Mr A Semakula v Camden and Islington NHS Foundation Trust: 2211488/2022 and Others Mr A Semakula v Camden and Islington NHS Foundation Trust: 2211488/2022 and Others
EMPLOYMENT TRIBUNALS
Case No 2211488/2022
Between
Mr A SemakulaClaimantCamden and Islington NHS Foundation TrustRespondent
Before
Employment Judge SmartMiss G Crew (instructed by Counsel) for respondentDate 11 September 2025
JUDGMENT
[1]The Claimant was disabled with depression from 6 May 2022 onwards.[2]The Claimant’s grievance of 12 May 2023 amounted to an implied protected act under section 27 (2) (d) Equality Act 2010 for the purposes of bringing victimisation complaints.[3]The Respondent had knowledge of the Claimant’s disability of Long Covid from 13 October 2021 onwards.[4]The Respondent had knowledge of the Claimant’s disability of depression from 12 December 2022 onwards.[5]The Respondent’s application to strike out parts of Claim 2 because of the rule in Henderson v Henderson fails and is dismissed. There was no abuse of process committed by the Claimant in bringing those parts of his claim. 1 of 94 Sept 2023[6]The Claimant’s Claim number 2211488/2022 containing allegations of detriment under sections 15 and 39 Equality Act 2010 about unfavourable treatment because of something arising in consequence of disability fails and is dismissed.[7]The Claimant’s Claims under claim 2210783/2023 of: 7.1. Detriment under s13 and 39 Equality Act 2010 about less favourable treatment because of the Claimant’s disability(ies); and 7.2. Detriment under s15 and 39 Equality Act 2010 about unfavourable treatment because of something arising in consequence of disability; and 7.3. Victimisation under s27 and 39 Equality Act 2010; fail and are dismissed.[8]The Claimant’s claims under claim 2216131/2024 of: 8.1. Discriminatory constructive dismissal under s39 Equality Act 2010, 8.2. Constructive unfair dismissal under sections 95 and 98 Employment Rights Act 1996, are not well founded and are dismissed. The Claimant was not constructively dismissed. He resigned.
REASONS
THE EVIDENCE
[1]All key decisions made in this judgment are underlined for ease of reference.[2]We take a moment to state that during the timeline of these proceedings both the Claimant and Mr Darougar experienced bereavements. We repeat what we said at the hearing. We offer our sincere condolences to everyone affected by those bereavements.
THE HEARING
[3]The hearing did not get off to the best of starts. There was no agreed bundle. Instead, there was a Respondent bundle and a Claimant bundle.[4]There was a live application for specific disclosure from the Claimant that needed to be heard and resolved.[5]The list of issues was incomplete and needed to be clarified involving issues with both the claim and the defence.[6]This led to the parties identifying that a part of the claim clearly pleaded in the relevant Particulars of Claim presented properly to the Tribunal, had not made its way properly into the list of issues, despite there being no clear abandonment, settlement or determination of it in the procedural history. 2 of 94 Sept 2023 Specific disclosure application day 1[7]The Specific disclosure request was heard and submissions made about a zip file that had clearly been sent by email internally at the Respondent attaching a bundle of documents about the Claimant’s absences that were relevant to the claim.[8]The Respondent argued it had made reasonable attempts with its IT third party provider to get the zip file. It argued that, upon merger of two NHS trusts and the contemporaneous migration of email and other data from multiple platforms into one, some data had become corrupted and the zip file attachment was explained as being one such casualty.[9]The specific disclosure request was refused. Reasons were provided orally at the hearing and shall not be repeated here. The bundle and statements[10]At the end of day 1, the Tribunal robustly ordered the parties to produce a single indexed and paginated joint bundle of documents, and for the Claimant’s witness statement to be amended to update references to documents to correspond with the final agreed bundle.[11]The parties complied and both documents were with the Tribunal by the start of day 3 after the reading day on day 2. Medical emergency[12]Unfortunately, part way through the Claimant’s evidence on day 3, Mr. Onibokun had a medical emergency. He was visibly taken unwell during the hearing both seriously and suddenly.[13]Emergency medical assistance was sought. An ambulance was called and arrived at his home address within 10 minutes. Steps were taken to protect Mr. Onibokun’s dignity by removing unnecessary people from the video hearing room.[14]Mr. Onibokun was appropriately safeguarded and, thankfully, Mr. Onibokun was discharged from hospital the same night and continued with the hearing from day 4 onwards without any further issue.[15]We then implemented more frequent breaks every 45 minutes to assist him. Additional disclosure[16]A further application for additional documents was withdrawn by the Claimant.[17]This was about documents relevant to nurse/staff rotas. The Respondent confirmed the points the Claimant was trying to prove with the additional documents were not in dispute, hence why the Claimant reasonably withdrew it.[18]On day 4, at the start of that hearing day, the Respondent confirmed that it had heard back from its IT supplier and they had managed to un-corrupt the zip file so the documents could now be opened and read. 3 of 94 Sept 2023[19]We are unsure as to why it took so long for the IT provider to respond given this litigation had been ongoing for some time.[20]It turned out the zip file contained documentation that was mostly already within the bundle, except for a few letters and emails about organising a sickness absence meeting.[21]These documents were not disputed and both parties considered there was no need for these to go into the bundle except for one meeting invite letter, which became pages 1332 and 1333 of the bundle by consent.[22]On day 6, at the start of that hearing day, the Claimant’s representative informed the Tribunal and Respondent that the Claimant had late the night before, emailed copies of the notes taken by his RCN representative at a meeting that took place on 28 September 2022.[23]Miss Crew was allowed to take instructions and the notes were agreed to appear in the bundle, along with their covering emails by consent. THE ISSUES The issues were finalised on day three.[25]The parties had reached an impasse about the allegation of unfavourable treatment at paragraph 12 (d) (4).[26]The Claimant said this claim about a failure to provide numerous OH referrals to the Claimant before they were sent to the OH supplier to procure a consultation was already pleaded in the claim.[27]The Respondent argued that it should not be allowed to form part of the list of issues given that the list had been agreed for some time.[28]The list of issues was allowed to be amended by a unanimous decision. Reasons were given at the hearing about this decision and will not be repeated here.[29]The final list of issues is attached to this Judgment as Appendix 1. This is not the same version of the list that was presented to the Tribunal because it was still in a tracked changed state with multiple colours of type and appeared to us to be in an illogical order. We therefore re-ordered the list, corrected it where necessary and it is attached to this Judgment.[30]Because of the late agreement of the bundle and other issues between the parties that, in our view, could and should have been resolved reasonably between them by the time of the trial, it had a knock on effect about an order for the Claimant to make written outline submissions in response to the Henderson v Henderson abuse of process argument made by the Respondent.[31]We therefore waived the requirement for Mr. Onibokun to make written submissions, but he was permitted if he wished to make those submissions orally when summing up his client’s case. 4 of 94 Sept 2023 THE EVIDENCE[32]We heard witness evidence from the following people all of whom had drafted written statements and were cross examined: 32.1. The Claimant; 32.2. Mr. Hayner Harries; 32.3. Mr. Matthew Cully; 32.4. Mr. Durand Darougar; 32.5. Mrs Faye Landy.[33]We also had the agreed bundle of documents added to at various points in the hearing as described above. THE LAW - HENDERSON V HENDERSON AND ASSOCIATED ISSUES Issue estoppel[39]The conditions for the application of issue estoppel to bite, require a final decision on an issue by a court of competent jurisdiction and:(1) the issue raised in both proceedings is the same; and(2) the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised.(3) The parties can either be those directly involved or their privies.[40]Deciding if the issue is the 'same' in both cases will depend upon whether the court takes a narrow or a wide view of the extent of the issue determined in the earlier case.[41]It is now established that the question of whether the raising of an issue in subsequent proceedings amounts to an abuse of process, is one to be decided in a broad, merits based way in the light of all the circumstances.[42]Issue estoppel may arise, for example, where decisions about disputed facts are made by a Judge when determining an application for an extension of time, preventing the parties reopening the same issue in future proceedings between them Hutchison 3G UK Ltd v Francois [2009] ICR 1323, CA, at para 29. Cause of action estoppel[43]Cause of action estoppel was described by Lord Keith in Arnold v National Westminster Bank plc [1991] 2 A.C. 93 at 104 D-E: 5 of 94 Sept 2023 “Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be re-opened.”[44]In Virgin Atlantic Airways Ltd v Zodiac Seats Limited [2014] AC 160 at paragraph 26 Lord Sumpton held: “Where the existence or nonexistence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the re-litigation of identical claims.”[45]In Cure v Coutts & Co Plc [2005] I.C.R. 1098 HHJ McMullen described a cause of action at paragraph 21: “A cause of action was defined in Letang v Cooper [1965] 1 QB 232, 242g, per Diplock LJ as: “simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.” Henderson v Henderson[46]Then there is the rule in Henderson v Henderson (1843) 3 Hare 100. The Henderson rule is very old and is largely but not entirely based on public policy.[47]Lord Bingham described this rule in Johnson v Gore-Wood & Co [2002] 2 AC 1 at 31 A-F: “…Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, 6 of 94 Sept 2023 merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not….” and “…While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct isn't abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent the rule has in my view a valuable part to play in protecting the interests of justice.”[48]The policy reasons behind it are summarised in the same case at paragraph 6H: “One of the main reasons for the rule in Henderson v Henderson is the prevention of the risk that different courts seized of different actions dealing with the same subject matter and raising the same issues will come to different conclusions. This would be unfair to the parties, particularly to an initially successful party who fails in a subsequent proceeding, and likely to bring the administration of justice into disrepute.”[49]Additionally, Henderson abuse of process is open for matters that have not already been decided and is therefore separate from cause of action and issue estoppel. Lord Bingham said at paragraph 23 D – E: “thus the abuse in question need not involve the reopening of a matter already decided in proceedings between the same parties, as where a party is estopped in law from seeking to relitigate a cause of action or an issue already decided in earlier proceedings, but, as Somervell LJ put it in Greenhalgh v Mallard [1947] 2 All ER 255, 257, may cover “issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of process of the court to allow a new proceeding to be started in respect of them.”[50]Taking all the above into account, it is also clear because of the use of the word “parties” rather than Claimant or plaintiff when considering the rule, or use of the word “matter” rather than claim, writ or action when discussing being twice vexed, that the Henderson rule applies equally to both Claimant’s bringing the claim and/or Respondent’s bringing the defence. Admittedly, it is much more common for this issue to arise about claims being issued than defences to them, but it is equally incumbent on both parties to a litigation to bring forward their whole case whether it be in making a claim or defending it. This is specifically mentioned n the passage quoted above, we repeat it this time with our emphasis added “…The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging 7 of 94 Sept 2023 abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.[51]This rule has most recently been revisited in the Employment Tribunal in Home Office v Oxley [2024] EAT 44. In that case HHJ Tayler helpful summarised the applicable authorities and tests. I repeat some of those relevant to this case and more generally below.[52]In Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners [2022] AC 1 Lord Hodge held: “76. From these authorities it is clear that for the court to uphold a plea of abuse of process as a bar to a claim or a defence it must be satisfied that the party in question is misusing or abusing the process of the court by oppressing the other party by repeated challenges relating to the same subject matter. It is not sufficient to establish abuse of process for a party to show that a challenge could have been raised in a prior litigation or at an earlier stage in the same proceedings. It must be shown both that the challenge should have been raised on that earlier occasion and that the later raising of the challenge is abusive.”[53]In Moorjani & Ors v Durban Estates Ltd [2019] EWHC 1229 (TCC), Mr Justice Pepperall summarised the situation at paragraph 17.4: “17.4 Even if the cause of action is different, the second action may nevertheless be struck out as an abuse under the rule in Henderson v. Henderson where the claim in the second action should have been raised in the earlier proceedings if it was to be raised at all. In considering such an application: a) The onus is upon the applicant to establish abuse. b) The mere fact that the Claimant could with reasonable diligence have taken the new point in the first action does not necessarily mean that the second action is abusive. c) The court is required to undertake a broad, merits-based assessment taking account of the public and private interests involved and all of the facts of the case. d) The court’s focus must be on whether, in all the circumstances, the Claimant is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. e) The court will rarely find abuse unless the second action involves “unjust harassment” of the defendant.”[54]In Oxley, HHJ Tayler then considered the following questions as necessary to answer before coming to a decision about either cause of action estoppel or Henderson, at paragraph 29. These were (with added words to provide the principles rather than specifics of that particular case): 54.1. Identify the relevant cause of action in the previous claim or claims; 54.2. Identify the relevant cause of action in the claim or claims that is/are said to vex the applicant; 54.3. Identify whether the two causes of actions were the same so that cause of action estoppel applied to the new claim(s); 8 of 94 Sept 2023 54.4. if not, identify whether the new claim(s) could and should have been brought in the previous claim(s) so that bringing it was an abuse of process.[55]Consequently, before a decision can be made about whether the rule in Henderson was engaged, there must first be an analysis of the facts in answer to questions 1-3 above. Only then can a safe decision be made.[56]An abuse of process is “a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process” after Attorney General v Barker [2001] 1 FLR 759. THE FACTS RELEVANT TO THE HENDERSON CHALLENGE[57]The first claim the Claimant presented to the employment Tribunal, was discussing the backdrop to his sickness absence between December 2020 and July 2022, has a singular and narrow cause of action.[58]The Claimant simply complains that when he was called on his mobile telephone by Mr. Harries on 7 July 2022, whilst he was absent on long term sick leave, he took exception to both the fact of the call and the way in which the call was handled.[59]He says the call had the purpose of ridiculing him and that both Mr. Harries and other colleagues, the Claimant says he heard on call, were making fun of him.[60]The Claimant claims these incidents were both acts of unfavourable treatment because he was on long term sick leave and his long term sick leave arose in consequence of his disability, namely, long covid.[61]Early conciliation of that claim commenced on 6 October 2022, with the early conciliation certificate being issued on 17 November 2022.[62]The claim was presented 17 December 2022, within the extended early conciliation deadline of being one calendar month after the early conciliation certificate was issued, that calendar month commencing on 18 November 2022.[63]That claim was therefore in time.[64]The Second Claim was presented on 26 June 2023.[65]The second claim described a very similar backdrop when discussing the Claimant’s troubles with his disability of long covid between December 2020 and July 2022.[66]Significantly, the factual backdrop describes issues that occurred after the issue involving Mr. Harries, namely the period from 7 July 2022 through to 17 February 2023.[67]Of the factual causes of action raised, the Claimant claims that the OH referral documents sent to organise an OH consultation of February 2021, May 2021, 3 September 2021 and 6 May 2022, were not shared with the Claimant before the 9 of 94 Sept 2023 OH consultation meetings and that was disability discrimination, and those referrals should have at least been shared with him by 2 November 2022.[68]He also alleged that he should have been told of his right to be provided with a copy, by 2 November 2022, by Matthew Cully his then line manager.[69]This means that, on the Claimant’s case, the cause of action crystallised on 2 November 2022.[70]Consequently, the Claimant’s pleaded claims here could have been inserted into the claim presented on 17 December 2022.[71]The Claimant also complained, in his second claim, about a failure to provide disability leave in September 2022, and that Mr Cully also refused or was reluctant to treat the Claimant as disabled with long covid in or around September 2022.[72]Additionally, he refers to causes of action that post date the first claim. These were 72.1. a failure to provide a copy of an OH referral in February 2023; 72.2. an issue with the content of the instruction to OH where Mr. Cully is alleged to have said the Claimant’s behaviour in response to the call from Mr. Harries in July 2022 was not proportionate; 72.3. raising the issue of how his grievance of 15 February 2023 was not being handled correctly or timeously by Mrs Landy and Mr. Darougar.[73]Significantly, the Claimant links all the conduct alleged against Mr. Cully, Mrs Landy and Mr. Darougar as being a continuing course of discriminatory conduct throughout that period.[74]The second claim, therefore, is not limited solely to acts or omissions that crystallised causes of action from December 2022 backwards. It includes other claims from after the presentation of the first claim and links the two together as an alleged continuing course of discriminatory conduct.[75]It is also important to note that for the majority of the relevant time periods, the Claimant was very unwell to the extent he was disabled with a debilitating condition.[76]Claim three was submitted on 8 March 2024.[77]The third claim complains about the late delay in receiving the outcome to the grievance investigation on 3 October 2023, after the date of the second claim.[78]It also complains that the investigation was a sham.[79]In our judgment, the Claimant could only have been able to assess his view of the investigation, when he was in possession of the finalised views of Mr. Darougar in the report received 3 October 2023. 10 of 94 Sept 2023[80]Both these issues are alleged to be victimisation based on previously made protected acts.[81]However, the cause of action is the same and that is the date of finalising the report and the report’s content, as of 3 October 2023 after the date of the other two claims.[82]Indeed, it was clearly impossible for the causes of action in the third claim to have been raised in either claim one or two, because they happened after the presentation of those previous claims either wholly or in part.[83]Yes, the Claimant raises both delay and a sham investigation in claim 2, but that was only up until the date of that claim.[84]By claim 3, things have moved on, and the same allegations are made against Mrs Landy and Mr Darougar, simply relating to an expanded time period and with the Claimant then having the benefit of being furnished with the final report, which the Claimant did not have at the point of presenting claim 2.[85]In addition, the Claimant then resigned on 25 October 2023, in response to this conduct and alleged that resignation was a constructive dismissal.[86]Clearly that too could not have been raised in any previous claim, because the resignation post dated them.[87]It is in its defence to claim three, that the Respondent pleaded that some of the issues in claim three should have been brought in earlier proceedings.[88]The Respondent’s application takes issue with the victimisation claims raised in claim 3.[89]It says these claims mirror the claims raised as s15 claims in claim 2, against Mrs Landy and Mr. Darougar about delay and a sham investigation. ANALYSIS AND CONCLUSION HENDERSON ABUSE[90]The burden of proof is on the Respondent in its application to strike out Claim three victimisation complaints, after Johnson.[91]It is obvious that there can be no cause of action or issue estoppel here. No issues were decided previously.[92]However, for Henderson abuse, we reminded ourselves they don’t have to have been finally decided for Henderson abuse to bite, again after Johnson.[93]Equally, it is not enough to engage the Henderson rule that issues simply could and should have been raised previously.[94]If that is the only challenge to the Claimant’s case, then that is insufficient after 11 of 94 Sept 2023 Test Claimants.[95]We then look at abuse of process. We find there is no abuse of process for the following reasons: 95.1. After Barker, given that the Claimant was still employed when his first and second ET1s were submitted, and, all three ET1’s have been triggered by specific alleged behaviours of the Respondent throughout an ever increasing timeline of events, we are satisfied that it is common place in the Tribunal for these types of situations to end up with multiple ET1s or multiple applications to amend. The ET1s were submitted properly and the circumstances were not extraordinary. 95.2. If a person is still employed when they submit their claim against the Respondent, it is often the case that subsequent events could then be alleged to be victimisation or further unlawful treatment. It is also the case, that a Claimant when presented with one issue may not, at the time of the first claim, have the view that minor incidents or one off incidents were unlawful. However, if there are then subsequent repeated acts of perceived poor treatment, the Claimant may then look back at the whole timeline and think, that the incident in the past was unlawful with that view being informed by the subsequent treatment. Is it then abusive for them to raise it either as a new ET1 including all the most recent and past conduct or as an amendment to the current claim? We say of course not. It happens all the time in the Tribunal in circumstances like these. One event might be given the benefit of the doubt, whereas subsequent events may then replace that benefit with a view that discrimination has occurred. 95.3. We are not satisfied that the ET1s were unjust harassment of the Respondent by using the litigation process to oppress the Respondent as described in Test Claimants. The claims on a summary view were arguable and were triggered by events following the first claim and the subsequently following the first and second claims. 95.4. Looking logically at the Respondent’s submissions here, if we were to agree with the Respondent, that would mean that all applications to amend the claim would also be covered by the same rule. When faced with a lengthening timeline of conduct due to continual employment, a Claimant has a choice. They either apply to amend the claim which could be refused because it is a balancing exercise, or they can choose to issue a new ET1, which providing it is correctly completed in accordance with the rules, is guaranteed to be accepted. There are pros and cons of both methods, but both are still valid. 95.5. The Claimant’s second and third ET1s, both contain causes of action that post date the previous ET1 in the chain. Some of the allegations overlap in time yes, but not all of them. They essentially straddle the timeline and a continuing course of discriminatory conduct is alleged, linking the older issues to the newer ones. 95.6. Consequently, we are not even close to being persuaded that the Claimant 12 of 94 Sept 2023 has done anything more than pleaded claims that were either new or that could have been raised in an earlier ET1, but have later been perceived as being discrimination because of subsequent alleged treatment of the Claimant.[96]It is also the case that the Claimant was clearly disabled with a debilitating illness throughout the entire timeline of his pleaded case.[97]When balancing the public interest and private interests of the parties as required by Moorjani, the public interest is a balance between having arguable cases heard but preventing repeated litigation about the same decided or undecided issues.[98]There is no co-lateral attack on a past decision or a repeated argument about something already decided here, and the timeline in each claim contains new causes of action compared to the previous one. The balance of public interest therefore lies with having the discrimination/victimisation claims heard.[99]The only private interest that affects the Respondent here, that we can identify, is it is having to defend three claims with increased costs, complexity and time spent working on them. Even if we were to remove claims that could have been pleaded in the previous ET1s, there are still new claims in the timeline in all the ET1s, so the Respondent would still be facing three ET1s just with slightly fewer issues.[100]The private interest of the Claimant is in having claims he believes show unlawful actions by his employer heard in public, in the Tribunal, with a fair hearing.[101]If legitimate arguable claims were simply halted because of an omission alone automatically being treated as abuse, which is essentially what the Respondent’s argument boils down to, then the balance of prejudice would be with the Claimant in having arguable claims unjustly struck out, against both the public interest and his private interest in having a fair trial of legitimate claims.