Employment Judge LeithIn person for claimantMs Gyane (instructed by Counsel) for respondentDate 30 June 2025
JUDGMENT
[1]The Claimant did not have a disability within the meaning of the Equality Act 2010 at the relevant times.[2]The claims of:a. automatically unfair dismissal;b. protected disclosure detriment;c. discrimination arising from disability;d. failure to make reasonable adjustments;e. direct sex discrimination;f. harassment related to sex;g. direct religion and belief discrimination;h. harassment related to religion and belief;i. direct race discrimination;j. harassment related to race; andk. victimisation; all fail and are dismissed. Case No: 2300977/2023 Approved by:
REASONS
[1]The nature and scope of the issues raised in this case mean that this judgment is very lengthy. In order assist the parties to navigate it, the various sections can be located as follows: The hearing Paragraphs 3 to 14 Our factual findings Paragraphs 15 to 149 The relevant law Paragraphs 151 to 224 Our conclusions: - Disability Paragraphs 225 to 233 - Protected belief Paragraphs 234 to 237 - Overarching findings Paragraphs 238 to 260 - Protected disclosures Paragraphs 262 to 282 Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 - Protected disclosure detriments Paragraphs 283 to 388 - Direct sex discrimination Paragraphs 389 to 481 - Harassment related to sex Paragraphs 482 to 506 - Direct belief discrimination Paragraphs 507 to 525 - Harassment related to belief Paragraphs 526 to 544 - Direct race discrimination Paragraphs 545 to 554 - Harassment elated to race Paragraphs 555 to 567 - Victimisation Paragraphs 568 to 582 - Automatically unfair dismissal Paragraph 583 - Jurisdiction Paragraphs 584 to 587[2]References within these reasons to the documents before the Tribunal are set out in the following format: Page numbers in the core bundle [XX] Page numbers in the supplementary bundle [SXX] Documents from within the Shell Disclosure [SHELL XX]
The issues
[3]We discussed the issues in the case with the parties at the start of the hearing. The starting point was the list of issues set out by EJ Smith at the Preliminary Hearing on 21 November 2023. Following that, the Claimant had applied for permission to amend his claim. The Respondent did not object to the amendment, once the amendment had been clarified. There was not, however, an updated list of issues which incorporated those amendments.[4]The Claimant had also prepared a document entitled “schedule of detriments”. That referred to some 97 detriments, which were not broken down by head of claim. It appeared, on the face of it, to differ in some respects from what was set out in the claim as amended. We explained to the Claimant that his claim was what was set out in the original claim form, as previously amended, and that if he wished to rely on the “schedule of detriments” he would need to make a further application to amend his claim. No such application was forthcoming.[5]We therefore agreed with the parties that the issues we had to decide were those set out in the annexe below. That document uses as its starting point EJ Smith’s list of issues, with the addition of the points added by Claimant’s Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 unopposed amendment application. As a result, the numbering of the allegations is not strictly sequential, because it reflects the fact that the factual allegations relied upon have been drawn from two different places. Procedure, documents and evidence heard[6]At the start of the hearing, we heard an application from the Claimant to strike out the response. We dismissed that application, for the reasons we gave orally at the time.[7]We also heard an application from the Respondent to determine the question of disability as a preliminary issue – essentially, to conduct a preliminary hearing on the question of disability at the start of the trial. We dismissed that application, once again for the reasons we gave orally at the time.[8]We heard evidence from: 8.1. The Claimant; 8.2. Fleur Laffont, who is employed by the Respondent as Head of Graduate Talent, UK & EMEA; 8.3. Charley Smithers, who is employed by the Respondent as a People Business Partner; 8.4. Emily Canning, who at the relevant times was employed by the Respondent as an Account Manager; 8.5. Lara Plaxton, who at the relevant times was employed by the Respondent as Director of Consultant Experience – UK; 8.6. Daniel Horan, who at the relevant times was employed by the Respondent as Product Owner, Testing Services and Cloud Services; and 8.7. Stacey Edgley, who at the relevant times was employed by the Respondent as Senior Legal Counsel, UK & EMEA.[9]Each of the witnesses gave their evidence by way of a pre-prepared witness statement, on which they were cross-examined. Ms Laffont applied for permission to amend her witness statement from that originally exchanged. We gave permission, once again for the reasons we gave orally at the time.[10]Ms Canning gave her evidence on the afternoons of Day 5 and Day 6, as she was outside the jurisdiction and in a different time zone (permission having been given by EJ Burge for her to give her evidence remotely).[11]We had before us a core bundle of 993 pages, and a supplementary bundle of 1,433 pages, and a mitigation bundle of 146 pages. We notified the parties at the outset of the hearing that we would only read documents that we were specifically referred to and would only read documents referred to in witness statements insofar as they were identified as being relevant to an issue in the case. Some of the documents in supplementary bundle were redacted. Both parties held unredacted copies. We asked the Claimant to draw our attention to any specific documents which he felt it was important we saw unredacted copies of. In the event, while the parties did on occasion refer to Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 names which were redacted on our copies of certain documents in the supplementary bundle, there was no dispute between them about those names.[12]On the second day of the hearing, we were sent a set of documents disclosed by Shell, pursuant to a third party disclosure order made by EJ Burge. The Claimant had previously held (and disclosed) redacted versions of those documents, some of which appeared in the core bundle. We asked the Claimant to refer us to any specific documents he wished us to read from within the Shell disclosure. He referred us to one document at that time. We were referred to other documents from the Shell disclosure during the course of the hearing.[13]In addition to the evidence, at the start of the hearing we were presented with: 13.1. A cast list and chronology prepared by the Claimant; 13.2. A cast list and chronology prepared by the Respondent; 13.3. A skeleton argument prepared by the Claimant; 13.4. A suggested reading list prepared by the Respondent; and 13.5. An opening note prepared on behalf of the Respondent.[14]At the conclusion of the evidence, we heard oral submissions from Ms Gyane and from the Claimant, supplanted in Ms Gyane’s case by written submissions. Both Ms Gyane’s written submissions and the Claimant’s skeleton argument set out the relevant law in some detail. We have taken both documents, and all of the submissions, into account. We mean no disrespect to either by not setting out or explicitly summarising their helpful submissions on the law and facts within our judgment – our judgment is already quite long enough without doing so. Factual findings[15]We make the following findings on balance of probabilities. We have not dealt with every area canvassed before us; rather, we have focused on those necessary to reach a conclusion on the issues in the claim.[16]The Respondent is a supplier of business support services. The Respondent’s model, within the area of the business in which the Claimant worked, is to recruit and train individuals who it then places to work for clients as Consultants. The Respondent’s Account Management staff receive commission based on the profitability of the work carried out for clients.[17]The Claimant was employed by the Respondent as a Business Consultant. His employment commenced on 25 April 2022. His contract of employment provided that [325]: Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 17.1. When his employment started, he would undertake preplacement training with the Respondent, before being placed with a client of the Respondent. 17.2. Unless he was on a placement, his normal place of work would be the Respondent’s premises in London (although some training could be carried out remotely). 17.3. His normal hours of work when not on a placement (after completion of pre-placement training) would be 9:00am to 5:30pm Monday to Friday, with a one hour unpaid lunch break to be taken between 12:00pm and 2:00pm. 17.4. From the commencement of his employment, he would be paid £20,000 per year. One month after he started his first placement, his salary would increase to £26,000. Thereafter it would increase with length of service, counted from the start of his first placement. 17.5. When placed, he was required to work at the client’s premises. He was required to report to, and be managed by, the Respondent, although he would report on day-to-day matters to the appropriate person at the client’s business. 17.6. He agreed not to terminate his employment with the Respondent before the end of the “Initial Commitment Period”, which was defined as a period of two years beginning on the first day of his first placement with a client.[18]The Respondent had in place at the relevant times a Disciplinary Procedures Policy [804]. That provided as follows: 18.1. Before any formal disciplinary action was taken, the matter would be “carefully investigated”. Any evidence or witness statements gathered would be provided to the employee prior to the disciplinary hearing. 18.2. An employee may be suspended during the investigation. A suspension would not normally be expected to last longer than five working days unless the nature of the investigation required that the timescale be extended. 18.3. Employees had the right to be accompanied to a disciplinary hearing by a follow colleague or a Trade Union representative. 18.4. In the case of gross misconduct, the employee would normally be dismissed, although only after considering other possible sanctions. 18.5. An employee could appeal the outcome of a disciplinary process. 18.6. The policy set out examples of minor offences of misconduct, serious offences of misconduct, and gross misconduct. The examples of gross misconduct included: 18.6.1. “Flagrant disregard for Company procedures and regulations or refusal to obey a lawful instruction” 18.6.2. “Harassment, bullying or victimisation” 18.6.3. “Any act committed outside the place of work, whereby the offence has an adverse bearing on the employees suitability for the job or which makes the employee Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 unacceptable to his / her fellow employees, or which brings the Company’s name into disrepute” 18.6.4. “E-mail and Internet abuse”[19]The Respondent also had in force a Computer Usage Policy [S1203]. The policy said this regarding acceptable email use: “The use of email facilities is subject to the same laws, policies and codes of practice as apply to other forms of communication. Company email is provided for official business and administrative purposes, occasional personal use is permitted so long as such use is not excessive, in volume, frequency or time and does not disrupt or restrict usage by other users nor interferes with an employee’s day to day duty.”[20]The policy also contained examples of unacceptable use of the internet, two of which were: “Using the Companies time and resources for personal gain or reason” and “Using the internet to send offensive or harassing material to others”[21]The Claimant was placed with Shell with effect from 8 August 2022. He described the placement at Shell as “perfectly aligned with my skills”.[22]On 15 August 2022, the Claimant had a catch-up with Klaudia Wojcieszczak, Account Manager for the Respondent. During that meeting, his evidence was that he explained to Ms Wojcieszczak that Olivia Hogan, a Business Analyst employed directly by Shell, had a starting salary of £35,000.[23]On 25 August 2022, Steve Thavendran, sent the Claimant a Teams message in which he said “Where your black ass?” [394]. That was in the context of what appeared, from the limited screenshot before us, to be a light-hearted relationship between the Claimant and Mr Thavendran. Mr Thavendran was an employee of Shell, although he had previously been employed by the Respondent and supplied to Shell.[24]The Claimant’s evidence was that on 30 August 2022, he informed Mr Thavendran and Naima Masud, a colleague who was employed by the Respondent but placed at Shell, that he considered that he and the other FDM staff were being exploited and their contacts violated employment law.[25]Within the particulars of claim, the Claimant said that on 1 September 2022 he informed Narima Ajam, a manager employed by Shell, in the presence of Shuaib Azam, Khadija Chowdhury, Guilane Youmbi, Olivia Hogan, Chidera Magwogwu, Michael Ayeni, Shae-ree Wang and Anisa Fatima, that permanent new hires at Shell were being paid more than FDM consultants Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 in the same positions, and that he felt this was in breach of AWR. His evidence in his witness statement was that this took place at Shell outing to Nando’s, and that he told those people the same thing as he had told Ms Wojcieszczak.[26]On 4 September 2022, the Claimant carried out some research regarding his position. He emailed himself a summary of that research [353]. Within that, he noted that his view was that FDM was an employment agency, and was in breach of the Agency Worker Regulations by not paying its staff the same basic pay as Shell employees.[27]On 8 September 2022, the Claimant informed Emily Canning, Account Manager for the Respondent, that he considered that the Agency Worker Regulations were being breached. Ms Canning did not deny that that conversation took place. Her evidence in cross-examination was that, to her recollection, the Claimant told her essentially what was set out in his 4 September 2022 email to himself.[28]The Claimant’s evidence in his witness statement was that in response, she told him “If you don’t like it, there are other consultants we can replace you with”. It was put slightly differently in the particulars of claim, which alleged that Ms Canning had said “There are other consultants on the beach we can replace you with”’; but the substance of what was alleged was the same. The “beach”, in that context, was a reference to the group of consultants employed by the Respondent who were currently not on a client placement – the words “beach” and “bench” were used interchangeably before us to describe that group.[29]Ms Canning’s evidence was that she could not recall making that comment, although the conversation was alleged to have taken place some time ago. Her evidence was that in any event, the Claimant was not in fact replaced with another consultant following the conversation. We deal with this in our
conclusions.
[30]Later that day, the Claimant attended a work event organised by Shell at Bar Elba. Alcohol was provided free of charge. During the course of the evening, the Claimant had a conversation with Naima Masud. His evidence regarding that interaction was as follows: “During our conversation, I mentioned that Khadija had hinted Naima might be interested in or in a relationship with Samuel. Naima responded, “I’m not looking to get with men,”. I replied, “No, I don’t think that—I think you dress conservatively,” intending to affirm my belief that she carried herself modestly. When she pressed me for details, I suggested she speak directly to Khadija, as I didn’t want to spread rumors. Naima often made baiting or “gotcha” comments in a joking, smiling manner. At Bar Elba, she joked about Muslims having a curfew. I chose not to engage, as the joke made me uncomfortable—I don’t believe anyone would have a curfew simply because of their religion.” Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[31]His evidence continued as follows: “Around 9 PM, Khadija and Anisa were leaving and hugged everyone goodbye. Naima followed, and I gave her a hug as well. I’ve always been cautious about physical contact to avoid any perception of impropriety. My hugs are side-on, with one arm only, resembling a far-side shoulder pat. There is minimal frontal contact, and my arm never goes near or below the waist. The interaction lasts no more than a second.”[32]The Claimant’s evidence was that on 13 September 2022, Mr Thavendran approached him and informed him that Ms Masud had been very upset by the Claimant’s behaviour towards her, in that he had made inappropriate comments about her appearance and touched her inappropriately. The Claimant’s evidence was that Mr Thavendran informed him that Ms Masud was thinking of complaining. His evidence was that he was shocked by the accusations.[33]On 15 September 2022, the Claimant asked Ms Masud if they could speak. His evidence was that he apologised to Ms Masud, but she did not accept the apology, and that she told him how deeply offended she felt. The Claimant’s evidence was that he suggested that they escalate the matter to HR and involved the Police to ensure a proper investigation.[34]On 16 September 2022, Narima Ajam informed the Claimant that Ms Masud had spoken to (Shell) HR about the events of 8 September. On the same day, the Claimant then emailed Ms Ajam, copied to three other members of Shell staff including Alex Blackford (a manager within the T&S department, which was the department of Shell where Ms Masud worked). The email was titled “Allegations of Impropriety by Naima Masud”. The email said this: [355/SHELL 26] “Following the allegations of verbal impropriety made against me by Naima Masud and the pending investigation by HR, I will voluntarily suspend my duties with Shell and FDM immediately - I will be unable to work in an environment where such rumours are being circulated. The behaviour that Naima Masud took offence to was:• I relayed a comment made by Kadija Choudhury that Naima Masud ''Gave Samuel Ekundayo the eyes"• I said to Naima Masud that she "dresses conservatively" If what I am being accused of constitutes sexual harassment, a very serious and most shameful offence, I also want this matter to be reported to the police as soon as possible without undue delay in order to ensure the most thorough of investigations can be conducted and to ensure I am punished to the fullest extent of the law. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 I would also like Shell and the police to request CCTV footage from the location of the incident, Rooftop Mercury House, 109-117 Waterloo Road, London SE1 5UL, between 6PM and 2AM on 8th September and for written statements to be obtained from all those in attendance that evening. I will not speak to any members of Shell staff regarding this matter and will be at the Shell Centre on Tuesday 20th September only to hand in all equipment provided to me by Shell to the front desk and to request that my locker is cleared. I will also ensure all outstanding work is completed before this date and will be available for any interviews required of me by HR on that day in the lobby or remotely thereafter. I will not submit any outstanding timesheets and will voluntarily surrender all pay until this matter is fully resolved. If l am guilty, I would like my outstanding pay to be donated to Victim Support UK. At the moment, even if l am found innocent, I doubt I will be able to return to Shell or the Front Office team but will remain eternally grateful for the opportunity to learn from and work with such an innovative team in addition to the trust that was placed in me. In the meantime, I can be reached at [contact details] I vehemently deny any allegations of objectively offensive behaviour on that evening towards Naima Masud, any member of staff or the public.
law.
[35]On the evidence before us, that email was the first occasion on which the label “sexual harassment” had been attached to the Claimant’s conduct. While Mr Thavendran had, on the Claimant’s evidence, referred to the Claimant touching Ms Masud inappropriately, it was clear from the Claimant’s email that he did not understand Ms Masud to be making an allegation about inappropriate physical contact.[36]Ms Blackford forwarded the Claimant’s email to Anouska Fox, another Shell manager within the T&S department, and then to Shell’s HR Operations team. In her email to the HR Operations team, she noted that Ms Masud had confided in Anouska Fox. She noted that noted that both Ms Masud and the Claimant were contractors supplied by the Respondent, and asked how they should proceed. The advice they received from Shell HR was that the Respondent’s policies would apply.[37]On 20 September, the Claimant emailed Ms Ajam again, copied as before [SHELL 26]. He said this: “I was very ashamed and disconcerted when I heard how deeply offended Naima felt by what I said and felt the honourable thing to do would be to leave Shell altogether in some sort of restorative Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 justice - I felt like a villain. Naima must be believed and honestly may very well have been so gravely offended by my comments that she felt going to HR was necessary. However, I wholeheartedly continue to believe I did not commit any offences that anyone should be reasonably dismissed or vilified for so I will not be voluntarily suspending my duties because of this incident unless I am explicitly asked by management to do so. I do not wish to abandon my role because of these allegations – I will face them. I have faith that, after a thorough investigation, HR and the Police may have a similar view but I will become extremely mindful of the things I say to people in the future and will offer Naima my most sincerest apologies again. I still: - Would like this matter to be investigated by the police if possible. - Would like the CCTV footage from that evening to be obtained if possible. - Intend to donate my salary to Victim Support UK if I am found guilty of any misconduct. - Will not be speaking to any members of staff regarding this matter. - Vehemently deny any allegations of objectively offensive behaviour.”[38]On 23 September 2022 at 4.37am, Sheera Muthiyah, an employee in Shell’s Contingent Workforce Operations team, emailed Ms Clatworthy and Ms Canning of the Respondent [366]. The email was titled “Potential sexual harassment case”. Within that email, she said this: “It has been brought to our attention that there was an incident between 2 contractors, working for Shell in London, UK, supplied by FDM Group. As a result one of them suspended the duties for Shell and FDM. Could we please arrange for a call so we can discuss the next steps.”[39]On 23 September 2022 at 11:37, Ms Blackford emailed Ms Ajam as follows [SHELL 26]: “Hey - Have FDM actually been contacted, by you, sourcing or HR? Have they kicked off any internal process? Yesterday, I saw a screenshot of another compltely inappropriate conversation between an ex-fdm (now shell) member of staff and Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Jessie. I think you were on that message? Has any action been taken on that?”[40]We understand that to be a reference to Mr Thavendran’s Teams message to the Claimant.[41]On 23 September 2022 at 13:53, Ms Ajam emailed Ms Canning [358]. The email was headed “Highly Confidential: FDM staff complaints”. Within the email, Ms Ajam said this: “Tried calling you on your phone, but could not reach you. Reaching out to you to advise you on an issue with regards to a matter that pertains to Jessie and Naima (both at Shell) that needs investigating from FDM. It is important that this matter be reviewed and Shell be advised if any improper conduct during the conversation that took place with the individuals at a Shell Function outside of the office. Naima has shared her views with trusted Shell Managers that she was uncomfortable, and subsequently Jessie has denied any wrongful intentions We have advised our Shell HR of the incident, who in turn advised that this matter be formally handled by FDM, as they are both your staff. At the moment both continue to work for Shell, and we await your formal investigation and feedback as to how we proceed with the contracts going forward. […] You may also be contracted by our Sourcing/ ERM team, but please do take this note as a formal request for the investigation to take place.”[42]Ms Canning responded to Ms Ajam at 15.27 that afternoon. Her email was copied, among others, to Ms Clatworthy of the Respondent’s HR team. She said this: “Thank you for making me aware. I have escalated this with FDM's HR team and a formal investigation will be conducted. I have also received a note from the ERM team today stating that Jessie has been suspended the duties for Shell and FDM - do you know if this is indeed the case? It would be good to connect on this at some point early next week - I can set a placeholder, feel free to modify according to your availability.” Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[43]Ms Canning’s evidence was that the reason she asked Ms Ajam if the Claimant had been suspended was because of the reference to suspension in Ms Muthiyah’s email. She explained that the wording in Ms Muthiyah’s email was slightly odd, which was not unusual in emails from that team, who are based in Kuala Lumpur. We consider that the question about suspension was a reasonable question for Ms Canning to ask in the circumstances, given the slightly ambiguous reference to suspension in Ms Muthiyah’s email.[44]On 26 September 2022, a meeting took place between Ms Canning and Ms Clatworthy (on behalf of the Respondent) and Ms Muthiyah and others on behalf of Shell. At that meeting it was agreed that the allegations against the Claimant would be investigated by Ms Clatworthy, and that the Claimant would be suspended pending investigation.[45]On 26 September 2022, the Claimant was informed verbally by Chantelle Clatworthy that he was suspended with immediate effect. Following his suspension he emailed Ms Canning and Ms Clatworthy [362]. He indicated that he denied any allegations of impropriety towards Ms Masud on 8 September 2022 or at any other time. He noted that he had asked Shell to obtain CCTV footage from the venue, and that he had asked for the matter to be reported to the Police. He asked for the exact nature of the allegations against him to be outlined in writing.[46]On 27 September 2022, Ms Canning emailed Ms Muthiyah and others with a summary of their meeting the previous day [363]. Within that email she asked Shell to share any supporting documentation with Ms Clatworthy. She noted that the outcome of the investigation would be confidential, but that the Respondent would inform Shell once the investigation was complete and offer suggestions based on their findings. She also said this: “I will get in touch with the stakeholders myself to see if FDM can offer any additional support to backfill Jessie's position.”[47]Ms Canning’s evidence was that it would be normal to offer to backfill a Consultant who was going to be away from work for longer than around a week. Her evidence was that in the event, while she offered to provide a Consultant to backfill the Claimant’s role while the investigation was ongoing, Shell did not take that up. We accept her evidence in that regard.[48]Meanwhile, on 26 September 2022 Ms Clatworthy met with Naima Masud. On 27 September 2022 she sent Ms Masud a summary of what she had told her, in the form of a statement [377]. She asked Ms Masud to confirm that she was happy with the statement. She noted in her covering email that Ms Masud had not wanted the matter to be raised with HR, but that Shell had asked the Respondent to investigate as a matter of importance. She also explained that she would like to talk to two individuals who Ms Masud had mentioned, and asked Ms Masud to confirm their full names and whether they were FDM employees. Ms Masud’s statement was, in summary, as follows: Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 48.1. During the Shell social on 8 September, the Claimant approached her and said that he “knew what girls like [Ms Masud] are like” and that she “make[s] eyes at all the guys at work”. The original statement also alleged that the Claimant had said that Ms Masud “love[s] the attention of men” and “specifically talk[s] to certain guys”, although Ms Masud removed those comments from the statement when she amended it. 48.2. Later on the same evening, the Claimant put his arm around her and said “I didn’t expect people like you to be out that late”. When asked what he meant, he responded “Muslim girls”. 48.3. He repeatedly called Ms Masud “conservative” during the night, in reference to her personality and her hijab. 48.4. On Tuesday 13 September, a friend of Ms Masud approached the Claimant about his behaviour on 8 September. The Claimant told Ms Masud’s friend that he had done nothing wrong, and he threatened to raise the matter [impliedly, with HR]. 48.5. On Thursday 15 September, the Claimant asked Ms Masud to talk about the matter in private. Ms Masud explained that she had found his behaviour on 8 September unprofessional. The Claimant replied that his behaviour was not unprofessional, and that he didn’t make the initial comments but was just repeating what his friend had said to him. 48.6. Also during the conversation on 15 September, Ms Masud told the Claimant that she found the comments about her being conservative inappropriate. The Claimant responded “You are conservative compared to other woman at the social who have their boobs out”. The Claimant then suggested that they take the conversation in front of a group of women to see how they would react, and he informed Ms Masud that the next step was to raise the issue to their managers. 48.7. Ms Masud then spoke to her portfolio manager. She did not want to raise the matter formally, but her portfolio manager informed her that it had to be taken to HR. Ms Masud’s main concerns was the comment about being “conservative”, as she did not want the Claimant to make comments like those to other women.[49]Ms Masud responded later the same day. She made some amendments to the statement. She then said this: “I would like to ask, however, for the scope of your investigation to be narrowed to the single complaint I made at the end regarding his conservative comments/perception of women in the office and not the issues that arose in the week prior, those details were given for context and so I do not believe that getting Sam and the other colleague involved is entirely necessary.”[50]Ms Masud provided the names of the two individuals Ms Clatworthy had referred to. A little later, she emailed Ms Clatworthy again and said this: Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 “I would like to emphasise as much as possible that I am not comfortable with other people besides Jesse and I being involved and would like to suggest that you do not speak to them individually especially since the comments he made were when we were speaking alone.”[51]Ms Clatworthy responded asking to arrange a further discussions with Ms Masud.[52]On 29 September 2022, Ms Clatworthy conducted a formal suspension meeting with the Claimant. Notes of that meeting in evidence before us [368]. The notes recorded that, during the meeting: 52.1. Ms Clatworthy explained that the Claimant had been suspended while allegations of “inappropriate behaviour” were investigated. She explained that she was not able to disclose precisely what the alleged inappropriate behaviour was, but when pressed by the Claimant she clarified that it was “alleged inappropriate comments”. 52.2. The Claimant explained that he thought that the CCTV footage from the venue on the night in question would be helpful. 52.3. The Claimant referred to the Police. Ms Clatworthy explained that she was not in a position to report the matter to the Police. 52.4. The Claimant raised the “where is your black ass” comment. Ms Clatworthy noted that it could be discussed in the investigation, rather than in the suspension meeting. 52.5. Ms Clatworthy informed the Claimant that he could not contact anyone from the Respondent or from Shell during the suspension.[53]Later that day, Ms Clatworthy wrote to the Claimant to confirm his suspension [371]. The letter did not set out what exactly was alleged against the Claimant, merely that it was an allegation of gross misconduct. Within that letter, Ms Clatworthy explained that the suspension would be kept under review, and that the Claimant would be informed if it looked likely that it would exceed two weeks. She also said this: “During your suspension, you are not required to carry out any of your duties and you should not attend work or communicate with any other employee, client, or interested party in FDM unless authorised by me. You are expected to cooperate in the investigation as and when required, including attending the workplace for any investigative meetings or disciplinary hearings, and will be available during normal working hours (save to the extent that you have prebooked annual leave) to answer any other work-related matters.”[54]We consider that it was reasonable for Ms Clatworthy not to go into details re the allegations at that stage, given she was still in the process of clarifying that with Ms Masud (and given Ms Masud’s concerns about the scope of the investigation). Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[55]On 30 September 2022, Ms Clatworthy emailed Bar Elba, the venue where the events of 8 September took place [372]. She asked if she could be provided with a copy of the CCTV footage from the night in question. A Ms Robertson from Bar Elba responded on the same day. She said this: “Unfortunately, we are unable to obtain and show any CCTV footage to anyone other than Police. The incident can be reported to them and they can then get in touch with us”[56]On the same day, Ms Clatworthy sent Ms Masud the amended statement. She also asked again for a further meeting with Ms Masud [374].[57]On 3 October 2022, Ms Canning had a meeting with Mr Subramanya. Ms Canning followed up that meeting with an email to Mr Subramanya summarising what had been discussed [381/SHELL 37]. Ms Canning explained that she would keep Mr Subramanya updated following the outcome of the investigation. There was also some discussion of another FDM Consultant, Kadija, whose work order was due to finish on 25 October 2022. Ms Canning explained to Mr Subramanya that he would need to submit an extension for her. The Claimant suggested to Ms Canning in the course of cross-examination that Kadija was to replace him. Ms Canning’s evidence, which we accept, was that there was no connection between the Claimant’s situation and the extension of Kadija’s placement at Shell.[58]On 5 October 2022, Deborah Onabashi, People Business Partner for the Respondent, wrote to the Claimant to invite him to an investigation meeting on 7 October 2022 [384]. Within the invitation letter, she set the allegation out as being “alleged sexual harassment towards/of another FDM employee”. She noted that the purpose of the meeting was to investigate the allegation, and that it did not constitute formal disciplinary action. She reminded the Claimant of the requirement to keep all matters relating to the investigation confidential. She attached a copy of the documents that would be considered at the meeting, including Ms Masud’s statement.[59]Within her covering email, Ms Onbashi stressed again that the Claimant should contact him directly with any questions, and should not approach any other FDM staff [386]. She also said this: “Please keep all content and documents included confidential and do not forward to anyone else either internal or external to FDM and Shell. Please do not contact any member of staff at FDM or Shell during this investigation process – any questions you may have can be discussed with myself on Friday.”[60]The Claimant had apparently attempted to phone Ms Onbashi the next day, 6 October 2022. She emailed him at 11:32, as follows: “I am going into meetings I will call you back later Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Please refrain from calling reception – please can you also confirm attendance tomorrow and that you have received all the documents I sent”[61]The investigation meeting took place on 7 October 2022. There were notes of the meeting in evidence before us [389]. The Claimant made some comments on the notes following the meeting. The notes, read together with the Claimant’s subsequent comments, recorded that: 61.1. The Claimant agreed that he had been drinking at the event on 8 September. He explained that everyone had been drinking, but “everyone had their wits about them of course no one was stumbling around” [390]. 