Mr F Lamptey v Transport for London: 2300802/2018 and others

EMPLOYMENT TRIBUNALS

Case No 2300802/2018, 2204546/2018

Between

Mr F LampteyClaimant

Transport for LondonRespondent

Before

Employment Judge Hyams-Parish

In person for claimant

Ms R Thomas (instructed by Counsel) for respondent

Date 1 November 2024

JUDGMENT

The claim of unlawful deductions from wages arising from non-payment of salary during the period from November 2017 to the Claimant's dismissal are struck out as they have no reasonable prospects of success. The Tribunal does not have jurisdiction to hear the breach of contract claim pleaded in claim form number 2204546/2018 and therefore this claim is dismissed. All claims of discrimination occurring prior to 11 August 2017 are dismissed as they are out of time and the Tribunal does not have jurisdiction to hear them.

REASONS

Introduction

[1]The Claimant has issued four separate claim forms in the Tribunal as follows: Number Claim 2300802/2018 (“CF1”) Indirect discrimination (s.19 EQA 2020) Health and safety detriment (s.44(1)(d) and (e)) ERA 1996 Harassment (s.26 EQA 2010) Failing to make reasonable adjustments Victimisation (s.27 EQA 2010) 2204546/2018 (“CF2”) Unlawful deductions from wages (s.13 ERA 1996) Breach of contract 2304005/2018 (“CF3”) Unlawful deduction from wages (s.13 ERA 1996) Wrongful dismissal (notice pay) Victimisation (s.27 EQA 2010) 2304163/2018 (“CF4”) Unfair dismissal (s.98 ERA) Automatic unfair dismissal (s43B and s.101 ERA 1996) Victimisation (s.27 EQA 2010)

[2]The Respondent invited the Tribunal at today’s hearing to do the following:(a) Strike out the unlawful deduction from wages claim arising from the alleged non-payment of salary for the period between November 2017 and the Claimant's dismissal;

(b) Dismiss the breach of contract claim in CF2 as the Tribunal does not have jurisdiction to hear it; and

[3]Whilst the focus of the applications were on claims pleaded in CF1 and CF2, the Tribunal noted some repetition of these claims in CF3 and CF4.

Evidence

[4]The Tribunal heard evidence from the Claimant and Ms Ejenavi Agbonkpolo on behalf of the Respondent in relation to matters relevant to the applications. Both witnesses had prepared a short witness statement which stood as their evidence for the hearing and they were both cross examined by the opposing party.

[5]Counsel for the Respondent had prepared and provided to the Tribunal a skeleton argument.

Findings of fact

[6]On 25 July 2014, the Claimant underwent surgery to repair his Achilles tendon. Following surgery, the Claimant’s ankle was in a cast and he was signed off work. The Claimant said that he informed his then manager, David Walker, that his recovery could be up to a year.

[7]In the months that followed, the Claimant says that pressure was placed on him to continue to perform his role when he was not fit to do so. He alleges that he was forced back to work. No findings are made by the Tribunal in respect of such issues.

[8]On 2 April 2015 the Claimant raised a grievance with his employer complaining about the conduct of Mr Walker and Mr Keogh (Mr Walker’s line manager). He complained, inter alia, of bullying and harassment, ignoring medical instructions, breach of duty of care and breach of health and safety. By this stage, Mr Walker had left the Respondent's business on 13 March 2015.

[9]The Claimant received an outcome to his grievance during a meeting on 9 September 2015 and this was confirmed by letter dated 14 September 2015. Certain of the Claimant’s complaints were upheld and others were not.

[10]The Claimant said in evidence that in or about April 2016 he was diagnosed with Irritable Bowel Syndrome (“IBS”) together with depression and anxiety disorder. The Tribunal did not view any medical evidence as part of this hearing and makes no finding as to whether the Claimant was at all material times a disabled person within the meaning of the Equality Act 2010. This issue is currently contested by the Respondent.

[11]On 29 April 2016 the Claimant raised a further grievance. On 6 May 2016, Nick Cooper wrote to the Claimant informing him that as he had repeated matters previously investigated and dealt with as part of his April 2015 grievance, that the matter would not be re-opened. The Tribunal was informed that Mr Cooper left the Respondent's employment in 2016.

[12]On 11 August 2017, over a year later, and as a consequence of a reorganisation of the Respondent business, the Claimant’s role was changed to Finance Business Partner and he was required to move from the 6th floor, where he was then based, to the 7th floor of the same building. This decision was conveyed to the Claimant by Pritesh Patel and Mathew Driessen.

[13]The Claimant objected to what he considered as the imposition of a new role and refused to move to the 7th floor as he said it would trigger stress associated with his disability. Asked by the Tribunal why the Claimant would not move to the 7th floor, he said, in terms, that on the 6th floor he was working with a team he enjoyed working with and that on the 7th floor there were people who had dealt with and been involved in his previous grievance and, to use the Claimant's words, “had been involved in a campaign of discrimination against me”. The Claimant said that a move to the 7th floor would exacerbate his disability. The Tribunal makes no findings on these issues.

[14]When asked who he objected to on the 7th floor, the Claimant named a number of people including Tim Keogh, Tim Goode, Neil Guy and Muriel Purkiss.

[15]On 13 October 2017 Mr Patel informed the Claimant that he could face disciplinary action if he did not attend for work on the 7th Floor as instructed.

[16]No formal grievances were raised after 29 April 2016, until 16 October 2017 when the Claimant submitted a further formal grievance. That grievance, which was included in the bundle of documents for the hearing, contained references throughout to breaches of legislation and also referred to case law. Indeed, it was difficult for the Tribunal to identify what the factual complaints were. The Claimant said that he obtained a template letter from the internet which he used as a basis for his grievance.

[17]Following the submission of his grievance on 16 October 2017, the Claimant went home as he said he was not feeling well. He subsequently submitted a sick note for the period to 31 October 2017 stating, “recurrence of abdominal problems and chest pains due to stress at work”.

[18]The Claimant raised a further grievance on 20 October 2017. In this grievance, the Claimant complains, in broad terms, about a failure to make reasonable adjustments and to safeguard his health and safety.

[19]The Claimant's grievance was investigated by David Knight, Head of Finance, and someone who had not been involved in the Claimant's previous 2015 and 2016 grievances. The grievance outcome, relayed to the Claimant by letter dated 20 December 2017, was that his grievance was not upheld.

[20]On 21 December 2017, the Claimant wrote to the Claimant to explain that the adjustment he required was to be kept in his then “existing role” and to work on the 6th floor.

[21]The Claimant appealed against the grievance outcome by letter in January 2018. Amanda Hopkins, Head of Business Strategy, was appointed to hear the appeal. The outcome, relayed to the Claimant by letter dated 10 May 2018, was that the appeal did not succeed.

[22]The Claimant did not attend work between 17 October 2017 and his dismissal. Apart from the initial period when he provided a sickness certificate, the Claimant accepts that he was not sick but that he was asserting what he claimed to be his rights under s.44(1)(d) ERA. The Respondent says that he was absent without leave. The Claimant believes he was entitled to payment of salary during such absences; the Respondent contends that as he was absent without leave, he was not entitled to any payment of salary.

[23]The Claimant presented the Claims to the Tribunal on 5 March 2018 (CF1), 11 May 2018 (CF2), 10 November 2018 (CF3) and 19 November 2018 (CF4).

[24]Asked why the Claimant did not bring claims following his 2015 or 2016 grievances he said that he approached a union and he asked whether he could bring a claim at that point. He was informed that he was time barred at the point that the union came back to him, but he didn’t check that advice himself.

Legal principles

[25]Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations sets out the following power to strike out:(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

[26]When considering whether to strike out, a tribunal must(a) consider whether any of the grounds set out in rule 37(1)(a) to (e) have been established (first stage); and

(b) having identified any established ground(s), the tribunal must then decide whether to exercise its discretion to strike out, given the permissive nature of the rule (second stage).

[27]Section 48 Employment Rights Act 1996 (“ERA”) sets out the time limits for detriment claims brought under s.44 ERA as follows: (3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer [ , a temporary work agency or a hirer ] shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

The evidence

[28]Section 123 of the Equality Act 2010 sets out the time limits for bringing claims as follows:(1) [Subject to sections 140A and 140B] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

[29]Guidance on what constitutes a continuing act was provided in the case of Hendricks v Metropolitan Police Commissioner

[2003] IRLR 96

which held that the question is whether that was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.

[30]It is clear that the granting of an extension of time under s.123 EQA should be the exception rather than the rule (Robertson v Bexley Community Centre

[2003] IRLR 434

). The factors that may be taken into account are broad but may include(a) the length and reason for the delay;

(b) the extent to which the cogency of the evidence is affected by delay;

(d) the promptness with which the Claimant has acted on steps taken to obtain advice; and

(e) the balance of prejudice between the parties. This does not represent a mandatory checklist.

[31]The right not to suffer an unlawful deduction from wages is set out in s.13 ERA which provides as follows:(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion. Analysis and conclusions Strike out

[32]The Tribunal concluded that the claim for unlawful deduction from wages arising from the non-payment of wages during the period when the Claimant stayed at home to assert what he claimed to be his right under s.44 ERA had no reasonable prospects of success. There was nothing contained in any documents produced to the Tribunal giving an entitlement to payment in such circumstances or where an employee is absent without leave. The Tribunal considered that the Claimant would have no reasonable prospects of success in a claim for unlawful deduction from wages, given the requirement under s.13(3) ERA that the sums deducted must be “properly payable”. The Claimant was informed that this was quite separate to claiming such sums as compensation for a detriment claim. In the circumstances it was right that this claim should be struck out. The Tribunal considered the fact that strike out is a draconian measure, not a power to be exercised lightly, but the Tribunal considered that this was one of those cases where a strike out was the correct approach to take.

[33]The Tribunal concluded that it had no jurisdiction to hear a breach of contract claim given that it was not a sum that was outstanding on the termination of the Claimant's employment bearing in mind that the Claimant's employment had not ended when CL2 was submitted. Accordingly, the Tribunal decided that this claim should be dismissed. Continuing act

[34]The question the Tribunal asked itself was whether the allegations or acts of discrimination between 2014-2016 formed part of a continuing act of discrimination ending on the date of dismissal.

[35]The Tribunal concluded that it was dealing with two quite distinct and separate groups of allegations: those detailed in the grievances in April 2015 and 2016 and those which were the subject of the grievances starting in October 2017. In the Tribunal’s view the two groups of allegations were not sufficiently connected such as to satisfy the Tribunal that there was a continuing act. Factors which the Tribunal considered were important in reaching its decision included:(a) The fact that different people’s actions were the subject of complaint by the Claimant in each group of allegations;

(b) The time period that had elapsed between the two groups; and

(c) The subject matter or trigger for the complaints in April 2015/2016 was very different to that which triggered the complaint in October Extension of time

[36]The Tribunal then turned to the question whether it was just and equitable to extend time to allow the Claimant to bring claims of discrimination which arose prior to 11 August 2018. The Tribunal concluded that it was not just and equitable when it considered the following factors:(a) The Claimant did not present very persuasive or good reason for the delay. The Tribunal did not find the Claimant's evidence credible that he had not researched time limits when he clearly presented a grievance which was full of legislation and case law and therefore, he was familiar with looking up legal provisions;

(b) The Respondent would suffer prejudice because their witnesses would need to give evidence relating to matters which were very old (up to five years). The Tribunal accepts that some of these witnesses have left the employment of the Respondent.

(c) The balance of prejudice, bearing in mind that a decision not to extend time leaves a number of significant claims intact, and also what is said at (b) above, was clearly in favour of not allowing the extension.

[37]The conclusion reached by the Tribunal means that all discrimination and detriment claims arising prior to 11 August 2017 are out of time and are dismissed as the Tribunal does not have jurisdiction to hear them. Noting the Respondent's contention that any acts of discrimination arising prior to 5 October 2017 are prima facie out of time, the parties were informed that any time issues in respect of allegations of discrimination or detriment arising between 11 August and 5 October 2017 should be dealt with at the final hearing. ………………………………………………

[1]The claimant brings claims of discrimination arising from disability, failure to make reasonable adjustments, indirect disability discrimination, disability-related harassment, victimisation, health and safety detriment under section 44 Employment Rights Act 1996, automatic unfair dismissal (health and safety), automatic unfair dismissal (whistleblowing), ordinary unfair dismissal and failure to pay notice pay.

[2]The respondent does not accept that the claimant was a disabled person and denies all claims.

[3]The issues in this case, as set out in an agreed List of Issues, are reasonably complex and the evidence was extensive. At the heart of the case was a restructure in which the claimant was not allocated the job he applied for, and was placed into a new role located on a different floor to the one he was then working on. He left the workplace and refused to return, claiming that the workplace he was being asked to work in presented a serious and imminent danger to his health. This led to the respondent commencing a process which eventually led to his dismissal for breakdown in trust and confidence.

The Issues

[4]Substantial time and effort has been expended by the parties and by various Employment Judges in finalising the List of Issues to be determined in this case. The history is set out at paragraphs 19 to 34 of the Case Management Summary of Employment Judge Burge of the preliminary hearing on 10 July 2024.

[5]In short, Employment Judge Burge determined that the issues the tribunal would determine whether those set out in the List of Issues annexed to her case management summary. These are annexed below. In closing written submissions the claimant appeared to seek to add further issues or modify issues (for example seeking to argue that he had a further impairment, namely PTSD, and setting out different PCPs in relation to his reasonable adjustment claims) which were not part of the agreed List of Issues. We have determined the issues as they appear in the annexe below.

The procedure

[6]This matter has had a complex procedural history, most of which it is not necessary to set out. Adjustments

[7]At a ground rules hearing on 24 June 2024 Employment Judge Burge made orders setting out adjustments which would be put in place for the final hearing. These included that the hearing would be by video; that an intermediary would attend and assist the claimant by taking notes and raising where it appears there may be communication difficulties. The claimant would give evidence and ask questions of witnesses by typing into the text box of the CVP chat box. The claimant would put his hand up when he would like to type. Ten minute breaks would take place every 30 minutes when the claimant was giving evidence, and every 45 minutes to an hour when the respondent’s witnesses were giving evidence. Further breaks could be offered on request. Questions to the claimant were to be in short sentences in simple form. The respondent provided sample questions to the intermediary prior to the hearing, for the intermediary to make any recommendations on changes. These questions were not shared with the claimant. The intermediary was to raise with the judge if there was a concern that there were barriers to the claimant’s communication. Closing submissions were to be in written format, but there were no oral submissions. A separate CVP “room” was made available for the claimant and the intermediary during the course of the

hearing.

[8]At the further case management hearing on 10 July 2024 Employment Judge Burge confirmed that no further adjustments were required by the claimant. The above adjustments were implemented during the course of the hearing before us.

[9]At the start of the hearing before us Ms Holden, the intermediary, told us that she had nothing to add to what had been ordered by Employment Judge Burge in respect of adjustments. At one point in the hearing the claimant asked, as a further adjustment, for all of the questions counsel was asking in cross-examination, to be typed out in full for him. We sought Ms Holden’s views on this, and she said it would not be something that she would recommend. Such an adjustment would also substantially add to the length of the hearing. We did not consider it appropriate to make this further adjustment. Further issues

[10]On the morning of 15 July 2024 the claimant emailed the tribunal raising three issues which had arisen, and which he said placed him at a disadvantage. Issue 1

[11]The claimant said that the order of Employment Judge Burge of 10 July 2024 stated that the hearing bundle was finalised. He said that on 12 July 2024 the respondent provided further disclosure of documents he had been repeatedly requesting. He therefore repeated his application for specific disclosure.

[12]The respondent said that the claimant had raised a specific matter in his witness statement, the respondent had made checks on that matter and, pursuant to the continuing obligation to disclose relevant material, disclosed three pages of documents. This had been put at the end of the bundle. The claimant confirmed that he was not looking for this document to be removed from the bundle.

[13]The respondent referred to the claimant’s repeated applications for specific disclosure which had been refused. I myself had refused an application for specific disclosure on 13 May 2024, in which I referenced previous unsuccessful applications. The claimant had made further applications to Employment Judge Burge who had also not granted applications. The respondent considered that it had properly disclosed all documents necessary to dispose of the issues in this case.

[14]The claimant responded that that the respondent had not provided any disclosure prior to 2017 which was relevant to the issues before the tribunal.

[15]The renewed application to disclose by the claimant was simply a repetition of previous applications. We could not identify any document that it was necessary to disclose in order to dispose of the issues in this case. As we set out below, a previous tribunal has dismissed various of the claimant’s claims as being out of time and it was difficult to see the relevance of such historic documentation. Issue 2

[16]The claimant raised that he had not had the opportunity to provide page references in the witness statement he had exchanged. We gave the claimant opportunity to provide these page references, and suggested that he highlighted them in red font. Issue 3

[17]The claimant said that he disagreed with the respondent’s draft chronology. We told the parties that chronology is not evidence in the case, and that we were happy to use both parties’ chronologies. Transformation logs

[18]On the morning of day five the claimant made a specific disclosure application in relation to a full log of work stream issues which the trade union representatives and Ms Braganza, a HR representative, were working on in September and October 2017. The claimant said that this log was materially relevant to the protected disclosures he had made, and that the respondent had refused to disclose it.

[19]The tribunal made no order on this application, as it was not clear of the necessity of disclosure of this evidence to dispose fairly of the issues in the case. Nonetheless, we reminded the respondent of its duty of ongoing disclosure and asked them to investigate the matter to see if the documents could be located.

[20]The following day Ms Thomas informed us that the respondent was unable to locate any such documents. We did not consider it appropriate to make an order in respect of documents which appeared not currently to exist and the relevance of which was not clear. Mr Burgess’ evidence

[21]We used the remainder of day one and the morning of day 2 to read into the case. At 2 PM on day two the claimant raised a further issue, which had been raised before Employment Judge Burge on 10 July 2024. One of the respondent’s witnesses provided a witness statement but would not attend the tribunal because of work commitments. The respondent wished to tender his statement. The claimant had sent in a letter to the tribunal dated 9 July 2024 objecting to this course of action. He raised issues of a right to a fair hearing and to cross-examine the witness, issues about credibility and reliability of evidence, potential bias and partiality, precedent and legal standards, lack of exceptional circumstances and procedural fairness.

[22]The respondent did not add to its submission that Mr Burgess’s witness statement should be accepted by the tribunal as he was unable to attend because of pressure of work.

[23]We indicated to the respondent that we did not find the simple assertion that the witness was encountering challenging times at work helpful and we asked if he could be contacted to see if he could attend at some point during the trial window.

[24]This matter was not dealt with until day nine of the hearing when the respondent renewed its application for the tribunal to admit Mr Burgess’s statement. The respondent pointed to Rule 41 Employment Tribunal’s Rules of Procedure 2013 which says that the tribunal may regulate its own procedure and that the tribunal is not bound by any rule of law related to the admissibility of evidence in proceedings before courts. Ms Thomas also relied on Hovis Ltd v Louton UKEAT PA/1023/20/LA as authority for the proposition that it was an error of law for the tribunal to fail to consider evidence of a particular type unless it falls properly to be excluded from consideration because of the application of some rule of evidence or other established exclusionary legal principle. Ms Thomas submitted that there was no such principle justifying the exclusion of the evidence, and the proper approach would be to admit the evidence and for the tribunal to accord it such weight as is appropriate in the circumstances.

[25]We gave the claimant some time to consider the Hovis case and Ms Thomas’s submissions. After a break, the claimant submitted that the tribunal had not considered his application in respect of the transformation logs.

[26]We allowed Mr Burgess’s statement to be admitted into evidence, and explained to the claimant that it would be appropriate during his closing submissions for him to make representations as to what weight we should place on the statement. He did make such representations.

[27]In the circumstances we considered it appropriate to accord Mr Burgess’s statement little weight beyond his evidence confirming the existence of certain documents within the bundle, which we read. The evidence We were provided with a 1914 page bundle.

[29]The claimant provided a witness statement and gave evidence.

[30]The following provided witness statements and gave evidence on the claimant’s behalf:a. Mr L Addo;

b. Mr N Verissimo (former Accountant with the respondent);

c. Mr L Tsui (former customer service and administrative worker with the respondent).

[31]The following provided witness statements and gave evidence on behalf of the respondent:a. Mr P Doig (Group Finance Director);

b. Mr D Ho (Head of Finance for Asset Performance and Capital Delivery);

c. Mr P Patel (Head of Financial Planning Analysis);

d. Ms A Andrews-Corp (formerly Pateman) (Senior Finance Business Partner). We will refer to her in this decision by her maiden name Ms Pateman which she used at the time of the events under consideration;

e. Ms P Horgan (Senior HR Business Partner);

f. Mr D Knight (Head of Finance Elizabeth Line).

[32]Mr M Gregory provided a witness statement but did not attend to give evidence, as set out above.

[33]The hearing lasted nine days. During the course of the hearing it was envisaged that the parties would be in a position to give closing written submissions during the hearing window. As the hearing progressed this possibility became less and less likely. At the end of day nine (Thursday 25 July 2024) the evidence concluded. We made orders that the parties exchange and file with the tribunal closing submissions no later than 3pm Monday 25 July 2024 (as the tribunal would not be sitting the following day). We made a further order for the parties to exchange and file with the tribunal any reply by noon on Friday, 2 August 2024. This, admittedly tight, timescale would have allowed the tribunal to find sitting dates to deliberate in chambers reasonably quickly. On Monday, 29 July 2024 the claimant emailed the tribunal indicating that he was struggling to complete his written submissions and was suffering from tiredness and headaches. By email of the same day the respondent indicated that it was neutral to the respondent’s application. The tribunal granted the application and extended time to exchange written submissions to 5 August, and replies by 21 August 2024. Unfortunately the various commitments of the tribunal members did not allow the tribunal to reconvene in chambers until 21 and 22 October 2024. The facts Scope of fact finding

The facts

[34]The List of Issues makes clear that the tribunal will be determining whether various acts from 11 August 2017 to the date of the claimant’s dismissal, which was confirmed by an appeal outcome letter dated 26 October 2018, amounted to various discriminatory acts or detriments under various legislation. Additionally, the claimant relies on matters raised in grievances raised on 2 April 2015, 29 April 2016, 16 October 2017 and 20 October 2017 as protected acts. He also relies on disclosures of information he says that he made in September 2017 and October/November 2017 as being protected disclosures. We note also that on 25 February 2020 EJ Hyams-Parrish dismissed various discrimination claims occurring prior to 11 August 2017 as being out of

[35]In respect of protected acts and protected disclosures, the tribunal is to determine whether the acts or disclosures were protected under the respective legislation, and (broadly speaking) not to determine the truth or otherwise of assertions made by the claimant. It is then to determine whether the respondent subjected the claimant to the detriments asserted in paragraph 32 of the List of Issues (both from October 2017 onwards) because of the protected acts, and whether the reason or principal reason for his dismissal was because he made protected disclosures. To make such a determination does not require any substantial enquiry into the history of those acts or disclosures.

[36]It became clear on reading the claimant’s witness statement that he was seeking to introduce substantial amounts of “historical” evidence.

[37]Issues in the case do not exist in a vacuum, and a degree of background or historical information is often important in order to set a context and to allow a tribunal to make inferences which assist in the determination of discrimination and other complaints. However, Rules 2 and 62 of the Employment Tribunal’s Rules of Procedure 2013 (“ET Rules”) make clear that proportionality is an important consideration, and reasons given for a decision shall be proportionate to the significance of the issues.

[38]We have made findings of fact that we consider proportionate and necessary to determine the issues set out in the List of Issues.

[39]The parties have referred us to a substantial amount of evidence, which we have read. If we do not specifically refer to such evidence, this is not to be taken that we have not considered it. Introduction and background

[40]The respondent is a public body responsible for the transport network in London.

[41]On 30 April 2001 the claimant commenced employment with the respondent as an Assistant Unit Management Accountant.

[42]By 2014 the claimant was a Management Accountant. His manager at this point was Mr Walker, who was managed himself by Mr Keogh. In June 2014 the claimant was subjected to a Performance Improvement Plan by Mr Walker and Mr Keogh which he describes variously as false, unfair, incorrect and malicious.

[43]In July 2014 the claimant sustained an injury to his Achilles tendon which required surgery.

[44]The claimant has set out extensively in his witness statement his account of how his subsequent absence and return to work was handled by management. It has not been necessary or proportionate for us to make detailed findings about this issue.

[45]Of possible relevance is the fact that on 29 July 2014 Mr Keogh emailed the respondents occupational health (“OH”) advisory service setting out that the claimant had undergone surgery for a ruptured Achilles, was in a cast and that his doctors had initially advised the week off work but that the claimant had requested to work from home to meet deadlines for the team. He set out that the claimant was taking codydramol medication, and asked whether he could allow the claimant to work at home in the first week.

[46]On 30 July 2014 a consultant occupational medicine physician responded in writing setting out that there should be no medical reason why the claimant should not be able to engage in work, and that codydramol can cause drowsiness which may affect work, but the claimant should be aware of side effects and could take steps to work when he was able.

[47]In his witness statement (paragraphs 16 to 25) the claimant criticises Mr Keogh and the OH professional in the strongest of terms. He says that Mr Keogh gave false information, did not seek his consent and thus he was subjected to a medical intervention which was without valid informed consent and that it constituted the criminal offence of assault and battery. He said the OH physician failed in her duty to ensure that he was aware of material risks involved in any recommended treatment.

[48]We have seen the documents referred to in the claimant’s witness statement, and would comment that we can see nothing improper in Mr Keogh’s approach to OH or the practitioner’s response. The OH physician was not preparing a “medical report” for the purposes of the Access to Medical Reports Act 1988 as she was not responsible for the claimant’s clinical care, and consent under that Act was not required.

[49]On 2 April 2015 the claimant emailed a grievance notification to Mr Mitul (this was referred to as Grievance 1). The grievance was against Mr Walker and Mr Keogh. The claimant says that this was a protected act, and is set out in the List of Issues at paragraph 31.1. We will use the shorthand PA 31.1 to indicate this, and other protected acts. In short, the claimant complained about:a. His managers ignoring direct medical instructions following his operation;

b. His working consistently above his contracted hours;

c. Breach of duty of care in relation to a disregard for his physical and mental recovery from his Achilles injury in putting business needs above his physical and mental recovery;

d. Failing to have regard to health and safety at work, largely in relation to a lack of a workplace assessment and provision of equipment;

e. Being denied the ability to take contractual leave;

f. Being harassed in terms of being given a performance rating which he vehemently disagreed with.

[50]In cross-examination the claimant was asked whether he had said he had a protected characteristic when he made his grievances in 2015. He responded (all responses to cross-examination will be set out verbatim unless otherwise indicated) “i didn't say in 2015, i did in 2016”. He confirmed in his evidence that Mr Walker left the respondent’s employment in 2015, and that Mr Keogh had never been his manager, but that he had stopped working with him at some stage (it was put to him that this was November 2014).

[51]Mr Ghai investigated the claimant’s grievance, conducting fact-finding interviews with the claimant, Mr Walker and Mr Keogh and reviewing a substantial amount of correspondence and other documents. Mr Ghai produced an outcome report on 14 September 2015. In brief, Mr Ghai upheld the claimant’s grievance in respect of annual leave, and restored 12.5 days of annual leave to the claimant. He did not uphold any other element of the claimant’s grievance.

[52]The claimant appealed the grievance outcome, and his appeal was considered on 17 November and 15 December 2015 by Mr O’Brien, Head of Risk Management. Mr O’Brien sent the claimant an appeal outcome letter on 2 February 2016 dismissing the appeal. He found, having considered additional evidence from the claimant, that neither Mr Walker nor Mr Keogh ignored medical advice and did not find there had been a breach of the duty of care in respect of health and safety at work. He found that no medical certificate was presented by the claimant to the time of his injury, and that Mr Walker sought and followed occupational health advice about making appropriate reasonable adjustments. He said that at no time prior to the grievance did the claimant state he felt he was being pressured back into work or that his health and well-being were being affected. He recommended that the claimant should ensure that he fully understood the respondent’s Attendance at Work and Home Working policies. He recommended that the claimant engage with performance process to resolve any issues around his Performance Improvement Plan. He recommended that the claimant should reflect and act upon an offer made by HR to mediate with the claimant’s current manager on any new issues which may have arisen since the original grievance. The claimant was informed that the decision was final and ended that process. Grievance 2 – protected act

[53]On 29 April 2016 the claimant lodged a further grievance (Grievance 2) [178]. This was a reasonably lengthy document in which the claimant set out health and safety legislation, the Equality Act 2010, and case law. He indicated that the respondent was in breach of the implied term of mutual trust and confidence.

[54]The claimant claimed he had been unlawfully harassed under section 26 Equality Act 2010 by Mr Walker, Mr Keogh and Mr Gude. It is not easy to see from this grievance what conduct he is alleging against these individuals. However, he said that as a result of it he was isolated and anxious at work and was unable to go to certain parts of the office due to the high degree of stress caused by the bullying and harassment when he has been in situations where he had to interact with these individuals. He said that their conduct triggered a range of health problems including sleep apnoea and stomach issues for which he was receiving treatment. He said that his doctor was of the same opinion. He made it clear that he was no longer able to work with Mr Gude, but pointed out that he did not work directly with Mr Keogh and that Mr Walker had left the company.

[55]The claimant set out that he had been “unlawfully discriminated against, on protected grounds” because of his disability. He said that he was physically impaired due to his Achilles tendon injury and had a high degree of stress and anxiety during his convalescence and subsequent period. He set out difficulty he had concentrating, breathing, sitting still and said he was caused migraines, irritable bowel syndrome, rapid heartbeat, sleepiness, tiredness, fatigue, aches and pains and that his mobility was affected. He said that excessive workload and being subjected to a systematic campaign of bullying and harassment by the three individuals triggered a re-occurrence of a high degree of anxiety and stress. He spoke of adjustments, and said that he believed that “by reducing my workload and/or rendering my person with some assistance and support, to help me “cope with the demands” of my workload, would have and could alleviate the effects, which my impairments have had and are having on my occupational health”. He said that it would be good practice to undertake a proper assessment and to consult with him to identify hazards to minimise risks that were prejudicial to his health.

[56]The claimant set out that he was experiencing work-related stress. He set out that his doctor diagnosed this, citing a number of symptoms he said that it “would be conducive to discuss this with an occupational health practitioner to determine what “reasonable adjustments could be implemented to assist me”. He requested a stress specific risk assessment. He again cited his unreasonable workload.

[57]The claimant asserts that this grievance was a protected act (PA31.2).

[58]The claimant’s manager at the time was Mr Cooper. On 6 May 2016 Mr Cooper responded to the claimant’s grievance email to indicate that he was raising matters that had been previously dealt with under the grievance policy. He pointed out that the process was exhausted, and the matter considered closed. He attached a copy of Mr O’Brien’s outcome letter for the appeal. We would observe that, notwithstanding the fact that the claimant had added Mr Gude to his latest grievance, Mr Cooper’s conclusion that this was, effectively, a repeat of the earlier grievance, was reasonable. The claimant appears to have taken no further action on this grievance.

[59]The claimant confirmed in oral evidence that Mr Gude had been his manager for some time in 2015. He confirmed that Mr Gude was in the same team as him in 2016 when he put in the April 2016 grievance. He confirmed that he stopped working with Mr Gude in 2017. The restructure

[60]In early 2017 the respondent took the decision to restructure the Finance Department as part of a wider reorganisation. This was referred to as Finance Transformation (or just the Transformation), and its purpose was to make cost savings, ensure appropriate responses to business requirements, introduce efficiencies reducing duplication of activity and promote collaborative working.

[61]Prior to the restructure, the respondent’s Finance team comprised five teams, one of which was the London Underground (“LU”) team, which sat within a business area called the Chief Operating Officer (“COO”) area. This was the team that the claimant worked in. He was physically located on the 6th Floor of Palestra Building.

[62]The Transformation restructure created a single integrated finance function under the Chief Finance Officer, and rather than sitting within separate areas of the business, all members of the finance team would sit within the finance function. It was proposed that this would create closer working relationships between members of the finance team. The Transformation programme also separated responsibilities which Senior Management Accountants and Management Accountants were responsible for.

[63]The respondent carried out an Equality Impact Assessment (“EIA”) prior to implementing the Transformation [196-201] which specifically addressed the impact on disabled persons [200]. This EIA flagged up that it was difficult to determine whether there would be any impact upon disabled people, but that any impact identified during the process would be closely monitored and mitigating action would be taken as necessary. During the course of cross-examination, the claimant’s case appeared to change, and he appeared to suggest that no individualised assessment was made of his own disability and needs. The claimant’s contention that an EIA had not been carried out is not accepted by the tribunal.

[64]On 10 February 2017 the claimant was emailed by Mr Nunn, Chief Finance Officer, to inform him that his role, Management Accountant within Network Operations & Resilience, was within scope of the Transformation restructure. He was provided with access to the business case and supporting documents and the Restructuring and Staff Reductions Policy which would be applicable to the proposed restructure. He was informed that consultation with the trade unions had commenced and that a wide range of information would be shared with them. He was provided with contacts who could assist him with further guidance.

[65]The respondent prepared a guidance document on how to apply for a role in a selection pool. It advised candidates to complete an Expression of Interest (“EoI”) form, to complete a supporting statement, to complete a two page CV and to complete an online test. Guidance was given on how to complete each of these by 30 June 2017. In terms of the EoI form, the guidance made clear that the candidate should indicate which role they wished to be consider and that they “can also include any reasonable adjustments you need and flexible working arrangements you currently have in place”. It made clear that the respondent could not guarantee that a candidate would be appointed in a role they preferenced. These criteria were agreed by the unions. What was agreed was that placement into new roles would be based on individuals’ EoIs, their CVs and the results of online tests.

[66]The claimant was on leave during part of June 2017, and he sought, and was granted, an extension of time to 14 July 2017 to complete his EoI form.

[67]The claimant was provided with an EoI form relevant to “PB3 Finance (Pool 3A)”. The form indicated that there were 142 proposed new roles. There were roles within various “areas” (such as London Underground, or Surface), and within each area there were separate “domains” (such as, under Surface, “Rail Overground” or “Trams”). The form allowed a candidate to indicate a first preference and a second preference, setting out which role they wished to preference, which area, and which domain. The candidate could specify three different domains in order of preference. Within the London Underground domain were 36 roles, two of which were identified as “Finance Business Partner LU: Network Operations Support”.

[68]The claimant filled in his form and submitted it on 14 July 2017. His form indicated a preference for the Finance Business Partner role within the London Underground area, and a preference to only one domain, Network Operations Support. He did not indicate a second preference. Essentially, he only expressed an interest in one role (for which there was indicated two vacancies in the EoI form).

[69]Section 3 of the EoI form allowed the candidate to indicate whether he or she needed reasonable adjustments for the online test or assessment, and if so what they were; and whether they needed reasonable adjustments for the role, and what they were. A link to the intranet was provided for further information on reasonable adjustments. The claimant left this box blank. However in the box below, relating to flexible working, he indicated a requirement to work from home on Fridays for childcare reasons.

[70]On 21 July 2017 the claimant scored 86 in his online test, which placed him in the 55th percentile in terms of scoring. The test results were broken down further and appeared at [1387]. His supporting statement and CV indicated that he was a part qualified accountant.

[71]On 18 July 2017 “Employee A” scored 97 in her online test, which placed her in the 91st percentile. Her CV and supporting statement indicated that she was a CIMA qualified accountant.

[72]A placement meeting was chaired by Mr Doig on 27 July 2017 during which EoIs, supporting material and test results were considered. The candidates were assessed for their suitability for placement into roles, where possible placing them into roles for which they had expressed a first preference. Where there was more than one individual applying for the same role, the suitability for the role was assessed on supporting statements, CVs and test results. Candidates were placed into roles at this meeting, and the process was signed off by the respondent’s Chief Finance Officer.

[73]Employee A was unsuccessful in her application to her first and second role. Employee A was placed in the role of Finance Business Partner LU: Network Operations Support as it was the most similar to her preferred roles. Her scores in the online test and her experience and qualifications set out in her CV was considered stronger than the claimants. We accept the evidence of Mr Ho that Employee A worked on the 7th floor of Palestra when she took up her role. The claimant did not challenge this, nor gave any evidence to the contrary.

[74]The claimant was placed in the role of Finance Business Partner - LU Planning. As with approximately one third of the employees affected by Transformation, he was not placed in his first preference. Health conditions were not taken into account when placing employees into roles, and Mr Doig was not aware of any health condition of the claimant’s when placement decisions were made. The claimant had not indicated any disability or required adjustments in his EoI, and we accept Mr Doig’s evidence and that such did not influence any decision making.

[75]On 11 August 2017 the claimant was sent a letter by Mr Kilonback, the Director of Corporate Finance informing him that he had been appointed to the role of Finance Business Partner, and he was provided a link to his new job description.

[76]The same day the claimant emailed a number of people indicating that he was not happy and strongly disagreed with the decision not to allocate him to the specific “roles” (sic) he had preferenced and to move him to a different side of the business. He did not believe “it is in my best interests, LUL’s interests or the business partners that I currently work with interests specifically considering the depth of knowledge and direct expertise I have in dealing with the complexity of this area”. He asked for the decision to be reviewed. He made no reference to any health condition or any adjustments that would require such a review or placement. Management discussions with claimant about restructure

[77]Mr Ho had recently been appointed Head of Finance – Network Operations. Having received the claimant’s email, he agreed to speak to the claimant and made Mr Dreissen, Head of Operations – Finance, aware of this by email cc’d to the Head of Benchmarking & Value, Aydin Sheibani. Aydin Sheibani responded to this email indicating that the claimant had been late with his submission without first agreeing an extension, and had put the same role as his first and second preference which did not give the respondent a lot of options. He described the preferencing process which started by mapping individuals into their first preference, based on the role, area and sub-domain. Where there were multiple individuals preferencing a single role, the respondent determined the best fit the for the role based on knowledge, skills and experience. For unsuccessful individuals, the respondent went through other subdomains within their first choice to see if those roles were available, and if they were not, to determine if they were a better fit than the individuals who had made the sub domain their first choice. Where individuals were still not mapped into roles, the respondent looked at their second choice of role. Where individuals still would not be mapped onto roles, they were placed in a role which best matched their skills, knowledge and experience.

[78]Mr Ho met with the claimant around this time (mid August 2017). He explained to the claimant that all members of the finance team had been moved into new roles as part of the restructure and that his knowledge and expertise would be used in the new role. The claimant explained that he wanted to work within his current area of Network Operations and asked for the rationale of being allocated into the role he had. Mr Ho said he would agree to look into this. He also agreed to look into whether a second Finance Business Partner – LU: Network Operations Support role, which had been indicated in the original restructure papers, may still be vacant. The claimant said he did not want to move roles due to issues he had experienced with other members of staff which he said had not been resolved, and due to some health concerns about which he did not go into any detail. Mr Ho was not given any specific information allowing him to understand why the claimant would find a move into the new role difficult. Mr Ho explained to the claimant that if it was not possible for him to move into his chosen role, the claimant could work with Mr Patel, Senior Business Finance Partner, who would assist with the transition into the new role. He also indicated that voluntary severance could be explored.

[79]The claimant’s case in his witness statement (paragraph 101) is essentially that the respondent admitted that it did not consider his disability or the impact of the changing working circumstances when deciding to move the claimant to a role he did not preference. He suggested this was unlawful discrimination. We accept the evidence of Mr Ho that the claimant, while mentioning health concerns and past issues, did not provide evidence or specific information about his health or particular difficulties. We also do not accept the claimant’s case that he was at the time asking for an EIA, either individualised or otherwise.

[80]Mr Ho emailed the claimant on 14 August 2017 suggesting an opportunity to run through the rationale of the decision. He indicated that the approach to the appointment considered a number of factors, including the claimant’s future development, the composition of future teams, domain knowledge, the new operating model and the need to share domain knowledge in the new function.

[81]On 22 August 2017 Mr Ho emailed the claimant [216] explaining that one of the two roles in the operations support team had been left vacant and there was not a complete mapping. He had a meeting with the claimant that same day and provided further explanations about this. The claimant in his witness statement (paragraph 102) says that Mr Ho confirmed to him during this meeting that there was a vacancy in the role (his existing job). Mr Ho’s evidence was that he told the claimant that the role had purposely been left vacant as it was envisaged that the second role might not be required. We accept Mr Ho’s evidence as it corresponds with the contents of the email Mr Ho sent to the claimant that day.

[82]On 5 September 2017 Ms Jackson, Head of Capital Programs Finance emailed the claimant to say she was looking forward to welcoming him into the new team, asking him if he would like to come to the seventh floor to see what his new role would entail. The claimant did not respond or attend the seventh floor to meet the new team. It was hoped that it could be explained to the claimant, and to the other members of the new team, that all members of the finance team would be sitting together on the seventh floor of the Palestra Building. It was explained that one of the main objectives of the Finance Transformation was to bring together the finance team, and that line management accountability for members of the team lay with the finance team itself rather than the parts of the business which members of the team supported. The importance of handover meetings to ensure a smooth transition into the new structure was also covered.

[83]Mr Patel was identified as the claimant’s new line manager. On 12 September 2017 one of the finance team informed Mr Patel that they had been unable to meet the claimant for handover purposes. The claimant was not sitting on the seventh floor. He was still sitting on the sixth floor in a restricted area which Mr Patel could not access. His contact details on the intranet were not up-to-date. On 12 September 2017 Mr Patel emailed the claimant to say that he understood the claimant had not been able to catch up with a member of the team in the last couple of days and the claimant had not attended a team meeting that day (without apology or explanation). He asked the claimant to please come to sit on the seventh floor that week and to update his contact details.

[84]On 13 September 2017 the claimant responded to Mr Patel’s email saying that he was not able to sit on the seventh floor for a number of reasons which remained unresolved and that HR were aware of. He said he had presented a number of different options and rescheduled meetings that were not attended. He said he had explained his non-attendance at the meeting telephone call to Mr Patel the previous Friday. He agreed to update his details.

[85]Mr Patel emailed Mr Ho on 14 September 2017 asking him to speak to the claimant about the need to have him on the seventh floor, and that he would pick up the matter when he returned from a week’s annual leave.

[86]Mr Ho spoke to the claimant on 14 September 2017. He explained that all Finance Business Partners were being asked to work on the seventh floor so they could all work together. He explained that the claimant was not able to move into his preferenced role in Network Operations Support and asked if there was anything he could do to help him transition into the role he had been assigned. During this meeting the claimant explained that he had raised a grievance previously against members of the finance team which he did not regard as being properly resolved. He felt that certain members of staff prevented him from working on the seventh floor. He explained that working on the seventh floor would be too stressful for him because of the previous issues and that this would impact on his IBS. Mr Ho agreed that he would look into the claimant’s grievance and that the claimant could continue to work on the sixth floor in the interim. Alleged protected disclosures

[87]Issue 50.1 of the List of Issues sets out that the claimant asserts that he made a protected disclosure during this meeting or to Mr Ho that “the Respondent had a legal obligation to complete an equality impact assessment on a reorganisation and that they had taken the decision to move him without carrying out such assessment”. In his witness statement at paragraph 110 the claimant gives evidence about this as follows: On 14.09.2017, I had another meeting with David Ho (229) in which I continue to reiterate the issues with ongoing TFL failures that I had made to him previously, to Pritesh Patel and to Steven Ellaby. As I had previously in 2016, the concerns raised as an assertion of a statutory right pursuant to s.44(1)(c) of the ERA 1996. This was the second verbal protected qualifying disclosure I had made in the public interest.

[88]The claimant also says that he made disclosures to Ms Braganza in HR during a telephone call that day which he deals with in paragraph 111 of his witness statement as follows: On 14.09.2017, I also spoke directly to Zemira Brangaza and reiterated the systemic failures of TFL to conduct disability impact assessments, risk assessments and reasonable adjustments and how this failure was particularly to the disadvantage of employees with disclosed disabilities like myself. She informed me that she would investigate how the allocation of roles was made without due consideration of disability and come back to me.

[89]It is not easy making findings of fact about an in-person discussion and a telephone call seven years ago. We also make the observation that we will be determining the issue as set out in the List of Issues.

[90]In respect of the alleged disclosure to Mr Ho, Mr Ho was interviewed on 21 November 2017 [525] during the course of a grievance the claimant was subsequently to make. He was asked about conversations and meetings with the claimant in August and September 2017. Mr Ho did not say that the claimant had mentioned anything about obligations to conduct equality impact assessments. In evidence to this tribunal Mr Ho said that his recollection was that the claimant was focusing on his own interests rather than those of disabled people more generally.

[91]Given that the evidence in the claimant’s witness statement does not correspond with the case put in the List of Issues, and accepting the evidence put forward by Mr Ho, corresponding as it does with contemporaneous documents, we do not find that the claimant made the disclosure as alleged in the List of Issues.

[92]As regards the alleged disclosure to Ms Braganza, again she was interviewed during the claimant’s grievance [523]. She was specifically asked about her conversations with the claimant, opened she said: I have never met Frank. I had telephone conversations with him (beginning in either week commencing 4th September or 11th September 2017) at the end of the Transformation process because he wasn't happy about his placement, which was not his first preference. I advised that he should-speak to David Ho. He wanted to know why the placement panel weren’t aware of his health issues: The panel don’t take account of reasonable adjustments, placement decisions were based on skills..

[93]Although the claimant’s evidence in his witness statement is more closely aligned to the alleged protected disclosure, we find, on balance of probabilities, that the claimant would have been raising concerns about his own position rather than talking about equality impact assessments with Ms Braganza. We reach this conclusion because the claimant’s focus at the hearing before us appeared to be more towards his own individualised assessment rather than a broader disability impact assessment. In addition, the conversations he was having with Mr Ho also appeared, on the balance of probabilities, to be more related to his own circumstances. We therefore do not find that the claimant made the disclosure as it appears in the List of Issues. Further management discussion with claimant from September 2017

[94]The following day on 15 September 2017 the claimant’s GP wrote a letter [231] (To whom it may concern) setting out the fact that the claimant had been seen in the surgery between April and June 2016 with gastrointestinal symptoms. He had presented on occasions to the emergency department with abdominal pain. Stress was thought to be a major factor in the symptoms. He had been referred to gastroenterology and diagnosed with IBS following investigations. He was advised to avoid triggers, mainly work-related stress. The letter concluded that the “necessary adjustments that work should be made in order to prevent the recurrence of his previous symptoms”. The letter did not set out what the triggers were, or what adjustments might be required.

[95]Mr Ho, meanwhile, was making further enquiries with HR to find out about the claimant’s previous grievance. He saw the grievance paperwork and noted the outcomes. He arranged to speak to the claimant on 26 September 2017. He explained to the claimant that he understood that his grievances have been investigated and that the appeal process had been completed. He explained to the claimant that none of the individuals he had complained about worked on the seventh floor any longer. For his part, the claimant explained that he felt the issues had not been properly addressed and that it would be too difficult for him to work on the seventh floor. The claimant again asked to be moved into the Network Operation Support role. Mr Ho explained that this was not a vacant role which the claimant could fill and that he should now work with Mr Patel who would assist integrating him into the team. The claimant explained that he had a letter from his doctor in respect of IBS triggered by stress. Mr Ho suggested a referral to occupational health who may be able to assist, such as referring him to counselling. The claimant said that he did not want to be referred to occupational health. The claimant emailed his GP letter of 15 September 2017 later that day.

[96]Mr Ho spoke to Mr Patel about his meeting with the claimant. On 27 September 2017 Mr Patel emailed the claimant to say that he had spoken to Mr Ho. He said he understood the claimant had past issues and had concerns about being on the seventh floor. Mr Patel explained that this was a requirement for all LU Finance team members. He explained this was a new team with new leadership and that sitting together would help the team work better. He explained that in the very short-term the claimant could conduct handover meeting at a place within Palestra that was convenient to him. He asked the claimant to attend team meetings and to set up weekly one-to-one meetings with Mr Patel. He explained that he was there to help him if he had concerns.

[97]The claimant responded later that day to say that he had outlined his concerns with Mr Ho and “I will continue to reside on the sixth floor and work from there”. He said that he had previously set up handover meetings, but because of the insistence of them being on the seventh floor they had not happened. Mr Patel responded to explain that working on the sixth floor was a temporary solution, and that they needed to find a way forward. He explained the importance of continuous face-to-face dialogue.

[98]The claimant attended handover meeting on 3 October 2017 with a member of the finance team. The claimant was unwell during this meeting and it did not conclude.

[99]A one-to-one meeting took place on 4 October 2017 between Mr Patel and the claimant. During this meeting the claimant said that some members of the finance team had said he was not good at his job. He did not go into detail. The claimant said he felt stressed about working with individuals he had raised a grievance about but did not want to go into detail. Mr Patel explained that any previous issues with members of the finance team were in the past and that he wanted to help him succeed in his. He explained that the claimant needed to work with him to move forward.

[100]On 6 October 2017 the claimant emailed an attachment to Mr Patel relating to his grievance and his GP letter of 15 September 2017.

[101]During this period the claimant was seeking the assistance of his trade union representative and had given his perspective of the issues to his representative.

[102]On 12 October 2017 Mr Patel had a further one-to-one meeting with the claimant. The claimant remained adamant that he wanted to remain on the sixth floor despite Mr Patel’s assurance is that he would be supported on the seventh floor. Mr Patel escalated this to his manager Mr Dreissen, who explained that if the claimant continued to refuse to move to the seventh floor formal action would need to be considered.

[103]On 13 October 2017 Mr Patel sent the claimant a follow-up email from the previous days one-to-one meeting [255]. He reiterated that he wanted the claimant to work on the seventh floor with the rest of the team from Monday. If the claimant refused he would be forced to follow HR policy and issue a formal warning. He reassured the claimant that he wanted him to do well in his new role was there to “shout about” the claimant’s abilities and help develop his career. He said he could only do this with good communication. He sought an update on the claimant’s work. He explained that if there were “barriers” he could help. He explained the process to be followed for phoning in sick and explained that the claimant should not work if he was unwell but should seek medical advice if necessary and return to work when he was able. Claimant claims that being threatened with disciplinary action if he did not attend work on the seventh floor was a detriment for his having done protected acts by raising grievances (LOI 32.2). The only grievance that had predated this was that of 2 April 2015. The claimant leaves the workplace 16 October 2017 and Grievance 3 (protected act)

[104]At 12.53pm on 16 October 2017 the claimant emailed Mr Patel to say that he was not feeling well and was going home. Mr Patel responded that he was sorry to hear this but if the claimant was well enough to come in tomorrow to let colleagues know about certain work issues.

[105]Also at 12.53pm on 16 October 2017 the claimant emailed a formal grievance notification to numerous individuals within the respondent organisation and his own trade union representative (Grievance 3). This document at [260-275] was 84 paragraphs and 16 pages long citing case law, legislation and statutory guidance. The grievance referred to the implied term of trust and confidence within an employment contract, imputed knowledge of IBS as a disability, the need to carry out a proper assessment of his disability, the law on reasonable adjustments (which he said the respondent had breached), and bullying and harassment by Mr Walker, Mr Keogh and Mr Gude.

[106]In the grievance the claimant said that the proposed move to a new role meant that he had to interact with the people involved with his previous grievance. He said that an obvious solution to the problem would be to move him into the vacancy in Network Operations which would not require him to move. He said that requiring him to move would be discriminatory because of his disability. If such a move was required it would leave him “no choice in the matter but to commence pre-claim conciliation with ACAS… With a view to bringing multiple claims not only against TFL but the individual persons who are subjecting me to discrimination”. He further set out that if the respondent sought to move him to the seventh floor and/or expected him to work with persons against his own wishes that this would exacerbate his disability and he would assert his statutory right pursuant to “section 44(1)(d)(e) ERA 1996” by removing himself “from the working environment by reason that I reasonably am genuinely believe that the working environment would pose a “danger” to my physical and psychological health. This is supported by my GP”. He stated that he was blowing the whistle (referring to 5 reported legal cases) about the respondent’s failure to observe the public sector equality duty and that by moving him, a disabled person, to a working environment that would exacerbate his disability was a breach of various legislation.

[107]The claimant concluded his grievance:a. Asking his employer to observe the implied term of mutual trust and confidence.

b. Asking his employer to observe a statutory duty of care for his health and safety and its obligations under health and safety legislation.

c. Asking his employer to obtain a medical report from his doctor to assist the occupational health physician to “articulate the impending risk of harm to my physical and psychological health, which the move to the seventh floor, and working with employees who have previously harassed me would have upon my physical and psychological health”.

d. Asking the employer to take a proper assessment of his disabilities to implement reasonable adjustments

e. asking the employer to positively discriminate in his favour by keeping his current post on the sixth floor.

f. He also asked that disability awareness training be provided to all management and HR to ensure he was not subjected to further acts of discrimination. He asked for a written apology from management and HR and asked that all employees undertake training on the public sector equality duty.

[108]It is difficult to provide a summary of the grievance. Read as a whole it is dense, repetitive, full of legislation and case law references and not easy to follow. The grievance was put in on the day the claimant was expected to move to the seventh floor. Despite the challenges in understanding what the claimant was alleging it seems clear that the main issue revolved around moving to the seventh floor.

[109]The claimant says this grievance was a protected act for the purposes of his victimisation claims.

[110]On 17 October 2017, in response to Mr Patel’s email the previous day, the claimant responded “Please refer to point 74 of my formal notification”. Paragraph 74 of the grievance reads as follows: In the event that my employer seeks to move me to the seventh floor and/or expects me to work with persons against my own wishes, which I reasonably believe would exacerbate my disability, then I will assert my statutory right pursuant to s.44(1 )(d)(e) ERA 1996, and take reasonable steps to protect my health, safety and welfare at work, by removing myself from the working environment by reason that I reasonably and genuinely believe that the working environment would pose a 'danger' to my physical and psychological health. This is supported by my GP.

[111]Later that day Mr Patel responded that he had tried to call the claimant and asked whether he was in the office that day or still off sick. He asked whether the claimant was saying that he was not talking to colleagues. He said that any email would suffice on what he has done. He asked whether, in the alternative, the claimant was saying that he was not doing anything on his new role. Mr Patel did not get a response, and sent two more emails the following day asking for update and asking the claimant to get in touch. On 19 October the claimant responded “As stated previously, please refer to my formal grievance notification”.

[112]Mr Patel forwarded this email chain to his wife, indicating that this was “comical”. He accepted in evidence that he should not have done this, and had only done so because dealing with the claimant at this point was affecting his own well-being. He told us that he was not suggesting that the content of the claimant’s grievance was amusing, but was making a comment about the way the claimant was not providing him with simple answers. He accepted that he had made a lapse in judgment and said that he was reprimanded by the respondent and underwent data protection training.

[113]Mr Patel sought advice from Ms Watt of HR, who helped with the wording of a proposed email to the claimant. Ms Watt explained to Mr Patel that, given the issues the claimant had raised regarding his health, he would need to be referred to occupational health.

[114]On 19 October 2017 Mr Patel replied to the claimant’s email saying that his response was not satisfactory, and asked what he had been doing since 16 October 2017. He explained that he had asked for updates on work progress which had not been provided and which was impacting work. He said the rest of the team had to second-guess what work had been done, which was not acceptable without clear communication and agreement. He asked the claimant to contact him by phone.

[115]Later that day the claimant forwarded this email to Ms Watt asking her to communicate with Mr Patel as he had outlined his position in the grievance. Ms Watt responded saying that she was unsure what she wanted the claimant to communicate to Mr Patel. She said Mr Patel had requested the claimant contact him about his whereabouts and work, which seemed reasonable. She urged the claimant to respond to his line manager. The claimant’s response was in one line that he had clearly outlined his position in his grievance and continued to direct Ms Watt to this. Ms Watt responded saying that the claimant needed to communicate with his line manager and not her. She said that continued reference to the grievance was not acceptable. The claimant responded that he had communicated directly with Mr Patel and was hoping that HR could help Mr Patel understand what the claimant had communicated.

[116]On 19 October 2017 Mr Knight, Head of Finance - Elizabeth Line, emailed the claimant to inform him that he would chair his grievance. He explained that pending the hearing of the grievance, he proposed the claimant should continue working on the sixth floor of Palestra reporting to Mr Patel. Mr Knight had been provided with copies of the claimant’s grievance, together with the claimant’s GP letter of 15 September 2017 and his previous grievances of 2 April 2016 and 29 April 2015.

[117]On 20 October 2017 the claimant’s GP provided a fit note to say that the claimant was not fit for work because of “recurrence of abdominal problems and chest pains due to stress at work” [319]. The period of certificated absence was 17 October 2017 to 31 October 2017. The claimant sent this note in to the respondent on 23 October 2017. Grievance 4 (protected act)

[118]On 20 October 2017 the claimant put in a further grievance emailed to Ms Watt. He quoted an email she had sent him the previous day in which she had outlined the need to communicate with his line manager and explained that it was unacceptable to ask HR to do that and keep referencing his grievance as an answer to where he had been and what he had been doing. He again set out various sections of the Equality Act 2010, section 44 Employment Rights Act 1996 and case law. He said that emails from Mr Patel had impacted upon his disability and exacerbated his stress. He said he had taken reasonable steps to remove himself from the working environment while a danger to his health, safety and welfare existed. He said that he was looking to Ms Watt to act diligently and competently to intervene to take reasonable steps to safeguard his health which she had failed to do.

[119]The claimant was continuing to seek advice from his trade union. On 20 October 2017 the claimant’s trade union representative gave, what we would observe was sound and pragmatic advice, that “it would be useful to summarise your desired outcome/s, the briefer the better”. He also stressed that it was “important that you maintain contact with the Employer/emanations of the Employer whilst you are at work - and this includes the line management chain (as understood) plus any HR managers who may reach out to you including PMAs etc”. Progress of Grievance 3 and 4

[120]Also on 20 October 2017 Mr Knight emailed the claimant inviting him to a formal grievance meeting on 31 October 2017. He confirmed that pending the hearing of the grievance the claimant should continue to work on the sixth floor reporting to Mr Patel.

[121]That same day, 20 October 2017, Ms Fearon-McCaulsky of HR emailed the claimant to introduce herself. She outlined that the claimant had raised a number of concerns and emails about Ms Watt. She explained the role of HR. She explained that Mr Knight would also hear the grievance that he had raised about Mr Patel. She noted the claimant was not happy to be asked about his whereabouts and pointed out the respondent’s duty of care towards the employee and its need to know the reasons for absence. She asked the claimant to let her know the reasons for absence if the claimant was unable to return to work on Monday and the reasons for it. She noted the claimant had made a number of references to his health, and she informed the claimant of his ability to contact the occupational health team for independent advice and support. She told the claimant that an interim line manager would be appointed for him.

[122]On 23 October 2017 the claimant responded to Ms FearonMcCaulsky saying that he did not express any unhappiness about being asked about his whereabouts. He said he had directed Mr Patel and Ms Watts to his formal grievance to explain his whereabouts on a number of occasions. He said that he was taking reasonable steps to remove himself from work while there was a danger to his health, safety and welfare which was an assertion of a statutory right pursuant to section 44(1)(d) ERA 1996. He said that he had already consulted his GP and had been signed off work due to the detriment and harm caused by the failure to make reasonable adjustments. He said he would not be attending work on Monday and copied Mr Gregory who had been appointed his interim line manager. Ms Fearon-McCaulsky asked the claimant to send Mr Gregory his sick note and asked him to confirm his attendance at the grievance hearing on 31 October 2017 and whether he required any reasonable adjustments to attend.

[123]On 24 October 2017 the claimant emailed Ms Fearon-McCaulsky and Mr Knight saying that it would be too stressful to attend a face-to-face meeting about his grievances, and requested to conduct the grievance procedure via written form as a reasonable adjustment. He enclosed the fit note dated the previous day. Mr Gregory’s interactions with the claimant 24 October 2017 onwards and further progress of grievances

[124]On 24 October 2017 Mr Gregory emailed the claimant asking whether he was back in the office or whether he had been signed off for longer. He had not received the claimant’s fit note at this stage and asked the claimant to get in touch as soon as possible. The claimant emailed his medical certificate later that day which signed him off until 31 October 2017. Mr Knight responded on 25 October 2017 confirming that he would undertake the grievance in writing, but gave the claimant the option to dial into the meeting on 31 October 2017 by telephone or to send a trade union representative or a work place colleague on his behalf. The claimant confirmed on 31 October 2017 that he would not send anyone on his behalf.

[125]On 1 November 2017 the claimant emailed Mr Gregory to say that for the avoidance of doubt he continued to assert a statutory right pursuant to section 44 ERA. Ms Fearon-McCaulsky responded to this email saying that she had spoken to the legal department and understood the quoted section related to being in imminent danger. She asked “Please can you let me know what the danger is so I can assist you”. The claimant’s response the following day was “Please refer to my grievance notifications sent on 16 October 2017 and 20 October 2017”. Later that day Ms Fearon-McCaulskey replied “In order for me to provide you with support, please can you provide me with specifics”. On 6 November 2017 the claimant replied “The specifics are clearly outlined in the notifications and the corresponding exhibits”. We observe at this point, that the claimant was referring back to around 20 pages of dense grievance material and previously exhibited documents.

[126]Mr Gregory emailed the claimant within this chain on 6 November 2017 to ask the claimant to clarify whether he was working from home at that point as his medical certificate ran out on 31 October 2017. The claimant responded the following day that he was not and to ”Please refer to my email on 1 November”. He addressed Ms Fearon-McCaulskey and asked her as a HR professional to assist Mr Gregory in understanding the statutory right he had asserted. Ms Fearon-McCaulskey responded that day to say that, following previous discussions, if the claimant did not believe he was able to attend work then he needed to inform his line manager and provide a fitness for work certificate. She pointed out that his last note ran out on 31 October 2017 and he needed to provide a new one. The claimant responded on 8 November 2017 “Please refer to my doctors letter dated 15.9.2017 where the GP wrote that 'stress is the main factor for my pain'. Therefore, it would be unreasonable to expect me to return to a working environment which poses a 'danger to the health, safety and welfare of my person'. Put short, the danger is to my physical and psychological health by being expected to work 'in pain'. For the avoidance of doubt, I continue to assert a statutory right pursuant to s.44(1)(d)(e) ERA 1996”. He stated that he had consulted his GP on two occasions since asserting this right and the GP had continued to diagnose a recurrence of symptoms of abdominal and chest pains caused by work stress.

[127]Pausing here, as a general finding, it appears that what was happening was that the respondent was looking to find out from the claimant what danger he felt he faced so that it could look to assist him. The claimant’s responses were opaque and did nothing to further the respondent’s understanding. He was making no effort to identify information that could enable the respondent to help him.

[128]Meanwhile, on 3 November 2017 Mr Knight emailed the claimant [350-1]. He said, among other things, that he wanted to understand the claimant’s complaint so he would set out his summary of what he understood it to be and asked the claimant to confirm that he captured everything. He said he would investigate the grievance raised against Mr Patel on 16 October 2017 but not complaints against Ms Watt, which Ms Fearon-McCaulsky had responded to. He confirmed that he would not be reinvestigating previous grievances, but would review the paperwork to understand any recommendations. He confirmed Mr Gregory had been appointed as interim manager. He indicated that the timeframe for investigating the grievance may have to be extended particularly because it was being undertaken in writing. In terms of his summary, he indicated he would investigate grievances against the application of the respondent’s policies. He believed the claimant’s grievance related to his IBS being exacerbated by stress, and in particular that he felt that a move to the new role working on the seventh floor would be detrimental to his health. He set out that the claimant believed the respondent had knowledge of his IBS since 2015 and there had been no assessment of it or any necessary reasonable adjustments. He wanted to understand who was aware of the claimant’s medical condition and what actions had been put in place. He asked the claimant to confirm that his summary of the grievances was correct. He set out a number of questions for the claimant to answer.

[129]On 10 November 2017 Mr Knight emailed the claimant to say that he had not received a reply to his email of 3 November 2017 with more specific information so he could investigate further. He asked for a response by 17 November 2017.

[130]Also on 10 November 2017 Mr Gregory responded to the claimant’s email of 8 November 2017 to ask for clarification about whether the claimant had been issued with a medical certificate. He said that, in regards to the imminent danger the claimant felt he was in, that the grievance chair had said the claimant could continue to work on the sixth floor. He enquired “What other adjustments do you feel you would need to mitigate the danger?” He chased a further response on 13 November 2017 in the absence of a response from the claimant.

[131]On 15 November 2017 [369], the claimant responded by email to the questions Mr Knight had posed on 3 November 2017. He referred to Mr Knight having said that previous grievances would not be reinvestigated, and said the first grievance investigation was a sham and was a main contributor to the development of disability, and the one of April 2016 was never investigated. He said he wanted the grievance investigation completed by the end of November 2017. He also indicated that “the details of the grievance are outlined in Section 8 of my grievance notification”. (Referring back to the claimant’s grievance of 16 October 2017, 8 summarised complaints (together with detailed references to statutory provisions) of discrimination arising from disability, indirect discrimination, breach of the duty to make reasonable adjustments, failure to observe the public sector equality duty, breaches of “the good faith performance”, and victimisation. There was no reference to whistleblowing. In his email of 15 November 2017 the claimant claimed the respondent had imputed knowledge of his disability since 2015, had coordinated a move to a different role in the Transformation in the full knowledge that it would be detrimental to his health, that the respondent had not made reasonable adjustments in the allocation of roles in the Transformation process, that this decision was not revisited, and that he was threatened with formal procedure if he did not move to the seventh floor. He attached responses to Mr Knight’s questions [478].

[132]On 15 November 2017 Mr Gregory made a referral to occupational health. He quoted the claimant’s GP letter of 15 September 2017, and quoted various references the claimant made to his health and the impact of the reorganisation to it in his grievance of 16 October 2017. He also made reference to the medical certificate of 20 October 2017. Mr Gregory set out a brief description of the claimant’s pre-Transformation and postTransformation roles. The referral made reference to the temporary adjustment of allowing the claimant to continue to work on the sixth floor during the grievance process. The referral sought guidance on whether the claimant was fit for work bearing in mind the recent medical certificate. It asked whether the adjustment to the working location and manager would mitigate difficulties. It asked advice on what was the reason for the claimant not being able to attend work and anything the respondent might be able to do to remove any danger or risk. It asked whether there was anything further the respondent could do to meet any legal or health requirements relating to the claimant’s assertion of a statutory right in respect of his health and safety. It asked whether there were any further reasonable adjustments that need to be considered that would support the claimant’s return to work while the grievances were investigated. The referral asked whether the claimant would be able to work in the new role without it impacting on his health. The referral set out that the claimant stated he could not work in that role because he comes into contact with people he previously submitted a grievance against. It was claimed that the grievance was against three employees and that only one of them remained on the floor he needs to move to (this was incorrect, none of those employees remained on the seventh floor). The referral asked whether there was any other occupational health support that could be offered to the claimant to support his sustained return to work.

[133]On 17 November 2017 Mr Knight emailed the claimant saying that he could not commit to a deadline as the grievance was being conducted in writing and he was reliant on the availability of others. He asked further questions. The claimant responded on 20 November saying that it was not unreasonable for the respondent to provide him with a deadline. He responded to further questions.

[134]Mr Knight began to interview witnesses, and spoke to Ms Braganza, Mr Dreissen and Mr Ho. He considered these were relevant witnesses to the matter as the claimant had raised in his grievances of 16 and 20 October 2017 and the further responses to questions he himself had posed to the claimant.

[135]On 23 November 2017 Mr Gregory emailed a letter to the claimant, also posted by mail, concerning his absence without a current fit to work certificate. He set out that the current certificate expired on 31 October 2017 and he had had no contact with the claimant since 8 November 2017 nor had he returned to work. He set out requirements under the respondent’s Attendance at Work Policy to provide fitness to work statements. In reference to section 44 ERA, that he had emailed the claimant on 10 November 2017 asking what adjustments were needed to remove the danger. He said it was important that the claimant contact him to discuss this. He reminded the claimant that it was his responsibility to contact him and remain in contact while absent. He said that failure to submit a current fit to work certificate may result in him being classed as on unauthorised leave and could result in contractual sick pay being stopped. He asked for the claimant to supply him with a current fit to work certificate by 29 November 2017. He provided contact details and looked forward to discussing the claimant’s ongoing absence and any support measures needed to aid his return to work.

[136]The claimant responded on 29 November 2017. He said he had only just received Mr Gregory’s letter. He said that he had made it clear in his grievance notification of 16 October 2017 that all correspondence should be at his personal email address. (We do, however, note that the claimant was responding to correspondence on his work email address up to 8 November 2017 [345]). Regarding adjustments, he said he had comprehensively outlined in his grievance and would continue to refer Mr Gregory to that document. In respect of sickness absence, he said that he had made it abundantly clear that he had asserted the statutory right under section 44 ERA and asked Mr Gregory to acknowledge this to be a reason for absence. He said that he was expecting the response to his grievance that week.

[137]On 1 December 2017 Mr Gregory wrote to the claimant referring to previous correspondence. He noted the reference to the claimant asserting a statutory right under section 44 ERA as the reasons for nonattendance. He said that without speaking to the claimant to understand what he was referencing it was difficult to understand what he could do further to support his return to the workplace. He indicated that he had been requested to manage the claimant and had offered the adjustment to his working location. It was therefore important that the claimant gets in touch to discuss the matter further. In the light of the fact that the claimant had not contacted Mr Gregory to discuss the matter or submit a current fit for work certificate he stated that the claimant’s absence was marked as unauthorised which would result in his contractual sick pay being stopped. Again he invited the claimant to contact him by telephone and to supply a current fit for work certificate. He reiterated that he was looking forward to hearing from the claimant to discuss ongoing absence and any measures of support which could be offered to assist a return to work.

[138]On 4 December 2017 Mr Knight emailed the claimant to say that he had concluded his investigation and wished to communicate the outcome to him. He asked whether he would prefer the communication at a meeting or via written form. The claimant requested a written outcome.

[139]On 6 December 2017 Mr Gregory emailed the claimant to confirm that his absence had been marked as unauthorised leave from 1 November 2017, the date of the expiry of his most recent fit for work certificate. He added that this could be reviewed if the claimant provided a new fit for work certificate.

[140]On 7 December 2017 the claimant emailed Mr Gregory attaching a note which set out that his absence was not sickness absence but that he had asserted a statutory right under section 44 ERA. He said that failure to recognise this was breach of the implied term of mutual trust and confidence. He indicated a preference to communicate solely by email. He set out that he had clearly outlined what he was referencing in his grievance of 16 October 2017 and also set out his requirements for adjustments. He said that because the respondent had not implemented the required reasonable adjustments, he continued to assert his statutory right under section 44 ERA to take reasonable steps to protect his health safety and welfare by removing himself from a working environment that he reasonably and genuinely believed would pose a danger to himself. He said was fit for work only if the reasonable adjustments required were implemented which would not put him at a disadvantage because of his disability. He said that still awaiting an outcome of his grievance, which would be outside the 28 days timescale in the policy. He said that his absence was due to the respondent’s continuing failure to observe its duty to provide a safe system of work. He did not agree with the categorisation of his absence as unauthorised, as he was not absent due to sickness.

[141]That same day, Mr Gregory emailed the claimant setting out that a change of line manager, and a change of working location to the sixth floor had been implemented. He said he could not find anything within the claimant’s grievance of 16 October 2017 that specifically refers to any other adjustments the claimant felt that he needed. He asked the claimant to refer to page/item numbers if he had missed them. He reiterated the need to discuss what further adjustments the claimant felt he needed to return to work. He asked the claimant “Please can you clearly outline what these are as soon as possible”.

[142]Later that day the claimant responded to Mr Gregory [427] referring to 17 specific paragraphs of his grievance. He said he was finding it extremely difficult to comprehend how Mr Gregory could not understand the adjustments he required as they were clearly outlined in those paragraphs. Pausing here, we cross-reference some of the paragraphs that the claimant refers to in this communication.a. Paragraph 8 is a list of statutory provisions relating to discrimination and “breaches of the good faith performance”.

b. Paragraph 9 sets out assertions that the respondent had imputed knowledge of certain medical information and quotes from the Statutory Code of Practice on Employment.

c. Paragraph 16 was an assertion that it was incumbent upon the respondent to undertake a proper assessment of his disability, and that failure to do so was a detriment, and a disadvantage because of something arising from his disability by failing to implement reasonable adjustments.

d. Paragraph 17 and 24, again, were quotes from the Statutory Code of Practice on Employment.

e. Paragraphs 52 to 59 set out a narrative of the reorganisation, with references to statutory provisions and case law, which asserted that the claimant was required “to interact with the people involved in my previous grievance letter”. Paragraph 59 pointed to “an obvious solution to this situation would put me in the vacancy in Network Operations, which would not require me to move”.

f. Paragraph 61 is a paragraph asserting victimisation in moving the claimant to a new role.

g. Paragraph 68 refers to working amongst people who had previously harassed. He then refers to an insistence to move to a new role when his existing role remains vacant. He proposes an adjustment “To keep me in my existing role on the sixth floor”.

h. Paragraph 69 is an assertion of indirect discrimination with quotations from the Statutory Code of Practice on Employment.

i. Paragraph 80 is a request to positively discriminate in the claimant’s favour to keep him in his current post on the sixth floor.

[143]On 15 December 2017 Mr Gregory emailed the claimant to say that he had looked at the paragraphs mentioned by the claimant and they did not clearly state the adjustments he would need to come back to work while the grievance was ongoing. He asked for the claimant clearly and concisely to list the reasonable adjustments the claimant felt he needed in order to come back into work while his grievance was ongoing. He noted that a change of line manager, and a change of working location to the sixth floor had already been made as adjustments. He said that if there were no other adjustments he needed while the grievance was ongoing then the claimant should return to work. Grievance outcomes

[144]On 20 December 2017 Mr Knight sent the claimant the outcomes in respect of his grievances 3 and 4 of 16 October 2017 and 20 October 2017. In his email attaching grievance outcome letters and grievance reports he made clear that he extended the timescale for appealing, which in the grievance policy was seven days, to 14 days because of the time of year. He provided the claimant with brief letters in respect of each grievance indicating that neither grievance had been upheld, indicating a right and timescale for appeal, and outlining support available to the claimant. He also provided lengthier grievance outcome reports in respect of each grievance [484] and [460] and attached appendices containing the evidence as part of the grievance investigations.

[145]In respect of the 16 October 2017 grievance:a. Mr Knight set out a brief introduction and set out the terms of reference.

b. Mr Knight set out a summary of the grievance as he understood it from the grievance document itself, the claimant’s clarification that his grievance was outlined in Section 8 of the grievance and his follow-up answers.

c. Mr Knight summarised the response to the grievance, and summarised the evidence given by Mr Patel, Ms Braganza, Mr Ho and Mr Dreissen in their grievance interviews (his notes of their interviews were appendices to his report). He indicated that he would not able to speak to the claimant’s former manager, Mr Cooper, because he had left the respondent in June 2017.

d. Mr Knight set out the evidence given by the claimant in follow-up questions the claimant provided in writing.

e. Mr Knight set out his conclusions as follows: i. Whether TfL had imputed knowledge of his disability since 2015: Mr Knight concluded that, of the people directly involved in the claimant’s management, only Mr Cooper had knowledge of the claimant’s IBS and stress issues. The other witnesses only had knowledge from September 2017. Ms Watt had some awareness having received the claimant’s previous grievances in 2016. ii. Whether during the Transformation the respondent coordinated a move to a different position in the full knowledge that it would be detrimental to the claimant’s health, and failed to make reasonable adjustments in the allocation of roles: no one involved in the transformation process had any knowledge of the claimant’s IBS and stress until September 2017, after the allocation process had taken place. The claimant had not referred to any requirement for adjustments in his expression of interest form. iii. Whether, having re-informed management and HR of the need to make reasonable adjustments, he was told that it would be looked into and he was given the expectation that this would be revisited and adjustments made; and that he was threatened with formal procedure if he did not move to the seventh floor: the clear evidence of Mr Ho and Ms Braganza was that neither told the claimant that they would reconsider moving him. Ms Braganza was clear that she did not tell the claimant that the allocation decision would be looked at and revisited. There was no expectation that the respondent would make adjustments. The reason given by the claimant for not moving to the seventh floor was due to him having to interact with people involved in his previous grievance. Of those people, Mr Walker had left the organisation and Mr Gude and Mr Keogh had moved to different parts or areas of the organisation and would not be working or interacting with the claimant. Mr Patel did tell the claimant he could work on the sixth floor for the time being, but told him the following day that he would be forced to follow HR policy and issue a warning if he did not move seventh floor the following Monday. Mr Knight believed that email was slightly premature and without due consideration of HR policies. However, previous meetings with Mr Ho would have led Mr Patel to believe that Mr Ho was already dealing with an approach to moving the claimant to the seventh floor. iv. Unfavourable treatment on grounds of disability: Mr Knight concluded that there was no vacant role for the claimant, who was not the only person who did not get his first preference in the transformation process. There was no indication during the allocation process that any move would have an impact on the claimant’s IBS and stress. However, given that no interaction would be expected with those previously named his grievances there was no reason to suggest that these three people would cause him any stress on a move to the seventh floor. v. Indirect discrimination: the move to the seventh floor was not evidence of indirect discrimination, and was a reasonable request. vi. Failure to make reasonable adjustments: Mr Knight concluded that reasonable adjustments were made to allow the claimant to remain on the sixth floor. During the Transformation, no adjustments were considered due to lack of knowledge of the claimant’s issues. He would have no interaction with people named in his previous grievance if he was to move to the seventh floor. vii. Applying a discriminatory provision, criterion or practice: there was no evidence of this. viii. Public Sector Equality Duty: there was no evidence of a breach of this. ix. Breaches of the “good faith performance”: there was no evidence of this, and the respondent acted with diligence and competence. However, improved communication would have led to a better awareness of the claimant’s specific issues. In particular, the claimant had an opportunity to advise of his requirements for reasonable adjustments in completing the expression of interest form, but failed to do so. x. Victimisation: there was no evidence of this. The request to the claimant to move to the seventh floor was made in good faith to ensure he could carry out his duties and integrate with his new team.

f. Mr Knight made several recommendations, which included that staff should ensure that they complete the relevant section of documentation to ensure there is no doubt they require reasonable adjustments. There should be adequate handover of staff issues when there is a change in line management. There needs to be improved communication between line managers, senior managers and HR on the status of their staff. The claimant needs to be more open and transparent in his communication. Managers should ensure they follow policies when sending formal emails to staff. Managers should be up-to-date with their training requirements.

[146]Grievance of 20 October 2017 against Mr Patel:a. Mr Knight followed the same structure as with his other grievance outcome, and set out his terms of reference, summary of grievance, summary of responses, and claimant’s evidence.

b. Mr Knight concluded that it was reasonable that Mr Patel should email the claimant to understand his whereabouts and whether he was off sick. When the claimant referred Mr Patel to paragraph 74 of his first grievance, it was still reasonable for Mr Patel to understand the claimant’s whereabouts and whether he was doing work or off sick. It was reasonable to expect the claimant to have given more specific explanations about his absence to Mr Patel, instead of simply referring him to his previous grievance. The claimant subsequently providing a GPs note indicated that the claimant was off sick since 17 October 2017, but he did not advise Mr Patel of that.

c. Mr Knight did not uphold the claimant’s grievances. He underlined the need for employees to advise their managers of their absence status. Further interactions between Mr Gregory and the claimant from 21 December 2017 onwards

[147]On 21 December 2017 Mr Gregory chased the claimant for a response to his previous email of 15 December 2017. He asked if the claimant had received confirmation of an occupational health appointment on 29 December 2017. The claimant responded later that day saying that Mr Gregory’s inability or unwillingness to ascertain the reasonable adjustments he required from the comprehensive document that he had sent was further evidence of continuing discrimination and victimisation. He referred to paragraph 68 of his 16 October 2017 grievance in which he stated that putting him under duress to move to the seventh floor and work among people who previously harassed him and exacerbated his disability applied a discriminatory provision criterion and practice to him. An adjustment would be for him to keep his existing role on the sixth floor.

[148]The claimant did not attend an occupational health appointment on 29 December 2017.

[149]On 2 January 2018 Mr Gregory responded to the claimant’s email of 21 December 2017. He stressed that his only focus was to support the claimant back into work whilst his grievance was ongoing. He understood that the claimant had received an outcome. Mr Gregory noted that the claimant had, on 7 December 2017, pointed him towards 17 different paragraphs of his grievance, and observed that highlighting one relevant paragraph helped him understand what the claimant was asking for, namely “to keep you in your existing role on the sixth floor”. Mr Gregory said that Mr Knight and he had said it was fine for the claimant to work on the sixth floor while the grievance was ongoing. However, post transformation none of the existing pre-Transformation roles exist any more. Mr Gregory would therefore not be able to resolve what role the claimant would be doing on a permanent basis. He said he would be happy to meet with the claimant on his first morning back in the office to discuss what activities he could do in the meantime. He asked when the claimant would return to work so they could meet and discuss this issue. He reminded the claimant that he had still not provided a work certificate to cover his current absence, and would continue to be marked unauthorised leave and have his pay stopped. He reaffirmed his commitment to the adjustments he was requesting and expected the claimant to return to the workplace. He said “if there is anything preventing this please be absolutely clear so I can address and seek to resolve”. He noted the claimant had missed his occupational health appointment, and said that employees are expected to attend such appointment. He said he would re-book the appointment.

[150]On 3 January 2018 the claimant asked for an extension of time to put in his appeal against the grievance outcome. He enclosed a letter from his GP which stated that the claimant suffered with anxiety, and suggested that he was given time over the Christmas period to appeal his employer’s decision which added to his stress and anxiety. The GP suggested it would be reasonable to extend the period of his appeal [584]. This, along with the GP letter of 15 September 2017, and the fit note of 20 October 2017, was the only medical evidence supplied to the respondent by the claimant during the period to which the claim relates.

[151]On 5 January 2018 Mr Gregory sent the claimant a letter inviting him to attend a review meeting. The purpose of this meeting was to review the claimant’s current absence from work from 17 October 2017. The letter set out that the claimant had provided a fit for work certificate in respect of the period 17 October 2017 to 31 October 2017, but had asserted a statutory right under section 44 ERA. The letter identified that Mr Gregory had written to the claimant on a number of occasions requesting clarity from the claimant about the imminent danger and how he could be supported to return to work. He pointed out that adjustments had been made changing the claimant’s line manager and allowing him to work on the sixth floor. The meeting would look at the options available and any relevant surrounding issues. The claimant was told he could be accompanied at the meeting by a colleague or a trade union official.

[152]The same day the claimant commenced early conciliation with ACAS in respect of these claims.

[153]On 8 January 2018 Mr Gregory emailed the claimant with details of an occupational health appointment for 22 January 2018. The claimant responded later that day making various references to the respondent’s public sector equality duty and the Statutory Code of Practice on Employment. He set out the text of section 44 ERA, and said that any reduction in pay was a detriment and in breach of section 13 ERA as well as being discrimination and victimisation. He said he would escalate that matter further. He said he never received an invitation for an occupational health appointment, but had told Mr Ho and Mr Patel on separate occasions that he would not attend occupational health appointments “due to previously disclosed reasons”. He did not elaborate on what these reasons were.

[154]We observe that the claimant in his grievance had appeared to suggest that the respondent should seek a report from his doctor to assist occupational health to provide an understanding of the difficulties he faced in the workplace (see paragraph 107c) above). However, his actions do not suggest that he himself was helping the respondent gain such and understanding. He had provided two brief GP letters (one specifically about appeal deadlines) and one fit-note and was refusing to attend occupational health appointment which the respondent was sensibly arranging for him.

[155]On 12 January 2018 the claimant appealed against Mr Knight’s grievance outcomes.

[156]On 15 January 2018 a second occupational health appointment was cancelled as the claimant indicated he would not attend.

[157]On 16 January 2018 the claimant emailed Mr Gregory setting out that he asserted he had taken reasonable steps to remove himself from the workplace while a danger to himself existed which was a statutory right under section 44 ERA. He again said that the reduction of pay consequent on the classification of his absence as unauthorised was a detriment, unauthorised deduction from wages and a continuation of discrimination and victimisation. He pointed to his having commenced early conciliation with ACAS “with a view to bringing multiple claims not only against TfL but against individual persons… I have named you as one of the individual persons”. He confirmed he would not attend any meeting with Mr Gregory.

[158]On 17 January 2018 Mr Gregory emailed the claimant with a final invitation to meet. He encouraged the claimant to meet him to enable him to understand the claimant’s communications and to support him back into work. He was conscious the claimant was not being paid and did not want this to continue. He offered the claimant a final opportunity to meet on 24 January 2018 at a different venue from the Palestra building. The claimant was offered the opportunity of attending with a trade union representative or a workplace companion. He was given the opportunity of dialling into the meeting or sending a representative or a companion on his behalf to represent him. He could send any written documentation he wished. Mr Gregory asked whether there were any other reasonable adjustments that he could make to enable the claimant to attend the meeting. He said that the meeting would go ahead based on the information available if the claimant chose not to attend or avail himself of any of the other avenues of participation. He noted the claimant’s assertion of his rights under section 44 ERA, and reiterated the efforts he himself had made to try and understand the danger the claimant felt that he was in and determine any adjustments to help him back to work. He outlined how he had agreed, as adjustments, for the claimant to be located on the 6th floor, to discuss and agree the work the claimant would carry out, and his own appointment as line manager. He said the claimant had not yet identified any other adjustments. He pointed out that the claimant’s pay had been stopped and that he had requested a fit for work certificate because this could be provided if the doctor felt that there was a threat to the claimant’s health.

[159]Mr Gregory followed up on 24 January 2018 reminding the claimant of the meeting that day and asking whether the claimant would attend or avail himself of any of the options for participation. The claimant confirmed he would not attend or send a representative.

[160]On 25 January 2018 Mr Gregory emailed Ms Watt of HR requesting a fact-finding into the conduct of the claimant under the respondent’s Discipline at Work Policy. The investigation would cover the claimant’s unauthorised absence and refusal to attend work without a medical certificate, his refusal to meet or participate in a meeting to discuss return to work, his refusal to attend occupational health appointments and his refusal to clarify or discuss adjustments required to aid a return to work. Appointment of Mr Carlin as fact-finder under Discipline at Work Policy

[161]Mr Carlin, Senior Project Manager, was appointed to conduct a factfinding exercise under the Discipline at Work Policy. On 31 January 2018 Mr Carlin wrote to the claimant inviting him to attend a fact-finding meeting in a room in Victoria Station House on 9 February 2018. He said the purpose of the meeting was to establish facts and to determine if any action in accordance with the Discipline at Work Policy (which he enclosed) may be appropriate. He would be attempting to establish facts in relation to the claimant’s continued refusal to engage meaningfully in return to work discussions, unauthorised absence refusal to return to work citing a statutory right under section 44 ERA, refusal to meet or participate in discussions supporting a return to work and refusal to attend occupational health appointments. The claimant was given the opportunity of being accompanied at that meeting by a colleague or trade union representative. He was warned that one outcome of the investigation could be disciplinary action.

[162]On 7 February 2018 Mr Gregory emailed the claimant to ask if there had been any change in his situation which would allow Mr Gregory to support him back into the workplace. He asked if the claimant would consider meeting, speaking on the phone or accepting a referral to occupational health. He asked if there was anything else he could do to support the claimant to let him know. He outlined the agreement to let the claimant work on the sixth floor, to review and discuss what work had been doing and setting out that he would continue to be the claimant’s line manager. He asked the claimant to let him know what other adjustments or support he would need in order to return to work. He informed the claimant that he could also speak to Employee Assistance if he thought that would help.

[163]On 8 February 2018 the claimant responded to Mr Carlin. He attached a copy of Mr Carlin’s letter of the previous day embedding numerous responses to paragraphs within the letter. Included within these responses was his request that, as a reasonable adjustment, that all communication be conducted in written format and that he would not be attending any meeting. In broadbrush terms, he challenged as incorrect the assertions within Mr Carlin’s letter and continued to assert that he was not failing to attend work, but was exercising his statutory rights pursuant section 44 ERA.

[164]On 9 February 2018 the claimant replied to Mr Gregory’s email of 7 February 2018, continuing to claim continued discrimination and assertions of his statutory rights under section 44. Appeal against grievance outcome (and Mr Carlin’s fact-finding)

[165]At some point, Ms Hopkins, Head of Business Strategy – London Underground, was appointed to hear the claimant’s appeal against the grievance outcome. She reviewed in relation to his appeal. On 12 February 2018 Ms Hopkins emailed the claimant asking for him to various matters. One of these was “What do you see as the specific danger? What can be done to remove it that ensures you can attend work and be with your team?”

[166]On 12 February 2018, Mr Carlin gave the claimant one last opportunity to attend a fact-finding meeting following his refusal to attend the meeting on 9 February 2018. He encouraged the claimant to attend the meeting to discuss the matter further. The claimant responded on 20 February 2018 confirming that he would not attend any meeting for reasons already given. He indicated that he had already supplied a large amount of paperwork to the respondent.

[167]On 5 March 2018 Ms Hopkins sent a further email asking for the claimant to respond to her previous email so she could move matters on.

[168]On 5 March 2018 the claimant presented claim number 2300802/2018 to the tribunal.

[169]On 8 March 2013 the claimant responded to the questions Ms Hopkins had put in her email of 12 February 2018. We will quote in full the claimant’s response to her first question which was “What do you see as the specific danger? What can be done to remove it that ensures you can attend work and be with your team?” (emphasis added). Put short, seeking to move me, an employee with a disability to a working environment, which TFL knows (or reasonably ought to know), which would exacerbate the effects of disability and endanger my health, safety and wellbeing, it is not a proportionate means of achieving a legitimate aim. Nor is it objectively justifiable within the law. It is my reasonable and genuine belief that TFL has failed, is failing, and is likely to continue to fail to provide myself (and persons whom share my protected characteristics) with a ‘safe system of work’ in accordance with s.2(1)(2) HSAWA 1974. It is also my genuine belief that TFL has failed, and is failing to observe a statutory ‘duty of care’ for my health, safety, and welfare at work by reason that TFL seeks to move me to a working environment, which it reasonably ought to know is prejudicial, if not the injurious to my health. In blowing the whistle, I am asserting another statutory right under the ERA 1996. In asserting this statutory right, I have the right not to be victimised and subjected to any detriment. Unfortunately, TFL continues to victimise me and subject me to detriment. The systematic campaign of bullying, harassment and discrimination that I have been subjected to is unwanted, unnecessary and undignified and has created an oppressive and intimidating environment in which to work and communicate. It has caused me stress, distress and anxiety. This has had, and is continuing to have a ‘detrimental impact’ upon both my mental and physical health. My doctor is also of the same medical opinion as evidenced . As a direct consequence of this campaign, I have felt isolated and anxious at work. I have suffered from a range of health problems which I have supplied TFL with the medical evidence. This has fundamentally affected me and family and friends have noticed the changes in me. TFL have a statutory 'duty of care' pursuant to s.1(1)(a) HSAWA for my health, safety and welfare at work and also has a statutory duty to provide me with a 'safe system of work' under s.2(1)(2)(a)(e) HSAWA 1974. I have taken reasonable steps to remove myself from the working environment whilst the ‘danger’ to my health, safety, and welfare exists. For the avoidance of doubt, this is an assertion of a statutory right pursuant to s.44(1)(d)(e) ERA 1996. Again, despite this assertion TFL continues to discriminate against me and apply a detriment against me. TFL's classification of my absence as unauthorised absence and the subsequent reduction in wages/pay is a detriment. Under Section 13 of the Employment Rights Act 1996, this is an unlawful deduction and a continuation of the discrimination and victimisation outlined. TFL has shown and continue to show a lack of due care by exposing me to an unacceptable risk of sustaining further harm and detriment despite having imputed and constructive knowledge of my disability. TFL has a legal responsibility to adhere to the Equality Act 2010, the Employment Rights Act 1996 and other relevant legislation to ensure that my health and safety are not compromised at work but continues to flout these responsibilities and thus it incumbent on TFL to remove the detriments that have been applied.

[170]We observe that the claimant was asked to set out the specific danger he saw. We do not find that the claimant’s answer succinctly or clearly addressed this. He chose, instead, to set out breaches of duties and obligations in general terms. He did not address what, or who, it was about the working environment that caused the danger. He did not address what, or who, created the risk of harm. He did not set out who was responsible for the harassment and discrimination. He did not set out what could be done to remove the danger.

[171]The claimant gave a number of other answers to questions, including setting out that it was not reasonable for him to attend occupational health as the practitioner had colluded with management to override his medical diagnosis. He said that he had supplied the respondent with “numerous medical evidence pertaining to my health from my GP and medical sources over the last year” including the doctor’s letter of 15 September 2017. When asked about whether he believed it was the seventh floor location or people on it that appeared to exacerbate his symptoms, he stated that it was initially seventh floor location as that was where the majority of the people who had bullied, harassed and discriminated against him had resided, however, further evidence of management continuing this campaign made it obvious “that this issue has become more insidious and that this has cascaded across different levels of Finance and HR which are not limited to the 7th floor”. He was asked about whether beyond the three people mentioned in earlier grievances he was saying that people mentioned in his 2017 grievances bullied and harassed him, and whether he thought these working relationships were repairable. His response was that there were a number of people, named and unnamed, that had been complicit in bullying harassing and discriminating against him. He said that he had continually asked the respondent to observe the implied term of trust and confidence, but that he had been continually subjected to a detriment because of his protected characteristic, and that it was “reasonable to conclude that these working relationships are extremely strained given the severity of the facts stated”.

[172]The claimant attached 32 attachments to his email and later provided a five page statement in 44 numbered paragraphs [748-751]. Further correspondent with Mr Gregory 9 March 2018 onwards

[173]On 9 March 2018 Mr Gregory again wrote to the claimant asking if there were any changes or reasonable adjustments that would enable him to support the claimant back to work.

[174]Between 15 and 19 March 2018 there was further correspondence between the claimant and Mr Gregory [760-763]. Mr Gregory stated, in relation to the claimant’s wish expressed in paragraph 68 of his grievance of 16 October 2017 to be kept in his existing role on the sixth floor, that he was happy for the claimant to work on the sixth floor. However, he pointed out that his old role simply did not exist any more. He said that old roles did not simply map into new roles and that some activity had been stopped and that there was new types of activity. He said he could not get an understanding without discussion of the types of activity the claimant wanted to be involved in. He urged the claimant to reconsider his decision not to meet with him and to allow them to support the claimant. Mr Gregory pointed out, in relation to paragraph 70 of the claimant’s grievance, that the claimant was simply asserting that the public sector equality duty requires the respondent to positively discriminate in the claimant’s favour. He pointed out that this was not a specific reasonable adjustment. He pointed out that unless the claimant engaged with him it would be difficult to support him back to work.

[175]The claimant responded on 19 March 2018, again in very legalistic terms, asserting that he had been perfectly clear about his requirements which Mr Gregory was choosing to ignore. He accused Mr Gregory of continually avoiding direct questions he had asked, and asked why he continued to subject him to a detriment for asserting a statutory right. There was further correspondence on 28 and 29 March 2018 in similar vein.

[176]On 26 March 2018 Mr Carlin posed a series of questions in writing to the claimant following his refusal to attend to fact-finding meetings [769- 770]. Grievance appeal outcome (and further fact-finding)

[177]On 18 April 2018 Ms Hopkins sent the claimant a grievance appeal outcome [793-5]. Ms Hopkins reviewed the email correspondence between Mr Patel and the claimant and other relevant evidence. She concluded that it was understandable that Mr Patel sought an update on the reasons for the claimant’s absence. She observed that there was an onus on both the claimant and Mr Patel to comply with the attendance policies for reporting sickness absence. She concluded that Mr Patel’s behaviour did not amount to harassment, or that his enquiring about the claimant’s whereabouts was anything other than reasonable.

[178]On 18 April 2018 the claimant responded by email to Mr Carlin’s questions including eight attachments [795-803]. These responses included:a. In response to why he submitted a sick certificate for 17 to 31 October and no further certificates, the claimant simply referred to the certificate which he said clearly outlines his GP’s assessment of his health and fitness to work. He repeated this answer verbatim to the questions “Did you revisit your GP?”, “Did you recover from your illness of 17 to 31 October?” and “Did your GP sign you fit for work?”

b. In response to a question about why he submitted no further medical certificates beyond that of 31 October 2017, the claimant gave a lengthy response that he was taking steps to remove himself from the working environment while a danger to his health, safety and welfare existed, which was a statutory right under section 44 ERA, which he quoted in full.

c. The claimant explained that he did not visit occupational health as they had been complicit in a campaign of bullying, harassment and discrimination. He repeated assertions that they had behaved improperly by colluding with senior management to override his medical diagnosis. He said he had no confidence in them. He said he continued to refer management to his GP report.

d. In response to a number of questions about engagement with Mr Gregory about adjustments, he repeatedly referred to his grievance of 16 October 2017, and said he had been clear on this issue.

e. The claimant referred to correspondence explaining why he did not attend meetings or avail himself of options to participate.

f. In response to a question asking him to explain what danger he would be in if he returned to work with adjustments proposed by Mr Gregory, he repeated (verbatim) the response he had provided to Ms Hopkins on 8 March 2018 quoted above.

[179]On 23 April 2018 the claimant commenced early conciliation once again. His certificate was issued on 8 May 2018.

[180]On 10 May 2018 Ms Hopkins sent the claimant an outcome to his appeal in relation to the grievance of 16 October 2017 [831-835]. Ms Hopkins did not uphold the appeal having looked at the claimant’s grounds of appeal, his detailed appeal letter, the considerable evidence provided by the claimant in writing, his additional statement and responses to supplementary questions. She indicated she had interviewed Mr Knight and Ms Braganza. Her outcome included the following:a. She set out that her focus was on the seven points outlined in Section 8 of the claimant’s original grievance and an additional three areas confirmed to Mr Knight as being additional areas. She observed that neither she nor Mr Knight were lawyers, and any failure explicitly to refer to the specific sections of legislation was of concern as neither were legal experts.

b. She concluded that she did not believe the respondent had imputed knowledge of the claimant’s disability. The claimant’s SAP (an HR information management system) did not show the claimant had a declared disability or that reasonable adjustments were in place. The employee has a responsibility to ensure that details are accurate and up-to-date.

c. The adjustment of working on the 6th floor put in place between Mr Cooper and the claimant was never formalised. Even if it had been, it would have been reviewed every six months to ensure that it was reasonable, practical and effective.

d. The expectation, after the Transformation in September 2017 and the formation of a new team, to co-locate with the new team was reasonable.

e. While the claimant had stated in his appeal that the Transformation had failed to take into account his adjustments, his Expression of Interest form had only included a requirement for flexible working and not disability or adjustments. She noted the claimant’s expectation, expressed in his appeal documentation, that he did not answer this part of the form because the onus was on the Transformation team to clarify the position if they were unclear.

f. At no point did HR promise that changes would be made, but it was agreed that Mr Ho would meet the claimant to help integrate him back into the team as mitigation.

g. Ms Braganza would not have known of the need for any adjustment as the claimant had not stated it on his Expression of Interest form and there was no data on his SAP. The equality impact assessment would also not provide detailed knowledge of individuals, and would again depend on data held in SAP. It would be unreasonable to expect HR to have detailed knowledge of any individual’s requirements for everyone in scope for the organisational change (we observe that this restructure involved 142 proposed roles).

h. The evidence suggested that the Finance Team were supportive to the claimant during the autumn with team members looking forward to forming a new team and welcoming the claimant into it. There was no evidence of unfavourable treatment.

i. Ms Hopkins reinforced Mr Knight’s comments on communication. For someone looking for support, she believed the claimant’s communication could have been clearer. He should not assume simply from the provision of a GP note or from previous grievances, that his colleagues would have detailed knowledge of his condition, or that it constituted a request for reasonable adjustments or disclosure of disability.

j. Ms Hopkins concurred with Mr Knight that appropriate people were interviewed, that extensive evidence had been provided by the claimant and there was no benefit from interviewing other parties who have little interaction or no line management responsibility for the claimant.

k. Ms Hopkins considered that Mr Knight was an appropriate person to have heard the grievance, and had not been involved in any matters under investigation. He had approached his investigation in an objective manner.

l. Ms Hopkins agreed with Mr Knight’s recommendations, and added a further one of her own for the claimant to attend an occupational health assessment to fully understand the nature and extent of his requirements to enable him to resume his role and return to the workplace.

m. Ms Hopkins concluded that the grievance process had been carried out within an appropriate timescale.

n. Ms Hopkins offered further support to the claimant.

[181]On 10 May 2018 Mr Gregory emailed the claimant to say that he understood that the grievance appeal had been concluded, and he wished to discuss what steps were needed for Mr Patel to reconvene as his line manager. He said that although he was aware the claimant would rather not attend an occupational health appointment, it would be helpful if the claimant could complete an attached medical consent form so that occupational health could contact his GP for some advice. He also said that he would be happy to meet with the claimant in order to conduct a stress risk assessment. The claimant did not respond to this email. Grievance 5

[182]On 17 May 2018, a week after receiving the previous grievance appeal outcome, the claimant presented a further grievance (Grievance 5) [846-7]. In it he referred to his disability, a duty of care owed to him for his health, safety, and welfare, his continued reasonable steps to remove himself from the working environment while there was a danger to his health, safety and welfare, discrimination arising from disability, failure to make reasonable adjustments and indirect disability discrimination. While the claimant was clear and specific about the legal provisions he says were engaged, less clear was the factual basis for his claims. This grievance appears to be a re-statement of Grievance 3 under exactly the same headings. He does not mention whistleblowing in this grievance. This grievance was not investigated. Fact-finding outcome

[183]On 11 July 2018 Mr Carlin provided a written outcome in relation to his fact-finding investigation [851-869], which was emailed to the claimant. Mr Carlin’s short letter and a six page report both dated 11 July 2018 included the following:a. The scope of the fact-finding related to

• Unauthorised absence without an authorised medical certificate

• Refusal to return to work citing a statutory right pursuant to s.44(1)(d)(e) ERA 1996

• Refusal to meet, dial in, or send a representative to discuss supporting a return to work / support that would be required

• Refusal to attend occupational health appointments

• Refusal to clarify or discuss adjustments required to aid a return to work

• The claimant’s continued refusal to engage meaningfully in return to work discussions/support and instead remain at home.

b. The evidence relied on, which included an interview with Mr Gregory, correspondence between the claimant and Mr Gregory and the claimant and Mr Carlin himself, and answers to questions posed by Mr Carlin as the claimant had refused to attend two meetings.

c. Mr Carlin set out evidence which led him to the conclusion that the matter should be referred back to management to consider how best to take matters forward.

d. Mr Carlin observed “I have tried through my own questions to understand what changes FL [the claimant] needs to facilitate a return to work however I have found it very difficult to definitively identify these. At no point have I seen any indication that FL wants to return to work at TfL”.

e. Mr Carlin’s conclusion was as follows: I have made reasonable attempts to contact FL for the purposes of the fact find and to understand his position. Despite numerous attempts to meet and correspondence between us, I do not feel I have understood FL’s position as to why he will not attend work, nor can I identify any further steps TfL could take. FL’s answers to my questions have been unclear so I remain confused as to the grounds on which FL is not attending work. I note that MG [Mr Gregory] has also made numerous attempts to reach out to FL but FL does not engage. On this basis, it has been impossible to communicate with FL in any meaningful way. As I am unclear as to why he remains away from work, for example whether it is a straight refusal to comply with policies or whether he is unwell, I cannot accurately set out whether or not there has been a breach of conduct, although it remains possible that there has been. I recommend that this is referred back to the business to consider whether it is possible to move forwards or whether the relationship with this employee is beyond repair. Formal meeting to consider employment relationship

[184]Ms Pateman, Senior Finance Business Partner - Track Renewals, was appointed following Mr Carlin’s report. Ms Pateman did not know the claimant and had not been involved in any of the workplace issues set out above. We accept Ms Pateman’s evidence that she was asked to consider if there was any way forward to bring the claimant back to work so that his employment could continue. We also accept her evidence that her focus was on engaging with the claimant to determine whether some sort of reconciliation could be achieved to get him back into the workplace. There was no cogent evidence put forward by the claimant to undermine that this was her approach and mindset.

[185]On 17 July 2018 Ms Pateman sent the claimant a letter inviting him to a formal meeting following the fact-finding investigation, to take place on 27 July 2018 in an office at 55 Broadway (a different office from the one the claimant had last worked in). The expressed purpose of the meeting was “to consider whether there is any possibility of the employment relationship between you and Transport for London moving forwards”. Ms Pateman set out that the claimant had been absent from work since 17 October 2017, initially signed off sick then absent asserting a right under section 44 ERA. She set out that there had been a number of attempts to discuss what the claimant perceived to be the risk, and what adjustments could be made to enable a return to work. The claimant had refused to meet with occupational health or management to discuss this, communication remained unclear and the organisation was struggling to identify “a pathway forward”. She informed the claimant that one potential outcome of the meeting could be the termination of his employment. He was informed of his right to be accompanied by a trade union representative or workplace colleague. He was provided with a copy of the fact-finding report, asked to provide any documents he wished to rely on three days before the meeting, notified that an HR specialist would be present and informed that he could contact employee assistance. If he had any questions about the process he was given a contact in HR.

[186]On 25 July 2018 the claimant wrote to Ms Pateman. He said the fact finding process had been “shambolic” full of false statements, factual inaccuracies and misinformation and amounted to a continuation of the discrimination and victimisation he had experienced. His reply also included numerous corrections to Ms Pateman’s letter to him. He referred to ACAS conciliation as being “a pathway forward” which the respondent had rejected. He said that the “only recourse is for these issues to be resolved through the Employment Tribunal process”. He said he would continue to remove himself from the working environment asserting a statutory right pursuant to section 44 ERA. He said that he wished for all communications to be conducted in a written format as a reasonable adjustment.

[187]On 30 July 2018 Ms Pateman wrote to the claimant offering him another opportunity to attend or contribute to a meeting, this time on 7 August 2018 at 55 Broadway. If the claimant felt unable to attend she gave him the option to send a representative to attend the meeting on his behalf, or to send written representations to be considered at the meeting (to be sent three days before the meeting). She assured the claimant that she had not been involved in the claimant’s case previously or in his tribunal claim. She wished to focus on the way forward.

[188]On 3 August 2018 the claimant wrote to Ms Pateman attaching his previous grievance and setting out his assertion that he had taken reasonable steps to protect his health, safety and welfare under section 44 ERA. He said that Given the context of TFL's conduct towards me and this situation, It's reasonable to conclude that TfL has no intention of observing the implied term of mutual confidence and trust. It has not been made the adjustments I require, continues to discriminate on the grounds of disability and apply a detriment to me, refuses to acknowledge my assertion of a statutory right and applied another detriment to me for the assertion of this statutory right. Thus, its reasonable to state that TFL has no intention of rendering a safe system of work and as the danger to my health, safety and welfare still exists, I continue to take reasonable steps to protect myself.

[189]He further stated that he would not be attending the meeting on 7 August 2018 at Broadway but was prepared to meet Ms Pateman with his legal representative on 9 August 2018 at an alternative address. He said he would be providing written response to the fact-finding report in due course.

[190]Later that day Ms Pateman responded to the claimant setting out that it was not permitted for her to meet with the claimant’s legal representative as that fell outside the scope of the respondent’s policies. She reiterated that the claimant could send a trade union representative or a work colleague. She set out that a number of options were available to the claimant, namely that he could attend the meeting on 7 August 2018 accompanied by a trade union representative or work colleague, he could send a trade union representative or work colleague on his behalf, he could send written representations to be considered at the meeting, or he could meet off-site accompanied by a trade union rep or work colleague. She set out that any additional documents he wished to rely on should be submitted three calendar days before the meeting.

[191]On 4 August 2018 the claimant sent his response to the fact-finding report. The claimant’s responses were embedded within the report itself and ran to 16 pages. The response is lengthy, dense and not easy to follow. The claimant concludes by setting out that he had a disability, that an assessment was not carried out under the Transformation, there was no risk assessment, that he was threatened with formal action following a decline in his health, that he filed a grievance and took reasonable steps to remove himself from the working environment while a danger to his health existed, that the respondent refused to recognise the legitimacy of the action he took and failed to make reasonable adjustments. He stated that he had the right not to be dismissed or subjected to any detriments for taking the action he had taken. He said that he had asserted a statutory right under section 44 ERA and blown the whistle and that any attempts to dismiss him would be automatically unfair.

