Mr A Aslamie v St George’s University Hospitals Foundation Trust: 2301890/2017

EMPLOYMENT TRIBUNALS

Case No 2301890/2017

Between

Mr A AslamieClaimant

St George’s University Hospitals Foundation TrustRespondent

Before

Employment Judge K Andrews

Members

Ms J Forecast

Ms Berki (instructed by lay representative) for claimant

Mr B Jones (instructed by Counsel) for respondent

Date 6 July 2019

JUDGMENT

[1]The claimant was disabled at the relevant time but the respondent did not have the necessary knowledge of that and therefore the claims of disability discrimination are dismissed.

[2]The claimant was not discriminated against because of his race.

[3]The claimant was not unfairly dismissed.

[4]All claims therefore fail and are dismissed.

REASONS

[1]In this matter the claimant complains that he was unfairly dismissed and discriminated against both because of his race and disability.

[2]The issues arising in those claims were identified at a first preliminary hearing in January 2018 and then at a second in February 2019. On 26 February 2019 the claimant made an application to amend his claim. That application was considered at the commencement of this Hearing by the Judge sitting alone and was successful in part. Oral reasons for that decision were given to the parties at the commencement of the second day.

[3]Taking all those matters into account, the claims and principal issues to be considered by the Tribunal are as follows:

[4]Unfair dismissal: the respondent says that the claimant was fairly dismissed because of his conduct on 8 December 2016 at and after a Christmas party. The claimant says that the dismissal was outside the bands of reasonableness, both substantively and procedurally.

[5]Wrongful dismissal: was the claimant in fact guilty of gross misconduct such as to warrant summary dismissal?

[6]Disability discrimination: the claimant says that he was disabled at the relevant time (identified at the February 2019 hearing as March 2017 but we consider it to be throughout the disciplinary process i.e. 3 January – 6 March 2017). The disabilities relied upon are:a. moderate depression, anxiety, adjustment disorder; and

b. hasimoto auto-immune thyroiditis.

[7]The respondent says that the claimant was not so disabled and even if he was, it did not have the necessary knowledge for his claims to be founded.

[8]The disability discrimination alleged is:a. discrimination arising from the disability – the claimant says that the respondent first disciplined and then dismissed him because of his long-term sickness; and

b. breach of the duty to make reasonable adjustments – by the respondent requiring the claimant to attend a disciplinary hearing on 3 March 2017 and then dismissing him.

[9]Direct race discrimination: The claimant is of Afghan background. The direct race discrimination alleged is that:a. on 14 December 2016, Mr Free using the words ‘an Afghan chappie’ when referring to the claimant in an email to Mr Lynch and Ms Noble;

b. on or about 14 December 2016, unnamed colleagues of Mr Free referring to the claimant by his race and alleged national origin as Mr Free admits in an email on 15 June 2017;

c. the ‘Afghan chappie’ email being published in the disciplinary bundle in or about February 2017 and also used as evidence against the claimant during the appeal process in July 2017; and

d. the respondent’s failure to follow up or take disciplinary action against i. Mr Free because of the ‘Afghan chappie’ comment; or ii. against Mr Lynch because of comments made by him to the claimant outside a Wimbledon nightclub in 2015; or iii. against Mr Oppenheim because of various social media posts; following the claimant raising a grievance about them.

[10]Is any allegation relating to events before 2 March 2017 out of time and if so should the Tribunal exercise their discretion to allow an extension of time in the claimant’s favour? Evidence & Documents

[11]For the respondent we heard evidence from:a. Ms J Harper, technical lead in immunology;

b. Mr M Oppenheim, biomedical scientist;

c. Mr M Free, blood transfusion technical lead;

d. Mr S Lynch, former clinical blood sciences discipline manager;

e. Ms L Noble, HR business partner;

f. Mr R Whittaker, laboratory manager;

g. Mr J Laughlin, head of microbiology;

h. Ms H McHugh, divisional director for nursing and governance; and

i. Mr S Reeves, former divisional director.

[12]For the claimant we heard from the claimant himself and also his partner (and representative) Ms S Berki. We also considered written statements submitted by the claimant from Ms C Emery and Mr A Oduaran. Both these witness statements contained a statement of truth and were signed but as neither individual was present to be questioned about the contents nor formally attest to their truth, they were given limited weight. Ms Emery had been present on the first morning of the Hearing but it was not appropriate to hear her evidence then.

[13]We also had two substantial files of agreed documents before us. During the hearing both parties added documents to the bundle. The claimant also sought to rely upon a further medical report but it was in Hungarian. It was explained to the claimant that if he wished the Tribunal to refer to this document an official translation had to be provided. This was not done and therefore the document was not considered. Conduct of Hearing

[14]Ms Berki informed the Tribunal that she had concerns about the claimant’s ability to give evidence. This was explored in detail with her and the claimant and they were given time specifically to consider this issue. We agreed that there would be breaks every 45 minutes during the claimant’s evidence and he was expressly told to indicate if he needed more breaks. Mr Jones was also asked to review his proposed cross-examination and limit it to what was necessary. The claimant confirmed that he was able to continue in this way. In the Tribunal’s view the claimant was in fact able to give evidence cogently and fully participate. He clearly understood what he was being asked and was able to answer fully including to disagree with propositions being put to him. We do not seek to minimise what must have been a very difficult process for the claimant – especially when dealing with very sensitive and emotive topics such as his sister’s circumstances – and we recognise that he made a great effort.

[15]It was necessary for the Judge to give regular guidance to Ms Berki on how to cross-examine the respondent’s witnesses and the requirement that evidence must be limited to what is relevant to the issues. This resulted in more interruptions than we would have liked but was necessary to ensure a fair hearing and that a proportionate amount of time was spent with each witness. The Judge had to remind Ms Berki on several occasions to be respectful to the process and the respondent’s witnesses in the way she put her questions to them and her reactions to their evidence.

[16]The Judge also had to guide Ms Berki on not interrupting or influencing the claimant’s evidence (either orally or by facial expression/gesture) when he was answering questions. Guidance was also given to her on the purpose of re-examination. About 30 minutes into day 6, during the claimant’s cross-examination and despite all the guidance and leeway already given to her, the Judge had to reprimand Ms Berki for interrupting the claimant’s evidence and suggesting an alternative answer to the question he had been asked. She was warned that if she made a similar intervention again she would be excluded from the hearing room. We adjourned and on resumption Ms Berki did not return. We were informed by the claimant that she was absenting herself voluntarily. She returned on conclusion of his cross-examination that day at 3.40pm. She re-examined him on his evidence that she had heard and the Judge ensured that any matters that seemed to warrant re-examination from the evidence given whilst she was absent was put to him.

[17]On a few other occasions during the Hearing – including at very outset - Ms Berki was not present due to childcare issues (their young daughter was present at the Tribunal building although it was not possible to have her in hearing room).

Relevant Law

[18]Unfair dismissal: By section 94 of the Employment Rights Act 1996 (“the 1996 Act”) an employee has the right not to be unfairly dismissed by his or her employer.

[19]In this case the claimant’s dismissal was admitted by the respondent and accordingly it is for the respondent to establish that the reason for the dismissal was a potentially fair one as required by section 98(1) and (2). If the respondent establishes that then it is for the Tribunal to determine whether the dismissal was fair in all the circumstances (including the size and administrative resources of the respondent business) having regard to equity and the substantial merits of the case (section 98(4)). In applying this test the burden of proof is neutral.

[20]In this case the respondent relies upon conduct and therefore the Tribunal must consider whether the respondent acted reasonably in treating the claimant’s conduct as sufficient reason for dismissing him.

