Dr Leary-Owhin v London South Bank University: 2300282/2020
EMPLOYMENT TRIBUNALS
Case No 2300282/2020
Between
Dr Leary-OwhinClaimantLondon South Bank UniversityRespondent
Before
Employment Judge Khalil sitting with panel membersIn person for claimantMs Ahmad (instructed by Counsel) for respondentDate 16 May 2022
JUDGMENT
Unanimous decision The claim for direct race discrimination under S.13 Equality Act 2010 is not well founded and is dismissed. The claim for harassment (race) under S.26 Equality Act 2010 is not well founded and is dismissed. The claim for victimisation (race) under S.27 Equality Act 2010 is not well founded and is dismissed. The claim for detriments for making protected disclosures under section 47B Employment Rights Act 1996 is not well founded and is dismissed. The claim for automatic unfair dismissal for making protected disclosures under section 103A Employment Rights Act 1996 is not well founded and is dismissed. The claim for ordinary unfair dismissal under section 94/98 Employment Rights Act 1996 is not well founded and is dismissed. 1 of 70
REASONS
Applicable law
[1]This was a claim for unfair dismissal under S.94/98 Employment Rights Act 1996 (‘ERA’), dismissal for making a protected disclosure under S.103A, detriment for making a protected disclosure under S. 47 C ERA, direct race discrimination under S.13 Equality Act 2010 (‘EqA’), harassment (race) under S. 26 EqA and victimisation under S.27 EqA. The issues were agreed and set out in a detailed Case Management Summary following a Hearing before EJ Ferguson on 28 January 2021. The claimant confirmed during the Hearing that issue numbered 4 (in the Discrimination table) should have the word ‘not’ deleted.[2]The claimant appeared in person. The respondent was represented by Ms Ahmad, Counsel.[3]The Tribunal was presented with a witness statement bundle of 337 pages, a Bundle of 2858 pages from the respondent (not agreed with the claimant) and a supplementary Bundle of 190 pages from the claimant. The claimant’s witness statement alone was 221 pages (1000 paragraphs).[4]The Tribunal announced at the outset that it had 11 Judicial sitting days to complete the case in this trial window (not 15) - reading, evidence and submissions. Thereafter the Tribunal would deliberate, probably over 3 days, on a date to be fixed. There were 12 witness statements, 7 for the respondent, 5 for the claimant, though one of the claimant’s witnesses would not be giving evidence.[5]The Tribunal undertook some provisional reading and following some deliberation, announced that there were significant challenges to start and complete this case in this trial window having regard to the overwhelming volume of documents. The overriding objective required proportionality and the documentation before the Tribunal was wholly disproportionate. They key challenge was the length of the claimant’s witness statement which would take about 1.5 days to read alone, before considering the other statements and the documents referred to therein. Whilst the claimant was dismissed following an investigation, disciplinary and appeal process (not disputed), there 13 grievances (and appeals against outcomes) which he also instigated.[6]The Tribunal proposed 3 options a) the parties could apply for the Tribunal to read most of the documentation before it and if the Tribunal was satisfied that it should do so, this would mean 3-4 days of 2 of 70 reading, which would directly impact the prospect of the case not completing and going part-heard unless cross examination on both sides was significantly curtailed. b) or the Tribunal could postpone the Hearing and spend as much time as was necessary to case manage and give directions to page limit the bundle and word limit the witness statements and the Tribunal could also determine a preliminary issue of whether the disclosures relied upon were qualifying protected disclosures as this was disputed. c) or the Tribunal could be directed to read certain (limited) documents in the bundle and relevant parts of the claimant’s witness statement only, with proportionality at the forefront of the parties’ direction. Those would then be the exclusive documents which would be read, with only a small margin of variance upon application.[7]Following the lengthy discussion with the parties, the respondent preferred not to lose the trial window and offered the Tribunal a reading list of about 250 pages. The claimant added to this list by another 100 or so documents. The respondent’s documents were set out in its chronology document. The claimant’s additional documents for reading were highlighted as follows: 691-708 (Addendum 11), 1439-1448 (Addendum 28), 1519-1529 (Addendum 29), 2064- 2066 (Addendum 41), 2158-2177 (Addendum 42), 2203 – 2227 (Addendum 45), 2245- 2247 (Addendum 45A), 2260-2270 (Addendum 48), 2272-2276 (Addendum 49), 2360- 2369 (Addendum 57).[8]The Tribunal interpreted both parties opting for option (c) above. The Tribunal said it would undertake its reading subject to the relevance of the documents to the issues in the case. At this early stage, the Tribunal was not in a position to determine that and was reliant upon the parties directing the Tribunal reasonably in this regard.[9]The claimant’s witness statement was reduced in length and following a long discussion with the claimant and following further Tribunal deliberation, the Tribunal Ordered the claimant to produce a revised witness statement, by extracting from his current witness statement (but not adding anything new), limited to 40 pages (this was a maximum) by 10.00am on Thursday 3 February 2022. The claimant was informed he needed to bring 4 copies. This statement was to be focused on the issues the Tribunal needed to decide only. The claimant asserted in this regard that he had been ‘astounded’ that the respondent had included all of the documentation relating to 11 other grievances which he said were not relevant.[10]The Tribunal discussed timetabling with the parties and it was agreed that the claimant would have 4 days to cross examine the respondent’s evidence and the respondent would have 2.5 days to cross examine the claimant’s evidence. This was in the light of the discussion about the claimant’s revised witness statement, an indication that Ms Diane Paice (for the claimant) would not be giving evidence and the Tribunal’s provisional observations on the relevance of Mr Michael Keith. The claimant asserted Mr Keith was an expert witness on discrimination, but no application had been made to adduce such 3 of 70 expert evidence to date. Furthermore, he had never worked for the respondent and could not give any direct evidence on any of the formal processes followed/actioned by the respondent or their outcomes. The Tribunal also informed the claimant that the Tribunal were the custodians to adjudicate on discrimination allegations in the workplace. Experts were occasionally relied upon by Tribunals to offer the Tribunal expertise on an area out with its expertise. The claimant was also informed without Ms Paice giving oral testimony, her witness statement would carry limited weight as it could not be questioned by the respondent or the Tribunal.[11]The timetabling of evidence would leave half a day for submissions and half a day for slippage. It was emphasised that the Tribunal should be directed to read with the Tribunal’s earlier comments in mind, any document which was considered essential to the issues outside of its reading list. For the avoidance of doubt, the Tribunal was not going to read in the region of 3000 documents in the Bundle or anything close to that.[12]The claimant had one 3-page document (a stage 3 grievance appeal outcome letter in relation to the claimant’s grievance against Ms Griffiths Jones) which he said was not in the respondent’s bundle or his supplementary bundle. This was not objected to and was admitted on application.[13]The respondent had applied to give evidence first. This might have caused some prejudice to the claimant if he had to commence cross examination first (unexpectedly) today or even the next morning, but as the evidence was not to commence until day 3 (Thursday pm 3 February 2022), such prejudice did not arise. It was also fair to permit the respondent to have some further time to revise/re-evaluate its cross examination of the claimant’s evidence once it had received the revised witness statement from the claimant on Thursday morning. Whilst the starting burden of proof was on the claimant in relation to the discrimination and protected disclosure claims, dismissal was admitted thus it would not be irregular for the respondent to give evidence first to assert its potentially fair reason for dismissal (for which it carries the burden) in relation to the unfair dismissal claim.[14]The claimant also asked if he was able to wear Nigerian national dress on some days, including a hat (‘Fila’), which the Tribunal said was absolutely fine.[15]The claimant also said there was a contract between students and the respondents he has sought disclosure of. He said he had applied for disclosure of this from the respondent including an application to the Tribunal but could not say when. The Tribunal informed the claimant to address the Tribunal in this regard on Thursday afternoon when the parties return and before evidence was to commence. This would give the claimant more time to ascertain what he had done and when.[16]On Thursday 3 February 2022, the claimant produced his witness statement and it was 40 pages as Ordered. The respondent objected to paragraph 27 which appeared to refer to an additional protected act in January 2019. It was not in the agreed list of issues. The claimant was informed that he would need to apply to amend his claim. The Tribunal 4 of 70 also admitted a Stage 3 appeal outcome letter dated 5 April 2019 from Professor Shan Wearing.[17]The respondent had also produced a document called ‘Enrolment Terms’ which was not objected to but the claimant sought a further document (a Course Study) document which the respondent said it would take instructions on.[18]The Tribunal Ordered the parties to produce by Monday 7 February 2022 a summary of all the grievances raised by date, a brief description, the outcome, the appeal outcome and date, whether it was dealt with as part of the disciplinary or appeal process, which were outstanding and the page numbers in the bundle. In addition, an organisation chart showing the positions within it of those in the cast list in this case. This was ultimately produced by the respondent and although the claimant said the grievance summary was not accurate, this was limited to the reference to a grievance against Mr Winter, which should read Mr Westover.[19]Before the evidence commenced, the Tribunal summarised the applicable law on unfair dismissal to the claimant, as a litigant in person, in particular the Burchell test and the range of reasonable responses. The Tribunal also explained the burden of proof provisions in relation to the discrimination claims and the difference in tests in relation to the protected disclosure claims relating to dismissal and detriment (reason or principal reason and material influence respectively). The claimant was also informed that he should focus on the agreed issues in this case and that if he disagreed with a respondent witness about a relevant factual dispute, he should challenge it as otherwise it was open to the Tribunal to simply accept the respondent’s unchallenged evidence.[20]On Day 4, the Tribunal admitted the course study planning document on a consensual basis (MA Planning Policy and Practice’). The claimant also applied for disclosure in relation to the circumstances relating to the disciplinary sanction applied to one of his named comparators, Mr Neil Adams. The claimant had said he knew he had issues around health, alcoholism and personal/family circumstances, which he was aware of as he had supported him and that his treatment had been more favourable. The Respondent was permitted to take instructions. The respondent submitted on day 5 (7 February 2022) after taking instructions, that Mr Adams was given a final written warning for conduct relating to being under the influence on account of mitigating circumstances namely alcoholism, family circumstances as a result and contrition. The claimant further submitted he was a close personal friend of Mr Adams. The Tribunal, following deliberations, rejected the application for disclosure. The evidence/submissions in relation to Mr Adams’ mitigating circumstances, causative of his (lesser) sanction, were not in dispute: health, alcoholism and family circumstances. Further, there was no good reason the application was being made now, a disclosure application, if relevant, could and should have been made sooner. Mr Adams could also have been called by the claimant to give evidence, with whom he said he had a close relationship.[21]On day 6 (8 February 2022), the Tribunal admitted an organisation chart and a grievance schedule produced by the respondent. Both of these documents had been requested by 5 of 70 the Tribunal as an aid rather than for the parties to question each other on. The claimant did not object to the organisation chart but said the grievance schedule was incomplete. He was informed he should reflect on the document and let the Tribunal know of the alleged factual omissions only.[22]In addition, on day 6, the claimant informed the Tribunal that his brother had sadly passed away last night. He said he had been in hospital. The claimant was visibly upset/emotional. The Tribunal expressed its condolences and asked the claimant to take some time out to reflect on what he might wish to say to the Tribunal in the light of this personal issue. The respondent could also take instructions and the Tribunal would discuss the matter too in the break. The Tribunal said the overriding objective to act fairly and justly was at the forefront of its mind. Following a short break, the Tribunal announced 3 possible options. Option A was to continue (today) with the Hearing; option B was to pause the Hearing today and resume on Thursday 10 February 2022 (noting that Wednesday 9 February 2022) was already a non-sitting day). The Tribunal could add a further day to the planned deliberation week and invite the parties back to conclude, say the evidence of Ms Langford and to close their cases. Option C was to stop the Hearing altogether at this point and the Hearing would be re-listed for the remaining days part-heard.[23]Both parties expressed a desire to proceed with option B. The respondent informed the Tribunal it had expressed its condolences to the claimant. Following Tribunal deliberation and further discussion with the parties, the Tribunal agreed this was the way forward. The loss of Tribunal time could be made up by the addition of a further day for oral submissions which was fixed for Tuesday 1 March 2022. The claimant asked if he would be permitted to attend the funeral if it fell within this Tribunal sitting. The Tribunal informed the claimant this would be accommodated and if that happened, further arrangements for the Hearing would be discussed. The Tribunal also agreed to sit from 9.30am on Friday 11, Monday 14 and Tuesday 15 February 2022 to be in a position to finish the evidence in good time by Tuesday afternoon. The parties were in agreement.[24]On Monday 14 February (day 10), the claimant made 2 applications. First to interpose Ms Coupar as she was unavailable to give evidence on Tuesday. He said, because of his bereavement, he had overlooked informing his witnesses about the change to the day they needed to attend the Tribunal. In discussions with the claimant and Ms Coupar directly, it emerged that she had a hospital appointment at St George’s hospital (in Tooting at 2.00pm). Ms Coupar had an outlook diary entry on her phone but the Tribunal was not given any medical evidence. She said she lived in Banstead and it would take about 45 minutes to get there. She added she did not wish to be in Tribunal for 2 days as she worked on a daily rate basis, further that she had a lot of work to do in the next 4 weeks. The respondent objected as it did not wish its cross examination of the claimant to be disrupted. The respondent said this would be prejudicial. The Tribunal asked how long the respondent’s cross examination would take and was informed up to 45 minutes. Following Tribunal deliberation, the application was refused. The Tribunal resolved she could still give evidence at 9.30am (on Tuesday 15 February) and she was free to leave the Tribunal now. 6 of 70[25]The second application was an application to amend to add claims of direct discrimination, harassment and victimisation in relation to evidence around the respondent’s case on discussions had after the disciplinary hearing on 15 July 2019 and before the decision was reached or conveyed. Further, in relation to the respondent’s evidence about precedents of grievances and disciplinary being heard concurrently. The claimant was informed of the Selkent Bus guidelines /Presidential Guidance. The claimant said he did not make the application sooner as he had wished to see what was said in evidence. The application was opposed. The Tribunal, following deliberation, refused the application. The matters referred to were known at the very least when the witness statements were exchanged on 21 December 2021. Those statements served as the evidence in chief. The application could have been made a lot sooner. The respondent’s evidence had closed on Friday 11 February. No application for disclosure had been made (regarding the evidence of precedents) and the issue had not been raised. The Tribunal commented in passing that it had read and considered the respondent’s policy on the hearing of grievances concurrently with disciplinary proceedings and where matters were ‘related’ (page 294) which mirrored the ACAS Code on discipline and grievances (paragraph 46 of the code). The balance of injustice/prejudice, being the key question, was firmly against the granting of the application.[26]On the day when closing submissions were heard (1 March 2022), the claimant enquired about the status of the contemporaneous ‘twitter’ evidence which had been put to the claimant under cross examination. This was to rebut the claimant’s assertion that he had not sensationalised his case. The Twitter feed was permitted to be read back to the claimant which cited the claimant saying that he had been called a ‘witch-hunter’ and that he was not a ‘witch doctor’. The claimant did not challenge the accuracy of what the respondent’s counsel had stated. The Tribunal confirmed that it had been admitted in evidence but upon the respondent’s application to admit further twitter evidence (about the Hearing), this was not permitted though the Tribunal noted the respondent reserved its position on that evidence in respect of any application in connection with the manner in which the proceedings had been conducted by the claimant. The Tribunal observed in passing that it did not consider the ‘tweet’ to be an accurate report of what had been said to the claimant under cross examination.[27]An additional matter was raised by the Tribunal, as it was informed by the HMCTS Legal Officer, who had been observing the proceedings for training and development (announced at the outset), that she had been approached by the claimant seeking to know what she had learned from the process (to which she responded) but was also asked what she thought of the claimant’s case. She said she was pressed on the latter and was uncomfortable about being asked that. The Tribunal raised this with claimant who said he could not recollect saying the latter. The respondent’s counsel said that she too heard the claimant engage in this dialogue with the claimant in the way reported, as had her client. The Tribunal remarked that if said, it was inappropriate and very irregular to do so. During the lunch break, the clerk also informed the Judge, unprompted and unsolicited, that she had heard the claimant press the Legal Officer about what she thought of his case. She too had found it uncomfortable and had gestured to the Legal Officer not to respond. This further information was put to the claimant who maintained 7 of 70 that he did not ‘recollect’ saying this. The Tribunal said it would consider whether it needed to make any finding or reach any conclusion on this whilst deliberating.[28]For the claimant, the Tribunal heard evidence from the claimant himself, Dr Alan Winter (former lecturer), Ms Kirsteen Coupar, former Director of Student Services, Professor Michael Keith (University of Oxford).[29]For the respondent, the Tribunal heard from Dr Duncan Tyler, Former Head of ULES, Professor Craig Barker, Dean of the School of Law and Social Sciences, Professor Pat Bailey, Provost of the respondent, Professor Patrick Callaghan, former Dean of the School of Applied Sciences (currently Associate Pro Vice chancellor for Research), Mr James Stevenson, Group Secretary and Clerk to the Board of Governors (dismissing officer), Professor David Pheonix (appeals officer), Vice Chancellor and Ms Helen Langford, former Deputy Director of People. Relevant findings of fact[30]The following findings of fact were reached by the Tribunal, on a balance of probabilities, having considered all of the evidence given by witnesses during the hearing, including the documents the Tribunal was directed to read at the outset and those referred to by the witnesses in evidence and taking into account the Tribunal’s assessment of the witness evidence.[31]Only findings of fact relevant to the issues and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if it was a document the Tribunal was directed to read or was taken to.[32]This preamble is particularly important in this case as the bundle documents were disproportionately dense and substantial in volume and because the Tribunal made it clear the basis upon which the case would be heard in this trial window. The respondent is a University.[34]The claimant worked as a Senior Lecturer and Course Director, MA Planning, Policy and Practice within the division of Urban, Environmental and Leisure Studies (‘UELS’) from 8 June 1992 until his dismissal with effect from 30 September 2019. Within the division, academics in Planning, Housing and Tourism worked closely together.[35]In addition to teaching responsibilities, the claimant and other lecturers in the division, had responsibility to supervise dissertations of both undergraduates and postgraduates, full time and part time. 8 of 70[36]The university issues an enrolment of Terms and Conditions to students. The MA Planning course for which the claimant was the Course Director, has a written course guide. This was written by the claimant. Both of these documents were before the Tribunal. There were no other documents before the Tribunal in relation to the arrangements between students and the respondent[37]At the time of his dismissal, the claimant’s line manager was Ms Vanessa Beever (Director Education and Student Experience, School of Law and Social Sciences). That took effect consequent on the disputes which arose in this case between the claimant and his previous line manager Dr Tyler, the claimant’s subsequent grievance relating to that dispute and the claimant’s request for alternative line management.[38]The claimant had some concerns/issues in relation to his previous 2-line managers too ( Ms Richards & Mr Morad). This was referred to by Dr Tyler in his meeting with Professor Barker on 7 February 2019 and was set out in paragraphs 4 and 5 of his witness statement. (This evidence was unchallenged). The Tribunal was not taken to the precise details though the claimant did refer himself to previous issues in 2016 in his emails of 10 December and 13 December 2018 (pages 441, 462).[39]In August/September 2018, the claimant was in an at risk (of redundancy) pool with others but, owing to better than expected student numbers on the Planning course, enrolling for September 2018, the claimant ceased to be at risk. Mr Tyler confirmed this in an email dated 18 October 2018 (page 424). Within this email Mr Tyler said he understood the claimed had ceased to be at risk for a few weeks (unbeknown to him) and that the claimant had declined to attend a meeting with Mr Barker about this confirmation.[40]In response to this email, the claimant sought official notification and said that when he was ‘invited’ rather than ‘instructed’ to attend a meeting, it was for him (the claimant) to decide whether to attend such a meeting or not. The Tribunal found this to be a bizarre assertion, especially as the claimant was at risk of redundancy at that time and the invitation was from the Dean (22 October 2018, page 423).[41]On 19 October 2018, Mr Tyler emailed his team with a proposed Annual Work Plan (‘AWP’) setting out his expectations and availability of all the lecturers to teach, personal tutees, dissertations, field trips, course management, recruitment and wider participation work. In his email, Dr Tyler explained that some of the lecturers were dissertation heavy. Where lecturers were under their expected/contracted hours, this was also stated.[42]In the claimant’s case, he was about 30 hours under (page 430). On the summary document at page 2607, the claimant’s (under) capacity hours was stated to be 39 hours.[43]The claimant emailed Mr Tyler on 13 November 2018, copying in another lecturer, Dr Antonia Noussia, expressing concern about the number of dissertations he had asked to supervise. He said it would not be good for his work-life balance or his health or well9 of 70 being. He concluded his email saying Í trust at least seven dissertations will be reallocated (page 431).[44]Dr Tyler responded to the claimant accepting that the allocation was not ideal, but that as the claimant had the spare hours, he had capacity. He said he was hoping to get more resource in to the department by February/March 2019 (page 430).[45]The claimant emailed Dr Tyler on 14 November 2018 saying (in summary) the dissertation supervision workload was not in the interests of the students or in the interests of his health and well-being which he said he knew Dr Tyler took seriously. He said he had not been sleeping well because of the worry. He referred to the respondent not recruiting new staff who could undertake dissertation supervision and he said the distribution of workload needed to be fair. He said five needed to be re-allocated and looked forward to this happening (Page 429). This email was copied to Dr Phil Pinch and Dr Antonia Noussia (page 427).[46]On 18 November 2018 Dr Antonia Noussia emailed Dr Tyler, copying in the claimant (page 433). She suggested each lecturer take one dissertation each and that two Hourly Paid lecturers (‘HPLs’) take two each. She concluded by asking Dr Tyler to let her know of his decision.[47]On 19 November 2018, Dr Tyler emailed the team explaining that whilst some lecturers had been allocated more supervision, the hours were available and collectively, the division was 606 under hours. He further explained there were no funds available to pay HPLs to undertake post-graduate or under-graduate supervision. He suggested that those lecturers with a heavy supervision workload could swap for a teaching load off others. He asked to be told about any such arrangements which might be agreed (page 450).[48]In an email of 19 November 2018, the claimant, emailing Dr Tyler and copying in the team, said the uneven distribution of dissertation supervision especially for part time students who only attend one day a week was the problem and he felt that it was too late in the academic year to re-allocate teaching. He also agreed with Dr Noussia’s suggestions. (He sent a separate email to Dr Tyler (copied to Dr Noussia & Dr Pinch only) making the same point about Dr Noussia’s suggestions and commenting generally on dissertation supervision numbers – pages 448 & 449).[49]Dr Tyler sent 2 further emails on 19 November 2018 to the claimant only. In one email, he said the claimant had the hours and further, that the claimant could use Skype (like Dr Eddie Isaacs) and he should get IT to set him up. In his other email, regarding Dr Noussia’s suggestions, he said (again) there was no budget for HPLS. Further, he referred (again) to consider supervision via Skype, saying it was quite standard and that Dr Isaacs and Neville Kendall already did that (pages 448 & 449).[50]In a further email on 19 November 2018, the claimant did not consider the Skype option would assist because the dissertations were mostly for part-time Masters students. He went on to state that if a proper solution was not found, he would have to let the students 10 of 70 know of the difficulties in being able to resource the dissertation supervision properly (page 447). He copied in Dr Noussia.[51]In response, on 20 November 2018, Dr Tyler repeated that the claimant had the hours, there was no money to pay HPLs and to get Skype. He referred again to the possibility of getting resource which could assist for marking in the next semester. He also invited the claimant to look at swapping his part time students for full time students. He concluded by saying it was totally inappropriate to inform students that the resources were not available when they were (page 447). Dr Noussia was copied on this email.[52]On 21 November 2018 the claimant emailed Dr Tyler copying in Dr. Noussia, Dr Pinch and Dr Winter. He said he did not think Dr Tyler’s suggestions were feasible or addressed the problems. He explained his concerns about dissertation supervision of part time post graduate students who would attend once a week on Thursdays. He said other colleagues had the same issues and he and other colleagues were under workplace stress as a result and dissertations needed to re-allocated. He said the problem was a resourcing issue in the light of the loss of staff. He suggested a meeting and for this reason he had copied in HPLs (page 469-470).[53]Dr Tyler replied on the same day copying in the same individuals. He accepted the position was not ideal and agreed with much of the claimant’s analysis. However, he explained he could not ask those over hours to take on supervisions. Those with hours available, after teaching and management, had to be allocated supervisions. He explained he was over budget on HPLS by about £15,000 (just on teaching requirements) and also needed to find £60,000 of savings, thus could not pay for HPLS. He also repeated the suggestion about switching over supervisees. He also referred to the prospect of advertising for new resource and he hoped to have the position on advertising for more resource resolved before Christmas. He explained that this would provide some relief regarding resourcing issues from around Easter onwards. He concluded by saying that he thus had virtually no wriggle room at this time (page 445).[54]On 22 November 2018, the claimant approached other lecturers asking if they would supervise one of his dissertations. The claimant approached 4 lecturers. The email to Dr Eddy Isaacs was at page 476. In his email he had stated: “Hope things are ok with you. Duncan has agreed that we have a serious problem trying to organise supervision this year, mainly because of the colleagues that have left and because I teach two modules this semester then three next semester on the day the part time students are in Uni. I know you have a busy year, but could you do me a favour and supervise a dissertation (attached)” (page 476). Dr Isaacs and Mr Kendall informed Dr Tyler that they had been approached about this and thought it was inappropriate to be asked to take on the extra work.[55]On 22 November 2018, Dr Isaacs sent a draft of an email he intended to send to the claimant to decline his request to undertake one of his dissertations. The draft of the 11 of 70 email was a toned-down draft. This was obvious as the email from Dr Isaacs began ‘I thought about writing a strong and quite rude email to him, but I am aware he is quite fragile at the moment’. This draft email was copied into Mr Kendall (page 475).[56]On 23 November 2018, Dr Tyler emailed the team to explain that he was aware the claimant had approached some lecturers to take on some of his dissertations and that he believed that there was an implication that he (Dr Tyler) had agreed to this approach. He stated that whilst he agreed to some of the claimant’s analysis, he had not agreed to the claimant’s solution (s). He said he had agreed for the claimant to swap individual supervisees but that had not been the claimant’s approach. He also reiterated that he was working hard to secure more resource and hoped to know the nature and scale of this by the new year (page 477). Dr Noussia took the view that there was a misunderstanding. She felt the claimant was asking for personal favours and it was for individuals to decline or accept the request. She emailed Dr Tyler and the team saying this on 23 November 2018 (page 477).[57]In an email dated 26 November 2018, the claimant emailed Dr Tyler, copying in Dr Noussia, Dr Pinch and Dr Winter. He said he found Dr Tyler’s handling of this matter as imposing additional stress on him. He said the Associate Professors thought a meeting would help and believed that due to the loss of resource in summer, there was money available and 7 dissertations should be allocated to HPLs (page 482-483).[58]On 5 December 2018, Dr Tyler replied (page 481), copying in the same individuals. He said he had the claimant’s emails and those from others. He said there was no more resource to take on HPL staff. He said there was no reasonable case to go over budget when there was hours capacity within the permanent team. He stated: “I remain of the opinion, that while not to your satisfaction, from a management point of view the allocation is fair and it is up to staff to use all reasonable measures including skype, email, telephone conversations and face to face meetings, group meeting (or most likely a combination of these) to fulfil their obligations.” He added he did not want to enter into further protracted correspondence on the issue.[59]On 10 December 2018 the claimant emailed Dr Tyler. He said his handling of the matter was adding to his stress, his well-being and was impacting negatively on the students and other work colleagues. He referred back to an experience with a former Head of Unit when work colleagues of the claimant had complained about him anonymously about his dis-interest in staff meetings. He said Dr Tyler’s earlier email had brought back memories of that and thus Dr Tyler had been insensitive or naïve. He said that he had been unfairly criticised in public and Dr Tyler’s behaviour had been triply damaging because of the anonymity of complainants and the impact of his working relationships with them. This email was also copied to Dr Noussia, Dr Pinch and Dr Winter (page 480).[60]On 11 December 2018, Dr Tyler emailed the claimant explaining he would not reveal the names of those individuals who had spoken to him about the emails the claimant had 12 of 70 sent. He added that he needed to make it clear to the team that the claimant’s approach to other lecturers, who were already up to hours or had high dissertation loads too, to take on some of his dissertations had not been sanctioned by him. He referred to the slow process of getting more resource which he said he found frustrating but concluded by saying he would keep on trying on behalf of the ULES team, all of whom he valued (page 470). The email was copied to Dr Noussia, Dr Pinch and Dr Winter.