Mr P Mefful v Merton and Lambeth Citizens' Advice Bureau: 2358072/2012

EMPLOYMENT TRIBUNALS

Case No 2358072/2012

Between

Mr P MeffulClaimant

Merton and Lambeth Citizens' Advice BureauRespondent

Before

Employment Judge Elliott

In person for claimant

Date 22 April 2022

JUDGMENT

[1]Because of a concession from the respondent, the claim for ordinary unfair dismissal succeeds.

[2]There shall be no reduction in compensation for contributory fault or under Polkey.

[3]The remaining claims fail and are dismissed.

REASONS

HEARING

[1]The claim form in this matter was presented on 13 November 2012. The claimant brings claims of unfair dismissal, disability discrimination and breach of contract. The issue of whether the claimant was a disabled person was determined by the tribunal as a preliminary issue and has been the subject of an appeal to the EAT in case number

EAT/0127/16

. The claimant has two impairments, a hearing impairment and an impediment to his left shoulder.

[2]Following the decision of the EAT it has been determined that the shoulder condition amounts to a disability.

[3]The respondent is part of the Citizens’ Advice Bureau which operates like a franchise. The respondent has three branches, in Morden, Mitcham and Streatham.

The issues

[4]The issues were identified at a telephone case management hearing before Employment Judge Spencer on 22 February 2017. We spent the first hour and twenty minutes of the hearing identifying the issues with the parties and dealing with matters such as witness availability, time tabling and identifying the applications the parties wished to make prior to the commencement of the hearing.

[5]We identified and confirmed the issues based on

Judge Spencer’s Order, as follows:

[6]What was the principal reason for the claimant’s dismissal? Was it because of a protected disclosure, a protected act or for redundancy? The claimant’s case is that he should have been offered the position of business manager and/or other more junior positions.

[7]The respondent accepts that the claimant should have been offered the position of Business Manager and accepts that for that reason, the dismissal was unfair. However the respondent’s case is that had he been offered the position he would not have remained in post beyond 12 weeks and that Polkey deductions should be made to any compensation awarded. Ordinary unfair dismissal was therefore conceded by the respondent.

[8]There is a claim for automatically unfair dismissal under section 103A. It is the claimant’s case that he complained to the Trustee Board that he was being bullied and sexually harassed by the Chief Executive and this 5 to was set out in his grievance letter of 21 September 2011 and in the subsequent hearing on 17 November 2011. The claimant says that this is information which tended to show a breach of a legal obligation.

[9]At the start of this hearing the claimant withdrew his reliance upon his grievance of 21 September 2011 as a protected act or protected disclosure.

[10]The claimant’s disclosure was that on 17 November 2011 he explained to the Trustees of the respondent that his line manager, the Chief Executive, was bullying and harassing him related to sex and that he also outlined instances of examples where he thought that she had bullied him in the past. There is a dispute of fact as to whether this was said by the claimant.

[11]The claimant also brings a victimisation claim relying on the same disclosure as a protected act under section 27 Equality Act 2010.

[12]The claimant’s case is that the respondent decided to “push him out” when he told them he had become disabled because of his shoulder and hearing conditions and that they treated him less favourably than they treated all would have treated a nondisabled person because of his disability.

[13]The claimant confirmed before Employment Judge Spencer that he was not pursuing claims for breach of contract or a reasonable adjustments complaint.

[14]At a telephone hearing before me on 26 July 2017, the claimant was given leave to amend to include a claim for discrimination arising from disability under section 15 Equality Act 2010. The claimant relies on the unfavourable treatment as being his dismissal or in the alternative his selection for redundancy. What arose from his disability is said to be his disability-related absence and all the medical appointments (treatments) associated with his disabilities.

[15]It is an issue for the tribunal as to whether the respondent dismissed the claimant because he had done a protected act or because he made a protected disclosure.

[16]If the claimant succeeds, what is the loss flowing from his dismissal? How long would the claimant have remained employed had the respondent offered him the role of business manager? Should the respondent have offered the claimant more junior roles? If so how does that affect the award of compensation?

[17]If the claimant is successful in respect of his victimisation and whistleblowing complaints, what award should be made for injury to feelings?

[18]In summary therefore the issues are:a. What was the reason for dismissal, was it because the claimant made a protected disclosure or was it for redundancy?

b. Was the claimant victimised by being dismissed because he had done a protected act, namely his complaint of being bullied and sexually harassed.

c. Was the claimant dismissed because of his disability (direct discrimination) or because of something arising from his disability (section 15 claim).

[19]The parties agreed that these were the issues for our determination. We also recapped the issues with the parties during the afternoon of day 1. The parties’ applications

[20]The claimant sought leave to add his email of 31 October 2011 as a protected disclosure and a protected act. This had not been identified as such prior to the first day of the hearing. It had not been identified as such in the Case Management Order of 22 February 2017. The claimant had an amendment hearing before me on 26 July 2017 and it was not raised. The claimant said he had raised it in his witness statement at paragraph 17. We read this paragraph and although the claimant made reference to the email, he did not in any way indicate that he regarded it as a protected disclosure.

[21]The respondent had not prepared evidence to deal with it. The proceedings are five years old. The claimant has had plenty of opportunity to raise it before today. Although he is a litigant in person he has plenty of past experience of proceedings in this tribunal and the EAT. He is aware of what is required in employment tribunal litigation. We were unanimous in refusing leave for him to include his email of 31 October 2011 as a protected act or protected disclosure. We said that the claimant could of course refer to the email in evidence.

[22]On the morning of the hearing the claimant wished to renew an application to strike out the response to the claim on grounds of the respondent’s unreasonable behaviour (Rule 37(1)(b)). He had made previous such applications, the first in June 2013 which was refused by Regional Judge Hildebrand. There appeared to have been a long ongoing dispute in these lengthy proceedings over the inclusion of documents in the bundle. The claimant also wished to apply to introduce new documents and this was linked to his strike out application.

[23]The claimant had 12 pages of documents that he wished to introduce and to which the respondent objected. It amounted to email correspondence between the respondent and their adviser from Peninsula dated in 2012. The respondent said that the documents attracted litigation privilege as they were emails between the respondent and their Peninsula adviser.

[24]The claimant said that the respondent was acting unreasonably not allowing documents in the bundle and this has been going on for the last four or five years. The bundle showed printed page numbers in the bottom right hand corner and the claimant said that these documents had already been put in his previous tribunal proceedings and therefore any privilege had been waived. The claimant said that the documents had gone into the public domain in evidence in his previous proceedings. The respondent could not confirm or deny whether these documents had been in front of the tribunal in previous proceedings. We asked the claimant to check and inform us as to when these documents had previously been before the tribunal.

[25]On day 2 the claimant took us to a letter from Regional Judge Hildebrand dated 25 June 2013 in which Judge Hildebrand said in relation to these documents that the issue of privilege would be resolved at the hearing and that the claimant was to bring the disputed documents and copies to the hearing. The full merits hearing was due to take place starting on 1 July 2013. For reasons we need not go in to, the full merits hearing was converted into a Preliminary Hearing on the issue of disability. Judge Hildebrand did not know when he gave the instructions for the letter of 25 June 2013, that the full merits hearing would need to be converted to a Preliminary Hearing.

[26]The Preliminary Hearing of 1 July 2013 took place before Employment Judge Hall-Smith and from our consideration of subsequent Orders made by a number of judges in the period from 2013 to date, there has been no decision or ruling on the question of these disputed documents and therefore the decision fell to us.

[27]We did not admit these documents as they attract litigation privilege. The claimant accepts that the documents all amount to correspondence between the respondent and their advisers Peninsula.

[28]Strike out is a draconian penalty. The case was otherwise prepared for hearing. We considered that it was not in the interests of justice to strike out the response without a hearing of the evidence when it was otherwise ready for hearing. We declined to strike out the response and proceeded to hear the case.

[29]Our decisions on these preliminary issues were given orally. Witnesses and documents The tribunal heard from the claimant.

[31]For the respondent the tribunal heard from two witnesses:(1) Mr Stuart Davidson, Interim Chief Executive gave his evidence by Skype. This was arranged by the respondent as he lives in the Outer Hebrides and at the date of the hearing was on the mainland of Scotland attending to his mother who was unwell. The tribunal also heard from

(2) Ms Tina Harris who was a Trustee of the respondent.

[32]There were witness statements for Ms Pauline Dawkins and Mr Anthony Nicholas both former Trustees of the respondent, Ms Dawkins from 2001 to 2012 and Mr Nicholas from July 2011 to June 2015. The claimant informed the tribunal at the outset of the hearing on the morning of day 1 that he had no questions in cross-examination for Ms Dawkins and Mr Nicholas. Mr Nicholas was present in the tribunal on the morning of day 1. We said that as this evidence was not challenged, we would read the statements and we would note that the claimant did not challenge the evidence. It was not therefore necessary for Mr Nicholas to remain at the tribunal and he was released.

[33]The respondent also gave the tribunal a statement from Trustee Ms Maggie Bartlett. It was unsigned, undated and the witness was not called. Second supplementary statement Ms Tina Harris

[34]The respondent wished to introduce a second supplementary witness statement for Ms Harris which was served on the claimant on or about 29 September 2017. The respondent said the statement was served late because the judgment in the claimant’s other proceedings in case number 2302831/2015 had been sent to the parties on 2 May 2017 and other advisers acted for the respondent in that case.

[35]The claimant told the respondent that he wanted to rely in these proceedings upon the judgment in case number 2302831/2015. The respondent considered whether they wished to appeal in that case and a decision was made not to appeal. Ms Harris’s supplementary statement gave her comments on the judgment in the other case, in which she did not give evidence. There were documents attached to the statement to which the claimant also objected.

[36]We did not agree to the introduction of this second supplementary statement. There has been a substantial delay in serving it, in effect just over two weeks before the start of this hearing. The respondent made a decision not to appeal the decision in case number 2302813/2015 and now wishes Ms Harris to make her comments including her disagreement with the findings of fact of that Tribunal. This is not appropriate and we do not admit the supplementary statement of Ms Harris or the documents attached to it. The claimant is entitled to rely on the findings of fact made by the tribunal in case number 2302813/2015 as it is a document of public record.

[37]As to order of witnesses, normally the claimant would go first in a discrimination claim. The respondent had some difficulties in the availability of their witnesses who were no longer in the respondent’s employment. The claimant objected to the respondent’s witnesses going first. After discussion with both parties, the respondent explaining the availability issues and the claimant stating that he had no cross examination for Mr Nicholas and Ms Dawkins, we were able to call the claimant first followed by the two witnesses for the respondent. Bundle and chronology

[38]We had a bundle of documents of over 600 pages. There was a draft chronology from the respondent which was not agreed by the claimant. It included a short cast list. Written submissions

[39]We had detailed written submissions from both parties to which they spoke. These submissions have been fully considered even if not expressly referred to below, together with the authorities relied upon. A supervision document from August 2011

[40]The respondent introduced on day 2 an important letter from the Chief Executive to the claimant dated 19 September 2011. We had requested this. The respondent also sought to introduce on day 2 with that letter, a supervision document in respect of the claimant from August 2011. The claimant objected to its introduction. The respondent had tried to give this document to the claimant on day 1 but he had not agreed to accept it. The respondent said it was a highly relevant document.

[41]We took the unanimous view that if this was such a relevant document that had been in existence since August 2011 it should have been included when the bundle was originally prepared and not introduced on day 2 of the hearing. The respondent did not say that they had just located the document but that it was an oversight. We did not agree to the respondent introducing this document so late but the respondent could of course cross-examine the claimant about his performance if they considered it relevant.

Findings of fact

[42]The claimant worked for the respondent Citizens Advice Bureau from 19 January 2004 to 15 August 2012 as a Specialist Service Manager. He managed a specialised team of caseworkers and the respondent’s Legal Services Commission contracts.

[43]As a Specialist Services Manager he was one of three members of the Senior Management Team, the other two being the Operations Manager and the Chief Executive.

[44]The background to this case is that in 2003 the claimant had a romantic relationship with Ms FP who later became the Chief Executive of the respondent. Neither the claimant nor Ms FP were employed by the respondent at the time of their relationship. It was the claimant who brought their relationship to an end in 2004. The claimant said that a reference in the documents to him distancing himself from the relationship in 2006 was a typing error. It was 2004. The claimant’s case was that Ms FP treated him unfavourably in a number of different ways because of the ending of their affair.

[45]The claimant’s evidence was that in 2005 the Chief Executive blocked his salary increase to the next spine point within the salary scale and that he was the only person to have been treated in this manner. The claimant said he threatened to raise this matter with the Board of Trustees and that as a result the Chief Executive changed her mind. We saw at page 229e of the bundle a letter from Ms FP to the claimant referring to meetings on 14 and 19 April 2005 and confirming that his salary would rise by one incremental point with effect from 1 April 2005.

[46]The letter refers to the Chief Executive’s earlier decision not to increase the claimant’s pay. She said “Please accept my apologies for the distress caused by my initial decision and my failure to take into account problems with your induction, difficult staffing issues and other factors which impacted on your ability to meet targets. You are a valued member of the service and my intention was not to belittle the significant contributions you have make (sic)….”. It is clear to us therefore that this was not a routine letter confirming an incremental salary increase.

[47]The claimant also complained that on 5 July 2006 he had to raise a grievance with the Chief Executive relating to pay for additional work he had undertaken. His grievance letter was page 229h and 229i.

[48]This grievance was not dealt with promptly and the claimant chased this up five months later. On 30 January 2007 Ms FP wrote to the claimant apologising for the “oversight” in failing to get back to him and setting up a grievance hearing on 12 March 2007. The claimant was ultimately awarded £500 as an ex gratia payment.

[49]The claimant was upset to discover in 2008 that the Finance Officer had been given a significant pay increase of about £4,000 when he was not (page 229s).

