing C. Case Number 2210418/2023 & 2215062/2023 51[237]In short, we found C’s evidence unreliable and of little, if any, assistance to the Tribunal in finding the relevant facts. In saying that we remind ourselves of the directions given by EJ Brown (see paragraph 61), in particular that “the ET ought itself to be mindful of any disadvantage to the Claimant in its perception of his evidence having been given in this way - and that the Tribunal should take this into account when considering his evidence”. However, it is the content of the C’s evidence and not the form in which he gave it that draws us to this conclusion. Expert Evidence[238]There were two expert reports submitted in evidence, pursuant to EJ Brown’s orders of 24 September 2024: the handwriting expert report on the issue of authenticity of R3’s signature on his witness statement for the Interim Relief hearing on 23 July 2023, and the metadata expert report. Handwriting expert report[239]In giving leave to instruct a joint handwriting expert EJ Brown recorded17: “78. The Claimant sought expert evidence in respect of signature of Joe Carroll, the dismissing officer. He said that this would be critical because of the US date format used, which was highly unusual, given that Mr Carroll’s employment is based here. There would be no prejudice to the Respondents in obtaining expert evidence against massive prejudice to the Claimant on an important part of his case if Mr Carroll’s credibility regarding his decision making was not tested. […] 81. I did order an expert’s report to report on whether Joe Carroll was likely to have signed and dated his witness statement for the interim relief hearing. While the signature on Joe Carroll’s witness statement was not specifically mentioned in the list of issues, it is relevant to the Claimant’s contention that Joe Carroll was not the effective decision maker on his dismissal and, in fact, that persons in the US were. The witness statement was signed very close to the dismissal date (for an interim relief hearing) and the date appears to be in a US format. A Claimant is unlikely to have much evidence of a Jhuti situation, so that it is appropriate that any evidence of it is fairly examined. The Claimant also relied on the US date being evidence that Mr Carroll had not signed his witness, for his argument that the Respondents’ response should be struck out for unreasonable behaviour/fraud in the conduct of the proceedings. I had said, in my preliminary hearing judgment, that that matter could be addressed at the final hearing. That issue is therefore still to be determined at the Final Hearing, so evidence regarding the authenticity of the signature was relevant to the Final Hearing’s decision. I considered that it would be fair to both parties to order expert evidence. The matter should not simply be addressed in evidence by Joe Carroll. Mr Carroll had not specifically mentioned the signing of the date in his email, so there was some uncertainty about that, which needed to be addressed.” 17 C also sought an expert report on Luke Waite’s signature of his witness statement for the Interim Relief hearing, but EJ Brown refused that application. Case Number 2210418/2023 & 2215062/2023 52[240]The handwriting expert report was prepared by Ellen Radley BA, PgDip (Law), MAE, MCSFS, the principal Forensic Document Examiner at The Radley Forensic Document Laboratory Limited. The overall conclusion of the report was that in the expert’s opinion “the evidence has to be regarded as inconclusive as to whether Mr Carroll wrote the signature in his name on Q1, or whether this is a simulation of his general signature style by another individual” and that “the evidence has to be regarded as inconclusive as to whether Mr Carroll wrote the date on Q1, or whether this this was written by another individual”.[241]R3 gave evidence under oath and was cross-examined on his evidence by C. His evidence was that he had personally signed and dated his witness statement for the Interim Relief hearing. He also explained why he used the US style date format. The Tribunal accepts his evidence on this issue. Although nothing of substance for the purposes of this claim turns on this issue, because the matter had been hotly contested by C, and the Tribunal heard the relevant evidence on this issue, we make a factual finding that R3 did sign and date his witness statement for the Interim Relief hearing himself. Metadata expert report[242]The metadata expert reports (each party was given leave to appoint and instruct and expert) was ordered by EJ Brown to address the following questions:a. What metadata is, how it is created, updated and how changes can arise;b. How metadata it is extracted from a document, and whether it travels with a document to a new user;c. What the terms in the metadata mean; What do ‘created’, ‘modified’, ‘printed’ mean?d. How does an author’s name come to be recorded on metadata?e. In metadata ‘General Information’ – What does title mean? How is title created? How does it change? Is it deliberately created by the author of a document or by their computer system; how is it different to a file name?f. (particularly with regard to the Claimant’s document 22) How can a printed time or date in the metadata predate the document creation time and date? Can such a difference in printing and creation times and dates (for example printing appears to be one hour before creation, so as to be expressed in GMT rather BST), be explained by the use of a virtual machine? Are there also other explanations?[243]In making her orders EJ Brown recorded that C had identified “35 documents, from the Respondent’s disclosure, on which he wished the expert to answer specific questions”. EJ Brown specifically directed that certain matters should not be put to the expert:a. Inferences to be drawn from the metadata. That will be a matter for the Tribunal, not the expert; Case Number 2210418/2023 & 2215062/2023 53b. Whether Amazon has data centres in particular locations; whether data from Amazon’s Global HQ in Seatle is routed through the data centra in Boardman, Oregon. That is a matter of fact for the Tribunal, not expert evidence. The Claimant can write to Amazon, asking Amazon to confirm those alleged facts. If Amazon refuses to do so, or to provide an answer, the Claimant can ask the Tribunal to draw inferences;c. How the default language on an email might change. Such evidence would not be probative of any issue and is reasonably required to resolve the proceedings. The change in an email language from English to French was not relevant to the Claimant’s case.d. Whether changes in fonts and styles in a document (eg the Claimant’s document 25) could indicate that there have been different sources, or even authors, for the different parts of the document. That does not require expert evidence.e. Whether there have been changes to the ET3s (the Claimant’s documents 34) or who made the changes. The fact that there have been changes will be apparent from the face of the documents and does not require expert evidence. Who precisely made the changes is not relevant nor reasonably required to resolve the proceedings. The inference to be drawn from changes is a matter for the Tribunal.f. Whether a PBS video is available in the UK. The Claimant can adduce factual evidence of this himself.[244]The metadata expert report18 was prepared by Conor Gavin of FTI Consulting Management Solutions (Ireland) Limited, Senior Director specialising in Digital Forensics and eDiscovery, who holds a Masters Degree in Security and Forensic Computing from Dublin City University and is an Encase Certified Forensic Examiner. The report addressed all the questions, as directed by EJ Brown. In particular, in answering Question 4 “How does an author’s name come to be recorded on metadata?”, the expert said: [emphasis added]38. The value placed in the Author field will also vary depending on how the PDF was created. When a PDF is created from an Office document by saving it to PDF format then the Author value from the Office document is carried over to the PDF. Similarly utilising the “Print” option and selecting a “Print to PDF” printer in Outlook will typically save the username of the mailbox owner into the Author field. However, in contrast printing a webpage to PDF using Chrome or Firefox browser will leave the Author field blank. How the Author field is populated will be dependent on the specific workings of the application used to create the PDF and can vary significantly with no blanket rule or practice in place.39. It should also be noted that the use of templates can have a significant role in the population of the Author field. Where a document template is used, the Author field is typically set by the user who first authored the template. All subsequent documents created using that template will therefore show the Author as the template author and not the subsequent document author. This is commonly seen in many documents where the Author field may show someone who is entirely unconnected to the content present in the document after a template was used.[245]With respect to Question 6 (“Particularly with regard to the table below, which the Claimant has provided, how can a printed time or date in the metadata predate the document creation time and date? Can such a difference in printing and creation times and dates (for example printing appears to be one hour before creation, so as to be expressed in GMT rather BST), be explained by the use of a virtual machine? Are there also other explanations?”) the expert’s conclusion was: 18 The expert was appointed by Rs. C chose not to instruct his own metadata expert. Case Number 2210418/2023 & 2215062/2023 54 “62. Specifically with regard to Question 6, it was noted that the analysis performed did not identify any inconsistencies between the metadata on the PDF examined and the printed date on the footer of the PDF generated.”[246]As noted above (see paragraphs 115 and 118), C submitted additional questions to the expert, some of which were passed by Rs to the expert. The expert provided his answers on 4 July 2025. Although we heard no specific submissions from either side with respect to any matters arising from the expert’s answers to these additional questions, we find them consistent with his original conclusion in the report.[247]We accept the expert’s evidence on these issues. In particular that the “author” field in a template document may carry over the name of the person who had created a template, which was subsequently used by another person to draft the document in its final form. This is consistent with the evidence given by Rs’ witnesses (Ms Charman and Mr Waite) that it was the common practice within R1’s HR to draft letters based on various templates kept and shared within the HR function. There is nothing remarkable about that. We also accept the expert’s evidence that there is no inconsistency between the metadata in the PDF documents examined by him and the printed date on the footer of the PDF generated. Disclosure[248]C alleges that Rs have failed to disclose relevant documents, fabricated and tampered with the evidence. We reject these allegations for the following reasons.[249]C’s allegations appear to stem from the fact that most of the documents disclosed by Rs were the documents already in his possession. This, however, is not surprising. These were documents generated by the parties during the events leading up to C’s dismissal (grievance and disciplinary investigations, meeting notes, outcome letters, etc.) and shared with C at that time.[250]As those events unfolded Rs had been taking extensive legal advice (as they all said in their witness statement). Therefore, whilst we accept that there would have been other internal correspondence or drafts of outcome and other letters to C, it is not surprising that these have not been disclosed to C, as they would be covered by legal advice (and possibly litigation) privilege.[251]Whilst we pay due regard to the fact that at the 12th PH, EJ Brown said that she found limited disclosure of internal emails (not involving C) “unusual”, having considered the totality of evidence before us, we find that such limited disclosure does not evince that Rs have failed to disclose relevant and disclosable documents, but that in dealing with the relevant matters Rs took Case Number 2210418/2023 & 2215062/2023 55 extensive legal advice, were assisted by their lawyers in drafting, and were careful not to generate “open” correspondence and documents. This is not unusual, especially considering that at that time C had already issued his First Claim and was making further and serious allegations against Rs, and himself constantly bringing up his First Claim in his discussions with R13 (see under C’s return to work below)[252]C criticised Rs for failure to disclose such documents as Outlook calendar meeting invitations, Chime and Slack19 messages setting up meetings/conversations. However, in the main the fact of such meetings/conversations taking place was not disputed by C in his claim form or in his witness statement. Therefore, such documents (even if they existed) are not relevant to the issues in the claim. Furthermore, in relation to the key meetings/conversations, C was specifically invited to those by letters of invitations. All such invite letters have been disclosed by Rs. With respect to the meetings/conversations, which C was not a party to, the relevant witnesses gave their evidence about those, which C was able to challenge in cross-examination. Notes of those meetings have been disclosed.[253]The issue of disclosure had been specifically dealt with by EJ Brown at the 10th PH on 2 December 2024 (see paragraph 50 above). In response to EJ Brown’s orders, on 9 December 2024, Rs’ solicitors wrote to the Tribunal giving a comprehensive description of the conducted disclosure exercise and enquiries made of the Rs. Two further documents had been identified as disclosable and disclosed to C. They had been discovered as a result of further searches, following EJ Brown’s orders. The disclosure exercise, as described in the Rs’ solicitors’ letter, is consistent with the evidence given by Rs’ witnesses with respect to steps they had taken to locate and disclose relevant documents.[254]At the 12th PH on 25 March 2025, the issue of alleged inadequate disclosure was considered again (see paragraph 62 above). EJ Brown, having considered the matter as it stood then, determined that she was “[un]able to find that the Respondents have failed to comply with the order for discourse of relevant documents”. The Judge also recorded that “[t]he Claimant has not explained to me what specific documents, or classes of document, are missing”. The matter was left for this Tribunal to consider at the final
hearing.
[255]In cross-examination, C took each of Rs’ witnesses through a set of questions about whether in searching for relevant documents they had spoken to other Rs and witnesses to ascertain whether those people might have relevant documents in their possession. Most of the witnesses said that they had not done that. This, however, does not mean that they had not disclosed relevant documents within their possession and control. 19 R1’s internal instant messaging systems Case Number 2210418/2023 & 2215062/2023 56[256]Whilst it is accepted that for the purposes of the standard disclosure a document is considered to be within a person’s possession if it could reasonably be expected that the person could obtain that document by asking somebody else for it, it does not follow that each of the individual Rs should have specifically asked every other individual R about what relevant documents they had in their possession. All Rs were represented by the same firm of solicitors who were coordinating and conducting the disclosure exercise for all Rs, including by asking for relevant documents from each of the Rs and other people involved in the relevant events. In those circumstances, it was unnecessary for each of Rs to make separate and independent enquires about what relevant documents other Rs and other individuals might have. That would have just duplicated the efforts (generating at least 120 separate enquires by each of the 16 individual Rs asking every other individual R) and would have made the disclosure exercise far less efficient.[257]For the same reasons we find nothing untoward or unusual in individual Rs not being aware of the disclosure deadlines in the Tribunal’s orders (the point C persistently put to Rs in cross-examination). These were the matters, to which their legal representatives attended to. The question is not whether an individual R was aware by when he or she had to disclose relevant documents, but whether the relevant documents have been disclosed by that date.[258]Furthermore, before asking another person for a disclosable document, the disclosing party would need to know that(a) such document exists,(b) it is relevant to the issues in the claim and disclosable, and(c) it can be obtained by asking that other person to provide it. C did not specify what disclosable documents relevant to the issues in the claim could have been obtained by one of Rs asking other Rs to provide a copy of that document.[259]In cross-examination C also put to the individual Rs that the Rs solicitors’ letter of 9 December says: “The disclosure provided in respect of the Second to Seventeenth Respondents inclusive (for whom the First Respondent is responsible) is relied on by the First Respondent, in addition to the further enquiries identified at paragraph 1.3 above”. Most of Rs’ witnesses said that they had not seen that letter before. As C did not present his final submissions, it is not clear what he says this shows. In any event, we see nothing unusual in a corporate respondent relying on disclosures provided by individual respondents, because the same issues arise with respect to R1’s liabilities to C as with respect to the individual Rs’ liabilities. Furthermore, R1, being a corporate entity, by its very nature relies on its staff to act on its behalf in meeting its legal obligations. R1, however, went further and, as explained at paragraph 1.3 of the Rs’ solicitors’ letter, had identified Case Number 2210418/2023 & 2215062/2023 57 some other individuals, who were not named respondents, and was making additional enquiries of them.[260]With respect to the evidence by R13 that he had been told by HR not to use C’s name in internal communications, and R12’s evidence that she and her HR colleagues operated a practice of advising managers when dealing with an HR case concerning an employee to avoid using the employee’s real name in internal communications “to protect confidentiality and to avoid DSAR disclosure of certain topics” 20 . Whilst the legal effectiveness of this practice for the stated purposes appears to us rather dubious; as far as the GDPR/DSAR is concerned, this matter lies outside the jurisdiction of this Tribunal. However, in so far as the Rs’ disclosure obligations in these proceedings are concerned, the very fact that the emails written by R13, with him following the HR guidance and referring to C as “the employee”, have been disclosed to C, goes to show that the relevant documents (whether anonymised or not) have been disclosed in these proceedings.[261]It is also notable that despite maintaining that Rs have failed to disclose relevant documents from the start, it was only on 20 July 2025, in the middle of the final hearing, when C has finally made an application for specific disclosure. As was recorded by EJ Brown at the 12th PH (see paragraph 62 above), despite that hearing being convened to determine C’s specific order application C did not pursue any such application, instead arguing that Rs responses should be struck out for failure to disclose relevant documents, but without saying what those relevant documents were. As EJ Brown observed: “I did not consider that it was possible, or appropriate, for me, in this hearing, to examine the disclosure documents on the Claimant’s behalf, and imagine what other documents might exist, and order disclosure of them”.[262]In short, C’s position appears to be that he does not know what relevant and disclosable documents Rs have, but he maintains that Rs do have such unknown to C documents and have failed to disclose them. This is pure speculation, not supported by any cogent evidence. There are no obvious gaps in the documents in the bundle. All documents one would normally expect to see by reason of various internal processes involving C (meeting invites, meeting notes, outcome letters, etc) are in the bundle.[263]In his 20 July application21 C maintained the same stance. He says that it is mathematically impossible for him to identify documents for specific disclosure. He calls it is a mathematical fact, applying Shannon’s information theory. C says he “cannot describe documents he has never seen, particularly when Respondents have systematically anonymised communications to 'avoid disclosure'”. C, however, then goes on to make (in the alternative to his strike out application) an application for specific 20 For that purpose, R13 referred to C in his emails to HR as “the employee”. 21 The Tribunal’s decision on the C’s 20 July application is dealt with later in the Judgment. Case Number 2210418/2023 & 2215062/2023 58 disclosure, listing around 140 classes of documents he says Rs should be ordered to disclose, however, without explaining on what basis he says these documents exist, why, he says, they are relevant to the issues in the claim, why, he says, they are disclosable, and necessary for the Tribunal to consider for the fair determination of his claim. In short, the C’s specific disclosure application is no more than a fishing expedition. He is looking for a “smoking gun”, however, without having any real evidential basis that shows that such “smoking gun” does exist.[264]To conclude, we are satisfied that Rs have complied with their disclosure obligations, and all relevant and disclosable documents have been disclosed by them to C and included in the hearing bundle. “Fabricated/Tampered” Evidence[265]We equally reject C’s allegations that Rs and their legal advisers fabricated or tampered with the evidence. We reject C’s allegation (he raised several times during the final hearing and included in his 20 July application) that the metadata expert’s report confirmed that the document at page 3889 of the bundle (BeXT Guidelines – Missing Employee Welfare Check) was fabricated or tampered with. The expert report makes no such conclusion. The difference between that document (at p.3889 in the bundle) and the version that was disclosed to C by Rs was that the disclosed version had a footer, recording when the document was created, updated, by whom, etc (see paragraphs 120 - 122 above). Furthermore, R15 gave evidence about how that document came into existence. We accept her evidence. There is nothing unusual or suspicious for a draft document to have a footer with information about when and by whom the draft has been created and approved, which footer is then removed when the document is finalised and published. Despite making these very serious allegations of forgery, C chose not to cross-examine R15 on her evidence about the creation of that document.[266]We also reject C’s allegations that various meeting notes, emails, and Ms Vuillermoz’s Investigation report were fabricated or tampered with. We find these allegations baseless and not supported by any cogent evidence.[267]C also alleges that Rs falsified and tampered with Rs’ ET3s included in the bundle of documents for the 2 nd PH on 11-13 December 2023. C appears to rely on the statement in the EJ Brown’s judgment of 16 June 2024: “[73.a.] The names and addresses on some formal parts of the ET3 documents were changed by the Respondents before being included in documents for a preliminary hearing.” In his 20 July application (at paragraph 99) C characterised that passage as Rs being “found to have tampered with documents”. It is wrong and misleading. What C omits to say is EJ Brown’s Case Number 2210418/2023 & 2215062/2023 59 conclusion on his submission on this issue. The relevant passage reads in full as follows: [emphasis added]: “73. ET3s Changeda. The names and addresses on some formal parts of the ET3 documents were changed by the Respondents before being included in documents for a preliminary hearing. The materiality of the changes is something which can only be fairly decided having heard the Respondents’ (or their solicitors’) explanations for the changes. These changes to the formal documents may, or may not, have any bearing on the case, in that they may not have been misleading in relation to any issue to be determined in the proceedings.b. I do not accept that, at this stage, it is possible to say that there has been even any likelihood of fraudulent conduct on the part of the Respondents, or their solicitors, in this regard.”[268]It is clear that some of the ET3s included in the bundle for the 2 nd PH had wrong names and addresses. For example, instead of R11’s name the R1’s name was in box 2.2, the address in box 2.6 was different to the address given in the R11’s ET3 submitted in response to the claim. In short, some of the ET3s in the bundle were not copies of the ET3s that had been presented by Rs in responding to the C’s Second Claim. Clearly, something had gone wrong there, and whoever was responsible for preparing the hearing bundle for the 2nd PH somehow included wrong versions of some of the Rs’ ET3s.[269]However, C’s allegation that it was done deliberately and dishonestly to mislead the Tribunal, or, as C put in his 24 January 2025 4 th SO Application, in “an attempt by “Taylor Wessing LLP” to conceal their previous ‘unforced error’ made when filing the ‘original’ ET3’s on behalf of their Clients” is fanciful and baseless.[270]Firstly, we cannot see any possible advantage (and C did not articulate any) for Rs to include incorrect versions of the ET3’s in the hearing bundle. Secondly, we cannot see how it could sensibly be said that EJ Nicolle was somehow misled by the inclusion of the incorrect ET3’s in the hearing bundle. There is nothing in his record of that hearing to suggest that he was so misled, or indeed that the issue of incorrect ET3s had even been raised at the hearing.[271]We also reject C’s allegation that in updating the hearing bundle Rs’ solicitors applied “scrambling techniques”, thus tampering with the evidence (see paragraph 142 above). Other than suggesting that there was a difference in Mb size between the bundles (see paragraph 142) C presented no cogent evidence to substantiate this allegation.[272]In short, we reject all C’s allegations of forgery, fabrication, falsification or tampering with the evidence by Rs or their legal advisers. All these allegations are as serious as they are baseless. We are satisfied that the evidence presented to this Tribunal by Rs were genuine. They were not forged, fabricated, falsified or tampered with. Case Number 2210418/2023 & 2215062/2023 60 Allegations of dishonesty and impropriety against Rs and their legal advisers[273]C made numerous allegations of dishonesty and other impropriety against Rs and their legal advisers. All these allegations were based on C contending that Rs lawyers acted behind the scenes as “invisible hand” orchestrating C’s dismissal, withheld disclosure of relevant documents, forged, fabricated, falsified and tampered with the evidence. For the reasons set out in section Metadata expert report, Disclosure, “Fabricated/Tampered” Evidence, paragraphs 608-611 and Appendix 2.3 – Written Reasons for the decision not to strike out C’s claims against R11 and R16, we find all these allegations baseless. We reject them.[274]We are conscious that C has made numerous and very serious allegations of impropriety against R8, R9, R10, R11, R12, R13, Rs’ external solicitors (Taylor Wessing), R1’s in-house lawyers and two of Rs’ counsel, all by reference to their professional standing (see paragraphs 32-34 above). These allegations were made to their regulatory bodies. C went as far as lodging a report of criminal activity with the Metropolitan Police. Whilst it is for the relevant body to deal with these matters in a way it considers appropriate, we wish to put on record that this Tribunal found no evidence whatsoever of any dishonest or otherwise improper conduct by any of these individuals. Reasonable Adjustments[275]EJ Brown ordered several reasonable adjustments for the final hearing (see paragraph 61 above). We specifically paid attention to her directions that we ought to be mindful of any disadvantage to C in our perception of his evidence having been given in writing. Technical arrangements to implement the ordered adjustments for C’s cross-examination were put in place (see paragraphs 128, 130, 131, 137, 138 and 139 above). When C was crossexamining Rs’ witnesses to assist him to stay within the 30-min time limit (see paragraph 18 of the EJ Brown’s reasonable adjustments order) a clock was placed in front of him, and the Tribunal signalled to C that he was approaching the 30-minute mark.[276]The technical set up worked reasonably well. When C cooperated with the process the hearing progressed relatively smoothly. However, unfortunately, on many occasions C used the adjustments to hinder the orderly progression of the hearing. Details of that are in Appendix 2.7 – Written reasons for refusing C’s second recusal application. There is no need to repeat them here. However, one further matter needs to be addressed here. It was raised by C after the Tribunal’s decision on his second recusal application and therefore was not addressed in that decision.[277]In his email of 28 July 2025 C complained that EJ Klimov and the Tribunal Member Benson instructed C’s companion to touch him on his shoulder without his consent. C said that he thought that his companions Case Number 2210418/2023 & 2215062/2023 61 were touching him on their own volition but, having learned that they were so instructed by the Tribunal, left him “feeling degraded and de-humanised”. He went on to ask [emphasis in the original]: “I have not been able to find any statutory power conferred by the Employment Tribunals Act 1996 (nor any subsequently laid instrument) by which an Employment Tribunal can direct non-consensual physical contact. I kindly request that each of Mr Benson and EJ Klimov set out the legal basis for their action.”[278]He repeated that complaint in his next email of 28 July, where he said [emphasis in the original]: “[..] So as to ensure that the Tribunal is able to consider the information available to it; it is important for me to state that I have been informed, subsequent to 24 July 2025, that each of Mr Benson and EJ Klimov each instructed my companion to touch me without my consent. I understand that one companion was even told to sit next to me so as to enable this. During the Hearing I had understood that my companions were touching me of their own volition. I uncovered the truth after public observers contacted me to raise extremely serious concerns with what they had witnessed. Learning the truth has left me feeling degraded and de-humanised - as if EJ Klimov considered me an object to be managed not a disabled litigant who had been granted reasonable adjustments. If I had been deaf, would Mr Benson and EJ Klimov have ordered members of the public to touch me without my consent until I was able to hear? I would not have subjected a dog to that treatment. I have not been able to find any statutory power conferred by the Employment Tribunals Act 1996 (nor any subsequently laid instrument) by which an Employment Tribunal can direct non-consensual physical contact. I kindly again request that each of Mr Benson and EJ Klimov set out the legal basis for their action.”[279]The truth of the matter is as follows. During his cross-examination C was wearing his noise-cancelling headphones. It was not clear to what extent C was unable to hear what was being said by the Tribunal and Rs’ counsel because of the headphones. The Tribunal observed that on some occasions it appeared that C was able to hear the Tribunal’s instructions, despite wearing the headphones. For example, when the Tribunal was announcing a break in the hearing, C often was reacting very quickly by taking his headphones off and getting up to leave the hearing room, even though at the time he was wearing the headphones and the Tribunal’s oral announcement of the break was not appearing in writing in the X-E Document before C.[280]However, on many occasions C was not reacting to the Tribunal or Rs’ counsel asking him to pause his answer, even when those appeared on the screen before him. As was agreed at the start of C’s cross-examination, the Tribunal’s instructions were repeated by Rs’ counsel (by dictating them into the X-E Document), so that they then appeared in writing in the X-E Document, thus being visible to C.[281]However, because of a short delay between the Tribunal asking C to pause and that instruction appearing in writing in the X-E Document, and perhaps because C would often be too involved in writing his response to immediately notice the request to pause appearing on the screen or wanting to complete his response despite being repeatedly asked to pause, on many occasions C continued to type his answer, despite the Tribunal and Rs’ counsel asking him several times to pause. Case Number 2210418/2023 & 2215062/2023 62[282]On one such occasion, on day 2 of C’s evidence, C was asked to pause several times and failed to react. He then finally noticed the request to pause appearing on his screen (in the X-E Document) and stopped writing. C then turned to his companion and said to him: “I'm sorry please if you see that just” (as recorded in the X-E Document) and indicated that the companion should tap him on his shoulder to draw his attention. After that, C’s companion did that several times unprompted and without C raising any objections.[283]On Day 3 of C’s evidence, C’s companion sat farther away from C and could not easily reach C to touch his shoulder. When the problem of C continuing to type his answer despite being asked several times by Rs’ counsel to pause happened again, the Tribunal asked the companion to move closer to C, so that he could draw to C’s attention that he was being asked to pause his answer, by using the same method as C himself had asked his companion to apply the day before. The companion moved to sit closer to C. This method of drawing C’s attention was used by his companion, when it was necessary, without C or the companion raising any objections at that time. C’s 20 July Application[284]As mentioned above (see paragraphs 134, 136, 160 and 200 above) the remainder of the C’s 20 July Application came to be decided as part of this Judgment. The 2nd recusal application, which formed part of the 20 July application, was decided on 29 July 2025 (see paragraph 184 above). The remainder of the C’s 20 July Application is unanimously refused for the reasons given in Appendix 2.8 – Decision and Reasons for refusing the remainder of the C’s 20th July application. The Facts 22 The Parties