[61]In an email dated 12 December from the claimant to the UELS team he expressed his views as follows (in summary):• He said Dr Tyler had not addressed the points he had raised.• He said this was the only place he had worked where colleagues had complained about management and that colleague complaint culture appeared to be encouraged.• He was critical of the anonymity of complaints. He stated what he believed Dr Tyler should have done (but had not done).• If a favour was requested, it was for the individual to decide what to do. It did not require the blessing of the Head of the department (Dr Tyler).• He referred to the issue around the anonymous individuals who had refused to take on his extra dissertations from him as a pathetic and/or comical matter.• He cited the 4 individuals he had approached one of whom had told him he had not complained.• He referred to the colleagues who had complained to Dr Tyler as unfair, illconsidered, distressing, disrespectful, duplicitous and damaging to future relations.• He made reference to a previous issue where complaints had been made against him anonymously too.• He said he had now lost respect for and could not trust some of his UELS colleagues• He said UELS needed to discuss urgently how management deals with complaints from colleagues.[62]Dr Isaacs, who was one of the recipients of the email of 12 December 2022, emailed Dr Tyler, copying in Mr Kendall, 11 minutes later expressing that he was ‘mightily upset’. He said it was inappropriate to be asked to do the claimant’s work and the issue compounded his views about not wanting to interact with colleagues outside of Tourism (page 466). 13 of 70[63]On 13 December 2018, Dr Tyler emailed the claimant (only) explaining that the colleagues who had approached him had thought it inappropriate to be asked to take on the claimant’s work (as they were already up to hours) which was clear from the AWP circulated. He said it was not being treated as a complaint (page 465).[64]In response to this email, the claimant responded to the entire team (pages 462-465), providing a copy of Dr Tyler’s email of 13 December 2018, stating/saying:• The response (of Dr Tyler) was cursory and dismissive.• Dr Tyler’s response did him no favours as a Manager/Head of Department.• Dr Tyler’s treatment of the claimant was unfair (and of colleagues and students).• The treatment was a ‘carbon copy’ of treatment he had received a few years ago in which, he alleged, Dr Tyler had played a pivotal role.• The denial of ‘complaints’ against him as sophistry.• Dr Tyler had not treated him fairly and not bothered to explain to the colleagues who had approached him the problems faced regarding supervising part time postgraduate.• There was nothing wrong with asking for favours and it was custom and practice.• Dr Tyler’s unhelpful insistence on dealing with the issues he had raised, affecting his wellbeing.• Dr Tyler’s handing of the matter had led to broken working relationships and may impact on student learning• He suggested a meeting of the UELS team and a discussion with the anonymous colleagues[65]On the same day (13 December 2018), Dr Isaacs and Mr Kendall informed the claimant that they had discussed the claimant’s email about taking on some of his dissertations with Dr Tyler. Dr Issacs maintained that he thought the request was inappropriate and strange and something he would never have done and he declined it as he, like the others, was over-worked. He said the AWP was the forum through which work should be spread (pages 502 and 504).[66]Dr Winter sent an email to the team on 14 December 2018 supporting the concerns about resourcing and the volume of dissertations and that in his opinion, it was not 14 of 70 inappropriate to ask for help from colleagues if needed. He also expressed his disapproval of collective emails, which he said generated more heat (page 479).[67]There had also been an exchange of emails between the claimant and Dr Tyler on 12 December 2018 about the reporting of the claimant’s absence which he had not informed Dr Tyler about. He insisted that he did want to report his absence to Dr Tyler (by text) as he might not receive the text, he might not act on the text and because of his current unfair treatment and thus he asserted he would continue to email ‘Helen Minja’ (student administrator) only. Dr Tyler expressed to Professor Barker and Ms Beever that this was getting ‘silly’ and that he had not treated the clamant differently to anyone else (pages 497).[68]On 17 December, the claimant emailed Dr Tyler (and copied in others in the division) about how the planning team had been defined (in relation to discissions with Mott MacDonald) as anyone who teaches Planning. He referred to being the only member of the team who was RTPI qualified (page 506). In response, Dr Sophie Elsmore (an HPL in Housing and Human Geography), said she found his email ‘fairly insulting and undermining’ (page 507). Dr Samuel Johnson-Schlee, another recipient, also emailed Dr Tyler referring to the email as being particularly galling and undermining. He said the email was incredibly rude given that he had circulated it to others. He also referred to the claimant’s emails in recent weeks, verging on bullying requiring serious intervention (page 457).[69]On 17 December 2018, the claimant emailed Dr Isaacs and copied in the whole team (pages 508-510. In this email he said: o He was prepared to talk to colleagues directly when an issue arises, unlike Dr Isaacs. o He was surprised by Dr Isaacs’ characterisation of his request for support as inappropriate. o He criticised his use of the world inappropriate and said that as neither he or Dr Tyler recognised this as a complaint about him, this was a problem. o He said that Dr Issacs position implied he would never do anyone a favour which is something he would of course remember. o He raised a series of rhetorical questions about why Dr Isaacs had not sought to approach the claimant directly. o He was critical of and disappointed in Dr Isaacs’ behaviour.[70]Dr Isaacs emailed Dr Tyler on 13 December 2018 informing him that he would not be responding to the claimant’s email but that if he ‘kicked’ off about this at the (forthcoming) away day, he might struggle to ‘keep his mouth shut’ (page 511). 15 of 70[71]The claimant sent a further email to Dr Tyler on 19 December 2018 (page 512) asking 5 questions essentially about his handling of the dissertation issue and who had approached him about the matter.[72]On 13 December 2018, Ms Robyn Griffiths-Jones and Ms Sonia Leeyou (Senior Lecturers) had asked the claimant to be taken off the emails which were being exchanged in relation to the dissertation issue (pages 613 and 702). The email from Ms Griffiths-Jones said: “Hello Mike, could you please take me off the circulation list for these emails. Thank you” Ms Leeyou said similarly: “Hello Mike, I would also like to be removed from the circulation list for this specific matter. Thanking you.” In response, the claimant criticised their stance and criticised Dr Tyler, first on 17 December (page 613) and then on 18 December 2018, the claimant emailed both of them setting out a long list of 15 (work) matters in which he said they were thereby saying they had no interest (page 519-520): “Please indicate the specific problem/issue currently facing all UELS colleagues and of great importance for our students’ learning experience in which you have no interest”. Both emails were copied to the team.[73]Ms Leeyou emailed the claimant and the team on 18 December and explained that she felt the forum for such discussion was in a departmental meeting.[74]In response, on 20 December 2018, Ms Griffiths-Jones emailed the claimant (page 519), copying in Dr Tyler (only) saying:• The tone of his email was unpleasant and had upset her.• It was verging on offensive, especially with regard to her professional integrity.• She referred to the irony of helping colleagues and referred to 2 examples where she believed she had done just that.• She said she merely politely asked to be taken off an email distribution list. She said she was a part time member of staff who knew nothing about what these emails were referring to. When she needed to make a judgment about the matter, she would ask for the information and reach an informed conclusion.• She concluded by informing the claimant not to email her again. 16 of 70[75]By this time, Dr Tyler had also escalated the issue with the claimant to Professor Barker to seek a resolution. Professor Barker emailed the claimant and Dr Tyler on 19 December 2018. He said he would be conducting an investigation into the protracted exchange of emails and the effect on relationships in UELS. He informed both that a meeting would be held on 7 January 2019 and they could both be accompanied if they wished. He concluded his email as follows: “In the meantime, all communication between you on this matter must desist and certainly should not be copied to any or all staff within the division. This is a reasonable management request and I expect full compliance”[76]On 20 December 2018, the claimant sent a long email to Ms Griffiths-Jones. He disagreed with her description of the tone of his email to her being unpleasant or that it was verging on being offensive. He invited her to explain these comments. He responded to one of the occasions of support Ms Griffiths-Jones had referred to and did not accept that she did know what was going on as she had been copied into the emails. He also said he was confused by her statement ‘do not email me again’ and asked if she had said the same to the others. He asked her further about this comment not to email her again and whether it applied to any work matter or a specific issue. He concluded by saying ‘when you make the accusations you did in your email, I have every right to respond, especially to defend myself’ (page 518).[77]Ms Griffiths-Jones did not respond to the claimant. She did however email Dr Tyler on 20 December forwarding to him a copy of the email she had received and saying “For your info, I do not intend to respond, he seems intent on sucking me in to some horrible vortex” (page 517).[78]In advance of the meeting on 7 January 2019, the claimant submitted a 15-page statement summarising his position. In this statement he offered to apologise for referring to Dr Tyler and Dr Isaacs as pathetic in his email of 12 December 2018 (page 536); however he said Dr Tyler’s emails of 23 November, 11 December and 23 December and Dr Isaacs’ email of 13 December 2018 needed to be retracted. He also said Dr Isaacs needed to apologise. Further, that it was unlikely that Professor Barker’s investigation and subsequent report could bring positive closure. He said there had been no such closure in 2014 and 2016 either (page 538).[79]The Claimant and Dr Tyler set out what they considered to be the issues for resolution. The claimant set out 15 points ranging from, in summary, the allocation of dissertation supervisions, anonymity of complaints, criticism of how Dr Tyler handled the matter and his use of emails and criticisms of colleagues’ lack of support. Dr Tyler referred to three matters: the toxic environment created by the emails, the claimant’s inability to accept management instructions and his undermining of him and his undermining of colleagues via unreasonable and provocative language questioning their integrity, professionalism and specialist knowledge (pages 539-540).[80]A meeting took place on 7 January 2019. The notes were at pages 543 to 548. The claimant had asked Dr Adrian Budd to accompany him. In this meeting the claimant 17 of 70 provided a long list of issues (comparable to that already stated) and at the end of which he said he was seeking closure if Dr Tyler apologised for his actions and the harm done to the claimant. He stated, amongst his listed matters, he would apologise to Dr Tyler. He said he had been treated in an undermining and unacceptable way. Dr Tyler summarised his view that the claimant had become disruptive, unmanageable and there was no trust. He added he was undermining him and had upset colleagues. Professor Barker expressed concern that notwithstanding his instruction about no further emails to be sent about this matter, a further email had been sent by the claimant to Ms Griffiths Jones. The claimant said he had understood that to relate to the claimant and Dr Tyler. The claimant said by the submission of his comments/statement he was not raising a grievance. Professor Barker explained that the matter still required investigating.[81]The claimant submitted a further statement on 10 January 2019. This was 35 pages providing further details and views following the meeting with Professor Barker. The document contained offers from the claimant to apologise to others (Dr Tyler, Dr Isaacs, Ms Griffiths-Jones and Ms Leeyou) as well as expectations that others (Dr Tyler, Dr Isaacs, Ms Griffiths-Jones, Mr Westover) would apologise to him and actions he expected them to take (pages 582-584).[82]On 14 January 2019, the claimant raised a grievance against Dr Tyler (page 600). He said he was suspending any offers to apologise.[83]On 20 January 2019, the claimant raised a grievance against Ms Griffiths-Jones (page 609). In a conclusions section in this document, the claimant said Ms Leeyou may have ‘discriminated’ against him, further that Ms Griffiths-Jones, Ms Leeyou and Dr Tyler contravened LSBU and ACAS policy and perhaps even the Equality Act. There was reference to the claimant’s health and well-being. He also said Ms Griffiths-Jones’ behaviour may well be gross misconduct (page 611).[84]Dr Tyler submitted a statement in response to the grievance against him (pages 621 to 626).[85]Between 14 January and 20 February 2019 (pages 775 – 788), there was an exchange of emails between the claimant and Mr Budd, his accompanying companion and former union representative:• On 14 January, Dr Budd suggested the matter could lead to a major escalation and that the claimant should apologise to Ms Griffiths-Jones and Mr Issacs. He also said based on experience, the matter could end up dominating the claimant’s life for 6 months• On the same day the claimant had said he was determined to seek redress for unfair treatment and culpability lay elsewhere• On 16 January, Dr Budd suggested apologies on both sides to draw the matter to a close 18 of 70• On 18 January Dr Budd informed the claimant not to copy him in on any more emails. He said the claimant had rejected his advice. He said he considered the claimant fundamentally mistaken in his course of action and he should withdraw his grievances and apologise to his colleagues, starting with Ms Griffiths-Jones• On 21 January, the claimant provided a lengthy response, maintaining his right to pursue his course of action and saying he had apologised to Ms Griffiths-Jones and that Mr Isaacs and Dr Tyler had apologised to him• On 26 January the claimant sent a further email to Dr Budd asking a series of questions about Mr Budd’s email of 18 January• Dr Budd responded on 28 January to the claimant’s email and referred to his 21 January email as ‘precisely the sort of hugely elaborate over-reaction and misreading of events I am warning you against’. He acknowledged Dr Tyler could have raised the supervision issue with the claimant verbally, he expressed surprise Ms Griffiths-Jones and Ms Leeyou had not taken out grievances against the claimant and suggested that as the claimant was in conflict with so many people, including it appeared him too, that he (the claimant) could be the problem. He concluded by urging the claimant to withdraw from his actions and restore good relations, otherwise based on experience he could see this ending in the termination of his employment• The claimant responded on 2 February, disagreeing with Dr Budd and commenting that Dr Budd had decided Dr Tyler, Ms Griffiths-Jones and Professor Barker were all right without seeing the evidence• On 4 February Dr Budd said to the claimant that he was being pig-headed in claiming that the dissertation allocation was the issue and that he was making a mountain out of a molehill, clouding relationships with others including him. He repeated his assessment that the claimant could well be managed out based on experience. He said ‘you don’t need a friend who agrees with you, but the opposite’• On 14 February the claimant said Dr Budd was totally misunderstanding the issues and he, like Dr Tyler, Mr Westover, Ms Griffiths-Jones and Professor Barker, was treating him unfairly, horrendously and despicably• On 18 February Dr Budd said he was alerting the claimant as a friend to the potentially devastating consequences of his approach which he said did not warrant him (Dr Budd) being lumped in with the others he had listed• On 20 February, the claimant replied saying he maintained respect for Dr Budd but did not consider him a friend, saying he had caused him stress and pain magnified because of a 15-year friendship. He considered Dr Budd hostile who 19 of 70 had badgered and bullied him using totally inappropriate language and he questioned the tone and motivation of his last email.[86]On 16 February 2019, the claimant submitted a grievance against Dr Budd largely based on the foregoing exchange.
Applicable Law
[87]On 25 January 2019 a grievance meeting was held with the claimant, before Professor Barker. Ms Walakira (HR) was in attendance too as was Ms Richardson (HR note taker). The claimant declined to be accompanied. The notes were at pages 660 to 668. In this meeting the claimant said Dr Tyler’s behaviour was possibly ‘discriminatory’ as he had shown a duty of care towards Mr Isaacs and Ms Griffiths-Jones in his statement of 18 January 2019 but not towards him (page 662). Professor Barker asked the claimant if in the light of his comments around duty of care, he was alleging a breach of the Equality Act 2010 as this did not feature in points 1 to 19 of his grievance. In response, the claimant said he was ‘teasing out implications’, but his grievance was as stated in points 1 to 19 (pages 560-561 of his 10 January 2019 statement). He said the Equality Act was not central to the investigation. If an independent reviewer was looking at this, the decision maker my decide discrimination had taken place (663).[88]Professor Barker interviewed Dr Noussia, Dr Isaacs, Dr Adams, Dr Pinch, Dr Tyler and Dr Winter.[89]With effect from 13 February 2019, Ms Vanessa Beever (Director of Education and Student Services), School of Law and Social Science, became the claimant’s line manager at the request of the claimant (page 2691).[90]On 7 February 2019, Ms Griffiths Jones wrote to Professor Barker (and Ms Walikira (HR)) expressing concern about her personal safety. She said although she had not yet read the grievance papers (against her) she had read all the emails/statements leading up to this point, which had caused her upset and as she believed the claimant to be irrational and bullying, she was fearful of meeting him. She explained that she had changed her route to get to her lesson yesterday to avoid the chance of meeting him, which was before she knew of the grievance. As she was now to prepare a statement in response to his grievance, which he would see, she had become concerned about what is reaction might be. She did not wish to meet him whilst she was in the building (page 737-738).[91]Ms Griffiths Jones also submitted a written statement in response to the grievance, dated 12 February 2019. In this statement, she said the claimant’s email of 18 December 2018 had shocked and upset her. She said she could not understand the vehemence in tone. She took it very personally. She added that it was unpleasant in tone and when he had responded to her (after she had asked him not to email her again), she felt it was verging on bullying (page 754-756).[92]On 21 February 2019, Professor Barker concluded his investigation and produced reports in relation to the grievances against Ms Griffiths-Jones and Dr Tyler (pages 794- 799 and 800 to 811). The grievance against Ms Griffiths-Jones was not upheld. Moreover, the grievance was considered to be vexatious. The grievance against Dr Tyler 20 of 70 was also not upheld. Moreover, the investigation report concluded that the claimant had undermined Dr Tyler and his behaviour was characterised as unreasonable and disrespectful and a lack of regard of the impact of his actions on the team creating tension and low morale. The report referred to a breakdown in trust, confidence and respect and a disciplinary investigation was recommended because the issues were considered to be serious.[93]The claimant was suspended on full pay on 21 February 2019 by Professor Bailey. The claimant did not attend the suspension meeting. Professor Barker and Ms Walikira (HR) were in attendance (pages 789-792). In the follow up letter (page 812-814), the claimant was advised of:• the allegations of bullying and harassment against him relating to Dr Tyler• the allegations of bullying and harassment against him relating to Ms GriffithsJones• repeated failures to adhere to reasonable management instructions: - by failing to meet a marking deadline - constantly undermining of Dr Tyler by consistently questioning and challenging his authority in relation to work assigned (such as dissertations)• cumulative instances of misconduct: - not notifying/reporting absence to Dr Tyler - non-adherence to divisional practices regarding teaching, especially regarding classes involving study trips - non-adherence to values in line with dignity at work obligations resulting in a breakdown in trust and confidence• falsely declaring the number of hours the claimant had been teaching[94]The respondent also retained the right to add to or change the allegations in the light of the investigation.[95]A follow up meeting regarding the suspension took place on 4 March 2019. The notes were at pages 1121 to 1125. Professor Bailey felt that through a fear of reprisal/retaliation and because the allegations included bullying and harassment (in particular citing Ms Griffiths Jones) and because he felt that the claimant might interfere with the investigation, suspension was justified. The claimant was asked about his wellbeing. The claimant said he was getting support from his GP, family and friends. Professor Bailey said he should contact Ms Beever if he needed further support. 21 of 70[96]Professor Callaghan was appointed to undertake the subsequent disciplinary investigation.[97]He undertook investigation meetings with Professor Barker, Dr Pinch, Dr Isaacs, Mr Kendall, Dr Tyler, Dr Johnson-Schlee, Ms Manalsuran, Dr Elsmore, Ms Griffiths-Jones, the claimant, Ms Beever, Dr Kilburn and Dr Noussia between 22 March 2019 and 3 April 2019.[98]In summary, with regard to the issues in this case and proportionality, the persons interviewed expressed as follows:• Professor Barker said the claimant had some good qualities, but he did not engage fully with the wider activities of the division. He referred to a difficult relationship the claimant had with a previous Head of department (Ruth Richards) in relation to management requests. He referred to incidents in 2014 & 2016. He also referred to the claimant’s negativity in June 2018 in relation to outcomes of a research meeting where he had been passive aggressive. He explained the claimant had applied, unsuccessfully, on 3 occasions to be an associate professor. He felt the claimant had not taken on feedback. Professor Barker also felt the claimant ought to have become involved in the RTPI Project Board. He felt the claimant was always challenging Dr Tyler’s decisions. He accepted Dr Tyler could have handled the workload issue better, but he was also aware of the claimant’s challenging behaviour. He said that when Dr Tyler had approached him, he had sought advice from HR too. He believed the previous redundancy situation may have impacted him. In relation to Dr Tyler’s email to the team (23 November 2018), he explained that he could have asked if Dr Issacs or Dr Kendall knew who else the claimant had approached, but that it was not unreasonable to assume the claimant had sent his email to all members of the division. Professor Barker referred to the claimant’s email to Ms GriffithJones after she had asked to be removed from the email exchanges as ‘dreadful’. He said she had felt bullied and upset and was fearful, avoiding areas in case she would see him. He had also taken out a grievance against her. He considered the tone and volume of the emails to be inappropriate. In relation to the claimant’s well-being, he said he had signposted EAP, but that recently, the claimant had told him to stop offering support as he was getting this from his GP, family and friends. He added that he had been sent a letter from the claimant’s GP confirming he had no psychological issues. He felt the claimant’s treatment of his colleagues, especially Ms Griffiths-Jones, had justified his suspension. In relation to the claimant returning to the division, he felt there were concerns about the claimant’s behaviour and relationships had been significantly undermined (pages 1036-1039).• Dr Pinch said he was a close personal friend of the claimant of about 10 years, they had shared an office for that time and would have lunch 2-3 times a week. He felt the claimant’s reaction to the AWP email was because he felt it was unfair. He said he had agreed to take on 2 dissertations for the claimant. He said 22 of 70 it was not customary for lecturers to swap unless agreed with the Head of Department. As he felt the claimant was distressed, he felt his request for help to be reasonable. He was aware that other colleagues had felt his request should not have been done informally. When some staff had asked to be removed from the email chain, he felt this was reasonable as the claimant was escalating the matter and involving other colleagues unnecessarily. He said he had raised this with the claimant, as a friend. He expressed concerned about his health as he knew he had been at risk of redundancy before. He felt whilst the claimant was known for being robust, his emails seemed out of character in their escalation. Some colleagues expressed concern for the claimant, others were upset and uncomfortable by his emails. When he had spoken to the claimant about his health in a ‘round about’ way, the claimant had said he was happy with his actions and sure of where this was heading. He was still concerned about the claimant’s health and the effect on the division. He said it would be useful to have more team meetings, though Dr Tyler also had an open-door policy to individual meetings (pages 1040-1042).• Dr Issacs said he had refused the claimant’s request for help as he was already stretched and had discussed it with Dr Kendall who had also been approached. The conversation was overheard by Dr Tyler. Dr Issacs said the request was inappropriate. Dr Isaacs said it was not customary in the Tourism team to share workload. He had never, in 13 years, received such a request, so he thought this request was strange. He felt the claimant’s subsequent emails to find out who had mentioned this to Dr Tyler were upsetting and of a bullying and harassing tone to Dr Tyler. He felt the tone of the claimant’s emails were coming from a bad place. Whilst he did not feel bullied himself, he felt the claimant had bullied Dr Tyler. As Head of department, he felt Dr Tyler had done the right thing with his response. He said he had previously witnessed unhelpful behaviour from the claimant, which had made him not want to have any interactions with him. He also mentioned that the claimant might need mental health assistance. He said Dr Tyler was very transparent and his positive changes had been a ‘breath of fresh air’ (pages 1080-1081).• Dr Kendall said that in the Tourism team, colleagues occasionally helped each other but he had never received a request outside of that team. He was asked by the claimant if he had commented on his request (for help) and he said to him that he had told Dr Tyler it was odd. He said other people had felt bullied and harassed by the claimant. He said about Ms Griffiths Jones that he had witnessed her reaction to breaking down in tears when she had seen the clamant in the corridor as he shared an office with her. He said he could understand why some colleagues felt bullied and harassed as the emails were accusatory in tone. For his part, he felt the emails were over the top and not the sort of emails one would expect. He said the claimant had felt victimised and thus felt the need to justify himself. He said he had observed the claimant behaving unacceptably in divisional meetings and felt there was a historical culture with the claimant and other staff members. Dr Kendall was aware that the claimant’s emails had annoyed a lot of people (pages 1082-1084). 23 of 70• Dr Johnson-Schlee said while he was sympathetic to the initial issues, he said he found the Planning team email insulting and undermining, the claimant’s emails were becoming aggressive and were of a bullying, threatening and harassing nature and the undermining of Dr Tyler was unpleasant (the notes of his meeting with Professor Callaghan included his email of 17 December in which he had said he had found the claimant’s Planning email galling and undermining) (pages 1286-1289).• Dr Manalsuren agreed with the workload concerns, the claimant was the one to make negative comments, challenging the Head of Department and had walked out of meetings, it would be a good idea to discuss allocations in team meetings, it was not custom for staff to swap student allocations or to do favours with regard to student allocations (pages 1290-1292).• Dr Elsmore said it was customary for colleagues to share workloads but it was inappropriate for the claimant to ask for help as staff were already overstretched, the request should have been done through Dr Tyler, there was a reason to have a Head of Department, otherwise it was unmanageable. The claimant’s initial concerns were valid but the claimant’s responses were unacceptable. She was concerned for his well-being as his behaviour was not rational, the content and tone of the claimant’s emails were becoming harassing and bulling over time, the claimant’s planning email of 17 December 2018 was insulting and unprofessional which had caused offence and was undermining with undertones of bullying and the claimant’s fishing for information about who had said things (to Dr Tyler) anonymously was inappropriate and harassing (1293-1295).• Ms Griffiths-Jones said she had found the claimant unsupportive in meetings and felt he looked down on people, he had walked out of a meeting, she had asked the claimant not to copy her in as the tone of the claimant’s emails were becoming personal and unpleasant, she did not want to make a judgment on the matters being raised, she had been upset by the claimant’s email to her after she had asked to be taken off the emails, his tone was unhinged and she felt her professional integrity undermined, she felt the email had a bullying tone. After the claimant had taken out a grievance against her, she had started using avoiding behaviour to not bump in to him, she felt intimidated in close proximity as the tone of his emails was unhinged and he had taken out a grievance. She had seen the claimant in the corridor which had left her feeling distressed and had walked in to Dr Tyler’s office in tears, she was very concerned if she had to work with him again (1296-1298).• Ms Beever commented that some colleagues had mentioned to her that the emails were of a harassing and bullying tone, especially where individuals had been asked to be removed, she said the email exchange with the claimant around incomplete marking had been uncomfortable, she was unaware of any negative impact on students who she felt were positive towards the claimant, she felt Dr 24 of 70 Tyler could have handled the matter differently, she was concerned for Dr Tyler’s well-being and she felt some leadership and management training to handle difficult conversations would help (pages 1305-1308).• Dr Milburn commented that the logistics (and practicality) of part time dissertation was a reasonable concern, it was customary to redistribute work on a reciprocal/swap basis (and provided the Head of Department was happy with it), but the claimant was underhand in his allocation of work, the claimant had failed to teach all sessions on a field trip module and time allocated to him on the AWP. He provided adverse feedback on the claimant’s personal tutoring/dissertation supervision, that the claimant did not attend applicant or open days on weekends, he did not undertake straightforward tasks, he was reluctant to update lecture notes, he rarely attended key meetings. The proceedings he had raised against the individual who had asked not to be copied in on emails was unbelievable and had caused disbelief and consternation amongst staff, the claimant had an agenda to undermine Dr Tyler and one email had been shameful, embarrassing and disrespectful which should not have been sent to Dr Tyler and shared with others. The perception of the claimant’s email had moved to disbelief amongst his colleagues and his behaviour considered odd such that colleagues had reached out to him (1309-1313).• Dr Noussia commented that the volume of dissertations allocated to the clamant was high and she didn’t think it was inappropriate for the claimant to have asked colleagues for help and Dr Tyler’s email about it was unnecessary. She added however that the claimant’s emails had become unreasonable and over the top and that he had overdone it. She said she had told the claimant his emails were unnecessary and caused aggravation. In relation to the claimant’s well-being, she had noticed a positive difference in his appearance a few weeks ago. She did not feel bullied or harassed by the claimant but she reported that other colleagues had told her they did. She stated she did not understand why the claimant had been suspended as she did not consider his behaviour threatening and the re-allocation of his work had led to stress in the division. She added that students had been asking about him with whom she believed he had a good relationship (pages 1314-1316).• Dr Tyler commented that he got on well with the claimant and were friends, but he was not easy to get along with, previous managers had had problems, the claimant’s behaviour had changed when he was put at risk of redundancy. He was happy for staff to swap work as long as he (Dr Tyler) was informed, the staff were happy and there was an equitable workload. It had been unreasonable for the claimant to have approached colleagues (2 of whom had mentioned it to him) and the claimant was under hours. He had mentioned swapping, Skype, email and telephone options to the claimant. Although he agreed with the claimant’s general concerns, if the claimant offloaded 63 hours he would be 93 hours under. The claimant had said he would inform students about a lack of resources which he found bullish, threatening an undermining, his behaviour towards and grievance against Ms Griffiths-Jones was harassing and bullying. 