61.2. The Claimant accepted that he had told Ms Masud that she dressed conservatively, but explained that he did not consider that that statement could be taken to be offensive [390]. Within his subsequent comments he said that he had only made the comment once. 61.3. The Claimant also accepted that he had made a comment about Ms Masud “making eyes”. He explained that he had apologised for it (and for the “conservative” comment), although he did not consider that he had done anything wrong. In his subsequent notes he said that he had referred to her being described by a colleague as “giving Sam the eyes”, and that Ms Masud asked him further questions after he said that. 61.4. During the meeting, the Claimant denied putting his arm around Ms Masud, as he said he wouldn’t do that as it would open him up to sexual harassment. In his subsequent comments, he said that the only time he touched Ms Masud was to give her a hug when she was leaving, and that Mr Thavendran was there at the time. 61.5. The Claimant denied referring to “Muslim girls”, and explained that he had Muslim friends who stay out past midnight. [392] 61.6. The Claimant explained that any CCTV footage would be important, as it would show whether he did put his arm around Ms Masud, and also whether he was ever alone with her (although he acknowledged that the CCTV would not have audio). The Claimant suggested that he could make a Subject Access Request for the CCTV footage, or report himself to the Police. Ms Onbashi asked the Claimant to hold off doing so. 61.7. When discussing the subsequent conversation with Ms Masud, he said this [391]: “…I said let’s talk privately about this and went to a room and she said you said I dress conservatively and I said ‘I did say that I don’t think its offensive objectively’ but apologised if it was offensive but I stand by my comment that its objectively true on how someone dresses and it wasn’t meant to demean her and that was in relation to another comment made of giving someone the eyes.” And this: Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 “…in that meeting I apologised and in the meeting it seemed she was not satisfied with my apology and she said I felt bad because you made me feel uncomfortable and I said I am sorry because you have to apologise for making someone feel that way but I feel like she was being disingenuous about what she felt and I said well why don’t we take it to the managers as I take sexual harassment seriously, no tolerance.” 61.8. He referred to Mr Thravendran having made the “where is your black ass” comment. 61.9. The Claimant explained that he considered that Ms Masud had lied, and that he would be suing her for defamation of character and raising a grievance against her.[62]Also within his comments on the draft meeting minutes, the Claimant had explained that he had made contact with Bar Elba about CCTV footage. He provided two contact email addresses for the bar, and explained that they would need to know timings, what the individuals involved were wearing and where in the bar they were standing. Ms Onbashi emailed the Claimant asking if he had already provided the bar with that information. The Claimant responded providing the information to Ms Onbashi. He did not, however, answer her question regarding whether he had already provided the information to Bar Elba [395].[63]On 13 October 2022, Ms Masud had a further discussion with Ms Clatworthy. She followed that conversation up by emailing Ms Clatworthy as follows [409]: “Thank you for taking the time to talk this morning. I'd like to request and confirm that I am okay for the formal investigation to be stopped. Let me know if you need anything else”[64]Following that, Ms Onbashi told the Claimant verbally that the investigation was stopping.[65]At 15:38 on 17 October 2022, Mr Subramanya emailed Ms Canning as follows [414/SHELL 36]: “Tried to reach you on the phone but went to voice. Would you be able to send an official comms urgently (separate email) reg the outcome of Jessie please. Jessie pinged me today but it is not communicated officially. Please inform Alex Blackford, Narima, Myself and anyone else intouch reg the issue.” Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[66]The Claimant’s evidence was that he had told “Narima Ajam, Praveeen Subramanya, and others” that the investigation had concluded, with no disciplinary action being taken.[67]At 16:12 on Monday 17 October 2022, Ms Onbashi emailed the Claimant as follows [410]: Further to our calls last week this is to confirm that the investigation has been stopped and there will not be any disciplinary hearing/sanction against you, please find attached notes from the investigation meeting. As advised I have suggested a further refresher of our DEI training and I will co-ordinate this with our EDI advisor. I am just waiting on an update from the account manager regarding setting up your return to Shell and will be in touch to confirm a date to re-join. Please do not liaise with others on this yet until I've managed to confirm the details. As discussed I am also liaising with my manager with regards to him facilitating a mediation meeting between yourself and Naima to enable you both to have a constructive experience on client site moving forwards. I also confirm that we spoke about the teams message screenshot from the Shell employee and that you have decided not to take this further on this occasion. I appreciate your patience and co-operation with this matter.”[68]At 16:29 on the same day, Ms Onbashi emailed the Claimant again, as follows [412]: “I've been made aware you tried to contact Shell directly today. As discussed before please do not contact anyone at Shell - I am in the process alongside Emily of discussing the return details with the client as this needs to be managed properly due to the nature of the situation.”[69]At 17:43 on the same day, Ms Ajam emailed Ms Canning (and Mr Subramanya) as follows [414/SHELL 36]: We do need the formal feedback to Shell asap. Huge dissappointment in that Shell has not been advised whilst both Jessie and Naima have been informed. This is leaving us in a very difficult situation with Alex and Anoushka. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Can we also talk about his return to Shell as it now seems T&S [the department where Ms Masud worked] are expressing more reservations about him working in the same environment.[70]On 18 October 2022 Ms Onbsahi emailed Stacey Edgley, Senior Legal Counsel, explaining that she had found out that the Claimant had contacted Shell when he had been told not to, and additionally had been emailing Shell at 2am during his suspension [S590].[71]On 18 October 2022, Ms Canning emailed Ms Ajam and Mr Subramanya [414/SHELL 36]. She explained that the reason Shell had not received notification of the outcome of the investigation directly was that there were still aspects of the situation to be resolved by the Respondent. She asked to arrange a meeting with Shell.[72]There were further internal emails within Shell noting that the position of Alex Blackford and Anouska Fox was that it was not tenable for the Claimant and Ms Masud to work together [414/ SHELL 36]. On 19 October 2022 at 8:00, Ms Fox noted that she had had a discussion with Ms Masud the previous day. She summarised that discussion as follows: “I spoke with Naima yesterday – - FDM took her account over a call and a written statement with some back and forth over email. - She was told last week that to do an investigation FDM would need to take witness statements from two other individuals who were there for the first comment and get CCTV from the location. She felt the later comments/implications around Muslim women and the following comments in the office on womens’ clothing/breasts were the point of her complaint and felt neither the statements relating to the first comment or the CCTV were relevant to this point - FDM say as she was not happy to proceed with CCTX/statements that they have terminated this process and not taken it to a full investigation - Naima has not had a summary of what steps were taken, what the findings/outcome is or any remedial actions taken by FDM - Naima did not feel they had listened to what she had said or what the complaint was about. To the extent that she asked them to clarify what they were investigating they said ‘sexual harassment’, she was clear with them that she has made no allegation of sexual harassment, the concerns were raised about the comments about women and Muslim women - Naima mentioned again FDM telling her on Monday ‘the client want him back in the office’, I asked her if she felt sure that they said that and she confirmed yes - As requested (although I feel this is incredibly minimising of her experience) I asked her directly if she would feel comfortable working with/organisationally close to Jessie - her response was no. Reasoning being his reactions since this situation originally Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 occurred (eg. talking about it with a wide group of their peers, lack of any apology/self-reflection on his comments and their impact, etc) and she doesn’t believe there is any basis to think he would not behave in the same way going forwards I am concerned following this discussion that FDM may have not even investigated the correct complaint – making the info Narima has requested even more urgent. I would suggest we ask them to provide this within the next working day or escalate further - at this stage I would highlight it’s been 5 weeks since this was originally raised to myself, and 6 weeks since the original event – Shell HR said this should take one week to investigate. It is my view that this happened between two people ultimately working for Shell and at a Shell event, therefore while Shell HR have asked FDM HR to run the investigation we have a right to oversight that the process meets our own standards of duty of care.”[73]On 19 October 2022, Ms Onbashi emailed the Claimant to explained that Ms Canning would be meeting with Shell on the following day, and that she should be able to update him regarding next steps by the end of the week. She reiterated again that he should not contact Shell or anyone else until she had spoken to him [411].[74]The meeting between the Respondent and Shell took place on 20 October 2022. The attendees were, from the Respondent, Ms Canning, her line manager Mr McLaren, Ms Onbashi and Mr Enright, the Head of People. From Shell, the attendees were Ms Ajam, Mr Subramanya, Ms Fox and Ms Blackford. Ms Canning emailed the attendees later that day summarising the meeting as follows [421]: “As decided, Jessie Danquah will not be returning to a placement at Shell. Should he make contact with anyone from Shell (including Naima), we would ask that you not engage and please make FDM aware immediately as we are managing this internally. We will also communicate the above decision directly with Naima. To your point, we welcome the opportunity to collaborate on a codeof-conduct training for the FDMers. We'll also be assessing the lessons learned from this case to ensure we best handle incidents of this nature should they arise in the future. Thank you for your continued support of our early career professionals; please don't hesitate to get in touch with me directly if I can be of any further assistance.”[75]Ms Canning’s evidence was that the decision that the Claimant would not return to Shell was a mutual one, taken by the attendees at that meeting. Ms Canning’s evidence was that from Shell’s side, Ms Fox and Ms Blackford were adamant that they did not want the Claimant to return. Ms Canning’s Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 evidence was that Ms Ajam and Mr Subramanya had, prior to that meeting, expressed to her that they wanted the Claimant to return to Shell. Her evidence was that during the meeting on 20 October they did not object to the position being put forward by Ms Fox and Ms Blackford, and did not suggest that they wanted the Claimant to return. We accept Ms Canning’s evidence in that regard. It is consistent with the contemporaneous emails, which did not suggest any reservations being raised by Ms Ajam or Mr Subramanya at or following the meeting on 20 October 2022 about the Claimant’s placement being terminated.[76]The termination of his placement was communicated to the Claimant on 21 October 2022 in a meeting with Mr Enright and Ms Onbashi. Mr Enright emailed the Claimant following that meeting saying this [422]: “Just to confirm that you are not to contact any Shell employee's outside of your friendship group as agreed with FDM and Shell management and discussed with you today.”[77]The Claimant responded on the same day asking why he was being instructed not to speak to Shell employees, and the reason his placement with Shell had been terminated and the names of the members of staff who made that decision.[78]Mr Enright responded later that afternoon as follows [422]: “Following a meeting with the client it was agreed between FDM and Shell management that any communication with Shell management should be through the FDM account management. […] Your placement has ended as the collective management felt the situation onsite would be untenable. We will not be sharing any names as your employment is with FDM and not our Client.”[79]He then said this, regarding the return of equipment: “Can I also ask that you return any Shell equipment directly to FDM and we will return this to Shell.”[80]On 24 October 2022, the Claimant emailed Mr Enright, copied to Miss Canning, Ms Onbashi, Irena Hall (of the Respondent’s People function) and Ms Ajam of Shell [428]. The title of his email was “Naima Masud Defamation/Malicious Grievance”. His email set out a grievance regarding Ms Masud. As well as directly accusing Ms Masud of lying, he described her lies as “insulting, not only to me, but to every single woman who has truly been a victim of sexual harassment” and “damaging to the credibility of those who raise legitimate allegations of sexual harassment and will embolden those who seek to maliciously weaponise it to the detriment of innocent men”. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[81]He also attached to his email a Letter Before Action, in which he threatened to bring a claim of defamation against Ms Masud. He said this, regarding that document: “Attached to this email is a letter of claim for defamation of character which Naima Masud must confirm receipt of by COB 24th October and fully respond to within 14 days. I trust this will be forwarded to her by FDM.”[82]To conclude his email, he said this: “I will now speak freely about the investigation I was subjected to and its outcome to whomever i wish - i need to be able to gather my witnesses, for example. I will also be handing over my equipment to Shell personally - they gave it directly to me so I will give it directly back. I will not continue to be gagged and treated like some kind of criminal. I have done nothing wrong. If I have, tell me exactly what it is. If I do not receive acknowledgement of receipt directly from Naima Masud or any of her legal representatives by COB 24th October 2022, I will take reasonable steps to ensure she receives this letter of claim. This includes messaging her directly, all her managers and all her colleagues directly with details of this investigation for context.”[83]The Claimant’s email therefore indicated that if Ms Masud did not acknowledge receipt of his letter before claim within less than 24 hours, he would message all of her managers and colleagues with details of the investigation. It was put to the Claimant in cross-examination that was nasty, and was, in effect, him bullying Ms Masud. The Claimant did not accept that characterisation. His evidence was that in any event he did not follow through on those actions.[84]Mr Enright responded to the Claimant on the same day saying this [452]: “Having picked up your email today I will be liaising with our legal team tomorrow morning to discuss the attached. No further action will take place before this has been done. In light of this I have now cancelled our catch up for today.”[85]On 1 November 2022, various emails were exchanged between Carole Minter, the Respondent’s Facilities Manager, and Ms Onbashi [S851]. Ms Minter expressed a preference for the return of equipment to Shell to be undertaken directly between the Claimant and Shell, rather than the Respondent taking responsibility for its safe return. Ms Onbashi responded explaining that the situation was an exception would couldn’t be avoided, Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 and that she would liaise with the Claimant to make the necessary arrangements. Ms Minter responded “Great, thanks”.[86]On 1 November 2022, Ms Onbashi wrote to the Claimant [466]. She noted that the Claimant was on the beach. She noted that the Claimant had not yet returned his Shell equipment to the Respondent (as he had been instructed to do by Mr Enright). She therefore indicated that the Respondent would send a courier to attend his property on 4 November 2022 during working hours to collect the equipment. She attached a copy of the Respondent’s Bullying and Harassment policy, and reminded the Claimant that he was required to comply with it. She reminded the Claimant not to contact Shell or any employee of Shell. She explained that the Respondent had been made aware that he had not complied with that request. She noted that the Claimant would be required to attend DE&I training in the week commencing 7 November 2022. She explained that if the Claimant did not comply with the requests in her letter, the Respondent would consider next steps which may include a disciplinary process.[87]In the event, the Claimant was never actually required to undertake DEI training.[88]The Claimant responded to Ms Onbashi (from his personal email address) indicating that he would be at a different address (in Luton) all day on 4 November 2022, and that the courier could collect the equipment from there [470]. He then said this: “I agreed with Pat Enright that I would not contact Shell. However, if FDM will not be forwarding my letter of claim to Naima Masud or thoroughly investigating the lies she made in her statement then I will have to take reasonable steps, as required by the Pre-action Protocol for Defamation, to ensure she receives it before proceedings can begin. The law of England & Wales supersedes your request.”[89]On 3 November 2022, Ms Onbashi asked James Tuttiet (UK and Europe Sales Director) and Holly Cole (Senior Consultant Experience Manager) to meet with the Claimant [S756]. That meeting took place on the same day [473]. The recorded that the meeting was arranged because the Claimant had been discussing details of the disciplinary case with Ms Chowdhury, the London Beach Manager, and other beached consultants. The Claimant agreed that he would focus on securing a new placement and updating his CV.[90]In the event, there was an issue with the courier on the date on which the equipment was due to be collected. Arrangements were then made for the equipment to be collected on 9 November 2022. Once again, the courier did not collect the laptop on 9 November 2022.[91]At 18:31 on 9 November 2022, the Claimant emailed Ms Onbashi as follows [481]: Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 “The courier didn't come/call. I will now be handing it in to Shell personally by the end of the week, as agreed with Praveen Subramanya.”[92]Ms Onbashi responded around an hour later, as follows: “Please hold on this before doing anything. I would have expected you to have liaised with me directly on this not Praveen considering the circumstances.”[93]On the morning of 10 November 2022, Ms Onbashi emailed the Claimant noting that the courier was having a problem with the Claimant’s address in Luton. She explained that if there was an issue, then it may be easier for the Claimant to bring the laptop to the Respondent’s London office on Monday 14 November. The Claimant did not respond to that email. That evening, Ms Onbashi emailed the Claimant’s personal email address. She explained that as the Claimant had not made contact regarding the courier, he should bring the equipment to the Respondent’s London office on Monday 14 November.[94]The Claimant’s evidence was that he did not believe that there was an issue on the part of the courier, and that he believed that the Respondent (in essence) simply manufactured the situation to make him wait at home all day. We bear in mind that the Claimant was required to be working for the Respondent between 9am and 5.30pm, minus his one hour lunch break. We accept that there was an issue with the courier. The emails referred to the courier having difficulty finding his property, and Ms Onbsahi asking the Claimant if it was as flat. We understand from the address on the DWP letter of 15 September 2022, which we deal with later, that the address the Claimant had provided was in fact for a halls of residence (although the format in which he provided the address to the Ms Onbashi did not mention a halls of residence, or suggest that the address was anything other than a single property). In light of that, we consider that it is unsurprising that the courier struggled to make the collection.[95]The Claimant’s evidence was that it was Mr Subramanya who had contacted him, and asked him to return the laptop. We do not accept his evidence in that regard. There were no contemporaneous documents such as call logs which supported that. We have not heard evidence from Mr Subramanya. The Claimant’s evidence was inconsistent with his own email of 24 October 2022, in which he said that he would not be returning the equipment to the Respondent and would be returning it to Shell directly – suggesting that that was always his intention. It is also inherently improbable that Mr Subramanya would have contact the Claimant directly regarding the laptop out of the blue, several weeks after his placement with Shell had ended, on the very day when the courier was supposed to collect the laptop (but was unable to do so). We find on balance that it is more likely that the Claimant was the one who raised with Mr Subramanya the possibility of returning the laptop to him directly. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[96]On 11 November 2022, the Claimant emailed Ms Onbashi (and others) saying this: “I have now returned all Shell equipment to Praveen Subramanya in person. We spoke at length. The decision to terminate my contract with Shell appears to have been taken unilaterally by FDM after a flawed and drawn out investigation. In addition to the defamation claim I will be making against Naima Masud, I will also now be actively exploring taking legal action against FDM for unfair treatment. I would like to hear back from your legal team.”[97]On 15 November 2022, Charley Smithers, People Business Partner, wrote to the Claimant to inform him that she was investigating the following allegations against him [485]: 1. Failure to follow instruction by FDM Group Limited (FDM) to not contact employees of Shell 2. Failure to follow the correct process of returning your Shell equipment as instructed by FDM.[98]Ms Smithers noted in her letter that she would let the Claimant know if she needed to conduct an investigation meeting with him.[99]The Claimant responded to Ms Smithers on the same day [486]. He said this: “Praveen Subramanya called me on 9th November 2022 for a chat. He also asked about the laptop and we agreed I would return it directly to him. The laptop was returned to him in person on Friday 11th November. We spoke for approximately 1 hour and shared some good laughs. 1. FDM has no right to dictate who I can and cannot speak with, especially not when that person has initiated contact with me themselves. 2. FDM has no right to dictate how property is returned to a client, especially not when the client themselves has no issue with the mode of delivery.”[100]As he was on the “beach”, the Claimant was supposed to be spending his working time updating his CV and upskilling himself. On 15 Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 November 2022 the Claimant emailed Salwa Chowdhury, London Beach Manager [487]. He said this: “I hope you are well. My mental health has suffered greatly due to the cruel and unfair treatment I have received thus far from certain representatives of FDM. I haven't even been able to eat or sleep well. Several examples of their text-book transgressions are outlined here. As a result, I haven't been able to concentrate on my CV but hope to complete this for you by the end of the week. Please do accept my most sincere apologies for the delay in sending you this.”[101]The Claimant’s evidence to the Tribunal was that his CV had been good enough to secure him a position with Shell, so (impliedly) it did not need to be updated or improved.[102]Also on 15 November 2022, the Claimant emailed Rod Flavell, the CEO of the Respondent, copied to various other managers including Ms Canning [488]. In that email he alleged that FDM employees were being paid less than permanent new hires, and he asserted that that was illegal. He also alleged that he had been victimised for raising the issues regarding the Agency Worker Regulations with Emily Canning. He concluded the email by saying this: “Now, as I write this, I have received an email from Charley Smithers stating that I am now under a HR investigation for "Failure to follow instruction by FDM Group Limited (FDM) to not contact employees of Shell". Charley should rest assured, I will continue to contact employees of Shell regardless of the outcome of her investigation. As senior executives of FDM, I would like to know your thoughts on these matters before I bring them to the attention of every single one of FDM's clients, starting with Shell.”[103]On 16 November 2022, the Claimant emailed Ms Onabashi (copied to a number of other managers and HR employees within the Respondent). He explained that he had heard nothing further regarding the grievance he had raised on 24 October 2022 [491]. Mr Enright, who had initially acknowledged receipt of his grievance, had left the Respondent’s employment shortly after doing so.[104]Later that same day, Geoff Millen, Senior HR Business Partner, emailed the Claimant to apologise for the delay in investigating his Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 grievance, and to explain that it would be progressed as soon as possible [492].[105]On Friday 18 November 2022 at 14:45, the Claimant emailed the Letter Before Action, intimating a claim of defamation, to Ms Masud at both her FDM and Shell email addresses [506/SHELL 33]. He sent the email from his FDM email address. He copied the email to various employees of the Respondent including Ms Onbashi, Ms Canning, Ms Chowdhury and Mr Millen. Within the covering email, he said this: “Should you fail to confirm receipt of this letter of claim by COB Monday 21st November, I will take further reasonable steps to ensure you have received it. Including, but not limited to: - Contacting your line managers directly - Sending copies of this letter via recorded delivery to all your known work Addresses - Hiring a private investigator to serve this unto you in person at home or to those who may reasonably know your whereabouts Should all the aforementioned methods fail to get your attention, an application will then be made directly to the court compelling you to respond. After this point, you will be held liable for the costs I would have reasonably incurred in order to comply with my own legal obligations in this regard.”[106]Ms Onbashi emailed Ms Masud on receipt of the Claimant’s email. She explained that the Respondent was in the process of blocking emails from the Claimant’s email address so that they could not reach either of Ms Masud’s email addresses. She signposted Ms Masud to the Respondent’s Employee Assistance Helpline, and explained that Ms Masud could reach out to her, Ms Clatworthy or Miss Canning if she needed anything. [506/SHELL 33][107]Ms Smithers wrote to the Claimant to inform him of the outcome of her investigation [496].Her letter was dated 17 November 2022, but it was not apparently sent to the Claimant until 21 November 2022 [508]. In her letter she explained that the Claimant was invited to a disciplinary hearing on 24 November 2022 to be chaired by Daniel Horan – Product Owner – Testing and Cloud Service, which would consider four allegations: “1. Failure to follow instruction by FDM Group Limited (FDM) to not contact employees of Shell by verbal communication from Chantelle Clatworthy during a period of suspension for a prior investigation on 26 September 2022 and written communications via email on 29 Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 September 2022 and 5 October 2022, 21 October 2022, and 01 November 2022, in that you:a. Contacted Narima Ajam (NA) and Praveen Subramanya (PS) on multiple occasions;b. Contacted PS on 17 October 2022; andc. Communicated with (PS) to return your Shell Equipment. 2. Failure to follow the correct process of returning your Shell equipment as instructed by FDM via email on 21 October 2022 and 01 November 2022, 09 November 2022 and 10 November 2022, in that you: a. Failed to respond to Patrick Enright on 21 October 2022, requesting you to return your Shell equipment directly to the FDM London office; and b. Returned your Shell equipment directly to Shell premises on or around 11 November 2022. 3. By doing the above allegations 1 and 2, you have brought the reputation of FDM Group Limited into disrepute contrary to the Disciplinary Procedures Policy, which states the following actions as serious misconduct including but not limited to: a. Failure to comply with a reasonable instruction or request; and b. Bringing FDM into disrepute whether in work time or not. During the investigation, I was notified that you sent an email to Naima Masud (NM) attaching a letter before action claiming defamation using your work email account. I am therefore adding the following allegation to be considered during the disciplinary hearing: 4. Inappropriate use of FDM communication channels to pursue a personal, non-work-related matter by sending an e-mail via your FDM account to NM’s FDM and Shell e-mail accounts on 18 November 2022 contrary to FDM’s Computer Usage Policy, which states: a. “….the following is deemed unacceptable use or behaviour by all employees at FDM: (i). Using the Companies time and resources for personal gain or reason…”
hearing:
[108]Ms Smithers attached copies of the emails she had gathered during her investigation. These were: 108.1. Email from Deborah Onbashi to Claimant dated 5 October 2022 requesting Claimant not to contact any employees of FDM’s client [386]; 108.2. Email from client to Emily Canning dated 17 October 2024 informing Emily that Claimant has contacted the client [498]; Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 108.3. Email chain between Deborah Onbashi and Claimant dated 17 October to 19 October 2024 repeatedly requesting for Claimant not to contact any employees of FDM’s client [411 – 413] 108.4. Email chain between Patrick Enright and the Claimant dated 21 October 2024 – 24 October 2024 requesting Claimant not to speak to client employees [422 – 425]; 108.5. Letter sent via email from Debroah Onbashi to the Claimant dated 01 November 2022 requesting the return of client equipment and instructing claimant not to contact client or employees of client [467 – 468] 108.6. Email chain between Deborah Onbashi and the Claimant dated between 08 November 2022 and 10 November 2022 requesting confirmation Claimant will drop off client equipment to London office [478 – 483]; 108.7. Email from Claimant to Deborah Onbashi, James Tuttiett, Emily Canning and Salwa Chowdhury dated 11 November 2022 confirming returning equipment directly to client [484]; 108.8. Email from the Claimant to Ms Smithers in response to Ms Smithers’ letter dated 15 November 2022 explaining why he took the equipment back to the client directly [486]; 108.9. Email from the Claimant to Rod Flavell, Mike Mclaren, Keith Cameron, Andy Brown, Billy Mclaren, Salwa Chowdhury, Emily Canning and James Tuttiett dated 15 November 2022 stating he will continue to contact employees of the client directly regardless of the outcome of the investigation [488-490].[109]Within her letter, Ms Smithers explained that if the Claimant had been found to have committed gross misconduct, he may be dismissed without notice or pay in lieu of notice. She reminded the Claimant of his right to bring a colleague or Trade Union representative to the hearing with him. Regarding evidence, she said this: “If you want to call any relevant witnesses to the hearing, please let me have their names as soon as possible and by no later than 10.00 am on Wednesday, 23 November 2022. If there are any further documents you want to be considered at the hearing, please provide copies as soon as possible and by no later than 10.00 am on Wednesday, 23 November 2022. If you do not have those documents, please provide details so that we may obtain copies. “[110]She concluded the letter by saying this: “If you have any specific needs at the hearing because of a disability, or if you have any other questions, please also contact me as soon as possible.”[111]The Claimant did not suggest to Ms Smithers that he had any disability in respect of which he needed adjustments to the hearing. Nor did he suggest that there were any witnesses that he wished to be called (for example, Mr Subramanya). Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[112]Also on 21 November 2022, Mr Millen wrote to the Claimant to invite him to a grievance meeting on 23 November 2022 [509]. He explained that he grievance meeting would be chaired by Fleur Laffont, UK Graduate Talent Attraction Manager. He reminded the Claimant that he had the right to be accompanied to the meeting by a workplace colleague or representative of his choice.[113]On 21 November 2022, Mr Millen made enquiries with Bar Elba regarding CCTV footage. On 23 November 2022 a Mr Manning responded. He said this [514]: “I hope you’re well. I’m a little confused….. I spoke to someone at length on this, I believe it may have been Jessie. He=was polite and very clear on his situation. After a very long conversation= when he informed me of when the occurrence had (allegedly) happened, I ma=e him aware that the footage expires around 1 month after it is recorded. This conversation in early-mid Octobe= as far as I remember. I committ=d to assisting the police or any other relevant body with urgency on request. We commit to hold footage, wherever possible, fo= 28-31 days and as such I cannot use the description below to help as we d=n’t have the footage. There were also numerous reasons as to why giving =ver footage or us reviewing footage on his behalf may have been difficult / pointless / problematic even if we=did have time on our side. I outlined them to him at the time.” [The somewhat strange formatting reflects the way the email appeared in our bundle][114]The Claimant’s grievance meeting took place on 23 November 2022 at 11am. Notes of the meeting were in evidence before us [516]. Of particular relevance: 114.1. The Claimant described parts of Ms Masud’s statement as completely untrue. He described Ms Masud’s statement that “Jessie put his arm around me and said ‘I didn’t expect girls like you to be out this late’” as particularly egregious, and named four witness who he said were with him until the end of the night. 114.2. Ms Laffont said, in respect of the Claimant’s alleged conduct, “I would not say it’s sexual harassment to be honest” [516]. 114.3. The Claimant explained that when he went to speak to Ms Masud after the incident, he wanted to apologise but she had no intention of resolving matters. He described giving her an ultimatum – that either she accept his apology, or that the matter would need to be reported to HR. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 114.4. When asked what his ideal resolution would be, the Claimant said this: “She needs to admit she lied because I am going to sue her for defamation of character and at that point the burden of proof will shift to her to prove I said these things, and I know for a fact that there were people around. She needs to apologise, retract her statement, admit she lied and donate 2 weeks of her salary to victim support UK.” 114.5. Ms Laffont told the Claimant that she appreciated the steps he had taken, and that he had been waiting for a while (in respect of his grievance). 114.6. At the end of the meeting, Mr Millen said this to the Claimant: “Thank you Jessie, it has been a pleasure to finally meet face to face.”[115]The Claimant’s disciplinary hearing took place on 24 November 2022. It was chaired by Mr Horan, and Ms Smithers was also present. There were notes of the meeting in evidence before us [523]. Of particular relevance: 115.1. The Claimant asked if the Respondent was following the ACAS guidelines on investigations, and stated that Ms Smithers needed to produce an investigation report. He suggested that Ms Smithers should “Google an investigation report” [525]. 115.2. The Claimant took issue with the fourth allegation, as he explained that he considered the Respondent’s Computer Use Policy allowed him to use his FDM email address for personal reasons. 