[21]In that exercise, the Tribunal is guided by the principles set out in British Home Stores Ltd v Burchell

[1978] IRLR 379

, affirmed by the Court of Appeal in Post Office v Foley

[2000] ICR 1283

. Accordingly the Tribunal will consider whether the respondent by the standards of a reasonable employer:a. genuinely believed the claimant was guilty of misconduct;

b. had reasonable grounds on which to sustain that belief; and

c. at the stage at which it formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in the circumstances of the case.

[22]Any evidence that emerges during the course of any internal appeal against dismissal will be relevant in that exercise but otherwise material not before the employer at the relevant time is irrelevant.

[23]The approach in Burchell is modified to the extent that even if the respondent fails to establish one or more of those three limbs the Tribunal must still ask itself if the dismissal fell within the range of reasonable responses referred to below.

[24]Further, the Tribunal must assess - again by the standards of a reasonable employer - whether the respondent’s decision to dismiss was within the band of reasonable responses to the claimant’s conduct which a reasonable employer could adopt (Iceland Frozen Foods v Jones

[1983] ICR 17

and Graham v S of S for Work & Pensions

[2012] IRLR 759

, CA). The band of reasonable responses test also applies to whether the respondent’s investigation was reasonable (Sainsbury’s Supermarkets v Hitt

[2003] IRLR 23

). One factor to consider is whether the respondent has acted inconsistently in its treatment of employees but only where those employees are in “truly parallel circumstances”. The EAT emphasised in Hadjioannous v Coral Casinos Ltd (

[1981] IRLR 352

) that flexibility must be retained and employers are not to be encouraged to think that a tariff approach to misconduct is appropriate.

[25]We are also mindful of the EAT decision of Burdett v Aviva Employment Services Ltd (EAT0439/13) which confirms that even if a Tribunal has concluded that the employer was entitled to regard an employee as having committed an act of gross misconduct, that will not be determinative of the question of fairness and that the answer in most cases might be that it was, but that cannot simply be assumed. The Tribunal still needs to consider whether dismissal was within the range of reasonable responses.

[26]When considering the procedure used by the respondent, the Tribunal’s task is to consider the fairness of the whole of the disciplinary process. Any deficiencies in the process will be considered as part of the determination of whether the overall process was fair (OCS Group Ltd v Taylor

[2006] ICR 1602

). The Tribunal will also take account of the ACAS Code of Practice on Disciplinary and Grievance procedures. The EAT has held that it is only in the rarest of cases that it would be outside the range of reasonableness for an employer to proceed with a disciplinary process before hearing a grievance appeal (unless there is clear evidence of unfairness or prejudice) (Samuel Smith Old Brewery (Tadcaster) v Marshall (EAT 0488/09).

[27]In coming to these decisions, the Tribunal must not substitute its own view for that of the respondent but to consider the respondent’s decision and whether it acted reasonably by the standards of a reasonable employer.

[28]Wrongful Dismissal: Any summary dismissal of an employee will be in breach of the right to notice of termination (either through the contract of employment or the statutory minimum) and therefore a wrongful dismissal unless there has been repudiatory conduct by the employee justifying that summary dismissal. Gross misconduct would amount to such repudiatory conduct.

[29]In contrast to unfair dismissal it is a question of fact for the Tribunal to decide if the contract has been so breached rather than considering whether the employer was reasonable in its conclusions. In reaching that decision the Tribunal is entitled to consider all relevant evidence whether it pre or postdates the dismissal.

[30]Meaning of Disability: section 6 and schedule 1 of the Equality Act 2010 (‘the 2010 Act’) set out the provisions with regard to the meaning of disability. In addition, Guidance was issued in 2011 to assist Tribunals when determining whether a person meets that definition.

[31]Section 6 says that a person has a disability if he has a physical or mental impairment and it has a substantial and long-term adverse effect on his ability to carry out normal day to day activities. Substantial is defined as more than minor or trivial and the Guidance confirms that this will generally be understood as a limitation going beyond the normal differences in ability that exist among people. Normal day to day activities is not defined but the Guidance suggests that they are things people do on a regular or daily basis. They can also include general work-related activities and study and education-related activities.

[32]Schedule 1 says that the effect of an impairment is long term if it has lasted for at least 12 months, is likely to so last or is likely to last for the rest of the life of the person affected. Paragraph 2(2) says that if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out such activities it is to be treated as continuing to have that effect if that effect is likely to recur.

[33]In Richmond Adult Community College v McDougall (

[2008] ICR 431

) it was confirmed that the impairment must be assessed predictively. A claimant cannot rely on the fact that he has been impaired for a year by the time of the hearing. If the impairment is not long-term, the next test is whether it is likely to be long-term which has been confirmed to mean that it "could well happen" (SCA Packaging v Boyle

[2009] UKHL 37

[34]The question of disability has been distilled into four questions that a Tribunal should consider:a. Did the claimant have a mental or physical impairment?

b. Did the impairment affect his ability to carry out normal day to day activities?

c. Was the effect substantial?

d. Was the effect long term?

[35]Making that assessment is a question of fact and degree based upon the evidence that we have heard paying particular attention to what the claimant cannot do rather than what he can do (Goodwin v Patent Office

[1999] ICR 302

) and how the claimant carries out an activity compared to how she would do it if he were not impaired (Paterson v Metropolitan Police Commissioner

UKEAT/0635/06

). On the other hand, the fact that a claimant can only carry out activities with difficulty or pain does not establish a disability (Condappa v Newham Healthcare Trust

[2001] All ER 38

). The assessment is also done on the basis of the position at the time of the alleged discriminatory act. It is not done with the benefit of hindsight (Cruickshank v VAW Motorcast Ltd

[2002] IRLR 24

[36]Discrimination arising from disability: section 15 of the 2010 Act states:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

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

[37]Breach of duty to make reasonable adjustments: section 20 and schedule 8(20) of the 2010 Act make provisions with regard to the duty to make adjustments. If an employer applies a provision, criterion or practice which puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, that employer has a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. The duty does not arise if the respondent did not know, and could not reasonably be expected to know, that the claimant was disabled and was likely to be placed at that disadvantage (Wilcox v Birmingham CAB Services Ltd UK/

EAT/0293/10

[38]Knowledge of disability: this is an issue for the Tribunal to determine based on its findings of fact and must be answered by considering the individual decision maker(s) not the organisation as a whole and cannot be imputed from an occupational health department; equally the respondent cannot just rely on medical opinion (Gallop v Newport City Council

[2013] EWCA Civ 1583

[2016] IRLR 395

). The EAT found, following the Court of Appeal's guidance in CLFIS (UK) Limited v Reynolds (

[2015] ICR 1010

), that knowledge cannot be implied, even where the fact of disability is already known within the organisation. The focus of the Tribunal's enquiry ought properly to be on the thought-processes and motivation of the decisionmaker. The test is did the decision-maker know of the disability and were they influenced by it?

[39]Direct race discrimination: section 13 of the 2010 Act provides that a person discriminates against another if, because of a protected characteristic, he treats that person less favourably than he treats or would treat others. Race is a protected characteristic.

[40]To answer whether treatment was “because of” the protected characteristic requires the Tribunal to consider the reason why the claimant was treated as he was. The Equality and Human Rights Commission Code of Practice states that whilst the protected characteristic needs to be a cause of the less favourable treatment it does not need to be the only or even the main cause.

[41]It is a matter for the Tribunal to determine what amounts to less favourable treatment to be interpreted in a common-sense way and based on what a reasonable person might find to be detrimental.