25 of 70 Dr Tyler mentioned that the claimant had failed to mark exam papers to an agreed deadline (this was after he had ceased line managing him), he considered there was a GDPR breach relating to passport information of 14 students (though he acknowledged the claimant had not done the compulsory training) and he had refused to report his sickness absence to him. Dr Tyler also provided several examples of behaviour of the claimant he felt was contrary to the respondent’s values: questioning the professionalism of colleagues, questioning the credentials of the planning team, a lack of engagement with RTPI, adverse feedback from a student who said he had been kept waiting for 2 hours for a dissertation supervision which lasted 5 minutes, not turning up to 3 scheduled dissertation supervisions, informing a colleague (Mr Neil Adams) of his grievance and suspension, rarely volunteering to take on work for the good of the division and not competing course monitoring reports on time for several years. Also, Dr Tyler said he didn’t think team meetings were of much benefit because of the atmosphere, the claimant had shouted at him in October 2018 (twice), he felt the claimant had a problem with management and receiving instructions, the claimant had pursued a campaign in the past to seek out who had made comments about his behaviour in meetings, the claimant’s bullying went beyond boundaries when he started involving more than just himself (and Dr Tyler), the claimant’s behaviour was disruptive and the claimant had never wished to engage with OH regarding his well-being although support had been offered and suggested by colleagues and HR (pages 1281-1285).[99]At the end of his meeting with Professor Callaghan, Dr Tyler provided a copy of some notes he had made with regard to the investigation (pages 1028-1030). These notes were 3 pages with sub- categories called ‘disruption, ‘dissertations’, ‘staff meetings’, ‘module & teaching’ and ‘general’. In oral testimony, Dr Tyler said these were an aid memoire for him. Professor Callaghan said he only glanced through the notes but did not otherwise have regard to them when preparing his investigation report. The notes were relevant in these proceedings as on the last page under ‘general’, at point 7, there was a remark as follows: “His playing the race card was cheap and nasty. Sonia Leeyou (Afro-Caribbean) is anxious that you understand this and will not entertain any intimation of racism existing in the division. She is happy to talk to you”.[100]The Tribunal accepted Dr Tyler’s evidence that these notes were created by him, in advance of the meeting, as an aid to himself for the purposes of the investigation meeting. They were handed over in the same form. Professor Callaghan’s evidence was also accepted that he only glanced at these notes and also his further evidence that the notes of his investigation meeting were primarily relied upon (in relation to the production of his investigation report).[101]The Tribunal also found that the reference to the ‘race card’ was consequent on Professor Barker being told (by HR) that the claimant had raised with HR that Ms Griffiths-Jones’ actions in asking the claimant (only) to be removed from the emails was (race) discriminatory (or that is how it had been inferred). Further, that the claimant 26 of 70 believed Dr Tyler not recognising this as discriminatory was discrimination by him too (this was apparent from page 610). The Tribunal found that Professor Barker had informed Dr Tyler of this.[102]The claimant was also interviewed by Professor Callaghan. At this interview the claimant said he didn’t have access to all his emails since being suspended. The claimant was informed all items in his inbox and sent items had been saved on a USB stick. In response to the allegation about harassment and bullying of Dr Tyler in emails between mid-November 2018 to February 2019, including an email of 19 November threatening to inform students of resourcing issues, the claimant said he had not been presented with any substantial evidence. He added he had not been told his actions amounted to bullying or harassment. He said his email exchange was normal interaction between a senior lecturer and a head of department. In relation to Ms Griffiths-Jones, he said he would like to know when, how and what harm he caused her. In relation to missing a marking deadline, he explained he had been sick for 4 days, suffering with stress and that he had agreed with Ms Beever for extra time. In relation to undermining and challenging the authority of Dr Tyler, the claimant said he did not know what the allegation was referring to specifically. In relation to reporting absence, the claimant said he did have to report it to Dr Tyler and that he had informed him he was uncomfortable doing so. In relation to not complying with divisional practices regarding teaching, the claimant said he could not respond as there was a lack of detail. In relation to a breakdown in trust and confidence, the claimant said there was a breakdown in communication caused by Dr Tyler. He said Dr Noussia supported the claimant’s view regarding the allocation of work. The claimant said Dr Tyler should not have written to all colleagues based on anonymous comments. The claimant knew who the anonymous colleagues were before he wrote to Dr Tyler about his. The claimant said he had undertaken some group supervision, as suggested by Dr Tyler, which had been well received. The claimant asserted he had a close relationship with Dr Tyler for about 10 years and he had helped his son. He considered their relationship professional and personal. The claimant said he did not know if his emails had upset anyone as he had not been made aware. He said it was not for Ms Griffiths-Jones to instruct him to remove her from his emails. He said other colleagues had found the claimant’s emails to be reasonable suggesting Ms Griffith-Jones’ ‘weakness’ compared to other colleagues. The claimant said attending weekend/evening appointments was voluntary. In relation to teaching hours, the claimant said there were different requirements and times for different modules. He said no student had ever complained that they had not received value for money. It was put to the claimant that one student had complained about not receiving dissertation supervision since November 2018, but the claimant said he could not address this without knowing further details and the name of the student. In relation to a potential GDPR breach, the claimant had uploaded passport details but had not been aware of a GDPR complaint. He had however not completed GDPR training.[103]All employees interviewed were made aware of the Employee Assistance Programme (‘EAP’).[104]Following these investigation meetings, Professor Callaghan produced his investigation report dated 11 June 2019 (pages 1166 to 1181). In addition, there were 48 separate 27 of 70 appendices essentially contained the evidence/documentation received or relied upon (running to page 1417 in the bundle). In summary, he found that the claimant had a case to answer in relation to 7 out of the 10 allegations put to him (the tenth one added after suspension was in relation to other matters including the GDPR breach). The three allegations in respect of which he found the claimant did not have a case to answer was about failing to meet a marking deadline, notification of sickness absence and falsely declaring teaching hours.[105]The report referred to relevant policies relied upon including, amongst others, the Equality, Diversity and inclusion policy and the Staff Inclusion Policy.[106]The issue of race discrimination or the claimant’s race was not mentioned by the claimant at any point during the investigation meeting with him, or whistleblowing, directly or indirectly. This was not referred to by any other interviewee either. There was no expression of remorse or an apology at his investigation meeting either.[107]The investigation report was presented to Professor Bailey on 13 June 2019. Professor Bailey having read the report and appendices was satisfied that Professor Callaghan had come to a reasonable conclusion and thus asked HR to convene a disciplinary hearing. This was subsequently done by a letter dated 14 June 2019 (pages 1453-1454). The investigation report with appendices and the disciplinary procedure was attached.[108]In the disciplinary invitation, the claimant was informed of the 7 charges against him, he was provided with the report and the appendices, he was forewarned that the allegations might amount to gross misconduct and that the outcome could lead to his dismissal and he was informed of his right to be accompanied. The hearing was rescheduled to take place on 15 July 2019.[109]Professor Wareing had been appointed to chair the disciplinary, but she was not available on the re-scheduled date. Accordingly, Mr Stevenson was appointed as Chair. Ms Coupar was also on the panel with Ms Langford (HR) supporting.[110]In advance of the hearing, the claimant also submitted a document entitled ‘case for the defence’ (addendum 31) at pages 1745 to 1848.[111]The claimant had also submitted a grievance in relation to the notes of Dr Tyler handed to Professor Callaghan at the end of the investigation meeting. His grievance statement submitted a response to all aspects of the content of Dr Tyler’s notes (pages 1519-1524).[112]There followed an exchange of emails between the claimant and Ms Langford about the forum in which to hear this grievance. The respondent maintained, though the claimant disagreed, that as the notes formed part of the investigation report of Professor Callaghan it was reasonable for this issue to be raised and addressed as part of the disciplinary process. This was said in emails dated 3 July, 5 July and 11 July 2019 (pages 1550, 1548 and 1542). 28 of 70[113]In addition, on 10 July 2019, Mr Stevenson had overseen a grievance the claimant raised against Professor Bailey in relation to the claimant’s suspension. This had been heard but not determined when the claimant’s disciplinary hearing took place.[114]The minutes of the disciplinary meeting were on pages 1914 to 1929. The claimant was accompanied by Dr Jarvis. In addition to Ms Langford, a separate note-taker from HR was present. Professor Callaghan was in attendance to present and summarise his report.[115]In summary (having regard to proportionality and the issues in the case), at the outset of the meeting, the claimant was asked if he was fit to proceed as he had provided a letter from his GP. The claimant said his health had been affected by stress, but he was fine to carry on. Mr Stevenson said he would take into account statements from students in support of the claimant and statements from Dr Adams and Mr Jarvis (page 1510). Professor Callaghan said he had considered data containing comments from students but had adjudged this was not material. In addition, a statement from Dr Noussia which did not address the specific allegations. Professor Callaghan set out the nature of the allegations he had investigated, his findings on them and the timeline.[116]The claimant said he was innocent of all charges. He said the respondent had a duty to act fairly, consistently and should apply policies reasonably and transparently. He said he had never overstepped boundaries. He said he had not acted alone and felt it was his duty to raise concerns. He said the period of time had been stressful in relation to the unfounded allegations. He said the allegations against him were defective and should be declared null and void. He said only 2 of the allegations related to a stage 4 gross Misconduct hearing. He referred to mediation with his colleagues and sought positive closure.[117]The panel questioned the claimant. Ms Coupar asked what issues had been ignored and how he been treated less favourably. He said whilst he had been directed to EAP support, others had had one to ones. In relation to the bullying allegations against Dr Tyler and Ms Griffiths-Jones, the claimant was asked by Mr Stevenson if he denied the facts or felt they were unfair. In response, he said he did not deny the facts but did deny the interpretation. He said there wasn’t anything wrong with the emails he had written. Ms Coupar asked the claimant why he felt Ms Griffiths-Jones had asked not to be included into emails. He said it was not for him to say, but for Professor Callaghan to ask. Professor Callaghan responded by saying he did ask and it was instrumental in his Judgment whether she felt bullied or harassed. He said it was only later that Ms Griffiths-Jones had felt the claimant’s actions were verging on the offensive. Professor Callaghan said that she had mentioned harassment. The claimant said the workload issue was about the allocation of dissertation students.[118]Mr Jarvis commented that the matter could have been resolved with a round table meeting, the dissertation supervisions should have been sorted rather than huge email trails of various grievances. He was amazed at the escalation of events. The claimant commented that the investigation took 14 weeks. Professor Callaghan said the claimant was on leave for 5 of those weeks. The claimant raised that Dr Tyler and Professor Barker had been happy to fund his accreditation in January 2019. Professor Callaghan 29 of 70 did not consider this material to the allegations. The claimant challenged Professor Callaghan about what had Ms Griffiths-Jones, Professor Barker and Dr Tyler done to follow the Dignity at Work policy to find resolutions. He also said Ms Griffith-Jones had not specified the time, date, place or distance when she had been fearful of him and to avoid meeting him. Professor Callaghan was asked why he had not interviewed Sonia Leeyou, he replied because she had not complained about the claimant’s email. The claimant said Ms Griffiths-Jones had victimised the claimant because he had brought a grievance against her (because she had referred to the grievance in her interview). Professor Callaghan said it was his judgment that Ms Griffiths-Jones felt harassed and bullied. The claimant and Professor Callaghan disagreed on whether the names of the students (who the claimant said he would alert about the resourcing issues) needed to be identified. In relation to the GDPR breach, Professor Callaghan confirmed it was on the basis of one student complaint and it was considered to be a breach. In relation to the ‘threat’ to inform students about resourcing issues, the claimant said students were already aware and there was no intention to inflict pain. The claimant said that the investigation report stated this threat was not admitted by him, but the summary had indicated an admission by reference to the 19 November 2018 email. Professor Callaghan referred to 2 emails in December as evidence of where the claimant had challenged Dr Tyler’s authority. The claimant asked by times and dates when he had breached the respondent’s values in response to which Professor Callaghan said the examples were in his report. Professor Callaghan if he considered he had interviewed many colleagues in response to which he said he considered 10 to be many. Professor Callaghan accepted that Dr Tyler could have taken the discussion on dissertations offline when it was veering towards vexatious. Professor Callaghan accepted that the claimant had provided evidence of one student who had been happy with the Barcelona Field trip preparations, but he said it did not mean that the two others who had said otherwise were.[119]In his summing up, the claimant said he found the allegation of alleged harassment of Dr Tyler, preposterous. He said the allegations against him had been raised between 1 and 3 months after each incident and should have been dealt with informally at the time. He said he had suffered with severe migraines, continuous headaches, back pain, insomnia and mental exhaustion. He said he had behaved responsibly and followed policy for seven months.[120]The issue of race discrimination or the claimant’s race was not mentioned by the claimant at any point during the disciplinary hearing, or whistleblowing, directly or indirectly. There was no expression of remorse or an apology at the disciplinary hearing either.[121]After the hearing, the claimant submitted further documents (addendums 32, 34 and 35 (pages 1930 to 1951), challenging some of Professor Callaghan’s comments at the disciplinary hearing and providing further narrative.[122]After the disciplinary hearing, a deliberations meeting took place on 19 July 2019 involving Ms Langford and Ms Coupar. The outcome from this meeting was a matter of dispute between the parties. 30 of 70[123]Mr Stevenson’s evidence was that there was no final outcome but that both he and Ms Coupar were contemplating a sanction of a final written warning or dismissal having regard to the series of misconduct. He added, at this stage, he thought the conduct was so unreasonable that the claimant could not continue to work for the respondent. He said he had discussed and agreed with Ms Langford that it would be useful to discuss with senior personnel the impact of the claimant returning to his role after all that had happened. He did then discuss that point with Professor Barker and Professor Bailey who both had concerns about the viability of a return to work. Professor Callaghan did not add anything further (paragraphs 23-28 of his witness statement).[124]The evidence of Ms Coupar, who was called by the claimant, was that following the deliberations meeting, whilst dismissal was discussed and contemplated, it was decided that a final written warning would be issued (paragraph 8 of her witness statement).[125]Ms Langford’s evidence was that Mr Stevenson and Ms Coupar considered all possible sanctions, including dismissal for a substantial reason, dismissal for misconduct and a final written warning. They were concerned by the extent of the breakdown of the relationships. She believed they wanted to see if those relationships were repairable alongside a final written warning. Her evidence was that the deliberations meeting closed on the basis that the panel would explore whether a return to work would be possible and there was no conclusion on dismissal or a final written warning.[126]The Tribunal found, on a balance of probabilities, that no conclusion had been reached following the deliberations meeting on 19 July 2019. Mr Stevenson’s evidence was corroborated by that of Ms Langford. Moreover, the contemporaneous email sent by Ms Langford to both Mr Stevenson and Ms Coupar on 22 July stated (page 1956): “Can you let me know the final position following our discussions of last week? I would like to draft the outcome letter tomorrow for you if possible. I have my notes from the meeting on Friday, so I can proceed on that basis unless you confirm otherwise”[127]It was thus clear to the Tribunal from this letter that a final position was awaited. This email was sent on the next working day after the deliberations meeting. Mr Stevenson’s diary entry showed meetings arranged with Professor Callaghan before that meeting and with Professor Barker after that meeting.[128]The Tribunal found that none of these discussions formed a part of the deliberations meeting.[129]It was also the case that the draft outcome letter on 25 July 2019, referred to dismissal (with notice) as the outcome (2738 – 2745).[130]When the dismissal outcome was conveyed to the claimant and coped to Ms Coupar on 5 August 2019, she did respond as follows: 31 of 70 “Did further discussions go on in my absence? My recollection is that we felt we couldn’t dismiss and we would have to set very clear behavioural guidelines. This now says I have been part of a decision to terminate his employment”[131]Following a further exchange however, Ms Coupar added: “I am happy to have a telephone call. I’m assuming there was a final (Tribunal emphasis added) decision that relationships had broken down so much, there was no possibility of rescuing them?”[132]Taken together, the Tribunal found that these emails re-inforced its view that a final decision had not been reached earlier (pages 1965-1966).[133]The Tribunal accepted that Ms Coupar had not been a part of those subsequent considerations. This was owing to an accident she had in the workplace at this time as a result of which she was signed off. Mr Stevenson said he knew she was not attending University and did not know about her accident (until he was informed by her) but had assumed it was sickness absence. As a result, the subsequent final outcome was reached by him as the Chair of the disciplinary hearing.[134]The outcome letter was at page 1968 to 1974. The outcome was as follows:• Harassment & bullying of Dr Tyler - this was partially upheld. It was found that the claimant had been insubordinate and refused to comply with a reasonable management request. There was recognition that Dr Tyler could have handled the situation better and spoken to the claimant, the claimant’s email responses were not professional and not in keeping with the respondent’s values. Outside of the email communication, there was little evidence to support on-going bullying and harassment.• Threat to notify students of resourcing issues – this was upheld as an act of insubordination and a potential adverse effect on student experience.• Harassment and bullying of Ms Griffiths-Jones – this was upheld. The claimant’s responses to Ms Griffiths-Jones were not professional, acceptable or reasonable. Further, that it was reasonable to determine the claimant’s grievance against her as vexatious in nature. The outcome also considered this to be an attempt to humiliate Ms Griffiths-Jones in front of copied in colleagues. The emails together with the vexatious grievance could be perceived as bullying.• Undermining/Challenging Dr Tyler’s authority – this was upheld. The outcome was that the claimant’s treatment of Dr Tyler was excessive and undermining in relation to dissertation supervision, where clear instruction had been given as to how to manage this within the claimant’s workload. 32 of 70• Failing to uphold values resulting in a breakdown in trust and confidence – this was upheld. The outcome was that given the consideration of the evidence and how matters had progressed since December 2018, the claimant had conducted himself in a manner that was likely to have seriously damaged trust and confidence.[135]The charges in relation to failing to comply with divisional practices and the GDPR breach were not upheld, though requiring data protection training for the latter.[136]In addition, the claimant’s conduct had caused a fundamental breakdown in relationships (including Dr Tyler, Professor Barker and Ms Griffiths-Jones). The decision was that the this was irretrievable, and the claimant was responsible for causing it. It was considered that the claimant had not acknowledged his actions or shown remorse, especially in relation to Ms Griffiths-Jones. In determining that the claimant was not guilty of gross misconduct, the claimant’s clean record was taken into account. It was also noted the claimant had been offered well-being support through PAM and the claimant had, temporarily, been assigned a different line manager. The claimant was dismissed on 3 months’ notice.[137]The claimant was given a right of appeal which he exercised by his email dated 15 August 2019 with addendum 37 attached (pages 1991 to 2005).[138]At this time, the second grievance against Dr Tyler was outstanding (in relation to Dr Tyler’s notes). In addition, the claimant raised a further grievance against Professor Barker on 14 August 2019. This grievance had an addendum 35 which began by cross referencing the first grievance against Professor Barker and his decision to commence an investigation and added grievances about the circumstances surrounding the decision of Dr Tyler to resign as Head of Department and the consequences of that, including an equality impact survey and that Professor Barker had discussed confidential information submitted by Dr Tyler to Professor Callaghan (pages 1984-1985).[139]The initial view of Ms Langford was for these grievances to be put on hold pending the appeal, but Professor Pheonix, who was to chair the appeal determined they should be considered as part of the appeal process. He set out his view in his letter of 3 September 2019 (page 2103) that he considered the concerns related to the evidence relied upon to generate the investigation report and he concluded that these should be raised as part of the appeal process. He said the claimant could raise any issues which he felt had led to an unreasonable outcome under the disciplinary procedure and any procedural issues. In paragraph 28 of his witness statement, he confirmed the other appeal panel members felt the matters were inextricably linked.[140]The appeal hearing took place on 5 September 2019. The minutes were at pages 2109 to 2121. The claimant was accompanied by Dr Winter. The panel members were Vinnay Tanna and Mee Ling Ng (Board of Governors). HR were in attendance with a separate HR note taker. Mr Stevenson was in attendance too to present the dismissal case. 33 of 70[141]The claimant had prepared and read from a statement (addendum 40) on pages 2128 to 2139.[142]In summary and having regard to the issues in the case and proportionality, at the hearing, the claimant questioned the panel members’ training and ability to hear the case. Professor Pheonix said they had substantial experience. He also explained the appeal was not a rehearing. The claimant said he would raise his grievance concerns (regarding Dr Tyler & Professor Barker) in the appeal hearing under protest.[143]The claimant said some of the notes of Professor Callaghan’s investigation meetings were missing but which he had received after chasing them. He said he had received the disciplinary hearing notes late too. The claimant said evidence from students in support should be taken into account. The claimant said his health had been ignored and that the cost to the respondent to date was about £470,000. The claimant read from addendum 37 and said the evidence, investigation and disciplinary hearing were flawed. He referred to Dr Tyler and Ms Griffiths-Jones not seeking to resolve matters informally. He said he had been denied a proper duty of care, there were outstanding grievances, and he was prepared to engage in mediation. He said this should involve all people Professor Callaghan had interviewed and because HR had made mistakes too, outside mediators should be involved. In relation to his health, the claimant said he started to get migraines from mid-December 2018 and was taking painkillers. He said Dr Tyler had not conducted a return to work interview and found out about the change in line management to Ms Beever in a return to work interview with HR. In relation to his suspension, he said there were thousands of emails he had not been able to access, but he could not say whether or not this would have made a difference. The claimant commented that he found Dr Tyler’s notes intimidating and the reference to the ‘race card’ offensive. He referred to Professor Barker excluding the claimant from discussions after Dr Tyler had resigned as unfair and discriminatory. He said would send in further addendums 41 and 42 in relation to these grievances.[144]Dr Winter said that when he read Dr Tyler’s notes he was shocked and speechless. He said there were no toxic meetings and although bullying should be seen from the perception of person bullied, an independent assessment should be made if the complaint was reasonable. He said he hadn’t interpreted the emails the claimant sent as bullying (though he said they could be seen as nuisance). He said there had been a badly handled redundancy issue and there was a resourcing issue. He considered the matter to be an over-reaction and the claimant had been treated differently to a gross misconduct case involving a former colleague, thus the claimant had been victimised.[145]The claimant questioned Mr Stevenson that a stage 4 process was only for gross misconduct. Professor Pheonix commented that it was believed that gross misconduct might have been the outcome. Mr Stevenson said the allegations were taken in the round and ultimately, it was decided that it was not gross misconduct. In relation to alternatives, Mr Stevenson felt the situation was irretrievable. 34 of 70[146]Mr Tanna asked if, looking back, the claimant could have done things differently. In response the claimant referred to a negative impact on his workload and health if he had done the 13 dissertations.[147]Mr Stevenson said his judgment was properly considered and he stood by it. The claimant stated Professor Callaghan’s investigation had not been forensic, he had chosen an arbitrary sample of people to interview but he was saying there was bias or prejudgment. He said there were many allegations against him from employees in the investigation report which were not followed up or could have been dealt with informally. He said management need to ask if bullying and harassment is credible or if a person is being over-sensitive. Professor Pheonix said he had already said the perception of the individual would be considered.[148]There was a generic reference to the Equality Act 2010 at the appeal hearing and a specific reference to the race card comment in Dr Tyler’s notes. There was no other reference to race discrimination and the claimant’s race was not mentioned by the claimant at any point during the appeal hearing, or whistleblowing, directly or indirectly. There was no expression of remorse or an apology at the appeal hearing either.[149]After the appeal hearing the claimant submitted his two further addendums relating to Dr Tyler and Professor Barker. He also submitted addendum 43 which was his summary of the appeal hearing.[150]Professor Pheonix also asked Professor Barker to submit a summary of his actions before the disciplinary process was initiated. This was at page 2691.[151]The claimant’s grievance against Professor Bailey (relating to the suspension) was rejected on 4 September 2019. The claimant submitted an appeal against this on 10 September 2019. Professor Phoenix decided to take the same approach he had with the second grievances the claimant had raised against Dr Tyler and Professor Barker and decided to determine this grievance appeal as part of the disciplinary appeal process. He provided the material to the panel for consideration.[152]The claimant’s appeal was rejected. The outcome letter was dated 19 September 2019 (pages 2231 to 2238). The outcome was follows:• Procedural issues – It was noted that the claimant had raised 13 grievances to date, all of which had concluded except 4 (1 of which was an appeal). It was confirmed that given the subject matter, it was appropriate to determine the grievances as part of the disciplinary appeal. In relation to the stage 4 process, as there was a potential for the allegations to amount to gross misconduct, it was an appropriate use of policy. The appeal panel also determined that the suspension had been reasonable and no disadvantage had been suffered by the claimant in preparing for the disciplinary hearing. There was nothing to address in relation to the (new) stage 2 grievance in relation to Professor Barker, which could not have been appropriately addressed through the stage 3 appeal. 35 of 70• Evidence/disciplinary investigation – The appeal outcome, which included reference to discrimination, was that Professor Callaghan’s investigation was thorough, fair and reasonable. A number of interviews were conducted and it was for Professor Callaghan to determine if there was a case to answer and to present the case at the disciplinary hearing too.• Harassment & Bullying of Dr Tyler –appeal rejected. The appeal outcome agreed that the claimant’s emails to Dr Tyler amounted to insubordination and a refusal to comply with line managements requests which were a form of bullying. The appeal outcome noted that this was limited to the emails sent to Dr Tyler but that did not prevent this from amounting to a form of bullying or harassment.• Threat to notify students of resourcing issues – appeal rejected. The appeal outcome was that the disciplinary panel’s decision was appropriate as the email relied upon was sufficiently clear and no additional information was needed.• Harassment and Bullying of Ms Griffiths-Jones – appeal rejected. The appeal outcome was that the dismissal letter made it clear that in coming to the conclusion that the claimant had bullied and harassed Ms Griffiths-Jones, it took in to account the claimant’s comments in the email chain and the subsequent raising of a grievance, which it regarded as vexatious. Further that it was open for a judgment to be made that it was vexatious without the existence of a definition within the respondent’s policy/policies. No evidence was disregarded and the claimant’s assertions of modifying his behaviour and apologies were considered and the conclusions reached were entitled to be reached at the disciplinary stage.• Undermining/Challenging Dr Tyler’s authority – no separate finding reached• Failing to uphold values resulting in a breakdown in trust and confidence – appeal rejected. The appeal outcome was that this allegation had been considered and concluded on reasonably, specifically that there was clear evidence of a breakdown of trust with Dr Tyler, Ms Griffiths-Jones and Professor Barker, attributable to the claimant’s behaviour.[153]There was no criticism of the decision to lay charges in respect of the two allegations which were not upheld at the disciplinary stage.[154]In relation to reasonableness of the decision, having regard to all of the individuals involved in the disciplinary and grievance processes, the appeal considered the likelihood of all of them not objectively reviewing evidence and the potential for bias or discrimination and considered it highly unlikely that the evidence considered at all of these processes could have led to unfair bias. Further, the claimant was asked to reflect on and identify whether he would have done things differently and the appeal concluded that the claimant did not outline any actions to modify his behaviour and they felt there 36 of 70 was no evidence that the claimant recognised his behaviour was inappropriate and could have impacted on others. The appeal reflected on the claimant’s communication tone, the large volume of emails and the number of grievances raised and concluded the claimant had failed to reflect on his behaviour or acknowledge any need to change. This behaviour had been consistently demonstrated and it was very clear it had resulted in an irrevocable breakdown in trust and confidence.[155]The appeal considered but rejected that the evidence submitted altered its view of the decision to dismiss. In particular, that Dr Tyler had suggested ways of managing the dissertation supervisions, Professor Barker had attempted to hear both sides in his meeting on 7 January 2019, support had been offered via PAM and OH and there had been agreement to change the claimant’s line manager to Ms Beever in February 2019.[156]In relation to health and well-being, the medical evidence submitted was acknowledged. It was stated that the claimant was afforded breaks during the appeal hearing and that reasonable steps had been taken during the process in relation to the claimant’s health, including offers of EAP support (via PAM) and OH.[157]The letter concluded that the dismissal stood, based on an irretrievable breakdown of trust brought about by a range of actions and behaviour deemed as serious misconduct.[158]After the appeal hearing, the claimant had on 11 September 2019 raised a grievance in relation to the decision for the outstanding second grievances against Professor Barker and Dr Tyler to be considered as part of the dismissal appeal hearing. This was called addendum 45 and was at pages 2203 – 2227.[159]The claimant also raised a further grievance on 23 September 2019 about the decision to consider the grievance appeal in relation to Professor Bailey (related to the suspension) at the dismissal appeal hearing. This was called addendum 45A and was at pages 2245 - 2257.