The Facts
[285]R1 (also referred to as “Amazon” or “AWS”) is a UK subsidiary of a global online commerce business that sells a range of goods and services to consumers, enterprise and content creators.[286]R2, Ms Barry, has the role of HR Manager PXT. She investigated C's ethics line complaint dated 5 January 2023 and C’s grievance dated 19 January 2023. 22 The relevant time period in this claim is between 1 November 2022 (C’s return to work) and 16 January 2024 (R17’s response to C’s grievance appeal). However, because during that period there were several processes and series of events involving C running in parallel, for ease of understanding, we have grouped our factual findings by reference to those processes and series of events, as opposed to setting everything in strictly chronologically. Case Number 2210418/2023 & 2215062/2023 63[287]R3, Mr Carroll, has the role of Segment Leader, Digital Native. He chaired the disciplinary hearing in which C was summarily dismissed.[288]R4, Ms Charman, is a former employee of R1. She was Principal HR Business Partner. Ms Charman was the Human Resources support to Mr Fitzpatrick (R7) during the disciplinary process culminating in Mr Fitzpatrick's decision to issue C with a final written warning.[289]R5, Ms Demiral, has the role of HR Director, Amazon Web Services EMEA. She was involved in investigating some of C’s grievances.[290]R6, Mr Driskell, has the role of Director, EMEA – Public Sector/Solutions Architecture. He chaired the appeal of the disciplinary outcome issued to C by Mr Fitzpatrick.[291]R7, Mr Fitzpatrick, a former employee of R1, in the role of ISV Customer Segment Lead. Mr Fitzpatrick issued C with a final written warning in the First disciplinary process.[292]R8, Ms Garcia-Deleito, is not an employee of R1 and she never has been. She is Head of Employment at Stevens Bolton LLP. She has had no involvement with C or his employment and its termination.[293]R9, Mr Hammerton, is not an employee of R1. He is a partner at Eversheds Sutherland LLP. He has had no involvement with C or his employment and its termination.[294]R10, Ms Kenyon, is Senior Corporate Counsel, Business Conduct & Ethics team. She investigated allegations that C breached contractual duties of confidentiality and whistleblowing complaints raised by C.[295]R11, Ms Rosen, is not an employee of R1. She is an employment lawyer at Eversheds Sutherland LLP. She has had no involvement with C or his employment and its termination.[296]R12, Ms Russell, is HR Manager, BeXT Sales and Marketing. She supported Mr Vigder (R13) in trying to make contact with C when he was absent without authorised leave.[297]R13, Mr Vigder, is a Senior Sales Manager - Startups. He was C's line manager.[298]R14, Ms Collidge, is HR Lead, UK/EMEA PS. She investigated one of C's grievances. Case Number 2210418/2023 & 2215062/2023 64[299]R15, Ms Kelly, is an HR Lead. She coordinated various processes involving C.[300]R16, Mr Walters, is a senior employment lawyer based at Amazon's headquarters in Seattle. His role is AGC, Labor and Employment. He has had no involvement with C or his employment and its termination.[301]R17, Isak Vigil, is employed in the HR team of R1. He investigated C's grievance appeal. C’s contract of employment[302]C commenced his employment with R1 on 11 March 2019. His employment was regulated by a contract of employment signed by C on 14 March 2018 (the "Employment Contract"). His role was Senior Account Manager in the R1's Start-ups business. C was employed to work "40 hours per week plus such other reasonable hours as are necessary to fulfil [his] duties to the Company's satisfaction."[303]In his role C was responsible for supporting R1's priority customer accounts of a value of approximately $13M by, for example, carrying out and managing enablement workshops, service demonstrations and technical deep dives for the R1's customers.[304]C’s Employment Contract provided that he must “comply with the Company's rules, regulations and policies from time to time in force, including, without limitation, those policies set out in the Company's Policies and Procedures and in the Code of Conduct" (clause 2.4).[305]C’s Employment Contract gave R1 the right to terminate C’s employment without notice or payment in lieu of notice if: “it has reasonable grounds to believe you are guilty of gross misconduct, gross negligence or if there are other grounds justifying summary dismissal. A non-exhaustive list of examples of gross misconduct is laid out in the Disciplinary policy". (Clause 20.4).[306]R1’s Disciplinary Policy gives examples of gross misconduct for which employees may be dismissed summarily, including: "Refusal to work agreed contractual hours (including bank holidays), persistent absenteeism over 7 days (No Call No Show or Absent Without Authorised Leave) AWAL....Serious insubordination. A serious or material breach of Amazon's policies". C’s disability[307]C has severe “hyperkinetic Disorder – ADHD” (diagnosed in June 2019). Rs accept that at the material time C was a Disabled Person within the Case Number 2210418/2023 & 2215062/2023 65 meaning of the Equality Act 2010. The knowledge of C’s disability at the material time is accepted by Rs too. C’s return to work[308]C returned to work on 1 November 2022 from an extended period of sickness leave23 . Upon his return he met with R13 to discuss return to work. At that meeting, C told R13 that he had reservations about returning, that customers might be disappointed with him, that he felt he would need to reearn their trust, and that he was not sure what to tell the customers. R13 reassured C that these issues were solvable. R13 scheduled further 1:1 weekly meetings with C.[309]On 2 November 2022, R13 emailed C about what was discussed at the meeting. In that email R13 mentioned that C had told him that he had: “some mixed emotions about returning, and that [C is] continuing to pursue legal case against Amazon”. R13 went on to say: “The latter is not something I can comment on, and want to assure you that my focus is on supporting you in your return to work”.[310]The next 1:1 meeting took place on 8 November 2022. At that meeting C told R13 that he needed advice on what he should tell customers and internal teams once he had completed the tasks that would get him back up to speed and operational again. C told R13, for as long as his legal case against R1 was active, he considered it might hurt him mentally not to share with team members and customers his current position. He explained to R13 that he did not feel comfortable to go and represent R1 while he had a legal case against it.[311]R13 told C that while he (R13) appreciated C’s position, any legal case C had against the business was an external matter and to be dealt with through the appropriate external channels. R13 told C that it was not appropriate for colleagues or customers to be drawn into C’s legal case. R13 encouraged C to refrain from doing so. R13 told C that his focus would remain on supporting C with ramping up work activities and then on achieving C’s objectives for the remainder of the year. In terms of messaging to his colleagues, R13 suggested that they should tell the colleagues that C was returning from a period of sickness absence, was completing his ramping up work activities and would be ready to get back to working on his accounts.[312]C asked R13 if he could move to another team as long as his legal case was active because the people involved in his legal case were still part of his current role. R13 told C that his legal case was a separate external 23 There were various events before November 2022, which ultimately led to C issuing his First Claim. However, because the First Claim is yet to be heard by an employment tribunal, we make no findings with respect to those events. Case Number 2210418/2023 & 2215062/2023 66 matter, and that the business was not prepared to move him to another team or role just because C was running a claim against R1. However, as with any colleague who wanted to explore opportunities across the business, the business would be supportive of any such request and follow the appropriate internal processes for job moves, if that was something C wanted to consider.[313]On 10 November 2022, R13 sent to C an email, setting out R13’s performance expectations for C from 21 November 2022 (the point at which C would complete his ramping up activities) until the end of 2022. R13 asked C for any comments.[314]In that email R13 recorded C’s comments at the 8 November meeting that C thought that “HR [was] not doing their best for your interest and you feel that you are just a liability for the organization.” R13 went to reassure C: “You are not a liability for the organization. I am looking forward to you working through your ramp up activities and to getting you back in front of customers and delivering success on your accounts. As I have explained, I am here to support you through this process”.[315]The next 1:1 meeting between C and R13 was on 15 November 2022. Various points concerning C’s ramping-up of work activities were discussed. C again raised issues concerning his dealing with HR, complaining that he hit a brick wall with answers he had received from HR and asking R13 to escalate the matter. R13 said that he was unable to become involved with HR-related matters but would support C by escalating the concerns C had raised with R13. However, the substance of the C’s concerns would need to be dealt with by HR.[316]C told R13 that once his ramping up of work activities ended on 21 November 2022, he would find it difficult to go and sell AWS' products and services without telling both customers and internal teams what was going on with him and AWS and that it impacted him mentally. C asked R13 to escalate this. R13 told C that he respected that C had ongoing personal matters with AWS, but these were external matters which were separate to his day-to-day role and focus. R13 explained to C that the business expected C, as it did his colleagues, to always act in a professional capacity, to be an ambassador for the business and to focus on professional topics and customer needs which are directly relevant to the business he was doing. R13 further explained that it was not appropriate for C, and for any colleagues, to speak with customers about personal or professional concerns. R13 emphasised that C's focus needed to be on customers, their needs and what he could do to support them. R13 said that raising personal concerns with customers would potentially be a disciplinary issue. R13 expressed his hope that C’s focus would not be taken away from his customers' needs. Case Number 2210418/2023 & 2215062/2023 67[317]C again asked to be moved to another role, to which R13 responded that he had already covered that issue in the previous meeting and the followup email.[318]C told R13 that he did not want to threaten the relationship they had, but that the business might leave R13 on his own in any litigation and state that R13 gave answers on behalf of the business without their approval. R13 told C that any litigation was an external matter, and it was not for R13 to discuss it with C.[319]R13 sent an email to C on 21 November 2022, with a record of what had been discussed at the 15 November meeting.[320]On 22 November 2022, C sent to R1’s internal legal team and external advisers a copy of his First Claim documents. He copied R13.[321]At the next 1:1 meeting on 22 November 2022, C told R13 that he was happy with the points covered in the R13’s email of 21 November. It was agreed that C would start engaging with customers. C’s mini territory plan (a plan of action for C to target customers within his territory, with the objective of selling R1's services to these customers) was discussed. It was agreed that at each subsequent 1:1 meeting C would be presenting to R13 his sales pipeline review and, if necessary, asking R13 for support.[322]On 24 November 2022, R13 sent a follow-up email to C with a record of what had been discussed at the 22 November meeting.[323]At the next 1:1 meeting on 29 November 2022, C’s end-of-year sales territory plan and C’s sales pipeline were discussed. R13 provided his feedback on how C could achieve his sale opportunities target. C told R13 that he did not want to attend the team’s Christmas dinner because he did not feel comfortable seeing his former manager (Mr Kulkarni). R13 told C that he was part of the team and should feel free to join in any social activities. R13 also told C that he had asked R1’s legal team to acknowledge C’s employment claim documents he had sent on 22 November.[324]On 1 December 2022, R13 sent a follow-up email to C with a record of what had been discussed at the 29 November meeting.[325]On 3 December 2022, C sent an email to R13, entitled “Inclusion”. In that email C complained that he did not feel included in the team, again raised the issue to be moved to another role, and that his employment claim documentation had not been acknowledged by R1’s legal team. Case Number 2210418/2023 & 2215062/2023 68[326]On 7 December 2022, C sent an email to R13 with his sales figures. He also informed R13 that his First Claim was scheduled for a preliminary hearing on 4 April 2023 and that he had booked annual leave for that day.[327]At the 1:1 meeting on 13 December 2022, the issues raised by C in his 1 and 3 December emails were discussed. C told R13 that he found it hard being in the office when it was so busy and that he would find it hard until there was an outcome with his Employment Tribunal case. C also told R13 that he felt he was fighting discrimination that R1 had created, and that it was really hard for him to engage and that he was taking different medication, and that he wanted the Employment Tribunal claim to be over. R13 reiterated that his Employment Tribunal claim was an external process, it was being handled by AWS' legal counsel. R13 told C that he was not involved with the conduct of his litigation and reminded C to direct any claim-related questions to the legal counsel.[328]C’s performance was reviewed, which showed that C had not progressed or launched any sales opportunities. R13 told C that this meant C was falling below the performance bar he needed to meet, and the trajectory at that time meant he would not meet the targets they had agreed on based on the email R13 sent to C on 21 November 2022. C told R13 that he knew he was not performing at his best and he believed this was because of his Employment Tribunal claim. R13 told C that he was there to support C with the achievement of his goals and gave further advice and recommendations on how to do this.[329]On 19 December 2022, C emailed R13 raising a concern about someone saying that C had been overpaid. C attached a letter from his psychiatrist dated 12 December 2022 and told R13 that he was stressed at the prospect of not being paid. R13 responded, asking if he could share C’s email, including the psychiatrist letter with HR. C responded, asking not to share the letter. C said that he did not think there was a conspiracy against him, but he was concerned that the letter might end up in the hands of R1's lawyers, who would be duty bound to use it in the best interests of R1 and against C's best interests.[330]On 22 December 2022, R13 responded to C, saying that he had not reviewed or shared the psychiatrist’s letter, but it was important that R13 was able to share and seek advice from appropriate teams, such as HR, otherwise R13 would not be able to progress the matter further. R13 said that it was C’s choice, which R13 would respect. C responded, saying that R13 could share the letter with anyone R13 thought was appropriate.[331]At the next 1:1 meeting on 22 December 2022, C again raised the issue of his on-going claim against R1. R13 explained that it was an external matter and not one which it was appropriate for R13 to discuss with C. C’s Case Number 2210418/2023 & 2215062/2023 69 performance was discussed, which at that time stood “at bar”, meaning at the minimum level required. C expressed concerns that his performance rating would be low. R13 said that in rating C’s performance he would take everything into account, including C’s short time back at work. C’s breaking off communications with his manager[332]On 23 December 2022, C sent to R13 a Slack message, in which C said that the R13’s email concerning the 1:1 meeting on 22 December did not accurately or fairly reflect what had been discussed. C asked R13 if R13 was sharing with anyone else the summary emails of their 1:1 meetings. R13 responded, asking what was inaccurately reflected in his email. R13 said that the summary emails were being shared with the HR and legal team for updates and support whenever C and R13 discussed HR, health and legal issues. C said that the issue for him was that he was unable to correct every error in every one of R13’s 1:1 notes without this causing unsustainable stress levels for him, and that he was already at the point of having dissociative episodes. C said that he had been working on the assumption that 1:1 meeting notes were only for R13’s personal record, meaning that any discrepancies in the notes were not material in the context of potentially being reviewed as part of R1's defence of C’s First Claim.[333]C said that Abi Russell (R12) had previously refused (on two occasions) C’s request to record an important meeting as an adjustment, because it was hard for C to transcribe accurate notes in real time given his ADHD. C added that it left him with no choice but to ask R13 that, in order to protect himself, they carry out the weekly business reviews over email only from that point onwards. C also told R13 that he would now need to take a considerable time away from customer facing work in the new year in order to go back through every 1:1 note since his return to work on 1 November 2022 and flag every discrepancy between R13’s email summaries and C’s own written notes.[334]On 29 December 2022, C sent R13 an email to R13 titled ''Line management - Ethical Walls''. In that email C said that there was a fundamental and obvious conflict of interest between the kind sentiment R13 had expressed in his email to C of 22 December 2022 and R1's legitimate interest in defeating C “in adversarial, zero sum litigation” (i.e. the First Claim). C said that in his view a conflict of interest existed not only at the business level, but at the individual employee/ manager/ Human Resources Business Partner level, because of the litigation. C quoted from the R1’s Global Code of Business Conduct and Ethics and the Conflict of Interest Tool, arguing that “ethical walls” should have been established between personnel involved in the adversarial litigation process and personnel involved in line management. C said that he was shocked by R13’s telling him about sharing the notes, raised an issue of R13 changing his questioning style in 1:1 meetings and Case Number 2210418/2023 & 2215062/2023 70 about R13’s offers to buy C coffee and lunch, which C said that he might now assume had not been done to support him (as he previously thought) but for other motives.[335]C ended his email with the following six points: 1. Please provide clear details of any ‘Ethical walls’ or any other Conflict of Interest mitigation arrangements put in place subsequent to Amazon being notified of the litigation on 22 November 2022. 2. Please explain why you did not tell me that any information I disclosed to you as my line manager would be shared internally & could be used against me in the adversarial litigation process. 3. I withdraw my consent to any further disclosure/processing of all personal information I have disclosed to you during the course of your line management responsibilities. 4. Please take all reasonable steps to save/exclude from archiving/etc any emails/slack messages/chime messages/meeting minutes/etc and any other non-privileged evidence relating to your internal disclosure and any subsequent processing of my personal information; such that it might be made available to a Court, if requested, as part of any subsequent Legal Disclosure exercise. 5. HRBP’s & the specialist ‘DLS’ Occ Health team have both told me that no further Reasonable Adjustments are possible. HRBP Abi Russell has previously (twice) refused my request to record important meetings as an adjustment given that it can be hard for me to transcribe accurate notes in real time given my ADHD. Where that leaves me is that I have no choice but to ask that in order to protect myself we do our WBR over email only. 6. I will need to now take a considerable amount of time away from customer facing work in the new year in order to go back through every 1:1 note since my return to work on 1st Nov 2022 and flag to you in writing every discrepancy between your email summaries and my own written notes.[336]On 4 January 2023, R13 responded to C’s email of 29 December. In his response R13 said that the fact C had brought a claim against AWS had no bearing on R13’s relationship with C as a current employee. It was R13’s job to manage and support C so he could fulfil his role to the best of his ability. R13 told C that the fact C had decided to pursue legal action was a completely separate matter to his day-to-day work and R13’s management of his work. R13 told C again that R1's response and/or management of the legal action was not something R13 was involved in.[337]R13 explained that it was not unusual or unreasonable for him to take advice, including in respect of legal obligations owed to C. R13 told C that R13’s engagement with C involved trying to be a good manager and providing the support. R13 said that it was important to continue to have the 1:1 meetings and to do the weekly business review in person. R13 explained that, like all other employees, it was expected that C would dedicate his time to the fulfilment of his role within the business during working hours. R13 said that he would support C to address C’s concerns about 1:1 meetings’ notes, however C needed to ensure that he gave the appropriate time and attention to customer facing work. Case Number 2210418/2023 & 2215062/2023 71[338]On 4 January 2023, C responded by requesting responses to his first two questions in his 29 December email (about “ethical walls” and R13 not telling C about sharing information). R13 responded on the same day, saying as C was a R1’s employee, they both owed each other ongoing obligations which were unaffected by C’s Employment Tribunal claim. R13 repeated his position that there was no conflict of interest.[339]On 5 January 2023, C sent several Slack messages to R13, saying that the situation was unprecedented for R1, that there was a conflict of interest, that he must assume that everything he had wrote to R13 might be read by R1’s counsel, who would be duty bound not towards C or C’s wellbeing, but towards defeating C in a highly adversarial process to be played out in the public courts. R13 responded reemphasising that R13’s focus was on engaging with C in matters affecting his work, that C’s Employment Tribunal claim was a separate matter being handled by R1's counsel, and if C had any concerns relating to his claim, then he should raise it with R1's counsel. R13 told C that he could only deal with his ongoing employment, and that was what R13 wanted to focus on. C responded, asking R13 how he would feel he was forced to litigate against his children's school and then subsequently discovered that the school's lawyers were recording everything R13 said in the classroom and that his children's homework was ending up in the hands of the school's lawyers.[340]On 6 January 2023, R13 emailed C saying that he would respond to his 5 January Slack message by email because R13 did not consider that Slack was a useful communication tool given C’s continued focus on what he perceived to be a conflict of interest. R13 again reiterated that his focus was on engaging with C on matters affecting his day-to-day work. R13 said that he would schedule a 1:1 meeting with C, which R13 did for 10 January 2023.[341]C did not attend the 1:1 meeting on 10 January. R13 sent C a message at 4:30pm, asking C if he was joining the meeting, as R13 was already on the line. C did not immediately respond to the message. Later that day, at 6:42pm, C sent a Slack message to R13, asking why the font in the second paragraph of R13’s email of 6 January 2023 was different to the first paragraph. C did not say why he had failed to attend the 1:1 meeting.[342]From that time C stopped engaging with R13. C stopped attending 1:1 meetings with R13. He failed to attend on 17 and 24 January 2023 without giving any reasons. He did not attend any subsequent weekly 1:1 meetings, which R13 continued to schedule and attend, the last of which was on 13 June 2023.[343]On 8 February 2023, R13 sent C a Slack message, saying that he had not heard from C, and was checking in from a welfare perspective. R13 asked C if he would check in with R13 by the end of the day. Case Number 2210418/2023 & 2215062/2023 72[344]C did not respond.[345]C was on annual leave between 13 and 23 February 2023.[346]On Monday24 morning at 9:01am, 27 February 2023, R13 sent C a Slack message, asking C when he would be online and available to speak.[347]C did not respond.[348]R13 sent another message at 11:05am.[349]C did not respond.[350]At 11:14am R13 sent an email to C, asking C to contact R13.[351]C did not respond.[352]On 28 February 2023, R13 spoke with R12 about him not being able to reach C. C not engaging with work[353]Around the same time (December 2022 – February 2023) C stopped engaging with work related matters. He failed to answer a customer’s escalation request submitted to him on 16 December 2022.[354]On 5 January 2023, C’s colleague (Jake Nielen) emailed C, asking whether it would be ok for him to introduce C to the key stakeholders at a client.[355]C did not respond.[356]On 12 January 2023, Mr Nielen’s sent a follow up email to C.[357]C did not respond.[358]On 19 January 2023, Mr Nielen sent a further follow-up email, saying that the matter was urgent and the client was chasing Mr Nielen due the pending regulatory issues.[359]C did not respond.[360]On 6 January 2023, R13 emailed C about an escalation on one of C's accounts. R13 asked C to look into the issue and respond. 24 By that time C was working a 4-day week with Fridays being his day off. Case Number 2210418/2023 & 2215062/2023 73[361]C did not respond.[362]On 11 January 2023, one of C's colleagues, Ravikant Sharma, emailed C to introduce himself, explaining that he would be working with C as a Solutions Architect and asking about next steps moving forward.[363]C did not respond.[364]On 11 January 2023, a customer, which was C’s account, reached out to C and a colleague, Jason Forte, about a potential project.[365]C did not respond.[366]On 12 January 2023, another colleague, Alex Lemon, emailed C to ask him for a call to discuss the handover to C of some customer accounts, giving several dates for the meeting.[367]C did not respond.[368]On 17 January 2023, Mr Lemon followed up on his earlier email.[369]C did not respond.[370]Mr Lemon contacted R13 asking for help to make contact with C.[371]On 13 January 2023, a colleague, Razvan Moisa, emailed C and explained that he looked forward to working with C moving forward in place of Mr Nielen, who was moving to work on other accounts.[372]C did not respond.[373]On 17 January 2023, another colleague, Merve Guzeldereli, emailed C and asked him if he would be able to get back to the customer on a question.[374]C did not respond.[375]On 20 January 2023, Merve Guzeldereli emailed R13 to tell him that the customer had emailed C, but C did not get back to the customer nor did C respond to Mr Guzeldereli’s attempts to contact him. Mr Guzeldereli told R13 that he himself eventually got back to the customer and asked R13 how to support the customer going forward.[376]From the end of January 2023 until his dismissal on 15 June 2023 C stopped attending work. Case Number 2210418/2023 & 2215062/2023 74 First disciplinary process[377]In or around 24 January 2023, R1 initiated a disciplinary process against C for C’s repeated refusal to follow reasonable instructions from his manager, refusal to engage with his colleagues and customers on work related matters, and for not performing his work duties.