115.3. The Claimant explained that he considered that the Respondent could not prevent him from discussing matters regarding his investigation with Shell, and that doing so impinged his free speech. He explained that he therefore considered that the instruction not to speak to Shell employees was not a reasonable request, and nor was the request that his Shell equipment be returned to the Respondent rather than Shell. 115.4. The Claimant confirmed that he had informed Ms Ajam during the investigation that it was ongoing, and who she should liaise with, and also at some point that he was not feeling well. He agreed that he had also messaged Ms Ajam at around 3am on one occasion. He confirmed that he had spoken to Mr Subramanya about “general work chit chat”, and that he had returned his Shell laptop to Mr Subramanya. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 115.5. The Claimant confirmed that when he emailed Mr Enright on 24 October regarding his grievance/defamation claim, he copied that email to Ms Ajam as a third party and potential witness. Ms Smithers noted that the defamation claim was a civil matter, and the grievance was an FDM matter. 115.6. During the meeting, the Claimant dropped off the Teams call. The minutes recorded this as follows [529]: “Lost Jessie, dropped off the Teams call Charley trying to invite Jessie back to call Jessie rejected the request to join call twice Didn’t make CS or DH aware he needed to take a call or drop off the call before this CS: Jessie has not read my message or responded. His status says he’s in a call. DH if I say to him if he does not re-join the call in 5 minutes, we readjourn? DH: Yeah, that sounds right. If it does come to it, we inform Jessie we have to stop here, and ask him to make sure any additional evidence is sent over. JD re-joins call 10:44 with camera off JD: Sorry I had a technical issue with my Teams, I cannot turn my camera on now. CS: Jessie, when I went to message you to re-join the call, I noticed that your status said you were in another call. Please may you confirm that you did not join another call? JD: No, I did not join another call.”[116]Following the meeting, the Claimant emailed Ms Smithers and Mr Horan [536]: “As discussed, see the additional documents attached. 1. Blanket bans on speech without reasonable justification are unlawful. (Prohibition on talking to...pdf) 2. Pat Enright was responded to - I still have not heard back from the legal team. 3. Shell property was returned to Shell in a manner that Shell saw fit. 4. "Company email is provided for official business and administrative purposes, occasional personal use is permitted so long as such use is not excessive, in volume, frequency or Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 time and does not disrupt or restrict usage by other users nor interferes with an employee’s day to day duty." 5. Regarding the assertion that the reputation of FDM Group Limited has been brought into disrepute - see the principle of causation [this was as link to a page from the Practical Law legal knowledge resource]. See also ACAS guidance on appeals. Kind regards,”[117]Also on 24 November 2022, Ms Laffont interviewed Naima Masud regarding the Claimant’s grievance. The meeting took place in the Respondent’s London office. Notes of the meeting were in evidence before us [538]. Of particular relevance: 117.1. Ms Masud explained that she never accused the Claimant of sexual harassment, and that the only points she raised to be investigated were his comments about conservative dress and women. Early on in the meeting, after explaining what had happened on the evening of 8 September, Ms Masud said “it wasn’t largely offence but just weird, I felt strange about it” [538]. Later on, when she was talking about her subsequent interaction with the Claimant, she said “That conversation was awful, I was trying to explain why he had offended me, he said he would not remember or stand by what he said” [541]. 117.2. Ms Masud explained at some length what had happened from her perspective. Towards the end of that, she referred to there being an FDM group chat for the Claimant’s cohort, and told Ms Laffont that the Claimant had sent a paragraph to that chat which was very obnoxious saying that his name had been cleared. She then finished by saying “He’s very obnoxious”. The minutes record that Ms Laffont responded “I agree”. 117.3. When recounting their subsequent discussion on 14 September 2022, Ms Masud explained that the Claimant did not apologise for his remarks, although she was not looking for an apology. 117.4. When describing how she came to raise the matter with Ms Fox, Ms Masud said this [539]: “He kept saying that we should take it higher, but I said I didn’t have any intention of doing that. I think then he left and must have made comments after to Steven and (someone else) and tried to raise it to Adam Baker. So when he went off to talk to Steven, I called Anuska (portfolio manager), she’s a woman so I thought let’s see her opinion on it, I was just asking her what she thinks. There’s about 10 women on our Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 floor compared to all the men, the only people who dress the way he was talking about are his friends. Alex said to take it to shell HR.” 117.5. Ms Laffont referred to the possibility of mediation. She then said this (in reference to a previous comment from Ms Masud describing the issue as childish) [542]: “You say you think its childish, I don’t think it is from your point of view. Its completely inappropriate to make comments on someone’s appearance especially if its to do with faith and religion. It’s about education, there’s always so much more we can learn about no offending others, macro aggressions, micro aggressions. I don’t know if he would even be open to it, or if you would, but that might be the only way forward we have at the moment.” 117.6. Ms Masud then asked how long the process would take if she had no intentions of speaking with the Claimant (by way of mediation). The notes recorded Ms Laffont responded as follows: “As quickly as possible, unless someone magically comes forward, there’s no other evidence for us to go through, so I’d like to say we’d be done by next week. But he has the right to appeal if the grievance is not upheld. However, unless there’s any new evidence than I don’t think that would take very long either. Probably 2-3 weeks, and then hopefully you never have to hear about it again?” 117.7. Ms Masud then said that she was now willing to get other people involved if Ms Laffont was willing to take their statements. She referred to the person who was with her, and to Akash. The notes recorded that Ms Laffont responded as follows: “It might be good to have a tie breaker, as right now we must make a decision on the information we have, and it’s just two people saying two different things. I might speed things up and prevent him from making an appeal. If they are Shell employees, we would have to get permission from Shell.” 117.8. At the end of the meeting, the notes recorded that Ms Laffont said this: “Thank you for coming in. Hopefully moving forward it will be much more pleasant visits to the FDM office.”[118]Ms Laffont’s evidence to the Tribunal in her original witness statement was that she had said “I agree” in response to Ms Masud’s characterisation of the Claimant’s conduct on the group chat as “obnoxious”. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 She later applied for permission to amend her witness statement, to say instead that she had no recollection of saying that.[119]We find that Ms Laffont did agree with Ms Masud’s characterisation of the Claimant’s behaviour as “obnoxious”. It would be surprising if Ms Laffont’s recollection about a meeting in December 2022 had improved between December 2024 (when her initial statement was signed) and June 2025 (when her amended statement was signed). And it would be even more surprising that the Respondent’s minute-taker had added to the minutes something which Ms Laffont simply did not say. Even in her amended statement, Ms Laffont’s evidence was that she agreed with Ms Masud’s characterisation the Claimant’s behaviour in openly discussing the investigation as “obnoxious”. We find that Ms Laffont did say she agreed with what Ms Masud was saying, because that was what she thought of the Claimant’s behaviour as it was described to her by Ms Masud.[120]Ms Laffont denied saying “I might speed things up and prevent him from making an appeal”.[121]We find that this was a typographical error in the notes, and that what the notes were supposed to say was that “It might speed things up and prevent him from making an appeal” – that is, that if there were other witnesses who supported Ms Masud’s account of events, that might speed the process of resolving the grievance up and prevent the Claimant from making an appeal. We consider that is objectively the most likely explanation, because: 121.1. It is inherently unlikely that Ms Laffont would suggest that she was going to stop the Claimant from appealing – something she had no power to do under the Respondent’s policies and which would fly in the face of the ACAS Code of Practice – particularly when, earlier in the same meeting, she had been very clear with Ms Masud that the Claimant would have a right to appeal the outcome of his grievance. 121.2. If she had have done so, it is inherently unlikely that Mr Millen, who was present to give HR advice would have let that go unremarked and simply replied “It’s up to you”, as the notes record. The documents as a whole suggested that the Claimant had a reasonably high opinion of Mr Millen, and there was nothing to suggest that he would have condoned such an obvious breach of the Respondent’s policy. 121.3. Most importantly, such a suggestion would be entirely nonsequitur looking at the preceding and subsequent sentences. The conversation at that point was about whether Ms Masud was going to put forward other witnesses to be interviewed by Ms Laffont. For Ms Laffont to divert from that topic for one sentence to suggest that she would prevent the Claimant appealing the outcome of a grievance she had not yet determined, then immediately return to continue talking about what would need to be done for witnesses to be called, is again inherently unlikely. What is far more likely is that Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 what Ms Laffont was addressing was the effect of suggesting further witnesses. 121.4. Ms Laffont’s evidence was that she never said the sentence that was recorded in the minutes – that is, that she never said that she would prevent the Claimant from appealing, or to speed things up. That is also consistent with the sentence containing a typographical error. It is inherently unlikely that the minute taker would have recorded an entire sentence that was simply never said, and much more likely that a typographical error was made which significantly changed the meaning of the sentence.[122]After the meeting, Ms Masud emailed two Shell employees to ask if they could request permission from their line managers for her to request statements from them [545]. It appeared that she did that on her own initiative.[123]In the event, Ms Laffont did not interview or take statements from any other employees – neither those suggested by the Claimant nor those suggested by Ms Masud.[124]On 25 November 2022, the Claimant emailed Charley Smithers, copied to other including Daniel Horan. Within that email he said this [548]: “Therefore, unless the line manager is a potential witness who can be influenced in the investigation, an employee under their supervision may contact them during the course of an investigation and it would be unreasonable and unlawful to prevent said employee from doing so. To clarify, the Human Rights breached by blanket speech bans: Article 8: Right to respect for private and family life Article 10: Freedom of expression Also, to clarify for allegation 2: 1. Emily Canning confirmed that no agreement was made by Shell for FDM to handle the return of Shell equipment and that FDM was under no obligation or instruction to handle this. 2. The instruction from Pat Enright was responded to as per the screenshot 3. Deborah Onbashi organised the courier who failed to arrive twice 4. Praveen Subramanya handled the return via me in person 5. No formal agreement between FDM or Shell was broken by doing this 6. Praveen Subramanya was well within his rights to handle equipment belonging to his company in any way he saw fit 7. I am well within my rights to interact with Praveen Subramanya”[125]On 28 November 2022, the Claimant attended a Disciplinary Outcome Meeting with Mr Horan. Ms Smithers was, once again present. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 There were notes of the meeting in evidence before us [552]. Of particular relevance: 125.1. Mr Horan responded to the points the Claimant had raised following the disciplinary hearing. The Claimant was not receptive to Mr Horan’s responses. 125.2. Mr Horan described the Claimant’s letter before action to Ms Masud as “personal and extremely aggressive”. 125.3. Mr Horan then explained why he had considered each of the allegations to be substantiated. He explained that the first three allegations were considered to be misconduct, and that the fourth allegation, regarding the letter before action email, was considered to be gross misconduct. He explained that he had therefore reached the decision to summarily dismiss the Claimant. Mr Horan’s evidence was that he and Ms Smithers had considered allegations 1, 2 and 4 were each gross misconduct, but that they took advice from Mrs Edgley regarding the correct categorisation of the allegations, and that following that advice only allegation 4 was categorised as gross misconduct. We accept the evidence of Mr Horan (and Mrs Edgley) in that regard. 125.4. While h was explaining how he had reached his decision, Mr Horan referred to the Claimant’s attitude during the disciplinary hearing. He also referred to the Claimant’s Teams status saying that he was on “another call” after he dropped out of the hearing part-way through. When the Claimant challenged this, Ms Smithers explained that it had not been factored into the decision to dismiss the Claimant, but was merely a comment on how he had conducted himself in the disciplinary hearing.[126]Mr Horan confirmed his decision to the Claimant in writing on 29 November 2022 [556]. Within that letter, he explained in some detail how he had reached the decision to dismiss the Claimant (albeit that the first draft of the letter was produced by Ms Smithers following a discussion with Mr Horan). The letter noted that: 126.1. In respect of the first allegation, there was evidence of the Claimant being instructed not to contact Shell, and evidence that he had done so notwithstanding that instruction. Mr Horan concluded that the allegation was upheld and constituted misconduct. 126.2. In respect of the second allegation, there was evidence of the Respondent instructing the Claimant to return his laptop via the Respondent, and evidence that the Claimant had instead returned his laptop directly to Mr Subramanya. Mr Horan concluded that the allegation was upheld and constituted misconduct. 126.3. In respect of the third allegation, there was evidence of the Claimant ignoring an instruction that had been put in place to allow the Respondent to manage its client relationship with Shell. There was also evidence of the Claimant copying Ms Ajam into an email regarding his internal grievance. That was considered by Mr Horan to bring the Respondent into disrepute. Mr Horan concluded that the allegation was upheld and constituted misconduct. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 126.4. In respect of the fourth allegation, Mr Horan concluded that sending a personal defamation claim was not the sort of personal use of the email system which was permitted by the Respondent’s Computer Usage Policy. He further concluded that the email was sent during working hours, when the Claimant was expected to performing his employment duties. He described the letter and covering email as “extremely aggressive and harassing in nature”. Mr Horan concluded that the allegation was upheld and constituted gross misconduct. 126.5. Mr Horan concluded that he had lost trust and confidence in placing the Claimant with another client, and found his employment to be untenable. 126.6. Regarding what had happened at the disciplinary hearing, the letter said this: During the disciplinary, you made disparaging comments regarding the reasonable instruction that FDM has made, which demonstrated to us that your attitude is not favourable towards FDM as your employer. You also dropped off the Teams call during the disciplinary. You claimed that you were having technical issues with your Teams account, however Charley tried to invite you back into the call twice and her requests had gone through but were rejected. She also noticed that your Teams status said you were on “another call”. 126.7. The letter then went on to inform the Claimant of his right to appeal.[127]The evidence of Mr Horan and Ms Smithers was that the points set out in the outcome letter about the Claimant’s conduct during the disciplinary hearing were not taken into account in making the decision to dismiss him. We accept their evidence in that regard.[128]By a letter dated 1 December 2022, Ms Laffont wrote to the Claimant to inform him of the outcome of his grievance [562]. She explained the steps she had taken, which were that she had interviewed the Claimant and Ms Masud, arranged for enquiries to be made with Bar Elba, reviewed the notes of the meetings on 3 November 2022 and 7 October 2022, interviewed Emily Canning, and reviewed the relevant policies. She explained that she had not upheld the Claimant’s grievance. Her reasoning, in summary, was as follows: 128.1. She preferred Ms Masud’s account of the events to that of the Claimant. In part, this was because Ms Masud had consumed no alcohol during the event, whereas the Claimant had which might have impaired his recollection. She also considered that Ms Masud had no reason to make false allegations. She noted that steps had Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 been taken to attempt to obtain CCTV footage from Bar Elba, but it had been impossible to do so. 128.2. The comment the Claimant admitted to having made, regarding Ms Masud being “conservative” was a breach of the Respondent’s Bullying and Harassment policy and was associated with Ms Masud’s sex, religion and belief. 128.3. The decision to terminate the Claimant’s placement at Shell had been taken mutually between Shell and the Respondent. The Claimant’s behaviour during the investigation, when he contacted Shell employees despite having been instructed not to do so and attended an unauthorised client meeting via Teams and discussed the investigation and told those present that he had been cleared of wrongdoing, was a factor. 128.4. Based on the comment the Claimant admitted to having made, it was appropriate that he had been instructed to undertake DEI training. 128.5. She noted that the Claimant’s putative defamation claim was a civil law claim, which she could not comment on.[129]Although the grievance was not upheld, Ms Laffont recommended mediation between the Claimant and Ms Masud. Ms Laffont informed the Claimant that he had the right to appeal her decision.[130]Although Ms Laffont’s letter was dated 1 December 2022, it was sent to the Claimant by Mr Millen in an email dated 2 December 2022. Mr Millen signed off that email by saying “We wish you well for your future”. That was the first time he had said anything like that in an email to the Claimant (although he also did so in other emails following that date).[131]On 5 December 2022, the Claimant emailed Ms Smithers and others to indicate that he wanted to appeal his dismissal [572]. He set out on the basis on which he was appealing. Within his email, he said this: “I admit that sometimes the way I put my points across make me seem obnoxious and I could have made my points in a less disparaging manner. However, my point stands that it is simply unreasonable and unlawful to tell people they cannot talk to such a large group of people. Attached is evidence of Deborah Onbashi's instruction - which the investigators denied - the reason behind my disparaging comments. It is also unlawful to penalise an employee for whistleblowing.”[132]On 7 December 2022, the Claimant emailed Mr Millen (and others) indicating that he wanted to appeal the outcome of his grievance [574]. He started his email by saying “I am well and hope you are too”. He set out the basis on which he was appealing. He set out what he considered to be a number of inconsistencies in the accounts given by Ms Masud. The appeal had apparently been triggered by the fact that Ms Masud had not agreed to mediation. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[133]On 8 December 2022, Lindsay Lowrie, Senior Consultant Experience Partner, wrote to the Claimant to invite him to an appeal meeting in respect of his dismissal [583]. The meeting was to take place on 13 December 2022, and be chaired by Lara Plaxton, Director of Consultant Experience. The Claimant was reminded that he had the opportunity to be accompanied to the meeting.[134]Also on 8 December 2022, Mr Millen emailed the Claimant regarding his grievance appeal [585]. He noted that as the Claimant had been dismissed, the Respondent was under no obligation to hear his grievance appeal. He explained that if the Claimant was reinstated following his dismissal, his grievance appeal would be investigated. Within his email, Mr Millen stated that the Claimant’s employment had been terminated on 24 November 2022. The Claimant accepted in cross-examination that that may have simply been a typographical error.[135]The Claimant’s dismissal appeal meeting took place on 13 December 2022. Around 7 minutes before the appeal meeting was due to start, the Claimant sent a five-page document to Ms Plaxton and Ms Lowrie regarding his appeal [602]. Notes of the meeting were in evidence before us [592]. Of particular relevance: 135.1. At the start of the meeting, the Claimant referred to the document he had submitted. Ms Lowrie explained that they had not had a chance to read the Claimant’s document, and asked him if he would like the meeting to be postponed. The Claimant replied that it was not new information. [592] 135.2. Ms Lowrie explained that the purpose of the meeting was to understand why the Claimant felt the outcome was unfair. 135.3. There was then some discussion of the allegations for which the Claimant had been dismissed. The Claimant continued to assert that the instruction that he should not contact Shell employees and the instruction regarding the return of his laptop were unreasonable. He additionally continued to assert that in sending the letter before action to Ms Masud, he had not breached the Respondent’s Computer Usage Policy.[136]Ms Plaxton’s evidence was that she did review and consider the Claimant’s additional document after the hearing as part of her deliberations, but that it did not contain anything new which went to the substance of the disciplinary allegations against the Claimant.[137]On 16 December 2022, Ms Plaxton wrote to the Claimant to explain that his appeal was not upheld [608]. She summarised his appeal into two points: “1. You believe that FDM’s request for you to not contact any Shell employees was unreasonable and unlawful. 2. You believe that the use of your FDM email address to send a fellow FDM Consultant notice of legal proceedings initiated by you Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 as a personal matter was appropriate as an internal grievance process was already taking place and the FDM computer usage policy allows for occasional personal use.”[138]She then explained why she did not uphold either of those points. In summary, her reasoning in respect of the first appeal point (which was relevant to the first three disciplinary allegations) was that the Claimant had been given a clear instruction, and he had gone against that instruction. Her reasoning in respect of the second appeal point (which was relevant to the fourth disciplinary allegation) was that sending the letter before action did not fall within the “occasional personal use” allowed by the Respondent’s Computer Usage Policy, and that as well as being sent when the Claimant should have been working, risked giving the perception that the Respondent was involved in or supportive of his defamation claim.[139]It was put to Ms Plaxton during cross-examination that, if Ms Masud had not made the allegations she had against the Claimant, he would not have been put in the position where he had committed the alleged misconduct. Ms Plaxton’s evidence was that the instructions given by the Respondent were reasonable. Her evidence was additionally that her decision was not about what led the Claimant to believe the instructions were unreasonable, but rather about whether the Respondent could have confidence that he would follow reasonable instructions if he was placed with another client. Her evidence was that, as the Claimant had not acknowledged that his actions breached the Respondent’s policies and expectations, that created a risk for the Respondent in placing him with another client (where he would be under limited supervision from the Respondent). Regarding the sending of the letter before action from his FDM email address, Ms Plaxton’s evidence was that in her mind, the more significant issue was the content and nature of the email rather than the time the Claimant had taken to send it.[140]The claimant notified ACAS under the early conciliation process of a potential claim on 18 December 2022 and the ACAS Early Conciliation Certificate was issued on 29 January 2023. Disability information[141]The Claimant relies on Post Traumatic Embitterment Disorder. In his Disability Impact Statement he describes suffering from the condition since 26 September 2022. His evidence was that he developed the condition after being accused of/investigated for sexual harassment, and the termination of his placement at Shell and his subsequent dismissal for gross misconduct were also a source of “great embitterment”.[142]He described the effects of his condition, between 26 September 2022 and 28 November 2022, as being inability to sleep, inability to eat, expressing uncontrollable anger and hostility in disciplinary meetings, inability to concentrate on general work-related activities and educationrelated activities, inability to take part in social activities, and slurred speech Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[143]The Claimant also descried how, on 11 November 2022 he cancelled his enrolment on the BCS International Diploma in Business Analysis. He described recurring intrusive thoughts about what happened leading to spontaneous and uncontrollable bouts of anger, despair, shame and sadness.[144]The Claimant has not been formally diagnosed with Post Traumatic Embitterment Disorder. He put two journal articles regarding the condition in evidence before us. PTED is not recognised in either DSM5 or ICD10 [316]. One of the scholarly articles in evidence before us suggested that in order to be considered to be suffering from PTED, the individual must suffer symptoms for at least 3 months [227]. The other suggested at least 6 months [317]. The same article noted that “almost everyone knows spells of embitterment after experiencing insults or injustice. Normal embitterment recedes quickly, similar to a spell of anxiety when one is confronted by a growling dog”.[145]The Claimant’s medical records were in evidence before us. There was no evidence within those that the Claimant had sought medical assistance during the period of his employment. The Claimant accepted that he did not see his GP during the relevant period. He was prescribed Citalopram in May 2023, but his evidence was that he only took it once then stopped because he did not feel good on it. His evidence was that he now takes medical marijuana. After his employment with the Respondent had terminated he was given various fit notes for “stress related illness”. His GP notes in late 2023 refer to a “mixed anxiety and depressive disorder” [777].[146]On 15 September 2023, the DWP assessed the Claimant as having limited capability for work and work-related activity [683].[147]There was evidence before us also of a visit to the Emergency Department in April 2024 with lower chest pain, which culminated in the Claimant having an endoscopy. The Claimant suggested in his skeleton argument (although not in his evidence) that that was related to his PTED. There was, however, no suggestion in the letters before us that that was related to PTED. The Claimant’s philosophical belief[148]The Claimant’s evidence was that he holds a philosophical belief in modesty, which he defines as a mode of dress and deportment intended to discourage sexual objectification and promote self-respect and dignity. In his witness statement, he said this: “I believe that women who dress conservatively embody the values of modesty, which in Islamic teachings is closely associated with the concept of Haya. Haya, often translated as modesty, is a fundamental value in Islam that encourages individuals to conduct themselves with dignity, humility, and self-respect. This concept Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 aligns with Islamic principles, such as those found in Surah An-Nur (24:31), which instructs women to guard their chastity and use their veils to cover their bosoms/breasts. Other verses, such as Surah AlA'raf (7:26) and Surah Al-Ahzab (33:59), reinforce these directives, further emphasizing the virtue of Haya. 19. Modesty, as a universal value, transcends religious boundaries and is often synonymous with dressing conservatively. It reflects a broader respect for oneself and others, resonating not only within Islamic traditions but also across diverse cultural and ethical systems.”[149]The Claimant is not a Muslim.[150]The Claimant accepted in cross-examination that his belief was that someone can avoid sexual attraction by what they wear. It was put to him that that was incompatible with human dignity, in that it would make questions about what a woman was wearing a valid question to ask them if they had been sexually harassed or sexually assaulted. The Claimant’s evidence was that just because someone is not dressed conservatively, it does not mean that they have opened themselves up to being sexually harassed. He then put it another way; that just because someone is dressed in a way that encourages sexual attraction does not mean that sexual attraction is justified. Law Protected disclosure
Law
[151]A protected disclosure is defined in section 43A of the Employment Rights Act 1996 as a qualifying disclosure (as defined in s.43B) which is made by a worker in accordance with any of sections 43C to 43H.[152]Section 43B describes a qualifying disclosure as follows: “43B Disclosures qualifying for protection (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— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”[153]The worker must have a reasonable believe that the information disclosed tends to show that a relevant failure has occurred, is occurring, or is likely to occur. The test contains both a subjective and an objective limb. The worker must subjectively believe that the information disclosed tends to show one of the relevant failures, and that belief must be objectively reasonable (Phoenix House Ltd v Stockman [2017] ICR 84 EAT). The worker’s individual circumstances are to be taken into account, but an objective standard is applied (Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 EAT).[154]The worker must also reasonably believe that the disclosure is in the public interest. The term “public” can refer to a subset of the general public, even one composed solely of employees of the same employer. In order to be in the public interest, a disclosure does not need to serve the interests of persons outside the workplace. Even where a disclosure is personal in character, there may be features of the case that make it reasonable to regard disclosure as being in the public interest (Chesterton Global Ltd v Nurmohammed [2017] EWCA Civ 979). The Court of Appeal in Nurmohammed set out four factors which are of assistance: 154.1. the numbers in the group whose interests the disclosure served; 154.2. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed; 154.3. the nature of the wrongdoing disclosed; and 154.4. the identity of the alleged wrongdoer.[155]For the purposes of s.43B, “legal obligation” is broadly drawn (Parkins v Sodexho [2001] UKEAT 1239). It can cover legislative obligations, but also those imposed under the common law, as well as contractual obligations. It does not, however, cover a breach of guidance or best practice, or something that is considered merely morally wrong (Eiger Securities LLP v Korshunova [2016] UKEAT 0149). Detriment[156]Section 47B(1) of the Employment Right Act 1996 provides that a worker 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 the worker has made a protected disclosure. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[157]The term “detriment” is broadly construed; it has essentially the same meaning as in the Equality Act 2010. There is no test of seriousness or severity.[158]Section 47B(2) expressed excludes dismissal of an employee from being a detriment for the purposes of section 47B.[159]Section 48(2) provides that it is for the employer to show the ground on which any act, or deliberate failure to act, was done. Therefore, the burden of showing that he made a protected disclosure and that he was subjected to a detriment rests with the claimant. If that burden is met, the burden of showing the reason for the treatment is on the respondent.[160]That does not mean, however, that if the Respondent does meet that burden the claim automatically succeeds (Ibekwe v Sussex Partnership NHS Foundation Trust [2014] 11 WLUK 593).[161]The causal test is not a “but for” test. Rather, the test is whether the protected disclosure materially (in the sense of more than trivially) influenced the employer’s treatment of the whistleblower (Fecitt and ors v NHS Manchester [2011] EWCA Civ 1190).[162]The Tribunal may draw inferences from the primary facts found. The correct approach to the drawing of inferences in detriment claims as set out by the EAT in International Petroleum Ltd v Osipov UKEAT/0058/17: 162.1. the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure that he or she made; 162.2. by virtue of S.48(2), the employer (or worker or agent) must be prepared to show why the detrimental treatment was done. If it (or he or she) does not do so, inferences may be drawn against the employer (or worker or agent) — see London Borough of Harrow v Knight [2003] IRLR 140, EAT; 162.3. however, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.[163]The detriment test is not a comparative one, so there is no need for a comparator, although consideration of a comparator may be of assistance in some cases (Patel v Surrey County Council EAT 0178/16). Jurisdiction – protected disclosure detriment[164]Section 48 of the Employment Rights Act 1996 deals with the Tribunals jurisdiction to consider claims for protected disclosure detriment. It provides that, subject to the extension of time provisions set out in s.207B, claims must be brought: Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 164.1. within 3 months of the date of the act or failure to act to which the complaint relates (or, where the act or failure is part of a series of similar acts or failures, the last of them), or 164.2. 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 the period of 3 months.[165]In the case of Lowri Beck Services Ltd v Patrick Brophy [2019] EWCA Civ 2490, Underhill LJ summarised the case law on the meaning of “reasonably practicable” as follows: “(1) The test should be given "a liberal interpretation in favour of the employee (Marks and Spencer plc v Williams-Ryan [2005] EWCA Civ 470, [2005] ICR 1293 , which reaffirms the older case law going back to Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53 ). (2) The statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was "reasonably feasible" for the claimant to present his or her claim in time: see Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 . (I am bound to say that the reference to "feasibility" does not seem to me to be a particularly apt way of making the point that the test is not concerned only with physical impracticability, but I mention it because the Employment Judge uses it in a passage of her Reasons to which I will be coming.) (3) If an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in their case, the question is whether that ignorance or mistake is reasonable. If it is, then it will have been reasonably practicable for them to bring the claim in time (see Wall's Meat Co Ltd v Khan [1979] ICR 52 ); but it is important to note that in assessing whether ignorance or mistake are reasonable it is necessary to take into account any enquiries which the claimant or their adviser should have made. (4) If the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee (Dedman). I make that point not because there is any suggestion in this case that the Claimant's brother was a skilled adviser but, again, because the point is referred to by the Employment Judge. (5) The test of reasonable practicability is one of fact and not of law (Palmer).” Automatically unfair dismissal[166]Section 103A of the Employment Rights Act 1996 provides as follows: Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 “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.”