Mr A Smith v Brighton & Hove City Council: 2302791/2022

EMPLOYMENT TRIBUNALS

Case No 2302791/2022

Between

Mr A SmithClaimant

Brighton & Hove City CouncilRespondent

Before

Employment Judge Taylor

In person for claimant

Mr C Ilangaratne (instructed by Counsel) for respondent

Date 8 January 2025

REASONS

[1]The Claimant was employed by the Respondent, a local authority, as an Information Systems Analyst, from 30 June 2014 and then as a Senior ICT Analyst (Information and Communication Technology) from 25 April 2016 working in the Information Governance Team. The Claimant has been continuously absent from the workplace since 10 November 2021.

[2]Early conciliation started on 3 June 2022 and ended on 14 July 2022. The claim form was presented on 18 August 2022.

[3]The Claimant represented himself and was assisted by his friend, Mr Frost. The Respondent was represented by Mr C Ilangaratne, Counsel.

[4]The Claimant gave evidence on his own behalf and did not call any other witnesses (Witness bundle 3 – 10).

[5]On behalf of the Respondent the Tribunal heard evidence from Mr Dylan Moorcraft, Human Resources Manager and Lead HR Consultant (Witness bundle 11 – 16) and Mr Dan Snowdon, Head of Engagement and Digital Innovation and a senior manager in the IT and Digital Department (IT&D) of Brighton and Hove City Council (BHCC) (Witness bundle 17 – 23).

[6]The Respondent prepared a tribunal hearing bundle, comprising 883 pages. Additional documents were provided: a list of Key Documents, Chronology of Events, and a Personnel List.

[7]The Claimant is a litigant in person. The Claimant prepared the claim form without qualified legal assistance and represented himself with assistance from Mr Seb Frost, friend. At the preliminary hearing on 23 September 2024, ground rules were agreed for the hearing process, and these were followed during the hearing.

Introduction

[8]The Claimant has dyslexia, and he has anxiety and stress. The Claimant relies on these mental impairments as disabilities for the purpose of these proceedings. The Respondent accepts the Claimant is a person with a disability, as defined, because he has these impairments.

[9]The Respondent was first made aware of the Claimant’s dyslexia on 17 May 2017, when the Claimant emailed his dyslexia report to his manager, Mr Neil McAuliffe (363- 387, 388-389), although the Respondent claims it was aware of this disability, only later in January 2018. As for the stress and anxiety an OH report dated 25 September 2019 acknowledged that the Claimant likely had a disability as defined for these mental impairments (415).

[10]During the procedural stages of these proceedings the Claimant stated that he has one or more neurodiverse conditions for which he has not yet had a formal diagnosis. Any effects of these conditions on the Claimant are not relevant to the substantive claims in this case.

[11]In addition to claims of disability discrimination, the Claimant had brought claims of ‘Equal Pay’ and ‘unlawful deduction of wages’. These claims were withdrawn before this hearing.

[12]The claim is about the Claimant’s claim that his dyslexia, anxiety and stress has caused difficulties at work, exacerbated by the change in workload that occurred in or about December 2020. He claims that following a restructuring of the IT work, the Respondent failed to provide the support and auxiliary aids he needed to do his job and the Respondent failed in its duty to make reasonable adjustments. The Respondent resists all of his claims. The Respondent states that there was not a restructure of the IT department as described by the Claimant at all, but an alignment of IT provision with other local authority partners. There was a merger of IT resources under ‘ORBIS’ which was a partnership with three local authorities. This alignment did not have any substantial effect on the day-to-day work assigned to the Claimant. The Respondent observed that the Claimant had ceased working to the standard required of him and commenced a period of frequently absences from work on sick leave. Some of these absences were lengthy, some shorter but cumulatively they were disruptive. All reasonable and efforts were made by his manager and the Human Resources (HR) team to encourage the Claimant to identify the specific work-related obstacles he claimed were preventing him from regularly attending work and from carrying out his duties, but these efforts proved inadequate. Eventually on 5 November 2021 an Attendance Support Plan was put in place, as a precursor to the Respondent’s formal capability procedure (691-724), for the purpose of identifying any such work related difficulties. However, the Claimant began, what became, a period of long-term sick leave on 10 November 2021. Therefore, the Claimant was unable to demonstrate, under supervision, what his difficulties were and the Attendance Support Plan was never started.

[13]The Claimant claims were confirmed in the final preliminary hearing held on 23 September 2024 (864-882). The issues identified as remain relevant are reproduced below. The Claimant’s claims are:13.1 Discrimination arising from disability (Equality Act 2010 section 15)

13.2 Indirect discrimination (Equality Act 2010 section 19)

13.3 Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

13.4 Harassment related to disability (Equality Act 2010 section and

13.5 Victimisation (Equality Act 2010 section 27)

[14]The Respondent contends that the claims have been presented outside of the applicable time limit for such cases. The Claimant contacted ACAS on 3 June 2022 with Early Conciliation ending on 14 July 2022. The claim was submitted to the Employment Tribunal on 14 August 2022. The primary time limit for claims of discrimination is three months starting with the date of the alleged act or omission, extended by the early conciliation period.

[15]The claim has a lengthy procedural history, details of which are not repeated here. Several preliminary hearings were held during the course of which the Claimant prepared further information for the tribunal and the Respondent, dated 6 June 2023 (39-44) and 12 September 2023 (45-47). The response form to the ET1 was received by the tribunal on 3 October 2023 (56-61). The Respondent provided further information on 9 October 2023 (62-66) and 7 November 2023 (67-69) with a final amended response received dated 7 October 2024 (70-79).

The Facts

[16]The Claimant commenced employment with the Respondent on 30 June 2014. He was initially employed as an Information Systems Analyst in the ECM systems team (205). On 25 April 2016 the Claimant was promoted to the position of Senior ICT Analyst in the Information Governance team, reporting to Mr Noel McAuliffe, Information Security Manager (193 - 201). The Claimant has been continuously absent from the workplace since 10 November 2021. The Claimant’s job

[17]The Claimant’s role as a Senior ICT Analyst in Information Security was set out in a generic Senior ICT Analyst job description (205-207). It was intended that the job description would be updated to more accurately represent his actual duties.

