Mr R Williams v Nexmo Ltd and Vonage Ltd: 2215433/2023

EMPLOYMENT TRIBUNALS

Case No 2215433/2023

Between

Mr R WilliamsClaimant

Nexmo Ltd and Vonage LtdRespondent

Before

Employment Judge B Smith

In person for claimant

Date 9 September 2024

JUDGMENT

The unanimous judgment of the Tribunal is as follows: Direct discrimination

[1]The complaint of direct disability discrimination was not presented within the applicable time limit but it is just and equitable to extend the time limit.

[2]The complaint of direct disability discrimination in respect of not awarding the claimant the Long Term Incentive (LTI) in February March 2023 is well-founded and succeeds against both respondents on a joint and several basis.

[3]The complaint of direct disability discrimination in respect of not paying the claimant the Key Contributor Award in February/March 2023 is dismissed upon withdrawal.

[4]The remaining complaint of direct disability discrimination is not wellfounded and is dismissed. Case No: 2215433/2023 2 Indirect discrimination

[5]The complaint of indirect disability discrimination in respect of failing to chase up the income protection insurance from May 2023 is dismissed upon withdrawal.

[6]The remaining complaints of indirect disability discrimination are not wellfounded and are dismissed. Harassment

[7]Some elements of the complaint of harassment related to disability were not presented within the applicable time limit but it is just and equitable to extend the time limit.

[8]The complaint of harassment related to disability in respect of withholding information/failing to provide the claimant with relevant information is dismissed upon withdrawal.

[9]The remaining complaints of harassment relating to disability are not wellfounded and are dismissed. Employment Judge Barry Smith 9 September 2024 SENT TO THE PARTIES ON 16 September 2024 ........................................................................................ ........................................................................................ FOR THE TRIBUNAL OFFICE Case No: 2215433/2023 1 EMPLOYMENT TRIBUNALS Claimant: Mr R Williams Respondents: 1. Nexmo Limited 2. Vonage Limited Heard at: London Central On: 2, 3, 4, 5, 6, 9 September 2024 (by remote video hearing) Before:

REASONS

[1]The claimant was employed as a Senior Java Developer at the respondents since 3 February 2020 and employment is ongoing. ACAS conciliation commenced on 30 August 2023 and concluded on 13 September 2023. The claim was presented on 12 October 2023.

[2]The claimant brings claims of:(i) Direct disability discrimination; Case No: 2215433/2023 2

(ii) Indirect disability discrimination; and

(iii) Harassment related to disability.

[3]The respondents agreed that the claimant was disabled for the purposes of s.6 EQA 2010 at the material times.

[4]The claimant expressly confirmed at the start of the hearing that the three claims above were those being made. The claimant raised the possibility that in light of paragraph 54 of the witness statement of Ms Shiamtani he may wish to bring a claim of discrimination arising from disability. It was explained that no written application to amend the claims had been made, and if one was made then the tribunal would need to consider any prejudice that would be caused to the respondents if the claims were amended. The respondents objected in principle to any amendment application on the basis that it would need to revisit its case and, at this late stage, this would cause inappropriate prejudice. The claimant confirmed that he was happy to leave the claims as they were and expressly confirmed that he was not pursuing a claim of discrimination arising from disability.

[5]The respondents are both part of the same group of companies. The second respondents was added to the claims by order of EJ Singh dated 9 January 2024. During a hearing on that date the respondents agreed that based on the documentation it was unclear which respondents was the claimant’s employer. During the final hearing it was accepted that both respondents had joint and several liability for any of the complaints that form part of this claim that are successful. Any references to the company in these reasons are, in effect, to both respondents, for brevity. Procedure, documents, and evidence heard

[6]The claimant represented himself throughout. The respondents were represented by Mr Frater (Consultant). Case No: 2215433/2023 3

[7]No adjustments were required or asked for by any of the parties or witnesses other than regular breaks. No issues arose around the claimant’s effective participation in the hearing.

[8]The procedure to be followed was explained in clear terms to the parties at the start of the hearing. The parties were informed that the judgment and any written reasons would be published online.

[9]The claimant and respondents’ witness, Ms Rania Shiamtani, both gave evidence under affirmation and were cross-examined.

[10]The timetable was agreed with the parties at the start of the hearing. The parties were made aware of the tribunals power to limit cross-examination of witnesses.

[11]The list of issues was set by order of EJ Singh dated 9 January 2024. In correspondence after that hearing the respondents requested that time limits be included in the list of issues. The claimant agreed and the parties agreed the relevant dates. The claimant confirmed that a particular of the harassment claim was withdrawn, namely original issue 4.1.5 (‘Withholding information/failing to provide the Claimant with relevant information [Claimant to provide further details]’. Following the claimant’s correspondence, and further discussion at the hearing, it was also agreed to include as a provision, criterion or practice for the indirect discrimination claim ‘A practice of refusing requests for medical severance’ to fully and accurately reflect the claims made.

[12]During the hearing the claimant withdrew issue 2.1.2 ‘Not paying the Claimant the Key Contributor Award in February/March 2023’. He also withdrew issue 3.1.4 ‘Failing to chase up the income protection insurance form May 2023’.

[13]The final agreed list of issues can be found at Appendix A. Case No: 2215433/2023 4

[14]We were careful not to treat the list of issues as if they were strict pleadings and gave effect to the broad meaning of them in making our decisions. For example, during the claimant’s evidence he clarified that issue 4.1.1 was not about the telling of him that he would go onto statutory sick pay (‘SSP’), but rather the decision to put him on SSP.

[15]The agreed documents were:a. Hearing bundle (317 pages);

b. 2015 Equity Incentive Plan (25 pages);

c. 2 x email screenshots (emails dated 9 June 2023 and 18 July 2023);

d. Agreed list of issues;

e. Respondents’ skeleton argument;

f. Witness statements of the claimant and Ms Shiamtani; and

g. Both parties’ closing written submissions.

[16]Item (b) above was admitted during the hearing by consent at the request of the claimant. It’s inclusion would not cause either party any prejudice as there was ample time for it to be considered and the witnesses asked questions about it. It was also short and potentially relevant to the issues in the case.

[17]Item (c) was included by consent during the hearing.

[18]The respondents did not pursue a potential point on territorial jurisdiction that was referred to in their skeleton argument. In the tribunal’s judgment, in any event, no question of jurisdiction arose in any event on the facts.

[19]The Tribunal read the witness statements and entire bundle. Case No: 2215433/2023 5

[20]The tribunal alerted the parties to various points of law which may need to be considered by them before closing submissions were made.

[21]Both parties made written submissions. Both parties made oral submissions at the close of the evidence in reply. It was made clear to the parties that if they relied on any specific findings of fact other than those inherent in the list of issues then this must be clearly drawn to the tribunal’s attention. We have only resolved the issues of fact necessary to make our decisions.

[22]The respondents did not pursue a potential jurisdiction point raised in the skeleton argument and we agreed that it did not require a determination by the tribunal. Relevant Law (i) Equality Act 2010

Relevant Law

[23]Disability is a protected characteristics under s. 6 EQA.

[24]We took into account where relevant the EHRC Employment Code of Practice.

[25]The burden of proof for discrimination and harassment claims is governed by s.136 EQA:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. […]

[26]It was held in Field v Steve Pie

[2022] EAT 68

at [37]: ‘In some cases there may be no evidence to suggest the possibility of discrimination, in which Case No: 2215433/2023 6 case the burden of proof may have nothing to add. However, if there is evidence that discrimination may have occurred it cannot be ignored. The burden of proof can be an important tool in determining such claims. These propositions are clear from the following well established authorities.’ Further at [41] that ‘if there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment.’

