Mr R A Leslie v Driver and Vehicle Standards Agency: 2303717/2019

EMPLOYMENT TRIBUNALS

Case No 2303717/2019

Between

Mr R A LeslieClaimant

Driver and Vehicle Standards AgencyRespondent

Before

Employment Judge G Phillips

Date 10 November 2021

JUDGMENT

The Respondent’s application to strike out various historic elements of the Claimant’s complaint is allowed. Allegations 1-6 and 9 of the Claimant’s Further Particulars of the Second claim are hereby struck out.

REASONS

[1]I shall, for ease, refer to the parties as the Claimant and the Respondent. References to rule numbers below are to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended. References to page numbers [xx] are to the bundle of documents that the parties had prepared for the purposes of the Preliminary Hearing.

[2]This hearing was listed, at a Telephone Case Management hearing on 14 October 2020, as an Open Preliminary Hearing, for today, at the Respondent’s request, to consider an application by it as to whether any of the claims made by the Claimant should be struck out (for the reasons identified at paragraphs 7-12 of the ET3 Response). In brief, that application applies to three grounds of challenge, any one of which if successful could be sufficient to provide grounds to strike out that allegation. Those three grounds of challenge are:(1) that here are a number of historic allegations that the Respondent says were included in a previous ET claim by the Claimant, which was subsequently withdrawn and dismissed by the Tribunal under Rule 52, and as such it says cannot be pursed because of issue estoppel;

(2) a number of other matters either pleaded by the Claimant or referred to in Further Particulars, which the Respondent says are out of time under s123 of the Equality Act 2010, and which it says are not continuing acts, and for which the “just and equitable” discretion to extend time should not be exercised; and

(3) a number of matters which have not been pleaded previously and for which no formal application to amend has been made.

[3]This hearing was conducted remotely using CVP and was not objected to by the parties. A face to face hearing was not held because it was not practical due to the prevailing circumstances. Procedural background

[4]From 28 August 2015, the Claimant was employed by the Respondent, an Agency of the Department of Transport, as a driving examiner, until his dismissal on 9 May 2019. The Claimant has severe recurrent depression, Post Traumatic Stress Disorder and Anxiety. The Respondent has accepted that the Claimant was at all material times disabled as a result of these conditions.

[5]On 21 August 2017, the Claimant issued an ET1 Claim (2303338/2017) (“the First Claim”) [1-32]. In the First Claim, he brought complaints of disability discrimination (indirect, direct, discrimination arising from disability, and a failure to make reasonable adjustments). It was the Claimant’s case that, although he was still employed by the Respondent, he had experienced poor treatment at the hands of the Respondent, and he felt obliged to present the First Claim in respect of that alleged poor treatment.

[6]A detailed chronology of the events relied upon by the Claimant was included in the ET1. I have set out below a brief summary of some of the key events that are referred to in the Particulars attached to the First Claim, which are pertinent to this application. Where references have been added [#x], these are to the paragraph numbers in the Particulars attached to the First Claim.a. There was an incident on 20 October 2016, when the Claimant says he was subject to a verbal attack by two colleagues, about which he then complained to his line managers [#16].

b. As a result of the Claimant complaining about the alleged assault, he said he was ostracised [#21]. The Claimant complained that the Respondent did nothing to stop him being bullied and ostracised [[#21, 29, 38, 48].

c. Both parties submitted grievances against each other (November 2016) [#33].

d. On 23 December 2016, an Occupation Health referral was made seeking advice on reasonable adjustments for the Claimant, and an OH assessment was made on 3 January 2017. Various recommendations were made by that OH assessment. The Claimant said the recommendations were not followed up [#67-69].

e. The Claimant returned to work at the end of March 2017. The Claimant complained that his line manager had attempted to “brow beat“ him into moving to a new location in Hastings [#84-89, 97]

f. On 25 April, the Claimant requested disability adjustment leave. This was turned down [#93].

g. The Claimant returned to work in August and filed his ET1 shortly thereafter. At the time of submitting his ET1, he was waiting on a decision meeting on his grievance [#111].

[7]An ET3 Response was filed in regard to this claim on 20 November 2017. One of the (many) Grounds of Resistance advanced in the ET3 was that complaints in respect of treatment which occurred before 22 April 2017 should not be entertained by the Tribunal, because they were out of time under section 123 of the Equality Act 2010. It was also denied that the matters complained of constituted a continuing act of discrimination. It was submitted that no good reason had been provided by the Claimant such as to amount to any “just and equitable” reason to extend the time limits [37].

[8]On 20 November 2017, [49] the Claimant wrote to the Tribunal, by email in the following terms, withdrawing his Claim: “Managers acting for my employer, are now acting as to support me, in my efforts to regain remission from the symptoms of my disability, that I may hopefully again, attain the good health enjoyed before this matter arose. I am keen to work with them and do all I can to regain a fulfilled, useful life. The objective of my claim, was to remove the sense of worthlessness inflicted and prove to my employer and to myself, that I have a right to be treated with dignity and also, as a relevant human being. I believe that managers, acting for my employer, are now recognising that errors have been made and are making efforts to help my recovery. I therefore request, that I may be permitted to withdraw my claim against my employer and save both valuable time for the Tribunal and unnecessary time & cost for both parties. I believe I am now being acknowledged as a relevant human being, and that is all I have sought, from the start. Thank you for your assistance. It is not an overstatement, to say that making this claim, may have been the turning point which prevented my suicide. I truly thank you for being there.”

[9]On 15 December 2017, [50] a Judgment was issued by the Tribunal, dismissing the First Claim “following a withdrawal of the claim by the Claimant”.

[10]In regard to the Second Claim, early conciliation started on 6 June 2019 and ended on 6 July 2019. The ET1 claim form in the Second Claim was presented on 27 August 2019 [52-67]. The Claimant by his Second Claim complained of unfair dismissal, disability discrimination (indirect, direct, discrimination arising from disability, and a failure to make reasonable adjustments), victimisation and harassment.

[11]The Claimant set out, at paragraph 6 of the Particulars [64], that, “it is impossible to set out in detail at this stage, just how poorly I have been treated over the last two and a half years, however what follows is a basic framework”. He said that “following the incident referred to below, the Respondent continues to not sufficiently assist in drawing this matter to a conclusion. I raised the difficulties at various times and asked if the bulling could be dealt with”. At paragraph 7 [65], he referred to the incident on 20 October 2016 when he said he had been verbally attacked by two colleagues. He said that what followed is “two and a half years of mismanagement and at times inactive and wilfully poor handling of my employment, and consequently my wellbeing. This ranges from the initial manner in which this incident was dealt with, through to the handling of various Grievances, in a woefully and inadequate manner, through ultimately to my premature dismissal.” At paragraph 8, he refers to a” failure to stop this bulling”, at paragraph 9 to the January 2017 OH Report and to being “browbeaten” into accepting an inappropriate relocation, He also referred (paragraph 10) to being denied access to disability adjustment leave in April 2017.

[12]In the next paragraph, 11, he references to an event that occurred in December 2018, namely an alleged failure to comply with the medical advice following a December 2018 OH Report This is a gap of some 18 months after the April 2017 refusal of disability adjustment leave. Paragraph 12 refers to an alleged refusal in February 2019 to provide certain information in connection with a Grievance, both of which are said to be [paragraph 13] “examples of the poor treatment I have endured over the last two and a half years, and which will be explored in significantly more detail in my Witness Statement”.

[13]The ET3 Grounds of Resistance were served on 22 January 2020 [68- 87]. At paragraphs 7-12 thereof, the Respondent complained specifically of Abuse of Process – duplication of withdrawn claim no. 2302228/2017 and raised issues with Time Limits under s 123 Equality Act with regard to many of the claims made by the Claimant.

[14]At paragraph 14 onwards, the Respondent set out what it described as the “Factual Background”, which led to the Claimant’s dismissal. This narrative starts from 11 December 2018, when the Claimant was said to be on sickness absence. As a result of this absence, it stated that the Claimant exceeded his 20 working day sickness absence trigger for a rolling 12 month period under the Respondent’s Attendance Management Policy. An Occupational Health (‘OH’) referral was made in respect of this period of sickness absence on 17 December 2018, with a follow up requested on 5 March 2019. Previous OH referrals had been made in respect of anxiety/stress and sleep apnoea in August, September and October 2018. On 11 January 2019, an informal attendance review meeting was held, and a Formal Review meeting took place on 17 January 2019. Following the Formal Review meeting, the Claimant’s absence was referred to a Decision Officer for a capability hearing. The capability hearing was held on 1 May 2019, and resulted in the Claimant’s dismissal with effect from 9 May 2019. The Claimant appealed the decision on 9 May 2019 and an appeal hearing was held on 13 June 2019. The appeal was dismissed in a decision letter dated 26 June 2019. One of the matters found on the appeal was that issues from the 2016 grievance that the Claimant asserted remained unresolved had been conclusively resolved through the grievance procedure at the time.

[15]The case was listed for a Case Management Hearing on 14 October 2020. The Respondent prepared a Skeleton Argument for that hearing [88-100] in which it made three applications(i) for a change of the Respondent’s name from the Department of Transport to “Driver and Vehicle Standards Agency” (DVLA);

(ii) for an extension of time for the late service of the ET3; and

(iii) for the striking out of the 4 historic allegations made in the Second Claim by which replicated those in the First Claim under Rule 37(1) as being vexatious and/or an abuse of process; and /or for the striking out of all claims made before 7 March 2019 on the basis they had no reasonable prospect of success because there were out of time, there was no continuing act and it was not just and equitable to extend any time limits. These complaints were repeated in the Respondent’s Case Management Agenda [101-105] and draft List of Issues [106-113]. The Respondent also asked for Further Particulars of a number of matters in the Claimant’s Particulars of Claim.

[16]At the Case Management Hearing on 14 October 2020, the “Driver and Vehicle Standards Agency” was added as the Respondent in the proceedings, in substitution for “Department of Transport” and the Respondent was granted leave to file its ET3 response out of time. Further Particulars were ordered to be provided by the Claimant of “which allegations in the particulars of claim relate to which statutory claims” and to respond to a number of matters set out in bold in the Draft List of Issues. The Claimant supplied an initial set of particulars, [#121-136], which was criticised by the Respondent, whereupon a more concise set of particulars, drafted by Counsel were supplied [141-146]. In response to that further information, the Respondent filed an amended ET3, on 23 December 2020 [#147-174]. Timetabled directions were given for the Full Merits Hearing and the case was listed for 5 days, to determine liability, starting on 1 November 2021. A three-hour Preliminary Hearing was also listed, for today, at the Respondent’s request, to consider its strike out application.

[17]The purpose of the hearing today was to deal with the Respondent’s application that certain of the matters relied upon by the Claimant should be struck out. Evidence

[18]I had before me an Agreed Bundle of some 202 pages. This included the ET1 (and further particulars thereof) and ET3 (as amended) for both claims, the email from the Claimant [49] withdrawing the First Claim and the Judgment from the Tribunal dismissing that claim [50], as well as the Case Management Order from the Hearing on 14 October 2020, the draft list of issues and some correspondence between the parties.

[19]No witness evidence was put in from the Claimant. The Respondent’s application

[20]Put briefly, the Respondent seeks to strike out under rule 37 (1) 1. as vexatious / an abuse of process, those parts of the Claimant’s case in the Second Claim which repeat allegations raised by the Claimant in the First Claim, namely:a. An allegation that the Claimant was verbally attacked and publicly humiliated by two female colleagues on 20 October 2016 [15, #16: para 7 Second Claim PoC];

b. An allegation that the Respondent failed to act to stop this “bullying [17, #21: para 8 Second Claim PoC]”;

c. An allegation that the Respondent failed to implement the recommendations of an Occupational Health Report in January 2017 and was “brow beaten” by Kelly Galton [22 #67, 87-89: para 9 Second Claim PoC];

d. An allegation that the Respondent denied the Claimant access to disability adjustments leave in April 2017 to recover from alleged damage to the Claimant’s wellbeing caused by Kelly Galton [26 #93: para 10 Second Claim PoC]. 2. as having no reasonable prospect of success, in the alternative, those 4 historic matters, together with all and any allegations that predate 7 March 2019, on the basis they are out of time under s 123 Equality Act, are not continuing acts and it would not be “just and equitable” to extend time.

[21]The Respondent also objected to what it said were a number of new allegations in the Further Particulars. Those Further Particulars are helpfully summarised at paragraph 6 of the second set of Particulars, [142- 143], where 15 specific allegations are set out, namely 1 20/10/16 Incident of alleged verbal abuse and subsequent failure to respond appropriately to Claimant’s Grievance process culminating in the Claimant being transferred to Hastings Test Centre. 2 3/01/17 Failure to implement recommendations of OH Report dated 3rd January 2017 3 April 2017 Denial of disability adjustment leave 4 28/11/17 C Compelled to withdraw ET Claim 2302228/2017 (Claim formally dismissed 15th December 2017) 5 From 28/12/17 Failure to implement recommendations of OH Report dated 28/12/17, in particular as regards undertaking an effective, suitable and sufficient Stress Risk Assessment (SRA) and implementing the requirements of the same and concluding the Claimant’s outstanding Grievance. 6 From 4/6/18 Respondent’s refusal to accept the Claimant’s GP’s Unfit to Work certificate (following hospitalisation after fall injuring nose and wrist) and insisting the Claimant attended work to undertake administrative duties. 7 From 28/8/18 Failure to implement recommendations of OH Report dated 17/10/18 as regards the Claimant’s stress as a result of the threat of dismissal for attendance-related issues, including for a suitable and sufficient SRA on that aspect of the Claimant’s stress to be undertaken. 8 7/9/18 Respondent’s management of the Return to Work process following the Claimant being certified fit to return to work by his GP including associated (repeated) OH referrals challenging his fitness to work and delaying his return to work. 9 From 5/10/18 Downgrading the Claimant’s performance in his PMR to “Developing” and subsequently refusing to consider or determine the Claimant’s complaint regarding the downgrading. 10 From 28/12/18 Failure to implement recommendations of OH Report dated 28/12/18, including the completion and effective implementation of a suitable and sufficient SRA and a “mutually agreed [Wellness] action plan” 11 From 6/2/19 Refusal to allow the Claimant to return to work following GP confirming the Claimant as fit to work (i.e. not certifying that he was unfit for work). 12 Feb ’19 Refusal to provide Investigation Report in connection with Grievance process 13 From 27/3/19 Failure to implement recommendations of OH Report dated 27/3/19 including the completion of suitable and sufficient SRA, implementation of a phased return to work, creation of a “mutually agreed action plan” and resolving the identified work-related stressors. 14 9/5/19 Dismissal decision based on attendance Decision to reduce compensation for alleged “lack of cooperation” (reduction subsequently overturned on appeal dated 24th October 2019) 15 26/6/19 Refusal of Appeal against dismissal (decision based, in part, on Claimant’s alleged failure to agree the Wellness Action Plan).

[22]The Respondent says that a number of these were not in the initial Particulars of Claim, and that no application to amend had been made with regard to these. By reference to this list of allegations, the Respondent says allegations 1-3, are replicated from the First Claim; that allegations 4- 9, 13 and 15 are out of time and new, that these are not continuing acts, and time should not be extended. In essence the Respondent says that three matters should remain to be determined by the Tribunal, namely:a. Failure to implement the recommendations of the December 2018 Occupational Health (OH) Report (paragraph 11 of Particulars of Second Claim / paragraph 6(10) of the Further Particulars);

b. Refusal to provide information as part of February 2019 grievance process (paragraph 12 of Particulars of Second Claim / paragraph 6(12) of the Further Particulars);

c. The Claimant’s dismissal for unsatisfactory attendance on 9 May 2019 (paragraphs 15 – 20 of Particulars of Second Claim / paragraph 6(14) of the Further Particulars)

[23]Mr Tapsell did not dispute that allegations 1-3 of paragraph 6 of the Further Particulars / Paragraphs 6 -10 of the Particulars of Second Claim did replicate matters set out in the First Claim. He submitted that many of these matters were continuing acts. The relevant law and rules of procedure Striking out

[24]Rule 37 deals with striking out. So far as relevant, it states that “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; ……. (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. Cause of action or issue estoppel

[25]The doctrine of estoppel by res judicata was first formulated in Henderson v Henderson (1843) 3 Hare 100, and precludes a party from raising in subsequent proceedings matters which could and should have been raised in the earlier ones. It has two principles: issue estoppel and cause of action estoppel. Each is defined as per the explanation in Arnold v National Westminster Bank plc:a. Issue estoppel – “…may arise when a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen the issues.”

b. Cause of action estoppel – “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”

[26]Cause of action estoppel provides for a prohibition on the relitigating of a cause of action in earlier proceedings. In Ako v Rothschild Asset Management Ltd

[2002] EWCA Civ 236

, Ms Ako made a claim for unfair dismissal and racial discrimination to the employment tribunal. She wrote to the tribunal withdrawing her application. The tribunal made an order dismissing the application on withdrawal. When she brought a second claim raising the same allegations, Rothschild said that she was barred from doing so by the principle of cause of action estoppel. In the course of deciding that question, the tribunal found that Ms Ako did not intend to abandon her claim. The Court of Appeal held that she was entitled to bring her second claim, despite the dismissal of the first. At [34] Dyson LJ said: "The passage in the judgment of Buxton LJ is capable of being misunderstood. A person may withdraw a claim or (in litigation) consent to judgment for many different reasons. He may do so because he has accepted advice that his claim will fail; or because he cannot afford to continue; or because he wants to defer proceedings until some other avenue of resolving the matter has been explored; or because he has decided that he is not yet in a position to proceed; or that he ought to proceed before a different tribunal (as in Sajid) or add another party (as in the present case). In some cases, the reasons will indicate that the party has decided to abandon the claim. In others, not so. In relation to the question whether a dismissal following withdrawal (or a consent judgment) gives rise to a cause of action or issue estoppel, I consider that the reasons for the withdrawal or consent are not relevant, unless they shed light on the crucial issue of whether the person withdrawing the application or consenting to judgment intended thereby to abandon his claim or cause of action."