[102]The Respondent has therefore not met its burden of proving abuse, has not met the requirements of Barker, Test Claimants and/or Moorjani and therefore fails the fourth test set out in Oxley.[103]Consequently, the rule in Henderson is not engaged and the claims proceed. THE LAW - DISABILITY 82. The definition of disability is found in section 6 of the Equality Act 2010, which states: “6 Disability (1)A person (P) has a disability if— (a)P has a physical or mental impairment, and 13 of 94 Sept 2023 (b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2)A reference to a disabled person is a reference to a person who has a disability. (3)In relation to the protected characteristic of disability— (a)a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b)a reference to persons who share a protected characteristic is a reference to persons who have the same disability. (4)This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a)a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b)a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. (5)A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6)Schedule 1 (disability: supplementary provision) has effect.” 83. The Tribunal is obliged to consider statutory guidance and any relevant codes of practice about the issue of disability. 84. Following the case of Goodwin v Patent Office [1999] ICR 302 the EAT laid down detailed guidance on how this Tribunal should evaluate and decide the issue of disability. The following key points of guidance are given: 84.1. Specific reference should be made to the pleadings and the issues clarified before the issue of disability is decided; 84.2. When considering any part of statutory guidance or statutory code, the Tribunal should expressly refer to each section relevant to making its decision; 84.3. If an activity can still be performed with difficulty and great effort, that does not mean the ability to do the activity is not impaired; 84.4. Account must be taken of the fact that many people play down the effects their impairments have on them; 84.5. The Tribunal should consider how a person manages their condition; 14 of 94 Sept 2023 84.6. There should be no single focus on a narrow set of activities such as for example housework. How the impairment affects someone in all aspects of their normal lives should be looked at both at home, outside of home and in the workplace; 84.7. If medication or other treatment is helping to treat the impairment, the Tribunal should consider both the situation whilst medication for example is being taken and what the effects would be if the medication or other treatment was not being taken or taking place; 84.8. The Tribunal should never lose sight of the overall picture when coming to its decision about the specific parts of the disability statutory test. The relevant date 85. The Tribunal must apply the statutory test for disability at the date the alleged discrimination took place and not at the date of the hearing determining the issues Cruikshank v VAW Motorcast Limited [2002] IRLR 24. 86. It has also been clarified that when looking at the relevant date, the only evidence that is admissible in applying the long term part of the test, is evidence of facts and circumstances that existed at the date of the alleged discrimination or before it. Looking at evidence of facts and circumstances dating from after the relevant date to determine the test, unless the evidence is akin to an expert report procured to provide expert opinion about the test as at the relevant date, is impermissible hindsight All Answers Limited v W and R [2021] EWCA Civ 606. Impairments 87. Physical and mental impairments are treated differently by past and binding case law. 88. Whether an impairment has an adverse effect alleged, is a causation question to be determined objectively by the Tribunal Dias Da Silva Primas v Carl Room Restaurants Limited t/a McDonalds restaurants Ltd and others [2022] IRLR 94.89. The Guidance deals with the definition of an impairment at paragraphs A3 – A8.90. A3 says “…The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness.”91. A4 says “Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities. An exception to this is a person with severe disfigurement (see paragraph B24). It is not possible to provide an exhaustive list of conditions that qualify as impairments for the purposes of the Act. Any attempt to do so would inevitably become out of date as medical knowledge advanced.” 15 of 94 Sept 202392. A5 lists different types of impairments that can exist.93. A6 says “It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment.”94. It is therefore sufficient for a Claimant to establish simply that there was an impairment. It is not necessary to prove it was either a physical or mental one.95. A7 says “It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded.”96. A8 says “It is important to remember that not all impairments are readily identifiable. While some impairments, particularly visible ones, are easy to identify, there are many which are not so immediately obvious, for example some mental health conditions and learning disabilities.”97. In situations where there is clearly a physical impairment, but the medical cause is unknown, the focus is on the effects of the condition, not identifying the condition itself College of Ripon and York St John v Hobbs [2002] IRLR 185 EAT.98. This is contrasted with the more ridged situation with mental impairments. Simple use of the broad words by GPs such as stress, anxiety, depression on fit notes and other documents, will not be proof of the mental impairment. There must be more medical evidence provided about the medical condition Morgan v Staffordshire University [2002] IRLR 190 EAT.99. In Royal Bank of Scotland v Morris UKEAT/0436/10/MAA, the EAT quoted Morgan saying this at paragraph 55: “The burden of proving disability lies on the Claimant. There is no rule of law that the burden can only be discharged by adducing first-hand expert evidence, but difficult questions frequently arise in relation to mental impairment. In Morgan v Staffordshire University [2002] ICR 475 this Tribunal, Lindsay P presiding, observed that “the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion” (see para. 20 (5), at p. 485 A-B); and it was held in that case the reference to the applicant’s GP notes was insufficient to establish that she was suffering from a disabling depression.”100. Similarly, just because someone has a mental illness, does not necessarily mean they have a mental impairment Dunham v Ashford Windows [2005] IRLR 608. 101. There is also a distinction between a normal emotional reaction to a life event such as grieving, a serious accident or serious life changing diagnosis and an impairment. Usual grief or emotional responses to events do not mean there is an impairment. Similarly, the emotional response may turn into an impairment over time Igweke v TSB Banks Plc [2020] IRLR 267 EAT. 16 of 94 Sept 2023 Substantial adverse impact 102. To determine this point, the correct approach is to ask the question of what the Claimant’s ability to undertake the day-to-day activity would be, if they did not have the impairment Elliott v Dorset County Council [2021] IRLR 880. 103. If the impact is more than minor or trivial, then it must be deemed to be substantial Aderemi v London and South Eastern Railway Limited [2013] ICR 591.[104]The guidance at paragraphs B2 – B6 states that the Tribunal should take into account the time taken to do the activity, the way it is carried out, the cumulative effects of the impairment in question and paragraph B11 requires the Tribunal to also consider environmental factors that may trigger the impairment, make it better or make it worse.[105]B2 says “The time taken by a person with an impairment to carry out a normal dayto-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity.”[106]B4 says “An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect.”[107]B6 says “A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities.”[108]Paragraphs B7 – B9 deal with what a person can reasonably be expected to do, to cope with an impairment before it is deemed to have a substantial effect.[109]B7 says “Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.”[110]Coping strategies can amount to measures taken in the same way as medical treatment when considering deduced effects as per Elliott above.[111]Where two or more impairments are relied upon which together but do not individually cause the substantial impact, the overall effect of all the impairments should be considered Ginn v Tesco Stores Limited [2005] All ER (D) 259 (Oct). 17 of 94 Sept 2023[112]When considering the effects of treatment, these are to be ignored for the purposes of determining the impact and the correct test is to determine whether the impact alleged could well happen but for the treatment SCA Packaging v Boyle [2009] UKHL 37. Long term[113]Relevant parts of Schedule 1 say: “Long-term effects 2 (1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b)it is likely to last for at least 12 months, or (c)it is likely to last for the rest of the life of the person affected. (2)If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3)For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed. (4)Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.”[114]When considering this issue and it is clear that an impairment has not lasted for 12 months, the Tribunal is usually required to take a broad rather than narrow view of the evidence and must consider the reality of risk of whether the effects of the impairment “could well happen” rather than focussing on the diagnosis itself from medical evidence.[115]Consequently, if there is a diagnosed or present impairment that has not yet lasted 12 months, then it will be a long term condition if the proven effects complained about could well happen Nissa v Waverly Education Foundation Limited and another UKEAT/0135/18/DA. Normal day to day activities[116]The guidance addresses this issue at paragraph D3 and states that normal day to day activities are things that people do on a daily or regular basis in all aspects of their lives.[117]D4 states that this definition is not intended to include things that are simply normal for an individual or a small group of people. But in accordance with paragraph D5 a normal activity does not have to be done by the majority of people. 18 of 94 Sept 2023[118]The emphasis when looking at activities is to pay attention to things the Claimant cannot do rather than what they can do and it is incorrect in law to apply a balancing or setting off exercise between things the Claimant can do and those they can’t to produce an overall picture Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19. THE LAW – KNOWLEDGE OF DISABILITY AND THE SOMETHING Knowledge of the protected characteristic or “something”[119]A person cannot discriminate against another because of the protected characteristic or the something arising in consequence of disability, either consciously or subconsciously, if they do not know the person has that characteristic or something after IPC Media Ltd v Millar [2013] IRLR 707 EAT.[120]For direct disability discrimination, the test is the same as for knowledge of the disability under sections 15 and reasonable adjustments as it is for direct discrimination, after Godfrey v Natwest Market Plc [2024] EAT 81 at paragraph 9: “9. It is common ground that the approach that an ET is to adopt when considering the defence this provided by section 15(2) is the same as that which applies (per Gallop) when considering knowledge for the purposes of section 13. As the EAT explained in A Ltd v Z [2020] ICR 199: “38. A Respondent will avoid the liability that would have otherwise arise[n] sic. under section 15 EqA if it can show that it did not know, and could not reasonably have been expected to know, of the complainant’s disability. A finding that the Respondent does not have actual knowledge of the disability is thus not the end of the ET’s task; it must then go on to consider whether the Respondent had what (for shorthand) is commonly called “constructive knowledge”; that is, whether it could-applying a test of reasonableness-have been expected to know, not necessarily the Claimants actual diagnosis, but of the facts that would demonstrate that she had a disability-that she was suffering a physical or mental impairment that had a substantial and long term adverse effect on her ability to carry out normal day-to-day activities. 39. As to what a Respondent could reasonably have been expected to know, that is a question for the ET to determine. The burden of proof is on the Respondent but the expectation is to be assessed in terms of what was reasonable; that, in turn, will depend on all the circumstances of the case.” Knowledge of disability[121]In section 15 of the Equality Act 2010, the discrimination section 15 describes: “(2) …does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” 19 of 94 Sept 2023[122]The burden is on the Respondent to show that it did not have the knowledge in question.[123]The EAT held in Wilcox v Birmingham CAB Services Ltd UKEAT/0293/10 that what this provision requires, is that the employer knew (or could reasonably be expected to know) that an employee was suffering from an impairment, the adverse effects of which on their ability to carry out normal day-to-day activities were substantial and long-term, that is the various constituent elements of the definition of disability in section 6 of the Act.[124]It is also made clear in Gallop v Newport CC 2013 EWCA Civ 1583 that it is knowledge of the fact of the various elements of the statutory test that is required, not an understanding by the Respondent that those facts mean a person is labelled by the state as being disabled. This case was decided under the old Disability Discrimination Act 1995 but is still good law. The relevant paragraph from Gallop is below but formatted differently for ease of reference: “36 …….Ms Monaghan and Ms Grennan were agreed as to the law, namely that:(i) before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person; and(ii) that for that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in s.1(1) of the DDA. Those facts can be regarded as having three elements to them, namely: (a) a physical or mental impairment, which has (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day-to-day duties; and whether those elements are satisfied in any case depends also on the clarification as to their sense provided by Schedule 1. Counsel further agreed that, provided the employer has actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a 'disabled person' as defined in s.1(2). I agree with counsel that this is the correct legal position.”[125]Similarly, the employer will be taken to have knowledge of the disability if they know of the impairment and its consequences. There is no need for specific knowledge of the diagnosis Jennings v Barts and the London NHS Trust [2011] All ER (d) 73 (Aug) EAT.[126]If the employer did not know and could not reasonably be expected to know the Claimant was disabled, knowledge of disadvantage does not arise. 20 of 94 Sept 2023[127]What is reasonable for the Respondent to have known is for the Tribunal to determine. It will depend on all the circumstances of the case. The question is what the Respondent would have found out if it had made reasonable enquiries. In other words, there should be an assessment of what the Respondent should reasonably have done, but also of what it would reasonably have found out as a result (A Ltd v Z EAT 0273/18 reflecting paragraph 5.15 of the EHRC Code on Employment (2011)).[128]In the case of A Ltd v Z [2019] IRLR 952 it was stated by Eady HHJ: “(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see City of York Council v Grosset [2018] EWCA Civ 1105, [2018] IRLR746, [2018] ICR 1492 CA at para 39. (2) The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of s 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person(a) suffered an impediment to his physical or mental health, or(b) that that impairment had a substantial and(c) long-term effect, see Donelien v Liberata UK Ltd (2014) UKEAT/0297/14, [2014] All ER(d) (D) 253 at para 5, per Langstaff P, and also see Pnaiser v NHS England (2016) UKEAT/0137/15/LA, [2016] IRLR 170 EAT at para 69 per Simler J. (3) The question of reasonableness is one of fact and evaluation, see [Donelian] at para [27]; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant. (4) When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council (2016) UKEAT/0100/16, [2017] ICR 610, per His Honour Judge Richardson, citing J v DLA Piper UK LP (2010) UKEAT/0263/09, [2010] IRLR 936, [2010] ICR 1052), and (ii) because, without knowing the likely cause of a given impairment, 'it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so]', per Langstaff P in Donelien EAT at para 31. (5) The approach adopted to answering the question thus posed by s15(2) is to be informed by the Code, which (relevantly) provides as follows: '5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a “disabled person”. 21 of 94 Sept 2023 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.' (6) It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v TC Group (1998) EAT/137/97, [1998] IRLR 628; Alam v Secretary of State for the Department for Work and Pensions (2009) UKEAT/0242/09, [2010] IRLR 283, [2010] ICR 665). (7) Reasonableness, for the purposes of s 15(2), must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code.”[129]It is also clear from Pnaiser that it is only knowledge of the disability that is required for a section 15 case and not knowledge that the disability causes the something that led to the unfavourable treatment. FINDINGS OF FACT – DISABILITY AND KNOWLEDGE OF DISABILITY[130]The Respondent conceded that the Claimant was disabled with the effects of Long Covid-19 at all material times, namely, 7 July 2022 – 30 October 2023.[131]The Respondent also conceded that the Claimant was disabled from 21 August 2023 onwards with the effects of depression.[132]The battleground for disability is therefore about whether the Claimant’s depression was a disability before 21 August 2023.[133]The Claimant has confirmed that out of the direct disability discrimination claims that are contained in paragraph seven of the final list of issues, only allegations 6 and 7 are said to be partly because of the Claimant’s depression.[134]For the unfavourable treatment because of something arising in consequence of disability claims, The relevant claims that pre-date 21 August 2023, paragraphs 12 a, b, d (6) and e (i) and (ii).[135]The relevant dates/periods for the claims that predate 21 August 2023 are therefore from the list of issues as follows: 135.1. 7 July 2022; 135.2. September 2022 – 2 November 2022; and 135.3. February 2023 – 20 August 2023. The Claimant’s impact statement pages 68 – 83 and 222 - 257[136]The key evidential points from the Claimant’s impact statement about his depression are as follows: 22 of 94 Sept 2023 136.1. The Claimant says he was diagnosed with depressed mood on 6 May 2022; 136.2. The Claimant reports, and indeed it is not challenged, that his long COVID symptoms included an ongoing cough, fatigue, weakness, poor sleep, poor appetite, headaches on exertion and general joint aches and pains; 136.3. An OH report is in the bundle at page 443 which diagnoses long covid as of 17 February 2021. 136.4. On 19 June 2021, the Claimant’s mother and elder brother both tragically died from covid-19 in Uganda, on the same day. This was a very tragic and traumatic event for the Claimant, quite understandably so. 136.5. On 9 September 2021, the Claimant reports he had a road traffic accident and, after that accident, he tried to reduce his reliance on driving by using public transport due to the fatigue and lack of concentration that he was experiencing at that time. 136.6. The Claimant also noted at that time, he believed the depression that he suffered from was attributable to the effect of long COVID on his general health. 136.7. On 11 March 2022, the Claimant was prescribed propranolol to help with anxiety and panic attacks, even though it had also been prescribed for migraines. 136.8. The Claimant reported that his GP notes from 6 May 2022, evidence his symptoms, such as low mood, slow and monotone speech, but with no suicidal ideation. He noted he has panic attacks when his employers contact him and general anhedonia, which is lack of enjoyment of activities in general. 136.9. The notes also indicates that the Claimant found it difficult to admit his mental health struggles as, in our experience and judgment, many people do. 136.10. A month later, on 8 June 2022, the Claimant reports in his impact statement that, at an occupational health assessment, the OH practitioner assessed the Claimant as having moderate to severe depression. 136.11. The Claimant was also prescribed sertraline to help with his mood and he was noted as having difficulty sleeping. 136.12. A further GP appointment is noted as taking place on 26 September 2022. The Claimant’s dose of sertraline was increased to 100 mg per day. 136.13. Between 6 October 2022 and 17 November 2022, the Claimant attended talking therapy sessions, but the Claimant remained depressed. 136.14. On 21 November 2022, the Claimant was referred to South London and Maudsley mental health department. 23 of 94 Sept 2023 136.15. Sertraline was being taken in doses between 50 – 100mg from 8 June 2022 – 7 February 2023. 136.16. From 4 January 2023 – 2 November 2023, the Claimant was prescribed mirtazapine 15 – 45mg. 136.17. The Claimant said this was effective to improve insomnia. However, by August 2023, the Claimant reported feeling drowsy during the day and the affect on reducing insomnia at night was getting less, so the drug was changed to venlafaxine. 136.18. Significantly, the Claimant claimed in his impact statement that the Respondent had knowledge of his depression since a fit note of 26 September 2022. This fit note was in the bundle at page 534, but does not say depression, it says “Long-covid/mental health”. The Claimant’s evidence at the hearing[137]It is important to note here that, during cross examination, the Claimant stated that he had specifically asked his medical advisers and the OH practitioners that he saw at various points throughout his employment up to 21 August 2023, not to mention in fit notes or any occupational health reports, that the Claimant had any mental health difficulties.[138]He says that he was actively not telling the Respondent about his mental health issues for a number of reasons: 138.1. The first was that he had not accepted his mental health struggles himself and found it very difficult to talk about. 138.2. The second was because the combination of his mother and brother’s death, the car accident and his perceived difficulties at work combined with being absent from work with long covid, he withdrew from communicating with the Respondent so that he could focus on his health. 138.3. Thirdly, he suggested that because of past bad experiences with a manager of the initials PA and since the call with Mr. Harries on 7 July 2022, the Claimant viewed contact with the Respondent as a trigger for panic attacks and other symptoms; and 138.4. finally, he said he was very concerned what his employer would do if they found out that he had depression and was worried about his job.[139]We have considered this evidence and we believe that the Claimant’s perception of how he was being treated was affecting him in these ways and that is why at times he withdrew from participating in conversations about his health with the Respondent.[140]However, whilst we understand why the Claimant behaved as he did in actively keeping his mental health struggles a secret from the Respondent, the Respondent cannot be expected to predict or guess at the mental health status of the Claimant. 24 of 94 Sept 2023[141]For genuine reasons, the Claimant was actively asking for the deletion of mental health information from OH reports and his GP fit notes as he confirmed to us.[142]However, the Respondent cannot be expected to make any enquiries into the Claimant’s mental health unless there was any information, behaviour or other context identified as placing the managers dealing with the long term sickness absence management on notice about the Claimant having depression or symptoms of that. The Claimant’s Fit notes and other medical or relevant non-medical evidence[143]The following evidence is relevant to the issue of disability and knowledge: 143.1. At page 441 in the bundle, it is logged by the Claimant’s line manager, Mr. Cully, that the Claimant was absent from work with Long covid and mental health from 7 March 2022 until 11 February 2023; 143.2. Mr. Cully noted that the Claimant had reported: “…considerable stress and trauma he experienced over the last two years not least losing both his eldest brother and mother to covid on the same day (management aware of this) and having to arrange their funerals when he was not well himself. He also reports other significant life stressors including a car crash around this time and very significant other social stressors. Abu was uncontactable over the phone since his absence in 03/02/22. He would only reply to emails. I have included the emails I sent to him and also one he sent the team thanking management for their support.” 143.3. The OH report on 17 February 2021 is silent about any mental health concerns. 143.4. The OH report on 1 June 2021 is silent about mental health, but does mention the Claimant is suffering from perceived work related stress following an incident at work where one manager told him to isolate when he thought he may have covid a second time, and a different manager then said that he was not doing the right thing and should be at work that night. A stress risk assessment was suggested. 143.5. On 13 October 2021, there was a further occupational health report. Of significance, at page 473 in the bundle it stated: “Abubaker kindly answered my questions in an open manner providing me with a good history. I used well validated tools to assess his symptoms, with his fatigue being classed as moderate, a level that limits the ability to carry out normal levels of daily activity in a sustained manner. His pain is considered to be severe and he is advised to discuss management of this with his GP. Understandably his physical symptoms and the impact of his bereavement have had an effect on his mental wellbeing, however no concerns regarding clinical anxiety or depression were raised. Normal 25 of 94 Sept 2023 bereavement is not a medical condition, but a process that is unfortunately part of life experience. The length of time it takes to go through the most acute phase varies from person to person, but can easily take over a year. From his professional practice, Abubaker is well aware of the self care strategies he can adopt and was reminded of the need for self-compassion. The physiological response to stress/ pressure can have and adverse impact on symptoms of fatigue and pain and vice versa, these long term symptoms can have an adverse effect on mental wellbeing.” And “While long COVID/ Post COVID Syndrome are new conditions and we have limited data on which to base our recommendations, fatigue following serious illness is not uncommon. Based on our knowledge of these conditions we anticipate that Abubaker will make a functional recovery, but that progress is likely to be slow and steady and may still take several months. Regrettably it is not possible for him to speed up his recovery through increased effort or will power, instead improvement is more likely to follow a gradual and graded reintroduction of activity.” 