[18]Mr Noel McAuliffe was the applicant’s line manager during the relevant period. Mr McAuliffe reported to Mr Dan Snowdon, Head of Engagement and Digital Innovation of Brighton and Hove City Council (BHCC).

[19]The Information Security Team was a small team, consisting of Mr McAuliffe, the Claimant, an Information Systems Analyst and an apprentice.

[20]It is recorded that Mr McAuliffe accepted that the job description/job title of Senior ICT Analyst in Information Security did not fully reflect all aspects of the Claimant’s role in Information Security. It was in use as a generic job description/job title across the ORBIS IT&D. He had explained to the Claimant that clarity is provided through discussions with individuals about their work tasks and priorities, which change from time to time (03 Mar 2022 - Letter - Outcome of Stage 1 Grievance 556).

[21]The job description for the role as Senior ICT Analyst describes the purpose of the job as: To support and secure the council’s network/communications infrastructure and investigate and develop technical ICT solutions in line with the Council’s business objectives, ensuring that security and compliance standards and agreed service levels are met, and that quality targets are reached and maintained. To take responsibility for the most complex calls escalated from the Service Desk/”Incident Room” and to investigate these to provide a permanent resolution. To maintain, develop, rationalise and integrate new and existing technical solutions with the aim of providing and supporting our citizens and staff with the best and most cost-effective services (205).

[22]The Claimant gave evidence that the role he held as Senior ICT Analyst from 25 April 2016 had a great deal of responsibility dealing with important and sensitive information, whilst remaining compliant with multiple serious legislation.

[23]The Respondent gave evidence, through Mr Snowdon, that the Claimant had exaggerated the responsibilities of his role. In particular, the Claimant gave evidence that his role included approving changes to the Respondent’s IT systems, sometimes at short notice. Mr Snowden explained that approving changes to the Respondent’s IT systems was not part of his role. His team wrote an assessment and highlighted the risks to the Respondent’s IT systems. Only the Change Advisory Board or Senior Information Risk Officer (SIRO) approved any changes that were substantial or represented high risks. The Claimant’s duties involved identifying issues of concern that needed to be escalated. This description by Mr Snowden is consistent with the information provided at a Grievance Investigation Interview on 14 February 2022, where Mr Snowdon said that: ‘Information Security(IS) is responsible for raising or logging risks and escalating where appropriate. If the change owner is not mitigating the risk, there are clear routes for escalation. If risk transpires, there is an audit trail to show it was raised at an earlier stage. IS has done its job & what they are expected to do.’ (546)

[24]The Tribunal has considered the oral evidence of the witnesses, the generic job description (at 205-7), the information published about the work of the ICT team (210), the Attendance Support Plan (230) and the Grievance Investigation Interview on 14 February 2022 (543-546). The Tribunal concluded that the Claimant’s role included identifying risks, raising issues and escalating them where appropriate. The Claimant was also required to assess and feedback on proposed changes, he and his team had then to implement and complete necessary actions as directed. In this way the Claimant could be said to be approving some changes as part of the Information Security Team’s assessment role, but only in the sense that he would be required to highlight or raise any risk of proposed changes. The Claimant was not responsible for approving large or complex changes that were the responsibility of the SIRO or the Change Advisory Board.

[25]By December 2020 the Claimant considered his workload to be unmanageable. The Claimant blamed much of the difficulty with his role at this time on the introduction of ORBIS. He perceived that his workload had increased. Throughout his employment, Mr McAuliffe held regular one to one meetings with the Claimant, to discuss work related issues and his job performance.

[26]Mr Snowdon gave evidence that from early 2017, the IT department, along with several other corporate services in Brighton and Hove City Council, began a process to join a partnership arrangement (ORBIS) with Surrey and East Sussex County Councils concluding in November 2017 with the BHCC fully joining that partnership.

[27]From June 2017 Mr Snowdon had become Head of Strategy and Engagement (later to be re-titled Head of Engagement and Digital Innovation) and became a member of the IT&D Senior Leadership team, reporting to the Chief Digital and Information Officer.

[28]Mr Snowdon stated that ORBIS was a merger of IT resources under a partnership with three local authorities. This alignment did not have any substantial effect on the day-today work assigned to the Claimant. However, in or about March 2019 Mr McAuliffe reported to Mr Snowdon that the Claimant had, alongside some personal issues, some general dissatisfaction with his role and the broader role of the team within the new ORBIS structure. The Claimant had related this to his perceived high level of work demand and a perceived reduction in authority following the joining of the ORBIS partnership. At about this time the Claimant’s quality of work and his attendance at work had begun to deteriorate. A schedule of the Claimant’s sick leave is at 507. In November 2017 he was absent from work with stress for 4 days, by 2019 sick absence related to stress, work related stress or mental health had increased to 69 working days. The correspondence shows the Claimant’s manager continuing to deal with the Claimant’s various periods of absence from work for personal reasons during that year (674, 675, 676-7).

[29]Despite the Claimant’s role as a senior member of the team, In or about March 2019, Mr Snowdon agreed to Mr McAuliffe taking a greater role in determining prioritisation of tasks that the Claimant was required to undertake, in order to assist the Claimant. Accordingly, Mr McAuliffe made adjustments, reassigning some of the Claimant’s tasks to himself or to others in the team, and postponing other tasks, thereby substantially reducing the Claimant’s workload. The consequence was that Mr McAuliffe subsequently approached Mr Snowden about his own increased burden of work and the increased burden on the remainder of the team, as a result of the Claimant’s sick absences and poor performance. It was necessary for them to actively manage the situation, including delaying work of lower priority.

[30]Despite this, the Claimant’s work performance and attendance did not improve. After a 35 day period of absence from work, with ‘stress/mental health’ commencing on 23 November 2020 the Claimant was assessed by the occupational health team (448). In a report dated 24 December 2020, OH reported that the Claimant’s ill health arising from his personal issues were now resolving and it was important for the work related issues to be resolved. The year before the Claimant had experienced a series of distressing personal issues, including bereavement. In 2019 he was also diagnosed with a serious physical illness, in addition he came to understand that he might have ADHD and autism. In an OH report dated 13 January 2020 (434) the Claimant reported ‘ongoing psychological symptoms primarily related to his nonworking life, his long term health diagnosis, the effect on him from his routine medication and the loss of a close friend. He reports an accumulation of events contributing to his reduced emotional resilience and his current absence’.