[42]If the claimant has raised a complaint against a third party, failure to determine that complaint properly is capable of amounting to less favourable treatment. The employer will not be guilty of direct discrimination, however, if the inadequate response was unrelated to the relevant protected characteristic (Coyne v The Home Office

[2000] ICR 1443

[43]Section 23 of the 2010 Act refers to comparators and says that there must be no material difference between the circumstances relating to each case. The relevant “circumstances” are those factors which the employer has taken into account when treating the claimant as it did with the exception of the protected characteristic (Shamoon v Chief Constable RUC

[2003] IRLR 285

[44]Burden of proof: the position on burden of proof in claims of discrimination is set out at section 136 of the 2010 Act. In summary, if there are facts from which the Tribunal could decide, in the absence of any other explanation, that the claimant has been discriminated against then the Tribunal must find that that discrimination has happened unless the respondent shows the contrary. It is generally recognised however that it is unusual for there to be clear evidence of discrimination and that the Tribunal should expect to consider matters in accordance with these provisions and the guidance set out in Igen v Wong and others (

[2005] IRLR 258

) confirmed by the Court of Appeal in Madarassy v Nomura International plc (

[2007] IRLR 246

). In the latter case it was also confirmed, albeit when applying the pre-2010 Act wording, that a simple difference in protected characteristic and a difference in treatment is not enough in itself to shift the burden of proof; something more is needed (although that something more need not be a great deal – Deman v CEHR

[2010] EWCA Civ 1279

). It is important in assessing these matters that the totality of the evidence is considered.

[45]Time limits: any complaint of discrimination may not be brought after the end of the period of three months starting with the date of the act complained of or such other period as the Tribunal thinks just and equitable (section 123 of the 2010 Act). Where the alleged discriminatory act is one of the failure to act, sections 123(3) & (4) provide that the failure occurs when the person in question decided on it and in the absence of evidence to the contrary, that failure is taken to occur when that person does something inconsistent with doing the act, or otherwise on expiry of the period in which they might reasonably have been expected to do it.

[46]It is clear that the burden is on the claimant to convince the Tribunal that the discretion should be exercised (Robertson v Bexley Community Centre

[2003] IRLR 434

and O’Brien v Department for Constitutional Affairs

[2009] IRLR 294

CA) and that the Tribunal has a very wide discretion in determining whether to do so. It is entitled to consider anything that it considers relevant subject however to the principle that time limits are exercised strictly in employment cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so.

[47]The Court of Appeal has also confirmed that when considering this discretion, Tribunals should adopt as a checklist the factors mentioned at section 33 of the Limitation Act 1980 (Chief Constable of Lincolnshire Police v Caston (

[2010] IRLR 327

). Namely the balance of prejudice together with all the circumstances of the case including:a. the length of and reasons for the delay;

b. the extent to which the cogency of the evidence is likely to be affected by the delay;

c. the extent to which the party sued had cooperated with any requests for information;

d. the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action; and

e. the steps taken by the claimant to obtain professional advice once he knew of the possibility of taking action.

[48]Conduct extending over a period is to be treated as done at the end of that period (section 123(3)(a)). (This is distinct from an act with continuing consequences where time runs from the date of the act as above.) Where an employer operates a discriminatory regime, rule, practice or principle then that will amount to an act extending over a period (Barclays Bank plc v Kapur (1991 ICR 208 HL). When deciding if there is such conduct, however, Hendricks v Commissioner of Police for the Metropolis

[2002] EWCA Civ 1686

confirms that the correct focus is on the substance of the complaint that the respondent is responsible for the state of affairs leading to the alleged discrimination rather than too literal approach in analysing whether a regime, rule, practice or principle exists on specific facts. This approach has been confirmed in the context of the 2010 Act in Rodrigues v Cooperative Group (

UKEATS/0022/12/BI

Findings of Fact

[49]Having assessed all the evidence, both oral and written, we find on the balance of probabilities the following to be the relevant facts.

[50]The claimant was born in Afghanistan but moved as a young child to Iran. He left Iran in the 1990s, moved to the UK as an unaccompanied child refugee seeking asylum, completed his education here and is now a British naturalised citizen. In his witness statement for these proceedings he states that he identifies himself as British. There are other occasions, however, where he has in writing stated that he is Afghan.

[51]The claimant is a biomedical scientist. He commenced employment with the respondent, a large teaching hospital, in March 2015 as a biomedicine support worker and then in August 2015 was promoted to advanced biomedicine support worker reporting to Ms Harper in the immunology department. As his line manager Ms Harper was responsible for managing the claimant’s sickness record.

[52]In 2016/2017 the claimant faced particularly difficult and distressing circumstances regarding the legal status of his 14 year old nephew who was then in Germany and his 16 year old sister who had travelled to Hungary. They both required significant attention and action on the part of the claimant including travelling to both Germany and Hungary on occasion.

[53]The respondent operates a series of internal policies of the type one expects from a large well organised employer of this nature. These include, grievance, sick absence, disciplinary and social media.

[54]The claimant’s health – was he disabled?

[55]The claimant was absent from work on a period of annual leave in July 2016. He did not return to work as expected on 1 August 2016. Apart from a 4- day period in December 2016, the claimant did not return to work prior to his dismissal in March 2017. Throughout that period he provided fit notes to the respondent. Those fit notes stated that the reason for his absence was stress related at home and/or at work.

[56]The claimant was referred to the respondent’s occupational health (OH) service and the following reports were prepared as result and sent to Ms Harper:a. on 16 September 2016 stating that the claimant was unfit for work due to home and work stresses and that he was attending private counselling;

b. on 20 October 2016 stating that the claimant was medically unfit for work and that he would not work until resolution of his family situation which was due in December and that he would return to work thereafter. Further that he was: ‘...experiencing stressors in his personal life that are overwhelming his coping mechanisms. He is under pressure from his family to resolve an outstanding family issue, which he reports is consuming his time. He reports symptoms which are affecting his mood however this has not progressed to a medical condition at present… At present he feels he is unable to maintain working and seeking assistance with his personal situation.’

c. on 12 January 2017 stating that he was unfit for work. That the stressors in his personal life had not resolved and were: ‘…increasingly impacting on his well-being. He describes symptoms consistent with a stress reaction but in my medical opinion has not progressed to a mental health condition. His coping mechanisms are overwhelmed and his stress is spilling into the workplace, and he reports it is increasingly hard to him to be at work…whilst he has ongoing stressors in his personal life, he will struggle to cope with any additional pressures including employment….[he] is medically fit to attend an investigation hearing…He is under considerable stress and …[should be allowed] suitable breaks if required.’

[57]The claimant was also assessed independently by Dr S Rastogi, consultant psychiatrist, for the purposes of a claim under an income protection policy. This assessment took place on 16 January 2017 and Dr Rastogi’s resulting report was dated 2 February 2017. This report was provided by the claimant to the respondent by the time his appeal against dismissal and grievance were being heard but was not provided to them prior to the decision to dismiss.

[58]On 17 February 2017 Dr Awad of OH informed the respondent’s HR department that she had received ‘further medical information’ from the claimant which needed to be evaluated and would result in a current OH opinion. She did not state exactly what that further medical information was but it seems more likely than not to have been Dr Rastogi’s report or at least a reference to or extracts from it.

[59]On 23 February 2017 Dr Awad emailed the claimant stating that she had considered the objective evidence available and that he was medically fit to attend a disciplinary hearing although he was stressed and should be given support.

[60]On 24 February 2017 the claimant emailed HR copying OH, Mr Lynch and Mr Whitaker. He said: ‘… Please confirm if you wish to have a written letter from the medical professional who is actually treating me to advise me that I am unfit to attend any stressful events, inclusive but not limited to a proposed disciplinary hearing… I would be happy to receive the confirmation that you cancelled the proposed meeting…’

[61]Ms Gillis of HR replied on 28 February 2017 stating they were waiting to hear back from Dr Awad but ‘as it stands we have no plans to suspend the disciplinary hearing.’