143.6. Consequently, at this point, whilst there were indicators that the Claimant’s mental health was being impacted, the report is clear that this has not disclosed any underlying depression or anxiety, the Claimant’s mental health symptoms are an effect of both his pain and normal response to bereavement and this may take a year or so to resolve. The report also goes on to say that the Claimant was fit for work with adjustments. There was no indication of mental health impairment at that time. 143.7. However, the same cannot be said about the Claimant’s long covid. The report is clear that the Claimant’s fatigue alone was likely to impact his ability to carry out normal daily activities in a sustained manner. 143.8. He also had breathing difficulties, difficulty concentrating and significant pain at that time. 143.9. The report also mentions it might take several months for the Claimant to recover properly. 143.10. Given that he had been absent from work on and off since December 2020, the report was dated 13 October 2021, and the symptoms might persist for several more months, it was straightforward for us to conclude that by 13 October 2021, Mr. Cully knew that the Claimant had a physical and mental impairment of long covid, that it was likely to last for 12 months or more and that it affected the Claimant’s ability to carry out normal day to day activities as the OH report described. 143.11. On 30 March 2022, the Claimant was signed off as unfit for work due to Long covid and stress at page 480 in the bundle. 143.12. From May 2022 onwards to 28 September 2022, Mr. Cully made reasonable efforts to contact the Claimant and discuss his health situation. 26 of 94 Sept 2023 143.13. The Claimant accepted that he refused to speak with Mr. Cully by phone and would only respond by email, saying he would not be in contact to focus on his health. 143.14. Indeed, on 1 June 2022, Mr. Cully emailed the Claimant to state his position about the Claimant’s absence and said “I am aware that you have alluded to a work related stress in the OH report but I cannot do anything about this or work together with you to resolve this until I am able to speak to you to understand what is going on, as this is the first time a worked related stress has been reported and still not directly to myself. I obviously want to do whatever I can to support, so please give me a call.” 143.15. It is therefore clearly evidenced that Mr. Cully and indeed the wider Respondent, as at that date, did not know what the stress was caused by, did not know of any mental health impairment, simply a label of stress or mental health and, most importantly, they did not know about any impact stress or mental health was having on normal daily activities other than being part of the reason why he was unfit for work. 143.16. The occupational health report of 1 June 2022 also does not expand upon the stress related issue, except to document a possible cause of there being “interpersonal difficulties at work” at page 497. 143.17. On 7 June 2022, the Claimant attended a GP appointment. This resulted in a fit note being produced that described the Claimant’s condition as “Depressed mood” and Long Covid at page 514 in the bundle. 143.18. The Claimant then went back to the doctor on 8 June 2022 and this also generated a fit note dated 8 June 2022. The 8 June 2022 fit note logged his continued absence from work as being Long Covid and Stress at page 511. 143.19. The email attaching the fit note was sent to the Respondent on 9 June 2022 as per the email at page 504 in the bundle. The attachment is listed as being “A Semakula Sicknote 06-06-2022.pdf”. 143.20. It is not clear to us which fit note was sent to the Respondent. 143.21. It is also relevant that the Claimant made a number of concessions whilst giving evidence under cross examination. He accepted that he had asked his GP to remove reference to depression from sick notes. He also admitted that the first time depression was mentioned to the Respondent was in the occupational health report later in November 2022. 143.22. Given that the fit note recorded in the GP notes of 7 June 2022, rather than as a separate fit note document, in our view, it is most likely that the Claimant sent the fit note with stress and long covid as the reason for absence to the Respondent, rather than the note with depressed mood on it. 143.23. This fits with the Claimant’s evidence about actively hiding his true mental health status from the Respondent, and given this is the only fit note that had 27 of 94 Sept 2023 depressed mood on it, we believe this is the one the Claimant asked to amend to remove depression. 143.24. That explains why there was a second GP consultation only 24 hours after the depressed fit note was provided. Otherwise, there appears to be no other reason for why that second GP consultation was needed. It also explains why Mr. Cully does not mention depressed mood in any of his notes about the Claimant’s condition. 143.25. The fit note covering 6 July 2022 – 31 August 2022 at page 512 also noted the reason for being absent as stress and Long Covid. This is of course not a true reflection of the Claimant’s condition given he had been diagnosed with depression by this point. 143.26. Then on 31 August 2022, the fit note at page 529 in the bundle covering the Claimant’s absence for September 2022, listed only long covid as the reason with no mention of mental health, stress or depressed mood. 143.27. Consequently, all the Respondent knew at this point was that the Claimant was absent from work with long covid, there was a long term work related stress issue that may have now subsided and there was no detail about how the stress issue affected the Claimant’s daily activities or to what extent. 143.28. On 26 September 2022, a further fit note was issues by the Claimant’s GP, which stated the Claimant was unfit for work with Long covid and mental health at page 534 in the bundle. 143.29. Mr. Cully made further attempts to contact the Claimant in June, July and August 2022, but with only sporadic email contact providing no further information about the effects of his mental health or stress. 143.30. In an email asking for contact every four weeks by email only, the Claimant alludes to anxiety as being a possible issue, but not depressed mood at page 535 in the bundle. 143.31. On 28 September 2022, a meeting was organised to discuss the Claimant’s continued absence from work. 143.32. The Claimant attended with his RCN union representative and the meeting was chaired by Mr. Cully. 143.33. There were no notes of that meeting in the bundle, but notes from the Claimant’s union representative were disclosed on day 6 of the hearing and allowed into the bundle by consent. 143.34. The only other document logging what was discussed is the outcome letter of the stage 1 absence meeting at pages 556 – 557 in the bundle. 143.35. These documents do not mention any discussion about depression. The only mention of mental ill health is in the context of the Claimant discussing the impact the bereavements had on him, whilst he was also unwell and in a general sense only. 28 of 94 Sept 2023 143.36. If depression was raised and mentioned by the Claimant or Respondent, we believe this letter and the meeting notes would have mentioned it and we also believe the Claimant and/or Mr. Cully would have mentioned it in their witness statements. Neither person does. 143.37. On 11 October 2022 at page 535 in the bundle, there is mention of anxiety in email exchanges between the Claimant and Mr Cully, but not depression and no mention of any effects of any mental health conditions is discussed. 143.38. On 25 October 2022, Mr. Cully shared what he was going to send to occupational health with the Claimant by email at page 540 in the bundle. 143.39. This document provides a broad overview of what Mr. Cully understood at that time about the Claimant’s mental health. It confirms as follows: 143.39.1. That in Mr. Cully’s view the only fit note to mention mental health as an issue is the most recent one, which was then 26 September 2022. That also provides further evidence that he has not seen the fit note with depressed mood listed in it as we discussed earlier. 143.39.2. Mr. Cully also mentioned the history of work related stress and his personal traumas after the bereavements and car accident previously mentioned. 143.39.3. Mr. Cully also reported that in the context of mental health, he had been referred to a community team and his medication had been doubled, but the Claimant didn’t want to go into any more detail. 143.40. On 27 October 2022, the Claimant responded to the information provided by Mr. Cully in his email. 143.41. The Claimant stated in his email that he wanted various issues with his colleagues at work to be included, which the Claimant considered to be bullying and harassment and had affected his mental state. 143.42. He goes into no detail about how it affected his mental state or to what extent. This was the Claimant’s chance to correct or add more detail if he was going to be more forthcoming about his depression or mental state in general, and the Claimant chose not to provide any more information about how his depression was affecting him at that time. 143.43. By email of 2 November 2022, Mr. Cully confirmed that he had included the Claimant’s points. 143.44. On 9 November 2022, a further fit note is issued by the Claimant’s GP at page 560 in the bundle for Long Covid and mental health. 143.45. On 14 November 2022, the occupational health report was received and was in the bundle at page 561 - 562. It said the following of relevance about the Claimant’s mental health: 29 of 94 Sept 2023 143.45.1. That a well validated tool had been used with the Claimant that indicated severe depression and that the Claimant experiences reduced pleasure in doing things and has high stress levels and poor energy levels. 143.45.2. That The Claimant’s mental health could relapse in the future; 143.46. Consequently, by this point Mr. Cully therefore knew that there was the mental impairment of severe depression. However, the impact on normal daily activities was not mentioned, although it could be inferred from the use of the word severe that normal daily activities would be impaired and the Claimant’s mental health had only been mentioned in fit notes since 26 September 2022 only a few months previously. 143.47. If the correct question had been asked at this time about the Claimant’s mental health, namely, whether severe depression and severe anxiety mentioned in the report were disabilities and whether they would have adversely affected the Claimant’s normal daily activities in a more than trivial way, then, in our view, it is likely that a report would have resulted by about 12 December 2022 stating that this would be considered to be a disability and would have had substantial adverse impacts on the Claimant’s normal daily life. 143.48. Significantly, in evidence under cross examination, the Claimant accepted that the first mention of serious depression was in the occupational health report of 14 November 2022. 143.49. On 19 January 2023, a stage two attendance appointment was conducted, which the Claimant attended. 143.50. His mental health was discussed and the Claimant stated that he had severe anxiety and fatigue, had undertaken counselling and had been put on new medication mirtazapine for depression and anxiety, the dose of which would be titrated upwards to the appropriate therapeutic level. 143.51. The Claimant also said that the main reasons for his absence were a combination of long covid and mental health. 143.52. The Claimant was again referred to occupational health by a referral dated 31 January 2023 at page 582 in the bundle. This referral asked whether the Claimant should be considered as disabled under the Equality Act 2010. 143.53. On 9 February 2023, the Claimant was signed off as unfit for work for three months with his mental health only, as per the fit note at page 591 in the bundle. 143.54. On 17 February 2023, Mr. Cully received the latest OH report. Again, this is not very specific about how long the Claimant’s depressive episode has lasted or is likely to last. 30 of 94 Sept 2023 143.55. On 9 May 2023, a further fit note is provided by the Claimant at page 675 in the bundle, signing him off for another 3 months with depression. There is no mention of long covid at that time. The call on 7 July 2022[144]On 7 July 2022, the senior clinician on shift was Mr. Hayner Harries.[145]One of his responsibilities was to ensure there was adequate staff cover on the shift for the areas he was responsible for.[146]There were a number of different sites at the trust and Mr. Harries had responsibility for, including the MHCAS (mental Health Crisis Assessment Service) main office and the A&E departments when it came to mental health triage provision for Royal Free Hospital, University College Hospital and Whittington Hospital.[147]The service provision at all sites was run at a managerial level at a central hub.[148]There was also a stand alone unit with bedrooms and communal areas where patients could be directed to if they presented upon attendance to A&E with acute mental health problems.[149]The Claimant was employed as a registered mental health nurse or RMN.[150]It was not disputed that the shifts could be very busy by their nature, that there would often be allocation alterations because of absent staff who called in sick or because of the nature of the work meaning that about 20% of the staff workforce were agency labour.[151]At the start of each shift, the support worker team look at the rota to see who is on shift. This was then transposed to a whiteboard for that day.[152]One of the Claimant’s fit notes expired on 5 July 2022 as per page 511 in the bundle.[153]The Respondent’s rota system automatically populates staff onto it, unless there is a reason entered into the program that stops it from doing so such as days off, annual leave, statutory leave or sickness absence.[154]When the Claimant’s fit note expired that meant that his hours were repopulated on to the rota.[155]His first shift back to work would therefore have been 7 July 2022 according to the automatically generated rota, which was printed off on 4 July 2022.[156]On 7 July 2022, the Claimant was rota’d to do a long day shift of 08.00 – 21.00.[157]The Claimant obtained another fit note on 6 July 2022, which covered him until 31 August 2022 as per page 512 in the bundle. 31 of 94 Sept 2023[158]That fit note was not emailed to Mr. Cully the Claimant’s line manager until 05.18 on 7 July 2022, just over 2.5 hours before the Claimant was due to start his shift at 08.00 as shown by the email attaching the note from the Claimant at page 513.[159]There is no evidence that the fit note was ever sent to or seen by Mr. Harries, or anyone else in the team working on shift 7 July 2022.[160]Consequently, several phone calls were made to the Claimant throughout the 7 July 2022.[161]It was not clear except for the call that is the cause of action, which calls were made by whom. Mr. Harries only remembers making a single call to the Claimant, not multiple ones and the Claimant only answered one call.[162]Consequently, we believe that multiple calls were made, but we are not persuaded these were made by Mr. Harries. On balance, we conclude that support workers had tried to get in touch with the Claimant when he did not show up for work and when repeated attempts were made to contact the Claimant without success, the issue was escalated to Mr. Harries.[163]The call that is the subject of the dispute was answered by the Claimant at 18.05.[164]Other calls were logged at 16.34, 16.39 and 17.51 as shown by call logs provided by the Claimant from a no caller ID phone screen shot.[165]The call duration at 18.05 was for one minute.[166]The Claimant alleges that Mr Harries knew the Claimant was on long term sick leave.[167]He says so because the electronic rota had the Claimant populated as being absent on sick leave for long time with “C19 Long”. This showed the Claimant as being absent on sick leave on 6 July 2022 onwards for the whole month as per page 515 of the bundle.[168]He says that Mr Harries and other members of the team that day could be heard laughing on the call and they were making fun of him. He believed that the call was made purely for their personal amusement.[169]Mr. Harries says that he did not know the Claimant was off sick or he would not have made the call. He said he did not check the electronic rota until after the call had happened and he was surprised by the Claimant’s reaction to what Mr. Harries believed, was a routine call.[170]Whilst Mr. Harries cannot remember the precise words used during the conversation, he believed he asked the Claimant why he was not present at work and whether he would be coming in. He says the Claimant made it clear he would not be coming into work and he was off sick. The Claimant seemed annoyed and that he did not want to speak to Mr. Harries, which Mr. Harries thought was a bit strange at the time. He was taken aback by the conversation, says he did not probe any further and then ended the call after apologising for calling the Claimant whilst he was on sick leave. 32 of 94 Sept 2023[171]Mr. Harries gave evidence that after the call, he wanted to understand why the Claimant had reacted in the way he did so he then went to look at the whole team rota with everyone on it, rather than simply the rota printed out for that day’s shift.[172]Mr Harries then reported that this whole team rota had different information on it compared to the rota for that day. That team rota showed the Claimant was on long term sick leave and he then realised why the Claimant reacted as he did.[173]Taking all the evidence in the round, we believe Mr. Harries version of events and find that due to the fit note only being provided the morning of 7 July 2022, that would have not been uploaded onto any system until the start of the normal working day namely at the earliest 8am and the fact that it was provided to Mr. Cully and not the shift team for the day, meaning the day rota was unlikely to have been updated in time.[174]What is most probable is that the day staff did not know the Claimant was on long term sick leave and were only made aware of that fact after Mr. Harries had checked the whole team rota.[175]When considering the nature of the call, Mr. Harries was a straightforward witness about this issue. He did not come across as hostile towards the Claimant in any way and indeed stated that he did not even know the Claimant. We believe him.[176]The Claimant gave evidence that they had worked together before a while ago at another site and we also feel that the Claimant genuinely perceived the fact of the call and the way it was conducted to be offensive and done to make fun of him.[177]Neither person in our view was in any way being dishonest or not straightforward in their evidence. What we think happened is that background noise has been misinterpreted by the Claimant as being aimed at him and he was not aware that Mr Harries did not know of the Claimant’s long term sick leave because in his mind, the Respondent should have been aware of that fact from his recent fit note email and the fact he had been absent for a long time.[178]Mr. Harries said that he only became aware of the nature of the Claimant’s complaints against him when these proceedings were commenced.[179]Yes, the rota appears to have stated that the Claimant had been absent on sick leave for a long period of time. However, there is insufficient evidence Mr. Harries knew precisely how long the Claimant had been absent for or what effect the Claimant’s long covid had on him.[180]At most, as of 7 July 2022, Mr. Harries knew the Claimant had been absent from work with long covid for some weeks. That’s it. He had no knowledge of the effect this was having on the Claimant.[181]Mr. Harries stated that post 7 July 2022, he had no other contact with the Claimant and that was not challenged by the Claimant. 33 of 94 Sept 2023 Faye Landy and Durand Darougar[182]The Claimant submitted his formal grievance form on 15 February 2023. This is in the bundle starting at page 596.[183]It is made under the Bullying and Discrimination Policy and an allegation is made within it of what the Claimant said were blatant breaches of the Equality Act 2010.[184]The form was submitted to Faye Landy who was the Head Of Service For The Mental Health Crisis Assessment Service Health Based Place Of Safety and Acute Liaison, which is stated on the form and the covering letter accompanying it where Mrs Landy’s email address is quoted and the letter is said to be sent by email only at page 597.[185]The form contained a lengthy background including details about the Claimant’s disability the fact that he had suffered to bereavement of his mother and brother due to COVID-19 complications on 19 June 2021 and the fact that he had already been through a stage 1 grievance process.[186]Mr Cully’s name is mentioned as being the Claimant’ line manager and stated clearly that the grievance was against him.[187]The details in that letter about the Claimant’s disability and its effects are as follows: 187.1. That the Claimant initially contracted COVID-19 on 10 December 2020 and the Claimant became ill for several weeks returning 11 January 2021; 187.2. the Claimant complained that he was not placed on a phased return to work and after working 2 consecutive long shifts he took annual leave and then felt fatigued. After working a further 4 consecutive night shifts Claimant says this triggered a relapse and the Claimant developed long COVID with debilitating symptoms. 187.3. The Claimant later described those debilitating symptoms as “fatigue, brain fog, joint pains, headaches, shortness of breath on exertion etc.” 187.4. The Claimant described that he was then absent from work on and off until his long term sickness absence began on 7 March 2022 with Long Covid. 187.5. Other details are mentioned in the letter, but we need not go into any more detail at this stage in the judgment.[188]It is also significant that at paragraph three of her witness statement, Mrs Landy stated that she line managed and supervised Mr Cully and received updates from him during monthly supervision meetings.[189]Specifically, she stated, “Matt would often tell me that he was finding it challenging to manage Abu and contact him during his sickness absence. I can't remember exactly but I think it would have been around July 2022 when Matt first told me about the difficulties he was having contacting Abu.” 34 of 94 Sept 2023[190]Mrs Landy started her latest stint of employment at the Respondent in July 2022.[191]At paragraph 7 in Mrs Landy's statement, she says, which was unchallenged, that she was on annual leave when grievance was submitted however an HR business partner acknowledged the grievance on the day that it was submitted at page 641 in the bundle and that Mrs Landy would be contacted about it when she returned to work the following week.[192]At paragraph 5.2 of the Respondent’s absence management policy, long term sickness absence is defined as a period of continuous absence of 14 calendar days or more at page 1010.[193]On 2 March 2023, Durand Darougar, Head Of Service for Islington Core Community Services, was appointed to be the investigation officer for the Claimant’s grievance and Mrs Landy was appointed to be the commissioning manager for the grievance as she stated at paragraph 8 of her statement.[194]Mr. Darougar says in his statement that he remembers receiving the details of the grievance complaint and the associated paperwork to read in early March. That corresponds with when Mrs Landy says that she organised for Debbie May to send the details to Mr. Darougar as per the same paragraph and as shown by the emails at pages 629 – 632 in the bundle.[195]At the very least a conversation took place discussing the details of the grievance and the fact was unlikely to be complex, between Mr. Darougar and Faye Landy as per the email at page 631 in the bundle.[196]A further discussion was then organised via team to take place to discuss the grievance on 3 March 2023 as per page 629 – 630 in the bundle. CONCLUSIONS – DISABILITY AND KNOWLEDGE OF DISABILITY Depression as a disability[197]The Claimant confirmed in his evidence and provided a fit note dated 6 May 2022, which diagnosed low mood and monotone speech.[198]At that point, the Claimant had been suffering from Long Covid and all its documented effects for over a year with long covid being diagnosed from at least 17 February 2021 if not earlier.[199]We reminded ourselves to consider the issue of disability as of the relevant dates namely 7 July 2022 onwards for his depression after Cruikshank and All answers.[200]We also reminded ourselves that, after Ginn, impairments taken separately, might not be disabilities on their own, but if the impairments looked at holistically overlap, then they may be disabilities if taken together.[201]The Claimant’s impact statement that he believed the depression was linked to his long covid symptoms was not challenged by the Respondent and we accept his evidence about that. 35 of 94 Sept 2023[202]There are clear medical diagnoses here not only of the medical labels of depression and long covid, but also of the impairments of low mood, difficulty in speaking normally and anhedonia for general daily living. We have not simply focussed on the medical names or labels attached to the Claimant’s condition after Hobbs.[203]We are also satisfied that there is sufficient medical evidence in the Claimant’s case to come to safe decision about his disability of depression and this is not a case where the Claimant merely asserts that he has a disability or there is simply evidence of illness rather than impairment after considering the guidance in Morgan, Morris and Dunham.[204]It is clear to us that this is also not a case where the Claimant does not have any mental illness or impairment but merely a normal reaction to life events after considering Igweke.[205]We find that there is clear evidence, as described in our findings of fact, that the Claimant had a number of issues happening simultaneously namely he had a bereavement of two close family members in 2021 on the same day, long covid, and a car accident.[206]It is clear to us, that the overlapping impact of all the above meant that the Claimant’s low mood was more than simply being upset about the loss of his family members, it became an actual mental health condition of depression as per the fit note of 6 May 2022.[207]Had the impairment not been present after Dias da Silva Primas and Elliott, we believe the Claimant’s speech would have been normal, his mood would have still been low because of the bereavements, but he would still have some enjoyment in his normal daily life.[208]Had the Long covid not been present at that time then we believe the Claimant would simply have been grieving for the loss of his family.[209]Having enjoyment of your normal daily activities such as your job, hobbies or relationships is in itself a normal daily activity.[210]Being able to speak with a difference in tone and inflection is a normal daily activity.[211]Given the depression is described as moderate to severe in the fit note of 8 June 2022, we believe that as at 6 May 2022, the Claimant’s symptoms were likely to have been of a similar level of severity because of the reported symptoms of anhedonia and monotone speech.