[160]The claimant also said in an email dated 23 September 2019 that he considered his 3 months’ notice expired 3 months from his appeal outcome i.e., from 19 September 2019 (page 2248).[161]The claimant also raised further grievances on 24 September and 25 September 2019 against both of the governors (who were part of the appeal panel). These were called addendum 46 and addendum 47 (pages 2249-2257.[162]On 25 September 2019, Ms Marcelle Moncrieffe-Johnson, Executive Director of People and Organisational Development, wrote to the claimant to explain that the respondent would not be dealing with any further investigation of the issues raised and the grievances as these all related to the disciplinary process which had been finally determined following the outcome of the appeal. It was further confirmed that the claimant’s 3 months’ notice ran from his dismissal, not his appeal outcome. In addition, that the claimant’s notice period was being brought forward to 30 September 2019 and the claimant’s balance of notice would be paid in lieu. The letter also addressed the 37 of 70 claimant’s accrued holiday pay, pension contributions and the claimant’s personal belongings (pages 2258-2259).[163]On 5 October 2019, the claimant escalated a complaint about unfair treatment via the respondent’s ‘Speak Up’ Policy (page 2302). The Speak Up policy was at pages 246- 251).[164]The claimant also submitted addendum 53 called ‘Statement regarding serious malpractice’ on 14 October 2019 (pages 2305-2315).[165]This was responded to by the Chair of the Audit Committee on or around 17 October 2019 (page 2321). It was noted that the speak up policy should not be used for matters which should be raised under grievance, complaint or disciplinary procedures or to reopen matters which have already been considered under them (page 247, section 1, introduction). It was noted that the appeal against dismissal had been determined which was considered final. Accordingly, the complaint would not be addressed under the Speak Up policy. (This was subsequently resurrected by the claimant and the same position was confirmed by Mr Jerry Cope, Chair of the Board of Governors, on 27 November 2019 (pages 2818-2819)).[166]By their letters dated 5 November (pages 2348-2349) and 25 November 2019 (page 2408), Ms Langford and Ms Moncrieffe-Johnson informed the claimant that the respondent considered matters related to the claimant’s dismissal and associated attempts to pursue further grievances closed. This was in response to further emails and addendums received from the claimant.[167]The Tribunal records that the following additional grievances were raised by the claimant:• Mr Westover regarding bullying – not upheld on 19 February 2019, appeal rejected• Dr Isaacs regarding supervision issue – withdrawn by the claimant• Professor Barker regarding Professor Barker’s investigation – not upheld on 23 May 2019, appeal rejected• Professor Callaghan regarding the investigation meeting– not pursued beyond the informal stage• Professor Pheonix regarding the dismissal appeal outcome – not dealt with as the respondent says there was no further right of appeal• Mee Ling Ng and Vinnay Tanna regarding the dismissal appeal outcome – not dealt with as the respondent says there was no further right of appeal and because the respondent says a grievance cannot be pursued against a governor 38 of 70• Ms Moncrieff-Johnson regarding issues linked to the disciplinary process – not dealt with as the respondent says Ms Moncrieffe-Johnson was longer an employee when the grievance was raised and because the issues were linked to the concluded disciplinary process• Professor Barker regarding the collection of personal belongings – not dealt with as it was raised after dismissal[168]The extent of relevance, if any, to the issues the Tribunal needed to determine is set out in the conclusions below. Findings on the claimant’s credibility/reliability[169]The Tribunal considered it appropriate and necessary to set out some specific findings with regard to the claimant’s credibility/reliability in this case.[170]The claimant referred to the grievance appeal (against the rejection of his first grievance against Dr Tyler) as overturning the finding that his grievance against Ms Griffiths-Jones was vexatious. When the letter of 5 April 2019 was seen by the Tribunal, it did not support this assertion at all. The Tribunal found this was plain and obvious, in fact it was expressly not adjudicated on as part of the grievance appeal.[171]During the claimant’ cross examination, the claimant objected to a reference/attack by the respondent’s counsel on his upbringing by his mother. This was in the context of counsel putting to the claimant that, as a grown man, he did not have to be told by others that his actions or behaviour were bullying, because this was something that he would have learnt as a child in school. There was no express or implied reference to the claimant’s mother. The Tribunal interjected when the claimant took issue with the point to explain the foregoing to the claimant. The Tribunal found that this (his upbringing by his mother) was something the claimant knew, or ought to have known, was not being put to him.[172]Also, during cross examination, the respondent’s counsel put to the claimant that he was sensationalising his discrimination claim. The claimant rejected that proposition. To rebut the claimant’s response, counsel asked if she could refer to the claimant’s tweets which he had been doing during the course of the proceedings. She read one such tweet aloud from the laptop of her instructing Solicitor as follows: “I will give evidence that my line manager accused me of being a witch-hunter, I am not, neither am I a witch doctor” (12 February 2022)[173]This tweet was permitted to be read out aloud subject to the claimant’s right to object that it was not tweeted by him or was inaccurate/mis-quoted. The claimant did not deny his tweet. 39 of 70[174]In so far this was related to oral evidence given by Dr Tyler, the Tribunal did not, unanimously, have any note of such evidence given by Dr Tyler and/or its connotations with witch- doctory. This was a description and annotation of the claimant’s own making.[175]The claimant was also persistent in his refusal to accept that the concept of nonprotected characteristic harassment (rather than bullying) was something that the respondent’s policies covered/or something that he could be charged with. In response to the Tribunal asking him if he felt non-protected characteristic harassment was unactionable he said yes. He understood that the bullying and harassment case against him regarding Dr Tyler and Ms Griffiths-Jones was not about any of their protected characteristics. The Tribunal referred the claimant repeatedly to the respondent’s staff inclusion policy (page 219-233) and sections 2.6, 2.7 and 3.1 and he maintained that the respondent could not bring a charge of harassment against him unless a protected characteristic was involved. However, in his closing written submission, he accepted in paragraph 16, that non-protected characteristic harassment was covered, instead saying that referring to the definition in different ways was unhelpful. The Tribunal found that on any reasonable reading/interpretation of the respondent’s policies, with well-known principles of bullying and harassment in the workplace, the claimant’s evidence in this regard had been remarkable and insincere.[176]The claimant also placed reliance on a contract he said existed between the respondent and its students, specifically in support of his belief that providing dissertation supervision to part time students on Thursdays could only be done face to face. There was no contract in either bundle. During the course of the Hearing, the respondent disclosed an ‘Enrolment Terms’ document and subsequently a document called ‘MA Planning Policy and Practice’ document (written by the claimant). There was no reference to the requirement for face-to-face dissertation supervision in these documents. It was not until day 10 of the Hearing, when the claimant was being cross examined, that the claimant claimed that there was another separate document, not before the Tribunal, which obligated the respondent to provide face to face supervision. He said, the respondent was ‘bound’ to do so. In response, the Tribunal remarked: “How can we determine whether or not you have made a protected disclosure without the document you place reliance on? If you knew it to be relevant you would have raised it before, it is now day 10 of this Hearing?”[177]The claimant appeared to be referring to some other module guide; the respondent said nothing else existed, the Tribunal could not be sure if the claimant was referring to some other document which he had written. He added that he didn’t get disclosure and that there must be some legal redress if students didn’t get face to face dissertation supervision.[178]The Tribunal found that the claimant’s reliance on the documents in support of his belief had constantly wavered and found there was no other relevant document. 40 of 70[179]The claimant said that Ms Griffiths-Jones’ reference to the claimant’s grievance against her (during the investigation meeting with Professor Callaghan) was chronological only, not causative of contributing to why she said she felt intimidated. The relevant paragraph was at page 1298. Ms Griffiths-Jones said after the clamant had taken out a grievance against her, she began to use avoiding behaviour. Further, that she felt intimidated because of the tone of his emails and because he had taken out a grievance against her. The Tribunal found it was plain and obvious, on any reasonable reading, that the grievance did, causatively, contribute to how she felt and the measures she was taking. The claimant’s view to the contrary was, frankly, absurd.[180]In the light of the incident involving the Legal officer and Clerk (see above), the Tribunal did consider it necessary to reach a finding on what it felt happened as it was a matter which did go to the claimant’s credibility. The Tribunal noted that two Court Officers had, independently, reported the incident in broadly similar terms to the Judge. In addition, the respondent’s counsel and her client had corroborated the same version of events. The respondent’s counsel has an overriding professional duty to be truthful to the Court. The Tribunal found, unanimously, that it was more likely than not that the claimant had asked the Legal Officer what she thought of his case, which, the Tribunal found was seeking an opinion on the merits not the procedure. She had already responded on her learning regarding the process/procedure but was then pressed to comment further on what she thought of his case. The Tribunal found this wholly inappropriate and in addition, the claimant’s denial of doing so, dishonest. Any comment which might have been forthcoming risked being put into the twitter public domain as the claimant was tweeting about his case.[181]The Tribunal took in to account the above findings on credibility in reaching its conclusions below. Applicable law Unfair Dismissal – S.98 (2) & (4) Employment Rights Act 1996 (‘ERA’)[182]The respondent relied on S.98 (2) (b) (conduct) in relation to its potentially fair reason for the claimant’s dismissal. The burden to show the reason rested with the respondent.[183]Subject to showing a reason, the Tribunal needed to consider whether the dismissal was fair or unfair, having regard to the reason shown by the respondent, whether the respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissal which question shall be determined in accordance with equity and the substantial merits of the case. The test is settled from the well-known BHS v Burchell 1978 IRLR 379 case:• the respondent genuinely believed in the claimant’s misconduct• that belief was based on reasonable grounds• there was as much investigation as was reasonable. 41 of 70 An employer who satisfies the Burchell should not be examined further.[184]The range of reasonable responses applies both to the substantive decision to dismiss and to the procedure (Sainsbury’s Supermarkets Ltd v Hitt 2003 IRLR 23). Discrimination - S.13 (Direct), S.26 (Harassment), S.27 (Race) Equality Act 2010 (‘EqA’)[185]The direct race and victimisations provision of the EqA say: S.13 (1): Direct:(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. S.26 Harassment: (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.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1) (b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. S.27: Victimisation: (1) A person (A) victimises another person (B) if A subjects B to a detriment because: 42 of 70 (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.[186]The burden of proof is set out in S.136 (2) EqA. This provides: “If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.”[187]S.136 (3) provides that S. 136 (2) does not apply if A shows that A did not contravene the provision.[188]The guidance in Igen Ltd v Wong 2005 ICR 931 and Barton v Investec Henderson Crosthwaite Securities Ltd 2003 ICR 1205 EAT provides guidance on a 2-stage approach for the Tribunal to adopt. The Tribunal does not consider it necessary to set out the full guidance. However, in summary, at stage one the claimant is required to prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, (now any other explanation) that the respondent has committed an act of discrimination. The focus at stage one is on the facts, the employer’s explanation is a matter for stage two which explanation must be in no sense whatsoever on the protected ground and the evidence for which is required to be cogent.[189]The Tribunal notes the guidance is no more than that and not a substitute for the Statutory language in S.136.[190]In Laing v Manchester City Council 2006 ICR 1519 EAT, the EAT stated that its interpretation of Igen was that a Tribunal can at stage one have regard to facts adduced by the employer.[191]In Madarassy v Nomura International PLC 2007 ICR 867 CA, the Court of Appeal stated: 43 of 70 “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, on a balance of probabilities, the respondent had committed an unlawful act of discrimination”[192]In Victimisation claims, the protected act must have a ‘significant influence’ on the decision to dismiss or the alleged detriment Nagarajan v London Regional Transport 1999 ICR 877 HL. Protected Disclosure claims[193]Under S.103A ERA, an employee shall be regarded as unfairly dismissed if the reason, or if more than one, the principal reason, for the dismissal is that the employee made a protected disclosure.[194]By virtue of S.47B ERA, a worker has the right not be subjected to a detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure. In NHS Manchester v Fecitt and others 2012 IRLR 64, it was stated that the test is whether the protected disclosure “materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistle-blower”.[195]A protected disclosure qualifying for protection is one made in accordance with S.43A (which refers to S.43 C to S.43H about the conveyance of a qualifying disclosure) and S.43B (which defines a qualifying disclosure). S.43B ERA: (1) Disclosures qualifying for protection: In this Part a “qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following: (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or 44 of 70 (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[196]S.43B ERA requires consideration of whether the claimant had a reasonable belief that the information disclosed is made in the public interest and tends to show one of the six matters listed above (subjective test) and if so, was that belief a reasonable one (objective). Chestertons Global Ltd v Nurmohammed 2018 ICR 731 CA and Babula v Waltham Forest College 2007 EWCA Civ 174.[197]Pursuant to S.48 (2) ERA, the burden of proof in relation to the reason for the alleged detrimental treatment rests on the respondent. However, this is once a protected disclosure has been established and that the respondent has subjected the claimant to a detriment.[198]In relation to S.103A ERA, the burden of proof in relation to dismissal was addressed in Kuzel v Roche Products Ltd [2008] EWCA Civ 380, CA: “57…when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.58. Having heard the evidence of both sides relating to the reason for dismissal it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence.59. The ET must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so.60. As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.” 45 of 70 Conclusions and analysis Victimisation S.27 Equality Act 2010 (‘EqA’) 28 May 2019 (‘Addendum 28’ pages 1439-1448)[199]The first protected relied upon by the claimant was on 28 May 2019, in relation to his first grievance against Professor Barker. This was in the context of the claimant not meeting a marking deadline in relation to some exams which Professor Barker had criticised him for and said he was holding students to ransom. The claimant had said, in an email appended (page 1445): “Your singling me out for this unfair and frankly bizarre criticism may well be discriminatory under the Equality Act 2010.”[200]The Tribunal had to consider if this statement was a protected act. S.27 (2) (d) refers to the making of an allegation, whether or not express, that [A] or another person has contravened the Act.[201]The Tribunal concluded that a general, universal statement about contravention of the Equality Act 2010 was not sufficient. The Act deals with multiple protected characteristics. Every individual in a workplace has multiple protected characteristics. The claimant had multiple protected characteristics including age, race, religion, sex, sexual orientation. The Tribunal concluded that on a purposive reading of the provision, it requires more than the making of a sweeping statement of Equality Act discrimination and at least some, even minimal reference. Some reference to a protected characteristic, or more than one, is required, even implicitly/impliedly. There was no clue in this assertion as to why or how it was being said the Equality Act 2010 had been contravened. All that was required was ‘because of my [age], [race], [religion or belief], [sex] or [sexual orientation] to assert the contravention. There were insufficient contextual circumstances to disregard the need for some sort of assertion along these lines. Further, it was not asserted as a contravention but as the possibility of.[202]The Tribunal had regard to the claimant’s grievance against Ms Griffiths-Jones on 20 January 2019 (not asserted as a protected act), which was similarly vague, casual, unspecific and uncertain. Discrimination allegations are serious and in the Tribunal’s conclusion, cannot be left to arbitrary speculation. There was no wider ‘protected characteristic’ specific context or any implied inference on this occasion either.[203]At the meeting on 25 January 2019, in relation to the grievance against Dr Tyler, at which the claimant said Dr Tyler’s actions were possibly discriminatory (not asserted as a protected act), this was dealt with ‘head on’ by Professor Barker. But the claimant said 46 of 70 discrimination was not central to his grievance, but that if an independent reviewer was looking at the matter, then the decision maker may well decide that discrimination had taken place. Again, nothing was said about any protected characteristic or any implied reference.[204]Whilst the Tribunal also noted that, thereafter, in February 2019, the discrimination allegation in relation to Ms Griffiths-Jones had been stated to HR (orally) to be, or was interpreted as, an allegation of race discrimination (not asserted as a protected act), which provided some of the context of Dr Tyler’s notes of 8 March 2019, where he referred to the race card (which will be analysed below), that did not assist with an allegation against Professor Barker. In his grievance against Ms Griffiths-Jones, confirmed in oral testimony, the claimant stated that Dr Tyler not recognising the actions of Ms Griffiths-Jones as being potentially discriminatory, was his allegation of discrimination against Dr Tyler. This did not assist with the allegation of this protected act against Professor Barker.[205]Thus, the Tribunal concluded, this was not a protected act. It was completely unspecific and caveated by the possibility of discrimination rather than asserted as a contravention. 1 July 2019 (‘Addendum 29’ pages 1519-1524)[206]The claimant’s second grievance against Dr Tyler was relation to his notes of 8 March 2019. It was clear that the grievance was in relation to the entire content of his notes which included, in one bullet only, the ‘race card’ reference. In relation to this assertion there was reference to the Equality Act but also specific cross reference to the race card comment and victimisation (page 1522). It was thus potentially a protected act.[207]The Tribunal considered it necessary to analyse the background and context of this assertion of discrimination against Dr Tyler. The Tribunal concluded as follows:• Dr Tyler and the claimant had a friendship over a long period of time, around 15 years. This was common ground.• This friendship was evidenced by the claimant having visited and stayed with Dr Tyler and he knew members of his family. This was common ground.• There had been no historic allegations of discrimination against Dr Tyler from the claimant.• The dispute at the time between the claimant and Dr Tyler was, essentially, documented via the emails which had its source in the dissertation supervision/workload/draft AWP. No allegation of discrimination arose.• The reference to discrimination was mentioned in a singular word in the claimant’s meeting with Professor Barker on 25 January 2019. When it was subsequently discussed, pro-actively, the claimant said it was not central to his 47 of 70 grievance. He added that hypothetically, an independent reviewer may conclude that discrimination had taken place. There was no reference to race.• The claimant’s belief was that failing to recognise that the conduct of Ms Griffiths-Jones was potentially discriminatory, was the discrimination allegation against Dr Tyler. The context here was Ms Griffiths-Jones asking to be excluded from an email exchange/loop in which she and others were copied, involving a dispute between the claimant and Dr Tyler. The claimant considered it relevant that she did not ask others to exclude her from emails too and this was potentially discriminatory. It was plain and obvious to the Tribunal that there was no basis for her to ask the same of others when this was about the claimant escalating his issues. This was clear cut. The contribution from others was occasional and the matter was quite obviously not between ‘them’ and Dr Tyler. It was not a collective matter, with the claimant acting as an appointed spokesperson (even if there was a wider relevance). Neither would it have been appropriate, on any reasonable view, for the claimant to ask the Head of Department, her boss, to be excluded from such emails.• The comments of Dr Tyler in his notes were made after the grievance against Ms Griffiths-Jones. By that time, he knew of the email exchange between the claimant and Ms Griffiths-Jones; he knew of the subsequent escalation of this as a grievance against her; he knew of the impact of that on her – she had cried in his office. The Tribunal concluded that the actions and conduct of the claimant in relation to Ms Griffiths- Jones started off as being sarcastic and publicly disparaging (the first email); it had evolved into spite (the second email); it ended up being an act of bullying and harassment when the claimant pursued a grievance.• The Tribunal noted that the claimant did not take out a grievance against Ms Leeyou. She too had asked to be excluded from the email chain and had not said that to anyone else. She was the only other person who said so. Whilst she also wrote an email, which the claimant described as conciliatory (about the forum for resolution), the claimant maintained on 20 January 2019, that she may have discriminated/contravened the Equality Act too (page 611). Ms Leeyou is black. It was unexplained why she was not pursued in the same way as Ms GriffithsJones. No doubt if she was, it was likely to make a race discrimination allegation against Ms Griffiths-Jones highly unmeritorious.[208]In the light of the foregoing background and context, it was little wonder to the Tribunal that Dr Tyler’s response to the race discrimination allegation was one of frustration and exacerbation such that he commented that the claimant playing the ‘race card’ was cheap and nasty. In the Tribunal’s view, this was because it was plain and obvious, that the request of Ms Griffiths-Jones to be removed (as had Ms Leeyou) from wanting to be part of what was clearly a hostile email chain was even less than innocuous. It was entirely reasonable. The Tribunal drew upon its collective industrial/workplace experience that such behaviour was commonplace, especially because of the over-reliance on ‘cc’ in emails. There was nothing in it, yet she was hounded by the claimant. There was nothing 48 of 70 untoward in the exclusivity of her request (of the claimant). That view of the claimant was completely ill-founded and misconceived. Notably, Dr Tyler’s notes referred to Ms Leeyou being anxious for the claimant to understand (that the allegation was cheap and nasty) – the Tribunal concluded because she, a black person, knew she had said the same thing to the claimant.[209]In such circumstances the Tribunal considered the claimant’s allegation of discrimination against Ms Griffiths-Jones and Dr Tyler and his subsequent grievance about Dr Tyler’s notes to be cynical and not made in good faith. The Tribunal concluded the claimant knew full well there was no basis for his belief that Ms Griffiths-Jones or Dr Tyler had discriminated against him or that the race card comment was an act of discrimination/victimisation. Rather than being opportunistic, the Tribunal concluded that the claimant’s allegations were false and made in bad faith because the claimant did not believe in them. The grievance about the race card comment was thus disqualified from being a Protected Act by S.27 (3) EqA. The Tribunal was slow to reach this conclusion, but following careful deliberation, the Tribunal were unanimous and certain about this conclusion. 9 September 2019 (‘Addendum 41’ pages 2141 – 2156)[210]The claimant relies on pages 10 and 12 of this document. On page 10, the claimant had simply cross-referred to his grievance of 20 January 2019 (his grievance against Ms Griffiths-Jones), wherein he had stated that Ms Griffiths-Jones, Ms Leeyou and Dr Tyler had perhaps contravened the Equality Act. On page 12, he had said Dr Tyler’s notes may well be contrary to the Equality Act.[211]In the light of the foregoing conclusions and analysis (above), the Tribunal concluded both because of entire non-specificity and because both assertions were considered to be false and made in bad faith, neither of these remarks in the 9 September 2019 document were protected acts. 14 October 2019 ‘Addendum 53’ (page 2311)[212]The claimant relies on page 4 of this document wherein he had said that the disciplinary appeal panel (which included the two governors) had condoned the apparently racist behaviour of Dr Tyler and appeared not to comply with the Equality Act 2010. The claimant also relied on a reference to Dr Tyler’s notes (on page 7) but there was no reference.[213]In any case, In the light of the foregoing conclusions and analysis (above), the Tribunal concluded that both assertions were false and made in bad faith and thus neither of these remarks (to the extent that there was an implied reference to Dr Tyler’s notes) in the 14 October 2019 document were protected acts. Alternative conclusions (if the claimant did make protected acts as asserted) 49 of 70 Detriment ‘2’ – 13 June 2019 - because of the alleged protected act on 28 May 2019, Professor Callaghan failing to refer in his investigation report to race discrimination by Dr Tyler[214]In the alternative, the Tribunal was satisfied and concluded that Professor Callaghan did not subject the claimant to a detriment by failing to refer in his investigation report to race discrimination by Dr Tyler because of the claimant’s alleged protected disclosure relating to Professor Barker on 28 May 2019.[215]Professor Callaghan’s investigation meetings were conducted between 22 March and 3 April 2019. The protected disclosure relied upon was in connection with a subsequent grievance appeal on 28 May 2019 which did not form part of Professor Callaghan’s remit of investigation.[216]This grievance appeal was heard by and rejected by Mr Richard Flatman, Chief Financial Officer. It was against a decision of Mr Paul Ivey, Deputy Vice Chancellor and Chief Business Officer. The grievance appeal hearing (pages 1976-1981) on 13 August 2019 did not make any express reference to discrimination, race or otherwise.[217]There was no evidence that Professor Callaghan knew of the 28 May 2019 grievance appeal document or the specific reference to the possibility of an infringement of the Equality Act 2010 in relation to marking deadlines.[218]Further, the Tribunal concluded that the reason why Professor Callaghan did not refer to race discrimination by Dr Tyler in his report is because that had not been alleged at all by the claimant, or any other respondent to the investigation process. The obvious time to raise this would have been during the investigation meeting. Alternatively, if this was about the ‘race card’ comment in Dr Tyler’s notes, the Tribunal accepted that broadly, though not exclusively, Professor Callaghan relied on the interview notes and the preexisting email traffic with individuals for the basis of his report. The Tribunal concluded that Professor Callaghan only gave cursory consideration to Dr Tyler’s notes. There was one reference to those notes in his report (page 1177, ‘7.54’) but not otherwise. This appeared to be in the context of whether an assertion made by Dr Milburn about the claimant not teaching in the 12th week had any corroboration and Professor Callaghan referred to a comment in a ‘Module and Teaching’ section of this document. The reason why the race card comment was not referred to was because a race discrimination allegation had not formed a part of this investigation process. Professor Callaghan had not even seen the content of the grievance against Ms Griffiths-Jones.[219]The Tribunal noted that the notes were handed over upon request and disclosed as part of the investigation report too (appendix 9). This transparency did not support any illmotive.[220]The Tribunal concluded the alleged protected act did not influence the respondent’s 50 of 70 Detriment ‘4’ - 5 August 2019 – because of the alleged protected acts on 28 May 2019 and 1 July 2019, the respondent dismissed the claimant and disregarded Dr Tyler’s notes[221]In the alternative, the Tribunal was satisfied and concluded that the reason why the respondent dismissed the claimant was not because of the alleged protected acts on 28 May or 1 July 2019. In addition, the reason why the respondent disregarded Dr Tyler’s notes was not because of the alleged protected acts on 28 May 2019 and 1 July 2019.[222]The claimant was dismissed for reasons relating to his conduct namely partial bullying and harassment of Dr Tyler, bullying and harassment of Ms Griffiths-Jones, insubordination towards and the undermining of authority of Dr Tyler and because through the claimant’s conduct, he had seriously damaged trust and confidence. In addition, there had been a fundamental and irretrievable breakdown of trust and confidence between the claimant and Dr Tyler, Ms Griffiths-Jones and Professor Barker. Having regard to its findings above, The Tribunal considered the evidence for this to be overwhelming. The claimant had repeatedly failed to grasp that it was not the concerns he had raised about time or work pressures, or resourcing, that was the issue, rather it was the manner, tone, density and repetitive nature of his actions over a protracted period. He had behaved highly disrespectfully. He was publicly trying to shame his colleagues and publicly humiliating his line manager and his conduct towards Ms Griffiths-Jones was singularly the most disturbing. As referred to above, the criticism that she had somehow singled him out, was, on any reasonable interpretation, far-fetched and hopeless. The claimant’s pursuit of her was vexatious. The claimant’s emails of 12 and 13 December 2018 were particularly insubordinate, but it was the totality of the claimant’s email campaign against Dr Tyler, his boss and Head of Department, which the Tribunal concluded to be of a bullying nature. The claimant, it appeared to the Tribunal failed to, or chose not to, understand this, instead the Tribunal formed an impression that he appeared to be fixated on looking to the respondent to provide discrete examples or episodes of bullying. It was not one of those cases.[223]The matters forming the substance of the allegations against the claimant all pre-dated the alleged protected acts.[224]There was no evidence that Mr Stevenson or Ms Coupar knew of the 28 May 2019 grievance appeal document or the specific reference to the possibility of an infringement of the Equality Act 2010 in relation to marking deadlines.[225]In relation to disregarding Dr Tyler’s notes, the Tribunal concluded that although they were a part of Professor Callaghan’s investigation report and appendices, the claimant was invited to discuss his grievance about the notes at the disciplinary hearing, which he declined/did not do. The respondent’s reliance on these notes was minimal and not detrimental as the issue referred to in the notes, was not an allegation in respect of which the claimant had a case to answer (page 1177).[226]The Tribunal concluded the alleged protected acts did not influence the respondent’s 51 of 70 Detriment ‘5’ - 5 September 2019 – because of the alleged protected acts on 28 May 2019 and 1 July 2019, the appeal panel disregarded Dr Tyler’s race discrimination and also, Professor Pheonix decided that the claimant’s stage 2 grievance against Dr Tyler would be heard during the dismissal appeal hearing (and he failed to determine the stage 2 grievance)[227]In the alternative, the Tribunal was satisfied and concluded that the appeal panel did not subject the claimant to a detriment by disregarding Dr Tyler’s alleged race discrimination. The appeal panel concluded that there was in fact no race discrimination. Thus, they did not disregard Dr Tyler’s race discrimination. The claimant’s appeal against dismissal was unsuccessful and the appeal panel upheld the disciplinary panel’s reasons for the claimant’s dismissal. The appeal outcome referred expressly, albeit generically, to the possibility and/or rejection of any discrimination twice, even though there was no specific cross reference to the race card comment in Dr Tyler’s notes.[228]There was no evidence that the appeal panel knew of the 28 May 2019 grievance appeal document or the specific reference to the possibility of an infringement of the Equality Act 2010 in relation to marking deadlines.