[62]On 1 March 2017 the claimant emailed Ms Gillis again stating that he had medical advice against attending the disciplinary meeting because he was medically unfit and it would put his health at risk. He said that he believed it would make the process unfair to hold the disciplinary hearing while he was unable to attend as he would not be able to present witnesses and question the people who falsely accused him.

[63]Also on 1 March 2017 Dr Awad emailed the respondent’s HR team confirming that she did not have consent from the claimant to release a report to respond to their queries although she was happy to invite him for a further OH appointment on 13 March.

[64]Mr Laughlin emailed the claimant later on 1 March 2017 informing him that he had made the decision that the disciplinary hearing would go ahead on 3 March 2017 as planned, based on the OH advice dated 12 January 2017, and that a decision would be made in his absence should he not attend. He suggested that the claimant may wish to give permission to release the report/information from Dr Awad before that meeting. The claimant replied on 2 March 2017 that he disagreed with that decision, repeated that he was being treated by a medical professional who recommended he did not attend and that if they went ahead with the meeting they would be acting against the respondent’s policy. He also stated that he would have to nominate somebody to attend on his behalf and cross-examine his accusers (not a trust employee). The claimant was here referring to Ms Berki as his intended representative.

[65]Mr Laughlin sought advice from HR stating that in his view the hearing should still go ahead. HR replied suggesting a response confirming that the meeting would go ahead and that if the claimant did not attend written submissions would be accepted, that he had the right of representation by a trade union representative, professional organisation or work colleague employed by the trust but that the representative did not have the right to answer questions on his behalf. It is not clear if a letter was sent in these terms to the claimant but it seems more likely than not that it was as the claimant did not in fact send anyone to the meeting on his behalf.

[66]As the claimant did not consent to the release of further medical information, although Mr Laughlin knew that the claimant was saying it existed, it had not been provided to him at the time of the disciplinary meeting. Further, if it had been provided to OH they had not been given permission to release a report based upon it.

[67]In any event the contents of Dr Rastogi’s report are very helpful in assessing the condition of the claimant at that time. In particular his report shows that:a. the claimant had a regular routine whilst working part time that included all normal daily activities;

b. he showed no objective evidence of clinical depression or anxiety state;

c. he had suffered from an adjustment disorder with mixed anxiety and depressive reaction of moderate intensity caused by stress in relation to his personal life;

d. he had made some improvement in the last few weeks but continued to suffer from symptoms of the condition in mild to moderate intensity;

e. he was likely to benefit from a small dose of antidepressant medicine;

f. Dr Rastogi recommended his return to work commencing with 12 hours per week after receipt of 6 sessions of psychological therapy gradually increasing by 4 hours per week every 2-3 weeks to full time work depending on progress;

g. his social and recreational functioning had been significantly affected for several months but were likely to improve gradually with those recommendations; and

h. his prognosis both in short and long-term seemed good provided he followed the recommendations but he was likely to suffer from a similar episode if faced with stress of even moderate severity in his personal life.

[68]Accordingly this report suggests that for a period from 1 August 2016 through to at least six weeks from the date of examination (circa end February 2017) the claimant undoubtedly had a mental impairment of stress-related issues albeit that they did not amount to a clinical state. Also, that there had been a period where his social and recreational functioning had been significantly affected but this had improved in the recent past and was likely to continue to improve if the recommendations were followed. There was also however a likelihood of occurrence in the event of further personal issues. We have also had regard to the claimant’s disability impact statement. Although very large parts of that statement in fact did not describe the impact of the alleged disability on his day-to-day activities the matters described at paragraphs 10, 11, 31, 32 and 36 do describe an impact that is more than minor or trivial.

[69]Our finding, taking all of these matters and information into account, is that throughout the period of the disciplinary investigation and at the time of the decision to dismiss, the claimant was disabled. He was suffering from a mental impairment (stress/anxiety) that affected his ability to carry out normal day to day activities. That effect was substantial and long term (it had started by 1 August 2016 and, given the nature of the claimant’s relatives’ predicaments, was likely to recur from end February 2017 for at least long enough to exceed 12 months). We also conclude however that none of the relevant decision makers for the respondent, in particular Mr Loughlin, had the necessary knowledge (actual or constructive) of this in order for the claimant to be able to bring a disability discrimination claim against the respondent. In particular we find that although Ms Harper knew in general terms that the claimant had an issue regarding his sister’s wellbeing and status, she did not know the detail and crucially did not know what impact the situation was having on the claimant other than a general, obvious inference that it would be very difficult for him.

[70]The claimant has also alleged that he was suffering from a disability due to his thyroid condition. It is clear that he did not receive a diagnosis of this condition until 27 October 2017 and although it is unclear when this condition commenced he had blood tests related to it on 9 March 2017. It seems likely that any symptoms he was suffering as a result of his thyroid issues in March 2017 were very similar or could be very similar to those he was suffering as a result of the stress and there could be considerable overlap. However, at the time of the claimant’s dismissal although the thyroid condition was under investigation it could not have been within the knowledge of the respondent. We make this finding despite the claimant’s very surprising and serious allegation that in fact the respondent would have known about this disability because the blood tests that he was having would have been processed by the relevant laboratory at the respondent’s premises. We categorically reject that suggestion. There is absolutely no basis upon which the claimant makes it.

[71]Christmas party 2016

[72]A work Christmas party was held on the respondent’s premises on 8 December 2016 which the claimant attended together with a very large number of others (perhaps 200). The claimant’s alleged behaviour at this party led to the disciplinary process described below. During the party the claimant tried to discuss his working hours with Ms Harper but she told him that it was inappropriate and that they could discuss it the following day. Ms Harper’s evidence, which we accept, was that she felt intimidated by the claimant during this conversation. Accordingly, when she next met with the claimant as described below, she asked Mr Lynch to accompany her.

[73]The claimant failed to attend work on 9 December 2016 as expected between 8.30 and 9am and did not notify Ms Harper until 16.19 that he was unwell and unable to attend. Under the relevant policy, all absent employees must speak with their manager preferably before the start of their work shift but in any event within one hour of the normal starting time.

[74]Ms Harper, together with Mr Lynch, met the claimant on 12 December 2016 (the next working day) to discuss his failure to attend work and report. During that meeting the claimant asked to be referred to OH for a review of his working hours. He said he would prefer two longer working days of 8 hours reducing his total hours to 16 per week.

[75]That referral was made and an OH report was prepared on 12 January 2017 confirming that the claimant was unfit for work but would be medically fit to undertake an investigation hearing.

[76]The claimant had in fact been attending work from 12 December 2016 and accordingly when Ms Harper met him to discuss the OH report on 13 January 2017, she advised him that he should not be at work as he had been stated to be unfit for work. The claimant was thereafter signed medically unfit for work.

[77]Disciplinary process

[78]On 14 December 2016 Mr Free emailed Mr Lynch and Ms Noble. That email in full reads as follows: ‘Subject: Re: Racial abuse at Xmas party Are you aware of an incident involving ?Aman from immunology (an Afghan chappie) at the Christmas party- apparently he was acting very inappropriately towards the female Portuguese staff and racially abused Rui Marcus [Oppenheim] has the full details and calmed the chap down but I feel this needs addressing as the matter is abhorrent and our staff should not have to feel abused about work Matt’

[79]Mr Free’s explanation of this email, which we accept, was that once the matter was brought to his attention he felt he had a responsibility to bring it to the attention of his manager. Further, that he was not entirely sure of the identity of the person against whom the allegation was made which is why he put a question mark next to the name and also described him as ‘an Afghan chappie’ purely as a means of aiding identification. The language used in this email was informal but was not impolite. We accept Mr Free’s evidence that he uses the words ‘chap’ and ‘chappie’ commonly as a way of describing a man, indeed he used ‘chap’ later in the email.