[167]The reason for a dismissal connotes the factor or factors operating on the mind of the decision-maker which cause them to dismiss, or which motivates them to do so (The Co-operative Group v Baddeley [2017] EWCA Civ 658).[168]In Kuzel v Roche Products Limited [2008] ICR 799, the Court of Appeal said Tribunals should adopt a three-stage approach to deciding the reason for dismissal: 168.1. First, the employee must prove that he or she made a protected disclosure and produce some evidence to suggest that they have been dismissed for the principal reason they have made a protected disclosure, rather than the potentially fair reason advanced by the employer; 168.2. Secondly, having heard the evidence of both sides, it will then be for the employment tribunal to consider the evidence as a whole and to make primary findings of fact on the basis of direct evidence or reasonable inferences; and 168.3. Thirdly, the tribunal must decide what was the reason or principal reason for the dismissal, on the basis that it was for the employer to show what the reason was. If the employer does not show to the Tribunal’s satisfaction that it was its asserted reason, then it is open to the Tribunal to find that the reason was as asserted by the employee. However, the Tribunal is not bound to accept the reason alleged by the employee. The true reason for dismissal may be one not advanced by either side. Equality Act 2010[169]Section 39(2) of the Equality Act 2010 provides that an employer must not discriminate against an employee: 169.1. In the terms of employment; 169.2. In the provision of opportunities for promotion, training, or other benefits; 169.3. By dismissing the employee; 169.4. By subjecting the employee to any other detriment.[170]In order to be subjected to a detriment, an employee must reasonably understand that they had been disadvantaged. An unjustified sense of grievance will not constitute a detriment (Shamoon v Royal Ulster Constabulary [2003] UKHL 11). Protected characteristics[171]Race is a protected characteristic (s.9) Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[172]Sex is a protected characteristic (s.11) Disability[173]The starting point is s.6 of the Equality Act 2010, which provides as follows: “(1) A person (P) has a disability if—a. P has a physical or mental impairment, andb. the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2) A reference to a disabled person is a reference to a person who has a disability. (3) In relation to the protected characteristic of disability – a. A reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; b. A reference to persons who share a protected characteristic is a reference to persons who have the same disability (4) This Act …applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly … a. a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability… b. a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).[174]The Government has issued guidance under section 6(5) of the Equality Act 2010, entitled ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (“the Guidance”). The Guidance does not impose any legal obligations in and of itself, but the Tribunal must take account of it where it is considered to be relevant.[175]The Equality and Human Rights Commission (EHRC) has published a Code of Practice on Employment (2015) (“the Code”). The Code provides guidance on the meaning of ‘disability’ for the purposes of the EqA 2010. It does not impose legal obligations but must be taken into account where it appears relevant to any questions arising in proceedings.[176]In considering the question of whether a Claimant is disabled, the Tribunal must apply the four-stage approach approved by the Court of Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Appeal in Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694 (while remaining mindful of the need to look at the overall picture): a) Was there an impairment? (the ‘impairment condition’); b) What were its adverse effects [on normal day-to-day activities]? (the ‘adverse effect condition’); c) Were they more than minor or trivial? (the ‘substantial condition’); d) Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).[177]It is usually not necessary to consider the “impairment” condition in detail (J v DLA Piper UK LLP [2010] UKEAT 0263). The same case provides that Tribunals should be aware of the distinction between clinical depression and a reaction to adverse circumstances.[178]There is no definition of ‘mental impairment’ in the Equality Act 2010 but Appendix 1 of the Code provides that the term is intended to cover a wide range of impairments relating to mental functioning, including what are often known as learning disabilities.[179]“Mental impairment” should be given its “natural and ordinary meaning” (McNicol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA Civ 1074).[180]Section 212 of the Equality Act 2010 defines “substantial” as being more than minor or trivial.[181]Paragraph 5 of Schedule 1 provides as follows: “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if:(a) measures are being taken to correct it, and(b) but for that, it would be likely to have that effect. (2) ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.”[182]In considering whether an impairment has a substantial adverse effect on the ability to carry out normal day-to-day activities, it is necessary to take account not only evidence that person is performing a particular activity less well, but also of evidence that a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation (Appendix 1 to the Code).[183]Schedule 1, para. 2 of the Act defines “long-term” as follows:(1) The effect of an impairment is long-term if - (a) it has lasted for at least 12 months, Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 (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.[184]In that context, “likely” has been held to mean it is a “real possibility” and “could well happen” rather than something that is probable or more likely than not (SCA Packaging Ltd v Boyle [2009] ICR 1056).[185]The question of how long an impairment is likely to last must be determined at the date of the alleged discriminatory act, not at the date of the Tribunal hearing (McDougall v Richmond Adult Community College [2008] ICR 431).[186]The burden of showing that he is disabled within the meaning of the Act rests on the Claimant. Protected belief[187]Section 10 of the Equality Act 2010 defines a belief as follows: “Belief means any religious or philosophical belief and a reference to a belief includes a reference to a lack of belief”[188]The EAT in the case of Grainger plc and ors v Nicholson [2010] ICR 360 set out guidance on what is capable of constituting a philosophical belief for the purposes of section 10. The EAT set out five criteria that must be met for a belief to qualify for protection. In order to qualify for protection, it must be: 188.1. genuinely held; 188.2. a belief and not an opinion or viewpoint based on the present state of information available; 188.3. a belief as to a weighty and substantial aspect of human life and behaviour; 188.4. attain a certain level of cogency, seriousness, cohesion and importance; and 188.5. worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others[189]The fifth of the Grainger criteria is defined by reference to Article 17 ECHR, which prohibits the use of Convention rights to destroy or limit the convention rights of others. It therefore only excludes the most extreme of beliefs (Forstater v CGD Europe and ors [2022] ICR 1 EAT). Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Direct discrimination[190]The definition of direct discrimination is contained in section 13(1) of the Equality Act 2010: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[191]The comparison may be to an actual or a hypothetical comparator. In either case, there must be no material difference between the circumstances relating to each case (s.23(1)). That is, the comparator must be in the same position in all material respects save only that he or she is not a member of the protected class (Shamoon v Chief Constable of the RUC [2003] ICR 337).[192]Where considering the treatment of a claimant compared to that of a hypothetical comparator, the Tribunal may draw inferences from the treatment of other people whose circumstances are not sufficiently similar for them to be treated as an actual comparator (Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124).[193]In considering whether a claimant was treated less favourably because of a protected characteristic, the tribunal generally have to look at the “mental processes” of the alleged discriminator (Nagarajan v London Regional Transport [1999] IRLR 572). The protected characteristic need not be the only reason for the less favourable treatment. However the decision in question must be significantly (that is, more than trivially) influence by the protected characteristic.[194]When considering actions taken in response to the (alleged) manifestation of a protected belief, the Tribunal must take care to bear in mind the employee’s rights under Articles 9 and 10 ECHR, which entail freedom to express opinions that may shock or offend. Those are qualified rights. So the Tribunal must consider whether there was a sufficiently close or direct nexus between the claimant’s protected beliefs and the alleged manifestation. The Tribunal must then consider whether the manner of the claimant’s expression was objectively inappropriate or objectionable. If so, the Tribunal must consider whether the alleged unfavourable treatment was in response to the claimant’s manifestation of his belief. If so, and if the measures adopted by the respondent were prescribed by law (which may include by a term of the claimant’s contract of employment), the Tribunal must finally consider whether those measures were necessary in pursuit of the protection of the rights, freedoms and reputation of others. If so, the treatment will not have been “because of” the protected characteristic – Higgs v Farmor’s School [2025] EWCA Civ 109. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Discrimination arising from disability[195]The definition of discrimination arising from disability is set out in s.15 of the Equality Act 2010: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (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.”[196]“Unfavourable” is not defined in the statute. The EHRC Statutory Code of Practice provides that it means that the disabled person “must have been put at a disadvantage”.[197]The Respondent must have knowledge of the claimant’s disability, but need not have knowledge that the “something” leading to the unfavourable treatment was a consequence of the disability (City of York Council v Grosset [2018] ICR 1492). Failure to make reasonable adjustments[198]The duty to make reasonable adjustments is set out in section 20 of the Equality Act 2010.[199]Paragraph 8 of Schedule 20 of the Act provides that an employer is not subject to the duty to make reasonable adjustments if he or she does not know, and could not be reasonably be expected to know that the claimant:a. Has a disability; andb. Is likely to be placed at a disadvantage by the employer’s provision, criterion or practice, the physical features of the workplace or a failure to provide an auxiliary aid.[200]The Tribunal must therefore ask itself two questions: c. Did the employer both know that the employee was disabled and that the disability was liable to put the employee at a substantial disadvantage? d. If not, ought the employee to have known both of those thing?[201]If the answer to both questions is “no”, the duty to make reasonable adjustments is not triggered.[202]The EHRC Code provides that employers must “do all they can reasonably be expected to do” to find out whether an employee has a Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 disability. If an employer’s agent or employee knows in that capacity that an employee is disabled, the employer will have imputed knowledge of that disability. Harassment[203]Harassment is defined in section 26 of the Equality Act 2010 as follows: “Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.”[204]“Unwanted” is essentially the same as “unwelcome” or “uninvited”. Where conduct is offensive or obviously violates a claimant’s dignity, that will automatically be regarded as unwanted (Reed and anor v Stedman [1999] IRLR 299). A failure to complaint at the time is unlikely to undermine a claim based on inherently unwanted conduct – the EAT in Reed noted that a Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 woman does not have to make it clear in advance that she does not want to be touched in a sexual manner.[205]The fact that a claimant has apparently joined in with inherently unwanted conduct will not necessarily mean that they were condoning or allowing that behaviour (Thames Honda Ltd v Purkis EAT 0265/13, Munchkins Restaurant Ltd v Jarmazyn and ors EAT 0359/09). Comments and behaviour must be looked at in context in order to determine whether they were unwanted (Evans v Xactly Corporation Ltd EAT 0128/18).[206]The test for whether the treatment had the proscribed effect has both a subjective and an objective element. That is, the Tribunal must consider the subject effect the conduct had on the Claimant, and must also consider whether it was objectively reasonable for the conduct to have had that effect.[207]When considering whether treatment had the proscribed effect, Tribunals must look at the effect of the incidents in the round (Reed). Tribunals must not “cheapen the significance” of the meaning of the words used in the statute (Grant v Land Registry [2011] ICR 1390).[208]In considering whether conduct is “related to” the relevant protected characteristic, a finding about the motivation of the putative harasser is not the necessary or only possible route to the conclusion that the conduct related to the characteristic in question. However, there must be some feature or features of the factual matrix which leads the Tribunal to the conclusion that the conduct in question is related to the particular characteristic in question (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam & Heads (UKEAT/0039/19).[209]In cases involving the manifestation of a belief, the steps set out in Higgs above will also apply to the causal test in respect of harassment (that is, whether the treatment was “related to” the belief). Victimisation[210]Section 27 of the Equality Act 2010 provides as follows: “27 Victimisation(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; Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”[211]A detriment means being put under a disadvantage. In order to be subjected to a detriment, an employee must reasonably understand that they have been disadvantaged. An unjustified sense of grievance will not constitute a detriment (Shamoon v Royal Ulster Constabulary [2003] UKHL 11). It is not, however, necessary to establish any physical or economic consequence (Warburton v Chief Constable of Northamptonshire Police [2022] ICR 925).[212]The test in terms of causation is “reason why”, rather than “but for”. That requires the Tribunal to consider the alleged victimiser’s reasons (whether conscious or subconscious) for acting as he or she did.[213]It is not necessary for the protected act to the main motivation for the detriment, as long as it was a significant factor (Pathan v South London Islamic Centre [2014] 5 WLUK 441).[214]Self-evidently, the reason for the conduct must be that the claimant had made a complaint which was a protected act for the purposes of section 27 of the 2010 Act; not merely that a complaint had been made in general terms. That requires the Tribunal to consider the context in which a complaint was made. Burden of proof[215]Section 136 of the Equality Act deals with the burden of proof as follows: “(2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene that provision”[216]The section therefore prescribes a two-stage process. At the first stage, there must be primary facts from which the tribunal could decide, in the absence of any other explanation, the discrimination took place. All that is required to shift the burden of proof is at primary facts from which “a reasonable tribunal could properly conclude” on balance of probabilities that there was discrimination. It must, however, be something more than merely Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 a difference in protected characteristic and the difference in treatment (Madarassy v Nomura Internatiojnal PLC [2007] EWCA Civ 33.[217]The burden of proof at that stage is on the Claimant (Royal Mail Group v Efobi [2021] UKSC 22). The employer’s explanation is disregarded.[218]If the claimant satisfies that initial burden, the burden shifts to the employer at stage two to prove one balance of probabilities that the treatment was not for the prescribed reason. The ACAS Code of Practice on disciplinary and grievance procedures[219]ACAS has the power to produce Case of Practice under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992. ACAS has produced such a Code of Practice on disciplinary and grievance procedures. It is supported by non-statutory guidance. The relevant provisions are set out below:[220]Regarding disciplinary investigations, the Code of Practice says this: “5. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”[221]Regarding what should then be provided to the employee where there is a disciplinary case to answer, the Code of Practice says this: “9. If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.” Importantly, there is no requirement to produce a formal investigation report.[222]Regarding grievance meetings, the Code of Practice says this: “33. Employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received.” And this: Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 “40. Following the meeting decide on what action, if any, to take. Decisions should be communicated to the employee, in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance. The employee should be informed that they can appeal if they are not content with the action taken.”[223]Regarding appeals, the Code of Practice says this: “41. Where an employee feels that their grievance has not been satisfactorily resolved they should appeal. They should let their employer know the grounds for their appeal without unreasonable delay and in writing.” The Code of Practice does not explicitly deal with the situation where an employee has ceased to be employed after a grievance has been submitted, although it refers throughout to “an employee” (rather than, for example “a current or former employee”). Reporting employees to the Police[224]The Court of Appeal in Crawford and anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 made this obiter comment (regarding the appropriateness of employers reporting employees to the police): “Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet "criminal" being applied to the employee's conduct.” Conclusions Disability
Conclusions
[225]We deal first with the question of whether the claimant had a disability at the relevant times, within the meaning section 6 of the Equality Act 2010. Taking the four steps set out in Sullivan in order: a) Was there an impairment? (the ‘impairment condition’);[226]We bear in mind that there is no need for the impairment to be clinically recognised. We have, however, seen no medical evidence to suggest that the Claimant had an impairment at the relevant time. Even on the objective evidence the Claimant provided, it could not be said that he had an impairment at the relevant time by virtue of PTED. That is because one of the defining characteristics of PTED, according to the objective evidence, was that the embitterment had persisted for either 3 or 6 months. Even at Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 the point of termination of his employment and dismissal of his appeal, that had not been the case. b) What were its adverse effects [on normal day-to-day activities]? (the ‘adverse effect condition’);[227]The Claimant’s evidence regarding the adverse effects he was suffering from at the relevant time was that he was having difficulty with eating and sleeping, together with uncontrollable anger/hostility, inability to concentrate and take part in social activities, and slurred speech. Of course while he did on occasions suggest in contemporaneous correspondence that he was having difficulties, at other times he gave a different picture – for example telling Mr Millen that he was “well”. And the transcripts of the meetings before us did not suggest that he was suffering from difficulties concentrating or slurred speech within those meetings. That being said, the Claimant’s evidence regarding the adverse effects was largely unchallenged.[228]Of course those symptoms, particularly difficulties eating, sleeping, concentrating and taking part in social activities are, as the objective evidence suggested, difficult to distinguish form the ordinary effect of going through a stressful situation such as a disciplinary or grievance process – particularly one which the subject of it felt was unwarranted, and which consequently caused them to feel bitter. c) Were they more than minor or trivial? (the ‘substantial condition’);[229]We accept that the effects the Claimant described in his (largely unchallenged) evidence were, taken as a whole, more than minor or trivial. The effects he described were, by their very nature, more than minor or trivial. d) Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).[230]As the point in December 2022 when he attended the appeal hearing, which was his last substantive engagement with the Respondent, even on the Claimant’s own case the symptoms had lasted for two and a half months at most. During those two and a half months he was almost constantly going through one or another internal process, culminating in his dismissal. We must be careful not to apply hindsight, but rather to consider that position as it would have appeared to be at that time. There was simply nothing at that point in time to suggest that the symptoms the Claimant was suffering would be long-lived once various the internal processes had concluded (as they did with his dismissal appeal). And once again, the objective evidence the Claimant relied upon suggested that his symptoms as at that point have engaged a diagnosis of PTED, since they had not persisted for three, much less six, months.[231]So for all of those reasons, we conclude that the Claimant was not disabled within the meaning of the Equality Act 2010 at the relevant times. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[232]We would in any event have concluded also that the Respondent did not have either actual of constructive knowledge of the Claimant’s impairment. In terms of PSED, even now, some two and a half years after his employment terminated, no medical professional has diagnosed the Claimant with it – including the Claimant’s GP surgery, who he has consulted on a number of occasions since then. So it is something of a stretch to suggest that his employer ought to have spotted it while he was in employment. And we do not think there was anything which ought to have put the Respondent on notice that the Claimant was suffering from an impairment that had a substantial effect on his ability to carry out ordinary day-to-day activities, and which was long-term. As we have already said, the information he provided to the Respondent was ambiguous. There was absolutely nothing about what he told the Respondent that was suggestive of a condition which may persist for twelve months or more.[233]It follows then that the complaints of discrimination arising from disability and failure to make reasonable adjustments cannot succeed. Protected belief[234]There was scant evidence before us regarding the Claimant’s belief; and importantly, regarding his belief at the relevant times. Self-evidently, we must avoid hindsight, and we must instead consider the state of the Clamant’s (professed) belief at the time of the alleged discrimination. That is because, as a matter of logic, he cannot have been discriminated against based on a belief he did not hold at the time of the alleged discrimination. This is not a case where it was suggested that there was discrimination on the basis of the Respondent’s perception. The Claimant’s case is that he was discriminated against based on a belief that he held.[235]The Claimant’s evidence in his witnesses statement was limited to some broad assertions about his beliefs, which he said were rooted in Islamic teachings (although of course he is not a Muslim). Those assertions were not time-bound – he did not, for example, say whether they were beliefs he had held for his entire life, or whether they had developed over time (and if so, when and how). There was no evidence of how, if at all, he had put those beliefs into action, or how he lived his life in compatibility with those (professed) beliefs – and particularly, how he had done so prior to his interaction with Ms Masud in September 2022. Indeed, the only occasion at all when he suggested he had taken any action at all, either in word or deed, based on his professed belief was in the comment he made to Ms Masud about her dressing conservatively.[236]Based on the evidence before us, we are not satisfied that the Claimant genuinely held the belief he professed to believe at the relevant times. He may hold the belief now; the belief may even have developed as a result of his view of the events of September to December 2022. But there is simply no evidence before us on which we can be satisfied that he genuinely held a cogent philosophical belief at the relevant times Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[237]For completeness, we should say that had we found that the Claimant had genuinely held the belief, we would not have considered that that belief offended the fifth Grainger criteria for the following reasons: 237.1. His evidence was that the core tenets of his philosophical belief essentially mirrored parts of the Islamic faith – he quoted passages of Islamic scripture. A religious belief is not subject to the Grainger criteria. We find it hard to see in principle why a belief that would be protected if it was held as a religious belief would escape protection merely because it was held as a philosophical belief by someone who did not adhere to the religion in question. 237.2. We are fortified in that by reminding ourselves that the fifth Grainger criteria is a very high bar. Articles 8 and 10 allow individuals the right to hold beliefs that may be offensive to others. The Claimant’s professed belief did not reach that high bar. Overarching findings[238]The list of issues, which sets out the factual allegations relied upon by the Claimant as constituting each of the various heads of discrimination, is long and somewhat repetitious. The Claimant relies on similar allegations as constituting different forms of discrimination or detriment. A significant feature of the Claimant’s case is that he considers that the way he was treated by the Respondent was inherently unfair or unreasonable. That contention is relevant to (although of course not determinative of) the various causal tests we need to apply.[239]We therefore consider it is proportionate to start by making some overarching findings regarding the central factual matters in the case, before moving to consider the specific allegations relied upon.[240]We bear in mind that we have not heard evidence from Ms Masud. But in any event, what is important for the purpose of this litigation is what the Respondent understood Ms Masud’s position to be at the time, since the allegations the Claimant makes in this claim are largely focused the Respondent’s responses to what was said by Ms Masud. We have the benefit of a number of contemporaneous documents. In making the following findings, we have had regard to the totality of the evidence before us.[241]We find that Ms Masud did not use the words “sexual harassment” to describe the Claimant’s behaviour. The contemporaneous documents painted a consistent picture in that regard, in that: 241.1. The words “sexual harassment” were not used by Ms Masud in the statement she gave to Ms Clatworthy, or in any of their followup emails. 241.2. When she spoke to Anouska Fox on 18 October 2022, she was clear that she had made no allegation of sexual harassment. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 241.3. She was also clear about that in the grievance meeting with Miss Laffont.[242]While there were some differences between the accounts of the Claimant and Ms Masud, the essential parts of the conduct complained of were not in dispute, in that: 242.1. The Claimant accepted that he described Ms Masud as “conservative” on at least one occasion, referring to the fact that in his opinion her mode of dress was not designed to generate attraction from men. 242.2. The Claimant contrasted Ms Masud’s mode of dress in that regard with others female colleagues. 242.3. The Claimant suggested that Ms Masud had been “making eyes” at a male colleague (we do not think it makes any difference that he said he was merely repeating what someone else had told him).[243]Ms Masud is not a party to these proceedings, and the Claimant is not the defendant. We are not considering whether the Claimant committed the tort of harassment against Ms Masud. We do, however, consider that the conduct that the Claimant himself admitted to was at least arguably capable of constituting harassment within the meaning of section 26 of the Equality Act 2010, in that: 243.1. It was plainly unwanted (or Ms Masud would not have objected to it). 243.2. It was objectively capable of having the effect of violating Ms Masud’s dignity, and creating a degrading and humiliating environment for her. That was two-fold – firstly, his comments comparing Ms Masud to other colleagues suggested a degree of objectification of other female colleagues. And secondly, we consider that it would have been objectively reasonable for the recipient of the comment describing Ms Masud as “conservative” and contrasting her with other female colleagues would hear that as a slur. When the Claimant used the word “conservative”, that could, objectively speaking, be heard as “frumpy” or any number of other adjectives that could reasonably be regarded as somewhat less than complimentary. It does not matter that that was not what the Claimant intended, since the test for harassment looks at either purpose or effect. 243.3. We have not heard evidence from Ms Masud, so we make no explicit finding on the subjective effect the comments had on her. But she did refer to feeling offended. We do not think, when she described the comments the Miss Laffont as “not largely offence”, that she was denoting that she found them innocuous or inoffensive (which is how the Claimant read those words). Later on in the same set of minutes she described having been offended by the Claimant’s behaviour, and trying to explain that offence to the Claimant. 243.4. The comments were plainly related to Ms Masud’s sex and to her religion (as she was wearing a hijab). We think it is also at least arguable that the Claimant’s alleged comments contrasting Ms Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Masud with colleagues who “had their boobs out” were of a sexual nature, since they sexually objectified the colleagues he was referring to.[244]The Claimant knew, in substance, what Ms Masud was alleging, because she had told him in the meeting on 14 September. He said as much in the “self-suspension” email. He was aware that the allegations against him related to comments he was alleged to have made; and that was also highlighted to him within the suspension meeting. He clearly understood that the allegations were not about inappropriate physical contact.[245]We find that the first suggestion that the matter be reported or investigated formally came not from Ms Masud, but from the Claimant. It was the Claimant’s own evidence that he was the one who suggested, during the conversation on 14 September, that the matter should be raised with HR. That is consistent with what Ms Masud said in the grievance investigation meeting, which was that it was the Claimant who suggest raising the matter formally, and that she initially spoke to Ms Fox to get a second opinion. It is also consistent with what Ms Masud said in the statement she gave to Chantelle Clatworthy, where she said that she spoke to her portfolio manager but said she did not want to raise it formally, but was advised by her portfolio manager that it needed to be taken to HR.[246]It is also consistent with the way the Claimant conducted himself subsequently, in that he consistently (and somewhat bizarrely) suggested the matter should be escalated to the Police, although there was no conduct that could have got close to deserving the epithet of “criminal”. The Claimant is an intelligent man who had conducted a significant amount of legal research on a number of matters over the period in question. It is therefore surprising that he thought that it is a matter in respect of which Police involvement would be required. Rather, we consider that was indicative of him seeking to raise the temperature around the allegations (whereas Ms Masud simply wanted the whole thing to blow over).[247]While the Claimant’s position was that he apologised to Ms Masud when they met on 14 September 2022, it was clear from both the statement Ms Masud gave to the first disciplinary investigation and the notes of the grievance investigation that that she did not consider that the Claimant had apologised to her. We consider that while the Claimant said he was apologising in the meeting on 14 September 2022, it was not a genuine apology. We reach that conclusion because: 247.1. The Claimant’s consistent position was that he did not believe he had done anything wrong or anything for which he needed to apologise. 247.2. Even on the Claimant’s own evidence, he continued the conversation by suggesting that the matters should be raised to HR. That did not suggest that he wanted to move on or make things right. 247.3. The way the Claimant described his purported apology in the disciplinary investigation meeting on 7 October was not suggestive of a genuine apology – he described Ms Masud as being Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 “disingenuous about what she felt”, which again does not suggest that any apology he offered was genuine or heartfelt. 247.4. In the Claimant’s grievance meeting, he described giving an ultimatum with his apology that if Ms Masud did not accept it then the matter would have to be reported to HR. That was suggestive of a degree of transactionality or conditionality, which was again inconsistent with a genuine apology.[248]The first time in the evidence we saw the label of “sexual harassment” being attached to the Claimant’s behaviour was in his own email of 16 September – sent to four Shell colleagues. That label was then used by Sheerah Muthiyah in her email to the Respondent asking them to investigate the matter.[249]Given that Shell was the Respondent’s client, it was objectively reasonable for the Respondent to investigate the allegations when told to do so by Shell, and to investigate them through the frame of reference provided by Shell.[250]Given the nature of the allegations, it was objectively reasonable to suspend the Claimant for a short period of time while an investigation took place.[251]It was objectively reasonable, and entirely common practice in the Panel’s industrial experience, for the Respondent to ask the Claimant not to contact colleagues from within the Respondent or the client, Shell, during his suspension (at least without asking Ms Onbashi first).[252]It was objectively reasonable for the Respondent to want to manage the process of the Claimant’s return to work after suspension carefully.[253]On the evidence before us, the concerns about the Claimant returning to Shell emanated from Shell, specifically from Ms Fox and Ms Blackford. That was apparent from Ms Ajam’s email of 17 October where she noted that the T&S department were expressing reservations about his return. That email predated Ms Fox asking Ms Masud for her view – so the Shell view had at the very least started to crystalise before Ms Masud had been asked for and given her input.[254]When Shell did not want the Claimant to return, it was not reasonable to expect the Respondent to try to force the issue, as Shell was its client. Shell held the whip hand within the commercial relationship.