[31]Therefore, it is apparent from the reports that these personal issues had not been completely resolved. Notwithstanding that, by December 2020 the Claimant informed the occupational health advisor that he had addressed all of these personal issues and that they were no longer having any impact on his health.

[32]It was recommended by the December OH report that time be spent reviewing the dyslexia assessment the Claimant had received in 2017 to identify any specific adjustments that might be helpful. Further, that the Claimant would be fit to return to work once the process to address the work issues had started. It was suggested that the Respondent consider preparing a stress risk assessment to identify specific areas of concern. It was also recommended that the Claimant be provided with appropriate support with dyslexia, as appeared necessary, to help him achieve satisfactory performance at work (450-451). This report therefore prompted the Respondent into formally seeking to identify what these alleged workplace issues or work-related issues, said by the Claimant to be responsible for his sick leave were (449-451).

[33]During cross-examination the Claimant was urged to identify factual evidence to support his contention that he was ‘overloaded with work’. The Claimant stated that on 20 November 2020 Mr Phil Williamson, a project manager, emailed him conﬁrming that his department were aware that they were overloading him with work (685). The email mentioned that the Claimant’s team appeared to have been ‘under resourced’. This does suggest that there was an issue with the work output of the Claimant’s department, but the Tribunal considered that it did not provided evidence that the Claimant was overworked. The Tribunal was not provided with any other evidence to support the Claimant’s claim that he was overloaded with work.

[34]After an absence that had begun on 23 November 2020, the Claimant returned to work 35 days later, on 13 January 2021, this time on a phased return to work.

[35]The Claimant asked to be referred to OH on 17 January 2021. The interview that followed from this request took place on 15 March 2021 (452).

[36]The Claimant attended a return-to-work meeting on 18 January 2021 with Mr McAuliffe (689). At this meeting the Claimant expressed that he was at a loss what to do to resolve the work issues. He claimed that the Respondent had failed to meet his needs as a dyslexic. He complained that the move into ORBIS has made working conditions worse. That ‘operationally’ the team he was in did not have the tools necessary for the team to perform its role. He complained about bad management at a senior level.

[37]The Claimant was asked what he wanted from the Respondent. He responded in vague and general terms that he wanted a ‘change of the current environment’. The Claimant’s explanation and demands were not sufficiently specific for Mr McAuliffe to identify precisely what the work related issues were or what specific adjustments or action was required to help, if any, in respect of his dyslexia or his mental health. He Claimant was asked to specify his issues in writing at the end of that meeting with a view to holding another meeting to discuss the issues in detail (689-90). While the Claimant made general allegations about the way in which the Respondent conducted its work, The Tribunal consider that the Claimant failed to supply information or evidence of any changes to the department’s work that had an impact on him personally; that remained the case, despite the Respondent’s efforts to elicit specific instances that might illustrate his point.

[38]The Claimant alleged that on 4 February 2021 Mr McAuliffe emailed him saying he would no longer support him or help him raise his complaints. There was no evidence to support this allegation. Mr McAuliffe held regular one to one meetings with the Claimant and contrary to this allegation Mr McAuliffe in an email to HR dated 2 February 2021 reported that after another meeting with him, the Claimant was still struggling to describe fully what his work ‘issues’ are. It was noted that the Claimant might now find it helpful to speak to someone in HR about this (731).

[39]The Respondent followed up the meeting by referring the Claimant to Able Futures, a scheme run by Access to Work, providing one on one occupational support with a dedicated rehabilitative mental health worker. This mental health worker’s role included offering coaching dealing with concerns such as such as stress, anxiety, depression. It was hoped that the practical support provided by the scheme might be helpful for the Claimant in terms of helping him with resilience and motivation.

[40]Following an assessment with Access to Work on the 15/02/2021, it was recommended that the Claimant should be provided with the following auxiliary and other aids (512): · Dragon Pro-Access Individual 15 · 1 day Training for Dragon Pro-Access Individual 15 · 1 day Macro Training for Dragon Pro-Access Individual 15 · Coping Strategy Sessions 10x 2 hours.

[41]The Dragon software assistive technology was ordered on 11 Feb 2021. The Respondent attempted to deploy Dragon on the Claimant’s work device. Unfortunately, the Respondent found that the technology was not compatible and could not be installed. The difficulties were discussed with the Claimant and confirmed in a series of emails, commencing that same month (517, 518\9). In an email to Mr McAuliffe dated 23 February 2021, the Claimant explained that he had found an alternative to the Dragon speech assistive software and the matter was no longer pressing (516-7).

[42]Against a background of his continued poor performance and attendance, in a one-toone meeting held on 25 February 2021 Mr McAuliffe informed the Claimant that there was now a need to set clear objectives and standards and informed him that the Respondent’s capability policy would be followed, if necessary (745). The Claimant considered these comments to constitute a threat and harassment. The Tribunal consider the discussion to be a routine managerial response to a Claimant whose performance was poor and was not improving.

[43]On his return to work, the Claimant’s duties were reduced further, so that he was assigned projects that did not have urgent deadlines. In addition, the Claimant resumed on a phased return to work over a period of three weeks, working 25 %, 50 % and 75 % of his working hours (690).

[44]The Claimant did not follow up that meeting by identifying the precise issues of concern in writing, as requested. Notwithstanding the adjustments made to his workload, the Claimant was soon absent from work again on sick leave. He was absent for fourteen days from 4 March 2021 to 23 March 2021. The OH interview that followed the request the Claimant had made in January 2021 took place on 15 March 2021 (452) during this period of sick absence.

[45]On 9th March 2021 a Workplace Needs Assessment was arranged with Diversity & Ability, an independent assessment company. This was carried out on 6 April 2021. (457 – 468). This made a series of recommendations for assistive equipment which did not involve Dragon as it was not so helpful in the work context.

[46]The Claimant was assessed as fit to return to work with some minor adjustments and flexibility to working time. Mr McAuliffe was advised by the HR Team to undertake a Stress Risk Assessment. On 6 April 2021 the process of preparing the comprehensive Individual Work Related Stress Risk Assessment with the Claimant was also started with the Claimant meeting his manager to complete the Assessment Form in conjunction with one another (470-477). However, after three meetings, that took place on 1 April 2021, 6 April 2021 and 7 April 2021, during which Mr McAuliffe attempted to complete the document with him the Risk Assessment form remained incomplete (235). The Claimant offered no explanation of the reasons why he had not completed the form. The Claimant asserted that the Respondent had a duty to complete the form for him. The Tribunal did not accept that assertion. It was for the Claimant to identify with precision what aspects of the workload, work patterns and work environment, if any, were the potential stressors of the job role, and what support he considered was needed.