[229]The decision of Professor Phoenix to combine the hearing of the claimant’s stage 2 grievance against Dr Tyler with the dismissal appeal hearing was entirely rooted in policy and pragmatism. This would receive consideration at the highest level. Before the appeal hearing, the claimant had been offered the opportunity to have that grievance considered at the disciplinary hearing too. The respondent’s policy (paragraph 23, page 294) and the ACAS Code on disciplinary and grievance procedures (paragraph 46) are explicit about the legitimacy of two overlapping disciplinary and grievance processes being heard concurrently. The clue was in the sub-headings entitled: ‘Overlap between grievance and disciplinary procedures’ and ‘Overlapping grievance and disciplinary cases’ respectively. The grievance about Dr Tyler’s notes were a part of Professor Callaghan’s investigation report and appendices which had led to the disciplinary case against the claimant. The claimant was reluctant to acknowledge the appropriateness of this decision and even if he genuinely believed the two processes not to be overlapping, the Tribunal did not consider such a stance to be objectively reasonable and moreover, this had nothing to do which the alleged protected acts.[230]The Tribunal concluded the alleged protected acts did not influence the respondent’s Detriment ‘6’ – 19 September 2019 - because of the alleged protected acts on 28 May 2019, 1 July 2019 and 9 September 2019, rejecting the claimant’s appeal and disregarding Dr Tyler’s race discrimination[231]In the alternative, the Tribunal was satisfied and concluded that the appeal panel did not reject the claimant’s appeal because of any of the alleged protected acts. The Tribunal concluded that the appeal panel was independent and conducted a thorough review of 52 of 70 the claimant’s grounds of appeal following an appeal hearing. The appeal was rejected because the appeal panel upheld all of the reasons for dismissal. The appeal panel noted that there had been 13 grievances up until the appeal hearing, all of which had concluded save for 4, 3 of which were heard concurrently with the dismissal appeal. This did not fix the appeal panel with knowledge of the content of the appeal document of 28 May 2019 or the specific reference to the possibility of an infringement of the Equality Act 2010 in relation to marking deadlines.[232]The Tribunal concluded that the appeal panel was robust in its decision that there had been an irrevocable breakdown in trust and confidence. This was partially demonstrated by the unlikelihood of several senior personnel reaching biased decisions, having been involved in separate formal decision-making processes. In oral testimony the claimant submitted, in response to Tribunal questioning, that this was because of a conspiracy rather than individuals all coming to discrete, independent conclusions. The evidential basis for such a claim was non-existent, there was nothing before the Tribunal to essentially suggest a collusion/a dishonest agenda. Mr Stevenson did not volunteer, before the appeal hearing, that Ms Coupar did not have ‘final’ input into the decision to dismiss, after he made post disciplinary hearing enquiries, but that did not feed into any conspiracy theory involving others. The relevance of this matter is analysed below in the Tribunal’s conclusions on the unfair dismissal claim.[233]The Tribunal repeats its conclusions above regarding the appeal panel not disregarding Dr Tyler’s alleged race discrimination.[234]The Tribunal concluded the alleged protected acts did not influence the respondent’s Detriment ‘7’ – 25 September 2019 - because of the alleged protected acts on 28 May 2019, 1 July 2019 and 9 September 2019, Ms Moncrieffe-Johnson shortened the claimant’s notice period[235]In the alternative, the Tribunal was satisfied and concluded that Ms Moncrieffe-Johnson did not shorten the claimant’s notice period (and pay the balance in lieu) because of any of the alleged protected acts. The Tribunal concluded that she did this because by 25 September 2019, the claimant’s appeal against his dismissal had concluded and had been communicated by a letter dated 19th September 2019, but thereafter by the claimant’s addendums 45A, 46 and 47 (on 23, 24 and 25 September 2019), he was seeking to continue with dismissal or appeal related grievances when he had no further right of appeal. These grievances were against Professor Pheonix and the lay governors on the appeal panel. Notably, in the claimant’s addendum 45A, in his introduction he stated he understood there was no further right of internal appeal against the decision of the appeal panel. It is right that there had been other grievances raised too, post the appeal hearing but before the appeal decision (addendums 41, 42, 44 and 45), but the Tribunal rejected that a particular comment in one addendum (addendum 41) influenced Ms MoncrieffeJohnson at all to proceed in the way she did, or indeed by the content or fact of the other alleged protected acts. 53 of 70[236]Further, there was no evidence that she knew of the 28 May 2019 grievance appeal document or the specific reference to the possibility of an infringement of the Equality Act 2010 in relation to marking deadlines.[237]The Tribunal concluded the alleged protected acts did not influence the respondent’s Detriment ‘8’ – 17 October 2019 - because of the alleged protected acts on 28 May 2019, 1 July 2019 and 9 September 2019, Mr Duncan Brown failed to investigate the alleged malpractice and rejected the claimant’s whistleblowing allegation[238]In the alternative, the Tribunal was satisfied and concluded that Mr Duncan Brown, the Chair of the Audit Committee, did not fail to investigate the alleged malpractice and reject the claimant’s whistleblowing allegation because of any of the alleged protected acts. The reason why, the Tribunal concluded, was because the speak up policy should not be used for matters which should be raised under grievance, complaint or disciplinary procedures or to re-open matters which have already been considered under them (page 247, section 1, introduction). This was unequivocally the case and Mr Brown had satisfied himself that the issues were outwith the remit of the speak up policy (page 2817).[239]Further, Mr Duncan Brown only had regard to addendum 53 (pages 2305-2315), which only referred to one of the alleged protected acts relied upon (addendum 41) and not the others and there was no evidence he knew of the others. The Tribunal noted that draft emails had been sent to Mr Brown (pages 2812 & 2814) but the sender had been anonymised. The Tribunal concluded it was more likely than not it was Mr Michael Broadway, Deputy University Secretary who had initiated the dialogue (page 2321) and who was referred to by Ms Langford (paragraph 69 of her witness statement). Thus, the Tribunal concluded that Mr Brown’s judgment was not otherwise ‘infected’ by another person’s knowledge of the protected acts, as the Tribunal was not satisfied that Mr Broadway knew of the fact and/or content of the other alleged protected acts. The Tribunal also noted that Mr Broadway had sought views from Ms Langford and Mr Stevenson (and possibly Ms Moncrieffe-Johnson), but the Tribunal concluded that it was more likely than not, that their input would have been limited to the fact of the matters raised, being subject to a completed disciplinary and appeal process.[240]The Tribunal concluded the alleged protected acts did not influence the respondent’s Detriment ‘9’ – 2 December 2019 - because of the alleged protected acts on 28 May 2019, 1 July 2019 and 9 September 2019, in considering the claimant’s appeal regarding the whistleblowing, Mr Jerry Cope failed to require Mr Brown to provide a statement and dismissing the appeal. Also, bias in relying on statements from Ms Moncrieffe-Johnson and Ms Langford disregarding the claimant’s evidence. 54 of 70[241]This appeared to relate to Mr Cope’s emails on pages 2818 to 2819 wherein Mr Cope endorsed the decision of Mr Brown of 17 October 2019 (declining to consider the claimant’s further grievances under the speak up procedure). The Tribunal could not locate addendum 61 or a letter of 20 November 2019.[242]However, the Tribunal concluded, in the alternative, that Mr Cope’s reason for not requiring Mr Brown to provide a statement was because he was satisfied with his earlier response (page 2321) which he endorsed. The reason why was because he agreed that the matters were considered closed and this had been conveyed by the letters dated 25 September, 5 November and 25 November 2019. In relation to consideration of the letters of Ms Langford and Ms Moncrieffe-Johnson, the Tribunal concluded that this was quite obviously limited to the fact of the matters raised, being subject to a completed disciplinary and appeal process.[243]The Tribunal concluded the alleged protected acts did not influence the respondent’s Harassment S.26 EqA Detriment ‘1’ – 13/14 June 2019 Dr Tyler’s notes including a tirade of unfair criticism of the claimant including the words at page 41 of the ET1 amendment[244]The Tribunal concluded that Dr Tyler’s notes did include criticism about the claimant and included the race card comment already cited above. Without the race card comment, the Tribunal concluded that the notes did not relate to the claimant’s race. The reasons for Dr Tyler’s notes was to prepare for the investigation meeting with Professor Callaghan and to be able to address his concerns about the claimant’s behaviour relating to disruption, dissertations, staff meetings and module and teaching and general behaviour. These notes contained references back to 2014, when the claimant had sought to ascertain the identity of who had raised a matter about the claimant. This was at a time when Dr Tyler was not Head of Department. The notes referred to the claimant ‘hounding’ colleagues to find out who had complained about him at that time. The Tribunal concluded this was recollected by Dr Tyler as that it what he felt the claimant had done now too. The notes also referred to the redundancy matter (described as disruption related to re-applying for his own job), which pre-dated the dissertations issue and also comments regarding the claimant’s adverse relationship with his previous Heads of Department, including a broken relationship with Ms Richards. This was not challenged by the claimant. The Tribunal concluded that the catalyst for these notes was the claimant’s conduct through the dissertation issue and the additional matters raised by Dr Tyler in these notes were not being recollected to gather evidence to use against the claimant, rather the actions of a person who had until then been restrained and tolerant but which he was no longer prepared to be. None of this was related to the claimant’s race. 55 of 70[245]The race card comment did relate to the claimant’s race and it was unwanted conduct. The Tribunal concluded however that Dr Tyler did not have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The Tribunal concluded that the notes were not intended to be circulated or used by anyone other than Dr Tyler; equally however, there was no resistance to their handover to Professor Callaghan. As noted above, there was a transparency in the process which the Tribunal saw as an indication of no ill motive on the part of Dr Tyler. Most importantly, viewed in context, for all the reasons set out comprehensively above (paragraphs 207 to 209) (which the Tribunal does not need to repeat in this paragraph), this comment was no more than a manifestation of Dr Tyler’s frustration and exacerbation at the claimant’s suggestion that there was race discrimination in Ms Griffith’s-Jones request of the claimant to be removed from the emails and Dr Tyler’s non-recognition of this. Neither did the Tribunal consider the effect of the comment to amount to harassment having regard to S. 26 (4) EqA. In the light of the Tribunal’s conclusions above (in relation to victimisation and the making of a false allegation in bad faith), the Tribunal concluded having regard to all the circumstances, it was not reasonable for the comments to have the effect of harassing the claimant and that the claimant’s perception was unreasonable. The claimant knew full well that his discriminatory criticism of Ms Griffiths-Jones and Dr Tyler and his subsequent reaction to Dr Tyler’s comments about this was disingenuous.[246]The claimant referred the Tribunal to Royal Bank of Scotland plc v Morris UKEAT/0436/10. In this case, the claimant had complained to his manager’s manager about issues between them. This manager said something to the effect that he understood the Claimant to be alleging that the manager’s conduct towards the claimant was connected with his race. The Claimant denied that he had made any such allegation. He resented what he understood to be the suggestion that he was “playing the race card”. Those basic facts differ from the case before this Tribunal in one material respect, namely that there was no suggestion of Dr Tyler making an assumption, stereotypically, of something the claimant had not said. In Morris, the EAT had said in paragraph 35: “35. We see a parallel with the case of Richmond Pharmaceuticals Ltd v Dhaliwal [2009] ICR 724, where the employment tribunal found a similarly stereotypical comment to constitute harassment but made a very modest award of compensation. In the great majority of cases we would hope and expect that a comment of this kind, even if formally falling within the terms of the Act, would never form the subject of a tribunal claim and would be dealt with (assuming the employee wanted it dealt with at all) by an informal apology or through the grievance procedure.”[247]In paragraph 9, the EAT had also observed (with this Tribunal’s emphasis added): “We ought to say something more about the phrase “playing the race card”, since it features a good deal in the Reasons. Unfortunately the Tribunal does not make a finding about what the Claimant, or whoever put it on his Peoplesoft record (probably quoting him), meant by it. It clearly means more than simply “making an allegation of racial discrimination” and has a pejorative overtone. In some contexts, it can mean that a 56 of 70 complainant is cynically deploying his race in order to bolster a complaint which is unjustified or in any event has in truth no racial element. [Tribunal emphasis added] But we do not get the impression from the Claimant’s various contemporary comments, as recorded, that that is quite what he thought Mr Arnett was suggesting he was doing. Rather, what he resented was the implication that Mr Arnett was not seeing this as a straightforward complaint by one colleague against another, requiring to be treated on its merits, but as a complaint by a black employee against a white employee: that is subtly but genuinely demeaning.”[248]In the circumstances of this case and the contextual analysis of the Tribunal, the Tribunal concluded that the claimant’s complaint was a cynical attempt to bolster an unjustified complaint which in truth had no racial element.[249]The Tribunal concluded that the burden of proof did shift to the respondent but which was satisfied by the respondent at ‘stage 2’, in the light of the foregoing conclusions and analysis.[250]Having regard to the Tribunal’s conclusions above (under victimisation), in particular to the reason (s) why, the Tribunal concluded that Professor Callaghan’s failure to refer in his investigation report to alleged race discrimination by Dr Tyler was not unwanted conduct related to the claimant’s race.[251]The Tribunal concluded that the burden of proof did not shift to the respondent. Detriment ‘3’ – 15 July – During the disciplinary hearing, Mr Stevenson and Ms Coupar disregarded the fact that Dr Tyler’s notes were obvious potential race discrimination[252]The Tribunal concluded that the reason why Mr Stevenson and Ms Coupar disregarded Dr Tyler’s notes were obvious potential race discrimination is because the issue was never raised during that hearing by the claimant. The notes were not even referred to. That appeared to be a conscious decision by the claimant because he did not want his 1 July grievance about Dr Tyler’s notes to be considered during his disciplinary hearing. This was confirmed by the claimant under cross examination. At the hearing, Professor Callaghan had presented the case against the claimant by reference to the comprehensive findings in the investigation report. In addition, the issue of race discrimination or the claimant’s race was not mentioned by the claimant at any point during the disciplinary hearing. That was the reason why there was a disregard of Dr Tyler’s notes. That was not unwanted conduct relating to the claimant’s race.[253]The Tribunal concluded that the burden of proof did not shift to the respondent. 57 of 70[254]Having regard to the Tribunal’s conclusions above (under victimisation), in particular to the reason (s) why, the Tribunal concluded that the decision to dismiss the claimant was not unwanted conduct related to race and neither was disregarding Dr Tyler’s notes.[255]The Tribunal concluded that the burden of proof did not shift to the respondent.[256]Having regard to the Tribunal’s conclusions above (under victimisation), the Tribunal concluded that the appeal panel did not disregard Dr Tyler’s alleged race discrimination but had found that there had not been any discrimination. This was a view reached generically/holistically but that did not prevent it from forming a considered conclusion on any and all alleged discrimination. This was not unwanted conduct relating to the claimant’s race.[257]Having regard to the Tribunal’s conclusions above (under victimisation), the Tribunal also concluded the decision of Professor Phoenix to combine the hearing of the claimant’s stage 2 grievance against Dr Tyler with the dismissal appeal hearing was not unwanted conduct related to the race.[258]The Tribunal concluded that the burden of proof did not shift to the respondent.[259]Having regard to the Tribunal’s conclusions above (under victimisation), the Tribunal concluded that the rejection of the claimant’s appeal against dismissal was not unwanted conduct related to race; further, the Tribunal concluded, as above, that the appeal panel did not disregard Dr Tyler’s alleged race discrimination but had found that there had not been any discrimination.[260]The Tribunal concluded that the burden of proof did not shift to the respondent.[261]Having regard to the Tribunal’s conclusions above (under victimisation), the Tribunal concluded that the decision of Ms Moncrieffe-Johnson to shorten the claimant’s notice period was not unwanted conduct related to race.[262]The Tribunal concluded that the burden of proof did not shift to the respondent. 58 of 70[263]Having regard to the Tribunal’s conclusions above (under victimisation), the Tribunal concluded that the non-investigation by Mr Brown of alleged malpractice/rejection of the whistleblowing allegation was not unwanted conduct related to race.[264]The Tribunal concluded that the burden of proof did not shift to the respondent.[265]Having regard to the Tribunal’s conclusions above (under victimisation), the Tribunal concluded that Mr Cope not requiring Mr Brown to provide a statement and his consideration of the earlier letters of Ms Langford and Ms Moncrieffe-Johnson, was not unwanted conduct related to race.[266]The Tribunal concluded that the burden of proof did not shift to the respondent. Direct Race Discrimination S.13 EqA[267]The claimant relied on two named comparators, Mr Adams and Ms Paice. In relation to Mr Adams, as set out above (when the Tribunal dealt with an application for disclosure), Mr Adams had received a disciplinary sanction short of dismissal (a final written warning) for conduct relating to being under the influence of alcohol in circumstances where the respondent had regard to issues around his health, alcoholism, personal/family circumstances and contrition. The Tribunal concluded that Dr Tyler’s criticisms of the claimant in his notes were not materially the same circumstances under S.23 (1) EqA. The comments of Dr Tyler in his notes were about the claimant’s conduct and why he believed the relationship to have broken down. The Tribunal did not regard the situation involving Mr Adams, on the information before it, to be treated as misconduct. Dr Tyler’s comments about the claimant were in relation to a protracted period involving assertions of multiple instances of unacceptable behaviour. The Tribunal considered the circumstances of Mr Adams to involve a one -off/discrete occasion. Dr Tyler’s notes did not refer to the claimant’s health, family related circumstances or contrition. At that time, the claimant had withdrawn his offer to apologise and the apology offer which had preceded that was conditional on apologies being reciprocated by others. In addition, the Tribunal concluded that the claimant’s measure of an apology (which he confirmed in oral testimony included references to introductory greetings such as/akin to, for example ‘Thank you for your email’ or qualified comments such as ‘I regret you found the tone unpleasant’ but then adding ‘I do not agree it is unpleasant’ and saying ‘You say my email upset, I apologise for that’ and then setting out other criticisms of the recipient (page 517-518, the claimant’s email to Ms Griffiths-Jones). There was no evidence of 59 of 70 personal or family mitigating circumstances in relation to the claimant. In contrast, there was no dispute between the parties that the circumstances of Mr Adams, whom the claimant had supported and who was a friend of the claimant’s, involved a combination of health, family circumstances, alcoholism and contrition.[268]The circumstances in relation to Ms Paice was that she was alleged to have sworn in a team meeting which the Tribunal found was at Ms Leeyou. Ms Paice had submitted a witness statement but was not called by the claimant to give evidence. The Tribunal had limited regard to her statement. The Tribunal was satisfied that at the time of incident, she was suffering with serious ill health and family issues. She had time off work (9 months) after the meeting and had a mini-stroke, Bell’s Palsy and had suffered a leg break on her way to her mother’s funeral. This evidence was not contested by the respondent. The last two matters were confirmed by Dr Tyler in evidence (regarding Bell’s Palsy and her bereavement). Ms Paice also stated, in paragraphs 6 and 10 of her witness statement, that she had been told that she could be disciplined for race discrimination too (against Ms Leeyou). Dr Tyler contradicted Ms Paice’s statement that she was being accused of race discrimination against Ms Leeyou. He said race was not an issue. There was some corroboration for this by Dr Winter, who was at the meeting and had been called to give evidence by the claimant, who said there was no racial element. The Tribunal thus concluded this was not a racially based incident. As a result of her personal circumstances, she was offered a settlement agreement as an alternative to going through a disciplinary process. The Tribunal concluded that Ms Paice’s situation and Dr Tyler’s criticisms of the claimant in his notes were not materially the same circumstances under S.23 (1) EqA. The situation of Ms Paice referred to a one-off incident/episode only. In addition, she had serious underlying health issues, substantial time off work, and personal circumstances which had led to Dr Tyler considering an alternative to a formal disciplinary process. Also, the Tribunal was not satisfied that being exited via a settlement agreement (for three months salary) was ‘more favourable’ treatment. Ms Paice, in return gave up her job in circumstances where it was not certain she would be dismissed. If she was, she would have a right of appeal and could challenge a dismissal subsequently via litigation.[269]The Tribunal concluded there was no less favourable treatment of the claimant because of race than the treatment afforded to Mr Adams or Ms Paice or a hypothetical (white) comparator in relation to Dr Tyler’s criticisms of the claimant in his notes.[270]In relation to the race card comment specifically, the Tribunal concluded that the circumstances of Mr Adams and Ms Paice were materially different as neither had made discrimination allegations and/or discrimination allegations which were considered to be made falsely and in bad faith. The Tribunal concluded that a hypothetical (white) comparator who had also made an allegation or allegations of race discrimination which was false/were considered to be made falsely and in bad faith would have been treated in the same way as the claimant by Dr Tyler. In reaching this conclusion, the Tribunal draws on its conclusions above under victimisation and harassment.[271]The Tribunal concluded that the burden of proof did not shift to the respondent. 60 of 70[272]Having regard to the Tribunal’s conclusions above (under victimisation and harassment), the Tribunal concluded that Professor Callaghan did not, because of race, treat the claimant less favourably than he would have treated a hypothetical (white) comparator (in circumstances where race discrimination had not been raised or mentioned during the investigation meetings and where notes handed over at the end of one of the meetings had only been given a cursory consideration), by not referring in his investigation report to race discrimination by Dr Tyler.[273]The Tribunal concluded that the burden of proof did not shift to the respondent.[274]Having regard to the Tribunal’s conclusions above (under victimisation and harassment), the Tribunal concluded that Mr Stevenson and Ms Coupar did not, because of race, treat the claimant less favourably than they would have treated a hypothetical (white) comparator (in circumstances where the issue of the notes was not consciously raised by or referred to at the hearing by the claimant), by disregarding, during the disciplinary hearing, the fact that Dr Tyler’s notes were ‘obvious’ race discrimination.[275]The Tribunal concluded that the burden of proof did not shift to the respondent.[276]Having regard to the Tribunal’s conclusions above (under victimisation and harassment), the Tribunal concluded that the respondent did not, because of race, treat the claimant less favourably than Ms Paice or Dr Tyler or a hypothetical (white) comparator (in circumstances of similar allegations of misconduct and a breakdown in the employment relationship and a document appended to an investigation report which was not referred to) by dismissing the claimant, or by disregarding Dr Tyler’s notes which formed one of the appendices of the investigation meeting. Ms Paice was not, for the same reasons already stated, an appropriate comparator. The Tribunal did not consider Dr Tyler an appropriate comparator either. He was not the subject of a disciplinary process against whom allegations had been made or in relation to whom there was an investigation report, correctly in the Tribunal’s conclusion. There had been a grievance raised against him which had been rejected.[277]The Tribunal concluded that the burden of proof did not shift to the respondent. 61 of 70[278]Having regard to the Tribunal’s conclusions above (under victimisation and harassment), the Tribunal concluded that the appeal panel/Professor Pheonix did not, because of race, treat the claimant less favourably than a hypothetical (white) comparator (in circumstances where discrimination had not been found and where an outstanding grievance was considered related to a disciplinary process), by disregarding Dr Tyler’s race discrimination or by combining the consideration of the outstanding grievance against Dr Tyler with the dismissal appeal hearing.[279]The Tribunal concluded that the burden of proof did not shift to the respondent.[280]Having regard to the Tribunal’s conclusions above (under victimisation and harassment), the Tribunal concluded that the respondent did not, because of race, treat the claimant less favourably than Ms Paice or Dr Tyler or a hypothetical (white) comparator (in circumstances where an appeal panel had independently upheld the reasons for dismissal and found an irrevocable breakdown in trust), in rejecting the claimant’s appeal and disregarding Dr Tyler’s race discrimination. The Tribunal’s conclusions above regarding Ms Paice and Dr Tyler not being appropriate comparators is repeated and there was no appeal process in relation to either and see above conclusions (detriment 1, direct race discrimination).[281]The Tribunal concluded that the burden of proof did not shift to the respondent.[282]Having regard to the Tribunal’s conclusions above (under victimisation and harassment), the Tribunal concluded that Ms Moncrieffe-Johnson did not, because of race, treat the claimant less favourably than a hypothetical (white) comparator (in circumstances where post dismissal appeal grievances were raised which were related to the dismissal and appeal process which was closed), by reducing the claimant’s notice period.[283]The Tribunal concluded that the burden of proof did not shift to the respondent.[284]Having regard to the Tribunal’s conclusions above (under victimisation and harassment), the Tribunal concluded that Mr Brown did not, because of race, treat the claimant less favourably than a hypothetical (white) comparator (in circumstances where matters raised under the speak up policy had already been the subject of matters 62 of 70 considered under the respondent’s grievance and disciplinary processes), by not investigating the alleged malpractice and rejecting the claimant’s whistleblowing allegation.[285]The Tribunal concluded that the burden of proof did not shift to the respondent.[286]Having regard to the Tribunal’s conclusions above (under victimisation and harassment), the Tribunal concluded that Mr Cope did not, because of race, treat the claimant less favourably than a hypothetical (white) comparator (in circumstances where an earlier statement had been conveyed about closure of matters already raised during the disciplinary and dismissal appeal processes, the fact of which had been confirmed in writing by HR), by failing to require Mr Brown to provide a statement and dismissing the appeal and by relying on statements from Ms Moncrieffe-Johnson and Ms Langford.[287]The Tribunal concluded that the burden of proof did not shift to the respondent. Unfair dismissal S.94/98 ERA Burchell[288]The Tribunal concluded that the respondent did have a genuine belief in the conduct of the claimant which had caused an irretrievable breakdown in the employment relationship and in particular between the claimant and Dr Tyler, Professor Barker and Ms Griffiths-Jones. The Tribunal refers to its reasons above in relation to the reasons why the Tribunal concluded the respondent had dismissed the claimant. The Tribunal was satisfied and concluded that the respondent genuinely believed that the claimant had behaved in a bullying and/or harassing manner towards Dr Tyler and Ms Griffiths-Jones and he had undermined the authority of Dr Tyler and acted insubordinately towards him. There was no ulterior motive for the respondent. In fact, prior to the dissertation issue which had emerged consequent on the AWP cascaded on 22 October 2018, the claimant had been hostile and agitated towards the respondent because he had been put at risk of redundancy. This was demonstrated by the tone of his email and his cursory/dismissive reaction to being told by Dr Tyler he was no longer at risk. The Tribunal concluded that if there was a sinister agenda in play, the respondent could have dismissed the claimant by reason of redundancy. It did not. The Tribunal noted the historic tension between the claimant and his previous line managers which the claimant had survived. The Tribunal concluded that Dr Tyler’s response to the claimant’s challenge to his authority was to tackle him head on, which was escalated only when others, in particular, Ms GriffithJones became the target of his outbursts. He was no longer prepared to tolerate the claimant’s mode of operation and it was that genuinely held belief which essentially was the genesis of all that followed. The claimant never backed down and it could be said 63 of 70 neither did Dr Tyler. The Tribunal concluded however, that was his prerogative as Head of Department and the authority he had, which was being undermined and disrespected.[289]The Tribunal concluded that by reason of the emails the claimant sent and publicised to the team in relation to Dr Tyler and those sent to Ms Griffiths – Jones and his subsequent pursuit of her by raising a grievance, were the acts which demonstrated the respondent had reasonable grounds upon which to hold its belief in the claimant’s misconduct. To a large extent those emails did not require an over-analysis. The tone, content, volume and persistent nature of the emails, collectively, provided the platform for the respondent’s action. The claimant raised grievances against Dr Tyler and Ms Griffiths-Jones, shortly after Professor Barker’s intervention, at Dr Tyler’s request when the matter had got out of hand. Thereafter, the claimant pursued a grievance against Professor Barker too. All were unsuccessful. The respondent was entitled to take this into account in determining that the relationship between the claimant and the respondent had irretrievably broken down. The respondent also had regard to the finding in the grievance outcome and at dismissal that the grievance against Ms Griffiths-Jones was vexatious. The claimant appeared to challenge, at the Hearing, that the finding at the grievance outcome stage had not been upheld on his appeal against that grievance outcome. The grievance outcome letter dated 5 April 2019, produced during the Hearing did not support the claimant’s assertion at all. The appeal outcome letter referred to Professor Barker commenting at the appeal hearing that a vexatious grievance was a grievance made without merit and not raised in good faith and that it was in the scope of the disciplinary investigation. The appeal outcome supported the respondent’s reliance on this aspect of the case against the claimant. These were documents which the claimant had expressly asked the disciplinary panel to have regard to and they did – pages 1915 and 1968. The Tribunal also concluded that Professor Callaghan’s decision not to consider the previous grievance decision documentation of Professor Barker (relating to Dr Tyler and Ms Griffiths-Jones), introduced greater objective reasonable grounds for the subsequent outcomes and decisions – it provided a separate independent assessment of the situation and not one which, in the circumstances of this case, was likely to be attacked by the claimant as being a rubber-stamping exercise.