[255]Once the Claimant’s placement with Shell had been terminated, it was open to the Respondent (and reasonable for them) to instruct him to have no further contact with Shell, given the commercial importance for the Respondent of maintaining their client relationship. We express no opinion on whether the Respondent could enforced any restriction on the Claimant’s ability to contact Shell after his employment terminated; but while he remained in employment, and continued to be paid by the Respondent, he Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 had to follow their instructions. That was the bargain he entered into in taking up employment. The instruction did not infringe the Claimant’s ECHR rights.[256]It was open to the Respondent to instruct the Claimant to return his laptop via them, rather than directly to Shell, whatever the “normal” process was in other cases. As his employer, they were perfectly entitled to give him that instruction. The fact that the equipment belonged to Shell did not override the Respondent’s right to give him instructions which he was required to follow.[257]It was open to the Respondent, and reasonable for them, to treat the Claimant’s failures to comply with their instructions as a conduct issue.[258]The Respondent was entitled to treat the Claimant using his work email address to send a letter before action to Ms Masud during working hours as a conduct issue, both on the basis that he should have been devoting his working hours to carrying out work for the Respondent, and on the basis that it ought to have been apparent to any reasonable person that sending a threat of personal litigation from a work email account was objectively inappropriate.[259]We also consider that the Claimant’s conduct regarding the Letter Before Action well merited the description “aggressive” or even “bullying”, in that: 259.1. On his first attempt to send the Letter Before Action, when he asked the Respondent to forward it, he indicated that if he did not receive an acknowledgment from Ms Masud within less than 24 hours, he would inform her managers and all of her colleagues about the situation. The fact he did not follow through with that threat does not, in our judgment, make the threat any less aggressive or inappropriate. 259.2. On the second attempt, when he sent the Letter Before Action directly to the Ms Masud, he demanded an acknowledgement of his email on the very next working day, and threatened that if he did not receive that he would (again) contact her line managers directly. Given that he was threatening legal action in his personal capacity, it is entirely unclear why it would have been appropriate to make contact with her line managers. Once again, that was plainly an aggressive and threatening act. 259.3. The default time limit for responding to a letter before action in a complaint of defamation, set out in the relevant Pre-Action Protocol, is 14 days. The Protocol also make it clear that the time limit for bringing such claims is one year. The limitation period was, at that point, some 10 months away from expiring. The Claimant indicated in his correspondence that he was aware of the Protocol. In the circumstances, there was no good reason for him to set such short time limits for Ms Masud to respond. Doing so was unreasonable and aggressive. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[260]It was also apparent to us from the totality of his evidence that the Claimant had little (if any) insight into the various propositions we have set out above. He also had little (if any) insight into the effect that his behaviours had on Ms Masud, and on the Respondent more generally. We consider that the Claimant’s view of the events was heavily influenced by his own sense of grievance. We bear that in mind in assessing his evidence, which has undoubtedly been coloured by that.[261]We turn then to the various allegations set out in the list of issues. Protected disclosure detriment[262]The Claimant relies on six alleged protected disclosures. A. On or around 15th August, I received a catch up phone call from Klaudia Wojcieszczak. During this call, I informed her that permanent new hires at Shell, namely Olivia Hogan, were being paid more than FDM consultants in the same positions, in breach of Agency Workers Regulations 2010 (AWR).[263]We find that the Claimant did inform Ms Wojcieszczak that Olivia Hogan was being paid more than FDM-employed consultants. We find that he did not mention a breach of the AWR. We reach that conclusion because: 263.1. The Claimant’s own evidence in his witness statement was somewhat ambiguous. 263.2. The Claimant’s appeal document, submitted on 13 December 2022, indicated that he had told Ms Wojcieszczak about the pay disparity but did not suggest that he had mentioned the AWR. 263.3. That was before he had conducted his research into the AWR.[264]We do not consider that the Claimant, at that stage, reasonably believed that there was a breach of a legal obligation. He believed his pay was unfair, but no more than that. That being the case, he cannot have communicated information that he reasonably believed tended to show that there was a breach of the Respondent’s obligations under the AWR.[265]We therefore conclude that this was not a protected disclosure. B. On or around 30th August, I informed Naima Masud, in the presence of Steven Thavendran, that permanent new hires at Shell were being paid more than FDM consultants in the same positions and that we should be getting the same pay, according to AWR.[266]The Claimant’s evidence was that he explained that the Respondent’s staff were being exploited and that their contracts violated employment laws.[267]We find that what the Claimant communicated was substantially the same as what he had communicated to Ms Wojciezczak. For substantially Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 the same reasons as we have already set out, we find that he did not communicate information that he reasonable believed tended to show that there was a breach of the Respondent’s obligations under the AWR.[268]We therefore conclude that this was not a protected disclosure. C. On or around 1st September 2022, I informed Narima Ajam, in the presence of Shuaib Azam, Khadija Chowdhury, Guilane Youmbi, Olivia Hogan, Chidera Magwogwu, Michael Ayeni, Shae-ree Wang and Anisa Fatima, that permanent new hires at Shell were being paid more than FDM consultants in the same positions, and I felt this was in breach of AWR[269]The Claimant’s evidence is that he told those people the same thing he told Ms Wojciezczak. So for the same reasons, we find that this was not a protected disclosure. D. On 8th September 2022, I informed Emily Canning in the presence of Klaudia Wojcieszczak and Michael Ayeni, that FDM was breaching AWR by i. Paying consultants less than permanent employees with similar experience in the same positions; ii. Preventing consultants from joining clients permanently before 2 years[270]We find that the claimant told Ms Canning, broadly, what he had set out in his 4 September 2022 email. That was Ms Canning’s evidence.[271]The 4 September email showed that the Claimant believed that the Respondent was operating in breach of the AWR. We do not need to decide whether he was objectively correct about that. What we need to consider is whether his belief was an objectively reasonable one for him to hold. The Claimant had set out in his email, in some detail, why he considered the Respondent was operating in breach of the AWR. In light of what he had set out, we consider that belief was an objectively reasonable one for him to hold.[272]We consider also that the Claimant reasonably believed that his disclosure to Ms Canning was in the public interest. We had no evidence before us regarding the number of people affected, but it appeared to be common ground that it was not an insignificant number; indeed, the Respondent’s business model, at least in the part of the business where the Claimant worked, was predicated on placements of that type. So it was clearly in the interests of a reasonable number of the Respondent’s employees. In the short term, the Claimant was not, in fact, one of those affected, since he would have derived no immediate benefit from the Respondent deciding to pay its staff in line with the provisions of the AWR.[273]We conclude therefore that the disclosure to Miss Canning was a qualifying disclosure. And it was made to Ms Canning, an employee of the Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Respondent in a position senior to that of the Claimant. we therefore conclude that it was also a protected disclosure. E. On the 15th of November 2022, I emailed Rod Flavell, CEO, with Emily Canning copied in, regarding this breach and my concerns surrounding how unfairly I’d been treated after raising this my concerns.[274]The Claimant’s email set out that employees of the Respondent were being paid less than permanent new hires. He explained in the email that he considered that that was a breach of the AWR. He did not refer specifically to employees with 12 weeks service in a placement, although he did refer to the requirement for 12 weeks service within his summary of the law. Nor did he explicitly mention Shell, although he explained elsewhere that he worked for Shell, and of course his (reasonable) understanding was that the model that applied to the Shell staff would also apply to other clients.[275]Taken as a whole, we find that the Claimant was disclosing information which he reasonably believed showed that the Respondent was breaching a legal obligation within his email of 15 November 2022.[276]We then turn to consider the public interest. At the point that the Claimant sent the email, he had just been told he was being investigated for misconduct. He had indicated that he was going to continue to fail to comply with the instructions that he had been given – that is, that he was going to continue the conduct which had him to be investigated. He also indicated that he was going to disclose the same information to all of the Respondent’s clients, impliedly if he did not receive the response he wanted. That is, he was threatening to make a disclosure that could on no sensible analysis be a protected one, and which would carry the risk of significant reputational and potentially commercial harm to the Respondent. And at that point, the Claimant was no longer placed with Shell, so he would not have benefitted either directly or indirectly from the Respondent paying its employees in line with the AWR. We consider that what the Claimant was seeking at that stage was not a change to the Respondent’s pay practices – rather, it was for the disciplinary allegations against him to be dropped.[277]At that point, we therefore do not consider that the Claimant could reasonably have believed that sending his email was in the public interest. We consider that he was, in reality, motivated at exclusively by attempting to coerce or threaten the Respondent into dropping the disciplinary allegations.[278]It follows then that it was not a qualifying, and consequently not a protected, disclosure. F. On the 25th of November, I emailed Charley Smithers and Daniel Horan, regarding the unlawfulness of blanket speech bans, in breach of Article 8 and Article 10 of the Human Rights Act 1996 (HRA). Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[279]The Claimant’s case was that the instruction that he must not speak to Shell staff was a blanket ban on his speech. While he did not expressly say in terms in the 25 November email that that was the blanket speech ban he was referring to, it was reasonably obvious from the context.[280]We accept that the Claimant subjectively believed that he had been subjected to a “blanket speech ban”, and that that breached his rights under articles 8 and 10 ECHR. But we do not consider that that was an objectively reasonable belief for him to hold, for the following reasons: 280.1. Taken at its highest, the Claimant had been instructed not to contact employees of Shell or the Respondent during the investigation, and then not to have any contact with anyone from Shell (as the Respondent’s client) following the termination of his placement . The Claimant’s case was that that was some 90,000 people. Out of the population of the UK, or even of Greater London, that is an insignificant number of people. 280.2. When the instruction was given not to speak to Shell staff after the end of his placement, Mr Enright had specifically excluded speaking to his friendship group. There was no suggestion that he could not speak to existing friends who worked for Shell, unrelated to his (short lived) placement, about matters that had nothing to do with the investigation or his termination. He did not at any point suggest that that was what he wanted to be able to do or that that was what he was being prevented from doing. 280.3. The instructions were entirely justified. During the suspension, the Respondent was entitled to prevent the Claimant discussing matters, given the potential for the investigation to be compromised – as well as to maintain his own confidentiality and that of Ms Masud. 280.4. In terms of the position after the end of his employment, the Respondent is a commercial business. They were entitled to take reasonable steps to protect their commercial interests. Given the circumstances under which the Claimant’s placement at Shell had ended, and in particular the occasions on which he had breached the instruction not to speak to Shell colleagues during his suspension, directing him not to have any further contact with Shell staff was entirely reasonable and proportionate.[281]As we have concluded that the Claimant’s belief that his rights under Articles 8 and 10 were being breached was not an objectively reasonable belief for him to hold, it follows that he cannot have (objectively) reasonably believed he was communicating a breach of those rights in his email of 25 November.[282]We therefore conclude that this was not a protected disclosure. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Protected Disclosure Detriments[283]As we have found that the Claimant made a protected disclosure, we turn then to consider the detriments he relies upon. A. Emily Canning said, in response to my protected disclosure on 8th September 22: “There are other consultants on the beach we can replace you with”;[284]Miss Canning’s denial was somewhat half-hearted; she leaned heavily on the fact that the Claimant had not, in fact, been moved away from Shell and replaced with another consultant at that point. But we do not consider that that really answered the point of whether the comment was made. We bear in mind that this was not something the Claimant had raised for the first time in the litigation. He had raised it in his appeal document (although Ms Plaxton had not looked into it further on the basis that it was not relevant to the conduct of which he was dismissed). We bear in mind that Miss Canning would also have had a financial motivation for moving a troublesome consultant off the Shell contract, given that she received commission based on how profitable the contract was.[285]Weighing all of that up, we find on balance that Miss Canning did say something along those lines.[286]We conclude also that the comment was, objectively speaking, a detriment to the Claimant. The sting of the words was that he might be removed from the placement at Shell, a placement he regarded as perfectly aligned with his skills. Removing him from the placement would have left put him in a position of uncertainty around any future placement. The comment was a threat. The fact it was not then seen through did not make it any less threatening.[287]We conclude also that the comment was materially influenced by the fact that the Claimant had made a protected disclosure. It was a direct response to the disclosure he had made.[288]It follows that the allegation is made out on the facts, subject to the question of jurisdiction, which we deal with after we have considered the remaining allegations. B. Emily Canning and Deborah Onbashi ignored my phone calls and emails;[289]The high point of the Claimant’s evidence regarding this allegation was set out in paragraphs 48 and 51 of his witness statement (in the context of his request that CCTV footage be obtained from Bar Elba): “48. I continued pressing FDM to act, repeatedly leaving messages with reception, which were ignored. Chantelle even directed Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 reception staff to stop answering my calls, saying: "Could you please not pick up going forward."[C810]” “51. I was frantically trying to get the CCTV preserved but Deborah was ignoring my phone calls [C387]…”[290]There was no evidence from the Claimant in his witness statement that he had even attempted to call Ms Canning, much less that she had ignored calls from him. Nor was there evidence that he had directly sent Ms Canning any emails which she had not responded to (although he did on occasion copy her into emails to others).[291]In respect of Ms Onbashi, the Claimant’s evidence was that she was not returning his phone calls. In cross-examination, his evidence was that this was particularly around 6 October 2022, because he was concerned that the CCTV footage at Bar Elba was going to be automatically deleted. But in the circumstances, we consider that Ms Onbashi did respond to the Claimant’s emails in a reasonably timely manner. It was not reasonable of the Claimant to expect Ms Onbashi to return his calls instantaneously, particularly when they were due to meet the following morning.[292]The other point the Claimant raised during his evidence was the failure by Ms Onbashi to respond to his grievance when he first raised it on 24 October 2022. As his grievance email had been acknowledged by her manager Mr Enright, who was taking legal advice on it, that is unsurprising. We do not consider that that could be characterised as Ms Onbashi “ignoring” the email.[293]Looked at in the round, we therefore consider that the allegation is simply not made out on the facts. It fails. C. FDM placed me in the “Dunn Group” – I believe “Dunn” is a euphemism for “Done”;[294]This complaint was withdrawn by the Claimant during his evidence. D. Suspended me;[295]It is common ground that the Claimant was suspended. Although it was described a neutral act, we have no difficulty in concluding that suspending an employee is a detriment.[296]We are satisfied, however, that the suspension of the Claimant was not in any way linked to the protected disclosure he had made. He was suspended because of the allegations that had been made about his Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 conduct, and following discussion between the Respondent and Shell (as their client).[297]The Claimant suggested that Ms Masud had, in making the allegations she did about his conduct, been influenced by his protected disclosure. Of course, we have found that the disclosure the Claimant made to Ms Masud was not protected disclosure. There was nothing before us to suggest that she was aware of the one protected disclosure we have found that he did make. But in any event, as an employee of the Respondent placed with Shell, if the Claimant had been right in what he was saying, Ms Masud sought benefit financially from it. We consider that it is implausible that she would want to punish him for raising the matter. And as we have found, Ms Masud was not a willing complainant. She complained because she was encouraged to do so by Ms Fox, and only after the Claimant himself suggested that the matter should be raised formally.[298]We therefore find that Ms Masud’s allegations were not in any way influenced by the Claimant’s protected disclosure. Therefore the allegation fails. E. FDM accused me of sexual harassment;[299]This is made out on the facts, and we are satisfied that it is a detriment. But again, we are satisfied that it was in no sense whatsoever related to the fact that the Claimant had made a protected disclosure. Rather, the allegation was expressed as being one of sexual harassment because that was how it was described by Shell, when they asked the Respondent to investigate the Claimant’s conduct. It was also, as we have found, an apt label to apply to the Claimant’s alleged conduct.[300]Therefore the allegation fails. F. FDM accused me of gross misconduct and suspended me for more than 5 days, in contravention of their own Disciplinary Procedures Policy;[301]Firstly, we should say that suspending the Claimant for more than five days was not a breach of the Respondent’s policy. This allegation is, we consider, an example of the Claimant’s loss of perspective. The Respondent’s policy made it clear that suspensions could last for more than five days. It absolutely did not set a rule that suspension would never last longer. The Claimant was told, in the suspension letter, that the suspension would initially last for two weeks. So the allegation that the Respondent breached its own policy in respect of the length of the suspension is simply not made out. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[302]It is right that the Claimant was accused of gross misconduct and suspended. Those are both detriments. But for the same reasons as we have already explained in respect of the preceding allegations, we conclude that it was in no sense influenced by his protected disclosure.[303]Therefore the allegation fails. G. FDM influenced the suspension of my placement with Shell;[304]We were not entirely clear what Claimant meant by “suspension of his placement”. It was not that he was suspended from his placement with Shell – he was suspended from work generally. We have already dealt with the allegation regarding his suspension. We do not consider that recasting it in this form adds anything or affects the conclusion we have already reached.[305]Therefore the allegation fails. H. FDM influenced the termination of my placement with Shell by telling Shell that FDM had doubts me and Naima Masud could work together;[306]For the reasons we have already set out, that is simply not what happened. The termination of the Claimant’s placement was not influenced by the Respondent. Rather, the push to end his placement came from Ms Fox and Ms Blackford of Shell. And they had come to their view that his placement should be terminated before Ms Fox had even canvassed Ms Masud’s views. Therefore the allegation is not made out on the facts, and fails. I. FDM failed to take reasonable steps preserve and/or review CCTV evidence;[307]Deborah Onbashi asked Bar Elba for the CCTV footage, at an early stage in the investigation. Geoff Millen also made the same request later on (albeit that the footage had, by then, been deleted). This is despite the fact that, given the nature of the allegations, any CCTV footage without audio could only have had very limited evidential value. We do not consider that there are any further steps the Respondent could reasonably have been expected to take in the circumstances. The allegation is not made out on the facts, and fails. J. FDM failed to take reasonable steps to interview relevant witnesses;[308]In respect of the first disciplinary allegation, Ms Masud limited the scope of the complaints she was making against the Claimant. She explained within the investigation that she was doing that because she wanted the matter to be kept confidential, and did not want other employee Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 to have to be interviewed. She then withdrew the complaint completely. We do not consider that the Respondent could be said to have been under a duty to interview witnesses in that situation – particularly where the Claimant had admitted to the substance of the allegations against him (albeit not all of the detail).[309]In any event, we do not consider that the approach that the Respondent took towards witnesses during the first disciplinary investigation was influenced by the Claimant’s protected disclosure. The approach taken by the Respondent was driven by the nature of the allegations made, and then by the decision by Ms Masud to withdraw from the process.[310]In respect of the grievance, Ms Laffont did not interview any witnesses, despite potential witnesses being suggested by both the Claimant and Ms Masud.[311]We consider that it would have been good practice to have interviewed all, or at least a fair cross-section, of the witnesses put forward by both the Claimant and Ms Masud. But neither Ms Laffont nor her HR advisor, Mr Millen, took any steps to interview any of the witnesses. Ms Masud tried to arrange for the witnesses she had put forward to get consent from Shell; but that was on her own initiative, and it was not taken further.[312]Ms Laffont could not recall, in her evidence, why she had not interviewed the witnesses. Taking a step back, we consider that it was not materially influenced by the Claimant’s protected disclosure. We reach that conclusion because Ms Laffont treated both the Claimant and Ms Masud in the exactly the same way when they proposed witnesses to be interviewed.[313]Therefore the allegation fails. K. FDM told me, on 5th October 2022: “Do not contact any member of staff at Shell or FDM during this investigation process”;[314]It is common ground that this happened. We accept that, objectively speaking, it constituted a detriment to the Claimant. But as we have already explained, we consider that it was entirely normal practice for an employer in the Respondent’s position to adopt. There was nothing before us to suggest that it was anything other than a standard management response to an investigation and precautionary suspension. Put another way, there was nothing at all to suggest that it was in any way influenced by the Claimant’s protected disclosure. We conclude that it was not so influenced.[315]Therefore the allegation fails. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 L. FDM told me, on 1st November 2022: “Do not contact Shell or any employee of Shell”;[316]It is common ground that this happened. We again accept that it was a detriment. But once again, for the reasons we have already explained, we consider that this was a perfectly normal and reasonable instruction in the context of a placement that had come to an end in contentious circumstances. There was nothing at all to suggest that it was in any way influenced by the Claimant’s protected disclosure. We conclude that it was not so influenced.[317]Therefore the allegation fails. M.FDM said to me: “FDM will not be forwarding on this letter. I ask that you do not request Shell to forward on your letter”;[318]Again, it is common ground that this happened. But what the Claimant was asking the Respondent to do was to forward a Letter Before Action about a claim he was considering bringing in his personal capacity, to another one of its employees. That was, in our judgment, an utterly unreasonable request to make. The Claimant was asking the Respondent to do something which no reasonable or sensible employer would do. So we do not consider that the Respondent’s refusal to do so could be properly characterised, objectively speaking, as a detriment to the Claimant.[319]In any event, we are satisfied that it was in no way influenced by his protected disclosure. Therefore the allegation fails. N. FDM made me stay at home all day waiting for a courier that did not arrive. Twice[320]It is common ground that the courier was unable to locate or make contact with the Claimant, although we have found that this was not a situation that was deliberately engineered on the part of the Respondent. We consider that it is important to see the allegation in context. The Claimant was required to be working for the Respondent throughout the times that he remained at home for the courier (bar his lunch break). He was being paid to do so. In that context, we do not consider that this can properly be categorised as a detriment.[321]In any event, we are satisfied that it was in no way influenced by his protected disclosure. The reason the Claimant was asked to be available for the courier to collect his equipment was because he had not returned it to the Respondent as he had been requested to do. And the reason it happened twice was because of issues with the courier’s ability to locate or make contact with the Claimant. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[322]Therefore the allegation fails. O. FDM's allegation of misconduct: “Inappropriate use of FDM communication channels to pursue a personal, non-work-related matter”, communicated to me on 17th November 2022;[323]This was the fourth of the four allegations of misconduct which formed part of the second disciplinary process. Being accused of misconduct is self-evidently capable of being a detriment. But for the reasons we have already explained, we have concluded that the Respondent was perfectly entitled to treat the Claimant’s actions as misconduct. And we are satisfied that Claimant’s protected disclosure did not influence the Respondent’s decision to pursue that allegation of misconduct against him. Rather, the only operative factor behind that allegation of misconduct being put to the Claimant was his own inappropriate conduct in sending the Letter Before Action from his professional email address, during working time.[324]Therefore the allegation fails. P. FDM found me guilty of gross misconduct for “Inappropriate use of FDM communication channels to pursue a personal, non-work-related matter” on 28th November 2022, contradicting FDM’s own Computer Usage Policy, which states: “Company email is provided for official business and administrative purposes, occasional personal use is permitted so long as such use is not excessive, in volume, frequency or time and does not disrupt or restrict usage by other users nor interferes with an employee’s day to day duty";[325]For the reasons we have already explained, we have concluded that it was reasonable for both Mr Horan and Ms Plaxton to conclude that the Claimant had committed gross misconduct. And once again, we are satisfied that their conclusion was not in any way influenced by the Claimant’s protected disclosure. The reason Mr Horan gave in the outcome meeting and at the outcome letter for finding the allegation substantiated was the real reason. The reason Ms Plaxton gave in her outcome letter for dismissing the Claimant’s appeal was the real reason.[326]Therefore the allegation fails. Q. FDM frequently switched between characterising my grievance as a personal/civil/FDM matter for the purposes of furthering the disciplinary action against me;[327]This is a mischaracterisation of what occurred. Ms Smithers was very clear at the disciplinary hearing that the Claimant’s grievance was an internal FDM matter, whereas his threatened defamation claim was a personal matter (and was a civil claim). The issue, insofar as there was one, was the Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Claimant’s inability to distinguish between the two. And of course, the Claimant himself muddied the waters by attaching his Letter Before Action to his grievance. We find that this allegation is simply not made out on the facts, and it fails. R. FDM's allegation of misconduct: “Failure to follow the correct process of returning your Shell equipment as instructed by FDM”, communicated to me on 15th November 2022;[328]This was the second of the four allegations of misconduct which formed part of the second disciplinary process. As set out previously, an allegation of misconduct is capable of being a detriment. But as we have already concluded, it was reasonable of the Respondent to treat this as an allegation of misconduct. And bearing that in mind, we are satisfied that the making of this allegation was not in any way influenced by the Claimant’s protected disclosure. It was entirely due to the fact that he had deliberately and knowingly disobeyed the employer’s clear, reasonable and unambiguous instruction.[329]Therefore the allegation fails. S. FDM found me guilty of misconduct for “Failure to follow the correct process of returning your Shell equipment as instructed by FDM” on 28th November 2022, ignoring the facts that: i. FDM failed to ensure a courier arrived. Twice; ii. The equipment did not belong to FDM; iii. Praveen Subramanya called me to arrange the return the equipment belonging to his company; iv. The equipment was returned safely, securely and in perfect condition; v. Emily Canning confirmed there was no formal agreement in place regarding how the equipment should be returned;[330]We do not think it could be said that the Respondent ignored the matters set out within the allegation. The Claimant expanded on his case at both the disciplinary hearing and the appeal hearing. But ultimately, the conclusion reached by Mr Horan (and by Ms Plaxton on appeal) was that even within the context in which the instruction was given, the Claimant had been given an instruction and he had disobeyed it. So we do not consider that the allegation as formulated is made out on the facts. But in any event, we are satisfied decision to find the allegation of misconduct substantiated was not in any way influenced by the Claimant’s protected disclosure. The reason Mr Horan gave in the outcome meeting and at the outcome letter for finding the allegation substantiated was the real reason. The reason Ms Plaxton gave in her outcome letter for dismissing the Claimant’s appeal was the real reason.[331]Therefore the allegation fails. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 T. FDM's allegation of misconduct: “Failure to follow instruction by FDM Group Limited (FDM) to not contact employees of Shell”, communicated to me on 15th November 2022;[332]This was the first of the four allegations of misconduct which formed part of the second disciplinary process. For the same reasons as we have set out above in respect of the preceding allegation, it fails as a complaint of protected disclosure detriment. U. FDM found me guilty of misconduct for “Failure to follow instruction by FDM Group Limited (FDM) to not contact employees of Shell”, ignoring the facts that: i. As a blanket speech ban, this infringes on my human rights; ii. I needed to coordinate with my line managers to plan for upcoming work/deadlines; iii. Nobody knew where I was or what had happened to me – I just disappeared; iv. I was forced to contact Shell employees to ensure I could defend myself against such serious allegations as a result of FDM’s flawed investigation and insistence on being opaque; v. Continuing to forbid me from speaking to people after the investigation ended is unreasonable in itself;[333]This in substance the same as the mirror points in respect of the other allegations. For the reasons we have already explained, the instructions to him were not unreasonable and did not infringe on his human rights.[334]Once again, we are satisfied decision to find the allegation of misconduct substantiated was not in any way influenced by the Claimant’s protected disclosure. The reason Mr Horan gave in the outcome meeting and at the outcome letter for finding the allegation substantiated was the real reason. The reason Ms Plaxton gave in her outcome letter for dismissing the Claimant’s appeal was the real reason.[335]Therefore the allegation fails. V. FDM's allegation of misconduct: “[Bringing] the reputation of FDM Group Limited into disrepute”, communicated to me on 21st November 2022;[336]This was the third of the four allegations of misconduct which formed part of the second disciplinary process. In respect of this allegation, it is relevant that: 336.1. Shell were aware that the Claimant had been instructed not to have any further contact with them. 336.2. Self-evidently, the Claimant’s demonstration that he would not be bound by the Respondent’s instructions had (at the very least) the potential to lower Shell’s opinion of the Respondent, because it gave Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 the appearance that the Respondent was unable to control the behaviour of its employees.[337]For that reason, and for substantially same reasons as we have set out above in respect of the preceding allegation, this fails as a complaint of protected disclosure detriment. W.FDM found me guilty of misconduct for “[Bringing] the reputation of FDM Group Limited into disrepute” without a credible chain of causation;[338]This in substance the same as the mirror points in respect of the other allegations. And the suggestion that there was no credible chain of causation is, for the reasons we have explained above, not made out.[339]Once again, we are satisfied decision to find the allegation of misconduct substantiated was not in any way influenced by the Claimant’s protected disclosure. The reason Mr Horan gave in the outcome meeting and at the outcome letter for finding the allegation substantiated was the real reason. The reason Ms Plaxton gave in her outcome letter for dismissing the Claimant’s appeal was the real reason.[340]Therefore the allegation fails. X. FDM claimed my protected disclosure on 25th November 2022 is a disparaging comment and used that as justification for my dismissal;[341]We have found that the email of 25 November 2022 was not a protected disclosure. But in any event, this appears to be based on a misunderstanding of the comment made in the dismissal letter. The comment in the dismissal letter about disparaging comments was about comments made by the Claimant during the disciplinary hearing itself – not his email of 25 November 2022. So the allegation is not made out on the
facts.