[47]The Claimant began yet another period of sick leave on 15 April 2021. He did not return to work until 29 July 2021.

[48]Another OH report was made dated 12 July 2021 (478-482). This suggested that the Respondent consider a temporary redeployment to another role. However, this suggestion was not progressed because the redeployment policy requires that a clear medical reason be identified before an employee can be transferred to another department. No such medical reason had been identified.

[49]The Claimant returned to work on 29 July 2021.

[50]Meanwhile the Respondent had persisted with the task of finding a solution to the Claimant being provided with Dragon software and it was finally installed on his device in September 2021.

[51]The Claimant was then absent from work on 13 October 2021 due to work related stress and anxiety, returning to work on 18th October 2021(507).

[52]Mr Moorcroft, Human Resources Manager, advised Ms Lisa Hodge, HR Consultant to provide assistance to Mr McAuliffe with drafting a performance action plan for the Claimant to support his return.

[53]An Attendance Support Plan was prepared on 5 Nov 2021 (230). This set out a summary of the identified areas of concern and included a comprehensive list of the Claimant’s work tasks, where improvement was required, what he needed to do to demonstrate satisfactory performance, what arrangements were made for monitoring performance, what support was to be put in place for him relating to each area of concern. This was a preliminary stage in the Respondent’s capability procedure. The capability procedure had not commenced by the action.

[54]On 10th November 2021 the Claimant reported sick absence, due to illness with work related stress and anxiety. He was signed off with a proposed return to work date of 4 September 2022 (507). The Claimant did not return to work. Grievance

[55]On 12th January 2022 the Claimant submitted a Stage 1 grievance (525 – 527). He received an acknowledgement (530) within days and the Stage 1 grievance meeting was held on 31 January 2021. In the grievance the Claimant repeated his generalised and non-specific complaints about the work process and the operation of ORBIS adversely affecting him. He also specifically asked for a Laptop 2018, Dragon software, and for the Respondent to have regard to the previous recommendations made in earlier OH reports. The Claimant claimed that he was discriminated against directly and indirectly, but he did not specify in what way he considered he had been discriminated against. The Claimant also alleged harassment and victimisation, alleging that this arose out of unreasonable work demands placed on him. We heard evidence for the Respondent, which we accepted, that the Claimant had returned to work on a phased return and was continuing to work on reduced duties, having been working on reduced duties since before December 2019. As referred to above, the Claimant’s work had been distributed between his manager and his subordinates or delayed altogether (675). Therefore, by this time the Claimant had been working on reduced duties for well over a year.

[56]Mr Nigel Manville, as Head of Service, appointed Ms Jane Blanchard, Service Support Manager (IT & Digital), to hear the grievance.

[57]On 31 January 2022 Ms Blanchard with HR support from Ms Elaine Codling HR Consultant, met with the Claimant, who was supported by Mr Mark Turner, GMB Trade Union Representative as part of the stage 1 grievance process (531 – 534).

[58]The grievance outcome was dated 3 March 2022, confirming his grievance was partially upheld in respect of delays in purchasing of equipment. Ms Blanchard and a colleague had reviewed the Occupational Health reports: 25/09/19, 13/01/20, 24/12/20, 15/03/21 and 12/07/21. She concluded that the majority of the recommendations that were suggested had been implemented such as the full dyslexia assessment, stress risk assessment (556 – 560). A number of recommendations were made aimed at ensuring the Claimant received all the support and equipment he might need to help him meet the standards set out in the work plan and manage his workload.

[59]The Claimant submitted an appeal on 9 March 2022 against the outcome (561-564). The Claimant was invited to attend a Stage 2 hearing on 3 May 2022. This was to be chaired by Ms Clare Saul, Head of Communications, supported by Mr Andy Keeley, Lead HR Consultant (565 – 566). The stage 2 grievance hearing went ahead on 3 May 2022 but needed to be adjourned as there was a lot to consider.

[60]The Claimant claimed that at the first part of the Appeal meeting held on 3 May 2022, he tried to explain his neurodiversity and the effects it had on him for context. When the Claimant suggested going through each part of the grievance at the second part of the hearing, he heard Ms Elaine Codling make an audible gasp and shout “No!” (881). The Claimant did not complain about this at the time and, although not the fault of the Claimant, no contemporaneous record exists of that meeting might support his recollection. During the hearing the Claimant’s evidence on this point altered as he recalled it. The Tribunal considered that the evidence was vague and could not be relied on.

[61]The meeting was due to reconvene on 8 July 2022. Mr Andy Keeley did not produce the notes of the first part of the meeting and then went absent on sick leave without completing his report (575, 576). On one occasion the Claimant was not notified of a cancellation of the resumed grievance hearing because Ms Saul was unaware that he did not have access to his work email address. (576).

[62]Meanwhile, on 6 July 2022 a new OH appointment (the sixth OH report) took place with the Claimant to support him in his return back to work. The estimated return to work date in OH referral of 12 September 2022. (487 – 490). OH recommended a stress risk assessment, with no other adjustments recommended. The report advised that the Claimant was not fit to return to work (487).

[63]Eventually Ms Catherine Fehilly was asked to arrange a date for the re-convened Stage 2 Grievance. HR Records show on 21 September 2022 the Claimant’s representative, Mr Mark Turner, GMB Trade Union Representative, wrote to Ms Fehilly asking her to make direct contact with the Claimant regarding the dates, as the Claimant was not responding to Mr Turner’s request to provide dates (578). Ms Fehilly wrote and asked the Claimant via email on 21 September 2022 to contact her to arrange his grievance hearing, offering to convene the grievance on specific dates (578.) The Claimant did not reply to her.

[64]The Claimant claims that the Respondent should have chased him for dates. The Tribunal was satisfied that the Respondent had taken reasonable steps to progress the grievance by offering dates to the Claimant, as requested by his representative. The Claimant who did not respond bears some responsibility for the delay. The applicable law Time limits

The applicable law

[65]The time limit for discrimination complaints is three months, subject to any extensions of time afforded by the early conciliation procedure (sections 140A and 140B ERA), starting with the date of the act to which the complaint relates and allowing for any extension of.

[66]Where a claim has been presented to the tribunal after the three-month deadline a tribunal has a broad discretion to extend time under section 123(1)(b) of the Equality Act 2010 within “such other period as the employment tribunal thinks just and equitable.”

[67]In the case of Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

, per Auld LJ, said at paragraphs 23 to 24 that the discretion to extend time in discrimination claims is a broad one and the Appeal Court should only interfere with the finding of the Tribunal if it “erred in principle or was otherwise plainly wrong” in its decision.

[68]Where there is a series of distinct acts of alleged discrimination, the time limit begins to run when the act is completed. If there is continuing discrimination, the time limit only begins to run when the last act in the series is completed. In the case of Barclays Bank plc v Kapur and ors

1991 ICR 208

, HL it was ruled that where an employer operates a discriminatory regime, rule, practice or principle, then such a practice will amount to an act extending over a period. However, where there is no such regime, rule, practice or principle in operation, an act that affects an employee will not be treated as continuing, even though that act has ramifications which extend over a period of time. Discrimination arising from disability (Equality Act 2010 section 15)

[69]Section 15 of the EqA states that: A person(a) (A) discriminates against a disabled person

(b) (B) if – A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. 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.

[70]Unfavourable treatment must be shown by the Claimant to be an act or omission of the employer that puts them at a disadvantage. If a Claimant with a disability is treated better that employees who are not disabled such treatment cannot constitute ‘unfavourable treatment’. This is the case even if the Claimant is dissatisfied because they genuinely believe their employer could or should have afforded them better treatment because of their disability.

[71]For a claim of discrimination arising from disability to succeed the Claimant also has to show that the alleged unfavourable treatment is the result of something arising in consequence of their disability. That means that the Claimant has to identify the ‘something’ that has a connection to their disability. Knowledge of disability

[72]Whether an employer has knowledge of disability is relevant to claims under sections 13 and 15 EqA. Having a mental health illness does not automatically mean that a Claimant also has a disability. In order to have the protection of the Equality Act a Claimant must show that they had a disability, as defined, at the relevant time. The Claimant must establish that they had a physical or mental impairment, which has or had a substantial and long-term adverse effect on their ability to carry out normal dayto-day activities.

[73]A Respondent cannot be liable for discrimination if they can show that they did not have actual knowledge that the Claimant was disabled, as defined by the Act, or that they ought not reasonably to have known that the Claimant was disabled.

[74]Nevertheless, a responsible employer of an employee who has a (physical or) mental impairment must make its own factual judgment as to whether the employee is or is not disabled. An employer would be expected to seek and obtain clear and focused guidance from occupational health and appropriate medical practitioners to help them form their judgment as to whether the criteria for disability are satisfied. Indirect discrimination (Equality Act 2010 section 19)

[75]Section 19(1) of the Equality Act 2010 (EqA) states that indirect discrimination occurs when a person(a) (A) applies to another

(b) (B) a provision, criterion or practice (PCP) that is discriminatory in relation to a relevant protected characteristic of B’s. A PCP has this effect if the following four criteria are met: A applies, or would apply, the PCP to persons with whom B does not share the relevant protected characteristic (S.19(2)(a)) the PCP puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share the characteristic (S.19(2)(b)) the PCP puts, or would put, B at that disadvantage (S.19(2)(c)), and A cannot show that the PCP is a proportionate means of achieving a legitimate aim (S.19(2)(d)).

[76]Therefore, there must be a state of affairs that disadvantages the Claimant. The purpose of these provisions is to ensure a person with protected characteristics is not disadvantaged the state of affairs, by requiring the employer to justify requirements which appear neutral but in reality work to the comparative disadvantage of people with a particular protected characteristic.

[77]In a claim presented under section 19 the tribunal must(1) identify a ‘provision, criterion or practice’ (PCP) that has been applied to the individuals that the Claimant is relying on as comparators.

(2) The correct pool for comparison must be identified. The pool must comprise of those individuals who are potentially affected by the PCP that has been identified.

(3) The particular disadvantage, must be identified and the tribunal must consider whether the Claimant has established that the disadvantage has occurred to them.

(4) Where such disadvantage has occurred, an employer must establish that the treatment can be objectively justified. The Claimant must establish the first, second and third parts of the statutory definition of indirect discrimination. If they do, then the Respondent must show whether the treatment can be objectively justified. If the Respondent cannot show the treatment is justified the claim succeeds.

[78]All four conditions in section 19(2) must be met before a claim for indirect discrimination can succeed. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) Section 20 (so far as relevant) states:

[79]

(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

[80]Section 21 states:(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[81]An employer has a defence to a claim for breach of the duty to make reasonable adjustments if it does not know and could not be reasonably be expected to know that the disabled person is disabled and is likely to be placed at a substantial disadvantage by the PCP etc. The question is what objectively the employer could reasonably have known following reasonable enquiry. The burden of proof is on the employer.

[82]The employer therefore needs to have knowledge of both the disability and the substantial disadvantage. Harassment related to disability (Equality Act 2010 section

[83]Section 26 EQA provides: “(1) A person(a) (A) harasses another

(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” Section 26(4) states that: “In deciding whether conduct has the purpose or 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;

[84]The tribunal must consider the background to and the context of the conduct when considering whether it is “related to” a relevant protected characteristic. (Warby v Wunda Group

EAT/0434/11

[85]For a claim of harassment to succeed it is necessary for the Claimant to prove a connection between the act(s) of harassment and a relevant protected characteristic. Victimisation (Equality Act 2010 section 27)

[86]By s.39(4), an “employer” must not “victimise” one of its employees by subjecting the employee to any detriment. For this purpose, victimisation is defined in s.27 EqA.

[87]Section 27(1) of the EqA, provides: ‘a person(a) (A) victimises another person

(b) (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’.

[88]Therefore for such a claim to succeed a Claimant must establish that they have been subjected to a detriment and secondly, that they were subjected to that detriment because of a protected act. Section 27(1) sets out what are ‘protected acts’.