[290]The Tribunal concluded that the respondent carried out as much investigation into the matter as was reasonable. Professor Callaghan interviewed 12 individuals in total, based on the allegations against the claimant. The interviews were thorough. The Tribunal noted that some spoke in favour of the claimant, largely in relation to the basis of the claimant’s concerns about workload and/or resourcing – Dr Pinch, Dr Johnson-Schlee, Dr Manalsuren, Dr Elsmore, Dr Milburn and Dr Noussia. To a certain extent Dr Tyler had also thought some of the claimant’s concerns were valid and he said that to the claimant too (pages 445 and 477). However, the case against the claimant was never about the legitimacy of raising reasonable concerns about workload. The Tribunal concluded that it was open to the respondent not to insist on a meeting with Ms Griffiths-Jones regarding the grievance against her, at that time, in the light of her email of 7 February 2019 (page 238). Her statement of 12 February 2019 described sufficiently her position and how she had felt. Further, she was an interviewee subsequently when Professor Callaghan undertook his investigation. The Tribunal concluded that Mr Stevenson’s discussions with Professor Bailey, Professor Callaghan and Professor 64 of 70 Barker after the disciplinary hearing but before a sanction was finally decided upon was not unreasonable or inappropriate. The Tribunal concluded that it was open to the respondent to determine the sanction in respect of the wrong-doing by deliberating further including speaking to others. The claimant referred the Tribunal to Ramphal v Department for Transport UKEAT/0352/14. That was a case in which the EAT considered the role of HR in the context of significant amendments made by HR to an investigation report in to alleged misconduct. The EAT concluded that HR had gone beyond their role to advise on procedure and process, straying into culpability. Notably, the EAT commented in paragraph 52: “In my opinion, it is disturbing to note the dramatic change in Mr Goodchild’s approach after intervention by Human Resources. A number of proposed findings favourable to the Claimant or exculpatory as to his conduct are replaced by critical findings. A proposed finding of misconduct is replaced by a finding of gross misconduct and a proposal to impose a final written warning is replaced by a proposal, and then decision, to summarily dismiss the Claimant after Mr Goodchild had been informed that dishonesty was not a necessary ingredient of gross misconduct. This is clearly not the case if the finding is one of theft or fraud. The Employment Judge has not explained what it was that caused Mr Goodchild to take a more critical view of the Claimant’s conduct if it were not the influence of advice from Human Resources. 53. It seems to me that Human Resources clearly involved themselves in issues of culpability, which should have been reserved for Mr Goodchild. Mr Goodchild clearly went beyond discussing issues of procedure and law.” And in paragraph 56 the EAT remarked: “I consider that an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure” The Tribunal concluded, having regard to the vast background by that time, that Mr Stevenson was by then seeking to ascertain the degree of impact of the claimant’s conduct on the employment relationship. It was clear that by then Mr Stevenson and Ms Coupar had decided that the claimant’s conduct was so serious to warrant at least a final written warning or dismissal. There was no dramatic or significant interference by Professor Bailey or Professor Barker at all. Their views were also based on the absence of any informed remorse/contrition or an acceptance of responsibility/a willingness to change by the claimant. Dismissal (for Gross Misconduct) was already contemplated. This course of action was put to Ms Coupar by the Tribunal, who agreed that it was reasonable for Mr Stevenson to have undertaken these further enquiries. Alternatively, the independent appeal panel also concluded that the relationship had irretrievably broken down (without seeking or knowing the views of others). That enquiry and process cured any alleged procedural defect. 65 of 70 If the Tribunal was wrong in its assessment that the claimant did not need to provide further input, the Tribunal was satisfied unanimously, that it would have made no difference to the outcome at all – if the claimant had been informed before dismissal or at the appeal hearing that Professor Bailey and Professor Barker had expressed concerns about the breakdown in the employment relationship, the claimant would have challenged them and most likely raised further grievances, but this would not have altered the respondent’s decision, in the Tribunal’s conclusion. Their views were based on their personal assessment and processes which they had decided on. By the dismissal stage, the claimant had raised multiple unsuccessful grievances including a second against Dr Tyler. By the appeal, there was a second grievance against Professor Barker and the unsuccessful outcome of the grievance against Professor Bailey and the appeal against that.[291]The Tribunal considered but rejected the application or relevance of the Supreme Court’s decision in Royal Mail Group Ltd v Jhuti 2019 UKSC 55. In that case the Supreme Court concluded if a person in the hierarchy of responsibility above the employee determines that she or he should be dismissed for a reason but hides it behind an invented reason which the decision maker adopts, the reason for dismissal is the hidden reason rather than the invented reason. In the case before the Tribunal, whilst the discussions with Professor Bailey and Professor Barker were not made known to the claimant, or to the appeal panel, the Tribunal concluded there was no hidden or invented reason for dismissal – it was and remained serious misconduct which had led to the irretrievable breakdown in the employment relationship. The appeal panel were not infected by the earlier discussions as they did not know about them and they considered the matter independently. They had said: “The panel also reflected on your written and verbal submissions for the appeal panel and considered your communication tone, the large volume of emails, the number of grievances raised and general behaviour. The panel felt that you had failed to reflect on your behaviour and acknowledge any need to change your approach. The panel considered that you had consistently demonstrated poor behaviour in this regard (from the evidence dated from December 2018 onwards) and continue to behave in this way to date. The panel was very clear that this behaviour had resulted in an irrevocable breakdown of trust and confidence.” ( Page 2236) Range of reasonable responses[292]The Tribunal concluded that the respondent’s decision to dismiss the claimant was both procedurally and substantively within the range of responses.[293]The Tribunal noted that the respondent did have regard to the claimant’s clean disciplinary record. In addition, the respondent had regard to the claimant’s health. It was not contested that the claimant was offered support via the respondent’s health support programme (PAM Assist). The claimant had also expressed more than once that he had the support of his own GP and friends. The Tribunal accepted that there would 66 of 70 have been an impact on the claimant’s well-being in connection with the on-going internal processes, but the claimant did not present a health reason not to proceed with a meeting or hearing on any occasion. He expressly confirmed he was ready to proceed with his dismissal hearing having been asked the question at the outset, consequent on the claimant presenting a letter from his GP. The claimant also had limited time off (28 and 29 November 2018) by reason of being unwell. The Tribunal was not taken to any medical/sickness documentation relating to time off or the claimant’s well-being or that his conduct was explained by his well-being. The sheer mass of written communications, in the form of addendums, illustrated that the claimant was able to the deal with the issues in detail. The claimant had elected to pursue multiple grievances and appeals. Whilst the claimant asserted that was his right, it was not a manifestation of poor health.[294]The question of remorse was considered by the respondent but was rejected as being a genuine or actual mitigating circumstances. It was open to the respondent to conclude this in the light of the claimant issuing qualified attempts to ‘apologise’ – being conditional on others apologising to him. Most significantly, 4 days after providing a lengthy statement in which these conditional ‘apologies’ were contained, he withdrew his offer to ‘apologise’ and decided instead to present two grievances against Dr Tyler and Ms Griffiths-Jones respectively. At the dismissal hearing, the claimant asserted he was innocent of all charges and that he had not overstepped the mark. He said the charges against him should be declared null and void. There was no expression of remorse or apology at the dismissal or appeal hearings. That was the time to raise remorse. Instead, the claimant’s position was entrenched in vindicating his actions. The apologies the claimant said he was making went entirely against the grain of raising multiple grievances and appeals against those outcomes.[295]There was no inconsistent treatment with Mr Adams or Ms Paice. In Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 the EAT said in relation to an argument about alleged disparity in treatment: “It is only in the limited circumstances that we have indicated that the argument [that is the disparity argument] is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar or sufficiently similar to afford an adequate basis for the argument. The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by [the equivalent of s98 of the 1996 Act]. The emphasis in that section is upon the particular circumstances of the individual employee’s case.”[296]For reasons already analysed above the factual scenario and personal circumstances of Mr Adams and Ms Paice were materially different. They were nowhere near alike the circumstances of the claimant.[297]The respondent was entitled to treat the disciplinary process under stage 4 of its policy as the charge against the claimant was gross misconduct and dismissal was a possible outcome. That was clear from paragraph 32 of the policy at page 279. It mattered not that ultimately that charge was not upheld. Gross Misconduct included as examples, but not exhaustively, serious breaches of the respondent’s equality and diversity policies 67 of 70 (The Equality, Diversity and Inclusion Policy and the Staff Inclusion Policy), which the respondent was entitled to state these were after the investigation and when the claimant was invited to a disciplinary hearing.[298]The Tribunal also concluded that Mr Stevenson, was entitled, in the circumstances which prevailed at the time, to conclude the disciplinary process without final involvement from Ms Coupar. The Tribunal concluded that the title of ‘Chair’ which was reserved for only one of the panel, elevated the ‘rank’ of the Chair over the other panel member. In the invitation letter, the two-person panel was described as the Chair and the other person who would also be present as a panel member. In addition, this was not a case where there had only been a one-person involvement. Ms Coupar took an active part in the disciplinary hearing and in the subsequent deliberations meeting. Her evidence about where matters were left has been rejected by the Tribunal and the evidence of Mr Stevenson, corroborated by Ms Langford and via contemporaneous documentation, preferred. Her response after that, in her second email sent on 5 August, also referred expressly to the very point which Mr Stevenson concluded the deliberations about – the extent to which relationships had broken down. It was not anything new.[299]The respondent’s decision to dismiss was not one which the Tribunal could interfere with. It was, by some considerable distance, within the range of reasonable responses. The claimant was the author of his own misfortune. The only criticism of Dr Tyler was that he could have handled the situation better initially but that did not provide any or sufficient excuse, justification or mitigation for the claimant’s actions. It was nothing short of an ill-thought through campaign during which the claimant had scant regard for others around him. He had not heeded the supportive advice of those who had offered it – the most telling example of this was the advice of Dr Budd who had virtually predicted the breakdown in the employment relationship unless the claimant changed his approach. The claimant had elected to choose Dr Budd, a former union representative and a friend of 15 years, to accompany him at the meeting on 7 January 2019, but with whom he had then fallen out to such a degree within a few weeks that he then included Dr Budd within the pool of people who he said had treated him ‘unfairly, horrendously and despicably’. He also raised a grievance, albeit that was subsequently withdrawn. The irony and hypocrisy of the claimant’s criticism of the tone and language (being of a bullying and badgering nature in his view) of Dr Budd’s email (20 February 2019), was not lost on the Tribunal.[300]The respondent took in to account the claimant’s previous disciplinary record and the Tribunal concluded that this had influenced the decision to terminate employment with notice rather than summarily for gross misconduct – disciplinary outcome page 1973.[301]The claimant had also said about Ms Griffiths-Jones, in the investigation meeting with Professor Callaghan that she had been the only person who had found his email of 13 December 2018 unreasonable (which was factually not the case) and that was because of her weakness. The Tribunal rejected this had been inaccurately recorded. Professor Callaghan had said in this report that this was offensive (pages 1173-1174). In oral testimony, the claimant said that if someone did not complain about bullying it was because the conduct was not of a bullying nature – because Dr Tyler ‘could absorb it’. 68 of 70 This left a hopeless and unenviable impression upon the Tribunal that the claimant expected individuals to either be robust and resilient on some universal one-dimensional standard, or, that it was not possible for bullying and harassment to ever be actionable unless someone speaks out. The Tribunal drew upon its own collective industrial and judicial experience in concluding that this was far removed from reality and the assertion was flatly rejected. Protected Disclosure -S.43 B, S.47B (Detriment) & S.103A ERA (Dismissal) 21 November, 12 December 2018 & 10 January 2019 communications[302]Nothing in the Enrolment Terms or the MA Planning Policy and Practice Course Guide, which the claimant wrote, required the provision of face-to-face dissertation supervision for part time MA Planning students on the one day they attend (Thursdays in this case). The claimant was adamant in oral testimony that this was the requirement he had in mind at the time and now. He said the university was bound to provide face to face supervision and on day 10 of the hearing, he said this obligation was in a document not before the Tribunal. The Tribunal challenged the claimant and questioned how it, the Tribunal, could thus determine whether or not the claimant had made a protected disclosure if it didn’t have before it the document the claimant placed reliance upon. In a further passage of evidence, the claimant said about face-to-face tuition that a ‘student must have recourse…there must be some legal redress’. This sounded hopeful and aspirational but did not provide any support for a genuinely held belief that the respondent was in breach of contract, and/or which was objectively reasonable. The document/contract the claimant placed reliance upon was not before the Tribunal. In the Tribunal’s conclusion, there was no one better placed to produce this than the claimant who was the Course Director.[303]The Tribunal did not need to conclude whether or not alleged disclosure was, in the reasonable belief of the claimant, made in the public interest.[304]Accordingly, the Tribunal concluded that the claimant did not make a qualifying protected disclosure.[305]If the Tribunal was wrong in its conclusion, based on the Tribunal’s conclusions above in relation to reason for the claimant’s dismissal, the Tribunal concluded that reason or principal reason the claimant was dismissed was not because of his alleged disclosures and neither did they materially influence the respondent instigating the disciplinary investigation or the decision to suspend the claimant. The former was done because of the dispute about work allocation between Dr Tyler and the claimant (as evidenced in the email traffic) which Dr Tyler escalated to Professor Barker on 19 December 2018 because of the inclusion and impact on Ms Griffiths-Jones. The latter was done because once the investigations into the claimant’s grievances against Dr Tyler and Ms GriffithsJones were complete, the respondent considered the claimant may have a serious disciplinary case to answer and was suspended for an investigation to be undertaken. 69 of 70[306]The Tribunal, unanimously, dismisses all of the claimant’s claims.[1]This was a Costs application by the respondent under Rule 76 (1) (a) and (b) following the dismissal of all of the claimant’s claims in its Judgment 1 of 44[2]The claimant appeared in person as he had at the Liability Hearing. The respondent was represented by Ms Ahmad, Counsel, who had also represented the respondent at the Liability Hearing.[3]The Tribunal had before it the respondent’s written application for costs dated 13 June 2022, a Bundle of documents comprising 309 pages, a supplementary Bundle containing the claimants 50 additional documents, the claimant’s statement of means and the claimant’s written response to the respondent’s costs application dated 6 September 2022. In additional a document was submitted by the respondent containing an article by the Sunday Telegraph about the respondent’s £170,000 application for Costs because of a ‘Witch Hunt’ racial slur. Although initially vague, the claimant accepted he had spoken to the journalist before this article was published.[4]The Tribunal asked the claimant if he required any assistance/adjustments in the light of his health leading up to this Hearing. He explained he might need more frequent breaks to accommodate his IBS. This was agreed (and was in fact accommodated). In addition, the claimant was suffering with a migraine/headache and was given breaks to take some medication and get some fresh air on 3 occasions.[5]The Tribunal explained the three-stage test to a Costs application, namely whether the threshold for Costs was met under Rule 76 (1), if so, whether or not the Tribunal should exercise its discretion to make a Costs award and if it did, how much to award. The Tribunal explained that it may have regard to the claimant’s means in considering whether to exercise its discretion to make an award and/or in relation to how much (Rule 84). The Tribunal also informed the claimant of some relevant case law in particular (Yerrakalva v Barnsley Metroplolitan Borough Cpuncil & another ICR 2012 420.[6]The claimant gave evidence on his means under oath and was cross examined and questioned by the Tribunal on his means. Both parties delivered oral submissions and written submissions too.[7]Having undertaken some reading, the Tribunal also expressed its provisional views on the claimant’s written response to the respondent’s application for costs, that it contained substantial narrative about allegations/assertions which had already been decided by the Tribunal’s 2 of 44 findings and conclusions in the Liability Judgment and/or comments which were inconsistent with those. The claimant was cautioned that the parties and Tribunal were bound by those findings and conclusions and the Costs Hearing would not be an opportunity to re-open those matters already decided.[8]The Tribunal announced a proposed procedure for the Costs Hearing as follows: the respondent would make its application for costs orally, supplementing its written application; thereafter, the claimant’s statement on means would be taken under oath; the respondent would have an opportunity to cross examine that evidence; the Tribunal would put any questions it might have; the claimant would then be able to address the Tribunal with oral submissions to supplement his written response; the respondent could, if it wished, have a chance to put forward closing remarks in the light of the claimant’s testimony. Both parties agreed this procedure for the Hearing.[9]On day 2 of the Costs Hearing, the claimant informed the Tribunal of various prescription and non-prescription medication he had been taking over various dates (see below). When asked what he was asking the Tribunal to do with this information and/or if he was making an application, he said it was not put forward as mitigation, for the Tribunal to have regard to if it gets to the stage of exercising/considering its discretion whether to make a Costs award. The claimant also referred to eye strain which he said he suffered with since before the Liability Hearing. This made reading documents difficult he said. When asked why he had not raised this before having regard to the substantial volume of documents at the Liability Hearing and the length of his own witness statement, he said he did not consider it to be relevant as he was concentrating on the issues in the case. For the purposes of the Costs Hearing, he said he could manage without assistance.[10]At the end of day 2 of the Costs Hearing, before reserving Judgment (subject to deliberation in Chambers), the Tribunal made the following Orders:• On or before 30 September 2022, the claimant is to provide to the respondent and to the Tribunal a copy of the current rental agreement of the property in Oxford (of which he is the landlord) and a copy of 12 months’ rent (income) statements for the property. 3 of 44• On or before 30 September 2022, the claimant is to submit to the respondent and the Tribunal, professional valuations of both of his properties in London and Oxford as disclosed at the Costs Hearing. For the avoidance of doubt, the claimant is to furnish forthwith the exact postal address of both properties to the respondent.• On or begore 30 September 2022, the respondent is to submit to the claimant and the Tribunal, its own professional valuations of both of his properties in London and Oxford as disclosed at the Costs Hearing.• On or before 30 September 2022, the claimant is to submit to the respondent and the Tribunal, evidence of the original and remaining term of the long Lease in respect of the London property.• On or before 30 September 2022, the claimant is to submit to the respondent and the Tribunal, evidence of the value/funds of his Prudential (or other) Pension fund (as disclosed at the Costs Hearing)• On or before 30 September 2022, the claimant is to submit to the respondent and the Tribunal, evidence of the balance of his savings with Nationwide (or otherwise) as disclosed at the Costs Hearing• These Orders need to be complied with fully and strictly by the date specified as the Tribunal will be meeting in Chambers on 5 October 2022 to deliberate on the Costs application. Any evidence not before the Tribunal, as Ordered, may be factored in to the Tribunal’s deliberations.• The Tribunal also records leave given to the claimant to provide final additional submissions, if he so wishes, limited to 3 pages of A4, font not less than 12 on or before 30 September 2022.[11]The Tribunal had to caution three times, members of the claimant’s family and friends who were observing the Hearing, who were shouting inappropriate comments from the back of the Hearing and addressing the Tribunal directly. On the last occasion, the observers were warned that if this happened on one further occasion, they would no longer be able to 4 of 44 remain in the Hearing room. On one of these occasions, the comments from the observers followed the respondent’s Counsel’s questioning of the claimant about whether he had or was likely to receive in the near future any inheritance. The claimant and members of his family became emotional and a break was taken. During the break, the Tribunal Hearing room was entered by the family and friends observers 5 times, without announcement or explanation. Upon the return of the parties to the Hearing, the Tribunal expressed its understanding of the claimant’s bereavement, which had occurred during the course of the Liability Hearing, at which hearing the Tribunal had also expressed its condolences and paused the Tribunal Hearing for a day. However, the Tribunal added that in the context of a substantial Costs application, Counsel’s line of questioning was not unreasonable or inappropriate. The observers were also reminded to cease entering the room unilaterally and if they wished to bring something to the Tribunal’s attention during a break, to contact the clerk.[12]The Tribunal received emails with attachments from both parties by 30 September 2022, including the valuations from both parties of the claimant’s properties, evidence of the leasehold title and leasehold term of the claimant’s London property, evidence of the claimant’s prudential pension fund value, evidence of the claimant’s savings with Nationwide and evidence of the claimant’s rental agreement and income in respect of his Oxford property. Relevant Findings of Fact[13]The following findings of fact were reached by the Tribunal, on a balance of probabilities, having considered all of the evidence/documentation during the hearing, including the documents referred to by the parties, including the Judgment on liability and taking into account the Tribunal’s assessment of the evidence.[14]Only findings of fact relevant to the issues in the Costs Hearing, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that 5 of 44 does not mean it was not considered if it was referenced to in the witness statements/evidence or submissions and considered relevant.[15]The Liability Judgment was promulgated on 16 May 2022. The claimant’s claims for Unfair Dismissal, Direct Race Discrimination, Harassment and Victimisation were all unanimously dismissed following 12 days of reading, evidence and submissions and 3 days of deliberation.[16]On 13 June 022, the respondent submitted a written application for costs under Rule 76 (1) (a).[17]The Tribunal listed a Costs Hearing and Ordered the claimant to provide a statement of means.[18]The claimant provided a written response dated 6 September 2022. He also submitted a statement of means accompanied with a statement of truth.[19]The claimant made an application for the Costs Hearing to be postponed which was refused.[20]The claimant had submitted a statement of means which stated he had net income of £2610.10 and outgoings of £1865.69, leaving a surplus of £744.47. His income is made up of two pensions and rental income. The claimant lives alone with no dependants.[21]During the course of his oral testimony, it emerged that one of his monthly outgoings entitled ‘Litigation Settlement with LSBU’ was in fact a monthly sum of £235 but which would cease in January 2023. This was in respect of a Costs award in the respondent’s favour in respect of unrelated civil proceedings.[22]In respect of the claimant’s flat in Brixton, the claimant said this was a terraced house over 2 floors with 2 double bedrooms and one small bedroom. He said it was Leasehold with about 80 years remaining (of an original 125 years’ lease). He said it was mortgage free. He said he had no idea of its value before indicating a valuation range of between £200,00 and £300,000. When the claimant provided a copy of the land registry deeds, it showed the lease was for 125 years from 11 June 1990. Thus, the Tribunal found the remaining term was about 93 years. The Claimant’s valuation (from Purple Bricks), pursuant to the Tribunal’s Orders, gave a 6 of 44 range between £525,00 and £550,000. The respondent’s valuation, pursuant to the Tribunal’s Orders, said to be received from Haart Brixton Estate Agents, was between £600,000 and £650,000.[23]In respect of the claimant’s house in Oxford, he said this was a semidetached house with two double bedrooms and one small bedroom. This was also mortgage free and had been rented out for 30 years. He indicated a valuation range of between £300,000 and £400,000. The claimant’s valuation (from Chancellors, Oxford), pursuant to the Tribunal’s Orders, gave a valuation of £375,000. The respondent’s valuation, pursuant to the Tribunal’s Orders, said to be received from Connells Estate Agents, gave a range between £500,000 and £550,000.[24]In respect of the rental income on this property, the claimant had stated this to be £672.40 on his statement of means. When asked what the gross rent was, he said he did not know but estimated it to be £1,000. When the claimant provided a copy of the tenancy agreement and rental statements pursuant to the Tribunal’s Orders, these showed a gross rent of £1,025 per month and a net rent (net of agency fees) of £840.[25]The claimant was also asked about savings. He said he had about £30,000 savings with Nationwide. He also said he had an ISA account with approximately £6,000. This savings information was not on his statement of means. The documentation disclosed pursuant to the Tribunal’s Orders showed a slightly increased value £33,223.[26]In response to Tribunal questioning, the claimant also disclosed he had another Pension plan/fund with Prudential which he valued at about £120,000 which funds he had access to, though there may be a tax consequence. This information was not on his statement of means. The documentation disclosed pursuant to the Tribunal’s Orders showed a slightly reduced value of £113,962.[27]The claimant’s additional disclosure, pursuant to the Tribunal’s Orders, also revealed a payment out from his current account to a Co-op bank on 8 September 2022 in the sum of £4305.15. It was not known whether or not this was to another account belonging to the claimant. There were also substantial debits of £5,005, £2,200 and £5,500 from his Nationwide savings account but there was no information about where these sums were transferred to. There also appeared to be a separate and new retirement plan 7 of 44 with St James Place into which the claimant had paid the sum of £2,880. On page 26 of the additional information for this retirement account, there was a schedule of possible monthly contributions. There was however, no further information about the possible/expected return from this retirement plan.[28]Before the Final Hearing, which was listed over 15 days in February 2022, on 8 October 2021the respondent had made a ‘without prejudice save as to costs offer’ of £50,000 to the claimant. This was before witness statements had been exchanged and before any fees of Counsel had been incurred. The offer was not accepted. The offer was restated on 17 January 2022. The offer was not accepted. The respondent’s costs application[29]The respondent’s application for costs was twofold – under Rule 76 (1) (a) and (b), namely: When a costs order or a preparation time order may or shall be made 76 (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.[30]The respondent said that Eversheds Sutherland were instructed in the claim from October 2021. Previously the respondent was represented by Veale Wasbrough Vizards LLP. The recovery of the respondent’s costs before October 2021 were not being sought. No reasonable prospects of success[31]In respect of the claims having no reasonable prospects of success, in its written application for costs dated 13 June 2022, the respondent asserted 8 of 44 and relied upon the following findings and/or conclusions of the Tribunal’s reserved Judgment:[32]Paragraph 175: The Tribunal found that on any reasonable reading/interpretation of the respondent’s policies, with well-known principles of bullying and harassment in the workplace, the claimant’s evidence in this regard had been remarkable and insincere. This was in respect of the claimant’s insistence that the respondent could not pursue him for alleged harassment unless a protected characteristic was involved.[33]Paragraph 176-178 & paragraph 302:176. The claimant also placed reliance on a contract he said existed between the respondent and its students, specifically in support of his belief that providing dissertation supervision to part time students on Thursdays could only be done face to face. There was no contract in either bundle. During the course of the Hearing, the respondent disclosed an ‘Enrolment Terms’ document and subsequently a document called ‘MA Planning Policy and Practice’ document (written by the claimant). There was no reference to the requirement for face-to-face dissertation supervision in these documents. It was not until day 10 of the Hearing, when the claimant was being cross examined, that the claimant claimed that there was another separate document, not before the Tribunal, which obligated the respondent to provide face to face supervision. He said, the respondent was ‘bound’ to do so. In response, the Tribunal remarked: “How can we determine whether or not you have made a protected disclosure without the document you place reliance on? If you knew it to be relevant you would have raised it before, it is now day 10 of this Hearing?”177. The claimant appeared to be referring to some other module guide; the respondent said nothing else existed, the Tribunal could not be sure if the claimant was referring to some other document which he had written. He added that he didn’t get disclosure and that there must be some legal redress if students didn’t get face to face dissertation supervision. 9 of 44178. The Tribunal found that the claimant’s reliance on the documents in support of his belief had constantly wavered and found there was no other relevant document. 302.Nothing in the Enrolment Terms or the MA Planning Policy and Practice Course Guide, which the claimant wrote, required the provision of face-to-face dissertation supervision for part time MA Planning students on the one day they attend (Thursdays in this case). The claimant was adamant in oral testimony that this was the requirement he had in mind at the time and now. He said the university was bound to provide face to face supervision and on day 10 of the hearing, he said this obligation was in a document not before the Tribunal. The Tribunal challenged the claimant and questioned how it, the Tribunal, could thus determine whether or not the claimant had made a protected disclosure if it didn’t have before it the document the claimant placed reliance upon. In a further passage of evidence, the claimant said about face-to-face tuition that a ‘student must have recourse…there must be some legal redress’. This sounded hopeful and aspirational but did not provide any support for a genuinely held belief that the respondent was in breach of contract, and/or which was objectively reasonable. The document/contract the claimant placed reliance upon was not before the Tribunal. In the Tribunal’s conclusion, there was no one better placed to produce this than the claimant who was the Course Director. This was in respect of the claimant’s failure to produce the evidence that he was relying upon to justify his whistleblowing claim.[34]Paragraph 179 Ms Griffiths-Jones said after the clamant had taken out a grievance against her, she began to use avoiding behaviour. Further, that she felt intimidated because of the tone of his emails and because he had taken out a grievance against her. The Tribunal found it was plain and obvious, on any reasonable reading, that the grievance did, causatively, contribute to how she felt and the measures she was taking. The claimant’s view to the contrary was, frankly, absurd. This was in respect of the claimant’s assertion that Ms Griffiths-Jones did not feel intimidated by the claimant’s grievance against her. The 10 of 44 respondent said Ms Griffiths-Jones was the subject of the claimant’s alleged protected act for his victimisation claim.[35]Paragraphs 202, 205 and 209 202 …Discrimination allegations are serious and in the Tribunal’s conclusion, cannot be left to arbitrary speculation… 205. Discrimination allegations are serious and in the Tribunal’s conclusion, cannot be left to arbitrary speculation 209. In such circumstances the Tribunal considered the claimant’s allegation of discrimination against Ms Griffiths-Jones and Dr Tyler and his subsequent grievance about Dr Tyler’s notes to be cynical and not made in good faith. The Tribunal concluded the claimant knew full well there was no basis for his belief that Ms Griffiths-Jones or Dr Tyler had discriminated against him or that the race card comment was an act of discrimination/victimisation. Rather than being opportunistic, the Tribunal concluded that the claimant’s allegations were false and made in bad faith because the claimant did not believe in them. The grievance about the race card comment was thus disqualified from being a Protected Act by S.27 (3) EqA. The Tribunal was slow to reach this conclusion, but following careful deliberation, the Tribunal were unanimous and certain about this conclusion.