[378]Sonia Vuillermoz (Principal, Regional HR Business Partner) was appointed to conduct the disciplinary investigation. On 1 February 2023, Ms Vuillermoz invited C to a disciplinary investigation meeting to discuss these allegations. On the same date, C replied asking to participate in the investigation in writing. C sent some documents to Ms Vuillermoz, which did not deal with the investigated allegations. Ms Vuillermoz asked C to provide any written representations or further written material by 7 February 2023.[379]C did not respond or provide any further material.[380]Ms Vuillermoz took a number of further steps to investigate the allegations, including reviewing the unanswered emails, confirming that C was not on holiday or sickness absence during the relevant period, and interviewing R13 and R13’s manager, Ms Tricia Toth, about how the C's work was being covered and the impact on customers and the team.[381]On 1 March 2023, Ms Vuillermoz completed her investigation, concluding that there was a case to answer and the matter would be referred to a disciplinary hearing under R1's Disciplinary Policy as a matter of misconduct.[382]On the same day, Mr Paddy Fitzpatrick (R7), who was asked by Ms Kelly (R15) to act as a disciplinary manager, invited C to a disciplinary meeting on 6 March 2023.[383]The invitation letter mistakenly stated that C was suspended from work until the disciplinary hearing. The mistake was made by Addy Charman (R4), HR Business Partner, who drafted the letter using a template. She did not notice that the template contained the suspension wording and in error did not remove it from the letter.[384]C did not respond to the invitation letter.[385]On the day of the disciplinary meeting, R4 made attempts to contact C by phone. C did not answer the calls. R4 then emailed C asking to confirm his attendance. R4 said that if C did not attend the disciplinary meeting, it would be re-scheduled, but if he did not attend the rescheduled meeting, the meeting may proceed in his absence and a decision be made on the evidence available. Case Number 2210418/2023 & 2215062/2023 75[386]C did not respond. C did not attend the disciplinary meeting.[387]Later the same day R4 emailed C, stating that the meeting had been re-scheduled for 9 March 2023 at 3pm, asking C to confirm his attendance by 3pm on 8 March 2023. She said that if C did not respond or attend, the meeting would proceed in his absence. R4 also explained that the 1 March invitation letter incorrectly stated that C was suspended and that C should continue to attend work as usual.[388]C did not respond.[389]C did not attend the re-scheduled disciplinary meeting, which went ahead in C’s absence. R7 upheld the allegations of misconduct and gave C a final written warning. The outcome letter was sent to C on 15 March 2023.[390]On 22 March 2023, C appealed the disciplinary decision. Following R5’s response to C of 5 April 2023 (see paragraphs 461-472 below), Mr Norm Driskell (R6) was appointed to hear C’s appeal. R6 invited C to the appeal meeting on 24 April 2023. The letter of invitation was sent by Ms Amanda Millett of HR, on behalf of R6. The invitation letter said that if C was unable to attend the meeting on that day, an alternative arrangement could be made.[391]C did not respond to the invitation letter. C did not attend the appeal meeting.[392]On 3 May 2023, C emailed R6, attaching seven documents and asking for his appeal to be considered on the papers and a decision made based on the written materials C had provided.[393]Having considered the available materials, including the documents submitted by C, and having spoken with R4, R7 and R13, R6 upheld the R7’s decision. The outcome letter was sent to C on 25 May 2025. C’s Ethics Line complaint/ C’s First Grievance[394]On 5 January 2023, C raised an Ethics Line complaint, alleging “Mismanagement of Conflict of Interest arising from employee litigation against Amazon”. The substance of the complaint was C’s allegation that his managed (R13) and his HR support person - Abi Russell (R12) mismanaged a conflict of interest, C perceived as arising from his First Claim. The central theme of the complaint was C’s argument that by receiving legal advice and assistance with respect to communications with C against the backdrop of the ongoing employment tribunal litigation, management and HR broke the implied term of trust and confidence. Case Number 2210418/2023 & 2215062/2023 76[395]On 9 January 2023, Ms Jo Barry (R2) was appointed to deal with the complaint. On 13 January 2023, she informed C that she would be dealing with his complaint.[396]There were several email exchanges between C and R2 with respect to the complaint. C sent to R2 various additional documents, including C’s application of 18 January 2023 to the Tribunal to strike out R1’s response in his First Claim. R2 notified C that she would not be dealing with his legal documents and had forwarded those to the R1’s legal team.[397]As part of that email exchange, on 19 January 2023, C wrote to R2 in which he referred to R1’s UK Whistleblowing policy and said he was sure that R2 could understand how it might be reasonable, or even necessary, for him to raise his issues, in parallel as a formal grievance.[398]Therefore, C’s complaint was treated as an Ethics Line complaint and as a personal grievance. R2 informed C of that on 26 January 2023. C response was ambiguous. He agreed that there was an overlap but suggested that “there might be potential downstream legal consequences of conflating a Whistleblowing investigation with a UK Formal Grievance process”. C said that he was “legally unqualified to either agree or disagree with [R2’s] statement”.[399]In the same email exchange R2 asked C asked to provide additional context, and in particular answer three questions: “1. What exactly is the conflict of interest you are concerned about? 2. Why do you believe this is a conflict of interest? 3. What do you believe is the impact on you from this alleged conflict of interest?”[400]C referred R2 to the documents he had sent previously but provided no further clarifications.[401]On 13 February 2023, having considered the materials before her, R2 issued two outcomes in respect of the C’s Ethics Line complaint, and in respect of his personal grievance. R2 decided that there was “nothing irregular or inappropriate with either a request from someone within the business for advice from legal, whether that is in-house or external legal counsel, or with either in house or external legal counsel providing such advice” and found no evidence of a conflict of interest, and even if there were one, there was no mismanagement of it. In her outcome R2 highlighted the fact that, despite her asking a specific question about the impact on C of the perceived conflict, C did not provide “any evidence of less favourable, unfavourable or detrimental treatment arising from this alleged conflict of interest, or any adverse effect on you, stemming from such a conflict of interest”. She said this was key to her decision. Case Number 2210418/2023 & 2215062/2023 77[402]Accordingly, R2 found that the grievance was not substantiated and dismissed it. She informed C of his right to appeal the decision.[403]Separately, R2 concluded her investigation report into the C’s Ethics Line complaint. She found the complaint not substantiated for the same reasons as with respect to the grievance. Welfare Check[404]As noted above (see paragraphs 342-352) from January 2023 C stopped attending 1:1 meetings with his manager and responding to his messages. R13 was unable to contact C despite sending him several messages, asking C to respond.[405]On 9 February 2023, R13 spoke with his HR support - Abi Russell (R12) about not being able to contact C. R12 tried to call C, but C’s phone was turned off and there was no opportunity to leave a voice message. Later that day, R12 emailed C asking C to get in touch either with R13 or her by 10am the following day to let them know that he was OK. R12 said that if they did not hear from C by then, they would be contacting C’s emergency contact, as they were concerned about C’s wellbeing.[406]C did not respond.[407]On 10 February 2023, R12 tried to contact C’s emergency contract (C’s father) by phone. R12 could not get through to him and left a voice message. C’s father did not return the call. R12 then spoke with Stacey Kelly (R15) to explain the situation.[408]Pausing here, R15 in her role as Senior Manager, Employee Relations is responsible for handling grievance and disciplinary processes across the EMEA region and supporting the R1’s HR team. She had an administrative coordination role in respect of various processes which took place during C's employment. She, however, did not lead any grievance or disciplinary processes relating to C, or make any decisions or influence any decisions regarding any grievance or disciplinary processes relating to C.[409]On the same day, R15 contacted R1’s workplace incident management team (“WIM”), which coordinates welfare checks. A welfare check involves the Police being contacted and asked to visit the employee's home if neither the employee nor their emergency contact responds to attempts to contact them.[410]The welfare check was conducted on 11 February 2023, by the police arriving at C’s home address. A person who opened the door to the police said that C was no longer resided at that address and had gone on holiday with his wife. The WIM team closed the welfare check with the following Case Number 2210418/2023 & 2215062/2023 78 conclusion: “No threat or wellbeing concerns identified, this was referred back to HR for ongoing management of failure to report to work”.[411]On 12 February 2023, having been informed by the person residing at his home about the welfare check, C sent a lengthy email to the Tribunal, complaining, amongst other things, about the police being sent to his home. In particular, C complained that his wife “played no part in this litigation. For the Respondent to have told the Police that they were concerned for my Wife’s welfare; the logical deduction is that the Respondent was content at the time of notification for the Police to make the possible assumption that I might have, in some way, harmed my Wife, or have allowed my Wife to come to harm. I am distraught as I type this, such is my disbelief that the Respondent could publicly claim to “Strive to be Earth’s Best Employer”, whilst simultaneously resorting to what appears to be intimidation tactics & a waste of Police time”.[412]He asked for directions on his strike out application in his First Claim: “as to whether; & if so how, to refer this situation to the Secretary of State for Justice, relevant Police forces &/or any other relevant Regulators (i.e. the SRA/CMA/Ofcom/etc) to enable them to initiate investigations into the Respondent &/or named current & former employees/legal counsel of the Respondent, in relation to the significant set of issues arising from this Case”. He concluded his email by saying that if the Tribunal was “unable or unwilling to consider Strike Out of the response to this claim; then I must, again, respectfully ask for details of how I might be able to refer this Case to the Employment Appeal Tribunal owing to an error of law in respect of sXXIX Magna Carta (1297)”.[413]No Rs or anyone else at R1 tried to contact C’s wife or said to the police that there were any concerns about her wellbeing. We accept Rs’ witnesses’ evidence on this point. Overpayment issue[414]As mentioned above (see paragraph 329) on 19 December 2022, C complained to his manager (R13) about being contacted about overpayment. The email to C of 19 December 2022 was from R1’s payroll team, who had identified that because C had been on extended sick leave he had been overpaid wages in the total amount of £4,294.52. C was given two options: a full amount deduction or two deductions in equal instalments over 2 months. C considered that the overpayment claim was wrong and that he was being harassed, with HR being aware of that and not intervening. R13 referred the matter to R12.[415]On 19 December 2022, R12 emailed C, saying that she had been made aware of the issue by R12, that she had contacted the payroll team for Case Number 2210418/2023 & 2215062/2023 79 further information, and asking C to provide screen grabs of any holiday and sickness leave processed in the relevant period. R12 said that she would be working with C and the payroll team to help resolve the matter.[416]C did not respond.[417]On 3 January 2023, R12 chased C for a response. C responded the following day. However, he did not provide the requested information, saying: “With litigation underway, I do not think that it is reasonable or appropriate to ask me to comment on issues which are or which may be subject to liability determination by the Employment Tribunal”.[418]C12 wrote back, explaining that her request was unrelated to his Tribunal claim and was to support C with dealing appropriately with the overpayment issue.[419]On 5 January 2023, C responded, challenging R12’s assertion that the request was unrelated to his Tribunal litigation, because “[f]or this statement to be true you must have reviewed my Employment Tribunal claim &/or liaised with someone who has reviewed my Employment Tribunal claim. This would prove that there is an unmitigated Conflict of Interest…”[420]C also challenged R12’s reference in her email to the overpayment as having occurred, arguing: “Due to potential liabilities arising from ERA 1996; it is reasonable to assume that a “HR professional” (your words – attached email of 11 Nov 2022) would have carefully reviewed the evidence before making such an authoritative statement. If that is the case then why would further evidence be sought, not least from the affected employee for whom it would obviously cause undue stress? In contrast, please see attached evidence that, whilst handling a legitimate underpayment (TT ref D61374232), your colleague Addy Charman, on 7 Nov 2022, took deliberate & intentional steps to cover-up potential liabilities arising from the ERA 1996 by editing her comment “the underpayment” to “any underpayment”; despite the evidential threshold for a legitimate underpayment having clearly been met as demonstrated by the fact that payment was made within the subsequent 24 hours despite no further evidence being requested or supplied.”[421]We heard no evidence whether the overpayment issued had been finally resolved. It appears it might have been overtaken by other events and left there. However, it is not material to the outcome of this claim. There is no complaint of unauthorised deduction from wages or breach of contract with respect to the overpayment in this Second Claim. There are no allegations that how the overpayment issue was handled by Rs, or anything else related to it was a detriment for making a protected disclosure or an act of harassment, victimisation or discrimination. There is no employer contract claim before this Tribunal. Investigation into C’s breach of confidentiality and into C’s allegations in his 18 January strike out application Case Number 2210418/2023 & 2215062/2023 80[422]On 19 January 2023, C sent an email to many recipients at R1 (to a generic email box and blind copied other Amazon staff). The email was addressed “To whom it may concern”. To that email C attached his strike out application to the Employment Tribunal in his First Claim, dated 18 January 2023. The email said that the letter contained “evidence of egregious conduct by Amazon employees & legal Counsel. Including, but not limited to, current & ongoing gross violations of the “moratorium on police use of Amazon’s facial recognition technology” which Amazon publicly claimed had been imposed on 10 June 2020, following the murder of George Floyd; & subsequently “extended until further notice” on 18 May 2021”.[423]The main argument in the C’s 18 January strike out application was that it was no longer possible to have a fair hearing, because R1 supplied the Ministry of Justice (“MoJ”) with a Cloud Platform and therefore had access to the encryption key securing the HMCTS’s infrastructure, which, C argued, created “a situation incompatible with Magna Carta (1297).”[424]C argued that there were: “only three ways to “objectively” determine (Armitage) that a fair trial is possible: i) The Tribunal ceasing use of the Respondent’s services; or ii) The Tribunal ordering the Respondent to be invigilated; or iii) The Tribunal reaching an “objective” decision as to the Respondent’s probity.”[425]Over 11 pages of the application C presented lengthy and convoluted arguments, summarising his case as [emphasis in the original] 25: “Summary It is a strong thing for a Court to refuse to hear a party to a cause, and it is only to be justified by grave considerations to the public policy. It is a step which a court will only take when the party itself impedes the course of justice and there is no other effective means of securing his compliance.3637. Armitage, Denning LJ in Hadkinson v Hadkinson & the Armory principle together reasonably require Strike Out of the response to this claim.38. Or in the alternative; for the Preliminary Case Management Hearing scheduled to take place on 4 April 2023; to be converted to an in-person (owing to the nature of these issues) Open Preliminary Hearing to solely consider Strike Out of the response to this claim.”[426]The application contained several references to the R1’s commercial contract with the MoJ, reproducing the terms and conditions of the contract, including with respect to R1’s obligations, applicable charges, contracted work, contract value. The letter also listed various sales opportunities taken from the R1’s Salesforce system. The letter contained an extensive write-up taken from the R1’s internal debriefing “After Action” report. In short, C put in 25 At a preliminary hearing on 4 April 2023, EJ Burns decided that the application was misconceived and refused to list a preliminary hearing in public to consider it. Case Number 2210418/2023 & 2215062/2023 81 the letter confidential and potentially sensitive commercial information belonging to R1.[427]Given the wide circulation of the C’s email with the strike out application and the content of the attached letter, R1’s legal team asked Carolyn Kenyon (R10) to investigate whether the information C had shared was confidential to R1 and, if so, at what level, and whether by sending his email C had breached his duty of confidentiality to R1.[428]R10 was also asked to investigate the substance of the C’s allegations contained in his 18 January strike out application, namely whether R1 had a conflict of interest in its dealings with the MoJ in acting as both its cloud services provider and as a respondent in C's Employment Tribunal claim.[429]On 2 March 2023, Mr Nayan Gulati, Human Resources Partner, on instructions from R10 emailed C, inviting C to attend an investigatory meeting with R10 and Mr Gulati on 9 March 2023 to be held by video (Chime), attaching several relevant documents (R1’s confidentiality policy, C’s employment contract, C’s confidentiality agreement, disciplinary policy and the C’s 18 January strike out application).[430]The email informed C that a fact-finding investigation had commenced regarding concerns that he had disclosed Amazon Confidential Information to Amazon employees who did not need to know that information in breach of Amazon's Confidential Information and NDA Guidelines and Policy, C’s Statement of Terms and Conditions of Employment and his Confidentiality, Non-Competition and Invention Assignment Agreement. C was told that the purpose of the investigation was to gather information regarding these concerns before deciding whether disciplinary proceedings may be required. The invite letter asked C to let the investigation know of any documents, witnesses or information that he thought would be relevant to the matters under investigation. The letter offered C the opportunity to have the meeting rearranged for a later date and asked C if he needed any adjustments: “If you are unable to attend at the specified time, then please let me know as soon as possible so that we can arrange a more suitable time. Please inform me if you would like any adjustments to be made, to enable you to participate fully and effectively during the meeting”.[431]C did not respond. C did not attend the investigation meeting. C did not inform Mr Gulati or R10 that he would not be attending the meeting.[432]On 9 March 2023, Mr Gulati sent another invite to C to attend the investigatory meeting on 15 March 2023. This letter too offered C the opportunity to have the meeting rearranged for a later date and asked C if he needed any adjustments. Case Number 2210418/2023 & 2215062/2023 82[433]C did not respond. C did not attend the meeting. Nine minutes into the meeting, Mr Gulati emailed C saying that R10 and him were waiting for C to join the meeting and that if he had any difficulties dialling into the meeting to let Mr Gulati know and he would dial C in.[434]C did not respond.[435]On 22 March 2023, C sent a lengthy email titled: “Ref: Disciplinary Appeal; Disciplinary Investigations; Ethics Line Investigation; & Formal Grievance”. C said that the email sets out: “i) The grounds of Appeal to Paddy Fitzpatrick’s Disciplinary Outcome letter (attached, dated 15 March 2023); & ii) Information relevant to the Disciplinary Investigation of Ms Kenyon as per Nayan Gulati's letter (attached, dated 2 March 2023); & iii) Information relevant to the Disciplinary Investigation of Mr Hilliard as per Mr Hilliard’s letter (attached, dated 6 March 2023); & iv) Information relevant to the ongoing Amazon Ethics Line investigation (Amazon’s Case reference: AMAZ-2023-1-502 (LHR14)); & v) A Formal Grievance; & vi) A summary of the impact Amazon’s actions continues to have on my Family & my Health.”[436]The email was directed to several R1’s internal and external individual recipients (including R10) and internal email groups.[437]Based on the information contained in that email R10 determined the scope of her investigation into the C’s allegations set out in his 18 January strike out application. In addition to the allegation of “conflict of interest” by reason of R1 supplying cloud platform services to the MoJ and associated matters arising from that (alleged R1 ability to access the Tribunal files, and alleged breach by R1 of the conflict of interest provisions in the contract with the MoJ be virtue of being a respondent in C’s First Claim), R10 identified an additional allegation that R1 was in breach of the R1’s announced moratorium on supplying face recognition technology to police, in the wake of the death of George Floyd.[438]On 18 April 2023, R10 emailed C with the outcome of her investigation into the allegation of breach of confidentiality. R10’s conclusion was that “[i]n deciding to inform four different senior managers, [C] disclosed Amazon confidential information more widely than was necessary”. She, however, decided that in sending the letter to these individuals C believed that he was acting in accordance with the R1’s UK Whistleblowing policy. Accordingly, R10 decided that no disciplinary action against C should be taken. R10 reminded C of his confidentiality obligations to R1 and how he should raise any whistleblowing concerns in future. R10 informed C that she would be now looking into his allegations in the 18 January strike out application and said that she wanted to discuss these with C to make sure that she properly understood them. She asked C to indicate whether he would be available to Case Number 2210418/2023 & 2215062/2023 83 speak on 19 or 20 April 2023. R10 asked C to acknowledge receipt of her email.[439]C did not respond.[440]R10 followed up on 2 May 2023, again asking C to acknowledge her email and respond. C responded on the same day in an aggressive manner, challenging R10’s investigation outcome and accusing R1026 of professional misconduct.[441]C did not respond to R10’s invitation to have a meeting to discuss his concerns.[442]On 5 May 2023, R10 responded to C’s 2 May email. She again explained how the allegation of C’s breach of confidentiality had been investigated and why she had come to the conclusion set out in her report. She reminded C that she wanted to speak with him to understand his other concerns as part of her investigation into them. R10 specifically stated concerns and allegations she understood C was raising which she would be investigating. She asked C to inform her if she had misunderstood his concerns.[443]C did not respond.[444]On 25 May 2023, C sent a 10-page letter to various individuals, including R10, titled “Ref: Forrest v Amazon Web Services EMEA SARL UK Branch”. He said that the letter included: “i) Grounds of Appeal to Luke Waite's (Employee Relations Manager) Formal Grievance Outcome letter (dated 18 May 2023); & ii) Information relevant to the Disciplinary Investigation of Joe Carroll (Segment Leader, Digital Native) per Jodie Tinsley's (Principal HRBP) email & letter of 23 May 2023; & iii) Information relevant to the Formal Grievance Investigation of Wendy Ruth Collidge (Principal HRBP) per Ms Collidge’s email of 18 May 2023; & iv) Information relevant to the Disciplinary Appeal investigation of Norm Driskell (Director, EMEA SA - Public Sector AWS) per Amanda Millett's (Principal HRBP) letter of 24 April 2023; & v) Information relevant to Jo Barry's (HR Partner Manager, HR4HR) ongoing Amazon Ethics Line Investigation (Amazon’s case reference: AMAZ-2023-1-502 (LHR14)); & vi) Information relevant to Carolyn Kenyon’s (Senior Corporate Counsel, Business Conduct & Ethics) ongoing investigation into the Whistleblowing Protected Disclosures made in my letter of 18 January 2023.” 26 R10 is a barrister. Case Number 2210418/2023 & 2215062/2023 84[445]The content of the letter was wide-ranging but provided no additional information relevant to the R10’s investigation into the C’s allegation. In the letter C again accused R10 of professional misconduct.[446]On 19 June 2023, having conducted further investigation into the C’s allegation, R10 issued her outcome. She found “no evidence that any Amazon employee has acted illegally or in breach of Amazon’s policies (including the Code of Business Conduct and Ethics)”.[447]In particular, R10 found that: there was “no basis to conclude that AWS’ role as a respondent to [C’s] employment tribunal claim is incompatible with its status as a Cloud Services Provider to the Ministry of Justice (‘MoJ’), or that AWS is in breach of any associated contractual obligations or ethical walls.”; the Salesforce opportunities “were sourced through legitimate means” and did not breach any competition laws; the pursued opportunities did not breach the moratorium, as these were not with police entities or for use by a police force.[448]R10 informed C that “[n]o further action will therefore be taken by Amazon regarding the concerns” and asked him to acknowledge receipt of the letter.[449]C did not respond. Second disciplinary process and C’s dismissal[450]Following the unsuccessful attempts to contact C, his absence from work and non-engagement with work-related matters in late January – February 2023 (see above), R1 initiated second disciplinary procedure against C. The allegation put to C was that C refused to work his agreed contractual hours (Monday to Thursday for 40 hours per week) on the following dates: Monday 30 January 2023 to Thursday 2 February 2023; Monday 6 February 2023 to Thursday 9 February 2023; Monday 27 February 2023; and Tuesday 28 February 2023 because of unauthorised absence.[451]Gavin Hillard (“GH”), a Senior HR partner, was asked by R15 to lead an investigation into this matter.[452]On 6 March 2023, GH wrote to C, inviting him to a disciplinary investigation meeting on 9 March 2023 to consider this allegation. The letter Case Number 2210418/2023 & 2215062/2023 85 explained the purpose of the meeting, in particular that the meeting would be an opportunity for C “to provide any information that you consider may be relevant to the allegations and answer any initial questions that we may have”.[453]The letter also explained that, following the investigation, GH would decide if there was a case to answer and whether formal disciplinary proceedings were needed, in which case C would be invited to a formal disciplinary meeting, at which he would be able to respond to any allegations and set out his version of events. GH asked C to send any relevant information and documents ahead of the meeting or to bring them with him to the meeting. GH invited C to ask any questions. The invite letter gave C the option to ask for the meeting to be rearranged for a later date: “If you are unable to attend the meeting at the specified time, then please let me know as soon as possible so that an alternative time can be arranged promptly.”[454]C did not respond. C did not attend the meeting.[455]On 14 March 2023, GH send the second invitation to the investigation meeting, re-scheduled for 16 March 2023. GH asked C to confirm his attendance by 5pm on 15 March 2023. The letter provided further details of the events which he was investigating. This invite letter too gave C the option to ask for the meeting to be rearranged for a later date. The letter warned C that if he failed to attend or contact GH requesting to re-arrange the meeting, GH would have to continue his investigation without the benefit of C’s input. GH gave C the option to send written representation by 9:30am on 16 March 2023.[456]C did not respond. C did not attend the meeting. C did not send any representations by the set deadline.[457]As noted above (see paragraph 435) on 22 March 2023 C sent a lengthy email with respect to various processes, saying that it contained “Information relevant to the Disciplinary Investigation of Mr Hilliard as per Mr Hilliard’s letter (attached, dated 6 March 2023)”.[458]Because the email was sent after the 16 March deadline, set out in GH’s letter of 14 March, GH did not take into account the contents of the C’s email in his investigation.[459]On 30 March 2023, GH issued his investigation report, describing in some detail the investigation steps he had undertaken, his findings and giving the overall conclusion that: “The facts gathered during this investigation show that Charlie was absent from work, without authorisation, on Monday 30 January 2023 to Thursday 2 February 2023; Monday 6 February 2023 to Case Number 2210418/2023 & 2215062/2023 86 Thursday 9 February 2023; Monday 27 February 2023; and Tuesday 28 February 2023. As a result of this unauthorised absence, Charlie refused to work his agreed contractual hours.”[460]GH concluded that C’s unauthorised absence was a breach of his employment contract and the R1’s disciplinary policy and therefore there was a disciplinary case for C to answer. -------------------------------------------------------------------------------------------------------[461]Pausing here, as noted above (see paragraph 435 above) on 22 March 2023 C sent a lengthy letter with multiple attachments, covering several topics. Its content was convoluted and not easy to follow. The letter was sent for attention of Gözde Demiral (R5) – HR Director, AWS Industries, Ms Kenyon (R10) and GH.[462]On 29 March 2023, R5 acknowledged receipt of the C’s 22 March letter and told C that she would respond shortly with next steps.[463]On 5 April 2023, R5 emailed C, explaining various processes which would be initiated in response to his 22 March letter.[464]R5 explained that in his 22 March email he had raised new grievances, “including in relation to the reason(s) for Amazon's decision to initiate disciplinary action against you and concerns about the way in which your complaint to the Ethics Line (investigated by Jo Barry) was handled”. She said that these would be investigated in accordance with the R1’s grievance policy and C would be contacted by the appointed investigators. R5 also explained that since there was a pending disciplinary process against C (the Second disciplinary process), his concerns about the reason for commencing the disciplinary action would be looked at separately to the wider concerns in his grievance. She also explained that the grievance and the disciplinary processes would run in parallel.