[89]Each of the following is a protected act: Section 27(2)(a) bringing proceedings under the EqA Section 27(2)(b) giving evidence or information in connection with proceedings under the EqA Section 27(2)(c) doing any other thing for the purposes of or in connection with the EqA Section 27(2)(d) making an allegation (whether or not express) that A or another person has contravened the EqA

[90]Detriment is not defined, but detrimental treatment covers a wide range of conduct and treatment. Detrimental treatment can include anything the Claimant might reasonably consider disadvantaged them or changed their position for the worse. However, it has been established that an unjustified sense of grievance alone would not be enough to prove detrimental treatment. Burden of proof

[91]Section 136 of The Equality Act 2010 states that: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if (A) shows that (A) did not contravene the provision.”

[92]Where facts are disputed, the burden is on the Claimant to prove facts from which the Tribunal could conclude that the Respondent has committed an act of unlawful discrimination. If the Claimant can establish this the burden shifts to the Respondent to provide a non-discriminatory explanation for the treatment. The submissions

[93]The Respondent provided written closing submissions comprising 32 pages. The Claimant submitted written closing submissions comprising 23 pages.

[94]In reply, the Respondent referred back to its written closing submissions which rebutted the Claimant's closing arguments in relation to all arguments made. Therefore, the Respondent did not make further submissions. The Tribunal was also referred back to the 'Chronology of Events' document submitted to the Tribunal ahead of the final hearing for an accurate outline of dates of the material events relating to the case.

[95]The Tribunal read and considered the parties’ submissions. The Tribunal’s deliberations and conclusions

[96]Although the Tribunal made findings on the time issues, we decided that we would determine each claim being pursued, regardless of our findings on whether they were brought out of time.

[97]We bear in mind that we had heard evidence and submissions on all the claims advanced. More importantly, unlawful discrimination on any grounds raise serious issues for the Claimant who alleges to have been subjected to such treatment, and for those members of the Respondent’s staff who are alleged to have engaged in such treatment. The Tribunal considered the parties were entitled to know what conclusions the Tribunal had reached on the evidence presented.

[98]As such, these reasons address the disability discrimination claims before concluding with our findings on the issue of time.

[99]The Tribunal has retained the original numbering as set out in the case management order. Where related issues have fallen away they have not been reproduced. Discrimination arising from disability (Equality Act 2010 section 15) 2.1 Did the Respondent treat the Claimant unfavourably by: 2.1.1 Placing pressure on the Claimant to approve changes and being angry and frustrated with the Claimant when he did not approve changes. The Claimant says in December 2020 they imposed a restructure of departments which meant that work came in from multiple systems resulting in reduced time for completion of necessary approvals (Indirect and harassment in the alternative)

[100]Having considered all of the evidence, the Tribunal preferred the evidence of the Respondent and concluded that there had not been a restructure of the department as alleged by the Claimant. It follows that the Tribunal did not accept the Claimant’s evidence that he had been put under pressure by the Respondent in or around December 2020 as a result of the purported restructure. That being the case the Claimant’s claim of discrimination arising from disability is not upheld on its merits and is dismissed. 2.2 Did the following things arise in consequence of the Claimant’s disability: 2.2.1 Due to the Claimant’s dyslexia it takes him longer to read, 2.3 Was the unfavourable treatment because of any of those things?

[101]It is not disputed that the Claimant has dyslexia and this adversely affects his ability to read, assess and provide approvals.

[102]However, we considered the evidence of the Claimant’s work history and we found that the Claimant was not subjected to unfavourable treatment. He was given the time he needed to carry out his work and when he could not or did not complete it his managers gave him additional time to complete it, or the work was taken away and/or reassigned to others. The Claimant was given plenty of opportunity to identify what his problem was and what help he needed. The Claimant was never disciplined for not carrying out his work and he was not subjected to the respondent’s formal capability procedure. Therefore, this part of the Claimant’s complaint is also not upheld because the Claimant has failed to prove the basis of the claim.

[103]To conclude, the Tribunal finds that the complaint of discrimination arising from disability is not well founded and fails. Indirect discrimination (Equality Act 2010 section 19) 3.1 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP: 3.1.1 In December 2020 a restructure of departments occurred (discrimination arising and harassment in the alternative)

[104]The Tribunal finds that there was an introduction of Orbis, this was a merger of IT resources which was a partnership with three local authorities. The Tribunal accepted the evidence of the Respondent that there was not a restructure of the department the Claimant worked in, or a restructure that covered his role in or around December 2020, or at all. The Tribunal found the Introduction of ORBIS did not entail a restructure of departments and it did not have any substantial effect on the day-to-day work assigned to the Claimant.

[105]It follows on the facts we found that the Respondent did not apply the PCP contended by the Claimant. Therefore, this part of his complaint fails on its merits because the Claimant has failed to satisfy the Tribunal on the evidence that there was a restructure of department. For this reason, this claim of indirect discrimination is also dismissed.

[106]Accordingly, the Tribunal finds the complaint of indirect discrimination is not well founded and fails. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)4.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

4.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs: 4.2.1 Requiring the Claimant to return to work in his substantive role? (PCP 1)

[107]The Tribunal found that the Claimant informed the Respondent of the disability of dyslexia in May 2017. The Tribunal considered when the Respondent knew that the Claimant had stress and anxiety. The Tribunal refer to an OH report dated 25 September 2019 in which it was acknowledged and confirmed that the Claimant likely had a disability, as defined, in respect of these mental impairments (415). The Tribunal finds therefore that the Respondent knew or ought reasonably to have known that the Claimant had the disability of dyslexia in May 2017 and that he had the disability of stress and anxiety by September 2019.

[108]The Tribunal finds that the Respondent required the Claimant to carry out his duties in order to fulfil his employment obligations, from the period December 2019 after a lengthy period of absence due to stress, including stress that was work related.