The law

[50]In July 2008 the claimant was asked to take up extra duties when his counterpart Service Manager resigned. The claimant saw the Finance Officer’s salary increase between 2008 and 2010 significantly more than his own salary, which he considered unjustified and less favourable treatment of himself. He does not challenge the increments to the Finance Officer’s salary but highlighted that his own salary was not given the same consideration or treatment, notwithstanding that he took on additional responsibilities. The claimant’s grievance

[51]The claimant did not attend work on 30 August 2011 and he does not dispute that he did not attend work in the period from 30 August to 19 September 2011.

[52]On 30 August 2011 the claimant had childcare issues and problems with his shoulder condition. His childminder did not turn up on 30 August and the claimant was adamant in his evidence that he telephoned Ms FP as his line manager to explain the situation. He suggested taking the day as annual leave and Ms FP told him that he could not take annual leave so “abruptly”.

[53]The claimant’s wife had an employment tribunal hearing on 12, 13 and 14 September 2011. The claimant represented his wife at that hearing and we saw the judgment of Employment Judge Houghton at page 551 of the bundle. The claimant had pre-arranged holiday for the three days of the tribunal hearing so that he could represent his wife.

[54]On 19 September 2011 FP wrote to the claimant stating that he had been absent without authorisation since 30 August 2011. The letter (introduced on day 2 of the hearing at page 239D) said: Dear Paul You have been absent from work since 30 August 2011. However, you have not been in touch with me to explain your continued absence. You should therefore contact me to discuss your current absence as a matter of urgency; otherwise I will have no option but to commence disciplinary proceedings.

[55]The letter was “pp’d” and not signed personally by FP. As FP did not give evidence to the tribunal we do not know if she approved the letter before it was “pp’d” on her behalf and sent to the claimant.

[56]The claimant replied on 21 September 2011 disputing the content of that letter (page 240) by saying: I am now in receipt of your letter of 19 September 2011; the letter, to me, is vexatious and I am very aggrieved by it. On 30th August I had contacted central office to notify the service of my absence from work and the reason behind that absence. Later on that day I had a telephone conversation with you and further explained in details the childcare problems I was having and to request emergency leave………… As I expressed in my email of 19th September, I am shocked and utterly surprised to have received an email from you on that same day alleging “unexplained absence from work.”

[57]The claimant made reference to a possible claim for constructive dismissal in the tribunal and he asked Ms FP to retract her accusations and that if she did not he would notify the Trustees to look into the matter as a grievance issue.

[58]The claimant was adamant in his evidence that he spoke to FP personally on 30 August 2011 and this is confirmed by the statement in his email sent three weeks later on 21st September. Ms Tina Harris, in her evidence, said that FP commented to her that FP did not speak to the claimant on 30 August because she (FP) was off sick at the time.

[59]Ms Harris was not a first-hand witness of fact on this issue. The claimant’s evidence was that when he phoned on the morning of 30 August, FP was not present at work but that he spoke to her later in the day. We find as a fact based on the claimant’s first-hand evidence, bearing in mind that FP did not give evidence to the tribunal and the words in the claimant’s email of 21 September 2011, that he did speak personally to FP on 30 August 2011 and this was why he was especially aggrieved by the content of her letter of 19 September 2011.

[60]The claimant followed this up with an email on 27 October 2011, page 243, again asking if Ms FP would rescind her letter of 19 September or whether the issue had been placed before the Trustees as a grievance. Ms FP replied on 28 October 2011 (page 246) setting out reasons why she had not had time to deal with the matter and saying that she had informed the Trustees of his grievance but she had not yet forwarded it to them. She said she would pass it on to the Chair of the Trustees and the Chair of the Personnel Sub-Committee.

[61]The claimant replied on 31 October 2011 (also page 246). He said that he considered he was being victimised and that this was a blatant abuse of her position. He said “On another note, I have come to believe that your attempts to ostracise me and manage me out of the service might not be unconnected to my personal relationship and history with you……….. Of course anything I bring to the attention of the trustees will be backed up with graphic evidence.” It was put to the claimant in cross examination that the reference to “graphic evidence” was a threat to Ms FP. The claimant said that if he was disbelieved about his affair with the Chief Executive he would want to show text messages to the Trustees to provide evidence.

[62]We find that the claimant was saying nothing more than he could prove the fact of the affair. It was perhaps a poor choice of wording but we find that he did not mean anything other than he could prove that the relationship took place. In any event Ms FP did not deny the relationship and Ms Harris confirmed that FP admitted it to her. The grievance hearing of 17 November 2011

Conclusions

[63]The claimant was invited to a grievance hearing on 17 November 2011. This was heard by two of the Trustees Ms Maggie Bartlett and Ms Pauline Dawkins. The claimant attended with a workplace colleague, Mr Kelvin Makanza.

[64]There were two versions of the notes of this hearing, one commencing at page 252 and one at page 256. The claimant said that he had an issue with the accuracy of these notes. They were not sent to him until a few days before the Preliminary Hearing on 1 July 2013 before Employment Judge Hall-Smith. The respondent accepted in closing submissions that at this grievance hearing the claimant did make a complaint of bullying and harassment on the part of the Chief Executive. During cross-examination the respondent originally sought to challenge the claimant on this point, putting to him that there was no mention of this matter in the notes. We saw a large number of examples in the notes of the claimant raising the issue of bullying and harassment on the part of FP. Based on the notes we find that there was no probing on the part of Ms Bartlett and Ms Dawkins as to the extent or nature of this. We find this surprising given the seriousness of the allegation.

[65]At the hearing the claimant showed the Trustees (Ms Bartlett and Ms Dawkins) an email dated 12 February 2010 which was at page 229t of the bundle complaining to Ms FP that she had raised her voice towards him during conversations and had rubbished or dismissed his contributions to dialogue. He also informed those Trustees that in 2005 the CEO had blocked his salary at progression because she wanted to “arouse his attention”.

[66]At page 252 the notes show that after the process had been outlined to the claimant, the very first thing he mentioned was his complaint that he had been bullied and harassed and that he perceived this in relation to FP. The claimant told the trustees about his past relationship with FP and said he thought that she had a personal vendetta against him and he thought it might be a form of sexual harassment (his witness statement paragraph 19). He told the Trustees that he also felt that the letter of 19 September 2011 from FP indicating that he might face disciplinary action was an example of such bullying behaviour (notes page 256).

[67]We saw the witness statement of one of the Trustees Ms Dawkins, whose evidence the claimant had chosen not to cross-examine. She said in paragraph 2 of her statement, “I can confirm that he did not disclose he previously had a sexual relationship with the Chief Executive or that he was being harassed or victimised as a result of the relationship.” This statement was signed and dated on 19 August 2013.

[68]Although the claimant chose not to challenge Ms Dawkins statement on this point, it contradicts the concession made by the respondent in submissions, that the claimant did complain at the 17 November 2011 hearing that he had been bullied and harassed by FP and we accept the claimant’s evidence that not only did he complain about bullying and harassment by FP but that he made the link between that bullying and his past sexual relationship with FP. We also find that he said (paragraph 19 of his statement) that it might be a form of sexual harassment.

[69]The respondent also submitted to the tribunal a witness statement of Ms Bartlett which was unsigned and undated and they did not call her to give evidence. This statement says at paragraph 11 that Ms Bartlett was not aware of a sexual relationship between the claimant and FP until after his dismissal. We can attach no weight to this evidence as it was unsigned, undated and the witness was not called. Our finding is therefore that the claimant complained about bullying and harassment and that he made the link between that bullying and his past relationship of a sexual nature with FP. The financial position of the respondent

[70]The respondent was an organisation in difficulty. In December 2010 all staff were put at risk of redundancy (page 235) but this redundancy exercise did not go through. Staff remained at risk of redundancy for over a year and this must have been demoralising for everyone.

The relevant law

[71]In late 2011 the respondent had failed two out of three key audits and it was in crisis in its financial situation. The audits they failed were the general advice audit and the quality audit. They passed the LSC audit. The respondent was facing imminent administration or insolvency if it did not implement changes to its budget and carry out a restructure to address the multiple organisational failings. The respondent was facing suspension and even termination of its membership of Citizens Advice following the failure of the quality of advice and organisational audits. This would have prevented the respondent from tendering for new commissions and we find that this was likely to result in many more redundancies. The respondent was in the bottom 3% of CAB’s in the UK.

[72]In December 2011 the respondent engaged Mr Stuart Davidson as Interim Chief Executive to implement a restructure to ensure greater compliance, accountability and efficiency. Mr Davidson remained in that role until the end of June 2012. The substantive CEO, Ms FP, went on sick leave on 16 December 2011. She did not return until 11 June 2012. On Ms Harris’s evidence, even when FP returned she was not working at full capacity and she eventually left the respondent’s employment on 31 December 2012. The claimant’s request for a pay rise

[73]Shortly after his arrival, Mr Davidson saw an email from the claimant to the Trustees of the respondent requesting a temporary salary increase on the grounds that he had become responsible for managing the generalist advice team since the Operations Manager had left. He was also managing the central control staff as the substantive Chief Executive Ms FP was off sick.

[74]The claimant’s request was considered in a meeting of the respondent’s Personnel Sub-Committee on 9 January 2012 (the notes of which were at page 272). The members of the subcommittee discussed the claimant’s request and they observed that another member of staff had been given a salary uplift but that this had been done prior to the current difficult financial situation. Mr Davidson wrote to the claimant on 2 March 2012 to inform him that his request had been discussed by the trustees and to invite him to an informal meeting on 12 March 2012 in order to finalise a decision. The restructure proposal

[75]On 10 February 2012 Mr Davidson wrote to the claimant (page 277) informing him of the propose restructure. The letter enclosed the restructuring document proposal and a question and answer document to help set the context. Feedback was sought on the proposals by 24 February 2012 and the claimant was informed that feedback would be provided at a face-to-face meeting on the evening of Monday, 27 February 2012. The letter explained that at this meeting Mr Davidson would present an overview and there would be an opportunity to raise further questions. The letter said in bold, that all staff and volunteers were invited to the meeting.

[76]The claimant did not attend this meeting on 27 February 2012 which was held between 6pm and 7:55pm (notes page 282-288). He said it was because all staff were there that he had to “hold the fort” and answer the telephone. Mr Davidson said that the meeting had deliberately been arranged after business hours so that all staff could attend and Ms Harris’s evidence was that unusually all three branches of the respondent CAB were closed to allow this important meeting to take place with all staff.

[77]The claimant also said that he did not attend because he already knew about the proposals and the meeting would not tell him anything he did not already know. Ms Harris’s evidence was that it was important for him to attend to hear what others said and potentially to answer questions from the members of staff who reported to him. We prefer the respondent’s evidence as Mr Davidson and Ms Harris corroborated one another and the meeting was held outside business hours. We find that it was the claimant’s choice not to attend the meeting; all staff were invited and arrangements were made to allow them to attend and had he wished to attend, he was not prevented from doing so.

[78]On 9 March 2012 the Trustee Board Chair Mr Mark Nelson wrote to all staff including the claimant regarding the restructure. The letter enclosed a briefing following the meeting on 27 February 2012. Mr Nelson informed the staff that they would be proceeding with a restructure as they believed it would deliver the benefits necessary to secure the future of the respondent. Mr Nelson said that the Board had decided that they would not implement a formal redundancy process in 2012 but they would restructure to implement a more robust and sustainable business structure. The letter was signed by Mr Davidson. On the same date, Mr Nelson sent a letter to the claimant refusing his request for a salary uplift. The letter was emailed to the claimant by Mr Davidson. Consultation process

[79]The claimant was invited to a meeting on 12 March 2012. By way of consultation in that meeting, the claimant suggested that he should either be assimilated into the newly created post of Business Manager or the more junior post of Volunteer Development Manager. The claimant considered that the newly created post of Business Manager was suitable alternative employment because it was an amalgamation of his post of Specialist Services Manager and that of Operations Manager. The claimant considered it unfair and unreasonable that he should have to undergo competitive selection for the Business Manager’s role.

[80]The claimant was on leave in March and went off sick in April 2012. He did not return until 9 July 2012.

[81]On 16 March 2012 the claimant appealed the decision not to increase his salary (299). The appeal was considered by Mr Nelson who wrote to the claimant on 14 April 2012, again the letter was signed by Mr Davidson. The salary increase was refused because the view was the claimant had failed to provide hard evidence that he had been fulfilling the Operation Manager’s role (page 328a).

[82]On 23 March 2012 Mr Davidson wrote to the claimant inviting him for an interview for the role of business manager to take place on 4 April 2012. The claimant maintained his position that he should not be required to undergo competitive selection for this role but said nevertheless, given his health condition, he was willing to submit to a telephone interview (email 30 March 2012 page 322-324).

[83]On 18 April 2012 Mr Davidson wrote to the claimant to confirm that his post was at risk of redundancy. Mr Davidson said that over the next three weeks he would meet with the claimant and consult with him to discuss alternatives so that his employment could be protected. Mr Davidson said “I wish to assure you that this is no reflection on your ability or commitment to the company”.

Conclusions

[84]On 22 May 2012 Mr Davidson sent an email to Trustee Ms Harris copying the other Trustees saying “PM has 9 lives and delay is costing us £££’s.” In evidence Mr Davidson said he was referring to the attempts the respondent had been making to bring the claimant to an interview for the Business Manager’s role or to engage him within the process. Mr Davidson said that by May 2012 he considered they had made at least 9 attempts to do so.

[85]By a letter dated 23 May 2012 (page 366) from Mr Davidson, the claimant was informed that he had not been shortlisted for interview for the posts of Business Manager and Volunteer Development Manager. Mr Davidson said that as a senior manager the claimant had failed to respond to requests for direct feedback during the consultation process and had not taken any opportunity to engage in the restructuring process. Mr Davidson considered that the claimant had isolated himself from opportunities to contribute to the business review or discussions on his potential redundancy.

[86]The claimant replied on 25 May 2012 by email (page 368) saying that he considered that his redundancy dismissal was a foregone conclusion. The decision to dismiss

[87]On 28 May 2012 there was a Redundancy Panel Discussion. The participants were Trustees Mr Geoff Chapman, Mr Jason Gold and Ms Pauline Dawkins. Mr Davidson attended as a notetaker. The notes of this meeting were at page 374-375. They considered that the Business Manager role and the Volunteer Development Manager role were not comparable to the claimant’s role as Specialist Services Manager. They concluded that the respondent had made reasonable attempts to bring the claimant to interview. They considered that the claimant had not demonstrated that he could fulfil the Business Manager or Volunteer Development Manager roles within a period of three months of redeployment. They concluded that they were able to make reasonable adjustments and that the claimant’s employment should be terminated.

[88]The rationale for the decision came at the end of the meeting under point 6 in the notes, in answer to the question, whether the employment contract of the claimant should be terminated on grounds of redundancy. The Trustees found that the claimant had failed to supply evidence to defend the retention of his role or evidence to support his appointment to the two alternative roles. The note of the meeting said: “The panel noted that PM was clearly attempting to intimidate by his behaviour toward the business in both email communication and general lack of engagement and that the threat to the business would not diminish by further attempts to sustain his employment while seeking his engagement in [the respondent’s] redeployment and redundancy procedures. The panel considered they had no option but to dismiss the [claimant] from his employment….by way of redundancy and provide him with contractual notice from Monday 28th May 12”. Suspending the decision to dismiss

[89]On 31 May 2012 the claimant emailed Mr Davidson to say that he anticipated being well enough to return to work on 1 July 2012 and hoped he would be able to participate in interviews. We noted an email at page 377k dated 31 May 2012 from Trustee Ms Maggie Bartlett to Peninsula (in respect of which privilege had been waived as it was in the joint bundle) saying “Paul seems to be outlining that he has a disability”. We find that this goes to the issue of knowledge of disability.

[90]On 1 June 2012 Mr Davidson wrote to the claimant (page 378) acknowledging his email of 31st May notifying of a prospective return to work. He said that the redundancy panel convened on 28 May but the implementation of their decision had been suspended to 2 July to allow the claimant a final opportunity to present himself or evidence to support his position within a redundancy interview. The last sentence of that letter (page 379) said “If you have not engaged with the process before or on that date then the panel will need to reach its decision on the potential redundancy”. The claimant’s return to work

[91]On 9 July 2012 the claimant returned to work from sick leave. He met with Mr Anthony Nicolas who was a Trustee of the respondent from July 2011 until June 2015. The first part of the meeting dealt with the claimant’s return to work and a discussion about his shoulder condition. The meeting then moved on to a consultation meeting within the redundancy and restructure process. The notes of the meeting were at page 393. Ms FP was present at the meeting as a notetaker. The claimant told Mr Nicholas that his health was still “very impaired” and that he was still seeking treatment for his shoulder. He told Mr Nicholas that he could not lift his hand above his shoulder and he was having physiotherapy.

[92]Mr Nicholas went on to ask the claimant why he had not participated in the restructure process or applied for the Business Manager’s role. The claimant said he did not think it was fair that he should have to compete for the role and the respondent has subsequently conceded that the claimant should have been offered this role on a trial basis for three months. At that meeting Mr Nicholas said that no decision had been made at that stage to make the claimant redundant. This was not correct because the decision had been made at the Redundancy Panel Meeting on 28 May 2012 and had been suspended when the claimant said he would be returning to work.

[93]On 25 July 2012 the claimant attended the interview for the role of Business Manager and was unsuccessful. We make no further finding in relation to that interview or its outcome in the light of the respondent’s concession that the role should have been offered to the claimant on a trial basis. The claimant was informed of the decision by letter from Ms Dawkins and Mr Nicholas dated 1 August 2012 (page 414).

[94]It took from 23 March to 25 July 2012 to bring the claimant to an interview for the Business Manager role, a period of four months. This coupled with the claimant’s non-attendance at the all-staff meeting on 27 February 2012 and his lack of expression of interest in other roles (such as the Volunteer Development Manger role) led the respondent to the view that the claimant was deliberately failing to engage with the restructure and redundancy process. During the majority of the fourmonth period, the claimant was off sick with a disability-related illness. It was also his view, correctly, based on the respondent’s concession in these proceedings, that he should not have to undergo competitive selection for the Business Manager role.

[95]The claimant was issued with notice of redundancy on 14 August 2012 (page 416-417). His termination date was given as 15 August 2012. The claimant was paid a statutory redundancy payment. He brings no claim for notice pay. The appeal against dismissal

[96]The claimant was given a right of appeal against dismissal to Ms Tina Harris a Trustee. He exercised that right of appeal by email dated 21 September 2012, page 438. He complained of victimisation for initiating a bullying and harassment grievance against the chief executive and said he thought his dismissal was motivated by his past relationship with the chief executive. He considered the dismissal unfair and an act of disability discrimination. He did not mention whistleblowing within this appeal email.

[97]The tribunal heard evidence from the appeal officer Ms Harris. She told the tribunal that she carried out an investigation in connection with the appeal but she was very unclear as to what she had actually done within that investigation. She said she spoke to the relevant individuals but the only person she could name was the Finance Officer and we were not told the outcome of any discussion with him. As Ms Harris could not tell the tribunal what she had actually done within this investigation and there was a complete absence of paperwork to support it, we find that no such investigation took place.

[98]We also asked Ms Harris if she knew who made the decision to dismiss. She could only assume and she did not know who made the decision to dismiss. The claimant considered that the decision was made by Ms FP as she had sent the dismissal letter on 14 August 2012. We find that the decision was made by the redundancy panel on 28 May 2012. That decision was postponed to see whether the claimant would be successful in the interview for Business Manager.

[99]We were not told by the respondent how they arrived at the final decision to dismiss, after the claimant had been unsuccessful at the Business Manager interview. We were not told whether it was the interviewers for that role, the Chief Executive who sent the dismissal letter or whether it reverted by to the decision makers of 28 May 2012. In any event we find that it was an inevitable outcome of the failure to secure the Business Manager’s role. The appeal outcome letter said on page 476 that Ms Harris was confirming the decision taken by the Redundancy Panel, although Ms Harris was not able to tell the tribunal this in evidence. There was no evidence of the panel being reconvened after the interview on 26 July 2012.

[100]We find that the appeal process was lacking in many respects. The appeal officer did not know whose decision she was reviewing nor could she remember any documents she considered in carrying out that review. We have found that she did not carry out any investigation. There was no paperwork to support anything that she did within the appeal process other than the outcome letter.

[101]Surprisingly there were 2 versions of the appeal outcome letter in the bundle, one starting on page 460 dated 4 December 2012 and one on page 470 dated 7 December 2012. The claimant said he received the longer letter of 7 December starting at page 470 and this was confirmed by Ms Harris.

[102]Ms Harris sent her lengthy appeal outcome letter to the claimant on 7 December 2012 (page 470-476). The claimant did not attend the appeal hearing so Ms Harris considered a written document from him. One of the reasons for the length of the outcome letter was that it included the claimant’s representations followed by Ms Harris’s responses. The letter was “pp’d” on Ms Harris’s behalf. The claimant’s ill-health absence

[103]On 10 January 2012 the claimant sent an email to Mr Davidson informing him of a hospital appointment to treat his left shoulder. He said (page 273) “You may not be aware, but since May of last year I have had a constant unbearable discomfort that is constantly shooting pain from my neck into my left arm and shoulder setting; I’m currently taking medication for this but the pain is constant and sometimes unbearable.”

[104]This email alerted Mr Davidson to the fact that the shoulder condition had persisted at that stage for eight months and that the claimant was in considerable discomfort and taking medication for the pain which was sometimes on bearable.

[105]In relation to the claimant’s sickness absence, we adopt the findings of the tribunal in the case between the same parties, case number 2302813/2015, paragraph 5. The claimant had two significant periods of absence during his employment, the first being in 2010 for a period from 9 November 2009 to 10 January 2010. The second period was in 2012 due to pain with his shoulder and subsequently due to a hearing impairment. The tribunal in case number 2302813/2015 found that in 2012 the claimant was off sick for 63 working days due to his disability from 4 April to 8 July 2012. By the date of the claimant’s dismissal in August 2012, the shoulder condition had lasted for more than 12 months. We saw his sick notes in the bundle from pages 30 to 32. The claimant’s performance

[106]The respondent sought to criticise the claimant’s work performance. The claimant managed two Legal Services Commission (LSC) Caseworkers, Ms Adeoye and Ms Nguru. The LSC casework was not underperforming. The claimant also managed two Money Advice Caseworkers, Ms Walker and Ms Tsivanidis, and this service was underperforming. The difficulty for the respondent, which seeks to argue that the claimant would have been dismissed in any event for poor performance, is that they were not carrying out any performance management. By 2012 the claimant had been employed by the respondent for eight years. He had never been performance managed. Neither had he performance managed any members of his team. The lack of poor performance management was one of the reasons the respondent failed its quality audit.

[107]In paragraph 14 of Mr Davidson’s first witness statement he said that whilst there had been complaints about the claimant’s management of his duties, they considered that this would not be looked into until after the redundancy process. We find that the respondent made a conscious decision not to performance manage pending the outcome of the restructure/redundancy exercise.

[108]It was put to the claimant in cross-examination that an aspect of his job role was to manage and quality assure a minimum of two initiatives, one of which was social policy (claimant’s job description page 75). One of the respondent’s audit failures was the lack of a social policy plan. No such document could be located by the auditors although the claimant alleged that it “resided with the Chief Executive”. Had the document been with the Chief Executive we find on a balance of probabilities that the auditors would have located it and we find it implausible that there was no draft and no more than one copy of it in existence. We find on a balance of probabilities that the claimant had not prepared it. There was however no management of the claimant to ensure that he achieved the objectives of his job description. The redundancy situation

[109]We heard evidence from Mr Davidson as to the extremely difficult financial situation faced by the respondent. We saw the respondent’s financial reserves analysis for 2012/2013 and this factored in a redundancy cost for the claimant (page 304). We saw notes of a Trustee Board Meeting held on 26 March 2012 when the budget position was discussed. Reserves were due to drop to £80,000 for that year and Trustee Mr Jason Gold said that if reserves went under £100,000 the respondent was at risk (page 314). We find that this means at risk of closure.

[110]We asked the claimant whether he accepted that there was a genuine redundancy situation at the respondent. He said he did not accept this. He said in his oral submissions that he accepted that there needed to be a restructuring exercise and that his role should be deleted because the LSC had stopped funding the organisation within the charity business. What he did not accept that was that there was no role for him to move in to.

[111]We find based both on the evidence from Mr Davidson of the respondent’s dire financial situation and on the claimant’s own acceptance that there needed to be a restructure and his role should be deleted, that there was a genuine redundancy situation. We also find based on the respondent’s concession that there was a role for the claimant to move into and this was the Business Manager role. Special leave

[112]It was put to the claimant that he had abused the respondent’s Special Leave policy in August/September 2011 and that this could have resulted in is dismissal for gross misconduct. In Ms Harris’s witness statement she made the point that the claimant had taken an extraordinary amount of special leave. On 6 January 2012 Mr Davidson retrospectively approved the claimant’s special leave for August/September 2011 (page 270). The respondent produced no evidence to support the assertion that the claimant had abused the Special Leave policy (the policy was at page 134 of the bundle).

[113]The claimant said he had not abused the Special Leave policy but agreed in principle that if an employee abused any policy, that was a matter that would need to be dealt with. Once again the difficulty for the respondent was the lack of any performance management in relation to the claimant’s absences. The reason for dismissal

[114]We have considered our finding of fact as to the reason for dismissal. We find that the reason for dismissal was redundancy. Although the claimant did not accept that there was a genuine redundancy situation, in oral submissions he accepted that there needed to be a restructuring exercise and that his role should be deleted.

[115]The claimant did not accept that was that there was no role for him to move in to. We find that the situation facing the respondent with audit failures and severe financial difficulties meant that the restructure was essential to its survival. The claimant accepts that his role should be deleted and we agree and find that there was a genuine redundancy situation. The fact that the respondent concedes that they should have redeployed the claimant into the Business Manager’s role does not go to the issue of whether there was a genuine redundancy situation. It goes to the fairness of the redundancy process and the requirement to offer suitable alternative employment.

[116]Given the respondent’s concession, we have not considered it necessary to explore whether there were any other roles which the respondent should have offered to the claimant.

The law

[117]Redundancy is a potentially fair reason for dismissal under section 98(2)(c) of the Employment Rights Act 1996. Under section 98(4) where the employer has established a potentially fair reason for dismissal, the determination of whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) depends upon whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case.

[118]In relation to the Polkey issue the claimant drew to the tribunal’s attention the decision of the EAT (McMullen J) in the case of Evans v Capio Healthcare (UK) Ltd

EAT/0143/04

/ which held that the employment tribunal had wrongly used the Polkey principle following an unfair dismissal finding going to the heart of the unfairness, and after a finding that respondent's attempt to find alternative work was a sham.

[119]Section 13 of the Equality Act 2010 provides that 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.

[120]Section 23 of the Equality Act provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case.

[121]Section 136 of the Equality Act deals with the burden of proof and provides that 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.

[122]One of the leading authorities on the burden of proof in discrimination cases is Igen v Wong

2005 IRLR 258

. That case makes clear that at the first stage the Tribunal is to assume that there is no explanation for the facts proved by the claimant. Where such facts are proved, the burden passes to the respondent to prove that it did not discriminate.

[123]Lord Nicholls in Shamoon v Chief Constable of the RUC

2003 IRLR 285

said that sometimes the less favourable treatment issues cannot be resolved without at the same time deciding the reason-why issue. He suggested that Tribunals might avoid arid and confusing disputes about identification of the appropriate comparator by concentrating on why the claimant was treated as he was, and postponing the less favourable treatment question until after they have decided why the treatment was afforded.

[124]In Madarassy v Nomura International plc

2007 IRLR 246

it was held that the burden doers not shift to the respondent simply on the claimant establishing a different in status or a difference in treatment. Such acts only indicate the possibility of discrimination. The phrase “could conclude” means that “a reasonable tribunal could properly conclude from all the evidence before it that there may have been discrimination”.

[125]In Hewage v Grampian Health Board

2012 IRLR 870

the Supreme Court endorsed the approach of the Court of Appeal in Igen Ltd v Wong and Madarassy v Nomura International plc. The judgment of Lord Hope in Hewage shows that it is important not to make too much of the role of the burden of proof provisions. They require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.

[126]Showing that conduct is unreasonable or unfair is not, of itself, enough to transfer the burden of proof - Bahl v Law Society

2003 IRLR 640

(EAT).

[127]The courts have given guidance on the drawing of inferences in discrimination cases. The Court of Appeal in Igen v Wong approved the principles set out by the EAT in Barton v Investec Securities Ltd

2003 IRLR 332

and that approach was further endorsed by the Supreme Court in Hewage. The guidance includes the principle that it is important to bear in mind in deciding whether the claimant has proved facts necessary to establish a prima facie case of discrimination, that it is unusual to find direct evidence of discrimination.

[128]Section 27 provides that a person victimises another person if they subject that person to a detriment because the person has done a protected act. A protected act is defined in section 27(2) and includes the making of an allegation (whether or not express) that there has been a contravention of the Equality Act.

[129]Section 123 of the Equality Act provides that: (1) ………….proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

[130]The Court of Appeal held in Gallop v Newport City Council

2014 IRLR 211

, that it is essential for a reasonable employer to consider whether an employee is disabled, and form their own judgment. Ordinarily an employer will be able to rely on suitable expert advice, but this does not displace their own duty to consider whether the employee is disabled, and it is impermissible for that employer simply to rubber stamp a proffered opinion. Protected disclosures

[131]Under section 48A of the Employment Rights Act 1996, a “protected disclosure” is defined as a “qualifying disclosure” which is disclosed in accordance with sections 43C to 43H of that Act.

[132]Section 43B(1) of the Employment Rights Act 1996 defined a qualifying disclosure at the relevant time as follows: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure tends to show one or more of the following— (b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.''

[133]The public interest test was not introduced until 25 June 2013 and as such is not applicable to this case. At the material time in these proceedings, for a disclosure to attract the statutory protection, it had to be made in good faith. This requirement was also repealed on 25 June 2013.

[134]The claimant relied upon section 43B(1)(b) and 43B(1)(d) as set out above, in relation to the information the disclosures tended to show.

[135]Section 43C ERA provides that a qualifying disclosure is made in accordance with this section if the worker makes the disclosure to his employer.

[136]For the purposes of automatically unfair dismissal Section 103A ERA 1996 provides that an employee who is dismissed shall be regarded………… as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[137]In Cavendish Munro Professional Risks Management Ltd v Geduld

2010 ICR 325

the EAT said that in order for a communication to constitute a qualifying disclosure under section 43Bm, it must involve the disclosure of information as opposed to the mere making of an allegation or statement of position. Slade J at paragraph 24 said “Further, the ordinary meaning of “information” is conveying facts…..Communicating “information” would be: ‘The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around’. Contrasted with that would be a statement that: ‘You are not complying with health and safety requirements.’ In our view this would be an allegation not information”.

[138]In Western Union Payment Services Ltd v Anastasiou

EAT/0135/13

the EAT reviewed the earlier authorities including Cavendish Munro. Eady J said that section 43B of the ERA required the disclosure to be one of “information”, not merely the making of an allegation or a statement of position. The distinction can be a fine one to draw and will always be fact sensitive. The disclosure of information must further identify, albeit not in strict legal language, the breach of legal obligation relied on.

[139]Some doubt has been cast on the decision in Cavendish Munro by the recent decision of the EAT in Kilraine v London Borough of Wandsworth.

EAT/0260/15

which considered the distinction between an allegation and information. Langstaff P said “I would caution some care in the application of the principle arising out of Cavendish Munro………… The dichotomy between “information” and “allegation” is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point”. Conclusions Protected disclosure

[140]We have found above that the claimant made a disclosure in the 17 November 2011 grievance hearing that he had been bullied by Ms FP and that he linked this to their past sexual relationship and that he considered it a form of sexual harassment. The claimant relies upon this as an act of whistleblowing and the old law (pre 25 June 2013) applies. The claimant therefore does not have to satisfy a public interest test.

[141]Under the old law set out in Parkins v Sodhexo

2002 IRLR 109

the claimant can rely on a breach of his own contract of employment. The claimant relies upon this disclosure as information tending to show that a person, namely the respondent, had failed to comply with a legal obligation, this being the legal obligation to protect him from bullying, harassment and including harassment of a sexual nature or related to sex. The complaint made by the claimant was that he was being bullied and harassed by the Chief Executive and that this was related to a past sexual relationship. We find that the disclosure did tend to show such a failure to comply with a legal obligation.

[142]Under the old law there was also a requirement that the disclosure should be made in good faith and this was challenged by the respondent. The respondent submitted that it was not made in good faith because the claimant was using it as a means of persuading FP to retract her letter of 19 September 2011 and that he had no reasonable belief in the bullying and harassment allegations because there were only two such allegations in the notes of the 17 November meeting.

[143]We have found above that the claimant spoke to FP on 30 August 2011, the first day of a period of absence and that this was the reason he was especially aggrieved to receive her letter of 19 September 2011 set out above. We find that in saying that if she did not retract the letter he would “humbly request” that she notify the Trustees to look into it as a grievance issues, he was not acting in bad faith.

[144]The claimant was entitled to take the position that if that of 19 September 2011 letter stood, he wished his email to be considered as a grievance. Employees have a right both under the terms of the respondent’s grievance procedure and under an implied term within the contract of employment, to raise a grievance if they are aggrieved about a matter. It is not bad faith to say that if there is an issue that cannot be resolved, the claimant would like it dealt with as a grievance. This was a perfectly proper route for the claimant to take.

[145]We find that the claimant made his disclosure on 17 November 2011 in good faith. Protected act

[146]The respondent submitted that the claimant did not say that he was being subjected to sexual harassment by Ms FP and that as such, his disclosure at the 27 November 2011 grievance hearing cannot amount to a protected act under section 27(2)(d) of the Equality Act. Our finding above is that the claimant complained about bullying and harassment and that he made the link between that bullying and his past relationship of a sexual nature with FP. We also found that the claimant said at the grievance hearing that the bullying and harassment might be a form of sexual harassment because of the past relationship. This is enough on our finding to amount to an allegation that FP had contravened the Equality Act 2010 and we find that the claimant did a protected act on 27 November 2011. Knowledge of disability

[147]The respondent submitted that the respondent did not know and could not be reasonably expected to know that the claimant had an impairment which met the legal definition of disability. The respondent’s submission was that by the end of May 2012 and during the redundancy panel discussions in May 2012 his Tinnitus condition appeared to be the main problem.

[148]In submissions paragraph 15, bullet point 5, the respondent said “However, if the ET holds that the test is knowledge that C suffered from an impairment, regardless of whether the impairment met the legal definition of disability, such knowledge is admitted.”

[149]We agree with this submission. The employer does not have to have the word “disabled” spelt out to them. The claimant had made his symptoms clear to Mr Davidson and to Mr Nicholas in the return to work meeting on 9 July 2012. It was clear that he had a significant impairment in his shoulder that caused significant pain and which required treatment and medication. It resulted in long term sickness absence supported by sick notes. We find that the respondent either knew or ought reasonably to have known that the claimant was a disabled person because of his shoulder condition and therefore they had knowledge of the disability at the date of the claimant’s redundancy dismissal.

[150]We are supported in our finding by the email from Ms Bartlett dated 31 May 2012 in which she acknowledged that the claimant appeared to be saying that he had a disability. The respondent was on sufficient notice of the facts of the claimant’s condition to have knowledge of disability. The reason for dismissal and the discrimination and whistleblowing claims

[151]We have found above that the reason for dismissal was redundancy.

[152]We have considered whether the claimant was dismissed as an act of victimisation for raising at the grievance hearing his bullying and harassment complaint against FP.

[153]The claimant chose not to cross-examine Ms Dawkins who was a witness who was both at the grievance hearing of 17 November 2011 and on the Redundancy Panel which made the initial decision to dismiss on 28 May 2012. The allegation that the dismissal was because of the protected act was not put to any of the respondent’s witnesses.

[154]We have otherwise found no evidence to connect the protected act and the dismissal. Our finding is that the reason for dismissal was redundancy. The claimant accepted that there was a need for his post to be deleted and a need for a restructure. We find that in those circumstances the burden of proof did not pass to the respondent.

[155]We have considered whether the claimant was dismissed because of his disability. The claimant did not put to any of the respondent’s witnesses that they dismissed him because of his disability or as a result of something arising from his disability, namely his lengthy sickness absences and the need for time off for treatment.

[156]We find that had the respondent wished to dismiss the claimant because of his lengthy sickness absences, they had plenty of opportunity to manage the claimant within a capability process. Instead of this, they suspended the decision to dismiss, initially made on 28 May 2012, to allow the claimant time to undergo the interview for the Business Manager’s role to see whether they could retain him in employment. Our finding is that had they wished to dismiss him because of his disability or because of his disability related absences, there was no need to afford him that opportunity. Just because the claimant has a disability and was dismissed does not automatically mean that there was disability discrimination and he has not discharged the initial stage of the burden of proof.

[157]We have considered whether the respondent dismissed the claimant because he made a protected disclosure. We find that they did not, for the same reasons as we have set out in relation to his protected act. Polkey issue

[158]The claimant asserts, and we agree and find that the respondent is not in a position to say that they would have dismissed the claimant for poor performance in any event, when they had not brought any poor performance to his attention in a formal manner and given him an opportunity to improve.

[159]It is far too speculative to say that had the claimant been placed in performance management, he would have failed. Any Polkey reduction has to be on the basis of a fair dismissal. A proper performance management process should give the employee the support and/or any training he needs and provide an opportunity for improvement. We are unable to find that the claimant would not have improved and we make no Polkey reduction in this respect.

[160]The respondent also asserts that the basis upon which they would and should have deployed the claimant into the Business Manager’s role, was on a three-month trial basis and that he would have failed the trial.

[161]A statutory trial period is four weeks and not three months. The claimant had sufficient continuity of employment such that if he was not performing well in the role after three months, the respondent would be required to performance manage him before they could carry out a fair dismissal. Again we find that it is too speculative to say that he would have failed in the Business Manager’s role without him even having started in that role. We also had no evidence or explanation to show why the respondent had chosen a period of three months.

[162]We have also found above, based on Mr Davidson’s evidence, that the respondent had made a conscious decision not to performance manage the claimant pending the redundancy exercise. We find that having made this decision, it is not open to the respondent to rely upon poor performance as a means of seeking to reduce compensation payable to the claimant.

[163]The respondent also seeks to rely on the possibility that they may have dismissed the claimant for gross misconduct, for example for alleged abuse of the Special Leave Policy. The claimant rightly accepted that an employee who “abused” a policy should have this addressed with him or her. It requires a proper disciplinary procedure with properly formulated disciplinary charges and with sufficient particulars to enable the claimant to answer the case against him. There was no clear evidence or records as to the special leave, other than Mr Davidson retrospectively granting special leave with this email of 6 January 2012.

[164]We are unable to find that had a disciplinary case been put to the claimant in relation to special leave, that he would have been dismissed for gross misconduct. The claimant would no doubt have wished to explain his position on the leave that he took and we cannot find that dismissal would have been the inevitable outcome.

[165]We decline to make any Polkey reduction for the claimant. Contributory fault

[166]The respondent seeks to rely on the claimant’s failure to engage with the restructure/redundancy process and a failure to engage with the audit failures as warranting a reduction in compensation for contributory fault. Alternatively or additionally the respondent relied on what was said to be an aggressive tone taken by the claimant in his emails with the Chief Executive (FP).

[167]An award for contributory fault applies if the tribunal finds that there was action on the part of the claimant which was culpable or blameworthy, that it actually caused or contributed to the dismissal and that it is just and equitable to reduce the award by any proportion specified.

[168]The reason for dismissal was redundancy. This was the respondent’s own case and we have found in their favour on this. The claimant did not cause the redundancy situation. He may have played a part in the audit failure but this was an across the organisation issue and not individual to the claimant. The claimant was not responsible for the organisation’s financial situation. His emails to the Chief Executive were not causative of his dismissal, even on the respondent’s case.

[169]The respondent has made a great deal out of the claimant’s failure to engage with the process, yet they accept that they should have redeployed him into the Business Manager’s role. A delay of four months from March to July 2012 could have been avoided if they had done this.

[170]We find that the claimant did not contribute to his redundancy dismissal by his own culpable or blameworthy conduct and it is not just and equitable to make any such reduction. We also highlight that in respect of any performance failings by the claimant, the respondent had made a conscious decision not to performance manage him pending the redundancy exercise so that it is not open to them to rely on any issues of underperformance. They had not drawn this to the claimant’s attention or given him an opportunity to improve. Remedy hearing

[171]As the claim for unfair dismissal succeeds (on the respondent’s concession) we discussed with the parties, at the conclusion of the liability hearing, the need to fix a date for a remedy hearing. After some discussion with the parties and an exploration of non-availability dates with the parties we said that the administration would identify a date and the parties would be notified.

[172]The parties shall give consideration to how they say the issue of remedy should be dealt with in the light of the tribunal’s judgment in case number 2302831/2015. We were told that a remedy hearing had not yet been fixed in that case.

[1]This case was heard by the Employment Tribunal on 17, 18, 19 and 20 October 2017. It has been the subject of the claimant’s appeal to the Employment Appeal Tribunal in case number

UKEAT/0160/18/OO

. It has also been the subject of a previous decision of the EAT which is not part of the matter currently under consideration. The remitted point

[2]The EAT ordered that the matter be remitted to this tribunal for consideration of the following question: what was the real reason for the appellant’s dismissal (see terms of remission set out below), unless in the view of the learned Regional Employment Judge factors emerge which render such an arrangement impracticable or impossible in which case the matter be remitted to be heard by a differently constituted tribunal as directed by the Regional Employment Judge. It was possible to remit to the original tribunal which heard the case in October 2017.

[3]The terms of remission were set out in the EAT’s Order made on 4 July 2019 as follows: The ET is to reconsider the question: what was the real reason for the claimant’s dismissal? In determining that question, the ET will need to decide; who made that decision and when. It will need to keep in mind that the existence of a redundancy situation is not determinative of the question whether the claimant was dismissed by reason of redundancy – a question that will need to be answered in the light of the statutory definition (section 139 Employment Rights Act 1996) and upon the determination of what was in the mind of the decision-taker at the relevant time. In this case, the ET will need to engage with the question whether the business manager position was in fact substantially the same as the claimant’s post, such as to counter the suggestion that there was a diminishing need for employees to carry out work of the particular kind the claimant was employed to do. Even if it is found that the position was not simply the claimant’s role under a different title, the ET will need to determine why it had then been decided that the claimant would not be permitted to trial the role when it was conceded before the ET that this should have been done? Was this by reason of his protected act, his protected disclosure or by reason of disability discrimination (direct or under section 15 Equality Act 2010). As the parties agree, there is no need for the ET to revisit the other findings of fact already made or the conclusions that are undisturbed by the EAT’s Judgment on this appeal.

[4]As a result of the Order set out above, we do not revisit our original findings of fact save as required to do so. We rely on those original findings of fact as applicable and they are not restated here. Procedural matter on documents

[5]Just before the start of the hearing on 6 January 2020 we were shown an email from the respondent’s side saying that their representative Ms Montaz was unwell and “hopeful” of being at the tribunal by 2pm. We were told there would be no live evidence, just submissions and that the respondent was hopeful that we could conclude within the time. Unfortunately the respondent’s representative did not arrive at the tribunal until the afternoon and as such we were not able to start until 2:50pm. We found that the parties had not exchanged written submissions and needed time to read these and there was a preliminary issue as to the claimant’s reference to documents that had the potential to attract litigation privilege.

[6]We heard from the parties on that matter but the respondent’s representative needed time to check the pages in more detail and we asked the claimant to produce copies of certain pages that did not appear to be in front of us. He told us that he had referred to these documents in his closing submissions from the full merits hearing and we asked him to bring further copies of these on day 2, which he did.

[7]On day two, 7 January 2020, we had further submissions from the parties on the issue of the privileged documents. Due to the passage of time and although there were bundles available to the tribunal, it appeared that these were not the final versions of the bundle that had been used at the full merits hearing in October 2017. We asked the respondent’s representative for her position on the claimant’s reliance on documents that had the potential to attract litigation privilege.

[8]The parties confirmed that they each had a copy of the final version of the bundle that was in use at the full merits hearing. Tribunal Member Ms Brown asked the respondent’s representative whether she had marked the pages in her bundle as having been referred to at the full merits hearing. Ms Montaz said that for example she had marked pages 293a and 293b and these were from a Peninsula adviser named Mr Roger Berry. Ms Montaz said that she “withdrew her comments about the privileged documents” referred to in the claimant’s submissions for this hearing. No application was pursued by the respondent as to whether we should disregard these documents.

[9]The documents under discussion at this hearing were separate to those referred to in the section of our liability decision headed “The parties’ applications” paragraph 23 onwards. Documents for this hearing

[10]We had written submissions from both parties to which they spoke. These submissions have been fully considered even if not expressly referred to below, together with any authorities relied upon.

[11]We had no witness evidence at this hearing. The requirement for further findings of fact

[12]In this case, the EAT held that we had not demonstrated that we had tested the respondent’s reason for dismissal in the light of the statutory definition of redundancy set out below and that we made no finding as to who made the decision to dismiss and when.

[13]Key to this case was the respondent’s concession that the claimant should have been offered the alternative role of Business Manager on a trial basis. This concession inevitably led to the conclusion that the dismissal was unfair under section 98 ERA.

[14]It was therefore necessary for us to make further findings of fact as to whether the redundancy situation across the organisation genuinely applied to the claimant’s own post or whether that was a sham given his case that his work was to continue to be undertaken by a new Business Manager.

[15]It was necessary for us to make a finding of fact as to who took the decision to dismiss and when and whether the Business Manager role was in fact substantially the same as the claimant’s post. Even if it was not the claimant’s role under a different title, was it because of his protected act, his protected disclosure or because of his disability or something arising from that disability?

[16]The EAT took the view that the claimant’s failure to cross-examine the respondent’s witnesses was not material given that we had rejected their evidence as to their knowledge of the protected act and protected disclosure and their knowledge of disability. The burden of establishing the reason for dismissal under section 98 ERA, rests with the respondent. Further findings of fact Relevant background to the restructure

[17]In November 2011 the Personnel Sub-Committee of the respondent produced a document titled “Notes on Proposed Organisation Structure” (page 213). It referred specifically to the claimant’s role of Specialist Manager Grade PO2 and said: “Delete post redeploy present post holder”. It also said under the heading “Potential Redeployments” – at paragraph 2.1: “One full-time Specialist Manager to Operations Manager role; skills require redefining with more emphasis on quality of advice; achieving funder performance targets and less focus on strategic business development”.

[18]We find that this was a reference to the claimant’s role. The document went on to talk about potential redundancies and mentioned administrator / office manager and 2 adviser roles but nothing at a more senior level such as at the claimant’s grade.

[19]We agree with the claimant’s submission and find based on this document (page 213) and there being no evidence to the contrary from the respondent, that in November 2011 they intended to delete his role and redeploy him as the present post-holder into the newly created role.

[20]The claimant raised a grievance against Ms FP the Chief Executive. On 11 November 2011 Trustee Ms Maggie Bartlett sent an email to the claimant (page 251) acknowledging his grievance which she said she had received on 28 October 2011. It had taken some time for the grievance to reach her. The grievance had originally been sent by the claimant to Ms FP on 21 September 2011. We find on a balance of probabilities, bearing in mind that we did not hear from Ms FP, that the delay in Ms Bartlett acknowledging the grievance was because of a delay on the part of Ms FP in forwarding it to the Trustees.

[21]We found (liability decision paragraph 64) that the grievance hearing took place on 17 November 2011 and was heard by Trustees Ms Bartlett and Ms Dawkins. At that hearing the claimant made a complaint of bullying and harassment on the part of Ms FP. He made a link between that bullying and harassment and his past sexual relationship with FP. We also found that he said that it might be a form of sexual harassment. We found (paragraph 146) that his complaint was a protected act.

[22]We found that Ms FP was off sick from 16 December 2011 for six months. This meant that the claimant’s grievance was put on hold. The notes of the Personnel Sub-Committee of 9 January 2012 (page 272) stated that the grievance was put on hold until FP returned from sick leave and the claimant was informed but was not happy about it. They said nothing could be done until she returned. We found (paragraph 72 liability decision) that Ms FP returned on 11 June 2012. The claimant’s grievance was not progressed and he has never received a grievance outcome.

[23]In the notes of the Personnel Sub-Committee of 9 January 2012, the respondent gave a Restructuring Update, saying that the current plans from November 2011 needed to be better costed and the roles needed to be clearly defined. It said that after a long discussion with Peninsula (their advisers) they needed to do a revised structure.

[24]As we have previously found, the claimant was on leave in March 2012 and then went off sick in April 2012 and did not return until 9 July 2012 (paragraph 80 of the liability decision). The claimant at risk of redundancy

[25]We found (paragraph 83) that Mr Davidson, the Interim CEO, wrote to the claimant on 18 April 2012 to confirm that he was at risk of redundancy and invited him to consultation meetings. The claimant did not engage with this. Despite the submissions made to us at this Remitted hearing as to the respondent’s reason for dismissal being the claimant’s lack of engagement and lack of commitment to the organisation, we found at paragraph 83 that the letter of 18 April 2012 said: “I wish to assure you that this is no reflection on your ability or commitment to the company”.

[26]The respondent complained about the claimant’s non-engagement with the restructure process. We find that this was because he was off sick and unfit for work with a disability related condition (liability decision 147- 150).

[27]The claimant took us, in his written submission, to page 303 of the bundle, an email dated 19 March 2012, in which Mr Davidson said to Trustee Mr Gold on the subject “Depleted Reserves…” that he had made a number of assumptions, one of which was – “we lose PM in Apr but retain additional staff costs for ….[others]”. There was no option or assumption in that email of retaining the claimant and the cost consequences of this. The plans were based on “losing” the claimant in April.

[28]The claimant submits that this email shows a prior decision to dismiss him and we agree. This email of 19 March 2012 was sent before the claimant had been sent the Job Description and Person Specification for the newly created Business Manager role. It was on 23 March 2012 (letter page 310) that the claimant was invited to interview for this role, which was to take place on 4 April 2012. On 19 March 2012 Mr Davidson had already plans based on an assumption that the claimant would not remain in post. We find that the decision to dismiss was made no later than 19 March 2012. We make further findings below as to the reason for dismissal.

[29]On 10 May 2012 Mr Davidson sent an email to Ms Bartlett, who was the Chair of the Personnel Sub-Committee, saying amongst other things: “On PM [the claimant], I am conscious that we are pushing toward redundancy and a key factor will be whether we are able to require him to work his notice or not. Obviously we would pay in lieu and terminate on a given date….” (page 343).

[30]On 12 May 2012 (also page 343) Ms Bartlett replied saying that whilst there were lower grade jobs available she doubted the claimant would want them and they should not redefine those roles until “the PM matter is fully ‘concluded’”. We find based on these emails that they were working towards the claimant’s dismissal and that the decision had already been made.

[31]It is telling that on 14 May 2012 Ms Bartlett emailed Mr Davidson saying: “We need to review/update the PM strategy either on Friday 18th or Monday 21st May.” (page 351). This shows us and we find that Mr Davidson and Ms Bartlett had a strategy in relation to the claimant and we find that this strategy was to progress towards his dismissal.

[32]We found (at paragraph 84 liability decision) that on 22 May 2012 Mr Davidson sent an email to the Trustees saying “PM has 9 lives and delay is costing us £££’s.”

[33]As we found (paragraph 87) there was a redundancy panel meeting on 28 May 2012 where the Trustees decided that the Business Manager role was not comparable to the claimant’s role. This was a meeting at which Mr Davidson attended as notetaker. This meeting was set against the background of Mr Davidson and Ms Bartlett working towards the claimant’s dismissal.

[34]We found (paragraph 72) that Mr Davidson had been engaged as Interim Chief Executive to implement the restructure to ensure greater compliance, accountability and efficiency. This was the very purpose of his engagement and we find that this, together with his strategy in relation to the claimant, meant he was not a neutral attendee at the 28 May 2012 meeting.

[35]Mr Davidson’s evidence at paragraph 27 of his witness statement supports our finding that he was not neutral at this meeting because he outlined to the panel the reasons why he thought the claimant should not be retained, in a supporting document he had prepared titled “PM – Redundancy Overview” (pages 227-229). This paper set out Mr Davidson’s criticisms of the claimant, including poor performance, failure to engage with the redundancy process and comments on his sickness absence, including (page 228) that the claimant was “attempting to bring disability into play”.

[36]Mr Davidson’s Redundancy Overview document also said that they had not implemented an OH assessment for the claimant “on the basis that this could be misconstrued by PM”. We could not understand how an OH assessment of a long term sick employee could be “misconstrued”. It is a measure that is intended to be helpful to both parties. We find that the respondent and in particular Mr Davidson, as the line manager, did not do this because they did not wish to keep the claimant in employment. They did not wish him to take view and thus misconstrue their intentions, that they may need to make adjustments in order to retain him in employment. This underlines our finding that there was a “PM strategy” to dismiss him.

[37]Trustee Mr Geoff Chapman said that they considered the claimant’s role and the Business Manager role to be “significantly different” (email 28 May 2012 page 371), but this is not supported by the notes of the 28 May meeting (at page 374) in which it was accepted that the Business Manager’s role “encompasses all of the Specialist Services Manager role” and included additional items. It is also not supported by the concession that the claimant should have been allowed to trial the role. The Business Manager role was to include deputising for the CEO. The claimant had been in a role where he had been the number 2 to the CEO as he had been one of three members of the Senior Management Team. The others were the CEO and the Operations Manager who had left in 2011. This meant that the claimant was the next direct report to the CEO.

[38]We find, based on this note of the redundancy panel meeting, that the requirement for the work carried out by the claimant had not ceased or diminished because the Business Manager role was intended to encompass all of the claimant’s role. The requirement for the claimant’s work continued and we find that although there was a redundancy situation within the respondent organisation, the claimant’s role was not redundant. The Business Manager’s role was also sufficiently similar for the respondent to concede that the claimant should have been allowed to trial it.

[39]At paragraph 14 of his witness statement Mr Davidson said that whilst there had been complaints concerning the claimant’s management of his duties “it was considered that this would not be looked into until after the redundancy process”.

[40]As to the appeal against dismissal we found Ms Harris, the dismissal appeal officer, unsatisfactory as a witness on this. She could not tell the tribunal who made the decision to dismiss, whose decision she was considering and we found that despite saying she had, she did not carry out any appeal investigation.

[41]On 23 June 2012 (page 383) Mr Davidson sent an email to a former Trustee with the subject title “Apologies – PM does not know you are no longer with MLCAB TB [respondent Trustee Board] – please ignore this infuriating email” with the first line “I have no idea how the Trustees will dismiss him.” This did not ask whether the Trustees would dismiss the claimant, but how they would dismiss him. The HR Committee meeting of 27 June 2012

[42]The claimant also took us to notes of an HR Committee meeting on 27 June 2012 (page 386) at which Ms Harris, Ms FP, Mr Davidson, Ms Bartlett, Ms Dawkins and one other were present and at which Ms FP raised the issue of the claimant going on garden leave. The claimant was due to return from sick leave on 9 July 2012. We find from this that Ms FP was looking at ways of the claimant not returning to work and thus his employment being terminated. Ms FP was the person against whom the claimant had made complaints of bullying and sexual harassment. At the meeting on 27 June 2012 (notes page 387) it was confirmed that FP could not be on the redundancy panel because of what was described as the “PM v FP Grievance”. We find that the grievance was in their minds at this HR Committee meeting in relation to the claimant’s continued employment. The decision maker on the dismissal

[43]We find based on the matters set out above, that the decision maker on the decision to dismiss was Mr Davidson. Although the respondent submitted that by the date of the claimant’s dismissal, Mr Davidson had gone (by end of June 2012), in practice he overlapped with Ms FP for about two weeks. Ms FP returned to work on 11 June 2012 and she implemented his decision. As we have found above, she was keen to see that the claimant did not return to work. It was Mr Davidson’s brief to turn the organisation around and he had given the redundancy panel the reasons why he believed the claimant should not be retained. He had a strategy in relation to the claimant which was to dismiss him.

[44]There was no evidence of the redundancy panel being reconvened after the claimant’s telephone interview for the Business Manager’s role on 26 July 2012. We find that this did not happen because the decision had already been made by Mr Davidson.

[45]The claimant’s submission was that the respondent was embarrassed by his grievance against Ms FP and that they wanted to “sweep it under the carpet”. He submits that they engineered the redundancy situation to facilitate his dismissal. The respondent submitted that it was “far fetched in the extreme” to consider that the respondent’s Trustees would make someone redundant rather than consider a grievance and relied upon a grievance against an employee with the initial J who also had a grievance against the Chief Executive and whose grievance also remained outstanding (page 471, appeal outcome letter to the claimant from Ms Harris – 7 December 2012).

[46]We find that no steps were ever taken to progress or resolve the claimant’s grievance issue after Ms FP returned to work on 11 June 2012. We find that this was because the strategy was to dismiss him. The grievance was sensitive, involving allegations of sexual harassment at the most senior level in the organisation. It would have involved a great deal of time and management when Mr Davidson had already decided to dismiss. We find that senior management used the purported redundancy dismissal as the reason not to deal with it. Interview scores for the Business Manager role

[47]In the telephone interview for the Business Manager’s role on 26 July 2012 the interviewers, Mr Nicholas and Ms Dawkins, found in the main, that the claimant partially met the criteria for the role (page 408 onwards). The scores they used were “M” for met, “P” for partially met and “N” for not met.

[48]In an email between the interviewers on 26 July 2012, Ms Dawkins suggested that they should have scored numerically 1 – 5, with 1 being “poor” and 5 being “great”. She asked Mr Nicholas to score in that way, giving her scores as 1 for all of the criteria (email page 412).

[49]Out of the job criteria the claimant met 3, did not meet 3 and partially met 14. We find that as the claimant partially met most of the criteria, this would lead to a score somewhere in the middle, around 3, rather than scoring 1 for everything as Ms Dawkins had directed. We find that this was Ms Dawkins following through on the “PM strategy” towards dismissal by telling Mr Nicholas to record her scores as 1 for everything, even though this did not mirror the scores actually given at the interview. The law

[50]Redundancy is a potentially fair reason for dismissal under section 98(2)(c) of the Employment Rights Act 1996 (ERA). Under section 98(4) where the employer has established a potentially fair reason for dismissal, the determination of whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) depends upon whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case.

[51]Section 139 ERA sets out the statutory definition of redundancy: (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.

[52]In Shawkat v Nottingham City Hospital NHS Trust

2001 IRLR 555

the Court of Appeal held that the mere fact of a reorganisation of the business, as a result of which the employer requires one or more employees to do a different job from that which he or she was previously doing, is not conclusive of redundancy. The tribunal must go on to decide whether that change had any, and if so what, effect on the employer's requirements for employees to carry out work of particular kind. It does not necessarily follow from the fact that a new post is different in kind from the previous post or posts that the requirements of the employer's business for employees to carry out work of a particular kind must have diminished. Nor does the fact that an employee of one skill was replaced by an employee of a different skill compel the conclusion that the requirements for work of a particular kind have ceased or diminished. That is always a question of fact for the tribunal to decide.

[53]Section 13 of the Equality Act 2010 provides that 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.

[54]Section 23 of the Equality Act provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case.

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

[56]If the prima facie case is established and the burden shifts, the employer can defeat the claim by proving either:a. that the reason or reasons for the unfavourable treatment was not in fact the ‘something’ that is relied upon as arising in consequence of the claimant’s disability; or

b. that the treatment, although meted out because of something arising in consequence of the disability, was justified as a proportionate means of achieving a legitimate aim.

[57]The approach to be taken in section 15 claims is set out in Pnaiser v NHS England

2016 IRLR 170

(EAT) by Simler P at paragraph 31. This case also addresses the burden of proof in section 15 cases. Under section 136, once a claimant has proved facts from which a tribunal could conclude that an unlawful act of discrimination has taken place, the burden shifts to the respondent to provide a non-discriminatory explanation. In order to prove a prima facie case of discrimination and shift the burden to the employer, the claimant needs to show:a. that he or she has been subjected to unfavourable treatment;

b. that he or she is disabled and that the employer had actual or constructive knowledge of this;

c. a link between the disability and the ‘something’ that is said to be the ground for the unfavourable treatment;

d. some evidence from which it can be inferred that the ‘something’ was the reason for the treatment.

[58]Section 136 of the Equality Act deals with the burden of proof and provides that 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. The leading burden of proof authorities are set out in our original judgment of October 2017.

[59]Showing that conduct is unreasonable or unfair is not, of itself, enough to transfer the burden of proof - Bahl v Law Society

2003 IRLR 640

(EAT).

[60]The courts have given guidance on the drawing of inferences in discrimination cases. The Court of Appeal in Igen v Wong approved the principles set out by the EAT in Barton v Investec Securities Ltd

2003 IRLR 332

[61]Section 27 provides that a person victimises another person if they subject that person to a detriment because the person has done a protected act. A protected act is defined in section 27(2) and includes the making of an allegation (whether or not express) that there has been a contravention of the Equality Act. Automatically unfair dismissal - whistleblowing

[62]For the purposes of automatically unfair dismissal section 103A ERA 1996 provides that an employee who is dismissed shall be regarded………… as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

Conclusions

[63]We found in our decision of October 2017 that the claimant made a protected disclosure in the 17 November 2011 grievance hearing. We also found that this was a protected act for victimisation purposes. We also found that the respondent had knowledge of disability at the material time.

[64]Ordinary unfair dismissal was conceded by the respondent as it accepted that the claimant should have been offered the role of Business Manager and allowed to carry it out on a trial basis.

[65]We reminded ourselves of our finding that the claimant was Specialist Services Manager being one of three members of the Senior Management Team, the other two being the Operations Manager and the Chief Executive. The other Operations Manager had left the organisation in September 2011 and was not subject to the restructure. The claimant was in effect the number 2 to the Chief Executive.

[66]The claimant submitted that his situation was in many ways synonymous with Shawkat (above). We agree with that submission. The respondent combined the responsibilities of two service managers to create a Business Manager’s role. We have found above that the claimant’s role was not redundant according to the statutory definition in section 139 ERA 1996. The requirement for the work of the particular kind that he was employed to do had not ceased or diminished. It was “all encompassed” within the Business Manager role, plus some additional duties.

[67]We have found above that the person who made the decision to dismiss was Mr Davidson, the interim Chief Executive and he made that decision by 19 March 2012.

[68]Mr Davidson had a strategy to dismiss the claimant. We have considered the reason for that dismissal.

[69]In written submissions the respondent said that the reasons for the claimant’s dismissal were as follows (submissions paragraph 36):a. The claimant’s position had been deleted

b. The respondent had no confidence in his capabilities nor commitment.

c. He had refused to provide any evidence of his capabilities to perform the role

d. He performed badly at the interview for the role

[70]It is not in dispute that his role was deleted but we have found that it was encompassed within the Business Manager role which they admit they should have allowed him to trial. The respondent said that they had no confidence in his capabilities or commitment and that he produced no evidence of his capabilities and did not do well at interview. We have also found that Ms Dawkins deliberately sought to downgrade his interview scores. This on our finding was part of the “PM Strategy”.

[71]There was a PM Strategy towards dismissal. They chose not to refer him to OH because they did not wish to give the claimant the impression that they may be prepared to engage with reasonable adjustments and thus retain him. They did not wish him to “misconstrue” the referral. They did not intend to consider the extent to which his ill health and therefore his disability, may have impacted upon his performance or engagement. The reason the claimant was not engaging with the redundancy process was, as we have found above, because he was off sick with a disability related condition. We therefore find that the claimant’s disability had a significant and substantial influence on the decision to dismiss. We therefore find that he was dismissed both because of his disability and because of something arising from his disability, namely his absence.

[72]In wider terms respondent did not wish to deal with the managerial issues raised by the claimant’s continued employment, had he been allowed to trial and succeed in the new role. Those managerial issues also included his grievance which we found to be both a protected act and a protected disclosure. We find that the primary reason for the dismissal was their view that he lacked capability and engagement which they did not wish to manage, for example with an OH referral which we find was a disability related reason.

[73]If we are wrong about this, we find that the need to deal with the grievance which was a protected act and protected disclosure, was a further reason for his dismissal.

[74]We find that the claimant established a prima case of discrimination because there was the concession on the failure to allow him to trial the role when he was off sick and this was attributed as failing to engage. He had never been appraised or told of any poor performance, yet we were told that his poor performance was the reason for dismissing him. The burden of proof passed to the respondent and as our findings above show, they did not provide a non-discriminatory explanation for their treatment of the claimant. Remedy hearing

[75]As the claim for unfair dismissal succeeded and a remedy hearing has not yet taken place this will be listed.

[76]The parties agreed at the end of this remitted hearing to propose directions for the Remedy hearing and submit this to the tribunal for approval.

[1]The original full merits hearing took place on 17, 18, 19 and 20 October 2017. The claim has been the subject of a number of appeals to the EAT. Three such appeals were brought by the claimant. The appeal leading to this remitted hearing was brought by the respondent. This remote hearing

[2]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties agreed to the hearing being conducted in this way.

[3]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. No members of the public attended.

[4]The parties were able to hear what the tribunal heard. From a technical perspective, there were no difficulties.

[5]The participants were told that it was an offence to record the proceedings.

[6]No witness evidence was taken at this hearing. The decision of the EAT in case number EA-2020-000447

[7]In a Judgment of HHJ Stacey handed down on 20 January 2022 in case number EA-2020-000447, the EAT upheld this tribunal’s finding that it was the respondent’s interim CEO Mr Davidson who made the decision to dismiss the claimant and the respondent’s challenge to our findings on the dismissal decision failed.

[8]The decision of this tribunal was that Mr Davidson made the decision to dismiss no later than 19 March 2012. What happened thereafter was a following through of Mr Davidson’s decision and a rubberstamping of his decisions (see EAT Judgment paragraph 62). Even after Mr Davidson had left, his decisions and his strategy to dismiss the claimant were implemented by others.

[9]The EAT said that we had erred in taking into account matters that postdated 19 March 2012 in our analysis of the reason for dismissal and that we had misdirected ourselves on the issue of causation on direct disability discrimination, discrimination arising from disability and victimisation. Direct disability discrimination and discrimination arising from disability

[10]The EAT took the view (judgment paragraph 73) that if one looks at the facts we found pre-19 March 2012, it does not appear to sustain a conclusion of the dismissal decision being tainted with direct disability discrimination or discrimination arising from disability. The EAT said that although there had been mention in January 2012 of the claimant having a painful shoulder, it was not linked to his failure to attend the all-staff meeting on 27 February 2012, the failure to provide feedback on the redundancy proposals or the claimant’s assertion that he should have been slotted into the Business Manager role without competitive selection. The EAT said it was also inconsistent with the claim for a temporary pay rise on the grounds that the claimant was doing his own role and covering the Operation Manager’s role.

[11]The EAT pointed out that in our paragraphs 71-72 (January 2020 decision) the disability findings were based on the period April to July 2012 when the claimant was not at work and on our finding the decision to dismiss had already been made. Our finding of fact was that the claimant was off sick in April 2012 and did not return until 9 July 2012 The whistleblowing and victimisation findings

[12]The EAT accepted (judgment paragraph 83) that we did not make a primary finding that the dismissal was because of the claimant’s protected disclosure nor an act of victimisation for his protected act. The respondent submitted to the EAT that the statutory wording of section 103A Employment Rights Act 1996 was inconsistent with our findings of fact as to the reason for dismissal and in addition the lack of reasoning on victimisation meant that a victimisation finding could not stand and should not be re-opened on this remission.

[13]The claimant says that we were clearly troubled by the treatment of his grievance and that the findings we made in our paragraph 73 should now take centre stage.

[14]At paragraph 87 the EAT upheld our finding of fact that the primary reason for dismissal was the respondent’s view that the claimant lacked capability and engagement. The EAT said that it must follow that the principal reason for dismissal could not be a protected disclosure. The claimant’s submission on this point failed at the EAT and it was held that there was no need for us to consider this matter further.

[15]In relation to victimisation, the wording in section 27 Equality Act 2010 is different to section 103A Employment Rights Act 1996. The question of causation is whether the protected act had a significant influence or whether but for the protected act the dismissal or detriment would not have happened.

[16]The EAT said that in summary the appeal was allowed in part. The findings of disability discrimination under sections 15 and 13 were set aside and revoked. The matter was remitted to us on the narrow grounds on which the respondent was successful. The EAT said that we may also need to revisit our approach to victimisation which, depending on our conclusions on disability discrimination, may need to come into play. The scope of the remission

[17]The scope of the remission to this tribunal was set out in an Order made by the HHJ Stacey dated 20 January 2022 as follows:

[18]The matter is remitted to this tribunal to consider on our findings of fact in our decisions of 2017 and 2020, without any further evidence:a. Whether Mr Davidson’s view that the claimant lacked capability and engagement which the respondent did not wish to manage, which was the primary reason for his decision by 19 March 2012 that the claimant be dismissed (the Primary Reason to Dismiss) was because of disability (section 13 Equality Act 2010)?

b. Whether the Primary Reason to Dismiss:

(i) arose in consequence of the claimant’s disability

(ii) the date the respondent knew or ought to have known of the claimant’s disability

(iii) whether the respondent has shown a proportionate means of achieving a legitimate aim.

c. Whether the decision to dismiss made on 19 March 2012 by Mr Davidson was “because of” the protected act on 17 November 2011 (as identified in paragraph 146 of our 2017 decision). The protected act was that at a grievance hearing on 17 November 2011 the claimant complained about bullying and harassment and he made the link between that bullying and his past relationship of a sexual nature with FP.

d. If necessary, to consider remedy for any unlawful discrimination (if any is found).

[19]We were asked to consider any outstanding issues of compensation arising from our findings in 2017 that the claimant was unfairly dismissed under section 98 Employment Rights Act. The EAT said for the avoidance of doubt we had already found that there should be no reduction for contributory fault or Polkey and there was no challenge to those findings. The respondent submitted that the Polkey/Chagger point was within the terms of the EAT’s remission if we upheld the section 27 claim.

[20]We note that the EAT did not require us to make any further finding on the whistleblowing claim or to our finding that Mr Davidson was the decision maker on the decision to dismiss.

[21]Both parties made applications for a review of the EAT’s Order of 20 January 2022. Their applications were refused. The EAT’s decision of 11 March 2022 was sent to us during submissions and we considered this document. Documents for this hearing

[22]We had written submissions from both parties to which they spoke. They are referred to below but not replicated in full. These submissions were fully considered even if not expressly referred to below, together with any authorities relied upon. We had the original bundle from the 2017 and 2020 hearings.

[23]Both parties made oral submissions for one hour each.

[24]As ordered by the EAT, we had no witness evidence at this hearing. The claimant’s submissions

[25]The claimant submitted that in connection with his discrimination claims the tribunal should consider Mr Davidson’s Redundancy Overview Document (bundle pages 227-229) referred to in our 2020 decision at paragraphs 35 and 36. We found that this document set out Mr Davidson’s criticisms of the claimant, including poor performance, failure to engage with the redundancy process and comments on his sickness absence, including (page 228) that the claimant was “attempting to bring disability into play”. It also said that the respondent had not implemented an OH assessment for the claimant “on the basis that this could be misconstrued by [him]”. We could not understand how an OH assessment could be misconstrued and it underlined our finding that there was a strategy to dismiss the claimant. It was a document specifically titled “PM – Redundancy Overview”.

[26]This Redundancy Overview document was produced by Mr Davidson for a redundancy panel meeting he attended on 28 May 2012. Our finding was that he was not a neutral attendee at that meeting because our decision was that he made the decision to dismiss by 19 March 2012.

[27]The claimant also took the tribunal to Mr Davidson’s email of 26 June 2012 at page 385c, which he submitted, also showed us what was in Mr Davidson’s mind when he made the decision to dismiss in March 2012.

[28]The claimant made submissions as to the extent of his engagement with the redundancy process. This was not within the scope of the remission from the EAT. The claimant submitted that his lack of engagement was reflected in the Redundancy Overview document and was because his health issues and therefore for a disability related reason. The relevant section of the document (page 227) said: “PM has sought to isolate himself from the restructuring and the impacts of his role the beginning of Jan ’12 and maintains inconsistent position, a fundamental lack of understanding of the restructuring; and has actively sought to disengage from the redeployment/redundancy process by utilising health problems to make himself unavailable to redeployment, interview or redundancy panels.”

[29]On the issue of disability the claimant submitted that Mr Davidson had constructive knowledge of his disability when the decision to dismiss was made by 19 March 2012. We found in our 2017 decision at paragraphs 103-104, that the claimant’s email of 10 January 2012 (page 273) alerted Mr Davidson to the fact that the shoulder condition had persisted at that stage for eight months and that the claimant was in considerable discomfort and taking medication for the pain. The claimant submitted that this put the respondent on notice of his disability. The relevant wording in the email said: “You may not be aware, since May of last year I have had a constant unbearable discomfort that is constantly shooting pain from my neck into my left arm and shoulder; I am currently taking medication for this pain is constant and sometimes unbearable.”

[30]Our findings at paragraphs 147-150 (2017 decision) went to the question of knowledge of disability. We found that the claimant had made his symptoms clear to Mr Davidson and to Mr Nicholas in the return to work meeting on 9 July 2012 – which postdated the decision to dismiss. We were supported in that finding by an email from Ms Bartlett dated 31 May 2012, again post the decision to dismiss.

[31]The claimant submitted, as per our finding at paragraph 149, that the respondent did not have to have the word “disabled” spelt out to them.

[32]The claimant made submissions to the effect that events after 19 March 2012 should lead us to infer what operated in his mind when he made the decision to dismiss.

[33]On the section 15 claim the claimant took us to paragraph 14 of our 2- 2017 decision as to what arose in consequence of his disability. This paragraph came within the section identifying the issues for the hearing. What arose from his disability was said to be his disability-related absence and all the medical appointments (treatments) associated with his disabilities.

[34]The claimant also submitted that it was clear from the Redundancy Overview document and the reference to the claimant seeking “to isolate himself from the restructuring and the impacts of his role the beginning of Jan ’12” that Mr Davidson was of the view that the claimant was using his medical appointment of 18 January 2012 for this purpose. The claimant submitted that Mr Davidson’s reference to “Jan ’12” was a reference to his medical appointment on 18 January 2012 which arose in consequence of his disability. The claimant invited us to draw an inference to this effect.

[35]The claimant made submissions as to how we should regard Mr Davidson’s email of 26 June 2012 as showing what operated in his mind in March 2012. In that email (page 385c) Mr Davidson said to Ms Harris, Ms Dawkins and others “The problem is that PM can continue to shift the goalposts day by day, week by week, whilst arranging treatment appointments to block him actually doing work in the business.” The claimant submitted that this showed on a balance of probabilities what was in Mr Davidson’s mind and this was a link between his ability to work and his disability related appointments.

[36]In dealing with the respondent’s objective justification defence in section 15(1)(b) EqA, the claimant reminded the tribunal of the legitimate aim, put as the need to ensure that the organisation could survive with proper management and committed staff willing to go the extra mile – it was in the bottom 3% of CAB in the UK and was in special measures, about to close making 20+ staff redundant.

[37]The claimant said that the burden was on the respondent to show that the unfavourable treatment was a proportionate means of achieving that legitimate aim. The claimant cited Akerman-Livingstone v Aster Communities Ltd

2015 3 All ER 725

SC, a housing possession case, which considered the objective justification defence in section 15(1)(b) as to the proportionality of achieving the aim. The claimant took no issue with the respondent’s aim, but said that dismissal was not proportionate.

[38]Subject to our finding that there was discrimination arising from disability the EAT required us to consider our reasoning on proportionality. The claimant reminded us that we found that the Business Manager’s role was sufficiently similar for the respondent to concede that the claimant should have been allowed to trial it.

[39]On the victimisation claim, the protected act was that at a grievance hearing on 17 November 2011 the claimant complained about bullying and harassment and he made the link between that bullying and his past relationship of a sexual nature with FP. The claimant submitted that we had to look at causation, whether the protected act operated in Mr Davidson’s mind when he made the decision to dismiss. The respondent’s submissions

[40]The respondent reminded us that the EAT said (paragraphs 73-75): I agree with the respondent’s submission that if one looks at the facts found pre-19 March 2012, it does not appear to sustain a conclusion of the dismissal decision being tainted with direct disability discrimination or s.15 discrimination. There is no connection in the tribunal's findings between the nonengagement and performance issues pre-19 March and disability. Although there is mention of a painful shoulder in January 2010, it is not linked to the failure to attend the all-staff meeting, the failure to provide feedback, or the assertion that there should be automatic slotting-in to the business manager role. Furthermore, it is also inconsistent with a claim for a temporary pay rise on the basis that the claimant is doing not only his own, but also the operation manager's, role. The respondent's submissions in the alternative ground relied on must prevail, because in the reasons in paragraphs 71 to 72, the disability findings are all based on the period from April to July 2012 when the claimant was not at work and after the dismissal decision had been taken. The respondent's challenge to those conclusions must succeed and the tribunal decision cannot stand. There was no evidence, or certainly no findings, to support the conclusion that there was disability related discrimination and direct discrimination in a decision made on 19 March 2012.

[41]The respondent said that we were bound by our early findings of fact and the conclusions which follow from them and that the “arising from” claim could not succeed for 5 reasons. Firstly the claimant was dismissed because of his failure to engage with the restructure process, secondly Mr Davidson made the decision to dismiss in March 2012, thirdly that decision was taken because of the claimant’s failure to engage in February 2012, fourthly this decision was not in consequence of his disability and fifthly the respondent did not have knowledge of disability until the claimant went of sick in April 2012.

[42]The EAT said: “The respondent's submissions in the alternative ground relied on [that of knowledge] must prevail, because in the reasons in paragraphs 71 to 72, the disability findings are all based on the period from April to July 2012 when the claimant was not at work and after the dismissal decision had been taken”.

[43]In the alternative the respondent submits that dismissal was justified.

[44]On the victimisation claim, the respondent said that we had to consider whether the reason for dismissal was the protected act. The respondent set out its reasons why the “train was in motion” towards dismissal and submitted that the protected act did not cause the dismissal. The respondent said that the train was in motion to pursue the strategy of dismissing the claimant through events in May, June and July 2012 to dismissal in August 2012. The respondent submitted that regardless of any protected act the claimant was going to be dismissed and it was not an effective cause of the dismissal.

[45]In the alternative the respondent says that the claimant was always going to be dismissed for reasons unrelated to any act of victimisation which warranted a Polkey / Chagger reduction of 100%.

[46]The EAT said that the respondent may not raise de novo, 4 years after the 2017 decision, a new challenge to the Polkey finding as they should have appealed or cross-appealed that decision at the time. Our finding was that there should be no Polkey reduction. The respondent’s submission was that whilst that applied to sections 13 and 15 EqA, the question of Polkey/Chagger could still arise under section 27 and if that claim succeeded we were invited to make a finding that the claimant would have been dismissed in any event. Our further findings of fact Knowledge of disability and the sections 13 and 15 claims

[47]Our findings at paragraphs 149-150 of the 2017 decision dealt with knowledge of disability. The respondent submitted that our findings said that knowledge arose on 31 May 2012 and the claimant submitted that the respondent’s knowledge arose on 10 January 2012.

[48]In our 2017 decision we found that the claimant had made his symptoms clear to Mr Davidson and Mr Nicholas at a meeting on 9 July 2012, that he had a significant impairment in his shoulder that caused significant pain and resulted in long term sickness absence and was supported by sick notes. In 2017 we were supported in our finding by an email from Ms Bartlett dated 31 May 2012 in which she acknowledged that the claimant appeared to be saying that he had a disability. These findings predated the decision to dismiss so at this hearing we considered the extent of Mr Davidson’s knowledge by 19 March 2012.

[49]The 10 January 2012 email from the claimant to Mr Davidson at page 273 said: “You may not be aware, since May of last year I have had a constant unbearable discomfort that is constantly shooting pain from my neck into my left arm and shoulder; I am currently taking medication for this but the pain is constant and sometimes unbearable.”

[50]The majority decision of this tribunal (Ms Brown and Ms Dengate) was that the email of 10 January 2012 did not give Mr Davidson knowledge of disability. The majority decision was that the email did not put Mr Davidson on notice to the fact that the condition was long term. It had not lasted for a year and did not indicate to Mr Davidson that it was likely to last for 12 months or more. The majority decision was that the email did not show Mr Davidson that the condition had a substantial adverse effect on the claimant’s ability to carry out normal day to day activities, because the claimant did not give any indication of what it did not permit him to do. Although the claimant said that the pain was sometimes unbearable, he gave no indication of what impact this had on him.

[51]The email said that he was going to an appointment and that he would be in to work a bit late that day. Other than the statement of the condition, the majority view was that Mr Davidson could not assume anything else about it and that this email did not give him constructive knowledge of disability. Mr Davidson and the claimant did not work at the same site and Mr Davidson had no way of observing the claimant on a day-to-day basis. The majority considered that the only purpose of the email was to inform Mr Davidson of his reason for being late in to work that day.

[52]By a majority, the decision of this tribunal is that the respondent did not have knowledge of disability by 19 March 2012.

[53]The minority decision (Employment Judge Elliott) was that the 10 January 2012 email was enough to give Mr Davidson constructive knowledge of disability. It informed Mr Davidson that the claimant had a physical impairment. It informed him that the condition was serious in that it caused him constant and unbearable pain which was being treated by medication. The minority view was that this was enough to inform Mr Davidson that the condition had a substantial adverse effect on the claimant’s ability to carry out normal day to day activities because this is the result of being in unbearable pain. It had lasted 8 months and the claimant was attending hospital for an ultrasound/MRI scan and the minority view was that this was a substantial condition that had persisted for a number of months and on a balance of probabilities was likely to last 12 months or more.

[54]As to issue 2b as set out by the EAT, the majority decision is that our findings from 2017 paragraphs 149-150 stand and that the date of knowledge of disability was 31 May 2012. As such the claimant was not dismissed because of his disability. Discrimination arising from disability

[55]We have considered whether the claimant was dismissed because of something arising from his disability. The majority decision was that the decision to dismiss was not because of something arising in consequence of the claimant’s disability, because the respondent did not know and could not reasonably be expected to know by March 2012 that he was disabled.

[56]The minority view (Employment Judge) is that for the reasons stated above, the respondent ought reasonably to have known from the 10 January 2012 email that the claimant had the disability of his shoulder condition. The minority has gone on to consider whether the claimant was treated unfavourably because of something arising from his disability by dismissing him or selecting him for redundancy.

[57]The “something arising” from disability was put as the claimant’s lengthy sickness absences and the need for time off for treatment. The claimant did not go off sick until 4 April 2012. This was after Mr Davidson made the decision to dismiss, so the decision predated any lengthy sickness absence and was not the reason for dismissal. The claimant was dismissed because of his lack of capability and his lack of engagement with the redundancy process. The EAT said at paragraph 73 “There is no connection in the tribunal's findings between the non-engagement and performance issues pre-19 March and disability” and that the shoulder condition was “not linked to the failure to attend the all-staff meeting, the failure to provide feedback, or the assertion that there should be automatic slotting-in to the business manager role.”

[58]The minority decision does not depart from the original findings of fact. The claimant’s position at this remitted hearing, at which witness evidence was not taken, was that he was “confused” when he gave evidence in 2017. This was when he told the tribunal that he did not go to the meeting on 27 February 2012 because he had to “hold the fort”. He wished the tribunal to find that he did not go to that key redundancy consultation meeting because he had a medical appointment. We unanimously considered that this was the claimant seeking to amend or change his evidence. We declined to change the original unanimous finding of fact, based on the oral evidence in 2017. The unanimous finding of fact was that it was the claimant’s choice not to attend that meeting.

[59]The minority view is that the fact that the claimant also did not attend a meeting on 18 January 2012 is not enough to displace the original findings of fact. There was no evidence to support the claimant’s position that he was engaged with the redundancy process. All the evidence pointed in the opposite direction. Our unanimous finding is that the Primary Reason for Dismissal stands and that it was not tainted by discrimination arising from disability.

[60]We were not persuaded that documents produced post-dismissal informed us as to Mr Davidson’s reasoning in March 2012. In any event we had no evidence to show us that the claimant had any interest in engaging with the redundancy process.

[61]For completeness and in order to deal with the questions remitted to us, we have considered, in the event that we are wrong about the above, whether dismissal was a proportionate means of achieving a legitimate aim. The claimant takes no issue with the legitimate aim, but complains about proportionality. The claimant’s case is that he should have been slotted in to the Business Manager’s role. It was conceded by the respondent that the claimant should have been offered this role (see paragraph 64 of our 2020 findings). Had the claim for discrimination arising from disability otherwise succeeded, we find that the respondent would not have succeeded on the objective justification defence.

[62]The unanimous finding of the tribunal is that the claim for discrimination arising from disability fails and is dismissed. The victimisation claim

[63]We have considered in relation to the victimisation claim, whether Mr Davidson knew about the protected act. We repeat that the protected act is what the claimant said at the grievance hearing on 17 November 2011. It was verbal. It was not contained within the written grievance of 19 September 2011.

[64]It was not in dispute that Mr Davidson was not at the grievance hearing on 17 November 2011 because he did not join the respondent until December 2011. We had no evidential link to show us that Mr Davidson had knowledge of what the claimant said verbally at the 17 November 2011 grievance hearing so we find that he did not have knowledge of the protected act.

[65]If we are wrong about this, we have considered whether, notwithstanding the Primary Reason for Dismissal, the protected act had a significant influence on Mr Davidson’s decision to dismiss.

[66]The claimant relied upon the advice received by the respondent from its advisers. Privilege was waived on this because it was included in the bundle. We had sight of an email from the respondent’s advisers Peninsula, to Trustee Ms Bartlett and to Mr Davidson, dated 5 March 2012 at 17:31 hours (pages 293b and 2293c). “Thank you for your enquiry regarding Paul M and his grievance against FP. This is a bit of a no-win scenario. If you address the issue now then that gives further chance for PM to claim a link to any subsequent attempts to remove him (dismissal for "exercising a statutory right" is automatically unfair I do not suggest that this would be the reason for dismissal .... but it gives him the chance to claim a link). If you do get to a position where he agrees to be compromised out of the business then you may get him to agree that he will let the grievance die as part of settlement .... but I would suggest you don't make this a opening gambit as it alerts him to your possible discomfort over the issue. If you decide against the potential for compromise and instead head down the more risky route of redundancy then I would be tempted to leave the grievance to one side until the redundancy is completed - so that it would be more difficult for him to say they are linked. With FP still being off you have a reasonable excuse for not progressing - as far as I am aware he has not chased you yet?”

[67]The next day, 6 March 2012, Mr Davidson sent an email to colleagues stating that his finance officer had confirmed the removal of salary costs for three staff members, which included the claimant. The claimant asked us to find that the dismissal was because of his protected act.

[68]The claimant’s position was that because the email of 5 March mentioned the grievance, it must have been in Mr Davidson’s mind when he made the decision to dismiss. This is particularly because the next day, Mr Davidson wrote to the Trustees about the budget and the salary costs coming out of the budget, including his own salary cost.

[69]The written grievance itself did not contain any protected act and our primary finding is that Mr Davidson had no knowledge of the verbal protected act made on 17 November 2011. Even if he did, this correspondence did not show us that Mr Davidson’s reason for dismissal was influenced by the protected act. We agree with the respondent’s submission that it is common for advisers to cover all the bases when giving legal advice, as to what a prospective claimant might say or claim, whether or not justified. The adviser’s job is to look at all possible scenarios and potential claims and give a view. It was advice about how to deal with the grievance in terms of either addressing it or wrapping it up as part of a settlement, so that they did not need to progress it. So far as the advice was concerned, the respondent took what was described as the “more risky route of redundancy”, leaving the grievance to one side, so that there was less chance of the claimant saying that the two were linked.

[70]We find that it was understandable for the respondent to seek advice about what to do about an outstanding grievance when they were considering dismissal of the claimant. This is a dismissal which has been found to be unfair. The advice and correspondence was not enough for us to find that even if Mr Davidson knew about the protected act, that it had a significant influence on his decision. Dealing with a grievance process is always time consuming for a respondent and the fact that they sought advice about how to deal with it and went with the advice to leave it to one side, is not enough for us to find that the protected act had a significant influence on Mr Davidson’s decision. In addition the respondent’s financial situation was dire and there was a pressing need to proceed with the restructure and reduce costs. We find that it did not and that the claim for victimisation therefore fails. The relevant law

[71]Section 13 of the Equality Act 2010 provides that 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.

[72]Section 23 of the Equality Act provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case.

[73]In Chief Constable of Norfolk v Coffey

2019 IRLR 805

the Court of Appeal (Underhill LJ) stated that: “…it is now very well established that the comparison exercise under section 13(1) (the so-called “less favourable treatment” question) does essentially the same job as asking whether the treatment complained of was “because of” the protected characteristic (the so-called “reason why” question), and that if the latter question is answered the answer to the former will normally follow.” (paragraph 76).

[74]In Nagarajan v London Regional Transport

1999 3 WLR 425

the House of Lords held that the Race Relations Act in that case, did not require that the discriminator was consciously motivated in treating the complainant less favourably, it being sufficient if it could properly be inferred from the evidence, that regardless of the discriminator’s motive or intention, a significant cause of his decision to treat the complainant less favourably was that person’s race. In a victimisation claim there is no requirement for a complainant to show that the alleged discriminator was wholly motivated by the doing of the protected act. It must have at least a significant, or more than trivial, influence on the decision to dismiss for causation to be established.

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

[76]If the prima facie case is established and the burden shifts, the employer can defeat the claim by proving either:a. that the reason or reasons for the unfavourable treatment was not in fact the ‘something’ that is relied upon as arising in consequence of the claimant’s disability; or

b. that the treatment, although meted out because of something arising in consequence of the disability, was justified as a proportionate means of achieving a legitimate aim.

[77]On discrimination arising from disability, section 15(2) EqA says that if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. The proper approach to be taken in applying this was summarised by Eady J in A Ltd v Z

2020 IRLR 952

, (at paragraph 23). This included that it is not incumbent upon an employer to make every inquiry where there is little or no basis for doing so and must entail a balance between the strictures of making inquiries, the likelihood of such inquiries yielding results and the dignity and privacy of the employee, as recognised by the Code. The Guidance in A Ltd v Z was applied in Sullivan v Bury Street Capital Ltd

2020 IRLR 953

, where Choudhury P held that occasional references to mental health problems were not enough. It did not do more than demonstrate awareness of an impairment, as it did not demonstrate knowledge of a substantial adverse effect and the length of the condition. The Guidance set out by the EAT in A Ltd v Z was also approved by the Court of Appeal in Sullivan v Bury Street Capital, reported at

2022 IRLR 159

at paragraph 99.

[78]Section 27 provides that a person victimises another person if they subject that person to a detriment because the person has done a protected act. A protected act is defined in section 27(2) and includes the making of an allegation (whether or not express) that there has been a contravention of the Equality Act.

[79]The claimant relies upon the Equality Act Statutory Code of Practice on Employment paragraphs 5.15 and 6.19. Paragraph 5.15 states An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.

[80]Paragraph 6.19 largely repeats this in the context of reasonable adjustments. The Code does not create legal obligations. We are required to take into account any part of the Code that appears to us relevant to any questions arising in proceedings.

[81]If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial – see Igen v Wong

2005 IRLR 258

(CA) per Peter Gibson LJ at paragraph 37.

[82]The courts have given guidance on the drawing of inferences in discrimination cases. The Court of Appeal in Igen v Wong approved the principles set out by the EAT in Barton v Investec Securities Ltd

2003 IRLR 332

and that approach was further endorsed by the Supreme Court in Hewage v Grampian Health Board

2012 IRLR 870

. The guidance includes the principle that it is important to bear in mind in deciding whether the claimant has proved facts necessary to establish a prima facie case of discrimination, that it is unusual to find direct evidence of discrimination.

[83]Showing that conduct is unreasonable or unfair is not enough of itself to transfer the burden of proof - Bahl v Law Society

2003 IRLR 640

Conclusions

[84]Our starting point was that as per the decision of the EAT, our finding as to the Primary Reason for Dismissal stood. This was Mr Davidson’s view that the claimant lacked capability and engagement, which the respondent did not wish to manage. As set out above we considered whether that decision was because of disability (section 13 Equality Act 2010).

[85]The view of the EAT, judgment paragraph 73, was that our findings of fact leading up to the decision to dismiss in March 2012, did not appear to sustain a conclusion of the dismissal decision being tainted with direct disability discrimination or discrimination arising from disability. The EAT said that although there had been mention in January 2012 of the claimant having a painful shoulder, it was not linked to his failure to attend the key meeting on 27 February 2012, the failure to provide feedback on the redundancy proposals or his assertion that he should have been slotted in to the Business Manager role without competitive selection.

[86]It was decided at a Preliminary Hearing before Employment Judge HallSmith on 9 June 2015 that the claimant was a disabled person at all material times by reason of an impairment of his left shoulder. Direct disability discrimination

[87]On direct disability discrimination, the majority view was that by 19 March 2012 Mr Davidson did not have knowledge of disability so his decision to dismiss was not in any way because of disability. The minority view was Mr Davidson did have constructive knowledge of disability. The minority finding is that even with constructive knowledge of the claimant’s shoulder condition, this was not the reason for Mr Davidson’s decision to dismiss. Therefore, our Primary Reason for Dismissal stands; it was because the claimant lacked capability and engagement which the respondent did not wish to manage. The reason for dismissal was not the claimant’s shoulder condition. The minority decision was that there was nothing to connect the reason for dismissal with the claimant’s disability.

[88]The tribunal is unanimous that the claim for direct disability discrimination fails and is dismissed. Discrimination arising from disability

[89]The majority decision is that the respondent did not have knowledge of and could not reasonably have been expected to have knowledge of disability by the date of the decision to dismiss in March 2012. By a majority the claim for discrimination arising from disability fails on this basis alone.

[90]Even if the respondent did have knowledge of disability, our unanimous finding would have been that the claimant was not dismissed because of something arising from his disability, namely lengthy sickness absence or medical appointments or treatment. Our Primary Reason for Dismissal stands and we find that the dismissal was not tainted by discrimination arising from disability.

[91]Had we been required to consider the objective justification test in section 15(1)(b) we would have found that this defence fails. The respondent conceded that the claimant should have been offered the Business Manager role and this was a more proportionate means of achieving their legitimate aim.

[92]The claim for discrimination arising from disability fails and is dismissed. Victimisation

[93]On the victimisation claim we have found above that Mr Davidson did not have knowledge of the protected act when he made the decision to dismiss.

[94]Even if he did, our finding is that the correspondence in early March 2012 between the respondent and its legal advisers, did not show us that Mr Davidson was influenced by the protected act when he made the decision to dismiss.

[95]The victimisation claim fails and is dismissed.

Remedy

[96]As a result of our findings on Remission, the discrimination claims fail and it is not necessary for us to consider remedy for unlawful discrimination.

[97]So far as remedy for unfair dismissal is concerned, there has been a payment from the respondent to the claimant. The claimant told the tribunal that this was a part-payment and it did not, in his view, satisfy his entitlement to remedy for unfair dismissal.

[98]We ask the parties to seek to agree remedy for unfair dismissal with a view to avoiding the further time and cost of a remedy hearing. If by Monday 23 May 2022 the parties have not agreed remedy, they are to provide their non-availability dates for a remedy hearing.