[80]At Ms Noble’s request Mr Free emailed her the following day confirming that what he had heard was from staff gossip in the laboratory and that a Mr Pugsley had specifically brought it to his attention. He gave slightly more detail about what he had been told including that he had been told that ‘Rui’ (Mr Leite) had been specifically targeted by the member of staff concerned.

[81]Ms Noble also requested initial statements from Mr Leite and Mr Oppenheim both of whom replied on 15 December 2016.

[82]Mr Leite’s statement included: ‘When I was there [the locker room] I was speaking with Marcus Oppenheimer about a disagreement that was going on during the final part of the Christmas party between some of the Portuguese employees (one of the incidents involved Ricardo Guerreiro) and an individual which I haven’t met before that was identified as someone named Aman that works on the immunology laboratory.… As he [the claimant] got on the locker room Marcus was telling him that he should take it easy because everyone was having a good time and he was messing around with people on the Christmas party. His answer was “These Portuguese people come here but they should go and find jobs on their country”. As he mentioned “Portuguese people” I stared at him and asked me if I was Portuguese to which I answered promptly “As a matter of fact, I am”. And he started saying that we don’t have the qualifications to work here and some more random stuff to which I said to him that he should take it easy… I started to leave the locker room. He came to the corridor shouting which made me upset so I turned around and said to him that maybe I should come in the next day and have a word with Sean [Lynch] about him. That made him furious and he started acting aggressively and provocatively which made me leave the corridor to avoid any contact with him and therefore unwanted issues. Fortunately when he got mad, Marcus was around and held him which made me feel a lot more safe to leave the place. On the day after Marcus texted me saying that he had to stay with Aman for one more hour to calm him down. He said that after a long talk Aman showed signs of regret and would eventually apologise me for the inappropriate behaviour…’

[83]Mr Oppenheim’s statement included: ‘Towards the end of the party I noticed Amaan appeared to have an altercation with some of the Portuguese staff. I didn’t hear what was said during this altercation, but Marina took him to one side to discuss the event. I was returning to the locker room to collect my jacket when I bumped into Amaan again in ‘the street’ corridor. I walked with him and we caught up with Rui and Hana in the locker room. Amaan became very aggressive. He was shouting “these f***ing portuguese with their fake qualifications”. He was generising at first before directing his aggression to Rui. He repeatedly accused the portuguese staff of holding ‘fake qualifications’ and saying they should all “f*** off back to Portugal”. I was trying to calm him down… Although he didn’t appear to touch Rui physically, he was very close and trying to intimidate him by getting ‘in his face’.… I spent a further hour with Amaan in the locker room trying to calm him down. He eventually got quite emotional and told me his sister had just been refused asylum here in the UK. This made him angry at the portuguese again. He then started saying he hates muslims and loves donald trump??!! He eventually sobered up and calmed down.…’

[84]Mr Lynch and Ms Noble reviewed these statements and concluded that a disciplinary investigation was appropriate. Mr Whittaker was appointed to carry out that investigation.

[85]On 3 January 2017 Mr Whittaker wrote to the claimant informing him that he had been nominated to investigate the allegation that the claimant had behaved inappropriately to colleagues, including racially targeted comments, at the staff Christmas party and staff locker room on Thursday 8 December 2016 and that he was required to attend an investigatory meeting on 12 January 2017. The claimant was advised that the purpose of the meeting was to discuss the allegation and to assist in obtaining as much relevant information as possible and that he would be given the opportunity to respond to the allegation before a decision was made about any further action. He was advised of his right to be accompanied by a trade union or work colleague and that he had the opportunity to provide a written statement in response. A copy of the respondent’s disciplinary procedure was enclosed.

[86]On 11 January 2017 the claimant emailed Mr Whittaker stating that he had an appointment with OH and that due to health reasons he was unfit to attend a meeting the following day. On 12 January 2017 Dr Awad from OH emailed a medical report on the claimant to Ms Harper further to his appointment the previous day.

[87]The contents of this report are set out more fully above in relation to the claimant’s medical position, but the relevant conclusion was that the claimant was medically unfit for work but fit to attend the investigation hearing and that he was aware he may bring representation to assist him. The doctor stated that he was under considerable stress and asked the panel to take this into consideration and allow him suitable breaks if required. He had been discharged from the clinic. In his evidence the claimant alleged that during his appointment Dr Awad had said management had been calling her and putting her under pressure to say that he was fit to attend the investigatory meeting. This allegation had not previously been made and we had no evidence before us on this point from Dr Awad. We do find it unlikely however that the claimant’s evidence is accurate.

[88]In the meantime, Mr Whittaker had conducted investigatory meetings with:a. Mr Leite on 29 December 2016;

b. Mr Sousa, Ms Vieria and Mr Free on 3 January 2017;

c. Mr Pugsley on 4 January 2017;

d. Ms Telha on 5 January 2017;

e. Mr Guerreiro on 6 January 2017; and

f. Ms Blazkova and Mr Oppenheim on 11 January 2017.

[89]The claimant attended his rescheduled investigation meeting with Mr Whittaker on 18 January 2017. Notes of this meeting were prepared and emailed to the claimant on 20 January 2017. He was asked to review them, make any corrections and sign them. The claimant did not return the notes, corrected or otherwise. Nor did he comment on their accuracy at the time. In his evidence to us he has said they are inaccurate in certain respects in that they are incomplete (e.g. he says he showed certain text messages to Mr Whittaker and also that he referred to his consultation with Dr Rastogi and that he had been diagnosed with a serious mental health condition, both of which Mr Whittaker denies). The claimant suggested in his evidence that he could not amend the notes because they were sent to him as a pdf document but it remains the case that at the time he did not indicate that he believed the notes to be inaccurate. We find that the notes are accurate although clearly not verbatim.

[90]At the investigation meeting the claimant was accompanied by Ms Emery. The allegations were put to him which he denied. In particular he said that:a. he arrived at the same time as everyone else with a few friends, that he recalled no incident and had no argument with Mr Guerreiro, he did not know who he was;

b. he was with Mr Oduaram, that they drank beer, his colleagues joined them and they had dinner;

c. the atmosphere was good, ‘like a party’;

d. the allegation of physical contact on the dance floor was ‘completely baseless’;

e. it was completely untrue that he had made comments including ‘you Portuguese fuck off’ and ‘you are taking our jobs’ in the vicinity of the dancefloor;

f. when he left the party he walked with the tall gentleman from microbiology (later identified as Mr Oppenheim), they were chatting, he took stuff from the locker and went home;

g. if they were the same people, disgraceful allegations had been made about him the previous New Year’s Eve. He described obtaining a table at a friend’s Afghan restaurant for around 10 people as a favour for a colleague called George. On that night the people were rude and making fun of the culture and Islam as they were not allowed to drink alcohol. He said that he believed those people may be the ones who had raised the complaint now. When asked if he knew who any of the people at the restaurant were he did not know but he could give descriptions of two people at the restaurant, one was short and one tall and they both had beards. He was asked if any of the 10 people he referred to were at the Christmas party this year and he said maybe but he did not know their names;

h. the claims about the Christmas party were baseless and completely untrue. When asked whether he had an opinion regarding Portuguese staff working for the trust he said he had no opinion and that ‘I’m Afghan and I was not raised in the UK.’;

i. he could not remember if he asked anyone to dance but if someone refused he would ‘sit down and have a beer’;

j. the allegations regarding the exchange at the end of the evening in the locker room were completely inaccurate and unacceptable;

k. when asked if he had drunk alcohol at the party he said ‘yes I had maybe one or 2 pints of beer over the evening, nothing else.’ And that they had ‘not that much effect’. He confirmed that he felt well and in control while he was at the party;

l. he was not aware of any racial tensions in the department and that he was ‘happy with the way things are’.