[27]It is not sufficient for the employee to only prove a difference in protected characteristic and a difference in treatment in order to shift the burden of proof: Madarassy v Nomura International Plc

[2007] EWCA Civ 33

[28]An inconsistent explanation for a difference in treatment may be a factor which shifts the burden: Veolia Environmental Services UK v Mr M Gumbs

UKEAT/0487/12/BA

[29]Once the burden has shifted, the employer must prove that the less favourable treatment was in no sense whatsoever because of the protected characteristic: Wong v Igen Ltd [005] EWCA Civ 142.

[30]Time limits for claims under the EQA are governed by s.123: (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable […] (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; Case No: 2215433/2023 7 (b) failure to do something is to be treated as occurring when the person in question decided on it […]

[31]We have a wide discretion to extend time on just and equitable grounds: Jones v Secretary of State for Health and Social Care

[2024] EAT 2

. Relevant factors we should normally take into account are: the length of (and reasons for) the delay, and whether the delay has prejudiced the respondents (for example, preventing or inhibiting it from investigating the claim while matters were fresh), whether someone was in ignorance of their rights or had received incorrect advice, if there was an ongoing internal procedure, and reasons relating to disability or ill health.

[32]We must distinguish between acts which are properly analysed as conduct extending over a period and discrete acts with continuing consequences. Also, the statute requires us to distinguish between acts extending over a period and a succession of unconnected or isolated specific acts: Hendricks v Metropolitan Police Commissioner

[2003] IRLR 96

. (ii) Direct discrimination because of disability

[33]Direct discrimination is prohibited conduct under s.13 EQA: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. […]

[34]The comparator’s circumstances must be the same as the claimant’s, or at least not materially different. This is because s.23 EQA says:(1) On a comparison of cases for the purposes of section 13 … 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- Case No: 2215433/2023 8 (a) on a comparison for the purposes of section 13, the protected characteristic is disability; […]

[35]The protected characteristic need not be the only reason for the less favourable treatment, or the main reason: London Borough of Islington v Ladele

[2009] IRLR 154

(EAT). The decision must be more than trivially influenced by the protected characteristic.

[36]The question of less favourable treatment can be intertwined with the reason for that treatment: the principal question is why was the claimant treated as he was? If there were discriminatory grounds for that treatment then ‘usually be no difficulty in deciding whether the treatment …was less favourable than was or would have been afforded to others.’ There is a single question: did the complainant, because of a protected characteristic, receive less favourable treatment than others’: Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

HL.

[37]Also, in Stockton on Tees Borough Council v Aylott

2010 ICR 1278

, CA, Lord Justice Mummery stated: ‘I think that the decision whether the claimant was treated less favourably than a hypothetical employee of the council is intertwined with identifying the ground on which the claimant was dismissed. If it was on the ground of disability, then it is likely that he was treated less favourably than the hypothetical comparator not having the particular disability would have been treated in the same relevant circumstances. The finding of the reason for his dismissal supplies the answer to the question whether he received less favourable treatment’.

[38]Where the question is addressed in this order the tribunal need not necessarily identify the precise characteristics of the hypothetical comparator: Law Society and ors v Bahl

2003 IRLR 640

EAT. Case No: 2215433/2023 9 (iii) Indirect discrimination

[39]Under s.19 EQA:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic; (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[40]PCP should be defined broadly. The Code of Practice at [6.10] says that it should be construed widely so as to include, for example, any formal or informal policies, rules, practices arrangements or qualifications including one-off decisions and actions. A genuine one-off decision which was not the application of policy is unlikely to amount to a practice: Nottingham City Transport Ltd v Harvey

[2013] All ER(D) 267

EAT. PCP carries the connotation of a state of affairs indicating how similar cases are generally treated or how a similar case would be treated if it occurred again: Ishola v Transport for London

[2020] ICR 1204

CA. Generally, a one-off incident Case No: 2215433/2023 10 will not qualify: Pendleton v Derbyshire County Council

[2016] IRLR 580

. However, a practice does not need to arise often to qualify as a PCP.

[41]A PCP can include an expectation, and the identification of the PCP should, because of the protective nature of the legislation, follow a liberal approach and a tribunal should widely construe the statutory definition: Ahmed v Department for Work and Pensions

[2022] EAT 107

at [25].

[42]It is necessary for the PCP to put those who share the claimant’s characteristic at a particular disadvantage compared to those who do not have that characteristic. (iv) Harassment because of disability or race

[43]Harassment is prohibited conduct under s.26 EQA: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[44]The purpose or effect of the conduct must be considered separately. In deciding whether conduct has the effect, we must take into account the claimant’s perception, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. In terms of effect, we must ask first whether the claimant genuinely perceived the conduct as having that effect, and whether in all the circumstances, was that perception reasonable: Pemberton v Inwood

[2018] EWCA Civ 564

[45]When deciding whether the conduct related to a protected characteristic, we bear in mind that we must evaluate the evidence in the round and recognise that witnesses will not readily volunteer that conduct was related Case No: 2215433/2023 11 to a protected characteristic: Hartley v Foreign and Commonwealth office Services [2016] ICR EAT. ‘Related’ is a reasonably broad word, on its face, and is a looser statutory requirement than direct causation. The context of any given conduct is important: Warby v Wunda Group plc EAT 0434/11.

[46]If there are facts from which a tribunal could find that the conduct was related to a protected characteristic it is then for the respondent to discharge the burden of proof that it was not.

[47]Harassment is not a detriment.

Findings of fact

[48]Our findings of fact are made on the balance of probabilities. They were made on the basis of the undisputed facts and also the written and oral evidence. We explain our reasons for making these findings where there was a material dispute between the parties.

[49]There was no dispute about the authenticity of the documents in the hearing bundle.

[50]The claimant was employed as a Senior Java Developer at the respondents since 3 February 2020 and employment is ongoing. ACAS conciliation commenced on 30 August 2023 and concluded on 13 September 2023. The claim was presented on 12 October 2023. (i) Employment terms

[51]The claimants employment contract was dated 3 February 2020 and was at page 83 of the bundle. It was signed on 5 February 2020. The starting salary was £85,000 and any increases were at the company’s discretion (paragraph 3(b)). A performance related bonus was at the company’s sole discretion as set out in the contract. The contract included that the performance-related bonus was a non-contractual benefit and the claimant Case No: 2215433/2023 12 acknowledged that if he received a bonus payment this did not give him any right or create any expectation of future bonus payments. The claimant disputed that this was how it worked in practice. The contract enabled benefits schemes to be changed or substituted. We did not feel that the claimant had sufficient evidence for us to find that any practice of the respondents was such that the contractual position was altered. This is because the claimant’s assertion was not supported by clear evidence and was in fact more of a generalised assertion.

[52]An original restrictive stock units benefit was paid out to the claimant and that benefit then changed to the long term incentive – ‘LTI’ – which was a cash performance-based remuneration. The LTI was performance related as evidenced by the documentary evidence. The LTI related to the fiscal year which was the calendar year.

[53]The contract of employment included terms that any pay rise was discretionary. This is clear from the documents and was accepted by the claimant in cross-examination. Any pay rise would be affected by a performance review. We make this finding because of the evidence of Ms Shiamtani. This process would start with an online form being completed during the final three months of the year which went to the employee’s line manager.

[54]We find that the claimant acknowledged receipt of the employee handbook. This is because he initially accepted he probably had in cross-examination although he had no specific memory of it. The acknowledgement of receipt was confirmed in additional documentary evidence, also, which it was not necessary for us to formally take into account because upon sight of it the claimant conceded that he had acknowledged receipt of the handbook.