[465]With respect to the concerns raised in his 18 January strike out applications – these would be handled in accordance with the R1’s whistleblowing policy. However, the strike out application, as such, fell outside the grievance procedure and would be responded through the Employment Tribunal process. Equally, C’s concerns about R1’s external lawyers (Taylor Wessing), acting for R1 in relation to the First Claim, fell outside the R1’s grievance procedure and C needed to raise them directly with Taylor Wessing.[466]C’s appeal against the R7’s decision to issue him a final written warning would be dealt with in line with the Disciplinary Appeal process. A hearing manager would be assigned, and C would be contacted in due course. Case Number 2210418/2023 & 2215062/2023 87[467]R5 said that C’s concerns about the subject matter of the disciplinary investigation against C conducted by R10 would be passed to R10 to consider.[468]R5 explained that C’s concerns about the involvement of legal and HR in supporting C’s manager had been addressed by Jo Barry (R2) in the outcome letter of 13 February 2023.[469]With respect to the medical information shared by C with his 22 March letter, R5 said that the information would be passed to the relevant HR Partner to review and discuss with C if he needed any support, including a possible referral to occupational health. Meanwhile, C was directed to the Employee Assistance Programme.[470]Finally, R5 said that C’s data subject access request would be send to the appropriate team to consider.[471]On 13 April 2023, Ms Russell (R12) emailed C. She told him that she understood he had been in contact with R5 in relation to potential resources and additional support available to him. R12 provided C with details of how to contact the Employee Assistance Programme. She asked C if he needed any additional support or if wanted to have a discussion on how R1 could support him. R12 asked C if he wanted to consider exploring Occupational Health offerings, which C had declined in the past.[472]C did not respond. -------------------------------------------------------------------------------------------------------[473]Returning to the Second Disciplinary Process, on 19 May 2023, Ms Kelly (R15) asked Mr Joe Carroll (R3) to act as a disciplinary manager. R15 sent R3 the disciplinary investigation report by GH. Jodie Tinsley (“JT”) was the HR Business Partner appointed to support R3 with this process.[474]On 22 May 2023, JT, on behalf of R3, sent an invitation to a disciplinary meeting on 24 May 2023. The letter explained the disciplinary allegations against C, told C that he would have a full opportunity to respond and make any comments. C was asked to provide any information and documents he wished R3 to consider. The letter went on to warn C that the allegations, if found to be correct, were potentially matters of gross misconduct, which may result in C’s summary dismissal. The letter explained in some detail the process, including the right to be accompanied at the meeting by a trade union representative or a work colleague. C was asked to confirm his attendance and warned that if he failed to attend, the meeting may proceed in his absence and a decision taken on the evidence available. Case Number 2210418/2023 & 2215062/2023 88[475]On 23 May 2023, C emailed JT, asking for the meeting to be postponed until “early next week” to give him time to arrange a union representative or prepare submissions. In that email C also said: “My 2023 YTD Sales Performance remains above 100%”.[476]On the same day, JT sent an email to C confirming that the meeting had been re-scheduled to 30 May 2023.[477]As noted above (see paragraph 444), on 25 May 2023, C sent a 10- page letter, covering several matters, one of which, C said, was “Information relevant to the Disciplinary Investigation of Joe Carroll (Segment Leader, Digital Native) per Jodie Tinsley's (Principal HRBP) email & letter of 23 May 2023”.[478]The content of the letter is discursive and convoluted. It is difficult to discern from the letter which information C says is relevant to which process/matter. In the letter C complains about various matters, from the police being sent to his home to Taylor Wessing’s conduct in relation to his First Claim. It talks about matters that do not appear relevant to any of the topics C identified himself, such as Ofcom interim report into the UK Cloud Services, Ethics line report issued by another employee with respect to UK/EU Employee Relations. It contains many allegations concerning various letters being drafted, by R1’s external lawyers, C says he has discovered by looking at the documents’ metadata.[479]With respect to the Second disciplinary process, the only possible relevant information in the letter is C’s submissions that GH’s decision not to consider his 22 March letter in his investigation (as it arrived after the 16 March deadline) was, in the circumstances C describes in his letter, unfair. C also appears to be making a broader point that the whole disciplinary process was orchestrated to get rid of him because of his whistleblowing. However, the letter did not explain what the alleged whistleblowing disclosures were and how they impacted on his attendance at work.[480]However, nothing in the letter directly addresses the allegations of C’s unauthorised absence and refusal to work, which allegations were the subject matter of the disciplinary process against C.[481]R3 reviewed the letter but was unable to find any information or explanation from C as to why he was not at work on the dates, which were the subject of the disciplinary allegations, or any evidence that C was at work on those dates, or that his absence on those dates was authorised.[482]On 30 May 2023, JT emailed C, confirming receipt of his 25 May letter and explaining that C could discuss the document further during the disciplinary hearing scheduled for 14:30 on that day. JT also explained to C Case Number 2210418/2023 & 2215062/2023 89 that if he wanted R3 to consider his 25 May letter as his written representation, then he should let her know.[483]C did not respond.[484]C did not attend the disciplinary meeting. R3 emailed C stating that because C did not respond and did not attend the meeting, his 25 May letter would be considered as his written representations and the outcome of the disciplinary would be communicated to C.[485]C did not respond.[486]R3 then re-read the 25 May letter and GH’s investigation report. R5 also read C’s 22 March letter, because C complained that GH had not considered it in his investigation. Like the 25 May letter, the 22 March letter did not contain any relevant information explaining C’s absence from work on the days, which were subject to the disciplinary allegations of unauthorised absence and refusal to work.[487]On 5 June 2023, R3 interviewed C’s manager (R13). R3 asked R13 about when and how C stopped engaging with R13. R3 also asked R13 about C’s claim that his YTD sales performance was above 100%. With respect to the performance point, R13 answered that whilst that was true, because the targets had been set at the start of the year, on good accounts they would be met even if no one was involved. The fact that C’s revenue targets were met did not mean that C was working on these accounts. R13 also confirmed that C had made no contribution to any of other (non-revenue) goals.[488]Having reflected on the evidence before him, R3 concluded that the disciplinary allegations were proven, meaning that C had been absent from work on those days without authorisation, which R3 decided was gross misconduct. Having considered mitigating and aggravating circumstances, including C’s length of service and the live final written warning, R3 decided that summary dismissal was the appropriate sanction.[489]On 15 June 2023, R3 sent a letter to C recording his decision and the reasons for it. C was dismissed on 15 June 2023 with immediate effect. The letter explained that C could appeal the decision within one week by writing to R5.[490]C did not appeal. C’s Second grievance Case Number 2210418/2023 & 2215062/2023 90[491]Going slightly back in time, as noted above (see paragraph 464) one of the matters, which arose from the C’s 22 March letter was his new grievance about the decision to initiate disciplinary action against C, and concerns about the way in which the C’s complaint to the Ethics Line (C’s First grievance, investigated by Jo Barry) had been handled.[492]As the grievance was about two separate matters, the investigation into it was separated into two parts:(i) the reason for initiating the disciplinary against C; and(ii) the handling of the C’s 1st grievance/ethics line complaint. Luke Waite’s grievance investigation[493]On 20 April 2023, Luke Waite (“LW”) Employee Relations Manager was asked by R15 to act as the grievance manager in relation to the first part27 . R15 sent to LW relevant documents to read through, including the C’s 22 March letter, particulars of claim in the First Claim, the 18 January strike out application, C’s correspondence with the Tribunal.[494]Based on the review of these documents, LW understood the remit of his grievance investigation was to consider whether the disciplinary proceedings against C had been unfairly and inappropriately initiated as a result of C pursuing litigation against R1 and him making what he asserted were protected disclosures during his employment.[495]On 24 April 2023, LW invited C to a grievance meeting on 27 April 2023 to discuss the C’s allegations.[496]C did not respond.[497]C did not attend the meeting.[498]On 2 May 2023, LW sent a further invitation to a rescheduled meeting on 4 May 2023. C responded on the same day, asking LW to clarify the scope of his investigation. C asserted that the possible inferences from the extract from his 22 March letter included in the LW’s invitation emails were “paradoxical”. C complained that his 22 March grievance had not yet been dealt with. He complained about Jo Barry’s outcome letter. C did not say whether he would be attending the meeting.[499]Sat 9:57am on 4 May 2023, LW emailed C asking to confirm his attendance of the grievance meeting, scheduled for 11am. He explained the purpose of the meeting and the scope of his investigation.[500]C did not attend the meeting. 27 The second part of the grievance was investigated by Wendy Collidge (R14), which is addressed later in the judgment. Case Number 2210418/2023 & 2215062/2023 91[501]At 11am, C emailed LW, forwarding his appeal papers of 3 May 2023 (see paragraph 392 above). In the covering email C said it was: “a) In demonstrate of my legitimate concerns regarding Mr Waite’s request for me to confirm attendance at an (unrecorded) verbal hearing at 11am on 4 May 2023; & b) As additional evidence to better enable Mr Waite to provide a comprehensive written response to my Formal Grievance of 22 March 2023.”[502]Eight minutes later C emailed LW again, asking why the scope of the investigation conducted by LW had been changed, suggesting that there was a difference between the language in Ms Demiral’s email of 5 April 2023 (see paragraph 464) and in the email from LW of that day. In particular the phrase: “The meeting is your opportunity to explain fully to me your concerns about why disciplinary action has been taken in relation to your absence from / noncompletion of work” was different how Ms Demiral put it in her email (“including in relation to the reason(s) for Amazon's decision to initiate disciplinary action against you and concerns about the way in which your complaint to the Ethics Line (investigated by Jo Barry) was handled”).[503]Four minutes later C emailed LW again, this time forwarding his email of 2 May to Ms Kenyon (see paragraph 440 above). In the covering email C said that this was additional evidence to better enable LW to provide a comprehensive written response to his grievance.[504]At 2:02pm on the same day, LW emailed C telling him that since he did not attend the grievance meeting, but sent three emails, LW would complete his investigation based on the information available to him and would be in touch with the outcome. LW again explained the scope of his investigation, namely the reasons for the disciplinary actions taken against C.[505]LW proceeded to review all documents before him, including the documents sent to him by C.[506]On 18 May 2023, LW sent to C his investigation outcome. The outcome letter comprehensively covered the scope of the investigation, the process undertaken. The letter set out LW’s detailed findings. The overall conclusion was that the investigation showed that none of the disciplinary actions had been taken or pursued because of or in connection to the C’s ongoing employment tribunal litigation or his asserted protected disclosures, but solely because of the C’s conduct. LW gave clear and detailed reasons for arriving at this conclusion. His decision was that the grievance was not substantiated and not upheld in any part. LW informed C of his right to appeal his decision.[507]On 25 May 2023, as part of his 25 May letter (see paragraph 444 above) C appealed LW’s decision. Case Number 2210418/2023 & 2215062/2023 92 Isak Vigil’s C’s grievance appeal investigation[508]R15 asked Mr Isak Vigil (R17) Principal HR Business Partner, based in Seattle, USA to hear the appeal.[509]On 14 June 2023, R17 emailed C to introduce himself and explain that he would be dealing with C’s appeal.[510]On 21 July 2023, R17 emailed C, explaining that he had read his appeal papers and would be sending an invitation to a meeting to discuss C’s appeal.[511]C did not respond.[512]On 25 July 2023, R17 sent an email, inviting C to a meeting by telephone on 31 July 2023.[513]C did not respond.[514]On 28 July 2023, R17 sent a follow-up email, asking C to confirm his attendance at the scheduled meeting on 31 July.[515]C responded later that day, confirming his attendance together with his trade union representative (Mr Garelick). C sent a link to a Dropbox folder containing files, which C said had information highly relevant to R17’s investigation. C asked R17 to accept them as his written submissions. C also asked why R17, being based in the US, was appointed as the appeal manager.[516]The appeal meeting took place on 31 July 2023. C attended with his trade union representative. Shannin French from HR joined as a note taker.[517]At the meeting C raised the issue of possible overlap between R17’s investigation and the investigation conducted by Wendy Collidge (see below). R17 explained that he was considering the appeal against LW’s grievance outcome decision and was not involved in any other process. R17 said that he could check with Ms Collidge if C needed a response. C did not ask R17 to do that.[518]At the meeting C again asked why R17 was appointed to hear his appeal, being a US based HR person. R17 explain that him being part of the global HR team meant that he was independent and that he was familiar with the UK grievance procedure.[519]C raised various irrelevant issues, including about an unrelated grievance by another employee from the previous year, GDPR concerns Case Number 2210418/2023 & 2215062/2023 93 related to personal data generated during the appeal process, arising for “purely jurisdictional reasons”. R17 explained that the notes of the meeting would be shared with C, but he needed to ask the privacy team about C’s access to his personal data.[520]C also raised the issue of his employment tribunal litigation and suggested that the grievance should be adjourned until after the Tribunal judgment28 . R17 agreed. R17 said that he would hold off asking his questions he wanted to ask C until the outcome of the litigation.[521]On 3 August 2023, R17 emailed C the notes of the meeting, asking C to review and send any corrections.[522]On 6 September 2023, R17 emailed C, confirming that the grievance appeal process had been paused at his request. R17 also explained that he understood C had received the outcome from the Employment Tribunal, and invited C to attend an appeal meeting on 14 September 2023. R17 also answered C’s question about access to personal data.[523]On 11 September 2023, C emailed R17, again asking why he was appointed to hear the appeal. C included the IR Application judgment. C made the point that the judgment did not make any findings of fact. C said that the Tribunal’s determination of the facts would “presumably ultimately form a core of [R17’s] investigation”. C concluded: “Accordingly; & until the facts are determined, I do not think that it would be appropriate for me to discuss the allegations in a Formal Grievance (Appeal) Hearing & so I feel that I must respectfully decline your invitation to a 4.30pm Hearing on 14 September 2023.” C also suggested that the time of the appeal meeting was not coincidental but made deliberately to leave C disadvantaged in the litigation process, as it fell on the last date of the statutory limitation period for submitting an employment tribunal claim arising from C’s dismissal on 15 June 2023.[524]On 13 September 2023, R17 emailed C to confirm that the appeal meeting had been cancelled.[525]On 15 September 2023, C emailed R17 again, attaching the investigation report of 21 December 2022 from an HR Business Partner on an unrelated matter and making various points concerning the drafting of the report. C again questioned why R17 was appointed to hear his appeal.[526]On 28 September 2023, R17 responded to C explaining again why he had been appointed as an independent and experienced HR professional. R17 offered to resume the grievance appeal process and gave C the option of a meeting on 10 October 2023, or C submitting written representations. The 28 C’s unsuccessful IR Application (see paragraph 7 above) Case Number 2210418/2023 & 2215062/2023 94 third option was for C to withdraw the appeal. R17 asked C to confirm his decision by 3 October 2023.[527]On 29 September 2023, C responded, asking the materials shared before and two additional emails he was sending that day to be considered as his written representations and to determine his appeal based on that. C also questioned the 3 October deadline, suggesting that it was set deliberately because it coincided with the Employment Tribunal hearing (see paragraph 11 above). C also asked why R17 copied his email to his personal email address.[528]R17 was not involved in any way in the C’s employment tribunal proceedings and was not aware of any hearing dates or limitation deadlines. We accept his evidence on this point.[529]On 16 October 2023, R17 emailed C referring to the large volume of both internal and external information sent by C, asking C to provide specific appeal grounds, and what specific evidence was linked to each appeal ground. R17 asked C to confirm what outcome he was seeking from the appeal process.[530]C responded on the same day, referring R17 to R17’s email of 14 June 2023 (see paragraph 509 above) and saying that his 25 May letter and his 29 September letter contained the bundles of evidence and what C was seeking from the appeal process.[531]R17 was confused by C’s response, as many of the documents shared by C through the Dropbox were related to the employment tribunal proceedings and post-dated his 25 May appeal letter.[532]On 31 October 2023, R17 responded to C, explaining the reasons for his request, in particular that he asked for that information so that he could work through the grievance appeal proportionately while ensuring that he was clear on the scope of the appeal. R17 explained that C provided a large volume of documentation, including concerning his employment tribunal process, which was a separate matter. That was the reason for R17 asking C to articulate his grounds of appeal and direct R17 to specific evidence C wanted R17 to consider in respect of each appeal ground.[533]R17 reiterated that he was fully committed to investigate C’s grievance appeal, but C needed to help him by providing the requested information. R17 explained that given the volume of documentation C had provided, it was a proportionate and reasonable approach to the handling of C’s grievance appeal, which would also mitigate against the risk of R17 not considering information C wanted R17 to consider because R17 had not been directly pointed to it. R17 repeated that in the alternative, C could withdraw his Case Number 2210418/2023 & 2215062/2023 95 grievance appeal, in which case the matter would be closed. R17 asked C to respond by 6 November 2023.[534]On 1 November 2023, C responded by an email entitled: “Ref: AWS' aggravating misconduct in ongoing attempts to obfuscate prior written commitment to hear Formal Grievance Appeal (commitment sent almost exactly 24 hours before my dismissal; reasonably co-ordinated & with the primary intention of creating a misrepresentative paper-trail)”. C re-sent his 25 May letter and R17’s 14 June email, suggesting that it was deliberately sent 24 hours before C’s dismissal and had a different font to R17’s subsequent emails. C criticised the delay in dealing with his grievance appeal. C said that R17 discredited his claim that he was independent, because metadata of the 31 July grievance appeal meeting notes showed that they were drafted by Eversheds External Counsel and because every deadline set by R17 exactly coincided with important deadlines/events in C’s ongoing employment litigation.[535]C suggested that the decision to hear his appeal by R17 was to circumvent GDPR (data subject access request) jurisdiction. He criticised R17 for “ongoing intransigence” regarding the “unambiguous scope of [C’s] 25 May 2023 Formal Grievance Appeal”. C accused R17 of “engineer[ing] a scenario in which any lack of response could improperly form the basis of [C’s] ‘withdrawing the grievance appeal’”, lack of good faith, and so on.[536]C said that one of R1’s Employee Relations/HR was so appalled by the way R1 treated C that that HR manager, risking his career, had provided C with a considerable amount of confidential information in the form of a tip-off, which tip-off “included the fact that AWS’ Seattle Leadership had instructed “Gibson, Dunn & Crutcher LLP” in the US to ‘ghost-write’ correspondence sent to [C] in an attempt to cover-up evidence contained within [C’s] 5 January 2023 & 18 January 2023 whistleblowing protected disclosures”, which C said contradicted previous statements "Amazon.com, Inc" had made to the US ‘Securities & Exchange Commission’. C said that he “was able to corroborate & verify that part of the tip-off through an analysis of material shared (e.g. metadata, "GMT-5” timestamps, errors in job titles & inconsistent US/UK spellings) which revealed the involvement of Ms Savannah Silver, Associate Attorney, Labor & Employment, Gibson, Dunn & Crutcher LLP29 ”.[537]On 28 November 2023, R17 responded to C, repeating his request for specific grounds of appeal and specific evidence in support of these grounds, and giving C the option to close the matter by withdrawing his appeal. R17 asked C to respond by 4 December 2023.[538]C responded on the same day, attaching R17’s 14 June email and saying that C wanted R17 to address his grievance appeal exactly as R17 29 Re Ms Silver’s involvement in this matter see paragraphs 30, 43, 54 and 55 above. Case Number 2210418/2023 & 2215062/2023 96 acknowledged in his 14 June email. C complained about the delay in dealing with his grievance appeal. C accused R17 of close coordination with Ms Collidge by synchronising timings of their correspondence. C accused both of them of initiating sham investigations on the eve of C’s dismissal as being “a pernicious tactic on the part of Amazon”. C said that metadata proved that 22 May was pre-meditated as the date of his dismissal and that metadata also showed that the files created by Amanda Miller “prove[d] that the UK Employment Tribunals put a spanner in the works”.[539]C did not provide the information requested by R17.[540]On 16 January 2024, R17 emailed C saying that since R17’s attempts to obtain clarification from C as to his grounds of appeal and the supporting evidence had been unsuccessful, and in the absence of further specific engagement or directions from C, he would consider his appeal based on the excerpts of C’s 25 May letter, which related to LW’s grievance decision. R17 again invited C to pinpoint the specific extracts and supporting evidence C would want R17 to consider.[541]C did not respond.[542]R17 did not deliver any outcome of the appeal. R17 considered that the lack of engagement and directions from C made it disproportionate for R17 to work through a large volume of unstructured information to understand C’s grounds of appeal, the supporting evidence and the outcome C was seeking. Wendy Collidge’s investigation[543]Returning to the second part of the C’s 2nd grievance (see paragraphs 491- 493 above), on 16 May 2023, Ms Kelly (R15) asked Wendy Collidge (R14) to lead the second part of C’s 22 March grievance, namely his complaint about how Jo Barry investigated and handled his First grievance/ethics line complaint (see paragraphs 394-403 above).[544]On 18 May 2023, R14 emailed C to introduce herself and explain the scope of her investigation. She said that she would invite C to a grievance meeting. She accidently copied an external legal adviser, Ms Nadine Simpson-Ataha of Taylor Wessing. R14 then sent a follow-up email to C to explain that the person was copied in error and was not part of R14’s investigation.[545]R14 identified the scope of her investigation based on the concerns raised by C in his 22 March letter as follows:(a) that C's line manager, Shahr Vigder, was seeking to uncover Case Number 2210418/2023 & 2215062/2023 97 incriminating evidence to discipline him;(b) that Shahar Vigder provided misleading information to him;(c) that it was inappropriate for Amazon to have contacted the police;(d) that C had not received a 2022 performance review from Mr Vigder and the lack of mediation;(e) that C had not been invited to a meeting with Jo Barry regarding his ethics line complaint.[546]As noted above (see paragraph 444), on 25 May 2023, C sent a 10- page letter, covering several matters, one of which, C said, was “Information relevant to the Formal Grievance Investigation of Wendy Ruth Collidge (Principal HRBP) per Ms Collidge’s email of 18 May 2023”.[547]On 11 July 2023, R14 invited C to a grievance meeting scheduled for 20 July 2023. In her invitation letter, R14 explained that she was investigating those matters and that she did not consider that C’s 25 May letter raised any new points of grievance to those he had raised in his 22 March letter. R14 assured C that she was carrying out her investigation independently of any individual who had been involved in any matter C had raised. R14 said that C could be accompanied by a trade union representative or a work colleague. R14 asked C if he had any information or document related to the grievance C wanted her to consider.[548]C did not respond.[549]On 18 July 2023, R14 emailed C to check if he would be attending the grievance meeting.[550]On 19 July 2023, C responded confirming his attendance, together with his trade union representative, Mr Garelick. C asked for the meeting to be recorded as a reasonable adjustment on the basis that he finds it extremely hard to record accurate contemporaneous notes whilst also participating in the meeting. C also challenged the independence of R14’s investigation, suggesting that his forensic analysis of metadata revealed that external lawyers were involved in preparing the invitation letter. He also raised the issue of an overlap between R14’s and R17’s investigations.[551]It is R1’s policy to not permit audio recordings of disciplinary and grievance meetings. This is stated in the Grievance and Disciplinary Policies and in the templated letters used for investigations. The practice is to adjust the pace of meetings to enable the participants to take their own notes in their own time. It is open to an attending companion to take notes of the meeting. The attending HR person takes a minute of the meeting, which is then distributed to all attendees. Accordingly, R14 did not accede to C’s request to have the meeting recorded. That was explained to C at the meeting. Case Number 2210418/2023 & 2215062/2023 98[552]On 20 July 2023, there was a grievance meeting, attended by C and his trade union representative, Mr Garelick. The meeting was not productive. The meeting started with R14 asking C to agree to the confidentiality statement, which C did not respond to, instead raising various points concerning metadata of the invite letter and conflict of interest. R14 explained that she used a template to prepare the invite letter. C asked R14 for details on her dealings with the legal teams. C then began discussing the police visit to his home (see under Welfare Check above). R14 paused the meeting to confirm C’s agreement on confidentiality and not recording of the meeting. C agreed.[553]C then raised the issue of R14 being named as a respondent in the Second Claim, then moved on to talk about AI, facial recognition and torture. R14 said that she was not aware of these matters. R14 also said that she was not aware that she was a respondent in the C’s Tribunal claim.[554]R14 asked C if he would be more comfortable if another investigator were appointed in her place, since C was unable to accept R14’s assurances of her independence. C did not answer and moved on to talk about various matters, including forms of technology conspiracy, referring to torture and facial recognition. R14 said that she could not discuss these matters as they were outside the scope of her investigation and she had no knowledge or involvement in these matters.[555]Mr Garelick also mentioned Moscow and facial recognition, acknowledging that R14 could not discuss these points at the meeting. Mr Garelick suggested that appointing a different investigator, outside R1’s organisation, may help to ease the lack of trust C had in the process and in R1.[556]R14 agreed that she would consider whether a different investigator could be appointed. R14 also agreed to consider the points raised by C about the scope of the investigation, which C believed was reduced from what he had raised in his 22 March letter, and C’s request to plan future meetings in advance, suggesting 2 meetings of 90 minutes each.[557]On 31 July 2023, R14 sent C her summary notes of the meeting. In the covering email R14 said that the points he had raised at the meeting had been considered and decided that R14 should continue to be the investigator. R14 also explained that because C’s 22 March letter contained a significant amount of information, the invitation letter of 11 July simply summarised his concerns as those were understood from his 22 March letter. R14 explained that her investigation was separate from any disciplinary and other process. R14 asked C to let her know if she had misunderstood his concerns and these were not the areas that she should be investigating. R14 said that she would be scheduling another meeting. She asked C to cooperate professionally and Case Number 2210418/2023 & 2215062/2023 99 respectfully, focusing on the scope of the grievance, so that they could move forward meaningfully.[558]On 11 August 2023, R14 invited C to a second grievance meeting on 24 August 2023.[559]C did not respond.[560]C did not attend the meeting. R14 emailed C, saying that since C had not responded to the invitation and failed to attend the meeting, R14 considered that C did not wish to pursue the grievance. Accordingly, she would be closing the grievance.[561]C did not respond.