[91]The claimant was informed of next steps and that whilst he was on sick leave there was an expectation that he would be available for meetings with management. He said that he had a flight booked for 24 January and that it was not a return ticket.

[92]Mr Whittaker completed an investigatory disciplinary report on 30 January 2017. He concluded that a number of statements indicated that on 8 December 2016 the claimant displayed inappropriate behaviour towards work colleagues including racially abusive language targeted particularly at the Portuguese staff in clinical blood sciences. Also that he made racially targeted comments to Mr Leite in the locker room immediately after the party. Mr Whittaker set out in detail the evidence obtained from the various witnesses that he said supported each of those findings. He also recorded the claimant’s case that the alleged incidents had not happened and that the allegations had been fabricated and that this may have been related to a dinner almost 12 months previously but he was unable to provide any evidence to corroborate that or to link any of the people present at that dinner with those at the Christmas party. Mr Whittaker also recorded in his report that the claimant was experiencing and dealing with personal issues that were directly affecting his attendance at work and sickness absence record.

[93]Prior to the conclusion of that report Ms Noble emailed Ms Harper on 18 January 2017 in which she stated that a disciplinary hearing ‘will’ be scheduled with Mr Laughlin as chair. Ms Noble’s evidence was that in hindsight what she should have said was a disciplinary hearing ‘may’ be scheduled and that she was just checking at that stage if people would be available if they were needed. We conclude that at least within HR there was already a conclusion that a disciplinary hearing would be needed but this did not fundamentally undermine the fairness of the whole procedure as it had no bearing on the end result which was entirely determined by the relevant decision makers.

[94]Mr Laughlin was appointed as the disciplinary manager. He considered the investigatory report and concluded that it was appropriate to proceed to the formal disciplinary stage. He wrote to the claimant on 13 February 2017 advising him that he was required to attend a hearing on 3 March 2017 to consider the allegation that he had behaved inappropriately to colleagues at the Christmas party and this included racially targeted comments. Copies of the investigation reports were enclosed. The claimant was also advised that if he was aware of any witnesses who had not been interviewed and who could provide information pertinent to the case he should contact Mr Whittaker as soon as possible. Alternatively if he intended to call any witnesses he should provide their names to HR and that he was responsible for arranging their attendance. The claimant was also advised of the witnesses that the investigating officer intended to call at the hearing.

[95]The claimant was warned that the hearing may result in disciplinary action including dismissal and he was advised of his right to be accompanied.

[96]There was then the exchange of correspondence between the claimant and the respondent as to whether it was appropriate for the hearing to go ahead as described above in the section on disability. The decision was made by Mr Laughlin, having taken advice from HR, that it would go ahead in the claimant’s absence.

[97]Mr Laughlin emailed the claimant later that day informing him that the disciplinary hearing would proceed based on the OH advice dated 12 January 2017 and that if he did not attend, a decision would be made in his absence.

[98]At the disciplinary hearing it was checked that the claimant was not in fact present and noted that no one had attended on his behalf. Mr Whittaker presented the findings of his investigation. The following witnesses attended the hearing, gave their evidence, which all supported the allegations, and were asked questions as appropriate:a. Mr Guerreiro;

b. Ms Telha;

c. Mr Sousa;

d. Mr Leite; and

e. Mr Oppenheim.

[99]Mr Laughlin adjourned the hearing for 30 minutes to consider the evidence. He resumed and recorded his conclusion that there was clear evidence that an altercation had occurred on 8 December 2016 in the University bar and within the locker room. That the conduct constituted gross misconduct and the appropriate outcome was to summarily dismiss the claimant.

[100]Mr Laughlin wrote to the claimant on 6 March 2017 informing him of the outcome of the disciplinary hearing and set out his rationale first of the decision to hold a hearing in his absence and then his conclusions on the allegations together with a description of the process adopted during the hearing. The claimant was informed of his right to appeal against the decision.

[101]The claimant submitted his appeal against dismissal by email also on 6 March 2017. He maintained his objection to the hearing being heard in his absence together with his position that there was no credible evidence against him. He subsequently sent a number of emails together with supporting documents in relation to his appeal. On 13 March 2017 Ms Liu of HR advised him (and repeated on 29 March 2017) that he should submit a single bundle of documents in respect of his dismissal appeal 7 days before the date of the appeal. She also advised him that as he had raised other issues under the grievance procedure (described below) they would be dealt with separately.

[102]On 21 June 2017 the claimant was invited to a dismissal appeal hearing on 4 July 2017 and was requested to submit his documentation in one bundle by 23 June 2017. He was informed of his right to be represented and the identity of the panel to be chaired by Ms McHugh.

[103]The claimant replied the following day advising that he was in India and unable to send any documents by post but that he wished to rely upon the same bundle that he had submitted for his grievance hearings and an attached 8-page statement of appeal notes and photographs from the Christmas party.

[104]On 27 June 2017 the claimant was sent a copy appeal management statement of case together with supporting documents which the management would be presenting at the appeal hearing.

[105]The appeal hearing took place as planned on 4 July 2017. The claimant was accompanied by Ms Berki (an exception was made to the respondent’s usual policy of companions only being a work colleague or a union representative due to the health of the claimant). In summary the claimant’s appeal was based on being too sick to attend the Christmas party or the disciplinary hearing, that the witness accounts were fabricated and not all relevant witnesses were questioned and that there had been no mention of the apology he had offered to give to Mr Lynch. The appeal panel fully considered the claimant’s submissions together with all relevant documents. Ms McHugh concluded, however, that the claimant had behaved in the manner described by the witnesses at the Christmas party (including racially targeted comments) and that everyone who needed to be interviewed had been. His appeal was unsuccessful and he was informed of this in a detailed letter from Ms McHugh dated 17 July 2017.

[106]In that outcome letter it stated that the panel agreed with the claimant that Mr Free’s description of him as the ‘Afghan chappie’ was inappropriate however that as it was being investigated separately as part of the grievance, it was outside the appeal process. In cross-examination, Ms McHugh accepted that she had said the comment was probably inappropriate but that at that time she had not seen the full context. She had since seen the email in question and her view now, having heard Mr Free’s evidence, was that in context she may have similarly used someone’s origins as a means of identification.

[107]Grievance process

[108]The claimant raised a number of grievances during the course of the events described above as follows:a. on 24 February 2017 against Ms Harper in respect of her handling of his sick leave in December 2016;

b. on 24 February 2017 against Mr Lynch in respect of racial abuse outside a night club in Wimbledon and he also referred to his complaints regarding Ms Harper in December 2016;

c. on 7 March 2017 against Mr Oppenheim in respect of homophobic and offensive social media posts; and

d. on 8 March 2017 against Mr Free further to the ‘Afghan chappie’ comment.

[109]As stated above, Ms Liu advised the claimant on 13 March 2017 that the issues he had raised under the grievance procedure were separate to his disciplinary appeal and correspondence should be sent separately. Then on 29 March 2017 that he should submit one single bundle in respect of his grievances. The claimant submitted such a bundle on 29 March 2017 comprising 28 appendices. This was acknowledged by HR on 18 April 2017 and noted that the claimant had requested a hearing after May 2017.

[110]On 23 May 2017 the claimant was invited by Mr Reeves to attend a stage two grievance hearing on 23 June 2017. He was informed who would be attending as witnesses from the respondent and advised that if he intended to call any witnesses he should provide their names and relevance to HR by 9 June 2017.