[55]However, the claimant’s evidence was that the handbook was separate and distinct from the sickness policy and we find this is correct because his contract refers to an addendum policy document which would govern sick pay. Also, the documents in the bundle have different version numbers. Case No: 2215433/2023 13

[56]The claimant was further sent a copy of the employment handbook which included the sickness policy on 30 January 2023 by Ms Tally Tsabary by way of a Googledocs link. We do not find that the claimant was singled out in the fact that he was sent the policy documents when off sick. This is because there was no clear evidence from which such a finding could be made. The claimant also accepted in evidence that it could have been a standard procedure for him to be sent it in those circumstances.

[57]We find that, despite the claimant’s view that the sickness policy was not followed in practice, to provide him with a copy of the policy documents whilst off sick was a benefit to him. We also accept that the policy was in all material ways followed by the respondents because it contained clear discretionary wording. We also do not accept the claimant’s argument that given it was industry practice to pay above the contractual entitlements this was meant that there was any significance to informing him of the company policies or indicative that he would be treated differently to others. Also, the claimant accepted in cross-examination that it was not sent to him by Ms Tsabary to cause offense or be humiliating, given it was a one-to-one communication. The claimant also accepted that anyone who might be off sick could have been sent a copy. There was also no evidence as to how the respondents operated company sick pay (‘CSP’) in relation to other people, so we cannot find that the practice was contrary to the written policy.

[58]We find that the claimant did not read the sickness policy until it was sent to him on 30 January 2023 by Ms Tsabary. This is because we accept his evidence of this and there is no evidence to contradict it. No clear evidence was available to the claimant otherwise. The claimant denied that the sickness policy was available on the company intranet and this was not meaningfully undermined by other evidence. However, it was clear to the claimant from the handbook that CSP was discretionary and, otherwise, statutory sick pay (‘SSP’) would apply. This was consistent with the claimant’s contract of employment. Case No: 2215433/2023 14

[59]We find that the respondents went beyond the claimant’s contractual entitlement in terms of the company sick pay he was paid, generally. This was accepted by the claimant in his evidence.

[60]The employee handbook included details on sick leave and sick pay as set out in page 151 of the bundle and the sickness policy was at page of the bundle 157.

[61]Details of the claimant’s terms in relation to sick pay are at paragraph 10(a) of his contract at page 87 of the bundle. This includes a direct reference to an addendum to the UK handbook which contains the details of the respondents’ enhanced sick pay criteria, in the absence of which SSP would apply. The natural reading of the claimant’s terms and conditions, therefore, is that he would receive SSP and may qualify for additional payments.

[62]As set out in the employee handbook, the company’s sickness policy was that ‘If an employee is absent from work due to illness or injury, providing the individual is not in probation and complies with the reporting requirements, the Company may provide enhanced sick pay. Any enhanced sick pay made will be down to the discretion of management. There is no absolute right to payment however and the Company will use its discretion depending on the specific circumstances.’ The sickness policy also included that ‘Company Sick Pay is paid at the Company’s discretion’.

[63]Applying the sick pay policy, with 1-2 years completed service, the claimant was entitled to 6 weeks full pay in accordance with the policy.

[64]We do not find that the respondents had a clear policy on what the claimant referred to as ‘medical severance’. However, elements of the sickness policy included a right to terminate employment on the grounds of capability or otherwise.

[65]Under the company sick pay policy, when an absence exceeded 26 weeks, the company would make a claim under its group income protection Case No: 2215433/2023 15 insurance (PHI) which was a claim by the respondents’ but covered a percentage of the claimant’s salary for long-term sickness absence.

[66]It was clear to us from the claimant’s evidence that part of the claimant’s complaint was that the respondents’ policies around sick pay had a gap between any CSP (and or SSP) and when PHI would start. On the strict application of the policy, without a discretionary payment, there would have been a gap between ending 6 weeks CSP and starting PHI at 26 weeks.

[67]It follows that, on the respondents’ practice, there was a potential period of non-payment between ending CSP and starting PHI. In the claimant’s case it transpired that there was a potential period of unpaid leave after 26 weeks, but he sought and was originally paid annual leave in July. Also, PHI payments started in late August 2023 and were backdated.

[68]The claimant’s leave started on 20 December 2022, and 26 weeks after that took him to 20 June 2023. On 9 June 2023 the claimant was emailed by the respondents stating that, a 26 week period having passed, and as of 21 June 2023 unpaid leave would begin.

[69]The claimant also effectively accepted in evidence that the respondents’ policy was, technically, followed given the broad discretionary terms included. The claimant also accepted in evidence that, on the face of the policy, assuming there was no discretionary sick pay made over and above the policy entitlement, there would be a gap between the company sick pay and the company making a claim under the payment protection insurance. (ii) Long term incentive award / performance

[70]The claimant was not paid the LTI in February or March 2023 for his work in the year 2022. The claimant worked during 2022 until he went off sick in December 2022. Case No: 2215433/2023 16

[71]We find that no one at the respondents informed the claimant of concerns about poor performance such as would justify zero LTI during the course of the year and we accept his evidence that the first time he saw evidence alluding to poor performance was through disclosure in these proceedings. The respondents did not contend otherwise. Allegations of poor performance did not feature in the ET3. Ms Shiamtani also accepted in cross-examination that during two meetings with Artur Michalczyk issues about the claimant’s performance were not raised with her. Mr Michalczyk is relevant because he was part of the decision chain not to award performance-related pay.

[72]We find that there was no specific formal communication letter to the claimant about non-payment of LTI or a performance-related pay rise for 2022 when similar type letters had been sent in previous years (such as at bundle page 189 in relation to 2021). This is because we accept the claimant’s evidence of this the absence of such documents. In light of this there was no clear explanation given to the claimant for the fact that he did not receive those two performance-related elements of remuneration. The letter on page 198 for the 2022 period in relation to a different bonus is silent on LTI and performance-related pay rise.

[73]The claimant raised questions about performance-related remuneration in his correspondence with the respondents prior to the claim being issued. However, the respondents did not assert that the reason for non-payment was poor performance. We reject the respondents’ explanation that the reason for not mentioning this was to shield the claimant from upsetting allegations whilst he was off sick because the nature and content of the correspondence taken as a whole is such that you would expect this kind of justification to appear at least at some point and not be first communicated to the claimant via disclosure. Also, the suggestion that the only reason the claimant was not told about the performance allegation at the time comes from Ms Shiamtani who cannot give direct evidence as to the reasoning of Ms Tsabary and or Lucy Major as to why they did not communicate this to the claimant. Ms Shiamtani’s direct experience of this case (on this issue) came significantly later than when we would have expected the claimant to Case No: 2215433/2023 17 have been informed about allegations of non -performance. There is no documentary evidence from the respondents suggesting that this was the reason and the above two key witnesses on this point have not given that evidence.

[74]We find that there was no convincing documentary support for allegations of poor performance despite the respondents’ practice of having quarterly reviews by the line manager. No email provided direct and convincing evidence of support to the respondents’ allegations. The oral evidence relied on by the respondents on this point is hearsay. We give this little weight for the following reasons: there is an absence of supporting documentary; there was contrary documentary evidence on this issue (such as emails praising the claimant); the claimant could not cross-examine the relevant individuals about the allegations; and the respondents has not called (without explanation) the line manager who could give direct evidence of the claimant’s performance.

[75]Lucy Major left the respondents in April 2024. Tally Tsabary is still with the company and no explanation was provided as to why she was not a witness to these proceedings.

[76]The only direct written evidence potentially indicative of poor performance by the claimant is in the bundle at p310. This is a single row in a spreadsheet which includes the words ‘Poor performance’. The other commentary about individuals at the respondents is at page 265 but this refers to other candidates.

[77]On 27 April 2023 Ms Tsabary, the claimant’s line manager at all material times, described the him as ‘an exceptional software developer’ in an email.

[78]In 2022 the claimant suffered a number of stresses including parental illness and financial worries in part from USD exchange rate. Whilst it is entirely possible that these factors influenced the claimant’s performance in 2022, we did not find cogent evidence that they did so, in particularly in light of the Case No: 2215433/2023 18 claimant’s explanation in evidence (which we accept) that he effect burnt out at the end of 2022. This would provide a reason for non-performance from the end of 2022 onwards, however.

[79]The claimant’s entries to his 2022 Performance Review were due to be made by 6 January 2023. We make this finding because of the oral evidence of Ms Shiamtani.

[80]The claimant’s 2022 performance review ratings were blank. This is because the claimant didn’t fill it in. We make this finding because of the claimant’s evidence in cross-examination. The document contained an effective date of 19 December 2022 and the claimant was self-certified as off sick from 15 December 2022. There no clear evidence of exactly when the claimant was notified of the existence of the document but it was either after or shortly before he started sick leave. It was not sent to the claimant’s manager as it was not completed. We make this finding because the claimant accepted this in cross-examination.

[81]We find that the effect of non-completion of the performance review was the same for all UK-based employees and that this effect was you did not get a performance related pay rise as a result. This is because this was the effect of the claimant’s evidence on this topic. There is also no clear evidence to suggest otherwise. Ms Shiamtani’s evidence confirms this.

[82]The claimant was invited to a performance review in 2020 and 2021, and he completed those. We make this finding because he effectively accepted this in cross-examination.

[83]The claimant did receive performance related bonus and pay increases in both of the relevant previous years.

[84]The first time that the claimant was aware that poor performance was being used by a justification by the respondents for some of its conduct was in the disclosure process in this litigation (this is because of the claimant’s Case No: 2215433/2023 19 unchallenged oral evidence consistent with the documents). Allegations of poor performance was not raised by the respondents in the pre-litigation correspondence in the bundle and it was not contained in the ET3/Grounds of Resistance. The claimant’s ET1 included, by reference to the drop in remuneration for the year 2022, that his individual performance was consistent with previous years until he stopped working due to illness and that no complaints had been raised.

[85]The idea of poor performance existing as an allegation can be found in internal email correspondence dated 21 August 2023 however this was not shared with the claimant.

[86]By email dated 3 November 2022 (bundle page 300) someone senior and at director level wrote about the claimant: ‘The Magneto team is very happy to highlight a significant milestone in project Magneto: the successful migration of an existing system to the VCP Fabric. This great accomplishment by the Credential Services team, led by Russ Williams & Tally Tsabary, onboarded three existing systems onto VCP Fabric, cataloging, building and successfully deploying them onto Cerebro Clusters. These services are the first of their kind to adopt the full gamut of VCP tooling including cataloging, technical documentation, Continuous building, integration, and Semantic versioning and finally deploying to live infrastructure! This is the first of many potential migrations and we are thankful for the Credential Services team for their perseverance and commitment to project Magneto and making this milestone a reality. The team is making their way through the lower environments and hoping to deploy into production by the end of November. We look forward to their feedback on the new development process and hope to continually improve it based on their experiences. Thank you Tally and Russ.’

[87]During the relevant times the claimant’s status for s.6 EQA purposes changed from not-disabled to disabled, with the respondents’ admitted knowledge, before the decision about LTI was made. That decision was made within the relevant management chain. The decision was not to award him a payment of LTI. This was approved by those higher up the chain. Case No: 2215433/2023 20

[88]The claimant was the only employee out of 121 Nexmo Limited employees not to be paid LTI (save for someone who had left before the award was made). We accepted the claimant’s evidence that there were different groups and cultures across the many different legal entities and groupings within the respondents. We did not feel that there was sufficient cogent evidence to doubt his evidence on that point.

[89]The KCA, a separate performance related bonus, was completely discretionary because of the wording of the contract and this was accepted by the claimant in cross-examination. This was not, by the end of the hearing relevant to the claims, however. (iii) Other relevant events

[90]The claimant was coming up to the end of the first six weeks of sick leave when he was informed by the Ms Tsabary that he would be going onto SSP at the end of January 2023. We find that it was appropriate to inform the claimant that he was coming to the end of the initial six weeks of CSP. The claimant accepted that him being told this was not intentional harassment and was not an offensive act. However, we find that the claimant did have a panic attack after receiving this information because we accept his evidence of this, there being nothing to meaningfully undermine it, and we accept his evidence that this had the effect of creating a hostile and intimidating environment.

[91]It was, however, also the case that the claimant was not in fact put onto SSP at that time (or at all) and discretionary CSP was paid to him for a further period. The claimant raised the issue of SSP with the respondents and on 31 January 2023 by email Ms Shiamtani stated to the claimant ‘Currently we are continuing with you on full pay so there is no need to worry about that. Lets just keep in touch and see what the drs say after 24 February 2023, when your sick note expires […].’ Overall, therefore we did not find that the respondents actually decided, in effect or reality, to put the claimant on SSP. Case No: 2215433/2023 21

[92]We find that the sending of the sickness policy documents to the claimant was not with the purpose of harassing the claimant. This is because this was accepted by the claimant in his evidence, and our own evaluation looking at the evidence more generally.

[93]On 9 June 2023 the claimant was informed by email that he would start unpaid leave following the end of the 26 week period, ie. from 21 June 2023. We find that it was perfectly reasonable for the respondents to inform the claimant, as an employee, that that period of company sick leave was coming to an end. The claimant agreed in evidence that it was reasonable for a company to do this. We also find that this was not intended to create offence from the wording used and the claimant accepted this in his evidence. We accept that the claimant was angered by this. The claimant’s response on that day stating ‘Unacceptable. I don't care what the details are between Vonage and AIG, "unpaid leave of absence" is not part of any Income Protection insurance worth the name. I consider this to be de-facto termination of employment.’ The respondents responded, shortly, with clarification of the rationale. The claimant accepted in evidence that clarification was the intent behind the email.

[94]The claimant wanted his employment to end on medical grounds. We make this finding because the claimant accepted this in evidence and it is indicated in the email correspondence. On 3 March 2023 the respondents replied to a request for medical severance with ‘Apologies, not yet, please just take the time to get better and you are continuing on full pay so nothing is changing there - I will be in contact soon as I can.’ On 23 March the claimant replied saying that things were improving slowly. The respondents replied on 22 May 2023 following up to see how the claimant was getting on and when he may return to work and that they would flag to the insurers as when he reached 26 weeks it would need to go through the permanent health insurance. The respondents then stated they would send the forms the same day. The claimant replied on the same day stating he was signed off for a further nine weeks and asking what happened at 26 weeks. The respondents replied on 23 May that permanent health insurance were initiated at 26 weeks and the claimant confirmed he would make a start on Case No: 2215433/2023 22 the forms and he was struggling to concentrate. The respondent s replied that typical pay was 75% of salary.

[95]We do not find that the claimant was in a situation akin to slavery, as he said in his evidence he felt, where he was asking for employment to be terminated but the company refused. This is because at no stage was the claimant prevented from resigning. He accepted in his evidence that he did not resign because of the financial consequences for him, such as losing out on long term incentive payments yet to be paid and would be forfeited on resignation. We make this finding because of the claimant’s evidence. Also, the situation was a result of the respondents providing the claimant with remuneration over and above his contractual rights.

[96]On 14 July 2023 the claimant informed the respondents that he intended to take all of July as holiday. He stated by email that he was asserting a legal right. On 18 July 2023 the respondents replied stating that the relevant person had just come back from leave, that ‘the business also has the right to review these requests and approve/ decline with a business reason as necessary. Now that I am back in the business I will review with Allison, understand any potential ramifications in relation to your current claim in putting these through now and revert back to you. For your awareness you emailed on the 14th July and this is post our payroll cut off, whilst I appreciate the time AIG are taking at present to complete your claim is frustrating that is their process to ensure claims are eligible for payment. We will of course explore whether we are able to add this to payroll after cut off, please note we may not be able to apply this for July payments’. The claimant was paid for his July holiday between 25 July and 31 July, although this was later effectively discounted following later payment from the income protection insurance. Although the request was made after the payroll cutoff date, the claimant was told on 19 July 2023 that he would be paid anyway and was fast-tracked.