[109]Having considered the evidence, the Tribunal was satisfied that the Claimant was not required to carry out all of the duties of his substantive role during this period. We found that the Respondent, during 2019, rearranged the Claimant’s work for the purpose of helping him manage his duties. These steps included taking a variety of different measures, which included the Claimant returning to work on reduced hours; reducing his work duties and reassigning his work tasks, to the extent that the Tribunal was satisfied that the Clamant was performing only a fraction of his substantive role by September 2019. The attempts to support the Claimant did not result in improvement of his attendance or job performance. The concern over the Claimant’s work performance continued and then culminated in the introduction of the Attendance Support Plan, that was due to commence in November 2021. This was potentially a precursor to applying the Respondent’s formal Capability Procedure. 4.2.2 Holding capability meetings without prior warning? (PCP 2)

[110]Having considered the evidence, the Tribunal found that the Claimant’s allegation that the Respondent held capability meetings without prior warning is not well-founded. The Claimant attended a series of one-to-one meetings with his line manager and he attended return to work meetings with him after his various periods of sick or other absences. The Claimant’s work performance was discussed at these meetings, and they have been documented and shown to the Tribunal. The Tribunal considered that these meetings and discussions were a reasonable response by the Respondent to the Claimant’s poor attendance and his failure to comply with the performance standards required of him. Typical of these was the meeting held on 25 February 2021 (745). The meetings at which the attendance work plan was first discussed in November was also not a capability meeting that formed part of the formal capability procedure (691-723). Therefore the Claimant did not prove that the Respondent held capability meetings without prior warning. 4.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that 4.3.1 The Claimant’s stress and anxiety meant that he struggled to return to work to his substantive role alongside individuals about whom he had ongoing grievances? (PCP 1)

[111]While the Tribunal finds that the Claimant’s stress and anxiety may have caused him to struggle to return to work to his substantive role, and may have prevented him from providing good service, we found that the Claimant did not have ongoing grievances against any of the individuals within his small team. The Tribunal was satisfied on the evidence we considered that the Claimant got on very well with his line manager Mr Neil McAuliffe and there were no disputes between him and the others in his small team. 4.3.2 The Claimant’s dyslexia put him at a substantial disadvantage because his symptoms were negatively affected by holding a meeting without prior notice? (PCP 2)

[112]The Tribunal found that the Claimant was not required to attend capability meetings without prior warning. The Claimant attended other meetings, oneto-one meetings, return to work meetings, meetings, and normal management meetings held by Mr McAuliffe. These meetings were regular or routine management meetings with his manager. There was no evidence that these meetings with Mr McAuliffe were held without prior notice. Having considered all the circumstances, the Tribunal does not accept the Claimant’s allegation that dyslexia put him at a substantive disadvantage in attending such meetings. 4.3.3 The Claimant was substantially disadvantaged by his stress and anxiety as it was exacerbated by the fact he was suffering major emotional issues at the time that the meeting took place which impacted his ability to engage in the meeting as he would “shut down”? (PCP 2)

[113]The Tribunal considered that the Claimant would likely have been affected by major emotional issues he was experiencing at the time that meetings were held with him but is unable to quantify to what extent that would have been. The evidence shows that by December 2020 the Claimant had informed the occupational health advisor that he had addressed all of these personal issues and that they were no longer having any impact on his health.

[114]Having considered the evidence provided, we bear in mind that the Claimant had explained to the occupational health adviser that he had received therapy, and the personal issues were on the way to having been resolved. The Tribunal found that the Claimant was not required to attend a Capability Meeting as alleged. The Claimant also attended several Work Related Stress Risk Assessment meetings and so had several opportunities to meet his manager to discuss the risk assessment. In those circumstances the Tribunal does not accept the Claimant’s contention that he was suffering major emotional issues or was substantially disadvantaged by his stress and anxiety, at the time that any routine or other work meetings took place or that he was disadvantaged when engaging with meetings with his manager. 4.4 Did the lack of an auxiliary aid, namely Dragon software, put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability?

[115]The Tribunal was satisfied that the lack of dragon software did not put the Clamant at a substantial disadvantage. The Claimant gave evidence that he had found a ‘work around’ to this piece of software and he did not up pursue the Dragon software because he thought it would not work well in any event. 4.4.1 The Claimant says he requested Dragon software in December 2020 and this was not received until September 2021 (and the grievance response agreed that this was unacceptable)?

[116]The Tribunal heard evidence from the Claimant that there were a number of technical issues with installing the Dragon software on his device. The reasons for this were explained to the Claimant at the time and were dealt with in his initial grievance. We consider this to be a minor issue because the Dragon software was of limited use to the Claimant in respect of his disabilities. 4.5 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

[117]The Tribunal found that despite some delay, the Respondent continuously made reasonable efforts to discuss the Claimant’s work performance and to provide auxiliary aids recommended by occupational health and others. The Respondent was informed by the Claimant that he was not put at a substantial disadvantage by delay to the installation of the recommended Dragon software. Nevertheless, the Respondent continued to make efforts to provide the recommended software. 4.6 What steps could have been taken to avoid the disadvantage? The Claimant suggests: 4.6.1 Mediation and/or temporary redeployment (PCP 1)

[118]The Tribunal accepted the evidence of the Respondent that mediation was not feasible in the circumstances and that temporary redeployment was neither feasible nor possible given the particular circumstances of the Claimant’s case. The Respondent was dealing with his work performance and attendance issues, its rules providing for mediation and temporary redeployment were not applicable to the Claimant’s circumstances. 4.6.2 Not holding capability meeting without prior warning, or making the purpose and agenda of the meeting clear to the Claimant in advance of the meeting so he could adequately prepare for it (PCP 2)

[119]The Tribunal found that the Respondent did not hold any capability meetings without prior warning, as alleged by the Claimant. 4.6.3 Providing Dragon software in a timely manner (auxiliary aid) 4.7 Was it reasonable for the Respondent to have to take those steps and when? 4.8 Did the Respondent fail to take those steps?

[120]The Tribunal finds there was delay in providing the Claimant with Dragon software, but found the delay, given the circumstances was of minor consequence to the Claimant. The Tribunal concludes that the Respondent did not fail to make reasonable adjustments. 5. Harassment related to disability (Equality Act 2010 section 26) 5.1 Did the Respondent do the following things:5.1.1 Occupational health from 24/12/20 informed that the Claimant’s ability to return to work would be dependent on progress being made to resolve the issues that he raised, yet no action was taken to resolve those issues.

5.1.2 In Occupational health reports from 15/03/21, 12/07/21, 06/07/22 mediation and temporary redeployment were raised but not actioned.

5.1.3 On 20/11/2020 the Claimant received an email from Phil Williamson Project Manager conﬁrming that the project oﬃce were knowingly overloading him with work.