[212]Consequently, as at 6 May 2022, the Claimant had been struggling with depression from about the time the bereavements took place given the combined effect of those and his long covid symptoms, namely since June 2021 for nearly 12 months, the impairments the depression caused were substantial and affected his normal daily activities of being able to enjoy life and having difficulty speaking using usual tone and inflection. 36 of 94 Sept 2023[213]We therefore find the Claimant was disabled with depression from 6 May 2022 onwards. Consequently, all the claims said to partly involve this disability continue. Knowledge of the disabilities and something – Mr. Harries[214]It is very clear to us that Mr. Harries did not have any knowledge of the Claimant’s disabilities until these legal proceedings began.[215]After Wilcox, Jennings and Gallop, it is clear that from 7 July 2022 until the proceedings commenced, Mr. Harries was not aware of how long the Claimant had the disabilities he alleges, he was only aware of long covid as an issue affecting the Claimant and the only effect he knew it was having on the Claimant was that he was unfit for work. Mr. Harries knew nothing else.[216]In addition, and what is determinative of the section 15 unfavourable treatment claims because of something arising in consequence of his disabilities, is that Mr. Harries did not know and could not reasonably have been expected to know that the Claimant was on long term sickness absence at the time he made the call to the Claimant on 7 July 2022.[217]After IPC Media, if the alleged perpetrator does not know of the something, then it could not have affected their mind either consciously or subconsciously and the unfavourable treatment, even if it had occurred could not therefore have been because of the something.[218]Consequently, claims 12 a and 12 b fail and are dismissed. Knowledge of the disability and the something – Mr. Cully and the Respondent[219]As we have already concluded above, by 13 October 2021, Mr. Cully knew that he Claimant had been suffering from the effects of Long Covid on and off since December 2020. He also knew that the Claimant’s recovery would be slow and take several more months. That fixed Mr. Cully with knowledge of the long term issue for the long covid disability.[220]Mr. Cully knew of the impairments the long covid was having, namely pain, impaired breathing and fatigue classed as moderate and having a sustained impact on his ability to carry out normal day to day activities all of which were expressly mentioned in the OH report. That fixed Mr. Cully with knowledge of the impairment and its effects.[221]Consequently, Mr. Cully had knowledge of the Claimant’s disability of long covid from 13 October 2021 onwards. In our view, given that Mr. Cully was the Claimant’s line manager and that HR and payroll in the trust would have needed to be informed for pay purposes that the Claimant was absent with long covid, the Respondent collectively had corporate knowledge of the Claimant’s disability from the same date.[222]Mr Cully and therefore the Respondent, also knew of the something, namely the Claimant’s long term sickness absence from 13 October 2021 if not before. 37 of 94 Sept 2023[223]When considering the Claimant’s depression, Mr. Cully only became aware of mental health struggles not labelled as being stress on 26 September 2022 when he was presented with a fit note at page 534 in the bundle.[224]No further detail is provided and the Claimant was at that time actively not giving out details to the Respondent about what his mental health was, how it affected him or how long he had been suffering with it. He was asking medical advisors not to mention his depression or its effects.[225]It was not until the occupational health report of 14 November 2022, that Mr. Cully and indeed the Respondent at large became aware that he had severe depression.[226]Consequently, HR and Mr. Cully and indeed the Respondent at large, did not have either actual or constructive knowledge of depression as a disability until the 14 November 2022, when the OH report would have indicated the effects of the depression and the fact that this was likely to be linked to the ongoing Long Covid symptoms. Knowledge of the disabilities and something Faye Landy and Durand Darougar[227]In our judgment, given the regular supervision meetings between Mrs Landy and Mr Cully, Mrs Landy at the very least had constructive knowledge of both the Claimant’s impairments, their effects, their overlapping nature and the long term nature of it within the month she started line managing Mr. Cully, namely by end of by 31 July 2022. Mrs Landy would have been on notice to enquire of both Mr. Cully and HR the background of the Claimant’s situation and that would have provided her with all the knowledge Mr. Cully and/or HR had or should have had at that time.[228]We therefore also believe that Mrs Landy would have had knowledge of the something the Claimant relies upon namely his long term sick leave by 31 July 2022, by which time a monthly supervision with Mr. Cully would have taken place. By this time, the Claimant would have been absent from work for over 4 months.[229]Mrs Landy would have had knowledge of the Claimant’s depression at the latest by 31 December 2022 given her monthly catch ups she says she had with Mr. Cully and given the OH report mentioning severe depression was received 14 November 2022.[230]In our judgment, Mr. Darougar would have had at least constructive knowledge of both the Claimant’s disabilities and that he had been on long term sick leave on or after 3 March 2023 following his discussion with Mrs Landy and the HR business partner also on the Teams call. THE LAW PROTECTED ACTS FOR VICTIMISATION[231]Section 27 Equality Act 2010, where relevant says as follows: “Victimisation “27 Victimisation 38 of 94 Sept 2023 (1)A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4)This section applies only where the person subjected to a detriment is an individual. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”[232]The starting point is that there must be a clear allegation amounting to a protected act. Therefore, an allegation that something might be discriminatory rather than is actually discriminatory, will not be sufficient Chalmers v Airpoint Limited and Others UKEAT/0031/19.[233]The statute is clear that for s27 (2) (d) the allegation that something is discriminatory can be expressly stated or can be implied or the words (whether or not express) would not be required by the statute.[234]Consequently, after Kokomane v Boots Management Services limited [2025] EAT 38, all that is required is that the allege protected act has facts mentioned within it that would amount to being a breach of the Equality Act 2010 if proven and that was often context specific. The Tribunal must also consider how the Respondent would have viewed the complaint in the context of and at the time of the protected act being submitted or done.[235]In addition, again for the purposes of section 27 (2) (d), if the issue alleged by Claimant as amounting to a breach of the Equality Act would not be unlawful under 39 of 94 Sept 2023 the Equality Act, then it cannot be a protected act for example see Waters v Metropolitan Police Comr [1997] IRLR 589.[236]In the same way as there must be knowledge of the disability or the something before there can be a finding that detrimental or less favourable treatment was the real reason for that treatment, the same it true for knowledge of the protected act.[237]That knowledge must include not only the fact of the protected act but also enough of its content to affect the mind of the alleged discriminator after South London Healthcare NHS Trust v Al–Rubeyi UKEAT/0269/09 (2 March 2010, unreported), where the alleged victimiser must have knowledge of not only the fact of the protected Act being done but also that it contained an allegation of discrimination in breach of the law.[238]As with knowledge of the protected characteristic for s13 direct discrimination and knowledge of the something for s15 Equality Act 2010 cases the knowledge of the protected act must be actual or constructive in the same way because it involves the same “because of” test. FINDINGS OF FACT – PROTECTED ACTS[239]As per the list of issues, the Claimant relied on four protected acts. These were namely: 239.1. His first claim number 2211488/2022 presented 17 December 2022. The Respondent admitted this was a protected Act. 239.2. His grievance submitted on 15 February 2023. The Respondent admitted this was a protected act. 239.3. The second claim number 2210783/2023 presented on 26 June 2023. The Respondent admitted this was a protected act. 239.4. Finally, the complaint raised on 12 May 2023 which appears in the bundle at pages 680 – 685.[240]That letter contains the following key information: 240.1. It refers to the admitted protected act submitted on 15 February 2023 which alleges a breach of the Equality Act 2010. Consequently, the letter a page 680 in the bundle is set in the backdrop of a previous allegation of a breach of the Equality Act 2010. 240.2. The letter does not expressly refer to any breach of the Equality Act 2010, within the wording of this letter. However, it does clearly refer to a previous letter that alleges blatant breaches of the Equality Act 2010. 240.3. The letter alleges numerous breaches of the Respondent’s grievance process including delays and that this was making his ill health worse. 40 of 94 Sept 2023[241]We heard very little evidence from the Respondent about what its witnesses knew of when considering the protected acts.[242]At page 631 in the bundle, Mrs Landy writes the following about the situation to Mr. Darougar: “Thank you for supporting with this and Durand for agreeing to be the IO. As discussed it isn’t a complex grievance but due to the ET needs robust management of the investigation. I will have the TOR completed this afternoon or tomorrow morning. I will need to send to the staff member to ensure that it has captured all areas for investigation.”[243]Mrs Landy confirmed in questioning that what she meant by the letters ET was Employment Tribunal.[244]Given the email mentioning the ET was sent 2 March 2023, this could only have meant the first Tribunal claim.[245]Mrs Landy said during cross examination that she was made aware of the claim but did not know the detail of it as at 19 April 2023.[246]Given that an ET claim had been mentioned, both Mr. Darougar knew or ought to have known both of the Claimant’s disabilities and the fact his grievance of 12 February 2023 was alleging a breach of the Equality Act, both ought to have inferred that the Claim form was likely to have contained an Equality Act claim given the context of the grievance.[247]It is very unlikely that Mrs Landy and/or Mr. Darougar could have robustly managed the grievance if they did not ask what the Tribunal claim was about, at least at a headline level of whether it was say discrimination of some sort and we believe they would have asked about it at the time and would have been told it was a discrimination complaint, even if as Mrs Landy said she did not know any of the detail.[248]There is no evidence at all that any conversation or discussion took place involving Mr Darougar or Mrs Landy about the second claim.[249]On 12 May 2023, the Claimant sent a complaint to Mrs Landy about how long the grievance process was taking.[250]On 15 May 2023, there was a teams catch up between Mrs Landy and Mr Darougar.[251]On 17 May 2023, there us an email from Mrs Landy to Mr. Darougar and others about the delays in the grievance process. 41 of 94 Sept 2023 CONCLUSIONS KNOWLEDGE OF THE PROTECTED ACTS Acts 1 and 2[252]Mrs Landy knew of the grievance of 12 February 2023 when she returned to work on 22 February 2023 as per her evidence given when being questioned.[253]Clearly, at that time, she discussed the situation with HR and we believe HR would have said that the Claimant had submitted a claim for disability discrimination, but no more detail than that.[254]Mrs Landy had made Mr. Darougar aware of both the first claim and the content of the 12 February 2023 grievance by 3 March 2023 after their email exchange and discussions about starting the grievance investigation.[255]Both Mrs Landy and Mr. Darougar were therefore aware of protected acts 1 and 2 above with sufficient knowledge of content after Al-Rubeyi by 3 March 2023 when the grievance investigation became organised and commenced. Act 3 – second claim[256]There is insufficient evidence to conclude that either Mrs Landy or Mr. Darougar became aware of the second claim until they became aware that the case was going to hearing and witness statements were needed namely on in or after March 2024, this was after the grievance process was completed in October 2023.[257]Mr Darougar and Mrs Landy had no knowledge of the second claim until around March 2024. Act 4 – grievance of 12 May 2023[258]Clearly, based on the factual timeline, both Mr. Darougar and Mrs Landy know of the email almost immediately after it was sent. Mrs Landy on 12 May 2023 and Mr. Darougar by 17 May 2023.[259]After Kokomane, we find that given that email refers to the grievance accepted as being a protected act by the Respondent setting the context of the grievance process and indeed the 12 May 2023 grievance as being in the backdrop of complaints about breaching the Equality Act 2010, given both Mr. Darougar and Mrs Landy’s knowledge of the first claim and previous grievance and given that it alleges multiple breaches of the grievance process including delays, if those facts were proven with the sufficient because of legal test, then that would be a breach of the Equality Act 2010 either for victimisation for example.[260]After Al-Rubeyi, there was sufficient knowledge of both the back-drop to the case being a breach of the Equality Act 2010 and given the rest of the facts contained in that letter, we find that in all likelihood, that complaint was or ought reasonably to have been interpreted by Mrs Landy and Mr Darougar as alleging further acts of discrimination by them, simply not expressly stating that. 42 of 94 Sept 2023[261]Consequently, both Mr. Darougar and Mrs Landy had, or ought reasonably to have, appreciated that the 12 May 2023 grievance was a protected act and knowledge of it was therefore present from the same date. THE LAW – DIRECT DISCRIMINATION AND S15 DISCRIMINATION Burden of proof[262]Section 136 of the Act provides as follows: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court [which includes employment Tribunals] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”[263]Direct evidence of discrimination is rare and Tribunals frequently must consider whether it is possible to infer unlawful conduct from all the material facts. This has led to the adoption of a two-stage test, the workings of which were described in the annex to the Court of Appeal’s judgment in Wong v Igen Ltd (formerly Leeds Careers Guidance) [2005] ICR 931, updating and modifying the guidance that had been given by the Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205.[264]The Claimant bears the initial burden of proof. At the first stage, the Tribunal does not have to reach a definitive determination that there are facts which would lead it to the conclusion that there was an unlawful act. Instead, it is looking at the primary facts to see what inferences of secondary fact could be drawn from them.[265]As was held in Madarassy v Nomura International plc [2007] IRLR 246, “could conclude” refers to what a reasonable Tribunal could properly conclude from all the evidence before it, including evidence as to whether the acts complained of occurred at all. In considering what inferences or conclusions can thus be drawn, the Tribunal must assume that there is no adequate explanation for those facts.[266]Unreasonable behaviour of itself is not evidence of discrimination – Bahl v The Law Society [2004] IRLR 799 – though the Court of Appeal said in Anya v University of Oxford and anor [2001] ICR 847 that it may be evidence supporting an inference of discrimination if there is nothing else to explain it.[267]If the burden of proof moves to the Respondent, it is then for it to prove that it did not commit, or is not to be treated as having committed, the allegedly discriminatory act.[268]To discharge that burden it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the prohibited ground. That would require that the explanation is adequate to 43 of 94 Sept 2023 discharge the burden of proof on the balance of probabilities, for which a Tribunal would normally expect cogent evidence.[269]All the above having been said, the courts have warned Tribunals against getting bogged down in issues related to the burden of proof – Hewage v Grampian Health Board [2012] ICR 1054.[270]In some cases, it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, in the absence of a satisfactory explanation, would have been capable of amounting to a prima facie case of discrimination Laing v Manchester City Council UKEAT/0128/06/DA.[271]In multiple allegation cases, the Tribunal must consider the burden of proof about each allegation even though the findings of one allegation may lead to consequential findings about the others.[272]For example, where the Claimant brings multiple allegations of unfavourable treatment, the Tribunal will be expected to consider whether the burden of proof has shifted for each individual allegation. It can consider the impact of its findings on any one allegation to its considerations of any other, but it cannot simply conclude that the burden of proof has shifted in relation to all allegations without considering each in turn: Essex County Council v Jarrett [2015] UKEAT/0045/15 at para 32.[273]We are also reminded of the decision of the supreme court in Efobi v Royal Mail Group Ltd [2021] UKSC 33. That decision endorsed that there must be something more than simply a difference in treatment or unfavourable treatment or the Claimant has only proven a possibility of discrimination. The requirement is for the Claimant to prove fact where the Tribunal on balance can conclude that discrimination has taken place, not simply that it might have taken place. It said at paragraph 46: “46. As Sir Patrick Elias pointed out in the judgment of the Court of Appeal (at para 48), even if the recruiters believed that the Claimant was black and of African origin - as they might have inferred from his name whether or not they looked at the fields on his application forms stating his place of birth - that would in any event hardly have got the Claimant’s case off the ground. Even if, in addition, it had been established (or the Tribunal had been willing to infer as a matter of probability) that the person appointed to any particular post was white - or at any rate neither black nor African - that would still have come nowhere near establishing a prima facie case of discrimination. As Mummery LJ stated in Madarassy at para 56: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that … the Respondent had committed an unlawful act of discrimination.” That remains the case under section 136(2).” 44 of 94 Sept 2023 Direct discrimination[274]The Equality Act 2010 defines direct discrimination as: “13. Direct discrimination (1)A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2)… (3)If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. (4)… (5)… (6)… (7)… (8)…”[275]The Employment Appeal Tribunal summarised the proper approach to the facts in cases under the Act in Talbot v Costain Oil, Gas & Process Ltd and others [2017] I.C.R. D11: “(1) It is very unusual to find direct evidence of discrimination; (2) Normally the Tribunal's decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question; (3) It is essential that the Tribunal makes findings about any "primary facts" which are in issue so that it can take them into account as part of the relevant circumstances; (4) The Tribunal's assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference; (5) Assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities; and, where there are a number of allegations of discrimination involving one personality, conclusions about that personality are obviously going to be relevant in relation to all the allegations; 45 of 94 Sept 2023 (6) The Tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors which point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment; (7) If it is necessary to resort to the burden of proof in this context, section 136 of the Equality Act 2010 provides in effect that where it would be proper to draw an inference of discrimination in the absence of "any other explanation" the burden lies on the alleged discriminator to prove there was no discrimination.”[276]The Claimant is required to provide the Tribunal with ‘sufficient’ facts upon which to commence its consideration. The Employment Tribunal “cannot draw inferences from thin air”: Chapman v Simon [1994] IRLR 124, SC at para 33(3) and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL at paragraph 144.[277]This approach was endorsed by the Supreme Court in Efobi. This case also held that before deciding what inferences to draw, the inferences must first be identified and then the Tribunal must consider whether those inferences can be drawn by the findings of primary fact it has made.[278]Either A or B may be any legal person, which includes a company EAD Solicitors v Abrams [2015] IRLR 978.[279]There are two aspects to direct discrimination that must be considered by the Tribunal. One is less favourable treatment and the other is the reason for the treatment complained about with the associated causal link between the two.[280]Unreasonable behaviour should not give rise to an inference of discrimination Strathclyde Regional Council v. Zafar [1997] UKHL 54 it is usually an irrelevant factor. However, it has been held by the EAT that unreasonable behaviour can go to the credibility of a witness who is trying to argue that their motives were not motivated by the characteristic in question Law Society v Bahl [2003] IRLR 640 EAT.[281]In the same way that less favourable treatment does not mean unreasonable treatment, it also does not mean detrimental treatment or unfavourable treatment T-System Ltd v Lewis UKEAT/0042/15 (22 May 2015, unreported) or simply different treatment Shmidt v Austicks Bookshops Limited [1977] IRLR 360 EAT. There must be a comparison either actually or hypothetically that shows less favourable treatment.[282]It is the treatment rather than the consequences of the treatment that are the subject of the comparison Balgobin v Tower Hamlets London Borough Council [1987] ICR 829.[283]Whether less favourable treatment is proven requires a comparison to a suitable comparator. There is a general requirement that there be no material difference between the people being compared either actually or hypothetically. Section 23 EqA says: 46 of 94 Sept 2023 “23 Comparison by reference to circumstances (1)On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case. (2)The circumstances relating to a case include a person's abilities if— (a)on a comparison for the purposes of section 13, the protected characteristic is disability; (b)… (3)If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is a civil partner while another is married ... is not a material difference between the circumstances relating to each case. (4)If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is married to [or the civil partner of,] a person of the same sex while another is married to [or the civil partner of,] a person of the opposite sex is not a material difference between the circumstances relating to each case.”[284]The comparators need not be identical Hewage v Grampian Health Board [2012] UKSC 37 because if every single aspect of a comparator was the same between the complainant and comparator, then the less favourable treatment could only be because of the protected characteristic, which would make it almost impossible to defend a direct discrimination claim.[285]Following the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, it will often be appropriate to consider the reason for the treatment first and then decide whether that reason meant the treatment was less favourable. Therefore, if the reason for the treatment was because of the protected characteristic, then it might be that the finding of less favourable treatment is inevitable.[286]If the claim is one of direct disability discrimination, then the comparator must have the same abilities as the disabled person Watts v High Quality Lifestyles limited [2006] IRLR 850. In that case the correct comparison to a HIV positive employee was a person without HIV, but who had a transmissible disease that could cause the same level of harm to another person should it be transmitted.[287]This has the consequence that if the Claimant's disability has an adverse effect on their ability to, for example, do their work then how they are treated is to be compared with how the employer would treat someone with a similarly impaired ability to do the work who doesn’t have the Claimant’s disability or who is not disabled. 47 of 94 Sept 2023[288]To take another practical example, if an employee's disability is adversely affecting their ability to attend work regularly and this leads to dismissal, then if the employer can show that a person without that disability who had a similar attendance record would also have been dismissed, then a claim for direct discrimination will fail.[289]To summarise the requirements of the case law, a comparator either actual or hypothetical for a direct disability discrimination claim can be either a person with a different disability or a non-disabled person, so long as they had the same difficulties or attributes as the Claimant.[290]Whether something is less favourable treatment is an objective test Burrett v West Birmingham Health Authority [1994] IRLR 7 EAT, but if a subjective view is being put forward as showing why the complainant says the treatment was less favourable, then such a view can be upheld as evidencing less favourable treatment so long as the view held was reasonable Birmingham City Council v Equal Opportunities Commission [1989] IRLR 173 HL.[291]When considering hypothetical comparators, it is necessary for evidence to be put forward about how actual comparators who are in different but not wholly dissimilar situations have been treated to build the neighbourhood from which it can be determined how a hypothetical comparator in the same or similar circumstances would have been treated Vento v The Chief Constable of West Yorkshire [2001] IRLR 124 EAT.[292]In all cases, it is irrelevant whether the alleged discriminator has the same protected characteristic as the complainant as per s24 EqA 2010.[293]Where there is more than one reason put forward for why the alleged discriminator treated the Complainant how they allegedly did, following the case of Barton v Investec Henderson Crosthwaite Securities limited [2003] IRLR 332, the characteristic should not play any part in the reason(s) for the treatment complained of but, if it does, it must be a significant factor in being more than trivial and following R v Commission for Racial Equality, ex parte, Westminster City Council [1984] IRLR 230, the characteristic needs to be a substantial or effective cause of the discriminatory treatment, but doesn’t need to be the sole or intended cause of it.