Mr E Battin v Greater Manchester Mental Health Foundation Trust: 2401884/2022

EMPLOYMENT TRIBUNALS

Case No 2401884/2022

Between

Mr E BattinClaimant

Greater Manchester Mental Health Foundation TrustRespondent

Before

Employment Judge Greer

In person for claimant

Mr Boyd for respondent

Date 3 January 2025

JUDGMENT

[1]The application to strike out the Response is refused.

[1]The Tribunal does not have jurisdiction to consider three of the complaints of harassment related to disability as they were not brought within the time required by section 123 of the Equality Act 2010, and it was not just and equitable to extend time. Accordingly, those complaints, being those in the list of issues as issues 5.1.1, 5.1.2 and 5.1.7, are dismissed.

[2]The Tribunal does not have jurisdiction to consider three of the complaints of breach of the duty to make reasonable adjustments as they were not brought within the time required by section 123 of the Equality Act 2010, and it was not just and equitable to extend time. Accordingly, those complaints, being those in the list of issues as issues 7.6.1, 7.6.2 and 7.6.3, are dismissed.

[3]The principal reason for the claimant’s dismissal was not because he had made one or more protected disclosures. His complaint of automatic unfair dismissal under section 103A of the Employment Rights Act 1996 is not wellfounded and is dismissed.

[4]The complaint of unfair dismissal is not well-founded and is dismissed.

[5]The complaints of harassment related to dismissal are not well-founded and are dismissed.

[6]The complaints of unfavourable treatment because of something arising in consequence of disability are not well-founded and are dismissed.

[7]The complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed.

REASONS

[1]The claimant was employed by the respondent with continuity of employment from May 2011 until he was dismissed on 6 December 2021. He was a maintenance electrician. The claimant brought a claim for unfair dismissal, both contending that he was automatically unfairly dismissed as a result of one or more protected disclosures and/or that he was in any event ordinarily unfairly dismissed. The claimant also alleged disability discrimination, being allegations of discrimination arising from disability, breach of the duty to make reasonable adjustments, and harassment related to disability. It was not in dispute that the claimant had disabilities at the relevant time as a result of: a back and neck condition; and depression and anxiety. The respondent denied discrimination and contended that the dismissal was fair by reason of capability (health). The respondent did not accept that any protected disclosure had been made (of the three relied upon by the claimant) and contended that, even if they had been, the disclosures were not the principal reason for dismissal. Claims and Issues

[2]Five preliminary hearings were conducted in this case. The first three had focussed upon clarifying the claims brought and the issues in the claims (they were all conducted by Employment Judge Shotter and took place on 26 September 2022, 8 December 2022, and 24 January 2023). The fourth took place instead of a Dispute Resolution Appointment as the parties had not sufficiently prepared the case at that stage for a DRA to take place, and the case management order made contained a final list of issues (106). That hearing was conducted by Employment Judge Butler and was on 16 September 2024. At the fifth hearing, on 19 November 20204 conducted by Employment Judge Greer, the claimant’s application to strike out the response was refused.

[3]At the start of this hearing, I confirmed with the parties that the list of issues appended to the case management order made following the hearing on 16 September 2024 contained the final list of the issues which I needed to determine (106) and the parties confirmed that it did.

[4]It was agreed that I would start by determining the liability issues first, and, only after they were determined and if the claimant succeeded in any of his claims, I would then determine the remedy issues. I identified one exception to that approach and confirmed with the parties that I would also consider the argument regarding whether the claimant would have been dismissed in any event (often known as Polkey) and the parties agreed that I should do so.

[5]The list of issues is appended to this Judgment (including only the remedy issues which I was to determine alongside the liability issues).

[6]Earlier in the proceedings, the respondent had conceded that the claimant had disabilities at the relevant time as a result of both: his back and neck conditions; and depression and anxiety.

[7]In his witness statement and during a discussion on the third morning of the hearing, the claimant placed emphasis on what he believed were the procedural failings of the respondent rather than the substantive matters included in the list of issues. In that discussion, the claimant did not withdraw any of his complaints as recorded in the list of issues, but he did explain that his focus at the hearing was really upon the respondent’s failures to follow the three procedures.

[8]Whilst being cross-examined, the claimant confirmed that he was not alleging that the principal reason for his dismissal was that he had made one or more protected disclosures. He did not withdraw his claim for automatic unfair dismissal and therefore I have determined it, but in the light of that concession I have only needed to address it briefly.

[9]When he had originally issued his claim, the claimant had also brought other claims including claims for detriments as a result of having made public interest disclosures and claims arising from his status as a trade union official. Those claims were withdrawn by the claimant and Judgments issued dismissing those claims, following previous preliminary hearings.

Procedure

[10]The claimant represented himself at the hearing. Mr Boyd, counsel, represented the respondent.

[11]The hearing was conducted in-person with both parties and all witnesses attending in-person at Manchester Employment Tribunal.

[12]The hearing had been listed to be conducted by a panel in accordance with the rules in place at the time it was listed. In the week prior to the hearing, Regional Employment Judge Franey wrote to the parties and proposed that the case be heard by an Employment Judge sitting alone as there had been a material change in circumstances because one of the members listed to hear the case was unable to do so and it had not proved possible to identify a replacement member. He invited the parties’ views before a decision was made. The respondent did not object and the claimant offered no view. As a result, he made the decision (applying the rules as they now apply) that the hearing should be conducted by an Employment Judge sitting alone. The parties were informed and did not object.

[13]An agreed bundle of documents was prepared in advance of the hearing. There were 2186 pages in the core bundle, and 161 in the supplemental bundle (plus a few pages added to that bundle by the claimant at the start of the hearing). Where a number is referred to in brackets in this Judgment, that is a reference to the page number in the core bundle. Where a number is prefaced with an S, that is reference to the page number in the supplemental bundle. I read only the documents in the bundle to which I was referred, including in witness statements, or as directed by the parties. During the initial discussion, each of the parties requested that I read one additional document in the bundle during my reading, in addition to the documents referred to in witness statements. The claimant’s witness statement did not provide any page numbers for documents to which he referred, but he said he would be able to provide a list of the relevant page numbers and therefore he was invited to email that list to the Tribunal while I was reading. The claimant did not provide any list. I endeavoured to identify the documents referred to and to read those documents (even though a page number had not been provided).

[14]I was provided with witness statements from each of the witnesses called to give evidence at the hearing. On the first morning, after an initial discussion with the parties, I read the witness statements and the documents referred to (as well as the two documents I had been invited to read and those identified from the claimant’s statement).

[15]The claimant provided a witness statement for himself. That statement had only been provided to the respondent very late the week prior to the hearing (the respondent said after close of business on Friday night, the claimant believed it had been provided on Thursday). Prior to receipt of that witness statement, the respondent had applied to strike out the claim. However, very pragmatically, the respondent did not pursue that application as the claimant had provided a witness statement. The respondent did, however, ask for a small amount of additional time before the claimant’s evidence was heard. The claimant did not object and the application was granted. The claimant did not call any other witnesses or provide statements from any other witnesses.

[16]The parties agreed that it would take me the rest of the first day to read the witness statements and documents referred to. The respondent’s counsel proposed starting at midday on the second day. He did suggest that if he found he was prepared earlier he could inform the Tribunal, but I decided that (in fairness to the claimant) it was better to start at a set time. I therefore took the opportunity to undertake reading until midday on the second day, when the parties returned to the hearing.

[17]I heard evidence from the claimant, who was cross examined by the respondent’s representative, before I asked him questions. He gave evidence from midday on the second day until the end of the third day.

[18]For the respondent, I heard evidence from seven witnesses. Their evidence was heard from the start of the fourth day until mid-morning on the eighth day. Each of the witnesses was cross-examined by the claimant, and I asked questions (where I needed to do so). The witnesses called were as follows (with the job titles recording their role at the relevant time, not their current position):a. Mr John Warburton, mechanical and electrical engineering manager (he has subsequently retired, but has also returned to working for the respondent);

b. Mrs Nicola Wilkinson, head of HR (now associate director of operational HR);

c. Mr John Fairhurst, associate director of estates and facilities (who has since left the respondent);

d. Dr Alice Seabourne, medical director (now retired);

e. Mrs Janine Taylor, deputy director of finance (now retired);

f. Ms Katherine Robb, HR manager; and

g. Mr Andrew Maloney, chief people officer and deputy chief executive (who has since left the respondent).

[19]I was also provided with witness statements from two witnesses who the respondent had initially intended to call but decided during the hearing not to call in person. The respondent accepted that their evidence would be given less weight, particularly where it conflicted with other evidence. The two witnesses for whom statements were provided (with the job titles recording their role at the relevant time) were:a. Mr Warren Duffy, estates operations manager (who has since left the respondent); and

b. Ms Juliette Tait, associate director of HR and the freedom to speak up guardian (who has since left the respondent).

[20]At the start of the fourth day, the claimant explained that he had not been able to fully prepare for cross-examination and he requested more time to do so. He explained that he had found it difficult to do so on the evening of the third day as he had been cross-examined all day. We discussed exactly what he was seeking, and the availability of specific witnesses, and the time required to cross-examine those likely to be present on the fourth day was also discussed. As a result, it was agreed that a break would be taken for half an hour to enable the claimant to finish his preparation for questioning the first witness (Mr Warburton). It was also agreed that there would be no hearing on the afternoon of the fourth day, to provide the claimant with more time to prepare for cross-examining the respondent’s witnesses. I did emphasise the importance of completing the evidence and submissions during the time allocated.

[21]Mid-morning on the fifth day, during cross-examination of Mrs Wilkinson, the claimant suffered particularly acute back pain which meant that he felt unable to carry on cross-examination at that time. After a short break to see if the pain subsided (which did not occur) and at the sensible suggestion of the respondent’s counsel, the lunch break was taken early to allow the claimant the longest time possible for his health to improve before the questioning of the respondent’s witness re-commenced. In the significantly shortened afternoon session, the claimant was able to complete the cross-examination of Mrs Wilkinson, but I made the decision that we would end the day’s session early, after her evidence had finished, to assist the claimant. The claimant was able to attend and cross-examine the respondent’s remaining witnesses during the second week of hearing. He was allowed the additional adjustment of being able to stand when questioning witnesses, where he needed to do so.

[22]After the evidence was heard, each of the parties was given the opportunity to make submissions. Both parties prepared written submissions, which were provided by approximately 9 am on the eighth day (prior to the evidence of the last witness being heard). Each party made brief oral submissions at the end of the morning on the eighth day, both parties having largely included their submissions in the document provided. The claimant, in his submissions, focussed upon the facts and not the law.

[23]I reserved my judgment and spent the remaining time listed considering and reaching my decision in chambers without the attendance of the parties. Accordingly, this document contains my Judgment and the reasons for it.

Facts

[24]The claimant had continuity of employment with the respondent from May 2011. He was a maintenance electrician. The claimant is a skilled and fully qualified electrician. He worked as part of the respondent’s facilities and estates team. It was the claimant’s evidence, that during the time he was employed, he was one of only two electricians employed by the respondent. It was Mr Warburton’s evidence, that the claimant was one of three.

[25]I was provided with a number of policies and procedures. I was provided with the respondent’s grievance and disputes policy (331). I was also provided with the respondent’s policy for dealing with sickness absence (253) which included a detailed process and details about what should be considered, and taken into account, at the final interview for long term sickness absence. Amongst other things, that policy set out that, as a matter of best practice, consideration should be given to alternative employment before termination of contract. It also said that, prior to the final interview taking place, the employee should again be assessed by occupational health, it the current report was greater than three months old at the time of the final interview.

[26]I was provided with the bullying and harassment at work policy originally introduced by a predecessor organisation, which the claimant said in evidence he was involved in writing (303), and the subsequent bullying and harassment at work policy introduced by the respondent (351), which said that it was ratified on 16 June 2020. Both of those policies included an informal process followed by a formal procedure for dealing with a complaint of bullying and/or harassment. In both policies it was said that the formal procedure should only be used where there was evidence of genuine attempts to resolve the matter informally and it had failed. The formal procedure in both policies said that, after receipt of the complaint, there would be a formal meeting and that the purpose of the meeting was to ascertain further details of the complaint and determine the appropriate manner to proceed. Both procedures included a formal investigation procedure, where it was decided that a formal investigation was appropriate/required. Both policies said that an investigation should be undertaken as expediently as possible, ensuring that it was thorough, and it should be completed within four weeks of the date of commissioning unless a longer timescale was agreed between the parties. The claimant made a point of emphasising the different policies and the former one which he believed should have been applied to his complaint. At no point during the hearing, was any material point of difference between the two bullying and harassment procedures identified, relevant to the decisions which I needed to reach.

[27]It was the claimant’s evidence, that the respondent breached the bullying and harassment procedure by failing to have two identified investigators. When he was asked about where in the procedure that was recorded, he said it was not recorded anywhere in that procedure, but rather he said it was what always occurred because it was said in the disciplinary procedure (of which I was not provided a copy).

[28]In both bullying and harassment policies, it was recorded that there would be an initial meeting, the purpose of which was to ascertain further details of the complaint, both to determine the appropriate manner by which to proceed and to review the appropriateness of a formal bullying investigation (reference is made to what happens if insufficient examples of bullying or harassing behaviour are given) (313/314) (363). The claimant was adamant that clarifying the complaint was not in compliance with the procedure. When asked to identify which part of the procedure was breached by doing so, he referred to the part of the procedure which detailed the duties of individuals. I could not see anything within that element of the procedure which supported the claimant’s point. I considered that both policies made clear that it was appropriate, prior to an investigation commencing, for the details of the harassment alleged to be ascertained (at least, where it was unclear or insufficient).

[29]The claimant is an experienced trade union representative for Unite and, whilst employed by the respondent, he was given one day per week of protected time to undertake trade union duties. He was also a health and safety officer for Unite. In his evidence, the claimant emphasised his experience of grievance and disciplinary processes and it was his evidence that as part of the JCNC he had been involved in writing at least one of the bullying and harassment policies to which I was referred. During his cross-examination of witnesses, the claimant asked about the fact that he said he was not given additional time to undertake his health and safety duties (separate from, and in addition to, his day release as a trade union representative). It was clear that it was an issue of dispute between the claimant and the respondent as to whether the protected time given to him as a trade union representative and any time he needed as a health and safety representative, should have been kept entirely separate and distinct. I did not need to determine what was legally correct. Mr Fairhurst, in his evidence, said that the respondent’s other health and safety representatives did not have protected time and he said he refused a request by the claimant to increase his facility time (based, in part, on Unite’s relatively low membership at the respondent).

[30]It was Mr Warburton’s evidence, that there were issues with the claimant’s time keeping and lateness dating back to 2011. In the bundle were various documents from as early as 2011 which appeared to reference such issues being raised with the claimant. The claimant disputed that there was any issue with his lateness, but it was his evidence that issues between him and Mr Warburton dated back to 2012. He described Mr Warburton as having a personal issue with him. The claimant also accepted that, when time keeping issues were raised with him at that time, they had nothing to do with disability.

[31]The claimant was absent from work from July 2017 to January 2018. An occupational health report of 4 December 2017 (412) recommended a phased return to work and that the claimant should be restricted from high level tasks which required him to look up and use ladders. The claimant returned to work on a phased return.

[32]The claimant had a further extended period of absence on ill health grounds from 24 September 2018 to 23 April 2019. The medical report from 24 April 2019 (439) recommended that the claimant should return to work on a phased return, refrain from climbing ladders until his symptoms improved, and refrain from heavy lifting, pushing, or pulling, over a four-week period.

[33]None of the occupational health reports provided, referenced start and finish times, or provided any advice that a later start time was an adjustment required for the claimant related to his disabilities. The evidence that I heard, was that there had been discussions about the claimant’s start time. Some of the tradespeople started work at 7.30. The claimant’s usual start time was 8. It was the claimant’s evidence that, somewhere around late 2016, the claimant agreed with Mr Legge that he could start at 8.30 and finish later as a result. Mr Warburton’s evidence was that the arrangement was agreed to address the claimant’s lateness. The claimant’s evidence was that it was agreed because of the time it took him in the morning to take pain killers and undertake exercises which meant it was difficult for him to drive earlier. After some time, the arrangement was stopped. Mr Warburton thought it was removed in 2018; the claimant thought it was in 2019 on his return to work. Mr Warburton explained the change as being because the claimant was arriving later than he should have done even with the 8.30 am start time.

[34]A DWP workplace assessment was undertaken for the claimant on 2 July 2019, assessing the impact of his back and neck conditions (450). That recommended that a box on wheels be purchased, as well as an aluminium step ladder which was lighter than the ladder the claimant used. The claimant agreed that those adjustments were made for him. The report also recommended the following: “Mr Battin works as a Facilities and Estates Electrician. This role involves lots of lone working where he is required to repair lots of electrical equipment. However, Mr Battin finds challenges with setting up in his role, especially when in a patient environment. He works in a high secure forensic environment and needs to ensure that the area is safe and secure by ensuring doors are locked at all times. Mr Battin explained doing this when working alon[e] is very challenging. He is not allowed to leave his tools alone and so working by himself, he finds this very difficult. I recommend that Mr Battin works with another colleague when on jobs as this will help him set up and make the environment secure by helping him lock the doors and secure the environment whilst handling his tools. This will improve Mr Battin’s workplace comfort and help him to manage his health conditions more effectively”

[35]At the end of the document, there were costings for the box and the ladder, but not for additional support. The respondent’s evidence was that it was required to meet the first one thousand pounds of any costs. From what he said when questioning witnesses, it appeared that the claimant was under the impression that a grant was available to cover the costs of employing someone to work alongside him, but I was not shown any evidence which showed that to be the case. The claimant’s contention was that the adjustment required by the paragraph which I have quoted, was never made. He clearly interpreted it as being a statement that the adjustment required was for the claimant to be permanently accompanied by a colleague when undertaking work. When I asked him about which of his disabilities that assisted with, he said it was his physical disabilities. When asked about why that was, he emphasised the requirements of the locations where he needed to work (with locked doors and the particular need for security of tools) and he explained why it was he said another person assisted him with reference to his back and neck. He particularly emphasised why it assisted when he worked on ladders. Some, but not all, of the areas where the claimant was required to work were secure environments as described in the report.

[36]An occupational health report on 26 July 2019 (458) recommended that, when working from ladders, it would be preferable for the claimant to work alongside a workmate if feasible. It did not state that the claimant should always be accompanied or always work alongside a workmate. The same report recommended that the claimant should remain restricted from performing moderate to heavy manual handling tasks.

[37]It was Mr Warburton’s evidence, that the respondent employed three or four maintenance assistants who were available to assist with tasks. His evidence was that when the claimant required assistance for a task, arrangements were made for him to be accompanied by a maintenance assistant. It was Mr Warburton’s evidence that allocating a dedicated person would not have been necessary as the maintenance assistants were available when required, and he said that the claimant was allocated jobs which were straightforward and did not require ladders or heavy lifting.

[38]Mr Fairhurst’s evidence, was that the respondent ensured that any work which might be deemed difficult for the claimant was either assigned to someone else or they arranged for someone else to assist him. He said that the claimant’s duties meant that he did not need to be assigned someone to assist him all the time. It was his evidence, that those allocating work to the claimant would identify which jobs were straightforward and which required assistance. Mr Fairhurst accepted that the claimant was not always allocated support when he needed to work in a secure area.

[39]The claimant did not provide any evidence about any specific occasions when he required assistance from a maintenance assistant, and one was not provided (his witness statement did not refer to this at all).

[40]Whilst working, the claimant was required to use the MICAD system. It was clear from his evidence, that the claimant had a very poor opinion of the system. Mr Warburton, in contrast, had a positive view. The system required a tradesperson to log on when attending a job and to log out when they stopped doing that job. The respondent’s evidence was that the claimant frequently failed to log off from his jobs and was therefore recorded as taking a considerable period of time to undertake tasks which should have been undertaken in a much shorter period. That raised serious issues for the respondent because wards were charged based upon the time taken to do a job and, therefore if a task was recorded as taking longer than it had, it had budgetary implications. It also had an impact on other staff and workloads. The claimant’s evidence was, that all the issues with use of the MICAD system were due either to the flaws in the system or to Mr Warburton’s personal dislike of him. He felt it was impossible to estimate job length from what was recorded on the system, due to the need to obtain supplies after initially visiting the job. The claimant had no knowledge about the financial implications of what he recorded on the system.

[41]It was Mr Warburton’s evidence, that the claimant was reminded of the need to log off from his jobs. Mr Warburton also gave evidence that the claimant was late for work on eight occasions between 12 August and 28 November 2019 (1075). The claimant’s evidence about those periods of lateness was somewhat unclear, as he emphasised that he could not recall or respond to the specific document upon which it was recorded. In answer to further questioning, he said that he was not late on those occasions. The claimant also stated that there had been no prior discussions about lateness and the decision/letter of 11 December 2019 came out of the blue.

[42]It was Mr Warburton’s evidence, that, as a result of the claimant’s lateness and the failure to log out of jobs when he should have done so, he gave the claimant a letter containing a formal first written warning on 11 December 2019 regarding the claimant’s time keeping (1074). Mr Warburton accepted that he had not followed the respondent’s disciplinary policy. Clearly, he had not. He explained the letter as having been sent out of frustration. What was not in dispute was that the letter was rescinded within seven days, after the claimant made HR aware of it. It was Mr Warburton’s evidence that, from his perspective, the claimant’s conduct had no connection to his disability, and he highlighted that the issues with the claimant’s lateness and not being where he was expected to be, predated the claimant’s back and neck problem (or, at least, Mr Warburton’s awareness of those conditions).

[43]As part of his claim, the claimant alleged that Mr Warburton was verbally aggressive to him and made remarks to him when he was taking his medication, including specifically that the claimant was costing the Trust money and asked the claimant why he had not completed certain jobs. The claimant did not include any evidence about those allegations at all in his witness statement. He did say that they had occurred when questioned in cross-examination, but he was unable to date when they occurred, referring only to the fact that they were a part of his bullying and harassment complaint. In a document the claimant had partly written to which he was taken in cross-examination (2077), he recorded that the incident was during early Covid-19 pandemic (which I have taken as meaning March and April 2020). In the hand-written document which the claimant prepared during the bullying and harassment complaint process (609), the claimant recorded them as having occurred in late November 2019. In his evidence before the Tribunal, the claimant referred to the comments as having occurred in the rest room on an occasion when he had taken his medication and needed to allow time after taking it before he had been able to return to work. When he first recounted the event, he made no mention of informing Mr Warburton about the fact that he had just taken medication.

[44]Mr Warburton’s evidence was that he did not recall any specific occasion when the claimant had informed him that the claimant was taking medication or that was why the claimant was in the rest room. He denied being aggressive towards the claimant at all. He accepted that he would have asked the claimant why he had not completed certain jobs and he might have told the claimant that he was costing the Trust money and letting the wards and clients down by being late and disappearing, as he felt that was the case. I found Mr Warburton to be a genuine witness and accepted that the evidence he gave was truthful and accurate.

[45]It was the claimant’s case, that he contacted the Health and Safety Executive in February 2020. The claimant himself provided no evidence about doing so. An email from Ms Worrall of the HSE to Ms Tait (of the respondent) of 2 July 2020 (520) explained that a complaint had been raised with the HSE by the claimant and a list was included which was described as a summary of the concerns which he had raised. That list was separated into two sections, being those directly Covid-19 related, and other health and safety concerns. It is not necessary for me to reproduce that list in this Judgment. I was also provided with emails explaining the respondent’s response to the issues raised. It was Mr Fairhurst’s evidence, that he met with the claimant to discuss his concerns. On 10 August 2020 (516), Ms Worrall informed the respondent in an email that she was proposing to take no further action on the matters at the time, save for asking for further information about one issue (which was subsequently provided).

[46]On 6 March 2020, Michelle Clarkson sent an email to Mary Ritchot (Human Resources Manager) headed grievance/harassment and disability discrimination. The email provided the words from a text message which the claimant had sent to Ms Clarkson which he had asked to be forwarded on. It said (470): “I am wanting to Raise a Grievance against E & F managers from A.Dir JF down to PD (maintenance LM). It will have 2 elements 1st Managers actions amounting to Discrimination against me “possibility causing further physical harm” but def increased pain & discomfort directly linked to a disability of which they are aware and as managers expected to recognise! With a second element of Continual Harassment and Victimisation of me as a response to my Unite WP an H&S Rep activity especially raising of serious concern with E&F services under their management along with virtual abuse of staff they manage by their Employment practices and continued imposition of unsafe working systems which they are attempting the avoiding accountability for failures. This week I am being subjected to continual questioning of my work and activity (3 times already today as to where what and why I am on”

[47]Ms Ritchot responded to the claimant and Ms Clarkson on 9 March to say the complaint under the grievance policy had been received and she said she would make the necessary arrangements to set up a grievance hearing (469). Ms Ritchot did not in fact do so. On 31 March 2020 the claimant sent a further email to Ms Ritchot (467) expanding upon his grievance and also raising other matters. The claimant’s evidence was that he also had a conversation with Ms Ritchot about his grievance. Sadly, I understand that Ms Ritchot died shortly afterwards. It was Mrs Wilkinson’s evidence, that when she later looked into what had happened, the grievance had been missed and not addressed, due to either Ms Ritchot’s sickness absence or Covid.

[48]As part of his Tribunal case as recorded in the list of issues, it was asserted by the claimant that he had raised issues verbally with Mr Warburton regarding Covid and then in writing with Ms O’Neill. The claimant did not give evidence that he had done so. Mr Warburton denied that he had done so. I was not shown a document from that time sent/provided by the claimant to Ms O’Neill.

[49]On 1 June 2020 the claimant sent an email to Ms Tait, Mr Fairhurst, and others (477) headed “Formal Bullying and Harassment Complaint”. In it the claimant said (amongst other things): “Please accept this Email as a formal complaint against the managers of Estate Maintenance for bullying and harassment of me which is on going and is due to my Trade Union and H&S Rep activity, which has become so bad … These issues include an overdue Grievance entered against my Managers .. with this failure to address the grievance causing an increase in my pain and suffering from what may be further physical harm and severe levels of Stress and Anxiety caused by Management at Work”

[50]That grievance was acknowledged. In an email, Mrs Wilkinson asked the claimant to complete Appendix A of the bullying and harassment policy (which the claimant did not do). She also suggested arranging a meeting between Mr Fairhurst, the claimant, and his representative, to understand the specifics of the complaint and how best to move things forward. She also asked about the overdue grievance which had been referred to. The claimant responded at some length identifying the policy which he believed applied.

[51]I was provided with an email and letter from Mrs Wilkinson of 3 June 2020 which invited the claimant to a meeting (483) on 11 June. The letter listed three concerns (in summary, failure to make adjustments, bullying and harassment, and facility time as a safety representative) and said the purpose of the meeting was to discuss the concerns and either reach a resolution or identify a way forward. The claimant’s Unite representative was also invited and it was stated the meeting would be chaired by Mr Fairhurst. The claimant responded by email to clarify the grievances but did not object to the proposed attendees.

[52]In her witness statement, Mrs Wilkinson explained the reasons why it was proposed that the meeting would endeavour to address the grievance even though it was not technically a stage one grievance hearing. In summary, that was because Mr Fairhurst was a senior manager who it was felt could deal with the concerns, the wish to take quick action in response to the health and safety concerns, because of concern for the claimant as he was saying that it was a having a negative impact on his health, and because it was the middle of the Covid-19 pandemic and the respondent wished to minimise where possible bringing groups of people together. Mrs Wilkinson acknowledged that, in hindsight, they should have parked any concern around resolving things promptly, and followed the full process as set out in the policy.

[53]The decision reached by Mrs Wilkinson and Mr Fairhurst was that the claimant’s issues should be addressed partly under the grievance procedure and partly under the bullying and harassment procedure. Mr Fairhurst (at least initially) oversaw both procedures. In answers to cross-examination, Mr Fairhurst said that he initially addressed the grievance on an informal basis and, when that wasn’t possible, proceeded on a formal basis. It was also Mr Fairhurst’s evidence that, in response to the claimant raising concerns about his management team, he had looked into options for the claimant to complete alternative duties outside his department. A role in the stores department was identified. At the 11 June meeting that was discussed. Mr Fairhurst said that at the time he was unclear whether it was required. It was left pending the claimant speaking to his GP.

[54]I was provided with a letter of 12 June 2020 which explained what had happened at a meeting on 11 June (496). In his witness statement, the claimant referred to a meeting of 16 June, but I was provided with no other evidence which showed that a meeting had taken place on 16 June. The meeting on 11 June was attended by the claimant, the regional officer for Unite (Mr Owen), Mrs Wilkinson, and Mr Fairhurst (who sent the letter following the meeting). Mrs Wilkinson described the meeting of 11 June as being a stage one grievance hearing. The letter recorded that the meeting did not commence on time due to the claimant’s late arrival. It was said that one of the issues raised by the claimant had been disability discrimination by failing to put adjustments in place. The letter recorded the claimant as having said that it had gone on for two years following recommendations made by occupational health in 2018. What the letter said was: “we agreed that the most appropriate course of action was to re-refer you back to occupational health (given the time that has lapsed since the recommendations were made), in order to see what adjustments we needed to put in place”

[55]The letter said that the respondent would follow up on adjustments and next steps at the next meeting when it was hoped the occupational health report would be available. The claimant was also recorded as having told Mr Fairhurst that Mr Warburton had completely disregarded all adjustments that had been recommended at the time. Mr Fairhurst stated that he would speak to Mr Warburton as a complete disregard of adjustments would be a concern to him.

[56]The letter also addressed the claimant’s allegation of victimisation and harassment from managers. Informal options were discussed. However, the letter went on to say: “you felt that the only suitable way forward would be a formal investigation. As we discussed, in the absence of specific detail, it would not be possible to commission a bullying investigation on vague and broad terms and Gary Owen was in agreement with this. We therefore agreed that in order to move this forward, you will provide the specifics of your complaint to me by no later than the 9th July (4 weeks from the date of our meeting)”

[57]The letter also addressed what the claimant had raised regarding unsafe working practices and identified that the claimant would arrange to meet with someone with responsibility for health and safety to discuss his health and safety concerns. The letter ended with a clear list of next steps and thanks from Mr Fairhurst for the claimant’s input to the meeting.

[58]At the Tribunal hearing, the claimant was highly critical of the process followed. He asserted that it was not correct procedure for Mr Fairhurst to seek further information about his bullying and harassment complaint. The claimant asserted that an investigation should have commenced, and he would then have provided the further information to the investigator. From his questioning of witnesses, it also became clear that the claimant was asserting in the Tribunal hearing that Mr Fairhurst should not have been the person responsible for determining the grievance or commissioning the bullying and harassment investigation, because he was the person ultimately responsible for the staff involved. Whilst that was the claimant’s evidence to the Tribunal and argument at the Tribunal hearing, I was not provided with any contemporaneous evidence which showed the claimant or his trade union representative raising that objection in June 2020 (it was raised in January and December 2021). The only record of the 11 June meeting which I was provided, recorded an agreement that the claimant would provide further specifics of his complaints, and his trade union representative at the time agreeing that specific detail was required.

[59]It was the claimant’s evidence, when asked why the delay in handling his grievance was alleged to be related to disability, that the failure to resolve the issues raised in his grievance was the cause of his illness and because the disability had been used in the later capability hearing.

[60]The claimant commenced an extended period of ill-health absence in June 2020, from which he did not return. It was not entirely clear when that absence started and that may have been in part because the claimant said that he took three days as annual leave before he was able to see his GP. From the occupational health report of 1 July (503) it appeared that the absence had commenced on 12 June 2020 and that appeared the most accurate contemporaneous record of the start date for the absence. It was the claimant’s evidence, when he alleged that various managers had ignored his requests for reasonable adjustments, that the ignoring had begun with his return to work in April 2019 and ended at his ill health absence in June 2020. Mr Warburton’s evidence was that he did not recall having any involvement with the claimant after June 2020 (as the claimant did not return to work).

[61]On 22 June 2020 the claimant and Mr Fairhurst exchanged emails. The claimant explained the work involved in identifying the points for his bullying and harassment complaint and highlighted his health issues and an upcoming consultation with his GP.

[62]On 1 July 2020 the claimant had a telephone consultation with an occupational health advisor and a report was provided (503). That recorded that the claimant had indicated moderately severe levels of depression and severe levels of anxiety. It recommended a stress risk assessment. It also said: “I am not optimistic that Edward’s symptoms will resolve, unless the management issues are addressed. Until this situation has been dealt with, it is unlikely that the individual will be fully re-integrated with their role. It is therefore recommended that his perceived work-related issues be addressed and resolved with his employer … the barrier to a return to work in this case appears to be more related to employee workplace concerns, rather than a primary medical problem”

[63]Within the supplemental bundle of documents, were all of the occupational health referrals completed (including S82, S85 and S88). Those referrals were completed by Mr Denman. The reports provided were all addressed to Mr Denman. Mr Fairhurst’s evidence was that this was the arrangement for all occupational health referrals within the estates and facilities team, as Mr Denman was the only person with access to the relevant system. In his cross-examination of Mr Fairhurst, the claimant questioned why it was appropriate for someone about whom he had raised a complaint to have access to, and to send and receive, such referrals. Mr Fairhurst thought it was appropriate and he had no concerns about a breach of confidentiality. I found it an entirely inappropriate arrangement and I could see no genuine reason whatsoever for an additional person to be involved in the process of making occupational health referrals and receiving sensitive reports about the claimant. That seemed to me particularly inadvisable, where that person was someone about whom a complaint had been made. I understood and agreed with the claimant’s criticism of this process.

[64]On 3 July the claimant emailed Mr Fairhurst (525) and said that he was hoping to be able to have access to the Union office to access the system and so that he could collect some of the grievance preparation information as discussed. On 15 July the claimant and his Unite representative met with Mr Fairhurst and Mrs Wilkinson. What occurred was confirmed in a letter from Mr Fairhurst (528) which said that the meeting had been a follow up to the meeting on 11 June and it had provided an opportunity to discuss and agree a way forward with the grievance and the bullying and harassment complaint. Amongst other things, that letter said: “You informed me that you had been struggling to get the detail together in terms of your bullying concerns. In the absence of any detail it makes it difficult for me to be able to respond and to take your complaint forward. It is important that we take some action in response to your complaint, and we cannot leave this open ended. We agreed that you would attend site on Tuesday 21st July in order to gather the high-level information you need in order to provide some specifics relating to your bullying complaint. As a minimum this needs to include the names of the people you feel bullied by, and some examples of what you feel the bullying behaviour has been … We agreed that once we have received the detail of your bullying complaint, we will then be able to determine a way forward and we will discuss this when we re-meet on the 24th July – our options at that point will include informal resolution, picking up issues via management supervision or more formal processes such as an investigation”

[65]In an email of 16 July (532) the claimant confirmed that the letter contained an accurate summary of the meeting and the action required.

[66]I was provided with a number of the claimant’s fit notes, albeit limited reference was made to the content of them during the hearing. Examples of early fit notes included 28 July 2020 (546) which recorded the claimant as not fit for work due to work related stress and 19 October 2020 (587) which recorded exactly the same thing.

[67]The claimant did not attend the meeting arranged for 24 July and a letter was sent to him by Mr Fairhurst (542). On 30 July (545) the claimant sent an email which said that it had not been possible to obtain the information to support his bullying and harassment complaint, referring to his health (which was not good at the time) and IT access issues. On 4 August Mrs Wilkinson asked the claimant’s trade union representative to contact her, highlighting the claimant’s ill health and the fact that there had been no update about how the claimant wished to proceed with his bullying and harassment complaint (550). Around this time, the claimant also did not attend some occupational health appointments which had been arranged, it appeared because he did not have access to the respondent’s phone/systems which contained the notifications.

[68]A meeting took place on 8 September, attended by the claimant, the regional officer for Unite (Mr Hutson), Mrs Wilkinson and Mr Fairhurst. What occurred was summarised in an email from Mr Fairhurst of the following day (561). That summarised that the claimant had said he had been unable to access the work systems to access the information he required, that Mr Fairhurst would contact IM&T so they could contact the claimant, and that stopping access to the system after thirty days inactivity was a standard process. The email said that the claimant had been urged to submit information relating to his grievance and bullying and harassment complaint and had agreed to submit it within approximately two weeks of the technician making contact. It was the evidence of both Mrs Wilkinson and Mr Fairhurst, that at that meeting the claimant sought financial compensation for his grievance.

[69]An occupational health report of 17 September 2020 said that there was no evidence to suggest any significant changes to the claimant’s mental heath and it was advised that, in the absence of any resolution to work issues, the claimant remained unable to return to work in any consistent or fully effective capacity (and that a return to work was unlikely until the work issues were resolved).

[70]On 5 October (560) the claimant was invited to a grievance meeting by Mr Fairhurst, to be held on 15 October. Mr Fairhurst, in his evidence, described it as a reconvened stage one hearing. In the invite, he said that if the claimant did not attend, he would provide an outcome in writing. The claimant did not attend, and Mr Fairhurst emailed him on 19 October to ask the reason why and said that he would provide an outcome to the grievance (583)

[71]A meeting under the sickness policy took place on 26 October (via Teams with the claimant on his mobile) with the same attendees as 8 September meeting. An email was sent which confirmed what had occurred (590) which included the following: “During our meeting, I clarified that in order to be able to make any progress with your bullying complaint, I needed broad information – the names, approximate dates and a broad outline of what these individuals had done to bully you. You agreed to provide this information to me on the 26th October. We then agreed that we would re meet at 9.30 am on the 29th October … As your bullying and grievance seem to be interlinked, I will delay confirming my outcome in writing until after our meeting on Thursday”

[72]The claimant delivered a hand-written document detailing his complaint (607) in an envelope to Mr Fairhurst’s office, which Mr Fairhurst received on 29 October (603). Within that document, the claimant referred to Mr Fairhurst as being one of the people against whom he was raising a bullying and harassment complaint, albeit none of the matters about which the claimant provided further details involved Mr Fairhurst. The matters detailed, related to things that the claimant said had occurred whilst he was actively in work and included complaints about what Mr Wilkinson had said, being limited or stopped from taking time off for health and safety duties, and being scrutinised regarding jobs and time keeping.

[73]The claimant did not attend a call on 29 October, but Mrs Wilkinson emailed him (594) and confirmed that Mr Fairhurst would provide a response to the claimant’s grievance.

[74]Mr Fairhurst wrote to the claimant setting out his outcome in the claimant’s grievance on 12 November 2020 (646). In summary, Mr Fairhurst said that he found no evidence to substantiate the concerns and he did not uphold any of his complaints. In the same letter, he referred to the bullying and harassment complaint and asked the claimant whether he would consent to Mr Fairhurst talking to Mr Duffy about what was alleged. In his evidence to the Tribunal, Mr Fairhurst acknowledged that the grievance process took longer than he would have liked, however he attributed the delays mainly to the claimant’s non-attendance at meetings and failures to provide information in the timescales that had been asked.

[75]On 18 November, in a brief email, the claimant appealed against the grievance decision made by Mr Fairhurst (656).

[76]A sickness review meeting took place on 27 November 2020 by Teams, attended by the same people who had attended the previous sickness review meetings. An email was sent by Mr Fairhurst on 30 November which confirmed the outcome of the meeting (666). It was recorded that “You also informed me that you remain unfit to return to your role as electrician, however you may be fit to undertake other duties outside of the department”. Mr Fairhurst said that he had looked, but there was no other alternative work the claimant could undertake on a temporary basis. Reference was made to the bullying and harassment complaint and a difference of opinion in the meeting about the way forward. Mr Fairhurst went on to say: “in the spirit of working with you on this I am happy to commission a formal investigation … to help move this forward. I am in the process of identifying an investigating officer”

[77]Ms Heyworth was the investigating officer appointed. She proceeded to undertake an investigation into the claimant’s bullying and harassment complaints. She met with the claimant on 20 January and 2 February 2021 (and provided notes on 8 February (771)). The investigation was undertaken under the later of the two bullying and harassment procedures, it being Mrs Wilkinson’s evidence that was done because that was the applicable policy by the time the claimant’s complaints were clarified and the investigation commenced. The claimant disputed that should have been the policy used, as he relied upon the fact that the second policy had not been ratified at the time when he first made his complaint. As I have already said, I was not shown anything material (to the issues I needed to determine) which arose as a result of the use of the second policy rather than the first.

[78]One document to which the claimant made reference during the Tribunal hearing, was the terms of reference document completed for the bullying and harassment investigation (702). Mr Fairhurst could not recall whether he completed the document. Mrs Wilkinson’s evidence was that it was a template which she used. The claimant’s compliant appeared to be that there was no provision for a terms of reference document in either of the relevant procedures.

[79]On 19 January 2021 the claimant sent an email to Mr Fairhurst (1322). It was headed “BH terms of Reference”. The claimant said that he was seriously concerned by Mr Fairhurst’s actions and intentions. He referred to collusion. He said that he perceived that Mr Fairhurst was attempting to avoid being held to account for what was described as bad management practices. As a result, the commissioning manager for the bullying and harassment investigation was changed to instead be Ms Birch and, accordingly, Ms Heyworth reported to her at the conclusion of her investigation. Mrs Wilkinson agreed that an alternative commissioning manager would be appointed in an email of 22 January to the claimant (725), in which she confirmed that the claimant had said he was satisfied with the processes being followed. It was clear from documents provided, that the investigation involved a substantial amount of documentation and investigation. On 24 March (909) the claimant emailed Ms Heyworth to say that unfortunately he had been unable to find the specific dates for two issues he had raised.

[80]On 29 January 2021 the claimant was invited to an appeal hearing against the outcome of the grievance (737). A further occupational health report was also provided on the same date (746). That report said that the occupational health advisor did not consider the claimant to be fit for work due his level of psychological symptoms and it was difficult to realistically predict a date of return to work.

[81]A further long term sickness absence meeting took place on 9 February 2021 (by Teams) with the same attendees as the previous sickness absence meeting. A letter of 10 February 2021 from Mr Fairhurst confirmed what was discussed (790). A stress risk assessment was discussed, which the claimant was to complete and return soon after. In addition, amongst other things, the following was said in the letter: “We had a discussion around alternative roles, and you confirmed that your GP has concerns over your physical and mental health, and therefore you are not currently fit to return to any role. We discussed the occupational health report, and the alternative role that was discussed some months ago in Stores. The Occupational Health Report indicated that this role had been declined on the basis of the physical aspects. You confirmed this hadn’t been discussed at the time, and the reason for declining was that you felt the line management was too close to those line managers whom you have concern with. … Nicola did offer to identify an alternative manager to support your sickness absence if you felt this to be needed. You confirmed you were happy to continue with our current arrangements”

[82]In his evidence at the Tribunal hearing, the claimant confirmed that he had not objected to Mr Fairhurst continuing to manage his sickness absence.

[83]The grievance appeal hearing took place on 23 February 2021 and I was provided with notes (871). Dr Seabourne, medical director, chaired the hearing, with Mr Young, the associate director of operations, on the panel with her. The claimant attended and was accompanied by his Unite representative, Mr Hutson. From the notes, it was clear that Mr Hutson spoke quite forcefully for the claimant (Mr Young at one point suggested adjourning the hearing as a result). The outcome of the grievance appeal was that the appeal was upheld. That was set out in an outcome letter from Dr Seabourne of 9 March 2021 (891). In that letter she said, in relation to the decision to move to a formal grievance hearing: “I can accept that by using this approach there was not an opportunity for a full exploration into the issues raised by either yourself or your representative. Therefore, there was not an opportunity for both parties to challenge the responses to ascertain the facts. Having reviewed all the information presented I am of the view that, the Trust did not follow the Grievance Policy and I am upholding your appeal. In order to rectify this situation, I propose the grievance returns to stage 1 in the process. The Bullying and Harassment allegation is currently being investigated and my understanding is that the report should be available for the end of March. The other issues raised need to be submitted in a clear and concise manner to John Fairhurst no later than the 29th March 2021. The information submitted, should be, details of your grievance, along with supporting evidence and an indication of your desired outcome”

[84]In her evidence to this Tribunal hearing, Dr Seabourne agreed with Mr Fairhurst that the information provided by the claimant in relation to the grievance was not concise or clear. She accepted that Mr Fairhurst took the decision to move to a formal hearing in an attempt to get a clear picture of the issues from the claimant. However, she said that her view was that the approach that Mr Fairhurst took meant that there had not been a full exploration into the issues raised by either the claimant or his representative and, therefore, there had not been an opportunity for both parties to challenge the responses and ascertain the facts. She also accepted that it took some time to resolve the claimant’s grievance, from it being submitted in March 2020 until Dr Seabourne determined the appeal in February 2021, but she highlighted by way of explanation: the claimant’s unclear communications; the need for clarification which had taken longer than would normally be expected; the claimant’s failure to attend a number of pre-arranged meetings; and being in the midst of the Covid-19 pandemic at the time.

[85]After the grievance appeal outcome, Dr Seabourne wrote to the claimant on 7 April saying that she had been advised that the information sought from the claimant had not been provided (918). She said that unless the information was provided by 16 April, the file would be closed. Mr Hutson wrote a response on 8 April (924) saying that it was inappropriate to start the process again and saying that an appeal could only be upheld or not upheld. In his evidence to the Tribunal, the claimant explained his view of the position and it was his evidence that once the appeal in his grievance had been upheld that was the end to the matter and, in his view, it was inappropriate and outside the procedure to return to stage one. The claimant made clear that was the reason why neither he nor his trade union representative had provided any further information.

[86]On 5 May 2021 the claimant sent an email to Ms Birch, asking when he would receive the outcome to the bullying and harassment investigation. Ms Birch responded on 6 May explaining the delay with reference to bad news in the investigating officer’s immediate family (920). The final bullying and harassment investigation report was dated 14 May 2021 (963) and was a substantial document with a number of appendices.

[87]A further sickness absence meeting took place on 6 May 2021, with the same attendees as at the previous sickness absence meeting. A relatively lengthy letter was provided from Mr Fairhurst (1493). It was said that “During the meeting you confirmed that you continue to be unfit to work, due to stress related to work”. It detailed that a stress risk assessment document had been sent to the claimant prior to the February meeting, it had not yet been completed by the claimant, and a completed version was requested by 13 May. The claimant was recorded as having informed Mr Fairhurst that the difficulties with his neck and back were flaring up all the time. The claimant was also recorded as having said that he was struggling to see any prospect of being able to return to work. The letter referred to the need for the claimant to receive the outcome to the bullying and harassment investigation. The claimant was referred back to occupational health. It was also confirmed that Mr Fairhurst had authorised an extension to the claimant’s full pay as sick pay.

[88]On 26 May 2021 Ms Birch wrote to the claimant and informed him of the outcome of the bullying and harassment investigation, providing a detailed summary of what had been reported in respect to each allegation (1503). At the start of the letter Ms Birch said “I would firstly like to apologise for the delay in the investigation and my outcome. I have tried to keep you updated and unfortunately Vanessa is currently absent from work however the report was at the stage that I could review it and draw conclusions”. She concluded that there was no case to answer on the allegations the claimant had made, albeit she also set out some areas for concern that had been identified and some feedback which she would be making to Mr Fairhurst. The claimant was informed of his right to appeal.

[89]A medical report of 3 June 2021 (1511) said that the claimant: “is not fit for work in any capacity at present due to poorly controlled symptoms, and timescales for recovery are unclear, therefore it is unlikely that a return will be feasible in the reasonably foreseeable future … No modifications or reasonable adjustments could be identified at this time to facilitate attendance at work”

[90]A sickness review meeting was held on 23 June 2021 with the same attendees as the other meetings. A letter sent by Mr Fairhurst on 2 July set out what occurred (1525). It said that the claimant had confirmed that he continued to be unfit for work with no improvement. There was a discussion about the outcome of the bullying and harassment investigation, which the claimant had received but about which his representative had been unaware. Mr Fairhurst stated that with the outcome it was his view that he had taken action in relation to the bullying complaint. The letter went on to say: “Following a brief adjournment that was requested by Keith, we agreed that you would discuss your concerns in relation to the bullying investigation with Keith and then take swift action in terms of being clear with your planned next steps with regard to this. You also informed me that, as you can’t see your condition getting better, you are looking to apply for retirement on the grounds of ill health. We agreed that Nicola would obtain the appropriate paperwork from payroll to support this part of the process and we would reconvene w/c 5th July. The purpose of our next meeting will be for you to confirm whether you wish to proceed with the ill health retirement application. In the event that you do not wish to proceed with ill health, and we continue to be unable to agree a return to work, the next step will be to escalate the matter to a final review meeting”

[91]In his evidence to the Tribunal, Mr Fairhurst said that, following the short adjournment in the June meeting, the claimant came back into the meeting and confirmed that as he could not see his condition improving, he intended to apply for retirement on grounds of ill health. It was also Mr Fairhurst’s evidence that it was because the claimant later confirmed his intention to leave via ill health retirement, that he took the decision to proceed to a final sickness absence hearing.

[92]A further sickness review meeting took place on 23 July 2021, with the same attendees. A letter confirming what had occurred was provided from Mr Fairhurst on 26 July (1532). That said that the claimant had informed Mr Fairhurst that he felt that the tone of the previous letter was inappropriate, with Mr Fairhurst and Mr Hutson apparently having explained the importance of notifying the claimant of the possible outcomes of the meeting. The letter detailed a discussion about further extension of full pay during sickness absence and it was confirmed that full pay would continue (to the end of August). What was then said was: “In terms of how you were feeling, you informed me that you wished to apply for ill health retirement on the basis of your physical and mental health. I will forward you the application form to you in due course and ask that you return this to me by the 20th August. Upon receipt of your application, I will arrange the necessary occupational health appointment. Therefore, just to confirm the next steps that we have agreed: …• I will forward you the ill health retirement application, and you will complete and return this to me by the 20th August”

[93]The claimant appealed against the outcome of his bullying and harassment complaint in a document dated 21 July 2021 (1529). I was provided with the management statement of case in response (1548).

[94]I was provided with various copies of the ill health retirement application form. In summary it has three sections to complete: A to be completed by management; B to be completed by the employee; and C to be completed by the occupational health doctor. In the guidance to members on the front page there are a list of qualification requirements to be entitled to ill health retirement benefits which included the following (1572): “retire from pensionable employment because of illness or injury; and be permanently incapable of efficiently carrying out the duties of your employment because of illness or injury – Tier 1 pension, or be permanently incapable of engaging in regular employment of like duration because of the illness or injury – Tier 2 pension”

[95]In the completed member’s section, the claimant had included details of his NHS career, experience, and other training. A series of boxes had been ticked by somebody (see below) under a heading “Your declaration and consent” which related to consent for a medical assessment and the provision of medical information (the relevant box said that the claimant wanted to see a copy of any medical report). A date of signature had been included as 18 August 2021, but none of the forms provided to me were signed by the employee.

[96]On 1 September 2021 the claimant emailed Mrs Wilkinson (1571). In that email he said that he had started to complete the application, but there were some sections about which he was unsure and about how much detail he should enter. His email ended by saying, “Hopefully we have enough to begin the part c process to be done by OH providers, which may make entry of my role specific duties and working easier?”

[97]On 2 September the claimant cancelled a meeting due to his trade union representative’s unavailability (1596). In the email explain that he could not attend, the claimant said “I had returned the IHR application form to Nicola which I hope has sufficient information to arrange the OH consultation/examination, the next step in the process. Please lease let me know your opinion and suggestions as to how we proceed?”.

[98]A forty-five minute telephone consultation took place between the claimant and Dr Adeodu (occupational health consultant) which was reported to the respondent on 3 October 2021 (1630). Dr Adeodu said that given the number of issues and the amount of previous evidence in the claimant’s records, he had been unable to complete the part C assessment in the time available and he asked for another forty-five minute telephone consultation to complete the assessment. The report stated that the claimant had agreed for Dr Aeodu to release the occupational health report to the respondent.

[99]A brief occupational health report from Dr Adeodu dated 28 October was also included in the bundle (1768). In it he recorded that he had completed part C of the ill health retirement application form “and my client services colleagues have sent it to NHS Pensions”.

[100]The hearing for the claimant’s appeal against the outcome for the bullying and harassment complaint was arranged for 7 October 2021. The claimant provided a statement of case (1631). That hearing was rescheduled as the claimant’s trade union representative was unavailable at short notice, but it appeared that there were some discussions of preliminary points on 7 October. The claimant was provided with a full copy of the bullying and harassment investigation report. The meeting reconvened on 9 November 2021. The claimant attended and was supported by his union representative, Mr Hutson. Ms Green, the director of nursing and governance chaired the panel which also included Ms Lee, the associate director of performance and strategic development. Ms Robb, HR manager advised the panel on policy and procedure. I heard evidence from Ms Robb at the Tribunal hearing but did not hear evidence from a member of the appeal panel who actually made the decision.

[101]I was provided with an exchange of emails between Mrs Wilkinson and the claimant, including an email from the claimant of 11 November 2021 (1771). In that email, the claimant made some comments about what should be included in his ill health retirement application form, and then went on to say: “I have also now received a request from the Pensions Agency regarding the authority forms (which I mentioned) were incomplete and unsigned? Which I will sign, scan and email to them asp to avoid delay”

[102]The outcome of the bullying and harassment appeal was recorded in a letter of 23 November 2021 (1812). With regard to the time taken it was said, “The panel acknowledge that the timescales involved in dealing with your complaint were too long, albeit that there were some mitigating circumstances at the time … the panel acknowledges the delays which did happen prior to June 2020 and at the reportwriting stage and recognises the impact on you”. The aspect of the appeal regarding exceeding timescales was partially upheld; the other points of appeal were not. It was Ms Robb’s evidence, that she wrote the letter based upon the panel’s discussion and decision, and it was then checked by the decision-makers before the decision was sent out. I found Ms Robb to be an entirely genuine witness and had no reason to doubt her evidence.

[103]In his witness statement, the claimant stated that, during the appeal process, he raised directly with Jill Green the serious Covid 19 risk created by the Trust, and he said that her response was dismissive, and no attempt was made to address or remove the false Covid 19 risk record. I asked the claimant to identify the document which recorded that as having occurred. The claimant was unable to do so at the time, but I suggested that he would have the opportunity to do so over night after his evidence had concluded. Despite being given that opportunity, the claimant did not identify any document which recorded him as having raised that issue or of her being dismissive. As a result, I did not find that this part of the claimant’s statement to have been true, there being no evidence to support a vague (but serious) assertion.

[104]It was Mrs Wilkinson’s evidence that the decision to progress to a final sickness absence meeting was made in around October 2021. She said that, at that point, the claimant had been off work for around sixteen or seventeen months, and she also made reference to the June meeting and the claimant’s wish to pursue retirement on grounds of ill health. It was Mr Fairhurst’s evidence, that he made the decision to proceed to a final sickness absence meeting. When I asked him, he was unable to date precisely when it had been that he had made that decision. Both Mrs Wilkinson and Mr Fairhurst explained that the decision to do so was in part as a result of the claimant indicating that he wished to apply for ill health retirement, as well as the length of absence and what was said in the occupational health advice about the claimant’s condition and prognosis. Mr Fairhurst explained that proceeding to such a hearing, when an ill health retirement application had been made, was the usual practice at both the respondent and at the NHS Trust where he is now employed.

[105]A management statement of case was prepared for the final sickness absence meeting by Mr Fairhurst (1857). It was sent to the claimant on 19 November 2021 (1810). Within that document, Mr Fairhurst said: “During the period of absence, EB has not been well enough to consider redeployment/alternative duties”

[106]At the end of the management statement of case, Mr Fairhurst provided the following conclusion (1862): “EB continues to be absent from work and has applied for ill health retirement. There is therefore no foreseeable return to work, hence escalating this to a final sickness review meeting for due consideration”

[107]When he was asked about the claimant’s allegation that he had pursued the claimant’s dismissal from September 2021 onwards, Mr Fairhurst denied that he had done so. He said he was saddened by the allegation. It was his evidence, that he had left the process to its outcome.

[108]I heard evidence from Mrs Taylor who chaired the panel who made the decision to dismiss the claimant. It was her evidence that, in preparation for the final sickness review hearing, she was provided with the management statement of case and its appendices. Those documents did not include the withdrawn formal warning from December 2019. It was Mrs Taylor’s evidence that she was not aware of any withdrawn formal warning. The claimant stated that he did not know what documents Mrs Taylor had in front of her when she made her decision.

[109]The claimant’s final stage sickness absence hearing took place on 29 November 2021. It was chaired by Mrs Taylor, and was also attend by Mr Fairhurst, Mrs Wilkinson, Ms Smith (an HR manager), the claimant, and Mr Hutson (his trade union representative). That was Mr Fairhurst’s last day of employment with the respondent. Notes were provided (1867). The claimant did not submit anything to the panel for it to consider. In the meeting, the claimant stated that he did not think there had been a valid reason for Mr Fairhurst to take over the management of his sickness. Mrs Wilkinson said the following, after the claimant’s trade union representative had asserted that they had never discussed an alternative role or redeployment (1870): “At varying stages the GP fit notes said that EB was not fit for any duties. It is in the OH report to say that EB was not fit in any capacity. KH and EB feel redeployment was not discussed. My recollection is attempts were made to discuss it but as a group we reached the conclusion that EB was not fit for any type of work”

[110]There was a discussion about the ill health retirement application process and the claimant said that he did not know whether he would be able to live on that (presumably meaning the pension he would receive if ill health retired). Mr Hutson stated that the claimant was going to apply for ill health retirement, but the employer could not do it on his behalf. The claimant accepted that the process of the grievances had been concluded. Later in the meeting, the claimant stated that he had not made the ill health retirement application, hadn’t sent the form in, and hadn’t signed it. In response to that Mrs Taylor said “I think we have established it was sent off by OH and shouldn’t be. What we need to establish is whether you do want IHR or not. Not for this hearing to decide the outcome of that”.

[111]The claimant criticised the processes followed. Mr Hutson made the point that, as his representative, he did not think they were going to get much mileage from criticising how they had got there and he asked the claimant to say ultimately what he wanted at that point in time, to which the claimant responded: “It’s a case of my health, any prospects of anything I can do in relation to work or continuing is a total no at the minute”.

[112]The claimant emphasised that he would have loved to have been at work doing his job (as he did in the Tribunal hearing). Later in the meeting, the claimant said that the processes followed had not addressed (what he described as) the substantial issues, but went on to say, “Both OH and GP are unwilling to say I am fit to return because of the risk that I would be coming back into”.

[113]At the very end of the meeting (1873), Ms Smith asked the claimant whether he would agree with the assessment from occupational health in June that he was unfit to return to work in the foreseeable future in any capacity. The claimant replied, “I would agree with it in the context of why they said it. Dependent on the employment issues”.

[114]Ms Smith then asked whether the claimant would be fit to return to work the following day and he said, “I would be willing to but a clinician wouldn’t say I was able to and this is what has stopped me being able to come back”.

[115]Prior to the meeting on 29 November, the claimant had been contacted by NHS Pensions raising the fact that the claimant had not signed his application for illhealth retirement. It was the claimant’s evidence that he did not understand that letter, as he did not believe it had been submitted. He raised that during the 29 November meeting, and it was Mrs Wilkinson’s evidence in her witness statement that she was confused when he did so. During that final stage sickness absence meeting, Mrs Wilkinson emailed Ms Cardwell of the occupational health provider about the claimant’s concern. In the email Mrs Wilkinson said, “He is of the view that he was told that the physician needed his authorisation before proceeding, he’s never provided his authorisation and therefore of the view it shouldn’t have been sent”. Ms Cardwell responded on 30 November saying that “This issue appears to originate from a misunderstanding” and highlighted that the box on the form had been ticked which had said that the claimant wanted a copy of part C. Ms Cardwell went on to say the following: “There is no option on the AW33E form to have prior sight of Part C and stop the process. I would direct the employee to Part B of the AW33E form where there is a whole section on consent is laid out clearly. The decision to proceed with the application is taken in good faith by the employee on the basis that they do not believe that they are well enough to return to work in any capacity and should therefore be entitled to an early release of their pension benefits. The doctor who completed Part C of the document used information obtained at the time of consultation to do so”

[116]That email exchange was provided to Mrs Taylor by Mrs Wilkinson prior to her reaching her decision.

[117]The claimant’s evidence about the ill-health retirement process was confused, confusing, and I found it to have been somewhat misleading. I did not find it to have been consistent with his email to Mrs Wilkinson of 11 November to which I have referred (1771). The claimant completed section B, the employee section, save that he did not sign it. The claimant’s evidence was that he accepted that he completed parts of section B, but he denied that he completed the tick box section. In the absence of any credible evidence that anyone else had done so, I found that the claimant had completed that part of the form. I accepted that the claimant did not sign the form. Based upon the paperwork provided, it appeared to be the case that the occupational health service presumed the claimant had consented to the application being submitted, when the claimant thought that, as he had not signed the form, he had not yet done so. The claimant’s answers to the questions he was asked about the two forty-five minute consultations which he had with an occupational health consultant being asked to advise on ill-health retirement, which appeared to suggest he did not know the consultations were part of the ill-health retirement process, seemed to me not to be consistent with what must have been the self-evident reason for the two consultations. The 11 November email showed that the claimant had committed to signing and progressing the ill health retirement application prior to the meeting on 29 November. It was Mr Fairhurst’s evidence, that he believed that the claimant was applying for ill-health retirement, and based upon what occurred I found that to have been an entirely reasonable belief based upon what he was told, and the steps undertaken. I also noted that what the claimant said in the email of 11 November was inconsistent with what the claimant said at the 29 November hearing.

[118]Following the hearing, Mrs Taylor tried to telephone the claimant on 3 December to tell him the outcome. She spoke to him on 6 December (from her home, whilst unwell) and informed him of the outcome and that he was being dismissed.

[119]The decision was confirmed in a letter dated 6 December 2021 (1881). That letter detailed the 29 November meeting. Mrs Taylor said that it was clear from the documents that redeployment had been discussed on numerous occasions, however the claimant had felt too unwell at the time to consider that in any real depth. It was confirmed that the claimant had received full sick pay throughout his absence. At the conclusion of her letter, Mrs Taylor said: “You stated during the hearing that you did not feel a return to work was possible. It is therefore my conclusion that you are unable to fulfil your contract of employment, and it is my decision to terminate your contract with the Trust in the grounds of capability related to ill health for this reason. This is effective from today.”

[120]I found Mrs Taylor to be a very genuine and credible witness, who had clearly carefully considered the decision reached and who was able to explain the panel’s reasons fully and appropriately. When explaining her decision, she emphasised that the claimant had been off work for seventeen months at the time, and it was her view that the occupational health reports said that he would not be fit to return to work in the foreseeable future. She highlighted that, when she asked the claimant whether he was fit enough to return to work, he had responded with a firm no. It was her understanding, at the time she made her decision, that the claimant had applied for ill health retirement, and she explained that she took that as an indicator that he was not fit to return to work. However, when I asked her whether it would have made any difference to her decision had she (hypothetically) understood that the claimant had not applied for ill health retirement, she said that no it would not, because all the other evidence pointed to the claimant being unfit or not fit to return to work. She said that the respondent couldn’t have waited any longer before dismissing, because the occupational health report said the claimant could not return for the foreseeable future and the claimant said he could not return for the foreseeable future.

[121]It was the claimant’s evidence that, in December 2021, the reason he could not return to work was because his own doctor and occupational health refused to let him return. I accepted that, as the claimant emphasised, he wished to retain his job. However, I found that, based upon the evidence available from the time, the claimant was not fit to work as at December 2021 (even had any adjustments been made) and there was no medical advice available that he would be fit to return to work in the foreseeable term. The claimant has subsequently been granted ill-health retirement, albeit the decision about that application was only made some time after the dismissal and after the appeal decision.

[122]The claimant’s evidence was that he looked at information about available vacancies and identified other roles at the Trust which he could fulfil. I was not shown any document recording the claimant raising any roles with anyone at the Trust (save for the discussions about the stores role in the meetings to which I have referred). The example that the claimant gave in the Tribunal hearing was the helpdesk person in the office, a role he believed required a tradesperson to be able to undertake the role. He believed that the role was filled by someone employed/engaged by NHS Professionals. When asked who the claimant spoke to about any jobs, he said that could not say who he spoke to. Mrs Wilkinson could not recall any conversation about that specific role. In the absence of any other evidence, I found that the claimant did not speak to anyone at the respondent about any other specific jobs (as he would otherwise have recalled to whom he had spoken). I accepted Mrs Wilkinson’s evidence that, in any event, at the time of the decision to proceed to the final hearing and at the time of the hearing itself, the advice was that the claimant was not fit for any role.

[123]The claimant appealed against the dismissal decision. The appeal hearing took place on 6 May 2022. It was chaired by Mr Maloney, the deputy chief executive and director of human resources (from whom I heard evidence). The panel also included Ms Wimbury, the deputy chief operating officer. Mrs Taylor presented the management statement of case with support from Ms Smith. The claimant attended and was represented by Mr Hutson (who attended by Teams). I was not provided with any notes of that hearing (without explanation). In his evidence, Mr Maloney said that the claimant stated at the hearing that he had not intended to apply for ill health retirement, however he said that it was clear from the management side information that he had both applied and stated his intention to apply.

[124]The appeal panel did not uphold the claimant’s appeal. Their decision was set out in a letter from Mr Maloney of 6 May (1975). Mr Mahoney said: “The panel are of the view that you had been supported throughout your sickness absence and at the time of dismissal, you did not foresee a return to work at GMMH and remained unfit for work … …whilst the panel was not presented with examples of roles that you were offered as redeployment opportunities, the management presentation at the sickness hearing reflected support given to you throughout your sickness absence and that you were unfit to return to any role … The panel are of the view that there was sufficient evidence provided at your final sickness hearing to reflect that you had not been fit to return to any role and you had informed your manager that you wished to apply for Ill Health Retirement in July 2021 … The panel are of the view that both fit notes and the OH reports received throughout your sickness absence reflected that you were unfit to return to work and that redeployment was discussed with you but you stated that you were not fit to work. Further, your application for Ill Health Retirement reflected that you felt that you were unable to return to employment due to illness. Therefore, I do not uphold the second point as there was no evidence to suggest that at any point of your sickness absence, you were fit to return to any role.

[125]In his witness statement and in his evidence during the Tribunal hearing, Mr Maloney emphasised the time that the claimant had been off work on health grounds, the medical information, and what the claimant had himself said about his ability to work. He emphasised that the claimant was one of a small number of tradespeople and, in his absence, there had been a cost to the organisation. He explained that his view was that there had been a clear business need to make a decision at the relevant point in time, in order to ensure the ongoing efficient running of the service. He confirmed that he thought it had been a reasonable decision. I found Mr Maloney to be a genuine and credible witness and it was clear that the appeal panel had considered the claimant’s appeal and reached a thought-through decision on the issues raised.

[126]The claimant provided no evidence whatsoever about the reason why he had not entered his claim at the Tribunal any earlier than he did.

[127]For the vast majority of the evidence which I heard, there was no genuine dispute between the parties about what occurred; the dispute was about what should have happened or whether it was fair, reasonable, and/or justified. However, for those elements of the facts where there was a dispute between the evidence of the claimant and that of the respondent’s witnesses from whom I heard in-person, I preferred the evidence of the respondent’s witnesses. On occasion, the claimant’s evidence was difficult to follow. He made assertions which were either not entirely accurate, or which he could not or did not substantiate. For those historic issues where his evidence conflicted with that of Mr Warburton, the claimant was unable to recall or evidence what occurred with specific dates or details. I accept that, to an extent, reflected the historic nature of what was being alleged. However, I still found that the lack of specific details impacted upon the extent to which I could rely upon the claimant’s evidence about those matters. As I have explained, I also found elements of the claimant’s evidence about the ill health retirement process to have been not credible or inconsistent with the documents provided and what the claimant said in them.

[128]I heard a lot of evidence. This Judgment does not seek to address every point about which I heard or about which the parties disagreed. It only includes the points which I considered relevant to the issues which I needed to consider in order to decide if the claims succeeded or failed. If I have not mentioned a particular point, it does not mean that I overlooked it, but rather I have not considered it relevant to the issues I needed to determine and necessary to include it in this Judgment to explain the decisions reached in the issues I was asked to determine. The Law Unfair dismissal

The Law

[129]In the unfair dismissal claim, the respondent bears the burden of proving, on the balance of probabilities, that the dismissal was for capability (health), being the reason relied upon. If the respondent fails to persuade me that it dismissed the claimant for that reason, the dismissal will be unfair.

[130]If the respondent does persuade me that it did dismiss the claimant for that reason, the dismissal is only potentially fair. I must then go on and consider the general reasonableness of the dismissal under section 98(4) Employment Rights Act 1996. That section provides that the determination of the question of whether a dismissal is fair or unfair depends upon whether in the circumstances (including the respondent’s size and administrative resources) the respondent acted reasonably or unreasonably in treating capability as a sufficient reason for dismissing the claimant. This is to be determined in accordance with equity and the substantial merits of the case. The burden of proof in that regard is neutral.

[131]Section 98 of the Employment Rights Act 1996 provides:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show — (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(3) In subsection (2)(a) — (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, …

(4) [Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[132]In BS v Dundee City Council

[2014] IRLR 131

, a case referred to by the respondent, the Court of Session said an issue was whether or not, in the circumstances of the case, a reasonable employer would have waited longer before dismissing the employee. That case said that I must balance all the factors in the case. It said there is a need for the employer to consult the employee and take his views into account; there is a need for the employer to take steps to discover the employee’s medical condition and his likely prognosis; and account should be taken of whether there are other staff available to carry out the absent employee’s work. A fair procedure is essential. In his closing submissions, the respondent’s counsel relied upon the BS case to highlight the importance of the employee’s own opinion as to their own likely return date and whether they are capable of performing the work, and said that their views should not be given less weight than any medical report to the contrary. A relevant factor is whether the employer could have been expected to wait longer for the employee’s return (Spencer v Paragon Wallpapers Ltd

[1977] ICR 301

). The respondent said that potentially relevant factors might include: the nature of the employee’s illness; the likely length of their absence; the cost of continuing to employ the employee; the size of the employer’s organisation; whether other staff are available to carry out the absent employee’s work; balanced against the unsatisfactory situation of having an employee on very lengthy sick leave.

[133]In Lynock v Cereal Packaging Ltd

[1988] IRLR 510

Mr Justice Wood said: “The approach of an employer in this situation is, in our view, one to be based on those three words which we used earlier in our judgment – sympathy, understanding and compassion … every case must depend upon its own fact, and provided that the approach is right, the factors which may prove important to an employer in reaching what must inevitably have been a difficult decision, include perhaps some of the following – the nature of the illness; the likelihood of recurring or some other illness arising; the length of the various absences and the spaces of good health between them; the need of the employer for the work done by the particular employee; the impact of the absences on others who work with the employee; the adoption and the exercise carrying out of the policy; the important emphasis on a personal assessment in the ultimate decision and of course, the extent to which the difficulty of the situation and the position of the employer has been made clear to the employee so that the employee realises that the point of no return, the moment when the decision was ultimately being made may be approaching.”

[134]The respondent’s counsel referred to International Sports Co. Ltd v Thompson

[1980] IRLR 340

and Daubney v East Lindsey District Council

[1977] ICR 556

. He said that fundamental to the question of fairness is the question of a fair procedure, which will require: consultation with the employee; a thorough medical investigation (to establish both diagnosis and prognosis); and consideration of other options other than termination (especially alternative employment if that would be viable). Reliance was also placed by the respondent upon DB Shenker Rail (UK) Limited v Doolan [2019]

UKEATS/0053/09

, Griffiths v Secretary of State for Work and Pensions

[2017] ICR 160

and O’Brien v Bolton St Catherine’s Academy

[2017] IRLR 547

[135]In his closing submissions, the respondent’s counsel relied upon Royal Bank of Scotland v McAdie

[2008] ICR 1087

as he drew a comparison between the arguments advanced by the claimant in this case and what was determined by the Court of Appeal in that case. That case involved a claimant who asserted that the respondent had caused the ill health for which she was dismissed. The Court decided that an employer who, however culpably, has caused or contributed to the incapacity of the employee, is not precluded from ever effecting a fair dismissal. In that case, where the reason given for the claimant’s dismissal was an indefinite capability to do her job and the manner of her dismissal was procedurally fair, the dismissal was fair notwithstanding the employer’s culpability in bringing about the incapability. The respondent’s counsel in submissions in this case accepted that where culpability for the illness/injury was found, it was a factor in considering the fairness of the dismissal (albeit he denied it was what had occurred in this case). Harassment related to disability

[136]Section 26 of the Equality Act 2010 says: “A person(a) (A) harasses another

(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” “In deciding whether conduct has the purpose or effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;

[137]The Employment Appeal Tribunal in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, stated that harassment is defined in a way that focuses on three elements:(a) unwanted conduct;

(b) having the purpose or effect of either: (i) violating the claimant's dignity; or (ii) creating an adverse environment for him;

(c) on the prohibited grounds. Although many cases will involve considerable overlap between the three elements, the Employment Appeal Tribunal held that it would normally be a 'healthy discipline' for Tribunals to address each factor separately and ensure that factual findings are made on each of them.

[138]A respondent can be liable for effects, even if they were not its purpose (and vice versa). Even if the conduct has had the proscribed effect, it must also be reasonable that it did so. The test in this regard has both subjective and objective elements to it. The assessment requires me to consider the effect of the conduct from the claimant's point of view; the subjective element. I must also ask, however, whether it was reasonable of the claimant to consider that conduct had that requisite effect; the objective element.

[139]The meaning of the words set out in section 26 must be carefully considered and applied. Not every adverse comment or conduct will constitute the violation of a person’s dignity etc. The words used look for effects which are serious and marked and not those of lesser consequence.

[140]I must determine whether the conduct related to disability. When considering whether facts have been proved from which I could conclude that harassment was on the prohibited ground, it is always relevant, at the first stage, to take into account the context of the conduct which is alleged to have been perpetrated on that ground. That context may in fact point strongly towards or against a conclusion that it was related to any protected characteristic.

[141]When considering the discrimination claims, including the claim for harassment and the claim for breach of the duty to make reasonable adjustments, I must apply the burden of proof. That is set out in section 136 of the Equality Act 2010 which says the following: “(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But sub-section (2) does not apply if A shows that A did not contravene the provision”

[142]In short, a two-stage approach is envisaged:a. At the first stage, I must consider whether the claimant has proved facts on a balance of probabilities from which I could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination. This can be described as the prima facie case. However, it is not enough for the claimant to show merely that he has been treated less favourably than his comparators and that there is a difference of a protected characteristic between them, or unfavourably; there must be something more.

b. The second stage is reached where a claimant has succeeded in making out a prima facie case. In that event, there is a reversal of the burden of proof: it shifts to the respondent. Section 123(2) of the Equality Act 2010 provides that I must uphold the claim unless the respondent proves that it did not commit (or is not to be treated as having committed) the alleged discriminatory act. The standard of proof is again the balance of probabilities. However, to discharge the burden of proof, there must be cogent evidence that the treatment was in no sense whatsoever because of the protected characteristic (here, disability).

[143]In his submissions on the burden of proof, the respondent’s representative highlighted what was said in Madarassy v Nomura International Plc

[2007] IRLR 264

, following on from/affirming the guidance in Igen Ltd v Wong

[2005] IRLR 258

. Discrimination arising from disability

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

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

[145]For unfavourable treatment there is no need for a comparison, as there would be for direct discrimination. However, the treatment must be unfavourable, that is there must be something intrinsically disadvantageous to it. In Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

the Employment Appeal Tribunal held that: ''the approach to s 15 Equality Act 2010 is now well established and not in dispute on this appeal. In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and

(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.”

[146]Pnaiser v NHS England

[2016] IRLR 170

outlined the correct approach to be taken: “From these authorities, the proper approach can be summarised as follows:(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The 'something' that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises….

(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (h) Moreover, the statutory language of s.15(2) makes clear … that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the 'something' leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so .. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed.”

[147]The respondent relied upon Basildon & Thurrock NHS Trust v Weerasinghe

[2016] ICR 305

and Charlesworth v Dransfield Engineering Services Ltd [2017] 1 WLUK 78, as setting out the correct approach and the requirement that the unfavourable treatment must be because of the something (arising in consequence of the disability).

[148]Section 15(1)(b) provides that unfavourable treatment can be justified where it is a proportionate means of achieving a legitimate aim. That requires: identification of the aim; determination of whether it is a legitimate aim; and a decision about whether the treatment was a proportionate means of achieving that aim. The test is an objective one.

[149]For cases arising from a dismissal following absence where there is both a discrimination arising from disability claim and an unfair dismissal claim, previous case law has indicated that the outcome is often the same, but it is also clear that there is not a necessary inconsistency between a Tribunal, on the one hand, rejecting the claim of unfair dismissal and, on the other, upholding a claim under Section 15 of the Equality Act 2010 in respect of that same dismissal. That is because the issue of whether a dismissal is unfair or not is determined by reference to the question of whether that dismissal was within the range of reasonable responses open to a reasonable employer.

[150]As I am required to and as the respondent highlighted that I should, I took into account the guidance in relation to objective justification contained in the EHRC Code of Practice on Employment. It is for the respondent to justify the practice and it is up to the respondent to produce evidence to support its assertion that it is justified. I must ask myself whether the aim is legal non-discriminatory and one that represents a real, objective consideration? I must then ask myself whether the means of achieving the aim is proportionate? Treatment will be proportionate if it is ‘an appropriate and necessary’ means of achieving a legitimate aim. Necessary does not mean that it is the only possible way of achieving the legitimate aim, it will be sufficient that the same aim could not be achieved by less discriminatory means. Breach of the duty to make reasonable adjustments

[151]Section 20 of the Equality Act 2010 imposes a duty to make reasonable adjustments on an employer. Section 20(3) provides that the duty comprises the requirement that where a provision, criterion or practice of the employer’s puts a person with a disability at a substantial disadvantage in relation to a relevant matter in comparison with people who do not have a disability, to take such steps as it is reasonable to have to take to avoid the disadvantage. That requires not only the existence of a disability, but also: identification of a PCP; and knowledge (actual or constructive) on the part of the employer.

[152]Section 21 of the Equality Act 2010 provides that a failure to comply with the requirement set out in section 20 is a failure to comply with a duty to make reasonable adjustments. Schedule 8 of the same Act also contains provisions regarding reasonable adjustments at work.

[153]Environment Agency v Rowan

[2008] IRLR 20

is authority that the matters a Tribunal must identify in relation to a claim of discrimination on the grounds of failure to make reasonable adjustments are:a. what provision, criterion or practice did the respondent adopt in relation to the claimant;

b. Did the PCP place the claimant at a substantial disadvantage because of his disability? If so, what was the disadvantage; and

c. In the circumstances, what would have amounted to reasonable adjustments?

[154]The requirement can involve treating those with a disability more favourably than those who do not have a disability. Whether something is a provision, criterion or practice should not be approached too restrictively or technically, it is intended that phrase should be construed widely. A one-off act can be a PCP, but it is not necessarily the case that it is. Not every act of unfair treatment is a PCP. A PCP is a state of affairs which indicates how similar cases are treated and a practice requires an indication that it will be, or would be, done again in the future if a hypothetical similar case arose (Ishola v Transport for London

[2020] IRLR 368

[155]The requirement is that the PCP must disadvantage the claimant in comparison with those who do not have the disability. The respondent highlighted that: if the practice disadvantages everyone to whom it is applied equally (disability or not) there is no comparative disadvantage; but if it disadvantages the claimant more for a reason inextricably linked to his disability, it is self-evident that he is at such a comparative disadvantage.

[156]In his legal argument, the respondent’s counsel relied upon a number of cases and propositions which I will not reproduce in this Judgment. He did highlight that the focus must be on whether the adjustment would be effective by removing or reducing the disadvantage the claimant is experiencing at work as a result of his disability (not whether the adjustment would advantage the claimant generally), relying upon Tameside Hospital NHS Trust v Mylott [2009] 0352/09 EAT.

[157]In terms of knowledge of disability and reasonable adjustments, the duty only applies if the respondent: knew or could reasonably be expected to know that the claimant had the disability; and knew or could reasonably be expected to know that the claimant was likely to be placed at a substantial disadvantage compared with persons who are not disabled (that is aware of the disadvantage caused by the application of the PCP).

[158]When considering reasonable adjustments, I took into account the EHRC Code of Practice on Employment. Jurisdiction and time limits

[159]Section 123 of the Equality Act 2010 provides that proceedings must be brought within the period of three months starting with the date of the act to which the complaint relates (subject to the extension for ACAS Early Conciliation), or such other period as the Tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period. A failure to do something occurs when the person in question decided on it, but section 123(4) says that in the absence of evidence to the contrary, that is to be when the person does something inconsistent with doing the thing, or on the expiry of the period when the person might reasonably have been expected to have done it.

[160]When determining whether the discrimination alleged is a continuing act, and, if so, when the continuing act ceased, a question is whether the respondent’s decision can be categorised as a one-off act of discrimination or a continuing scheme. I must look at the substance of the complaints in question, as opposed to the existence of a policy or regime, and determine whether they can be said to be part of one continuing act by the employer. Aziz v FDA

[2010] EWCA Civ 304

showed that one relevant factor is whether the same or different individuals were involved in the incidents, however this is not a conclusive factor.

[161]If out of time, I need to decide whether it is just and equitable to extend time. Section 123(1)(b) of the Equality Act 2010 states that proceedings may be brought in, “such other period as the Employment Tribunal thinks just and equitable”. The most important part of the exercise of the just and equitable discretion is to balance the respective prejudice to the parties. The factors which are usually considered are contained in section 33 of the Limitation Act 1980 as explained in the case of British Coal Corporation v Keeble

[1997] IRLR 336

. Those factors are: the length of, and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the relevant respondent has cooperated with any request for information; the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he knew of the possibility of taking action. Subsequent case law has said that those are factors which illuminate the task of reaching a decision, but their relevance depends upon the facts of the particular case, and it is wrong to put a gloss on the words of the Equality Act to interpret it as containing such a list or to rigidly adhere to it as a checklist. I must assess all the factors in the case which I consider relevant to whether it is just and equitable to extend time. Factors which are almost always relevant to consider when exercising a discretion whether to extend time are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

confirmed the breadth of the discretion available, but also said that the exercise of a discretion should be the exception rather than the rule and that time limits should be exercised strictly in employment cases. The onus to establish that the time limit should be extended lies with the claimant. The Employment Appeal Tribunal in Concentrix CVG Intelligent Contact Ltd v Obi [2022] 149 set out the correct approach to considering the just and equitable extension to incidents which together were a course of conduct, but which were out of time. I must both consider whether it is just and equitable to extend time for the whole compendious course of conduct and, if I decide that it is not, I must consider whether it is alternatively just and equitable to extend time in relation to each of the allegations in their own right. Other legal issues

[162]I have not set out in this section the law as it applies to protected disclosures and to claims under section 103A of the Employment Rights Act 1996 that the principal reason for the dismissal was a protected disclosure. As the claimant conceded that he was not contending that the principal reason for his dismissal was that he had made a protected disclosure, I have not needed to do so.

[163]In his legal argument document, the respondent’s counsel referred to Chandhok v Tirkey

[2014] UKEAT 0190/14

/1912 and emphasised the primacy of the pleadings in a case and the limited ability of the claimant to seek to re-cast or redraft those issues.

[164]The respondent was ordered to produce, in advance of the hearing, a statement of the law as it applied to the case. I was provided with the legal argument document. That provided a detailed explanation of the law as it applied to this case. Whilst I have only included some of what was said in that document, I took it all into account. Conclusions – applying the Law to the Facts Time/jurisdiction

[165]The first issue (or issues) set out in the list of issues was the question of time or jurisdiction. Neither party focussed upon those issues in their submissions. When I asked the claimant about the time issues, he said that he thought they had been addressed at the preliminary hearings and, in any event, he said that what he alleged was a continuing course of conduct. The respondent’s representative addressed time issues in his verbal submissions and acknowledged the difficulty he/the respondent faced in arguing prejudice for claims and complaints which they had been able to address and defend throughout the hearing. He, however, submitted that there was prejudice to the respondent in the delay in the claim being entered for some of the harassment allegations and the allegations of breach of the duty to make reasonable adjustments.

[166]As is recorded at issue 1.1, it was only in relation to any complaint about something that happened before 13 November 2021 that the claim may not have been brought in time. There was no argument/issue about the unfair dismissal claim or the claim arising from the dismissal itself, as the claim was entered within time for those claims (issues 2 and 6.2.2, a discrimination arising from disability complaint). I considered that, similarly, the second part of issue 6.2.1, the contention that Mr Fairhurst had sought the claimant’s dismissal, also had been brought in time as what was alleged continued up to the 29 November 2021 internal hearing and was therefore within time. The harassment claim, that alleged that the formal written warning of December 2019 had been included in the management statement of case for the dismissal (issue 5.1.6), was also on the face of it brought in time, as the management statement of case was sent to the claimant on 19 November 2021. For all of the other discrimination claims (including those for harassment and breach of the duty to make reasonable adjustments), they were on the face of it entered out of time, that is unless they were part of a continuing series of events, or it was just and equitable to extend time.

[167]I considered the claimant’s contention that time issues had been determined at a previous hearing. I considered that to be incorrect, as the time/jurisdiction issues were clearly set out as issue one in the agreed list of issues. I also could not see that they had been determined from the previous Tribunal documents. I understood his contention that the time issues would not arise if all the things that he alleged were found to have been part of a continuing series of events, as clearly that would be correct where some of the allegations had been brought in time.

[168]Legally, something can only be part of conduct extending over a period with an act of discrimination brought in time, if the matter in time has been found to have been unlawful discrimination (or harassment). As I have explained below, I did not find that any of what was alleged was unlawful discrimination or harassment. As a result, none of the matters which were on their face out of time, could have been brought within time as a result of being part of conduct extending over a period. However, I did accept that the first part of the claimant’s allegation of discrimination arising from disability by Mr Fairhurst (6.2.1) would have been found to have been part of conduct extending over a period with the second part of the same allegation (which was in time), had it been found.

[169]I would not have found that any of the other matters alleged were part of conduct extending over a period with those brought in time, even had I found any of those matters to have been unlawful. Those alleged to have committed the unlawful acts were different. The actions of the claimant’s line management when in work and the decisions made about his ill health absence and dismissal, were in my view distinct and different. The delays in the outcomes of the grievance and bullying and harassment processes, were also as a result of the decisions and actions of different people at the respondent to the dismissal process, and I did not find them to have been part of a continuing series of events. I understood that the claimant felt that they were all connected as he explained during the hearing, but I did not find them to have been part of the same conduct extending over a period.

[170]Turning to whether it would be just and equitable to extend time, that required me to undertake an exercise in which I took into account all the relevant factors. The claim was not brought in time (the period of delay varied depending upon the allegation being considered). The claimant was an experienced trade union representative with, at the very least, easy access to advice and information about Tribunal time limits. There was no genuine evidence presented to explain the reason why the claims were not presented earlier. The prejudice to the claimant of refusing to grant a just and equitable extension would be potentially significant, as he would otherwise be unable to pursue potentially meritorious complaints (or, at least, have a determination in them), reduced by the fact that he would still be able to pursue (and have determined) the claims which were entered within time. Any prejudice for the respondent arose from reducing memories. The respondent was able to defend most of the claims brought on their merits with full evidence and addressing in detail what was alleged. For example, Mr Warburton was able to give clear and cogent evidence about the December 2019 warning and the reasons for it, even though the claims which arose from that warning were entered well outside the primary time limit.

[171]Balancing all of the relevant factors, I found that it was just and equitable to extend time for all of the claimant’s harassment complaints except for three, and for one of the claims for breach of the duty to make reasonable adjustments (issue 7.6.4). The key part of that decision being the balance of the significant prejudice for the claimant of refusing, compared to the limited prejudice for the respondent arising from the delay. However, for three of the harassment complaints and for three of the complaints for breach of the duty to make reasonable adjustments, I found that the balance was different. I decided that it was not the correct decision to simply extend time for all the out of time allegations collectively and I considered the delay and relevant factors for each of the allegations separately. For three harassment complaints and three reasonable adjustment complaints, I found that the delay had resulted in a far greater impact upon the cogency of the evidence which I heard. For those allegations, the claimant’s own ability to recall what had occurred, when and in what precise circumstances, had been reduced by the delay. The impact on the respondent’s ability to provide evidence and respond was also clear. Those six allegations (three harassment and three breach of the duty to make reasonable adjustments) were as follows:a. Issue 5.1.1, being a general contention that five named individuals had all ignored the claimant’s requests for reasonable adjustments. In the list of issues, that was said to have started from April 2019. The alleged harassment must have ceased by 12 June 2020 (at the latest), when the claimant commenced the period of long-term ill health absence from which he did not return. The claim was entered on 14 March 2022 almost one and a half years after it should have been;

b. Issue 5.1.2, being the allegation that Mr Warburton ended the preexisting time agreement. The evidence heard about that was vague and uncertain. It was alleged to have occurred in April 2019, albeit Mr Warburton thought it had occurred in 2018. Taking the claimant’s date, the claim was entered over two and a half years later than it should have been;

c. Issue 5.1.7 related to allegations and comments about which no witness could genuinely recall exactly the context in which the words alleged had been said and for which the date was entirely uncertain. I considered the documents to which I was referred as I have explained, and the claimant dated the comments as occurring in November 2019 in one document, and early in the Pandemic (which I have taken as being March/April 2020) in the other. Taking the later date, the claim was entered over one and a half years later than it should have been;

d. Issue 7.6.1, being the allegation that the respondent should have employed another member of staff to continually support the claimant, that was said in the list of issues to be an allegation that continued from April 2019 until the date of termination. In practice the failure to employ another member of staff occurred when the respondent either made the decision not to do so following the DWP report of 2 July 2019 and the occupational health report of 26 July 2019, or when they would reasonably have been expected to do so, which would be by autumn 2019 at the latest. The claim was entered over two years after it should have been;

e. Issue 7.6.2, being allowing the claimant to work flexibly at the beginning and end of the shift. That appeared to relate to the same decision as issue 5.1.2 which would mean the claim was entered two and half years later than it should have been, but at the latest it must have ceased to apply when the claimant’s long term sickness absence commenced by 12 June 2020, so the claim was entered one and half years later than it should have been; and

f. Issue 7.6.3 regarding breaks and rest periods to take medication for which there was no genuine evidence. As with issue 7.6.2 at the latest it must have ceased by 12 June 2020, so the claim was entered one and a half years late.

[172]For those allegations of harassment relating to disability (issues 5.1.1, 5.1.2 and 5.1.7) and those allegations of breach of the duty to make reasonable adjustments (issues 7.6.1, 7.6.2 and 7.6.3), balancing all of the relevant factors which I have explained, I did not find it to be just and equitable to extend time for the complaints. As a result, I did not have jurisdiction to consider or determine those complaints. Unfair dismissal

[173]Issue 2.1 was not an issue which I needed to determine, as it was an agreed statement. The claimant was dismissed.

[174]Issue 2.2 asked whether the principal reason for the dismissal was a potentially fair reason under section 98 of the Employment Rights Act 1996? The respondent relied upon capability (health). The decision to dismiss was made by the panel for the dismissal hearing, chaired by Mrs Taylor. As I have said, I found her to be a genuine and credible witness, and I entirely accepted her evidence about the reason why she dismissed the claimant. That reason was the claimant’s health and incapability to do his job. I found that the principal reason was capability.

[175]Issue 2.3 was whether the principal reason for the claimant’s dismissal was that he had made one or more public interest disclosures? As I have already explained when addressing the issues, during his cross-examination on the afternoon of the third day, the claimant explained that it was not his case that the principal reason for his dismissal was because he had made one or more protected disclosures. As a result, the claimant’s claim for automatically unfair dismissal could not, and did not, succeed. His claim brought under section 103A of the Employment Rights Act 1996 accordingly did not succeed. Having made that decision, it was not necessary for me to decide whether the claimant had made any of the protected disclosures relied upon and, if he did, whether they satisfied the legal requirements such that they were protected disclosures (issues 4.1-4.3).

[176]That left issue 2.4 in the unfair dismissal claim. That issue was, applying the test of fairness in section 98(4) of the Employment Rights Act 1996, did the respondent act reasonably in all the circumstances in treating capability as sufficient reason to dismiss the claimant?

[177]I found that the respondent did act reasonably in all the circumstances in treating capability as sufficient reason to dismiss the claimant. As at the date of his dismissal on 6 December 2021, the claimant had been continuously absent from work since 12 June 2020. He had been described, throughout the period, as not being fit for work. The occupational health reports provided described him as not fit for work. There was no positive prognosis and no indication that he would be fit for work (even with adjustments) in the foreseeable future. At the final internal hearing on 29 November 2021 the claimant himself said, very clearly, that there was no prospect of him returning to work at the time. I accept what the claimant explained, which was that he would have loved to have remained in employment. At the final hearing he made clear that his inability to work was based upon the advice he had received from his own GP and the occupational health service. I accepted Mrs Taylor’s clear answer and evidence as to why it was the respondent could not reasonably have waited any longer before dismissing.

[178]Whilst the claimant was highly critical throughout the Tribunal hearing of the processes followed by the respondent, I found the sickness management process followed by the respondent to have been entirely fair and appropriate. As I have recounted in detail in the section of this Judgment which records the facts, there were a number of sickness absence meetings held with the claimant and his trade union representative throughout his absence, during which the things I would have expected were discussed and explored with the claimant. At the end of the process, a final hearing to decide whether the claimant should be dismissed was arranged appropriately and with independent decision-makers. A hearing took place at which the claimant was able to put forward his case. A decision was appropriately and fairly made. The claimant was given a right of appeal with a fair appeal hearing (albeit that appeal hearing took place somewhat later than it should have done). I found that the process followed was fair and reasonable. The dismissal was not unfair.

[179]It was clear that appropriate steps had been taken to understand the claimant’s medical condition and his prognosis. Medical reports were obtained. At the time of the dismissal, the advice was up to date and there was no indication that it was incorrect. The claimant agreed with the medical advice. At the time when the decision to dismiss was made, there was no indication that any adjustments could facilitate the claimant’s return to work.

[180]A fair capability dismissal does require consideration of other options including alternative employment. That was also something set out in the respondent’s own policy. In his submissions, the respondent’s representative highlighted the occasions during the absence management process when alternatives were discussed, as referred to in the facts section above. Alternatives were discussed. Whether alternatives had been appropriately considered, was something explored at the final hearing. In any event, as Mrs Wilkinson highlighted during the final internal hearing, the occupational health advice at the time was that the claimant was not fit in any capacity, which appeared to have been confirmed by what the claimant himself said at the final hearing.

[181]I have addressed in the facts section of the judgment, the facts as I found them to be around the claimant’s ill health retirement application. It was somewhat unsatisfactory that the application had been submitted without the claimant having signed it. The claimant clearly raised concerns about it at the final internal hearing, albeit that the concerns he raised were somewhat inconsistent with what he had said to Mr Fairhurst and Mrs Wilkinson prior to the hearing. The respondent submitted that the claimant was significantly more committed to the ill-health retirement process than he now states, and that submission would appear to be correct based in particular on what the claimant said in his email to Mrs Wilkinson shortly before the final hearing on 11 November 2021 (1771). However, whatever the position of the actual ill health retirement application, I accepted that the respondent was able to take the view that the claimant had expressed a wish to pursue it from what he had said and to take that into account in determining whether he should be dismissed on capability grounds. More importantly, I accepted Mrs Taylor’s evidence that even had there been no application, it would not have made any difference to the panel’s decision because the claimant was not fit enough to return to work and the decision would have been the same.

[182]In the section of this Judgment which addresses the law, I have referred to the decision of the Court of Appeal in Royal Bank of Scotland v McAdie, to which the respondent’s representative referred in his closing submissions. That was a case in which it was held that a dismissal on capability grounds could still be fair even if the employer was culpable for the illness which led to the dismissal. I agree that the heart of the claimant’s complaint as pursued during the Tribunal hearing in this case, mirrored the argument which the Court of Appeal rejected. As I have explained, I considered the claimant’s unfair dismissal claim considering the relevant factors set out in the leading cases about such a dismissal. However, even if the claimant’s arguments had been right, that the way in which he (and the adjustments required) were managed and the way in which his grievance and bullying and harassment complaints were addressed (including the delay in doing so) caused the claimant’s mental ill health or significantly exacerbated his condition, I would still have found the dismissal to have been fair. The respondent did not accept that it had caused the claimant’s ill-health. The medical evidence available to me was not sufficient for the claimant to have proved that it did. There is a significance difference between on the one hand (as in this case) an individual being recorded as unfit for work due to workrelated stress with occupational health advice that perceived work-related issues need to be addressed and resolved because the barrier to return to work is related more to workplace concerns rather than a primary medical problem; and, on the other, it being proved that the respondent has caused a personal injury. Nonetheless, even had the claimant proved that the cause of his injury was the respondent’s negligent action or breach of health and safety obligations, that would not have meant that I would have found the dismissal to have been unfair (for the reasons I have already explained). I was, of course, not deciding a free-standing personal injury claim, nor was it in my power to do so.

[183]As I found that the dismissal was not unfair, I did not need to decide issues 3.6.4 and 3.6.5 and could not do so, as they would only have applied had I found the dismissal to have been unfair. Harassment related to disability

[184]Issue five set out the issues in the harassment related to disability claims. I have already decided that I did not have jurisdiction to decide issues 5.1.1, 5.1.2 and 5.1.7. As a result, I have not recorded anything further on issues 5.1.2 or 5.1.7.

[185]Issue 5.1.1 was a claim which I found that I did not have jurisdiction to consider. Nonetheless, as I heard a considerable amount of evidence about it and as submissions were made, I considered what I would have decided had I had jurisdiction to do so. The allegation was that a number of individuals ignored the claimant’s requests for reasonable adjustments from April 2019. A medical report of 24 April 2019 (439) recommended that the claimant should return to work on a phased return, and refrain from climbing ladders and heavy lifting/pulling/pushing for a short period. The claimant did not prove that those adjustments were not made. A DWP assessment on 2 July 2019 recommended purchase of a box on wheels and a lighter ladder, and those were purchased. The only proposed adjustment which it appeared was genuinely in dispute was that referred to in the third recommendation of the DWP assessment and in the subsequent occupational health report of 26 July 2019 (458). That was the claimant being accompanied for some, or all, of his time.

[186]The primary issue in dispute was that the claimant asserted that the DWP report and the occupational health advice meant that an adjustment should have been made of permanently dedicating an assistant to him for all his tasks at work. The respondent did make maintenance assistants available to assist the claimant when the claimant required assistance. I accepted the evidence of Mr Warburton that the claimant was (for at least some of the time) allocated jobs which were straightforward, and which did not require ladders or heavy-lifting, for which he did not require an assistant. I heard no evidence of any occasion upon which the claimant had ever requested that he be accompanied by an assistant, and one had not been made available. I heard no positive evidence from the claimant that he had ever been ignored when he requested an accompanier for a particular job. As a result, I did not find that the claimant was ever ignored when he requested an adjustment, because there was no evidence of him being ignored for the one adjustment which he asserted had not been made.

[187]I addressed all of issues 5.1.3, 5.1.4 and 5.1.5 together, as they all arose from the same sanction issued by Mr Warburton. It was not in dispute that in a letter dated 11 December 2019 Mr Warburton issued the claimant with a first written warning. He should not have done so, as he breached the respondent’s disciplinary policy by doing so (having not followed the/a required procedure). The warning was rescinded within seven days. Issue 5.1.4 was factually correct; the claimant was issued with a formal written warning as alleged. Issue 5.1.5 was also factually correct; that was done without any meeting having been convened.

[188]As part of issue 5.1.3, the claimant alleged that Mr Warburton instigated and created false performance issues, choosing to "reframe" the Claimant's disability as a conduct and performance issue. I did not find that to have been the case. I accepted the evidence that Mr Warburton gave about the claimant’s lateness and the fact that the claimant had not logged off from jobs on occasions when he should have done. I accepted the evidence Mr Warburton gave about the claimant being late on eight occasions between 12 August and 28 November 2019. I did not need to decide whether the claimant would have been able to address the issues or to have defended them had a fair procedure been followed (as one was not). However, I accepted Mr Warburton’s evidence that he imposed the warning out of frustration following what he believed to be the claimant’s repeated lateness and him not logging out of jobs as he was required/expected to. I did not find those to be false or reframing the claimant’s disability.

[189]Receiving such a warning and receiving it without a meeting having taken place, was clearly unwanted conduct (issue 5.2).

[190]I did not find that the reason why the warning was imposed or the reason why a meeting was not held, was related to the claimant’s disability. I accepted Mr Warburton’s evidence. In any event, applying the burden of proof to what was alleged, whilst the claimant had proved the unwanted conduct, he had not shown the something more required to reverse the burden of proof and show that the imposition of the warning and or the lack of a meeting was related to his disability. Even taking the claimant’s evidence at its highest, the warning and lack of meeting occurred because of Mr Warburton’s personal dislike of the claimant dating back to 2012. Whilst the claimant now relates that his lateness was related to his disability, I accept Mr Warburton’s evidence that he did not know about the connection and, in any event, I did not find that the decision to impose the warning without the meeting (incorrect as it was) was related to disability.

[191]The allegation in issue 5.1.6, was that the formal written warning in December 2019 appeared on the respondent's management statement of case relating to his sickness absence prior to his dismissal, despite having been withdrawn. It did not. There was no evidence that it did. The claimant did not give evidence that it had. It was not included in the documents provided to me which were given to Mrs Taylor. It was Mrs Taylor’s unchallenged evidence that the document was not provided to her. As I found that what was alleged did not occur, I did not need to consider any other issues as they applied to that allegation.

[192]The allegation included in the list of issues as 5.1.8, was that the claimant raised a grievance alleging disability discrimination in March 2020, the outcome of which was sent to the Claimant in May 2021. I considered that it was necessary to consider that allegation by looking separately at the component parts of the time taken and the reasons for it.

[193]The claimant raised a grievance on 6 March 2020. That was not addressed. Nothing happened (save for some emails and a telephone conversation) until the claimant’s bullying and harassment complaint of 1 June 2020. Nobody knows for certain why that occurred, as the person responsible is sadly deceased. Mrs Wilkinson’s evidence was that it was either due to that person’s ill health, or Covid- 19. Both explanations are perfectly plausible. I accept that the delay and lack of response was unwanted. The claimant has not shown that the delay was related to his disability. He has not provided the something more required to reverse the burden of proof.

[194]From 1 June 2020 until Mr Fairhurst received the claimant’s hand-written document which the claimant placed under his door on 29 October 2020, the reason why the grievance was not determined, and the bullying and harassment complaint addressed, was because Mr Fairhurst was waiting for the claimant to provide the details required of his harassment complaint. I accept that such details were required, and I cannot see why it was not appropriate for the respondent to await receipt of that clarification before progressing with addressing/investigating the bullying and harassment complaint. From the documents from the time, it appeared that the claimant and his trade union representative agreed to the approach at the time (I understand the claimant now criticises it). I can understand that the delay in matters being resolved for that period was broadly unwanted. I did not find that it was related to disability. It was because further details had been sought from the claimant, he had agreed to provide them, and they took some time to be provided.

[195]The claimant was provided with a grievance outcome on 12 November 2020. There was limited delay between the clarification of the complaint and the grievance outcome. Whilst the claimant disagreed with the outcome and (more importantly) the approach taken in providing the outcome, nonetheless when looking only at the delay, there was an outcome on that date. The claimant appealed on 18 November and the appeal was heard on 23 February 2021. The appeal outcome was in the claimant’s favour. Whilst the period between the 18 November and 23 February was not particularly swift, there was no suggestion (or evidence which suggested) that the length of that period was disability related.

[196]Whilst I did not consider it to have been what was alleged in this issue, I would add that I would not have found that the approach taken by Mr Fairhurst and Mrs Wilkinson to determining the grievance was related to disability. Mrs Wilkinson accepted with hindsight it had been wrong. Dr Seabourne, when conducting the internal appeal, found it to have been wrong. However, I accepted that the reasons for the approach taken were those set out by Mr Fairhurst and Mrs Wilkinson and were not therefore related to disability.

[197]The bullying and harassment investigation did take some period of time. Mr Fairhurst received the details of the complaints on 29 October 2020. Investigation meetings took place with the claimant on 20 January and 21 February 2021. The outcome of the investigation was not provided until 26 May 2021. Ms Birch apologised for the delay when she provided the outcome. The appeal panel who heard the bullying and harassment appeal, in their outcome of 23 November 2021 (1812), acknowledged that the timescales taken to deal with the complaint were too long, in particular at the report-writing stage. The length of time taken was clearly unwanted. However, I did not find that the claimant had shown the something required to reverse the burden of proof in showing that the time taken was related to disability. The delay at the end of this period (the report writing stage) appeared to have resulted from a personal issue for the investigator.

[198]As a result of those decisions, I did not need to go on and consider issues 5.4 and 5.5. Had I needed to have done so, I would not have found that the purpose of any of the alleged conduct was to violate the claimant’s dignity or to have created an intimidating, hostile, degrading, humiliating or offensive environment for him. I also would not have found that it was reasonable for any of the conduct found to have had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for him, in the light of the gravity of those words. I did not find that the warning given had that effect based upon the evidence that I heard and the fact that it was withdraw within seven days. From the claimant’s evidence at the hearing, I accept that the overall time taken to address his grievance and bullying and harassment complaint was considered by the claimant to have had a considerable effect on him, albeit I did not need to finally determine whether that effect, when considered alongside the reasons for the separate components of the delay, fitted within what is required by section 26 of the Equality Act 2010. Discrimination arising from disability

[199]I then considered the allegations of discrimination arising from disability. I considered all of issues 6.1 to 6.6 as they applied to each allegation set out at 6.2. Issue 6.2.1 contained two distinct allegations within it and, therefore, I considered those two allegations separately.

[200]The first part of allegation 6.2.1 as recorded in the list of issues, was that Mr Fairhurst failed to follow the correct policy and procedures from June 2020. In his submissions, the claimant asserted that the foundation of his case rested on the following claims: grievance mismanagement; bullying and harassment complaint mismanagement; misuse of sickness and absence procedures; and procedural failures and discriminatory conduct. He asserted that his health condition was worsened as a result of the respondent’s inaction. Throughout the hearing, the claimant placed particular emphasis on what he believed were procedural failings. The respondent’s representative submitted that the claimant did not put forward a case to support which procedures he said Mr Fairhurst failed to follow, when, and how.

[201]I understood the respondent’s submission on this issue. Whilst the claimant frequently asserted that the respondent (and Mr Fairhurst in particular) failed to follow procedures, it was (in most cases) not entirely clear why or how that was asserted. I have already addressed the time taken for the grievance and bullying and harassment procedures to have been progressed, and I have explained why I found that the majority of the time taken by Mr Fairhurst (as opposed to others) was as a result of his reasonable decision to wait for the claimant to provide the clarification of his complaints. I have also already addressed the conduct of the absence management process, which I found to be fair and appropriate. I did not accept that Mr Fairhurst should not have been the person to have responsibility for that process because: the claimant agreed that he should at the time; when the claimant sought a change in commissioning manager for the bullying and harassment investigation, that was actioned; and when the claimant confirmed the detail of his allegations in his hand-written document, save for including Mr Fairhurst’s name, he made no actual allegations against him. I disagreed with the claimant’s assertion that because he was the senior manager responsible for those the claimant alleged had subjected him to bullying and harassment, he should not have been the commissioning manager or responsible for managing his ill-health (it is frequently the case that a commissioning manager is ultimately responsible for those against whom allegations are made, without that impacting upon their ability to fulfil that role or to manage sickness absence). I found that Mr Fairhurst’s handling of the bullying and harassment complaint was in accordance with the procedure, as was his management of the claimant’s ill-health.

[202]Where Mr Fairhurst did fail to follow the correct policy and procedure was in relation to the claimant’s grievance. That was the finding of Dr Seabourne’s panel when the claimant appealed against the grievance outcome. For that policy and approach, it was found by the respondent’s own internal procedures that what he did was fail to follow the procedure.

[203]In his claim for discrimination arising from disability, the claimant was relying upon his sickness absence between June 2020 and December 2021 as being the thing arising in consequence of his disability. It was not in dispute that the period of absence arose in consequence of the claimant’s disability. In order to find for the claimant on his claim, I needed to find that the reason why Mr Fairhurst did not follow the grievance procedure in determining the claimant’s grievance was because of the claimant’s absence. In his submissions, the respondent’s representative described this contention as a non-starter and said there was no evidence whatsoever to support the assertion that because of the claimant’s absence, Mr Fairhurst failed to follow the correct procedure. I agree. The claimant did not prove the something more required to show that the reason why the grievance procedure was not followed was because of his absence. I accepted that the reason why the procedure was not followed was for the reasons evidenced by Mrs Wilkinson.

[204]I found that the respondent did know the claimant had the disability at the time as the reasons for the claimant’s absence were part of the discussion (issue 6.1). Failing to follow the respondent’s grievance procedure was unfavourable treatment (issue 6.2.1 – first issue), albeit I did not find that there were other failures by Mr Fairhurst to follow procedure. I would not have found that failing to follow the respondent’s own grievance procedure was a proportionate means of achieving a legitimate aim (issues 6.6 and 6.7). However, I did not find (for the reasons I have explained) that the claimant had proven facts from which I could conclude that the unfavourable treatment was because of the claimant’s absence (issue 6.4).

[205]The second part of issue 6.2.1 was the allegation that Mr Fairhurst sought the claimant’s dismissal from September 2021. I accepted Mr Fairhurst’s evidence that he did not seek the claimant’s dismissal, but rather let the sickness absence process follow to its outcome. As such, the allegation as worded was not made out. However, I considered the issue more broadly. In a wider sense, Mr Fairhurst did progress the procedure to the point where dismissal would be considered, by deciding that it should progress to a final sickness absence meeting and by preparing the management statement for that hearing. Whilst I accept that was done because Mr Fairhurst considered it what should be done in accordance with the procedure and in the light of the length of the claimant’s absence and what Mr Fairhurst genuinely believed was the claimant’s position on ill-health retirement, nonetheless he did in practice follow a process which could lead to the claimant’s dismissal. I therefore considered whether Mr Fairhurst doing so was unlawful discrimination arising from disability. Nothing material turned upon the date when the decision to progress to a potential dismissal hearing was made, but it appeared from the evidence that the decision may have been made in October 2021 rather than September.

[206]When Mr Fairhurst did so, he was aware of the claimant’s disability (issue 6.1). The sickness absence arose in consequence of the claimant’s disability (issue 6.3). Mr Fairhurst took the steps I have described because of the claimant’s sickness absence (alongside the medical advice, the prognosis, and the belief that he was applying for ill-health retirement) (issue 6.4). Having dismissal considered was unfavourable treatment, looked at objectively but from the claimant’s point of view. That left to be determined whether Mr Fairhurst’s action was a proportionate means of achieving a legitimate aim.

[207]When I raised with the respondent’s representative, this potential approach to the second part of issue 6.2.1, he placed reliance on the aim set out at issue 6.6.1. That stated aim was the effective management of sickness absence. That is clearly and obviously a legitimate aim. I therefore needed to decide if progressing the claimant’s case to a final sickness absence meeting and preparing a management statement of case which set out why due consideration should be give to whether he should be dismissed, was a proportionate means of achieving that aim. I found that was a proportionate means of achieving that aim. What Mr Fairhurst did was progress the situation to a hearing at which the claimant would be able to be accompanied and to present his case and at which a panel of senior managers would decide if dismissal was the correct sanction (that is, give it due consideration as he proposed). He did that in circumstances where the claimant had been absent from work since June the previous year, the medical advice was that the claimant was not fit to return to work, there was no indication that the claimant would be in the foreseeable future, and Mr Fairhurst’s reasonable understanding based upon what the claimant had told him was that the claimant was intending to apply for (or had applied for) ill-health retirement. In those circumstances, I found that Mr Fairhurst’s approach was a proportionate means of achieving a legitimate aim.

[208]Legally, issue 6.2.2 was more straightforward. The claimant was dismissed. He was dismissed in part because he had been absent from work since June the previous year. The absence was something arising in consequence of the claimant’s disability and was the reason for his dismissal. The respondent knew about his disability. Dismissal was unfavourable for the claimant. Accordingly, all of the other elements of the discrimination arising from disability claim were made out, so I needed to consider whether dismissal was a proportionate means of achieving a legitimate aim, considering the aims set out at issue 6.7.

[209]I found three of the aims relied upon were legitimate aims, namely (6.6.1) the effective management of sickness absence, (6.6.2) having regard to the health and wellbeing of employees, and (6.6.4) managing public money. Whilst I would agree that an organisation should follow occupational health advice, I did not consider that doing so (in and of itself) was genuinely a legitimate aim. Considering the three legitimate aims relied upon together and collectively (nothing being genuinely achieved by trying to distinguish between them), I found that dismissing the claimant was an appropriate and reasonably necessary way to achieve those aims and doing so was proportionate when balancing the needs of the claimant with the needs of the respondent. As the respondent’s representative acknowledged, a dismissal decision can always be delayed so there was apparently a potential alternative. I found that, with the exception of delaying the decision, there were no other genuine alternatives available (I have addressed alternative roles when considering the fairness of the dismissal). Based upon the length of the absence, the medical advice at the time, and what the claimant himself said at the final internal hearing on 29 November, I found that the decision to dismiss in December 2021 when the claimant had been absent since June 2020 and there was no foreseeable return to work (with the claimant confirming that he was being told he could not return by medical professionals), was a proportionate means of achieving the legitimate aims relied upon. My reasons for reaching that decision reflect the reasons I have explained for finding that the dismissal was not unfair, but applied to the question I was required to determine when considering the discrimination arising from disability claim. Breach of the duty to make reasonable adjustments

[210]As I have decided that I did not have jurisdiction to consider the complaints for breach of the duty to make reasonable adjustments for the adjustments contended as issues 7.6.1, 7.6.2 and 7.6.3, I did not need to determine whether the respondent would have breached its duty to make reasonable adjustments had those complaints been brought in time. In practice, the paucity of available evidence about those matters, when they were raised, and what adjustments were sought, was a factor in my jurisdiction decision and made reaching alternative findings difficult. However, for issue 7.6.1 I have already in practice addressed the issues when addressing issue 5.1.1. For issue 7.6.1 I would not have found it to have been a reasonable adjustment which the respondent was required to make, for it to have employed a dedicated support person assigned permanently to the claimant, where maintenance assistants were otherwise available to support the claimant when required, in the light of what was actually said in the DWP report and the occupational health advice, in the absence of any evidence about any specific occasions when the claimant sought support and it was not available, and based (in part) on the accepted evidence of Mr Warburton and Mr Fairfield about what was done regarding workload allocation.

[211]Within issues 7.2 and 7.3 were four alleged PCPs. The respondent accepted that two were PCPs which it applied, it denied that the other two were. The PCPs it accepted applied were: a requirement that shifts started and finished at fixed times; and a requirement that breaks were taken in designated periods where possible.

[212]Issue 7.3.1 asked whether the respondent had a PCP of requiring the Claimant to work alone. The respondent submitted that the claimant had not demonstrated any basis for suggesting that there was such an operative PCP. I found that the respondent did not have such a PCP.

[213]Issue 7.3.2 asked whether the respondent had a PCP of taking fourteen months to resolve the claimant’s grievance. That was not a PCP, even though it was what in fact occurred. I have set out when explaining the law what was decided in the case of Ishola and what is required for something to be a PCP. The time taken to address the claimant’s bullying and harassment complaint and his grievance, reflected a series of specific issues relating to the claimant’s complaint, the circumstances and matters such as the lack of specificity of his complaint and illness or personal issues for those responsible for those matters. Those may have cumulatively resulted in a period for resolution which was far longer than it should have been, but I did not find it to have been a PCP.

[214]Issue 7.4 asked whether the PCPs found put the claimant at a substantial disadvantage compared to someone without the claimant’s disability? The list of issues identified three things which it was said the claimant could not do. There was no medical evidence to support the claimant’s contention that he was at a substantial disadvantage compared to someone without his disability by the need to start on time (issue 7.4.1), but I accepted his evidence about the difficulties he had in the mornings which meant that he was placed at a disadvantage by a fixed start time because of the time required to take medication and undertake the exercises necessary to be able to drive in the morning because of his back condition. I heard no evidence whatsoever which showed any disadvantage in relation to medication during the day (issue 7.4.3) and therefore the claimant did not prove that he was placed at a disadvantage by any requirement as to the timing of breaks. Issue 7.4.1 was whether the claimant was placed at a substantial disadvantage by a requirement to work alone and without help, but as I have found that was not a PCP applied to the claimant, it was not something which I needed to determine.

[215]Issue 7.6 asked whether the respondent failed in its duty to take such steps as it would have been reasonable to have taken to avoid the disadvantage found? The only PCPs which I have found the respondent applied were those accepted by the respondent (7.2.1 and 7.2.2). I did not find that 7.2.2 placed the claimant at a substantial disadvantage (7.4.3). That meant that the only reasonable adjustment contended which I needed to consider, being the reasonable adjustment which addressed the disadvantage suffered (issue 7.4.2) because of a PCP found to apply (issue 7.2.1), was the adjustment sought at 7.6.2 of allowing the claimant to work flexibly at the beginning of each shift. However, that was a proposed adjustment the claim for which I found to have been out of time. As a result, the claimant’s claim for breach of the duty to make reasonable adjustments did not succeed.

[216]The one adjustment sought which I found to have been claimed within the time required was that set out at 7.6.4. That was stated to be the adjustment of Dr Seabourne following policy and resolving the Claimant's formal grievance within a shorter period than 14 months. As I have already explained and found that the time taken to resolve the grievance was not a PCP (issue 7.3.2), a claim relying upon that proposed adjustment could not succeed. However, I would also observe that the adjustment sought was somewhat unusual, at least as recorded in the list of issues. Dr Seabourne’s involvement in the process was to hear and uphold the claimant’s grievance appeal. The claimant appealed against the outcome of his grievance on 18 November 2020, the grievance appeal hearing took place on 23 February 2021, and the outcome letter (upholding the appeal) was sent on 9 March 2021. I have no doubt that the grievance appeal process could have been undertaken more quickly, but I heard no evidence that the three and half months taken was in some way the fault of Dr Seabourne, nor was it a particularly notable delay in the context of this case. I would not therefore have found that Dr Seabourne addressing the grievance appeal more quickly would have been a reasonable adjustment which the respondent was obliged to make (and in which she and the respondent had acted unlawfully in failing to make), even had that been an adjustment which addressed a disadvantage suffered as a result of a PCP.

[217]In the light of the decisions which I have explained, I did not need to address issues 7.1, 7.5, or 8.7, and issue 7.7 I have in practice addressed when considering time and jurisdiction. The claimant’s submissions

[218]It was notable that the claimant did not focus throughout the hearing on the issues in the claim which I needed to determine, and which had been set out after four preliminary hearings. His witness statement did not include evidence about some of the issues. His submissions did not focus on the issues. I have determined the issues as I needed to and as I said that I would. As I have already addressed, when considering the claimant’s unfair dismissal claim, much of what was submitted by the claimant appeared to in fact be endeavouring to pursue a free-standing personal injury claim. That was particular illustrated by some of the terminology used in the claimant’s submission. He submitted that the respondent’s actions directly led to the development of a previously non-existent mental health condition, which became a physiological injury due to their refusal to address his needs. Had I found discrimination, I might have been required to determine whether that discrimination caused the claimant’s ill-health or exacerbated a condition. However, I was not deciding a free-standing personal injury claim (and do not have the power or jurisdiction to do so).

[219]Within his submissions, the claimant also contended that the respondent had systemic issues and a systemic culture of neglect. That was not established in the case which I heard. I understand that the claimant did not agree with the internal decisions reached by those at the respondent and he disagreed with the decision to dismiss him. I also agree that the processes followed took a long time and were not without issue, as I have explained and found. However, focussing upon the issues in the claims which the claimant pursued, I did not find that the respondent had acted unlawfully, and I found that the decision to dismiss was not unfair and was one which was a proportionate means of achieving a legitimate aim or aims.

Summary

[220]For the reasons explained above, I found that the claimant was not unfairly dismissed, and the dismissal was a proportionate means of achieving a legitimate aim. I did not find that the respondent unlawfully discriminated against the claimant in any of the ways alleged. I did not find that he suffered unlawful harassment related to disability. Employment Judge Phil Allen 3 January 2025