[342]We have also found that the points that were made in the dismissal letter about the Claimant’s conduct during the hearing were not taken into account in the decision to dismiss him (although of course a claim about the Claimant’s dismissal cannot be brought as a detriment claim).[343]In any event, the Claimant repeatedly and stridently refused to accept during the disciplinary hearing that the instructions he had been given were reasonable ones. Given the tone adopted by the Claimant, Mr Horan was entitled to characterise his comments as “disparaging”. And for the avoidance of doubt, we are satisfied that the sentence in the dismissal letter describing those comments as disparaging was not influenced by Claimant’s protected disclosure. It was influenced solely by the Claimant’s behaviour in the hearing, and his lack of insight into his own conduct. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[344]Therefore the allegation fails. Y. FDM failed to provide me with details of the allegation made against me when I was initially suspended;[345]We have already found as fact that it was reasonable of the Respondent not to confirm the precise detail of the allegation at the point of suspension. In any event, the Claimant was very well aware of the substance of the allegation against him. And the Claimant was not being told he would never know what was alleged. He was sent a copy of the notes of the meeting with Ms Masud before he was even required to attend and investigation meeting. In the circumstances, we do not consider that giving only a high-level summary of the allegation at the point of suspension could properly be characterised as a detriment.[346]In any event, we are satisfied that the reason the details were not communicated to the Claimant was because Ms Clatworthy was still liaising with Ms Masud regarding the scope of the allegations. It was not influenced by the Claimant’s protected disclosure.[347]Therefore the allegation fails. Z. FDM failed to investigate my grievance adequately or provide an outcome in a timely manner;[348]In respect of timeliness, we have found that there was an initial delay because Mr Enright left the Respondent’s employment. But even with that initial period when the grievance was not progressed, the timescale overall was not at all unreasonable, and could not be described as “not timely”. The Claimant raised his grievance on 24 October 2022. He received a written outcome, following investigation, on 2 December 2022. So we find that that part of the allegation is not made out on the facts.[349]We have already dealt with the adequacy of the investigation in Allegation J, above. For the reasons we have already set out, we have concluded that the adequacy of the investigation was not influenced by the Claimant’s protected disclosure.[350]Therefore the allegation fails. AA. FDM failed to investigate the sexual harassment allegation against me adequately or provide an outcome in a timely manner;[351]We have already dealt with this in substance in our conclusions on Allegation J above. Ms Masud’s allegation was withdrawn. The Claimant was Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 informed of that in a timely manner, and informed that no further formal action would be taken. In any event, for the reasons we have already set out, we have concluded that the steps taken by the Respondent in investigating the allegations against the Claimant were not influenced by his protected disclosure.[352]Therefore the allegation fails. BB. FDM denied my grievance appeal;[353]It is of course common ground that the Claimant’s grievance appeal was not taken forward. The purpose of a grievance is to attempt to resolve an issue within the employment relationship. In the Claimant’s case, there was no employment relationship. The Claimant had been told that if his dismissal appeal was upheld then his grievance appeal would be heard. In the circumstances, we do not consider that the refusal to hear the Claimant’s grievance appeal could properly be characterised as a detriment[354]In any event, we are satisfied that the decision not to progress his grievance appeal was not influenced by the Claimant’s protected disclosure. Rather, the sole reason why his grievance appeal was not progressed was because he was no longer an employee of the Respondent.[355]Therefore the allegation fails. CC. Geoffrey Millen told me “Your were dismissed on 24th November 2022”, implying the decision had already been made before 28th November 2022;[356]The Claimant accepted in evidence that this may have been a typographical error. We consider that that is by far the more likely explanation. We cannot see how a simple (and inconsequential) error in a letter can properly be categorised as a detriment.[357]In any event, we can also see nothing to suggest that the error was influenced in any way by the Claimant’s protected disclosure.[358]Therefore the allegation fails. DD. Geoffrey Millen repeatedly signed of emails with “Wish you all the best”, implying I had already been dismissed;[359]The emails where Mr Millen referred to wishing the Claimant all the best or wishing him well for the future were all sent after the Claimant’s dismissal. In the emails Mr Millen sent to the Claimant pre-dismissal, he did not say anything of the sort. Of course, the Claimant’s dismissal appeal was pending; but during that period the Claimant had already been dismissed Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 subject to the outcome of his appeal. And Mr Millen did acknowledge that Claimant had a pending appeal, because he explained that he grievance appeal would be taken forward if the Claimant was reinstated on appeal.[360]It follows that the allegation is not made out on the facts. And in any event: 360.1. We are satisfied that Mr Millen’s salutations did not suggest any prejudgment on the part of Ms Plaxton (as Mr Millen had nothing to do with the disciplinary appeal). 360.2. We can see nothing at all to suggest that Mr Millen’s salutations were in any way influenced by the Claimant’s protected disclosure.[361]Therefore the allegation fails. EE. All FDM employees repeatedly attached the Bullying and Harassment Policy in emails to me, implying I was guilty of bullying and sexual harassment;[362]We were only taken in evidence to one piece of correspondence to which the Bullying and Harassment policy was attached. That was Ms Onbashi’s letter of 1 November 2022 [S741]. It was mentioned in another letter from Ms Onbashi of the same date. The Claimant’s evidence was that it was also attached to at least one other piece of correspondence, although we were not taken to it.[363]For the reasons we have already explained, we have concluded that, on his own admitted conduct, the Claimant had arguably harassed Ms Masud. So we consider that, firstly, the allegation is simply not made out on the facts because he was not “repeatedly” sent the policy by “all FDM employees”. But in any event, it was not the sending the policy to the Claimant that implied that he had breached it – it was his own admitted conduct.[364]In any event, and for the avoidance of doubt, we are satisfied that sending the Claimant the policy was not influenced by his protected disclosure. It was influenced solely by his own behaviour.[365]Therefore the allegation fails. FF. The manner (as opposed to the fact of) my dismissal, communicated to me on 28th November 2022, and in particular: i. The failure to consider new evidence from Naima Masud on 25th November 2022; ii. The lack of opportunity provided to appeal the outcome of my grievance;[366]Dismissal is not capable of being a detriment. In substance, this is a complaint about the dismissal itself. Describing the complaint as being about Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 the “manner” rather than the “fact” does not change that. So it cannot be brought as a detriment complaint. In any event, we have already dealt substantively with the point about the grievance appeal. We have also dealt already with the approach taken to evidence during the grievance. This allegations adds nothing new; insofar as it is about anything other than the dismissal, it fails for the same reasons as already explained. GG. The manner of my disciplinary appeal hearing and the outcome communicated to me on 16th December 2022, and in particular: The failure to consider new evidence from Naima Masud on 25th November 2022;[367]It was not clear exactly what the Claimant meant by this. If it was a reference to Ms Masud stating in the grievance meeting that she was not accusing the Claimant of sexual harassment, that was not new evidence – that had been her consistent position throughout. So there was nothing “new” to consider.[368]If the point the Claimant is trying to make is that Naima Masud’s comment should have been taken into account as mitigation, we have accepted Ms Plaxton’s evidence that she did not consider the background was relevant to the Claimant’s failure to instructions. That is, she still expected the Claimant to have followed the instructions he was given notwithstanding the context, and she put considerable weight on his lack of insight or contrition. We accept her evidence in that regard.[369]So insofar as there is any detriment in this allegation, we are entirely satisfied that it was not influenced by the Claimant’s protected disclosure.[370]Therefore the allegation fails. HH. In the absence of any founded allegations of gross misconduct, the failure to pay me for my contractual notice period;[371]The allegations of misconduct and gross misconduct were considered to be well founded by Mr Horan (and upheld by Ms Plaxton). What is more, although this is not a wrongful dismissal claim, for the reasons we have already explained we consider that the their decision that the Claimant had committed gross misconduct was self-evidently correct. It follows then that this allegation is not made out on the facts.[372]For the avoidance of doubt, we are satisfied also that the decision not to pay the Claimant his notice pay was not influenced by his protected disclosure. It was solely due to the fact that he had, in the eyes of the Respondent, committed gross misconduct.[373]Therefore the allegation fails. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 II. FDM Failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.[374]Insofar as this related to the disciplinary process, we find that the Respondent complied with the ACAS Code of Practice, for the following reasons: 374.1. There is no requirement in the ACAS Code of Practice to interview the employee during the investigation 374.2. Nor is there any requirement to produce a formal report. 374.3. The Claimant was provided with copies of the evidence gathered, invited to a meeting in writing, given the right to be accompanied, given the opportunity at the disciplinary hearing to state his case, and given the outcome in writing. He was given the opportunity to appeal to an independent manager, given the right to be accompanied at the appeal meeting, given the opportunity to advance and explain his appeal points at the appeal hearing, and given the outcome of the appeal in writing.[375]In respect of the grievance, while we have criticised the depth of the investigation carried out by Ms Laffont, we find again that Respondent complied with the ACAS Code of Practice, for the following reasons: 375.1. The Claimant was invited to a grievance meeting at which his grievance was discussed. He was given the opportunity to be accompanied to that meeting. 375.2. His grievance was then investigated. 375.3. He was given the outcome of his grievance in writing, and offered the right to appeal. 375.4. While he was not ultimately allowed to progress his appeal, that is because his employment had been terminated in the meantime. 375.5. As we have already found, the delay in dealing with the grievance was not unreasonable overall.[376]So the allegation is not made out on the facts, and fails. 118 C. Emily Caning did not respond to my phone calls and/or emails[377]We have already dealt with this allegation. It fails, for the reasons already articulated. 118 G. FDM placed me under investigation for sexual harassment[378]We have dealt with the substance of this allegation already. It fails, for the reasons already articulated. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 118 H. FDM fabricated an allegation of sexual harassment against me[379]The allegation was not fabricated. Indeed, the Claimant admitted to a substantial part of what was alleged. The conduct alleged by Ms Masud was arguably sexual harassment. So the allegation is not made out on the facts, and fails. 118 I. FDM failed to apologise for investigating me for sexual harassment[380]An allegation was made. The Claimant admitted to a significant part of the substance of the allegation. The complainant then asked for the allegation not to be pursued. The Respondent stopped the investigation. In the circumstances, the Respondent had nothing to apologise for. It cannot be a detriment not to apologise for something which does not require an apology.[381]And in any event, for the avoidance of doubt, we do not consider that the lack of apology was in any way influenced by the Claimant’s protected disclosure.[382]Therefore the allegation fails. 118J. FDM failed to inform Shall that Naima Masud said “I never accused him of sexual harassment”[383]We understand this to be a reference to Ms Masud saying the same thing to Miss Laffont during the grievance investigation. There was no reason for the Respondent to communicate that to Shell. The Claimant’s relationship with Shell via the Respondent was over. So we do not consider that this can properly be characterised as a detriment to the Claimant. And in any event, that had already been communicated to Shell by Ms Masud herself.[384]For the avoidance of doubt, we conclude that not passing Ms Masud’s comment on to Shell was in no way influenced by the Claimant’s protected disclosure.[385]Therefore the allegation fails. 118 K. FDM continue to maintain I sexually harassed Naima Masud and/or continue to fail to acknowledge that Naima Masud said “I never accused him of sexual harassment”[386]The label of sexual harassment was, as we have already explained, not inappropriate in the circumstances. No one had accused Claimant of sexually assaulting Ms Masud. It may be that he was confused about the distinction. But we cannot see any detriment in the actions of the Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Respondent in this regard. And in any event, it is not clear what he meant by the Respondent “continued to maintain” that he sexually harassed Ms Masud in the context.[387]For those reasons, we cannot see any detriment to the Claimant here. And for the avoidance of doubt, the way that the Respondent dealt with the allegation was not influenced by the Claimant’s protected disclosure. Therefore the allegation fails.[388]It follows then that, with the exception of Allegation A, all of the allegations of protected disclosure detriment fail. D. Direct sex discrimination (s.13 EQA)[389]We deal next with the allegations of direct sex discrimination. The Claimant relied on either Ms Masud or a hypothetical comparator. It was apparent from the way that some allegations were formulated that they could only rely on a hypothetical comparator rather than Ms Masud. 136. Naima Masud said, as the reason for reporting me to HR: “My main concern is the comments about being ‘conservative’ as I don’t want him to make comments like these to other women”.[390]The background to this is that Ms Masud was, as we have found, a reluctant complainant. In reality, the reason she reported the matter to HR was because the Claimant suggested that they raise the matter formally, and Ms Masud sought a sense-check from Ms Fox, who was the one who persuaded her to report the allegation formally. So we do not consider that the allegation as formulated is made out on the facts.[391]The high point of the Claimant’s case regarding this allegations appeared to be that Ms Masud would not have said something similar to a woman who had said to her what she was complaining about the Claimant saying to her. We can see nothing in what Ms Masud said which supports that contention. She used the pronoun “him” because the Claimant, who had made the comments about which she complained, was a man. She referred to not wanting the Claimant to make comments like those to other women. But there is nothing that we can read into that which suggests that she would not have acted in the same way if the same comments had been made towards her by a woman.[392]We therefore find that a hypothetical female comparator who had made the same comments to Ms Masud as the claimant was alleged to have made would not have been treated any differently. The allegation fails. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 A. FDM allowed Naima Masud to talk to Shell and FDM employees whilst I was suspended during the investigation into her grievance against me;[393]Insofar as the Claimant compared himself to Ms Masud, she is clearly not an apt comparator. She was not the subject of disciplinary allegations. She was still at work. They were not in materially the same circumstances.[394]In respect of a hypothetical female comparator who was alleged to have committed misconduct as the Claimant, there is simply nothing to suggest that they would not have been given the same instructions. For the reasons we have already explained, we consider that it is overwhelmingly likely that such a comparator would have been subjected to the same restrictions as the Claimant.[395]So the allegation fails. B. Naima Masud said: “I happened to be friends with the person who off boarded him, she said he’s still talking about it, do you want me to say something to him”, implying a threat against me for talking about the fabricated sexual harassment allegation, instead of offering counselling;[396]The Claimant explained in evidence that he compared himself to Ms Masud, in that on his evidence: 396.1. An unnamed person, impliedly in HR, who was a friend of Ms Masud, offered to speak to the Claimant about the fact that he was still discussing the allegations she had made against him (despite having been told not to do so); but 396.2. When he wanted to speak or to make contact with Ms Masud (which we understand to be a reference to the letter before action he asked the Respondent to forward to Ms Masud, or to mediation, which Ms Masud refused), that was not facilitated.[397]Insofar as the Claimant compared himself to Ms Masud, once again the comparison is not apt because: 397.1. She was the complainant, whereas he was the subject of the allegations. 397.2. He was, by time he was offboarded, no longer working for Shell. 397.3. He had breached a direct instruction not to discuss the matter on numerous occasions, whereas there was no evidence before us that Ms Masud had done so. 397.4. Insofar as he relies on the Letter Before Action, forwarding a Letter Before Action threating civil proceedings to an employee is fundamentally different from an HR employee remining another employee to comply with a direct and reasonable instruction they have already been given Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[398]Each of those is a material difference in their circumstances.[399]In respect of a hypothetical female comparator in the same position as the Claimant was, we cannot see anything to suggest that Ms Masud’s unnamed “friend” would have behaved differently.[400]So the allegation fails. C. Salwa Chowdhury said to me “Thanks for letting me know” after I told her I couldn’t eat or sleep well, dismissing my health concern;[401]Although we did not hear evidence from Ms Chowdhury, it was abundantly clear to us from the context that what she was saying “thanks for letting me know” to was the Claimant’s update that he would provide his CV, which she was waiting for, at the end of the week.[402]In any event, and for the avoidance of doubt, there was absolutely nothing before us to suggest that Ms Chowdhury would have reacted any differently to a beached female consultant, who was supposed to have provided an updated CV but who had not yet done so, and who had sent the same email as the Claimant did.[403]So the allegation fails. D. FDM continued to treat me as if I was guilty of sexual harassment even after Naima Masud said she didn’t accuse me of sexual harassment;[404]We do not consider that the Respondent treated the Claimant as if he was guilty of sexual harassment. He was not taken through the disciplinary process, and no formal sanction was applied. Insofar as this is reference to sending him the Bullying and Harassment policy, we consider that that was sent in reaction to his own admitted behaviour, and his apparent inability to follow clear instructions regarding his conduct. It was nothing to do with his sex.[405]And for the avoidance of doubt, there is absolutely nothing before us to suggest that Ms Onbashi would have reacted any differently to a female employee who behaved in the way that the Claimant did.[406]So the allegation fails E. Deborah Onbashi said “We wish to highlight that we expect you to comply with our Bullying and Harassment policy”, implying I was guilty of bullying and harassment;[407]Ms Onbashi did say that to the Claimant. We have already explained our conclusions regarding why she did so. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[408]Once again, there is absolutely nothing before us to suggest that Ms Onbashi would have reacted any differently to a female employee who behaved in the way that the Claimant did.[409]So the allegation fails. F. FDM forced me to do DE&I training, imposing a period of monitoring on me saying “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”;[410]While the Claimant was instructed that he would have to do DE&I training, the training never actually happened. And in respect of the suggestion that he was subjected to a period of monitoring, it was nothing of the sort. It was simply a clear statement to him that if he failed to comply with the instructions he had been given, he may be subjected to disciplinary action. Given that he had, by that point, already demonstrated a marked unwillingness to comply with his employer’s instructions, that was a fair and reasonable reminder to give him.[411]In any event, for the avoidance of doubt, there is again nothing before us to suggest that a female employee who had behaved as the Claimant had would have been treated any differently.[412]So the allegation fails. G. All FDM employees repeatedly attached the Bullying and Harassment policy in emails to me;[413]We have already expressed our conclusions on this allegation factually. It could not be said that all employees repeatedly attached the Bullying and Harassment policy to emails. And for substantially the same reasons as we have already explained, insofar as the policy was sent to the Claimant, we are satisfied that it was nothing to do with the Claimant’s sex. It was in response to his own behaviour.[414]So the allegation fails. H. FDM treated the alleged complaint made by Naima Masud against me as a an allegation so serious that I had to be suspended with immediate effect;[415]The allegation that had been made against the Claimant was, in substance, an allegation of harassment. For the reasons we have already explained, given the nature of the allegation, suspension was an entirely proper and reasonable approach. That is the starting point for our consideration of this allegation. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[416]Bearing that in mind, we can see absolutely nothing to suggest that a female employee who had committed the same alleged misconduct would not have been suspended.[417]The allegation fails. I. FDM ignored clear inconsistencies in Naima Masud’s statements even after I pointed them out;[418]We have dealt with the substance of this allegation. Naima Maud’s statements were broadly consistent. In fact, we consider that they were more consistent than those of the Claimant who, for example, changed his position entirely regarding whether he had ever made physical conduct with Ms Masud on the night in question. So we do not think that it could be said that the Respondent ignored “clear inconsistencies”.[419]For the avoidance of doubt, Ms Masud was not an apt comparator for Claimant, because for the reasons we have already explained they were in materially different circumstances. And we can see nothing to suggest that a female employee who had been subject to the same complaint as the Claimant would have been treated any differently.[420]So the allegation fails. J. Deborah Onbashi subjected me to a written warning further to the complaint made against me;[421]The claimant explained in evidence that this was a reference to Ms Onbashi’s letter of 1 November 2022. That was, as the Claimant accepted in cross examination, not a written warning in the sense meant within the disciplinary policy. The Claimant’s case was that it was a letter, in writing, in which he was given a warning about his future conduct.[422]Of course, as we have found, the letter was not further to the complaint made about him by Ms Masud. It was further to his own admitted behaviour, and his failure to comply with the instruction he had been given regarding confidentiality. So the allegation as formulated is not made out.[423]In any event, we can once again see nothing to suggest that a female employee, who had behaved as the Claimant had, would not have been sent a letter in substantially the same terms.[424]So the allegation fails. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 K. FDM failed to offer reasonable explanations for my suspension and the restrictions imposed;[425]While this allegation is expressed as a criticism of the explanations given, in substance it is a complaint about the suspension and the restrictions. We have dealt with the reasonableness of the suspension and the restrictions already. And we consider that the explanation the Claimant was given for his suspension was reasonable, as was the explanation for the restrictions placed on him. At the heart of this was the fact that the reason the Claimant considered the explanations not to be reasonable was because he considered the underlying decision itself to be unreasonable. As we have already explained, we disagree.[426]In any event, for the substantially the same reasons we have already set out, we can see nothing to suggest that a female employee in the same position as the Claimant would have been treated any differently, or would have been given any different explanation.[427]So the allegation fails. L. FDM refused to accept or extend time for my grievance appeal;[428]We have dealt with the factual basis of this allegation already. We can see nothing at all to suggest that a female employee, who had been dismissed and who had then attempted to appeal an ongoing grievance, would have had their grievance appeal heard while their dismissal remained in effect.[429]So the allegation fails. M. Charley Smithers said, in response to my grievance, “What you choose to claim in your own time is your own choice”, while support was offered to Naima Masud;[430]Importantly, the comment the Claimant relies on from Charley Smithers was not about his grievance - it was about his prospective civil claim. The Claimant had muddied the waters by attaching the Letter Before Action to his grievance, but they were conceptually entirely different processes. The grievance was within the employment relationship; the prospective civil claim was entirely outside it.[431]The important difference between the circumstances of the Claimant and Ms Masud is that Ms Masud had not threatened to sue the Claimant in the civil courts. She is therefore not an apt comparator.[432]To the extent that the Claimant relies on a hypothetical comparator there is once again nothing, in our judgment, to suggest that a hypothetical female employee who was threatening to sue a colleague for defamation Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 would have been told anything other than what Ms Smithers told the Claimant.[433]So it follows that the allegation fails. N. Fleur Laffont said: “Hopefully moving forward it will be much more pleasant visits to the FDM office”;[434]This is a reference to a comment made to Ms Masud during the grievance investigation meeting. The grievance investigation meeting took place at the FDM office, which was not Ms Masud’s normal place of work (her normal place of work was the Shell office). We do not consider that it is a detriment to the Claimant that Ms Masud was told that hopefully any future visits to the FDM office would be for more pleasant reasons.[435]The Claimant’s evidence was that the detriment was that the same comment was not made to him at the end of his grievance meeting. Both meetings were conducted by Ms Laffont, with HR support from Mr Millen. At the end of the Clamant’s grievance meeting Mr Millen said: “Thank you Jessie, it has been a pleasure to finally meet face to face.”[436]The notes of Ms Masud’s investigation meeting did not suggest that Mr Millen had said anything similar to her. If it was direct sex discrimination for Ms Laffont to make the comment she did to Ms Masud but not to the Claimant, it would follow logically that it would equally be direct sex discrimination (against Ms Masud) for Mr Millen to have made the comment he did to the Claimant, but not have said the same thing to Ms Masud. We consider that that simply cannot be right. Rather, what it demonstrates is that what might be described as “social niceties” were given at the end of each meeting, and those “social niceties” were context and meeting specific.[437]So for those reasons we consider that there was no detriment to the Claimant in Ms Laffont making the remark she did to Ms Masud, and the Claimant was not treated less favourably than Ms Masud in respect of the way that the meetings were concluded. Nor, for the avoidance of doubt, do we think that the Claimant was treated less favourably than a hypothetical comparator would have been in that regard.[438]It follows then that the claim fails. O. Fleur Laffont replied, “I agree” when Naima Masud said “He’s very obnoxious”;[439]We have, of course, found as fact that the comment was made. It was made in response to Ms Masud’s description of the way that the Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Claimant was said to have shared the outcome of the investigation with colleagues. We do not need to, and do not, make any finding about whether Ms Masud’s version of events in that regard was accurate. But we do consider that the behaviour Ms Masud was describing certainly merited the description she gave it. So Ms Laffont’s response was not, in the circumstances, wholly unsurprising.[440]Importantly, there was nothing before us to suggest that if Ms Masud had described a female employee as behaving in the way that she described the Claimant as doing, Ms Laffont would have reacted any differently.[441]So it follows that it cannot succeed as an allegation of direct sex discrimination. P. Naima Masud said: “this is all extremely childish” to which Fleur Laffont replied, influencing Naima Masud to adopt a particular point of view: “You say you think its childish, I don’t think it is from your point of view. Its completely inappropriate to make comments on someone’s appearance especially if its to do with faith and religion”;[442]The comment that the Claimant has quoted must be seen in context. By using the word “childish”, Ms Laffont was replying to, and disagreeing with, Ms Masud’s use of the same word. What Ms Laffont went on to say was that it was (in her view) completely inappropriate to make comments on someone’s appearance, especially if it their appearance was related to faith and religion. That proposition is self-evidently one which it was open to Ms Laffont to hold, and appropriate for her to express; even in the context of a grievance investigation meeting. And once again, bearing that in mind, there was nothing to suggest that Ms Laffont would have reacted any differently in respect of a female comparator who had been accused of what the Claimant was accused of, and where the complainant described the matter as “childish” (as Ms Masud did).[443]So it follows that it cannot succeed as an allegation of direct sex discrimination. Q. Fleur Laffont said: “I might speed things up and prevent him from making an appeal” and an allegation of misconduct was then upgraded to gross misconduct without explanation.[444]We have found as fact that this comment was not made. The remark we have found Ms Laffont made was a different (and, in our view, entirely innocuous) one. Furthermore, we have found that there was a clear and cogent explanation from the Respondent regarding the allegation of gross misconduct. And importantly, it flows from our earlier factual findings that there was no connection between the remark we have found that Ms Laffont did make, and the decision by Mr Horan to dismiss the Claimant for gross misconduct. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[445]The allegation is therefore not made out on the facts, and fails. R. Fleur Laffont said: “You confirmed you did make the comment that NM "dresses conservatively", both in the Grievance Hearing on 23 November 2022 and in the investigation meeting with DO on 7 October 2022. Regardless of your intention, this caused offence to NM. Your statement constitutes a personal comment on NM’s appearance, associated with her sex, religion, and belief. This goes against FDM’s Bullying and Harassment Policy”;[446]Ms Laffont said this within the grievance outcome. It was an accurate statement of what had occurred. The Claimant had raised a grievance. Ms Laffont had dealt with the point he raised. The Claimant disagreed with Ms Laffont’s conclusion. But for the reasons we have already explained, the conclusion was one which was open to her. And in any event, we can see nothing at all to suggest that a female employee who had raised a grievance in the same circumstances would have received a different
outcome.