[294]In addition, there is no legal causal link as such. Instead, the Tribunal should focus on the “real reason” why the alleged discriminator subjected the complainant to the treatment they allege was direct discrimination Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, which is a subjective rather than legal test looking at the mental processes of the alleged discriminator.[295]Following R v The Governing Body of JFS and the Admissions Appeal Panel [2009] UKSC 15, the following approach should be taken: 295.1. Where it is self-evident that discrimination is taking place because there is reference made to the protected characteristic, it is not necessary to analyse the motives of the discriminator, they are irrelevant; 48 of 94 Sept 2023 295.2. Where discrimination is not obvious, it is necessary to analyse the motivation of the alleged discriminator but only for determining whether the characteristic played any part in the alleged discriminatory behaviour; 295.3. In all other circumstances, motivation is irrelevant to a direct discrimination claim.[296]To sum up the current situation about causation in direct discrimination cases, Underhill LJ said in the case of CLFIS (UK) Limited [2015] IRLR 562: “As regards direct discrimination, it is now well-established that a person may be less favourably treated "on the grounds of" a protected characteristic either if the act complained of is inherently discriminatory (e.g. the imposition of an age limit) or if the characteristic in question influenced the "mental processes" of the putative discriminator, whether consciously or unconsciously, to any significant extent…” Discrimination arising in consequence of disability[297]Section 15 says where relevant: “15 Discrimination arising from disability (1)A person(a) (A) discriminates against a disabled person(b) (B) if— (a)A treats B unfavourably because of something arising in consequence of B's disability, and (b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”[298]As to what constitutes “unfavourable treatment”, the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor [2019] ICR 230 held that it is first necessary to identify the relevant treatment and it must then be considered whether it was unfavourable to the Claimant.[299]The Court said that little was likely to be gained by differentiating unfavourable treatment from analogous concepts such as “detriment” found elsewhere in the Act, referring to a relatively low threshold of disadvantage being needed. One could answer the question by asking whether the Claimant was in as good a position as others.[300]What caused the unfavourable treatment requires consideration of the mind(s) of alleged discriminator(s) and thus that the reason which is said to arise from disability be more than just the context for the unfavourable treatment. There need only be a loose connection between the unfavourable treatment and the alleged reason for it, and it need not be the sole or main cause of the treatment, though the reason must operate on the alleged discriminators’ conscious or unconscious thought processes to a significant extent (Charlesworth v Dronsfield Engineering UKEAT/0197/16). 49 of 94 Sept 2023[301]By analogy with Igen, “significant” in this context must mean more than trivial. Whether the thing was “something arising in consequence of the Claimant’s disability” could describe a range of causal links and is an objective question, not requiring an examination of the alleged discriminator’s thought processes.[302]The approach to complaints of discrimination arising from disability was considered in detail by the Employment Appeal Tribunal in Pnaiser v NHS England [2016] IRLR 170: “(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least been a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or they did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises … (d) The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act … the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. … (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. … … 50 of 94 Sept 2023 (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal might ask why A treated the Claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the Claimant's disability. … Alternatively, it might ask whether the disability has a particular consequence for a Claimant that leads to “something” that caused the unfavourable treatment.''[303]When deciding whether there is a connection between the disability and the something that arises in consequence of the disability, regard should also be had to any pre-existing medical evidence.[304]Section 15 EqA 2010 requires an objective factual finding, on the balance of probabilities, of a connection between the disability and the something that arises from the disability. This can connect directly, indirectly or through a series of links.[305]In the absence of contrary evidence where a medical practitioner states in a report something “appears” to be connected to a disability that is likely to meet the balance of probabilities test.[306]The Tribunal is required to consider the thought processes of the alleged perpetrators, to ascertain whether the “something” alleged to have arisen in consequence of the Claimant’s disability formed any part of the reason why the unfavourable treatment took place. This approach to the casual link under Section 15 claims was approved in Robinson v Department of Work and Pensions [2020] IRLR 884, CA. FINDINGS OF FACT DIRECT DISCRIMINATION AND SECTION 15 DISCRIMINATION[307]In February 2022, the Claimant unfortunately contracted COVID-19 for a second[308]It has not escaped our attention that here we have the Claimant, a front line NHS nurse, who has put himself in harms way to support the public and has twice come down with covid-19, like many others in his continuing support of the public during the pandemic for which both we, and we are sure many others, are grateful.[309]Other NHS workers, healthcare professionals in all kinds of roles did the same and indeed those who worked in other frontline services such as care workers, ambulance workers and other similar roles did the same. Indeed, every witness we heard from on both sides of this claim put themselves in danger, to do their jobs during the pandemic and we are grateful to them too.[310]We must not forget the context of the pandemic, when considering the factual backdrop of this case from both sides’ point of view. 51 of 94 Sept 2023[311]When considering the Claimant’s second covid-19 infection, this would undoubtedly have had a serious impact on the Claimant given that he by this time already had what is now known as long COVID, and as can clearly be shown by the tragic death selfies mother and brother, it appears that the Claimant’s family are particularly susceptible to serious consequences when they catch coronavirus.[312]The claimant was off work from 11 February 2022 until the date of his resignation.[313]The long covid diagnosis was confirmed by a fit note dated 7 March 2022 which appears in the bundle of page 478.[314]On 30 March 2022, the fit note reason changed from being long COVID alone to being long COVID and stress. We now know that stress was a code word for the Claimant being anxious and depressed.[315]On 4 May 2022, Mr. Cully emailed the Claimant to explain that he tried to contact the Claimant several times by telephone, but had been unable to get through and to pass on his wishes that he hoped the Claimant wars well and recovering.[316]The other reason for the e-mail was that the latest fit note was unsigned by the doctor and Mr. Cully therefore needed the Claimant to obtain a signed fit note from the GP otherwise it would be invalid. Mr. Cully also explained that he had completed an occupational health referral for the claim and to see what else could be done to support him.[317]On 6 May 2022, the Claimant emailed Mr Cully back and provided these signed fit note. The claim to explained that he was still unwell and in slow convalescence but thanked Mr. Cully for the occupational health referral and said he would await their correspondence. He also stated that Mister Cully should bear with him about the missed calls and the Claimant would endeavour to call Mr Cully back at page 481.[318]Also on 6 May 2022, Mr Cully emailed the Claimant back to thank him for sending in the latest fit note. Mr. Cully also asked the Claimant to telephone him to speak to him about an oh referral and to discuss whether the Respondent was doing enough to support the Claimant at page 481 in the bundle.[319]Additionally on 6 May 2022, Mr Cully completed an occupational health referral form which appears in the bundle of pages 484 to 485.[320]Mr. Cully explained the history of the Claimant's absence, the fact that the Claimant had suffered to bereavements and the fact that the Claimant had been referred to the long COVID clinic by his GP. Significantly Mr Cully also asked for a redeployment assessment to take place and wrote that in the form in capital letters, we believe to emphasise the importance of that assessment given the background to the Claimant's absence.[321]On 11 May 2022, the Claimant sent an e-mail to Mr Cully, which appears at page 486 in the bundle. Significantly, the Claimant says as follows: Sorry for this belated reply - I am not reliably monitoring my emails. 52 of 94 Sept 2023 I understand that you would like to talk to me and I hereby humbly inform you that, I am keen to get back to work, however, I am and need to be focused on my health and not wishing to take calls during my time off because I am still unwell and promptly sending in sick notes. However, I appreciate all your concern and efforts to ensure that I am getting support. Can I also use this opportunity to request that, you forward me the complaint (email), which LJ logged against me on 15th November 2021, which made you to have an informal meeting with me off the MHCAS/Hospital premises on my way home on 17th November 2021. Many thanks and kindest regards”[322]Certainly then, the Claimant was satisfied that he was being adequately supported by Mr. Cully as of 11 May 2022.[323]It was also in this e-mail that the Claimant significantly stated that he was not wishing to take any calls during his absence. We now know through the impact statement submitted by the Claimant that the reason for this was that calls from the workplace were a trigger to the Claimant’s mental health symptoms. However, Mr. Cully did not actually know that at the time.[324]On the same day but later in the afternoon, Mr Cully responded again by e-mail thanking him for the correspondence but also asking for the reason why the Claimant did not wish to speak to him. Mr. Cully appears to have been concerned whether he had done something wrong or whether there was anything in particular that the claim was concerned about and question these things in the e-mail.[325]It also appears that Mister Cully is being sensitive to the fact that whilst he states he has a responsibilities keep in touch with someone whilst they are on sick leave to support them in the best possible way he also stated that “I obviously don't want you to feel like [I sic.] am bothering you when you're unwell but we can have a short chat and agree on weekly calls or something that suits you. You have had a long absence in supporting you via e-mail is not terribly supportive for you and does not really tell what is going on for you.”[326]Mr. Cully then asks for the Claimant to give him a call at page 487.[327]Mr. Cully received no telephone call or any further e-mail response from the Claimant.[328]Another couple of weeks went past and on 1 June 2022, the Claimant attended he is occupational health review via telephone. this triggered a further e-mail from Mr Cully along with the fact that the Claimant’s fit note was due to imminently expire.[329]Again, in the e-mail, Mr. Cully politely requests for the Claimant to give him a call because he is concerned that he has not been able to speak to the Claimant for some time despite his best efforts. 53 of 94 Sept 2023[330]Mr. Cully was also, in our view rightly, concerned that work related stress had also been alluded to in the occupational health report and that without further contact from the Claimant, Mr. Cully was unable to understand precisely what was going on at page 491.[331]The occupational health report described A relatively bleak picture for the Claimant’s health at that time. It noted that the Claimant was suffering with severe levels of fatigue and the fact that mental tasks that require concentration and focus were having a similar impact to physical tasks and if you did too much mental and all physical activity then this was leading to prolonged periods of rest for the Claimant which was not productive to recovery in the long term.[332]The report also noted that there were some interpersonal difficulties with some people at work, which needed to be resolved and it was strongly suggested that there be a stress risk assessment performed and also a conversation should take place between the Claimant and the employee to understand the impact of the interpersonal difficulties and how this was affecting the Claimant.[333]The report recommended a further referral in four to six weeks time to discuss the Claimant's progress.[334]Significantly the Claimant was not keen to consider redeployment at that time. Effectively redeployment was therefore off the table.[335]On 6 June 2022, the Claimant responded to Mr Cully's e-mail of 1 June 2022. In this e-mail, the tone of the Claimant’s communication appears to have changed. For example, he says as follows: “I feel that I'm being put in a situation to relentlessly emphasise my unwellness, which I feel is being perceived otherwise.”[336]There appears to be nothing but we can see or were taken to, to explain why the Claimant's tone changed other than the e-mail that Mister Cully sent to the Claimant on one June 2023 emphasising the need for him and Claimant to have a conversation about the Claimant’s health.[337]We also note that, whilst we are sure he did not mean it, if someone is absent on long term sick leave and have been for as long as the Claimant, it might not have been the best choice of words to start emails with “I hope you are well”. Whilst we are sure Mr. Cully was simply intending to greet the Claimant kindly in his emails, the Claimant clearly and obviously wasn’t well. He’d been absent from work for months.[338]The Claimant also stated clearly that Mr. Cully should bear with the Claimant in wanting to talk to him and says that he will talk to Mr. Cully when he is able to at page 500 in the bundle.[339]At this time, other than the Claimant being unwell, Mr. Cully doesn’t know of any reason why the Claimant would not want to speak to him and indeed cannot comply with the OH report’s recommendation that a conversation take place with the Claimant about interpersonal issues with people at work because the Claimant won’t talk to him, for genuine reasons related to his mental health. 54 of 94 Sept 2023[340]The Claimant remains absent from work and on 7 July 2022, the incident involving Mr. Harries happens. We have already discussed that in the knowledge section above and we don’t need to repeat the factual background to that situation here.[341]On 26 July 2022, Mr. Cully emailed the Claimant again, this time in a more assertive way, to organise a teams call to discuss the Claimant’s ongoing absence in light of the changes in policy about how covid-19 related absences were going to be treated.[342]The important email about this is at pages 516 – 517, which stated: “Dear Abu, I hope this email finds you well. I am writing to you as I would like to make you aware of some important changes in line with the recent communications from NHS Employers. The temporary arrangements for sickness absence for COVID-19 are to be withdrawn and the standard NHS Terms & Conditions will resume. 1. 1. Existing period of COVID-19 sickness that commenced prior to 7th July 2022 There is a transitional period for any COVID-19 sickness that commenced prior to 7th July 2022, which will end on 31st August 2022. From 1st September 2022 staff who were in receipt of COVID-19 sick pay as a result of being unwell prior to 7th July 2022, and continue to be unwell, will be transitioned back to their normal contractual sick pay entitlements unless they have already returned to work. Please also note that in line with the new guidance any period of sickness paid as COVID-19 sick pay, regardless of length, will not count in the aggregation of previous absences for the purposes of calculating entitlement to contractual sick pay. That means that from 1st September staff who have been off work long-term due to Covid-19 (such as long Covid) will move onto sick pay with their full entitlement intact, taking no account of the Covid absence prior to that Next steps: We would like hold a meeting with to discuss the impact of the withdrawal and to explain the changes and discuss any support required. The meeting would be with myself, Charlie Darbyshire and Nuria ButsetRabanal who is the new Employee Relations Manager for Camden & Islington and will be on hand to answer any questions you may have. You can bring a trade union representative or a work colleague. *****Please could you attend a meeting on Thursday 28th July at 15:00pm***** I would be happy to have this meeting in person or on Microsoft Teams. 55 of 94 Sept 2023 If you cannot make this date/time please let me know and we can reschedule but obviously we would like to have this meeting asap so you are aware of the changes. Many thanks Matt”[343]We note that these arrangements are talking about sick pay. They are not about absence calculations for the purposes of absence review trigger points.[344]The email means that for those people who are absent with covid-19 on or after 1 September 2022, will have their absences treated in the same way they were before the pandemic started for the purposes of sick pay.[345]For those people who were already absent on or before 6 July 2022 and who are still unwell, they will be transitioned back to normal sick pay arrangements, however, the contractual sick pay they have already taken, will not be counted and they will revert back to full contractual sick pay entitlement from 1 September onwards.[346]On 28 July 2022, the teams call took place, but the Claimant did not attend.[347]The Claimant's absence from the meeting, triggered a further e-mail from Mr. Cully also on 28 July 2022. Mr Cully explained that he had just tried to call the Claimants to discuss the change in sickness policy however the contact number was off and was not taking any voicemail messages. Mr. Cully stated that the contact number is constantly off and therefore he asked for a different number to contact the Claimant with at page 516 in the bundle.[348]Mr. Cully organised for a further teams meeting the next day at 10am namely 29 July 2022, which would again be attended by HR and Mr Cully.[349]Mr. Cully reiterated that he cannot support the Claimant if he is unable to speak with him and he would really like to have a detailed conversation with the Claimant about what can be done to support him whilst he is absent from work. He also suggests that he would be happy to schedule a more regular contact arrangement to suit the Claimants needs.[350]On 1 August 2022, because he could not get hold of the claim and to discuss the changes to the sickness policies due to coming out of the COVID-19 pandemic, Mr Cully sent the Claimant a letter detailing the arrangements at page 525 to 526 in the bundle.[351]The sick pay arrangements were as explained in the e-mail that we have mentioned previously.[352]However, the letter also mentioned but there were changes to the way that COVID19 absences would be used for absence triggers under the attendance and sickness absence policy of the Respondent.[353]The letter stated as follows: 56 of 94 Sept 2023 “• Any period of COVID-19 sickness that commenced before 7th July 2022 and continue up to and including 31st August 2022 will not be counted for the purposes of sickness absence triggers. From 1st September 2022, the Camden and Islington’s Managing Attendance and Sickness Absence Policy and Procedure will apply.”[354]This therefore meant that the only absence periods that could be counted for the purpose of absence management triggers involving the Claimant were any non COVID related absences and Any COVID related absences dating from 1 September 2022 onwards.[355]The letter also explained that if the Claimant had any queries or concerns about the letter then he should contact Mr. Cully by 4 August 2022 and provide Mr. Cully with an update regarding his ongoing health situation.[356]The Claimant remained absent throughout August and there is no evidence that he responded to the letter detailing the changes to COVID-19 absence management policy.[357]On 25 August 2022, the Claimant’s fit note was again about to expire and this triggered an e-mail from Mr Cully to the Claimant to ask how the Claimant was doing at page 527 in the bundle.[358]Mr. Cully reiterated his concerns that he simply has a responsibility as an employer to keep in touch and to try to support the claimed surround the period of absence. Mr. Cully also, quite reasonably, stated that the Claimant also had a responsibility to speak with the Respondent as per the absence from work policy.[359]Mr. Cully was also keen to avoid referring the Claimant to occupational health again, without first seeing the Claimant or speaking to him because he wanted to find out what would work for him in making the most of such referrals and support structures.[360]There is no evidence of any response to the e-mail other than the Claimants ending in a further fit note on 31 August 2022 covering him for a further period of absence of one month at page 529 in the bundle.[361]Nothing further of note happened until 16 September 2022 when Mr Cully invited the Claimant to attend a meeting to discuss the Claimant's absence from work, which is in the bundle of page 530. The e-mail is headed “Advisory interview in accordance with formal stage one of the managing attendance and sickness absence policy.”[362]The e-mail attached a letter which was the formal invite to the absence review meeting which is in the bundle of pages 532 – 533. It attaches a copy of the Respondent’s absence management policy gave the details of the meeting and the fact that Mr Cully would conduct it supported by Nuria Burset from HR. 57 of 94 Sept 2023 The stage 1 absence review meeting 28 September 2022 and subsequent OH referral in November 2022[363]On 28 September 2022, the sickness absence meeting took place. Notes of that meeting were taken by the Claimants RCN representative Paul Thomas and were an additional document inserted into the bundle as we mentioned at the start of this judgment.[364]Mr Cully led the meeting, but Ms Burset also took an active role in it asking questions where she felt necessary.[365]One problem, it seemed to us, was that Mr Cully and HR were claiming that the relevant sickness absence days were 240 days counting towards the review. However, given that the policy change meant that for the Claimant because he was absent from work with long covid before 7 July 2022, the days that should have been counted were from 1 September 2022 onwards. This was not 240 days, but instead should have ben 28 days by the time of the meeting.[366]Clearly this is a massive difference and, ultimately, this appears to have been a serious and unacceptable blunder by both Mr. Cully and HR and we have no doubt that this would have caused the Claimant a great deal of concern.[367]Mr. Cully said in evidence that he took HR advice about this and we don’t disbelieve him. However, the meaning of the policy change was obvious, clear and it appears that, on this particular point, Mr. Cully has not taken ownership of the calculation of sickness absence. It is not good practice to blindly follow obviously erroneous advice from HR. The ultimate decision maker about that process, it seemed to us was Mr. Cully.[368]However, we accept that Mr. Cully was following HR advice, whether he should have or not, and we find that the absence process was an HR led process. Mr. Cully took a back seat with the sickness absence calculations.[369]When considering the meeting minutes taken by the Claimant’s RCN Union rep, the main focus of that meeting from the Claimant’s point of view, was the interpersonal difficulties with a colleague senior to him where there was some confusion about whether the Claimant should be isolating or at work upon his second covid-19 infection as well as other stressors as he put it.[370]What is significant about the meeting is that the Claimant would not disclose what treatment he was having, other than saying that he was on a dose of something that was being titrated up, he would not disclose all the stressors that he said he was going through at that time and the time before he was absent from work in February 2022 and said he was being bullied but did not give any specific details. The Claimant also mentioned the incident with Mr. Harries.[371]It was explained to the Claimant that there was going to be another OH referral. Both Ms Burset and Mr. Cully then tried to organise regular contact.[372]The Claimant was again reluctant to do that because of the interpersonal difficulties he was experiencing with colleagues and inferred that he also had a problem with how Mr. Cully was handling his long term sickness absence. 58 of 94 Sept 2023[373]The Claimant raised the calculation of the sickness absence days and Ms Burset stated that this calculation was for pay purposes.[374]The Claimant stated correctly, that for the absence management purposes it would be 28 days absence. The note so the meeting stated that Ms Burset would confirm the position in the outcome letter from the meeting.[375]By the end of the meeting, the Claimant said he would email Mr. Cully about what communication arrangements would work for him and it is documented that the Claimant would like to see the questions asked in the OH referral. The exchange is documented as follows: “Nuria - you were seen by OH June Matt? Matt - June, yes. Nuria - for that reason, report, from what I recall doesn't say a lot. At the time they saw you, not in a position to RTW. We do need OH referral. Matt can ask questions, do we need reasonable adjustments. He will monitor sickness for four weeks, OH advice. Paul - highly unlikely as GP note six weeks. Nuria, to review situation and consider OH advice. PT - Abu do you want to see the Qs being asked Abu - Yes Matt - I'll share PT - understand process, seems unlikely RTW in five weeks, OH advice would be helpful close to RTW. Abu - don't know for return. Nuria - will arrange OH referral. Meet with you, unlikely returned by time of meeting. If you keep in touch with Matthew you can explain to him how things are progressing. You mentioned contacted employee assistance. Option to contact again, feedback from people who used the service very positive, ultimately up to you, can attend at any point.”[376]It is therefore clear from the Claimant’s union representative’s meeting notes that Mr Cully agreed to share the questions for the OH referral. NO time about when that would be done is specified in these notes.[377]On 11 October 2022, the Claimant emailed Mr. Cully to explain that he would like to be communicated with by email, he did not trust the staff to phone him and would like to be contacted once every 4 weeks at page 535 in the bundle. 