[111]On 25 May 2017 the claimant requested a postponement of the hearing after speaking to his witnesses and representative. Ms Liu replied with a new date of 29 June 2017. Confirmation of that date was also sent on 2 June 2017 and the claimant was reminded of his responsibility to make arrangements for attendance of his witnesses and he was asked to confirm the names of those that he intended to call.

[112]In the meantime written responses to the complaints made by the claimant were produced by Mr Oppenheim, Mr Lynch, Mr Free and Ms Harper. They all gave an account of their behaviours and denied any wrongdoing or intention to offend.

[113]At the hearing on 29 June 2017 the claimant attended with Ms Berki. Each of the managers about whom the claimant had complained also attended to answer questions from both Mr Reeves and the claimant/Ms Berki with the exception of Mr Free who was on leave. In his evidence Mr Reeves described the hearing as extremely difficult and probably the worst he had ever experienced. He particularly referred to Ms Berki’s approach to witnesses during the hearing as being inappropriate and that this led to a very heated exchange between her and Mr Oppenheim resulting in shouting, banging of the table and someone saying ‘shut up’. Mr Reeves called one adjournment to allow tempers to calm and on resumption he set ground rules for the continuation of the meeting and warned that if the bad behaviour continued he would stop the meeting and base his decision on what he had heard so far. Some time later Mr Reeves brought it to a close when, in his view, Ms Berki became aggressive.

[114]The hearing was very detailed and took much longer than the scheduled 4 hours. On 29 June 2017 they dealt with the complaints regarding Ms Harper and Mr Lynch then agreed to adjourn to 5 July 2017 to deal with the complaint against Mr Oppenheim. It was made clear that neither Ms Harper or Mr Lynch would attend the next hearing.

[115]At the outset of the first day of the hearing, the claimant was asked if he planned to call any witnesses. The notes show that he replied that they were at work and not attending but that ‘I can ask them to attend at the next stage of the process’. It is not clear what was meant by this as, at that point, it would not have been known that the matter would stretch into a second day. On that second day the claimant asked for his witness in respect of his grievance against Mr Lynch, Mr Popal (who is non-white British), to attend and give his evidence. Mr Reeves refused saying that they had dealt with the Lynch matter at the previous hearing and Mr Popal should have attended then. He accepted before us that he could at that point have adjourned again so that Mr Lynch could reattend but he made a judgment call not to, given the extensive time that had already spent on the matter and that the claimant could have arranged for his witness to be present at the previous hearing. Mr Reeves’s evidence, which we accept, was that race played no part in this judgment call.

[116]Mr Reeves wrote to the claimant on 10 July with a detailed decision on the outcome of the grievances none of which were upheld. In particular he concluded as follows:a. In respect of Mr Lynch, that his explanation of why he had said in 2015 that he did not want the claimant near his young daughter, and that this was said in response to degrading and offensive words that the claimant had used, was reasonable. Further when he received the email from Mr Free on 14 December 2016, he regarded it as an innocent description of a person.

b. In respect of Ms Harper, that the claimant had been managed in line with the respondent’s sick absence management policy and procedure and that there was no evidence to suggest that he had been forced to return to work against his will.

c. In respect of Mr Oppenheim, that he had not made false allegations regarding the Christmas party and that he had not made any discriminatory or derogatory posts on social media.

[117]The grievance outcome letter did not expressly deal with the grievance against Mr Free in relation to his email of 14 December 2016 but it was commented on as above in the context of the complaints against Mr Oppenheim and the conclusion that there was nothing offensive in the Free email was implied. What was also implied was that Mr Reeves saw no reason to recommend any disciplinary action be taken against any of the individuals about whom the claimant had complained.

[118]The claimant was advised of his right to appeal the grievance outcome but no appeal was received.

[119]In his evidence Mr Reeves also confirmed his view that in respect of the Free email, taking the circumstances and context into account and that emails even amongst professionals are often colloquial, the purpose of the email was to identify an individual. In respect of Mr Oppenheim, that in his opinion none of the posts made by him on Facebook, within the context of his friendship group, breached the requirements of the respondent’s social media policy. He did not consider that Mr Oppenheim had been distributing sexually explicit material or any of the other categories of prohibited conduct. He accepted that the posts could potentially bring the respondent into disrepute in 2015 but this was a judgement call. He said that he told Ms Oppenheim the world has changed and he needs to be aware that anything put on the internet is there forever and could be used against him. He was not of the view that Mr Oppenheim’s actions warranted disciplinary action. In respect of Mr Lynch, Mr Reeves found it extremely difficult to come to a conclusion as to exactly what had been said between him and the claimant two years before and whilst there was evidence available of complaints about Mr Lynch, there was not enough and further investigation was not warranted.

Conclusions

[120]Disability discrimination: Given our findings of fact that although the claimant was disabled at the relevant times the respondent did not have actual or constructive knowledge of that, again at the relevant times, it follows that the claims of disability discrimination fail and are dismissed.

[121]Direct race discrimination: Where the allegations of race discrimination are prima facie out of time, we consider that in all the circumstances (particularly the claimant’s state of health, the very distressing family matters to which he was attending and that the matters about which he complains were subject to a live grievance from an early stage) it is just and equitable to extend time to 30 June 2017 when the claim was received by the Tribunal.

[122]Taking each of the allegations we conclude as follows.

[123]The email sent by Mr Free on 14 December 2016 referring to the claimant as ‘an Afghan chappie’ did not amount to direct race discrimination. Although we find that the claimant has proved facts from which we could decide that he has been discriminated against (i.e. referring to him by reference to his perceived national origins) the respondent has provided a more than adequate explanation. Namely, that Mr Free did not know the claimant and he used the expression ‘Afghan chappie’ neutrally and simply as a means of identifying the relevant person. We specifically find that ‘chappie’ is not a derogatory term as was strongly argued by the claimant. In common parlance ‘chap’ and ‘chappie’ are interchangeable, neutral and informal words that do not signify lesser social status. They are colloquial and carry no negative connotations.

[124]Had Mr Free known that the claimant identified as British and did not like to be referred to as Afghan and then used ‘Afghan chappie’ to describe him, we may have come to a different conclusion but that was not the situation. Further, although the claimant during the Hearing told us that he identified as British and not as Afghan, we note that there were examples in the contemporaneous documents when he did refer to himself as Afghan.

[125]Similarly, we conclude that unnamed colleagues of Mr Free referring to the claimant by his race and alleged national origin as Mr Free admitted in an email on 15 June 2017, did not amount to direct race discrimination. There was no evidence of the state of knowledge or otherwise of those unnamed colleagues of the claimant’s identity or nationality.

[126]The publication of the ‘Afghan chappie’ email in the disciplinary bundle in or about February 2017 and in the appeal process in July 2017 was not because of the claimant’s race. The email was an intrinsic part of the disciplinary process that followed from events at the Christmas party and was used accordingly and appropriately.

[127]The respondent’s failure to follow up or take disciplinary action against Mr Free because of the ‘Afghan chappie’ comment following the claimant raising a grievance about them was reasonable in all the circumstances and was not because of the claimant’s race. Mr Reeves considered both the claimant’s position and Mr Free’s statement. He concluded that there was nothing untoward about the Afghan chappie comment. The failure to take action was not because of the claimant’s race but because it was inappropriate to take disciplinary action.

[128]Similarly, the respondent’s failure to follow up or take disciplinary action against Mr Lynch because of comments made by him to the claimant outside a Wimbledon nightclub in 2015 following the claimant raising a grievance about them was not because of the claimant’s race. Again this was Mr Reeves’s implicit decision arising out of his handling of the grievance.