5.1.4 In December 2020 the Respondent imposed a restructure of departments which meant that work came in from multiple systems meaning that there was reduce time for completion of necessary approvals. This placed pressure on the Claimant to approve changes and people were angry and frustrated with the Claimant when he did not approve changes. (alternative to discrimination arising and indirect discrimination)

5.1.5 Requested Dragon software in December 2020 was not received until September 2021 (the grievance response agreed that this was unacceptable).

5.1.6 In January 2021 the Claimant spoke with Noel McAuliﬀe about raising a grievance, he explained he was experiencing diﬃculties in getting the information down on paper due to dyslexia however this support was denied.

5.1.7 In February 2021 Noel McAuliﬀe held a capability assessment, despite the issues the Claimant was trying to raise not being addressed.

5.1.8 In November 2021 Noel McAuliﬀe attempted to hold a capability meeting without declaring it was going to be a capability meeting. In the report provided about the Claimant’s dyslexia it notes that prior notice should be given as a reasonable adjustment and without it his symptoms would be negatively eﬀected.

5.1.9 The Claimant emailed HR on 04/02/21 to ask for help to raise grievance (but received no response in contradiction to BHCC Grievance guidance 2.1)

5.1.10 The Claimant received an email from Noel McAuliﬀe on 24/02/21 stating he is not going to help the Claimant raise or resolve any of his issues and blamed the Claimant for delays in getting equipment.

5.1.11 On 12/1/22 the Claimant submitted a grievance in line with company policy to Nigel Manvell Finance Director as he sat above people contained in his grievance. Despite this it was handed down the structural ladder and the grievance was carried out by a department manager within ITC.

5.1.12 The Claimant received grievance response on 03/03/22 from hearing held on 31/01/22 but it did not address issues he had raised and instead focused on him and his performance. The Claimant says he discovered investigation interviews were carried out before he received notes from the hearing on 14/02/22 and before he had returned the Claimant’s amendments all of the mistakes on 18/02/22. The process was not investigated or run correctly.

5.1.13 The Claimant sent a grievance appeal on 09/03/22 and received conﬁrmation on 10/03/22 but the initial appeal meeting was not held until 03/05/22 (in contradiction to BHCC grievance guidance 2.1 and grievance procedure 6.2,awareness 8 and the ACAS code). The second half of the appeal hearing was due to take place on 08/07/22 but nobody else other than the Claimant attended as it had been cancelled without anyone informing him. The Claimant says he still has not been given the opportunity to have his appeal heard. (also victimisation)

[121]The Tribunal has considered the Claimant’s various claims of harassment. The Tribunal refers to its findings of fact on the treatment of the Claimant in respect of each these matters taken separately and as a whole. All of the claims of harassment are dismissed on the ground that the allegations relate to routine management decisions made by the Respondent against a background of attendance issues and poor performance by the Claimant. The Tribunal was satisfied the Respondent did not engage in unwanted conduct related to a relevant protected characteristic of disability, with the purpose or effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. The Tribunal finds the claim of harassment is not well founded and fails. 5.1.14 On 03/05/22 at the first part of the Appeal meeting held, the Claimant ﬁrst tried to explain my Neurodiversity and the eﬀects it has on him for context. When the Claimant suggested going through each part of the grievance at the second part of the hearing he heard Elaine Codling make an audible gasp and shout “No!”. 5.2 If so, was that unwanted conduct? 5.3 Did it relate to disability? 5.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 5.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[122]Unfortunately, there was no contemporaneous note of what happened at the appeal meeting on 03/05/22 that gives rise to this particular complaint. The Claimant’s recollection also changed and varied during the course of him giving his evidence. The Tribunal bears in mind the Claimant’s memory of the incident was unclear and with no other satisfactory evidence available, the Tribunal concluded that there was no satisfactory evidence that Ms Codling make an audible gasp and shout “No!” or whether any such conduct could have constituted harassment. Therefore, having concluded there was insufficient evidence to establish what occurred at that meeting, the claim of harassment was dismissed. 6. Victimisation (Equality Act 2010 section 27)6.1 Did the Claimant do a protected act as follows: 6.1.1 Raising a formal grievance on 12 January 2022, referring to disability discrimination?

6.2 Did the Respondent do the following things: 6.2.1 The Claimant sent a grievance appeal on 09/03/22 and received confirmation on 10/03/22 but the initial appeal meeting was not held until 03/05/22 (in contradiction to BHCC grievance guidance 2.1 and grievance procedure 6.2,awareness 8 and the ACAS code). The second half of the appeal hearing was due to take place on 08/07/22 but nobody else other than the Claimant attended as it had been cancelled without anyone informing him. The Claimant says he still has not been given the opportunity to have his appeal heard. By doing so, did it subject the Claimant to detriment? 6.4 If so, was it because the Claimant did a protected act?

[123]The Tribunal considered the claim of victimisation. The Tribunal finds that raising a formal grievance on 12 January 2022 alleging disability discrimination is a protected act.

[124]The Tribunal was satisfied that not organising meetings within a reasonable time could constitute a detriment. However, the Tribunal do not find that the delays and other circumstances that followed constituted acts of victimisation. Having heard and considered all of the evidence, the Tribunal found that the delays were partly caused by the Claimant’s representative, errors were made by the Respondent, including one of its HR Team not completing his duties. Additionally, the likely cause of some delay was by the Claimant himself not contacting his representative or the Respondent to complete the grievance process, even after having been offered dates. In those circumstances, the Tribunal was satisfied that the delay to the conclusion of the grievance and appeal procedure was because of a series of errors and delays on all sides, but found they did not take place because the Claimant had carried out a protected act.

[125]Therefore, the Tribunal concludes that Claimant’s complaint of unlawful victimisation is not well founded and fails. Time point

[126]Having considered all of the circumstances the Tribunal was satisfied that all of the claims, with the exception of those dealing with the grievance hearing, have been presented well outside of the applicable time limit.

[127]The Claimant did not give any reason for presenting his claims late or provides reasons which the Tribunal could rely to consider granting an extension of time. In the circumstances, the Tribunal concludes that it is not just and equitable to extend time.

[128]Accordingly, all of the claims, with the exception of unlawful victimisation, fail on time grounds with the claim of victimisation failing on substantive grounds.

[129]All of the Claimants claims of unlawful disability discrimination are therefore dismissed.