59 of 94 Sept 2023[378]On 25 October 2025, Mr. Cully confirms his understanding about the OH referral from the meeting as follows at page 540: “Hi Abu, Hope you are well. Please see attached the information I would like to send to Occupational Health for your referral, you reported that you would like to see before the referral is made. If you have any questions please let me know, otherwise if I do not hear back from you by the end of the working day on Thursday I will make the referral with the below information.”[379]Therefore, Mr. Cully understood that the Claimant wanted to see all OH referrals before they were sent to OH and he agreed to do that.[380]On 27 October 2022, the Claimant responded as follows: Apologies for the belated response since your email below was sent. I have managed to peruse the referral and would like to mention the below and it is in my humble opinion that it should be included or clarified in the referral because I mentioned it during the Stage One Formal Interview on 28th Sept 2022: 1) That during the Stage One Formal Interview on 28th Sept 2022, I explicitly stated that, I felt bullied when PK (Senior Clinical Specialist Nurse) called from my immediate Line Manager’s mobile phone on 3rd February 2022 and rebuked me; 2) That for my immediate Line Manager’s (C.D) to allow PK (Senior Clinical Specialist Nurse, Band 7 not a Manager) to call me from CD’s mobile number was a breach of confidentiality; 3) That on the 7th July 2022 receiving a private call and talking to H.H (Senior Clinical Specialist Nurse, Band 7 not a Manager) who was the Nurse in Charge, I feel it did tantamount to bullying and harassment; 4) That despite the life events (initial Covid-19 infection, family bereavement, and car accident) I had endured prior to the second Covid-19 re-infection in February 2022, I was soldiering on and had built resilience but PK’s inappropriate call broke me, adversely affected my mental state, and consequently further exacerbated the Long Covid symptoms; 5) That even after the initial Covid-19 infection in Dec 2020, I was subjected to ill 60 of 94 Sept 2023 treatment for which some of it was done covertly; 6) That during the initial absence, I was referred to a Long Covid Clinic, which recommended me for breathing sessions that I paid for privately, however, with respect to this second absence, no referral has been made. Overall, my physical and mental health has been adversely affected, and have lost trust and confidence secondary to feeling bullied, harassed, and treated differently. Note: I have cc’d in Amanda who is the new RCN Officer.”[381]By now, the Claimant has stated twice that he has lost trust and confidence with his team.[382]On 2 November 2022, Mr. Cully emailed the Claimant to state that his comments would be included in the referral and to expect an appointment soon. He also attaches a copy of the Respondent’s anti-bullying policy and that a letter summarising the absence review meeting will also be sent to the Claimant shortly.[383]The occupational health referral was sent the same date and is in the bundle at pages 551 – 552. In it the following questions are asked of occupational health: “Advice required from Occupational Health What is the employees current fitness for work? Likely date of return to work? What effect will this condition have on the employees ability to carry out his/her duties? Are there any modifications / adjustments which would alleviate the condition or aid rehabilitation? Are there any particular duties the employee cannot do? What duties can the employee perform? Is the condition likely to re-occur in the future?”[384]With the referral form, Mr Cully sent an attached summary document including the background Mr. Cully emailed to the Claimant for approval and the Claimant’s responses. In that document, further questions are asked as follows at page 553 – 554: “The questions we would be asking from Occupational healthWould Abu be able to return to work to his current role performing the full range of duties? Would Abu be able to return to work with reasonable adjustments? If so, what would these reasonable adjustments be? Abu has been given information on PAM assistance is there any other support that needs to be considered? 61 of 94 Sept 2023 If Abu is unable to return to work what is a likely timeframe for his recovery? Abu cited stress at work, is there any advice that you can offer regarding this?”[385]What is significant in the context of the Claimant’s claim here is that Mr Cully does not ask the direct question of whether the Claimant’s condition is likely to be a disability.[386]However, Mr. Cully does ask about other aspects of the disability test such as whether the condition was likely to recur, what effects the condition had on his ability to perform his duties, likely timescales for recovery and importantly, whether there were any reasonable adjustments that could be made.[387]In our view, it cannot be said to be an improper referral. It cannot be said to lack detail and it cannot be said that Mr. Cully was turning a blind eye to the Claimant’s situation or failing to explore support that might be available to assist the Claimant.[388]On 7 November 2022, Mr. Cully sent the outcome to the absence review meeting letter to the Claimant by email, with the letter dated 4 November 2022.[389]We have noted that this outcome letter was significantly delayed in being sent to the Claimant, taking over 5 weeks to be sent to him.[390]The letter, despite the Claimant’s counter calculation of 28 days absence to be counted, still refers to 240 days at page 556.[391]We are not persuaded that HR revisited the calculation based on what we have seen, as Ms Burset said she would at the meeting on 28 September 2022. If she had and simply read the wording of the changed policy, she would have seen that the Claimant’s calculation was correct for the purposes of absence trigger points despite him being absent in reality for over 240 days.[392]Mr. Cully signed off the letter, so he didn’t re-check the calculations either.[393]The outcome letter, whilst not as detailed as the notes the Claimant provided, largely matches the nature and content of the discussions at the meeting. The only part that is omitted is the Claimant’s challenge to the absence calculations.[394]On 14 November 2022, The OH referral report is sent to both the Claimant and the Respondent. We have referred to this previously in the knowledge section and need not repeat what it said here. The Respondent’s policy about disability leave and trigger points[395]At this point we take a moment to pause to consider the Respondent’s policy on disability leave.[396]The relevant policy is at page 921. It says at part 12 of the policy as follows: 62 of 94 Sept 2023 “12. STAFF WITH DISABILITY 12.1. Staff who are on sick leave due to reasons relating to their underlying health condition which is covered under the Equality Act 2010 may be managed in line with the principles of this policy. However, the Trust recognises the need for the policy to be applied flexibly in those circumstances in order for staff to feel supported. 12.2. The Trust has implemented Disability Leave in order to support staff with disabilities/underlying health conditions. This type of leave can be used to cover sickness and unexpected absences relating to the disability/underlying health conditions. Managers should refer to the Manager’s Guide to Supporting Staff with Disabilities and consult with the ER Team. 12.3. Managers will take necessary steps such as referral to Occupational Health and consider reasonable adjustments to help employees with disability with maintaining their attendance. Further information can be sought in the Trust’s Guidance on Supporting Staff with Long Term Conditions. 12.4. Managers need to consult with the ER Team before taking any formal steps to address employee’s sickness absence due to reasons relating to disability.”[397]It is clear from the policy that disability leave is intended to cover short term unexpected absences and not long term absences or expected absences in accordance with 12.2. It seems to us to work very much like the circumstances of time off for dependents does (in the Employment Rights Act 1996), albeit that disability leave would be paid and emergency leave is not and this is a policy whereas time off for dependents is statutory.[398]Disability leave is explained in more detail in Disability Leave Guidance at pages 947 – 949. This lists the following as examples of disability leave at page 948: “You can use Disability Leave to:• Allow you to recover from treatment• Take time off for treatment or an assessments• Take unplanned time off work relating to your disability or long term (health) condition Rehabilitation training for a newly disabled worker learning to manage a condition Cancer treatment and rehabilitation• Assessment for conditions such as dyslexia and hearing aid tests• Counselling for a mental health condition• Period of sickness related to disability• Training with a Guide Dog or other assistance dog• Attendance at medical assessments for in-work benefits”[399]The guidance mentions that an allowance of sick leave for disability related reasons can be negotiated when a person is at work but has a higher level of sickness absence because of their disability. This means that their trigger point is 63 of 94 Sept 2023 increased to make allowance for the likely increased amount of absence they might have.[400]However, it is clear from the policy that disability related absences which might be paid as disability leave, are for employees who are at work, but who have absences intermittently. It is not for colleagues on long term sick leave who aren’t regularly attending work and is for temporary periods of leave only.[401]Part of the Claimant’s case was that he was not offered disability leave by Mr. Cully in or around September 2022.[402]Mr. Cully says in evidence that he did not pay it because firstly it wasn’t requested and secondly it was his belief that it would not have been due to the Claimant even if it had been requested. The Claimant wasn’t entitled to it.[403]When he was taken to the disability leave policy during questioning, the Claimant accepted that, in accordance with the definition in the policy, he would not have been entitled to disability leave and he also agreed that this was not raised by him until the stage 2 grievance meeting. Occupational health and referrals[404]One relevant policy here is the absence management policy and procedure.[405]There were two versions in the bundle, one was from July 2019 and the other July 2022 when the covid-19 approach was changed.[406]The policy says that Line managers have a duty to refer staff to occupational health where appropriate and with consent providing at 4.1.5 “sufficient background information description of duties, absence data, etc. when doing so.”[407]The role of the Occupational Health provider is mentioned at 4.4, which stated: “4.4. Occupational Health (OH) 4.4.1. To provide impartial, expert advice to managers and employees on the fitness of employees to undertake their role. 4.4.2. To signpost employees to other appropriate services e.g. counselling. 4.4.3. To advise on reasonable adjustments to the work, workplace, equipment and duties. 4.4.4. To provide advice on ill-health retirement.”[408]Nowhere in the policy does it say that OH referral forms should be shared with the employee before they are sent to Occupational health.[409]The other relevant policy was the supporting colleagues with long term conditions guide from June 2020 starting at page 930 in the bundle.[410]The relevant part of this guidance is on page 948 where it says in the disability leave section: “4. It is a manager responsibility to refer individuals with either long-term or short term sickness absence to the Occupational Health Department (when 64 of 94 Sept 2023 appropriate). Managers must always advise the individual of their intention to refer to the Occupational Health Department, together with the reason and ensure the individual understands that they can have a copy of any referral and subsequent reports if they wish to do so.”[411]This is the right to be told that he may request a copy of the referral the Claimant is referring to.[412]Mr. Cully accepted that he had not previously provided any copies of the OH referral forms to the Claimant and there is no evidence that Mr. Cully advised the Claimant of his right to request a copy of the referral form should he want one.[413]Mr. Cully said during evidence that it was not usual practice to provide the referral form at paragraph 60 of his statement. Sickness absence trigger points[414]There are two trigger points in the management of sickness absence policy. The first is the short term sickness trigger at paragraph 5.1 in the sickness management policy. This is four episodes of illness in any rolling 12 month period and/or intermittent absences of 10 days or more, pro rata for part time employees.[415]Whilst not labelled as such due to the absence of the word “trigger” in the policy, the long term sickness absence trigger is more than 14 days absence in any one period.[416]We know this is the trigger and would have been understood as being the trigger by both sides because this is listed in the return to work forms which ask whether a trigger has been met and it defines the triggers as above for both in the left hand box of the form for example at the bottom of page 457. ANALYSIS AND CONCLUSIONS – ITEMS 7 (A) (1 – 4) AND 12 (D) (1 – 4)[417]The Claimant pleaded items in 7 (a) (1 – 4) of the list of issues as direct disability discrimination and in the alternative as s15 discrimination.[418]Both situations require an assessment of the mental processes of the alleged perpetrator, namely Mr. Cully, after Khan and IPC Media.[419]Overall, Mr. Cully’s verbal evidence was unreliable in many but not all respects because he did not seem to be able to remember what happened in 2022 some three years ago.[420]Consequently, we have needed to carefully engage with the documents in the bundle to see what happened at the time, because of course, Mr. Cully’s view now, is not the correct analysis. We need to look at what he did and why he did it at the[421]Whilst we have chosen to consider these points at this stage in the judgment, we have taken all the facts into account both before during and after the decisions giving rise to these claims as required by Talbot. 65 of 94 Sept 2023[422]We also reminded ourselves that where there appeared to be a valid nondiscriminatory explanation for the treatment put forward by the Respondent, rather than going through the often laborious process of considering the shifting burden of proof, if that explanation is valid and proven, then we need go no further after Hewage and Laing. Mr. Cully refusing to or acting reluctantly to treat the Claimant as a disabled member of staff on or around September 2022[423]We first consider the refusal point. That is a straightforward issue. There is insufficient evidence that the Claimant requested he be treated as a disabled person and consequently, there is insufficient evidence that Mr. Cully refused to treat him in that way. The Claimant therefore has not proven any factual basis for a refusal.[424]When considering whether Mr Cully was reluctant to treat the Claimant as a disabled person, again, Mr. Cully’s reluctance as alleged has not been proven. We are not persuaded that he was reluctant to treat the Claimant as a disabled person.[425]Mr. Cully throughout the 2022 timeline above, made more than reasonable efforts to commence a dialogue with the Claimant to try to be fully in the picture about the Claimant’s absence from work, the Claimant’s condition, treatment and effects and if there were any adjustments that could be considered.[426]The Claimant suggested that the fact Mr. Cully failed to ask whether the Claimant was disabled in the OH referral as evidence he was reluctant to consider the Claimant as disabled. Mr. Cully said that was a genuine oversight and the question was asked in other referrals later which is correct.[427]We accept Mr. Cully’s explanation. There was no reluctance on Mr. Cully’s part to try to engage with the Claimant and manage the absence as well as he knew how to do.[428]Consequently, claims 7 (a) (1) and 12 (d) (1) fail on the facts and are dismissed. Mr. Cully not referring he Claimant for an occupational health assessment prior to commencing the stage 1 sickness absence review[429]When listening to the parties during the hearing, it was understood on both sides that this claim was not a general failure to refer the Claimant to OH at any time prior to the stage 1 meeting. It was a claim that in the run up to the stage one meeting there was not a further referral to OH.[430]Mr. Cully’s explanation was, both in evidence and in the email from that time at page 527, that he did not feel a referral to OH would be as useful as it could be unless he had been able to speak to the Claimant first to understand the situation in a better way, which Mr. Cully had spent months trying to achieve.[431]We have carefully considered his evidence and given that this view is also documented at the time these events were occurring, most notably in the email at page 527, we believe his explanation. 66 of 94 Sept 2023[432]After Khan, the real reason why Mr. Cully did what he did is not because of the Claimant’s disabilities or because of the fact the Claimant was on long term sick leave. It was because he wanted to maximise the OH process and he would not be able to do that unless the Claimant started to engage with him.[433]Consequently, there is no need to consider the burden of proof because we accept the Respondent’s explanation as being a non-discriminatory one after Hewage and Laing.[434]Therefore, claims 7 (a) (2) and 12 (d) (2) fail and are dismissed. Mr Cully not offering the Claimant disability leave in or around September 2022[435]It is correct, and Mr. Cully accepted, that he did not offer disability leave at that[436]However, there is no evidence the Claimant asked for it then and he accepted during questioning that it wasn’t raised until later.[437]Mr. Cully says in his statement it was first discussed with him om 19 January 2023 at paragraph 42.[438]Consequently, we are not persuaded that disability leave even entered the mind of Mr. Cully in or around September 2022, so much so that he didn’t even consider whether to offer it or not. The failure to offer it could not therefore have been because of either the Claimant’s long term sick leave or his disability of long covid.[439]In any event, the Claimant was not entitled to disability leave.[440]Consequently, claims 7 (a) (3) and 12 (d) (3) fail and are dismissed. Mr. Cully did not share a copy of any of the OH referral forms with the Claimant or advise him of the right to be provided with a copy until 2 November 2022 when the Claimant’s RCN rep instigated the November 2022 referral being shared.[441]The facts about this situation are fairly straightforward.[442]The Respondent and Mr. Cully accept that the referral forms were not shared with the Claimant before they were sent to the OH provider, except for the November 2022 referral.[443]Mr. Cully failed to advise the Claimant of his right, in accordance with the guidance we referred to earlier, to request a copy of the referral before sending it to the OH provider.[444]We now need to look at the reason why they weren’t shared and the reason why the Claimant wasn’t informed that he had a right to have a copy of the referral form before it got sent to the OH provider as per Khan and IPC Media.[445]Mr. Cully gave clear evidence about this and said that he didn’t share the OH referral forms because it wasn’t usual practice to do so. He accepted there was an 67 of 94 Sept 2023 agreement to provide a copy of the referral in November 2022 before it was sent to OH, but that was unusual and specifically done for the Claimant.[446]We have considered that evidence and all surrounding circumstances and we believe Mr. Cully’s explanation. In our industrial experience, we find that it is unusual for there to be a policy suggesting the referral form should be provided when, for the reasons Mr Cully explained such as sitting with the employee beforehand to discuss this situation and involving them in the consent process, is usually all that is needed.[447]We therefore believe that Mr. Cully has provided a proven and non- discriminatory reason why he did not provide copies of the referrals and that is sufficient to absolve the Respondent after Laing and Hewage.[448]The Respondent led no case about why Mr. Cully did not explain the Claimant’s right to request a copy of the OH referral to the Claimant before the OH referrals were made.[449]We therefore considered whether the burden of proof had shifted to the Respondent after Igen.[450]In doing so, we reminded ourselves that unreasonable conduct is not enough to shift the burden of itself, after Efobi and Bahl.[451]The Claimant’s case was that we should draw adverse inferences where the burden of proof needs to be considered from the fact that Mr. Cully miscalculated the sickness absence figure in the meeting and subsequent correspondence from 28 September 2022 onwards. This meant that the Claimant was invited to a stage 1 review meeting when he shouldn’t have been.[452]The Respondent has already accepted that the sickness calculation for trigger point purposes was incorrectly calculated, but that is with hindsight. We need to consider what was in the mind of Mr. Cully at that time this happened.[453]Similarly, the Respondent alleged that the sickness absence meeting would have happened anyway even on the 28 day calculation by the Claimant. That appears to be correct given the trigger point is 15 days or more sickness absence. However, again, that is with hindsight and the minds making decisions at that time were using 240 days absence.[454]We know that Mr Cully was taking advice from HR at that time and that Ms Burset was leading the calculation. She was the person who would check the calculation and revert to the Claimant when she had done so. She never did, but there is insufficient evidence from the time to show that Mr. Cully was doing anything other than simply following HR’s advice. Should he have satisfied himself that the calculation was correct? In our view yes he should, but he didn’t and there is nothing that can be done now to change that.[455]The Claimant also submitted that the content of Mr. Cully’s witness statement did not marry up with the notes from the RCN representative referred to earlier in the judgment and we should also draw inferences from that. 68 of 94 Sept 2023[456]We do not accept that submission. Yes, the statement of Mr. Cully does not go into the same detail as the notes do. However, the letter sent confirming what was discussed is very similar to the RCN notes and there is therefore insufficient evidence of any bias or glaring omissions from the documentation coming from Mr. Cully at the time, other than the miscalculation of the sickness trigger days.[457]This means, in the round, that what the Claimant has proven is that HR miscalculated the sickness trigger days, Mr. Cully failed to check that or make up his own mind about it and he relied on HR advice that was clearly wrong. Therefore, the Claimant was invited to a stage one review meeting based on incorrect figures.[458]Little evidence suggests that those decisions were made in any way because of the Claimant’s disability of long covid. Long covid was clearly in the backdrop of those decisions, but that is not enough.[459]Consequently, after Efobi and when considering the guidance in Talbot we have insufficient evidence to draw an inference from the primary facts about the miscalculation of the sickness days.[460]We are not persuaded that either a non-disabled person or a person with a different disability, who: 460.1. had been absent from work for the same period of time as the Claimant 460.2. to the same extent 460.3. who had previously been subject to special policy rules meaning that their sickness absence calculation for trigger points should have disregarded absence days from 31 August 2022 backwards 460.4. if they were absent since before 7 July 2022 would have been treated any differently to the Claimant. There is no evidence for us to draw that inference leading to any knock on findings of a discriminatory mindset elsewhere.[461]Consequently, other than there being a failure of Mr. Cully to advise the Claimant of his right to request a copy of the referral before it went to OH, there are no facts proven that suggest in any way that this was because of disability. There is only the possibility that this was discrimination. There is nothing from which we could conclude that discrimination has taken place, only facts to conclude that discrimination might have taken place.[462]When considering this in the context of section 15, again there is no evidence for us to infer that Mr. Cully failed to advise the Claimant of his right to see the OH referrals if he wanted to because of the fact he was on long term sickness absence.[463]The Claimant has failed to shift the burden of proof about these claims and consequently, claims 7 (a) (4) and 12 (d) (4) fail and are dismissed. 69 of 94 Sept 2023 FINDINGS OF FACT – 14 NOVEMBER 2022 ONWARDS[464]On 23 November 2022, the Claimant was invited to a stage 2 sickness absence meeting, to discuss the ongoing sickness absence and the outcome of the occupational health assessment received by the parties on 14 November 2022 at page 564 in the bundle.[465]The scheduled meeting was to take place on 28 November 2022, But did not take place until 19 January 2023.[466]The reason for the delay was that the Claimant’s union representation was being changed as mentioned at page 573 in the bundle.[467]On 19 January 2023 the stage 2 sickness absence meeting took place. The Claimant's ongoing absence and the reasons for it were discussed. It was agreed this a further occupational health referral would be made and that the referral would be sent to the Claimant again for his comments before it was submitted to occupational health and that there would be a further review in eight weeks time.[468]On 27 January 2023, Mr Cully emails the Claimant to attach the outcome letter, attach the health and safety risk assessment form for stress for the Claimant to complete and to explain that Mr. Cully has referred the Claimant to occupational health.[469]We note that Mr. Cully had agreed with the Claimant to provide a copy of the referral form for his comments, before the referral took place with occupational health. However, Mr. Cully had failed to abide by that agreement.[470]There are two versions of the outcome letter in the bundle. One is dated 19 January 2023 and the other is 24 January 2023.[471]The letters are significantly different in that the latter is significantly more detailed about what was discussed and the former contains an obvious typographical error about the date of a review meeting being organised on 18 November 2022.[472]This clearly can't be a correct date because it dates from before the letter was drafted. There is also a floating “As” with no sentence following on from it before another paragraph starts.[473]Consequently, we have concluded that the 19 January 2023 letter is a draft letter and the 24 January 2023 letter is the correct one. More about this later.[474]We then come the referral itself. There are two referrals from January 2023. The first is dated 27 January 2023 and the second is 31 January 2023.[475]The first referral from the 27th states that the reason for the referral is long term absence and then refers to an attachment. However, the attachment is not present with that document.[476]The second referral from the 31st also mentions an attachment but is more specific and says that specific requests were included in the attachment in relation to the Equality Act. 70 of 94 Sept 2023[477]It is raised specifically as one of the Claimant’s claims. The Claimant takes issue with the paragraph below: “We had formal stage 1 meeting on 16/09 Abu expressed that the work related stress related to when he received two calls earlier in the year (when he was absent) from Senior Clinicians asking if he was returning work. This was as he was showing on the rota (due to delays in extending his fit note) He does not feel they should have called him and says this increased his stress. He states this made him feel targeted and has not accepted the explanation this is standard practice to ensure the service is safe staffed. It does not appear this is entirely proportionate.”[478]The Claimant alleges that the comment made by Mr Cully, that what the Claimant had said or done in response to the call on 7 July 2022 was disproportionate, was an act of both direct discrimination and section 15 discrimination.[479]When questioned about why he said this, Mr Cully said: “It was disproportionate to the calls when this was standard practice. It was a regular thing when he had emailed at 5am. It was normal that the clinical band sevens do that. It’s a 24/7 emergency department. I think there is just misinterpretation here that they should have known this and maybe it should have been picked up with better communication, but I don’t think one phone call for a minute should have caused that reaction. I don’t see it. That’s part of all our roles.”[480]When Mr. Cully is referring to calls as being standard practice, he means calls to people who are rostered to be at work and who do not turn up. That triggers a call such as it did from Mr. Harries. Mr. Cully believed the call has been misinterpreted because he thought the Claimant expected the team to know he was on long term sick leave. When he refers to it being part of all the roles, he meant that the calls to people who do not turn up for work when expected was part of everyone’s role.[481]The Claimant claims this was direct discrimination and section 15 discrimination by Mr. Cully. We discuss this later.[482]On 3 February 2023, the Claimant responds to Mr Cully's e-mail of 27 January 2023. The Claimant wrote as follows at page 586: This is to inform you that, I have an Occupational Health consultation on 17th Feb at 1pm. However, as you aware, an Occupational Health referral should be consented to by and shared with an employee, which the latter was not done whereas during the Formal Stage One it was raised by the RCN officer and furthermore concerns also raised again during the Formal Stage Two meeting. Contrarily, it is also noted in the Sickness Advisory Outcome Stage 2 Letter that, “the Occupational Health referral will be shared with you”. 71 of 94 Sept 2023 Hence, I kindly request to be provided with a copy of the original Occupational Health referral form leading to the Occupational Health consultation scheduled for the 17th February 2023. Besides, I am still unwell and await a GP Medical Review as I reported during the Formal Stage Two interview. Kind regards,”[483]On 10 February 2023, Mr. Cully responds by email at page 592 and says as follows: “ Hi Abu, Hope you are well. I am glad to here you have an appointment on 17th Feb. I am aware you requested to review the referral prior last time and as this is not the usual process for us to do it was an oversight on my part and I apologise for that. I have attached the Occupational health referral information for you, please let me know if you have any further questions before your appointment on 17th Feb. I am sorry to hear you remain unwell. As we discussed in the meeting and was requested by your representative and recommended by OH if you could please complete the HSE stress Risk Assessment and share it with me so we can what we can do to reduce your stress and any concerns you may have about returning to work. Thank you for your email earlier but please could you send me your latest Fit note as the last email did not have an attachment.”[484]Unfortunately, this situation triggered the Claimant submitting his grievance on 15 February 2023. ANALYSIS AND CONCLUSIONS – CLAIMS 7 (a) (5 – 6) and 12 (d) (5 – 6)[485]The first issue the Claimant complaints about as being an active direct discrimination and section 15 discrimination, is the fact that Mr. Cully did not share the occupational health referral form with the Claimant before he submitted either the 27 January 2023 or the 31 January 2023 OH referrals.[486]By now we reminded ourselves that Mr. Cully had at least constructive knowledge of both disabilities, namely long COVID and depression. However, the Claimant expressly stated in the list of issues that the claim about not providing a copy of the occupational health referral about was only the long COVID impairment.[487]After Khan, we need to consider the real reason why Mr. Cully behaved as he did. 72 of 94 Sept 2023[488]We have considered the explanation put forward by the Respondent, and there is simply insufficient evidence from which we can draw an adverse inference but the reason Mr. Cully did this was because of the Claimant’s Long Covid.[489]We believe Mr. Cully, that this was an unfortunate oversight and nothing more.[490]That is a non-discriminatory reason and therefore after Hewage and Laing, we need not refer to the burden of proof.[491]We also do not believe that it's Mr. Cully failed to provide a copy of the referral to the Claimant because the Claimant was on long term sick leave. Mr. Cully stated that he had failed to provide a copy of the referral because the Claimant situation was unique and that led him to omit it.[492]Essentially, we considered Mr. Cully to have been on “autopilot”, with the referral, and he simply forgot to tailor it to the Claimant’s situation.[493]When considering the next allegation at this stage about Mr. Cully’s comment on proportionality, again there is insufficient evidence to suggest that this comment was anything other than Mr. Cully’s honest opinion about how the Claimant reacted to the phone call from Hayner Harries.[494]There is no evidence to suggest that the reason why the disproportionate comment was made, was because the Claimant had either long COVID or depression.[495]Similarly, there is insufficient evidence to suggest that this comment was made simply because the Claimant was on long term sick leave.[496]Yes, it is true that but for the Claimant having long COVID and but for him having depression, he would not be on long term sick leave and the comment would not have been made because Mr. Harris would not have contacted the claimant. The Claimant would have been at work.[497]However, that creates the situation where there is simply a backdrop of the Claimant being on long term sick leave and having these two disabilities. That is not enough to found a claim for direct discrimination and/or section 15 discrimination. The “because of test” has not been made out in the Claimant’s favour and in any event the Respondent has put forward a plausible and proven non-discriminatory reason for the treatment.[498]Consequently, claims 7 (a) (5 – 6) and 12 (d) (5 - 6) fail and are dismissed.[499]As before, although we have chosen to provide the outcome to these claims at this point in the judgement, we have considered all the factual circumstances including those about the grievance process in coming to our decisions. THE LAW – VICTIMISATION AND CONSTRUCTIVE DISMISSAL Victimisation[500]We need not repeat s27 here, it was referred to already above. 73 of 94 Sept 2023[501]The employee must be subjected to a detriment. The concept of detrimental treatment has long been said to include and/or be interchangeable with being placed at a disadvantage after Ministry of Defence v Jeremiah [1979] 3 All ER 833 and Jesudason v Alder Hey Children's NHS Foundation Trust [2020] IRLR 374 albeit that whether something is a detriment or not is to be taken from the subjective view of the alleged victim subject to the test of reasonableness.[502]Similarly, it has been said that unfavourable treatment is analogous with detriment. In a discrimination arising in consequence of disability case, as to what constitutes “unfavourable treatment”, the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor [2019] ICR 230 held that little was likely to be gained by differentiating unfavourable treatment from analogous concepts such as “detriment” found elsewhere in the Act, referring to a relatively low threshold of disadvantage being needed. One could answer the question by asking whether the Claimant was in as good a position as others.[503]Less favourable treatment arguments are not in accordance with the correct statutory wording of s27.[504]Detriment is established if treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to their detriment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL.[505]Therefore, for detriment to be proven, it is for the Claimant to show that they were or would have been, in their subjective view, placed at a disadvantage and that it was objectively reasonable for them to have held that view.[506]The detriment relied upon by the Claimant, must be linked to the protected act. The same test for causation in direct discrimination, is therefore relevant to victimisation because the statutory wording is the same. Constructive dismissal[507]For a resignation to amount to a dismissal under section 95 employment rights act 1996, the following must be answered following the case of Kaur v Leeds Teaching Hospitals [2018] EWCA Civ 978: 507.1. What was the most recent act on the part of the employer which the Claimant alleges caused her resignation? 507.2. Has the contract been affirmed since that date? 507.3. If not, was it a repudiatory breach of contract? 507.4. If not, was it part of a sequence of events that collectively breached trust and confidence? 507.5. Did the employee resign in response to that breach within a reasonable time? 74 of 94 Sept 2023[508]Humby V Barts Health NHS Trust [2024] EAT 17, tells us we need to consider both breaches of implied and express terms for determining whether a repudiatory breach has happened.[509]There is an implied term of mutual trust and confidence that exists in every employment contract Malik v BCCI SA (in Liquidation) [1998] AC 20.[510]Neither party to the contract of employment should behave in a way that either destroys or seriously damages the implied term Claridge v Daler Rowney Limited [2008] ICR 1267.[511]In a case where the breach of the implied term of mutual trust and confidence is alleged, this clause will only be breached where, following the case of Gogay v Hertfordshire County Council [2000] IRLR 703: 511.1. A party behaves in a way that has the purpose and/or effect of breaching mutual trust between the parties; and 511.2. That behaviour was without reasonable and proper cause.[512]A series of events, which may amount to minor issues may amount to a cumulative breach of the implied term when looked at as a whole and the employee has resigned in response to the last act or “last straw” Lewis v Motorworld Garages limited [1986] ICR 157.[513]The last straw must be at least part of the reason for the resignation Omilaju v Waltham Forest London Borough Council [2004] EWCA Civ 1493.[514]The test about what amounts to a repudiation of the contract is helpfully summarised in a number of cases namely Briscoe v Lubrizol Limited [2002] EWCA Civ 508, Dunn and Davidson v AAH Limited [2010] EWCA Civ 183 and Palmeri v Charles Stanley & Co Limited [2021] IRLR 563 (HC).[515]Those cases were about what can justify summary dismissal by an employer of an employee. However, the description of the repudiatory conduct required, in our view, goes both ways and is transferable to a situation where the employee accepts the repudiation by the employer by resigning.[516]The test is brought together, after reviewing all the authorities, at paragraph 42 in Palmeri as follows: “42. The test I am required to apply for that is variously formulated in the authorities. It includes considering whether, objectively and from the perspective of a reasonable person in the position of Charles Stanley, Mr Palmeri had “clearly shown an intention to abandon and altogether refuse to perform the contract” by repudiating the relationship of trust and confidence towards Charles Stanley (Eminence Property Developments v Heaney [2011] 2 All ER (Comm) 223). In a case like this “the focus is on the damage to the relationship between the parties” (Adesokan v Sainsbury's Supermarkets Limited [2017] ICR 590 per Elias LJ paragraph 23).” 75 of 94 Sept 2023[517]Other descriptors were used from other authorities such as the conduct needing to be of a grave and weighty character, or showing a clear disregard for the essential components of the contract or indicating an intention not to be bound by the contract.[518]Therefore, when linking this all together and considering the guidance in Claridge, the conduct alleged to breach the implied term of trust and confidence must be conduct that destroys or seriously damages trust and confidence. Minor breaches that might simply damage trust are not enough. They must seriously damage or completely destroy trust.[519]In the case of constructive dismissal, it is for the Claimant to prove they were constructively dismissed. FINDINGS OF FACT - The grievance procedure - timeline[520]The following timeline for the grievance process is relevant to the Claimant’s claims. We have included the chronology as well as the explanations put forward by the Respondents for any gaps in that timeline: 520.1. On 15 February 2023 the Claimant presents his grievance. 520.2. On 2 March 2023, Mr Darougar agrees to investigate the grievance. 520.3. In the meantime, Mrs Landy is attempting to agree the terms of reference with the Claimant. 520.4. On 20 March 2023, the terms of reference for the investigation are agreed by the Claimant at page 646. 520.5. On 24 March 2023, Mrs Landy sent the agreed terms of reference to Mr. Darougar. 520.6. On 6 April 2023, there was a planning call with Mr. Darougar, Mrs Landy and HR. The Respondent says the delays were caused by a combination of a junior doctor strike and annual leave of colleagues. 520.7. On 14 April 2023, Mrs Landy wrote to the Claimant apologising for the delay. 520.8. On 20 April 2023, Mr. Darougar introduces himself to the Claimant and suggests a teams call on 28 April 2022 at page 664. Also on this date, Mr. Darougar shares the details of the grievance with Mr. Cully. 520.9. Between 25 April and 10 May 2023, It was common ground that the Claimant’s union representatives had travelled to Nigeria and was not returning until 10 May 2023. 520.10. On 26 April 2023, Mr Darougar meets with Mr. Cully to commence investigating the grievance issues. The meeting with Mr. Cully is 76 of 94 Sept 2023 postponed to allow Mr Cully time to read the grievance and send it to his RCN representative. 520.11. On 11 May 2023, Mr. Cully suggests meeting Mr Darougar on 17 or 18 May 2023. 520.12. On 12 May 2023, the Claimant complains about delay etc. of Mr. Darougar and Mrs Landy’s response to grievance at page 680 – 685. 520.13. On 17 May 2023, Mr. Darougar emails the Claimant asking if his union representative is now available and whether the Claimant can meet by teams or obtain a different representative. 520.14. On 18 May 2023, the investigation meeting with Mr Cully takes place via teams, with HR and Nick Child as per Mr. Darougar’s statement at paragraph 34. 520.15. On 23 May 2023, the Claimant responded to Mr. Darougar and explained that he still wanted to communicate in writing only. 520.16. On 23 May 2023, Mr. Darougar also sent the Claimant questions to answer by email as an alternative to meeting with him. 520.17. On 31 May 2023, the Claimant responded answering the questions. 520.18. On 6 June 2023, Mrs Landy chased Mr Darougar for an update on progress. 520.19. On 9 June 2023 as per page 731, Mr. Cully requested further information from Mr. Darougar. 520.20. On 16 June 2023, Mr. Darougar says received the notes of the meeting with Mr. Cully. 520.21. On 20 June 2023, Mr. Darougar tells Mrs Landy that he is in the process of writing the outcome to the grievance. 520.22. On 30 June Mr. Darougar explained to Mrs Landy that he was unable to complete the report that week but would do so the following week. 520.23. Mr. Darougar says he was then on training for a few days that week at paragraph 43 of his statement. 520.24. From 10 – 18 July 2023 Mr. Darougar sought further clarification from Mr. Cully about some of the points discussed as per paragraph 44 of Mr. Darougar’s statement. 520.25. From 19 July 2023 – 14 August 2023, no explanation is given why the outcome was delayed. 77 of 94 Sept 2023 520.26. In late August 2023, Mr. Darougar suffered a bereavement. He took time off work because of it as per paragraph 46 of his statement. 520.27. On 7 September 2023, Mr. Darougar came back to work and he sought access to the OH referrals done in 2021 and 2022. 520.28. Later, on 7 September 2023, Mrs Landy sends the OH documents requested to Mr. Darougar. 520.29. On 12 September 2023, the draft report was produced as per paragraph 48 of Mr. Darougar’s statement. 520.30. Between 12 – 27 September 2023, Mr. Darougar is drafting and finalising the report. 520.31. On 27 September 2023, the final report is produced and sent to Mrs Landy for distribution.[521]Consequently, there grievance from start to finish at stage one took 6 months and 12 days.[522]There is no specific explanation for the delays for 28 days of that time namely 19 July to 14 August 2023, which is about nearly 4 weeks. Mr. Darougar points out that the grievance was complex and had a large volume of documents associated with it.[523]However, whilst Mr. Darougar says he was under immense work pressure at the time, he accepts that at times things took a little longer than they should have done.[524]Mr. Darougar also stated that it didn’t help matters for the Claimant to refuse to have a grievance meeting and to only have things in writing. Mrs Landy’s and Mr. Darougar’s role and communication about the grievance[525]The Claimant implicates Mrs Landy and Mr Darougar as failing to deal with the Claimant’s grievance in a timely way as well as conducting a sham grievance investigation.[526]We must therefore look at their roles in the grievance process.[527]The various roles are governed by the Grievance Policy and Procedure and the HR Investigations Procedure.[528]The grievance policy states that the manager who receives the grievance becomes the “commissioning manager” who commissions the investigation to take place and reviews the outcome report when it is completed as per paragraph 5.11 of the grievance policy at page 1000.[529]The Commissioning manager was also responsible for keeping the Claimant up to date with progress, ensuring the timescales for the policy are followed and Mrs Landy drafted the Terms of reference for the investigation as she was supposed to in accordance with paragraph 2.4 of the Investigations policy at page 889. 78 of 94 Sept 2023[530]Once the investigation was completed, Mrs Landy would decide what action to take based on what the investigation report said.[531]The terms of reference agreed between the Claimant and Mrs Landy are in the bundle at pages 634 – 640.[532]Initially, it had the following allegations: “1. Matthew Cully refused to recognise long covid as a disability under the Equalities Act and therefore has discriminated against you. 2. Matthew Cully was reluctant and refused to treat you as a disabled member of staff. 3. Matthew Cully refused to seek advice from the Trust’s Occupational Health Provider, as to whether you were disabled with long covid prior to the formal stage 1 meeting. 4. Matthew Cully did not share Occupational Health referrals or advised me of my right to be provided with a copy of the referral.”[533]In his initial grievance there was a significant amount of background information that accused Mr. Cully and others of bullying the Claimant. However, the Claimant had specifically stated that he did not want those items to be included in the grievance investigation.[534]Mrs Landy sent the terms of reference to Mr. Darougar and he said that he thought that he thought the allegation that he was being bullied should be included in the terms of reference and therefore a fifth allegation was added: “5. The Claimant felt disrespected, humiliated, belittled, intimidated and bullied.[535]This was later approved by the Claimant despite what he had said in the original grievance.[536]Also, in the terms of reference is a communication plan, which was the responsibility of the Commissioning Manager, the plan said there should be a weekly update about general progress and a fortnightly update to check the Claimants wellbeing. This would usually be via phone or in the case of the general update email could also be used as at page 639.[537]However, Mrs Landy acknowledged that the Claimant preferred to be contacted by email or at least have one day’s prior emailed notice of any calls because calls triggered panic attacks.[538]The communications sent from Mrs Landy updating the Claimant about progress were evidenced as follows, after the final terms of reference with the fifth allegation in were agreed on around 20 March 2023: 538.1. The first update was sent by Mrs Landy on 14 April 2023 over three weeks after the terms of reference were agreed. However, Mrs Landy explained, 79 of 94 Sept 2023 and we believe, that this was predominantly because of the junior doctor strikes that took place a few days prior to this email and that she was awaiting an update from Mr. Darougar. It turns out that Mr. Darougar was delayed because his annual leave as discussed by email at pages 660 – 661 and 687. 538.2. Further emails were exchanged 5 May 2023 between the Claimant and Mrs Landy trying to organise a catch up at page 671. 538.3. On 12 May 2023, Mrs Landy received the Claimant’s grievance about how the grievance process had been handled thus far and Mrs Landy immediately acknowledge it by emailing the Claimant at page 679. 538.4. On 23 May 2023, Mrs Landy tried to organise another catch up with the Claimant at page 712 – 713. That catch up took place as evidenced by the email confirming so at page 720. Mrs Landy stated she would be on annual leave until on or around 5 June 2023. 538.5. On 9 June 2023, Mrs Landy made further contact with the Claimant by email to update him as per page 731. 538.6. A further update was provided on 19 July 2023 where Mrs Landy apologised again for the delay but explained this was due to there being a delay in the investigation meeting with Mr. Cully at page753. 538.7. Mrs Landy emailed the Claimant about his OH appointment 11 August 2023 at page754. At this time, Mrs Landy was really at the mercy of how Mr. Darougar’s investigation or drafting of the report was progressing. 538.8. On 14 August 2023, Mrs Landy emailed an additional update to the Claimant relaying that Mr Darougar expected the report to be completed the following week at page 761. 538.9. On 21 August 2023, Mrs Landy emailed the Claimant to state they were in receipt of his latest OH report and an appointment to discuss his ongoing absence would be made to discuss the report at page 769 in the bundle. 538.10. In late August 2023, Mr. Darougar suffered a family bereavement and took 10 days off work. 538.11. On 29 August 2023, Mrs Landy updated the Claimant about progress and again apologised for the delay as at page 809 in the bundle. She explained the reason was Mr. Darougar’s bereavement and that he was now back at work and finalising the report. 538.12. By 7 September 2023, Mr. Darougar communicated to Mrs Landy that he was reviewing his draft report before finalising it. Mrs Landy was requested to provide some previous OH reports to assist Mr. Darougar in doing this. Mrs Landy provided them. 538.13. On 8 September 2023, Mrs Landy again emailed the Claimant with an update and the reasons for the delay at page 851. 80 of 94 Sept 2023 538.14. The report was finalised on 26 September 2023 and is found in the bundle at pages 782 – 805. It had 25 appendices attached to it. 538.15. On 26 September 2023, Mrs Landy invited the Claimant to attend a grievance outcome meeting. 538.16. On 3 October 2023, the outcome meeting went ahead and Mrs Landy went through her decisions based on the report of Mr. Darougar. 538.17. On 6 October 2023, Mrs Landy wrote to the Claimant confirming her decisions made based on the report of Mr. Darougar.[539]Whilst it is true that Mrs Landy did not always stick to the communication plan agreed with the Claimant, it cannot be said that Mrs Landy did not keep the Claimant regularly informed or did not chase Mr. Darougar to try to drive the grievance investigation forward as supported by numerous emails in the bundle and the statements of both Mr. Darougar and Mrs Landy.[540]Mr Darougar’s role as the Investigation manager was to investigate the issues in an independent and fair way by interviewing relevant witnesses as well as finding and considering any relevant documents or other evidence. He was also required to write a report of his findings as per para 2.5 of the Investigation policy at page 890.[541]During the investigation, Mr. Darougar interviewed Mr. Cully, asked written questions of the Claimant and referred to an extensive amount of documentation.[542]There were some errors in the report. These were as follows: 542.1. Mr. Darougar had referred erroneously to the draft outcome of stage two sickness absence meeting at annex 17 referred to earlier in the judgment dated 19 January 2023 instead of the actual letter sent out that was not a draft. This is show referenced at page 804 as an embedded word document. 542.2. Mr. Darougar had referred to the change in sickness policy letter as being July 2022 when it was dated in August 2022 as shown by the embedded reference at page 804.[543]When put to him, Mr. Darougar had no explanation for these errors other than to say that either incorrect documents were supplied to him or he had made a genuine mistake.[544]Mr. Darougar had also taken Mr. Cully’s evidence during his investigation meeting that he was obtaining HR advice to make his decisions about the sickness absence process at face value and did not ask for proof from Mr. Cully that he had in fact taken such advice. His explanation for simply believing Mr. Cully was that there was evidence elsewhere that suggested Mr. Cully had sought HR advice such as in the stage one sickness absence meeting and letters and that he had found no reason to disbelieve Mr. Cully.[545]When Mr. Darougar was asked questions about this, his Counsel objected to the line of questioning. 81 of 94 Sept 2023[546]We were unimpressed with that objection. Clearly, there were holes in the report that the Claimant’s representative was exploring and, whilst this was not specifically mentioned in the list of issues, Mr. Onibokun sought to argue that inferences should be drawn from these holes or mistakes given the Claimant was arguing that the grievance investigation was a sham.[547]Counsel for the Respondent suggested the Respondent had been ambushed with this issue. Clearly not. The report and the grievance process were all relevant to the list of issues, the Claimant had previously grieved about the process at the time and the whole reason why Mrs Landy and Mr Darougar were called to give evidence by the Respondent was to describe what they did and the reasons they did it throughout the grievance investigation and decision making process.[548]We therefore allowed this line of questioning to continue. It was relevant and it was reasonable.[549]Mr. Darougar also cited the incorrect bullying and discrimination policy. He cited the one dated 2022 not the one that was relevant at the time of the events.[550]The sickness absence policy is not cited at all in the report.[551]Mr. Darougar had no explanation for why the sickness absence policy was not mentioned at all, which was surprising considering a specific part of the grievance was about alleged failures under that policy quoted in Mr. Darougar’s report at page 801 before the conclusion section.[552]However, some of the applicable rules were contained in the update letter when covid rules were changed about sick pay and trigger calculations and in addition the terms of reference do not include anything specific to the sickness absence policy. The grievance outcome letter and the Claimant’s resignation[553]The grievance outcome letter is in the bundle at pages 865 – 869.[554]Mrs Landy rejected all the grievances, but both Mr Darougar in the investigation report and Mrs Landy when she endorses those recommendations, agreed that there were some improvements that could be made to the Respondent’s approach to things going forwards.[555]On 25 October 2023, the Claimant resigned by emailing his resignation letter to Mrs Landy at pages 875 and 876 in the bundle.[556]The following key points arise from the resignation letter: 556.1. The resignation is with immediate effect; 556.2. the Claimant alleges that his physical and mental health and well-being have been seriously affected by the ongoing issues with the Respondent; 556.3. The Claimant states that he believes he has been constructively unfairly dismissed; 82 of 94 Sept 2023 556.4. he alleges serious discrimination for the reasons set out in its formal grievance lesser of the 15 February 2023, his complaint letter of 12 May 2023 and the “…persistent, contumelious, deliberate, and contrived inordinate delay in bringing my grievance complaints to a timely conclusion.” 556.5. The Claimant mentions that there were promises given by the managers appointed to deal with grievances in a timely way which were never kept. 556.6. The Claimant science that the conduct of the managers has caused him to lose trust and confidence in the organisation as his employer. ANALYSIS AND CONCLUSION – VICTIMISATION INCLUDING CLAIMS 7 (a) (7), 12 (e) (i – ii) and 34 (a – b)[557]For his victimisation complaints we have already discussed the claim relies on 4 proven protected acts. These were: 557.1. His first claim; 557.2. his grievance of 15 February 2023; 557.3. the grievance of 12 May 2023; 557.4. his second claim.[558]The second claim could not have affected either Mr Darougar’s or Mrs Landy’s minds because they had no knowledge of it until March 2024 after the Claimant’s employment ended.[559]The Claimant claims that Mrs Landy and Mr Darougar's failure to deal with the grievance or 15 February 2023 in a reasonable time scale is direct discrimination, unfavourable treatment for section 15 and detrimental treatment by way of victimisation.[560]We have identified that there are approximately 4 weeks of time during the grievance timeline, where there appears to be no acceptable reason put forward for the delay in dealing with the Claimant’s grievance.[561]Mr Darougar has accepted that at times things were not moved forward as quickly as they could have been more generally.[562]The amount of delay is therefore about 15% of the timeline of the grievance process.[563]At all other times it appears to us that there were proven reasons for the delay such as annual leave of either the managers conducting the grievance process or their colleagues, an unchallenged bereavement of Mr Darougar, the increased pressure and workload caused by junior doctor strikes, the Claimant's own union representative being unavailable, the organisation of an investigation with Mr. Cully being delayed because he was seeking his own advice from his union 83 of 94 Sept 2023 representative and also more generally the complexity and number of documents involved in the investigation.[564]When considering the direct discrimination complaint, we accept that there were errors made during the investigation of the grievance, which Mr Darougar accepted and for which he has no explanation.[565]However, like with the Claimant’s other complaints after the guidance in Efobi and Talbot, the Claimant has failed to persuade us that there is sufficient evidence from which we could conclude that discrimination had happened.[566]It is clear that delays in the grievance process clearly placed the Claimant at a disadvantage and was detrimental to him, because the Claimant was in an emotionally delicate state due to his mental health at that time.[567]We accept that both subjectively and objectively, the unexplained delay of some weeks in the process, was legally a detriment for the purposes of both the section 15 claim and the section 27 claim.[568]However, here there are simply delays, some of which to a small extent in the full timeline of the grievance process were unexplained, in the backdrop of either the Claimant being on long term sick leave, him having made claims to the employment Tribunal or him having submitted grievances. That is not enough.[569]We are unanimous in our view that there was nothing in any of the factual backdrop to this situation to suggest that any of the errors or the fact that Mr. Darougar failed to refer to the sickness absence management policy, were because of any of the protected acts, the fact the claimant was on long term sick leave or because of his long COVID or depression.[570]The Claimant also alleges that a sham investigation was conducted for the purposes of another victimisation complaint and a section 15 complaint.[571]We are not persuaded that the investigation carried out by Mr. Darougar or the outcome of that investigation causing Mrs Landy to reject the grievance was a sham.[572]Yes, there were some holes in the investigation and mistakes made with some of the documents that Mr Darougar referred to.[573]Yes, the fact that Mr. Darougar simply took Mr. Cully’s comments at face value suggests a lack of challenging the evidence presented and potential bias towards the manager in his investigation.[574]However, given the report was tens of pages in length, given that Mr. Darougar himself added an allegation to the terms of reference because he felt that the bullying allegations needed to be investigated and given that the main alleged culprit, namely Mr. Cully, was invited to a meeting to discuss the allegations, on balance, strongly suggest to us that Mr. Darougar investigated the issues in good faith. 84 of 94 Sept 2023[575]We believe that although mistakes were made and things might have been done differently with hindsight, Mr. Darougar tried his best to fairly and diligently investigate the Claimant’s grievance.[576]We also believe that Mrs Landy relied on the evidence and findings of the investigation report to come to her conclusions and reject all the Claimants grievances.[577]Consequently, all allegations that the grievance investigation and outcome wars a sham are not made out on the facts.[578]Consequently, claims 7 (a) (7), 12 (e) (i – ii) and 34 (a – b) in the list of issues all fail and are dismissed.[579]We therefore conclude that all the Claimant’s discrimination complaints are not well founded and are dismissed. The Claimant could not have resigned because of any discriminatory conduct of the Respondent, because we have found that no discrimination took place. Any dismissal was not therefore a discriminatory one in accordance with s39 (7). ANALYSIS AND CONCLUSIONS – CONSTRUCTIVE DISMISSAL[580]We now turn to the constructive dismissal complaint.[581]The Claimant relies on the following breaches of contract to support his constructive dismissal after considering the guidance in Humby, requiring the Tribunal to consider both express and implied terms: 581.1. The implied term of mutual trust and confidence; and 581.2. the express term that the Respondent would not discriminate against the Claimant in any way because of or related to his disabilities namely, less favourable or unfavourable treatment or subjecting him to a disadvantage.[582]The specific breaches either individually or cumulatively of the implied term of trust and confidence were identified by the Claimant as follows, after discussion at a case management hearing before Judge B Smith and after discussion on day one of the final hearing: 582.1. The previous outcome was not provided until 3 October 2023; 582.2. there was no identifiable reason why the grievance outcome was not provided until then; 582.3. Mr Darougar and Mrs Landy deliberately delay the outcome of the grievance process knowing the impact that it would have on the Claimant’s well-being given his mental health condition; 582.4. that the grievance outcome was only provided because of the order of employment Judge Adkin dated 11 September 2023; 85 of 94 Sept 2023 582.5. the Claimant also relied upon the victimisation allegations about the delay in the grievance process being victimisation and the sham investigation being conducted.[583]Turning to the first question in Kaur, the most recent act the Claimant relies upon as causing the resignation is the conclusion of the grievance process on 3 October 2023.[584]When considering the second question, we are not persuaded that the Claimant has affirmed the contract in any way since that grievance outcome was provided. There is no evidence to suggest anything of the sort.[585]We then turn to the third question about whether the delay in the grievance process, leading to the outcome being provided 3 October 2023, is a repudiatory breach of contract.[586]We have already concluded that no discrimination has taken place in this case. Consequently, there has been no breach of any express to the Respondent would not discriminate against the Claimant.[587]This leaves the implied term of trust and confidence.[588]It is clear to us that there has been some unexplained delays in the outcome of the grievance being provided. These delays were caused by Mr. Darougar.[589]Consequently, it is clear after Malik, that the Respondent has behaved in a way that has had the effect of eroding mutual trust and confidence.[590]For the 15% of the time where there was no explanation for the delay, that delay cannot be said to have had reasonable and proper cause.[591]However, Mr Darougar has clearly put forward a number of explanations which account for most, namely about 85%, of the grievance timeline.[592]We must consider the seriousness of the breach of the implied term of trust and confidence whether the breach has seriously damaged or completely destroyed trust and confidence after Claridge, to determine whether it is a repudiatory breach in the third part of Kaur.[593]We are unanimous in our view that following Briscoe, Dunn and Davidson and Palmeri, the relatively small amount of unexplained delay, is not grave and weighty. It cannot reasonably be considered to be evidence of the Respondent abandoning its duties and responsibilities to the Claimant under the contract of employment and consequently, in our view, it cannot be viewed as seriously damaging trust and confidence.[594]Consequently, whilst we accept that there is a minor breach of the implied term of trust and confidence, it is not serious enough when considered reasonably from the perspective of a reasonably informed observer having knowledge both of the Claimant’s mental and emotional state, as well as the internal goings on during the grievance process with all of the pressures and other factors we have already 86 of 94 Sept 2023 identified that reasonably explained why the grievance took as long as it did to conclude.[595]There is no evidence whatsoever to conclude that Mrs Landy and/or Mr Darougar deliberately delayed the grievance outcome to in some way damage the Claimant because they knew of his mental health condition on the emotional sensitivity that resulted from it.[596]There is also insufficient evidence to suggest that what triggered the outcome of the grievance being provided when it was, was the order of Judge Adkin. The two may have happened at a similar time. However, we are not persuaded that the order caused the outcome to suddenly arrive.[597]As a result, none of the alleged repudiatory breaches of contract on their own are sufficient to found a constructive dismissal.[598]We then consider the fourth part of the Kaur test, reminding ourselves that the breaches of contract or poor conduct alleged does not need on their own to be repudiatory.[599]Indeed, none of the individual alleged breaches of contract or conduct that cumulatively amounted to a repudiatory breach of contract, need to be serious enough alone to found a constructive dismissal.[600]However, with all the allegations except for a small unexplained delay in the grievance process being made out, there is not a sufficient series of minor events to amount to a cumulative breach of the implied term of trust and confidence.[601]To sum up our conclusions, there has been no constructive dismissal because the Respondent has not discriminated against the Claimant in any way. There has been no repudiatory conduct for any one of the alleged breaches of contract and there has been no cumulative conduct of minor issues that could be said to collectively amount to a repudiatory breach of contract.[602]Consequently, the Claimant’s constructive dismissal case fails at stage four of the Kaur test for cumulative conduct and at stage 3 of the Kaur test for the sole breach of the implied term because of minor unexplained delay in the grievance process.[603]The Claimant was not dismissed, he resigned, and this means that there can be no unfair dismissal claim.[604]Consequently, the Claimant’s claims for unfair dismissal or discriminatory dismissal fail and are dismissed.[605]All the Claimant’s claims are therefore not well founded and they are dismissed. That concludes these proceedings. 87 of 94 Sept 2023 Judgment approved by: Employment Judge G Smart On 11 September 202517 September 2025 ……………………………. ……...…………………….. ANNEX 1 – FINAL LIST OF ISSUES Disability[1]Was the Claimant a disabled person within the meaning of s.6 EqA 2010 at the relevant times? The Claimant relies on the medical conditions of Long Covid and depression.[2]The Tribunal will decide: a) Did he have a physical or mental impairment, namely Long Covid and/or depression? b) Did it have a substantial adverse effect on her ability to carry out day-to-day activities? c) If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? d) Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?[3]Were the effects of the impairment long-term? The Tribunal will decide: a) did they last at least 12 months, or b) were they likely to last at least 12 months? c) If not, were they likely to recur?[4]The Respondent has accepted that the Claimant was disabled with long covid during the relevant period (that being 7 July 2022 to 30 October 2023). 88 of 94 Sept 2023[5]The Respondent has accepted that the Claimant was disabled with depression from 21 August 2023 onwards only. Jurisdiction for all claims[6]Were the alleged discriminatory acts or acts of alleged victimisation made within the time limit? The Tribunal will decide: i) Were each of the three claims made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates? ii) If not, was there conduct extending over a period? iii) If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period? b) If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide: i) Why were the complaints not made to the Tribunal in time? ii) In any event, is it just and equitable in all the circumstances to extend time? c) Has the Claimant’s claim for constructive unfair dismissal been brought within the relevant time limits, taking into account any extension of time for taking part in ACAS Early Conciliation or, if not, was it reasonably practicable to do so and, if not, would it be reasonable for the Tribunal to extend the time limit? Henderson v Henderson d) Are any matters raised in this claim, matters which were not, but could and should have been raised in earlier proceedings? (Henderson v Henderson (1843) 3 Hare 99). e) If so, which matters should be struck out as an abuse of process? Direct Discrimination[7]Did: a) Matthew Cully:(1) Refuse or act reluctantly to treat the Claimant as a disabled member of staff in around September 2022 [Claim 2].(2) Not refer the Claimant to OH for assessment prior to deciding to commence with stage 1 sickness absence process in or around September 2022 [Claim 2 at para 42]. 89 of 94 Sept 2023(3) Not offer disability leave in or around September 2022 [Claim 2].(4) Never at any time shared a copy of his OH referrals with the Claimant or advised the Claimant of his right to be provided with a copy until the copy of the 2 November 2022 referral instigated by the Claimant’s then union representative from RCN [Claim 2 at para 44].(5) Not provide a copy of the referral to OH made in or around February 2023 until the Claimant requested it [Claim 2].(6) Write in the OH referral in or around February 2023: “we had four stage one meeting on 16/09 Abu expressed that the work related stress related to when he received two calls earlier in the year (when he was absent) from senior clinicians asking him if he was returning to work. This was as he was showing on the rota (due to delays in extending his footnote). He does not feel they should have called him and says this increased his stress. He states this made him feel targeted and happiness accepted the explanation this is standard practice to ensure the service is safe staffed it does not appear this is entirely proportionate.” The Claimant says quote items 1-5 relate only to long covid. b) Faye Landy and Durand Darougar:(7) Fail to deal with his grievance of 15 February 2023 in a reasonable timescale? [Claim 2] The Claimant says that items 6 and 7 relate to both long covid and depression.[8]Was that treatment less favourable than it was (or hypothetically would have been) for a non-disabled person? The Claimant relies on a hypothetical comparator only which is a non disabled employee in circumstances not materially different to the Claimant’s.[9]If yes, what's the less favourable treatment because of the Claimant’s disability? The Respondent disputes knowledge of disability.[10]For events that occurred before 27 March 2023, is the claim out of time or do the events form part of a continuing act?[11]If any claims are out of time, is it just and equitable to extend time? Discrimination arising because of something in consequence of disability[12]Has the Respondent treated the Claimant unfavourably? Did: a) The Respondent make telephone calls to the Claimant on 7 July 2022? It is 90 of 94 Sept 2023 alleged that several calls were received by the Claimant before he picked up the index called from the same telephone number from which Mr. Harries made the calls [Claim 1]. b) Mr. Harries ridicule the Claimant by saying loudly to others in the background that the Claimant was “still off sick” with the others joining in the fun [Claim 1]. c) For both a) and b) above, the Respondent argues that Mr Harries did not know that the Claimant was on long term sick leave. d) Matthew Cully:(1) Refuse or act reluctantly to treat the Claimant as a disabled member of staff in around September 2022 [Claim2].(2) Not refer the Claimant to OH for assessment prior to deciding to commence with stage 1 sickness absence process in or around September 2022 [Claim 2 at para 42].(3) Not offer disability leave in or around September 2022 [Claim 2].(4) Never at any time shared a copy of his OH referrals with the cleans or with visor the claims of his right to be provided with a copy until the copy of the 2 November 2022 referral instigated by the Claimants then union representative from RCN [Claim 2 at para 44].(5) Not provide a copy of the referral to OH made in or around February 2023 until the Claimant requested it [Claim 2].(6) Write in the OH referral in or around February 2023: “we had four stage one meeting on 16/09 Abu expressed that the work related stress related to when he received two calls earlier in the year (when he was absent) from senior clinicians asking him if he was returning to work. This was as he was showing on the rota (due to delays in extending his footnote). He does not feel they should have called him and says this increased his stress. He states this made him feel targeted and happiness accepted the explanation this is standard practice to ensure the service is safe staffed it does not appear this is entirely proportionate.” e) Faye Landy and Durand Darougar: i) Tacitly support Matthew Cully by conducting a sham grievance investigation? [Claim 2] ii) Fail to deal with his grievance of 15 February 2023 within a reasonable time scale? [Claim 2].[13]If so, was that treatment because of something that arose in consequence of the Claimant’s disability, namely that the Claimant was on long term sickness 91 of 94 Sept 2023 absence?[14]Did the Respondent know, or could reasonably have been expected to know, of the Claimant’s disability(ies)?[15]If so, was the treatment proportionate means of achieving a legitimate aim? Namely: a) The Respondent’s duty to ensure that there were safe and appropriate staffing levels, which is relied upon for claims 12 a), b) and d); b) The Respondents ensuring that the Claimants sickness absence and grievance were managed proportionately and appropriately, which is relied upon for claim 12 e). Victimisation[16]Did the Claimant do a protected act as follows: a) Submit claim one with claim number 2211488/ 2022 on 17 December 2022? The Respondent admits this is a protected act. b) Lodge a grievance on 15 February 2023? The Respondent admits this is a protected act. c) Lodge a grievance about Faye Landy and Durand Darougar 12 May 2023, which is alleged to be a protected act under section 27 (2) (d) of the Equality Act 2010. The Respondent denies that this was a protected act because it does not fall within any definition under section 27 (2) of the Equality Act 2010. i) Did the Claimant make an express allegation that the Respondent or any other person had contravened the Equality Act 2010? ii) If not, did the Claimant make implied allegation that the Respondent or any other person had contravened the Equality Act 2010? iii) The Respondent confirmed it was not running the defence of false evidence, information or allegations being given or made in bad faith. d) Submit claim 2 with claim number 2210783/ 2023 on 26 June 2023. The Respondent admits this is a protected act.[17]Did Faye Landy and/or Durand Darougar do the following things: a) Delay in handling the Claimant’s grievance; and/or b) Fail to investigate the Claimant’s grievance and/or conduct a sham investigation? 92 of 94 Sept 2023[18]If so, was that detrimental treatment of the Claimant?[19]If so, was the Claimant subjected to that detrimental treatment because of any of the protected acts? Constructive discriminatory dismissal[20]Did the Respondent either cumulatively or by a single act breach either an implied or express term of the Claimant’s employment contract?[21]Did the Respondent do any of the following things: a) Deliberately, inordinately and inexplicably delay in providing the Claimant with an outcome to his grievance dated 15 February 2023 until 3 October 2023? b) Conduct a superficial and sham investigation into the grievance? c) Both of which the Claimant argues were unfavourable treatment because of His long term sickness absence arising in consequence of his disability(ies), which cannot be justified and/or were acts of victimisation. d) Provide the outcome to the grievance only in response to a requirement ordered by EJ Atkin on 11 September 2023, for the Respondent to lodge an amended grounds of resistance by 9 October 2023?[22]If so, were those acts or failures to act a breach of the Claimant’s contract of employment? The Claimant relies upon: a) the express clause of his contract of employment not to be treated less favourably on the grounds of sex, race, colour, religion or belief, marital status, sexuality, age, ethnic origin, or disability or is not placed at a disadvantage (clause 24 of the Claimants contracted employment dated 15 September 2017); b) The implied term of mutual trust and confidence.[23]If so, was any breach sufficiently serious asked to amount to a repudiatory breach of contract entitling the Claimant to consider himself discharged from any further obligation under the contract?
THE ISSUES
[24]When considering any breach of the implied term of mutual trust and confidence, was that conduct calculated or likely to undermine the trust and confidence between the Claimant and the Respondent?[25]If so, again when considering any breach of the implied term of mutual trust and confidence, did the Respondent have reasonable or proper cause for behaving how it did?[26]If there was a breach of an express clause and/or if there was no reasonable and proper cause for breaching the implied term of mutual trust and confidence and 93 of 94 Sept 2023 either or both were repudiatory breaches of contract, did the Claimant resign either wholly or partly in response to the breach?[27]If so, did the Claimant resign within a reasonable period of time from the breach or was their conduct/behaviour suggesting the Claimant kept the contract alive and or affirmed any breach of contract by the Respondent?[28]If the Claimant did resign within a reasonable period of time, can the Respondents conduct alleged to be discriminatory because of unfavourable treatment because off the Claimant being on long term sickness absence which arose in consequences of his disability(ies) be justified?[29]If not, there was a constructive discriminatory dismissal.[30]If justification succeeds, was/were the repudiatory breaches of contract acts of victimisation?[31]If so, there was a constructive discriminatory dismissal.
THE EVIDENCE
[32]Is not, there was simply a constructive dismissal. Constructive unfair dismissal[33]If the Claimant was constructively dismissed, did the Respondent have a potentially fair reason for behaving in the way it did, which amounted to a repudiatory breach of contract? The Respondent relies upon its conduct being for some other substantial reason namely a breakdown in working relationships between the Claimant and Respondent.[34]What was the principal reason for the dismissal?[35]If the principal reason was a potentially fair reason, did the employer behave reasonably or unreasonably in behaving in that way such that the reason was a sufficient reason for dismissing the employee, when taking into account all the circumstances, the equity and substantial merits of the case and the size and administrative resources of the Respondent?[36]Was there a fair procedure for the dismissal? End. 94 of 94 Sept 2023