[36]This was in respect of the claimant’s victimisation claim whereby the Tribunal had not upheld any of the claimant’s protected acts. The respondent asserted that the claimant’s victimisation, discrimination and harassment claims were based on allegations which were ‘false and made in bad faith because the claimant did not believe in them’.[37]Paragraph 248 245…The Tribunal concluded having regard to all the circumstances, it was not reasonable for the comments to have the effect of harassing the claimant and that the claimant’s perception was unreasonable. The claimant knew full well that his discriminatory criticism of Ms GriffithsJones and Dr Tyler and his subsequent reaction to Dr Tyler’s comments about this was disingenuous… 11 of 44 248.In the circumstances of this case and the contextual analysis of the Tribunal, the Tribunal concluded that the claimant’s complaint was a cynical attempt to bolster an unjustified complaint which in truth had no racial element.[38]This was in respect of the race discrimination/harassment claim with the respondent’s emphasis added as underlined.[39]Discrimination/Victimisation claims bound to fail The respondent relied on the Tribunal’s conclusion (paragraph 248) that the claimant had made a cynical attempt to bolster unjustified complaints which had no racial element to assert that in respect of all of the claimant’s complaints of discrimination, the claimant knowingly based his claim upon allegations which were made in bad faith and which were objectively bound to fail.[40]Paragraph 288, 294 and 301 288…The Tribunal was satisfied and concluded that the respondent genuinely believed that the claimant had behaved in a bullying and/or harassing manner towards Dr Tyler and Ms Griffiths-Jones and he had undermined the authority of Dr Tyler and acted insubordinately towards him… 294 … the claimant’s position was entrenched in vindicating his actions. The apologies the claimant said he was making went entirely against the grain of raising multiple grievances and appeals against those outcomes. 299... The respondent’s decision to dismiss was not one which the Tribunal could interfere with. It was, by some considerable distance, within the range of reasonable responses. The claimant was the author of his own misfortune. 301 … This left a hopeless and unenviable impression upon the Tribunal that the claimant expected individuals to either be robust and resilient on some universal one-dimensional standard, or, that it was not possible for bullying and harassment to ever be actionable unless someone speaks out. The Tribunal drew upon its own collective industrial and judicial 12 of 44 experience in concluding that this was far removed from reality and the assertion was flatly rejected. This was in respect of the respondent’s assertions that the claimant’s unfair dismissal claim was bound to fail and further that it was manifestly clear on an objective reading of the evidence that the respondent had a genuine belief that the claimant had behaved in a bullying/harassing manner and had undermined the authority of his line manager thereby justifying his dismissal.[41]On 8 October 2021, the respondent offered the claimant 50,000 in full and final settlement of his claims. The offer was without prejudice save as to costs. The respondent said, having reviewed the disclosure and considered the strength of its witness evidence, the prospects of the claimant’s claims succeeding were low. The letter also asserted that the respondent believed there were significant issues with the claimant’s claims. The context of the reason to make the offer was in respect of the alternative preparation costs for the 15-day Hearing. The offer was not accepted and no counteroffer was made. The offer was repeated on 17 January 2022. The offer was not accepted. Vexatious, disruptive and/or unreasonable conduct[42]Paragraph 171 171.During the claimant’ cross examination, the claimant objected to a reference/attack by the respondent’s counsel on his upbringing by his mother. This was in the context of counsel putting to the claimant that, as a grown man, he did not have to be told by others that his actions or behaviour were bullying, because this was something that he would have learnt as a child in school. There was no express or implied reference to the claimant’s mother. The Tribunal interjected when the claimant took issue with the point to explain the foregoing to the claimant. The Tribunal found that this (his upbringing by his mother) was something the claimant knew, or ought to have known, was not being put to him.[43]This was in support of the respondent’s assertions about the Tribunal’s remarks about the claimant’s credibility/reliability and his conduct of the proceedings over the course of the final Hearing. 13 of 44[44]Paragraph 174 174. In so far this was related to oral evidence given by Dr Tyler, the Tribunal did not, unanimously, have any note of such evidence given by Dr Tyler and/or its connotations with witch- doctory. This was a description and annotation of the claimant’s own making.[45]This finding was in relation to the claimant’s tweet “ I will give evidence at the Croydon Employment Tribunal on Monday that my line Manager at London South Bank University accused me of being a witch-hunter – I am not neither am I a witch-doctor” and was relied upon by the respondent as evidence of the claimant sensationalising and creating a misleading impression of the allegations and evidence in the claim to create or encourage media interest in his claim which the respondent asserted was unreasonable and vexatious.[46]Paragraph 180 180…The Tribunal found this wholly inappropriate and in addition, the claimant’s denial of doing so, dishonest. Any comment which might have been forthcoming risked being put into the twitter public domain as the claimant was tweeting about his case.[47]This was in support of the respondent’s assertions about the Tribunal’s remarks about the claimant’s credibility/reliability and his conduct of the proceedings over the course of the final Hearing.[48]Claimant’s requests for documentation, information, non-agreement of the Bundle, approaches to respondent’s ex and present employees[49]The respondent asserted that the claimant’s application for an Unless Order had been refused by the Tribunal on 8 November 2021, had demanded additional information from the respondent, refused to agree the contents of the Bundle, had attempted to call additional witnesses of the respondent with improper pressure by stating ‘if you do not appear voluntarily as a witness called by me, the Tribunal is likely to compel you to appear…in order to help you do the right thing and choose to be called voluntarily’ 14 of 44[50]The respondent also relied on the claimant’s application to amend his claim on day 10 of the Hearing. This was based on the evidence of the respondent’s witnesses which had been exchanged on 23 December 2021. The application was refused but the respondent asserts it was put to expense to defend the application which it considered to be unreasonable and bound to fail.[51]The respondent also relied on the claimant’s bringing of a second claim after the conclusion of these proceedings, which the respondent said relates to and arises out of the same factual matrix as the proceedings determined which the respondent said amounts to vexatious conduct.[52]In oral submissions, to supplement the respondent’s written application, Ms Ahmad said: o The claimant’s conduct in bringing and conducting the proceedings had passed the threshold for making a Costs order under Rule 76 (1) (a) by some margin which she said also fed into the Tribunal’s discretion under the second stage. She described the claimant’s conduct as egregious. o Pursuant to Yerrakalva, Ms Ahmad invited the Tribunal to look at the whole picture to assess unreasonable conduct and that it was not necessary to identify which conduct led to the costs incurred. o Ms Ahmad said there was an overlap between the claimant’s conduct in bringing the proceedings and the claim having no reasonable o Ms Ahmad described the claimant as bringing confusion, obfuscation and muddying the waters. o Ms Ahmad reminded the Tribunal that the Bundle was around 3000 pages and the first witness statement was 221 pages; the respondent had to prepare on that basis. o Ms Ahmad reminded the Tribunal of paragraphs 61 and 64 and 68 of its Judgment which recited extracts from the claimant’s emails which she said would be obvious to anybody as being disrespectful and insubordinate and Dr Samuel Johnson-Schlee’s view of one of 15 of 44 the claimant’s emails as particularly ‘galling and undermining’ and his view that the claimant’s recent emails as ‘verging on bullying’. o Ms Ahmad referred to paragraph 74 of the Judgment which recited Ms Griffith-Jones’ email of 20 December 2018, which she said was on any plain reading, not right and evidence of bad behaviour. She said the claimant did not desist as instructed, instead he made her more uncomfortable, leading to Dr Tyler viewing the claimant’s conduct as creating a toxic environment and having an inability to accept instructions (Paragraphs 75, 77 and 79 of the Judgment). o Ms Ahmad considered the claimant’s dealings with Mr Budd, as set out in paragraph 85 of the Judgment in detail, as particularly relevant in her submissions. She said he was the ‘check’ on the claimant as he was a TU member and a friend of the claimant. It was Mr Budd who beseeched the claimant to withdraw his grievance (s) and apologise as he foresaw what would happen. Ms Ahmad said he was ignored and in fact a grievance was raised against him which she described as a counter-offensive/aggression. This she said went to the unreasonableness of bringing the claim. Ms Ahmad described the claimant’s treatment of Mr Budd as the claimant’s mode of operation and described the claimant’s conduct as pig-headed and the making a mountain out of a molehill all of which increased/added to the overall costs of the proceedings. Ms Ahmad also cited and referred to Dr Budd alerting the claimant to the potential ‘devastating consequences’ of his approach. o In relation to the discrimination claims in particular, Ms Ahmad referred to the claimant ‘skirting around the issue’ (paragraph 87 of the Judgment relating to the claimant’s meeting with Dr Barker); she said he had acted in a similarly unreasonable way when making a reference to Ms Griffith-Jones’ treatment of him (paragraphs 201 and 202 of the Judgment) – she said he knew full well how serious the implications (of discrimination allegations) were which she said were vexatious, malicious or unreasonable. Ms Ahmad added that it was clear from the Judgment, paragraph 204, that the claimant’s allegation of discrimination against Dr Tyler was convoluted to cynically bolster his claim. She said muddying the waters with ‘Race’ fell squarely with unreasonable conduct in the bringing of the claim. Ms Ahmad relied on the Tribunal’s conclusions in paragraph 16 of 44 207 as evidence of unreasonable conduct in the bringing of the discrimination claim. Ms Ahmad said the factual matrix analysed by the Tribunal meant the clamant knew full well, by a long stretch, that Ms Griffith-Jones’ request of the claimant to be removed from the emails had nothing to do with race. The claimant did not take out a grievance (against Ms Leeyou, who is black) who had asked to similarly be removed. Ms Ahmad said the claim was thus malicious and vexatious. Ms Ahmad relied on paragraph 208 of the Tribunal’s conclusions in submitting that the claimant had made the allegation to detract from his own behaviour and then issued proceedings on this ‘bogus narrative’. She said this was cynical, vexatious and certainly unreasonable. She said that paragraph 209 of the Tribunal’s Judgment confirmed that the claimant had acted cynically, not in good faith. She said the Tribunal’s Judgment was unanimous in concluding the claimant’s allegations were false and made in bad faith. She concluded, in relation to this part of her submissions, by saying the ‘Race Card’ issue became a big part of the claimant’s claim, otherwise the case could have been a straightforward unfair dismissal claim. She said this was cynical, vexatious and unreasonable conduct to cloud and detract from his own behaviour. She said this was appalling. o In relation to the Unfair Dismissal claim specifically, Ms Ahmad relied on paragraph 222 of the Tribunal’s Judgment wherein the Tribunal concluded that the evidence of the case against the claimant had been overwhelming. The evidence was documented: this was not a ‘he said/she said’ case. She relied on the Tribunal’s conclusions about the manner, tone and density of the claimant’s actions. It had taken 2 weeks of a Hearing to arrive at that point whereas multiple academics had made that point before. Ms Ahmad also relied on the Tribunal’s conclusion in paragraph 299 that the respondent’s decision to dismiss was by ‘some considerable distance’, within the range of reasonable responses, thus asserting, the claim had no reasonable prospects of success and/or the decision to bring the claim was unreasonable. Ms Ahmad further relied on paragraph 301 in relation to the claimant’s criticism of Ms Griffiths-Jones being weak and that absent a complaint of bullying, it could not be actionable – which the Tribunal concluded was a hopeless position. Ms Ahmad said the claimant was thus unashamedly bullying on paper and had no respect or empathy and referred to the Tribunal’s 17 of 44 conclusion in paragraph 299 that the claimant was the author of his own misfortune. Thus, she said, the threshold for making a Costs Order on the Unfair Dismissal claim was met. o Ms Ahmad referred to the opportunity the claimant had to walk away with £50,000 pursuant to the without prejudice save as to costs offer. She informed the Tribunal that the respondent was not seeking to recover its costs incurred with the previous Solicitors which she said amounted to £67,000. She said this was evidence of restraint in its application. She said the respondent had charitable status and an entire faculty had been involved in this case. The offer, she said, had been made because the respondent was desperate to draw a line under the matter even though the claims were outrageously bad. The claimant’s schedule of loss was around £600,000. The offer she said was a warning and given what the claimant knew, his conduct in continuing with the claim was unreasonable (conduct) taking the application beyond the threshold for making a Costs Order (which the Tribunal understood related to the manner in which the proceedings were being conducted). Ms Ahmad said the offer had been made before witness statements had been exchanged, before Counsel was instructed and before Counsel’s brief fee was incurred. She argued that there was a reasonable cut off point, namely all of Eversheds’ Costs were incurred after 8 October 2021. o Ms Ahmad said the offer was extended to 26 October 2021 and restated on 17 January 2022. The claimant’s refusal was unreasonable conduct (which the Tribunal understood related to the manner in which the proceedings were being conducted). o Ms Ahmad also criticised the claimant’s non-agreement of the Bundle, referring to the claimant’s emails at pages 226-228 of the Costs Bundle and said that 13 emails had been received by the claimant yet only 1 additional document was provided. She said the claimant was obfuscating and being awkward. o Ms Ahmad referred to the respondent’s additional costs of defending an application to amend on day 10 of the Hearing as a further example of the claimant’s unreasonable conduct in the manner in which the proceedings were conducted. 18 of 44 o Ms Ahmad referred to the claimant’s Tweet (about the claimant denying he was a witch hunter and neither was he a witch-doctor) during the course of the Hearing and the purported reference to the claimant’s mother and the comments about both these issues in the Judgment (paragraphs 171 to 174) as further evidence that the manner in which the proceedings were conducted was unreasonable. She added it had never been put to Dr Tyler that the ‘witch hunter’ phrase had a racial connotation. She said in his witness statement, when the claimant had whittled down his examples of well-known racial stereotypes, ‘witch-hunting’ was not one of them. Ms Ahmad’s submission was that this was evidence of the claimant attempting to sensationalise /exaggerate his claim. Ms Ahmad also referred to the more recent article (leading up to the Costs Hearing) with a heading ‘academic who said ‘witch-hunt’ was a racist phrase faces £170,000 Court bill’ which she said was further evidence of unreasonable conduct as it was the claimant’s attempt to embarrass and intimidate the respondent and the Tribunal. o Ms Ahmad said the claimant’s denial of the concept of non-protected characteristic harassment in evidence/at the Hearing, as found in paragraph 175 of the Judgment (which evidence was found to be ‘remarkable and insincere’), was evidence of unreasonable conduct in relation to the manner in which the proceedings had been conducted. She said it also fed into the claims having no reasonable o In respect of the protected disclosure claims, Ms Ahmad said it wasn’t until the claimant was pinned down, that he placed reliance on the obligation for face-to-face teaching. She reminded the Tribunal of paragraph 178 of the judgment and the Tribunal’s finding that the claimant’s evidence about this had constantly wavered. o Ms Ahmad referred the Tribunal to paragraph 180 which had found the claimant’s submissions to the Tribunal about his conversation with the legal officer to be dishonest and expressed surprise at the claimant’s boldness to maintain his stance. o Ms Ahmad referred to paragraph 229 of the judgment and the claimant’s contrary argument to the conclusion about the 19 of 44 appropriateness of overlapping discipline and grievance processes, as one which was bound to fail. o Ms Ahmad referred the Tribunal to paragraphs 245 and 248 of the Tribunal’s judgment wherein the Tribunal had concluded that the claimant knew full well that his discriminatory criticism of Ms Griffiths-Jones and Dr Tyler and his subsequent reaction to Dr Tyler’s comments about this was disingenuous and a cynical attempt to bolster an unjustified complaint which in truth had no racial element. By definition, she said, the claimant’s conduct was vexatious, malicious and unreasonable which had no reasonable o Ms Ahmad referred the Tribunal to paragraph 296 and the Tribunal’s conclusions that the claimant’s comparators were materially different which she asserted he knew. Every angle of his case she said was unreasonable. o Ms Ahmad said that the Tribunal’s language in the Judgment – disingenuous, false, bad faith, cynical and insincere all went to the claimant’s unreasonable conduct and also went to the claims having no reasonable prospects of success. o Mr Ahmad invited the Tribunal to exercise its discretion to award the respondent’s costs. She said not all costs were being sought, having regard to what was at stake it was reasonable for the respondent not to instruct junior counsel, the respondent had charitable status and a lot of good could be done with the money, she reminded the Tribunal the respondent had offered £50,000 to bring the matter to an end. She added that Yerrakalva required the Tribunal to look at the bigger picture without needing to make a causal link between conduct and costs, she asserted the claim for costs (which only post dated the without prejudice save as to costs letter dated 8 October 2021) was reasonable o Ma Ahmad said the claimant had nothing to support his allegations and the burden of proof did not shift on any of his claims with the exception of the ‘race card comment’ but which was not a protected act. 20 of 44 o Of the unfair dismissal claim, Ms Ahmad said it was within the range of reasonable responses, by some margin, which she said the claimant knew. She reminded the Tribunal its discretion was broad. o Ms Ahmad said though the claimant was a litigant in person, he still had to articulate what was said or done; instead, she said, the claimant had been deliberately vague. o In relation to the claimant’s use of social media, Ms Ahmad said that continued until now – she said the claimant was continually sensationalising the claim cynically and to embarrass the university all of which adds to costs. The Claimant’s response to the Respondent’s Costs application[53]The claimant referred the Tribunal to the case of Opalkova v Acquire Care in relation to time when the prospects of success should be assessed. The claimant remarked that the respondent had only asserted that his prospects of success at the final Hearing were ‘low’ and did not provide evidence of strengths and weaknesses. The Tribunal found that the claimant’s comments in paragraphs 5 and 6 about inconsistencies in the respondent’s witness evidence, were arguments which were an attempt to re-open the evidence in the case about which findings and conclusions had already been made.[54]In relation to no reasonable prospects of success, the claimant asserted that the respondent’s costs application was a retrospective view and that that the claimant was bound to conclude that the respondent’s ‘Costs Warning’ was not well founded and speculative.[55]The Tribunal found that the claimant’s comments in paragraphs 8 and 9 about the claimant’s reliance on a ‘student contract’, were an attempt to reopen the evidence in the case about which findings and conclusions had already been made. In addition, the claimant was attempting to introduce new evidence.[56]The claimant asserted that as it was initially thought that his conduct could lead to a final warning or dismissal, thus, the ultimate decision to dismiss 21 of 44 was marginal, and thus any bullying and harassment was only marginal, thus he said it was reasonable for the claimant to think his dismissal was a close call/borderline.[57]The Tribunal found that the claimant’s comments in paragraphs 11 and 12 (about Dr Tyler’s evidence) were an attempt to re-open the evidence in the case about which findings and conclusions had already been made. In addition, no such findings/conclusions about Dr Tyler’s evidence had been reached.[58]The Tribunal found that the claimant’s comments in paragraphs 13 to 17 (about whether Ms Griffiths-Jones alleged she felt bullied or harassed and/or that the grievance against her was vexatious) were arguments which and conclusions had already been made.[59]The Tribunal found that the claimant’s comments in paragraphs 18 to 20 (about the alleged protected acts) were an attempt to re-open the evidence in the case about which findings and conclusions had already been made. The Tribunal did note however that the claimant also asserted that the respondent did not provide the basis for its assertion in its grounds of resistance that the claimant’s allegations of protected acts were made in bad faith (paragraph 144, page 193 of the Liability Bundle).[60]The claimant asserted that as it was accepted that Dr Tyler had used the phrase that playing the ‘race card was cheap and nasty’ which he had said he did not mean any offence by, it was reasonable that the claimant did not believe his claims had no reasonable prospects of success.[61]The claimant asserted that the respondent’s reference to the claimant making a cynical attempt to bolster unjustified complaints which had no racial element was a reference to a Tribunal conclusion not a finding.[62]The claimant asserted that the respondent’s reference to the claimant’s position (in relation to unfair dismissal) being entrenched in vindicating his actions and that his apologies he said he was making went entirely against the grain of multiple grievances and appeals against those outcomes and the dismissal being, by some considerable distance, within the range of reasonable responses, were references to conclusions not findings, before asserting the respondent’s opening and closing narrative lacked credibility. 22 of 44[63]The claimant also asserted that the respondent’s without prejudice, save as to costs letter, was based on disclosure and the respondent’s witness evidence and did not cite expressly bad faith allegations from the claimant or the conclusions ultimately reached by the Tribunal by applying relevant case law. The claimant said he had raised questions he needed answers too and then referred to various other cases where substantial compensation for discrimination had been awarded.[64]The clamant asserted the respondent had not said he had no reasonable prospects of success, rather they were low. He said the respondent had not applied the three questions in Opalkova which required determination of when the claimant’s claims had no reasonable prospects of success and subject to that did the claimant know that or ought he to have known that.[65]The claimant asserted he had asked reasonable questions about the offer and was aware of other discrimination claims receiving much higher compensation.[66]The Tribunal found that the claimant’s comments in paragraphs 37 to 43 (about the claimant being cross examined that people learned not to bullies at school) were an attempt to re-open the evidence in the case about which findings and conclusions had already been made. In addition, the claimant was attempting to introduce new evidence.[67]The claimant asserted he had reasonably sought information about his salary and pension in relation to the settlement offer. Further that it would not have been in his interests to accept the offer because of the evidence available, the strength of his claim and the serious defects and weaknesses in the respondent’s defence.[68]The claimant asserted he had not refused to agree the Bundle and said the Bundle was not agreed because of default by the respondent.[69]The claimant asserted that the respondent’s reliance on the ET case of English v Amshold Group Ltd 3200079-12 (in relation to sensationalising his claim) was not binding on the Tribunal and in any case not relevant authority as the claimant said there was nothing in the Judgment to say the claimant was seeking to create a misleading impression to encourage media interest. 23 of 44[70]The claimant asserted his email of 12 November 2021 raised different issues about disclosure (not in relation to the Tribunal’s refusal of an Unless Order).[71]The Tribunal found that the claimant’s comments in paragraphs 50 to 51 (about the tweets about being a witch hunter and not being a witch doctor) and conclusions had already been made. In addition, the Tribunal found that the allegation of witch hunting or being a witch hunter was not a standalone allegation of race discrimination against Dr Tyler which was the context the claimant was now, after the event, introducing. The specific comment from Dr Tyler’s notes which was challenged as being discriminatory was the ‘race card’ comment. The Tribunal was bound by paragraph 244 of its liability Judgment.[72]The Tribunal found that the claimant’s comments in paragraphs 52 to 53 (about the claimant’s comments to the Legal Officer) were an attempt to re-open the evidence in the case about which findings and conclusions had already been made. In addition, the Tribunal noted that the EAT has endorsed the Tribunal’s conclusion in relation to this at the EAT sift of the claimant’s appeal.[73]The claimant asserted he was entitled to express a view on the likelihood of the Tribunal Ordering the attendance of an unwilling witness. Further that the respondent raising this was unreasonable and disruptive.[74]The Tribunal found that the claimant’s comments in paragraph 56 (about his application to amend his claim on day 10) was an attempt to re-open the evidence in the case about which findings and conclusions had already been made. The Tribunal did note however, that in addition, the claimant did say that as a litigant in person, the same level of expertise was not required of him. The claimant added that the respondent’s application to include additional tweets was equally unreasonable. He also complained that some of the tweets were undated and that tweets since the Hearing had concluded were not relevant to the way in which the proceedings had been conducted. The claimant also asserted he had a legal right to tweet about his case. He added that the journalist had taken the photos seen in the tweets outside the Tribunal and said the journalist had highlighted the 24 of 44 witch hunting accusation which the claimant said he regarded as a racist term.[75]The claimant asserted that he did not unreasonably refuse to agree the cast list in this case.[76]In oral submissions the claimant asserted as follows:• He had a right to speak to the press.• He referred the Tribunal to Opalkova test. He said there was a prospect of success and it was not a retrospective test.• He referred to breaches by the respondent of Case Management Orders and the Bundle not being agreed. He referred to more than one copy of the same document being in the Bundle. He referred to two pages being illegible. One document should have been vertical, one document had handwritten notes on it, one copy was dirty, another document had some text missing and there were some handwritten documents including of the disciplinary hearing.• The claimant asserted that the respondent had not pleaded that the claims had no reasonable prospects of success. He said the claim had been drafted with a partner in a law firm in Manchester.• He referred to the English v Amshold case. He asserted his 200 page witness statement was not read (which the Tribunal understood to mean by the Tribunal) and that the respondent had been understating its claim for costs by not including to VAT.• The claimant referred to his County Court claim and his settlement with the respondent of £230 per month in relation to costs which he said was evidence of his reasonableness.• The claimant asserted that Dr Winter did think his claims had reasonable prospects of success, so did Ms Paice and his sister. He said it was incorrect to state the whole faculty was involved as that would constitute 200 lecturers. 25 of 44• The claimant referred to the unnecessary tweets brought to the Tribunal’s attention. He said aggressive, slippery, bullying and unmanageable and witch hunting were not words which would be used to describe a white British male (paragraph 123 of his witness statement, though witch-hunting was not referred to in paragraph 124 wherein he referred to phrases which were well-known racial stereotypes).• The claimant relied on a letter from his psychotherapist (Mrs Taylor) which had referred to ‘racial PTSD’ which had influenced his behaviour as well as the letter from Dr Rabie.• The claimant asserted if the respondent thought his claims had no reasonable prospects of success, it should and could have said so. Further that it had not specified why the claims had no reasonable prospects of success in its 8 October 2021 letter.• Finally, the claimant asserted the respondent had increased its offers from £5,000 to £10,000 to £20,000 and then £50,000 thus, he asserted this was evidence that the respondent’s believed their case (defence) was weak. Respondent’s response to the claimant’s submissions[77]Ms Ahmad said the claimant in 2 hours of submissions had spent 30 minutes commenting on the Bundle, he hadn’t referred to the Judgment once before discussing the tweets which she said were a sideshow.[78]Ms Ahmad said she understood the claimant to be relying on being depressed or having PTSD and said Mrs Taylor’s report about relevance or effect of this on dishonesty, his false grievances or his claims should be given little or no weight.[79]Ms Ahmad concluded by challenging the claimant’s evidence on the Oxford house valuation, the claimant did not reveal his £120,000 Prudential Pension fund, in respect of which 75% would be tax free and could be instantly accessed. He also had not revealed his £30,000 savings (on his statement of means). 26 of 44 Claimant’s additional written submissions pursuant to the Tribunal’s Orders[80]The claimant referred again to Opalkova and said the question for the Tribunal was whether it was reasonable for the claimant not to believe that his claims had no reasonable prospects of success. Thus, he said the key question was not the Tribunal conclusions in its Judgment. He asserted that the Tribunal had not said the claim should never have been brought.[81]The claimant commented on whether and to what extent he was dismissed by Mr Stevenson or with the input of Ms Coupar. The Tribunal found that the claimant’s comments in paragraphs 3 to 4 of this statement about this, and conclusions had already been made. The Tribunal found the same point applied to whether or not the claimant had shown remorse (paragraphs 5 and 6). To the extent that the claimant was asserting he reasonably believed when he brought the claims, that his claims did not have no reasonable prospects of success and/or that he did not know that any remorse was not considered genuine, this will be analysed below in the Tribunal’s conclusions.[82]The Tribunal found that the claimant’s comments in paragraph 7 (about Mr Stevenson’s discussions with Professor Barker and Professor Bailey after the disciplinary hearing) were an attempt to re-open the evidence in the case about which findings and conclusions had already been made.[83]The Tribunal found that the claimant’s comments in paragraph 8 to 11 (about race discrimination and specifically Dr Tyler’s ‘race card’ comment) were an attempt to re-open the evidence in the case about which findings and conclusions had already been made. To the extent that the claimant was asserting he reasonably believed when he brought and continued with the claims, that his claims did not have no reasonable prospects of success, this will be analysed below in the Tribunal’s conclusions.[84]The claimant asserted that the respondent’s initial claim for costs in the County Court claim was 10 times the costs they settled for which he considered to be the epitome of disproportionality.[85]The claimant submitted that the respondent had incurred unnecessary costs such as submitting amended pleadings, an application to introduce various 27 of 44 tweets of the claimant, accused the claimant of coercing Ms Coupar, accusing the claimant of being untruthful about informing his witnesses of the change of day for their evidence, applied for case management deadline variations because of its own unpreparedness, it did not pursue an earlier application for costs, it submitted an unagreed Bundle of 2858 pages of poor quality a large proportion of which was not referred to by either party, it had exaggerated its closing submissions and had pretended to carry out a disciplinary investigation in May 2021.[86]Finally, the claimant said if his conduct was so egregious, he could and should have been warned about such conduct. Alternatively, the claimant relied, in mitigation, on the reports of Mrs Taylor (psychotherapist) and Dr Rabie. He asked the Tribunal to make no award or an award not exceeding 10% of the Costs claimed.