[129]There were aspects of this decision by Mr Reeves which gave us some concern. As pointed out by the claimant there were, potentially, two nonwhite witnesses supporting his allegation compared with one white British witness opposing it. Further, Mr Reeves could have allowed Mr Popal to give his evidence at the beginning of the second day of the grievance, but he did not. In these circumstances, the burden of proof passes to the respondent but although we acknowledge that Mr Reeves could have taken a different approach and perhaps not been so process driven, we accept his explanation for not allowing Mr Popal to give his evidence on day 2. It was a difficult and detailed grievance that took a long time to hear and by the end of day 1 Mr Reeves believed the issue concerning Wimbledon had been dealt with and he did not know that Mr Popal was present (if indeed he was, the claimant’s evidence on this not clear) and he made it clear at the end of day 1 that at day 2 he would be dealing with the issue concerning Mr Oppenheim only. It is unfortunate that the claimant did not identify earlier in the correspondence with HR, as he was requested, that there were specific witnesses (including Mr Popal) that he wanted to call. For a reason that is now not clear Mr Popal was not heard on day one (but there was no evidence suggesting he was deliberately prevented from giving his evidence). HR should have identified the issue but this failure arose out of the copious but unsatisfactory communication between the parties - not the claimant’s race.

[130]Mr Reeves’s failure to adjourn again and to recall Mr Lynch was also not because of the claimant’s race but what he saw as efficiency. He felt he had spent enough time already on the Lynch issue and was following a structured process of which claimant was aware.

[131]Finally, we find that the respondent’s failure to follow up or take disciplinary action against Mr Oppenheim because of various social media posts following the claimant raising a grievance about them was not because of the claimant’s race. The posts referred to by the claimant were in the bundle before Mr Reeves who made a judgment call that they did not warrant further action. This was a reasonable judgment call and one not made because of the claimant’s race. There was nothing express in the substance of the posts connected to work. They contained no offensive language, just relatively mild sexual innuendo and mildly homophobic content and a cartoon about President Trump. Mr Reeves found that the posts were not discriminatory or derogatory. We disagree and find that plainly they were albeit at the low end of the scale. Mr Reeves perhaps overly relied on Mr Oppenheim’s argument that his own friends were not offended. Mr Reeves could have taken a different approach and given Mr Oppenheim an informal warning but his failure to do so was not because of claimant’s race. Furthermore there was no equivalence between Mr Oppenheim’s comments (both in substance and context) and the allegations against the claimant.

[132]Unfair dismissal

[133]We find that the respondent, through Mr Laughlin and Ms McHugh, had a genuine belief in the alleged misconduct of the claimant namely his behaviour at the Christmas party and in the staff locker room on 8 December 2016, specifically that he had behaved inappropriately to colleagues, including racially targeted comments.

[134]We also find that the respondent had reasonable grounds for that belief. Although the outcome letter from Mr Laughlin to the claimant does not explain the rationale for his conclusion in detail, it is clear that he had significant evidence supporting that conclusion.

[135]In particular there were detailed statements from a number of witnesses supporting the allegations, both written and in person at the investigatory and disciplinary stages. In contrast the claimant’s case was that the alleged misconduct simply did not happen and the allegations were fabricated because of an incident on New Year’s Eve 2015. It was entirely reasonable for Mr Laughlin at dismissal stage and then Ms McHugh at appeal stage to reject the claimant’s account and conclude that the claimant had behaved in the way alleged and that the allegations had not been fabricated. There was consistent evidence from a number of people about the alleged behaviour at the party both in relation to the medical school bar area and in the locker room. The claimant’s fabrication allegation was considered at the investigatory stage and at the disciplinary hearing and referenced in the dismissal letter. Mr Laughlin did not deal with the claimant’s argument comprehensively but in the context of the contents of the investigation report and a lack of detailed evidence or allegations from the claimant despite being given the opportunity to provide the same, that approach was reasonable. Further, the complaint that led to the disciplinary process was made by Mr Free, who had heard about it from Mr Pugsley, neither of whom the claimant had alleged were at the New Year’s dinner.

[136]We also conclude that Mr Whittaker carried out a thorough investigation of the allegations well within the band of reasonableness. He interviewed all relevant witnesses and properly considered the claimant’s case. He produced a thorough and fair investigation report.

[137]Further, at all stages the respondent followed a fair and impartial process. In particular, we conclude that it was reasonable to proceed with the disciplinary hearing in the absence of the claimant given the most recent medical advice then available which said he was fit to attend. Further, he had been warned that if he did not attend a decision would be made in his absence. The claimant had every opportunity to present his case. Further the respondent relaxed its own policy to allow Ms Berki to accompany the claimant at the appeal hearing. Further, we conclude it was reasonable for the respondent to conclude the disciplinary process whilst the claimant’s grievances were pending. The disciplinary process concerned a discrete conduct matter arising out of particular events on 8 December 2016. The pending grievances had no direct impact on that.

[138]Having reasonably come to the conclusion that the claimant had behaved very inappropriately and made racist comments during the Christmas party, the conclusion to dismiss him summarily was well within the band of reasonable responses open to the respondent.

[139]Wrongful dismissal

[140]We conclude that the claimant was guilty of gross misconduct on 8 December 2016 both in respect of events during the party (in that he acted aggressively to colleagues and made offensive, racist comments) and afterwards in the locker room (when he again acted aggressively and made racist comments).

[141]We base our finding in respect of events during the party on the evidence obtained during Mr Whittaker’s investigation. In particular, that of Ms Telha (who confirmed that the claimant had used offensive, racist language and pushed Mr Guerreiro), Ms Viera who witnessed racist comments, and Mr Guerreiro who said that the claimant was drunk, aggressive and had pushed him and made offensive racist comments about the Portuguese. Mr Leite and Mr Oppenheim also both confirmed that they saw something happening during the party but were not aware of the details.

[142]As for the events afterwards we heard from Mr Oppenheim in person and also considered his and Mr Leite’s statements given at the time to Mr Whittaker. In particular, Mr Leite’s evidence set out above that the claimant acted aggressively towards him and made derogatory comments about Portuguese people. Mr Oppenheim’s statement at the time (again set out above) confirmed that the claimant had been aggressive and using offensive, racist language directed at Mr Leite. Mr Oppenheim confirmed this evidence at the Hearing.

[143]We have carefully considered but reject (for the same reasons that we have found the respondent’s rejection was reasonable) the claimant’s alternative explanation that the allegations were fabricated because of the New Year’s dinner incident. We also found the claimant’s evidence to us to be inconsistent, particularly with regard to whether he was drinking alcohol that night and whether he would have sworn.

Conclusions

[1]There is no reasonable prospect of the original decision being varied or revoked.

[2]It is not clear what the relevance is of the reference to CPR 39.2(4) as the relevant anonymity rules within the Employment Tribunal Rules of Procedure 2013 were not engaged in this matter and no reference was made to them by either party at any stage. Further, the claimant’s relatives are not mentioned by name in the Judgment.

[3]The other matters referred to in the application do not disclose any new evidence or arguments not before the Tribunal at the hearing save for first, the details now provided about the processing of the claimant’s blood tests by his GP’s surgery. That new information however could have been provided at the hearing and in any event would have made no difference to the Tribunal’s deliberations.

[4]Secondly, as to whether the actions of the claimant at the Christmas party were mitigated by his mental state, the claimant’s case was that he did nothing wrong Case Number: 2301890/2017 at the party and that the allegations were fabricated. It is not logical therefore to argue that his mental state was relevant and that was not the focus of the evidence or submissions. The Tribunal considered all the evidence before it however in concluding that he was guilty of the allegations. We did not conclude that that automatically meant dismissal was within the band of reasonable responses (as alleged in the application) but that it was well within it and that it was in fact gross misconduct.

[5]All other matters raised in the reconsideration application were all given due consideration by the Tribunal. ............................................................