[97]The claimant confirmed in his evidence that the July 18th email was the alleged refusal for the purposes of issue 4.1.6 (bundle p236). We do not find that this amounted to a refusal based on the plain normal reading of the Case No: 2215433/2023 23 wording used. We do not agree with the claimant’s analysis that this is a direct refusal. Also, the respondents had actively agreed within two days and some of those involved worked on US time. We find that, in all the circumstances, the respondents did not make the refusal the claimant alleges.

[98]The claimant’s responses in this email correspondence were angry in tone.

[99]On 18 July 2023 at 10:27 AM the claimant sent to a number of individuals at the respondents an email starting with ‘A hundred times a day, I think about putting the barrel of a shotgun into my mouth and ending all of my pain and suffering permanently. I don’t want to do that, I don’t even want to think about it, but the thoughts pop into my head regardless, unbidden and unwanted. I’m currently signed off work sick, and according to the latest estimates I’m likely to be that way until at least the end of the year…’ It further explained the claimant’s complaints and ended with ‘And, in case you were wondering, toe trigger or a sawn-off. Told you I’d been thinking about it.’

[100]The claimant accepted in evidence that it could be read as him having a shotgun, and it was an expression of distress, but denied that it was a threat of suicide. He also accepted in evidence that it could easily be misinterpreted (although his evidence was also that it was effectively deliberately misinterpreted). Although the claimant suggested that the last sentence was an expression of dark humour. The claimant accepted that it was poorly worded.

[101]We accept Ms Shiamtani’s evidence that she was also alarmed and worried when she received the email in question.

[102]Following receipt of this email, an individual at the respondents contacted the police and asked them to undertake a welfare check on the claimant. We make the finding that this happened because we accept the evidence of Ms Shiamtani that this is what happened. The claimant had no direct Case No: 2215433/2023 24 knowledge of exactly what was said and so it cannot be found that the respondents requested the specific intervention of a firearms unit. We accept that this action was done on the advice of the individual’s line manager because at least one recipient of the email was incredibly concerned by the content of the email.

[103]We reject the claimant’s contention that this email was wrongly handled by the respondents. We reject the claimant’s position that this was intentional harassment by the respondents. This is because there is no cogent evidence from which we could infer that the respondents’ actions were intentionally seeking to harass the claimant. The respondents’ actions were entirely indicative of a responsible employer. Whilst we accept the claimant’s perception of this, we do not consider that this perception is reasonably held given the circumstances as a whole. Given the strength of the wording used by the claimant in the email, it would not have been appropriate for the respondents to simply make further enquiries of the claimant directly as to his welfare given the serious language used by the claimant.

[104]The claimant then received a call from the Metropolitan Police following which no further action was taken by them.

[105]The claimant made a complaint to the respondents by email dated 15 June 2023. This is in the hearing bundle at page 225. Evidentially, the order of the emails is slightly unclear in the format as presented (in part because some times are US times). However, from the content it is more likely than not that the emails are in reverse chronological order at around page 225 of the bundle.

[106]The claimant confirmed in evidence that the email he says was the complaint that was ignored was sent at 14:08 on 15 June 2023 (bundle page 224). That email included ‘Again, I don’t want answers to any of this. I’m perfectly content to leave Pandora’s Box closed, draw a line under things and move on with my recovery.’ The claimant accepts that the email was responded to by Lucy Major at 1:34PM (bundle page 224). During his Case No: 2215433/2023 25 evidence the claimant suggested that his case was not that there was no response to his original email, rather there was no formal action by the respondents about it. Lucy Major responded on 16 June (bundle page 222) at 4:27 with an explanation, including details about sickness policy, and details about PHI, and details of the processes to happen. Whilst the claimant’s position in evidence was that Ms Major was answering questions that were not asked, we do not consider that this amounts to ignoring a complaint. A response that the claimant perceived as inadequate is not the same as ignoring a complaint. Also, we do not consider it to be inadequate in all of the circumstances, or effectively amounted to a non-response. For example, the response included ‘The intent of the business is always to work towards team members returning back to the workplace after any leave of absence and as such we would not be entering into a settlement agreement at this time.’ This clearly sets out the position of the respondents. Also, the last line of the claimant’s email suggests that he did not want answers to his issues of complaint. Also, the claimant accepted in evidence that he did not make a formal grievance.

[107]In all of those circumstances we find that the respondents did not ignore the 15 June 2023 complaint. Although we accept that some discrete issues raised in the complaint email such as to remuneration were not addressed in isolation by the reply, we consider that, overall (and in declining any settlement outcome) this was not enough to amount to ignoring the claimant’s complaint.

[108]The claimant accepted in evidence that the email did not violate his dignity.

[109]The claimant made a complaint by email on 18 July 2023 at 10:27 which is on page 239 of the bundle. This was the email that started with the shotgun reference but included other detailed complaints including about performance-related remuneration. This email was responded to by the respondents by the police welfare check. It is correct that the rest of that email included further details of the claimant’s complaints including about remuneration. This was responded to by the Chief People Officer at 10:33 acknowledging receipt, asking for time to digest, stating that they were Case No: 2215433/2023 26 available for a meeting and extending that offer again and for the claimant to let them know if he was up to having a conversation. The claimant did not ultimately accept that offer of a meeting as he preferred to continue by email. However, in the circumstances as a whole we cannot find that this amounted to the respondents ignoring the complaint email given that there was a clear and repeated offer of a meeting which was not taken up by the claimant.

[110]The claimant did not contend that these emails themselves violated his dignity or created the relevant environment that would amount to harassment.

[111]No formal grievance was made by the claimant. This which meant that the formal grievance procedure which was more likely to elicit a more fully particularised response did not happen. Also, the respondents’ responses have to be understood in the context of the initial email which suggested that the claimant did not want answers to everything raised. Also, these emails are better analysed as the claimant setting out a particular position and seeing if the respondents would respond with a settlement offer as opposed to something which necessarily demanded a fully particularised response to every point made.

[112]The claimant made a complaint by email on 3 August 2023 at page 259 of the bundle which included issues about performance-related remuneration. The complaint ended by stating that this was an attempt to negotiate in good faith. This was replied to by the respondents on 4 August 2023 ‘Thanks for your note, Can you leave this with me, I am out next week and have asked the team for further info that I can review when I get back. I have this diarised for Monday the 14th to get back to you on a way forward.’ Following leave there was a reply from the respondents on 15 August, stating ‘Firstly in regards to further payments, I want to confirm our position, which is that until AIG reaches a decision on your claim you will remain on unpaid leave. Secondly for clarity, Vonage is not looking to enter into any agreement with you in respect of leaving the business at this time.’ We accept that this does not directly address the claimant’s complaint about performance-based Case No: 2215433/2023 27 remuneration. However, we do not find that this email overall is sufficiently scant in its reply to amount to ignoring the claimant. This is because, overall, the claimant’s complaint ended by stating that this was an attempt to negotiate in good faith. The respondents declined to enter into a leaving agreement. Overall, therefore, we do not find that the respondents ignored the claimant’s complaint.

[113]The claimant accepted that the email was not offensive or content it had violated his dignity. However, he felt that it was authoritarian and high handed.