Applicable law
[87]Rule 76 (1) says: A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that: (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted (b) or any claim or response had no reasonable prospect of success.[88]In assessing whether a party has acted unreasonably, the Court of Appeal in Yerrakalva v Barnsley Metropolitan Borough Council and another 2012 ICR 420 held the vital point in exercising the discretion is to look at the whole picture. The Tribunal has to ask whether there has been unreasonable conduct by the paying party in bringing, defending or conducting the case and in doing so, identify the conduct, what was unreasonable about it and what effect it had. 28 of 44[89]The Tribunal should have regard to the nature, gravity and effect of the instance or instances of unreasonable conduct Mcpherson v BNP Paribas 2004 ICR 1398 EAT.[90]Giving false evidence is an example of behaviour that might constitute unreasonable conduct having regard to the nature , gravity and effect of such conduct. Arrowsmith v Nottingham Trent University 2012 ICR 159.[91]Where a Tribunal finds unreasonable conduct and exercises its discretion to make a costs order, there is no requirement to establish a causal link between the unreasonable conduct and costs attributable to that unreasonable conduct (Yerrakalva).[92]In relation to no reasonable prospects of success, the EAT has recently confirmed in Opalkova v Acquire Care Ltd EAT 0056/21 that ’claim’ refers to a complaint or cause of action. Also, that the correct point in time in respect of which to make that assessment will either be at the point when the claim or response was submitted, or at some later point when circumstances changed such as to alter the prospects and materially change the assessment. Conclusions and analysis Did the Unfair Dismissal claim have no reasonable prospects of success?[93]The Tribunal first considered whether in relation to the claim for Unfair Dismissal, the threshold for the making of a Costs Order was met and if so, from when.[94]Ms Ahmad had asserted this was not a ‘he said, she said’ case, as the case against the claimant was all documented. The Tribunal agreed with this submission. The case against the claimant, contemporaneously, was based on the nature, tone and volume of email traffic by which the respondent believed the claimant to have acted in a bullying and/or harassing way towards Dr Tyler and Ms Griffiths-Jones and insubordinately and in an undermining manner towards Dr Tyler. In addition, his grievance against Ms Griffiths-Jones was considered to be vexatious. 29 of 44[95]The claimant knew or ought to have known that these actions were likely to lead to a significant escalation and likely dismissal. The Tribunal had already concluded that the claimant’s non-appreciation of non-protected characteristic harassment had been remarkable and insincere (paragraph 175 of the Liability Judgment) and the Tribunal concluded that this would have clouded the claimant’s perception, of his own making, that he was being treated unfairly, thus leading to the bringing of this claim. Similarly, the claimant’s belief that Ms Griffiths-Jones was ‘weak’ (because of her response to the claimant’s emails) and his view that bullying could not be actionable if Dr Tyler had not complained about bullying, because it meant he could absorb it, were equally unreasonable views, which the Tribunal concluded the claimant held at the time (paragraph 301, Liability Judgment). In addition, the claimant had held an absurd view that his grievance against Ms Griffiths- Jones had not caused her to use avoiding behaviour and that she was not intimidated by the tone of his emails and because the claimant had taken out a grievance against her, contrary to her assertions otherwise. The claimant had said he considered this only to have a chronological relevance. The absurdity of that view was unreasonable.[96]The Tribunal had also concluded that the decision to dismiss the claimant was, by a considerable distance, within the range of reasonable responses and the claimant was the author of his own misfortune (page 299).[97]The Tribunal placed significant reliance on the observations of Dr Budd and his exchange with the claimant as set out in the Tribunal’s findings in paragraph 85 in detail and the Tribunal’s conclusions in paragraph 299. This was the obvious and clear ‘check’ on whether the claimant was either asserting arguable points or, whether he was going down a wrong path. Dr Budd was a friend of many years and a former union representative who informed the claimant that his actions could have ‘devastating consequences’ and predicted that unless the claimant changed his actions, his employment could be terminated. Instead of heeding his counsel, the claimant turned on Dr Budd which even led to the claimant taking a grievance out against him, though it was later withdrawn. He also then subsequently raised grievances against Dr Tyler and Ms Griffiths-Jones and many others. This was early on in January 2019 and blew a hole in the claimant’s argument that the respondent’s application was based on a retrospective view of the case. The Tribunal concluded that the claimant knew, or ought to have known, full well, what the outcome of his stubborn mode of operation was likely to be, a long time before the respondent 30 of 44 considered the claimant to have a disciplinary case to answer. Instead, his position was entrenched (paragraph 294, Liability Judgment).[98]The claimant’s attempt to rely on his ‘remorse’ to challenge the legitimacy of his dismissal was given short shrift by the Tribunal in the liability Judgment. This assertion was wholly inconsistent with conditional apologies, withdrawn apologies and the raising of multiple grievances and grievance appeals against multiple individuals who had decided against him, which incidentally he considered to be outcomes caused by a conspiracy against him for which there was absolutely no evidential basis. In these circumstances, the Tribunal concluded that the claimant knew or ought to have known, contemporaneously, that such assertions would not have any mitigating force.[99]The claimant had relied on comparators who were ‘nowhere near alike’ (paragraph 296). Ms Paice had provided a witness statement for the claimant, Mr Adams a close personal friend. He knew or ought to have known of the circumstances of Mr Adams who he said was a personal friend of his who he had supported.[100]The claimant did not become aware of the evidence of Ms Coupar until witness statements were taken and exchanged in December 2021 and/or disclosure around then about the additional discussions of Mr Stevenson (paragraph 42 of the claimant’s opening note), thus, the claimant did not know this at the time to justify any arguable basis for the bringing of a claim for Unfair Dismissal. When this was made known to the claimant, it did not, in the Tribunal’s conclusion lead to any unfairness in the dismissal as it was, on the contrary, evidence the Tribunal had already concluded was not unreasonable or inappropriate and one which Ms Coupar herself accepted as being reasonable. Further, at the appeal stage, the claimant knew an entirely independent appeal panel had rejected the claimant’s appeal.[101]In pursuance of the foregoing analysis, the Tribunal had little doubt in concluding, unanimously, that the claimant had brought an unfair dismissal claim which he knew or ought to have known, had no reasonable prospects of success from when the claim was made. The suggestion that this not known at the time by the claimant and was simply the product of the Tribunal’s subsequent assessment and conclusions was flatly rejected. This would imply that the claimant had an arguable claim. He did not. It 31 of 44 did of course take the Final Hearing of this claim and the subsequent Costs Hearing for the Tribunal to determine that, but that did not of itself bear any connection to the prospects of, or elevate the merits of, the claim. The risk of running such an unmeritorious claim lay with the claimant.[102]Before arriving at this conclusion, the Tribunal had regard to Vaughan v London Borough of Lewisham and others UKEAT /0533/12/SM which considered that because a party seeking costs has not sought a Deposit Order or issued a costs warning, is not cogent evidence that the claims had in fact any reasonable prospect of success. In this case a Deposit Order had not been sought. In this case, which had a vast number of internal grievances and appeals with multiple decision makers and further attempts to pursue grievances after the dismissal appeal had been determined, would almost certainly have required more than a one-day Open Preliminary Hearing will little prospect of an Order being made given the sheer weight of evidential analysis required, in a vacuum.[103]The claimant had however, been offered the sum of £50,000 on a without prejudice save as to costs basis. The respondent said it had taken a view in making the offer before witness statements had been exchanged and before all of Eversheds’ Costs were incurred, as the respondent was until then, represented by other Solicitors; the offer however was repeated on 17 January 2022, two weeks before trial. In both offers the claimant was forewarned of the risk of a Costs application if the claimant did not succeed at trial. The first offer expressly referred to the offer being a commercial alternative (to the 15-day Hearing), the claimant’s ‘wholly unreasonable’ schedule of loss of £600,000 and the claimant’s prospects of success as being low. Neither offer was accepted, no counter-offer was made and there was no movement from the claimant’s schedule of loss. As commented on in Vaughan: “Alas, it is notorious that the costs of defending a long claim against a persistent claimant can be such that, from a commercial viewpoint, it makes more sense to pay a substantial sum by way of settlement than to pay the lawyers. The present case is a stark illustration.”[104]The Tribunal concluded that the respondent in this case had done exactly that too, to avoid the prospect of a 15-day trial with several senior academics required to give evidence. The offer quite clearly had nothing to do with the merits. Moreover, the Tribunal was as sure as it could ever be, 32 of 44 that a more blunt assessment of the claimant’s case would have made no difference. The claimant’s position was entrenched from before the litigation started and didn’t move one bit. The catchment group of his conspiracy and ‘target’ audience had simply enlarged through his employment and beyond. Did the Discrimination claims have no reasonable prospects of success?[105]It was difficult to understand what, if anything, was asserted as being the crux of the claimant’s discrimination claims. Various allegations had been made about direct discrimination, harassment and victimisation.[106]The Tribunal had concluded, in its Liability Judgment, that these were rooted in a combination of alleged discriminatory treatment at the hands of Ms Griffiths-Jones for asking to be excluded from the email chain involving the dispute between the claimant and Dr Tyler, an assertion that Dr Tyler’s failure to recognise Ms Griffiths-Jones’ treatment as discrimination was in itself discriminatory (which only appeared to be articulated in this way during the course of the Hearing) and Dr Tyler’s reference to the claimant playing the ‘Race card’ being cheap and nasty in his notes of 8 March 2019.[107]There were additional allegations against Dr Barker (the claimant referred to Dr Barker’s criticism of the claimant not meeting a marking deadline), Ms Leeyou’s treatment of the claimant (in relation to being asked to be excluded from emails too) and a general reference to Dr Tyler’s criticism of the claimant in his notes of 8 March 2019.[108]The Tribunal had found none of the claimant’s asserted protected acts were protected acts. In the Tribunal’s view, the most notable conclusions of the Tribunal at the Liability Hearing in relation to the discrimination claims, were in relation to the asserted protected act that the claimant’s criticism of the ‘race card’ comment was disqualified from being a protected act. These were set out in detail in paragraph 207 across 8 bullet points and in paragraphs 208 and 209. The Tribunal had found it was plain and obvious that there was no basis for Ms Griffiths-Jones to ask others to exclude her from the emails. It was clear cut. Ms Griffiths Jones’ request was even less than innocuous. The claimant’s actions towards Ms Griffiths-Jones had moved from being sarcastic and publicly disparaging 33 of 44 her, to spite before being an act of bullying and harassment when he pursued his grievance. Thus, the Tribunal had concluded it was little wonder why Dr Tyler’s response, in context and having regard to the background, was one of frustration and exacerbation. The claimant’s view was ill founded and misconceived and notably, the claimant did not pursue Ms Leeyou, a black person, who had done the same thing. The Tribunal has found the allegation of discrimination against Ms Griffiths-Jones and Dr Tyler and his subsequent grievance about Dr Tyler’s notes to be cynical and not made in good faith and that he knew, full well, there was no basis for such allegations. They were false and made in bad faith because the claimant dd not believe in them.[109]In paragraph 222 of the Liability Judgment, the Tribunal concluded that the claimant’s treatment of Ms Griffiths-Jones was, singularly, the most disturbing and the suggestion that she somehow singled the claimant out was far-fetched and hopeless. It was this which formed the basis of the claimant’s discrimination claim which became intertwined with his related discrimination complaints. There was nothing in it and the claimant knew that.[110]In paragraph 245 of the Liability Judgment., the Tribunal had concluded that the claimant knew full well that his discriminatory criticism of Ms Griffiths-Jones and Dr Tyler and his subsequent reaction to Dr Tyler’s comments was disingenuous before concluding in paragraph 248 that the claimant’s complaint was a cynical attempt to bolster an unjustified complaint which in truth had no racial element.[111]The Tribunal also noted that many of the claimant’s allegations about discrimination were casual, unspecific and convoluted – paragraphs 87, 201, 202 and 203 of the Tribunal’s Liability Judgment. The Tribunal had also already concluded that allegations of discrimination were serious and could not be left to arbitrary speculation. In making allegations in this way, the claimant undermined his own belief in such assertions.[112]These conclusions were the bedrock of the Tribunal’s view of the claimant’s discrimination allegations.[113]In pursuance of the foregoing analysis, the Tribunal had little doubt in concluding, unanimously, that the claimant had brought discrimination complaints which he knew or ought to have known, had no reasonable 34 of 44 prospects of success from when the claim was made. The suggestion that this not known at the time by the claimant and was simply the product of the Tribunal’s subsequent assessment and conclusions was flatly rejected. This would imply that the claimant had an arguable claim. He did not. It did of course take the Final Hearing of this claim and the subsequent Costs Hearing for the Tribunal to determine that, but that did not of itself bear any connection to the prospects of, or elevate the merits of, the claim. The risk of running such an unmeritorious claim lay with the claimant. More than unmeritorious, the claimant ran discrimination claims which were a combination of being cynical and/or made in bad faith and/or disingenuous and/or allegations the claimant did not believe in and/or which had, in truth, no racial element.[114]The Tribunal’s conclusions above in relation to Vaughan are repeated, with more force in relation to the discrimination claim. Did the Protected Disclosure claims have no reasonable prospects of success?[115]In paragraph 302 of the Liability Judgment the Tribunal concluded that the claimant was relying on his belief that face to face dissertation supervision was required for part time MA Planning students. The Tribunal concluded that this was his belief at the time and which he maintained in oral testimony. Yet by day 10 of the Final Hearing, the documentary evidence he said he placed reliance on, was not before the Tribunal.[116]This was challenged by the Tribunal head on, when it remarked as follows, during the claimant’s cross examination, (paragraph 176 of the Liability Judgment): “How can we determine whether or not you have made a protected disclosure without the document you place reliance on? If you knew it to be relevant you would have raised it before, it is now day 10 of this Hearing?”[117]The Tribunal also found that in a further passage of evidence, the claimant said ‘a student must have recourse… there must be some legal redress’. The Tribunal found this to be hopeful or aspirational, but it did not provide any support for a genuinely held belief that the respondent was 35 of 44 in breach of contract and/or which was objectively reasonable. The document the claimant placed reliance upon was not before the Tribunal.[118]During the course of the Hearing, the respondent disclosed an ‘Enrolment Terms’ document and subsequently a document called ‘MA Planning Policy and Practice’ document (written by the claimant).[119]In paragraph 177, the Tribunal had found that the claimant appeared to be referring to some other module guide; the respondent said nothing else existed, the Tribunal could not be sure if the claimant was referring to some other document which he had written. He had added that he didn’t get disclosure and that there must be some legal redress if students didn’t get face to face dissertation supervision.[120]In paragraph 178, the Tribunal had found that the claimant’s reliance on the documents in support of his belief had constantly wavered and found there was no other relevant document. Further in paragraph 302, the Tribunal had concluded that as the course Director, there was no-one better placed to produce a or the relevant document than the claimant.[121]Two documents were produced by the respondent but neither of these appeared to be the document the claimant was relying upon. He said he had sought disclosure but did not take the Tribunal to when he had done so (paragraph 15).[122]In pursuance of the foregoing analysis, the Tribunal had little doubt in concluding, unanimously, that the claimant had brought protected disclosure claims which he knew or ought to have known, had no reasonable prospects of success from when the claim was made. The suggestion that this not known at the time by the claimant and was simply the product of the Tribunal’s subsequent assessment and conclusions was flatly rejected. This would imply that the claimant had an arguable claim. He did not. It did of course take the Final Hearing of this claim and the subsequent Costs Hearing for the Tribunal to determine that, but that did not of itself bear any connection to the prospects of, or elevate the merits of, the claim. The risk of running such an unmeritorious claim lay with the claimant. The claimant did not produce the key document he placed reliance upon. In fact, his evidence about that had wavered, thus the goalposts of his claim kept changing. As late as day 10 of the Final Hearing, he was advancing his case based on a document yet to be 36 of 44 disclosed or even determined if it did in fact exist. The claimant, as already noted, was the Course Director. The claimant ought not to have brought this clam or abandoned it a long time ago when he knew, evidentially, it was a non-starter. The claimant was essentially on some fishing expedition in the hope that something might come up on to which he could peg his claim for protected disclosure detriment or dismissal.[123]The Tribunal’s conclusions above in relation to Vaughan are repeated. Did the claimant act vexatiously, disruptively or otherwise unreasonably in the manner in which the proceedings were conducted?[124]The Tribunal had several concerns about the manner in which the claimant had conducted the proceedings:(a) The claimant interpreted a line of questioning (in cross examination) as being an attack on his mother. The Tribunal had to intervene to inform the claimant that nothing of the sort and been put to the claimant expressly or impliedly. Such was the Tribunal’s surprise at the claimant’s suggestion, in the Liability Judgment, the Tribunal considered it appropriate to comment on the claimant’s credibility/reliability in this regard.(b) The claimant was Tweeting about his case during the trial. That was not in itself an issue. What was an issue and which was raised with the Tribunal by the respondent, was that he was tweeting/reporting inaccurately, the respondent said, to sensationalise his claim. One tweet was admitted in as evidence as follows: “I will give evidence that my line manager accused me of being a witchhunter, I am not, neither am I a witch doctor” (12 February 2022)” The reference to the claimant being a ‘witch hunter’ did not feature in any of the documentary or oral evidence in this claim. There was a singular reference in Dr Tyler’s notes of 8 March 2019 as follows: “Issue raised by colleague in 2014 and he hounded all colleagues by email to find out who it was – disrespectful. More concerned with witch -hunting than changing his attitude. Because of this history and his general attitude 37 of 44 including shouting at me when in a project meeting that I kept EI identity anonymous and his aggressive attitude and behaviour around redundancy – my duty of care to my staff. This was one bullet point within 41 bullet points in 5 sections. The context was abundantly clear and nothing to do with race. In his witness statement, paragraph 122, the claimant had said that the use of words/phrases: ‘aggressive’ ‘slippery’, ‘holding Division and students to ransom’, ‘witch hunting’, ‘aggressive attitude’, ‘wet blanket’, ‘shouted in my face twice’, ‘blocker’, ‘bullying’, ‘cheap and nasty’, ‘unmanageable’, ‘bully’ and continual harassment were words Dr Tyler would not use to describe a White-British male. In paragraph 123, the claimant went on to add, that some of these terms were well-known racial or racist stereotypes for black men for hundreds of years since the advent of the 400 year old North Atlantic trade in West African people. The terms he referred to were ‘aggressive’, ‘slippery’, ‘bully’ and ‘unmanageable’. He did not mention ‘witch hunting’. The claimant’s assertions in paragraphs 122 and 123 were not put to Dr Tyler or any other witness for the respondent. The reference to the phrase ‘witch doctory’ did not feature in any document, statement or testimony of any witness. The Tribunal had concluded in paragraph 244 of its Liability Judgment as follows: These notes contained references back to 2014, when the claimant had sought to ascertain the identity of who had raised a matter about the claimant. This was at a time when Dr Tyler was not Head of Department. The notes referred to the claimant ‘hounding’ colleagues to find out who had complained about him at that time. The Tribunal concluded this was recollected by Dr Tyler as that it what he felt the claimant had done now too. The Tribunal concluded that the catalyst for these notes was the claimant’s conduct through the dissertation issue and the additional matters raised by Dr Tyler in these notes were not being recollected to gather evidence to use against the claimant, rather the actions of a person who had until then 38 of 44 been restrained and tolerant but which he was no longer prepared to be. None of this was related to the claimant’s race. A disproportionate focus ended up being given to this issue. Ultimately, there was no doubt in the Tribunal’s mind that the claimant’s reference to being accused of being a witch hunter, which the Tribunal concluded he did to attempt to draw press attention to his claim, was an inaccurate, inappropriate and misleading report of his claim. He did not have the benefit of the Tribunal’s judgment at that point, but he did know, that it had not once, featured as a premise for a complaint about the use of that phrase during the many grievances he had initiated and was never a part of his race claim at the Tribunal – in stark contrast to his stand-alone grievance about the use of the term ‘race card’. The claimant was highlighting one phrase which appeared in one document amongst several thousand which did not, in reality, form any part of his claims.(c) The Tribunal has concluded that the claimant’s assertions to the Tribunal about what he had discussed with the Legal officer had been dishonest (paragraph 180). This issue was aggravated by the risk of that discussion being tweeted about and thus appearing in a public domain.(d) The Tribunal has already commented above on the claimant’s persistence in refusing to accept that non-protected characteristic harassment was actionable, despite the respondent’s policies saying otherwise and wellknown principles of bullying and harassment in the workplace. The claimant only accepted this in closing submissions. The Tribunal had commented in paragraph 175: The Tribunal found that on any reasonable reading/interpretation of the respondent’s policies, with well-known principles of bullying and harassment in the workplace, the claimant’s evidence in this regard had been remarkable and insincere.(e) The Tribunal repeats its conclusion above in relation to the protected disclosures claims having no reasonable prospects of success. More specifically, in relation to whether the claimant had conducted the proceedings unreasonably, it was of some concern to the Tribunal that the claimant had not sought disclosure beforehand and/or could not point to when he had requested disclosure, he was instead seeking disclosure whilst the Hearing was progressing before announcing on day 10 of the Hearing, 39 of 44 that the document he placed reliance upon was altogether not before the Tribunal.(f) On day 1 of the Hearing, the claimant wished to admit a document he said the respondent had omitted from the Bundle. This was the grievance appeal (against the rejection of his first grievance against Dr Tyler) which the claimant said, had overturned the finding that his grievance against Ms Griffiths-Jones was vexatious. When the letter of 5 April 2019 was seen by the Tribunal, it did not support this assertion at all. The Tribunal found this was plain and obvious, in fact it was expressly not adjudicated on as part of the grievance appeal (paragraph 170).(g) The respondent’s application placed some reliance on the claimant’s request for documentation and non-agreement of the Bundle. It was a key part of the claimant’s assertions too, such that he spent a vast amount of time in oral submissions (at the Costs Hearing) about the unagreed Bundle. The fundamental flaw in the claimant’s assertions was that although he produced a supplementary Bundle of around 200 pages, it was not, save on one occasion, ever referred to by him at all through the 12 days (or by any other witness in the proceedings). Thus, by that reason alone, it could not have had any relevance.(h) On day 10 of the Hearing, the claimant applied to amend his claim to add new allegations of direct discrimination, harassment and victimisation. This was refused as the balance of injustice lay firmly against granting the amendment. The Tribunal commented that the application could have been made a lot sooner and at least since witness statements were exchanged on 21 December 2021 (almost 2 months previously).(i) The claimant turned down an offer of £50,000 in settlement of his claims. The claimant had then lost each head of claim. It was fair to say, the contest was not even close. Of all the many allegations of detriment/discrimination, only in respect of one allegation did the burden of proof shift although thereafter, the claim failed comprehensively. This was not a case where the claimant could argue he wanted his day in Court to get a declaration. That would only be a sustainable argument, if for example he had succeeded and secured an award of £50,000 or less, but was arguing that it was reasonable to turn it down because it was not accompanied with an admission of liability. That matrix simply didn’t arise. All of the respondent’s Costs claimed post -dated this offer. 40 of 44[125]In pursuance of the foregoing analysis, having regard to the totality/ cumulative effect of the claimant’s actions, the Tribunal was satisfied that the claimant had acted unreasonably in relation to the manner in which he had conducted the proceedings. The sheer volume of instances and the nature of them, which included the claimant being misleading, insincere and dishonest, meant the threshold for the making of a Costs Order was met. As the threshold for making of a Costs Order has been met in respect of each claim under both applcations, should the Tribunal exercise its discretion to make a Costs award?[126]The Tribunal first considered if it should have regard to the claimant’s ability to pay and concluded that it was reasonable and appropriate to do so having regard to the level of the claim for costs.[127]The Tribunal then had regard to the claimant’s means and concluded that the claimant had 2 properties, mortgage free, which had a combined equity of not less than £900,000 and up to £1,200,000. Taking a midpoint, the Tribunal concluded a valuation of £1,150,000. The Tribunal noted that the claimant’s valuation of his London property was at the very least 175% undervalued.[128]The claimant’s income is such that he receives 2 pensions of £1181.80 and £755.96 and rental income of £840.50, net of management fees. The claimant’s expenses would reduce by £235 per month as the claimant confirmed, in cross examination, but not on his statement of means, his ‘LSBU settlement’ monies (in relation to Costs payable to the respondent of a separate Civil claim), would cease in January 2023, taking his surplus income to £979.47.[129]The claimant also had savings of £33,223 and access to a separate pension fund of £113, 962, though subject to some deductions if accessed. He had not disclosed either of these in his statement of means.[130]The claimant lives alone, he has no dependents and expects to do consultancy work in the future. 41 of 44[131]Whilst the claim for costs was significant, the Tribunal concluded that the claimant’s means were such that the claim could be met, without causing hardship.[132]The Tribunal had regard to the claimant being a litigant in person. The claimant had however sought the advice/support of a partner in a law firm in Manchester, with whom he said the claim had been drafted. During the Hearing, he also made reference to having the benefit of employment law advice from a friend or friends who were employment law barristers. The Tribunal also concluded that the nature of the claimant’s written submissions for both the liability hearing and the Costs Hearing was that it was more likely than not that he sought or been provided with legal advice. His submissions had multiple references to case law which the Tribunal concluded went beyond ordinary internet-based research.[133]Notwithstanding the legal support the claimant had received, ultimately, the claimant did represent himself. The Tribunal considered that it would not be right to judge the claimant by professional standards. However, in assessing whether the claimant’s lack of experience or objectivity as a litigant in person had contributed to the reason why the threshold for costs above and been met, the Tribunal concluded it had not; the threshold for costs was met by the claimant’s own desire to continue and in fact externalise his internal campaign against the respondent, evidenced through grievance after grievance, appeal after appeal which he had still wished to continue post dismissal appeal. It was likely that the proper context of his workplace issues had not been made known to his family or friends and any legal advice from his support group would have been affected by his own lack of transparency rather than objectivity.[134]The claimant did put forward his ill health to mitigate against the making of a Costs Order. He said that in November 2018 he was taking medication for severe migraines (Sumatriptan). Around the same time, he was taking medication for back pain (Naproxen). He had medication for tension headache in March 2019 (Co-Dydramol and Co-Codamol), he had medication about 2 years ago (around September 2020) for insomnia (Promethazine), two different medications for depression in March and April 2021 (Sertraline and Diazepam) and 2 injections for pain in his left shoulder (Cortisone) 6 months ago and 1 year ago. The Tribunal noted that the taking of this medication was both during his employment around the time of the beginning of the issues, before they had escalated and others 42 of 44 during the course of this litigation. There was no evidence before the Tribunal that there was a causal connection with any culpability or wrongdoing on the respondent’s part and no evidence that the claimant’s health had contributed to the bringing of the claim or the manner in which he had conducted the proceedings. The letter from Mrs Alison Taylor in particular was rejected by the Tribunal because it was inconsistent with the Tribunal’s findings and conclusions in the Liability Judgment and in this Judgment. The Tribunal did conclude however, there was likely to have been some impact on the claimant’s health because of the workplace dispute and the because of the litigation. The Tribunal concluded, in principle, that it would be reasonable and proportionate to exercise its discretion to discount any Costs Order by a small amount or percentage to reflect this.[135]The Tribunal had regard to the respondent seeking to limit its costs claim to costs incurred from October 2021 onwards only. It had foregone Costs in the sum of £67,000. The respondent had also not claimed the Costs since the making of the Costs application, included the Costs for the 2-day Costs Hearing.[136]The Tribunal also had regard to the considerable non-financial management and academic time which had been expended on this matter both before (and after) the litigation commenced. The claimant had in fact submitted his own estimate of the cost to respondent pre-litigation in the sum £470,000 (paragraph 143 of the Liability Judgment).[137]In pursuance of the foregoing analysis, the Tribunal concluded unanimously that it should exercise its discretion to make a Costs Order. Amount of the Costs Order[138]The amount of the Costs Order is the full amount of the costs sought which the Tribunal concluded was at the most around 72% of its total legal costs (or less than that if the legal costs not sought since the making of the Costs application, including the Costs Hearing, were factored in). The Tribunal repeats its conclusions above in relation to the claimant’s means. As a result of the respondent not seeking its full costs by a significant percentage, the Tribunal concluded that this off-set any reduction the 43 of 44 Tribunal was prepared to make to reflect some impact on the claimant’s health whilst employed and/or whilst bringing the claim.[139]The Tribunal concluded that by reason of the claimant bringing claims which he knew, from the outset, had no reasonable prospects of success and/ or alternatively by reason of the conclusions above in relation to manner in which the proceedings were conducted, which, pursuant to Yerrakalva, the Tribunal did not need attribute to particular costs incurred, the claimant should pay the respondent’s Costs of £174,141 inclusive of VAT, subject to assessment. As the sum to be assessed is significant and because it is much more commonplace for Costs Assessment to be undertaken in the County Court, with the attendant experience of doing so, the Tribunal considers that is where the assessment should take place.