The Law
[562]The relevant legal principles the Tribunal directed itself to in deciding the claim are set out in Appendix 3.1 – The relevant law. Analysis and Conclusions[563]Considering a truly unprecedented procedural history of this case (see under Procedural history above) with 14 preliminary hearings (16 – if counting the Interim Relief Application hearing and the dispute resolution appointment), 19 witnesses, 634-page witness statements bundle, expert evidence from two experts in different fields, 12,366-page documents bundle, the list of issues running for 13 pages, 31-day listing for the final hearing, one may naturally think that it is an extraordinary complex, multifaceted and intricate claim.[564]C clearly thinks it is. In his “narrative statement” C says that “[t]he complexity of this Case genuinely appears to be without precedent in the UK Employment Tribunal system and raises broader important questions about the extent to which the UK Employment Tribunal system is adequately equipped to protect its, historically informal, processes from exploitation by multi-national corporate decision”.[565]C goes on to assert “a sham contrivance of a complexity which appears to be unprecedented in the UK Employment Tribunal system”. He says that the image below (said to be the geographic distribution of access attempts to his 19 January email – see paragraph 422 above) represents his best attempt to deconstruct it. Case Number 2210418/2023 & 2215062/2023 100[566]C says that this graph suggests coordination between three groups within Amazon:(i) A US West Coast function, which, C says, is concerned with the SEC risk aspect of his disclosure;(ii) A US East Coast function, which, C says, is concerned with the 5 January 2023 ‘Ethics Line’ complaint; and(iii) An EU Employee Relations function, which, C says, is focussed on Case 2208865/2022. C says all three were working to dismiss C for whistleblowing. C, however, does not explain how this graph shows that: (i) these groups in fact exist, (ii) they are concerned with the matters attributed to them by C, (iii) they coordinate their work, and(iv) their work was to dismiss C for making a protected disclosure. We do not find that this graph (even accepting for the sake of argument that it is indeed the geographic distribution of access attempts to C 19 January email) is sufficient evidence to show any of these matters.[567]In his judgment of 27 August 2024, dismissing C’s appeal against EJ Glennie’s judgment on the C’s IR Application, HHJ Barklem, sitting in the EAT, said (at [23]) that the bundle presented by C for the hearing contained Case Number 2210418/2023 & 2215062/2023 101 “… a number of examples in which the claimant, with the assistance of others, including someone who apparently specialises in quantum chaos theory, has formed the view that certain documents prove that there was a conspiracy within Amazon to dismiss him because of his disclosures, and to conceal that fact”.[568]“Chaos” may be one description of how C ran his claim. As our findings of fact show this also resonates with how C conducted himself during the internal disciplinary and grievance processes. It appears that his approach is to throw a vast amount of unstructured and jumbled information at the opponent or the adjudicator, refuse to engage on any request for clarification, without any restraint or second thought make serious accusations of dishonesty, fraud, fabrications and other impropriety against anyone appearing in his sight, and then, when things do not go his way, simply remove himself from the process by ignoring any attempts by others to engage with him. It is telling that this Judgment contains 52 factual findings: “C did not respond” and 19 – “C did not attend”.[569]The truth of the matter is that at its heart it is not a complex case. Nor is it an epic David v. Goliath-style battle. On the contrary, in its substance it is a quotidian and unremarkable dispute, which boils down to a simple story of an employee, involved in an on-going Tribunal litigation with his employer, taking the view that everybody on his employer’s side is conspiring to defeat him in his quest for justice. Not being able, nor willing, to separate his ongoing Tribunal litigation with his day-to-day work, the employee simply stops any engagement with his manager, colleagues and clients. Having duly received a final written warning for that, the employee then goes AWOL and refuses to re-engage with his employer, including by largely ignoring the disciplinary proceedings against him.[570]The proverbial elephant in the room, which C has been trying ever so hard to manoeuvre himself around, both during the internal disciplinary proceedings and in these Tribunal proceedings, is the simple fact of C stopping performing his contractual duties by ignoring his manager’s legitimate and reasonable instructions, not answering work related emails from his colleagues and customers, and ultimately absenting himself from work without authorisation.[571]C was dismissed for unauthorised absence. By the time of his dismissal, he accumulated 88 days of unauthorised absence (we accept Mr Waites’ evidence on that). It is remarkable that in all that extraordinary volume of evidence presented to the Tribunal, the only piece of evidence C has put forward as showing that he, as he put it, “was working throughout” was an IT record, showing him logging into the R1’s IT system on 1 February 2023 for Case Number 2210418/2023 & 2215062/2023 102 less than an hour (between 13:29 and 14:26)30 . C also maintained that his sales numbers were over 100% of the target, but (and despite being given numerous opportunities, both during the internal disciplinary process and at this Tribunal hearing), he never answered a very simple question: what was he doing on those days when he meant to be at work but, according to his employer, was not? As noted above (see paragraphs 224, 228) C simply ignored this, on any account, one of, if not the central issues in the claim.[572]The fact that rather than engaging with the real substance of the dispute, C:a. repeatedly sought to strike out the Rs’ response (he made no less than six strike out applications on various spurious grounds),b. twice sought to stop the final hearing by seeking the Tribunal’s recusal,c. appealed to the EAT the Tribunal’s 13 June case management order, asking, inter alia, the EAT to determine that a fair hearing was no longer possible,d. during the hearing made numerous wholly unnecessary and unmeritorious applications,e. challenged almost every case management direction given the Tribunal,f. initiated totally unnecessary satellite disputes over the contents of the bundle,g. continuously and without any proper grounds raised allegations of fraud, fabrication, evidence tampering and other impropriety against Rs’ lawyers, andh. finally absented himself from the proceedings and ignored all the Tribunal’s attempts to get him to re-engage, strongly indicates that C knew that the weakest part of his case lies in its merits. If one cuts through all this chaos and confusion created by C one finds very little of substance in his claim.[573]We agree with Rs’ counsel’s submission that “the complexity [C] seeks to emphasise is a chimera of the Claimant’s own making, arising out of his misreading and misrepresentation of the evidence (including the metadata evidence), and wholly speculative allegations”.[574]It is not possible to ascribe all this to C’s lack of legal knowledge or understanding of the relevant litigation procedure. C proved himself time and again to be extremely knowledgeable in intricate legal issues, very familiar with the Employment Tribunals’ procedure, impressively resourceful and capable of researching and presenting complex legal points, drawing on authorities from Magna Carta to a decision of the US District Court in Seattle issued in July this year. In support of his arguments, he quoted from 30 The timing coincides with C sending an email to Ms Vuillermoz on that day at 14:22 (15:22 CET) with respect to Ms Vuillermoz disciplinary investigation and hearing (see paragraph 378 above). Case Number 2210418/2023 & 2215062/2023 103 numerous statutes and case law, including those that are rarely cited in employment litigation31 . He presented an academic article by Professor Zuckerman on “Access to Justice for Litigants who Advance their case by Forgery and Perjury”, making his detailed observations on various approaches by the courts to fraudulent litigations, discussed in the article. In short, C is a very intelligent, knowledgeable and highly resourceful individual, who is more capable of understanding what is being put to him, articulating and defending his position.[575]Having given this general assessment of C’s claim and his conduct of this litigation, we now turn to give our conclusions on each of the issues in the claim by reference to their formulation in the List of Issues (see Appendix 1.2 – List of Issues). For brevity, we will not be reproducing the wording of the issue but refer to it by its corresponding number in the List of Issues. Detriments Issue 2(a)[576]We will deal with this issue when dealing with the complaints of “automatically” and “ordinary” unfair dismissal later in the judgment. Issues 2(b)32, 2(k) and 2(l)[577]We take them together because they all relate to the police visit to the C’s home on 11 February 2023 (see under Welfare Check above).[578]Firstly, we find as a fact that Rs did not make any unfounded allegations regarding the welfare of C’s wife and did not misrepresent to the Metropolitan Police that C’s wife was his “emergency contact”. We accept R12’s evidence on this point. Concerns about C’s wife are not mentioned in the welfare check report or in any other contemporaneous documents. C did not lead any evidence to the contrary. Therefore, in that respect the allegations in issues 2(b) and 2(l) fail on the
facts.
[579]We also find that the sole reason why the welfare check involving the police was initiated was genuine concerns by R12 and R13 for the C’s wellbeing. We accept their evidence on that point. It had nothing to do with the alleged protected acts or protected disclosures. It had nothing to do with C’s email to the Tribunal on 10 February 2023 about his pending strike out application. It is hardly surprising that, when to all R12’s and R13’s repeated 31 His 20 July application alone contained 93 case law citations. 32 In 2(b) “Suspending the Claimant on 1 March 2023” appears to be part of Issue 2(c). Accordingly, we will deal with it when discussing issue 2(c). Case Number 2210418/2023 & 2215062/2023 104 attempts to contact C (asking him if he was OK, and telling C that they were contacting him for that purpose), they received no response from C, they decided to escalate the matter to the WIM team. If they had not done that, they could have been justifiable accused of failing in their duty of care towards C.[580]We also find that the decision to request the police to visit C’s home to check on his wellbeing was not made by Rs or their internal or external lawyers, but by the WIM team, following their usual protocol. There is nothing unusual about that.[581]For completeness, we find that sending the police to do a welfare check on C was not a detriment. The check was done out of genuine and well-founded concerns for the C’s wellbeing. It had no negative consequences for C. Even if C genuinely considered it as such (and C gave no direct evidence that he did), it was unreasonable for him to do so. We find that in those circumstances no reasonable worker would or might have considered that as a detriment.[582]Finally, as we have found (see paragraph 265 above) there was no fabrication, tampering or falsification of the ‘BeXT Guidelines – Missing Employee Welfare Check’ document. It was simply a draft, which contained a footer (see paragraphs 119 - 121), which was then removed when the draft was finalised. In any event, we accept R15’s evidence that whether or not that document had been finalised by the time of the police visit to C’s home, it was the standard protocol for WIM team to contact the police and ask them to conduct a welfare check on an absent employee who was not contactable.[583]There was no falsification of “the existence/substance of a “Provision, Criterion or Practice” in order, on 6 March 2023 and 30 March 2023, to misrepresent to the Claimant the reason the Metropolitan Police were sent to his home”. Therefore, this allegation (Issue 2(k)) fails on the facts. Issue 2(c)[584]This issue contains two separate allegations:(i) suspension/improper suspension (using an incorrect template and on a factually incorrect basis) and(ii) asserting that the Claimant did not make written submissions, whilst, at the same time quoting those written submissions.[585]Taking them in reverse order, the second allegation concerns Ms. Vuillermoz’ investigation report. We have dealt with this at paragraphs 232- 234 above. For these reasons, this allegation fails on the facts.[586]With respect to the suspension/improper suspension allegation, our findings of fact are at paragraphs 383 and 387 above. It was a simple and Case Number 2210418/2023 & 2215062/2023 105 unfortunate mistake by Ms Charman of not noticing a paragraph in the template disciplinary invite letter containing the suspension wording. When she noticed the mistake she wrote to C correcting it. There was never any decision or intention to suspend C. We accept Ms Charman’s evidence on this. C cross-examined Ms Charman on her evidence. Her answers were cogent and convincing.[587]In short, the sole reason for the suspension/improper suspension was Mr Charman failing to notice the suspension paragraph in the template letter and consequently omitting to remove it from the invite letter. It was a pure and simple mistake. C’s alleged protected acts and protected disclosures had no bearing on that whatsoever.[588]For completeness, considering how the allegation is formulated in the List of Issue (“Improperly suspending the Claimant, using an incorrect template and on a factually incorrect basis,..” [emphasis added]), it is not clear what C meant by “a factually incorrect basis”, but there was no “factual basis” which was used to suspend C. Ms Charman’s mistake was not in using wrong facts in deciding to suspend C, but simply in not noticing the suspension language in the template.[589]Accordingly, this allegation fails on causation. Issue 2(d)[590]This is a very odd allegation of detriment. C alleges that Rs took steps to restrict UK availability of the Youtube video “Amazon Empire: The Rise and Reign of Jeff Bezos (full documentary) | FRONTLINE”, following the Claimant referring to that video in his protected disclosure to Mr Jassy in his email of 19 January 2023.[591]Firstly, we fail to see how this could be said to be subjecting C as a worker/employee to a detriment. The alleged restriction was not directed at C, it had no impact on his ability to do his job, his pay and benefits, or any other work conditions. C complains that this particular video clip is available for viewing by US-based users of YouTube channel, but not by UK-based users. Even if this can be considered as putting UK-based YouTube users at a disadvantage as compared to the US-based users, it is hard to see how that disadvantage could be equated with “a detriment” within the meaning of s.47B(1) or (1A) of the Employment Rights Act 1996 (“ERA”) or s.39(2)(d) of the Equality Act 2010 (“EqA”). It lies completely outside the employment field33 . We also find that C could not have reasonably regarded the unavailability of that video in the UK as putting him at any detriment. It appears that he has seen that video and, despite it not being available in the 33 See the discussion in Tiplady v City of Bradford Metropolitan District Council 2020 ICR 965, CA, at [45]. Case Number 2210418/2023 & 2215062/2023 106 UK, was able to access to it. C produced screen grabs and quotes from its content. Even if C genuinely considered that the video not being available in the UK as a detriment (and C gave no direct evidence that he did), we find that in those circumstances no reasonable worker would or might have considered that as a detriment.[592]Secondly, although C alleges that it was R1, R2, R5, R9, R10, R15 and R16 who submitted him to this detriment, he led no evidence what steps, he claims, they (or for that matter, anyone else at R1) had taken to restrict UK availability of that video. All individual respondents gave evidence that they were not involved in restricting access to the video in the UK and indeed had no knowledge of that video. C did not challenge their evidence in crossexamination on that point. We accept their evidence.[593]Thirdly, C produced a 45-page document where he analyses Frontline video availability in the US and the UK for over 1,000 programs. However, this document shows that on C’s own analysis there are many other videos, which are available for viewing in the US but not in the UK. There is nothing unusual about geographical restrictions placed on creative content by the rightsholder.[594]Furthermore, C’s analysis document shows that the video had been published in February 2020 and viewed by over 40 million people worldwide. The allegation that three years after its publication, his 19 January email caused Amazon executives to take it down in the UK (while keeping it available in the US), and to do that in retaliation to C for the sending of his email to the CEO, is fanciful.[595]Therefore, even if we are wrong on our conclusion that it was not a detriment, we find that C has failed to prove his factual case, namely that Rs took steps to restrict UK availability of the video. We also find that C has failed to present any evidence (beyond the mere fact that the video is not available in the UK), which could sensibly be said as showing any possible causal connection between the video unavailability in the UK and the alleged protected acts or protected disclosures. Therefore, this allegation too fails on the facts and on causation. Issue 2(e)[596]This allegation fails on the facts. Our findings of fact are at paragraphs 380, 381 and 408. Ms Kelly was not the author (or an author) of the investigation report of 1 March 2023. Her involvement was purely as a coordinator of various grievances and disciplinary processes. Except for asking various people to lead different processes, she took no substantive decisions with respect to any of these processes or their outcomes. She did not tell Mr Carroll to dismiss C. She did not give him the verbatim reason to Case Number 2210418/2023 & 2215062/2023 107 dismiss C. We accept her and Mr Caroll’s evidence on that. Additionally, see our findings at paragraphs 235, 236, 408, and 725. Issue 2(f)[597]This allegation too fails on the fact. As the Tribunal found in its decision not to strike out the claims against R11 and R16 (see Appendix 2.3 – Written Reasons for the decision not to strike out C’s claims against R11 and R16) Mr Walters had no involvement whatsoever in any processes or matters concerning C. Issue 2(g)[598]Our factual findings relevant to this allegation are at paragraphs 422 - 449. The attachment to the email C sent to various recipients indeed contained sensitive commercial information of R1 (see paragraph 426). C sent his email to a group email address. On his own evidence (para 76 of his narrative statement) he blind copied “multiple Amazon [employees] in [his] direct reporting line..”. Therefore, the list of recipients was wide and contained people who should not ordinarily be privy to that information. Such wide internal distribution of confidential information was in breach of the Amazon's Confidential Information and NDA Guidelines and Policy: “Amazon employees should access and use confidential information only to the extent necessary to perform their job responsibilities, and should disclose such information internally only to other employees who need to know such information to perform their job responsibilities.”[599]It was also in breach of the C’s contractual obligations to R1 under his contract of employment: “The Company, and all Amazon companies take the protection of Confidential Information very seriously. We protect our own Confidential Information and we do not solicit or use the Confidential Information belonging to third parties. This applies to all employees during the recruitment process, employment with us, and afterwards. […] As a condition of this offer of employment, we require that you sign the Amazon.com, Inc. Group Confidentiality, Non–Competition and Invention Assignment Deed.” and Confidentiality, Non-Competition and Invention Assignment Agreement: “Definition of Confidential Information The parties acknowledge that, in order to permit the Employee to successfully perform and/or continue to perform the duties associated with the Employee’s employment with the Company, it is necessary for the Company to provide the Employee with access to certain valuable proprietary information and knowledge of certain modes of business operation ("Confidential Information") which are essential to the Case Number 2210418/2023 & 2215062/2023 108 effective operation of the Company, and which give the Company a competitive advantage over other firms pursuing related business activities. In the context of this agreement, the term "Confidential Information" shall be deemed to include but not limited to: 2.1.1. the identity of and any contact lists or databases relating to the Company's business partners, customers, investors, or joint venturers, vendors or suppliers and the terms on which the Company does business with each such entity or generally; […] 2.1.6. details of any marketing, development, pre-selling or other exploitation of any intellectual property, or other rights of the Company, any proposed options or agreements to purchase, licence or otherwise exploit any intellectual property of the Company, any intellectual property which is under consideration for development by the Company, any advertising, marketing, or promotional campaign which the Company is to conduct; 2.1.8. pricing or marketing strategies developed, investigated, acquired, evaluated, modified, tested or employed by the Company, or any information related to, or that might reasonably be expected to lead to, the development of such strategies; prices and pricing strategy, discounts, mark-ups or profit margins, marketing, tenders and any price sensitive information; 2.1.9. information about the Company's plans, including, but not limited to, plans for expanding into new products or services, maturing business opportunities, business strategy, marketing plans, presentations, tenders, projects, joint ventures or acquisitions and developments; 2.1.10. financial information relating to the Company including, but not limited to, management accounts, sales forecasts, dividend forecasts, profit and loss accounts and balance sheets, draft accounts, results, profit margins and any information that would typically be included in the Company's financial statements, including, but not limited to, the amount of the Company's assets, liabilities, net worth, revenues, expenses, or net income; 2.1.11. information related to, or that might reasonably be expected to lead to, understanding the viability of selling any particular product or service via any particular vehicle such as interactive, computer-based shopping; […] 2.2. Use and Disclosure of Confidential Information 2.2.1. The Employee acknowledges that the Employee has acquired and/or will acquire Confidential Information in the course of or incidental to the Employee’s employment with the Company, that the ability of the Company to continue in business could be seriously jeopardised if such Confidential Information were to be disclosed generally and/or were to be used by the Employee or by other persons or firms to compete with the Company. Accordingly, the Employee acknowledges that the following restraints are necessary for the reasonable protection of the Company, of its business, and its partners, customers, investors, or joint venturers, vendors or suppliers and therefore agrees that: (a) the Employee shall not, directly or indirectly, at any time, during the term of the Employee’s employment with the Company or at any time thereafter, and without regard to when or for what reason, if any, such employment shall terminate, use or cause to be used any such Confidential Information in connection with any activity or business except the business of the Company, and shall not cause or facilitate the publication or disclosure of such Confidential Information to any individual, partnership, corporation, or other entity unless such disclosure has been specifically authorised in writing by the Company;”[600]Therefore, R1 has every reasonable ground to suspect that C was in breach of his confidentiality obligation and that was the sole reason why R10 was asked by the R1’s legal team to investigate this matter. All that was clearly explained to C in the invite letters (see paragraphs 430, 432). It had nothing to do with the alleged protected acts or protected disclosures. It was a logical and wholly proper step to take. This is further supported by Ms Kenyon’s evidence, which we accept.[601]Finally, in his “narrative statement” (at [115])) C misquotes what the invite letter actually says. C states [emphasis added]: Case Number 2210418/2023 & 2215062/2023 109 “[C298] On 8 March 2023, I received a letter from Nayan Gulati alleging I had breached Amazon's "Confidential Information Policy" by virtue of protected disclosures made in my "letter dated 18 January 2023 to... London Central Employment Tribunal, [in which] you requested that the response...to your tribunal claim be struck out" [C314]”[602]The invite letter says nothing of that kind. It very clearly articulates the concerns about potential breach of confidentiality by C, what that breach consists of - specific confidential information which was disseminated by C to persons who did not need to know it.[603]Therefore, even accepting, for the sake of argument, that sending of the letter was a detriment, we find that it was not on the ground that C has made the alleged protected disclosures or because of his alleged protected acts. In short, this allegation fails on causation. Issue 2(h)[604]The relevant factual findings are at paragraphs 394 - 403. We find that the reason Ms Barry did not meet with C as part of her investigation was because C made it clear to her in his 26 January email that as far as he was concerned any information Ms Barry needed to investigate his complaint had been provided to her by C on pages 5 and 6 of his strike out application of 18 January. We accept Ms Barry’s evidence on that. Furthermore, C did not ask to meet Ms Barry. C was not forthcoming or helpful with explaining his complaint, despite Ms Barry’s attempts. In the circumstances, it was understandable and logical for Ms Barry to proceed with her investigation without insisting on meeting with C. This was not on the ground of/because of his protected disclosures/acts.[605]We also find that Ms Barry’s investigation was genuine, independent and reasonable. Therefore, the allegation that the outcome of the investigation was delivered without “any proper investigation” fails on the facts.[606]Finally, we accept Ms Barry’s evidence supported by the contemporaneous documents that the reason she came to her decision was her genuine (and we add - very sensible) view that there was “nothing irregular or inappropriate with either a request from someone within the business for advice from legal, whether that is in-house or external legal counsel, or with in-house or external legal counsel providing that advice”, and there was no conflict of interest arising from that. She decided that management and HR taking legal advice (especially on matters linked to ongoing litigation) was normal and everyday practice. We agree. We find that Ms Barry not meeting C, the way she went about investigating his complaint, or her outcome had nothing to do whatsoever with the alleged protected acts or protected disclosures. Case Number 2210418/2023 & 2215062/2023 110[607]Therefore, this allegation too fails on the facts (in so far as it alleges the lack of proper investigation) and on causation.[608]Pausing here, there is a theme running through the entire C’s claim criticising Rs for taking a lot of legal advice or using legal assistance in drafting various communications to C, which he says was lawyers “ghostwriting” correspondence to him. He appears to suggest that such extensive use of legal advice/assistance should give the Tribunal proper grounds to draw adverse inferences against Rs.[609]We reject that. Firstly, we find nothing wrong or unusual in Rs taking legal advice and seeking legal help with drafting communications to C. That is what lawyers do for their clients. See also our conclusions at paragraph 251 above.[610]Secondly, we do not accept that the evidence shows that external or internal lawyers “ghost wrote” communications to C, if “ghost writing” is to be understood as the person, who sends his/her communication to C, simply signing it with his/her name, but otherwise having no input on the contents of that communication. We accept Rs’ witnesses’ evidence that although they all took legal advice, all their communications to C were theirs, in the sense containing their decisions and their reasons for making those decisions. The fact that before making such decisions they took legal advice does not deny them the agency in making such decisions. Equally, if legal advice was sought to draft the communication in clear and correct legal terms, does not mean that the communication stops being that person’s email or letter.[611]Finally, as we have found (see under Metadata expert report above) there is nothing remarkable or unusual in what metadata evidence brings to light. All that it shows is that R1’s HR staff used and shared template documents that at some point in the past had been prepared by external lawyers, whose name metadata retained as “authors” of those documents. Using templates prepared by lawyers for standard HR communications (such as disciplinary or grievance invite letters) is common in the workplace, especially in large organisations, such as R1. Issue 2(i)[612]For the same reasons as set out in our findings and conclusions on Issue 2(c) we dismiss this allegation. As we have found, the sole reason for erroneously communicating to C that he was suspended was Ms Charman’s mistake in not noticing the suspension paragraph in the template invite letter. When she realised that error, she advised C accordingly. Therefore, C was not unsuspended “so that [Rs] could accuse him of being ‘Absent Without Authorised Leave’”. He was “unsuspended” for the sole reason that he had Case Number 2210418/2023 & 2215062/2023 111 been erroneously told that he was suspended. It was not to accuse him of anything. It had nothing to do whatsoever with the alleged protected acts or protected disclosures. Issue 2(j)[613]The relevant findings of fact are at paragraphs 342-352, 404-410, 450 - 460. The facts speak for themselves. On any reasonable view there were proper and indeed compelling grounds to initiate an investigation into the C’s absence without authorised leave. This had nothing to do with the alleged protected acts or protected disclosures. This allegation fails both on the facts (in so far as C alleges the absence of “proper basis of accusing him for being absent without authorised leave”), and on causation (in so far as C alleges that the investigation commenced on the ground of/because his alleged protected acts or protected disclosures). The sole reason it was initiated was because Rs having strong evidence, showing that C was absence from work without authorisation, thus in serious breach of his employee’s duties to R1. Issue 2(m)[614]This allegation fails on the facts (see Appendix 2.3 – Written Reasons for the decision not to strike out C’s claims against R11 and R16 We also accept Mr Waite’s evidence that his investigation was independent, and that he did not know who Ms Rosen was. He did not misrepresent anything to C. Issue 2(n)[615]This allegation fails on the facts. We accept Mr Vigder’s evidence that he had not been involved in any aspects of the First Claim. As we have found above, there was nothing wrong or unusual in Mr Vigder taking legal advice with respect to his communications with C and him passing relevant information to the lawyers for that purpose.[616]We also find that Mr Vigder denying that there was any conflict of interest was solely because he genuinely (and in our view reasonably) considered that there was no such conflict of interest, and not because of any protected acts or disclosures by C. Issue 2(o)[617]This allegation too fails on the facts. Our factual findings are under the section Second disciplinary process and C’s dismissal, starting at paragraph 450 above. We find it was a genuine and properly instituted disciplinary procedure. In those circumstances, it would have been truly Case Number 2210418/2023 & 2215062/2023 112 surprising if the employer had taken no action. We find that the decision to dismiss C had not been taken before the disciplinary process was concluded (see under Issue 2(a) – Unfair dismissal/Automatically Unfair dismissal below).[618]Our findings with respect to Mr Vigil’s investigation into the C’s grievance appeal and Ms Collidge’s investigation into the C’s 2nd grievance are at paragraphs 508-542 and 543- 561 respectively. We find that these were genuine investigations. They were not pretences. They were separate to the second disciplinary process. The fact that both processes ended without a final outcome being delivered to C is solely because of C’s intransigence and his lack of engagement with entirely proper and reasonable requests by both Mr Vigil and Ms Collidge to assist with their investigations. Issue 2(p)[619]We find that the reason C was not allowed to record meetings and hearings was the application of the R1’s policy of not allowing audio recordings of meetings. The policy is clear: “Audio recordings Amazon does not allow audio recordings of meetings. Any such recording, made without the express consent of all parties, is viewed as a breach of trust.”[620]This was further supported by Ms Charman’s and Ms Collidge’s witness evidence, which we accept. It was not because or on the ground of the alleged protected acts or protected disclosures.[621]We will return later in the Judgment to this issue of not allowing recording in the context of the C’s disability discrimination complaints. Issue 2(q)[622]As noted at paragraph 260 above, we find this practice of anonymisation or pseudonymisation of employees’ names rather dubious in terms of its legal effectiveness from the GDPR/DSAR point of view, but that is not a matter that falls within our jurisdiction.[623]Equally, the second reason for this practice given by Ms Russell in her evidence, namely “to protect confidentiality” appears to us somewhat surprising. Presumably, recipients of such confidential information about an employee are meant to know that the information is about that employee, and the information is sent to them on a need-to-know basis. Therefore, it is hard to see how such anonymisation or pseudonymisation of employees’ names protects the employees’ confidentiality and from whom that protection is sought. Of course, email communications are not 100% secure, and there is also the risk of accidentally sending information to a wrong recipient. Case Number 2210418/2023 & 2215062/2023 113 However, such risks are inherent in any kind of electronic communication. In her evidence to the Tribunal, Ms Russell did not say that all email communications containing confidential information about an employee are anonymised or pseudonymised. She said that this practice is applied only in sensitive cases but did not explain further what that meant and how the sensitivity (presumably of the information contained in that email) is determined.[624]Furthermore, the two emails from Mr Vigder to Tricia Troth of HR on 17 January 2023, in which he referred to C as “the employee” was in fact Mr Vigder forwarding a string of emails, containing C’s name, and to which emails C was either a direct recipient or copied on. Therefore, to the extent these emails contained “sensitive” information about C (which is not immediately apparent from reading their contents – these appear to be business communications about customers) it is hard to see how C’s confidentiality would be protected by the forwarding email referring to him as “the employee” where the forwarded emails are not redacted or anonymised in any way to conceal C’s name.[625]The list of issues also refers to Mr Vigder’s email of 24 February 2023 to Ms Vuillermoz. However, in that email Mr Vigder does not refer to C in any way (either by name or as “the employee”). He simply forwards C’s email to him of 29 December 2022 (see paragraph 334 above) saying: “Hi Sonia, here is the email as discussed”. He did not anonymise or pseudonymise C in that correspondence in any way. Therefore, in so far as this email of 24 February is concerned, the allegation fails on the facts.[626]However, the fact that HR advised Mr Vigder not to use C’s name in correspondence is not in dispute, pursuant to the HR practice explained by Ms Russell in her evidence. It is also accepted that Mr Vigder applied that practice in his two emails of 17 January 2023 by forwarding the two email chains to Ms Troth, stating in his email: “fyi re the employee” and “Fri [sic] re the employee”.[627]The question, however, is whether it could reasonably be considered as a detriment. Rs’ counsel submits that it cannot because “[n]ot referring expressly to an employee in a communication that does not include them (each of the examples in this case) means that no personal data about the employee is created in that communication”. Mr Humphreys goes on to argue that not referring to the employee by name “does not destroy any personal data about the employee, nor does it in any way detract from their rights. There is no obligation on the employer to name the employee in those communications nor to create such data”.[628]Mr Humphreys argues that the employees’ DSAR rights are not changed (“they are entitled to personal data but if there is no personal data Case Number 2210418/2023 & 2215062/2023 114 there is no entitlement”), and in any event the issue is not whether the document names the employee but rather if it is relevant. Each of the documents are before the Tribunal in this case.[629]Whilst we accept that the documents are before the Tribunal, this goes to the issue of disclosure (with which we have dealt earlier – see under Disclosure above), however this does not answer the question of whether applying the practice of anonymisation or pseudonymisation could put an employee at a detriment.[630]We find that in general it could. Firstly, we do not accept Mr Humphreys’ argument that not referring to an employee by name in a communication means that “no personal data about the employee is created in that communication”. This appears to be wrong as a matter of law.[631]The UK GDPR defined “personal data” as [emphasis added]: “…any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.”[632]The ICO guidance state: “[..] - If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. - If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. [..]”[633]Therefore, not naming an employee in a communication does not automatically mean that the communication could not create personal data of that employee if the information relates to that employee and the employee can be identified directly or indirectly from that information and/or from other information available to the employer.[634]In this case, it cannot be argued that C could not be identified from the forwarded emails. His name is expressly stated in those emails. In the context of the forwarded emails and other information available to Ms Troth at that time about C, Mr Vigder’s reference to “the employee” was information from which C could easily be identified by Ms Troth, and as such could be C’s Case Number 2210418/2023 & 2215062/2023 115 personal data34 . In other words, Ms Troth would have been able to easily identify that in referring to “the employee” Mr Vigder was referring to C.[635]The second point, upon which we disagree with Mr Humphreys, is that the practice of not naming employees by name does not destroy any personal data about the employee, nor does it in any way detract from their rights. Whilst it is true, hence our doubtfulness as to the effectiveness of that practice from the GDPR/DSAR point of view, the issue, however, is that one of the purposes of that anonymisation/ pseudonymisation practice (as was explained to us by Ms Russell in her evidence) was to “prevent DSARs”. In other words, to make it more difficult for employees to exercise their rights to access their personal data held by R1.[636]It is also true that there is no obligation on the employer to name the employee in those communications by name, however, if the purpose of not naming the employee by name in a communication about him/her is to prevent that communication becoming disclosable pursuant to the employee’s DSAR (as we have said above, we are doubtful as to the legal effectiveness of that practice), that, in our view, is clearly putting the employee at a detriment by making it more difficult for him/her to effectively exercise their GDPR/DSAR’s rights and gain access to their personal data.[637]Having said all that, the problem for C is that on the facts of his case as we have found them, the practice was applied by Mr Vigder only twice, when, on 17 January 2023, he forwarded two emails to Ms Troth with a message: “fyi re the employee” and “Fri [sic] re the employee”. Given that C was the recipient of the forwarded emails and would have known their contents and Mr Vigder did not say anything of substance about C in his forwarding emails, except referring to C as “the employee”, it is hard to see how in those circumstances C could have reasonably believed that that has caused him any detriment. To the extent C considered Mr Vigder referring to him as “the employee” in these two emails as a detriment (and C gave no direct evidence that he did), we find that in those circumstances no reasonable worker would or might have considered that as a detriment35 .[638]Therefore, we find that this allegation fails at this hurdle.[639]For completeness, we find that the sole reason Mr Vigder referred to C as the employee in these two emails was because he was advised by HR (either Ms Russell or Ms Charman – as Ms Russell said in her evidence) not to use C’s name in communications. It was not because C’s protected acts or 34 We make no determination whether these emails as a matter of law contained C’s personal data withing the meaning of the UK GDPR. That lies outside our jurisdiction. 35 C does not allege that the very fact of forwarding these emails by Mr Vigder to Ms Troth and Ms Vuillermoz in and of itself was a detriment to him. In any event, even if he had, we would have found that it was not and it would have been unreasonable for C to consider it as such. Case Number 2210418/2023 & 2215062/2023 116 on the ground of C’s alleged protected disclosures. We accept Mr Vigder’s evidence on this.[640]We also accept Ms Russell’s evidence that this practice was widely used by HR, which she, in our view mistakenly, considered as “good HR practice” in cases, which HR considered involved “confidential or sensitive data”. Mr Humphreys submits that this evidence shows that the application of the practice was not because of a protected act/protected disclosure, but the application of a widely used practice.[641]Whilst it is true at first blush, this cannot be a complete answer on causation. On the evidence it was either Ms Russell or Ms Charman, who must have decided that the C’s case fell into the category of such HR cases involving confidential or sensitive data and therefore this practice should be applied to communications about C.[642]Neither of them (or any other Rs’ witnesses) gave any cogent evidence, explaining how that determination had been made, by whom and why (despite the Tribunal giving Mr Humphreys leave to ask Ms Russell supplemental questions on this issue). Ms Russell in her evidence said that the decision would be “typically HR”, that there were no written policy or guidance on this, that the matter would be decided on a case-by-case basis, but gave no further details about how this matter had been decided in the C’s specific case and what drew her or Ms Chapman to the conclusion that it was one of those sensitive cases that required the application of the anonymisation/pseudonymisation practice.[643]In fairness to Ms Russell, in cross-examination she did refer of her being aware that occupational health had been involved in C’s case and that there were elements that needed support from reasonable adjustment perspective, and that “we” asked not to use individual’s name. She, however, did not develop this line into any cogent and clear evidence as to how and why the decision to tell Mr Vigder not to refer to C by name was made and by whom and what it had to do with occupational health and reasonable adjustments.[644]This, however, still does not assist C in establishing the necessary causation, as the only detriment in question (if we are wrong on our primary conclusion that it is not a detriment) is Mr Vigder’s referring to C in two emails of 17 January 2023 as “the employee”, which, as we have found, he did solely because he followed that advice and not because of C’s alleged protected acts or in the ground of protected disclosures.[645]Finally, if it were suggested by C that causation is to be established by the application of the so-called Jhuti-principle (i.e. that although Mr Vigder in referring to C as “the employee” was innocent of any proscribed motivation, Case Number 2210418/2023 & 2215062/2023 117 he was “manipulated” by Ms Russell or Ms Charman to subject C to that “detriment”, who, in turn, in so manipulating Mr Vigder were influenced by C’s protected acts or his protected disclosures), the current state of the relevant case law does not support that line of argument (see Reynolds v CLFIS (UK) Ltd and ors 2015 ICR 1010, CA, for s.27EqA and Malik v Cenkos Securities plc EAT 0100/17, William v Lewisham and Greenwich NHS Trust 2024 ICR 1065, EAT for s.47B ERA36). Besides, neither Ms Russell, nor Ms Charman could be said to be “in the hierarchy of responsibility above [C]” (see Jhuti at [60]). In any event, considering our primary conclusion that C’s application of that practice did not place C at any detriment, the issue of causation is somewhat academic. Issue 2(r)[646]The relevant factual findings are at paragraphs 342-352, 404-407 and 471-472. We find that all these communications from Mr Vigder and Ms Russell were genuine attempts by them to contact C and get him engaged, which C ignored. It was not them creating “paper-trails”. We accept their evidence on that, which, in our judgment, fully withstood C’s challenge in cross-examination. This allegation fails on the facts. Issue 2(s)[647]This allegation fails on the facts. As noted above (see paragraph 265, 266) we reject C’s allegations that Rs or their legal advisers fabricated, falsified or tampered with the evidence. All these allegations are baseless and not supported by any cogent evidence. We accept Rs’ witnesses’ evidence that the meetings did take place on the dates stated in the relevant note of the meeting, the meeting notes were prepared following the relevant meeting and in the most cases shared with C. Any apparent anomalies concerning “the author” and the date stamp in the metadata of the relevant document have been unequivocally answered by the metadata expert report, which expert evidence we accept. We also reject C’s allegation that Rs’ solicitors used Mr Vigder to inappropriately obtain information from C then to be used for the purposes of defeating C’s First Claim. This is a bare allegation not supported by any cogent evidence. The fact that Mr Vigder consulted HR and legal with respect to his communications with C does not mean that Mr Vigder was “planted” by them to suss out information from C to be then used by Rs’ solicitors against C in defending the First Claim. C presented no cogent evidence to show that this what Mr Vigder was instructed to do or that the information C gave to Mr Vigder was then used against C in the First Claim. 36 We, however, accept that in First Greater Western Ltd v Moussa 2024 IRLR 697, EAT, expressed doubts about the solidity of that defence in so far as s47B(1) was concerned. Case Number 2210418/2023 & 2215062/2023 118 Issue 2(t)[648]This allegation fails on the facts too. C alleges that “Ms Addy Charman R4, copying in Mr Paddy Fitzpatrick R7, emailing the Claimant 1 March 2023, stating misleadingly that the decision to go to a disciplinary meeting had been taken independently of the investigation team”. However, C did not present in his evidence the said email from Ms Charman of 1 March 2023.[649]The Tribunal was taken to three emails sent to C on 1 March 2023 by Ms Russell (relating to welfare check), by Mr Fitzpatrick (inviting C to a disciplinary meeting), and by Vuillermoz (sending to C her investigation report). None of them say that “a disciplinary meeting had been taken independently of the investigation team”.[650]The only possible link we can make out between the allegation and the contents of these three emails is the statement in Ms Vuillermoz’s email [emphasis added]: “I have attached my investigation report and I write to inform you that you will be invited to a disciplinary hearing by an independent manager.”[651]The investigation report sent to C by Ms Vuillermoz clearly states that she found allegations against C substantiated, and it was her recommendation “to move forward to a formal disciplinary hearing to consider the allegations in accordance with Amazon’s UK Disciplinary Policy”.[652]There was nothing misleading about that. The decision to move to a formal disciplinary hearing was taken by the investigation team (Ms Vuillermoz) based on her investigation findings, the formal disciplinary decision (final written warning) was made independently by the disciplinary manager (Mr Fitzpatrick) following his review of the matter (see paragraphs 382-389). Issue 2(u)[653]It is very difficult to make any coherent sense of this allegation. C complains that Mr Fitzpatrick used “file/folder names with text strings appearing random, but bearing adjacent keys on a standard QWERTY keyboard (e.g.” fdsafdsa jklfdsa fuioxc cnmkplv”) for his letters on 1 March 2023, 6 March 2023 & 15 March 2023; to circumvent GDPR DSAR &/or to obstruct then ongoing legal proceedings”.[654]Firstly, Mr Fitzpatrick gave evidence that he did not use those file/folder names to circumvent GDPR DSAR and/or to obstruct then ongoing legal proceedings. He said we was not even aware of ongoing legal proceedings. We accept his evidence. Therefore, this allegation fails on the facts. Case Number 2210418/2023 & 2215062/2023 119[655]Furthermore, these three letters were sent to C at that time. C does not dispute receiving them. Therefore, we cannot see how C could have reasonably believed that he was being put at any detriment by whatever name was used to save these files/folders, containing these documents, on the R1’s server. Even if C believed that using these file names was somehow detrimental to him (and C gave no direct evidence that he did), we find that no reasonable worker would or might have considered that as a detriment. Issue 2(v)[656]This allegation should have been withdrawn by C, as he was invited to do by Rs’ counsel and asked by the Tribunal to clarify his position. C obfuscated and did not give any coherent answer.[657]The allegation reads: “v. Using Mr Nayan Gulati to send a letter on 9 March 2023 drafted by Carolyn Kenyon and Savannah Silver, to conceal their involvement (& violation of s27 EqA 2010 & s43J ERA 1996)”.[658]At the 6 th PH EJ Brown ordered that: “Ms Kenyon shall be removed from Issue 2(v) List of Issues”. EJ Brown recorded in her 16 June 2024 Judgment (see paragraph 36 above) at [112, 113] [emphasis added]: “112. The issue relates to a letter written by Mr Gulati, an HR Partner, to the Claimant dated 8 March 2023, inviting the Claimant to attend an investigatory meeting, with Ms Kenyon and Mr Gulati, on 15 March 2023. The letter is also expressly sent on her behalf. 113. The Claimant conceded that Ms Kenyon should be removed from the allegation”.[659]At the 11th PH (see paragraph 54) all allegations and complaints against Ms Silver were struck out. In striking out the claim against Ms Silver, EJ Brown recorded: “Ms Silver is not “SilverS”: she had no involvement in the drafting of the letter; she had not advised on the Claimant’s employment; she had never heard of the Claimant prior to being served with proceedings…” (see paragraph 55 above).[660]It is therefore crystal clear that there was no concealment of Ms Kenyon’s involvement, because the letter was expressly sent on her behalf, nor Ms Silver’s involvement, because as EJ Brown found she “had no involvement in the drafting of the letter”.[661]Therefore, this allegation was doomed to fail on these established and incontrovertible facts, as it does. Yet C chose to continue to pursue it without giving any cogent evidence or other explanations on what possible basis he could succeed on it. We find that after the claim against Ms Silver had been struck out, this part of the C’s claim had no reasonable prospect of success. Issue 2(w) Case Number 2210418/2023 & 2215062/2023 120[662]Our findings of fact on this issue are at paragraphs 382-393. This allegation fails on the facts. We find that C was given adequate warning of the meeting, he was given adequate time to respond to the allegations, all relevant evidence (including C submissions to Ms Vuillermoz as part of her report) were duly considered by Mr Fitzpatrick before arriving at his decision to issue C a final written warning. The fact of the matter is that C simply ignored the whole process. It is hypocritical for him to complain about the alleged inadequacies of the process, which he demonstratively ignored despite the repeated attempts to get him engaged. Issue 2(x)[663]We reject this allegation. Our findings of fact speak for themselves. In our judgment all concerns raised by C in his 22 March 2023 had been adequately investigated by various people, despite C not being forthcoming with information and often obstructive in the process. The decisions they have reached following their respective investigations, in our judgment, were logical, reasoned and reasonable, and grounded on the evidence before them. If C considers that the investigations were inadequate and failed to deal with some important aspects of his 22 March 2023 letter, he has only himself to blame for that. He was asked repeatedly by each of the respective investigators to clarify his concerns, to confirm that they have understood them correctly, to provide any further information and document he wanted the investigator to consider. C ignored all these requests, instead confusing the matters further by raising irrelevant issues or mounting procedural challenges to the investigation processes without engaging in the substance of what was being investigated. See also our findings and conclusions on Issue 2(o).[664]This allegation too fails on the facts. Issue 2(y)[665]We reject this allegation. We find that the deadlines set by Ms Kenyon, Mr Hillard and Mr Fitzpatrick in their respective processes for C to supply evidence/submissions or appeal the decision had nothing to do with C’s ongoing litigation with R1, and also had nothing to do with the C’s alleged protected acts or protected disclosures. These deadlines came out of the R1’s disciplinary policy and usual procedures of setting up relevant meetings.[666]In any event, with respect of the first 2 deadlines, inviting C to investigation meetings, in each case C was given the opportunity to ask to rearrange the meeting to a later date. Furthermore, each of these invite letters were the second invites to a meeting, because C had failed to attend (or request a postponement of) the first meeting. Nevertheless, the second invite Case Number 2210418/2023 & 2215062/2023 121 letters still gave C the option to ask for the meeting to be rearranged to a later date (see paragraphs 429-434 and 451- 456).[667]The 7-day deadline to appeal Mr Fitzpatrick’s disciplinary decision comes straight from the R1’s disciplinary policy: “You have the right to appeal against a disciplinary decision. During the appeal process, any disciplinary action imposed will be reviewed. You must submit a written appeal request to your manager and HR representative within 7 calendar days of receiving the disciplinary decision.”[668]C did appeal the decision within the specified time frame.[669]Therefore, this allegation fails on the facts, because we find that the deadlines set were not “in an attempt to deliberately disrupt the Claimant’s preparations for a Tribunal Preliminary Hearing on 4 April 2023”. It also fails on causation, because we find that setting these deadlines had nothing to do with C’s alleged protected acts or protected disclosures but born out of the R1’s disciplinary procedure and usual processes of arranging meetings. Finally, it fails because we find that setting these deadlines was not a detriment to C. With respect to the first two deadlines, C has failed to respond to the invitation to have the meeting rearranged for a later date (made twice to him), with respect to the appeal deadline, he submitted his appeal within the specified time frame. Therefore, in these circumstances C could not have reasonably believed that was a detriment. Even if C genuinely believed being given these deadlines as putting him at a detriment (and C gave no direct evidence that he did), we find that in the circumstances no reasonable worker would or might have considered that as a detriment. Issue 2(z)[670]This allegation fails on the facts. C withdrew his claims against Mr Hammerton, following the Tribunal’s indication that it considered striking them out as having no reasonable prospect of success (see paragraphs 100-104, 108, 109 above). We record our factual finding that Mr Hammerton did not write Mr Hillyard’s letter of 30 March 2023. It was Mr Hilliard, who wrote that letter.[671]We also find that the investigation outcome was not perverse. In fact, it is hard to see how on the evidence available to Mr Hillyard he could have come to any other conclusion.[672]Finally, the Excel document (the IT log in report) was not “proving that the Claimant was working throughout”. It showed quite the opposite (see paragraph 571 above). It was duly considered by Mr Hillard in coming to his[673]With respect to Mr Hilliard not considering C’s 22 March 2023 letter, that is true. However, we find that the sole reason for that was because the letter arrived after the 16 March deadline set by Mr Hilliard in his 14 March invite letter to the re-scheduled investigation meeting. It had nothing to do with the C’s alleged protected acts or protected disclosures.[674]Furthermore, although the 22 March letter was not considered by Mr Hilliard as part of his disciplinary investigation, it was considered by Mr Carroll as part of the formal disciplinary process against C. We accept Mr Carroll’s evidence on this. Mr Carroll found nothing in the 22 March letter that dealt with the allegations of unauthorised absence. Having read that letter ourselves – we agree. For these reasons, we find that Mr Hilliard not considering the 22 March letter as part of his investigation was not a detriment to C. Knowing that his 22 March letter did not provide any answers to the allegations of unauthorised absence, and that the disciplinary manager (Mr Carroll) did consider the letter before deciding to dismiss him, C could not have reasonably considered that Mr Hilliard not considering the 22 March letter as a detriment. Even if C genuinely considered that as such (and C gave no direct evidence that he did), we find that in those circumstances no reasonable worker would or might have considered that as a detriment. Issue 2(aa)[675]This allegation fails on the facts. We find that Ms Demiral did not deliberately delay responding to C’s letter of 22 March 2023 until 5 April 2023, the day after a preliminary hearing in the C’s First Claim on 4 April 2023.[676]Firstly, we find that considering the length and convoluted content of the C’s 22 March letter, two weeks to respond to it cannot be sensibly said to be “a delay”, especially when Ms Demiral sought legal advice about the letter, which she was perfectly entitled to do. Furthermore, Ms Demiral acknowledged C’s letter on 29 March, explaining that C would receive a substantive response shortly.[677]Secondly, we accept Ms Demiral evidence that she did not deliberately delay her response and that she did not know that there was a preliminary hearing in the First Claim on 4 April 2023.[678]Finally, we cannot see how C receiving the email from Ms Demiral, clearly outlining different processes that had been initiated to deal with all C’s concerns, as expressed in his 22 March letter, could have reasonably been considered by C as a detriment. Even if C genuinely considered it as such (and C gave no direct evidence that he did), we find that in the circumstances no reasonable worker would or might have considered that as a detriment. Case Number 2210418/2023 & 2215062/2023 123 Issue 2(bb)[679]This allegation is hopeless. It’s hard to make head or tail of it. It fails on the facts. As we have said before, our firm findings are that there was no falsification, fabrication, tampering or other improper manipulation with respect to any documents before this Tribunal. There was no concealment of metadata. There was no coordination with intention to dismiss C. On which paper format (A4 or US letter) Rs wrote their various letters to C is wholly irrelevant. It is also wholly irrelevant whether some words in those letters were spelled with “z” (C says as indicating an American author) or “s” (British spelling). What is relevant is the content of those letters.[680]In support of his case on fabrication/manipulation, C produced these two graphs: Case Number 2210418/2023 & 2215062/2023 124[681]C says they show: “Computational geometry analysis of 21,039 alphanumeric characters calculated the combined probability (accounting for word choice impact) that Mr Carroll’s WS was printed/signed /scanned on US Letter paper the n digitally resized to A4 as 74.2% (95% CI: 73.6% - 74.8%)”.[682]We do not accept that these graphs and heatmaps show there was any falsification, fabrication, tampering or other improper manipulation with respect to any documents before this Tribunal. We also find them of no relevance to any other issues in the claim. Issue 2(cc)[683]The relevant findings of fact are at paragraphs 390-393. This allegation too fails on the facts. We find that there was no unreasonable delay in sending the appeal hearing invite letter. Firstly, C’s letter of 22 March was lengthy and convoluted. It took some time for Ms Demiral to identify and separate the concerns C was raising in that letter and place them within the relevant process, each to be run by a different manager and HR. She responded to C on 5 April 2023. As we have found, it was within a reasonable period to send her response.[684]Only after that Mr Driskell was asked by Ms Kelly to conduct the appeal. He was sent the C’s 22 March letter, the investigation report of Mr Hilliard, the disciplinary hearing notes of Mr Fitzpatrick, the disciplinary Case Number 2210418/2023 & 2215062/2023 125 hearing outcome letter. It would have taken him some time to work through these documents.[685]Considering the long Easter weekend 7 – 10 April 2023 and that Mr Driskell, as the Director, UK and Ireland (Small/Medium Business) Sales, would have had other work related matters to attend to, in addition to reading into the C’s appeal, 24 April 2023 as the date when he was ready to invite C to hear his appeal, does not strike us as an unreasonably long period.[686]We also do not find that the 2-day notice given to C to attend the meeting was unreasonably short. C had set out his appeal in his 22 March letter, in that sense he had already done the necessary preparatory work. In any event the invite letter and Ms Millett’s covering email gave C the option to ask for the meeting to be re-arranged for a later date.[687]C also complains about 4 emails sent to him by Ms Millett on 24 April. However, he did not present to the Tribunal the evidence of these emails. We have not seen any emails from Ms Millett to C of that date, except for her email, attaching the appeal meeting invitation letter.[688]We also accept Rs’ witnesses’ evidence that the 2-day notice is the standard starting point at R1 for arranging disciplinary/grievance meetings. However, the disciplinary policy expressly allows for meetings to be rearranged upon the employee’s request: “You must take all reasonable steps to go to any disciplinary hearing. If you or your companion are unable to go to the hearing for good reason, inform your manager as soon as possible. The manager will try to rearrange the hearing. You can propose another date if it is reasonable and not more than 5 working days after the original date. This 5-day limit can be extended by mutual agreement. If you fail to go to a rearranged hearing, Amazon may decide to hold the hearing in your absence and come to a decision based on the evidence available.”[689]Accordingly, this allegation must also fail on causation. We find the only reason C was given 2-day notice of the hearing was because of R1’s standard practice and had nothing to do with his alleged protected acts or protected disclosures.