Mr C Afari v ICTS (UK) Ltd and Others: 2305759/2021

EMPLOYMENT TRIBUNALS

Case No 2305759/2021

Between

Mr C. AfariClaimant

(1) ICTS (UK) Limited (2) Mr R. Frost (3) Corps Security (UK) LimitedRespondent

Before

Employment Judge Massarella

In person for claimant

Date 4 June 2025

JUDGMENT

[1]the Claimant’s employment did not transfer from R1 to R2 by operation of TUPE because he was not assigned to the relevant grouping immediately before the transfer;

[2]the Claimant’s claim that his dismissal was an act of victimisation by R1 succeeds;

[3]all other claims of victimisation by R1, R2 and R3 are not well-founded and are dismissed;

[4]the claims of disability discrimination by R1, R2 and R3 are not wellfounded and are dismissed;

[5]the claims of unauthorised deduction from wages (including holiday pay) by R1 are not well-founded and are dismissed; Case Number: 2305759/2021 2

[6]the claim in respect of alleged breaches of the Working Time Regulations by R1 is not well-founded and is dismissed.

REASONS

[1]Early conciliation for ICTS (UK) Ltd (‘R1’) and Mr Frost (‘R2’) began on 13 August 2021 and ended on 24 September 2021. The Claimant went through early conciliation for Corps Security (UK) Ltd (‘R3’) between 20 and 22 October 2021. The claim form was presented on 22 October 2021. At that point the Claimant was still employed by R1.

[2]There was a service provision change from R1 to R2 which took place on 1 November 2021. The Claimant was dismissed on 3 November 2021.

[3]There was a first preliminary hearing before EJ F. Allen on 10 March 2023. She ordered the Claimant to provide further details of his claim and/or of the parties to agree a list of issues before the next preliminary hearing. She also listed this final hearing.

[4]Judge Allen listed the case for a further preliminary hearing to decide whether the Claimant was a disabled person at the material time.

[5]The next preliminary hearing took place on 22 June 2023 before EJ Moor, by which time the Respondents had conceded disability by reason of hypertension and depression.

[6]The Judge spent part of the hearing clarifying the list of issues. She permitted the Claimant to include complaints of disability-arising discrimination and victimisation in relation to his dismissal on 3 November 2021, subject to the issue of time limits being determined at the final hearing. She did not permit him to include other claims. She recorded that the Claimant did not proceed with his application to amend to include claims of automatically unfair dismissal or ordinary unfair dismissal.

The hearing

[7]We had a bundle of documents of 1794 pages. At the start of the hearing, we told the parties that we would not read the bundle in full; they must take us to the documents they wished us to see in cross-examination or closing submissions.

[8]The Claimant confirmed at the beginning of the hearing that he did not require any adjustments, other than additional breaks if needed; at various points in the hearing, he asked for breaks; the Tribunal also decided to take additional breaks when it appeared to us that he might benefit from them.

[9]We heard evidence from the Claimant. On behalf of the First Respondent, we heard evidence from 9.1. Mr Ryan Frost (Training Coordinator, R2); Case Number: 2305759/2021 3 9.2. Mr Robert Ellis (Recruitment and Administration Coordinator); 9.3. Ms Vicky Smith (Recruitment and Administration Manager); 9.4. Mr Matthew Skinner (Company Secretary and Legal Counsel).

[10]On behalf of the Third Respondent, we heard from: 10.1. Mr Fred Lambrechts (Project, Mobilisation and Retention Manager); 10.2. Mr Ken Fissenden (Operations Director, Amazon Account).

[11]The Tribunal read the witness statements on the first morning of the hearing, along with a helpful opening note prepared by Mr Ramsbottom (R1/R2’s representative). After some discussion it was agreed that the correct version of the list of issues was the one contained in the preliminary hearing summary of EJ Moor. Mr Ramsbottom clarified that the Respondent was running a justification defence in relation to the s.15 EqA claims in Issues 15.2 and 15.3, but not in relation to Issue 15.1.

[12]R1 had previously been ordered to provide disclosure of additional documents; it had confirmed in correspondence that none of those documents were in its possession or control; the Claimant sought to challenge that. We heard submissions from both parties as a result of which the Tribunal accepted R1’s explanations in relation to 7 of the 8 categories but ordered it to conduct a further search for the remaining category (written communications from Amazon in relation to Mr Michael Tomiloye), which led to a small number of further documents being disclosed on the second day of the hearing. The Tribunal explained to the Claimant that he could cross-examine the Respondent’s witnesses as to the failure to secure/produce the documents in the other categories; he did not do so.

[13]We had written submissions on behalf of the Respondents, which the representatives then supplemented orally. The Claimant made brief oral submissions.

[14]I warned the parties at the end of the hearing that, given the volume of documentation and the number of issues to be determined, there was likely to be a delay in sending out the judgment. That proved to be the case, in part because of pressure on judicial resources, in part because of the competing demands of other cases. The Tribunal apologises to the parties for the delay.

Findings of fact

[15]The Respondents accept that the Claimant had hypertension and depression at the material time and that these impairments amounted to a disability. He did not tell R1 when he began his employment that he considered himself a disabled person by reason of these conditions or that he might need adjustments. His only reference to them was to Ms Hawes (see below at para 22).

[16]Both R1 and R3 provides security services to clients in the UK. R1 provided services to Amazon at its Dartford site until 1 November 2021, when there was a TUPE transfer of those services to R3. Mr Frost (R2) is a manager employed by R1. Case Number: 2305759/2021 4

[17]The Claimant commenced employment with R1 on 23 June 2021. He was offered and accepted the position of security supervisor, based at the Amazon site in Dartford. He was employed to work a variety of shifts, including day and night shifts, at all locations across the site.

[18]When he started, the Claimant’s line manager was Ms Claire Hawes. He was provided with copies of his standard terms and conditions and of the employee handbook. Between 23 June and 16 July 2021, he was inducted and trained.

[19]He did not start to perform his role until 16 July. He did his first night shift on 17 July 2021 and the second the following night.

[20]On 19 July 2021, the Claimant wrote to Mr John Lloyd (acting site manager). He told Mr Lloyd that he had hypertension, which made him a disabled person under the Equality Act. The email uses the statutory language (‘substantial and long-term adverse effect’ etc.). He told him that his blood pressure had risen after his first two shifts. He said that:1 ‘As a matter of facts and law, as per my disability and its impairments I cannot work on night shifts anymore as from today’s date 19/07/21 and the hours I can work a week is 3 days as per the roster pattern. And respectfully putting this letter formally to inform your organisation to make reasonable adjustment as I may disabled person due to my suffering of hypertension and to remove those barriers to enable me to continue working with the organisation […] As a matter of facts and law by your organisation failure to make reasonable adjustments will be subject to discriminatory acts contrary to section 15 of Equality act 2010’.

[21]Tribunals often criticise employers for poor practice in dealing with disability issues. We comment less frequently on poor practice by disabled employees especially one who, like the Claimant, was well-versed in employment law. The Claimant told the Tribunal that he had brought several Employment Tribunal cases against previous employers (he could not remember how many). A disabled employee is, of course, not obliged to disclose his disability on appointment, but if he chooses not to do so, he is unlikely to be well-placed to criticise his employer for failing to accommodate the disability. In this email the Claimant was simultaneously disclosing his disability, requiring (rather than requesting) adjustments and laying the groundwork for an allegation of unlawful disability discrimination before the Respondent had any knowledge (actual or constructive) that he might be a disabled person or might be at any disadvantage. This was the first instance of a pattern which emerged: when the Respondent asked him to do something he did not want to do, or did not do something he wanted it to do, he responded with confrontation rather than discussion, more often than not giving an ultimatum and/or threatening legal action.

[22]Mr Lloyd replied later the same day in a notably even-handed fashion, asking if the Claimant had previously raised this with management. He asked him to confirm that he was willing to work on a rota pattern of 3 days on and 6 days off. He thanked him in advance for his time ‘during what is clearly causing you an amount of discomfort and concern’. The Claimant replied that he had told Ms Hawes during the training period, in the context of a discussion about the fact that R1 conducted blood and alcohol tests on its employees, that he took medication for high blood pressure; she said that he should let management 1 Original format retained when quoting from contemporaneous documents Case Number: 2305759/2021 5 know. He did not tell Ms Hawes that he might need adjustments because of his hypertension; he made no mention of depression to Ms Hawes or to Mr Lloyd. He confirmed to Mr Lloyd that he could no longer work nights.

[23]It was agreed that the Claimant would no longer work as a supervisor, but as a security guard. On 21 July 2021, the Claimant was sent an amendment to his terms and conditions.

[24]Thus, within two days of his making request for adjustments, it was approved and implemented by the Respondent, without requiring the Claimant to attend an occupational health appointment or provide any medical evidence relating to his health condition. In our experience, few employers would be so unquestioning. We think the Respondent was probably cowed by the tone and language of the Claimant’s email and thought it best simply to agree to his stated requirements.

[25]The Claimant continued to work at reception - but not as a supervisor - as well as at the gatehouse and elsewhere on the site. It was not agreed by the Respondent that he would work exclusively at the gatehouse; that is consistent with Mr Lloyd’s later email of 13 August 2021, which confirmed that the Claimant was required to work at other locations, including search and patrol (para 54 below). We note that the Claimant says in his statement that he was unable to do patrols because of his hypertension. He did not say that at the time, nor is there medical evidence to confirm that.

[26]The Claimant worked no more than two or three shift patterns before asking for further adjustments. The incident involving Mr Reynolds (Issue 2.2)

[27]The Claimant alleges that, on an unspecified date towards the end of July 2021 a manager called Jack Reynolds told another employee called Jason (surname unknown to him) to ‘go and get that fucking Charles from the gatehouse to come to reception’. The Claimant refused to go. We note that this occurred before the Claimant had been given exempted from working at reception, which was not until the following month.

Remedy

[28]Security guards were required to rotate every two to three hours from one location on the site/type of duty to another. This applied equally to the Claimant. We accept Mr Frost’s evidence that he refused to be relieved when colleagues approached him. On the occasion in question, Mr Reynolds required the Claimant to leave the gatehouse and come to work on reception. The Claimant again refused. Absent any evidence to the contrary, we accept the Claimant’s evidence that Mr Reynolds then used the intemperate language the Claimant quotes. The alleged failure to give the Claimant breaks (Issues 2.1, 11.1 and 15.1)

[29]The Claimant alleged that officers were never sent to relieve him to enable him to go to the canteen for his break; rather, he was told to take his own food to the gatehouse and take his break there (he says ‘while working’).

[30]We reject that evidence and prefer the evidence of the Respondent’s witnesses that colleagues were sent to relieve the Claimant from the gatehouse, so that Case Number: 2305759/2021 6 he could take his break (in the canteen, if he chose) and then rotate to a different duty in another part of the site. However, the Claimant did not want to rotate, he wanted to work exclusively on the gatehouse, so he refused to be relieved and sent his colleagues away. He then complained about not being given a break. There was no agreement in place (by way of a reasonable adjustment or for any other reason) that the Claimant could work exclusively in the gatehouse, nor that he was exempt from the requirement to rotate.

[31]We also accept Mr Frost’s evidence that there were no occasions on which he refused a direct request from the Claimant to be relieved so that he could take a break. The Claimant’s request not to work at reception

[32]By an email of 5 August 2021, the Claimant informed Mr Lloyd that he no longer wished to work at reception. ‘I am writing to you as per my disability and its impairments which I explained in to details verbally to the new site manager Sam as well as my vulnerability of my health problems and due to Covid and my suffering from depression and hypertension why I can not work at the reception which is mostly full of employees signing in and out which you have to be in contact with series of people and mostly there is no social distance that is why I have choose and requested to work at the gatehouse and also with your managers also putting pressures at the officer working at the reception which I think can affect my hypertension and can also trigger my depression to behave in our anger manner/upset me due to my depression […] As a matter of facts and law and pointing it clear to your organisation treating me in that situation will fall under victimisation and also breach of the equality act contrary to section 15. I am respectfully requesting you to look into my disability situation and treat me fairly with out no abuse or victimisation that can end up with employment breaches against your organisation.’ We make a number of findings about this email.

[34]Firstly, we note that the fact that the Claimant made a formal request on this date to be exempted from working on reception is consistent with the fact that, prior to that date, he knew that no such exemption was in place and that this work formed part of his normal duties.

[35]Secondly, the Claimant made a request for an adjustment (as he was entitled to do), which is again accompanied by implied threats of legal action, notwithstanding the fact that the Respondent had done nothing wrong. The Claimant had not told previously disclosed that he was struggling to work at reception because of depression. He had not even disclosed before this email that he suffered from depression, nor that a consequence of his depression was that he had anger issues. The email also contains what appears to us to be an entirely baseless allegation of victimisation. This was another inappropriately confrontational email on the Claimant’s part.

[36]Thirdly, the request to be exempted from reception duties was not solely because of depression. It was advanced for a variety of reasons, including concern about lack of social distancing, as well as the pressurised nature of the environment, which he links with his hypertension. Case Number: 2305759/2021 7

[37]Finally, we note that the Claimant denied several times in his evidence that he behaved angrily towards colleagues, yet he simultaneously advanced a case – in this email and at Tribunal – that he had anger issues which arose from his disability of depression. We return to that issue in our conclusions. We note that he was prepared to adjust his evidence to suit the needs of his case. This called into question the reliability of his contemporaneous accounts and his evidence, written and oral, to us on certain issues.

[38]Mr Frost went to speak to the Claimant at the gatehouse on 6 August 2021 to tell him that he had taken over as site manager and to discuss his letter to Mr Lloyd. The Claimant reiterated that he could not work at reception because of his health issues.

[39]He also complained that he was not being given breaks. Mr Frost told him that there was a deployment plan which detailed cover, and the gatehouse was included in that plan; as a result, officers should be being sent to relieve him at the scheduled times. Mr Frost subsequently made enquiries and discovered that officers were indeed being sent to relieve the Claimant at the gatehouse, but he refused to allow them to replace him because he did not wish to be rotated to another location. The conversation between the Claimant and Mr Frost on 12 August 2021 (Issues 2.3 and 7.1)

[40]On 12 August 2021 the Claimant went to reception and spoke to Mr Frost. He alleges that Mr Frost, in front of another more junior colleague, told him that ‘if he wanted a relief for breaks then he could not bring his work bag to the gatehouse nor a bottle of water’.

[41]We find that Mr Frost did not say this. We have already found that it was the Claimant who was declining to be relieved from the gatehouse because he did not want to rotate to other locations on the site.

[42]Mr Frost did tell the Claimant that he should not take his bag to the gatehouse with him because this was against Amazon rules; he should put it in the locker provided. Mr Frost did not say that the Claimant was not allowed to take a bottle of water with him to the gatehouse. On the contrary, officers were encouraged to ensure that they had water with them, especially in the summer months.

[43]During this conversation the Claimant did not accuse Mr Frost of bullying or harassing him. He did not say that he wanted to raise a grievance, nor did he complain about discrimination. He did tell Mr Frost that he was behaving unprofessionally. He suggested that Mr Frost seek advice from HR. The email to Mr Frost on 13 August 2021 (Issue 7.2)

[44]The Claimant sent an email to Mr Frost very early (04:04) on 13 August 2021, before leaving home for work. He described their conversation on 6 August 2021. He criticised Mr Frost for not coming back to speak to him again, having said that he would. He complained again about not being relieved for breaks. He referred to their conversation the previous day. In the course of the email, the Claimant expressly referred to victimisation and disability discrimination. Case Number: 2305759/2021 8 The conversation between the Claimant and Mr Vekaria on 13 August 2021 (Issue 2.4)

[45]On 13 August 2021, a supervisor, Mr Chandra Vekaria (wrongly referred to as Mr Chandler in the list of issues and elsewhere), went to the gatehouse to discuss the Claimant’s breaks with him. Mr Vekaria raised the question of the Claimant’s unwillingness to rotate to other parts of the site. The Claimant said that he did not want to come into the building because he did not want to be around other people. The conversation became very heated. Mr Vekaria did not tell the Claimant that he had to bring his food to the gatehouse and take all his breaks there.

[46]The Claimant says that in this conversation on 13 August 2021 Mr Vekaria became aggressive. Mr Andrean (who worked for Amazon) witnessed it and thought that Mr Vekaria was behaving in a rude and unprofessional manner towards the Claimant. Mr Frost accepted that Mr Andrean lodged a complaint to the loss prevention team on the Claimant’s behalf, although he could not remember the details of the complaint.

[47]We accept the Claimant’s account that Mr Vekaria was rude and unprofessional towards him and acted aggressively on the 13 August 2021. We find that the Claimant probably responded in kind, but that it was Mr Vekaria who sparked the row. The conversation between the Claimant and Mr Lloyd and Mr Frost on [13] August 2021 (Issues 2.5 and 7.3)

[48]On the same day2 Mr Vekaria reported his encounter with the Claimant to Mr Frost and Mr Lloyd, who then went to speak to the Claimant at the gatehouse.

[49]Mr Lloyd tried to raise with the Claimant the issue of his unwillingness to rotate. The Claimant became hostile, invaded Mr Lloyd’s space and spoke disrespectfully to him, including telling him that he was ‘not educated’. At one point he said that he was vulnerable and could die if people came to close to him; Mr Lloyd pointed out that the Claimant was himself not observing social distancing. During the exchange, the Claimant said more than once that the Respondent treated people ‘like dog shit’. He behaved unprofessionally and aggressively.

[50]At one point during the conversation, Mr Lloyd instructed the Claimant take his hands out of his pockets.

[51]At another point the Claimant said to Mr Lloyd that he was harassing and bullying him. The Claimant said in his witness statement that Mr Lloyd ‘started laughing in front of me uncontrollably’. We accept that Mr Lloyd laughed, but not uncontrollably; that was an exaggeration.

[52]Neither Mr Lloyd nor Mr Frost told the Claimant that he was required to take his breaks at the gatehouse. Neither Mr Lloyd nor Mr Frost did or said anything to provoke the Claimant’s wholly inappropriate reaction.

[53]The Claimant also says that he ‘asked them to refer the matter to HR for a grievance meeting’. We find that he did not. However, we think it likely that the 2 The list of issues incorrectly gives the date of this event as 12 August 2021; it is clear from the Claimant's witness statement that it occurred on 13 August 2021. Case Number: 2305759/2021 9 Claimant made a verbal allegation of disability discrimination at some point during this conversation. Mr Lloyd’s email to the Claimant of 13 August 2021

[54]Later the same day, Mr Lloyd sent the Claimant an email, in which he confirmed that the Claimant’s request not to work night shifts had previously been agreed and the relevant contractual amendments made. He also agreed that the Claimant would not be required to work on reception. He went on: ‘You will be required to join the remaining shift rotation during your 3 Day 6 Off rota pattern working across the gatehouse, search and patrolling positions. Should you require further adjustments to be made to this agreement, please discuss with your SSM accordingly in the first instance.’ Mr Lloyd confirmed that breaks should be taken away from the post and that the Claimant would be relieved ‘from whatever position you are assigned to, to enable you to take your breaks.’

[55]It is clear from this email that there was no agreement in place (and never had been) that the Claimant was exempt from rotating to sites other than the gatehouse.

[56]Given the Claimant’s behaviour towards Mr Lloyd at the meeting earlier in the day, the email is notable for its courtesy and restraint. Starting ACAS early conciliation against the Respondents (Issue 7.4)

[57]The Claimant started ACAS early conciliation on 13 August 2021 in relation to potential Tribunal claims against the First and Second Respondent. Early conciliation ended against them on 24 September 2021.

[58]Mr Frost confirmed in oral evidence that both he and Mr Lloyd knew that the Claimant had done this and that he was proposing to bring a discrimination

claim.

[59]The Claimant then went on annual leave, returning on 27 August 2021.

[60]On his return, he continued to refuse to work anywhere other than at the gatehouse. He declined to rotate elsewhere when other officers came to relieve him, notwithstanding the clear instruction given by Mr Lloyd in his email above. The incident on 30 August 2021 (Issues 7.5 and 8.1)

[61]Another incident occurred on 29 August 2021. Mr Frost went to the gatehouse because, when he tried to contact the Claimant (who was covering the gatehouse), he got no response. He did not know whether the post was covered. When he arrived, he found that a colleague, Mr Prince, was covering it; the Claimant had left.

[62]The Claimant found out about Mr Frost’s visit from Mr Prince. The Claimant describes this incident in his witness statement for these proceedings where he says (paragraph 28) that he was ‘profiled and victimised’ by Mr Frost. He alleges that Mr Frost told Mr Prince, who had relieved the Claimant, that if he had not found Mr Prince there, he would have sacked Claimant for gross misconduct. Case Number: 2305759/2021 10

[63]There is a contemporaneous email, which the Claimant sent to Mr Frost the day after the incident, 30 August 2021. The Claimant accuses him of going to the gatehouse to spy on him ‘and went on pretending and asking Prince where is Charles meanwhile you saw me leaving with Michael’. There is no mention of Mr Frost telling Mr Prince that he would have sacked the Claimant for gross misconduct. The Claimant refers in the email to Mr Frost profiling and victimising him, and alludes to a comparator; he expressly reserves the right to ‘show this email and its evidences to an employment Judge when this matter goes to tribunal’.

[64]In the interview he gave during his employment, on 2 September 2021, which was conducted by Ms Smith, the Claimant said this: ‘Prince said I need to be careful as they are watching me’. There is no mention of Mr Frost saying anything about sacking the Claimant for gross misconduct.

[65]We find that Mr Frost did not say anything to Mr Prince about gross misconduct or sacking the Claimant. The Claimant’s account in his witness statement for these proceedings is an exaggeration. The Claimant’s email of 31 August 2021 (Issue 7.6)

[66]On 31 August 2021, the Claimant emailed Ms Nicola Fernhead (Divisional Director) making what amounted to a grievance. It expressly refers to the Claimant’s being a disabled person and contains allegations of disability discrimination and victimisation, which mirror some of the allegations in these proceedings. The grievance process and outcome (Issue 8.4)

[67]Later the same day, Ms Abbie Bantock wrote to the Claimant to inform him that his concerns would be treated as a formal grievance. On 31 August 2021, Ms Vicky Smith wrote to the Claimant, inviting him to a grievance hearing on 2 September 2021, to take place by Teams.

[68]On 2 September 2021, the Claimant wrote to Ms Smith adding further detail to his grievance. The grievance hearing went ahead that day. At the meeting Ms Smith told the Claimant that she was going on leave for two weeks the following week. She interviewed Mr Frost on 3 September 2021.

[69]Ms Smith went on pre-planned annual leave from Monday 6 September 2021. She returned to work on Monday 20 September 2021.

[70]On 21 September 2021, the Claimant wrote to Ms Smith accusing her of breaching the ACAS code because of the delay in dealing with his grievance. He wrote again on 24 September 2021, in which he referred to having received the ACAS early conciliation certificate and warned that he was concerned about missing the time for submitting his claim to be employed in Tribunal.

[71]Ms Smith interviewed Ms Hawes on 30 September 2021. Ms Hawes only worked with the Claimant during his training/induction period. She confirmed that the Claimant did not raise any concerns with her about his health when he joined the company, nor did he make any requests for adjustments to his working pattern or his allocation to posts. Ms Smith also interviewed Mr Lloyd on 30 September 2021. Case Number: 2305759/2021 11

[72]There was then a delay while Ms Smith sought to arrange a meeting with Mr Vekaria. It took place on 19 October 2021.

[73]The Claimant issued his claim form on 22 October 2021.

[74]Ms Smith sent the Claimant the outcome to his grievance on 23 October 2021. Notification of the transfer (Issue 8.2)

[75]On 27 September 2021, R3 was awarded the contract to provide security services for Amazon at the Dartford site. The new contract was scheduled to begin on 1 November 2021. The parties agree that there was a service provision change from R2 to R3, which constituted a TUPE transfer.

[76]On 30 September 2021, R3 wrote to R1 asking for the employee liability information (‘ELI’). The Claimant was on the transfer list.

[77]On 5 October 2021, the Claimant sent an email to his manager, who by now was Mr Towler, saying that he had heard rumours that there would be a transfer on 1 November 2021 and asking for further information. He asked for a copy of the ELI spreadsheet to confirm that R1 had disclosed both his disability and the fact that he had raised a grievance, contacted ACAS and brought a Tribunal claim.

[78]R1 had not done so. The Claimant now alleges that not informing R3 about his disability was an act of victimisation.

[79]On 6 October 2021, Mr Frost wrote to the Claimant and all other affected employees notifying them of the transfer. His name was also included in the employment liability information (ELI) provided by R1 to R3. The treatment of Mr Tomoloyie

[80]The Claimant referred us to the case of Mr Tomoloyie, who is visually impaired, and whose treatment he says was similar to his own. The Claimant alleges that there was ‘a concerted campaign from the third respondent and the first and second respondent’ to remove disabled employees from site.

[81]The Tribunal was taken to an email thread beginning on 13 October 2021. Mr Frost wrote to Ms Becky Dawson-Hand of Amazon. His email is both sympathetic and supportive of Mr Tomoloyie. It explains in some detail the steps which Mr Frost, HR and the safety team at R1 had taken to ensure his ability to continue working on site safely. Specific reasonable adjustments had been put in place. Mr Frost had met with him to discuss his safety and how they proposed to proceed. All were agreed that he could continue to work safely.

[82]Ms Dawson-Hand replied later the same day. She appeared to be unpersuaded by Mr Frost’s email and said she would revert to him, which she did the next day. On behalf of Amazon, she instructed Mr Frost to remove Mr Tomoloyie from site, which he did later the same day.

[83]The Claimant alleges that Mr Frost removed Mr Tomoloyie from site in a very disrespectful manner. Having heard from Mr Frost and seen the care with which he sought to persuade Ms Dawson-Hand that Mr Tomoloyie should be retained on site, the Tribunal finds it implausible that he would have handled Mr Case Number: 2305759/2021 12 Tomolyie’s removal from site with anything other same sensitivity showed in his email. There was no concerted campaign to remove disabled employees from site. The meeting between the Claimant and Mr Lambrechts on 16 October 2021 (Issue 7.7)

[84]On 16 October 2021, an encounter took place between the Claimant and Mr Lambrechts of R3, whose role it was to ensure the smooth transition of the service from the outgoing contractor to R3. He communicated with all the transferring staff to iron out any concerns they may have. He needed information about them to ensure that they were set up on R3’s payroll. All staff were provided with an information pack containing some forms for them to complete.

[85]Mr Lambrechts wrote an account of what happened in an email to R3’s HR manager, Ms Magda Jablonska El-Aasar, on the day of the incident. ‘I came in today to see some of the officers at Amazon and as the above only working weekends. Charles was the fifth officer to see today, as he walked into the room I introduced myself and then I asked him if he received one of the TUPE packs as I noticed he had nothing other than his radio with him. Immediately he kicked off and lecturing me about the law and that he doesn't have to fill in anything. He went on by saying I worked in security for 20 years and I know the law, ICTS should be providing you with everything. Constantly talking over me and being very rude. I have managed got to a point where I explained that ICTS did not provide us with all the information and the purpose of the meeting was to check the details they provided and to get a better understanding of things. I have managed to go through the ELI and then asked him about the shifts he is doing and how he ended up with two shifts a week as he started off as a supervisor then three shifts and then two weekend shifts. I explained that we do need some information as I cannot order his uniform with his sizes and need him to take a TUPE pack. He then went on that he was not told anything although the packs was on site since the 4th of October and I have been on site now for the 6th day in a row to do consultations. He just continued to be rude and talking over me. I tried my best to explain that the contents of the pack is 90% information for him about us and what we offer but it got the point where I asked him if he would be happy for me to record this conversation as there was no need to be rude and attacking me all the time. He then grabbed his radio and stormed out of the meeting room. Unfortunately I had to somehow stopped this meeting as there is Amazon night managers in the office. I will leave his TUPE pack addressed to him in the gatehouse and then I will attend site again tomorrow and see if his is willing to work with me.’

[86]With one exception, the Tribunal unanimously accept Mr Lambrecht’s account. It is detailed, careful and contemporaneous. It is also consistent with the Claimant’s behaviour on other occasions with other senior personnel, which was frequently confrontational. We are struck by the fact that there was the same insistence on his superior knowledge of the law, which had been present on so many occasions both verbally and in emails.

[87]The single exception is whether the Claimant told Mr Lambrechts that he was bringing a tribunal discrimination claim. The Judge and Professor Ukemenam find, on the balance of probabilities, that he did. It was usual for the Claimant to mention Tribunal proceedings, both in emails and in face-to-face conversations. We also note that Mr Frost, in his witness statement, said that Mr Lambrechts Case Number: 2305759/2021 13 told him that the Claimant ‘had some ongoing legal matter and he did not want to meet him’.

[88]Ms Howzer disagrees. Precisely because the email is so detailed she thinks it likely that, if the Claimant had mentioned his Tribunal claim, Mr Lambrechts would have recorded it. Because it is not recorded, she concludes, on the balance of probabilities, that it was not said.

[89]Having initially refused to fill the information form out, the Claimant later filled it out and handed it in. The incident on 17 October 2021

[90]On this date the Claimant left the gatehouse at 17:00, went to the reception, complained to his supervisor about not being relieved to take breaks and went home an hour early. He said he did this ‘as I can establish is a breach of health and safety whiles all my colleagues have been in their one hour break and I have not’.

[91]We note that there are no references in the Claimant’s witness statement about not having breaks between August and mid-October 2021. The events of 18 October 2021 (issue 7.7)

[92]Mr Frost phoned him the next day and said that the supervisor said that he had left an hour earlier. The Claimant confirmed that he had and gave the explanation set out above.

[93]On 18 October 2021 the Claimant had a conversation with Mr Coke of R3 which he referred to in a text dated 20 October 2021. It refers to the conversation having taken place two days earlier. Insofar as a date of 19 October 2021 was mentioned during the hearing, we have concluded that was not when the conversation took place; it took place on 18 October 2021. In the conversation the Claimant told Mr Coke that he had an ongoing discrimination grievance which R3 would inherit. In the text he asked for R3’s company name so that he could fill in his ACAS form as he was in the process of taking legal action against R1, R2 and Amazon. The decision to remove the Claimant from the Amazon contract (Issues 8.5, 11.3, 15.2)

[94]Amazon found out about the Claimant’s conduct at the meeting with Mr Lambrechts. How they found out was disputed. We find, on the balance of probabilities, and on the basis of all the evidence we heard, that the following occurred.

[95]We have already found that Mr Lambrechts gave an account of the incident by email to Ms El-Aasar (HR for R3). He did not copy anyone from Amazon into that email, nor did he ask Ms El-Aasar to take any action or to pass the email on; there is no evidence that she did so. It is clear from the end of the email that Mr Lambrecht’s was anticipating speaking to the Claimant the following day and moving forward with his transfer. Mr Lambrechts also mentioned the Claimant’s conduct to Mr Frost. Case Number: 2305759/2021 14

[96]We think it likely that Ms Dawson-Hands of Amazon heard about the encounter between the Claimant and Mr Lambrechts from Amazon night managers who had witnessed it, although she did not know the detail of what had happened.

[97]On 18 October 2021 Ms Dawson-Hands bumped into Mr Lambrechts in the office. We think she probably asked him what had happened with the Claimant and he told her what he told Ms El-Asaar in his email. We accept his evidence that he did not say that he wanted the Claimant removed from the contract. On the contrary, we find that the evidence suggests that he was working on the assumption that the Claimant’s transfer would go ahead.

[98]We think it likely that Ms Dawson-Hands then mentioned the incident to Mr Rob Smith of Amazon. That is consistent with the fact that the next day, on 19 October at 07:42, Mr Smith wrote to Mr Frost raising concerns about the Claimant, including his inappropriate and aggressive conduct towards Mr Lambrechts. Mr Smith asked that the Claimant be removed from the site and asked Mr Frost to advise as to next steps.

[99]Later the same day, Mr Frost replied by email, apologising on behalf of R1 for the Claimant’s conduct towards Mr Lambrecht and stating that, if Mr Smith wished to proceed with the contract removal, Mr Frost would refer the matter to R1’s HR department.

[100]Mr Smith replied that he had discussed the matter with his colleagues, and they had decided that they wanted the Claimant removed from the contract because of his unacceptable conduct and behaviour in the meeting with Mr Lambrechts.

[101]On 20 October 2021, R1 removed the Claimant from the ELI.

[102]On 21 October Ms Dawson-Hands wrote to Mr Lambrechts, asking him to send her a statement regarding his encounter with the Claimant, we infer for her records. Mr Lambrechts simply forwarded the email he had sent to Ms El-Asaar to Ms Dawson-Hand later the same day, adding nothing to it.

[103]We find that Mr Lambrechts did not take any steps to block the Claimant’s transfer He acted properly. He notified Mr Frost of what had happened and made a note of the Claimant’s conduct and forwarded it by email to Ms El-Asaar, so that there was a record of it. When asked about it by Ms Dawson-Hands, he repeated the same account.

[104]For the avoidance of doubt, we think it improbable that Mr Frost, or anyone else from R1, did anything to block the Claimant’s transfer from its employment to R3’s employment. Although they did not say so in their evidence, given the Claimant’s behaviour over the previous months, we think it unlikely that R1 or R2 would have taken steps to avoid responsibility for his employment passing to another employer. We find that the decision that the Claimant should be removed from the contract was Amazon’s alone; R1 complied with it; R3 played no part in it. The suspension of the Claimant

[105]On 20 October 2021, Mr Frost wrote to the Claimant to inform him that Amazon had asked R1 to remove the Claimant from the site because of his behaviour towards Mr Lambrechts on 16 October 2022. He was suspended on full pay and Case Number: 2305759/2021 15 instructed not to attend the site. He was invited to attend a meeting on 26 October 2022 via Teams. Mr Frost’s email left open the possibility that, depending on the outcome of the investigation, R1 might subsequently seek to persuade Amazon to allow the Claimant to return to work on its site. He warned that, if that did not occur and there was no alternative assignment R1 could offer, dismissal was a possible outcome.

[106]R3 had no input into the decision to suspend the Claimant; it was an internal decision taken by the Claimant’s employer, R1 acting through R2.

[107]Later the same day, the Claimant sent an email challenging the decision to dismiss him (even though he had not been dismissed), making counterallegations against Mr Lambrechts and referring in terms to the fact that he was in the process of submitting an employment tribunal claim of discrimination. The email was not one of the protected acts relied on by the Claimant.

[108]The Claimant submitted his Tribunal claim on 22 October 2021. The grievance outcome

[109]On 23 October 2021 Ms Smith sent the Claimant an email, attaching the grievance outcome. The grievance was rejected in its entirety. The disciplinary process

[110]Mr Rob Ellis (recruitment and administration coordinator for R1) was appointed to deal with the disciplinary allegations against the Claimant. On 25 October 2021, he wrote to the Claimant confirming the original charge of aggressive and disruptive behaviour at a TUPE meeting. Mr Ellis notified the Claimant that there would be two additional charges. ‘The reason that this meeting has been postponed is due to further matters being brought to our attention, namely:• It is alleged that on 17 October 2021 you have left site early without authorisation. If this had not been identified, you would have been paid for these hours, as ICTS were not aware that you had left site and were not working.

• It is alleged that between 22 October 2021 and 25 October 2021 you have been sending repeated aggressive and unprofessional emails to colleagues at ICTS.’

[111]The Claimant was warned that one possible outcome was dismissal.

[112]The Claimant replied by email the same day saying that he was suffering from depression and could not attend the meeting.

[113]On 26 October 2021, Mr Ellis wrote to the Claimant, notifying him that the hearing would be postponed to 1 November 2021. He pointed out that the Claimant had not provided any medical evidence stating that he was unfit to attend the hearing. He offered alternatives to attendance at the hearing, including sending written representations, sending a representative to speak on his behalf or read a prepared submission by the Claimant, and attendance by telephone. Mr Ellis warned him that failing to attend the rescheduled hearing may result in the hearing proceeding in his absence. Further, failure to attend without good reason might be treated as a further act of misconduct. Case Number: 2305759/2021 16 The Claimant’s emails around this time

[114]On 22 October 2021, the Claimant sent an email to Ms Fernhead, Mr Frost, Ms Redfern, HR and others, stating that R1 and R3 would receive a tribunal claim. The email referred to Mr Frost’s ‘immature teenage attitude’, the ‘unprofessional senior managers’, Ms Fearnhead having ‘no clue what the law works’ and threatening to ‘sue you personally’. Mr Ellis confirmed in oral evidence that he saw this email, even though he was not copied into it.

[115]On the same day, the Claimant sent an email to Ms Fernhead, Mr Frost, Ms Redfern, HR and others, attaching proof of receipt of his Employment Tribunal claim.

[116]In an email of 23 October 2021 to Ms Vicky Smith, the Claimant referred to the fact that he had made a claim to the Employment Tribunal. Mr Ellis confirmed that he also saw this email.

[117]On 27 October 2021, the Claimant wrote to Ms Choudhry, copying in Mr Ellis among others. In that email he expressly referred to the fact that he had already made an Employment Tribunal claim, alleging breaches of his employment rights, including disability discrimination and victimisation. He concluded: ‘I have the right to disclose this Tupe transfer letter from ICTS HR to an employment Judge as an evidence and also will show your sequences threatening unnecessary disciplinary invitation letters from you, rob ellis, and unprofessional rain [sic] frost claim to be a manager.’ The Claimant sent a similar email on 28 October 2021 to Ms Choudhry, again copying in Mr Ellis, and referring to ‘potential ongoing tribunal claim that an early conciliation certificate has been issued’. In response to a question from the Tribunal, Mr Ellis maintained that he did not believe he knew that the Claimant was complaining about discrimination.

[118]The language of all these emails was inappropriate and unprofessional. Notwithstanding this, there can have been no doubt within R1, including Mr Ellis, that the Claimant had completed ACAS early conciliation and lodged a Tribunal case, which included claims of discrimination. The dismissal

[119]The Claimant did not attend the disciplinary meeting on 1 November 2021 and did not adopt any of the approaches suggested by Mr Ellis. Mr Ellis conducted the hearing in his absence. He sent the Claimant a letter confirming his decision to dismiss him. He upheld the charges of aggressive and disruptive behaviour at the meeting on 16 October 2021 and leaving site early without authorisation on 17 October 2021.

[120]Mr Ellis also upheld the third charge (‘sending repeated aggressive and unprofessional emails to colleagues’) and wrote: ‘I have seen a series of emails sent from you to Nikola Fernhead, Vicky Smith, HR and myself. The language within the emails was unprofessional and aggressive. Despite several reminders you continue to send repeated aggressive and unprofessional emails to HR and myself which contributed to this allegation. Therefore, this element of the allegation is substantiated. The conduct within the emails was threatening with various threats for Tribunal claims. In addition, the behaviour and demeanour displayed within Case Number: 2305759/2021 17 the emails was unprofessional with constant abusive name-calling towards ICTS staff. Opportunities were given on two occasions to allow you to put forward any mitigation however, [you] continued to refuse to attend.’

[121]On 3 November 2021 the Claimant provided R1 with a fit note showing that he was unfit for work between 27 and 29 October 2021 because of a depressive disorder. Holiday pay on termination (Issue 21)

[122]The Claimant asserted in his schedule of loss that he had 10 days of accrued but untaken holiday termination amounting to £1168.80. The burden is on him to prove his case. There is no reference to holiday pay in his statement. The basis of the claim has not been explained: identifying the pro rata entitlement as at the date of termination, the number of holiday days taken and the amount of the underpayment by reference to the balance of untaken days.

[123]The Claimant was taken to a payslip dated 14 January 2022, which showed a payment for accrued but untaken holiday pay of £511.10. The Claimant accepted that he received that sum. No explanation was advanced as to why it represented an unauthorised deduction from his wages. Unauthorised deduction from wages (Issue 23)

[124]The Claimant was taken to his last three payslips in cross-examination. The payslip dated 15 November 2021 showed a payment coded SUSPEN of £234 in respect of 24 hours’ work; that represented full pay. He was paid a further £234 in respect of the December period. Asked if he accepted that he was paid everything he was owed, the Claimant said that he could not recall.

[125]After some exploration, it emerged that the Claimant’s case was that he ought to have been paid statutory sick pay while he was suspended, rather than full pay, because that is what Mr Ellis had said would happen when the Claimant notified him that he was unfit to attend the hearing. When I pointed out that if that was his case, the consequence would be that he had been overpaid, not underpaid. His reply was: ‘I would have preferred that they pay me SSP even though it was less because it would have helped me show they dismissed me for being disabled.’ The law The burden of proof in discrimination cases

The law

[126]The burden of proof provisions are contained in s.136 EqA:(1) This section applies to any proceedings relating to a contravention of this Act.

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

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

[127]The operation of the burden of proof provisions was summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi

[2019] EWCA Civ 1648

at [18]: Case Number: 2305759/2021 18 ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy. 3 He explained the two stages of the process required by the statute as follows:(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”

(2) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.’

[128]In Royal Mail Group v Efobi

[2021] ICR 1263

, the Supreme Court confirmed that a claimant is still required to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an act of unlawful discrimination. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense. Where it was said that an adverse inference ought to have been drawn from a particular matter, the first step had to be to identify the precise inference which allegedly should have been drawn. Even if the inference is drawn, the question then arises as to whether it would, without more, have enabled the Tribunal properly to conclude that the burden of proof had shifted to the employer.

[129]The burden of proof provisions should not be applied by the Tribunal in an overly mechanistic manner: see Khan v The Home Office

[2008] EWCA Civ 578

per Maurice Kay LJ at [12]. The approach laid down by s.136 EqA will require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the provisions of s.136 will be of little assistance: see Martin v Devonshires Solicitors

[2011] ICR 352

at [39], approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

at [32]. Direct discrimination

[130]S.13(1) EqA provides: 3 Madarassy v Nomura International plc

[2007] ICR 867

, CA Case Number: 2305759/2021 19 A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[131]The question whether the alleged discriminator acted ‘because of’ a protected characteristic is a question as to their reasons for acting as they did; the test is subjective (Nagarajan v London Regional Transport

[1999] ICR 877

, per Lord Nicholls at 884). Lord Nicholls considered the distinction between the ‘reason why’ question from the ordinary test of causation in Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

at [29]: ‘Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach…The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.’

[132]It is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of; it need not be the sole ground for the decision (Nagarajan at 886).

[133]However, the fact that a claimant’s protected characteristic is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the reason for that treatment (per Underhill J (President) in Amnesty International v Ahmed

[2009] ICR 1450

at [37]).

[134]In Martin v Devonshires Solicitors

[2011] ICR 352

(a victimisation case) Underhill J said at [22-23]: ‘In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint […] the reason asserted and found constitutes a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself. Again, no doubt in some circumstances such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint.’

[135]The conventional approach to considering whether there has been direct discrimination is a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical comparator; and secondly going on to consider whether that treatment is because of the protected characteristic, here race/religion.

[136]More recently, the appellate courts have encouraged Tribunals to address both stages by considering a single question: the ‘reason why’ the employer did the Case Number: 2305759/2021 20 act or acts alleged to be discriminatory. Was it on the prohibited ground or was it for some other reason? This approach does not require the construction of a hypothetical comparator: see, for example, the comments of Underhill J in Martin v Devonshires Solicitors

[2011] ICR 352

at [30].

[137]It is an essential element of a direct discrimination claim that the less favourable treatment must give rise to a detriment (s.39(2)(d) EqA). There is a detriment if ‘a reasonable worker would or might take the view that [the treatment was] in all the circumstances to his detriment’ (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

at [35]). An unjustified sense of grievance does not fall into that category. Harassment related to disability

[138]Harassment related to race is defined by s.26 EqA, which provides, so far as relevant: (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. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— … disability …

[139]The Court of Appeal in Pemberton v Inwood

[2018] ICR 1291

gave guidance on the correct approach to these provisions (per Underhill LJ at [88]): ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’

[140]The test for whether conduct achieved the requisite degree of seriousness to amount to harassment was considered (in the context of the formulation in s.3A Case Number: 2305759/2021 21 Race Relations Act 1976) by the EAT in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

per Underhill P. at [22]: ‘We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and Tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’

[141]Elias LJ in Land Registry v Grant

[2011] ICR 1390

at [47] held that sufficient seriousness should be accorded to the terms ‘violation of dignity’ and ‘intimidating, hostile, degrading, humiliating or offensive environment’. ‘Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.’

[142]He further held (at [13]): ‘When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.’

[143]The EAT in Betsi Cadwaladr University Health Board v Hughes [2014]

UKEAT/0179/13/JOJ

at [12], referring to Elias LJ’s observations in Grant, stated: ‘We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.’

[144]Guidance as to the construction of the wording ‘related to a relevant protected characteristic’ was given by the Court of Appeal in UNITE the Union v Nailard

[2018] IRLR 730

. It imports a broader test than that which applies in a claim of direct discrimination. It was intended to ensure that the definition covered cases where the acts complained of were associated with the prescribed factor as well as those where they were caused by it. However, there are limits. The Tribunal in that case had allowed that a failure to address a sexual harassment complaint, made against elected officials of the union, could itself amount to harassment related to sex 'because of the background of harassment related to sex'. That, the Court of Appeal held, went too far. The Tribunal had not made any findings as to whether the claimant’s sex formed part of the motivation of the alleged discriminator. Discrimination arising from disability: s.15 EqA

[145]S.15 EqA provides as follows:(1) A person (A) discriminates against a disabled person (B) if— Case Number: 2305759/2021 22 (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

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

[146]The correct approach to a claim of this sort was considered by the Court of Appeal in City of York Council v Grosset

[2018] IRLR 746

per Sales LJ (at para 36 onwards): ‘36. On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) "something"? and

(ii) did that "something" arise in consequence of B's disability. 37. The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something" ... 38. The second issue is an objective matter, whether there is a causal link between B's disability and the relevant "something" ….’

[147]The ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant influence on the unfavourable treatment, and so amount to an effective reason for or cause of it (Pnaiser v NHS England

[2016] IRLR 170

per Simler J at [31]).

[148]The meaning of ‘unfavourable treatment’ was considered by the Supreme Court in Trustees of Swansea University Pension and Assurance Scheme v Williams

[2019] ICR 230

(at para 27): ‘… in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.’

[149]It is then necessary to look to the employer’s defence of justification. S.15(1)(b) EqA provides that the unfavourable treatment may be justified, if it is a proportionate means of achieving a legitimate aim. To be proportionate, the conduct in question must be both an appropriate means of achieving a legitimate aim and a reasonably necessary means of doing so (Allonby v Accrington & Rossendale College & Others

[2001] ICR 1189

CA). Victimisation

[150]S.27 Equality Act 2010 (‘EqA’) provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— Case Number: 2305759/2021 23 (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given all the allegation is made, in bad faith. …

[151]Ss.2(d) covers allegations made by the claimant that the employer or another person has contravened the EqA, whether or not they are express. It is not necessary that the EqA be mentioned, but the asserted facts must, if verified, be capable of amounting to a breach of the EqA.

[152]The EAT in Chalmers v Airpoint Ltd

UKEATS/0031/19/SS

(unreported 2020) upheld the Tribunal’s decision that a reference to actions which ‘may be discriminatory’ in a grievance was not sufficient to amount to a protected act.

[153]The Tribunal must determine whether the relevant decision was materially influenced by the doing of a protected act. This is not a ‘but for’ test, it is a subjective test. The focus is on the ‘reason why’ the alleged discriminator acted as s/he did (West Yorkshire Police v Khan

[2001] IRLR 830

[154]There will be cases where an employer has subjected an employee to a detriment in response to the doing of a protected act but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. For example, where the reason relied on is the manner of the complaint (Martin v Devonshires Solicitors [2011] EqLR 108 EAT).

[155]The reasoning of Martin v Devonshires has been re-examined and affirmed by the Court of Appeal in Page v Lord Chancellor

[2021] ICR 912

. Underhill LJ (with whom Peter Jackson and Simler LJJ agreed) said (at [57]): ‘…employment tribunals can be trusted to recognise the circumstances in which the distinction there described can be properly applied, and I do not believe that it is useful to apply a requirement that those circumstances be exceptional: I note that Lewis J made the same point in Panayiotou v Kernaghan

[2014] IRLR 500

(see para 54 of his judgment).’ TUPE

[156]Regulation 4 of the TUPE Regulations 2006 provides: 4. Effect of relevant transfer on contracts of employment (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee. Case Number: 2305759/2021 24 (3) Any reference in paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer […]

[157]In United Guarding Services Ltd v St James Security Group Ltd EAT [2004] 4 WLUK 245 an employee had been removed from site by her employer following unfounded allegations against her manager, to ensure they did not come into contact with each other. When the contract for services on that site was transferred, C’s employment did not transfer, as she would not have been required to work on that site immediately before the transfer.

[158]In Robert Sage Ltd (t/a Prestige Nursing Care Ltd) v O’Connell

[2014] IRLR 428

, an employer accepted a specific request by the local authority for the employee not to be placed to serve a particular individual; they could not require the employee to work with that individual immediately before the transfer and so their employment did not transfer to the new service provider.

[159]The Claimant relies on Jakowlew v Nestor Primecare Services Ltd (t/a Saga Care)

[2015] ICR 1100

in support of his position that he remained assigned and ought to have transferred. In that case the employer did not accept the instruction of the client but sought to challenge it. The EAT found (at [28]) that because the instruction had not, at the time of the transfer, been accepted by the employer, the employee remained assigned to the organised grouping while the process continued. Conclusions: the Claimant’s entitlement to transfer from R1 to R3 (Issue 19)

[160]It is not in dispute that the TUPE regulations applied to the transfer between R1 and R3. The transfer took place on 1 November 2021.

[161]Regulation 4 provides that an employee’s contract will transfer if he is both employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer immediately before the transfer.

[162]The Claimant was not dismissed until 3 November 2021. The issue before us is whether he was assigned to the grouping immediately before the transfer.

[163]The Claimant was so assigned before 19 October 2021: he was correctly included in the ELI which R1 provided to R3. However, on 19 October, Amazon instructed R1 to remove the Claimant from the contract, as it was entitled to do under its contract with R1. We are satisfied that was a final, not a provisional, decision; Amazon was clear that it no longer wished to have the Claimant on its site.

[164]On 20 October 2021, R1 complied with that instruction and removed the Claimant from the ELI. The Claimant was notified by Mr Frost on 20 October 2021. He was also suspended on full pay. He never returned to the Amazon site. We are satisfied that, had he not been dismissed, R1 would have had to place him on an assignment with a different client.

[165]We accept the analysis advanced by Ms Theroo on behalf of R3 at paragraphs 18 and 19 of her closing submissions. We agree that the present case is analogous with the United Guarding Services and Robert Sage cases: the Case Number: 2305759/2021 25 employees in those cases did not transfer because the putative transferor had, before the transfer took place, accepted the instruction of the client to remove them from the contract; consequently, they could not be required to work on that contract and so were not assigned to the relevant grouping immediately before the transfer.

[166]The present case is distinguishable from the Jakowlew case, on which the Claimant relies, because in that case the employer did not accept the instruction of the client but challenged it. The EAT held (at [27]) that, had the employer accepted the client’s instruction and taken steps to remove the employee from the group of workers dealing with the contract, as had occurred in Robert Sage, the employee would no longer have been assigned to the group and would not have been entitled to transfer.

[167]In the present case, R1 did not protest Amazon’s decision; on the contrary, it immediately accepted Amazon’s instruction and agreed to remove the Claimant from the contract. It went further: it removed the Claimant from the ELI, which is consistent with a clear acceptance on its part that he was longer assigned to the grouping which would transfer.

[168]The fact that Mr Frost left open the possibility to the Claimant that, if he were exonerated, R1 might seek to persuade Amazon to readmit him to the site, is immaterial. Mr Frost did not raise that possibility with Amazon; he complied with its instruction without any qualification.

[169]In the period between the Claimant’s suspension on 20 October 2021 and the transfer on 1 November 2021, R1 did not require the Claimant to continue working in the organised grouping, nor would it have done had he not been suspended on conduct grounds; it had already accepted Amazon’s instruction that the Claimant be removed from the contract and acted upon it definitively. Consequently, the Claimant was not assigned to the grouping which transferred immediately before the transfer, and he remained an employee of R1 posttransfer. Conclusions: harassment related to disability Issue 2.1 – the alleged denial of breaks away from the gatehouse

[170]We have already found that the Respondent did not refuse to give the Claimant 30-minute breaks during his working day, nor did it refuse to allow him to take those breaks away from the gatehouse (paras 29-31).

[171]On the contrary, arrangements were in place for him to be relieved from the gatehouse so that he could take his break where he wished. However, he declined to be relieved because he wanted to work exclusively at the gatehouse (which had not been agreed with R1, whether as a reasonable adjustment or otherwise) and he did not wish to rotate other part of the site, even though it had been confirmed that that that formed part of his normal duties (para 54).

[172]Consequently, these claims fail on their facts and are dismissed. Issue 2.2: The conduct of Mr Jack Reynolds in July 2021 Case Number: 2305759/2021 26

[173]We have found that the incident took place (paras 27-28). We deal first with the issue of whether it was related to the Claimant’s disability.

[174]The Claimant asserts that he was unable to work at reception because of his anger issues; he then makes a link between his anger issues and his disability of depression. The Tribunal gave the Claimant every opportunity to direct our attention to any medical evidence that there was a causal connection between his anger and his depression, other than the fact that he had anger management therapy (which evidenced the anger but not the causal connection). Nor was there any evidence that working at reception aggravated his hypertension. We have concluded that his objection to working in reception was a matter of preference, rather than a matter related to his disability; he found working in the gatehouse more congenial and wanted to work there exclusively.

[175]In the absence of any medical evidence supporting the relevant causal connection, Mr Reynolds’ intemperate language in relation to the Claimant was not related to the Claimant’s disability. For that reason, even if the conduct amounted to harassment, it was not harassment related to disability.

[176]The claim is not well-founded. Issue 2.3 – Mr Frost’s conduct on 12 August 2021

[177]We have found as a fact (paras 40-43) that Mr Frost did not tell the Claimant that he could not take a bottle of water to the gatehouse. He did tell him that he should not take his personal bag to the gatehouse. We are satisfied that the sole reason he said this was because it was contrary to the client’s rules; it was wholly unrelated to the Claimant’s disability.

[178]The claim is not well-founded. Issue 2.4: Mr Chandra Vekaria’s conduct on 13 August 2021

[179]We have found that Mr Chandra Vekaria behaved in an aggressive manner towards the Claimant on this occasion. However, we have rejected the Claimant’s account of the context for this conduct (para 45-47). Nonetheless, we have gone on to consider this allegation in the light of what we have found did happen, to determine whether it amounted to harassment related to disability.

[180]The Judge and Professor Ukemenam are satisfied that, subjectively, the Claimant felt that Mr Vekaria’s conduct created a hostile environment for him: it was unacceptable and unprofessional; the Claimant is quick to take offence. Given that an independent third-party regarded the incident as serious enough to make a complaint, both are satisfied that it was objectively reasonable for Mr Vekaria’s conduct to have this effect.

[181]Ms Houzer disagrees. She is not satisfied that the Claimant subjectively felt that this created a hostile environment. In her judgment, the Claimant has shown himself to be a consistently confrontational person and was unlikely to be so sensitive to confrontational behaviour in others. She considers that he has overstated his reaction to the incident. Case Number: 2305759/2021 27

[182]All three members of the Tribunal are satisfied, however, that there is nothing to suggest that Mr Vekaria’s conduct was related to disability.

[183]The Claimant’s case, as we understand it, is that Mr Vekaria was frustrated by his unwillingness to rotate away from the gatehouse, which the Claimant says was because had had anger issues which were linked with his depression. Mr Vekaria’s aggressive conduct on 13 August 2021 was, therefore, related (albeit indirectly) to the Claimant’s disability.

[184]We have already concluded that there was no causal link between the Claimant’s anger issues and his disability. His refusal to rotate away from the gatehouse was a matter of personal preference, it was not disability-related.

[185]Consequently, we have concluded that there is no evidence from which the Tribunal could reasonably conclude that Mr Vekaria’s conduct was related to the Claimant’s disability.

[186]The claim is not well-founded. Issue 2.5: Mr Lloyd’s conduct on 13 August 2021

[187]We have found (para 51) that Mr Lloyd did instruct the Claimant to take his hands out of his pockets. In our view, in the context of a disciplined service such as this, there was nothing improper about such an instruction and any sense of grievance the Claimant may have had was not justified; there was no unfavourable treatment.

[188]If we are wrong about that, we consider that the most likely explanation for the instruction was that Mr Lloyd was trying to instil a sense of formality and discipline in an officer who was behaving in an ill-disciplined manner. There is no evidence from which we could reasonably conclude that the instruction was in any sense related to disability.

[189]As for the fact that Mr Lloyd laughed at the Claimant at one point, the Claimant alleged that Mr Lloyd did so ‘as he knew and was aware of my suffering from mental health’. We think it more likely that it was a spontaneous reaction to the fact that the Claimant was accusing him, Mr Lloyd, of harassment and bullying while himself behaving in a hostile and aggressive manner. There is no evidence that the Claimant’s disability formed any part of Mr Lloyd’s motivation.

[190]If we are wrong about this, given the hostile and aggressive nature of the Claimant’s own conduct on this occasion, we are not satisfied that these two minor matters had the purpose or effect of creating the proscribed environment. If, subjectively, they did, we have concluded that it was not reasonable for them to do so in all the circumstances.

[191]The claim is not well-founded. Issue 2.6: The alleged failure to follow up on the Claimant’s request to make a grievance on 13 August 2021

[192]We have found that the Claimant did not make a request on 13 August 2021 to make a grievance.

[193]The claim is not well-founded. Case Number: 2305759/2021 28 Conclusions: direct disability discrimination Issue 11.1: the alleged denial of breaks away from the gatehouse

[194]This claim has already failed on its facts (paras 29-31). Issues 11.2, 11.3 and 11.4: Removing the Claimant from site, suspending him, removing him from the ELI and not transferring him to R3

[195]We have found as a fact that the decision to remove the Claimant from site was Amazon’s alone (para 104).

[196]Amazon is not a party to these proceedings; no liability can attach to it. Consequently, any argument that Amazon’s decision was influenced by the fact that adjustments had been made by R1 for the Claimant (i.e. ‘something arising in consequence of disability’) cannot assist him. However, for the avoidance of doubt, we remind ourselves that we have already found that the adjustments agreed were that he would not work nights and would not work on reception; no adjustments were agreed that he would not work on patrol and would not rotate; on the contrary, he was expressly informed that, with the exception of reception, he would be expected to work across the site (para 54).

[197]There is no claim before us of instructing/causing a person to discriminate under s.111 EqA. Even if there were, we have found as a fact that neither R1, R2 nor R3 instructed Amazon, or caused it, to do any of these acts, whether by seeking to influence Amazon’s decision or by blocking the Claimant’s transfer; on the contrary, we have already found that Mr Lambrechts anticipated that the Claimant would transfer to R3 (paras 94-104).

[198]We are satisfied that the sole reason why R1 removed the Claimant from the contract was because Amazon instructed it to do so. The sole reason why R1 removed the Claimant from the ELI was because he had been removed from the contract on Amazon’s instruction. We are also satisfied that the sole reason why Mr Frost suspended the Claimant was because a serious allegation of misconduct had been made against him; given the nature of the alleged conduct, and the client’s view of it, his continued presence on site was inappropriate.

[199]We have already found that the reason why the Claimant’s employment did not transfer to R3 was because he was not assigned to the grouping of staff that was transferred immediately before the transfer (paras 160-169).

[200]For the avoidance of doubt, we concluded that there was no evidence from which we could reasonably conclude that the Claimant’s disability was a material factor in any of these decisions.

[201]Accordingly, the claims of direct discrimination under these three issues are not well-founded and are dismissed. Conclusions: pre-dismissal discrimination because of something arising in consequence of disability Issue 15.1: the alleged denial of breaks away from the gatehouse Case Number: 2305759/2021 29

[202]This claim has already failed on its facts. The Claimant was not denied breaks away from the gatehouse. To be clear: as for the ‘something arising’ relied on by the Claimant, there was no agreement, whether by way of an adjustment or otherwise, that he would be permitted to work exclusively in the gatehouse and would not be required to rotate. The only agreed adjustments were that he would not work nights and would not work on reception. Issue 15.2: not transferring the Claimant

[203]This claim fails for the reasons set out above at paras 160-169. Conclusions: victimisation, protected acts Issue 7.1: On 12 August 2021 telling Mr Frost that he was bullying and harassing and that he should speak to HR, referring to his disability and asking to bring a grievance

[204]We have found as a fact (para 43) that the Claimant did not tell Mr Frost that he was bullying and harassing him; he did not complain about discrimination; and he did not ask to bring a grievance. Merely suggesting that a manager is behaving unprofessionally and should take advice from HR, as we have found the Claimant did, is not sufficient to amount to a protected act.

[205]The Claimant did not do a protected act during the conversation with Mr Frost on 12 August 2021. Issue 7.2: On 13 August 2021 emailing Mr Frost suggesting he take advice from HR

[206]The email referred to victimisation and disability discrimination (para 44).

[207]This was a protected act. Issue 7.3: On 13 August 2021, suggesting to Mr Loyd that he was harassing and bullying him

[208]We have found (para 53) that the Claimant probably made an allegation of disability discrimination at some point during this conversation.

[209]This was a protected act. Issue 7.4: On 13 August 2021 and following, starting ACAS EC with the First and Second Respondents; telling the Third Respondent about ACAS EC on 19 October 2021

[210]Starting early conciliation against the three Respondents was a protected act. The Claimant was doing something in connection with the Equality Act 2010. It was understood by all three Respondents that he was complaining of discrimination under the EqA. Issue 7.5: On 30 August 2021 writing to the First and Second Respondents claiming victimisation and profiling and referring to the employment tribunal

[211]In light of the express references in the email to victimisation and profiling and the references to a comparator, an employment Judge and the employment tribunal, this email was plainly a protected act. Issue 7.6: The Claimant’s grievance on 30 August 21, which included allegations of discrimination (POC 28)’ Case Number: 2305759/2021 30

[212]For the reasons given above (para 66) this email was a protected act. Issue 7.7: On 16 October and 19 October 2021, telling the Third Respondent that he had an ongoing grievance about discrimination, and had started ACAS Early Conciliation and that it would lead to an employment tribunal that they would inherit

[213]For the reasons given above (paras 86-87), the majority concludes that the Claimant did a protected act on 16 October 2021; the minority disagrees.

[214]As for the alleged protected act on 19 October 2021, as we have already found (para 93) this, in fact, refers to a conversation in Claimant on 18 October 2021 with Mr Coke of R3. We have already found that the Claimant told him about the ongoing discrimination grievance which R3 would inherit. We are unanimously satisfied that this was a protected act. Conclusions: victimisation, pre-dismissal detriments Issue 8.1: Mr Frost’s alleged remarks to Mr Prince on 30 August 2021

[215]We have found as a fact (paras 61-65) that Mr Frost did not speak to Mr Prince about being keen to sack the Claimant for gross misconduct.

[216]The claim is not well-founded. Issue 8.2: R1 not telling R3 that the Claimant was disabled

[217]It is not in dispute that R1 did not disclose to R3 in the employee information about the Claimant was a disabled person.

[218]Mr Skinner’s explanation was that there was no requirement to do so. Indeed, R1 would have needed a justification under GDPR to disclose such sensitive medical information. The usual practice was that it would be for the employee to provide that information.

[219]We accept Mr Skinner’s explanation. The non-disclosure by R1 of the Claimant’s disability had nothing to do with the fact that he had done protected acts. R1 did not breach its obligations and there was no detriment to the Claimant. In due course, he disclosed it himself. Issue 8.4: The delayed grievance

[220]The grievance was relatively complex. It took Ms Smith some seven weeks to conclude it (para 67 onwards). For two of those weeks, she was on pre-planned annual leave, which the Claimant knew. She was then delayed by the availability of witnesses. She produced the outcome to grievance within four days of the last witness.

[221]The Claimant alleges that she was delaying the process to run down the clock and that is consistent with the fact that they provided the outcome as soon as he issued the claim. We reject that allegation. The Claimant was an experienced litigant and must have known that he did not have to wait until the grievance was completed before issuing his claim.

[222]We do not regard the delay as excessive. We accept Ms Smith’s explanation for it. We are not satisfied that there is any evidence from which we could Case Number: 2305759/2021 31 reasonably conclude that the delay was materially influenced by the fact that the Claimant had done protected acts.

[223]The claim is not well-founded. Issue 8.3 and 8.5: Removing the Claimant from site, suspending him, removing him from the ELI and not transferring him

[224]These claims fail for the reasons already given above at paras 195-201. For the avoidance of doubt, we concluded that there was no evidence from which we could reasonably conclude that the fact that the Claimant had done a protected act was a material factor in any of these decisions. Conclusion: the dismissal as an act of disability-arising discrimination and/or victimisation Issue 8.6 (victimisation): Dismissing the Claimant, either by [8.6.1] removal from site on 20 October 2021; or [8.6.2] suspension on 20 October 2021; or [8.6.3] failure to transfer on 1 November 2021 (POC 48); or [8.6.4] express dismissal on 3 November 2021 Issue 15.3 (discrimination because of something arising in consequence of disability): Dismissal, either by either by [15.3.1] removal from site on 20 October 2021; or [15.3.2] suspension on 20 October 2021; or [15.3.3] failure to transfer on 1 November 2021 (POC 48); or [15.3.4] express dismissal on 3 November 2021

[225]We have already rejected the claims that the removal from site and the failure to transfer were, in their own right, acts of disability discrimination or victimisation by any of the Respondents to these proceedings.

[226]Neither those acts nor the suspension of the Claimant amounted to a dismissal by R1; the Claimant remained R1’s employee after those acts occurred until he was expressly dismissed on 3 November 2021.

[227]Accordingly, the claims at Issues 8.6.1, 8.6.2, 8.6.3 and 15.3.1, 15.3.2 and 15.3.3 are not well-founded and are dismissed.

[228]Even if we treated the claims in relation to the suspension in isolation from the dismissal claim, R3 played no part in the decision to suspend; that was taken by R2 on behalf of R1.

[229]We have already concluded (para 198) that the sole reason why Mr Frost suspended the Claimant was because a serious allegation of misconduct had been made against him; given the nature of the alleged conduct, and the client’s view of it, his continued presence on site was inappropriate.

[230]That leaves the express dismissal by Mr Ellis. Dealing with it first as an allegation of disability-arising discrimination (issue 15.3), the ‘something arising’ is set out at para 16 of the list of issues. We have concluded that the dismissal had nothing whatsoever to do with the fact the adjustments had been made for the Claimant (taking him off nights and agreeing to his not working at reception); R1 had agreed readily to those adjustments several months earlier; we reiterate that there was never an agreed adjustment that he was exempted from working on patrol. Nor did the dismissal have anything to do with the fact that he had told R3 that he was disabled and only worked two days a week. There is no reference in this disciplinary process to any of those matters being factors in Mr Case Number: 2305759/2021 32 Ellis’s decision to dismiss. Because the Claimant has not shown that the dismissal was because of something arising in consequence of disability, the claim fails and is dismissed.

[231]Turning to the express dismissal as an allegation of victimisation (Issue 8.6.4), Mr Ellis expressly referred in the outcome letter notifying the Claimant of his decision to dismiss him to the fact that the Claimant had sent ‘a series of emails’ and stated that ‘the conduct within the emails was threatening with various threats for Tribunal claims’.

[232]We reminded ourselves that, in appropriate circumstances, it may be possible to separate out the manner in which a complaint of discrimination is made from the complaint itself (see the Martin case above at para 154). There is no doubt that Mr Ellis was sanctioning the Claimant for the manner in which he expressed himself in his communications to R1. If he had confined himself to referring to the inappropriate threatening language of the Claimant’s, that argument may have carried some weight. However, Mr Ellis expressly cited the fact that the Claimant was threatening to bring Tribunal claims as an example of the behaviour for which he was dismissing him. In our judgment, there is no room for the doctrine of separability to apply here.

[233]The Tribunal asked Mr Ellis why, in his witness statement (at paragraph 5), he referred to there being only two disciplinary charges; he made no reference to the charge of ‘sending repeated aggressive and unprofessional emails to colleagues at ICTS’. Mr Ellis said that he could not explain this; he described it as an ‘oversight’. He was asked whether he knew that the Claimant had contacted ACAS with a view to starting a Tribunal claim; he responded ‘I don’t believe I knew the process had commenced.’ Mr Ellis also stated that he ‘did not believe’ that he knew that the Claimant was complaining of discrimination.

[234]The Tribunal reminded itself that Mr Ellis had been copied into emails on 27 and 28 October 2021 which expressly referred to the Claimant pursuing a Tribunal claim, in part complaining of discrimination; he also saw other emails.

[235]Of course, the disciplinary charge in question referred only to the Claimant’s emails between 22 and 25 October 2021, which were not pleaded as protected acts. However, the Claimant also relied as a protected act on starting ACAS Early Conciliation with the First and Second Respondents. Further, s.27(1)(b) EqA provides that there is victimisation if ‘A subjects B to a detriment because […] A believes that B has done, or may do, a protected act.’

[236]Mr Ellis expressly referred in the dismissal letter to one of the reasons for dismissal being the fact that the Claimant had threatened tribunal proceedings; Mr Ellis knew from the emails of 27 and 28 October 2021 (see paras 114-118) that the Claimant had made a Tribunal claim, alleging discrimination. He deliberately omitted any reference to the third disciplinary charge from his witness statement and was evasive as to his knowledge, at the time he made the dismissal, of the fact that the Claimant was pursuing Employment Tribunal proceedings, including in relation to discrimination claims. In our judgment, he was seeking to downplay his awareness of the Claimant’s tribunal proceedings.

[237]We have unanimously inferred from this evidence that Mr Ellis was materially influenced in dismissing the Claimant by the fact that the Claimant had started Case Number: 2305759/2021 33 ACAS early conciliation with the First Respondent, and by the fact that Mr Ellis believed (indeed knew) that the Claimant was bringing Tribunal proceedings alleging discrimination.

[238]The claim of victimisation succeeds.

[239]For completeness, we record that we are also satisfied that a substantial part of the reason why Mr Ellis dismissed the Claimant was because of the unprofessional and confrontational manner in which the Claimant had expressed himself in his email communications with the Respondent. Time limits: is it just and equitable to extend time in relation to the dismissal on 3 November 2021?

[240]R1 conceded that it would not be prejudiced if time were extended in relation to the dismissal; no submissions were made opposing an extension. By contrast, the prejudice to the Claimant, if time were not extended, would be substantial as he would be deprived of a remedy for a claim which we have concluded is meritorious. For that reason, the Tribunal extends time. Conclusions: breach of the Working Time Regulations in relation to breaks (Issue 25)

[241]We have already found that the Respondent did not refuse to give the Claimant 30-minute breaks during his working day, nor did it refuse to allow him to take those breaks away from the gatehouse.

[242]On the contrary, arrangements were in place for him to be relieved from the gatehouse so that he could take his break. However, he declined to be relieved because he wanted to work exclusively at the gatehouse (which had not been agreed) and he did not wish to rotate other part of the site, even though that formed part of his contractual duties.

[243]The claim is not well-founded and is dismissed. Conclusions: unpaid holiday pay (Issue 21) and unpaid wages (Issue 23)

[244]The burden is on the Claimant to prove that he had accrued, but untaken holiday, in respect of which he was entitled to be paid in lieu on termination. We have already found that he has not discharged that burden (paras 122-123). The claim is not well-founded and is dismissed.

[245]As for his claim in relation to unpaid wages, we have recorded above (paras 124-125) that the Claimant’s final position was that his claim related to the fact that the Respondent had paid him full pay rather than SSP. In light of that explanation, we have concluded that the claim is misconceived, and it is dismissed.

Remedy

[246]There will be a remedy hearing to determine the amount of compensation to which the Claimant is entitled in relation to his successful claim for victimisation by R1 in relation to the decision by Mr Ellis to dismiss him. Case Number: 2305759/2021 34

[247]At that hearing, the Tribunal will hear evidence and submissions on remedy. The Claimant may produce an additional witness statement dealing with the issue of injury to feelings; he should also address the question of what steps he took to find alternative employment (mitigation of loss). The Respondent may also lead additional evidence to address the issue of what would have occurred with the Claimant’s employment by R1, had there been no unlawful discrimination (Chagger v Abbey National PLC and another

[2010] IRLR 47

[248]By no later than 28 days from the date on which this judgment is sent to the parties, they must provide their dates to avoid for a two-day remedy hearing in the following six months. Their correspondence should be marked urgent for my attention. When the hearing is listed, I will give orders for preparation for the

hearing.

[249]If the parties are able to resolve the question of compensation by agreement, they must notify the Tribunal immediately.

[250]Because none of the claims against R3 have succeeded, it is not required to attend the hearing. Employment Judge Massarella 20 November 2024 APPENDIX: LIST OF ISSUES APPROVED BY EJ MOOR POC = reference to paragraph number of Particulars of Claim Disability

hearing.

Remedy

[1]It is accepted by all Respondents that, at all material times, the Claimant was disabled within the meaning of section 6 of the Equality Act by reason of: 1.1. hypertension; 1.2. depression. Harassment related to disability (Equality Act 2010 section 26)

[2]Did the Respondent do the following things: 2.1. On the various dates set out in the POC and generally being denied relief for breaks of 2 x 30 minutes in a 12 hour shift. (See below) 2.2. In July 2021 a manager called Jack referring to the Claimant as ‘that fucking Charles’ in an instruction to get him to come to reception when Jack knew the Claimant could not work on reception (POC.9) 2.3. On 12 August 21 Mr Frost (the Second Respondent employed by the First Respondent) telling the Claimant in front of a subordinate that if he wanted a relief for breaks then he could not bring his work bag to the gatehouse nor a bottle of water (POC.14) Case Number: 2305759/2021 35 2.4. On 13 August 2021 Mr Chandler being rude and aggressive towards the Claimant when he asked for a break, telling him he had to take it at the gatehouse while doing his work (POC.17) 2.5. On 13 August 021 Mr Loyd telling the Claimant not to put his hands in his pockets but behind his back and laughing at him in front of colleagues (POC.18) 2.6. Not following up the Claimant’s request on 13 August 2021 to make a grievance (POC.18) If so, was that unwanted conduct? Did it relate to disability?

[5]Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

[6]If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Victimisation (Equality Act 2010 section 27)

[7]Did the Claimant do a protected act as follows: 7.1. On 12 August 2021 telling Mr Frost that he was bullying and harassing and that he should speak to HR, referring to his disability and asking to bring a grievance (POC.14) 7.2. On 13 August 2021 emailing Mr Frost suggesting he obtain advice from HR (POC.15) 7.3. On 13 August 2021, suggesting to Mr Loyd that he was harassing and bullying (POC.18) 7.4. On 13 August 2021 and following, starting ACAS EC with the First and Second Respondents. The Claimant will say he told the Third Respondent about ACAS EC on 19 October 2021 (POC.46) 7.5. On 30 August 2021 writing to the first and second Respondents claiming victimisation and profiling and referring to the employment tribunal (POC.26) 7.6. This letter was treated as a Grievance on 30 August 21, which included allegations of discrimination (POC.28) 7.7. On 16 October and 19 October 2021, telling the Third Respondent that he had an ongoing grievance about discrimination, and had started ACAS Early Conciliation and that it would lead to an employment tribunal that they would inherit (POC.38, 39, 46)

[8]Did the Respondents or any of them do the following things: 8.1. On 30 August 21 Mr Frost spoke Mr Prince about being keen to sack him for gross misconduct (POC.25) 8.2. The first Respondent not telling the third Respondent that the Claimant was disabled (POC.39) Case Number: 2305759/2021 36 8.3. On 20 October 21 removing him from site/alternatively suspending the Claimant. 8.4. The First Respondent delaying the grievance POC.33 8.5. Not transferring him to the employment of the Third Respondent and removing him from the Employer Liability Information (‘ELI’). The Claimant thinks this was after 16 October meeting after which the Third Respondent asked the client, Amazon, to remove him (POC.48) 8.6. Dismissal, either by: 8.6.1. Removal form site on 20 October 2021; or 8.6.2. Suspension on 20 October 2021; or 8.6.3. Failure to transfer on 1 November 2021 (POC.48); or 8.6.4. Express dismissal on 3 November 2021 (as amended).

[9]If so, was it because the Claimant did a protected act?

[10]In the alternative, was it because the Respondent/s believed the Claimant had done, or might do, a protected act? Direct disability discrimination (Equality Act 2010 section 13)

[11]Did the Respondents do the following things: 11.1. The First and Second Respondents denying the Claimant the opportunity to take breaks and/or breaks away from his workplace, the gatehouse. 11.2. Removing the Claimant from site/suspending him (POC.48) 11.3. Removing the Claimant and from the ELI provided to the Third Respondent so as to ensure he was not transferred (POC.48) 11.4. Not transferring him (POC.48) 11.4.1. The Claimant says he was assigned to the grouping of staff that was transferred and his suspension did not make any difference to this. 11.4.2. The Respondents deny this.

[12]Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The Claimant says that:• in relation to breaks he was treated worse than Mr Prince who was not disabled but otherwise in the same circumstances;

• in relation to the transfer, he was treated the same as another disabled employee Mr Tomoloyie who was assigned to the grouping but also not transferred. Case Number: 2305759/2021 37

[13]If so, was it because of disability? Discrimination arising from disability (Equality Act 2010 section 15)

[14]Did the Respondents know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

[15]Did the Respondents treat the claimant unfavourably by: 15.1. Denying breaks and/or breaks away from the gatehouse (POC.11) 15.2. Not being transferred (POC.48) 15.3. Dismissal: 15.3.1. Removal form site on 20 October 2021 15.3.2. Suspension on 20 October 2021 15.3.3. Failure to transfer on 1 November 2021 (POC.48) 15.3.4. Express dismissal on 3 November 2021 (as amended)

[16]Did the following things arise in consequence of the Claimant’s disability: 16.1. Adjustments having been made by the First Respondent, because of his disabilities, for the Claimant not to work nights or on patrol or on reception work (POC.20). (The Claimant relies on evidence that Mr Ik told him the Second Respondent’s attitude towards his breaks was because of the Claimant ‘not wanting to rotate’ i.e the reasonable adjustments. 16.2. Telling the Third Respondent he only worked 2 days a week (POC.39) 16.3. Telling the Third Respondent he was disabled (POC.48)

[17]Was the unfavourable treatment because of any of those things?

[18]Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 18.1. What was the legitimate aim [Rs to complete if they pursue this defence] 18.2. Why was the treatment at paragraph 14 appropriate and proportionate to meet that aim? [Rs to complete if they pursue this defence] Who is liable: was Claimant entitled to be transferred? Reg 4 TUPE Regulations 2006

[19]Was the Claimant assigned to the organisation or grouping transferred. 19.1. The Claimant says he was assigned to the grouping transferred and was entitled to be transferred on 1 November 2021. He relies on Jakowlew v Nestor EAT 2015 19.2. The Respondents deny this. The Third Respondent refers to Robert Sage Limitd t/a Prestige Nursing v O’Connell.

UKEAT/0036/13

[20][Rs to insert any further issues on who is liable here.] Holiday pay on termination Case Number: 2305759/2021 38

[21]The Claimant says he had accrued but not yet taken 10 days’ holiday at termination amounting to £1,168.80 (see Schedule of loss) [R1 to insert case], Unlawful Deduction of Wages

[23]The Claimant says he is owed 1 week’s pay not yet paid for work done prior to being removed from site amounting to £233.76 (see Schedule of Loss). [R1 to insert case] Working Time Regulations

[25]Was the Claimant denied breaks to which he was entitled under Regulation 12 of the Working Time Regulations (a claim brought under Reg 30): 25.1. By the refusal to give him 2 x 30 minute breaks in each 12 hour shift; 25.2. By the refusal to allow him these breaks away from the gatehouse; 25.3. The Tribunal may need to decide whether there was a relevant agreement in relation to breaks. Time Limits

[26]Have any of the claims been brought outside the primary time limit (as extended by Early Conciliation) at section 123 of the in the Equality Act 2010.

[27]In particular – EJ Moor allowed the claim to amend his discrimination claims to include an allegation concerning the 3 November 2021 dismissal but left the question whether it was just and equitable to extend time to the final hearing. Remedy Is it appropriate to make a recommendation?

[29]What financial losses (lost earnings and pension) are attributable to the discrimination? 29.1. Has the Claimant mitigated his loss? 29.2. What are the chances the Claimant would have been dismissed in any event?

[30]Should the Claimant be awarded an injury to feelings award. If so how much?

[31]Did the Respondent fail to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures and, 31.1. if so, was that failure unreasonable and 31.2. if so should any award be increased by 25%

[32]What interest should be awarded in respect of any discrimination compensation. Is any holiday pay owed? Are any outstanding wages owed?

[35]What is the compensation for any lost breaks? Case Number: 2305759/2021 1 EMPLOYMENT TRIBUNALS Claimant: Mr C. Afari Respondents:(1) ICTS (UK) Limited

(2) Mr R. Frost

(3) Corps Security (UK) Limited Heard at: East London Hearing Centre (by Cloud Video Platform) On: 3 and 4 June 2025 Before: Employment Judge Massarella Members: Ms Jane Houzer Prof J. Ukemenam Representation For the Claimant: Did not attend, provided written evidence and submissions For the First Respondent: Mr M. Ramsbottom (consultant)

[1]the Claimant is entitled to an award for injury to feelings in respect of the single act of victimisation of £9,000;

[2]the Claimant is entitled to interest on that sum in the amount of £2,586.02;

[3]the Tribunal awards a further sum of £2,896.50 by way of grossing-up to offset income tax at the basic rate of 20%;

[4]accordingly, the First Respondent shall pay to the Claimant the total sum of £14,482.52;

[5]the Claimant shall be responsible for any tax liable on this award; no separate award is made for personal injury;

[7]had the Claimant not been subjected to unlawful victimisation, there is a 100% chance that the First Respondent would have dismissed him lawfully for gross misconduct on the same date; Case Number: 2305759/2021 2

[8]consequently, there was no loss of earnings attributable to the act of victimisation;

[9]there was no breach by the Respondent of the ACAS Code of Conduct and no uplift is awarded; no award is made for exemplary damages.