[192]On 7 August 2018 the claimant did not attend the formal meeting and Ms Pateman, accompanied by Ms Watt of HR proceeded in his absence. The minutes of the meeting are at [925-7] and indicates that the meeting included the following:a. Ms Pateman reviewed the procedural history leading up to the formal meeting, confirmed that she had read the submissions provided by the claimant, and set out the remit of the hearing which was to review and ascertain whether the claimant could be supported in a return to work and whether the employment relationship could be reconciled.

b. In terms of unauthorised absence, Ms Pateman set out her understanding of the claimant’s case that he was exercising a right under section 44 ERA. She set out Mr Gregory’s attempts to understand the nature of the danger and how the claimant might be supported back to work. She commented that the “danger” in the case was not clear, and that Mr Gregory had asked for clarity on 20 November 2017.

c. Ms Pateman set out her understanding of the claimant’s case on refusal to return to work. She observed that many attempts had been made to make reasonable adjustments and engage the claimant in a meaningful discussion on the topic to support his return to work. However, the claimant refused to compromise even though Mr Gregory had offered change in location, management and a discussion about work. It was difficult on the basis of the evidence provided to understand what further requirements the claimant had. The claimant appeared to want the role that he had before Transformation, but this role no longer existed. The claimant had not accepted any other reasonable adjustments offered. The claimant had been given the opportunity to restate the reasonable adjustments during the fact-finding, but had merely referred back to the formal grievance.

d. On the question of refusal to meet, dialling in or sending a representative to discuss return to work, the claimant had requested as a reasonable adjustment that all communications be conducted in written format. While the respondent agreed to this it had not always been possible to establish the true meaning of what the claimant was writing because it cross-referenced previous correspondence, legislation and case law. “If FL was truly committed to reconciliation a reasonable step would be to communicate his onward requirements clearly and potentially verbally, or in person”.

e. On the issue of refusal to attend occupational health appointments, Ms Pateman observed that the medical evidence the claimant provided was from September 2017 which did not relate to the claimant’s current medical status. The claimant had not responded to Mr Gregory’s request for permission for occupational health to contact with his GP, something that would not have required the claimant to attend an occupational health appointment. This small concession could have helped resolve matters.

[193]At the meeting Ms Pateman adjourned to consider the outcome. She concluded that the relationship with the claimant was beyond reconciliation. She made the point that her own experience of communication with the claimant had been frustrating, as she had not received direct responses from him but re-referencing of previously submitted information which had been already reviewed and responded to. She observed that there was a continued repetition of his submissions and a lack of clarity on a clear direction forward. The claimant did not identify anything further that could be done to enable a return to work. His response to the meeting invitation of 3 August 2017 appeared to support this. Ms Pateman felt that the claimant was “entrenched in his position with no clear view or consideration of a resolution”. She felt that the relationship was beyond repair and commented that between 16 October 2017 and 7 August 2018 there was still no clear way forward despite lots of management involvement to try and resolve matters.

[194]On 9 August 2018 Ms Pateman sent the claimant the outcome letter of the formal meeting [929-931]. This letter included:a. Her setting out the purpose of the meeting (to determine if it was possible to find a way forward is to assist the claimant back into work and whether the relationship between him and the respondent could be resolved);

b. A description of the process she had followed;

c. Her findings. i. She set out her understanding that the claimant was refusing to come to work asserting a statutory right under section 44 ERA on the basis that he would be in “imminent danger” if he were to return to work. ii. From what Ms Pateman could understand from the documentation the claimant was saying that the danger would be a recurrence of stress-related Irritable Bowel Syndrome. She said that while she took this seriously, she did not believe that these were circumstances of imminent and serious danger and therefore did not fall within section 44 ERA. She believed the situation should be dealt with under the respondent’s Attendance at Work policy. She set out that the claimant had refused all attempts since October 2017 for the respondent to apply this policy and properly seek medical advice. iii. Ms Pateman said that Mr Gregory had referred the claimant to occupational health to seek advice on how best to support a return to work. She set out the history of the claimant not engaging with this process which could have supported a resolution of the issues in an adherence to the respondent’s policy. iv. Ms Pateman understood the claimant felt there was a real risk of his becoming unwell on a return to work. Mr Gregory had done all he could to support a return to work but the claimant continued to avoid helping the respondent understand his concerns and how to rectify them and that this prolonge the case and frustrated the relationship. She set out the attempts Mr Gregory had made to mitigate the claimant’s fears and the adjustments he made (change of line manager, change of working location, review of activities undertaken) to support a return to work. v. However, the claimant’s response to the fact-finding report was that he did not request these adjustments and simply referred back to his formal grievance of 16 October 2017. This response was his opportunity to state clearly what adjustments were acceptable but the claimant chose to avoid answering the point directly. Ms Pateman was still not clear on the issue, but it appeared the only acceptable solution for the claimant was being placed back in his preTransformation role, which no longer existed. Ms Pateman believed all adjustments that could possibly be made had been made. vi. Ms Pateman set out that as a reasonable adjustment all communications in the current formal process had been conducted in written format. However, it had been difficult to understand the claimant’s written communication as it crossreferenced previous correspondence, legislation and cases. She believed that if there was a true reconciliation a reasonable step would have been for the claimant to have communicated verbally, or in person and communication would be direct and explicit. She felt that written communication had reached a point where the respondent was unable to move forward. vii. She commented that the case commenced on 16 October 2017 and by 7 August 2018 it had still been not possible to find a reasonable adjustment to enable return to work, nor had the claimant suggested one. It was impossible to see a way forward. viii. She concluded that all options assisting the claimant back to work had been exhausted and therefore the employment relationship between the claimant and the respondent was beyond repair on the basis of the evidence provided to her.

d. Ms Pateman therefore communicated that the claimant’s contract of employment with the respondent was terminated with immediate effect with his last day of employment 9 August 2018. She said he would be paid in the lieu of his notice period. She gave him a right of appeal and set out the process for doing this.

[195]During cross-examination of the claimant Ms Thomas asked the claimant about the standpoint he adopted about a potential return to work. We will set out the judge’s notes of this exchange verbatim (question in bold: response in normal type): Is it right than unless the respondent agreed to put you into role you said had mapped across to yours, you would not return to work? to be clear the Transformation process in allocation was discriminatory as it did not consider disabled employees disabilities and I was one of those disabled employees affected Is it right than unless the respondent agreed to put you into role you said had mapped across to yours, you would not return to work? i had made clear that that role was the only role that provided me with a safe system of work Is that a yes? Yes it is

[196]We find as a fact, based on our assessment of all the evidence set out above, including the quoted passage of the claimant’s crossexamination, is that the only way forward the claimant would consider is to be placed into the role of Finance Business Partner LU: Network Operations Support. This was the role Employee A was placed into during the Transformation, and there was only one such role. We find that the claimant would not come back to the workplace unless he was offered that role.

[197]On 10 August 2018, the very day after he received the dismissal letter, the claimant’s case is that his bank account was closed. We find that this would not have been something imposed suddenly and out of the blue by the bank, but following some sort of process that would have been communicated to him before this date. The claimant did not communicate to the respondent that his account had been closed until January 2019. Appeal against dismissal

[198]On 15 August 2018 the claimant appealed against dismissal [937- 953]. This was a lengthy document citing legislation, statutory guidance and numerous reported cases. Again, the document was not easy to follow but he ended it with conclusions in which he invited his employer to observe the implied term of mutual trust and confidence, to observe statutory duties under health and safety at work legislation, not to dismiss him for asserting statutory health and safety rights or for blowing the whistle, not to dismiss him unfairly and that he would escalate the matter to the tribunal.

[199]On 24 August 2018 Ms Horgan, Change Delivery Lead, who had been appointed to hear the claimant’s appeal, wrote to the claimant inviting him to an appeal hearing on 4 September 2018. She advised him of the documents she would be relying on, the process that she would follow and invited him to submit documentation three days before the hearing. She gave him a right to be accompanied by a trade union representative or workplace colleague.

[200]On 31 August 2018 the claimant wrote to Ms Horgan [957-9] indicating that he would not be attending the meeting but invited her to meet at an alternative venue and date with his legal representative. He asked a number of questions about the process, including numerous questions about the exact nature and specific dates Mr Horgan and the HR rep who would be supporting her received training in numerous different areas of employee relations and law.

[201]On 17 September 2018 Ms Horgan wrote back to the claimant offering an independent venue but declining legal representation at the appeal hearing. She confirmed she has not been involved in the Transformation process. She gave the claimant opportunity to send a trade union representative or workplace companion on his behalf, or to send written representations to be considered at the appeal hearing. She set out that the meeting would go ahead in the claimant’s absence if he did not avail himself of these options.

[202]On 22 September 2018 the claimant confirmed he would not attend the meeting. On 24 September 2018 Ms Horgan confirmed the hearing would go ahead. Later that day the claimant sent another communication making a number of observations about Ms Horgan’s professional obligations as an HR professional of 30 years experience, and indicating his significant reservations as to the respondent’s ability to operate a fair and equitable hearing process.

[203]On 25 September 2018 Ms Horgan conducted the appeal hearing in the claimant’s absence. Based on matters raised in the claimant’s appeal, Ms Horgan considered that she needed to speak to Ms Watt and Ms Pateman, which she did in early October 2018.

[204]On 13 October 2018 the claimant commenced ACAS early conciliation in respect of claim 2304005/2018, and was issued a certificate on 15 October 2018.

[205]On 26 October 2018 Ms Horgan wrote to the claimant with her appeal outcome letter [1006-1012]. This letter was detailed and thorough and included the following:a. Ms Horgan set out the process she followed.

b. She addressed the claimant’s complaints about the involvement of Ms Watt, following her interviewing Ms Watt and Ms Pateman. She concluded that Ms Pateman was the decision-maker in respect of the dismissal and was not influenced by Ms Watt.

c. Ms Horgan set out her understanding that the claimant was saying he was disabled and the respondent failed to make a reasonable adjustment which would have been appointing him to the role he preferenced to the Transformation process. She commented that this was essentially the same issue that he had raised in his grievance dated 16 October 2017. While not re-investigating the grievance she looked at the grievance documentation and found that the outcome and appeal outcome in respect of the grievance concluded matters such that the claimant could then have engaged with a return to work from January 2018. When the grievance appeal process was concluded, a further approach was made to the claimant to investigate a return to work. The claimant’s response was to raise a further grievance stating the same points again (which he would then further raise to Ms Pateman and Ms Horgan herself).

d. Ms Horgan concluded that “we are stuck in an ongoing cycle of you raising the same complaints, TfL responding and then you raising these again because you do not agree with the outcome you have been given so we are unable to move forward”.

e. On the issue of right to be accompanied, Ms Horgan did not accept the claimant had been denied the right to be accompanied, and that this had been offered repeatedly. She did not accept that the legal precedents quoted by the claimant about legal representation applied to the process as the decisions by Ms Pateman and Ms Horgan herself did not affect the claimant’s ability to continue to practice professionally as an accountant, but were specifically concerned with his ongoing employment with the respondent.

f. Ms Horgan addressed the section 44 ERA point, which she said she had sought legal advice on. She did not accept the claimant’s case that there were circumstances of danger which he could reasonably have believed to be serious and imminent. She noted the various reasonable steps the respondent offered which would have the effect of removing or reducing the risk he believed existed. She said the claimant had not been willing to engage with these steps or with the respondent’s attempts to obtain further medical advice from his GP on other potential steps. She did not accept the claimant was entitled to refuse to attend work under section 44 ERA. The claimant had refused all attempts for the respondent to apply its Attendance at Work policy.

g. Ms Horgan addressed the point made by the respondent about his concern regarding occupational health, and noted that Mr Gregory had requested the claimant’s permission for occupational health to contact the claimant’s GP directly.

h. Ms Horgan concluded that, on a review of the emails between the claimant and Mr Gregory between November 2017 and May 2018, that Mr Gregory had been very clear on the need to account for the claimant’s absence under the Absence at Work policy and was committed to try and support the claimant in returning to work in a complex situation.

i. Ms Horgan noted the claimant’s reasonable adjustment to be placed in a role in Network Operations Services, but said that a decision had been made not to fill the second role for commercial reasons. She noted the claimant’s concerns about working on the seventh floor, which had been taken seriously, but none of the individuals the claimant expressed concern about worked in this area any more and there was no requirement for the claimant to interact with them. The claimant had not suggested any other solution and the respondent had not been able to find a way forward to enable a return to work.

j. Ms Horgan did not accept that the claimant had been dismissed for making protected disclosures, and accepted Ms Pateman’s reason for dismissal, namely that she genuinely believed that all options in assisting the claimant back to work had been exhausted and the employment relationship was beyond repair.

[206]Ms Horgan dismissed the claimant’s appeal. She observed “The reason your employment was terminated is that all options in assisting you back to work had been exhausted and the relationship between you and TfL is beyond repair. I agree with these findings. I do not find you were dismissed for any of the other reasons you have stated in paragraphs 36 to 40, nor that your dismissal was otherwise unfair”.

[207]On 5 November 2018 the claimant commenced early conciliation in respect of his claim 2304163/2018 and received his certificate on 8 November 2018. Payment of PILON

[208]On 29 January 2019 the claimant informed the respondent for the first time in an email to their solicitors [1026] that his bank account had been closed on 10 August 2018 “as a direct result of the unlawful deductions and detriment that TFL have subjected me to”.

[209]On 3 May 2019 a payment was made into one of the respondent’s bank accounts for the sum of £11,132.64 (the amount of the PILON), but with no evidence of what the payment was in respect of.

[210]On 15 October 2019 the respondent solicitor drew this to the claimant’s attention, asked him to confirm his understanding that this sum was due to him and to provide the details of a bank account it could be paid into.

[211]On 7 November 2019 the claimant asked to be paid by cheque. On 12 November 2019 the claimant was asked to confirm his address. He confirmed his address on 13 December 2019. On 19 December 2019 the respondent sent the claimant a cheque which he cashed in May 2020. Additional findings relating to disability

[212]The claimant provided a Disability Impact Statement (“DIS”) on 18 February 2019 [97-102]. This DIS covers a number of issues not relevant to these proceedings. It also sets of the effects of IBS on his daily activities. He says that he can have sudden bouts of diarrhoea which leads him to avoid rush hour transport. He has stomach cramps and pains which lead him to staying at home in comfortable surroundings and eat at irregular times. He says the condition gives rise to back ache, fatigue and difficulty sleeping which leads to lack of energy. He says his anxiety causes him to have consistent feelings of apprehension and fear, especially as regards work-related matters. He says he has agoraphobia, fears leaving home and this impacts his work and social life. He says he avoids rush hour transport, taking lifts and that his daily routines are affected.

[213]The claimant’s GP notes for the relevant period were in the bundle [960-986]. These notes include:a. A reference to “sharp abdominal pain” on 23 October 2015.

b. “Epigastric pain last week ended up in Kingston Hospital and advised to have ogd UNDER A LOT F STRESS AS ISSUE AT WORK” on 2 December 2015.

c. On 28 April 2016 “Patient having recurrent abdo pains and says can’t hold food down – had ensocopy in March – normal” and a diagnosis of Irritable Bowel Syndrome. There were further references to abdominal cramps, diarrhoea, discomfort and bloatedness on 13 May 2016.

d. On 3 June 2016 a reference to feeling stressed/nausea, stress at work and a diagnosis of depression. He was prescribed Sertaline. Similar issues were noted on 6 and15 June 2016. There was a diagnosis of stress and anxiety on 30 June 2016.

e. A letter from a consultant gastroenterologist dated 1 August 2016 referred to the claimant having attended clinic on 27 July 2016, and to a likely diagnosis of irritable bowel syndrome.

f. On 29 September 2016 the claimant was reported to be feeling better and planning on returning to work. There was stress at home. He had stopped taking anti-depressants (Sertaline) and had contacted IAPT (primary care talking therapies).

g. On 18 November 2016 there was a reference to “Minor: irritable bowel syndrome”.

h. On 18 October 2017 there was reference to stress at work. On 20 October 2017 a fit note was issued and there was a reference to a recurrence of abdominal pains and chest pains due to stress at work. This was further noted on 3 November 2017 following a telephone call from the claimant.

i. On 3 January 2018 there was a reference to the claimant having anxiety issues. This appears to be the last record of the claimant actually attending his GP surgery in the relevant period in respect of mental health issues or IBS (there is an attendance for unrelated matters in December 2017).

j. On 15 May 2018 there was a reference to the claimant having rang the surgery saying he had lost weight and having issues with his stomach worsened by stress. The records suggest that the claimant had an appointment booked for 21 May 2018 which he did not attend.

[214]We repeat paragraph 150 above, that the only medical evidence presented to the respondent was the GP letter of 15 September 2017, the fit note of 20 October 2017 and the GP letter of 3 January 2018 concerning the extension of appeal deadlines. The only additional medical evidence presented to this tribunal appears to be the GP records and the consultant letter of 1 August 2016 (paragraph 213(e) above). Reliability of evidence

[215]We would observe that there is a difference in the accounts being put forward by the claimant, and the respondents and their witnesses. Before we embarked upon our fact-finding we reflected on the observations made by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Limited and another

[2013] EWHC 3560 (Comm)

about the fallibility of human memory. He observed that the vividness of memories and the confidence in their accuracy of those who hold them is no guarantee of reliability. Memories are fluid and malleable and external information can cause dramatic changes to them. Memories of past beliefs can be unreliable in that they are liable to be brought into alignment with current beliefs by external influences. The process of litigation itself “subjects the memories of witnesses to powerful biases” which cause the memory of events to be based increasingly on such things as the contents of a witness statement and later interpretations of an event rather than the original experience of the event.

[216]All of this led Leggatt J to the conclusion that “the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”. These observations, though made in the context of commercial litigation in the High Court, are applicable to employment litigation.

[217]Because of the age of this case we are finding facts and drawing conclusions about events six or seven years ago. Whether it is a consideration of disability or of the events within the workplace we have found it appropriate to anchor ourselves firmly in the contemporaneous documents.

The Law

[218]Between them the parties referred to a very substantial amount of legal material in their respective closing submissions and replies. No disrespect is intended to the parties’ diligence by not referring to it all. The legislative provisions and core legal principles relevant to the various claims will be set out for reasons of proportionality. The tribunal has considered all legal submissions made by the parties. Disability

[219]Section 6 Equality Act 2010 (“EqA) provides: - (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities

[220]Schedule 1 Part 1 Paragraph 2 of the EqA provides: - 1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[221]Part 2 of the same schedule obliges tribunals to take account of such guidance as it thinks is relevant. The “Equality Act 2010 Guidance: Guidance on matters to bet taken into account in determining questions relating to the definition of disability” (May 2011) (the “Guidance”) was issued by the Secretary of State pursuant to s. 6(5) of the EqA 2010.

[222]Unlike Disability Discrimination Act 1995, the EqA does not set out what day-to-day activities might be. Section D of the Guidance is some assistance and gives some examples. The Appendix of the Guidance also gives an illustrative and non-exhaustive list of factors which would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities, and a list of factors it would not be reasonable to regard as having a substantial adverse effect on normal day-to-day activities.

[223]The relevant point in time in assessing whether the claimant is disabled under section 6 EqA is the time of the alleged discriminatory acts (Cruikshank v Vaw Motorcast Ltd

[2002] ICR 729

[224]In J v DLA Piper UK LLP

UKEAT/0263/09/RN

the EAT observed at paragraph 42: - The first point concerns the legitimacy in principle of the kind of distinction made by the Tribunal, as summarised at para. 33 (3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness – or, if you prefer, a mental condition – which is conveniently referred to as "clinical depression" and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or – if the jargon may be forgiven – "adverse life events".[ We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians – it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case – and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as "depression" ("clinical" or otherwise), "anxiety" and "stress". Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para. 40 (2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for twelve months or more, it would in most cases be likely to conclude that he or she was indeed suffering "clinical depression" rather than simply a reaction to adverse circumstances: it is a common-sense observation that such reactions are not normally long-lived Indirect discrimination

[225]Section 19 EqA provides: (1)A person(a) (A) discriminates against another

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

[226]The claimant does not have to establish why a PCP puts the affected group at a particular disadvantage but a causal connection between the PCP and the particular disadvantage experienced by the group and the individual is required. The reason for the disadvantage need not be unlawful, or even under the control of the employer. There is also no requirement that the PCP puts every member of a group at a disadvantage. It is commonplace, but not essential for disparate impact to be shown by statistical evidence. Finally, it is open to the employer to justify the PCP. (Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice

[2017] UKSC 27

[227]In terms of establishing group disadvantage, a number of authorities have considered the issue of judicial notice being taken of the fact that women bear the greater burden of childcare responsibilities than men and this can limit their ability to work certain hours. The EAT in Dobson v North Cumbria Integrated Care NHS Foundation Trust [2021] IRL 729 considered this issue and reviewed the authorities. The EAT concluded as follows at paragraph 56: In summary, when considering whether there is group disadvantage in a claim of indirect discrimination, tribunals should bear in mind that particular disadvantage can be established in one of several ways, including the following:a. There may be statistical or other tangible evidence of disadvantage. However, the absence of such evidence should not usually result in the claim of indirect discrimination (and of group disadvantage in particular) being rejected in limine;

b. Group disadvantage may be inferred from the fact that there is a particular disadvantage in the individual case. Whether or not that is so will depend on the facts, including the nature of the PCP and the disadvantage faced. Clearly, it may be more difficult to extrapolate from the particular to the general in this way when the disadvantage to the individual is because of a unique or highly unusual set of circumstances that may not be the same as those with whom the protected characteristic is shared;

c. The disadvantage may be inherent in the PCP in question; and/or

d. The disadvantage may be established having regard to matters, such as the childcare disparity, of which judicial notice should be taken. Once again, whether or not that is so will depend on the nature of the PCP and how it relates to the matter in respect of which judicial notice is to be taken.

[228]On the question of whether a PCP is “applied”, the EAT held in Glover v Lacoste UK Limited

[2023] ICR 1243

that it was not the case that a an employer’s decision on an application for flexible working could only be applied once there had been attempts to work to the new pattern.

[229]The Supreme Court in Homer v Chief Constable of West Yorkshire Police

[2012] IRLR 601

set out the following questions to address on the issue of justification: a) Does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right? b) Is the measure rationally connected to that aim? c) Could a less intrusive measure have been used? d) Bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?

[230]In Hardy v Hansons and Lax

[2005] IRLR 726

the Court of Appeal observed that: “The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. The statute requires the employment tribunal to make judgments upon systems of work, their feasibility or otherwise, the practical problems which may or may not arise from job sharing in a particular business, and the economic impact, in a competitive world, which the restrictions impose upon the employer's freedom of action. […] This is an appraisal requiring considerable skill and insight. As this court has recognised in Allonby and in Cadman, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal.”

[231]In considering whether there were less discriminatory ways by which the Respondent’s legitimate aim could have been achieved the Tribunal is required to carry out a balancing exercise where the employer’s business needs are weighed against the (potentially discriminatory) impact of the proposed measures on both the shared group and on the Claimant specifically: Birtenshaw v Oldfield

[2019] IRLR 946

[232]The burden of proof provisions (which apply to all causes of action in this claim) are set out in section 136 EqA 2010:-(1) This section applies to any proceedings relating to a contravention of this Act.

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

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[233]Guidance on the application of the burden of proof provisions of the Sex Discrimination Act 1975 (which is applicable to the EqA, including claims of harassment and victimisation) was given by the Court of Appeal in Igen v Wong

[2005] IRLR 258

: Discrimination arising from disability

[234]Section 15 EqA provides:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[235]Guidance was given by the EAT on the correct approach to section 15 claims in Pnaisner v NHS England

[2016] IRLR 170

. In short:a. Was there unfavourable treatment and by whom?

b. What caused the alleged treatment, or what was the reason for it?

c. Motive is irrelevant.

d. Was the cause/reason “something” arising in consequence of the claimant’s disability?

e. The more links in the chain of causation, the harder it will be to establish the necessary connection.

f. This stage of causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

g. The knowledge requirement is as to the disability itself, not extending to the “something” that led to the unfavourable treatment.

h. It does not matter in which order these matters are considered by the tribunal. Reasonable adjustments

[236]Section 20 EqA sets out the duty to make reasonable adjustments, which comprises three requirements, the first of which is: - “where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”.

[237]“Substantial” is defined in section 212(1) as meaning “more than minor or trivial”.

[238]Section 21 EqA provides that a failure to comply with any of the requirements in section 20 is a failure to comply with the duty to make reasonable adjustments. A person or body subject to the EqA discriminates against a disabled person if they or it fails to comply with that duty in relation to that person.

[239]EqA Schedule 8, Part 3 paragraph 20(1)(b) provides: - A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a)… (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.

[240]What is required for knowledge is the for the employer to know of the facts of the disability (the impairment, the long-term substantial adverse effect on the ability to carry out day to day activities). There is no need for the employer to know of a cause or diagnosis (Gallop v Newport City Council

[2014] IRLR 211

, Urso v Department for Work and Pensions

[2017] IRLR 304

, Jennings v Barts and the London NHS Trust [2011] All ER (D).) Harassment

[241]Section 26(1) EqA provides: - A person(a) (A) harasses another

(b) (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.

[242]Section 26(4) EqA sets out factors which tribunals must take into account: - (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.

[243]Section 212(1) EqA provides that conduct amounting to harassment cannot also be direct discrimination.

[244]The Court of Appeal in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

stated:- “an employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so….We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[245]The Court of Appeal again emphasised that tribunals must not cheapen the significance of the words of section 26 EqA as “they are an important control to prevent trivial acts causing minor upsets being caught up by the concept of harassment” (Land Registry v Grant

[2011] ICR 1390

). Victimisation

[246]Section 27 EqA deals with victimisation and provides: -(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[247]A person suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

. An unjustified sense of grievance is not sufficient (Barclays Bank plc v Kapur (No. 2)

[1995] IRLR 87

and EHRC Employment Code, paragraphs 9.8 and 9.9). Health and safety detriment

[248]Section 44 Employment Rights Act 1996 (ERA) was amended in May 2021. However, at the time of these claims, it provided as follows:(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that … (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or herself or other persons from the danger.

(2) For the purposes of subsection 1(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the

(3) An employee is not to be regarded as having been subjected to any detriment on the ground specified in subsection 1(e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

(4) This section does not apply where the detriment in question amounts to dismissal (within the meaning of [Part X]).

[249]In Rogers v. Leeds Laser Cutting Limited

[2022] EWCA Civ 1659

a case concerning the related provisions of section 100(d) ERA, the Court of Appeal set out the questions to be addressed by the tribunal: i. Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so: ii. Was that belief reasonable? If so: iii. Could they have reasonably have averted that danger? If not: iv. Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so: v. What was the reason (or principle reason) for the dismissal?

[250]Obviously the last question will be a relevant one for the claim under section 100 ERA (see below) but the issue in a section 44 claim brought under section 48 ERA is whether the section 44(d) grounds materially influenced the employer in subjecting the worker to a detriment (Fecitt and Others v. NHS Manchester

[2012] ICR 372

). It is for the employer to show the ground on which any act or deliberate failure to act was done (section 48(2) ERA), though the burden is on the worker to show the detriment occurred (Hollinghurst v. James Hall & Co Ltd UKEAT 0162/17). Detriment has the same meaning as in Shamoon (see Jesudason v. Alder Hey Children's NHS Foundation Trust

[2020] IRLR 374

[251]Rogers also proceeded on the basis that where an employee had left and/or refused to return to a workplace, this should properly be considered under section 44(d) rather than (e). Automatic unfair dismissal (health and safety)

[252]Section 100 ERA provides:(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that— … (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the

(3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.

[253]As set out above, a case where a worker leaves and/or refuses to return to the workplace will be considered under subsection (d) the meaning of which is set out above.

[254]In an automatically unfair dismissal claim where an employee has two years service the burden is on the employer to show the reason for dismissal. If evidence is shown to suggest this, the burden passes to the employee to show that there is a real issue as to whether that was the true reason (Maund v Penwith District Council

[1984] IRLR 24

. Automatically unfair dismissal (whistleblowing) Protected disclosures

[255]Part IVA ERA provides as follows in relation to protected disclosures: Section 43A In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H Section 43B (1) 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— … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, … (d) that the health or safety of any individual has been, is being or is likely to be endangered,

[256]The authorities stress the importance of the tribunal taking a structured approach to determinations relating to protected disclosures. As set out in Williams v Michelle Brown AM

UKEAT/0024/19

“First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.''

[257]There must be a disclosure of information, that is to say the conveying of facts, and it is not sufficient for the claimant simply to have made allegations Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

. However, a disclosure may contain sufficient information to qualify for protection even if it includes allegations. The question of whether there is sufficient information will be a matter of fact for us taking into account context and background (Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

). Kilraine further makes clear that in order for a statement or disclosure to be a qualifying disclosure it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters in section 43B(1) ERA.

[258]In terms of the public interest element, in Chesterton v Nurmohamed [2017] IRL 837 the Court of Appeal set out factors to be considered by a tribunal in deciding whether there was a reasonable belief a disclosure was made in the public interest. They are the numbers whose interests the disclosure serve; the nature of the interests affects; the nature of wrongdoing disclosed; the identity of the alleged wrongdoer. Where a disclosure raises questions of a personal character, the question of whether it is reasonable to regard it as being in the public interest is to be answered by considering all of the relevant circumstances of the case. Dobbie v Felton

[2021] IRLR 679

held that a disclosure relevant to one person could nonetheless be in the public interest.

[259]Section 103A ERA provides that “An employee who is dismissed shall be regarded for the purposes of this Part 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”.

[260]The “reason” for the dismissal “connotes the factor or factors operating on the mind of the decision-maker which causes them to take the decision.” Beatt v Croydon Health Services NHS Trust

[2017] ICR 1240

. “Ordinary” unfair dismissal

[261]Section 98 ERA provides:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (ba)… (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (2A) …

(3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held. (3A) …

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case. (5). . . . . . (6) Subsection (4) is subject to— (a) sections 98A to 107 of this Act, and (b) …

[262]“Some other substantial reason” is not defined, but case law has recognised that a breakdown of trust and confidence can amount to such. In considering the fairness of trust and confidence dismissals, the tribunal should consider what, if any, sensible, practical and genuine steps the employer had taken to attempt to resolve the problems that had arisen (Turner v Vestric Limited

[1980] IRLR 23

[263]In ordinary disciplinary proceedings, where all that could be at stake was the loss of a specific job,

Article 6 of the European Convention on Human Rights

would not be engaged, and the individual would not be entitled to legal representation. However, where the effect of the proceedings could be far more serious and could deprive the employee of the right to practise his or her profession, the Article would be engaged (Kulkarni v Milton Keynes Hospitals NHS Trust

[2009] IRLR 829

Conclusions

[264]We will set out our conclusions on the issues we have to determine in the List of Issues. We will not necessarily follow the order of that document at all times, but will set out clearly which issue we are determining using the format of, for example, LOI 11.1 to indicate paragraph 11.1 of the List of Issues. Disability (LOI4)

[265]Our findings of fact are largely set out at paragraphs 212-214 above.

[266]Our assessment of whether the claimant was a disabled person focusses on the period in which he alleges he was discriminated against. That is from 11 August 2017, when he was notified of his allocation to the LU Planning role in Transformation, to his dismissal on 9 August 2018.

[267]He had had a diagnosis of IBS in April 2016. Stress at work had been mentioned by his GP in December 2015 and June 2016 when he was diagnosed with depression and prescribed Sertraline, which he did not take for long. By September 2016 he was reported as feeling better. His IBS was described as “minor” in November 2016.

[268]We note that in filling out his expression of interest form for the Transformation on 14 July 2017 the claimant did not fill out the disability section.

[269]The claimant was present at work from 11 August 2017 to 16 October 2017 and there is nothing in the GP notes or other medical evidence during this period. This is the period when he was unsuccessful in securing his chosen role in the Transformation, and refusing to take up his allocated role and sit with the finance team on the 7th Floor.

[270]On 16 October 2017 the claimant left work and saw the GP the next day. His subsequent fit note referred to a recurrence of abdominal problems and chest pains due to stress at work.

[271]The claimant only presented one fit note, covering the period from 16 October 2017 to 31 October 2017. His case to this tribunal was that from 1 November 2017 he was not unfit to attend work, but that he was asserting a right under section 44 ERA to remove himself from the workplace in circumstances of serious and imminent danger. From this point on, he was not certified unfit for work and there is scant medical evidence of further medical problems. The GP writes a letter about anxiety and extension of appeal deadlines on 3 January 2018 following the claimant attending the surgery. As we set out above, this was the last attendance at the GP surgery in relation to mental health issues or IBS in the relevant period.

[272]As we have set out in our general observations about the reliability of evidence, we take the approach of seeking to anchor our findings, and indeed our conclusions, most firmly in the documentary evidence in the case.

[273]This is a case where the claimant, for most of the relevant period, is saying that he is not medically unfit for work. He is also not seeking medical help for his mental health issues or IBS for the majority of the relevant period.

[274]In respect of anxiety and depression, on balance we find that there is no reliable evidence of any substantial and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities during the period in which he claims to have been discriminated against. The overall picture presented by the claimant is not significantly supported contemporary evidence. This, therefore, is not one of those cases mentioned in J v DLA Piper, where a finding of a long-term adverse effect illuminates the question of impairment.

[275]We do not understand the EAT in J v DLA Piper to have been drawing a crude distinction between, on the one hand, reaction to “adverse life events”, which do not indicate an impairment, and “clinical depression” on the other, which is “unquestionably and impairment under the Act”. Paragraph 42 recognises the blurred lines, and how such a distinction might be questioned. The point that the EAT makes is that if someone’s ability to carry out day-to-day activities had been substantially impaired for 12 months or more, in most cases a tribunal is likely to conclude that the person was experiencing “clinical depression” rather than an adverse reaction to circumstances. The EAT points out that this is a common-sense observation as reactions are normally not long-lived.

[276]We do not find that the depression and/or anxiety were disabilities under the EqA. The evidence tends to suggest that the difficulties experienced by the claimant fell in the “adverse life events” side of the blurred line referred to in J v DLA Piper.

[277]On the issue of IBS, again, there is little reliable evidence that the claimant was experiencing this impairment as having a substantial longterm adverse effect on his ability to carry out day-to-day activities. There is no contemporaneous evidence that the claimant was saying, at the time, for example, that he was unable to use public transport because of stomach problems. In the relevant period (August 2017 to August 2018) the claimant appears only to have attended the GP surgery once in respect of this issue (as well as telephoning once to say he was still having problems).

[278]We do not find that the IBS amounted to a disability under the EqA.

[279]However, in case we are wrong in our assessment of disability, we will proceed to examine the claimant’s disability claims as though he was a disabled person at the relevant time. Discrimination arising from disability (LOI 5-10)

[280]Our reading of the issue is that the claimant says that the decision to move him to the role Finance Business Partner - LU Planning on 11 August 2017 was unfavourable treatment because stress exacerbates his IBS, something which arose from his disability.

[281]We consider first whether this was unfavourable treatment, that is to say something that is objectively adverse as compared to something beneficial. Despite the reams of documentation we are still at a loss as to how allocating the claimant to this role was unfavourable. It is right to say that he wanted a different role, but the one he was allocated was, we understand it at the same grade, at the same pay, and would be working in the same location (the 7th floor). There has been no evidence advanced that working in the role he was allocated would involve him having to work with any colleagues he had previously encountered difficulties with. These colleagues were no longer working either at the organisation or in the same area. We also note the claimant’s first reaction to the allocation, which was essentially that it was in the business’s best interest for him to stay in the role, and not for any other reason (paragraph 76 above).

[282]If the allocation of this role was unfavourable, we turn to what was the reason for the allocation. Mr Doig was the decision-maker in this respect and we set out the relevant findings in paragraphs 62 to 76 above. Mr Doig’s evidence was unchallenged that he had no knowledge of the claimants health conditions when he decided to allocate the claimant into a role. There is simply no evidence that the fact that stress exacerbates the claimant’s IBS (or indeed anything to do with the claimants health conditions) played any part whatsoever in Mr Doig’s decision to allocate the claimant the role that he did. The “something arising” from disability was in no sense an effective cause of the allocation to the role.

[283]While we have found that there is no unfavourable treatment because of something arising from disability, we would nonetheless find that Mr Doig’s decision was justified. The respondent was pursuing a legitimate aim of operating a fair allocation process under the transformation, and allocating the claimant this job was a proportionate means of achieving this given the fact he had not indicated a disability on his expression of interest form and given his scoring within the process.

[284]We do not uphold this claim. Reasonable adjustments (LOI11-17) The PCPs

[285]The claimant relies on PCPsa. LOI11.1 Seeking to move the Claimant to a working environment which the Respondent knew or ought to have known would exacerbate his IBS;

b. LOI11.2 Insisting that the Claimant move to a new role, when his

[286]In terms of LOI11.1 We do not find this PCP was applied. It is right to say that the Transformation process led to his being allocated a different role. But the claimant relies on the fact that the respondent knew or ought to have known of adverse health consequences identified in framing the PCP.

[287]The claimant did not fill out the disability section of the expression of interest form (paragraph 69 above). There is nothing from which Mr Doig or anyone else at the placement meeting on 27 July 2017 could have known that the role would exacerbate his IBS.

[288]Moving forward in time, while it is right to say the claimant made repeated assertions that a move would impact his health, they remained just that, assertions supported by minimal evidence. The GP letter of 15 September 2017 referred to gastrointestinal symptoms back in 2016, a diagnosis of IBS, stress, the need to avoid triggers and the need for necessary adjustments. As set out above, the letter does not set out what these triggers are and what the adjustments might look like. Our findings of fact above also show the significant attempts of the respondent went to try and understand the claimant’s medical issues and how they might prevent him from working in his allocated role. Our conclusions are that the claimant took practically no steps to engage with his employer to enable them to understand what is medical problems were and how they might impact work. He provided very little medical information, refused to attend occupational health service, refused to allow occupational health service to contact his GP and he engaged in protracted written exchanges in various formal and informal processes which provided no clarity about the issues.

[289]Some of these matters go towards the next element, were we to accept that such a PCP was applied. If we were to accept this, we would need to consider whether the PCP placed the claimant had a substantial disadvantage in comparison with persons who are not disabled. We repeat our observations about how little evidence supports the claimant’s contention that placing him in the role that the respondent did placed him at a disadvantage. None of the individuals who he had problems with before would be working with the claimant in the new role. The location of the new role was the same as the role he wanted to be placed into. The claimant has simply failed to identify any elements of the proposed role that would have caused problems to him. We note that this is the case despite significant efforts by the respondent to try and understand his difficulties, and the voluminous communication from the claimant on this matter in correspondence with managers, grievances, appeals and other formal process. We find ourselves, having heard the case over nine days, still at a loss to understand how it is that the claimant says that this role would disadvantage him.

[290]Our conclusions above lead us to the conclusion that the respondent could not have been expected to know that the above PCP would put the claimant at a substantial disadvantage in comparison with non-disabled persons. The claimant simply did not provide any material from which the respondent could reasonably have been expected to know this.

[291]Even if we had concluded in the claimant’s favour, we do not consider that his proposal at LOI17.1 that a reasonable adjustment would be allowing him to continue to work in his existing role on the sixth floor. Employee A was working that role and it would not be just or fair to displace her. In any event, she herself was working on the seventh floor.

[292]In terms of LOI11.2 we again do not accept that this PCP was applied. It is wrong to say that the claimant’s existing role remained. It is more accurate to say that his “existing” role mapped onto a new role. However, Employee A was successful in the Transformation in securing the one role that the respondent filled. When proposing the structure initially, a second such role was envisaged, but for business reasons was not filled.

[293]Even if this PCP was applied, we find for the same reasons as pertain to PCP LOI11.1 that such PCP did not put the claimant at a substantial disadvantage in comparison with non-disabled persons, and the respondent could not reasonably have been expected to know that it would put him at such a disadvantage.

[294]The claimant proposes another reasonable adjustment at LOI17.2 to carry out a disability impact assessment. The fact is that the respondent did do that. Additionally, a failure to conduct an assessment cannot amount to a failure to make a reasonable adjustment Tarbuck v. Sainsbury Supermarkets Ltd

[2006] IRLR 664

[295]The claimant’s reasonable adjustment claims are not upheld. Indirect discrimination (LOI18-24)

[296]The claimant relies on the same PCPs as he relies on for his reasonable adjustments claim. As set out above, we do not find that such PCPs were applied.

[297]A further feature of the PCPs is that they are particular to him and not ones that were or would have been applied to people who did not share his protected characteristic.

[298]For these reasons the claim does not get off the ground.

[299]However, there are further difficulties for the claimant in this claim. This is not one of those claims, for example like those relating to the disproportionate of impact of childcare on women, where the tribunal will take judicial notice of the disproportionate impact of a particular PCP. The claimant will have to prove that such PCPs put other persons who share the claimant’s disability at a particular disadvantage compared with those who do not share it. There is no such evidence.

[300]We do not go on to consider justification, as it would be a difficult exercise to consider the justification of a PCP we do not consider was applied. Harassment (LOI25-30)

[301]We find that all of the acts identified at LOI25 were unwanted by the claimant.

[302]We therefore turn to consider whether the acts satisfy the rest of the requirements of section 26 EqA.

[303]LOI25.1 is the claimant’s appointment to the role he was appointed to on 11 August 2017 rather than his preferenced role. We repeat our conclusions and our findings relating to discrimination arising from disability. Mr Doig’s unchallenged evidence, which we accept, was that he had no knowledge of any health condition of the claimant. The claimant had not referred to it on his expression of interest form. We do not accept the claimant’s submissions that because of previous disclosures of health difficulties to previous managers, and subsequent assertions of health difficulty after the decision on 11 August 2017, that informing him of his proposed role was somehow related to disability. We are focusing on the case set out in the list of issues. In any event, it is difficult to see how such disclosures and assertions make informing the claimant of the proposed role related to disability when there is clear and compelling evidence from Mr Doig about his own state of knowledge.

[304]Even if we were to accept that this act was related to disability, we do not find that Mr Doig’s purpose was to violate the claimants dignity or create the requisite environment set out in section 26(1)(b)(ii) (we will refer to these elements as the prescribed purpose or effect for shorthand). We further bear in mind the caution in the authorities to give the wording of section 26 its appropriate meaning. When it comes to the prescribed effect, we find that informing the claimant that he got a certain role in a restructure comes nowhere near the threshold of the prescribed effect. Having regard to the claimant’s perception, the circumstances of the case we do not consider it is remotely reasonable to find that the conduct had that effect.

[305]LOI25.2 is the requirement on the claimant to work on the seventh floor from 17 September 2017. Our findings on management dealings with the claimant after the announcement of the proposed rules under the Transformation is extensive. However, our findings are that the claimant was not actually required to work on the seventh floor. It is right to say that on 13 October 2017 Mr Patel informed the claimant that he wanted him to work on the seventh floor and that if he did not, a formal warning may follow. However, this went nowhere. The claimant refused to move from the sixth floor, he was never forced, was told on 27 September he could continue working on sixth floor as a temporary measure and on 19 October 2017 he was told that he could continue working on the sixth floor pending the hearing of the grievance. Further context is that the respondent engaged in substantial dialogue to try and understand what was the claimant’s difficulty working on the seventh floor. It reassured him that people he had difficulties within the past did not work there, but the claimant never identified what the problem was. The requirement for him to work there was because that was where his team was working, including Employee A. We do not find that this requirement related to disability.

[306]If we are wrong, and this requirement was somehow related to disability, we do not conclude that the purpose of Mr Patel, Mr Gregory or any of the respondent’s employees involved in exploring the Transformation role allocation was a prescribed one. We have set out the correspondence with the claimant extensively above, and it shows managers seeking to explore the potential difficulties and reach an evidence-based conclusion. The standpoint adopted by the claimant (Finance Business Partner – Network Operations role or nothing) did not allow for a proper exploration of this.

[307]In all the circumstances of the case, including the claimant’s perception, we do not consider it reasonable for the conduct to have the proscribed effect. The most forceful thing the respondent did in all of this was when Mr Patel told the claimant on 13 October 2017 that he might issue a formal warning if the claimant did not come to the seventh floor. A close examination of the respondent’s actions in all of this demonstrates that its conduct came nowhere near the threshold of amounting to harassing conduct.

[308]LOI25.3 is the allegedly “shambolic” grievance and its outcome on 20 December 2017. Our findings of fact on the grievance process are at paragraphs 118 to 123, 128 to 131, 133 to 134 and on its outcome at paragraphs 144 to 146.

[309]We find that Mr Knight approached his task diligently and conscientiously. Mr Knight told us that he did not have significant experience in carrying out grievance investigation and therefore relied heavily on HR support.

[310]Mr Knight sought to understand the claimant’s grievances, which he found were detailed and technical, and he invited the claimant to the grievance investigation meeting. As a reasonable adjustment he allowed the process to proceed in written form. He attempted to clarify with the claimant’s understanding of what the claimant’s grievance was about and ask questions for him to respond to. Mr Knight held investigation meetings with Mr Patel, Ms Braganza and Mr Ho as potentially relevant witnesses. He provided the claimant with an outcome.

[311]We do not conclude that Mr Knight’s grievance investigation was shambolic. He took the steps as identified above, which we find a reasonable. The only concern that we had about the process was the dropping of the investigation into allegations made against Ms Watt (see paragraphs 121 and 128 above). The thrust of the complaint, again lengthy and couched in legal terms, was that she ought to have communicated with the claimant’s line manager on his behalf, and that her response to this was heavy-handed. It appears that the way that this was dealt with was by a more senior HR professional, Ms Fearon-McCaulskey setting out to the claimant what the role of HR was. Mr Knight appeared to take the view that this dealt with the substance of the grievance. While we would observe that the grievance against Ms Watt did not appear to be a strong one, we can appreciate the claimant’s point of view that the approach was somehow inadequate.

[312]The grievance outcome was thorough, covered the relevant issues, having taken into account the evidence provided by the claimant and management witnesses. During the course of the hearing the claimant criticised the outcome as not dealing with a whistleblowing claim he said was clear from his grievance. As we have set out a number of times, much of the communication coming from the claimant was dense and difficult to understand. The grievance documentation was no different. While it is true to say that the claimant makes reference to whistleblowing citing the legislation and a number of reported cases, this was in of 84 paragraphs in this wide-ranging 16 page document. None of the headings in the document referred to whistleblowing, nor does his paragraph 8, which sets out a list of what his grievances were about. Additionally, the claimant does not subsequently clarify his grievance was one of whistleblowing to Mr Knight. In the circumstances we do not criticise Mr Knight for not making a conclusion on it. So much was set out in the grievance in a form that was not easy to understand, that it was almost inevitable that certain matters might be missed.

[313]It is difficult to establish how the claimant says that the way Mr Knight approached the grievance and the outcome he produced was in any way related to disability. THe claimant’s closing submissions do not assist. There is nothing from which we could conclude Mr Knight’s process and outcome were in any sense related to disability. We find that he conscientiously approached the investigation and made an appropriate outcome based on the evidence before him.

[314]Finally, even if we are wrong on the above, we do not find that Mr Knight had the proscribed purpose or that his conduct had the proscribed effect. Even if we were to follow through our concerns about the way the Watt grievance was dealt with, we do not find that it is reasonable having regard to all the circumstances, including the claimant’s perception, to regard the conduct is having the proscribed effect. We again bear in mind that we are not to cheapen the words of the statute. A failure to deal with one aspect of a grievance does not violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. Victimisation (LOI31-35)

[315]The respondent appears to accept that the grievances referred to at LOI 31.2, 31.3 and 31.4 raise protected act. The grievance at LOI 31.1 is on of 2 April 2015 [161]. The very first paragraph of this grievance refers to breach of statutory duties under various legislation including the Equality Act 2010. Although it is right to say that the rest of the grievance does not elaborate on this, we are prepared to accept that this grievance, together with the others, raises protected acts.

[316]The alleged detriment at LOI32.1 is a failure to investigate the claimant’s 2017 grievances. There is therefore a substantial overlap with the conduct he relies on as being harassment at LOI25.3. We repeat our conclusions from the section on harassment

[317]While we do not find that there was a failure properly to investigate the grievances, again, if we were to consider the failure to pursue the Watt grievance as being a failure to investigate we can find nothing from which we could conclude that the decision to approach the grievance in this way was because the claimant had raised issues under the Equality Act in the 2017 grievances or the grievances 1½ and 2 ½ years previously. The reason why Mr Knight approached this issue the way he did is because he believed that the claimant’s complaints about Ms Watt were about her role as an HR manager and not a decision-maker and this had been explained by Ms Fearon-McCaulskey. We do not find that the claimant was subjected to a detriment because he had done protected act.

[318]LOI32.2 is the threat of disciplinary action by Mr Patel on 13 October 2017. This took place before the grievances of 16 and 20 October 2017, and the claimant’s case must therefore be that Mr Patel did what he did because the claimant raised Equality Act issues in April 2015 and April 2016.

[319]We accepted Mr Patel’s unchallenged evidence that the claimant made him aware that he had raised grievances against people he had previously worked with, but that the claimant did not provide detail. Even if we were to consider the threat of disciplinary action as being a detriment there is nothing from which we could conclude that this was done because the claimant had raised equality issues within old grievances. Mr Patel’s motivation was not explored by the claimant, and we accept at face value his contention that he did what he did to try and incentivise the claimant to join the team on the seventh floor. This was nothing to do with old grievances the contents of which he knew nothing about.

[320]We do not uphold the claims of victimisation. Health and safety detriment

[321]Many of our conclusions about this issue can be applied to the claimant’s case of automatic fair dismissal under section 100 ERA, and we will not duplicate our conclusions later.

[322]The first issue we address is whether the claimant believed there were circumstances of serious and imminent danger at the workplace.

[323]There is significant context here:a. The claimant had not flagged up a disability in his expression of interest form (paragraph 69).

b. On 11 August 2017 the claimant’s first response to his allocation made no reference to health concerns (paragraph 76).

c. Although the claimant mentioned problems with former colleagues and health concerns when he met with Mr Ho in mid-August he did not go into detail (paragraph 78-79).

d. The claimant did not go into detail with Mr Patel on 13 September 2017, merely referring to a number of unresolved reasons meaning he could not sit on the seventh floor (paragraph 84).

e. The claimant went into a little more detail in his discussion with Mr Ho the following day. He articulated that the problem was having raised a grievance against members of the finance team which he regarded as not being properly resolved which prevented him from working on the seventh floor as it would be too stressful an impact on his IBS (paragraph 86). We note, however that this grievance had been adjudicated on as had the appeal. His further attempts to resurrect this grievance were not allowed.

f. The GP letter of 15 September 2017 [231] does refer to stressrelated IBS, avoiding workplace stress related triggers and advising on necessary adjustments. However, it did not identify what these triggers were or what adjustments might be required.

g. Mr Ho investigated the position and later explained to the claimant on 26 September 2017 that none of the people involved in previous grievances worked on the seventh floor. We cannot see, in these circumstances, even if the claimant believed his previous grievances had not been resolved, what triggers there might be in the new role or on the seventh floor to impact his health. He did not explain it to his employers at the time and has failed to make that clear to us. Furthermore, on that day as he did subsequently, he refused a referral to occupational health (see paragraph 95 above).

h. The claimant made reference in a meeting with Mr Patel on 4 October 2017 two problems with certain members of the finance team who he put in a grievance about but did not go into detail. Mr Patel attempted to reassure the claimant that these issues were in the past (paragraph 99).

[324]We set out the circumstances of the claimant leaving the workplace on 16 October 2017 and his grievance of that day at paragraphs 104 to 108. The closest the claimant comes to identifying the danger is the requirement to work with people identified in his previous grievance which he believed would impact his health. He had been reassured by Mr Ho that these people would not be working on the seventh floor. The claimant has never, either in the workplace or in proceedings before us provided any evidence that this was not the case. The claimant relies on his GP letter of 15 September 2017, but this does not identify triggers or adjustments.

[325]We also remind ourselves of the passage of cross examination we have set out at paragraph 195 above.

[326]Taking into account the context as we have set out above we conclude that the claimant did not in fact believe that there were circumstances of serious and imminent danger. The explanation which best fits with the facts is that the claimant had taken the decision that he simply would not move from the sixth floor and would not budge from his desire to be moved into the Network Operation role. The conclusion that the claimant did not in fact believe there was a serious and imminent danger was a finely balanced one. It may be the case that the claimant had, subjectively, constructed a narrative in his own mind that circumstances of danger existed despite the lack of supporting evidence to that effect.

[327]In which case, we turned to whether such a belief was reasonable. The critical point here is that the claimant appeared to be pinning his belief in serious and imminent danger on his previous problems with certain colleagues. He was told that these colleagues would not be working with him, and he did not seek to challenge this. Any belief that a serious and imminent danger existed was not reasonable as there was no evidence to base it on. He said working with these people would be bad for his health; he was told he would not be working with him; he provided nothing to challenge this.

[328]Even if we are wrong on this, we consider that the claimant could reasonably have sought to avert the danger as he saw it by continuing to stay on the sixth floor. True, he was threatened with disciplinary action at one point if he did not move to the seventh floor, but this was not taken any further, and he was told on 27 September (paragraph 96) and 19 October 2017 (paragraph 116) that he could continue to work on the sixth floor as a temporary measure. The claimant simply remained away from work.

[329]In terms of the claimant remaining away from the workplace, part of his grievance was concerned with his assertions under section 44 ERA. This was investigated. We find that the respondent was taking active steps to try and understand the danger that the claimant felt existed and how it could be mitigated (paragraphs 125, 130, 141, 143, 149, 151). The respondent sought to refer the claimant to occupational health, but the claimant refused to engage with this process (paragraph 132, 147-8, 153- 4, 156). In short the respondent was asking in fairly straightforward terms “What is the problem? How can we help?”. The responses from the claimant were anything but straightforward. They were convoluted, lengthy, repetitive, at times antagonistic in tone and did nothing to help advance the respondent’s understanding of the claimant’s problems and identify potential solutions. The claimant chose to focus on lengthy assertions of breach of numerous legal rights, but chose not to supply the straightforward factual information that might have led towards a resolution. When pressed for clarity (which we find was much needed) he would, effectively, say “See my earlier response” (paragraph 125, 131, 147).

[330]In short, once again we do not accept that the claimant, when he was remaining away from the workplace, had a genuine belief that there were circumstances of imminent and serious danger within the workplace. In large part he was never doing anything more than making assertions of breach of his rights and generalised claims of an unsafe workplace because of stress. The explanation that best fits the facts is that the claimant was being intransigent and simply maintaining a position that he would only accept doing the network operations job sitting on the sixth floor.

[331]In the alternative, any belief in a serious and imminent danger was not reasonably held. The only factual basis in support of his claim that there was imminent and serious danger was that he would have to work with people about whom he had made a grievance. He was told on more than one occasion that this was not the case, and there was no information on which he could reasonably believe the contrary.

[332]We therefore conclude that the circumstances in section 44(1)(d) ERA did not apply. There was no reasonable belief in serious and imminent circumstances of danger. We do not consider that we have to decide this point, but the claimant would not be able to make out his claim under section 44(1)(e) ERA which also require reasonable belief in circumstances of serious and imminent danger.

[333]Although we do not find that section 44(1)(d) ERA is engaged we will briefly look at the detriments the claimant relies on.

[334]LOI 40.1: we have already concluded that Mr Knight did not fail properly to investigate the grievances of 16 and 20 October 2017. His approach to his investigation and his outcomes had absolutely nothing to do with the fact that the claimant had sought to assert a right under section 44 ERA. This issue also refers to Grievance 5 (see paragraph 182). This was the claimant putting in a further grievance in the same terms as the one which had previously been determined against him, a finding upheld on appeal. The claimant had done exactly the same thing with his 2016 grievance. Our conclusion is that the failure to investigate this grievance was because it was a duplicate. This had absolutely nothing to do with the fact that the claimant had asserted a right under section 44 ERA.

[335]LOI 40.2: the detriment here is the loss of pay from November 2017 until the termination of his employment. Our findings are at paragraphs 137, 139 and 158. The reason why the claimant was deducted pay was because he was absent without a sick certificate. He was not genuinely absent from the workplace asserting a right under section 44 ERA.

[336]The claimant advances automatically unfair dismissal claims under section 100 ERA and section 103A ERA. Section 100

[337]We have set out conclusions at paragraphs 322-334 above that the claimant did not have a reasonable belief that there were circumstances of serious and imminent danger justifying leaving or remaining away from the workplace. Section 44(1)(d) and (e) ERA (before the 2021 amendments) were in identical terms to section 100(1)(d) and (e). Our conclusion on that issue therefore disposes of a section 100 claim also. Additionally, as will be seen below, we have reached firm conclusions on what the employer’s reason for dismissal was, namely that trust and confidence had irretrievably broken down.

[338]This claim is not upheld and is dismissed. Section 103A

[339]We have set out at paragraphs 87-93 above our findings of fact about whether the claimant made the disclosures as alleged in LOI 50.1 We found that he did not make these disclosures. Again, these findings dispose of the section 103A claim in respect of this alleged disclosure.

[340]As regards LOI 50.2 the claimant has not identified the emails he says contained these disclosures of information. This makes it impossible for us to make conclusions on what information the claimant disclosed, whether the claimant reasonably believed the disclosure was in the public interest and that it tended to show a relevant failure. This again disposes of the section 103A claim in respect of this alleged disclosure.

[341]However, on the question for reason for dismissal we also point to our firm conclusions about the reason for dismissal below. We might add, on this point, that our perspective, as a tribunal, is different from that in the workplace. Alleged protected disclosures are highlighted in pleading, set out in a List of Issues, referred to in witness statements and subject to crossexamination and submissions. This process can give them a prominence they may not have merited in the workplace just because of the way litigation works. It is often useful to attempt to shift perspectives to see the prominence the alleged disclosures may have had in the workplace in order to work out whether they were the reason or principal reason for dismissal. The notion that what actually motivated Ms Pateman when she made her decision to dismiss in August 2018 was in fact what the claimant may have said in two conversations and unidentified emails from a year or so previously is fanciful in the extreme. Not least when reams of other communication had been produced by the claimant in the intervening period. Quite why Ms Pateman would look beyond to these conversations and emails is not understood. Reason for dismissal

[342]The factual underpinning of the dismissal was the investigation carried out by Mr Carlin. Our findings of fact are at paragraphs 161-6, 176, 178 and 183 above, which we do not repeat. However, we conclude that Mr Carlin carried out a thorough investigation which set out its scope clearly, sought to acquire evidence from the claimant and Mr Gregory and made appropriate conclusions from the evidence. He recommended that the matter be referred to the business to consider whether it was possible to move forward.

[343]Our findings about Ms Pateman’s formal process is at paragraph 184-197. Again, we conclude that she carried out a thorough investigation of the issues, coming at things with a mind to explore positive resolution. Ms Pateman correctly identified what became clear to us in the passage of cross-examination referred at paragraph 195 that, essentially, the claimant wanted the Network Operations role, and being given this role (which was not something that could be done) was the only way forward the claimant would consider. She came to a reasonable view on the evidence, which was that all options for assisting the claimant back into the workplace had been exhausted and that the employment relationship was beyond repair. She reached this conclusion on a broad review of the relevant evidence. This was the reason why she dismissed the claimant. She did not dismiss him because of something he may have said to Mr Ho or Ms Braganza a year or so previously, or because of certain things he might have said in unidentified emails to Mr Knight or Mr Gregory.

[344]The appeal was part of the dismissal process and our relevant findings are at paragraph 198-206 above. We will not repeat ourselves, but we conclude that Ms Horgan conducted a thorough appeal process which examined the grounds put forward by the claimant. We find that her conclusion set out at paragraph 206 above is unimpeachable on any view of the evidence. All options for helping the claimant back into the workplace were exhausted and the relationship was beyond repair.

[345]We conclude that the reason why the respondent dismissed the claimant was because it believed that the working relationship was beyond repair. Another way of putting this would be that trust and confidence had irretrievably broken down. Potentially fair reason

[346]The case law has established that a breakdown of trust and confidence can amount to a substantial reason justifying dismissal. We conclude that the reason for the respondent dismissing the claimant was for this other substantial reason justifying dismissal. Fairness under section 98(4) ERA

[347]We have set out the process the respondent followed. It was a quasidisciplinary one in three stages.

[348]Mr Carlin conducted a fact-finding, or investigation stage. As we have commented, he set out the scope of his inquiry, he interviewed relevant witnesses and gathered relevant evidence. The claimant was given ample opportunity, in fact he was encouraged, to feed into this process. We conclude that Mr Carlin’s findings and recommendations fall well within the band of reasonable responses open to an employer conducting this stage of an investigation into whether trust and confidence had broken down.

[349]The next stage was Ms Pateman’s decision-making stage. The claimant was provided with the fact-finding evidence. He was invited to a meeting and given the appropriate right of accompaniment. Ms Pateman would not potentially be making a decision that would impact the claimant’s ability to practice in a chosen profession, and so her decision not to allow legal representation was appropriate and fair. She made reasonable adjustments to allow the claimant to feed into the process in writing rather than having to attend a hearing. She considered his written input.

[350]In terms of the decision she made, we have made some observations in the section above on the reason for dismissal. Furthermore, it was clear that Ms Pateman carefully analysed what appeared to be at the heart of the matter, and sought to understand the danger that the claimant felt that the workplace presented. She looked at the steps Mr Gregory had taken to understand the medical issues (for example by referring the claimant to occupational health) but concluded that the claimant had refused all attempts properly to obtain medical advice and had not engaged with Mr Gregory. Ms Pateman correctly identified that the only way forward the claimant was interested in pursuing was to be put into the Network Operations role, which was not possible. She observed that it was difficult to understand the claimant’s communications and it was impossible to move forward.

[351]We find that Ms Pateman’s conclusions fall squarely within the band of reasonable responses.

[352]The claimant was offered an appeal against dismissal. He was, appropriately, not permitted to be legally represented, but offered similar reasonable adjustments as offered by Ms Pateman. Ms Horgan addressed concerns raised about the involvement of Ms Watt, and dealt with all matters raised in the claimant’s appeal.

[353]We find that Ms Horgan’s conclusions fell well within the band of reasonable responses.

[354]We find that the decision to dismiss was made following a fair procedure.

[355]We turn to consider whether the respondent acted reasonably or unreasonably in treating the breakdown in trust and confidence as sufficient reason to dismiss. We examine what, if any, sensible, practical and genuine steps the respondent took to resolve the problems (Turner v Vestric).

[356]We have taken pains to set out the detail of the evidence in this case. Having made conclusions about the section 44 ERA point, it is perhaps appropriate to step back somewhat from the detail and make bigger-picture observations.

[357]The claimant did not get the job he wanted in the restructure. Having not indicated a disability in his expression of interest form he subsequently adopted the standpoint of saying that he could not do the job allocated to him because of medical reasons. We have put this quite simply, but the way the claimant articulated his standpoint was anything but straightforward. It was lengthy, dense, legalistic and at times impenetrable. The respondent made numerous attempts to try to understand the claimant’s standpoint, but his further communication was distinctly unhelpful. When an employee withdraws from the workplace alleging serious and imminent danger, the prudent steps an employer should take is to seek to understand the allegations and to seek to engage with the employee to address and/or mitigate the danger. When the employee alleges that their psychological health is at risk, the prudent employer will attempt to understand this further. The best way to do this is to seek medical advice, often from occupational health and/or the employee’s medical professionals. The respondent made significant efforts to try to understand the claimant’s medical issues and to see what adjustments might be put in place. They attempted to refer him to occupational health and he refused. They attempted to get consent for occupational health to liaise with his GP, avoiding the need for the claimant to attend occupational health, and he refused to engage. He met frequent requests to set out clearly what danger he was facing with unhelpful directions towards previous dense and lengthy communications. This state of affair persisted over 10 months.

[358]We find that the respondent took numerous sensible, practical and genuine steps in the course of the 10 months from October 2017 to the dismissal on 8 August 2019, and beyond to the appeal against dismissal on 26 October 2018, to understand and address the problems.

[359]We find that Ms Pateman and Ms Horgan genuinely and reasonably believed that trust and confidence had completely broken down and that there was no alternative but dismissal. As Ms Horgan said “we are stuck in an ongoing cycle of you raising the same complaints, TfL responding and then you raising these again because you do not agree with the outcome you have been given so we are unable to move forward”.

[360]We conclude that dismissal fell well within the band of reasonable responses. It was a decision taken after extensive reasonable steps had been taken to attempt to resolve the problems the claimant was raising. By the time of dismissal it was abundantly clear that there was nothing the respondent could do to address the problems.

[361]We find that the dismissal of the claimant was not procedurally or substantively unfair. This claim is not upheld and is dismissed. Wrongful dismissal

[362]The claimant was paid his PILON. The only reason it was paid late was that the claimant’s bank account was closed. He did not tell the respondent about this at the time. When the respondent learnt of this, it took reasonable steps to ensure he was paid the money he was entitled to.

[363]This claim is not upheld and is dismissed. .