[690]Finally, since C did not attend the appeal meeting, and subsequently emailed Mr Driskell, asking him to consider C’s appeal on the papers, which Mr Driskell duly did, we cannot see how C could have reasonably considered any of the matters C complains about in this Issue 2(cc) as putting him at any detriment. To the extent C genuinely considered them as detriments, (and C gave no direct evidence that he did), we find that in those circumstances no reasonable worker would or might have considered them as detriments. Case Number 2210418/2023 & 2215062/2023 126 Issue 2(dd)[691]This application fails both on the facts and as a matter of causation. Firstly, we reject C’s allegation that his grievance has been mischaracterised. As we have found, the concerns raised by C in his 20 March letter were very wide and the way he raised them was convoluted and not easy to follow. Nevertheless, Ms Demiral, having diligently worked through the letter, has, in our view, correctly identified different and separate strands and assigned them to different investigation processes and the appeal (see paragraphs 461-472). All these matters then proceeded to be investigated by different managers. Some of these processes ran concurrently, but all were independent of each other.[692]Our conclusions on Issue 2(o) and Issue 2(x) equally apply to this issue. For the same reasons we reject C’s allegations that the investigators have failed to address the majority of the allegations or dismissed C’s grievances unreasonably. In our judgment, all decisions taken by the respective Rs and Mr Waite in those processes were very sensible, logical, well-reasoned, and supported by the evidence they had before them. As we have said earlier, if C was dissatisfied with the way his grievance had been dealt with, he has only himself to blame for his recalcitrant attitude.[693]We also find that the C’s alleged protected acts or protected disclosures had nothing to do with the way Rs handled C’s 22 March grievance. The reason for their actions was them following R1’s relevant policies and practice and, indeed, applying common sense in seeking to deal with many problems they faced in those processes, which problems were all of C’s making, namely his extraordinary lack of engagement in the processes, the lack of clarity in his complaints and the outcome sought, and his steadfast refusal to engage in a sensible way with the processes, not least to bring some clarity to his complaints. Issue 2(ee)[694]This allegation too fails on the facts and as a matter of causation. As we have found with respect to Issue 2(y), none of these deadlines had anything to do with C’s ongoing Tribunal litigation. They were born out of R1’s disciplinary and grievance policies and practice. We accept Mr Carroll’s evidence that he did not know of the C’s ongoing Tribunal litigation at that time.[695]Furthermore, four out of the five deadlines C complains about: - “Deadline of 1700hrs on 23 May 2023 set by Ms Jodie Tinsley in an email of 22 May 2023 as the deadline to confirm attendance/companion at an alleged disciplinary hearing); Deadline of 1300hrs on 24 May 2023 (set by Mr Joe Carroll [R3] in a letter of 22 May 2023 as the time of an alleged disciplinary hearing); Deadline of 1700hrs on 25 May 2023 (set by Ms Jodie Tinsley in an email of 23 May 2023 as the deadline to confirm attendance/companion at an alleged rescheduled disciplinary hearing); Deadline Case Number 2210418/2023 & 2215062/2023 127 of 1430hrs on 30 May 2023 (set by Mr Joe Carroll [R3] in a letter of 23 May 2023 as the time of an alleged rescheduled disciplinary hearing all relate to the same disciplinary meeting with Mr Carroll, who C himself asked to rearrange for “early next week” (see paragraphs 473-485), and which C still failed to attend.[696]The final deadline (Deadline of 25 May 2023 (set by Mr Luke Waite in a letter of 18 May 2023 as the “7 calendar days” in which to appeal what was then alleged to be a grievance outcome dated 18 May 2023) is the product of the R1’s grievance policy: “You may appeal the decision taken by Amazon following your grievance meeting. If you wish to appeal the decision, you must do so in writing within 7 calendar days from the date of the letter notifying you of the grievance outcome, clearly setting out the reasons for your appeal. If you are unable to appeal within the 7-day timeframe, we will consider your extenuating circumstances and take a decision on whether to hear your appeal.”[697]We also accept Mr Waite’s evidence that it was the sole reason the 7- day deadline was given to C.[698]Therefore, this allegation fails because we find that, as a matter of fact, these deadlines were not set “in an attempt deliberately to disrupt the Claimant’s preparations for a Tribunal Preliminary Hearing”. It also fails as a matter of causation, because we find that the sole reason for setting these deadlines was Rs and Mr Waite following the R1’s disciplinary and grievance policies, the standard practice for arranging meetings and responding to C’s request to rearrange the disciplinary meeting for “early next week.” C’s alleged protected acts or protected disclosures played no part in that whatsoever.[699]Finally, all these communications provided C with relevant information about the two processes he was involved in, telling him by which time he needed to take a particular step in that process (confirm his attendance of a meeting or ask for it be rearranged, attend the disciplinary meeting, and when he needed present his appeal against Luke Waite’s grievance outcome decision). All that information was for C’s benefit. Therefore, we do not accept that setting these deadlines could reasonably be considered by C as putting him at a detriment. To the extent C genuinely considered them as such (and C gave no direct evidence that he did), we find that in the circumstances no reasonable worker would or might have considered the setting of these deadlines as a detriment. Issue 2(ff)[700]This allegation fails on the facts. C complains about four emails sent to him by various people on 26 April 2023: Case Number 2210418/2023 & 2215062/2023 128 - “at 1652hrs on 24 April 2023. An email from Mr Luke Waite in relation to an alleged grievance process; at 1656hrs on 24 April 2023. - An email from Mr Shahar Vigder (R13) allegedly in relation to the Claimant's performance review & compensation increase; - at 1657hrs on 24 April 2023. An email from Mr Luke Waite - a calendar invitation in relation to an alleged grievance hearing to take place on 27 April 2023 at 1100hrs; - at 1718hrs on 24 April 2023. An email from Ms Amanda Millett in relation to an alleged disciplinary appeal process”.[701]C alleges that these emails were sent to him within the space of 26 minutes “with the intention of creating an impression of fair processes which, in fact were a sham”. We reject that.[702]Firstly, as we have found, none of the processes involving C were a “sham”. They were genuine and correct processes run by Rs37 and Mr Waite. Therefore, in sending these emails Rs and Mr Waite simply followed the relevant process. They were not creating any impression. In that sense, the allegation fails on the facts.[703]Furthermore, as with respect to the earlier issue, we find that C’s alleged protected acts or protected disclosures had nothing to do with Rs and Mr Waite sending these emails. The sole reason for these emails being sent to C was the relevant senders following the relevant process. The fact that all these emails were sent on the same date simply speaks to the fact that there were several ongoing processes running in parallel. There is nothing odd about that. Furthermore, the first and the third emails from Mr Waite are about the same grievance meeting. It is hardly surprising that, having invited C to that meeting, a few minutes later Mr Waite followed up with an Outlook calendar invitation to that meeting.[704]Finally, with respect to the fourth email from Ms Millett, on behalf of Mr Driskell, we refer to our findings and conclusions with respect to Issue 2(cc) above. There C complained that it took Mr Driskell too long to invite him to the appeal meeting. Here C complains that 24 April was a wrong date for him to be sent the invitation letter. It is hard to understand whether C complains about the invitation being sent too late or too soon, or simply on a “wrong date”.[705]For completeness, we also find that sending of any of these emails on 24 April 2023 could not amount to a detriment. If C genuinely considered that sending these emails was to his detriment (and C gave no direct evidence that he did), it was unreasonable for him to do so. We find that in the circumstances no reasonable worker would or might have considered the sending of these emails as a detriment. 37 We have not been referred to the second email complained of, from Mr Vigder, but C gave evidence at the hearing that he had a positive review and was awarded a pay increase. We, therefore, cannot see how it could be said to be a sham process. Case Number 2210418/2023 & 2215062/2023 129 Issue 2(gg)[706]This allegation fails on the facts. The investigation meeting was not fabricated. We find that it did take place between Mr Carroll and Mr Vigder. We accept their evidence on that.[707]The fact that the typed-up notes of the meeting were prepared after the meeting, on 8 June 2023, is not sufficient evidence to prove (as C alleges) that the meeting did not take place at all. There is nothing unusual of meeting notes being typed up after the meeting. We also accept Mr Carroll’s and Mr Vigder’s evidence that the typed-up note accurately reflect the content of their meeting.[708]We considered that Mr Carroll’s evidence about that meeting with Mr Vigder was not as clear as one would have hoped, concerning the format (in person or video), the duration, and whether or not Jodie Tinsley of HR was in attendance. However, both Mr Carroll and Mr Vigder were very clear and firm in their evidence that they had had that meeting. Considering that, at the time of giving his evidence to the Tribunal, more than 2 years had passed since that meeting, and the meeting itself lasted only a few minutes, it is not that surprising that some of the details of that meeting have faded in Mr Carroll’s memory. In short, on the balance of probabilities, we are satisfied that the meeting did take place, Ms Tinsley was in attendance as a note taker, and she subsequently produced a typed-up note of the meeting. Therefore, the allegation of the meeting (or the notes of it) being fabricated38 fails on the facts. Issue 2(hh)[709]This allegation fails on the facts. We find that Ms Kenyon did not delay providing her investigation outcome to deter C from making an application for interim relief. We accept Ms Kenyon’s evidence that she did not know what an application for interim relief was and was not involved in the decision to dismiss C. In any event, until the IR Application was made by C on 20 June 2023, neither Ms Kenyon, nor anyone else at Rs could have known that C was planning to make his IR application.[710]We also accept Ms Kenyon’s evidence as to why it took her until 19 June 2023 to send her outcome. Considering the breadth and lack of clarity in the C’s allegations and the difficulties Ms Kenyon had with getting C engaged in the process (see our findings at paragraphs 435-449) it is hardly 38 In cross-examination C was asked to clarify what he meant by “fabricated an ‘Investigation Meeting’ – i.e. whether it was the allegation that the meeting did not take place at all, or that the notes of the meeting did not reflect what had happened at that meeting. C did not clarify this. We, therefore, proceeded to consider this allegation as covering both alternatives. Case Number 2210418/2023 & 2215062/2023 130 surprising that Ms Kenyon needed all that time to investigate the matter and deliver her outcome. Furthermore, we accept her evidence that she was pulled into running a very significant redundancy process until the end of June, which took majority of her time.[711]We also reject the C’s allegation that the outcome of Ms Kenyon’s investigation was “unreasonable and perverse” and “contradicted by the evidence [C] had included in the disclosure itself about a senior civil servant’s comments about facial recognition”. We find Ms Kenyon’s investigation was reasonable. She considered all the evidence presented by C. Her conclusions are logical, well-reasoned, and supported by the evidence she had. There is nothing perverse or unreasonable about them. C might disagree with Ms Kenyon’s conclusions, this, however, does not make them wrong, let alone unreasonable or perverse. Allegations relating to Mr Vigil (R17)[712]The allegations C pursues against R17 are in Appendix 1.3 – Allegations against R17. The relevant factual findings are at paragraphs 508 - 542. Allegation a(i)[713]This allegation fails on the facts. We find that Mr Vigil did not “pretend[.] to be unaware” of the scope of his investigation”. He reasonably and properly sought clarifications from C about the grounds of his appeal and relevant supporting evidence. C did not engage with this, other than sending a large volume of unstructured and confusing materials. Allegation a(ii)[714]This allegation fails because we accept Mr Vigil evidence that he often copies his emails to his work email address. On this occasion, he accidentally copied it to his personal Gmail address. It happened only once (email of 28 July 2023). This had nothing to do with the C’s alleged protected acts or protected disclosures. We cannot see how Mr Vigil copying his email to C to his (Mr Vigil’s) personal email address might be reasonably regarded by C as putting him at a detriment. If C genuinely considered it as such, we find in the circumstances no reasonable worker would or might have considered that to a detriment. Allegation a(iii)[715]This allegation fails on the facts. We accept Mr Vigil’s evidence that he was not aware of the deadlines in the C’s Tribunal case and did not seek to disrupt C’s preparation for it. Case Number 2210418/2023 & 2215062/2023 131 Allegation b[716]This allegation too fails on the facts. As we have said earlier, we reject the C’s allegation that any of the processes conducted by Rs and Mr Waite with respect to C were a sham. All these processes were genuine and reasonable. This equally applies to the appeal process conducted by Mr Vigil. Although Mr Vigil did not conclude the process with delivering an outcome, considering C’s intransigent and unhelpful stance in responding to Mr Vigil reasonable requests to clarify his grounds of appeal and refer him to the supporting evidence, we find that it was not unreasonable for Mr Vigil not to continue with the process. Issue 2(a) – Unfair dismissal/Automatically Unfair dismissal[717]We now return to deal with remaining issue 2(a). As it overlaps with the C’s complaints of unfair dismissal (automatic under s.103A ERA and “ordinary” under s.98 ERA) our findings and conclusions on these complaints resolve this issue too. We, of course, bear in mind that the causation test is different under s.47B ERA and s.27 EqA and under ss. 98 and 103A ERA. Who decided to dismiss C?[718]We accept Mr Carroll’s evidence that the decision to dismiss C was his and his alone, and no one told him to dismiss the claimant or otherwise applied pressure on him to do so. We reject C’s allegations (at paragraph 222 of his “narrative statement”) that his “dismissal represents an unprecedented 'Iago-Jhuti' scenario combining bad-faith instigation with pretence of decisionmaker blindness. The good faith test in Jhuti is satisfied by deliberate misrepresentation not ignorance. R14’s admission, R3’s wilfully given sworn witness statement and the RACI matrix each corroborate this”.[719]C’s submission with respect to the RACI39 matrix makes no sense. C says that the paragraph in the disciplinary row/regional differences column stating: “Disciplinary hearing stage is specific to UK. Germany and Luxembourg – 2-week turnaround for a decision on termination” means that the decision to dismiss him was taken on 30 May 2023, because he was notified of it two weeks late, on 15 June 2023. Therefore, C says, it was not Mr Carroll who took that decision, as Mr Carroll’s evidence is that he took that decision after 5 June 2023.[720]C also argues that it was Ms Kelly who played a “hidden role” in orchestrating C’s dismissal and gave Mr Carroll “the verbatim reason for dismissal, which he adopted”, which C says is what Mr Carroll admitted in his 39 R1’s internal “Responsible, Accountable, Consulted & Informed - EU Region” document – a project management tool, which deals with various, responsible department, actions needed, timeframes, who should be consulted, who should be informed. Case Number 2210418/2023 & 2215062/2023 132 witness statement. We have rejected both of these allegations (see paragraphs 235,236 and 596).[721]Furthermore, there are several logic flaws in the C’s “backwards reasoning”. Just because the guidance document says that the “turnaround” on a decision on termination is two weeks, does not mean that the decision maker should wait two weeks before making her/his decision. It means that the guidance given to the decision maker is that s/he should make his/her disciplinary decision within two weeks.[722]Secondly, the two-week period should not be counted backwards, from when the decision was communicated to C, but from when Mr Carroll was asked to consider the disciplinary case against C, which was on 22 May 2023. C did not attend the scheduled disciplinary hearing, asking for it to be postponed until early the following week, which was done on his request. He did not attend the rearranged meeting on 30 May 2023.[723]Additionally, on 25 May 2023, C sent a lengthy letter, which he said contained: “Information relevant to the Disciplinary Investigation of Joe Carroll (Segment Leader, Digital Native) per Jodie Tinsley's (Principal HRBP) email & letter of 23 May 2023”. Given C’s failure to attend the rescheduled disciplinary meeting to explain his case, Mr Carroll sensibly and fairly decided that he needed to re-read his 25 May letter to see if any explanation for C’s unauthorised absence could be deduced from it. He also decided to speak with Mr Vigder, the C’s direct line manager, to hear his position on C’s absence and C’s claim that his sales performance was above 100% of his sales target. That only happened on 5 June 2023. It is only after that that Mr Carroll finally decided that the disciplinary allegations against C were substantiated, and that dismissal was the appropriate sanction.[724]Mr Carroll was somewhat unclear in his evidence as to when exactly he made that decision. In his witness statement he said that following the meeting with Mr Vigder on 5 June 2025, he “spent the next 10 days considering and writing up my outcome”. His witness statement for the interim relief hearing says that he decided on the outcome on 15 June 2023. However, we do not see that to be contradictory or otherwise significant, and certainly not enough to displace Mr Carroll’s very clear evidence that it was his and his decision alone. We accept his evidence on this. Mr Carroll also gave evidence that in writing up the disciplinary outcome letter he took legal advice. That too required some time. We see nothing wrong in Mr Carroll’s seeking legal advice and assistance with drafting the outcome letter. That does not change the position that it was his decision to dismiss C.[725]For the sake of completeness, we also reject C’s argument that Ms Collidge “admission” supports his theory of “'Iago-Jhuti' scenario”. C says that the admission is to be found in Ms Collidge saying at the grievance hearing on Case Number 2210418/2023 & 2215062/2023 133 20 July 2023 that she needed to go back to Ms Kelly as she (Ms Kelly) had been coordinating the responses to C’s claim40 . Typically for C, he plucks it out of context. That was a meeting to consider the second part of the C’s Second grievance (see paragraphs 543-561 above). It had nothing to do with C’s dismissal. By then C had already been dismissed. There was no “admission” by Ms Collidge that Ms Kelly was involved in C’s dismissal. There were several matters raised by C and Mr Garelick at the hearing, which Ms Collidge agreed to take away and consider. There was no discussion, let alone “admission”, that Ms Kelly was coordinating C’s dismissal.[726]In short, we find that the decision to dismiss C was taken by Mr Carroll. It was his and his decision alone. He was not told to dismiss C. He was not influenced or manipulated by anyone to dismiss C. Why did Mr Carroll decide to dismiss C?[727]We find that the sole reason for C’s dismissal was his conduct. The decision to dismiss C had nothing to do with the C’s alleged protected disclosures or protected acts. We find that not only C’s alleged protected disclosures was not the reason or the principal reason for C’s dismissal, we also find that the alleged protected disclosures (and protected acts) had no influence whatsoever on the decision to dismiss C. We accept Mr Carroll’s evidence on that, as plentifully supported by the contemporaneous evidence.[728]The facts as we have found them (see under C’s breaking off communications with his manager, C not engaging with work, First disciplinary process, Second disciplinary process and C’s dismissal) speak for themselves. It is not a case where an employee with a clean disciplinary record, perfect attendance and engagement with work matters gets dismissed out of the blue after making a protected disclosure or raising a discrimination complaint.[729]On the contrary, it is a case where an employee on a recently issued final written warning for failing to comply with reasonable management instructions, unprofessional behaviour towards customer and colleagues, and failure to perform his role and devote his full time, attention and abilities to his job duties, doubles down and simply disappears from work and ignores all attempts by his manager and HR to get in touch with him. He does not attend the disciplinary hearing, rescheduled at his request. He does not provide any explanations for his absence. The evidence that C was not working on those days is plenty and convincing. Mr Hilliard’s investigation 40 The meeting notes do not reflect that. However, Ms Collidge in her witness statement says that following the meeting she sent a summary to Ms Kelly. Therefore, for the sake of argument, we proceed on the basis that Ms Collidge did say at the meeting words along the line that she needed to go back to Ms Kelly because she had been coordinating various processes related to C (which is not in dispute). Case Number 2210418/2023 & 2215062/2023 134 convincingly established this as a fact. None of the materials provided by C (his 22 March and 25 May letters) give even remotely relevant information to make Mr Carroll to consider that this fact (i.e. C being absent from work without authorised leave on those days) was in doubt, or even truly challenged by C in its substance. Mr Carroll still double-checked with Mr Vigder the issue of C’s performance being over the target. In short, it is hard to imagine a more compelling case for misconduct dismissal.[730]It follows that the C’s complaint of automatically unfair dismissal under s.103A ERA fails and is dismissed. It also means that we find the allegation in Issue 2(a) fails on causation.[731]Given our conclusions that none of the allegations of subjecting C to a detriment were made out, either on the facts, or as a detriment, or on causation (or for more than one of these reasons), the issue of whether the matters relied upon by C as his protected acts and protected disclosures amount to such as a matter of law becomes somewhat academic. However, for the sake of completeness we shall deal with these issues later in the judgment. Was the decision to dismiss C fair or unfair?[732]We find that the decision to dismiss C was fair.[733]We find that Mr Carroll genuinely and reasonably believed the C was guilty of gross misconduct. As we have said, the evidence for that was compelling.[734]We find that the investigation was well within the range of reasonable responses. Although Mr Hilliard did not consider the C’s submissions in his 22 March letter, Mr Carroll did do that. He found them not answering the allegation put to C in the disciplinary process. That decision was reasonable. Furthermore, Mr Carroll gave C every opportunity to state his case. C did not attend the disciplinary meeting scheduled for that purpose. Mr Carroll considered C’s letter of 25 May, which too did not deal with the allegations of unauthorised absence. Mr Carroll did not stop there. He then spoke with Mr Vigder to deal with the specific matter concerning C’s performance. In short, all reasonable investigations steps had been taken before the decision was made.[735]The decision itself, in our judgment, was well within the range of reasonable responses. As we have said earlier, it is hard to imagine a more compelling case for misconduct dismissal.[736]We also find no procedural flaws in the process that could take the dismissal outside the range of reasonable responses. The fact that C was not Case Number 2210418/2023 & 2215062/2023 135 told until the dismissal letter that Mr Carroll spoke with Mr Vigder about C’s absence and his claim of being over 100% of his sales target does not make the process unfair. Firstly, C was not being dismissed for poor performance, but for his conduct. Therefore, C’s claim that his sales performance was over 100% of his target did not directly answer the allegation of unauthorised absence. To the extent C brought this up as his evidence of him working, Mr Carroll considered that and was satisfied based on what Mr Vigder had told him and other evidence before him that this did not show that C was in fact at work on those days.[737]C was given the right to appeal his dismissal. C decided not to do that. We reject C’s evidence that the reason for not appealing his dismissal was that it became obvious to him that the dismissal events were coordinated directly with the deadlines in his Tribunal proceedings, and it was “a sham contrivance”. If that was his reason for not challenging his dismissal, it seems rather odd that he continued to pursue his grievance with Ms Collidge and the appeal with Ms Isak well past that point.[738]C also said that “[a]n appeal would only give those perpetrators responsible an opportunity to correct errors…”. This suggests to us that in fact it was a tactical decision by C. He knew, or at any rate it should have been obvious to him, that he had no good answers to the disciplinary case against him, and any appeal would be doomed to fail and only make his already hopeless position even weaker.[739]To repeat our overall conclusion on the C’s unfair dismissal complaints. C was dismissed for a potentially fair reason, namely related to his conduct. In the circumstances, R1 acted reasonably in treating it as a sufficient reason for dismissing C. The dismissal was fair.[740]It follows that the C’s complaint of “ordinary” unfair dismissal fails and is dismissed. Wrongful Dismissal[741]We find that C was in fundamental (repudiatory) breach of his contract with R1. He absented himself from work without leave or another valid reason. He stopped performing his duties, for which he was hired by R1 and paid salary. In short, C simply abandoned his side of the work-wage bargain with R1. C’s breach went to the root of the contract. This was also an act of gross misconduct under the terms of his employment contact (see paragraphs 302 - 304).[742]R1 accepted C’s repudiatory breach by summarily dismissing him. It was perfectly entitled to do so, both in common law and under the terms of C’s contract of employment (see paragraph 305, 306). As we have found, it Case Number 2210418/2023 & 2215062/2023 136 was the reason why R1 dismissed C. R1 did not waive or acquiesce with the breach. The dismissal was not wrongful. It follows that C’s claim for wrongful dismissal/notice pay fails and is dismissed. Victimisation[743]As noted in the list of issue, C relies on the same alleged detriments for the purposes of his victimisation claim under s.27 EqA.[744]The claim fails for the reasons articulated in relation to each detriment (i.e. failed on the facts, not a detriment, failed on causation – or for more than one of these reasons).[745]We take into account that the causation language under s.27 EqA uses a different formulation (“because of”) to s.47B ERA (“on the ground that”). However, as the authorities show (see Nagarajan v London Regional Transport [1999] IRLR 572, HL and Fecitt v NHS Manchester [2012] IRLR 64 at [45]) there is no material difference in the test. In other words, if a protected act had a significant (in the sense of being more than a minor or trivial) influence on the impugned treatment, the causation test is made out.[746]We also pay regard to the burden of proof provisions in s.136 EqA. However, as the Supreme Court said in Hewage v Grampion Health Board [2012] IRLR 870 at [32]: “…it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other…”[747]In this case we have made the positive determination (where we have found that the alleged detriment took place and it amounted in law to a detriment) that the reason(s) for treatment complained of had nothing to do with the alleged protected acts, in other words the C’s protected acts in no sense whatsoever influenced the relevant decision maker.[748]Considering our conclusions on detriments and causation, as in the case of the alleged protected disclosures, the issue of whether the alleged protected acts amounted to such in law becomes academic. However, for completeness, our conclusions on this issue are as follows. Protected acts[749]C relies on 5 protected acts (see Issue 11 in the List of Issues). Rs accept that 11a, 11b, and 11e amount to protected acts. We agree. Case Number 2210418/2023 & 2215062/2023 137[750]Rs dispute that 11b and 11d are protected acts. Issue 11(b)[751]This is C’s email of 19 January, attaching his 18 January strike out application (see paragraph 422 above). In his pleadings or evidence C did not explain what part of that communication he says amounted to a protected act and what kind of protected act under s.27(2) it was. The 19 January covering email says the attached contains: “… evidence of egregious conduct by Amazon employees & legal Counsel. Including, but not limited to, current & ongoing gross violations of the “moratorium on police use of Amazon’s facial recognition technology” which Amazon publicly claimed had been imposed on 10 June 2020, following the murder of George Floyd; & subsequently “extended until further notice” on 18 May 2021”.[752]The 18 January strike out application contains C’s submissions why he says a fair trial was no longer possible by reason of R1’s alleged association with the MoJ through being a provider of Cloud platform services, as well as his criticism of Mr Vigder using lawyers for “ghost writing” his communications to C (see paragraphs 332-352 above) and Ms Skinner (R1’s Snr Employment Laywer) for: “….cross[ing] an ethical red line by impersonating a line manager (someone it should have been reasonable to be able to trust) offering to “help you [a disabled employee]...direct [medical notes]…to the appropriate support function” Thereby; misleading me in order to extract the consent Amazon’s Counsel needed to enable them to review the material in the context of it being highly relevant medical evidence to be analysed & mitigated against in line with those Solicitor’s fiduciary & SRA- regulated duties to Amazon in defence of this Employment Tribunal claim.”[753]Mr Humphreys submits that C in his criticism of Rs solicitors does not allege that “the reason for this action is because of a protected characteristic or because of the particular allegations within the Claimant’s Tribunal claim”. We agree.[754]Mr Humphreys then goes on to say: “The passages do not amount to an allegation of a contravention of the EqA and so do not fall within the scope of s.27(2) EqA. They are not a protected act”. Here, however, we disagree with Mr Humphreys.[755]S.27(2) lists 4 types of protected acts, including: “giving evidence or information in connection with proceedings under this Act” (s.27(2)(b), and “doing any other thing for the purposes of or in connection with this Act” (.s27(2)(c)). As Rs rightly accept C bringing the First Claim was a protected act, because it contains complaints under the EqA. The 18 January strike out Case Number 2210418/2023 & 2215062/2023 138 application was with respect to the R1’s defence of that claim. In the application C complains, inter alia, of Rs’ solicitors using Mr Vigder to extract information from C to be used by them to defeat his discrimination claims in those proceedings41 . Therefore, in our view, C’s making this allegation (which he supported by factual information about his interactions with Mr Vigder) was him “giving … information in connection with proceedings under this Act” [his First Claim], or, in the alternative, doing a “thing for the purposes or in connection with this Act”.[756]It follows that we find that this communication was a protected act within the meaning of s.27(2) EqA. This, however, does not advance C’s victimisation complaint any further. As we have said earlier, the complaint fails with respect of each “Unlawful Act” in the List of Issues, either on the facts, causation, not being a detriment, or for more than one of these reasons. Issue 11(d)[757]This is the C’s formal complaint to Rs’ solicitors (Taylor Wessing LLP) of 4 May 2023. In that email C complains about the Police visit to his home (see under Welfare Check above), which C alleges Rs’ solicitors were complicit in. He, however, makes no allegation that the Police visit or the alleged Rs’ solicitors’ involvement in organising it42 was in contravention of the Equality Act. We also see no other connection with the Act or the C’s First Claim. We, therefore, find that it was not a protected act. Protected disclosures[758]Before moving to deal with the C’s remaining complaints, this would be a convenient place to give our conclusions on the protected disclosures C relies upon. As noted above, given our conclusions on “whistleblowing detriments” and s.103A ERA claim, whether or not all or some of the alleged protected disclosures amounted in law to such becomes of little significance. However, since we have received Rs’ submissions on this issue we shall give our conclusions, but relatively briefly, in the interest of not unnecessarily elongating this already very long judgment. 41 We have rejected that allegation (see our conclusions on Issues 2(n) and 2(s)), however the allegation need not to be true to amount to a protected act, unless it was made in bad faith. Rs did not argue it was made in bad faith 42 We have rejected that allegation (see our conclusions on Issues 2(b), 2(k) and 2(l)), however the allegation need not to be true to amount to a protected act, unless it was made in bad faith. Rs did not argue it was made in bad faith. Case Number 2210418/2023 & 2215062/2023 139[759]C relies on 18 protected disclosures (“PIDs”), grouped into seven Group (see Appendix 1.4 – List of Alleged Protected Disclosures) 43 .[760]C in his witness statement says (at [9]): “The legal basis of each protected disclosure relied upon has been asserted. 168 – 194”. The documents at pp. 168-194 attached to C’s witness statement are a document (C says, “Extracts from Claimant’s 28 February 2024 & 10 March 2024 submissions”) setting out C’s legal arguments and a table, listing information disclosed, date, to whom it was disclosed, how, and legal obligation information tended to show was breached. The second document is C’s response of 30 May 2024 to the R’s response to the schedule of protected disclosures of 10 May 2024, which contains C’s arguments why he says Rs were wrong in their submissions (“Factual errors and Misapplication of legal tests”).[761]In his “narrative statement” C makes several assertions of him making protected disclosures on 5 January 2023 and 19 January 2023, but, as his witness statement and the documents at pp.168 – 194, it contains no other factual evidence with respect to C’s making the alleged protected disclosures. In particular, C does not give evidence that in making these disclosures he reasonably believed that he was making them in the public interest and that the information he was disclosing tended to show the relevant failing. With respect to his disclosures to third parties, he does not give evidence that at the time of making them he reasonably believed that the disclosed information and allegations were substantially true, that he was not making it for personal gain, that he reasonably believed that he would be subjected to a detriment by R1 if he made a disclosure to R1, or any evidence about other necessary conditions in s.43G(2) and 43H ERA.[762]Because C stopped giving his evidence before Rs could complete their cross-examination (see paragraphs 167-199 above), Rs’ counsel was unable to cross-examine C on these aspects of his case.[763]Pausing here to deal with one specific issue, which C raised several times during the hearing. C relies on the fact that on 29 November 2022, the Tribunal administration wrote to C stating: “You recently submitted a claim to the Employment Tribunal which consists of/includes a protected disclosure under the Employment Rights Act 1996 (otherwise known as a ‘whistleblowing’ claim), and gave your consent for HM Courts & Tribunals Service to send a copy of the form to the relevant regulator/prescribed person. I am writing to confirm that your claim has now been sent to the Equality and Human Rights Commission 43 This List was prepared by C. It differs from the list in the List of Issue. Rs raised this issue in their submissions to the Tribunal of 10 May 2024, asking C to confirm whether he relies on additional alleged PIDs in the List of Issues (“Additional Disclosures”). C responded to Rs submissions on 30 May 2024, however, without clarifying his position. Rs made their final submissions on the basis that C relies on all alleged PIDs, in his Index and additional PIDs in the List of Issues. We proceeded on the same basis in our deliberations. Case Number 2210418/2023 & 2215062/2023 140 Contact them about compliance with the requirements of legislation relating to equality and human rights. Email: whistleblowing@equalityhumanrights.com Website: www.equalityhumanrights.com/whistleblowing […] I have also written to the respondent to inform them that the regulator(s)/prescribed person(s) has/have been informed of the details of your protected disclosure” as the evidence of him making protected disclosures.[764]We reject that. In his claim form C ticked box 10.1: “If your claim consists of, or includes, a claim that you are making a protected disclosure under the Employment Rights Act 1996 (otherwise known as a ‘whistleblowing’ claim), please tick the box if you want a copy of this form, or information from it, to be forwarded on your behalf to a relevant regulator (known as a ‘prescribed person’ under the relevant legislation) by tribunal staff. (See Guidance)”. That what promoted the Tribunal’s administration to refer the claim to the Equality and Human Rights Commission (as the relevant body) and send that letter to C, confirming that. Whilst the language in the letter does refer to C’s claim “consist[ing] of/include[ing] a protected disclosure under the Employment Rights Act 1996” and “… details of your protected disclosure”, this cannot be taken as the final judicial determination that the alleged protected disclosures relied upon by C in his claim do amount in law to protected disclosures. The letter simply says that the claim “consists of/includes [a complaint of detriment/dismissal for making] a protected disclosure (otherwise known as a ‘whistleblowing’ claim)”, and a copy of the claim form has been sent to the relevant regulator (the Equality and Human Rights Commission in this case) and the respondent has been informed about that fact (i.e. that EHRC has been informed). The shorthand used in the letter might be unfortunate, but it cannot be sensibly said that it serves as the evidence that the alleged protected disclosures were in fact made, or as the Tribunal’s determination that in law they amount to protected disclosures. All these matters are for the Tribunal to evaluate and determine at the final hearing.[765]Rs’ position is that none of the C’s disclosures amounted to protected disclosures for the reasons set out in the Rs’ response of 13 May 202344 . In his closing submissions, Rs’s counsel made submissions with respect to Additional Disclosures in the List of Issues, arguing that they too were not protected disclosures.[766]We have carefully considered all the documents mentioned above and the Rs’ closing submissions. It would be disproportionate and, considering that the C’s whistleblowing complaints all failed on the facts, causation and/or detriment – unnecessary, to deal with each disclosure one by one. Our overall conclusion is that we agree with the Rs’ analysis as to why none of the 44 Rs accept that the statement in that document that SFO is not a proscribed person for the purposes of s.43F ERA was wrong but says it does not change the outcome. Case Number 2210418/2023 & 2215062/2023 141 disclosures made by C were protected disclosures. In summary, they are not protected disclosures because:a. Many of them (Group 1, 2,1, 3.2, Group 4 (except that it was copied to Rs’ lawyers), Group 6, Group 7) were not made to C’s employer and based on evidence from C (or to be more precise - the lack of) we find that C has failed to show that these disclosures met the conditions set out in ss.43G o 43H ERA,b. Disclosure 3.2 is not made by C,c. We are not satisfied that C has shown that in making the disclosures to R1 he reasonably believed that he was doing so in the public interest. In these disclosures C is essentially complaining about how he was treated. In the absence of C’s evidence that he held the belief that he was making the disclosures in the public interest and on what basis he says that belief was reasonable, we find that the content of the disclosures by itself does not demonstrate such belief or the reasonableness of it,d. With respect to disclosures 2.3, 3.1, 3.3, 3.4, 3.5, 3iii(f)45 , 4.1, 3iv(m), 3iv(n), 3iv(o), 5.1, 5.2, 6.2, 3vi(r), 3vi(s), 3vii(v) and 3vii(w) we are not satisfied that C has shown that in making these disclosures he reasonably believed that he was disclosing information tending to show the relevant failing. In these disclosures C is making various allegations but provides little factual content in support of these allegations. We have not heard from C that he believed that he was disclosing information, which he reasonably believed tended to show the relevant failing. On the face of these disclosures, we are not satisfied that they demonstrate that C held that belief and it was reasonable for him to hold it.[767]For all these reasons, we find that none of the disclosures relied upon by C were protected disclosures within the meaning of s.43A ERA. Disability discrimination[768]Moving on to deal with the remaining complaints in the claim. These are complaints of disability discrimination under the Equality Act 2010.[769]C’s disability at all material times by reason of “severe hyperkentic disorder – ADHD” is not in dispute. R1 also accept knowledge of C’s disability at the material time. 45 References in small Roman numeral are to the numbering in the List of Issues. Case Number 2210418/2023 & 2215062/2023 142 Failure to Make Reasonable Adjustments46[770]C alleged that Rs applied a provision, criterion or practice (“PCP”) of not allowing employees to make audio recordings of hearings and/or meetings. It is accepted by R1 that it had and applied that PCP (see paragraphs 551 and 619).[771]C alleges that the PCP put him at a substantial disadvantage in comparison with non-disabled persons in that: “By reason of the Claimant’s disability, he has hyper-focus and he cannot make his own notes of hearings / meetings at the same time as participating in the hearings / meetings, unlike people who do not have his disability” (Issue 28(a) in the List of Issues).[772]C does not deal with this complaint in his witness statement. In his “narrative statement” he says (at [206]): “Issue 27-30: R1's practice of not allowing employees to make audio recordings of hearings/meetings. [C209] Despite repeatedly requesting this adjustment, including on 1 February 2023, it was refused. By reason of my ADHD's impact on executive function and working memory, I have hyper-focus and cannot make notes while participating in meetings, unlike people without my disability”.[773]We find that C has failed to prove the facts to show that the PCP put him at a substantial disadvantage in comparison with non-disabled persons.[774]Firstly, his evidence to the Tribunal in cross-examination and contemporaneous documents clearly contradicts his assertion that he “cannot make notes while participating in meetings”. The evidence he gave that he took notes of his 1:1 meetings with Mr Vigder, using the Microsoft Notes system. He said these were rough notes. However, as he wrote to Mr Vigder on 29 December 2022, they were good enough for C to “…show a recent change in your questioning style during our meetings…”.[775]In the same email he said that he would [emphasis added] “need to now take a considerable amount of time away from customer facing work in the new year in order to go back through every 1:1 note since my return to work on 1st Nov 2022 and flag to you in writing every discrepancy between your email summaries and my own written notes”. This suggests that his notes were voluminous and detailed.[776]In his email to Ms Vuillermoz of 1 February 2023, C does not say that he cannot take notes, but that [emphasis added] “…it can be hard for me to transcribe accurate notes in real time given my ADHD…”. In our judgment, there is a significant difference between not able to do something (taking notes) and finding that it could be hard to do that something accurately (transcribe accurate notes). Transcribing accurate notes of a meeting while 46 There is a separate allegation of failure to make reasonable adjustments, dealt with later in the judgment. Case Number 2210418/2023 & 2215062/2023 143 talking or listening at the same time would be hard for any person, without specific training, as, for example, a stenographer.[777]If the argument (and we have not heard C’s evidence or submission on this point) that it was “substantially” harder for C to transcribe accurate notes than it would have been for a non-disabled employee in these circumstances, we are not satisfied that C has shown that on the evidence. He gave no such evidence. He did not refer us to any medical evidence in support of any such contention.[778]Furthermore, in the email of 1 February 2023 to Ms Vuillermoz C was not asking to be allowed to audio record the investigation meeting (contrary to what he says in his narrative statement) as a reasonable adjustment. In fact, he asked for “to be allowed to support your investigation in writing ..”.[779]For the same reasons we also find that on those facts Rs did not know and could not have reasonably expected to know that the PCP was likely to place C at a substantial disadvantage.[780]If we are wrong on this analysis and the duty to make reasonable adjustments arose by virtue of s.20 EqA, we find that Rs did not fail to comply with it, because they took reasonable steps to avoid the disadvantage.[781]These reasonable steps were Ms Vuillermoz offering to run the meeting “at a pace that enables you to take accurate notes and these notes will be circulated to you afterwards, so that you can review. If you do need to pause and go over a point again, or take more time to note something down, I will let you have that opportunity to do so”. C did not respond to that offer.[782]In the invitations letters to various meetings Rs consistently asked C to advise them of “.. any adjustments that would help in your attendance to this meeting so that I can make any necessary arrangements”. C largely ignored all such requests.[783]Furthermore, all C’s requests to make written submissions instead of attending the meeting were accommodated. In that sense, the relevant meetings were conducted in writing.[784]To this end, we note that the C’s suggestion (see Issue 29(b)47) of a reasonable adjustment to the PCP is [emphasis added]: “Either allowing the Claimant to record the meeting/s, or allowing the meeting to be conducted by in writing by email”. The “or” part of it was made with respect to every meeting, when requested by C. 47 Issue 29(a) is relevant to “the complaint at paragraph 13 of the first claim”, which is not before this Tribunal. Case Number 2210418/2023 & 2215062/2023 144[785]For all these reasons, this complaint of failure to make reasonable adjustments fails and is dismissed. Indirect Discrimination48 and Discrimination Arising from Disability49[786]C complains that the R1’s PCP of “Creating a “case” for any employee who is referred to Occupational Health” put disabled employees at a particular disadvantage compared to non-disabled employees by “create[ing] a negative perception of the employee, in that they are perceived to constitute a legal risk because of the proposed OH referral; and disabled employees are more likely than non-disabled employees to be referred to OH and therefore to be perceived negatively”. R1 accepts that it has this PCP.[787]C also complains that creating a case was “unfavourable treatment” for the purposes of his s.15 EqA (discrimination arising from disability) complaint, where “something arising” in consequences of C’s disability was his referral to OH.[788]C does not deal with either complaint in his witness statement. In his “narrative statement” he limits his evidence to these two paragraphs: “207. Issue 31-38: R1's practice of creating a "case" for any employee referred to Occupational Health. AGoR paragraphs 13.4 and 13.8 claim this was to "ensure that all relevant information relating to an Occupational Health referral is retained". 208. However, creating a case creates negative perception of the employee as constituting a legal risk. Disabled employees are more likely to be referred to OH and therefore more likely to be perceived negatively. In my instance this "case" file was created even before I had given consent for OH referral. It was heavily redacted when disclosed by DSAR – inconsistent with it genuinely having consisted primarily of my own medical info.”[789]Firstly, as far as this claim is concerned (as opposed to the First Claim), we saw no evidence that C was actually referred to OH. Ms Russell gave evidence (supported by contemporaneous documents) that on 9 November 2022, she wrote to C offering to refer him to OH assessment as part of his return-to-work process, and asking C to confirm certain things “before [Ms Russell] make[s] the referral”. However, C responded asking for HR support from another HR Business Partner. He did not provide the confirmation sought. He did not ask to be referred to OH.[790]On 13 April 2023, Ms Russell raised with C the question of OH referral again. C did not respond. See paragraphs 471-472 above. 48 There is a separate allegation of indirect disability discrimination, dealt with later in the judgment 49 The List of Issues suggests that these two complaints relate to the First Claim (reference to “paragraph 21 of the attachment to the first claim”), however both parties proceeded on the basis that these complaints also part of this Second Claim. We, therefore, have deal with them in so far as they relate to the events falling with the time period subject to this Second Claim (i.e. after 1 November 2022). Case Number 2210418/2023 & 2215062/2023 145[791]We heard no evidence that in the period relevant to this claim (we make no findings or determinations with respect to his First Claim) there was “a case” created for C for his referral to OH.[792]Therefore, we find that C has failed to prove his case on the facts, namely that the period relevant to this claim (we make no findings or determinations with respect to his First Claim) a case was created for him, and he was referred to OH. Consequently, he has failed to prove that the PCP was applied to him, or that it put him at a particular disadvantage. He also has failed to prove on the facts the “something arising” element for the purposes of his s.15 EqA complaint.[793]We also find that C has failed to prove on the facts the “group disadvantage” (for the purposes of his s.19 EqA complaint) and “unfavourable treatment” (for the purposes of his s.15 EqA complaint). C makes the allegation of “negative perception” because employees referred to OH “are perceived to constitute a legal risk” but gives no supporting evidence whatsoever. We reject this submission.[794]OH referrals are an everyday occurrence in the modern workplace. They are designed to help employees with medical issues and their employers to find appropriate support mechanisms and measures to enable the affected employees to successfully continue with their jobs. Disabled and non-disabled employees and their employers take advantage of that process. There is nothing “negative” about that.[795]Furthermore, we accept Ms Russell’s evidence that a case file is created “to ensure that all relevant information relating to an Occupational Health referral is retained and readily available to authorised users, and to ensure the confidentiality of that information”. We find this PCP very sensible and justifiable. It is not an “unfavourable treatment”, but the opposite. It is designed to ensure that the employee’s medical information is kept confidential and is not shared beyond people who need to have access to such information.[796]Creating a separate case file (to the employee’s regular HR file) is designed to achieve that purpose. We, therefore, find that, even if C had made good his case on the facts and convinced us that it was “unfavourable treatment” and/or “a particular disadvantage”, we would have still dismissed these complaints on the basis that creating a case file was a proportionate means of achieving a legitimate aim (s.15(1)(b) & 19(2)(d) EqA).[797]For all these reasons, these complaints of indirect disability discrimination and discrimination arising from disability fail and are dismissed. Case Number 2210418/2023 & 2215062/2023 146 Harassment related to disability[798]C alleges that he was subjected to unwanted conduct related to his disability, having the purposes or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. The conduct in question is said to be: “providing him with Ms Kenyon’s delayed and contradictory investigation report into his protected disclosures on 19 June 2023”.[799]C claims the unwanted conduct was “in that the Respondent intended thereby to cause distress and distraction to the disabled Claimant, making it harder for him to bring a claim for interim relief in the applicable short timescale” (Issue 40 on the List of Issues).[800]C also says in his “narrative statement”: “[C471] On 19 June 2023, Ms Kenyon's investigation report into my protected disclosures was provided - delayed five months with contradictory findings. The timing, two days after dismissal, was intended to cause distress and distraction, making it harder for me to bring a claim for interim relief in the applicable short timescale”.[801]This complaint fails on the facts for the same reasons as articulated in Issue 2(hh).[802]It also fails because we find that C has failed to show that the conduct complained of had the proscribed effect on him. He alleges that it “was intended to cause distress and distraction” and make harder for him to bring a claim for interim relief [emphasis added]. He, however, does not give any evidence that the conduct in fact caused him distress or distraction, or otherwise violated his dignity, or created an intimidating, hostile, degrading, humiliating or offensive environment for him, and if so - how and why.[803]Finally, the conduct in question was not related to C’s disability. There is nothing on the face of it that connects Ms Kenyon sending of her investigation report when she did to C’s (or anyone else’s) disability. C gave no evidence as to where this connection is to be found. Indirect Disability Discrimination / Failure to Make Reasonable Adjustments[804]This complaint is about Rs giving employees 48 hours’ notice of hearings and/or 48 hours to provide written responses. C complains that this PCP put employees with C’s disability at the following particular disadvantage (said to be also substantial disadvantage for the purposes of ss.20, 21 EqA complaint): “In order to comply with such short deadlines, the Claimant (and others with his disability) would be required to take breaks from his medication, which then exacerbated symptoms of his disability”. Case Number 2210418/2023 & 2215062/2023 147[805]C does not deal with this issue in his witness statement. In his narrative statement he says: “209. Issue 42-46: R1's practice of providing minimal notice for meetings (typically 48 hours or less). ADHD impacts executive function, time management, and causes 'time blindness'.210. Short-notice meetings forced rapid adjustments to medication schedules, disrupting carefully balanced treatment regimens.211. [C102] Dr Nandy had specifically advised not taking stimulant medical during weekends, yet shortnotice deadlines and meetings disrupted this medical regime.”[806]The relevant findings of fact are at paragraph 688.[807]Rs accept that their usual practice is to give employees 48 hours’ notice of a grievance/disciplinary meeting. However, it is simply a starting point, and the employees can ask to rearrange the meeting. The practice is intentionally flexible. We accept that. This is amply evidenced by the policy documents and indeed by various meetings rearranged for C.[808]In that regard, we find that C has failed to show that the PCP put him at a particular disadvantage, or that it was not adjusted to accommodate him. C says that a reasonable adjustment to remove the disadvantage would be “Giving the Claimant 5 days’ notice, rather than 2”. That is what effectively happened in practice with several of the meeting being rearranged, either at C’s request (Mr Carroll’s disciplinary meeting) or simply by reason of C not showing up for the meeting. Every meeting invitation (including for the rearranged meetings) gave C the option to ask for the meeting to be rearranged.[809]Therefore, it was not a rigid PCP of 48-hour notice, as C alleges, but a flexible practice with 48-hour notice being just the initial (starting) point, which the employee can always ask to be rearranged, and which request would be accommodated.[810]However, it is accepted by Rs that the initial invitation to a meeting would be given 48 hours before the meeting, and that would be for the employee to ask to rearrange the meeting. Does this practice (i.e. giving the initial 48-hour notice) create a particular/substantial disadvantage?[811]With respect to indirect discrimination complaint, we find that C has failed to show both a particular “group disadvantage” (he presented no evidence whatsoever on this) and how that PCP put him at that disadvantage. The only evidence he gives is that “short-notice meetings forced rapid adjustments to medication schedules, disrupting carefully balanced treatment regimens”, but gave no evidence of what “rapid adjustments to his medication schedules” he was forced to make, when and how it affected him. He does Case Number 2210418/2023 & 2215062/2023 148 not explain how these short notices disrupted his medical regime of not taking medications during weekends.[812]In short, considering the large degree of flexibility built into that PCP, which was known to C and other employees, we find that the initial 48 hours’ notice did not create “group disadvantage” for people sharing C’s disability, and did not put C at any disadvantage when compared with non-disabled employees.[813]For the same reasons we find that he has failed to show “substantial disadvantage” for the purposes of his ss.20, 21 EqA complaint.[814]Furthermore, even if we are wrong on the issue of “substantial disadvantage”, we find that Rs met their duty under s.20(2) EqA by taking reasonable steps to avoid the disadvantage by rearranging the meetings whenever C asked for it, and indeed whenever C simply failed to attend the arranged meeting without asking for it to be postponed.[815]For completeness, we also find that on those facts Rs did not know and could not have reasonably expected to know that the PCP was likely to place C at a substantial disadvantage. In his communications to Rs, C did not say that 2-day notice was placing him at a substantial disadvantage because of his disability. Whenever he asked for meetings to be rearranged for a later date that was accepted and accommodated. C did not say that he was asking for a postponement for reason of his disability, but to give him time to arrange a trade union companion (see paragraph 475). Therefore, there were no signs that could have reasonably alerted Rs to any such disadvantage.[816]Finally, we accept Rs’ submission that for the purposes of the indirect discrimination complaint the practice of 48-notice (with inbuilt flexibility) was proportionate means of achieving the legitimate aim of “ensur[ing] that internal meetings relating to disciplinary matters are conducted within a consistently reasonable time period, whilst allowing the flexibility to rearrange them in appropriate circumstance”.[817]For all these reasons these complaints fail too and are dismissed. Overall conclusion[818]These were the last complaints in the claim before this Tribunal. It follows that we find that the C’s entire claim is not well-founded. It fails and is dismissed. Time Limit/Jurisdiction Case Number 2210418/2023 & 2215062/2023 149[819]Given our decision on the merits of the claim, the time limit issue become superfluous. We, however, accept Rs’ position that anything that occurred prior to 15 June 2023 is prima facie out of time. We will give our decisions on “reasonably practicable” point and “just and equitable extension” point. However, will not deal with any “continuing act” point, as we have not received any detailed submissions on it. Therefore, we proceed on the basis that those complaints with respect to acts/failures to act that occurred before 15 June 2023 and which are not part of “a continuing act” extending to 15 June 2023 or beyond (“OOT complaints”), are prima facie out of time.[820]C gave no evidence on the time point, in particular why he says it was not reasonably practicable for him to submit his OOT complaints under the ERA before the expiry of the primary limitation period of 3 months. C is well versed in employment law and practice. At the time of submitting his Second Claim he had been running his First Claim for over 10 months. He knew all the relevant facts that were necessary for him to present his OOT complaints. He submitted his IR Application on 20 June 2023. He had access to trade union support. We, therefore, find that it was reasonably practicable for C to present his OOT complaints under the ERA within the primary limitation period of 3 months. Therefore, any such OOT complaints are time barred. Accordingly, if we had considered the time point first, before determining these complaints on their merits, we would have decided that the Tribunal does not have jurisdiction to consider them.[821]The same applies with respect to C’s OOT complaints under the EqA. C gave no evidence why, he says, it is just and equitable to extend time. We accept that this by itself does not mean that we cannot or should not extend time (see Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 (at [25]), however, the reason or the absence of a good reason for the delay is a relevant factor in deciding whether it is just and equitable to extend time (see para 19 in Abertawe). Considering:(i) relative forensic prejudice to the parties by reason of the delay and the lack of clarity in many of C’s complaints (the fact that Rs have successfully defended these complaints does not mean that the prejudice should be ignored),(ii) absence of any explanation from C for the delay,(iii) factors that led us to conclude that it was reasonably practicable for C to present his complaints under ERA within the primary limitation period,(iv) poor merits of the OOT complaints,(v) little practical impact on the C’s overall claim (his complaints related to his dismissal are in time, hence his compensation claims are not significantly compromised by not extending time for the OOT complaints) Case Number 2210418/2023 & 2215062/2023 150 we find that it is not just and equitable to extend time. Therefore, any such OOT complaints are time barred. Accordingly, if we had considered the time point first, before determining these complaints on their merits, we would have decided that the Tribunal does not have jurisdiction to consider them. Final remarks[822]Concluding this Judgment, we observe that, as can be seen from our findings and conclusions, once all the unnecessary and irrelevant distractions are removed, in its substance the claims do not amount to very much. In normal circumstances a case of this kind would be resolved in a 2-day standard track unfair dismissal hearing. Even with adding in all other heads of claim under ERA and EqA, resolving all substantive issues in such a claim ordinarily would not have required more than a 5 to 6-day final hearing and 1 preliminary hearing. Regrettably, this case took a completely different trajectory of a tortuous and very costly journey.[823]That concludes our judgment.