[27]These principles of estoppel were considered by the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd

[2013] UKSC 46

at [17] to [26]. Lord Sumption made clear in that case that the policy underlying these principles is a procedural rule against abusive proceedings [17]. In Nayif v High Commission of Brunei Darussalam

[2014] EWCA Civ 1521

, Mr Nayif issued a claim in the employment tribunal alleging race discrimination. The tribunal held that the claim was out of time. He then issued proceedings in the High Court alleging breach of contract and negligence, covering the same ground. The Court of Appeal held that Mr Naif was entitled to pursue the High Court action. Elias LJ applied the decision in Virgin Atlantic and noted [#14] that “The analysis of Lord Sumption presupposes that there will have been a formal adjudication by a court. That is indeed the typical situation in which the principles arise. But it is well established that this need not be the case. There are circumstances where these principles will operate when the proceedings have been dismissed without any formal adjudication at all.” Rules 51 and 52

[28]Prior to coming into force of the 2004 ET Rules, claims that were withdrawn were not formally dismissed by employment tribunals as a matter of course, and often claims were not dismissed at all unless and until a respondent made an application to dismiss. The question arose in those circumstances whether a withdrawal constituted a decision that could not be re-litigated even if proceedings had not been formally dismissed.

[29]In Mulvany v London Transport Executive

[1981] ICR 351

, the EAT held that the correct approach is to ask the question “why was the first application withdrawn; is there a good reason for making a second application”. Slynn J remarked (at 355B): “These cases are not easy. There may well be instances where a tribunal can say, on the face of the application and the reply, that a case is so misconceived that it ought not to be allowed to continue. Where there is, as is accepted here, room for argument or where there is … a possible explanation as to why the first application was withdrawn and the second started, it is a wrong exercise of the [employment] tribunal's discretion to strike it out as being frivolous merely because it is a second application”.

[30]In Acrow (Engineers) Ltd v Hathaway

[1981] ICR 510

, the EAT held that a procedure adopted by a Claimant of withdrawing his complaint of unfair dismissal but then making a fresh application (still within the time limit) was vexatious. Browne Wilkinson J held that it would not ordinarily be right to make a fresh application without first pursuing the remedy of review (at 514D-G). To do so was vexatious and the second complaint would be struck out.

[31]The 2004 Rules, through r.25, introduced a more formal structure, and it is now well established that a withdrawal is the act of the party in question, whereas dismissal is the act of the tribunal and involves a judicial determination. (For example, in a note submitted by the Respondent from the IDS Employment Law Handbook, entitled “What is a decision” (Volume 5, Tribunal Practice and Procedure, Chapter 2, Tribunal’s jurisdiction) paragraph 2.119 looks at the withdrawal of a claim, and at 2.190 it is noted, citing the Court of Appeal in Barber v Staffordshire County Council,

[1996] ICR 379

, that even though there has been no reasoned decision on the merits, a judgment given after withdrawal, can give rise to cause of action or issue estoppel. A declaration that a claim be dismissed is a judicial act.)

[32]The purpose of dismissal under the 2004 Rules was discussed in a number of cases including Drysdale v Department of Transport (Maritime and Coastguard Agency)

[2014] EWCA Civ 1083

, who referred to the Court of Appeal in Verdin v Harrods Limited

[2006] ICR 396

(#35-40) (a passage approved by the Court of Appeal in Khan v Heywood & Middleton Primary Care Trust

[2006] EWCA Civ 1087

#44 and 72). Many of these cases relied upon Ako v Rothschild Asset Management Ltd

[2002] ICR 899

. The cases on the 2004 rules focused on the significance of withdrawal and what was meant by it. Rules 50 and 51 of the 2013 Rules were intended to clarify the approach that existed under the 2004 Rules.

[33]Rules 51 and 52 of Employment Tribunal Rules of Procedure 2013 now provide as follows: End of claim51. Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order. Dismissal following withdrawal

52. Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless— 1. the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or 2. the Tribunal believes that to issue such a judgment would not be in the interests of justice.

[34]Rule 52(a) requires the claimant to reserve his or her right to bring a further claim "at the time of withdrawal" so that a claimant who fails to do so will not be able to rely on r.52(a) subsequently and may find that the tribunal has automatically dismissed the claim as r.52 states that a tribunal must issue a dismissal judgment unless one of the two exceptions apply.

[35]In Campbell v OCS Group UK Ltd & Ors

UKEAT/0188/16

/, it was noted that no time limits are provided in r.52 within which the tribunal is required to act. Rule 52(a) requires the claimant to reserve his or her right to bring a further claim "at the time of withdrawal" so that a claimant who fails to do so will not be able to rely on r.52(a) subsequently and may find that the tribunal has automatically dismissed the claim, as r.52 states that a tribunal must issue a dismissal judgment unless one of the two exceptions apply. In Campbell, Mrs Justice Simler held that tribunals are not under a mandatory obligation to invite representations from parties before dismissing a claim, but may do so.

[36]In Segor v Goodrich Actuation Systems Ltd [2012]

UKEAT/0145/11

, the EAT made clear that tribunals should always take steps to ensure that litigants, particularly those who are self-represented or have lay representation, who seek to concede a point or abandon it, do so on a clear, unambiguous and unequivocal basis before accepting the concession or abandonment indicated. Langstaff P held [#11]: "What we should say, however, is this. A tribunal will always want to take care where a litigant, particularly one who is selfrepresented or who has a lay representative, seeks to concede a point or to abandon it. It may be a matter of great significance. Though it is always for the parties to shape their cases and for a tribunal to rule upon the cases as put before it, and not as the tribunal might think it would have been better expressed by either party, it must take the greatest of care to ensure that if a party during the course of a hearing seeks to abandon a central and important point that that is precisely what the individual wishes to do, that they understand the significance of what is being said, that there is clarity about it, and if they are unrepresented, that they understand some of the consequences that may flow. As a matter of principle, we consider that a concession or withdrawal cannot properly be accepted as such unless it is clear, unequivocal and unambiguous."

[37]Simler J said of Segor and Drysdale in Campbell [#19,] that the approach in those two cases seemed to her to apply in the context of withdrawal and dismissal under rr. 51 and 52. So far as withdrawal is concerned, she said Segor established that where there is an application to withdraw a Tribunal must consider if it amounts to a clear, unambiguous and unequivocal withdrawal. Though there is no obligation to intervene whether by reason of the principles of natural justice or the overriding objective, tribunals can make inquiries as appear fit. If the circumstances of the withdrawal give rise to reasonable concern on the tribunal’s part, it can make further inquiries. However, the Court of Appeal in Drysdale made clear that there was no obligation to do this. Mrs Justice Simler held that although the principles of natural justice and the overriding objective both apply to r.52, there is nothing in its wording that requires tribunals as matter of course to invite representations before dismissing the proceedings. She said it was a matter for the judgment of the Tribunal to decide whether to make further inquiries, which will depend on the facts and the relevant context.

[38]In the most recent case of Biktasheva v University of Liverpool EAT 0253/19, the EAT considered the effect of rule 52, in the context of an equal pay claim. There, B, a grade 8 university lecturer, presented an equal pay claim that was presented in June 2015 but it was later withdrawn, in February 2016, by B’s solicitors. There was no reservation of any right to bring a further claim and the tribunal subsequently dismissed the claim under rule 52. In June 2018, B sought to present a new ‘like work’ claim, with four comparators. An employment judge found that the tribunal had no jurisdiction to hear claims based on three of the comparators, since they could have been relied upon in earlier proceedings but that the claim could proceed in relation to the fourth comparator, who had been employed in a grade 9 role only since 2016. B appealed and the university crossappealed, arguing that the claims based on all four comparators should have been struck out on the basis that they were precluded by cause of action estoppel. The EAT allowed the cross-appeal. It held that the cause of action in the 2015 and 2018 claims was identical, relying on the same allegation of difference in pay for the same ‘like work’, even though the 2018 claim relied on different comparators. The EAT therefore concluded that estoppel applied. As for rule 52, the EAT questioned whether the rule itself precludes a further claim being brought or whether it merely refers to the common law rule. The EAT noted that the distinction was possibly of some significance because the wording of rule 52 is arguably rather wider than the concept of cause of action estoppel. It took the view that, in setting out the circumstances in which a future claim is precluded, rule 52 merely explains the gist of the common law and is not itself the source of law in this situation. Thus, the law which determines whether further proceedings can be brought remains that of res judicata, including cause of action estoppel. However, the EAT went on to hold that, even if rule 52 were the source of the law on precluding further proceedings in this type of situation, the 2018 claim would have been precluded on the facts because it was the same, or substantially the same, complaint as the 2015 claim. Section 123 Equality Act 2010

[39]Under s 123(1) Equality Act 2010, any complaints of discrimination must be brought within three months, starting with the date the act or actions complained of took place, or such other period as the tribunal considers just and equitable. Section 123 (1) says proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

[40]A useful overview of the principles that need to be considered in regard to the exercise of the "just and equitable" discretion is given in Miller v The Ministry of Justice [2016]

UKEAT/0003/15

: “10. There are five points which are relevant to the issues in these appeals. i. The discretion to extend time is a wide one: Robertson v Bexley Community Centre

[2003] EWCA Civ 576

;

[2003] IRLR 434

, paragraphs 23 and 24. ii. Time limits are to be observed strictly in ETs. There is no presumption that time will be extended unless it cannot be justified; quite the reverse. The exercise of that discretion is the exception rather than the rule (ibid, paragraph 25). In Chief Constable of Lincolnshire v Caston

[2010] EWCA Civ 1298

;

[2010] IRLR 327

Wall LJ (with whom Longmore LJ agreed), at paragraph 25, put a gloss on that passage in Robertson, but did not, in my judgment, overrule it. ...... iii. If an ET directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, “perverse”, that is, if no reasonable ET properly directing itself in law could have reached it, or the ET failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence. No authority is needed for that proposition. iv. What factors are relevant to the exercise of the discretion, and how they should be balanced, are for the ET (DCA v Jones

[2007] EWCA Civ 894

;

[2007] IRLR 128

). The prejudice which a Respondent will suffer from facing a claim which would otherwise be time barred is “customarily” relevant in such cases (ibid, paragraph 44). v. The ET may find the checklist of factors in section 33 of the Limitation Act 1980 (“the 1980 Act”) helpful (British Coal Corporation v Keeble

[1997] IRLR 336

EAT; the EAT (presided over by Holland J) on an earlier appeal in that case had suggested this, and Smith J (as she then was) recorded, at paragraph 8 of her Judgment, that nobody had suggested that this was wrong. This is not a requirement, however, and an ET will only err in law if it omits something significant: Afolabi v Southwark London Borough Council

[2003] ICR 800

;

[2003] EWCA Civ 15

, at paragraph 33.11. DCA v Jones was an unsuccessful appeal against a decision by an ET to extend time in a disability discrimination claim. The Claimant had not made such a claim during the limitation period as he did not want to admit to himself that he had a disability. At paragraph 50, Pill LJ said this: “The guidelines expressed in Keeble are a valuable reminder of factors which may be taken into account. Their relevance depends on the facts of the particular case. The factors which have to be taken into account depend on the facts and the self-directions which need to be given must be tailored to the facts of the case as found. It is inconceivable in my judgment that when he used the word “pertinent” the Chairman, who had reasoned the whole issue very carefully, was saying that the state of mind of the respondent and the reason for the delay was not a relevant factor in the situation.”

12. I should also say a little more about points 10(iii)-(v). There are two types of prejudice which a Respondent may suffer if the limitation period is extended. They are the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses. ....

13. ...... It is clear from paragraph 50 of Pill LJ’s judgment in DCA v Jones that it is for the ET to decide, on the facts of any particular case, which potentially relevant factor or factors is or are actually relevant to the exercise of its discretion in any case. DCA v Jones also makes clear (at paragraph 44) that the prejudice to a Respondent of losing a limitation defence is “customarily relevant” to the exercise of this discretion. It is obvious that if there is forensic prejudice to a Respondent, that will be “crucially relevant” in the exercise of the discretion, telling against an extension of time. It may well be decisive. But, as Mr Bourne put it in his oral submissions in the second appeal, the converse does not follow. In other words, if there is no forensic prejudice to the Respondent, that is (a) not decisive in favour of an extension, and (b), depending on the ET’s assessment of the facts, may well not be relevant at all. It will very much depend on the way in which the ET sees the facts; and the facts are for the ET. .....

[41]In British Coal Corporation v Keeble, the EAT advised that tribunals deciding whether or not to extend the time for presentation of a claim under what is now the EQA should consider in particular the following factors:(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;

(d) the promptness with which the claimant had acted once he or she had known of the facts giving rise to the cause of action; and

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she had known of the possibility of taking action.

[42]Where a number of discriminatory acts occur over a period of time, s123 Equality Act 2010 (EqA) also provides that these acts can be treated as one 'continuing act'. This means that the time limit for presenting a claim, in respect of the entire course of discriminatory conduct, will not start to run until the date of the last act of discrimination. Section 123(3) says(a) conduct extending over a period is to be treated as done at the end of the period;

(b) failure to do something is to be treated as occurring when the person in question decided on it.

[43]The approach to time limits in discrimination cases has been the subject of extensive consideration in the appellate courts. The starting point is the guidance provided by Mummery LJ in the case of Hendricks v The Commissioner of Police for the Metropolis

[2003] IRLR 96

: “48. On the evidential material before it, the Tribunal was entitled to make a preliminary decision that it has jurisdiction to consider the allegations of discrimination made by Miss Hendricks. The fact that she was off sick from March 1999 and was absent from the working environment does not necessarily rule out the possibility of continuing discrimination against her, for which the Commissioner may be held legally responsible. Miss Hendricks has not resigned nor has she been dismissed from the Service. She remains a serving officer entitled to the protection of Part II of the Discriminations Acts. Her complaints are not confined to less favourable treatment of her in the working environment from which she was absent after March 1999. They extend to less favourable treatment of Miss Hendricks in the contact made with her by those in the Service (and also in the lack of contact made with her) in the course of her continuing relationship with the Metropolitan Police Service: she is still a serving officer, despite her physical absence from the workplace. She is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of ‘an act extending over a period’. I regard this as a legally more precise way of characterising her case than the use of expressions such as ‘institutionalised racism,’ ‘a prevailing way of life,’ a ‘generalised policy of discrimination’, or ‘climate’ or ‘culture’ of unlawful discrimination.

[49]At the end of the day Miss Hendricks may not succeed in proving that the alleged incidents actually occurred or that, if they did, they add up to more than isolated and unconnected acts of less favourable treatment by different people in different places over a long period and that there was no ‘act extending over a period’ for which the Commissioner can be held legally responsible as a result of what he has done, or omitted to do, in the direction and control of the Service in matters of race and sex discrimination. It is, however, too soon to say that the complaints have been brought too late.

[50]I appreciate the concern expressed about the practical difficulties that may well arise in having to deal with so many incidents alleged to have occurred so long ago; but this problem often occurs in discrimination cases, even where the only acts complained of are very recent. Evidence can still be brought of long-past incidents of less favourable treatment in order to raise or reinforce an inference that he ground of the less favourable treatment is race or sex.

[51]In my judgment, the approach of both the Employment Tribunal and the Appeal Tribunal to the language of the authorities on ‘continuing acts’ was too literal. They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of this case: see Owusu v London Fire & Civil Defence Authority

[1995] IRLR 574

at paragraphs 21-23; Rovenska v General Medical Council

[1998] ICR 85

at p.96; Cast v Croydon College

[1998] ICR 500

at p.509 (cf the approach of the Appeal Tribunal in Derby Specialist Fabrication Ltd v Burton

[2001] ICR 833

at p.841 where there was an ‘accumulation of events over a period of time’ and a finding of a ‘climate of racial abuse’ of which the employers were aware, but had done nothing. That was treated as ‘continuing conduct’ and a ‘continuing failure’ on the part of the

UKEAT/0517/13/SM

-8- employers to prevent racial abuse and discrimination, and as amounting to ‘other detriment’ within section 4(2)(c) of the 1976 Act).

[52]The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of ‘an act extending over a period.’ I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be side-tracked by focusing on whether a ‘policy’ could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is ‘an act extending over a period’ as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.” 44. Mummery LJ had occasion to revisit this issue in the case of Arthur v London Eastern Railway Limited

[2007] IRLR 58

, a case involving the analogous time provisions in whistleblowing cases: 30. The provision in section 48(3) regarding complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the 3 month period. There must be an act (or failure) within the 3 month period, but the complaint is not confined to that act (or failure). The last act (or failure) within the 3 month may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time. 31. The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the 3 month period and some outside it. The acts occurring in the 3 month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within section 48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them. Section 48(3) is designed to cover such a case. There must be some relevant connection between the acts in the 3 month period and those outside it. The necessary connections were correctly identified by HHJ Reid as(a) being part of a ‘series’ and

(b) being acts which are ‘similar’ to one another. […]

UKEAT/0517/13/SM

-9- 35. In order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3 month period and the acts outside the 3 month period. 45. The way in which an Employment Tribunal is to approach its task in this regard came before the Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

. The Claimant gave oral evidence in that case. Having heard the Claimant’s evidence, the ET allowed five of the Claimant’s complaints to proceed but dismissed the other 12 complaints as being out of time. The EAT and the Court of Appeal both upheld that decision. Hooper LJ gave the leading judgment, with which Hughes LJ and Thorpe LJ agreed. Hooper LJ stated that the test to be applied at the Pre-Hearing Review was to consider whether the Claimant had established a prima facie case. Hooper LJ accepted counsel’s submission that the ET must ask itself whether the complaints were capable of being part of an act extending over a period. Another way of formulating the test to be applied at the Pre-Hearing Review is that the Claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs: see Ma v Merck Sharp and Dohme Ltd

[2008] EWCA Civ 1426

at paragraph 17.” In Lyfar, the Court of Appeal said: “10. I turn to the first issue: the test to be applied by the ET. In Hendricks v Metropolitan Police Commissioner

[2002] EWCA Civ 1686

Mummery LJ (with whom the other members of the Court agreed) set out the test to be applied at a Preliminary Hearing [now a Pre-Trial Review] when the Claimant, otherwise out of time, seeks to establish that a complaint is part of an act extending over a period. The Claimant must show a prima facie case. Miss Monaghan submitted that the ET must ask itself whether the complaints were capable of being part of an act extending over a period. I, for my part, see no meaningful difference between this test and the prima facie test. 11. To resolve that issue it may be advisable for oral evidence to be called, see e.g. Arthur v London Eastern Railway Limited (trading as One Stansted Express)

[2006] EWCA Civ 1358

. […] 46. Further guidance was provided by the Court of Appeal in Aziz v FDA

[2010] EWCA Civ 304

: “33. In considering whether separate incidents form part of ‘an act extending over a period’ within section 68(7)(b) of the 1976 Act, one relevant but not conclusive factor is whether the same individuals or different individuals were involved in those incidents: see British Medical Association v Chaudhary, EAT, 24 March 2004 (unreported,

UKEAT/1351/01/DA

UKEAT/0804/02/DA

) at paragraph 208. 34. 47. More recently, the EAT in South Western Ambulance Service NHS Foundation Trust v King,

UKEAT/0056/19

/ noted that there are generally two ways that conduct might be said to form a continuing act. The first is where there are a series of separate discriminatory acts which are somehow linked (as opposed to being isolated or unconnected). The second is where there is a discriminatory policy or practice, the application of which causes a continuing act of discrimination. 48. Following Hendricks, it is for the employee to show an arguable or a prima facie case that the alleged discriminatory acts were part of a continuing act. 49. Put briefly therefore, the appropriate test for a "continuing act" is (following on from Hendricks) is whether the employer is responsible for "an ongoing situation or a continuing state of affairs" in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents; or put another way ,that the alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of ‘an act extending over a period’. Amendments 50. The Tribunal has the power to grant permission to amend a Particulars of Claim under its r.29 power (to make case management orders) combined with its r.41 power (to regulate its own procedure in the manner it considers fair and having regard to the principles contained in the overriding objective in r.2). When considering whether to allow an amendment to be made, Mummery J, in Selkent Bus Co Ltd v Moore

1996 ICR 836

(at p.843 and p.844) set out some general principles and guidelines as to how an employment tribunal should approach an application to amend. This approach was approved by the Court of Appeal in Ali v Office of National Statistics,

[2005] IRLR 201

. 51. The EAT in Selkent said a Tribunal needed to carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Mummery J said it was impossible and undesirable to attempt to list every relevant circumstance exhaustively but that the following circumstances were certainly relevant:

a. the nature of the amendment: Mummery J observed: “applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal [has] to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.” In Abercrombie and ors v Aga Rangemaster Ltd

2014 ICR 209

, the Court of Appeal said, (at [47]) that the decision of Mummery J in Selkent, taken as a whole, did not advocate an approach under which the introduction of a new cause of action should necessarily weigh heavily against permission being granted. It was held in that case that Mummery J’s reference to the “substitution of other labels for facts already pleaded” (i.e. a relabelling exercise) is an example of the kind of case where there is the introduction of a new cause of action but - other things being equal - amendment should readily be permitted. This is to be contrasted with the introduction of a new cause of action by “the making of entirely new factual allegations which change the basis of the existing claim”. The Court of Appeal in Abercrombie made clear (at [48]) that “the approach of both the Employment Appeal Tribunal and this court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted.” A distinction can therefore be drawn between amendments which add or substitute a new claim arising out of the same facts as the original claim and those which add a new claim which is unconnected with the original claim and therefore would extend the issues and the evidence.

b. the applicability of time limits: Mummery J observed: “If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions”. If the amendment is purely a relabelling exercise, time limits are not a relevant factor (Hammersmith and Fulham London Borough Council v Jesuthasan

1998 ICR 640

). Even if the amendment is more than a relabelling exercise, the time limit is just one (and not necessarily a decisive) factor. In Transport and General Workers’ Union v Safeway Stores Ltd, Underhill J made clear (at [10]) that Mummery J’s observations in Selkent “might, if taken out of context, be read as implying that if the fresh claim is out of time, and time does not fall to be extended, the application must necessarily be refused. But that was clearly not what Mummery P. meant.” Underhill J went on to refer to the following remarks (of Waller LJ in Ali v Office of National Statistics

2005 IRLR 201

at [40]) as being the orthodox position on the authorities in relation to time limits: “There are, as Mummery J said in Selkent, many different circumstances in which applications for leave to amend are made. One can conceive of circumstances in which, although no new claim is being brought, it would, in the circumstances, be contrary to the interests of justice to allow an amendment because the delay in asserting facts which have been known for many months makes it unjust to do so. There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time.”

c. the timing and manner of the application: Mummery J observed: “An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor.” It is relevant to consider for example, why an application was not made earlier and why it is now being made, for example whether it was because of the discovery of new facts or information appearing from documents disclosed on discovery. Questions of delay, as a result of adjournment, and additional costs, particularly if they are unlikely to be recovered by the successful party, are also relevant in reaching a decision, but delay in itself should not be the sole reason for refusing an application. 52. It was emphasised by the EAT in Selkent that whenever taking any factors into account, “the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment” and that “the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it”.

[53]The Presidential Guidance on Case Management (Amendments) states that “Regard must be had to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it”. Respondent’s submissions

[54]Mr Kirk submitted that:a. As set out above, a number of the issues set out by the Claimant [at paragraphs 6 – 10 of Second Claim and paragraph 6(1)-(3), (4) of the Further Particulars] “replicate exactly matters that were already pleaded by the Claimant in respect of” the First Claim, in paragraphs 6-10 of the Particulars of Second Claim [64]: 1. An allegation that “on 20th October 2016, I was unfoundedly verbally attacked and publicly humiliating, by two female colleagues” (at para 16, First Claim, PoC [15]) 2. An allegation that “my employer via Mark Nicholls, applied the provision, criterion or practice (“PCP”) of permitting the passive bullying of me by ostracism to occur” (at para 21, First claim, PoC [17]); 3. An allegation that “on 3rd January 2017, a report was received from DVSA’s Occupational Health service” and that “in failing to act, as advised in the OH report, my employer failed to comply with their duty to remove the disadvantage” (at paras 67-68, First Claim, PoC). He also made a similar allegation of Kelly Galton browbeating her (at para 87/9 First Claim, PoC [22]); 4. an allegation that on 25th April 2017 “I also submitted a request for disability adjustment leave to Mark Nicolls…my request was refused” (at para 93, First Claim, PoC, [26]).

b. unlike in Mulvany, no proper explanation has been offered by the Claimant as to why he has now sought to re-litigate claims which were withdrawn and dismissed long ago;

c. it can be readily inferred from frank wording of the Claimant’s original email withdrawing the First Claim, that he acknowledged at the time that to litigate these issues would have been to waste “unnecessary time & cost for both parties”. This demands a particularly cogent explanation from the Claimant as to why it is necessary to re-litigate these claims now, which has not been provided;

d. the withdrawal of that First Claim by the Claimant was “unequivocal and made without any reservation of rights”. The Respondent asserted that it would be an abuse of process to allow the Claimant to re-litigate these matters following the dismissal judgment; the Respondent referred to rule 52 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and to the EAT’s Judgment in Biktasheva v University of Liverpool

UKEAT/0253/19

;

e. in any event, these events, as well as a number of other matters relied upon by the Claimant in the Second Claim, were “considerably out of time”; indeed a number were out of time before the making of the First Claim, let alone the Second; the fact that these allegations were out of time when the First Claim was submitted (and were even further out of time when brought by way of the Second Claim) is a further aggravating factor;

f. in order to comply with section 123 of the Equality Act 2010, the Respondent points out that the Claimant ought to have presented his complaints of discrimination within 3 months of the acts complained of. On the face of it, three out of the four allegations summarised above are plainly well out of time. The ACAS certificate was dated 11 July 2017, therefore any acts before 12 April 2017 were out of time. (The latest of these allegations is a complaint that the Respondent refused a request for disability adjustment leave on 25th April 2017).

g. the Second Claim was not presented until around September 2019. These claims are therefore over 2 years out of time.

h. the four allegations summarised above in the Second Claim are, in any event, “so hopelessly out of time that they should be struck out as disclosing no reasonable prospects of success”;

i. in the Second Claim, the Claimant did not contact ACAS until 6 June 2019. It follows that any act complained of that pre-dates the period of 3 months prior to the Claimant contacting ACAS (i.e. any act before 7 March 2019) is out of time. Any continuing act would need to extend to a date beyond 7 March 2019.

j. the withdrawal of the First Claim in 2017, in any event broke any chain of causation: the Claimant’s email makes clear he has now got the “management support” he felt he needed;

k. the minutes of the grievance hearing on 12 February 2019 [175-201] make clear the verbal attack relied upon was a one-off historic act;

l. the Claimant’s own Particulars have a gap of 18 months between April 2017 and December 2018, when nothing is relied upon; this again suggests these were not continuing acts;

m. Litigating issues that are, in some instances, some four years old would plainly not be in the interests of justice: they offend against the finality of litigation; no cogent evidence is advanced by the Claimant as to why there were delays, no explanation has been offered; Defending allegations of this age would likely cause any Respondent undue prejudice; the balance favours not extending the time limits;

n. none of the events which the Respondent sought to strike out were continuing events;

o. further, a number of the matters set out by the Claimant in his Further Particulars, had not been pleaded in the ET1, and no application to add them or amend the claim had been made.

p. In regard to the Claimant’s challenge on the name of the Respondent, Mr Kirk said this was simply not relevant – both the claims were originally issued against the Department of Transport; DVLA is an executive agency of the DoT; all the same individuals and incidents are relied upon; He said the 4 key allegations identified should therefore be struck out as vexatious and /or an abuse of process under rule 37(1) (a). The Respondent submitted that in the present circumstances, it is clear that the Claimant’s unearthing of these historic allegation in his Second Claim when these had been previously withdrawn is a “vexatious” way to conduct this litigation, within the meaning of rule 37(1)(a). Further, they and the additional allegations prior to December 2018, should be struck out under rule 37 (1) (a) as having no reasonable prospect of success as they were not continuing and were all so seriously out of time. If the claims were not struck out, a deposit order should be made.

[55]The Respondent does not accept that this is a case where the Claimant can rely on a continuing act tying these allegations with each other or with the later allegations made by the Claimant. Following Hendricks, the Claimant has the burden of proving that there was a continuing discriminatory state of affairs. The Respondent submits that the pertinent question to consider will be whether the acts described by the Claimant describe a continuing state of affairs rather than a succession of unconnected or isolated acts (Hendricks).

[56]The four historic allegations arguably describe matters which were either “one off events” or which the Claimant has not shown continued beyond 7 March 2019. Any argument that they did, is likely to be misconceived given the Claimant’s frank admission in his email withdrawing the First Claim that as at November 2017 “managers, acting for my employer, are now recognising that errors have been made and are making efforts to help my recovery”. Any continuing act was therefore interrupted by the Respondent’s later compliance, even on the Claimant’s own case. Claimant’s submissions

[57]Mr Tapsell made a number of oral submissions, as summarised below.

[58]Mr Tapsell raised a technical point that there could be no issue estoppel as the First Claim was brought against the Department of Transport, whereas while the Second Claim was originally brought against the Department of Transport, the Respondent had had that changed to the DVLA. Therefore, there were different Respondents.

[59]Mr Tapsell accepts that allegations 1, 2, 3 do reflect the allegations in the First Claim that Mr Kirk objects to. Item 4 is a new allegation, not previously advanced. Mr Tapsell said the Claimant would give evidence about this in due course. Item 6 is a single self-contained incident on 4 June 2018, after the Claimant had fallen and broken his nose. Items 7, 8, and 9 are, he submitted, all related to OH reports. These will all be relevant in considering whether the dismissal was unfair – particularly with regard to the Claimant’s attendance record, which goes back to the Occupation Health reports. He said that the August 2018 OH report is specifically referred to in the dismissal letter. It is not possible to consider the December 2018 OH without considering the earlier ones.

[60]He sought to demonstrate that the Claimant complained of multiple acts of discrimination which extended over a period, all of which “stemmed from” the alleged act on 20 October 2016. All the problems stemmed from that incident – all the OH reports occurred because of what happened. Overall, the Claimant had an on-going issue with the outcome of the original grievance that he brought over the October 2016 incident and he never got closure over it. In the notes of the February 2019 Grievance meeting, which Mr Kirk had referred to, at 188, he said it was very clear that the Claimant had rejected the Respondent’s “let it go” refrain.

[61]He did not dispute that the withdrawal email [49] was clear and unequivocal but said it was important to bear in mind the context, especially the Claimant’s state of mind. The delicate state of the Claimant’s mental health meant he was very sensitive and alert to what had happened.

[62]On balance, Mr Tapsell said his primary contention was that these matters were all continuing acts, but at the very least these matters need to be before the Tribunal as background. Discussion 1. Rule 52/estoppel argument

Discussion

[63]The rules at 50-52 Tribunal Rules of Procedure 2013 set out a statutory scheme, they make clear that once a claim is withdrawn, dismissal will be a consequence of withdrawal, unless a claimant expressly says they do not want the withdrawal to become a dismissal or the tribunal believes it would not be in the interest of justice to dismiss the claim. Neither of those conditions apply here. It is now well established that a dismissal is the act of the tribunal and involves a judicial determination. Therefore, a judgment on withdrawal under rule 52 has effect as a judgment determining the claim, with the same consequence that cause of action and issue estoppel can apply. As rule 52 makes clear, where a claim, or part of it, has been withdrawn under rule 51, the subsequent issuing of a judgment by the Tribunal dismissing the claim, means that “the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint”. As made clear by the Court of Appeal in Barber v Staffordshire County Council, even where there has been no reasoned decision on the merits, a judgment given after withdrawal, can give rise to cause of action or issue estoppel.

[64]In regard to the Claimant’s challenge on the name of the Respondent, in my judgement, nothing turns on this: both claims were originally issued against the Department of Transport; and the DVLA is an executive agency of the DoT; further the same individuals and incidents are relied upon in both claims.

[65]There is no dispute that the Claimant’s email of 28 November 2017 was clear, unambiguous and unequivocal. No attempt has been made to adduce evidence about the Claimant’s state of mind.

[66]In my judgment, the issuing of the dismissal judgment prevents the Claimant from raising the allegations made in the First Claim again, notwithstanding there has never having been any substantive adjudication on it. In my judgment, it is clear that the four allegations referred to by the Respondent are either identical or in very similar terms to those contained in the First Claim. That means, using the numbering in paragraph 6 of the second set of Further Particulars, that allegations 1, 2, 3 should be struck out. Because there is no exact correlation between the way maters are put in the First Claim/Second claim or Further Particulars, and for the avoidance of any doubt, all of the factual matters which are referenced in the First Claim are struck out. I accept Mr Kirk’s submission here that the Claimant’s revival of these historic allegation in his Second Claim, when these had been previously withdrawn, is a “vexatious” way to conduct this litigation, and/or an abuse of process within the meaning of rule 37(1)(a). I accept that, in terms of any narrative, the Claimant may well reference these events, but they should not form part of any claim against the Respondent. 2. Time limits

[67]Under s 123(1) Equality Act 2010, any complaints of discrimination must be brought within three months, starting with the date the act or actions complained of took place, or such other period as the tribunal considers just and equitable. However, where a number of discriminatory acts occur over a period of time, s123 also provides that these acts can be treated as one 'continuing act'. This means that the time limit for presenting a claim, in respect of the entire course of discriminatory conduct, will not start to run until the date of the last act of discrimination.

[68]In the first instance on the face of it, allegations 1-10 in paragraph 6 of the second set of Further Particulars, are all out of time – in the case of items 1-5, they occurred some two and half years before the Second Claim was issued, and complaint was made about the timeliness of items 1-3 at the time of the First Claim. Even in regard to allegations 6-9, 10 and 11, these date back to mid 2018 and are on any interpretation of s 123 out of time. Mr Tapsell made no submissions and put forward no evidence with regard to the “just and equitable” discretion to extend time in regard to any of these. His main focus was that these were continuing acts and that is where I have focused my attention. The Respondent has accepted, as I understand it, that irrespective of their dates, allegations 10 [failure to implement an OH report from 28/12/2018], 12 [Feb 2019: Refusal to provide Investigation Report in connection with Grievance process] and 14 [9/5/19 Dismissal decision based on attendance] should be allowed to go forward for determination at the full merits hearing. That therefore leaves allegations 1-9, 11, 13 and 15 for me to consider under this head. All of these allegations apart from 13 and 15 predate the 7 March date [see paragraph 71].

[69]Following Hendricks, it is for the employee to show an arguable or a prima facie case that the alleged discriminatory acts were part of a continuing act. The appropriate test for a "continuing act" is set out in Hendricks, namely whether there is an "an ongoing situation or a continuing state of affairs" in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents. Mr Tapsell submits that there is a thread running through almost all the allegations which has its genesis in the October 2016 incident. He also says that with regard to the unfair dismissal claim, many of the OH reports are relevant and will need to be looked at.

[70]Given the date of the Early Conciliation Certificate in the Second Claim, 6 June 2019, the key date under s 123 Equality Act, is 7 March 2019. Anything before 7 March 2019 that is relied upon is on the face it out of time unless there is a continuing act that can be said to link to an act or omission that is within the time limit.

[71]With regard to the allegations that are challenged under this head, no argument has been advanced that it would be just and equitable to extend time for them, the sole argument advanced, as I understand it to be put by Mr Tapsell, is that these are all continuing acts. I have given careful consideration as to whether any of these could be said to be continuing acts. Although, I have already struck out allegations 1 to 3 on the basis that they are vexatious and an abuse of process as an attempt to relitigate historic matters. Nonetheless, in the event that I erred in regard to that finding, I have also looked at these allegations in terms of the time limit/continuing act arguments.

[72]I have carefully looked at the matters set out in the Particulars of the First and Second Claims and the Further Claim as well as matters pleaded by the Respondent in its various ET3s. I noted for example that at the Grievance meeting discussion in February 2019, [188-200], while the Claimant says of this [182] “it is done. It’s history” he also said “the impact on me remains .. I will not improve” and later on in the context of needing to let go of that incident, [187] he says it is “faded history” and “it has gone”. I also noted that on a number of occasions he referred to the withdrawal of “effective support” since May 2018. In his email of withdrawal [49], the Claimant says that “Managers acting for my employer, are now acting as to support me, in my efforts to regain remission from the symptoms of my disability …. I believe that managers, acting for my employer, are now recognising that errors have been made and are making efforts to help my recovery. … I believe I am now being acknowledged as a relevant human being, and that is all I have sought, from the start.”

[73]I also noted that in the Amended ET3, with reference to the Claimant’s appeal against dismissal one of the matters found on the appeal was that “issues from the 2016 grievance that the Claimant asserted remained unresolved had been conclusively resolved through the grievance procedure at the time”. Details are also given at paragraph 71 of the Amended Response [165] with regard to the Claimant’s initial grievance from November 2016: in an appeal outcome letter dated 20 June 2017, it was agreed, after reviewing the investigation and appeal, that the initial grievance decision should be re-decided. A further decision meeting with the Claimant was held on 8 September 2017 and a decision outcome letter was sent on 11 October 2017. This was appealed and an appeal meeting was held 30 November 2017. An appeal outcome letter was sent to the Claimant on 13 December 2017. Further, at paragraph 74, it is pleaded that there was a four-hour meeting, in April 2018, where the Respondent tried to find a way in which the Claimant could return to work by resolving outstanding issues from 2016, but this did not prove possible.

[74]Finally, I noted that in the Particulars of the Second Claim, there is in fact a long factual gap of some 18 months between the incident relied upon in April 2017 and the next incident relied upon – the OH Report of December 2018.

[75]Looking at the allegations listed by the Claimant in the second set of Further Particulars, all the items from 1- 9, and 11 are plainly out of time. The only thing that can rescue them, absent an application to extend the time, is that they amount to a “continuous act”. I have asked myself with regard to each of the allegations that are challenged under this head, whether there is an "an ongoing situation or a continuing state of affairs" in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents. Taking into account in particular the factual matters I have set out above, I accept that from the Claimant‘s perspective, the issues arising October 2016 incident were not resolved, but that is in my judgment a very different matter from asking whether there was a continuing state of affairs or an on-going situation. In my judgment, "an ongoing situation or a continuing state of affairs" must be more that a lack of satisfaction in the eye of the Claimant. In process terms, the Respondent heard and determined the Claimant’s grievance.

[76]It is plain in my judgment from the decisions of various appellate courts that it is not enough for the Claimant simply to assert that acts are continuing acts or that they evidence a state of affairs extending over a period. The complainant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs. In my assessment, other than for allegations 7-8, I was not satisfied that the allegations that the Claimant seeks to reply on were continuing acts.

[77]The backstop point here is 7 March 2019. Judging from the ET1 and ET3 in the Second Claim, in my assessment, bearing in mind this is both an unfair dismissal as well as a disability discrimination claim, the allegations complained of that fall within the 3 month time limit, relate principally to events arising out of the Claimant’s absences and his attendance record, which ultimately results in his dismissal. In my judgment, matters pertinent to this are arguably so linked as to be continuous or linked acts.

[78]Allegations 1-5, all appear to be linked to each other and to arise out of the October 2016 incident. In my judgment there is nothing sufficient here to be said to amount to a continuing act or state of affairs. I accept that there is a discussion in the February 2019 meeting about the events of October 2016, and that to the Claimant’s mind, matters were still unresolved, but that is not sufficient, in my judgment, to find that any of the allegations listed at 1-5 were continuous, or amounted to an ongoing situation or a continuing state of affairs" such as to fall within section 123 (3). Allegation 5 relates to an alleged failure to implement the recommendations of an OH Report dated 28/12/17, ``in particular as regards undertaking an effective, suitable and sufficient Stress Risk Assessment (SRA) and implementing the requirements of the same and concluding the Claimant’s outstanding Grievance”. This again on its face appears to date back to the October 2016 incident, rather than be linked to what happened in the lead up to dismissal. I note the 18-month gap in the Claimant’s own pleading. I do not accept that any of these allegations are a continuing or on-going state of affairs that links to acts or omissions that are within time. I therefore strike them out. Further, item 1-3 were out of time when the First Claim was made and were the subject of the same complaint at that time. Given that there is no just and equitable case advanced, in my judgment, allegations 1-5 should be struck out.

[79]The allegation at 6/15, (“from 4/6/18 Respondent’s refusal to accept the Claimant’s GP’s Unfit to Work certificate (following hospitalisation after fall injuring nose and wrist) and insisting the Claimant attended work to undertake administrative duties”) is on the face of it, a completely isolated and unconnected incident, arising out of an accident that the Claimant had. No attempt was made to argue to the contrary. That allegation is seriously out of time and is plainly not a continuing act. No argument has been advanced that it would be just and equitable to allow it to remain, and therefore in my judgment, it should be struck out.

[80]Allegation 7, as put, is an allegation that from 28/8/18 there was a ”Failure to implement recommendations of OH Report dated 17/10/18 as regards the Claimant’s stress as a result of the threat of dismissal for attendancerelated issues, including for a suitable and sufficient SRA on that aspect of the Claimant’s stress to be undertaken”. As I have noted, the reason given for the Claimant’s dismissal relates to absence/attendances. On the face of it, this OH report would appear to have some relevance to that and be a link in the process leading to the ultimate reason for dismissal. I also note that in its ET3, the Respondent refers to “Previous OH referrals had been made in respect of anxiety/stress and sleep apnoea in August, September and October 2018”. The ET 3 as part of the “Factual Background” narrative, which led to the Claimant’s dismissal, starts at 11 December 2018, when the Claimant was said to be on sickness absence. I also note that the notes of the Grievance meeting starting at 175 refer [184,190] to the August OH referral and to the Claimant’s concerns that a decision that he was not fit to drive could impact on absence and trigger points. Mr Tapsell told me the dismissal letter referred to the August OH report. On balance, I am of the view that this is arguably part of a series of acts that is connected to the ultimate dismissal. I do not therefore strike this allegation out under this head of challenge, as it does in my judgment appear on its face to be a continuous act.

[81]Allegation 8 is that “7/9/18 Respondent’s management of the Return to Work process following the Claimant being certified fit to return to work by his GP including associated (repeated) OH referrals challenging his fitness to work and delaying his return to work.” For the reasons given with regard to allegation 7, at 81 above, on balance, I again believe this may be part of part of a series of acts is connected to the ultimate dismissal and I do not therefore strike this allegation out.

[82]Allegation 9 is put as “From 5/10/18 Downgrading the Claimant’s performance in his PMR to “Developing” and subsequently refusing to consider or determine the Claimant’s complaint regarding the downgrading.” This appears to be a single unconnected allegation arising out of a performance management hearing. This appears in my judgment to be a self-contained matter. It does not appear to relate to pleaded maters within the time limit. There appears to have been a follow up meeting on 14 November 2018 [175] and a Grievance meeting relating to it on 12 February [175 onwards] and a letter send with regard to it on 18 February. All pf these events pre-date 7 March 2019. Mr Tapsell did not suggest to me by that this was connected with or linked to the absence/ attendance issues that led to dismissal or the other allegations that are pleaded within the time limit. I do not believe this is falls within the section 123(3) definition and I therefore strike it out.

[83]Allegation 10 is not challenged by the Respondent.

[84]Allegation 11 is stated to be that “From 6/2/19 Refusal to allow the Claimant to return to work following GP confirming the Claimant as fit to work (i.e. not certifying that he was unfit for work)”. This does appear to me to pick up on the underlying theme that culminates in the Claimant’s dismissal, namely his attendance record /absences. I note that I the ET3, the Respondent refers to various matters around this time – namely that “On 11 January 2019, an informal attendance review meeting was held, and a Formal Review meeting took place on 17 January 2019. Following the Formal Review meeting, the Claimant’s absence was referred to a Decision Officer for a capability hearing”. I also note that the Respondent accepts that allegation 10, which states that “From 28/12/18 Failure to implement recommendations of OH Report dated 28/12/18, including the completion and effective implementation of a suitable and sufficient SRA and a “mutually agreed [Wellness] action plan”) is not challenged and has been accepted by the Respondent as a matter that should go forward. On the face of it, this allegation does seem to me to be arguably part of a continuing act that continues past 7 March 2019. On that basis, I am minded to find that this is part of a linked series of events, that should be allowed to be raised as specific allegations.

[85]Allegation 12 (Feb ’19 Refusal to provide Investigation Report in connection with Grievance process) is not challenged by the Respondent.

[86]Allegation 13 is stated to be that “From 27/3/19 Failure to implement recommendations of OH Report dated 27/3/19 including the completion of suitable and sufficient SRA, implementation of a phased return to work, creation of a “mutually agreed action plan” and resolving the identified work-related stressors.” This allegation is within the three-month time limit.

[87]Allegation 14 is not challenged by the Respondent.

[88]Allegation 15 relates to the Appeal and is not out of time. New claims

[89]The Order made on 14 October 2020 required the Claimant to identify which allegations in the original particulars of the Second Claim (my emphasis added) related to which statutory claims (paragraph 8.1). The Respondent asserts that in providing the Further Particulars, the Claimant, has in fact gone beyond the original scope of that claim and has added a number of new matters. The Respondent contends that none of the matters set out as allegations (4)-(10), (13) and (15) of the Further Particulars had any basis in the Claimant’s original particulars of the Second Claim. The Respondent’s primary case here is that an amendment application would be required before the Tribunal could hear any such matters.

[90]Tribunals do have a wide degree of flexibility when it comes to case management. Were an application to add claims have been made, the EAT in Selkent said a Tribunal needs to carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing an amendment. Mummery J noted that the following circumstances were relevant (but not exhaustive or determinative:a. the nature of the amendment

b. the applicability of time limits

c. the timing and manner of the application

[91]It was emphasised by the EAT in Selkent that whenever taking any factors into account, “the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment” and that “the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it”.

[92]Looking at allegations 4-9, 13 and 15 purely under this head of challenge, as far as I can ascertain, and again Mr Tapsell did not take me to anything to counter this assertion, it does indeed appear to be correct that they were not previously pleaded and appear for the first time in the Further Particulars. No application has made to amend with regard to any of them. A number of these matters are also out of time.

[93]As far as items 4-6 and 9 are concerned, these appear to me to involve different and new areas of inquiry to those raised in the Second Claim Particulars. These items are not instances where it could be said in my judgment to be simply a question of labelling or adding more factual details to facts which are already pleaded. These allegations are in effect in my judgment attempting to add new claims, which are unconnected with the original pleaded claims and which would in my judgment both extend the issues and the necessary evidence. Some of them relate to matters over 4 years ago now. I can see no good reason to allow allegations 4-6, and 9 to be allowed to go forward. These are new historic matters, they are considerably out of time, and do not appear to have any direct relevance to the events leading to dismissal. It would in my judgment impose an unfair burden on the Respondent to allow these to go forward.

[94]However, with regard to items 7 and 8, which relate to OH Reports, I have already found these are arguably continuing acts. I do not consider those two items would in reality involve consideration of matters likely to involve different and new areas of inquiry. These have also been mentioned by the Respondent in its factual background. I do not believe that it would cause undue prejudice to the Respondent for these allegations to be allowed to go forward as they are in event as Mr Tapsell submitted, likely to be considered under the unfair dismissal claim. On balance, I do not believe that these allegations should be blocked.

[95]Likewise, with regard to allegations 13 and 15, although not initially pleaded, they seem to me to be intricately bound up with the factual narrative leading up to the dismissal and the dismissal process. An appeal is part and parcel of the overall dismissal process.

Conclusion

[96]Taking all these various findings into account, in my judgment, for the reasons set out above, allegations 1-6 and 9 should be struck out under Rule 37 on the basis that they are vexatious / and / or an abuse and / or have no reasonable prospect of success under rule 37.

[97]Therefore, the Second Claim should be limited to the following allegations, (using the numbering set out by the Claimant in his second set of Further Particulars): 7 From 28/8/18 Failure to implement recommendations of OH Report dated 17/10/18 as regards the Claimant’s stress as a result of the threat of dismissal for attendance-related issues, including for a suitable and sufficient SRA on that aspect of the Claimant’s stress to be undertaken. 8 7/9/18 Respondent’s management of the Return to Work process following the Claimant being certified fit to return to work by his GP including associated (repeated) OH referrals challenging his fitness to work and delaying his return to work. 10 From 28/12/18 Failure to implement recommendations of OH Report dated 28/12/18, including the completion and effective implementation of a suitable and sufficient SRA and a “mutually agreed [Wellness] action plan” 11 From 6/2/19 Refusal to allow the Claimant to return to work following GP confirming the Claimant as fit to work (i.e. not certifying that he was unfit for work). 12 Feb ’19 Refusal to provide Investigation Report in connection with Grievance process 13 From 27/3/19 Failure to implement recommendations of OH Report dated 27/3/19 including the completion of suitable and sufficient SRA, implementation of a phased return to work, creation of a “mutually agreed action plan” and resolving the identified work-related stressors. 14 9/5/19 Dismissal decision based on attendance Decision to reduce compensation for alleged “lack of cooperation” (reduction subsequently overturned on appeal dated 24th October 2019) 15 26/6/19 Refusal of Appeal against dismissal (decision based, in part, on Claimant’s alleged failure to agree the Wellness Action Plan).

Introduction

[1]These written reasons are provided at the request of the claimant following oral reasons given on the final day of the hearing. The have been edited to make them shorter and clearer, so this is the final version.

[2]Mr Leslie worked for the DVSA as a driving examiner until his dismissal on 9 May 2019. They say that this was on grounds of capability, given his record of absences from work and also the likelihood of further absences. Those absences relate mainly to his long-standing mental health problems, and the agency agrees that these conditions - depression, anxiety and post-traumatic stress disorder - amount to disabilities. They also accept that they were aware of these conditions and their effects at all material times.

[3]The complaints presented are therefore as follows:a. unfair dismissal under section 98 Employment Rights Act 1996;

b. direct discrimination (under section 13 Equality Act 2010) on grounds of disability;

c. discrimination arising from a disability (under section 15 Equality Act 2010);

d. failure to make reasonable adjustments (under section 21 Equality Act 2010);

e. indirect discrimination (under section 19 Equality Act 2010) on grounds of disability; and

f. harassment (under section 26 Equality Act 2010) on grounds of disability.

[4]There have been three preliminary hearings in this case, the most significant of which was on 11 January this year when Employment Judge Phillips struck out various historical allegations. That resulted from a previous claim form of Mr Leslie’s being withdrawn on 20 November 2017. It was then dismissed, which meant that he was unable to revive those allegations in this claim. As we will describe shortly, when he withdrew the first claim, he felt that he was receiving more support from his managers and was keen to work with them to restore his health and working relationships.

[5]The terms of his withdrawal were striking however. He stated that: “The objective of my claim was to remove the sense of worthlessness inflicted and prove to my employer and to myself that I have a right to be treated with dignity and also, as a relevant human being.”

[6]This reveals the extent to which he felt overlooked and mistreated. Our overall view, which we will explain, is that this reaction is a feature of Mr Leslie’s mental health problems, which are serious, but nevertheless there were failings on the agency’s part, and that his reaction was often extreme, as was the effect on his health.

[7]Perhaps as a result of the extensive disagreements which arose, this is a document-heavy case. We were presented with a bundle of 1600 pages. The claimant’s witness statement alone exceeded 100 pages. Nevertheless, both counsel were able to marshal this material very expertly, focussing on the evidence relating to the agreed list of issues. It is important to emphasise that tribunals should only make findings of fact as far as necessary to support their conclusions. That means that a good deal of the background events, which do not feature in the list of issues, have to be treated more broadly and not all of the incidents can be covered at all. Other events have to be summarised, and any summary runs the risk of inaccuracy, but we need to do so to avoid a judgement of even greater length.

[8]We will deal with each of the eight factual allegations of discrimination in due course, but suffice to say that they relate to failures by the agency to properly implement the occupational health advice they received, their refusal to allow Mr Leslie to return to work when that advice supported it, and their subsequent decisions to dismiss Mr Leslie and reject his appeal.

[9]In addressing these issues we heard evidence from Mr Leslie, and on behalf of the agency from:a. Ms Nicola McLaren, his line manager for most of the events in question and the local driving test manager at the Hastings test centre, where he worked;

b. Mr Mark Aston, her line manager, and the Operations Manager who took the decision to dismiss Mr Leslie;

c. Mr Rowland Williams, a yet more senior manager, who held the appeal; and

d. Mr Charles Perkins, an Operational Deliver Manager, who dealt with a grievance against Mr Leslie’s appraisal score.

[10]Having considered this documentary and oral evidence, and the submissions on each side, we make the following findings.

Findings of Fact

[11]Mr Leslie started work for the DVSA in October 2015. That was just before his 56th birthday. We heard little about his earlier career, but the earliest occupational health report we have, from 3 January 2017 (p.383) states that he worked for the Ministry of Justice before taking up this role, and before that he was a police officer. That indicates that this was perhaps a job to tide him over until retirement, and also meant that he was starting out at a relatively junior level, being managed by younger people who may not have appreciated his broader experience and abilities.

[12]The next medical report, from 9 May that year explains that he has a history of depression going back to 1986. Further: “In October 2016, he describes being subject to humiliation at work at the hands of two female colleagues. He stated that he was publicly criticised having been observed by one of the female colleagues undertaking a particular test manoeuvre whilst examining a candidate. Mr Leslie stated that he was publicly criticised in front of colleagues which caused him some concern. He raised his concerns with his manager but was left feeling unsupported and vulnerable. Mr Leslie raised the issue directly with the colleagues in question but discovered that the colleagues had actively decided to treat him in this manner and felt no apology was due. Following this, he has felt ostracised by his colleagues with them ignoring his presence in the office. Despite raising further concerns, no action was taken and the situation persisted. Mr Leslie began to develop symptoms of depression and heightened anxiety. He continued to feel unsupported by his manager and submitted a grievance. Following submission of the grievance no action was taken for around eight weeks and he perceived his ostracisation to have continued. Mr Leslie’s symptoms worsened and this led to him becoming absent from work. He has consulted his GP and has been recommenced on medication. His grievance was later heard and it concluded that neither party were at fault and mediation should be arranged. The mediation was undertaken in late March with one colleague only. The other colleague had refused to participate. The mediator concluded that mediation was inappropriate. It is understood that a decision was taken to move Mr Leslie to another test centre to separate him from his manager. He had continued to feel unsupported at his place of work and also ostracised by his colleagues. He moved to a different centre in Eastbourne two weeks ago and there has been an immediate improvement in the symptoms of anxiety.“

[13]Save for the fact that the purpose of the move was to separate him from one of the colleagues, rather than his manager, that is an accurate summary of the events of 2016. They are part of the withdrawn allegations and so are not directly relevant to the issues we have to decide, but they cast a long shadow over later events.

[14]The grievance in question was an extensive episode. It occupied most of 2017. Initially it was rejected without a hearing. In due course it was referred to another manager, Mr Perkins, one of the witnesses we heard from, who decided that this process was inadequate and referred it to another manager for reconsideration. That decision then fell to Mr Rowland Williams, another witness, who provided a 15 page decision in October. There was then an appeal to a more senior manager still, which was not decided until December 2017. In all, five managers were involved in this back and forth process.

[15]We note in passing that the outcome letter was in strong terms. Mr Williams described some of Mr Leslie’s comments as outrageous. He also described Mr Leslie as having showed an aggressive response, and unreasonable and irrational behaviour. However, the grievance was partly upheld. In broad terms, Mr Williams accepted that the two female colleagues had been insensitive in raising the issue in an open office but concluded that it did not amount to bullying. That decision was not altered on appeal.

[16]Mr Leslie’s complaints were indeed made in dramatic terms. He described being moved from his previous office at Burgess Hill as a banishment, then later as a banishment by deception, on the basis that he was induced to move on the promise of a later posting to Eastbourne, where he lives. In his comments on Mr Williams’ findings, which are extensive, he refers to a prolonged and pernicious campaign of ostracism, a campaign which threatened his health and safety. He raised allegations of collusion and of interference with the witnesses, said that his efforts to try to engage with one of the colleagues had been “venomously rejected”, and much more in the same vein. He also found it incredible that any other view could be held. It seems to us that he placed no weight on the responses given by the two colleagues, and expected Mr Williams to do the same, and hence to agree with him. For example, he commented that “the definition of bullying is therefore, fulfilled and I have proven that I was openly bullied.” Similar references appear throughout. So, there is a combination of dramatic language and an insistence that the evidence is black-and-white and that if the decision-maker did not see it that way, he or she was part of the collusion.

[17]In his later grievance, to which we will come, he employed the word ‘corrupt’ very frequently about his managers, including those managers who had handled the 2016 grievance. He defined that term to us as “morally debased”. Sometimes the phrase seemed to mean little more than that the decision or outcome was not in accordance with the evidence, as he saw it, but it is still a stinging phrase to use about a manager.

[18]That sort of language appears to us so out of the ordinary and so consistently expressed, that it can only be the consequence of his long and severe depressive illness. Mental health problems vary hugely in their symptoms and extent, and we do not pretend to have any medical expertise to bring to bear, but this sort of phrase appears most pronounced on his part at times of stress and conflict, when his anxiety is most apparent, and so we see no reason to doubt that it is a consequence. He referred in the course of his evidence to having autism too, but we have seen no diagnosis to that effect in any of the extensive medical reports and see no reason to change our view on the basis of that remark. Similarly, we conclude that his very different perception of events and of the motivations of others is also a feature of his disabilities.

[19]Returning to the narrative, and the events of 2017, in August he submitted his claim form to this Tribunal, unhappy with the way his grievance was being handled. As the appeal against his grievance approached, his mental health suffered a sharp decline. He met his line manager, Kelly Galton, at Hastings on 27 November. According to her letter (p.674) he told her that staying at Burgess Hill would significantly harm his well-being, that his “current banishment“ was driving him rapidly to a crisis point and it might only be “days until disaster”. Further, a permanent posting to Hastings “would destroy him”. In view of this he was suspended on medical grounds. (In fact, he welcomed his move to Hastings only shortly afterwards, but he was clearly very anxious about the future at that point.)

[20]Being placed on medical suspension appears to have been a huge relief to him. It was only the next day that he withdrew his Tribunal claim. Over the next few weeks, arrangements were made for a permanent move to Hastings, and the appointment of a new line manager. Then on 20 December he was seen by a Dr Khan in Occupational Health (p.685). Her letter of that date noted that he seemed to be cautiously optimistic about starting afresh with the new contract at Hastings and set out a number of recommendations for his new manager there. These included close communication and regular reviews on a weekly basis to ensure he was coping; the conclusion of the outstanding grievance; a stress risk assessment be carried out to understand any vulnerabilities together with a support plan in place; and ongoing counselling and support. She also noted that he was likely to need more sickness absence than his colleagues should he have similar incidents such as any difficult interaction with a colleague, and so his sickness absence threshold should be increased. It would also be helpful to have a psychiatric report to give an understanding of the depth of his medical issues and the likely impact on future sickness absence. That report resulted in an increase in his absence threshold from the usual 15 days to 20. However, no psychiatric report was commissioned.

[21]That is therefore the background to events in 2018. At the beginning of that year, having welcomed his change of location, he was assigned to new line manager, Nicola McLaren. It is clear that she set about the challenge very willingly, and conducted a stress risk assessment (p.692) with him on 5 January 2018, at the very outset of their working relationship. The measures identified included a phased return to work; ensuring that he was on the same or similar pattern as other driving examiners so that he was not isolated; encouraging him to talk openly about his stress and anxiety at the workplace; allowing some extra time to develop knowledge of the test routes around Hastings; and a development day on 8 January. That was a good start. It shows a clear acceptance of the occupational health report and the fact that he would need more support than colleagues. He described to us his progress in those next few months as rapid and substantial; in fact he told us that it amazed him. In March that year the stress risk assessment was updated and reviewed, and Ms McLaren noted that she was really pleased with his progress.

[22]The first cloud on the horizon occurred on 30 April, when he went off sick following an accident at home in which he fell over and broke his nose. He went to see his GP and was signed off for a week, but he was so worried about taking time off work that he returned early. He emailed Ms McLaren early on 4 May, saying that he would return to work that day “in order to avert a final written warning and possibly dismissal”. She agreed to this and gave him admin tasks to complete because his wrist was also injured. At their return to work meeting she noted that he had had a total of 43 days’ absence in the previous 12 months, although by returning early he was doing what he could to minimise his absence and that was greatly appreciated.

[23]The next incident occurred on 1 August 2018. It concerned a survey carried out on driving examiners to see how much variation there was between their pass and fail rates and other statistics. The information was collected on an Information Gathering Form (IGF) and Ms McLaren filled out the summary (p.713). She noted that “the figures show that Alan is pretty much in line with the rest of the office,” then later, “On the whole I have no major concerns about Alan…”

[24]This might be thought to be damning with faint praise, but he thought it even worse. He responded by email headed “Greetings from 30,000 feet“ in which he said that he was livid. His pass rate was within 1% of the average, and in some aspects as little as 0.1%. He also pointed out that he had only just begun a long recovery, was still being heavily medicated and was driving on new routes. In response, she agreed to amend the comments and this time stated (p.721) “The figures produced on the IGF‘s highlight that Alan is performing well within the office. He is within more than an acceptable variance pass and fails within the office as well as serious and dangerous thoughts. Well done Alan, keep up the good work.” Then later, “Overall as previously mentioned Alan is performing well and I have no concerns.”

[25]Asked at this hearing why she changed the wording so readily she said that it was a reasonable adjustment, a supportive measure, and that it was to appease him. But the more positive comments appear to us to have been fully justified and it is not clear why that approach was not adopted in the first place. We can only conclude that her patience is wearing thin. It seems that the positive atmosphere in January had largely dissipated.

[26]His mental health was also badly affected by this exchange. He was having more trouble sleeping, partly as a result of bladder problems as well as his anxiety. On 8 August he lost concentration on his way to work and reacted late for a roundabout. It was a near-miss. He telephoned Ms McLaren to let her know that he was worried about being so tired and they had an exchange of emails (p.723). She thought he should go back to occupational health for a face-to-face assessment and asked him about reasonable adjustments. He responded, “My concern at the moment is the next two days… Places to stop are minimal. I’ll buy plenty of Red Bull this evening and be sure to have a couple of large cans before I set out each day.”

[27]That did not prove a wise approach. After work on 9 August, after only two more days of work, he had intense abdominal pains and had to go to A&E, which he left at 3.30 am. They told him that it was down to an overdose of caffeine. The root of the problem, once again, was his determination to avoid taking any time off work and so put his job at risk.

[28]He went back to work on reduced hours from 20 August and saw Dr Thornton in the occupational health department on 28 August. His or her report (p.730) stated clearly that she or he did not think it appropriate that he was driving or undertaking driving tests at present. His fatigue could present a risk to him and to the examinee. It also noted that DVLA had been informed and would make their own assessment of his fitness to drive.

[29]Following that report, Mr Leslie was signed off sick by his GP to 1 October, although that was subsequently brought forward to 7 September 2018, a considerable change. Again, it is concerning that he was pressing to come back sooner than he ought.

[30]Nevertheless his concerns about the consequences of his absence were not misplaced. The day before he returned, on 6 September 2018, Ms McLaren emailed him (p.746) to say that he could do admin for the next three weeks, and by then he needed to have provided a letter from his GP. The letter had to confirm that the GP had seen the occupational health report and was still happy that he was fit to drive. Otherwise, it went on, they may have to look to redeploying him into another civil service department, i.e. ending his role as a driving examiner.

[31]That threat and short notice came as a considerable shock to Mr Leslie, particularly given his vulnerability at the time. The tone is also rather official and shows no concern as to how he might react to the possible end of his job. That is surprising given his reaction to setbacks at work. The letter from his GP was however provided and he was able to make a return to his driving duties.

[32]He was next seen by occupational health on 17 October 2018. The report by Dr Murphy (p.792) confirmed that he or she supported the previous advice from Dr Thornton that Mr Leslie was not fit to be undertaking driving duties. He had been referred for a further assessment for sleep apnoea and that was due to take place at the end of November. He was therefore back at work driving against occupational health advice. Given that the likely reaction of management to this news was the removal of his driving duties, and the possible ending of his role, Mr Leslie refused to release it to management. He said repeatedly to us that he was terrified to do so.

[33]There was then a quarterly appraisal review in October 2018 (known as a PMR) when he was given a downgraded assessment of his performance as “developing”. At the previous quarterly review in July Ms McLaren had assessed him as “achieving”. Her summary of the conversation (p.1383) provides: Alan and I discussed the objective set out above and have agreed that he has met the core objectives of the role as a driving examiner. However, Allan’s behaviours this quarter have been less than desirable. He has sent an excessive number of emails to me on a weekly basis in comparison to his colleagues. Often the emails have an underlying tone of sarcasm and this could be seen as bullying and harassment. As Alan’s line manager I spend more time dealing with Alan and his concerns than any other member of staff and Alan needs to have an awareness on how this makes the rest of the team feel. Alan did apologise to me with regards to the contents of the emails. But going forwards Alan needs to realise that his reactions have a greater impact on others. In August I issued Alan and the rest of the team with IGF reports, Alan expressed that he found these offensive and reacted to the feedback given in a negative way. Alan also finds it difficult to let go of an incident that happened over a year ago. This is at the heart of a lot of the issues. To enable Alan to become the best examiner he can be, he needs to let go of the incident that happened and look to the future.”

[34]Clearly this shows some frustration on her part. We have not seen all of the emails he sent her, but certainly the one regarding the IGF was quite hostile. No doubt from her point of view this was an excessive reaction to a minor point. We sympathise with that view but equally, his excessive reaction appears to have been a feature of his anxiety and depression, and so quite predictably he reacted even more strongly to this new and downgraded assessment.

[35]The only way under the agency’s policies to challenge such an assessment is to raise grievance, which he duly did on 3 December. Ms McLarens own views on the matter are set out in an email about a week later (p.877): “I have done nothing but support Alan and I now feel that he is using all he can to make me feel like I have failed as a manager. Alan says that he blames me solely for his stress and anxiety and this is a heavy and harsh statement to make. Especially when I have worked hard to assist him, spend time with him and help him overcome the incident last year. I now feel that because Alan has not been awarded his own way about the quarterly review and his latest bout of absence, he is indirectly bullying me. I believe that Allah knew those comments would upset me and provoke a reaction”

[36]Clearly the working relationship had by now broken down. Given the strained relations at that time it is no surprise that on 13 December Mr Leslie saw his GP and was signed off work again, this time until 6 January 2019.

[37]On receipt of this medical certificate a further occupational health referral was made. That led to another report, this time by Dr Obi (p.810) on 28 December 2018. He confirmed that Mr Leslie was not medically fit for work pending the outcome of his sleep study, and recommended that management undertake a further stress risk assessment and agree an action plan with Mr Leslie to support him on return to work. Some further, more detailed guidance was provided about how to go about that assessment; it was suggested that someone from HR should conduct it rather than his line manager, perhaps with a trade union representative also present.

[38]On 7 January, when the sick-note expired, Mr Leslie was able to return to work. By then he had accumulated 27 days of absence over the past 12 months, taking him again past the trigger point of 20 days. This time he was invited to an absence review meeting on 17 January, by what appears to be a formal template letter, to consider whether he should be given a written improvement warning.

[39]Ms McClaren was concerned about him being back at work at all. On 8 January she emailed HR (p.823) forwarding the occupational health report and mentioned that he had told her that he was “only just” fit for work. Given his previous absences for fatigue she was worried that she might have another lapse of concentration. The final point in that email said this: “Alan was due to have his PMR in December, when he was off sick. On his last quarter review I assessed him as a developing grade, which has led to him submitting a grievance against me. I would have continued with a developing or possibly given a supporting [i.e. a lower grade] due to the behaviours demonstrated. However I am concerned that he cannot be managed under performance management system as he does not agree with it. Therefore should I conduct the PMR or not and based on the fact I don’t feel he is fit to be managed under such his system should I allow him to be in work”

[40]It is not clear what advice she received from HR, if any, but Ms McLaren spoke to him that day about the distinction between short and long-term absences, explaining that if he remained off sick for one long continuous period then he was unlikely to be dismissed until about the nine month stage. That was a considerable relief to him given his anxiety about taking time off work, and the following day, 9 January 2019 he was signed off again until 6 February. That meant that he was not at work for his absence review meeting but his absence was then treated as one continuous period from 13 December and no warning was imposed.

[41]The day after that, on 10 January, Ms McLaren had a meeting with some of the HR team to discuss his situation. It was an unofficial meeting and the only remaining notes are some handwritten jottings from Ms McLaren herself. Mr Leslie describes it as “the secret meeting which decided his fate”. It is difficult to know with any confidence what was discussed, or even who was there. One of the jottings states “Can we take this to a decision meeting?” It mentions the medical opinion that he was not fit for work and one entry states “What in your mind would be a solution/resolution.” And there is mention of the grievance.

[42]There gives some indication that the collective view of management was to bring things to a conclusion, i.e. dismissal, before too much longer. That is also consistent with the view expressed in the email from Ms Mclaren to HR that he was essentially unmanageable under the normal processes.

[43]Mr Leslie then completed, on the agency’s template, a Wellbeing Action Plan (p.859) It is not in our view a plan in anything but name. It is more a cry for help. In response to the first question on the form – “What helps you stay mentally well at work?” – Mr Leslie wrote: “Being treated as a sentient and relevant human being. If I raise something as a concern, please don’t just dismiss it and me as irrelevant. Talk with me and address my concern. Ask if the outcome is helpful. If I insist I am right on a subject, by all means invite me to prove it, but do not expect me to breach integrity and yield to authority, on the basis of my pay grade. Honour in conduct and personal integrity, are in my core. They are not for sale!”

[44]These sentiments continued throughout the form and he ended by stating that telling him to put what happened behind him and move on expressed total ignorance of his daily ordeal and was grossly offensive to him. No clear measures were set out in that document to support him, and it was clearly prepared entirely by him without any input from Ms McLaren or HR.

[45]Shortly afterwards, on 23 January 2019, Ms McLaren referred the question of Mr Leslie‘s continued employment to her manager, Mr Mark Aston. By then, Charles Perkins had rejected his grievance against his appraisal score. He did so on the basis of papers given to him by Mr Leslie and of others sent to him by Ms McLaren. Those papers from her were not shared with Mr Leslie, nor were the contents summarised in an investigation report for him to consider. Mr Perkins felt that that might pour fuel on the fire.

[46]On 6 February Mr Leslie’s sick note came to an end, and he took the view that he wanted to return. But he was not allowed back, pending a futher occupational health report, and his absence continued to be counted in considering his overall time off.

[47]On 20 March DVLA wrote to Mr Leslie to say that he was allowed to continue driving, no doubt having contacted his GP, and on 26 March a further stress risk assessment was prepared between Mr Leslie and Ms McLaren (p.1029). The previous version had been reviewed periodically throughout 2018 but this was a fresh attempt. Mr Leslie, in his comments, highlighted high levels of concern over personal harassment; repeated that he had been “banished to Hastings”; stated that his relations to his managers had become strained to breaking point, and that in the first quarter of 2018 he had had full support from his line manager but that this had been withdrawn; and said that this was why resolution of the issues in 2016/2017 was essential. Clearly he was taking this opportunity to hark back over previous events. Ms McLaren’s comments in response were neutral in tone. She avoided any confrontational language, went over the support that had been given, and suggested that Mr Leslie‘s new manager schedule is in regular one-to-one meetings with him, have development days, continue to support his absence with suitable treatment. (From the beginning of 2019 she was no longer his day-to-day line manager, but had agreed to continue to manage his absence for the sake of continuity.)

[48]Pausing there, it does strike us as odd that she was the one carrying out this stress risk assessment, given the breakdown in their working relations and the advice from occupational health that it should be someone from HR.

[49]She says in her witness statement that it is clear from this document that his No. 1 priority was the resolution of the 2016/17 issues. In fact we can see only one mention of that. On a fair reading, his priority was to get appropriate support and improved relations.

[50]The final occupational health report, and the most significant, was again carried out by Dr Obi, this time on 27 March 2019 (p.1052) He confirmed unequivocally that Mr Leslie was fit to work, stating: “It is my opinion that Mr Leslie is now medically fit to return to work in his capacity as a driving examiner. I would recommend the following adjustments if management is able to accommodate them.”

[51]Summarising them, the first was a phased return to work. Another was that he continue to engage with his GP to manage his background medical conditions. The main section stated, “Management is strongly advised to consider concluding the stress risk assessment as soon as possible and have a mutually agreed action plan with a view to addressing his perceived unresolved work-related stresses. I would recommend that this should be in place just before commencement of the above phased return to work plan and recommendations.”

[52]In response to a number of specific questions raised in the referral letter, Dr Obi also confirmed that Mr Leslie was fit to be managed under the sickness absent procedure and stated, at paragraph 12: “Providing that management has a mutually agreed action plan addressing his perceived work-related stressors, I do not foresee Mr Leslie being prone to further sickness absences due to psychological symptoms.”

[53]In the final paragraph he adds: “In my opinion, ill health retirement is not applicable because Mr Leslie‘s underlying medical conditions are currently treatable and in the majority are stable and controlled.”

[54]Mr Aston, who was by this stage managing the process, received that report on 2 April 2019 and forwarded it to HR. His covering email (p.869) asked, “What do you think of sections 7, 8 and 12?”, i.e. the questions confirming that she was fit to manage under the normal procedure and that with a mutually agreed action plan further sickness absences were not foreseen. That suggests that this was not what he expected to hear.

[55]In response to this report, Mr Leslie was invited to a meeting with Mr Aston on 10 April. It was said to be an informal meeting although he was accompanied by his trade union representative. The focus of that meeting ought to have been on conducting the stress risk assessment and well-being action plan recommended by Dr Obi, but instead Mr Aston appears to have been diverted by the comments in the existing Wellbeing Action Plan written by Mr Leslie himself. Mr Aston’s witness statement highlights the remark at the end of that plan, that telling him to put what happened behind him expressed total ignorance of his daily ordeal. Mr Aston’s view was that Mr Leslie would need to agree to move on before discussing such an action plan.

[56]The meeting lasted for about four hours. The only notes we have on are those prepared by Mr Leslie himself, and they are quite brief. According to Mr Aston’s account, Mr Leslie arrived with a suitcase full of documents, suggesting that he had come prepared to argue over the history of his difficulties but he also accepted that those documents were not explored to any extent.

[57]According to those notes:a. Mr Leslie insisted that there has been corruption, and Mr Aston remonstrated with him - “unless [we] resolve the way you want it’s not resolved”;

b. HR refused to accept any wrongdoing by the management and refused to accept that the decision was corrupt;

c. Mr Leslie was repeatedly pressed to know what the future would be like for him if “the situation” was resolved – “what are the issues that need to be resolved”

d. Ms Meraz (HR Business Partner) insisted that the grievance was dealt with.

[58]Drawing those threads together it does not appear that any real attention was paid to what exactly were his current workplace stresses, and what steps managers need to take to address them. The stumbling block was the events in 2016 / 2017 but it is far from clear that Mr Leslie was the one pressing that issue. The agency’s case is that he was essentially refusing to return to work unless they were re-opened, but that is not borne out by these notes. While Mr Leslie may have earnestly wanted that to happen, it does not follow that he would not return to work.

[59]The next day Mr Leslie emailed Ms Meraz and stated that he had reflected deeply on the conversation and how they had circled back to his key issues, “avoided details and repeated the disagreements, with me seeking to show you, that my assertions are true, supported by the details of evidence.” He suggested instead that she or Mr Aston “prove to him, using evidence, not mere bias opinion, or denial, that my assertions are just as managers claim they are?” She replied that this would be going over old ground and opening complaints that we considered to be closed, adding that “our past experience is that you are rarely satisfied with the outcomes of management investigation, and our attempts to explain events lead to further complaints or debates over issues, which is not productive to moving forwards.”

[60]He replied maintaining his view, saying that going into such detail and doing things right was vital for him. However, he ended: “I am confirmed as fit for work and wish to return. I am content to pursue acknowledgement of failures, whilst at work. Once achieved, I can begin to recover from the adjustment disorder.“

[61]In our view, it is clear from this that he was willing to return to work. We note too that there was no real discussion of medical issues at all, no mention of Dr Obi’s report, of a phased return to work or of what support he might need on return. No one seems to have said at any stage, “Alright Alan, can we just park that and talk about your health? What would we need to do to help you get back to work?“. Mr Aston accepted in his evidence to us that Mr Leslie wanted to return to work and if he was invited back the following Monday he would have turned up.

[62]After that meeting some formal guidance was sought from HR, which is set out in a considered written report (p.1136). After relating the background facts it set out the HR advice and options. The first of these was dismissal for “medical inefficiency” as it is known. The four requisites for this were:a. that Mr Leslie was unable to return to his role within a reasonable timescale;

b. that there were no further reasonable adjustments which could be considered;

c. the business could no longer sustain his absence; and

d. there were no suitable alternative positions available.

[63]That is a helpful summary of the legal position, but on our view of the case it is clear that this approach fell at the first hurdle - Mr Leslie was fit to return to work.

[64]The next option was alternative employment. The advice did not enter into any details about this but noted that Mr Leslie would have to agree to such a move.

[65]The third option was to continue to sustain the absence, and the advice was based on the premise that an attempt had been made by management to address his concerns without success “and as a result he remains on sick leave.“

[66]The final option was headed “return to work“ and simply stated, “If an agreed way forward as recommended by OH can be achieved you may consider facilitating a return to work in line with the recommendations.“

[67]Mr Aston then invited Mr Leslie to a final meeting, to take place on 1 May 2019. The invitation letter (p.1026) was in standard form and simply invited him to a meeting to discuss his sickness absence, warning him that he might be dismissed. It contained no reference to the previous meeting, or acknowledged the fact that he was viewed by occupational health as fit to return to work.

[68]Although this was a formal meeting, and an important one, it seems that few notes were taken. Mr Leslie was accompanied again by his union representative and Mr Aston by Mr Leslie‘s new line manager, Mr Cave. It does not appear that there was a notetaker present. The notes taken were brief, then substantially amended by Mr Leslie, although none of his changes was challenged. This amended version is at p.1183.

[69]These notes appear to indicate Mr Leslie was being steered down a certain path from the outset. The meeting opened with Mr Aston saying: “After our last meeting we tried to address the occupational health report finding. All agreed no further forward so the question has to be asked, are you able to return to work, can you put the events and issues behind you?

[70]Pausing there, that appears to be conflating the issues of returning to work and putting previous events behind him. He replied, “I can live without resolution, as I have said to Claire, medically I remain highly vulnerable without resolution.”

[71]That indicates to us again that he was expressing a preference, perhaps a strong preference, for those issues to be re-opened and re-examined, but he could live without it i.e. he was prepared to return to work without that happening. He repeated that a little later, and although there are references to him wanting to talk about the past rather than the future, he was also saying that the perceived issues within the workplace need to be resolved, which we take to be the ongoing concerns, including his recent concern about the grievance and his appraisal.

[72]Much weight was placed at this hearing on his statement in that hearing that it would take six months for him after resolution to recover, but again there is no ultimatum on his part or an express refusal to return to work.

[73]At the end of that meeting Mr Aston asked whether there were any other adjustments that could be made, specifically whether he had applied for the Civil Service Incapacity Benefit Scheme i.e. ill-health retirement. That was something ruled out in the occupational health report. Once again there was no mention of Doctor Obi’s report or the need for an agreed wellness action plan.

[74]Is it difficult to understand why so much weight was placed by the agency on these ambiguous remarks by Mr Leslie, given the clear medical advice that he was fit to return to work. The option of return to work, one of those raised in the HR advice, was not discussed at all.

[75]The outcome of the meeting was of course his dismissal, by letter dated 9 May 2019 (p.1164). Mr Aston stated that he was satisfied that his line manager had been through with him a wellness action plan and a stress risk assessment, adding that they had met on 10 April 2019 for a four-hour meeting and all had agreed they had not made any progress. But as already noted there was no management involvement in the wellness action plan, and the stress risk assessment process appears to have exhausted its usefulness. The occupational health advice to put this in the hands of someone from HR and perhaps seek more specialist medical advice had not been followed.

[76]One consequence of the dismissal on these grounds was that Mr Leslie became eligible to payments from the Civil Service Compensation Scheme. That requires the dismissing officer to set the relevant level of compensation, between 0% and 100%, depending on the degree of cooperation displayed by the employer in managing his absence. Mr Aston set this at 50% reflecting the relevant guidance ( at p.250) that he had, for example, cooperated with most measures to improve his attendance, kept in touch with the department for some of his absence, shown a fair amount of commitment and desire to return to work etc. This was subsequently upgraded on appeal by the Civil Service Appeal Board to 100%, indicating that he had cooperated fully. Their decision (p.1251) noted that although DVSA were taking into account his continuing mental health issues in connection with his absence, it was not clear how far they did so in their award. The relevant guidance, they stated, “very clearly recognises the impact mental health issues can have on individuals ability to make rational decisions about the future of their improvement. It concluded: “The board … took the view that Mr Leslie‘s mental health issues had a major influence on his perceived attitude and instructs DVSA to increase his award to 100%.

[77]This was not until the following October. By then his appeal against dismissal had also been rejected by Mr Rowland Williams. He was the manager who had dealt so robustly with the 2016 grievance. It is not necessary to say a great deal about the appeal stage. The decision letter (p.1222) gave a characteristically robust assessment of the situation. Although the appeal was meant to be a rehearing of the decision, he did not enter into any discussion of the occupational health report either, or discuss the possibility of a return to work. His focus was also on Mr Leslie‘s perceived intransigence, and so he dismissed the appeal.

[78]Having gone through the main events in question we turn to consider the eight specific allegations of discrimination in the list of issues at paragraph 12. It is not clear why some of these issues were highlighted in preference to other concerns we have noted, but we will deal with them in term. At this stage we are just deciding whether the act occurred, not the reason behind it:a. The alleged failure to implement the recommendations of the occupational health report in August 2018 (mistakenly referred to as the October report, which was not disclosed) recommending a stress risk assessment and other steps: This report dealt with his fatigue and sleepiness and makes no mention of a stress risk assessment, so this allegation appears to be misconceived. In any event, at that stage the original 2018 stress risk assessment was being regularly reviewed, and relations with Ms McLaren were strained but functional.

b. The allegation that the respondent made repeated occupational health referrals to challenge his fit to work and delay his return to work. That does not appear to be a fair criticism either. Although there were numerous referrals to occupational health, there were numerous absences and health concerns which were justified on each occasion.

c. The alleged failure to implement the recommendations of the December occupational health report including a suitable and sufficient stress risk assessment and mutually agreed wellness action plan. Here, the allegation is more appropriate. That report recommended that this stress risk assessment be carried out by HR and with more specialist input, neither of which was done. By then the main workplace stressor was the grievance against Ms McLaren’s decision to downgrade his performance, and it seems to us inappropriate for her to have carried on dealing with his stress risk assessment. That was therefore in our view unfavourable treatment.

d. The refusal to allow him to return to work after the confirmation by his GP on 6 February 2019 that he was fit to return. Given that Mr Leslie wanted to return to work and was not signed off as sick, and that his absence total continued to mount, this too was unfavourable treatment.

e. Failing to provide him with a copy of the investigation report. This is not upheld on the simple basis that there was no such report.

f. Failing to implement the recommendations of the March occupational health report. As with (d) above, this was clearly unfavourable treatment. The main failure here was refusing to let him back to work.

g. His dismissal, which is agreed.

h. The refusal of his appeal against dismissal, which is also agreed

Conclusions

[79]Applying these findings and conclusions to the legal tests, we will start with the complaint of unfair dismissal. This important right is set out in s.94 Employment Rights Act 1996 (ERA), and by s.98, the employer has first to show a fair reason for the dismissal. In this case the reason relied on is capability, alternatively “some other substantial reason”.

[80]If that is shown, then by s.98(4) …the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[81]This is of course a large public employer with access to an expert HR department and so a very high standard of fairness is to be expected.

[82]In case of ill health absence the usual question, underlined by the Employment Appeal Tribunal in BS v Dundee City Council [2014]. IRLR 131 (at para 27) is whether the employer can be expected to wait any longer. However, for the reasons already given, we are satisfied that Mr Leslie was ready and willing to return to work, and so Mr Leslie was not “incapable” of doing his duties. Capability has not therefore been shown.

[83]The alternative of “some other substantial reason” depends on the agency’s view that Mr Leslie was insisting on having the 2016/17 grievance re-opened, alternatively that there was no point in him returning, as it would only result in further absences or disputes.

[84]We have given careful thought to how this impasse arose. The skeleton argument from Mr Kirk set out the numerous occasions when there was some mention of events in 2016/2017 by Mr Leslie, some of which we have already mentioned. It was certainly something which he was keen to pursue at the meeting on 10 April 2019 but as we have already stated, that is not necessarily the same as insisting on it as a precondition of return to work. We note too that he raised these concerns with occupational health in December 2018, and then shortly afterwards with Ms McLaren. They also featured heavily at his dismissal meeting and appeal, with his insistence that previous decisions had been corrupt. However, there was no consideration of a “some other substantial reason” option in the HR advice, nor was the risk of further disputes or absences addressed by Dr Obi. We are not satisfied therefore that this was the reason for dismissal either, or that it was reasonable of the agency to treat it as a sufficient reason.

[85]The only conclusion in those circumstances is that the dismissal was unfair. That conclusion does not deend on any failure of procedure on the part of the agency: instead the whole approach and reasoning justifying the dismissal were misguided, with its excessive focus on this issue of putting the past behind him, and allowing that to derail the discussion. There is therefore no scope for a reduction in the compensation awarded under the principle established in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

which concerns procedural unfairness.

[86]Nor is there any scope for a reduction on grounds of contributory fault, very much for the reasons given by the Civil Service Appeal Board in their 100% assessment. It remains to be considered how long Mr Leslie would have remained in the agency’s employment given his disabilities, and assuming that no unfairness or discrimination had been applied, but that is not a deduction to be made at this stage of the process.

[87]Finally, we were not asked to make any adjustment to compensation on the basis of a failure to comply with the ACAS code of practice and can see no basis to do so. Discrimination arising from disability

[88]The test under section 15 Equality Act is as follows: (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.

[89]Here the unfavourable treatment has been identified from the list of issues, and includes his dismissal. But was that because of something arising from his disabilities? There is relevant guidance for Tribunals on this question and related areas from the Equality and Human Rights Commission Code of Practice, which it may be convenient to set out first: Example: A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker's disability, namely her loss of temper. There is a connection between the 'something' (that is, the loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker. …

[90]Summarising our existing findings, the effects of his condition appear to be:a. the use of dramatic or emotive language;

b. an altered perception of the seriousness of events;

c. an altered perception of the motives of others;

d. a marked difficulty in accepting criticism or adverse events.

[91]The focus by the agency on his moving on from previous events, and their concern that he will not let them go and will continue to argue and absorb management time, perhaps causing further absences, appear to amount to a decision to dismiss squarely as a result of these effects.

[92]It is often difficult to know what motive lies behind a particular step. Paragraph 136 of the Equality Act deals with the burden of proof in discrimination cases, which is often the main dispute. But in Martin v Devonshire Solicitors

[2011] ICR 352

Mr Justice Underhill stated at paragraph 32: “It is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.”

[93]That applies here with some force. It remains open to the agency to justify such unfavourable treatment, but little was said on this aspect in the respondent’s skeleton argument. Reliance was placed on remarks in O’Brien v Bolton St Catherine’s Academy

[2017] IRLR 547

to the effect that the standard of fairness was little differnce to unfair dismissal, but we have found against the agency on that complaint too. There may be a legitimate aim to, for example, avoid stress to managers or excessive use of management time (though that was not alleged) but again, the occupational health advice was that he was fit to return, and that he would then have a satisfactor level of attendance. Direct discrimination on grounds of disability

[94]The test under section 13 Equality Act is as follows: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[95]The question here is whether the agency, in: dismissing him etc, treated him less favourably than it treated or would have treated someone else in the same circumstances apart from his disability. That involves a comparison with someone in the same circumstances, i.e. someone with the same sickness record, and the same difficult behaviours, but which did not amount to a disability. Such a comparison is a difficult exercise in itself, but we see no basis to conclude that such an individual would have fared any better. Hence, we are not satisfied that this complaint is made out; it is rare in practice and has essentially been replaced by the section 15 complaint above. Harassment on grounds of disability

[96]The test under section 26 Equality Act is as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[97]Of the acts held to have occurred above, none seem to us to meet this definition. The dismissal and appeal cannot create a hostile etc. working environment, since they brought the employment to an end. We have found that the dismissal was closely related to the effects of Mr Leslie’s disabilities, but it does not follow that the earlier events, including the failure to implement occupational health, was in any way motivated by his disability. Nor is there any other obvious connection. We see them as shortcomings in handing a difficult absence, with a disabled employee, but in no sense were these deliberate failings, because of the disabilities, and so they did not have the purpose of violating his dignity etc. Such failures may have that effect, but we do not accept that the were done for a reason related to disability. It is not enough that there were shortcomings and that Mr Leslie had a disabilty. Indirect discrimination on grounds of disability / Failure to make reasonable adjustments

[98]These last two complaints both involve a “provision, criterion or practice” or PCP. All of the PCPs proposed mention acts done to Mr Leslie, or rely on a failure to apply their own policy.

[99]The Court of Appeal made clear in Griffiths v Secretary of State for Work and Pensions

2017 ICR 160

, CA that the provision, criterion or practice should be quite general. In that case Elias LJ held that the appropriate formulation was that the “employee had to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. That was the provision, breach of which might end in warnings and ultimately dismissal. It was clear that a disabled employee whose disability increased the likelihood of absence from work on ill health grounds, was disadvantaged in more than a minor or trivial way.”

[100]Framed in that way, the complaint is perfectly intelligble. It might equally be argued that the sickness absence procedure itself is the PCP, and the agency ought to have departed from it and been more flexible. There has to be some general application of this sort, or “group disadvantage”. A failure by the agency to follow its own policy is only a PCP if this is what it normally does, so that having drawn up and trained its staff on those policies, it then fails to apply them in most cases. If that could be shown, a reasonable adjustment might indeed be that they make an exception for Mr Leslie and apply their own policy, but there was simply no evidence of any such general failure.

[101]Similarly the PCPs which depend on acts done to Mr Leslie do not take matters any further. Again, there is no group disadvantage.

[102]There was a final issue concerning time limits. The dismissal was in time but as found at the preliminary hearing, events prior to 7 March 2019 may not be. Of these the only acts were (c) and (d) – the failure to implement the December report and not allowing him back to work in February. In view of our findings that the dismissal was the key act of discrimination this is of little practical effect, but we are satisfied that these are features of a continuing act, i.e. the handling of his sickness absence. That was being dealt with by Ms McLaren then Mr Aston, but each was liaising with Occupational Health and HR as part of a continuum, and in no way separable.

[103]For all of the above reasons, the complaints of unfair dismissal and discrimination arising from disability upheld.

[104]Directions were given for a one-day remedy hearing by video, on a date to be confirmed. Further:a. The claimant is to file and serve an updated Schedule of Loss by 14 December 2021, together with any further documents relating to his efforts to mitigate his loss;

b. The respondent is to file and serve a Counter Schedule of Loss by 14 January 2022;

c. The claimant is to file and serve a witness statement by 28 January 2022, limited to 3000 words;

d. The respondent is to prepare a bundle of documents for that hearing, limited to 100 pages plus this judgment and the witness statement, by 11 February 2022.

Introduction

[1]This remedy hearing follows a liability hearing on 1 to 5 November 2021 which found in Mr Leslie’s favour on his complaints of unfair dismissal and of discrimination arising from disability.

[2]As noted previously Mr Leslie worked for the DVSA as a driving examiner until his dismissal on 9 May 2019. He now says that as a result of his treatment at work he has been unable to work at all during the period of nearly three years since then, and will not be able to do so in the future; further, that he had planned to retire aged 69 in October 2028 when his wife reaches pensionable age. In the meantime he has a police pension of over £25,000 per year. The company on the other hand say that his employment was unlikely to have lasted more than a further 12 months in any event, given his difficulties at work and existing mental health problems.

[3]In addressing these issues we heard evidence from Mr Leslie, and on behalf of the agency from Mr Jacob Stapleton, a Senior Human Resources Business Partner, who gave evidence about typical retirement ages for driving examiners and the sickness absence process which would have continued to apply. Previous findings

[4]Before considering how to approach these questions, it is useful to remind ourselves of the factual position as we found it to be up to Mr Leslie’s dismissal. The full findings remain as previously set out in our liability judgment, but some aspects may be conveniently highlighted.

[5]Mr Leslie started work for DVSA in October 2015, just before his 56th birthday. Before then he had worked for the Ministry of Justice, and before that he was a police officer.

[6]He has long-standing mental health problems - depression, anxiety and posttraumatic stress disorder, and these were exacerbated by an incident at work in October 2016. As we noted, by reference to a medical report at the time “In October 2016, he describes being subject to humiliation at work at the hands of two female colleagues. He stated that he was publicly criticised having been observed by one of the female colleagues undertaking a particular test manoeuvre whilst examining a candidate. Mr Leslie stated that he was publicly criticised in front of colleagues which caused him some concern. He raised his concerns with his manager but was left feeling unsupported and vulnerable. Mr Leslie raised the issue directly with the colleagues in question but discovered that the colleagues had actively decided to treat him in this manner and felt no apology was due. Following this, he has felt ostracised by his colleagues with them ignoring his presence in the office.

[7]That led to grievance proceedings which occupied most of 2017 and we described the extreme feelings which this aroused in Mr Leslie. He referred in correspondence to his managers being corrupt when they disagreed with him, of him being banished to a different office and of suffering mental torture.

[8]In August he submitted a claim form to this Tribunal, unhappy with the way his grievance was being handled. His mental health then suffered a sharp decline, he told his manager that he was considering ending his life, and he was immediately suspended on medical grounds.

[9]Shortly afterwards, he was moved to the Hastings office, he was encouraged by efforts to rehabilitate him, and he withdrew his Tribunal claim, so as we explained previously, the events raised in that claim, in particular the events of October 2016, did not form part of our considerations.

[10]Occupational Health recommended weekly reviews with his new manager, the conclusion of the grievance, a stress risk assessment and ongoing counselling and support. A psychiatric report was suggested but not implemented.

[11]They also noted that he was likely to need more sickness absence than his colleagues should he have any difficult interactions with a colleague and so his sickness absence threshold should be increased, and indeed it was, from 15 to 20 days per year for short term absences.

[12]At the beginning of 2018 his new line manager was Ms McLaren. She carried out a stress risk assessment with him, he had a phased return to work and other steps were taken such as encouraging him to talk openly about his stress and anxiety at the workplace. As a result, his health rapidly improved.

[13]On 30 April he was off sick following an accident at home. That brought his absences for the year to 43.

[14]Then in August there was a falling out with Ms McLaren over a survey on driving examiners, which aimed to detect how much variation there was between their pass and fail rates and other statistics. Mr Leslie was “livid” about the fact that his statistics were extremely close to the average, and yet he was not recognised as having done a good job.

[15]That led to a deterioration in their working relationship. He was not sleeping and lost concentration on the way to work, nearly having an accident. His attempts to stay alert by taking large amounts of energy drinks back-fired when he was taken to the Emergency Department with intense abdominal pains resulting from an overdose of caffeine. The root of the problem, we found, was his continued determination to avoid taking any time off work and so put his job at risk.

[16]The next Occupational Health report at the end of August stated that he was not fit to drive until his sleep issues had been resolved. He was off sick for another week, returning long before his sick note expired. By then, patience was running thin. He was given admin tasks for three weeks and told that he may have to redeployed to other work after that. However, on receipt of a letter from his GP, he was allowed to return to driving duties.

[17]He was next seen by occupational health in October 2018 and again there was firm advice that he ought not to be driving given his sleep apnoea, but given the risk to his job, Mr Leslie refused to disclose that report.

[18]Later that month he had a quarterly appraisal review which gave him a downgraded performance assessment of “developing”, not because of his absences but because of his behaviour. Ms McLaren referred to the excessive number of emails he sent her and their underlying tone of sarcasm which she found intimidating. He raised a grievance about this and that was really the end of their working relationship. On 13 December Mr Leslie saw his GP and was signed off work again, this time until 6 January 2019.

[19]On receipt of this medical certificate a further occupational health referral was made. That led to another report by a Dr Obi on 28 December 2018. He confirmed that Mr Leslie was not medically fit for work pending the outcome of his sleep study, and recommended that management undertake a further stress risk assessment and agree an action plan with Mr Leslie to support him on return to work. Some further, more detailed guidance was provided about how to go about that assessment; it was suggested that someone from HR should conduct it rather than his line manager, perhaps with a trade union representative also present.

[20]On 7 January, when the sick-note expired, Mr Leslie was able to return to work but Ms McLaren explained to him that he would be better off staying off sick and having a long period of continuous absence, rather than several short periods, and so he went home. By then he had accumulated 27 days of absence over the past 12 months, taking him again past the trigger point of 20 days.

[21]While off sick he completed a Wellbeing Action Plan, setting out the changes he wanted in rather emotive terms, starting: “Being treated as a sentient and relevant human being.”

[22]Ms McLaren referred the question of Mr Leslie‘s continued employment to her manager, Mr Mark Aston. By then, his grievance had been rejected. On 6 February Mr Leslie’s sick note came to an end, and he wanted to return, but he was not allowed back, pending a futher occupational health report.

[23]That final occupational health report was again carried out by Dr Obi, this time on 27 March 2019. He confirmed unequivocally that Mr Leslie was fit to work, stating: “It is my opinion that Mr Leslie is now medically fit to return to work in his capacity as a driving examiner. I would recommend the following adjustments if management is able to accommodate them.”

[24]The first of these was a phased return to work. Another was that he continue to engage with his GP to manage his background medical conditions. The main section stated, “Management is strongly advised to consider concluding the stress risk assessment as soon as possible and have a mutually agreed action plan with a view to addressing his perceived unresolved work-related stresses. I would recommend that this should be in place just before commencement of the above phased return to work plan and recommendations.”

[25]In response to a number of specific questions raised in the referral letter, Dr Obi also confirmed that Mr Leslie was fit to be managed under the sickness absent procedure and stated, at paragraph 12: “Providing that management has a mutually agreed action plan addressing his perceived work-related stressors, I do not foresee Mr Leslie being prone to further sickness absences due to psychological symptoms.”

[26]In the final paragraph he adds: “In my opinion, ill health retirement is not applicable because Mr Leslie‘s underlying medical conditions are currently treatable and in the majority are stable and controlled.”

[27]In response to this report, Mr Leslie was invited to a meeting with Mr Aston on 10 April. The meeting lasted for about four hours but no real attention was paid to his current workplace stresses, or what steps managers need to take to address them. The main topic was the events in 2016 and whether Mr Leslie could move on from them. We found, in short, that however much his sense of injustive over those events continued to gnaw at him this was not a barrier to him returning to work.

[28]Mr Aston then invited Mr Leslie to a final meeting, to take place on 1 May 2019. That meeting went over the same ground and resulted in his dismissal, by letter dated 9 May 2019.

[29]One consequence of his dismissal was that Mr Leslie became eligible to payments from the Civil Service Compensation Scheme (CSCS), originally assessed at 50% by Mr Aston, but increased on appeal to 100%, on the basis that there was no real lack of co-operation on his part with his absence management and that more allowance should have been made for his mental health.

[30]As well as finding in his favour on unfair dismissal the specific acts of unfavourable treatment found to have occurred were:a. the failure to implement the recommendations of the December ocupational health report, including a suitable and suficient stres risk asesment and mutualy agred welnes action plan, in particular the fact that the stres risk asesment should have ben caried out by HR (not Ms McLaren) and with more specialist input;

b. the refusal to alow him to return to work after the confirmation by his GP on 6 February 2019 that he was fit to return;

c. failing to implement the recommendations of the March ocupational health report, in particular refusing to let him back to work;

d. his dismisal; and

e. the refusal of his apeal against dismisal.

[31]In short, these are the events of 2019, as distinct from the events of 2016 or earlier. We made no adjustments for contributory fault, for any failure to comply with the ACAS Code of Practice or on grounds that a fair process might have led to the same outcome.

[32]Having heard evidence about later events today, our further findings are as follows. Further findings

[33]According to his CV, Mr Leslie was in the Royal Navy for five years as a young man. He served in the Falklands conflict and his experiences there gave rise to his subsequent PTSD. After that he served in the Sussex Police for 25 years in various roles but he had to retire on ill health grounds due to his anxiety, depression and PTSD. From 2007 to 2010 he was self-employed as an Approved Driving Instructor. Then for the next five years he worked as a court usher at Lewes Crown Court where he received a commendation for tackling and detaining a dangerous prisoner who escaped from the dock. Finally, in 2015, he returned to driving, this time as a Driving Examiner with the respondent.

[34]Since his dismissal Mr Leslie has not made any efforts to look for alternative work. His police pension was worth £25,708.76 in the tax year to 5 April 2021, and his wife also works, so he has been able to manage financially. He put his efforts instead into challenging the 50% CSCS award and then pursuing these Tribunal proceedings. The 100% CSCS award was worth £2,336.38 so the point was more one of principle than to safeguard his financial future.

[35]There is very little medical evidence for the first 12 months or so after Mr Leslie’s dismissal. He has not provided his medical records in full to allow us to see, for example, how often he was seeing his GP, what symptoms he was reporting, what other services he accessed. As already noted, his position in the run up to his dismissal was that he was fit to return to work, and the last Occupational Health assessment from Dr Obi was that he would have been able to maintain a satisfactory level of attendance if adjustments had been made. That is very different from his present position, that he will not be able to work again.

[36]Before embarking on these proceedings his solicitors took the precaution of writing to his GP, Dr Rabuszko, to ask whether he would be able to cope mentally with the process. Dr Rabuszko replied on 10 July to say that there would be some effect on his health, it would be challenging, but “I think he needs to go through with this process to move forward and hopefully attain a better mental health profile when all is completed.”

[37]No further description was given of Mr Leslie’s symptoms at that time but on 24 February 2020 Dr Rabuszko referred him to a secondary mental health service called The Assessment and Treatment Service in East Sussex. The main points to draw form the referral form are that:a. its purpose was to obtain a review of medication and an asesment of his mental health neds and a recommendation for treatment;

b. he had last sen a consultant psychiatrist in 2017;

c. he had a history of self-harm and/or suicide atempts;

d. he was taking a high does of venlafaxine and was experiencing high levels of anxiety and low mod ahead of a Tribunal hearing.

[38]This tallies with the Tribunal record which shows that a telephone preliminary hearing had been listed for 22 January 2020 but had been adjourned at the request of the claimant. It also matches Mr Leslie’s own recollection, that he was referred to a consultant psychiatrist in February 2020 but was not seen; instead he was given further medication. A letter from Dr Rabuszko on 16 March 2020 confirms this. It details the advice from the consultant psychiatrist about medication and Dr Rabuszko also recommended that Mr Leslie refer himself to the Health in Mind service.

[39]There is a further letter from Dr Rabuszko to Health Management Limited dated 6 April 2020. Their role is unclear but they must have written about absences from work. In his reply Dr Rabuszko noted that they would have access to Mr Leslie’s Occupational Health reports. He confirmed that Mr Leslie’s absences in December 2016 (about the time that he first experienced problems at work) were related to anxiety and depression, he went on to explain that Mr Leslie had been suffering from chronic anxiety, low mood and PTSD since the Falklands war. Then: “He had previously been making a good recovery until several stressful work events became apparent where allegations of bullying at work and refusal of fit notes for his adjustment disorder were made.”

[40]Given the reference to 2016 the word “previously” must refer to his health around the time he joined DVSA, but the reference to refusal of fit notes seems to relate to the respondent’s refusal to accept Dr Obi’s recommendation and allow him to return to work. Nothing was said in that letter about his current health apart from his ongoing sleep apnoea but Dr Rabuszko added: “I believe currently there are ongoing tribunals and reports that are affecting his mental health and period of sickness and in view of the work-related issues of alleged bullying and acceptance of fitness to work certificates, I know that his stress levels have increased and he has found difficulties with working continuously in such surroundings with his colleagues.

[41]Summarising this limited information, by this time – nearly a year after his dismissal – Mr Leslie had had his medication reviewed and increased by a consultant psychiatrist and was suffering some increased stress and anxiety as a result of the litigation process. His own statement expanded on the stress caused to him during this process by what he regarded as the respondent’s unreasonable refusal to disclose key documents to him, a dispute in which the Information Commissioner’s Office then became involved.

[42]Unfortunately, as he explained to us, on 24 May 2020 he then used the increased medication he had acquired to take an overdose in an attempt to end his life. Fortunately he was found in time, taken to hospital and successfully treated.

[43]After that serious episode we have another period with very little evidence. On discharge from hospital he was referred to a Veterans Mental Health service, but it is unclear whether this was followed up. Then in 2021 Mr Leslie applied for Employment and Support Allowance, for which he needed a letter from his GP. So, we have another letter from Dr Rabuszko, dated 28 September 2021. It seems to be rather carefully worded. It starts by saying that he has been asked to produce a suitable letter to be backdated to 14 June 2021. Then: “Mr Leslie has certainly been unable to work since that date due to his chronic and unremitting anxiety states related to probably post-traumatic stress disorder since 1990. He has type 2 diabetes and obstructive sleep apnoea. I believe that his inability to work due to his chronic anxiety would be on-going into the future and making him [in]eligible for suitable or similar work in the future.”

[44]This is two years and four months after Mr Leslie’s dismissal, and Dr Rabuszko does not say, as he might, that he has been unfit for work since May 2019. Nor does he attribute his current ill health to his dismissal or even to events at work with DVSA. The only other medical information we have is a fit note from his surgery on 11 November 2021, stating simply: “Unlikely to find gainful employment till retirement”

Conclusions

[45]The first question we have to answer is how long Mr Leslie’s employment would have lasted but for his dismissal. The respondent suggests that it would not have lasted longer than 12 months whereas Mr Leslie says that it would have lasted until 2028.

[46]That lengthy period seems to us quite unrealistic given that Mr Leslie also now says that he will be unable to work ever again. He blames this on his dismissal, but there is simply no medical evidence to link his current mental health with the dismissal. Even the short letter from Dr Rabuszko in September 2021 stating that he has been unfit for work since 14 June 2021 does not connect it with DVSA; instead he attributes it to Mr Leslie’s longstanding PTSD going back to 1990. Given that long history of serious mental health problems, and the time which had elapsed since his dismissal, it is not a natural inference to connect the two. Indeed, from the limited evidence provided by Mr Leslie his mental health appears to have got worse in the run up to the suicide attempt he made in May 2020. Insofar as any cause is indicated in the brief records made around that time it appears to be due to the stress of litigation or of contesting disclosure issues. That is quite separate to the acts of discrimination for which the respondent has been found liable.

[47]Hence, there is evidence that from June 2021 onwards he has been unable to work. That is some indication that his employment with DVSA would not have continued beyond that point too, although it is by no means an inevitable inference. We cannot know how Mr Leslie’s mental health might have progressed had he remained in employment rather than being at home and pursuing employment tribunal proceedings. The stresses and strains of working life might have made his condition worse, or he might have done better with more to occupy his time. A better guide, it seems to us, is his history of employment and the circumstances as they existed at the time of his dismissal.

[48]Reviewing his employment history, this job lasted for three years even though it was ended prematurely. His previous role as a court usher lasted five years, and before that he had three years as a driving instructor. Before that, his long police career was ended by way of retirement due to his mental health.

[49]Focussing on his time with DVSA, it was clear at the liability hearing that the events of 2016 still loomed large at the time of his dismissal. The respondent’s case was that he was simply unable to let go of that incident or the outcome of his grievance, so that a continued working relationship was simply not viable. We found that they made too much of that, and it was something of a pretext for dismissal, but equally he was neverthless adamant that it ought to be re-opened and that otherwise it would take him at least six months to get over it. He continued (and no doubt continues) to have a strong sense of injustice over it, and repeatedly accused his managers of being corrupt over this episode and has referred to his treatment as psychological torture. On any view it would have been difficult to resume a harmonious working relationship. Mr Leslie would have needed to make some changes to his own approach and language to make it viable, and it is far from clear that he would have been willing or able to do so.

[50]Then there is the fact that if he had been allowed to return to work it is likely that some further steps would have been taken over his absence. If he had returned on 6 February 2019 (as he should) there would still have been after an absence of nearly three months (since 13 December 2018). His total absences since 2015 would still have exceeded 120 days, and a warning about his absence would have been perfectly appropriate. Some steps had already begun to address his absence level and there was an ongoing problem in that he persistently attempted to return to work too soon in order to avoid this, which proved counter-productive on occasion. The fact that absences are due to a disabilty does not mean that an employer must simply overlook them. Reasonable adjustments have to be made to ensure a satisfactory level of attendance, and his trigger point for absence management purposes had already been increased from 15 to 20. We made no finding to the effect that that was inadequate.

[51]The fact that such a warning is given does not of course mean that dismissal will follow. Mr Leslie’s absence record might have improved, although in light of later events that now seems unlikely. But a bigger concern is how he would have reacted to such a warning. His view, expressed again at this hearing, was that only two days out of this 120 or so was down to his ill health and the rest was “down to my managers”. This shows that the events of 2016 were still at the front of his mind. That was in his view the cause of his absences (rather than his mental health) and the failure to uphold his grievance, and the refusal to reopen that grievance process, were in his view acts of corruption; by extension any absence management was inappropriate and unfair. Any such warning is likely to have been seen in that light, leading to a futrher appeal and quite possibly to further attempts to re-open that earlier grievance process.

[52]Even if these pitfalls were avoided it is clear that Mr Leslie would have remained highly vulnerable to any setbacks at work. The incident in October 2016 involved two female colleagues criticising him in public over his approach to a parking manoeuvre. But for his mental health problems (and we do not doubt the effect it had on him) that might have been resolved by an apology, or at most by the office move which followed. Insensitive or unprofessional acts do take place at work from time to time. We also recorded the various incidents that led to the breakdown in his working relationship with Ms McLaren – particularly the faint praise given in the IGF survey and the reducution in his appraisal grading – both of which resulted in a fairly extreme reaction on his part. Again, such things may occur from time to time at work. Had his level of absences continued it would have been perfectly understandable for this to be reflected in an appraisal grading, since absence does have an effect on performance, regardless of the cause, and that too might have led to further disagreeements.

[53]On the other hand, we remind ourselves of the Occupational Health advice from Dr Obi that he should be able to return and maintain a satisfactory level of attendance. That view may not take account of the ongoing sense of injustice Mr Leslie was labouring under, but it opens the possibility that if he was able to move on, things might have got back onto an even keel.

[54]There are a range of possible approaches in assessing how long the employment would have lasted. A period of months or years could be arrived at, or a percentage approach could be taken. The latter would be more appropriate if, say, there was an appreciable chance of a very long period of employment. We considered whether to set out our conclusions in stages, with a relatively high chance of the employment continuing for six months, then a lower chance of it lasting for a year, a yet lower chance of it lasting two years and so on. However, given the difficulties in the way of a successful return to work, and the medical evidence of very severe mental health problems having resurfaced since, we do not consider there is any realistic prospect that the employment would have lasted for a period of years. A simple time period approach seems to be indicated, and balancing the relevant factors we assess as a median figure that it would on balance have lasted for 18 months. Mitigation of losses

[55]That 18 month period is therefore the outer limit of what loss of earnings may be recovered. The fact is that he did not make any attempts to look for other work. He says that this was due to his mental health but we have already rejected that. There is simply no evidence of an adverse reaction to his dismissal, and it cannot in our view simply be inferred from his attempted suicide a year later.

[56]There is a duty to mitigate one’s loss, even if the employee does not feel that it is necessary at the time or even reasonable. In Ministry of Defence v Cannock and others

1994 ICR 918

one of the claimants decided not to look for work for nine months after the birth of her baby. The Tribunal concluded that this was a reasonable decision in the circumstances. However, on appeal, the Employment Appeal Tribunal held that she was under a duty to mitigate her loss by continuing to look for work. If she chose not to do so, then she could not continue to claim compensation. The fact that a decision not to pursue another role was reasonable did not mean that she had taken all reasonable steps to mitigate her loss.

[57]There is an obvious parallel here. As we have found, Mr Leslie had his pension and did not necessarily need to work, or at least to go back to work straight away. He elected not to while he pursued his CSCS claim and these proceedings. But that does not mean that he can claim his loss of wages from DVSA. The only period for which compensation may be paid is the length of time it would have taken him to find alternative employment. Clearly he had some options. The main one appears to be returning to work as a self-employed driving examiner, or a job as a court usher, or work in the security industry, perhaps as a fraud investigator, using his skills from his police career. The respondent has provided evidence of these options, and that he could in each case have earned as much as before. The first seems to be the most obvious move. He would be selfemployed and so not subject to the constraints of management. The only obstacle he identified was that to be an Approved Driving Examiner (ADI) he would need to be assessed and approved by DVSA. He felt that they would not approve him, given all that had passed. We discount that possibility. As a former ADI, and one who had worked for DVSA as a driving examiner, this accreditation should have been a straightforward exercise. Making some allowance for possible delay in obtaining that accreditation, and then in re-establishing his own business, we allow a period of 12 months loss of earnings. Injury to feelings

[58]The final major question is the assessment of damages for injury to feelings. We note that there is no claim for personal injury and (again) no medical evidence of such injury.

[59]We remind ourselves that the purpose of such an award is compensation rather than to punish the employer.

[60]The general guidelines that apply to compensation in discrimination claims were set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police

2003 ICR 318

, CA. These guidelines provide for three broad bands:a. a top band aplicable to the most serious cases, such as where there has ben a lengthy campaign of discriminatory harasment;

b. a midle band aplicable to serious cases that do not merit an award in the higher band; and

c. a lower band aplicable to les serious cases, such as where the act of discrimination is an isolated incident or one-of ocurence.

[61]The President of the Employment Tribunals has issued periodic guidance on the appropriate award in each Vento band, and the most recent applies to for claims submitted after 6 April 2019. This provides that:a. awards in the lower band should fal betwen £90 to £8,90;

b. awards in the midle band should fal betwen £8,80 to £26,30; and

c. awards in the uper band should fal betwen £26,30 to £4,0, with the most exceptional cases capable of exceding that uper limit.

[62]This exercise is far from straightforward. Mr Leslie’s case is essentially that his suicide attempt followed as a direct result of his dismissal and so his injury to feelings should be at the top of the top band, £44,000, but we have rejected that simple or automatic connection and he has provided very little evidence or even description as to the effect on him of his dismissal.

[63]We also have to guard against attributing all of the ill effects to the acts of discrimination which we have found, i.e. to the events of 2019. It is clear that the events of 2016/17 were still and are still a significant part of the sense of injustice he feels, indeed are the most significant aspects.

[64]Looking first at the overall effect on Mr Leslie of events at work, including those earlier events, we take the view that it was a major and all-consuming episode for him. In our decision on liability we quoted some of the passages he set out in his Wellbeing Action Plan about wanting to be treated as a sentient human being, and the equally dramatic language with which he withdrew his initial employment tribunal claim. It was clear that he felt intensely about these events and those feelings led to several lengthy periods of ill health and absence from work. On that basis therefore we conclude that this is a case which would fall (as a starting point) in the upper band.

[65]We were referred to a number of cases in Harvey on Industrial Relations and Employment Law, although parallels are hard to find and each case turns on its own facts. The main feature here is Mr Leslie’s vulnerability, not the steps or actions taken against him by the respondent. It is well-established that a wrongdoer has to take the victim as they find them, and that whereas one person my shrug off adverse events another may be badly damaged by them. This is known as the “egg-shell skull” principle.

[66]The only case mentioned on his behalf was Tameside Hospital NHS Foundation Trust v Mylott (Manchester) (Case No 2403493/07, 9 February 2010, unreported,

UKEAT/0352/09/DM

, where an award of £16,000 was made. The description reads: The claimant was an Accounts Payable Manager in the respondent's Finance Department. He went off sick with stress and made a complaint about bullying following a meeting at which the Deputy Director of Finance was rude to him about some work which she thought he should have done but which he said was someone else's responsibility. The grievance process was mishandled over many months in a way which involved breaches of the respondent's duty to make reasonable adjustments including that the respondent should have conducted its own independent management review into the bullying allegation and made a finding on it. A consequence of the mishandling was that the claimant failed to recover his health and was eventually dismissed as a result. He suffered a significant injury to his feelings including a loss of trust in his employer and uncertainty about the workplace and job security during and after his employment.

[67]This has some similar features, in that it involved a grievance process, arguments over that process, stress-related absence and ultimately a dismissal. In Mr Mylott’s case it may well be that all of these aspects were considered to be acts of discrimination. But again, the personal impact of these events may differ widely from person to person. That impact is shown to some extent, in both cases, by the stress-related absences, and in Mr Mylott’s case it sufficed to bring him into the bottom of the Upper Band. That is a farily rough and ready comparison, but it reinforces our view from that the intense emotions described by Mr Leslie at various stages that this should fall in the upper bracket. We assess the overall impact in financial terms as £30,000.

[68]However, not all of that can be ascribed to the events of 2019. Some apportionment has to be made, as explained by the Court of Appeal in Sutherland and others v Hutton and others

[2002] IRLR 263

CA. An example is the case of Sadler v Portsmouth Printing and Publishing Ltd

UKEAT/0280/04

, where the award of injury to feelings was reduced by 80% to reflect the extent to which the injury was attributable to the discrimination.

[69]Mr Leslie’s sense of injustice was largely due to the events of 2016. That was the cause of his periods of absence with stress and was the main topic of discussion in the meetings leading up to his dismissal. The dismissal was nevertheless significant in that it brought to an end his long campaign, but it was not the main feature. We assess the proportion attributable to the relevant acts of discrimination here as 40%, and so the amount of compensation is reduced to £12,000. Calculations

[70]It remains to quantify the combined effect of these decisions. Since we did not conclude that a long period of loss of earnings was appropriate the simplified pension calculation method can be used, and the relevant figures are as follows: Pay in former employment Per year Per month Per week Gross pay £25,514.00

£2,126.17

£490.65 Net pay after tax and NI £20,997.60

£1,749.80

£403.80 Employer's Pension contribution £586.82

£48.90

£11.28 (at 2.3%) Total net package £21,584.42

£1,798.70

£415.08 Compensatory Award 12 months net loss £21,584.42 Loss of Statutory Rights £500.00 (Civil Service Absence Benefit) -£2,336.38 Net sum £19,748.04 Basic Award £2,207.93 (agreed) Total Award £21,955.97 Interest on Financial Loss Day of Calculation 11 March 2022 Act of discrimination 09 May 2019 Days between 1037 Days from mid-point 519 Mid-point date 09 October 2020 Rate of interest 8% Interest £2,497.57 Non-financial loss Injury to Feelings £12,000.00 Interest on Non-Financial Loss Day of Calculation 11 March 2022 Date of Injury 09 May 2019 Days between 1037 Rate of interest 8% Interest £2,727.45 Summary of Losses Financial loss £21,955.97 Interest £2,497.57 Non-financial loss £12,000.00 Interest £2,727.45 Total £39,180.99

[71]Since there is a tax-free allowance of £30,000 and the award of injury to feelings is not taxable, there is liability to tax on this amount.