[114]At various times the claimant raised by email the question of ‘medical severance’. In general, it was responded to by the respondents by reference to, for example, the payment insurance. It was not directly declined by the respondents in that email correspondence, save on 26 May 2023 the respondents said ‘At this point, we are not able to offer this - the PHI route is the way we need to go forward, I will be in contact with you shortly.’ Ms Shiamtani’s evidence also included that the company sought to retain employees where possible and utilises a permanent health insurance (PHI) policy which included payment protection payments, thus providing financial support to employees on sick leave. The claimant’s view is that this approach amounted to a refusal. The respondents did not accept this. We find that, ultimately, the respondents did not agree to the claimant’s requests for medical severance, taking the evidence as a whole.

[115]We accepted Ms Shiamtani’s evidence that there was a delay to responding to the claimant about the possibility of medical severance settlement between February and May 2023 because the question was escalated to other senior people within the business.

[116]Lucy Major’s email on 16 July 2023 included that the intent of the business was always to work towards team members returning back to the workplace after a leave of absence. We accepted that this was the case, taking the course of events involving the claimant as a whole. The respondents clearly acted in a manner more consistent with a return to work than otherwise, not Case No: 2215433/2023 28 least by making payment over and above the contractual rights of the claimant and using PHI instead of a capability dismissal. We also find that at various times the respondents declined to enter into a settlement agreement with the claimant because this is clear from the correspondence.

[117]We find that none of the harassment allegations created an offensive environment for the claimant. This is because this was accepted by the claimant in his evidence, and our own evaluation looking at the evidence more generally. (iv) Time limits

[118]We find that in June, July, and August 2023 the claimant was suffering from considerable anxiety, including when he was struggling to complete basic living tasks. This is because we accept the claimant’s on this point and there is no cogent reason to doubt his evidence. Also, it is consistent with the claimant’s expressions of his mental state in relevant emails, such as on 11 June 2023 when he describes being exhausted from dealing with work-related issues, such as filling out insurance forms, and panicking about the process. We also accept the claimant’s evidence that he found open-ended tasks such as commencing employment tribunal proceedings was different to responding to more familiar type tasks such as dealing with the insurance forms. We also accept the claimant’s evidence that he only had a limited amount of energy a day, and so the fact that he completed some paperwork during that period was not inconsistent with his description of his general state.

[119]We find that the claimant learned about the employment tribunal deadlines in late August 2023, accepting the claimant’s evidence on this point. This is distinct from the claimant’s knowledge about potentially settling any potential claim which arose earlier, as demonstrated in the email correspondence (such as in early February 2023). We also accept that the claimant was aware of settlement agreements more generally from previous redundancy situations. We find that the claimant had employment tribunal proceedings in contemplation from at least as early as 9 June 2023 from his Case No: 2215433/2023 29 email of that date. The claimant also threatened proceedings, including constructive dismissal and for disability discrimination by email dated 14 June 2023. We also accept the claimant’s evidence that he did not have a good understanding of the law around this time because his email of that date refers to constructive dismissal (when he was still employed) and was only able to refer to disability discrimination generally as opposed to having a proper understanding of the Equality Act 2010. We also find the claimant was not in receipt of legal advice at the relevant time because we accept his evidence of this, despite references to an employment lawyer in the correspondence. Conclusions Time limits5.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 31 May 2023 may not have been brought in time.

5.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:5.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

5.2.2 If not, was there conduct extending over a period?

5.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? Case No: 2215433/2023 30

5.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:5.2.4.1 Why were the complaints not made to the Tribunal in time?

5.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

Conclusions

[120]We find that it is just and equitable to extend time for those allegations which are out of time (ie. 2.1.1, 2.1.3, 4.1.1, 4.1.3, and 4.1.4, other than the request of 16 June 2023 which is in time). We find that there is good reason to do so. The reason is the claimant’s medical condition: he was off work sick and we accept his evidence as to limited functioning during the relevant time. Also, the delay is for a relatively short period of time, there is good reason for that delay, and there is no real prejudice to the respondents because all relevant witnesses were available at least at the start of the claim (this is because Lucy Major didn’t leave until April 2024 and so at least could have provided a statement). Also, the claimant did start the claim and progress it promptly once he became aware of the relevant deadlines. We also take into account the fact that he has represented himself throughout these proceedings. Disability1.1 The Claimant’s disability is depression and anxiety. The Respondent accepts that this is a disability under the Equality Act 2010 and that the Claimant suffered from it during the material times.

1.2 The Respondent accepts that it had knowledge of the disability during the material times. Case No: 2215433/2023 31

[121]We find that the claimant was disabled at all material times and that the respondents had the relevant knowledge. This is because these issues are not in dispute. Direct disability discrimination (Equality Act 2010 section 13) 2.1 Did the Respondent do the following things: 2.1.1 Not awarding the Claimant the Long Term Incentive (LTI) in February/March 2023.

[122]We find that this happened. This is because it was agreed as a matter of fact. 2.1.2 Not paying the Claimant the Key Contributor Award in February/March 2023. [withdrawn 3.9.24] 2.1.3 Not giving the Claimant a pay rise in February/March 2023.

[123]We find that this happened. This is because it was agreed as a matter of fact 2.2 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. Case No: 2215433/2023 32 The Claimant has not named anyone in particular who he says was treated better than he was. 2.3 If so, was it because of disability?

[124]We find that the claimant has established primary facts from which this contravention of the EQA could be found by the tribunal. These facts are as follows.

[125]Firstly, the claimant previously received performance-related bonuses and pay rises at the time when he was not disabled for the purposes of the EQA but these stopped when he was both disabled and the respondents knew that he had a disability. This is the case as of around January 2023. It could be inferred from this that the change in the claimant’s treatment was because of his disability in light of the chronology.

[126]Secondly, we find that the substance of the respondents’ decision making is both inconsistent and inconsistent with the documentary position. It inconsistent because the respondents maintained first that the claimant did not get the performance related bonus because his performance was poor. However, he also did not get the performance-related pay rise because he did not have a completed performance review. It is inconsistent to hold both positions at the same time. This is because performance cannot be judged to have been poor at the same time as it is also unknown as a result of not having a performance review.

[127]The respondents’ decision making was inconsistent with the documentary position for the following reasons. The claimant was individually praised at the end of 2022 for some his work; his line manager described him as an exceptional engineer in 2023; we accept the claimant’s evidence he was not informed about allegations of poor performance until the disclosure phase of these proceedings; the respondents didn’t raise poor performance in correspondence with the claimant when he raised a lack performance related remuneration in correspondence; there no direct documentary Case No: 2215433/2023 33 evidence of poor performance as would expected, either from the claimant’s line manager individually, from quarterly reviews, or appraisals, or informal concerns being raised by anyone. This also was in a context where there was nothing to effectively undermine the claimant’s own evidence that he performed well, his evidence being supported by the documentary position. The only real evidence to support the respondents’ allegations of poor performance is oral hearsay to which we give little weight, and in those circumstance a single line entry into a spreadsheet entered around February/March 2023 is not supported by the wider documentary context.

[128]The above inconsistencies were also in a context of the respondents not presenting witness evidence from Lucy Major, despite her being available until April 2024, or any evidence from Tally Tsabary despite her being an available witness (without explanation).

[129]Thirdly, for the purposes of identifying primary facts, we prefer the claimant’s comparison group of 121 employees under Nexmo Limited of which only two did not get LTIs but one of those had left the company before they were awarded and the other was the claimant. This is a large group limited by a particular legal entity. We accepted the claimant’s evidence that there were different groups and cultures across the many different legal entities and groupings within the respondents such that this was an appropriate starting point for comparison. The respondents did not provide, despite the information being available to them, any information about other disabled employees who might have received LTI and or a pay rise and so this type of comparator analysis does not assist the respondents.

[130]In addition to the above reasons, the respondents has also poor record keeping in particular for companies of that size and nature.

[131]There is also a lack of other non-discriminatory reasons for the treatment which could have been provided by the respondents, such as animosity of feeling towards the claimant. Given the difficulties with the respondents’ poor performance explanation and absence of other reason for the Case No: 2215433/2023 34 treatment, a natural inference is that a material reason was because of his protected characteristic.

[132]We compare the claimant to someone in his circumstances but does not have the protected characteristic, namely a software engineer at his level who had commenced sick leave of a period of about two to three months but who was not disabled. We ask how the company would have treated someone in those circumstances (hypothetical comparator).

[133]For those reasons we conclude that the burden of proof has shifted to the respondents.

[134]We then ask whether the respondents has shown that it did not contravene s.13 EQA. We find that it has not in respect of non-award of LTI. This is because of a lack of direct or cogent indirect evidence that the reason for the non-payment was poor performance or any other non-discriminatory reason. The respondents’ explanation is inadequately supported by the evidence. The respondents has not shown that its treatment was for a wholly non-discriminatory reason.

[135]However, we do find that the respondents has shown that the non-payment of the performance-related pay rise was for a non-discriminatory reason. This is because we accept Ms Shiamtani’s evidence that this was a direct consequence of the relevant forms not being completed by the claimant as opposed to a more conscious decision by the relevant decision makers at the respondents. In one sense it was, therefore, automatic. 2.4 Did the Respondent’s treatment amount to a detriment?

[136]We find that the non-award of LTI did amount to a detriment. We find this treatment was inherently disadvantageous to the claimant, particularly in a context where so many other individuals at a large employer were paid it. The fact the performance-related element was discretionary does not Case No: 2215433/2023 35 undermine this when so many individuals at the respondents were receiving a LTI award.

[137]For the above reasons the claim for direct discrimination on grounds of disability is successful to the extent of issue 2.1.1, only. 3. Indirect discrimination (Equality Act 2010 section 19)

[138]We do not find that the claimant had established the primary facts from which this contravention could be inferred and so the burden of proof did not shift. 3.1 A “PCP” is a provision, criterion or practice. Did the following amount to PCPs:3.1.1 The Company Sick Pay policy which placed the Claimant on SSP after 26 weeks, in June 2023

3.1.2 The requirement for the Claimant to go on involuntary unpaid leave in June 2023.

3.1.3 A failure to have a policy regarding medical severance.

3.1.4 Failing to chase up the income protection insurance from May 2023. [withdrawn 3.9.24]

3.1.5 a practice of refusing requests for medical severance.

[139]We find that 3.1.1 was a PCP. The sick pay policies and arrangements were clearly the policies and practices of the respondents. Case No: 2215433/2023 36

[140]We find that 3.1.2 was a PCP. The break between CSP and PHI payments starting was a natural and inevitable consequence of the respondents’ sick pay practices, unless discretionary CPS always bridged the gap, which it clearly for the claimant or necessarily others on the application of the policy.

[141]We find that 3.1.3 was a PCP: it was the practice of the respondents not to have a medical severance policy. This is because it was clearly the respondents’ practice.

[142]We find that 3.1.5 was a PCP: this does describe a state of affairs of the respondents as is informed by the claimant’s experience of asking for medical severance. Also, the respondents’ stated position was to aim to get people back to work who are on long term sick leave which is consistent with this. 3.2 Did the Respondent apply the PCPs to the Claimant?

[143]We find that 3.1.1 was not applied to the claimant; the claimant was never on SSP and the effect of the discretionary CSP, July’s annual leave, and backdated PHI was that this PCP was not applied to the claimant.

[144]We find that 3.1.2 was applied to the claimant because the claimant had to use annual leave for payment in July, and any payments thereafter were only as a result of backed PHI.

[145]We find that 3.1.3 and 3.1.5 were both applied to the claimant. This is because there was no such policy and they refused all requests for medical severance. 3.3 Did the Respondent apply the PCP to persons who are not disabled?

[146]We find that3.1.1 and

3.1.2 were applied to persons who are not disabled because these were the polies applied to everyone and there was no Case No: 2215433/2023 37 evidence to suggest otherwise. The state of affairs of

3.1.3 must equally have been in place for employees who were not disabled.

[147]We do not find that the respondents applied 3.1.5 to persons who are not disabled. This is because there was a lack of evidence from which this could be inferred. The aim of bringing people back to work was just that: it did not preclude medical severance. Also, the respondents’ refusals tended to be subject to a caveat such as ‘not at this time’ or words to that effect. In the absence of evidence of persons who were not disabled being refused medical severance, or other evidence from which this could be inferred, we do not find this proven. 3.4 Did the PCP put persons with whom the Claimant shares the protected characteristic of disability, at a particular disadvantage when compared with persons with whom the Claimant does not share the protected characteristic. 3.5 Did the PCP put the Claimant at that disadvantage?

[148]We do not find that that the PCP at 3.1.1 put those persons at a particular disadvantage compared to persons without the protected characteristic. This is because of a lack of evidence that this would be the case. There is no obvious intrinsic link between disability and any potential disadvantage which may result from the application of the respondents’ sick pay policies and practices. If we’re wrong about this, the PCP did not put the claimant at any disadvantage because the respondents went above and beyond its contractual duties and gave him a significant amount of additional CSP, which was followed by annual leave and backdated PHI, the annual leave having been effectively returned.

[149]We do not find that 3.1.2 put those persons at a particular disadvantage compared to persons without the protected characteristic. All persons subject to the policy and practice would suffer same disadvantage of a natural break in coverage. If we’re wrong about this, it was not applied to Case No: 2215433/2023 38 the claimant because the claimant’s break in coverage was ultimately covered by backdated PHI.

[150]We do not find that 3.1.3 put those persons at a particular disadvantage compared to persons without the protected characteristic because there is no certainty that a medical severance would put them in a better position than not. Medical severance can be on any terms and is highly discretionary by its nature. The effect of a lack of policy did not affect disabled persons more than any other group. In fact, in many situations it would leave those who are disabled in a worse position given that the continuing payment for up to 5 years of PHI would stop.

[151]If we’re wrong about this, the lack of policy did not cause any disadvantage to the claimant because the overall effect was to leave him employed with remuneration above and beyond his contractual entitlement. The claimant was also free to resign at any stage. 3.6 Was the PCP a proportionate means of achieving a legitimate aim? What was that aim? 3.7 The Tribunal will decide in particular:3.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;

3.7.2 could something less discriminatory have been done instead;

3.7.3 how should the needs of the Claimant and the Respondent be balanced?

[152]If we’re wrong about the above, we are satisfied that the PCPs were proportionate means of achieving legitimate aims. The legitimate aims were: retention of employees, rehabilitation back to work, ensuring fairness and consistency of treatment with an ability to apply a discretion to particular Case No: 2215433/2023 39 circumstances. Nothing less discriminatory can be readily identified. Also, it was entirely reasonable not to have a policy on medical severance because this would undermine the legitimate aim of not pursing medical severance and preferring rehabilitation back to work. We consider that a preference for rehabilitation back to work is, to a degree and in one sense, effectively mandated by the ERA 1996 because a lawful medical severance would be premature where a return to work is likely within a reasonable timeframe.

[153]For those reasons the complaint of indirect disability discrimination is dismissed. Harassment related to disability (Equality Act 2010 section 26) 4.1 Did the Respondent do the following things: 4.1.1 Telling the Claimant at the end of January 2023 that he would be going onto SSP.

[154]We find that this happened. We make this finding because this fact is not in dispute. Equally, a decision was clearly made for this communication to happen. However, it was unclear to us if there was ever a conscious decision to actually start SSP by the respondents. This is because SSP was not, in fact, paid to the claimant. 4.1.2 Telling the Claimant in June 2023 that his income would be reduced to zero until the insurance payments began.

[155]We find that this happened. We make this finding because this fact is not in dispute. 4.1.3 Being sent the Sickness Policy in January 2023 which made reference to possible termination of the Claimant’s employment. Case No: 2215433/2023 40

[156]We find that this happened. We make this finding because this fact is not in dispute. 4.1.4 Refusing to agree to the Claimant’s request for his employment to be ended on medical grounds. The requests were made on the 22nd February 2023, 2nd March 2023, 16th March 2023, 19th April 2023, 26th April 2023, 26th May 2023 and 16th June 2023.

[157]Overall, we find that this happened. This was the overall effect of the correspondence outlined above. 4.1.5 Withholding information/failing to provide the Claimant with relevant information [Claimant to provide further details] 4.1.6 Refusing to allow the Claimant to be paid holiday pay in July 2023.

[158]We find that this is not proven. This is because the claimant’s request was agreed to within a very short period of time, around two days. The fact of not immediately positively agreeing to it was not, in the context of this correspondence as a whole, a true refusal. We refer to our earlier reasons on this element in the findings of fact, above. 4.1.7 Contacting the Met Police Firearms Unit and alleging that the Claimant was armed and about to commit suicide in July 2023.

[159]Our factual findings do not entirely match this allegation, however, the overall thrust of this complaint, expressing concerns to the police about a suicide risk which involve a firearm, were made by the respondents. 4.1.8 Ignoring the complaints that the Claimant submitted to the Respondent on the Case No: 2215433/2023 414.1.8.1 15th June 2023 to Lucy Major and Allison Granquist by email

4.1.8.2 18th July 2023 to senior management by email.

4.1.8.3 3rd August 2023 by email to Tracey Leahy

[160]We find these not proven for the reasons already outlined in the findings of fact, above. 4.2 If so, was that unwanted conduct?

[161]We find that this was all, by its nature, unwanted conduct. This is obvious from the nature of the conduct taken as a whole. 4.3 Did it relate to disability?

[162]We find that all of this did relate, in some way, to the claimant’s disability. This is because of the clear links between his disability, ill health, long term sickness, and his sick pay and his proposed severance requests. These all relate, one way or another, to his mental health state at the relevant time. 4.4 Did the conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

[163]We find that none of the unwanted conduct had any of the relevant purposes. This is because there is no cogent evidence on which we could make such a finding. Much of the conduct the claimant conceded was not with that purpose in any event as set out in the findings of fact, above. We also refer to our findings of fact, above, about there being no such purpose to the other conduct. Case No: 2215433/2023 42

[164]We find that the conduct overall did have the effect of creating an intimidating and hostile environment. This is because we accept the claimant’s evidence as to the effect it had on him which was not meaningfully undermined by the other evidence or cross-examination.

[165]However, we do not find that this effect was reasonable given all the circumstances of the case, and even taking the claimant’s mental state into account. This a matter of our evaluation, taking into account all of the circumstances and our findings of fact, above.

[166]We do find that some elements of the respondents’ communications could have been more sympathetically expressed. However, ultimately it was reasonable to inform the claimant of a move to SSP when the policy defined period of CSP was due to come to an end (even if the company quickly decided to make a longer discretionary payment of CPS), it was necessary to inform the claimant of any break in payments, it was entirely appropriate to include in a sickness policy the fact that termination was a possibility particularly when this reflects a fair ground of dismissal under the ERA, it was reasonable to refuse termination when the claimant’s income was protected to a generous degree by PHI payments and there was a realistic prospect of recovery and return to work in the context of an undefined prognosis, and it was entirely reasonable to contact the police given the content of the email sent by the claimant.

[167]We do not consider the effect of the proven conduct to be reasonable on the claimant in the context of the respondents having acted reasonably throughout (in respect of these allegations).

[168]For those reasons the complaint of harassment related to disability is dismissed. Employment Judge Barry Smith 30 September 2024 Case No: 2215433/2023 43 SENT TO THE PARTIES ON 15 October 2024 ...................................................................................... ..................................................................................... FOR THE TRIBUNAL OFFICE Case No: 2215433/2023 44 Appendix A – List of Issues AGREED LIST OF ISSUES Amendments underlined and agreed by the parties: EJ B Smith 2.9.24.

Conclusions

[1]Disability1.1 The Claimant’s disability is depression and anxiety. The Respondent accepts that this is a disability under the Equality Act 2010 and that the Claimant suffered from it during the material times.

1.2 The Respondent accepts that it had knowledge of the disability during the material times.

[2]Direct disability discrimination (Equality Act 2010 section

[13]

2.1 Did the Respondent do the following things:2.1.1 Not awarding the Claimant the Long Term Incentive (LTI) in February/March 2023.

2.1.2 Not paying the Claimant the Key Contributor Award in February/March 2023. [withdrawn 3.9.24]

2.1.3 Not giving the Claimant a pay rise in February/March 2023.

2.2 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who he says was treated better than he was.

2.3 If so, was it because of disability?

2.4 Did the Respondent’s treatment amount to a detriment? Case No: 2215433/2023 45 3. Indirect discrimination (Equality Act 2010 section 19)

3.1 A “PCP” is a provision, criterion or practice. Did the following amount to PCPs:3.1.1 The Company Sick Pay policy which placed the Claimant on SSP after 26 weeks, in June 2023

3.1.2 The requirement for the Claimant to go on involuntary unpaid leave in June 2023.

3.1.3 A failure to have a policy regarding medical severance.

3.1.4 Failing to chase up the income protection insurance from May 2023. [withdrawn 3.9.24]

3.1.5 a practice of refusing requests for medical severance.

3.2 Did the Respondent apply the PCPs to the Claimant?

3.3 Did the Respondent apply the PCP to persons who are not disabled?

3.4 Did the PCP put persons with whom the Claimant shares the protected characteristic of disability, at a particular disadvantage when compared with persons with whom the Claimant does not share the protected characteristic.

3.5 Did the PCP put the Claimant at that disadvantage?

3.6 Was the PCP a proportionate means of achieving a legitimate aim? What was that aim?

3.7 The Tribunal will decide in particular:3.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;

3.7.2 could something less discriminatory have been done instead;

3.7.3 how should the needs of the Claimant and the Respondent be balanced? 4. Harassment related to disability (Equality Act 2010 section 26)

4.1 Did the Respondent do the following things:4.1.1 Telling the Claimant at the end of January 2023 that he would be going onto SSP.

4.1.2 Telling the Claimant in June 2023 that his income would be reduced to zero until the insurance payments began.

4.1.3 Being sent the Sickness Policy in January 2023 which made reference to possible termination of the Claimant’s employment. Case No: 2215433/2023 46

4.1.4 Refusing to agree to the Claimant’s request for his employment to be ended on medical grounds. The requests were made on the 22nd February 2023, 2nd March 2023, 16th March 2023, 19th April 2023, 26th April 2023, 26th May 2023 and 16th June 2023.

4.1.5 Withholding information/failing to provide the Claimant with relevant information [Claimant to provide further details]

4.1.6 Refusing to allow the Claimant to be paid holiday pay in July 2023.

4.1.7 Contacting the Met Police Firearms Unit and alleging that the Claimant was armed and about to commit suicide in July 2023.

4.1.8 Ignoring the complaints that the Claimant submitted to the Respondent on the4.1.8.1 15th June 2023 to Lucy Major and Allison Granquist by email

4.1.8.2 18th July 2023 to senior management by email.

4.1.8.3 3rd August 2023 by email to Tracey Leahy

4.2 If so, was that unwanted conduct?

4.3 Did it relate to disability?

4.4 Did the conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 5. Time limits

5.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 31 May 2023 may not have been brought in time.

5.2.2 If not, was there conduct extending over a period?

5.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? Case No: 2215433/2023 47

5.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:5.2.4.1 Why were the complaints not made to the Tribunal in time?

5.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?