[447]So the allegation fails. S. Charley Smithers said that my letter of claim is “extremely aggressive and harassing in nature” but does not think suspending me for a fabricated allegation of sexual harassment and taking steps to destroy my career is extremely aggressive and harassing in nature;[448]As the Claimant accepted in cross-examination, it was not Ms Smithers who made that remark – it was Mr Horan, as part of his disciplinary outcome.[449]For the reasons we have already explained, we agree with Mr Horan’s characterisation of the covering emails the Claimant sent with both iterations of his letter of claim. And importantly, we can see nothing to suggest that a female employee who had behaved in the way that the Claimant did would have been described any differently by Mr Horan.[450]The allegation fails. T. Charley Smithers lied that I was on another teams call during the disciplinary hearing and used this as justification for my dismissal;[451]We have dealt with this in our factual findings. We are satisfied that Ms Smithers did not lie. At most, on one of the two occasions during the disciplinary hearing when she referred to the Claimant’s status being that he was “on a call” she used the word “another” rather than “a”. The allegation that she lied is not made out on the facts. Nor is the suggestion that it formed part of the reason for the Claimant’s dismissal. The reason for the Claimant’s Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 dismissal, as we have already found, was the substantiated allegations of misconduct and gross misconduct against him.[452]It follows that the allegation is not made out on the facts, and fails. U. Lara Paxton said: “I’ve not explored what happened in that situation – as far as I know that was all closed. I’m not here to explore that”, wilfully ignoring new evidence - the fact that Naima said “I never accused him of sexual harassment”;[453]We have found as fact that Ms Plaxton did consider whether the background circumstances were relevant, but decided ultimately that the lack of any insight or contrition on the Claimant’s part for his conduct was the most significant factor in the decision she had to make. Insofar as the allegation is that hat was inappropriate or wrong or her part, we disagree.[454]The correct hypothetical comparator for this allegation would be a female employee who had behaved in the way that the Claimant had (by which we mean, the behaviour which was subject to the allegations ventilated in the disciplinary hearing), given the same background circumstances, and had then continued to demonstrate the Claimant’s lack of insight or contrition. There is once again simply nothing at all to suggest that such an employee would have been treated any differently than the Claimant was, or that that employee’s appeal against dismissal would have been upheld.[455]It follows that the allegation fails. V. ACAS says: “The opportunity to appeal against a disciplinary decision is essential to natural justice. Appeals may be raised by employees on any number of grounds, for instance new evidence, undue severity or inconsistency of the penalty”;[456]This does not appear to be an allegation on its own right; we cannot see what less favourable treatment is being alleged here. But in any event, our finding on the previous allegation deals with it. Insofar as this is a separate allegation, it fails for the same reasons. W. Lindsay Lowrie upheld the decision to dismiss me, ignoring the fact that Naima said “I never accused him of sexual harassment” and that the reason I was facing a disciplinary panel was as a direct consequence of that fabricated allegation.[457]Firstly, Lindsay Lowrie did not uphold the decision to dismiss the Claimant – that was Ms Plaxton. But as we have already explained, the reason the Claimant was facing a disciplinary process was not a “direct consequence of a fabricated allegation”. Rather, it was a direct consequence Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 of his own repeated failure to follow direct and reasonable instructions from his employer, and his conduct in sending the letter before action from his FDM email address, during working hours. And Ms Plaxton did not ignore the background – she considered it, but decided that it did not lead her to uphold the Claimant’s appeal. So as it is formulated, the allegation is not made out on the facts.[458]In any event, as we have already said, we can see nothing to suggest that a comparable female employee who had acted as the Claimant did would have been treated any differently at the appeal stage. 147A. FDM accused me of sexual harassment;[459]Ms Onbashi did, in her letter of 5 October 2022 inviting the Claimant to an investigation meeting, describe the allegation as being “alleged sexual harassment”. We have found that, even on the Claimant’s own description of his conduct, it arguably merited that label. And of course that was the frame of reference that Shell had provided to the Respondent for the investigation.[460]The comparator would be a female employee who was alleged to have had acted as the Claimant was alleged to have acted, and where the Respondent’s client had asked the Respondent to investigate an allegation of what it described as “sexual harassment”. We cannot see anything to suggest that that comparator would have been treated any differently.[461]It follows that the allegation fails. 147 B. FDM investigated me for sexual harassment;[462]This is in substance the same as the previous allegation. We reach the same conclusion, for the same reasons. 147 D. FDM did not acknowledge my grievance against Naima Masud until 3 weeks after I had formally raised it;[463]We have found that Mr Enright did promptly acknowledge receipt of the Claimant’s grievance. So the allegation is not made out on the facts, and fails.[464]In any event, and for the avoidance of doubt, to the extent that there was a later delay, we are satisfied that that was caused by Mr Enright’s departure from the Respondent. We can see nothing at all to suggest that a female employee who had raised an identical grievance at the same time would have had their grievance investigated more quickly than the Clamant’s grievance was. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 147 E. FDM did not suspend Naima Masud when I raised a grievance against her;[465]In respect of the Claimant’s suspension, Ms Masud is not an apt comparator for the Claimant, because: 465.1. At the time that the Claimant raised his grievance, he was no longer working in the same place as Ms Masud, so the risks of interference with the investigation, or of difficulties between them, were no longer present. 465.2. More importantly, Ms Masud was not alleged to have sexually harassed the Claimant. Even taken at its highest, the Claimant’s allegations against Ms Masud were very different in nature and character.[466]We have already dealt in substance with the Claimant’s suspension through the lens of a hypothetical comparator. We do not repeat that reasoning here.[467]Insofar as the failure to suspend Ms Masud is said to be a detriment to the Claimant, we cannot see what the detriment would be. The Claimant was no longer working at Shell when he raised his grievance, so he would not have to interact with Ms Masud.[468]So the allegation fails. 147 F. The outcome of Naima Masud’s grievance against me was me being required or recommended to attend DE&I training and removed from Shell whereas the ultimate outcome of my grievance against Naima Masud was no disciplinary sanction at all;[469]Once again, Ms Masud is not an apt comparator, because: 469.1. Ms Masud did not raise a grievance against the Claimant. 469.2. More importantly, Ms Masud had not admitted to conduct which could reasonably be considered to be harassment, in breach of the Respondent’s Bullying and Harassment policy[470]And of course, as we have already found, the Claimant was not given any disciplinary sanction as a result of the allegations raised by Ms Masud. He was require to attend DE&I training because of the way he had behaved – both in respect of the parts of the underlying allegation that he had admitted to, and the way he had conducted himself during the investigation. His removal from Shell was at the direction of Shell, the Respondent’s client.[471]The correct hypothetical comparator would be a female employee who had behaved towards a colleague as the Claimant had admitted to having behaved towards Ms Masud, and who the Respondent’s client had indicated that they did not want to return to their placement. We can see Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 nothing to suggest such a comparator would have been treated any differently.[472]So the allegation fails. 147 G. The ultimate outcome, as a direct consequence of Naima Masud’s grievance against me, was me being dismissed whereas the ultimate outcome of my grievance against Naima Masud was no disciplinary sanction at all;[473]This allegation is simply not made out on the facts. The Claimant was not dismissed as a direct consequence of the allegation made by Ms Masud. He was dismissed because he repeatedly failed to follow reasonable management instructions, and because he sent a letter before action to Ms Masud from his FDM email account, during working hours.[474]Ms Masud is not an apt comparator. There was no suggestion that she had repeatedly failed to follow reasonable management inspections, as the Claimant had. Not was there any suggestion that she had sent a letter before action to a colleague from her FDM email address during working hours.[475]Nor was there anything to suggest that a comparable female employee, who disregarded the Respondent’s instructions in the way that the Claimant had and used their FDM email address to send a letter before action to a colleague during working hours, would have been treated any differently to the Claimant.[476]So the allegation fails. 147 I. FDM failed to offer me support;[477]The Claimant explained in evidence that he compared himself in this regard to Ms Masud, and specifically to the support offered to Ms Masud after he had sent her the Letter Before Action. After he did so, Ms Masud was sign-posted to the Respondent’s Employee Assistance helpline, and also offered support from Ms Onbashi and others.[478]We do not consider that Ms Masud is an apt compactor. She had been sent an aggressively worded Letter Before Action, from another employees’ FDM email account, during the working day, which gave her a wholly unreasonable response deadline (and threatened consequences if she did not comply with it). The Claimant had not been sent such an email. They were in materially different circumstances.[479]So it follows that this allegation fails. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 147 Q. FDM ignored clear inconsistencies in Naima Masud’s statements even after she admitted them;[480]Ms Masud did not admit to “clear inconsistencies” in her statements. We have found that her statements were broadly consistent. In any event, this allegation is, in substance, a repeat of allegation I. We have already dealt with it. It fails, for the same reason.[481]It follows then that all of the allegations of direct sex discrimination fail. The complaint of direct sex discrimination is dismissed. Harassment related to sex (s.26 EQA)[482]We turn next to the complaint of harassment related to sex. Once again, we take the allegations on the list of issues in order. A. Suspended me;[483]We have no difficulty in concluding that suspension is unwanted conduct. We accept also that it had the prescribed effect on the Claimant, and also that it was objectively reasonable for it to have that effect. HR policies and suspension letters routinely say that suspension is a neutral act – and in terms of the question of whether it has prejudged the outcome of a disciplinary investigation that is (usually) right. But it nonetheless carries the inevitable and to a degree unavoidable suggestion that there is “no smoke without fire”.[484]What we cannot see, however, is any connection to the Claimant’s sex. He was suspended while an allegation of misconduct against him was being investigated. We have already explained why we do not think that was because of his sex. For substantially the same reasons, we can see nothing to suggest that the decision to suspend the Claimant was related to his sex.[485]So the allegation fails. B. Accused me of sexual harassment;[486]Once again, we consider that this was self-evidently unwanted conduct. And for similar reasons as for the previous allegation, we accept that it had the proscribed effect. An allegation of sexual harassment carries a particularly heavy burden.[487]Once again, however, there was no connection to the Claimant’s sex. The label “sexual harassment” was applied not because he was a man, but Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 because of the factual allegations made against him, and because that was the label applied by Shell. It was unrelated to the Claimant’s sex.[488]So the allegation fails. C. Forced me to do DE&I training;[489]This is not made out on the facts, in that the Claimant was never actually required to undertake DE&I training. For completeness, and for the reasons we have already explained, the instruction the Claimant was given (which was never followed through) was entirely unrelated to his sex. It was because of his (admitted) conduct. We see no causal link to his sex.[490]So the allegation fails. D. Repeatedly attached Bullying and Harassment policy in emails to me;[491]For the reasons we have already explained, the allegation as formulated is not made out on the facts.[492]In any event, as we have already explained, when the policy was sent to the Claimant it was because of his own conduct. We see no causal link to his sex.[493]So the allegation fails. E. Imposed a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”;[494]For the reasons we have already explained, this was not a period of monitoring. The Claimant was given an instruction. In light of his previous failure to follow instructions, he was (entirely reasonably) reminded about the potential consequences of not complying. So the allegation is not made out on the facts.[495]In any event, the reminder the Claimant was given was, once again, because of his own conduct. We see no causal link to his sex.[496]So the allegation fails. F. Fleur Laffont said: “I might speed things up and prevent him from making an appeal”;[497]We have found as fact that this did not happen. So the allegation fails. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 G. Dismissed me[498]It is common ground that the Claimant was dismissed. Being dismissed is self-evidently unwanted conduct. We have no difficulty, once again, in concluding that it had the prescribed effect.[499]But there was, again, simply no connection to the Claimant’s sex. He was dismissed for his conduct, in failing to follow instructions and sending the letter before action in the way that he did. That was unrelated to his sex.[500]So the allegation fails. Each of the allegations of direct sex discrimination[501]We have dealt with each of those allegations through the prism of direct sex discrimination. Some, we have found, were simply not made out on the facts. Some overlap with, or duplicate, the other allegations of harassment related to sex.[502]In respect of the allegations of direct discrimination which we have found occurred, factually, we have also considered whether any of them were related to his sex. We are mindful of proportionality in what is already an extremely long judgment. We therefore do not exhaustively set out again our reasoning in respect of each of those allegations here. We conclude, for substantially the same reasons to those we have already expressed, that none of the allegations were related to the Claimant’s sex. There was simply no causal link.[503]So those allegations fail as allegations of harassment related to sex. 149 G. Fleur Laffont replied, “I agree” when Naima Masud said “He’s very obnoxious”;[504]We have found, broadly, that this happened in the grievance investigation meeting with Ms Masud. The Claimant was not in that meeting. We are prepared to accept, however, that reading that comment in the minutes had the proscribed effect upon him when he received those minutes. We are also prepared to accept that it was objectively reasonable for it to have that effect. And having ones conduct described as “obnoxious” by a manager is self-evidently unwanted (even where the descriptor is objectively justified).[505]Once again, however, we can see no causal link at all to the Claimant’s sex. The comment was about the Claimant’s behaviour, as described by Ms Masud. It was entirely distinct from his sex. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[506]So the allegation fails. F. Direct belief discrimination (s.13 EQA)[507]We turn next to the complaint of direct belief discrimination.[508]We have already found that the Claimant did not have a protected philosophical belief. The Claimant’s case was put, in the alternative, on the basis of his lack of religious belief (in Islam). So we consider each of the allegations through that lens. We also consider, in the alternative, what conclusion we would have reached on each of the allegations if we had concluded that the Claimant had had a protected philosophical belief at the relevant times. A. Suspended me;[509]We consider that a Muslim employee who was subject to the same allegations as the Claimant would also have been suspended. We can see nothing to suggest otherwise.[510]And in respect of the Claimant’s alleged philosophical belief in modesty, we also consider that someone without such a belief who made the same comment would have been treated in the same way. Again, we can see nothing at all to suggest otherwise.[511]So the allegation fails. B. Accused me of sexual harassment;[512]For similar reasons to those we have expressed previously, there is nothing at all to suggest that a Muslim employee in the same situation as the Claimant would not also have had the label “sexual harassment” applied to the allegations, in the way that it was for the Claimant.[513]The same applies in respect of a hypothetical comparator who did not have a philosophical belief in modesty.[514]So the allegation fails. C. Forced me to do DE&I training;[515]As we have already explained, this did not happen, in that the Claimant never actually undertook DE&I training. In respect of the instruction to undertake training (which was not followed through), for the same reasons we have already explained, there was nothing to suggest that a Muslim Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 employee in the same situation would have been treated any differently; nor someone who did not have a philosophical belief in modesty.[516]So the allegation fails. D. Repeatedly attached Bullying and Harassment policy in emails to me;[517]Once again, it could not be said that the Respondent repeatedly attached the Bullying and Harassment policy in emails to the Claimant. And when the policy was emailed to the Claimant, there is absolutely nothing to suggest that a Muslim employee in the same situation would have been treated any differently; nor someone who did not have a hypothetical belief in modesty.[518]So the allegation fails. E. Imposed a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”;[519]As we have already explained, this could not be fairly characterised as “period of monitoring”. And in any event, there is absolutely nothing to suggest that a Muslim employee in the same situation would have been treated any differently; nor someone who did not have a hypothetical belief in modesty.[520]So the allegation fails. F. Dismissed me.[521]Of course, the Claimant was dismissed, for failing to following management instructions and for sending the Letter Before Action from his FDM email address. Once again, there was simply nothing at all to suggest to us that a hypothetical Muslim employee who had committed the same misconduct as the Claimant would not have been dismissed. The same is true of a hypothetical employee without a belief in modesty.[522]So the allegation fails. 160 G. Fleur Laffont said: “I might speed things up and prevent him from making an appeal”;[523]We have already found as fact that this did not happen. So the allegation fails. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 160 H. Fleur Laffont replied, “I agree” when Naima Masud said “He’s very obnoxious”;[524]Again, to the extent that we have found that this happened, there was nothing at all to suggest to us that the same remark would not have been made about either a hypothetical Muslim employee or a hypothetical employee without a protected belief in the same circumstances.[525]So the allegation fails. G. Belief related harassment s26 EQA[526]Once again, we take the factual allegations in the order they appear in the list of issues. A. Suspended me;[527]For the reasons we have already explained, we have concluded that the Claimant’s suspension was unwanted, and that his suspension subjectively and objectively had the prescribed effect. We turn to consider the causal question.[528]In respect of the Claimant’s (lack of) belief in Islam, we simply cannot see any connection here to the fact that the Claimant is not a Muslim. So the allegation fails.[529]In respect of the claimed philosophical belief: 529.1. The Claimant was suspended following allegations about his conduct made by Naima Masud. The principal allegation, as she expressed it, related to his comments about her being “conservative” in the way she dressed (and contrasting her with other female colleagues). 529.2. Had we found that the Claimant held the philosophical belief he claimed to hold at the relevant time, we would have concluded that in describing Ms Masud as “conservative”, he was manifesting that belief. 529.3. For the reasons we have already expressed, we consider that that manifestation, in referring to Ms Masud’s mode of dress as “conservative” and contrasting her with other women, was objectively inappropriate. 529.4. The suspension was therefore in response to the Claimant’s manifestation of his belief. 529.5. The Respondent was permitted, by its contract of employment with the Claimant, to suspend him – it was not suggested to us that suspending him was a breach of his contract. 529.6. The Claimant’s (at that stage alleged) behaviour traduced Ms Masud’s right to freedom of expression as well as her freedom of Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 belief, and was on discriminatory on the basis of her sex. In operating its disciplinary policy in response to the Claimant’s behaviour, the Respondent was seeking to protect the rights of Ms Masud, and by extension, its other employees. That is because allowing such (alleged) behaviour to go unremarked would have risked fostering a culture where such behaviour was tolerated. We consider that the (relatively short-term) suspension of the Claimant was necessary as part of the disciplinary process, to ensure that the allegations could be investigated without interruption and to protect both the Claimant and Ms Masud while that investigation was ongoing. It follows that the suspension was a necessary (and proportionate) step in protecting the rights, freedoms and reputation of others.[530]Applying Higgs, we would therefore have concluded in any event that the suspension was not related to the Claimant’s belief. So even if we had found that the Claimant had a protected belief, the allegation would have failed on that basis. B. Accused me of sexual harassment;[531]For the same reasons we have already explained in respect of our conclusion on suspension, this was not related to either the Claimant’s lack of belief in Islam, or his (alleged) belief in modesty. They were two sides of the same coin. So the allegation fails. C. Forced me to do DE&I training;[532]Of course, this did not happen. And in any event, in respect of the instruction which was not followed through: 532.1. We can see no causal link to the fact that Claimant was not a Muslim. 532.2. In respect of the (claimed) philosophical belief, we repeat the first parts of our reasoning regarding suspension. In respect of the final part, the question of justification, in our judgment requiring the Claimant to undertake DE&I training was a necessary and proportionate response to his (admitted) conduct, so as to reduce or mitigate the risk that in future he would behave in a way that would traduce the rights, freedom and reputation of others. So it follows that again, we would have concluded that this was not related to the claimed belief.[533]In light of that, we do not need to consider whether it was objectively capable of having the proscribed effect, or whether it did subjectively have that effect. The allegation fails. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 D. Repeatedly attached Bullying and Harassment policy in emails to me;[534]We have already explained our conclusion that the allegation, as formulated, is not made out on the facts. To the extent that the policy was sent to the Claimant: 534.1. We can see no causal link to the fact that the Claimant was not a Muslim. 534.2. Regarding the claimed philosophical belief, for the reasons explained in respect of the preceding allegation, this was not related to the claimed belief.[535]In light of that, we do not need to consider whether it was objectively capable of having the proscribed effect, or whether it did subjectively have that effect. The allegation fails. E. Imposed a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”;[536]Once again, what the Respondent did could not be fairly characterised as “period of monitoring”. And in any event, 536.1. We can see no causal link to the fact that the Claimant was not a Muslim. 536.2. Regarding the claimed philosophical belief, for the reasons explained in respect of the preceding allegation, this was not related to the claimed belief.[537]So once again, the allegation fails. F. Dismissed me.[538]Of course, it is common ground that this did happen. But the Claimant was dismissed for failing to follow instructions, and for sending the Letter Before Action from his FDM email address. His dismissal was entirely unrelated to the fact he is not a Muslim. And he was not dismissed for manifesting a belief in modesty. The Claimant’s case was that there was a causal link because, essentially, he would not have been in a position to have ignored instructions if he had not been subjected to Ms Masud’s allegation.[539]For the reasons we have already explained at some length, we are entirely unpersuaded by that reasoning. The Claimant chose to behave in a way that was contrary to the direct instructions of his employer, and contrary to the reasonable expectations they held of him. Those choices were his and his alone; and his dismissal was a consequence of those choices and nothing else. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[540]So the allegation fails. 161 C. Investigated me for sexual harassment;[541]This adds nothing in substance to allegation B above. For the same reasons, it fails. 161 G. Fleur Laffont said: “I might speed things up and prevent him from making an appeal”;[542]This did not happen. The allegation fails. 161 H. Fleur Laffont replied, “I agree” when Naima Masud said “He’s very obnoxious”;[543]To the extent that we have found that this happened: 543.1. We can see no link at all to the fact that the Claimant was not Muslim. 543.2. In respect of the claimed belief, Ms Laffont’s comment was not made in response to the Claimant manifesting his belief in modesty. Rather, this was about his behaviour in inappropriately informing a group chat that he had been “cleared”. So we conclude that there was no link to his claimed philosophical belief.[544]Therefore the allegation fails. H. Direct race discrimination (s13 EQA)[545]We take the factual allegations in order.a. A. Fleur Laffont said: “Its completely inappropriate to make comments on someone’s appearance especially if its to do with faith and religion”;b. B. Applying this reasoning horizontally, the same should hold true equally for all the other protected characteristics but no one ever said: “Its completely inappropriate to make comments on someone’s [private body part] especially if its to do with [race]”;c. C. FDM never condemned Steven Thavendran’s “Where’s your black ass?” comment, specifically referring to my race and a private part of my body. No one offered support to me like they did with Naima Masud;[546]We consider that these three paragraphs, in substance, form one allegation with two parts. The allegation, in substance, is that: Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 546.1. The Claimant was treated less favourably than Naima Masud because she was told by Ms Laffont that the comments made to her were “completely inappropriate”, but no one ever told him that the comment Mr Thavendrtan made to him was “completely inappropriate”. 546.2. Ms Masud was provided with support following the Claimant’s comments to her, whereas he was not provided with support following Mr Thavendran’s comments to him.[547]In respect of the first limb of the allegation: 547.1. The comparison to Ms Masud is inapt. The comment was made to Ms Masud in a grievance meeting, during a discussion regarding the Claimant’s grievance. The Claimant did not raise a grievance about Mr Thavendran. He was given the opportunity to do so but informed Ms Onbashi that he did not want to take the matter further. So there was never any investigation of Mr Thavendran’s comment. 547.2. Furthermore, Mr Thavendran was an employee of Shell, which is a material difference in circumstances between the Claimant and Ms Masud – Ms Masud was complaining about a fellow employee of the Respondent, whereas the Claimant was complaining about an employee of the Respondent’s client. 547.3. And of course, although the Claimant was not aware of it at the time, Ms Fox did describe Mr Thavendran’s comment as “completely inappropriate” – albeit, not directly to the Claimant. 547.4. So for all of those reasons, we do not consider that the comparison to Ms Masud was an apt one. So the allegation must fail on that basis.[548]In respect of the support the Claimant complained about, his evidence was that it was the support that was offered to Ms Masud after he had sent her the Letter Before Action. Again, Ms Masud is not an apt comparator because Mr Thavendran did not send the Claimant a Letter Before Action from his work email address threatening to sue the Claimant for defamation. So this allegation also fails.[549]For completeness, and for the avoidance of doubt, we see no link between the way that the Claimant was treated and his race. D. FDM did not recommend that Steven Thavendran does DE&I training for saying “Where’s your black ass?” but rather forced me to do DE&I training for saying “I think you dress conservatively”, imposing a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”.[550]Firstly, there was no evidence before the Tribunal regarding whether Mr Thavendran was required to undertake DE&I training by his employer. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 The evidence we had was that Ms Fox described his comment as “completely inappropriate”, and asked whether action had been taken. So we could not safely reach any conclusion about what, if any, consequence Mr Thavendran faced for his comment.[551]Furthermore, the Respondent was in no position to recommend that Mr Thavendran undertake DE&I training. He was not their employee, but rather he was an employee of their client, Shell. The most they could have done was passed the matter on to Shell – and of course the Claimant himself said he did not want it taken any further.[552]So for those reasons, Mr Thavendran is not an apt comparator because he was not in materially the same circumstances as the Claimant.[553]For completeness and for the avoidance of doubt, we see no link between the instruction (not ultimately followed through) that the Claimant undertake DE&I training, and his race. We can see nothing to suggest that an employee of the Respondent who had behaved as the Claimant had admitted to behaving, and was of a different race, would have been treated any differently.[554]So the allegation fails. I. Race related harassment (s.26 EQA)[555]We take the factual allegations in turn. B. I complained to FDM on at least 3 further occasions that Steven Thavendran had made that comment to me in the course of my employment but FDM failed to take any adequate steps to prevent this from happening to me or any one again and never condemned the comment. I even sent a screenshot.[556]The Claimant told the Respondent that he did not want further action taken in respect of Mr Thavendran. There was no suggestion in the evidence that any further similar incident happened to the Claimant after the comment from Mr Thavendran. In any event, looking at the manner in which the Claimant raised the comment from Mr Thavendran, we find that he did not raise it because he was offended or hurt. He did not raise it for the first time until over a month after the comment was made. Rather, looking at the context, we find that he raised it because he was unhappy that Mr Thavendran had initially conveyed the message that Ms Masud was upset with him, and in order to try to detract attention from the allegations against him.[557]It follows then that we consider that the allegation was not made out on the facts. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[558]But in any event, the Claimant had indicated that he did not want the matter taken further. In that context, we do not consider that the Respondent not condemning the comment or not taking any other steps in response to it could properly be described as “unwanted” – it was exactly what the Claimant had indicated he wanted the Respondent to do.[559]So the allegation fails. 168 A. Failed to investigate or make recommendations to Shell for the investigation of the “black ass” comment made by Steven Thavendran;[560]For the same reasons as for the preceding allegation, we conclude that the failure to investigate or make recommendations regarding Mr Thavendran could not be said to be “unwanted”.[561]So the allegation fails. 168 B. Failed to investigate or make recommendations to Shell for the investigation of the racial micro aggressions I complained about;[562]The only reference in the Claimant’s witness statement to racial microaggressions was to matters he raised during the suspension meeting. The only matter he raised in that meeting was the comment by Mr Thavendran.[563]So in reality, this is nothing more than a repeat of the previous allegation. It fails for the same reason. 168 C. Failed to take any adequate steps to prevent this from happening to me or any one again;[564]There was no suggestion in the evidence before us that anything similar did happen to the Claimant again. So we do not consider that it could not be said that the Respondent failed to take adequate steps to prevent it from happening. So the allegation is not made out on the facts, and it fails. 168 D Failed to condemn the comment by saying any words to the effect of:. “Its completely inappropriate to make comments on someone’s [private body part] especially if its to do with [race]”;[565]The first point to make about this is that it was abundantly clear that Mr Thavendran’s comment was not about the Claimant’s bottom. The reference to getting his “ass” over there was self-evidently a reference to his entire person, not merely his bottom. So it was not a comment about a “private body part”. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[566]In any event, once again, the Claimant did not want the matter to be taken forward. And had he wanted the matter taken further, there would have needed to have been an investigation to understand the circumstances in which the comment was made. So in the context, we do not consider that the Respondent’s failure to condemn the comment could not be said to be “unwanted”. If the Claimant had wanted Mr Thavendran’s comment to be formally followed up on, or formally condemned, he would not have said he did not want it taken further.[567]So the allegation fails. J. Victimisation s27 EQA[568]There is one protected act relied upon by the Claimant, namely that on 24th October 2022, he complained about the malicious weaponisation of sexual harassment allegations against innocent men, which was said to be an allegation of sex discrimination.[569]Of course, a complaint of discrimination does not need to be wellfounded in order to be a protected act. Read as whole and in context, we consider that the Claimant was making a complaint of discrimination. He was alleging that Ms Masud had discriminated against him by making the allegation. We consider that that is apparent from his reference to allegations against “innocent men” – rather than “innocent people”.[570]We therefore turn to consider the alleged detriments. A. FDM forced me to do DE&I training;[571]This did not happen. And as we have already explained, the instruction (not followed through) was because of the Claimant’s behaviour. It was not because of his grievance.[572]So the allegation fails. B. FDM imposed a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”;[573]This did not happen. And in any event, the instruction was nothing to do with his grievance. It was a fair reminder to him that further failure to comply with instructions may result in disciplinary action.[574]So the allegation fails. C. Repeatedly attached Bullying and Harassment policy in emails to me; Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[575]We have found that this allegation, as formulated, is not made out on the facts. And when the policy was send to the Claimant, it was not because he had done a protected act; rather, it was because of his behaviour.[576]So the allegation fails. D. Pat Enright said: “In light of this I have now cancelled our catch up for today”;[577]There is simply nothing before us to suggest that the reason Mr Enright cancelled his scheduled catch-up with the Claimant was because the Claimant had made a complaint of discrimination. Rather, we consider that it was because, in light of the length and tone of the Claimant’s email and the attached Letter Before Action, he would self-evidently need some time to properly consider it and to take legal advice before meeting the Claimant. And of course, Mr Enright then left Respondent’s employment shortly afterwards.[578]So the allegation fails. E. Salwa Chowdhury warned me not to talk about the fabricated sexual harassment allegation;[579]We have found that the allegation was not fabricated. So the premise of the allegation is not made out.[580]In any event, the reason the Claimant was reminded not to talk about the disciplinary investigation was because he had been told to keep it confidential – an instruction which long pre-dated the Claimant’s grievance, and which he had already breached. The instruction was entirely unrelated to the fact that the Claimant had raised a grievance.[581]So the allegation fails. F. FDM dismissed me – Fleur Laffont said: “I might speed things up and prevent him from making an appeal”[582]This did not happen. The allegation fails. K. Automatic unfair dismissal for making a protected disclosure[583]For the reasons we have already explained at length, and do not need to repeat, we have concluded that the sole reason for the Claimant’s dismissal was because of the misconduct he had committed – namely, failing to follow the Respondent’s instructions and sending the Letter Before Action Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 to Ms Masud from his FDM email address. It was entirely unrelated to his protected disclosure. So the claim fails. L. Jurisdiction[584]We have found one allegation to be made out, the first alleged protected disclosure detriment. That weas a comment made by Ms Canning on 8 September 2022.[585]The primary time limit for bringing a claim about that comment expired on 7 December 2022. The Claimant did not contact ACAS until 18 December 2022, so he does not benefit from the Early Conciliation extension. The claim was issued on 1 March 2023, so was almost 3 months out of time in respect of that allegation.[586]There was no evidence at all before us to suggest that it would not have been reasonable practicable for the Claimant to have brought the claim within the primary time limit. In particular,: 586.1. During the time leading up to the expiry of the limitation period the Claimant was able to undertake details legal research into other matters he was complaining about; for example, his rights under the ECHR. 586.2. During that period, he was able to engage at length with the Respondent on numerous matters, including his grievance and the disciplinary processes. 586.3. The Claimant is an intelligent, educated man who would have had no difficulty finding out about the applicable time limit for the wealth of publicly available information.[587]We conclude therefore that it was reasonably practicable for the Claimant to bring that complaint in time. The complaint was therefore brought outside of the time limit, and the Tribunal does not have jurisdiction to entertain it, so it is dismissed.[588]In summary, therefore, for the reasons set out above, all of the claims fail and are dismissed. Approved by: Employment Judge Leith Date:31 July 2025
The Issues
[1]Did the Claimant make any protected disclosure(s): 1.1 The Claimant alleges he made protected disclosures as set out at paragraphs 13A-13F of his claim:a. A. On or around 15th August, I received a catch up phone call from Klaudia Wojcieszczak. During this call, I informed her that permanent new hires at Shell, namely Olivia Hogan, were being paid more than FDM consultants in the same positions, in breach of Agency Workers Regulations 2010 (AWR).b. B. On or around 30th August, I informed Naima Masud, in the presence of Steven Thavendran, that permanent new hires at Shell were being paid more than FDM consultants in the same positions and that we should be getting the same pay, according to AWR.c. C. On or around 1st September 2022, I informed Narima Ajam, in the presence of Shuaib Azam, Khadija Chowdhury, Guilane Youmbi, Olivia Hogan, Chidera Magwogwu, Michael Ayeni, Shae-ree Wang and Anisa Fatima, that permanent new hires at Shell were being paid more than FDM consultants in the same positions, and I felt this was in breach of AWR.d. D. On 8th September 2022, I informed Emily Canning in the presence of Klaudia Wojcieszczak and Michael Ayeni, that FDM was breaching AWR by i. Paying consultants less than permanent employees with similar experience in the same positions; ii. Preventing consultants from joining clients permanently before 2 yearse. E. On the 15th of November 2022, I emailed Rod Flavell, CEO, with Emily Canning copied in, regarding this breach and my concerns surrounding how unfairly I’d been treated after raising this my concerns.f. F. On the 25th of November, I emailed Charley Smithers and Daniel Horan, regarding the unlawfulness of blanket speech bans, in breach of Article 8 and Article 10 of the Human Rights Act 1996 (HRA).1.1.1 Did those disclosures amount to a disclosure of information1.1.2 Did the Claimant reasonably believe any disclosure was in the public interest1.1.3 Did the Claimant reasonably believe that the disclosure tends to show one or more of the following 1.1.3.1 That a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject namely the Respondent was breaching the Agency Workers Regulations 2010 and also article 8 and article 10 of the Human Rights Act 1996 as regards blanket speech bans.1.1.4 Were any qualifying disclosures protected. Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017[2]Was the Claimant subjected to a detriment on the grounds that he had made a protected disclosure?2.1 The Claimant alleges that he was subjected to the detriments set out at paragraphs 117A-117II of his claim.a. A. Emily Canning said, in response to my protected disclosure on 8th September 22: “There are other consultants on the beach we can replace you with”;b. B. Emily Canning and Deborah Onbashi ignored my phone calls and emails;c. C. FDM placed me in the “Dunn Group” – I believe “Dunn” is a euphemism for “Done”;d. D. Suspended me;e. E. FDM accused me of sexual harassment;f. F. FDM accused me of gross misconduct and suspended me for more than 5 days, in contravention of their own Disciplinary Procedures Policy;g. G. FDM influenced the suspension of my placement with Shell;h. H. FDM influenced the termination of my placement with Shell by telling Shell that FDM had doubts me and Naima Masud could work together;i. I. FDM failed to take reasonable steps preserve and/or review CCTV evidence;j. J. FDM failed to take reasonable steps to interview relevant witnesses;k. K. FDM told me, on 5th October 2022: “Do not contact any member of staff at Shell or FDM during this investigation process”;l. L. FDM told me, on 1st November 2022: “Do not contact Shell or any employee of Shell”; M.FDM said to me: “FDM will not be forwarding on this letter. I ask that you do not request Shell to forward on your letter”; N. FDM made me stay at home all day waiting for a courier that did not arrive. Twice O. FDM's allegation of misconduct: “Inappropriate use of FDM communication channels to pursue a personal, non-work-related matter”, communicated to me on 17th November 2022; P. FDM found me guilty of gross misconduct for “Inappropriate use of FDM communication channels to pursue a personal, non-work-related matter” on 28th November 2022, contradicting FDM’s own Computer Usage Policy, which states: “Company email is provided for official business and administrative purposes, occasional personal use is permitted so long as such use is not excessive, in volume, frequency or time and does not disrupt or restrict usage by other users nor interferes with an employee’s day to day duty"; Q. FDM frequently switched between characterising my grievance as a personal/civil/FDM matter for the purposes of furthering the disciplinary action against me; R. FDM's allegation of misconduct: “Failure to follow the correct process of returning your Shell equipment as instructed by FDM”, communicated to me on 15th November 2022; Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 S. FDM found me guilty of misconduct for “Failure to follow the correct process of returning your Shell equipment as instructed by FDM” on 28th November 2022, ignoring the facts that: i. FDM failed to ensure a courier arrived. Twice; ii. The equipment did not belong to FDM; iii. Praveen Subramanya called me to arrange the return the equipment belonging to his company; iv. The equipment was returned safely, securely and in perfect condition; v. Emily Canning confirmed there was no formal agreement in place regarding how the equipment should be returned; T. FDM's allegation of misconduct: “Failure to follow instruction by FDM Group Limited (FDM) to not contact employees of Shell”, communicated to me on 15th November 2022; U. FDM found me guilty of misconduct for “Failure to follow instruction by FDM Group Limited (FDM) to not contact employees of Shell”, ignoring the facts that: i. As a blanket speech ban, this infringes on my human rights; ii. I needed to coordinate with my line managers to plan for upcoming work/deadlines; iii. Nobody knew where I was or what had happened to me – I just disappeared; iv. I was forced to contact Shell employees to ensure I could defend myself against such serious allegations as a result of FDM’s flawed investigation and insistence on being opaque; v. Continuing to forbid me from speaking to people after the investigation ended is unreasonable in itself; V. FDM's allegation of misconduct: “[Bringing] the reputation of FDM Group Limited into disrepute”, communicated to me on 21st November 2022; W.FDM found me guilty of misconduct for “[Bringing] the reputation of FDM Group Limited into disrepute” without a credible chain of causation; X. FDM claimed my protected disclosure on 25th November 2022 is a disparaging comment and used that as justification for my dismissal; Y. FDM failed to provide me with details of the allegation made against me when I was initially suspended; Z. FDM failed to investigate my grievance adequately or provide an outcome in a timely manner; AA. FDM failed to investigate the sexual harassment allegation against me adequately or provide an outcome in a timely manner; BB. FDM denied my grievance appeal; CC. Geoffrey Millen told me “Your were dismissed on 24th November 2022”, implying the decision had already been made before 28th November 2022; DD. Geoffrey Millen repeatedly signed of emails with “Wish you all the best”, implying I had already been dismissed; EE. All FDM employees repeatedly attached the Bullying and Harassment Policy in emails to me, implying I was guilty of bullying and sexual harassment; FF. The manner (as opposed to the fact of) my dismissal, communicated to me on 28th November 2022, and in particular: i. The failure to consider new evidence from Naima Masud on 25th November Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 2022; ii. The lack of opportunity provided to appeal the outcome of my grievance; GG. The manner of my disciplinary appeal hearing and the outcome communicated to me on 16th December 2022, and in particular: The failure to consider new evidence from Naima Masud on 25th November 2022; HH. In the absence of any founded allegations of gross misconduct, the failure to pay me for my contractual notice period; II. FDM Failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. 118 C. Emily Caning did not respond to my phone calls and/or emails 118 G. FDM placed me under investigation for sexual harassment 118 H. FDM fabricated an allegation of sexual harassment against me 118 I. GFM failed to apologise for investigating me for sexual harassment 118J. FDM failed to inform Shall that Naima Masud said “I never accused him of sexual harassment” 118 K. FDM continue to maintain I sexually harassed Naima Masud and/or continue to fail to acknowledge that Naima Masud said “I never accused him of sexual harassment”2.2 Was the Claimant subjected to the alleged detriments on the grounds that he had made a protected disclosure. B Unfavourable treatment for something arising in consequence of disability (s.15 Equality Act)
The Issues
[1]Was the Claimant disabled within the meaning of EQA?1.1 Did the Claimant suffer from a physical or mental impairment which had a significant long term adverse effect on the Claimant’s ability to carry out day to day activities?1.2 The Claimant relies on Post Traumatic Embitterment Disorder (PTED)[2]Was the Respondent aware of the alleged disability?[3]Was the Claimant treated unfavourably because of something arising as a consequence of the alleged disability.3.1 The Claimant alleges that he was subjected to the unfavourable treatment set out at paragraphs 131A-131J of the Claim:a. A. Threatened me with disciplinary action by imposing a period of monitoring on me, saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”;b. B. Found my position “untenable” due to my behaviour and removed me from Shell;c. C. Placed me under investigation for talking to Shell employees;d. D. Found me guilty of misconduct for talking to Shell employees;e. E. Placed me under investigation for sending the Letter of Claim for defamation to Naima Masud;f. F. Found me guilty of gross misconduct for sending the Letter of Claim for defamation to Naima Masud;g. G. Dismissed me;h. H. Dismissed my appeal to the outcome of my disciplinary hearing; Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017i. I. Warned me I cant talk about my own traumatising experience of being falsely accused of sexual harassment;j. J. Said my Letter of Claim is “extremely aggressive and harassing in nature”, and used that as justification for my dismissal, without considering the effects of falsely accusing someone of sexual harassment. 135 G. Relied on my behaviour in considering the decision to dismiss me; 135 H. Found my employment to be “untenable”; 135k. K. Denied my appeal to the outcome of my grievance; 135 N. Said, in response to my grievance, “What you choose to claim in your own time is your own choice”; 135 O. Labelled my behaviour as “disruptive” and / or that I “behaved disruptively” ; 135 P. Failed to give due account to my disability in making the decision to dismiss me; 135 Q. Failed to consider the effect on my mental health of falsely accusing me of sexual harassment; 135 R. Failed to consider the effect on my mental health of suspending me; 135 S. Failed to take into account the impact of their unfair and/or discriminatory treatment on me in making the decision to dismiss me; 135 T. Fleur Laffont said: “Hopefully moving forward it will be much more pleasant visits to the FDM office”; 135 U. Fleur Laffont replied, “I agree” when Naima Masud said “He’s very obnoxious”; 135 V. Fleur Laffont said: “I might speed things up and prevent him from making an appeal”;3.2 Was the Claimant subjected to that alleged unfavourable treatment3.3 If the Claimant was subjected to the alleged unfavourable treatment was that because of something arising as a consequence of the alleged disability. The Claimant relies on: “The symptoms of my disability in that, after being suspended, I began to experience overwhelming emotions of distress, resentment, anger, wrath, hostility, disappointment, disgust, and shame accompanied by fantasies of revenge leading to agitation, mania, lowered inhibition and diminished selfcontrol all culminating in a querulous persistence in my fight for the restoration of justice.”[4]If the Claimant was treated unfavourably because of something arising as a consequence of the alleged disability, was that treatment justified? The aim relied upon by the Respondent was “to maintain appropriate behaviour within its workforce and to maintain its relationship with its clients.” [974] C Failure to make reasonable adjustments (s. 21 EQA)
The Issues
[1]Did the Respondent apply any provision, criteria of practice that put the Claimant, and those suffering from his disability at a substantial disadvantage.[2]The Claimant relies on the following PCP’s• For an employee not to speak to a client when suspended Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017• The requirement to comply with a request in the respondent’s letter of 1 November 2022• The requirement the claimant should not ask Shell to send his letter of claim to N Masud• The requirement to attend diversity equality and inclusivity training• The requirement to be subjected to a disciplinary process.• The requirement to attend a disciplinary hearing• The requirement that the Claimant’s placement at Shell should be found untenable• The requirement that Claimant’s employment should be found to be untenable 138A. The requirement that I should comply with the requests in FDM’s letter dated 1st November 2022; 138B. The requirement that I should not ask Shell to send my letter of claim to Naima Masud; 138C. The requirement that I should not contact any employee of Shell; 138D. The requirement that I should attend DE&I training; 138E. The requirement that I should be subjected to a disciplinary process; 138F. The requirement that I should attend disciplinary meetings; 138G. The requirement that my placement at Shell should be found to be untenable; 138H. The requirement that my employment should be found to be untenable;[3]The Claimant relies on the following disadvantage namely that unjust allegations would, for a person with the Claimant’s disability led to higher levels of distress anxiety and shame.[4]Did the Respondent make such adjustments as were reasonable to enable the Claimant to overcome any such disadvantage[5]The Claimant says that the Respondent should have made the adjustments set out at paragraphs 133A-133G of his claim B. Investigate my grievance adequately; C. Investigate the grievance against me adequately; D. Send my letter of claim to Naima Masud; E. Offer me support when it became apparent I was in distress; F. Consider moving me to another part of Shell if my behaviour really was an issue; G. Request an Occupational Health Report; 140 E. At least, if not stop, pause the disciplinary process against me. 140 G. Find a way to make my placement tenable; 140 H. Find a way to make my employment tenable; 140 J. Express sympathy about me feeling how I felt; 140 K. Empower me to solve my problems; 140 L. Offer to introduce me to someone trained who could support me properly; 140 M. Make the dialogue interactive; 140 N. Tell me they were glad I came to them; 140 O. Ask me what they could do to help; Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 140 P. Help; D. Direct sex discrimination (s.13 EQA) 1 Was the Claimant treated less favourably because of his sex 2 The Claimant alleges that he was treated less favourably as set out at paragraphs 136 and 139A-139W of his claim 136. Naima Masud said, as the reason for reporting me to HR: “My main concern is the comments about being ‘conservative’ as I don’t want him to make comments like these to other women”.a. A. FDM allowed Naima Masud to talk to Shell and FDM employees whilst I was suspended during the investigation into her grievance against me;b. B. Naima Masud said: “I happened to be friends with the person who off boarded him, she said he’s still talking about it, do you want me to say something to him”, implying a threat against me for talking about the fabricated sexual harassment allegation, instead of offering counselling;c. C. Salwa Chowdhury said to me “Thanks for letting me know” after I told her I couldn’t eat or sleep well, dismissing my health concern;d. D. FDM continued to treat me as if I was guilty of sexual harassment even after Naima Masud said she didn’t accuse me of sexual harassment;e. E. Deborah Onbashi said “We wish to highlight that we expect you to comply with our Bullying and Harassment policy”, implying I was guilty of bullying and harassment;f. F. FDM forced me to do DE&I training, imposing a period of monitoring on me saying “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”;g. G. All FDM employees repeatedly attached the Bullying and Harassment policy in emails to me;h. H. FDM treated the alleged complaint made by Naima Masud against me as a an allegation so serious that I had to be suspended with immediate effect;i. I. FDM ignored clear inconsistencies in Naima Masud’s statements even after I pointed them out;j. J. Deborah Onbashi subjected me to a written warning further to the complaint made against me;k. K. FDM failed to offer reasonable explanations for my suspension and the restrictions imposed;l. L. FDM refused to accept or extend time for my grievance appeal; M.Charley Smithers said, in response to my grievance, “What you choose to claim in your own time is your own choice”, while support was offered to Naima Masud; N. Fleur Laffont said: “Hopefully moving forward it will be much more pleasant visits to the FDM office”; O. Fleur Laffont replied, “I agree” when Naima Masud said “He’s very obnoxious”; P. Naima Masud said: “this is all extremely childish” to which Fleur Laffont replied, influencing Naima Masud to adopt a particular point of view: “You say you think its childish, I don’t think it is from your point of view. Its completely inappropriate to make comments on someone’s appearance especially if its to do with faith and religion”; Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 Q. Fleur Laffont said: “I might speed things up and prevent him from making an appeal” and an allegation of misconduct was then upgraded to gross misconduct without explanation. R. Fleur Laffont said: “You confirmed you did make the comment that NM "dresses conservatively", both in the Grievance Hearing on 23 November 2022 and in the investigation meeting with DO on 7 October 2022. Regardless of your intention, this caused offence to NM. Your statement constitutes a personal comment on NM’s appearance, associated with her sex, religion, and belief. This goes against FDM’s Bullying and Harassment Policy”; S. Charley Smithers said that my letter of claim is “extremely aggressive and harassing in nature” but does not think suspending me for a fabricated allegation of sexual harassment and taking steps to destroy my career is extremely aggressive and harassing in nature; T. Charley Smithers lied that I was on another teams call during the disciplinary hearing and used this as justification for my dismissal; U. Lara Paxton said: “I’ve not explored what happened in that situation – as far as I know that was all closed. I’m not here to explore that”, wilfully ignoring new evidence - the fact that Naima said “I never accused him of sexual harassment”; V. ACAS says: “The opportunity to appeal against a disciplinary decision is essential to natural justice. Appeals may be raised by employees on any number of grounds, for instance new evidence, undue severity or inconsistency of the penalty”; W.Lindsay Lowrie upheld the decision to dismiss me, ignoring the fact that Naima said “I never accused him of sexual harassment” and that the reason I was facing a disciplinary panel was as a direct consequence of that fabricated allegation. 147A. FDM accused me of sexual harassment; 147 B. FDM investigated me for sexual harassment; 147 D. FDM did not acknowledge my grievance against Naima Masud until 3 weeks after I had formally raised it; 147 E. FDM did not suspend Naima Masud when I raised a grievance against her; 147 F. The outcome of Naima Masud’s grievance against me was me being required or recommended to attend DE&I training and removed from Shell whereas the ultimate outcome of my grievance against Naima Masud was no disciplinary sanction at all; 147 G. The ultimate outcome, as a direct consequence of Naima Masud’s grievance against me, was me being dismissed whereas the ultimate outcome of my grievance against Naima Masud was no disciplinary sanction at all; 147 I. FDM failed to offer me support; 147 Q. FDM ignored clear inconsistencies in Naima Masud’s statements even after she admitted them; 3 The Claimant relies on a hypothetical comparator and Naima Masud 4 Was any alleged less favourable treatment because of the Claimant’s sex. E. Sex related harassment (s.26 EQA) Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 1 Did the Respondent subject the Claimant to unwanted conduct related to sex which had the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. 2 The Claimant alleges that he was subjected to the unwanted conduct referred to at paragraphs 141A – 141G of his claim: A. Suspended me; B. Accused me of sexual harassment; C. Forced me to do DE&I training; D. Repeatedly attached Bullying and Harassment policy in emails to me; E. Imposed a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”; F. Fleur Laffont said: “I might speed things up and prevent him from making an appeal”; G. Dismissed me Each of the allegations of direct sex discrimination 149 G. Fleur Laffont replied, “I agree” when Naima Masud said “He’s very obnoxious”; 3 Did that conduct relate to sex? 4 Did that conduct have the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? F. Direct belief discrimination (s.13 EQA) 1 Was the Claimant treated less favourably because of a protected belief and/or (lack of) religion. 2 The Claimant relies on his protected belief in modesty - a mode of dress and deportment which intends to avoid the encouraging of sexual attraction in others. 3 Does the Claimant’s belief amount to a protected belief. 5 The Claimant alleges that he was treated less favourably as set out at paragraphs 152 A – F of his claim A. Suspended me; B. Accused me of sexual harassment; C. Forced me to do DE&I training; D. Repeatedly attached Bullying and Harassment policy in emails to me; E. Imposed a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”; F. Dismissed me. 160 G. Fleur Laffont said: “I might speed things up and prevent him from making an appeal”; 160 H. Fleur Laffont replied, “I agree” when Naima Masud said “He’s very obnoxious”;[6]If the Claimant was treated less favourably was that because of his protected belief and/or because of his ( lack of) religion. G. Belief related harassment s26 EQA Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 1 Did the Respondent subject the Claimant to unwanted conduct related to his belief or lack of religion which had the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant 2 The Claimant alleges that he was subjected to the unwanted conduct referred to at paragraphs 153 A - F of his claim.a. A. Suspended me;b. B. Accused me of sexual harassment;c. C. Forced me to do DE&I training;d. D. Repeatedly attached Bullying and Harassment policy in emails to me;e. E. Imposed a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”;f. F. Dismissed me. 161 C. Investigated me for sexual harassment; 161g. G. Fleur Laffont said: “I might speed things up and prevent him from making an appeal”; 161h. H. Fleur Laffont replied, “I agree” when Naima Masud said “He’s very obnoxious”; 3 Did that conduct relate to the Claimant’s belief or lack of religion? The Claimant relies on the belief and lack of religion referred to in section G above. 4 Did that conduct have the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? H. Direct race discrimination (s13 EQA) 1 Was the Claimant treated less favourably because of his race? 2 The Claimant alleges that he was treated less favourably as alleged in paragraphs 156 A – D of his claim [160] A. Fleur Laffont said: “Its completely inappropriate to make comments on someone’s appearance especially if its to do with faith and religion”; B. Applying this reasoning horizontally, the same should hold true equally for all the other protected characteristics but no one ever said: “Its completely inappropriate to make comments on someone’s [private body part] especially if its to do with [race]”; C. FDM never condemned Steven Thavendran’s “Where’s your black ass?” comment, specifically referring to my race and a private part of my body. No one offered support to me like they did with Naima Masud; D. FDM did not recommend that Steven Thavendran does DE&I training for saying “Where’s your black ass?” but rather forced me to do DE&I training for saying “I think you dress conservatively”, imposing a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”. 3 If the Claimant was treated less favourably, was that because of his race?i. I. Race related harassment (s.26 EQA) Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017 1 Did the Respondent subject the Claimant to unwanted conduct related to his race which had the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant 2 The Claimant alleges that he was subjected to the unwanted conduct referred to at paragraphs 157 A - B of his claim B. I complained to FDM on at least 3 further occasions that Steven Thavendran had made that comment to me in the course of my employment but FDM failed to take any adequate steps to prevent this from happening to me or any one again and never condemned the comment. I even sent a screenshot. 168 A. Failed to investigate or make recommendations to Shell for the investigation of the “black ass” comment made by Steven Thavendran; 168 B. Failed to investigate or make recommendations to Shell for the investigation of the racial micro aggressions I complained about; 168 C. Failed to take any adequate steps to prevent this from happening to me or any one again; 168 D Failed to condemn the comment by saying any words to the effect of:. “Its completely inappropriate to make comments on someone’s [private body part] especially if its to do with [race]”; 3 Did that conduct relate to the Claimant’s race? 4 Did that conduct have the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?j. J. Victimisation s27 EQA 1 Did the Claimant undertake a protected act. The Claimant relies on is that, on 24th October 2022, he complained about the malicious weaponisation of sexual harassment allegations against innocent men – sex discrimination. 2 Was the Claimant subjected to the detriments alleged at paragraphs 158A – F of the claim: A. FDM forced me to do DE&I training; B. FDM imposed a period of monitoring on me saying: “If you do not comply with the requests in this letter, we will consider our next steps which may include a disciplinary process”; C. Repeatedly attached Bullying and Harassment policy in emails to me; D. Pat Enright said: “In light of this I have now cancelled our catch up for today”; E. Salwa Chowdhury warned me not to talk about the fabricated sexual harassment allegation; F. FDM dismissed me – Fleur Laffont said: “I might speed things up and prevent him from making an appeal” 3 If so, was that because the Claimant had undertaken the alleged protected act.k. K. Automatic unfair dismissal for making a protected disclosure 1 Was the reason or it more than one, the principal reason for the claimant’s dismissal that the claimant made a protected disclosure? Case No: 2300977/2023 10.8 Reasons – rule 62(3) March 2017l. L. Jurisdiction 1 In so far as any of the acts or omissions relied upon took place more than 3 months before the Claimant initiated his claim by commencing early conciliation, are they out of time? 2 The Claimant asserts that the whistle-blowing detriments form part of a series of similar/continuing acts, for the purposes of s. 48(3)(a) ERA, the last of which was on 16th December 2022 and therefore all fall within three months less one day of him commencing early conciliation. 3 The Claimant asserts that in respect of the claim for whistle-blowing detriments under s.47B ERA, time should be extended under s. 48(3)(b) ERA, where it was not reasonably practicable for him to have made a claim within three months of any alleged detriment.. 4. The Claimant asserts that, in respect of any acts or failures to act, amounting to discrimination, that occurred more than three months before he submitted this claim, they, together with all other acts or failures to act, amounted to a conduct extending over a period within the meaning of section 123(3)(a) of the Equality Act 2010. 5 Should any time limit be extended on the basis that it would be just and equitable to do so. Case no: 2300977/2023 EMPLOYMENT TRIBUNALS Claimant: Mr J Danquah Respondent: FDM Group Ltd[7]The Claimant’s application was received within the relevant time limit. I therefore consider it under Rule 70.[8]The Claimant repeatedly refers to the Tribunal’s findings as being “perverse”. He does not, however, explain why those findings are said to be perverse. There is nothing within the Claimant’s repeated assertion that the Tribunal’s findings are perverse that would lead to any reasonable prospect of the original decision being varied or revoked.[9]Paragraphs 2 - 9 appear to be based on a misunderstanding of the relevant causal test. There is nothing within those paragraphs that would lead to any reasonable prospect of the original decision being varied or revoked.[10]Paragraphs 10 and 11 assert that the Tribunal decided the wrong allegation at paragraph 306 of the Judgment. Given the lengthy and repetitious nature of the pleaded claims, the confusing way in which the Claimant’s subsequent amendment application was presented, and the lack of an agreed list of issues prior to the final hearing, it is perhaps unsurprising that there was a minor discrepancy. Nevertheless, the second sentence of paragraph 306 of the Judgment shows that the Tribunal in fact engaged with the broad allegation relied upon by the Claimant. There is therefore nothing within those paragraphs that would lead to any reasonable prospect of the original decision being varied or revoked. Case no: 2300977/2023[11]Paragraph 12 appears to be an attempt to add a new allegation. The Tribunal decided the allegations set out in the (extremely lengthy) amended pleadings. There is nothing within that paragraph that would lead to any reasonable prospect of the original decision being varied or revoked.[12]Paragraphs 13, 15 – 20, 22 – 32, 34 – 41, 43 – 44 and 46 appear to be nothing more than a disagreement with various factual findings and conclusions reached by the Tribunal. There is nothing within those paragraphs that would lead to any reasonable prospect of the original decision being varied or revoked.[13]Paragraph 14 also appears to a disagreement with the conclusion reached by the Tribunal regarding whether the Claimant had a protected belief at the relevant times. And in any event, given the Tribunal’s subsequent findings in the alternative, the complaints would have failed even if the Tribunal had concluded that the Claimant had had a protected belief at the relevant times. There is nothing within that paragraph that would lead to any reasonable prospect of the original decision being varied or revoked.[14]Paragraph 21 makes an unsupported allegation of bias (which, for the avoidance of doubt, is denied). The comments referred by the Claimant are quoted in paragraph 117.1 of the Judgment, and dealt with in paragraph 243.3. There is nothing within that paragraph that would lead to any reasonable prospect of the original decision being varied or revoked.[15]Paragraph 33 alleges that the Tribunal did not adequately consider the Claimant’s rights under the ECHR. The Convention rights raised before the Tribunal were dealt with in, inter alia, paragraphs 237.2 and 280 of the Judgment. There is nothing within that paragraph that would lead to any reasonable prospect of the original decision being varied or revoked.[16]Paragraph 42 alleges that the Tribunal erred by failing to draw an adverse inference from the Respondent’s failure to call Naima Masud as a witness. The Claimant made no direct allegations against Ms Masud. There was therefore no basis on which to draw an adverse inference against the Respondent for failing to call Ms Masud as a witness. There is nothing within that paragraph that would lead to any reasonable prospect of the original decision being varied or revoked.[17]Paragraph 45 makes a further allegation of bias (which again is denied). The context of the comment at paragraph 301 of the Judgment regarding the Claimant’s loss of perspective was that he alleged that the Respondent had contravened its own policy by suspending him for more than five days, when the relevant policy expressly allowed for suspension to last for longer than five days. The Tribunal’s overarching finding regarding the Claimant’s lack of insight (and by extension, his loss of perspective) is at paragraph 260 of the Judgment. The comment in paragraph 301 went to the overarching finding made in paragraph 260.[18]Paragraph 45 also refers to the Tribunal having “a laissez-faire attitude” in respect of the delivery of the oral judgment. It is not understood what is meant by that comment. Delivery of the oral judgment took place on the Case no: 2300977/2023 afternoon of day 10 of the hearing. It lasted approximately four hours. The oral judgment was a relatively lengthy and detailed one; and in any event, now that written reasons have been produced they constitute the authoritative version of the Tribunal’s reasoning. There is nothing within that paragraph that would lead to any reasonable prospect of the original decision being varied or revoked.[19]Having carefully considered the Claimant’s application, and bearing in mind the importance of finality in litigation and the interests of both parties, for the reasons set out above I am not satisfied that there is any reasonable prospect of the Judgment or any part of it being varied or revoked. The application for reconsideration is therefore refused. Approved by: