Mr M Chaloner v DL Insurance Services Ltd: 2401912/2024

EMPLOYMENT TRIBUNALS

Case No 2401912/2024

Between

Mr M ChalonerClaimant

DL Insurance Services LtdRespondent

Before

Employment Judge Phil Allen

In person for claimant

Mr J Cook (instructed by counsel) for respondent

Date 10 April 2026

JUDGMENT

[1]The complaint of unfair dismissal was not well-founded and is dismissed. The claimant was not unfairly dismissed.

[2]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.

[3]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 from 15 June 2016 until his dismissal on 14 December 2023. He was a commercial claims handler. The claimant alleged that he had been unfairly dismissed and had suffered disability discrimination (discrimination arising from disability and breach of the duty to make reasonable adjustments). The respondent contended that his dismissal had been fair by reason of conduct and denied discrimination. Claims and Issues

[2]There were three preliminary hearings in this case. Following the second preliminary hearing on 30 June 2025, Employment Judge Childe had appended to his case management order a list of the issues to be determined (R64). Some of those issues were no longer ones which needed to be determined, as the respondent had conceded the claimant had a disability at the relevant time as a result of both conditions/impairments on which the claimant relied, and the claimant had withdrawn one of his complaints. The case management order following that hearing had included the usual provision that said that either party needed to raise any issues with the list of issues within 14 days. No issues were raised by either party. We were also told that neither party had raised any issues with the list of issues at the preliminary hearing (case management) conducted on 26 January 2026. Accordingly (and subject to what is said below), that list of issues recorded the issues which we needed to determine.

[3]At the start of this hearing, the claimant explained that he had not focused on the list of issues prepared by Employment Judge Childe at the time, and he had included in his bundle a list of issues which he said set out the issues he believed needed to be determined (C126). The respondent objected to that list of issues. We reviewed the two lists of issues alongside each other at the start of the hearing. The position was confirmed and agreed as follows: 3.1. Regarding unfair dismissal, issue 1.1.1 in EJ Childe’s list was agreed. Issue 1.2.1 set out the legal questions to be determined when addressing fairness. However, it was acknowledged that when we were determining fairness, the arguments which the claimant would put forward were those set out at issue 2.4 (a)-(o) of his list of issues (C127). The claimant also clarified what he meant at (c) and (k) of his list; 3.2. Of the unfair dismissal remedy issues, consistent with what had been said in Employment Judge Butler’s case management order following the preliminary hearing on 26 January 2026 (R724), it was agreed that at the same time as determining the liability issues, we would determine issues 2.3, 2.4.4, 2.4.5 and 2.4.9 from the remedy issues (in summary, being contributory fault and Polkey); 3.3. We did not need to determine whether the claimant had a disability at the relevant time as the respondent accepted that he did, both as a result of autism and due to memory problems (issues3.1.1 and

3.1.2 ). We did, however, need to decide whether the respondent had knowledge of the claimant’s memory problems at the relevant time (part of issue 3.1.2) (the respondent accepted it had knowledge of autism); 3.4. EJ Childe had recorded as issue 3.2.2 “Did the following things arise in consequence of the claimant’s autism: the claimant’s impulse to tweet about various subjects and the way he expresses himself in those tweets”. The claimant disputed that as being the issue. He said that the way it was pleaded suggested that autism caused him to tweet. It implied that he tweeted because of his autism, which was not the case. He said his impulse was to react to certain tweets and post a contribution to tweets. We acknowledged that the claimant did not agree with how the issue had been phrased and that it was a more nuanced issue. We said that we would hear the evidence and would hear submissions about it afterwards, rather than spending considerable time at the start of the hearing trying to determine how the question should be worded. That issue was addressed in submissions, as recorded below; 3.5. The reasonable adjustment issues were those set out at 3.3-3.5.6 of EJ Childe’s list; 3.6. The issues in the claim for discrimination because of religion or belief (issue 4) did not need to be determined, as the claim had been dismissed on withdrawal; and 3.7. After a little discussion about issue 5.6, it was agreed that we would not determine any of the issues listed as remedy issues for discrimination, at the same time as determining the liability issues.

Procedure

[4]The claimant represented himself at the hearing. Mr Cook, counsel, represented the respondent.

[5]The hearing was conducted in-person with both parties and most of the witnesses attending in-person at Manchester Employment Tribunal. The claimant had asked that Mr Baldwin be allowed to attend remotely and give his evidence by CVP remote video technology. That was allowed and he gave his evidence remotely on a large screen in the Tribunal room. The respondent’s solicitor also endeavoured to attend remotely for the oral submissions; the claimant having not objected to her being allowed to do so when it was requested.

[6]Each of the parties provided us with their own bundles of documents. The one prepared by the respondent had 744 pages (and the physical bundle had two volumes). The one prepared by the claimant had 878 pages. Employment Judge Butler had agreed at the preliminary hearing on 26 January 2026 that the claimant could produce a supplementary bundle as there had been a dispute about the documents which should be included in the bundle. He expressed the hope that the claimant’s bundle would not include duplicates of the documents in the other bundle. The bundle prepared by the claimant did, in large part, duplicate the other bundle. Each party’s witness statements referred to pages in that party’s bundle. Each party primarily cross-examined with reference to the bundle they had prepared. We read the documents in the bundles to which we were referred in the witness statements at the start of the hearing. Where a number is referred to in brackets in this Judgment, where it is prefaced by an R that is a reference to the page number in the bundle as prepared by the respondent, and where it is prefaced by a C that is a reference to the page number in the bundle as prepared by the claimant. We have in most places in the Judgment referred only to a document’s location in one of the bundles, even though it might have been in both.

[7]The hearing had been due to start at 10 am on the morning of the first day, with half a day for reading. A member of the panel needed to attend a medical appointment on the morning of the first day. As a result, we informed the parties that they needed only to attend at 2pm and we used the first morning to read the witness statements and the documents referred to in those statements. One panel member read the electronic witness statements which had been provided prior to the hearing.

[8]At the start of the afternoon of the first day, we discussed the reasonable adjustments which would be made to assist the claimant in taking an active part in the hearing. Employment Judge Childe had identified some adjustments which he had made (R56) and it was agreed we would make the same adjustments. The timing of the hearing and the breaks to be taken were confirmed (including that an additional morning break would be taken and that breaks could be taken on request). We also discussed the list of issues, as already explained. The parties did not identify any other issues which needed to be addressed, and they did not identify any other documents which specifically needed to be read at the start of the hearing.

[9]It had been discussed and agreed at a previous preliminary hearing that the respondent’s witnesses would give their evidence first. As a result, we first heard evidence from Ms Ciara Brannigan, an Employee Relations Consultant called by the respondent. She gave evidence on the afternoon of the first day and the morning of the second. We then heard evidence from Mr Stuart Stevens, the organised fraud and intel lead who had heard the claimant’s appeal against dismissal. He gave evidence on the remainder of the second day. Each of those witnesses were cross-examined by the claimant, and we asked questions. We did not hear evidence from any other witnesses for the respondent (including Ms Tynkler who had made the decision to dismiss, but who we were told has now left the respondent’s employment).

[10]The claimant asked that Mrs Chaloner, his wife, gave evidence first of his witnesses and the respondent did not object to her doing so. As a result, at the start of the third day, we heard evidence from Mrs Chaloner. On the third and fourth days we heard evidence from the claimant. Mr Dan Baldwin, the claimant’s former team leader at the respondent from June 2017 to August 2023, gave evidence for the claimant. It had been agreed that he would give his evidence at 10 am on Thursday (the fourth day), so his evidence was interposed (that is, heard during the claimant’s own evidence). Each of the claimant’s witnesses were cross examined by the respondent’s representative, and we asked questions (as required). The claimant also provided a witness statement from Mr John Lee, a commercial claims handler. The respondent confirmed on the first day that they had no questions for Mr Lee in cross-examination, and we therefore confirmed that he did not need to attend as his evidence would be accepted as recorded in his witness statement.

[11]After the evidence was heard, each of the parties was given the opportunity to make submissions. Written submissions were provided by both parties in advance of the start of the fifth day, with a delayed start to allow for reading time. When we were about to hear oral submissions, the claimant informed us that he had also prepared a skeleton argument which he wanted us to read (which had not been provided). We accordingly adjourned until after lunch to provide him time to provide us with his additional skeleton argument and to provide us time to read it. We read both the claimant’s skeleton argument and his combined closing submission document before we heard oral submissions (both documents in practice containing final submissions). At the start of the afternoon of fifth day, we asked the claimant a question arising from his closing submissions and he informed us that all he wished to say was in the two documents he had provided. The respondent’s representative made relatively brief oral submissions which supplemented the written submissions.

[12]We reserved our decision, in part taking account of the claimant’s disabilities and his short-term memory issues, which we concluded made providing lengthy oral reasons inappropriate. Accordingly, this document contains our Judgment and our reasons for it.

Facts

[13]The claimant was employed by the respondent as a commercial claims handler from 15 June 2016.

[14]In the claimant’s terms and conditions of employment (R136) it was said that the individual should familiarise themselves with policies and procedures and where to find them was explained. There was reference to the code of conduct and the fact that failure to comply with it might be regarded in certain circumstances as gross misconduct leading to dismissal.

[15]We were taken to a number of policies or procedures. The diversity and inclusion policy (R190) said that the respondent was committed to an inclusive culture and took a zero-tolerance approach to harassment, bullying, discrimination or any unfair treatment due to a particular personal characteristic. It said that the respondent expected people to be respectful of others, regardless of their personal characteristics, and sensitive to the impact of their own behaviour on colleagues, customers, and the business overall. The code of conduct (R98) said that the respondent would value and promote diversity in all areas of recruitment and employment and would work towards an environment based on inclusion, where everyone could develop their full potential. The respondent’s policy on resolving issues at work (R114) set out how grievances and disciplinary issues would be addressed. It explicitly said that examples of gross misconduct included: “Bullying or harassment (including via social media)”; and “Other conduct, both in and out of work, considered seriously harmful to the company, its … people, [or] customers”. The anti-bullying and harassment policy (R129) set out what bullying and harassment is and made clear that harassment is offensive behaviour (whether intentional or not) which was offensive. Examples were included.

[16]The respondent has a social media policy (R126). We will not preproduce all that was said in it. It says that social media is at the heart of what the respondent does and “It is therefore important that we remind everyone that there are rules around what you can do and can’t do on social media, which also extends to your own personal accounts and messaging platforms”. The policy highlighted that when posting in a personal capacity, an individual could still easily be identified by others working for the respondent. The policy said that disciplinary action could be taken including, in the most serious cases, dismissal. In a specific section of the policy headed “Respect your colleagues and others online” it was said “How we conduct ourselves in the workplace applies online too. Never post, or let others post, comments about your colleagues or other people that breach their rights or dignity”. The policy said that employees should never post offensive material and it should not contain contents which employees would not want customers to see. The individual’s responsibility for what they post was emphasised and it was said “Never post … content or comments that could adversely affect Direct Line Group’s brands and reputation”.

[17]The claimant suffers from epilepsy, which was diagnosed at age four. The claimant’s evidence was that he has always had memory issues.

[18]It was the evidence of the claimant’s wife, Mrs Chaloner, that the claimant sees the world in black and white, and lacks the social filter that most people use. It was her evidence that if he states an opinion, that comes across as blunt or offensive (never because he intended to be cruel, but because he believed he was stating a fact).

[19]We heard evidence from Mr Baldwin who was the claimant’s Team Leader (and line manager) from June 2017 until August 2023. He said, of the claimant: “During the six years I managed Mark, I found him to be a diligent, honest, and highly technical claims handler. While his methodical approach meant that he worked at a different pace, his accuracy, attention to detail, and knowledge were a significant asset to the team. My overall impression of Mark remains that he was a dedicated employee who always sought to do the right thing by the customer and the business”

[20]The claimant was employee of the month on one occasion.

[21]It was Mr Baldwin’s evidence that he recalled the claimant expressing concerns to him about his memory on multiple occasions. It was his impression that the team saw the claimant as someone with a good technical knowledge who would get bogged down in small details. In his statement, he said that a colleague from time to time may have made a comment about how the claimant had said something, coming across as blunt. It was also Mr Baldwin’s own evidence that the claimant came across as blunt at times. Mr Baldwin observed that his bluntness could come across as rude at times.

[22]Mr Lee was a commercial claims handler who worked alongside the claimant for eight years. He described the claimant as speaking in a matter-of-fact manner. He said that some people were put off by it. He referred to it being known that the claimant would communicate differently than most, which was accepted as being just how the claimant was.

[23]In 2020, two of the claimant’s colleagues, Mr Hussain and Mr Jazwinski exchanged emails about the claimant’s twitter posts (C216). Mr Hussain expressed the view that the claimant was a joke. Mr Jazwinski responded using the “c” word to describe the claimant. Mr Hussain suggested that screenshots should be sent to more senior managers. The emails were only identified by anyone else when they were provided to the claimant in 2024 as part of a data protection subject access request. Mr Baldwin was the claimant’s team leader at the time. It was his evidence that he recalled the claimant’s social media being mentioned by Mr Hussain in a call about something else, but it was not raised as a formal issue. It was his evidence that there was no formal complaint raised with him. Mr Baldwin’s statement said that, as with everything, if an accusation is made then evidence is required, and no evidence was provided and no complaint was made.

[24]We were provided with an autism spectrum screening assessment report for the claimant undertaken by Lexxic dated 5 February 2021 (R171). The claimant had obtained the report because the respondent had facilitated it.

[25]Under the heading “Social interaction and Communication” the report said the following: “Mark stated that he has difficulties making small talk and that he unsure what to talk about. He explained that he is not very communicative. Mark reported that he has difficulties meeting and working with new people, for example, he said others have said he is ‘unapproachable’ in the past. He explained that he has difficulties building relationships with colleagues at work and said customers have said he does not show enough empathy. Mark stated that these difficulties have been salient in adulthood”

[26]On memory it said that: “Mark had explained that he has always had difficulties with his short-term memory, such as with remembering dates, verbal instructions, appointments and people’s names. He informed that he believes his memory has worsened with age and has been impacted by his epilepsy”

[27]Amongst other things, the report recorded that the claimant: had difficulties in understanding social situations and other people’s thoughts and feelings; had a tendency to think of issues as being black and white, rather than considering multiple perspectives in a flexible way; and he had a (R179) “Frequent tendency to say things without considering the emotional impact on the listener (faux pas)”.

[28]The report concluded that, in the opinion of the writers, the claimant showed tendencies associated with Autism Spectrum Conditions. The claimant was given an autism spectrum quotient score of 36 (out of 50, where 80% of AS patients scored 32 or more). He was given an empathy quotient score of 17 (out of 80, where 80% of AS patients scored 30 or less).

[29]On 4 November 2022 the claimant had a workplace needs assessment undertaken. Within that document (R190) it was recorded for long-term memory that the claimant was able to retain information for long periods of time and recall it accurately once it had been fully understood and absorbed. However, for short term or working memory, it said that could be much more challenging and that distractions and interruptions in a task could mean that there was an increased risk of not remembering where he was up to or of losing information/thoughts and it was said that could have a big impact on him trying to complete follow-up tasks between incoming calls. The report made various recommendations including about dealing with noises and distractions, written information, and stress and epilepsy management. It did not make any recommendations about the conduct of an investigation or disciplinary meeting, albeit as the claimant highlighted it was not written with that in mind.

[30]In August 2023 the claimant attended the respondent’s code of conduct training. The claimant also accepted that he had attended diversity and inclusion training in approximately the last six months of his employment.

[31]This case concerned a number of tweets which the claimant had posted on Twitter, re-posted, or commented upon. There were in excess of forty different tweets relied upon and more included in the bundle. We will not endeavour to address all the tweets individually, but we have recorded the evidence about some tweets where we have decided it is necessary to do so. We will not detail in this Judgment what Twitter is or how it is used, as that is something we consider to be widely known and it appeared to be fully understood by the parties in the hearing. We will refer to tweets and Twitter as that was the terminology used in the hearing, despite that fact that Twitter has changed its name to X. There is one aspect of Twitter which it is important to state in the facts, in which it differs from other social media platforms such as Facebook (at least as it/they are commonly used). A post, tweet, re-tweet or comment on Twitter (we will refer to them all collectively as tweets in the interest of brevity) is visible to all Twitter-users irrespective of who they are or whether the specific user knows them or wants them to see what they have tweeted/posted. The claimant, in his evidence, emphasised the limited number of followers that he had who were likely to view his posts. Whilst that may have been the case, a tweet can be viewed by anyone, it might be observed by accident, and it could be found and read by someone seeking out the Twitter-user’s tweets. That could be the case for a customer who knew the user’s name, and it was the case (as we will explain) for a Twitter-user’s colleague. In what the claimant said when interviewed, he appeared surprised that the particular colleague was on Twitter and that they had viewed his tweets. The claimant emphasised in his evidence that he considered Twitter to be a virtual speakerscorner, but we would observe that it appeared to be one in which he appeared to have considered he would only be heard by like-minded people or those who wished to debate, and not that it was a platform where what he tweeted could be viewed by customers, colleagues and others.

[32]On 17 November 2023 a colleague of the claimant’s, Ms M, raised with the respondent a number of Twitter posts which she had seen which she believed had been posted by the claimant. It was her account (as part of the internal procedures) that she had decided to look at some of her colleagues on Twitter during a break and had found what the claimant had posted. She had been upset by what she had seen. Ms M is a practising Muslim. She spoke to Mr Hussain, who was the team leader.

[33]Ms M sent an email to Mr Hussain at 14.36 on 17 November (R196). Included in what she said was the following: “I was recently on Twitter and came across some shocking and hurtful tweets that Mark Chaloner has posted and retweeted … I was deeply hurt by the comments. Not only does it show disrespect towards Muslims and Islam but also people from different ethnicities, backgrounds and gender … I work with Mark on a daily basis so the level of disrespect he’s openly publicised on his social media towards others now makes it a very uncomfortable environment to work in”

[34]In the bundle was also an email from Ms M’s personal email to her email at the respondent at 16.00 on 17 November with the subject matter Tweets, but no text.

[35]An email from Ms M to Mr Hussain of 24 November 2023 (R262) said that she had been shocked to see what she had found. She said (amongst other things): “I was so hurt by the comments and the retweets … This is someone I work with on a daily basis and I’ve travelled with him to and from work so I was shocked at how he really feels towards my religion and beliefs. Not only did he have negative/insulting/racists comments towards my religion but also different people from different ethnic backgrounds. He had a lot to say about immigrants and people of different genders”

[36]In the bundle was a telephone note logged by Ms Brannigan of a meeting with Mr Hussain and Mr Tomlinson (Mr Hussain’s manager) on 21 November (C335). It was recorded that Mr Hussain had informed Ms Brannigan about the 2020 tweets and that they had been reported to Mr Baldwin at the time, but it had never gone any further (the note said that it had been Mr Baldwin’s decision). The 2020 emails were subsequently emailed to Ms Brannigan, but she did nothing with them and did not include them in the 2023 investigation.

[37]Ms Coyne was asked to undertake an investigation. She reviewed the claimant’s Twitter account and took screenshots of some posts. She included those tweets in the pack which was subsequently sent to the claimant. She did not limit herself to the tweets identified by Ms M nor did she specifically identify which were which. There was no dispute that the posts she collated were made by the claimant.

[38]Ms Coyne met with Ms M on 27 November (R263).

[39]On 30 November the claimant was sent an invite to an informal discussion meeting (C371). He was sent it at 11.58. The meeting was arranged for 12.15 to 13.15. The claimant had some difficulty in finding the room where the meeting was to be held. He was not provided with advance notice about the subject matter of the meeting, save that the invite told him it was a fact-finding meeting. It was Ms Brannigan’s evidence that it was the standard practice of the respondent not to provide advance notice of a fact-finding meeting in order to preserve the evidence and capture a colleague’s initial response to allegations. It was the claimant’s evidence that when he saw the printed-out tweets at the start of the meeting, he thought that he might be dismissed as he knew of others who had been dismissed (at other organisations) for what they had included on their social media.

[40]The meeting was noted by another Team Leader (R280). We were provided with the notes. The claimant disputed that what was said in the notes was accurate. In an initial exchange, after he was asked whether he could understand how the tweets could be considered as offensive, the claimant said (the following statements had questions in between them): “No, what has that got to do with the price of fish. I am sorry but if someone is offended, so what … So, I cannot speak my mind?... I am sorry they are offended but it is my views and opinions, and I don’t see the issue. DLG don’t police my personal life and if it offends colleagues, this view is my personal thoughts, and I won’t restrict this. I will defend whatever I posted. Whilst I cannot go through every tweet, I stand by what I say on Twitter 98/99% of what I posted”

[41]Shortly afterwards, when discussing a particular tweet, the claimant said, “I could not comment on how someone would feel about it but I don’t care if someone is unhappy”.

[42]Later in the meeting, when discussing a different tweet, the claimant said: “Of course, they could be offended by this. The company has no right to what I say and do outside work. I have the right to say and use words and opinions that does not have anything to do with work. My personal views are personal. I treat everyone respectfully”

[43]At the end of the meeting, the notes recorded that Ms Coyne said the following (R283): “I appreciate that this has been landed on you and it was a conscious decision to invite you to a meeting with very little notice. The reason is that we felt it would cause less stress as had we given 1 hour, 2 hours, would you have been sat there worrying about the matter?”

[44]The claimant replied that who knows if more notice could have been better, it could have been. Ms Coyne responded that, if they had called it wrong, she apologised, but restated “it was for the purpose of causing the least amount of stress”.

[45]The claimant explained that his responses at the start of the meeting were because he was in defence mode and because he found himself being ambushed and asked questions by a senior manager. We found that he gave full and unfiltered answers to the questions asked in the meeting. The claimant was upset following the meeting, and it was agreed that he could go home.

[46]At 9 am on 1 December the claimant met with Ms Coyne by video (R285). The claimant was suspended. He was told that whilst on suspension he must not discuss “this” with anybody not involved in the case. The suspension was confirmed in writing on the same date by Ms Coyne (R329). The claimant was told to telephone Ms Coyne each day to confirm availability. To maintain confidentiality, the claimant was told not to discuss any aspect of the case or have any contact without prior consent with any colleagues. The claimant was told he would no longer have access to the respondent’s systems. The letter went on to say: “If you are asked to attend a formal disciplinary meeting and require a colleague to accompany you, you will be able to discuss matters with them prior to the meeting and you should speak to your people manager/leader if you need to make arrangements to meet on work premises”

[47]Ms Coyne met with Mr Hussain on 1 December (R321). He said that Ms M had been utterly shocked when she had seen the claimant’s tweets, had been panicked and upset, could not believe it, and they had affected her so that she wanted Mr Hussain to take it further. Mr Hussain described himself as sleeping less since the issue had been raised and feeling saddened and sad for the claimant. He described his personal experience of racism in the past. He said he felt he could not trust the claimant anymore, had felt anxious when in the office with him, and said it would be tricky to work with him again. He said he had a strong personality, but this had shaken him and worried him.

[48]On 5 December, the claimant emailed Ms Coyne in response to the meeting minutes from 30 November meeting (R354). He expressed gratitude for the notes and said: “I am surprised how much of the conversation has been accurately recorded … in the main, it is a pretty fair representation of the conversation overall, and I can see I have come across as very defensive”

[49]In the 5 December email, the claimant listed some elements of the notes where he said he was not in entire agreement. Those elements did not include the passages which he now said were not complete or accurate. He said that he found the conversation distressing at short notice and said he had been unprepared and felt the notes did not show the context of why it was he was reacting in such a way. In an email of 7 December, the claimant asked Ms Coyne to accept the email as agreement to the minutes.

[50]On 8 December the claimant was sent a letter by Ms Lyndsey Tynkler inviting the claimant to a disciplinary hearing on 14 December (R378). The allegations were set out, and the enclosed documents were listed (copies of the tweets were enclosed). It was said that, during the meeting, the claimant would be given the opportunity to make any points which he wished to be taken into account. The allegations were: “Bullying or harassment (including via social media) Other conduct, both in and out of work, considered seriously harmful to the company, its property, people, customers, or members of the public, or creating a security, health, or safety hazard”

[51]At the end of the letter, the following was said: “As this meeting forms part of the formal disciplinary process, you have the right to be accompanied by a union representative or work colleague. If you wish to be accompanied, please establish contact with them so that they have notice of the meeting. It is important that if you are being accompanied you let me know prior to the meeting. Additionally, it is your responsibility to organise and communicate the date and time of this meeting … Please contact me by Tuesday 12th December 2023 on [email address] to confirm that you will be able to attend on the date and time stated. Can you also let me know if I need to be aware of any reasonable adjustments for this meeting”

[52]Ms Tynkler was a commercial claims manager (her name is spelt differently in different documents, but we have adopted this spelling in the Judgment). The claimant contended that she was not appropriate and impartial because he had identified an email upon which both her and his manager’s manager had been recipients.

[53]In the bundle of documents was an email from Ms Brannigan to the notetaker who it had been arranged would attend the disciplinary meeting (copied to Ms Tynkler) which attached a template for the meeting. The template included the questions it was intended to be asked, albeit Ms Brannigan stated in the email that they may change through the course of the meeting. It was the claimant’s evidence that the questions asked in the meeting followed those questions (it was the claimant’s contention that Ms Tynkler did not deviate from them at all). Ms Brannigan’s evidence was that the questions were prepared and discussed with Ms Tynkler. The claimant highlighted the absence of any document which evidenced such a discussion.

[54]The claimant was under the impression that his computer access with the respondent would be re-enabled so that he could attend the disciplinary hearing on 14 December by Teams. It was not and it remained suspended. We were provided with some emails exchanged with the claimant shortly before the hearing was due to start (at 10.30 am). At 10.17 am Ms Brannigan told the claimant that his work access was suspended, and he would need to access Teams using his own personal device. He was sent a link to some information about using Teams on a personal device at 10.20. At 10.27 the claimant emailed Ms Brannigan and Ms Tynkler and said that he thought he had sorted it, but they would have to wait and see (and he sent a fingers-crossed emoji) (R394). The meeting began on time at 10.30. It adjourned at 10.35 so the claimant could read the resolving issues at work policy and restarted at 10.39. The claimant did not request a break, and he did not inform the respondent’s attendees that he needed a delayed start as a result of his issues in joining.

[55]The disciplinary meeting on 14 December 2023 was heard by Ms Tynkler and attended by Ms Brannigan and the claimant. Notes of the disciplinary meeting were taken by a note-taker (who also attended) and were provided (R444). The hearing was not recorded, it being Ms Brannigan’s evidence that the respondent does not record such hearings in accordance with the advice received from their own risk team. The notes were relatively detailed.

[56]At the very start of the meeting, Ms Tynkler said that the claimant could ask at any time if he needed a drink or a break.

[57]In the meeting, the claimant was asked if he had considered that his tweets (being public) could be viewed by a public audience, and he said yes, he had. He was asked whether he considered that his account could be viewed by colleagues, he said no, and when asked why, said it had not occurred to him. He referred to his epilepsy and autism and said that he did not think people would see and, whilst it was easy to see with hindsight, it had not occurred to him.

[58]The claimant went on to say the following when asked about his tweets generally (R447): “I have seen twitter as a digital platform for free speech, a digital ‘speakers’ corner.’ What I was doing was expressing my beliefs but in a way that has now been brought to my attention by someone close to me, who has said that they could be insulting, but I didn’t see that. That’s the reason I have my name on the account. I’ve not hidden. I’ve been honest. I have been blunt to the point of being insulting but I didn’t know that until it has been pointed out to me. It hasn’t been my intention for the posts to be insulting and I didn’t see it that way … It’s been explained by my wife because I had to talk to someone. I don’t have friends outside of work. I’m not going to bang on about autism, but I’m not a mainstream person. I trust what my wife says though and take on board that what has been posted could be offensive. It wasn’t until it was pointed out though, I didn’t see it as offensive”

[59]The claimant was asked about four specific tweets and gave detailed responses. In the meeting, the claimant was specifically asked about sharing those views with others and on other platforms. The claimant referred to members of his family who did not share his views and who he did not speak to about them. He referred to Facebook and Instagram, where he had not posted similar content. He said that he tried to act properly in the workplace and did not talk about these things in work because they were contentious. In one passage he said (R454): “I feel because of what has happened my views and beliefs have been brought into the workplace where they don’t belong. When I am making my coffee why would this be brought up? …Why open a can of worms and bring it up in the workplace, that we don’t know about. I have been naïve going on Twitter a public platform thinking it was a place of free speech and you can write what you want. As long as it’s not illegal or criminal. There are much stronger views than my own. I didn’t understand that they were offensive. I won’t say them again. I’ve made my account private, and I will come off twitter. I am on Facebook and Instagram and post pictures of my family and nature”

[60]Shortly afterwards, the claimant explained that there were no photos of his family on Twitter and said “I found Twitter more like a speaker’s corner. A contentious platform for discussions”.

[61]In the Tribunal hearing, the claimant was asked in detail about the distinctions which he drew and gave very detailed evidence about understanding what content was appropriate for which social media platform and not wanting to discuss things such as immigration with certain members of his family when he attended a barbecue because that was not what he was attending the barbecue for. The claimant also explained in the Tribunal hearing that each time he posted, he considered what a particular (named) Twitter-user would think of what he was posting and took his perception of their view into account when doing so. We found that, in the answers which he gave, the claimant demonstrated a thorough understanding of differentiating between different social contexts and media when identifying what it was appropriate to say and raise to avoid contention or offence. It was very clear that the claimant’s decision to post the matters which he did on Twitter reflected his view of the platform as being a place for free speech or a speaker’s corner. The claimant did not demonstrate an inability to curtail his expressed opinions when he needed to do so, as he demonstrated that he had done so in family circumstances, for work, and on other social media platforms.

[62]During the meeting, the claimant commented on the fact that Ms M was pregnant, and he said he did not know why she would go on Twitter (without explaining why that was the case). He was recorded as having said “She’s probably felt uncomfortable”.

[63]A break was taken between 11.15 and 11.30. The notes recorded both that the claimant became upset shortly before the break was taken and that someone in the claimant’s home became visible at that point. It was the evidence of Mrs Chaloner that she had come into the room and passed the claimant a note suggesting that he take a break. She explained that with reference to her years of experience in HR. Both the claimant and Mrs Chaloner’s evidence was that she was not otherwise present during the meeting. Ms Brannigan’s evidence was that she believed she had been. We accepted the claimant’s and Mrs Chaloner’s evidence on that point.

[64]Slightly later in the meeting (R454) the claimant was recorded as being asked if he was ok to carry on? The claimant said yes.

[65]During the disciplinary meeting, the claimant referred to his autism. He said he did so on five occasions, albeit it appeared to have been more. It was Ms Brannigan’s evidence that neither herself nor Ms Tynkler knew of the claimant’s autism until he raised it in the hearing. It was her evidence, that whilst the autism report would have been on the respondent’s HR system, it was not standard practice for such reports to be reviewed prior to a disciplinary hearing. No adjustments were made for the hearing.

[66]At one point (R455) the claimant said, “Autism doesn’t change my views and beliefs, but the way I have been expressing them, I haven’t understood”. Later in the meeting (R456), the claimant was asked about posting on a public domain which people at work might have read and said “I understand that, but you have to understand, that I didn’t realise that. It hasn’t occurred to me until you said that other people at work might have seen them. Call me naïve, but I have autism and this needs to be taken into consideration”.

[67]Just before the adjournment, Ms Tynkler was recorded as having said the following (R457): “I will keep in touch throughout the day by email. Any further comments, you have my email so pop it over to me. Thank you for your time and we will speak later today”

[68]The hearing adjourned from 12.14 to 15.45. During the adjournment, whilst a decision was being made, Ms Brannigan accessed the claimant’s autism report on the respondent’s system and Ms Tynkler read it. The disciplinary hearing did not reconvene at that point to discuss the report or to provide the claimant an opportunity to comment upon it.

[69]As we have recorded, at the end of the meeting before the adjournment, Ms Tynkler had informed the claimant that if he had any further comments, he could pop them over in an email. At 1.21 pm the claimant did email Ms Tynkler with two points which he wished to add (R415) (including that he had not been formally diagnosed by his GP with autism, but that he had been to the GP over his memory issues and had had scans as a result).

[70]After the meeting reconvened, Ms Tynkler informed the claimant of her decision (C504). Her decision was that the claimant should be summarily dismissed. Amongst other things, Ms Tynkler said the following: “Today you have asked me to consider that you had a screening assessment through work a couple of years ago and that this identified tendencies associated with autism, and because of this you feel you did not understand the impact the re-tweets and comments on your Twitter/X would have on others. You advised that you only realised the offence your posts would cause when this was pointed out to you by your wife. You however shared with us today that you have other social media accounts … When you were asked if you have posted the same material on those accounts, you explained you hadn’t and nor would you. You also explained that you would not share your beliefs in the workplace with colleagues due to some being contentious. You confirmed that you felt Twitter/X was a digital platform for free speech. I feel this is an acknowledgement of you understanding the difference between these social media platforms and the purpose of them. I also feel that this displays a level of understanding of the offence these comments could cause … Your comments aren’t a one-off event, they propose a series of offensive social media posts”

[71]Before the disciplinary decision letter was sent to the claimant, a draft of it was sent to Caroline Ferguson, an Employee Relations Consultant. She made a few changes and suggestions to it (C509). At least one of the things which she raised resulted in the letter being amended. Ms Brannigan confirmed in evidence that she had spoken to Ms Ferguson in her role as Ms Brannigan’s mentor. The claimant would not have been aware of Ms Ferguson’s involvement at the time. Ms Ferguson subsequently provided HR support to the appeal.

[72]On 19 December an email was sent by Mr Hussain to various recipients containing a team announcement about the claimant (R427). It said the claimant would not be returning to the business. He was thanked for his endeavours. It referred to his caseload being re-assigned. The claimant did not see the email but was contacted by Mr Lee about having left. The claimant’s perception was that once the email had been sent, he could not return to employment with the respondent (he referred to his pride).

[73]The decision letter was dated 21 December (R464). We will not repeat all that was said in it in this Judgment. In relation to what the claimant had raised regarding autism, Ms Tynkler detailed what the claimant had said in the disciplinary hearing about what he would say in the workplace and about other social media platforms and said: “I believe this shows an understanding of what is appropriate to discuss and share in the workplace, and acknowledging that your views were contentious, suggests that you had an understanding of the impact they may have caused. You also stated that you felt that because of what had happened, your views and beliefs had been brought into the workplace where they don’t belong. Again, I believe this shows an understanding of what is appropriate to discuss and share in the workplace.”

[74]On sanction, the letter said that the claimant’s length of service and previous good conduct had been taken into account, and went on to say (R466): “However, as a result of the seriousness of the allegations, I must consider the impact and the offence that has been caused to your colleagues. As you know and acknowledged in our meeting, Diversity and Inclusion is a key value where our workplace is truly representative of our customers and society. Where we value and respect diverse perspectives, ideas, and opinions. And where everyone feels free to be themselves and succeed in their careers. Your comments have been construed internally as offensive and therefore could be seriously harmful to the company, its property, customers and/or members of the public, or create a security incident. I concluded that the appropriate sanction in your case was dismissal”

[75]On 31 December (R471) the claimant emailed Ms Tynkler and said that with only a couple of slight errors not worth pointing out, he agreed that the notes were reflective of the conversation. In the Tribunal hearing, his evidence differed from what was said in the email as he said there were errors in the notes. The one he identified was that the notes said he had been upset, when he said he had not been. The claimant also emphasised his memory issues and the particularly difficult context of a meeting when he could be dismissed, which he said meant he would not have been able to remember any errors in the notes. He contrasted the position with the appeal meeting notes, when Mrs Chaloner had remembered things omitted, which the claimant had not himself recalled.

[76]On 4 January 2024 the claimant appealed against his dismissal. The claimant set out three numbered points of appeal, which were in summary that the decision had failed to take account of his autism diagnosis, that it was procedurally unfair and that it was discriminatory on the basis of his protected beliefs. The claimant set out more detail within his appeal document (R475).

[77]It was clear from the claimant’s evidence at the Tribunal hearing that, when he appealed, he had no interest in being reinstated. He appealed because he believed he needed to do so to pursue his Tribunal claim. The claimant would not have returned to working for the respondent even had he been successful in his appeal.

[78]Mr Stevens was the person responsible for hearing the claimant’s appeal. On 15 January a report was prepared at Mr Stevens request (R518). The report recorded that the CFIU had been tasked with carrying out a review of the social media activity linked to the claimant. It said that the account which the claimant had used at the time of his dismissal had its security settings set to private. Another Twitter account was identified which had the same name as the claimant (with an added number). The report suggested that the other account may be run by the claimant and a number of tweets from it were provided to Mr Stevens. It was Mr Stevens’ evidence that, because the case involved allegations related to online posts, he felt it was appropriate to request further information. He had doubts about whether the content provided in the report had been posted by the claimant before meeting with him. During the time when Mr Stevens was conducting the appeal meeting with the claimant, the other account posted and therefore Mr Stevens came to the clear conclusion that it was not the claimant’s account, and he therefore discounted those tweets from his decision-making and only relied upon the evidence which was clearly attributed to the claimant. We accepted Mr Stevens’ evidence that he did so.

[79]On 23 January Mr Stevens emailed the claimant about whether the appeal meeting should be in-person or face-to-face. The claimant replied that he would be unable to make a face-to-face meeting and would prefer a Teams meeting. In his evidence at the Tribunal hearing, he explained that he did not want to travel into Manchester. Mr Stevens responded (R540) asking whether the claimant needed predetermined break structures and addressing other potential adjustments. The claimant replied, regarding the breaks, that he was happy to play it by ear (whilst saying he assumed the full two hours would not be required). The claimant asked to be accompanied at the appeal by a member of the Free Speech Union. That request was refused, but the claimant was allowed to be accompanied by Mrs Chaloner.

[80]On 29 January 2024 Mr Stevens spoke to Ms Tynkler and notes were provided (C597). In that meeting, Ms Tynkler confirmed that HR had told her about epilepsy and memory loss, but it was only when the claimant raised autism in the disciplinary meeting that she became aware of his autism. When Ms Tynkler was asked about memory loss, she said she had not got hung up on it. Ms Tynkler erroneously told Mr Stevens that the claimant had provided her a copy of his autism assessment. That error was repeated by Mr Stevens in his decision letter. Ms Tynkler said, of the report, that she did not review it line by line, but she did look at it.

[81]Mr Stevens also contacted Mr Hussain. He did so to establish whether the claimant could foreseeably have been contacted by customers, whether they could foreseeably have been upset or taken offence against any of his decisions, and whether his name could have been visible to customers. He concluded that the claimant had regular contact with customers, there would be complaints and customers would be unhappy with his decisions, and it was foreseeable that they could ask for the claimant’s full name and seek him out on social media (albeit that the claimant’s email signature did not include a surname).

[82]In preparing for the appeal meeting, Mr Stevens also sought information about autism. He read the claimant’s workplace needs assessment. He sought advice from the business disability forum (R510), and he spoke to members of the respondent’s neurodiversity network, including an employee with autism.

[83]Mr Stevens also spoke to Ms Ferguson in advance of the hearing, as HR support. It was his evidence that the purpose of the call was to ensure that he had all the documents he needed and it was a catch-up call. It was not to receive any specific direction or steer on the case. We asked Mr Stevens about the role of Ms Ferguson in the appeal. He reiterated what was said in his statement and said that he could not recall any discussion with her as part of decisioning. We accepted Mr Stevens’ evidence.

[84]The appeal hearing took place on 1 February 2024. It was noted (R565). The claimant attended by Ms Teams and was allowed to be accompanied by Mrs Chaloner. Both the claimant and Mrs Chaloner contributed significantly during the meeting. It was a relatively lengthy meeting. Breaks were taken. Near the start of the meeting the claimant was recorded as advising that he did not want to go over the specific tweets. Later in the meeting (R575) the claimant was recorded as saying he did not want to go to the tweets as there were a lot of them and he said they were his protected beliefs. Mr Stevens asked the claimant about the impact which his autism had upon his social media activity.

[85]Following the meeting, emails were exchanged and the claimant was provided with the notes of the meeting. The claimant responded with his comments on the notes. The notes were amended where the claimant’s comments were agreed, but not in all the ways the claimant proposed. An updated set of the notes was provided.

[86]It was the claimant’s evidence that he had stopped tweeting at the time of the appeal hearing, as he told Mr Stevens. However, approximately two weeks after the appeal hearing, he re-commenced tweeting. In evidence he emphasised the time he had waited for an appeal decision and questioned how long it was that the respondent should have control over what he did. He tweeted using the same address, but he changed the name in which he tweeted.

[87]On 21 February, the person who had previously been asked to investigate the claimant’s tweets, emailed Mr Stevens to provide him some tweets which the claimant had posted following the appeal meeting.

[88]The appeal outcome was sent to the claimant on 1 March (R663) dated 29 February (R664). The letter set out the grounds upon which the claimant had appealed and provided a lengthy response to each point. The first issue was the claimant’s allegation that the decision was discriminatory on the grounds of his own protected beliefs (not being a contention he pursued in the Tribunal hearing). In that part of his decision letter, Mr Stevens provided a table which detailed six of the tweets and set out for each why Mr Stevens said they were discriminatory and that he did not believe they detailed what could be described as a protected belief. In his evidence, Mr Stevens described that as a snapshot which he felt would help the claimant to understand the reason for the decision.

[89]The second appeal issue was the claimant’s contention that the disciplinary had failed to take account of his autism diagnosis and therefore had been procedurally unfair. As part of his conclusions on that point, Mr Stevens said the following (R667): “In respect of the investigation meeting and following enquiries with Jo Coyne, I have concluded that she wasn’t aware of your health condition and therefore subsequently did not consider any reasonable health related adjustments. However, I was also mindful that the purpose of the original investigation meeting was to ascertain whether the social media profile identified belonged to you and that there was sufficient rationale based on the material seen on this profile to proceed with the formal process in line with DLG’s Resolving Issues at Work Policy. … I believe that providing extended notice of a meeting in some circumstances, could allow those responding to an allegation time to construct untruths, intimidate colleagues, have a negative impact on any colleagues impacted by the alleged misconduct and could potentially negatively impact the health of the accused individual … … I therefore found that in the circumstances, the notice period was reasonable, but there could have been greater consideration to how the meeting was structured and either clearer instructions on where the meeting was being held or you being accompanied from your desk to the meeting room … In respect of the format of the disciplinary hearing and following an investigation meeting with Lindsay Tinkler, I have concluded that she wasn’t initially aware of your autism health condition and therefore subsequently did not consider any reasonable health related adjustments based on this condition to the format of that hearing. Lyndsey has confirmed she was aware of your short-term memory difficulties. From the minutes of the disciplinary meeting, I can see that you provided Lyndsey with a copy of the Autism Spectrum Conditions Screening Report from 2021 and she had this to consider prior to announcing her decision to dismiss from your employment with DLG. … I have considered whether there had been sufficient time to fully understand your health condition and the impact this may have had when considering the social media activity seen. After reviewing the disciplinary outcome letter, I do not believe enough time was taken to fully understand your health condition and I would have expected the original hearer to have delayed the outcome, having undertaken enquiries, before coming to a decision to dismiss. Therefore, I partially uphold this part of your appeal”

[90]Of that second ground, in his evidence, Mr Stevens said that he partially upheld the appeal ground, recognising that procedural fairness had been compromised at the disciplinary stage.

[91]The third ground of appeal addressed in the letter was that the original decision had not considered the claimant’s autism and that had materially affected the outcome of the decision made. Mr Stevens noted some key aspects from the claimant’s autism report. He noted that the claimant had been able to distinguish between available social media platforms. He noted the claimant’s memory issues in the context of reading and retaining information from the respondent’s policies. He noted the claimant’s workplace performance and his recent code of conduct training. He decided not to uphold the claimant’s appeal on that point.

[92]In the final page of his letter, Mr Stevens set out his decision. He reassured the claimant that he had carried out his own investigation. He said the following: “In consideration of whether your dismissal remains an appropriate outcome, as part of my investigation, I have arranged for your social media activity on X/Twitter platform to be monitored. This is an important consideration because having reviewed the documentation available from the original disciplinary hearing, you said you didn’t see your posts as being insulting or offensive, until this had been pointed out to you by your wife. You also confirmed you would delete the account from your phone and continue to treat people with respect. During the appeal meeting you confirmed that you would need to learn how to Tweet again, maybe to protect the posts and curtail your behaviour, given the opportunity to reflect. Whilst I note your X/Twitter account was made private for a period, as you will see from the table provided above, there are two additional Tweets posted on the … profile account, which following advice, I have addressed as being discriminatory in nature. These are of relevance because they were posted after the time, where it had been clearly explained to you that the content of your posts were offensive and that they breached DLG policies, which were made available for you to read on 8th December 2023. As your profile … was used for the subsequent postings, these were likely to be visible by colleagues, and once seen, likely to cause additional upset. Therefore, the potential option to reinstate you into role, is made very difficult as your continuing activity supports that even with the knowledge that your posts aren’t acceptable, you have continued to post discriminatory content. From the social media activity posted since your appeal hearing, it is reasonable for me to assume you will continue to post discriminatory content on an open profile, which will be available to view by your colleagues … In conclusion, based on my own investigation, including an assessment of your rights of belief, freedom of expression, along with an understanding of your health condition and how this is likely to have impacted your social media postings and/or your understanding of DLG’s policies, I believe the original dismissal outcome is reasonable and therefore will stand”

[93]It was Mr Steven’s evidence that he made sure to reassess the case with full consideration of the claimant’s autism, and his overall decision was that the decision to dismiss should be upheld even having reassessed the case. In his witness statement, he said that he concluded that he may not have decided to dismiss the claimant at disciplinary stage, as he noted that the claimant said he did not realise the posts could have caused offence and his lack of awareness may have been linked to his autism. However, Mr Stevens found that dismissal was ultimately the right decision because the claimant had continued to post offensive tweets after he had been made aware of the offence caused and any contention that the claimant’s autism had impacted his judgement was discounted at that point. In his statement he also emphasised the duty of care the respondent had to colleagues, the significant impact on Ms M, the reputational risk to the organisation, and the need to maintain a safe and inclusive environment for all employees (which he said was a key factor in his decision).

[94]During the claimant’s cross-examination of Mr Stevens, Mr Stevens was taken to two of the tweets, but not any of the others. The two tweets were two of the six referred to in his decision letter, being two which had been considered at the disciplinary hearing.

[95]One tweet, of 7 November 2023 (C669), detailed and showed a black thirteen-year-old in Minnesota who had made money from selling sodas and crisps, upon which the claimant had commented “Better than selling drugs eh … he’s still alive”. In his decision letter (C663) Mr Stevens had recorded that he considered it to be discriminatory because it linked a black teenager with selling drugs, which was unjust prejudicial treatment on the grounds of ethnicity. The claimant challenged Mr Stevens on what he had said and highlighted the alternative explanation the claimant had given in the disciplinary hearing (relating to county lines), but Mr Stevens maintained that he was correct and he felt that his view was consistent with what had been considered by the person who made the complaint and the disciplinary decision-maker. We found that the claimant’s tweet perpetuated a discriminatory stereotype. It contrasted with the positive thread below the tweet, when he interjected something new into the thread. We found that, had the person in the picture been white, the claimant would not have tweeted what he did.

[96]The second tweet was one the claimant had retweeted from 29 October 2023 (C670), in which the original tweeter had said “Most people in the UK would prefer it if London wasn’t occupied by Islamists, but we wouldn’t slaughter babies over it. It’s a shame when these people come over here for ‘a better life’, that they don’t leave their moral turpitude back in the self-made shithole they escaped from”. Mr Stevens had recorded that he considered the tweet to have been unjust prejudicial treatment on the grounds of religion and country of origin. The claimant challenged the explanation and put forward his view of the analogy being drawn, explaining his view that the use of the word Islamists did not refer to Muslims but to extremists. Mr Stevens did not agree with the claimant’s analogy, highlighting the use of the emotive word “occupied” and the reference to the place where they had come from used in the post. Mr Stevens’ view was that the word Islamists referred to people of Islamic faith and the suggestion being made was that they were slaughtering babies. The explanation given by the claimant about the tweet in the Tribunal hearing was not one he provided during the appeal hearing.

[97]When he was cross-examined about one of the other tweets included in the table (dated 30 October 2023), the claimant was keen to emphasise that his retweet should be considered with the entire post and not part of it, as appeared in the printed pages in the respondent’s bundle. The repost was of a tweet from Lawrence Fox in which he responded to a Labour Party tweet about Islamophobia awareness month. He asked whether we could have a “19,000 little girls as young as 8 gangraped each year by Islamic grooming gangs awareness month”? We ensured that we also considered the full post (C386). The full tweet expanded upon what was said but did not materially change whether the element included in the original document could or should be viewed as offensive. In evidence, the claimant accepted that he would not retweet something which he disagreed with but also emphasised that when he retweeted something it did not mean that he agreed with one hundred percent of what was said in the tweet. We found that the tweet (which the claimant had retweeted), spoke for itself.

[98]The fourth tweet which was included in Mr Stevens’ table, which had also been considered at the disciplinary hearing, was a tweet in which the claimant had responded to an article from The Standard about a BBC presenter who had apparently said that his overwhelmingly white workplace affected his mental health. The claimant had retweeted a tweet of Andrew Lawrence and added his own words when doing so: “Well .. you know what to do Nihal .. [waving hand emoji]”. The claimant was keen to emphasise that we should consider his tweet based on the copy which he had provided, as that included the comments of some others below it (C672). At least one of those comments said that the person referred to could leave the workplace. The claimant’s explanation was that was also what he meant. We did not believe the claimant’s explanation. As was put to him by the respondent’s representative and as we believed was clear from the use of the waving hand emoji in the post, we found that what was being suggested by the post was that the person left the country and not just his job (a hand waving goodbye making no sense in the context of suggesting he left his job).

[99]The table of tweets included in Mr Stevens’ letter included two tweets posted after the appeal hearing had taken place. The first of those (R609) was described in the table as being a scene depicting a warzone, with individual of middle eastern heritage. The post was the only one in which the claimant had attached his own picture when posting, rather than only retweeting or commenting upon what someone else had said (the claimant’s evidence was that he would have copied it from another tweet or post as he did not create such images). That was recorded as having been posted on 10 February 2024. The picture added by the claimant showed somebody identifiably Palestinian saying (in a speech bubble added to the picture) “After we raped their women and killed their children, they attacked us!”. We found that the claimant had clearly set out to post something offensive to some by using the picture and words used. We could not see any other view of the claimant’s tweet other than of it being racist in nature.

[100]The sixth tweet in the table (C674) was dated 17 February 2024. The claimant had retweeted a tweet from L’Hypocrite showing an army poster saying that there was no place for harassment or discrimination in the army. The claimant had commented on the sex and race of those in the photograph. He posted “”That’ll be the day when a woman sexually harasses a black bloke” – Mrs Clarkus”. It was the claimant who had posted the comment and retweet. In evidence, he explained it as being something which Mrs Chaloner had said which he had found humorous. When cross-examined about it, the claimant could not see that the reference which he made to a black man in the post meant that it had a racial element or that it stereotyped black men. We found that it did.

[101]We asked Mr Stevens about his reliance upon two tweets which post-dated the appeal hearing. He said that he had, possibly in hindsight, thought about reconvening the hearing. He said that he had come to the conclusion that it would not make any difference.

[102]In his witness statement, Mr Stevens also gave evidence about recording and providing a transcript of the disciplinary meeting (paragraph 60.5). It was his evidence that Teams was in its infancy within the respondent at the time of the meeting. The option for a transcript had not been enabled. He also said that, whilst it is now enabled, transcription is not entirely accurate, and they still require a minute taker to form minutes. He said he did not agree that it would have been reasonable to record the meeting or provide a transcript.

[103]On 27 August 2024 the claimant responded to a data protection subject access request response, by highlighting the abusive word used about him in the emails from 2020. An HR Services Consultant responded on 24 September (C675) saying that her role was simply to complete the subject access request, and she said there was nothing further to add. It was not in dispute that no action was taken against Mr Jazwinski as a result. It was Ms Brannigan’s evidence that, by the date of the Tribunal hearing, he had left the respondent’s employment. The respondent confirmed that his employment ended on 20 February 2025. The claimant, unsurprisingly, contrasted the lack of any action taken by the respondent against an employee using the “c” word to describe a colleague in an email on the respondent’s system, with the action taken against him.

[104]In his bundle of documents, the claimant included three articles which he described in his index as expert and academic research. In the first article (actually autistic: using Twitter to construct individual and collective identity narratives by Justine Egner, from studies in social justice)(C798), the writer set out to examine how autistic people use Twitter to engage in community and identity building. She introduced her article by explaining that she had realised that almost every interaction she had with other autistic people was in the virtual world. The research was undertaken by searching hashtags specific to autism and addressed those commenting on the autistic experience using Twitter. In his witness statement, the claimant relied upon the article as supporting his own evidence that autism led to a communication style of bluntness and directness and an absence of social padding. That was referred to in the article, but it was not something which was concluded from the research.

[105]The third article was real-world evidence for altered communication patterns in individuals with autism spectrum disorder by M Turna and others, from Research Square (C834). The first page warned that it was a preliminary report which had not undergone peer review and should not be considered conclusive. The abstract stated that adults with high-functioning autism may compensate for their social difficulties by resorting to more sequential forms of communication. The study was of individuals’ communication preferences by monitoring smartphone-based communication. The report found that adults with high-functioning autism preferred written over verbal communication. In his witness statement, the claimant relied upon the article as noting that incorporating written communication methods was recommended to facilitate communication and reduce social anxiety in autistic individuals. The article supported that written communication could enhance selfconsciousness and self-expression in autistic individuals and that there was a preference for text-based communication amongst those on the autistic spectrum, but it did not make any recommendations. Later in his witness statement, the claimant correctly said that the article observed that objective real-world data demonstrated that autistic adults displayed a distinct and significant preference for written communication over verbal interaction when compared to neurotypical peers.

[106]In her evidence, Ms Brannigan said that there were maybe seven thousand employees at the respondent at the time and maybe one hundred people employed in HR roles.

[107]This Judgment does not seek to address every point about which we heard or about which the parties disagreed. It only includes the points which we considered relevant to the issues which we needed to consider in order to decide if the claims succeeded or failed. If we have not mentioned a particular point, it does not mean that we have overlooked it, but rather we have either not considered it relevant to the issues we needed to determine or we have not considered it necessary to refer to in these reasons.

The Law

[108]An unfair dismissal claim is brought under section 94 of the Employment Rights Act 1996. The general reasonableness of the dismissal must be determined under section 98(4) of the 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 the misconduct as a sufficient reason for dismissing the claimant. That is to be determined in accordance with equity and the substantial merits of the case.

[109]In conduct cases, when considering the question of reasonableness, we are required to have regard to the test outlined in British Home Stores v Burchell

[1980] ICR 303

. The three elements of the test are: 109.1. Did the employer have a genuine belief that the employee was guilty of misconduct? 109.2. Did the employer have reasonable grounds for that belief? 109.3. Did the employer carry out a reasonable investigation in all the circumstances?

[110]An additional question we must determine is whether the decision to dismiss was one which was within the range of reasonable responses that a reasonable employer could reach.

[111]We must not substitute our own view for that of the respondent. We must not slip into what is sometimes called the substitution mindset. For the unfair dismissal claim, it is not for us to decide whether the claimant committed the misconduct alleged or whether the respondent has proved that he did so. We also must not decide whether we would have dismissed the claimant had we conducted the disciplinary hearing and considered the evidence which was in front of the decision-maker. As we have said, the question is whether the decision to dismiss was one within the range of decisions which a reasonable employer could reach. The respondent’s representative reminded us of what was said in London Ambulance Service NHS Trust v Small

[2009] IRLR 563

[112]We must also have regard to the ACAS code of practice on disciplinary and grievance procedures. That says that “In misconduct cases, where practicable, different people should carry out the investigation and the disciplinary hearing”. For appeals (but not for the original hearing) it says, “The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case”.

[113]In his skeleton argument, the claimant placed considerable reliance upon the decision of the Employment Appeal Tribunal in Ramphal v Department of Transport

UKEAT/0352/14

. That Judgment addressed the involvement of Human Resources professionals in a fair process. It did not determine some of the other things which the claimant asserted. Notably, that decision addressed the facts of that case in which the decision-maker had made a dramatic change of view after representations from human resources, which were described as going beyond giving advice on procedure and clarification and appeared to have led to the reshaping of the decision-maker’s views. The central point of the Judgment in that case was explained as follows: “In my opinion, an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.”

[114]The claimant relied upon the decision of the Court of Appeal in Newbound v Thames Water Utilities Limited

[2015] EWCA Civ 677

. We considered that Judgment, which addressed the impact on fairness that previous conduct without sanction would have and which addressed disparity of conduct. It was a decision in which the Court of Appeal found that the Employment Appeal Tribunal had been wrong to find that the Employment Judge had impermissibly substituted his own view for that of the employer. The Judge’s decision had been one he had been entitled to reach.

[115]On disparity of treatment, the respondent’s representative reminded us of the leading authority of Hadjioannou v Coral Casinos Ltd

[1981] IRLR 352

. He highlighted the three circumstances in which the Employment Appeal Tribunal said that an argument that dismissal was unfair due to inconsistent treatment could potentially succeed. In that case the following was said: “Firstly, it may be relevant if there is evidence that employees have been led by an employer to believe that certain categories of conduct will be either overlooked, or at least will be not dealt with by the sanction of dismissal. Secondly, there may be cases in which evidence about decisions made in relation to other cases supports an inference that the purported reason stated by the employers is not the real or genuine reason for a dismissal. Mr Tabachnik illustrates that situation by the argument advanced in the present case on behalf of the appellant, that the general manager was determined to get rid of him and merely used the evidence about the incidents with customers as an occasion or excuse for dismissing him. If that had been the case, the Industrial Tribunal would have reached a different conclusion on the appellant's complaint but they considered the submissions about it and rejected them. Thirdly, Mr Tabachnik concedes that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the particular employee's conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances”

[116]The respondent’s representative reminded us of two key authorities about the impact which an appeal can have in respect of defects in a disciplinary process: Taylor v OCS Group Ltd

[2006] ICR 1602

and Khan v Stripestar Ltd

UKEATS/022/15

. As he highlighted, a defect at the investigation or dismissal stage can be cured on appeal and an appeal is capable of rendering a decision to dismiss within the range of reasonable responses no matter the extent of the deficiencies earlier in the process. In Taylor we were told that Tribunals should: “consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in doing so will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision maker, the overall process was fair, notwithstanding any deficiencies at the early stage”

[117]In his submissions, the respondent’s representative said that it is not the law that a dismissal will be unfair if each and every piece of evidence relied upon is not put to the employee to allow them to comment. He referred to the cases of Pasha v The Home Office

[2026] EAT 42

and Gallacher v Abellio Scotrail Ltd

UKEATS/0027/19

, highlighting that in the latter a dismissal had been found to be fair despite no fair procedure having been followed at all, because following a fair procedure would have been futile.

[118]In the claimant’s list of issues for determining the fairness of dismissal, he placed reliance on the case of Strouthos v London Underground Limited

[2004] IRLR 636

. In that case the Court of Appeal said that it is a basic proposition of disciplinary proceedings that the charge should be precisely framed and the evidence should be confined to the particulars given in the charge. It was said that an employee should only be found guilty of a charge which is put to him.

[119]In his skeleton argument, the claimant referred us to the decision of the Employment Appeal Tribunal in A v B

[2003] IRLR 405

. We considered that decision which addressed a case in which the failure to provide all statements taken was found to be of significance on the facts of that case. In that Judgment it was said that if an employer formed a view that certain evidence was immaterial and could not assist the employee, then a failure to disclose that material would not necessarily render the dismissal unfair. Ultimate fairness is a broad concept which must be considered in the round, with what is said in section 98(4) being the touchstone. We accepted the point which the claimant appeared to wish to draw from that Judgment (but which we could not identify within it), that a degree of even-handedness is appropriate when an investigator carries out a disciplinary investigation, and that they should keep an open mind and look for evidence which supports as well as weakens an employee’s case.

[120]The claimant in his skeleton argument also reminded us of the principle drawn from the House of Lords’ Judgment in W Devis & Sons Ltd v Atkins

[1977] ICR 662

that an employer may not rely upon misconduct by an employee which comes to light after his dismissal, to justify the dismissal.

[121]Article eight provides that everyone has the right to respect for his private and family life, his home and his correspondence. The claimant, in his closing submissions, placed particular emphasis on City and County of Swansea v Gayle

UKEAT/0501/12

. That was a case in which Article eight was considered and applied in an unfair dismissal claim. That case involved the use of surveillance. The Employment Appeal Tribunal observed that a Tribunal in an unfair dismissal claim should focus upon the core questions which we have already set out. It said that even if there was reprehensible conduct by the employer and however reprehensible that conduct might have been, it is only the extent to which that impacts upon the fairness of the dismissal which is relevant to the decision. The respondent’s counsel highlighted that reliance upon Gayle in this case was misplaced, where the claimant had posted on a publicly available site available for all to see. We agreed with that submission of the respondent.

[122]In his submissions, the respondent’s representative referred us to a decision of the European Court of Human Rights (Pay v United Kingdom

[2009] IRLR 139

) that information which an individual makes freely available on a publicly accessible website is not likely to be considered part of his private life for the purposes of article eight, but he acknowledged that there was no specific appellate authority on the point. He submitted that it was clear that article eight did not apply to posting to the world at large on an entirely public profile in the claimant’s own name. If we declined to follow that argument, he submitted that article eight rights are qualified not absolute, the respondent had a clear and sensible policy, and that the policy, and the way it was applied in this case, was a proportionate limitation on article eight rights.

[123]We noted what was said generally by the High Court in Smith v Trafford Housing Trust

[2012] EWHC 3221

, one of the cases included in the claimant’s list of authorities (but not relied upon in either his closing submission or skeleton argument), but considered that the particular case was very different to this one in terms of what was posted and it involved the use of Facebook (with a smaller defined group of selected people who could view the post).

[124]In Polkey v AE Dayton Services Ltd

[1987] IRLR 503

the House of Lords held that the fact that the employer can show that the claimant would have been dismissed anyway (even if a fair procedure had been adopted) does not make fair an otherwise unfair dismissal. However, such evidence (if accepted by us) may be taken into account when assessing compensation and can have a severely limiting effect on the compensatory award. If the evidence shows that the employee may have been dismissed properly in any event, if a proper procedure had been carried out, we should normally make a percentage assessment of the likelihood and apply that when assessing the compensation. In applying a Polkey reduction, we may have to speculate on uncertainties to a significant degree. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence. The issue is what the respondent would have done and not what a hypothetical reasonable employer would have done in the circumstances. The onus is on the respondent to adduce evidence to show that the dismissal would (or might) have occurred in any event. However, we must have regard to all the evidence when making that assessment. In their submissions, both parties reminded us of the principles set out in Software 2000 Ltd v Andrews

[2007] IRLR 568

[125]Section 122(2) of the Employment Rights Act 1996 provides that the basic award shall be reduced where the conduct of the employee before dismissal was such that it would be just and equitable to do so. It is important to note that a key part of the test is determining if it is just and equitable to do so. Section 123(6) of the Employment Rights Act 1996 provides that if we find that the claimant has, by any action, to any extent caused or contributed to his dismissal, we shall reduce the amount of the compensatory award by such amount as we consider just and equitable having regard to that finding. This test differs from the test which applies to the basic award. The deduction for contributory fault can be made only in respect of conduct that persisted during the employment, and which caused or contributed to the employer's decision to dismiss. There are three factors required to be satisfied for us to find contributory conduct: the conduct must be culpable or blameworthy; it must have cause or contributed to the dismissal; and it must be just and equitable to reduce the award by the proportion specified. We were reminded of what was said in Steen v ASP Packaging Ltd

[2014] ICR 56

, Nelson v BBC (No 2)

[1979] IRLR 346

, and Jagex Ltd v McCambridge [202] IRLR 187.

[126]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.

[127]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. The Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme

[2018] UKSC 65

said that there is a relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify, but that treatment which is advantageous cannot said to be unfavourable merely because it is thought it could have been more advantageous or because it is insufficiently advantageous.

[128]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.”

[129]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. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15. (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed.”

[130]On knowledge of disability (which applies to both the claim under section 15 and the claim for breach of the duty to make reasonable adjustments), the respondent’s representative emphasised that an employer having actual or constructive knowledge of the disability, required actual or constructive knowledge of each element of the statutory disability test (relying upon Gallop v Newport City Council

[2014] IRLR 211

). For the section 15 claim, the only issue is whether the respondent had knowledge of the disability, it does not matter whether it had knowledge that the thing relied upon arose in consequence of the disability (City of York Council v Grosset

[2018] ICR 1492

[131]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, for which we must make our own assessment. We need to balance the real needs of the organisation against the discriminatory effect of the thing being justified.

[132]The EHRC Code of Practice on Employment provides guidance on justification. 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. We must ask ourselves whether the aim is legal non-discriminatory and one that represents a real, objective consideration? We must then ask ourselves whether the means of achieving the aim are 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.

[133]In Grosset (a case relied upon by the claimant) the Court of Appeal considered a section 15 claim in which a teacher with cystic fibrosis had shown a class of fifteen-year-old pupils an eighteen rated horror film and been dismissed as a result. The Tribunal found that the showing of the film was an error of judgement which resulted from the claimant’s stress and, as section fifteen did not require there to be an immediate causative link with disability, it found that the error of judgment arose in consequence of the disability. In its Judgment the Court of appeal said: “On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) "something"? and

(ii) did that "something" arise in consequence of B's disability. The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something". In this case, it is clear that the respondent dismissed the claimant because he showed the film. That is the relevant "something" for the purposes of analysis. This is to be contrasted with a case like Charlesworth v Dransfields Engineering Services Ltd , EAT (Simler J),

UKEAT/0197/16/JOJ

, unrep., judgment of 12 January 2017, in which the reason the claimant was dismissed was redundancy, so that no liability arose under section 15 EqA, even though the redundancy of the claimant's job happened to be brought into focus by the ability of the defendant employer to carry on its business in periods when he was absent from work due to a disability. In that case, therefore, the relevant "something" relied upon by the claimant was the claimant's absence from work due to sickness, but he was not dismissed because of that but because his post was redundant. The second issue is an objective matter, whether there is a causal link between B's disability and the relevant "something". In this case, on the findings of the ET there was such a causal link. The claimant showed the film as a result of the exceptionally high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work in the autumn term of 2013.”

[134]Grosset focussed on what it was the respondent was required to have knowledge of for such discrimination to be found, which, in summary, was the disability not that the something arose in consequence of the disability. The claimant in his list of authorities cited the element of the Grosset Judgment which addressed the proportionality of the legitimate aim, highlighting that we must make our own objective assessment of proportionality.

[135]In his list of authorities, the claimant included Phullar v Ofsted

[2026] EAT 10

. That was a decision of the Employment Appeal Tribunal which found that the Tribunal had applied the wrong legal test when considering section 15 in a longterm absence case.

[136]A case relied upon by the claimant was The Government Legal Service v Brookes

UKEAT/0302/16

, which was a claim brought by someone who had Asperger’s syndrome regarding being required to sit a multiple choice situational judgement test at which she said she was disadvantaged by being required to answer questions in the usual way rather than in the form of short narrative answers. Whilst of potential interest, the appeal was one which focussed on the indirect discrimination claim and therefore the legal issues addressed in the appeal were not of direct application to this case. The Judgment did not support the proposition stated by the claimant. The claimant also relied upon a first instance Employment Tribunal Judgment in Halstead v JD Wetherspoons plc 1400644/24 where it was found, on the facts of that case, that the claimant attending a formal investigation meeting without notice placed that claimant with autism at a substantial disadvantage because he suffered intense distress and needed his mother present to help him process information, and it would have been a reasonable adjustment to have given prior notice of the meeting and what it was about (as well as to have had his mother present). That assisted the claimant in showing what we could find, but as a first instance decision provided us little assistance in what we should find on the facts of this case.

[137]The respondent’s representative relied upon a number of cases in his submissions on justification and applying the test of whether something was a proportionate means of achieving a legitimate aim, including Hardys and Hansons Plc v Lax

[2005] ICR 1565

, Chief Constable of West Midlands Police v Harrod

[2015] ICR 1311

, Department for Work and Pensions v Boyers

UKEAT/0282/19

and O’Brien v Bolton St Catherine’s Academy

[2017] ICR 737

. Harrod emphasised that it is the outcome which needs to be justified, not the process by which that was achieved. O’Brien said that whilst it is an objective question, we should give what was described as a substantial degree of respect to the judgement of the employer as to its reasonable needs (provided that it has acted rationally and responsibly).

[138]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.

[139]In paragraph 20 in part 3 of schedule 8 of the Equality Act 2010, the following is said about knowledge: “(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know -(a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question;

(b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first … requirement”

[140]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.

[141]Environment Agency v Rowan

[2008] IRLR 20

is authority that the matters we must identify in relation to a claim of discrimination on the grounds of failure to make reasonable adjustments are: 141.1. the provision, criterion or practice applied by or on behalf of an employer; 141.2. the identity of non-disabled comparators (where appropriate); and 141.3. the nature and extent of the substantial disadvantage suffered by the claimant, including: 141.3.1. the nature of the claimant’s disability; 141.3.2. why this disability placed the claimant at a substantial disadvantage; 141.3.3. what the substantial disadvantage was.

[142]In his skeleton argument, the claimant relied upon the Rowan case when contending that the duty to make reasonable adjustments is anticipatory and proactive. Perhaps unsurprisingly, the claimant did not point to the part of that Judgment upon which he based that submission. We have been unable to locate those words used in the Judgment. In that case, the Employment Appeal Tribunal did observe that it would be prudent for employers to adopt a trial period in an appropriate case to see whether the adjustment sought (in that case, homeworking) is a reasonable adjustment as an employer who has failed to investigate the possibility may find it difficult to establish that the adjustment proposed was not a reasonable one.

[143]The requirement can involve treating the person with the disability more favourably than others.

[144]Whether something is a provision, criterion or practice should not be approached too restrictively or technically, it is intended that the phrase should be construed widely. A one-off act can be a PCP, but it is not necessarily the case that it is (Ishola v Transport for London

[2020] IRLR 368

[145]We are to objectively assess the issue of whether the person with the disability has been put at a substantial disadvantage and there must obviously be some causative nexus between the disability relied upon and the substantial disadvantage. We must consider the overall picture. The respondent’s representative submitted that the substantial disadvantage must be related to the disability, relying upon Lalli v Spirita Housing Limited

[2012] EWCA Civ 497

[146]In assessing the efficacy of any proposed step, it is only necessary to establish that there was a real prospect of the step avoiding or reducing the relevant disadvantage. The claimant submitted in his skeleton argument that in considering whether an adjustment is reasonable, we must have regard to the effectiveness of the step, the practicality, the cost and the employer’s resources, relying upon Project Management Institute v Latif

[2007] IRLR 579

[147]A duty to consult is not of itself imposed by the duty to make reasonable adjustments, the only question is, objectively, whether the respondent has complied with its obligations to make reasonable adjustments or not. The duty involves the taking of substantive steps, rather than consulting about what steps might be taken (Tarbuck v Sainsbury Supermarkets Ltd

[2006] IRLR 664

and Salford NHS Primary Care Trust v Smith EAT 0507/10).

[148]The respondent’s representative said in his submissions that the starting point, when considering the reasonableness of an adjustment, is the nature and extent of the substantial disadvantage suffered by the employee as a result of the application of the PCP. In the absence of an assessment of the nature and extent of the disadvantage, we will not be in a position to judge what steps the employer was reasonably required to take (Rowan). Whether a particular step or adjustment is reasonable is a matter for us to assess objectively. The duty to make adjustments only arises in respect of steps which it is reasonable for the employer to take. He submitted that clearly there will be some cases where there is no reasonable step that can be taken to ameliorate a disadvantage caused by the application of the PCP (Dyer v London Ambulance Service NHS Trust

UKEAT/0500/13

). The adjustment must be at least capable of ameliorating any disadvantage.

[149]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). The question of whether the respondent could reasonably be expected to know of the disability and/or the substantial disadvantage is a question of fact for us to decide.

[150]Section 136 of the Equality Act 2010 sets out the manner in which the burden of proof operates in a discrimination case and provides as follows: “(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”.

[151]In short, a two-stage approach is envisaged: 151.1. at the first stage, we must consider whether the claimant has proved facts on a balance of probabilities from which we 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 unfavourably; there must be something more. 151.2. 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 we 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.

[152]The way in which the burden of proof operates has been addressed in a significant number of important case and we will not reproduce them all in this Judgment. Two of those cases are Igen Ltd v Wong

[2005] ICR 931

and Efobi v Royal Mail Group Ltd

[2021] UKSC 33

, upon which the claimant relied.

[153]The claimant invited us to draw an adverse inference from the absence of witnesses the respondent could have called in this case. In doing so he relied upon Wisniewski v Central Manchester Health Authority

[1998] EWCA Civ 596

. The respondent’s representative accepted that was something which we were able to do, albeit he submitted that we should not do so on the facts of this case.

[154]In his bundle of documents, the claimant had included a lengthy list of authorities. We will not refer to all of them in this Judgment as it would not be proportionate to do so and the list can be seen in the bundle (C866). Both parties also referred to a significant number of authorities in their submissions and skeleton argument. We have not referred to them all in this Judgment as it would be disproportionate to do so. We considered all that was said. We took more notice of those authorities which were decisions of appellate courts, than we did of Judgments of other Employment Tribunals. Conclusions – applying the Law to the Facts Unfair dismissal

[155]We started by considering the claim for unfair dismissal. Issue 1.1.1 recorded that the claimant accepted that the respondent had dismissed him for a potentially fair reason, being misconduct.

[156]Issue 1.2.1 set out the question we were required to consider under section 98(4) of the Employment Rights Act 1996, did the respondent act reasonably in all the circumstances in treating conduct as a sufficient reason to dismiss the claimant in all the circumstances? We considered that issue and decided that it did. We did so by considering the section 98(4) question, but also in taking into account all of the matters set out below which were relevant (or potentially relevant) to it.

[157]Issue 1.2.1 (a) asked whether the respondent had conducted a reasonable investigation? We found that it had done so. As we have explained, tweets were reviewed and collated. The person who had raised the issue was interviewed, as was the Team Leader to whom she had raised the complaint. An investigatory meeting was held with the claimant. At the disciplinary hearing, the claimant was given an opportunity to respond to the allegations having seen all of the tweets being considered. The claimant was given a further opportunity to respond at the appeal hearing. By the appeal decision, further investigation had been undertaken by Mr Stevens. We found that a reasonable investigation was undertaken.

[158]Issue 1.2.1 (b) asked whether the respondent had reasonable grounds to believe that the claimant was guilty of the misconduct? We found that the answer to the question was clearly and obviously yes, it did. We have addressed in our findings on the facts what we heard and found about the six tweets listed in the table in the appeal decision letter. Ms M was upset and offended by some of those tweets, which was why the issue was raised. The respondent had reasonable grounds to believe the claimant was guilty of the misconduct alleged (as set out in the allegations).

[159]Issue 1.2.1 (c) asked whether the respondent believed that the claimant was guilty? It did. The letter of Ms Tynkler explained why she reached the decision which she did. We found Mr Stevens to be a reliable witness who had clearly considered very carefully and conscientiously the appeal which he heard. He effectively reheard the disciplinary case. He found an issue was wrong with the disciplinary process and fairly said so. He set out his reasons for believing the claimant was guilty of misconduct in his decision letter and explained them in his evidence to us. He believed the claimant was guilty of the misconduct alleged.

[160]Issue 1.2.1 (d) asked whether the respondent had followed a reasonably fair procedure (including considering the requirements of the ACAS Code of Practice on Discipline and Grievance procedure)? The respondent did broadly follow a fair process, consistent with the ACAS code. There was an investigation, a disciplinary hearing, and an appeal hearing.

[161]In his submissions and criticisms, the claimant challenged Ms Tynkler being the person who conducted the disciplinary hearing. He appeared to have done so because she was at a comparable level of seniority to his Team Leader’s manager and because she may have had some interaction with him. He contended that stopped her being impartial. The claimant’s reliance upon a requirement in the ACAS code for the person hearing the disciplinary to be impartial was misplaced, as the code requires only that, where practicable, different people should carry out the investigation and the disciplinary hearing. In any event, being at a comparable managerial level or having had previous interactions with someone, does not stop a manager from being impartial. There was no genuine evidence that Ms Tynkler was not impartial. In any event, Mr Stevens was clearly impartial.

[162]An issue raised by the claimant was the investigation process and the very limited notice which he was given of the investigation meeting. We were a threeperson panel which meant we were what is sometimes described as an industrial jury. We recognised that this is a common approach taken by many employers to such meetings. We noted the explanation which Ms Coyne provided the claimant for why she had given him limited notice at the end of the meeting (R283), to cause the least amount of stress. We did not see that approach as being unfair. We will go on and address the reasonable adjustment claim in the context of the claimant’s autism, but we also did not find the approach to be unfair in the context of the respondent generally having knowledge of the claimant’s autism. We particularly noted what the claimant said in the meeting, when he provided his full and unvarnished views about the matter being investigated. He appeared to have had no difficulty in responding to the questions and explaining his views. Had he been given more notice of the meeting and its subject matter and time to think about it, he might have responded differently, but that did not make the respondent’s approach unfair. At the end of the meeting, the claimant himself said that he did not know whether more notice could have been better. The claimant was also given a full opportunity to provide his response to the allegations after longer notice and consideration, at both the disciplinary hearing and the appeal hearing. We did not find that the limited notice given of the investigation meeting, rendered the dismissal unfair.

[163]There was clearly a valid criticism of the decision made by Ms Tynkler to dismiss the claimant on 14 December without longer consideration of the Lexxic report or without providing the claimant with the opportunity to explain it. That was found by Mr Stephens in his appeal decision, where he said that he did not believe enough time was taken to fully understand the claimant’s health condition and he would have expected the original hearer to have delayed the outcome, having undertaken enquiries, before coming to a decision to dismiss. However, to the extent that potentially rendered the dismissal unfair, it was rectified by Mr Stephens full and thorough appeal process, where he gave the claimant a full opportunity to explain his autism and the impact it had on his tweets. Mr Stevens fully and thoroughly considered the claimant’s case. To that extent, the appeal remedied any defect which was present in the disciplinary decision.

[164]We did consider carefully the role of Ms Ferguson in the process. She was an Employee Relations Consultant who helped Ms Brannigan during the disciplinary process as a mentor, and who was involved to some degree in finalising the disciplinary decision letter. As she was also part of the appeal process, that raised some questions for us. As we have explained, when asked about her involvement, Mr Stevens was very clear that he made the appeal decision, and her role was to provide documents and follow process. Her role was as a straightforward HR support. There was no evidence that Ms Ferguson had been involved in the appeal decision itself at all, and we accepted Mr Stevens’ evidence about that. We noted the Ramphal case upon which the claimant relied and which we have addressed in the section on the law above, being a case in which HR had taken over the process or been involved in the decision (or changing the decision) in a way which rendered it unfair. We recognised that ideally the respondent could have involved one of the other approximately one hundred HR people in the appeal process rather than Ms Ferguson and optimally they should have done so. However, our role is not to determine whether the respondent followed a perfect process. In the light of Mr Stevens’ evidence, which we accepted, we found that her role in the appeal process was relatively limited and she played no part in the appeal decision-making. As she played no part in the appeal decision-making, we did not find that her involvement rendered the dismissal unfair.

[165]Issue 1.2.1 (e) asked was dismissal within the range of reasonable responses open to the respondent? The correct question was whether it was a reasonable response open to a reasonable employer? We found that it was. We have addressed some of the tweets. Based upon the views of the tweets of Ms Tynkler and Mr Stevens, dismissal was clearly within the range of reasonable responses of a reasonable employer.

[166]As we have explained, the claimant had provided us with a list of issues. That was not one which had been addressed at an earlier preliminary hearing, and it had not been provided within the timescale which Employment Judge Childe had set out for raising any issues with the list of issues which he had prepared. Nonetheless, on the issue of the reasonableness of the dismissal (when applying section 98(4)), as we confirmed at the start of the hearing we would, we considered what the claimant had listed within his list as things he contended had been unfair. Those issues were set out as (a)-(o) at 2.4 (C127).

[167]At (a) the claimant asked us to consider whether the application of the social media policy was unfair due to its vague reliance on an undefined or subjective offensive standard which it was said lacked clear thresholds consistent with the code of conduct? In (a) it was said there was a lack of tailoring or guidance for neurodiverse staff. In his submissions, the respondent’s counsel submitted that this criticism of the social media policy was unfounded because it said that it applied to conduct outside work as well as in work, and it set out certain types of conduct which could be considered offensive. He submitted that it would be obvious to any reasonable person that discriminatory conduct was capable of being offensive. He also submitted that it was clear that the claimant understood the policy. We found that the policy was satisfactory in terms of detail and explanation. Ideally, the social media policy could have included more examples, as were included in other policies. There was not an impermissibly vague reference to undefined offence, the wording was entirely appropriate. There is always a balance between a succinct and easy to understand policy and one which includes considerable detail and more examples. On the claimant’s own evidence, he knew that others had been dismissed for tweeting offensively. He said that when he saw the tweets at the start of the investigatory meeting, he knew that dismissal was possible. We did not find that the claimant was somebody who did not know that social media tweets could be offensive or did not know that disciplinary action could be taken as a result. We found that the social media policy was clear. We did not find that it lacked clear guidance. We found that the policy was appropriate and clear.

[168]Issue (b) was said to be the investigative mandate. It was said that the investigator acted without written terms of reference or a defined scope. There was no requirement for a written terms of reference under the respondent’s policy. The scope of the investigation was what the claimant had tweeted, when two colleagues had deemed his tweets offensive. That was a perfectly appropriate scope for the investigation. The fact that the investigation included more tweets than Mrs M had raised, was not something that we saw as unfair. They were the same type of tweets on the same platform. Ms Coyne, as part of her investigation, decided to look herself at the claimant's tweets. It was not unfair for her to do so. We did not find that that showed a failure to address the evidence in an evenhanded way. When someone is investigating a matter such as potentially offensive tweets, they are perfectly able to include in their investigation any other tweets they consider offensive. It was an entirely appropriate investigation, and it was not inappropriate for the claimant to be asked to address other tweets. The respondent was not constrained to only address the specific tweets which had offended Ms M for it to be a fair process.

[169]Issue (c) was what was described as the off-record instructions, said to be the eighty-four minute gap on 17 November 2023 regarding witness instructions. This appeared to arise from the two emails which Ms M sent on 17 November as included in the bundle, one at 2.36 pm and one at 4 pm. In his submissions, the respondent’s counsel highlighted that in cross-examination the claimant had accepted that the assertion that Mr Hussain had sought more tweets was entirely speculative and unevidenced. We agreed. Even had Mr Hussain asked Ms M for more tweets, we did not see there to have been anything unfair in having done so. There was nothing about this allegation or the two emails in the bundle which materially impacted upon our decision about the fairness of the dismissal applying section 98(4).

[170]Issue (d) was described as reasonable belief, being the intelligence/complaint gap. What was asked was did the respondent possess a reasonable belief in misconduct given the CFIU report recorded timing as unknown and none of the tweets discussed in the meetings were the subject of the original complaint? That issue arose from the report provided to Mr Stevens during the appeal process. We had no criticism of Mr Stevens for asking for the report to be prepared as he was looking at tweets in the context of the appeal and consideration of whether the claimant should be reinstated (being a potential outcome of the appeal irrespective of whether the claimant would have agreed to reinstatement by that stage). In practice, the content of the report was irrelevant because the tweets identified were not the claimant’s own tweets. We accepted Mr Stevens’ evidence that, when reaching his decision, he disregarded the tweets from the other account which were not the claimant’s tweets. As a result, obtaining the tweets had no impact upon his decision. We noted the claimant’s point that, at the time of the appeal hearing, Mr Stevens had not definitively decided that the other account was not the claimant’s (because the tweeting on the other account during the appeal hearing was what clarified that definitively), but we did not find that rendered the dismissal unfair. We did not consider it relevant to our decision whether or not the respondent acted within the relevant rules and codes when undertaking the report, but during this hearing the claimant did not prove to us that they were not.

[171]Issue (e) was described as breach of the Strouthos principles. What the claimant asked was: was the process unfair because the respondent relied on a pack of forty-five items to assess character, despite only eight unique items being discussed in total across the internal hearings? The respondent’s counsel submitted that this argument was based upon a fundamental misunderstanding of Strouthos. In this case, the disciplinary allegations were set out in the letter of 8 December and the decision to dismiss was because those charges were found proven. He also submitted that if the claimant’s point was that the respondent was required to put each and every tweet to him in detail, that was unrelated to Strouthos and was misconceived. He said it was reasonable and proportionate to put a selection of the tweets to the claimant as examples and, in any event, the claimant was given the opportunity to speak to individual tweets at the appeal stage but said he did not wish to do so. We did not find that there was a failure to comply with the principle set out in Strouthos and we did not find there to be anything unfair in the approach taken by the respondent. Had the claimant wished to go through each and every tweet, or some specific tweets, at the appeal hearing, he could have done so. He said he did not wish to. Mr Stevens was very clear in his evidence about what he focussed on and why he made his decision. That was fair.

[172]Issue (f) was said to be the integrity of the record with reference to the autism email. The claimant’s list referred to the representation regarding an autism email adjournment, for which he said the respondent had admitted there were no documents. This issue arose from an error in Mr Stevens’ appeal decision letter. In that letter he said that the claimant had provided his autism report to Ms Tynkler during an adjournment in the disciplinary hearing, when he had not done so. That was an error by Mr Stevens. He made a mistake. We heard evidence from Ms Brannigan that she showed the autism report to Ms Tynkler during the adjournment at the end of the disciplinary hearing. We accepted her evidence that she did so. We had no reason to believe that she was untruthful, even where there were no documents to back up that she had done so. Ms Tynkler told Mr Stevens that she had seen the report. She had done so. We recognised that the claimant had a valid point that the appeal outcome letter was inaccurate. We did not find that rendered the dismissal unfair.

[173]Issue (g) was stated to be undue influence, said to be the undisclosed and unminuted consultation with a line manager during the disciplinary adjournment. We have already addressed this issue when considering the application of section 98(4) more generally. This arose from Ms Ferguson’s role as Ms Brannigan’s mentor and her contribution to the disciplinary decision letter, when she also advised on the appeal process. We observed that the element of the decision letter to which Ms Ferguson contributed was not a central part of the decision, it was an ancillary or secondary point. We accepted Mr Stevens’ evidence that he was the appeal decision-maker and that Ms Ferguson had no part in the decision. This was not equivalent to the circumstances which arose in Ramphal. We did not find that what occurred rendered the dismissal unfair.

[174]Issue (h) was what was described as the premature decision, the circulation of a leaving announcement regarding the claimant’s replacement before the appeal process had been initiated. On 19 December Mr Hussain emailed various people within the respondent to advise that the claimant would not be returning to the business. That was after the dismissal decision had been made, but before the time for an appeal. The email in part addressed or prefaced caseload reassignment, something for which we accepted decisions would need to be made once the claimant had been dismissed. The email was not premature to the dismissal. It is our experience that most employers announce dismissals once the decision has been made to facilitate continuous workflow and they do not generally await the outcome of an appeal. The announcement said only that the claimant had left, it was appropriately worded. The announcement did not show predetermination. Mr Stevens in any event went on to fully consider the appeal.

[175]Issue (i) was consistency of treatment. The claimant’s list referred to the failure to discipline a comparator for gratuitous workplace profanity used within the workplace. It was unclear whether or not the claimant was asking us to determine this allegation as he emphasised in submissions that he was not relying upon Mr Jazwinski as a comparator. Nonetheless, as it appeared in the list of things which the claimant contended meant that the dismissal was unfair, we did consider the position. It was surprising that there was no action taken by the respondent for the language used in the email about the claimant, when it came to light as a result of the data protection subject access request. The HR Service Consultant’s response to the claimant on 24 September 2024 was entirely unsatisfactory and was inconsistent with the respondent’s stated zero-tolerance approach. However, the circumstances were not in any way truly parallel to those of the claimant. The claimant was subject to disciplinary action for public tweets which showed discrimination and harassment. This issue arose from an internal email sent to a single person. It had not been brought to the attention of a manager at the time. It did not fall within the categories identified in Hadjioannou which might have led us to consider whether any inconsistent treatment rendered the claimant’s dismissal as unfair.

[176]The other potential issue of inconsistent treatment arose from the difference in the treatment between the claimant’s tweets in 2020 and 2023. When considering the first Hadjioannou category, the claimant was unaware that his tweets had been raised in 2020, so that could not have led the claimant to believe that certain categories of conduct would be either overlooked or at least would not be dealt with by the sanction of dismissal. It did not lead him to believe that his tweeting was acceptable. The difference between the two occasions was that in 2020 no formal complaint was made to the Team Leader and the Team Leader did not take what he was told any further. In 2023 a formal complaint was made to the Team Leader and it was pursued. We did not find that the difference between those two occasions rendered the dismissal unfair. We did not find that it supported an inference that the purported reason stated by the respondent was not the real or genuine reason for the dismissal (which was not contended). We did not find that it meant that it was not reasonable for the respondent to visit the claimant’s conduct in 2023 with the penalty of dismissal.

[177]Issue (j) was the right to private life. The claimant asked whether the dismissal was unfair and an unnecessary interference to his right to maintain a private life and to express personal beliefs when away from work and not identified as an employee, with reference to article eight? We did not find that article eight was engaged in this case because the claimant had posted his views on Twitter, an entirely public forum accessible to all. That notably differentiated this case from one where posts may have been made on a closed or limited forum such as Facebook. The claimant himself described Twitter as a virtual Speakers’ Corner and an element of a Speakers' Corner is that what is said can (potentially) be heard by all. Even if we were wrong about article eight not being engaged, it is a qualified right. In this case the claimant had posted content on Twitter which was publicly available and which could be connected to the claimant and his role at the respondent. That was of course evidenced by the fact that the claimant’s colleague found the posts when looking at her colleagues on Twitter and what they had posted. The respondent’s policy on social media was clear and appropriate. We found that the way in which it was applied was a proportionate limitation on the claimant’s article eight rights (if they were to have been engaged), given the importance of protecting co-workers and others from offensive and discriminatory content.

[178]Issue (k) was called the duty to enquire. It was said this related to the respondent’s refusal of the claimant’s request for occupational health advice prior to dismissal. In his submissions, the respondent’s representative said that the simple response to this point was that the claimant did not request that an occupational health report be obtained prior to his dismissal. That was correct, he did not. As we have already addressed, Mr Stevens upheld in part the claimant’s appeal on the basis that Ms Tynkler did not give sufficient consideration to the claimant’s autism. That failure was rectified on appeal by Mr Stevens, which the respondent was able to do. There was no obligation on the respondent to obtain further occupational health advice. Mr Stevens considered the Lexxic report and the claimant’s autism and explained in his decision the conclusions that he had reached. That approach was fair.

[179]Issue (l) was said to be unseen evidence on the appeal and the appeal officer’s reliance on tweets and material never discussed with the claimant. We considered carefully whether Mr Stevens’ consideration of additional tweets which had not been the basis for the dismissal and which had not been discussed at the appeal hearing, rendered the dismissal unfair. As we have explained, two of the tweets included in the table in the appeal decision letter were tweets posted by the claimant after the appeal hearing. We decided that, on the facts of this case, the reliance placed on those post-appeal tweets did not render this dismissal unfair. As we have already addressed for issue (e), the allegations which the claimant faced were consistent throughout the process and they were the reason for his dismissal and the reason why his appeal was not upheld. At the appeal stage, Mr Stevens did not decide that the finding of misconduct should be overturned. He considered whether the decision to dismiss remained correct when full consideration was given to the claimant’s autism and the explanation he had provided. He considered the later posted tweets in the context of the claimant’s purported explanation that due to his autism he had not realised that the content of his posts could be seen as offensive, when he had continued to post similarly offensive things after he knew they could be considered offensive (because his wife had told him that and it had been made clear by the decision to dismiss). We accepted the respondent’s submission that giving the claimant an opportunity to make further representations on the post-dismissal tweets would have been wholly pointless. It had been explained to the claimant on several occasions that tweets of this nature were offensive and unacceptable to the respondent. The further tweets were a concrete indication that the claimant was not going to change his behaviour and there was nothing which the claimant could have said that would have justified the further tweets or reassured the respondent that the conduct would not be repeated. Reconvening the appeal to have discussed the new tweets would have been futile.

[180]Issue (m) was said to be a disproportionate investigation on the appeal, which was alleged to have breached natural justice by conducting a covert investigation via the counter-fraud intelligence unit (CFIU) and relying on undisclosed third-party meetings (disability forum notes) without granting the claimant the right of reply. We have already addressed the CFIU report when determining issue (d). The additional tweets which Mr Stevens did take into account when reaching his appeal decision were tweets which were publicly available and which were posted on the claimant’s own feed (albeit the name used had been changed). We found that the investigation undertaken by the CFIU which identified another Twitter-user had no material impact on the decision. We accepted Mr Stevens’ evidence that he did not take those tweets into account when he took his decision. The fact that Mr Stevens endeavoured to obtain more information about autism prior to making his appeal decision, was laudable, it was not a breach of natural justice to have done so.

[181]Issue (n) was said to be ex post facto justification and condonation. It was said that this was the attempt to use a forty-five tweet bundle (including what was described as the Jazwinski material) to retrospectively justify a dismissal that was originally based upon a fraction of that material. The sub-issues in the list referred to whether prior knowledge and inaction in 2020 waived or condoned reliance on the 2020 material and whether the shift between the condonation of 2020 material and dismissal in 2023 was within the range of reasonable responses? We found that the 2020 tweets, the Jazwinski material, was not used at all as part of the material considered for either the decision to dismiss or the determination of the appeal. We have already addressed the number of tweets and the argument regarding inconsistency with the approach to the tweets in 2020 or condonation.

[182]Issue (o) was said to be the absence of an investigation report, and the failure of the investigator to provide a formal case to answer recommendation. There was no requirement under the respondent’s policy for a formal case to answer. The process followed by the respondent was fair and in accordance with the ACAS code of practice on disciplinary and grievance procedures.

[183]As a result, and for the reasons we have given, we found that the claimant was not unfairly dismissed. Having done so, we did not need to go on and decide the remedy issues which it had been agreed we would determine at the same time as the liability issues. However, we did consider those issues and have recorded what we would have found had we needed to do so. For issues 2.3 and 2.4.9, being contributory fault, even had we found the claimant’s dismissal to have been unfair, we would have found that the claimant contributed to his dismissal one hundred percent and therefore would have reduced both the basic award and compensatory award to nil. For issues 2.4.4 and 2.4.5, even if we had found that the claimant’s dismissal had been unfair, we would have found that the claimant would still have been fairly dismissed in any event by the respondent had a fair procedure been followed. In particular, we noted that the claimant continued to post discriminatory tweets even after he had been dismissed. Disability and knowledge

[184]As was recorded in the list of issues at 3.1.1 and as had subsequently been confirmed by the respondent as it applied to issue 3.1.2, the respondent accepted that the claimant had a disability at the relevant time both because of autism and by reason of memory problems. The respondent accepted that it had knowledge of the claimant’s autism at the relevant time. The one part of 3.1 left to determine, was whether the respondent had knowledge of the claimant’s memory problems as a disability at the relevant time.

[185]In his submissions, the respondent’s representative correctly emphasised that for actual or constructive knowledge, the respondent must have knowledge that each element of the statutory test for disability was satisfied. In practice, a knowledge that the claimant had memory issues generally would not suffice for the respondent to have actual or imputed knowledge of disability, it would need to know that those problems had a long-term substantial adverse effect on the claimant's ability to undertake day to day activities.

[186]We have detailed in the facts above what was said about the claimant’s memory issues in the Lexxic report. That detailed that the claimant had always had difficulties with short-term memory and that it had worsened with age. A link was drawn between the memory issues and the claimant’s epilepsy. That showed the memory loss was long term and it would have been clear from what was said that it had a substantial adverse effect on his ability to undertake ordinary activities. Ms Tynkler informed Mr Stevens, when she was interviewed by him as part of the appeal investigation on 29 January 2024, that HR had told her that the claimant had epilepsy and memory loss. Mr Baldwin, the claimant’s long-term Team Leader, recalled the claimant expressing concerns to him about his memory on multiple occasions. We found that, as a result, the respondent had knowledge of the claimant’s disability as at the date of the Lexxic report on 5 February 2021, or it had imputed knowledge at least. The respondent certainly had knowledge or imputed knowledge by 14 December 2023. Discrimination arising from disability

[187]There was no dispute that the claimant’s dismissal was unfavourable treatment.

[188]As we have already explained, issue 3.2.2 as drafted at the preliminary hearing, asked whether the claimant’s impulse to tweet about various subjects and the way he expressed himself in those tweets, arose in consequence of his autism? At the start of this hearing, the claimant made clear that he was not relying upon an impulse to tweet as being something that arose from his autism. He was very clear about that, both at the start of the hearing, and in the submissions he prepared at the end. That left us to determine whether the way that the claimant expressed himself in his tweets was something which arose in consequence of his autism?

[189]In the documents which the claimant presented as his written submissions at the end of the hearing, the claimant described this in various ways. On page two of his closing submission document, the claimant made it clear that he was not saying that his autism dictated his political or social beliefs. He said that his case was simply that his autism affected the way he expressed himself – the literal, unfiltered phrasing and tone. On page six of his closing submission, he said that he cannot foresee how neurotypical people will react to his blunt wording and explained that his bluntness was a direct consequence of his disability. On page seven of his closing submission, he explained that his blunt, literal communication style was not a choice, but a manifestation of his autism. On page twenty-seven of his skeleton argument, the claimant said that he cannot foresee how neurotypical people will react to his blunt wording and that his bluntness is a direct consequence of his disability.

[190]In his submissions, the respondent’s representative submitted that the claimant’s own evidence that he had a literal, binary and unvarnished communication style was a fiction. He said that it bore little resemblance to the documents. It was inconsistent with the claimant’s own evidence and his description of his tweets as sarcastic and his dark sense of humour. He also contrasted the claimant’s presentation in evidence, with the communication style alleged.

[191]We therefore needed to decide whether the claimant had proved that he had a blunt communication style which arose in consequence of his autism? The starting point was the Lexxic report. We accepted that the claimant was less able than a neurotypical person to have empathy and/or more likely to say things without considering the emotional impact on the listener. In the part of this Judgment which confirms the facts, we have recorded the evidence we heard from Mrs Chaloner, Mr Baldwin and Mr Lee. It was Mrs Chaloner’s evidence that if the claimant states an opinion, that comes across as blunt. It was Mr Baldwin’s evidence that the claimant came across as blunt at times. It was Mr Lee’s unchallenged evidence that the claimant would speak in a matter-of-fact manner. Based upon that evidence, we found that the claimant had proved that his communication was blunt and matter-of-fact, and that was as a consequence of his autism.

[192]Issue 3.2.3 asked whether the claimant had proven facts from which we could conclude that the dismissal was because of the thing arising? The claimant was not dismissed because his tweets were blunt or matter-of-fact. As the respondent’s representative submitted, the claimant was dismissed because his tweets were offensive, discriminatory, and caused distress to colleagues. His dismissal was not because of the way in which he expressed himself on Twitter. The dismissal was not because of the claimant’s communication style or bluntness, it was because of the content of his tweets. We found that the respondent’s submission was quite correct, the dismissal was because of content and not the claimant’s style. We found that the claimant’s bluntness in communicating had nothing to do with his dismissal.

[193]As a result of our decision on issue 3.2.3, issue 3.2.4 was not one that could be considered. As a result of what we decided on issue 3.2.3, we also did not need to go on and determine issues 3.2.5 and 3.2.6 (whether dismissal was a proportionate means of achieving a legitimate aim) but we decided to do so in any event. The aims relied upon were protecting employees from offensive and discriminatory conduct and ensuring that any breaches of the respondent’s code of conduct, social media policy and diversity and inclusion policy were appropriately addressed in order to uphold the required standards of conduct. Both aims were legitimate. We also found that dismissal was a proportionate means of achieving those aims. Objectively and considering the content of the claimant’s tweets, we found dismissal to be proportionate. We would have found the dismissal to have been a proportionate means of achieving those aims based upon the tweets in any event, however the fact that the claimant continued to tweet offensively even after he had been told that they caused offense (including by Mrs Chaloner and Ms Tynkler in the dismissal decision) meant that dismissal was clearly proportionate. We found that the claimant knew that people could be dismissed for offensive tweeting as that was the evidence he gave. He understood that what he did on twitter was not appropriate conduct on other social media. He had the understanding and ability not to raise the potentially offensive issues in the office or with certain members of his family, as he explained. We found the contention that the claimant did not know that the views he was expressing and the things he was retweeting were capable of offence, was simply untrue. As the respondent’s representative submitted, the claimant was an intelligent individual. We had no doubt from the evidence which we heard that the claimant understood that his tweets had the capacity to offend. We found dismissal to be entirely appropriate and proportionate. The duty to make reasonable adjustments

[194]When considering the claims for breach of the duty to make reasonable adjustments, we considered each of the PCPs set out at issue3.3.1 and for that issue also considered the alleged substantial disadvantages which applied to it (issue

3.3.2 ), knowledge (issue 3.4) and the reasonable adjustments proposed to address the disadvantage (issue 3.5).

[195]The first alleged PCP (a PCP is a provision, criterion or practice, but we will simply refer to a PCP in this Judgment) was requiring the claimant to attend the fact-finding meeting at short notice (a). The respondent does have a practice of asking employees to attend fact-finding meetings at short notice, as that was the evidence of Ms Brannigan that they did and that it was usual practice. Requiring someone to attend a meeting at short notice would place the claimant at a disadvantage when compared to others, because he can become upset if his routine is disrupted without notice (as recorded in the Lexxus report) and stress and anxiety can have a big impact on him at times (as recorded in the workplace needs assessment (R191)). The respondent was right that delaying a fact-finding meeting so that there was a substantial gap between being notified of it and the meeting taking place, would also have had a more substantial impact on the claimant than others. It is, of course, the case that a short notice fact-finding meeting would have an impact on anyone, but we accepted that it had a more substantial impact on the claimant in comparison to those without autism.

[196]We found that respondent could reasonably have been expected to know that the claimant was likely to be placed at the particular disadvantage for issue (a) because of what was said in the Lexxus report and the workplace needs assessment. In doing so, we noted what is said in the EHRC employment practices code about an employer knowing about a disability when an employee or agent knows. In practice Ms Coyne who arranged the meeting did not know, but that did not alter the fact that the respondent was legally in a position where it knew, or could reasonably have been expected to know, that the claimant would be placed at the disadvantage relied upon.

[197]As a result, for the first PCP, we needed to decide whether the respondent had failed to take such steps as it would have been reasonable to have taken to avoid the disadvantage as set out at issue 3.5.1. The first such adjustment sought was giving more notice of the fact-finding meeting. No matter how much notice the respondent had given the claimant of the fact-finding meeting, it would not have removed the stress and uncertainty he would suffer and in fact it might have made it worse. We noted that, at the end of the fact-finding meeting, the claimant said that he did not know whether being given more notice might have made a difference, so at the time the claimant did not know. As we have already said, we accepted that it is a common practice for employers to provide little or no notice of a fact-finding meeting. We accepted that a fact-finding meeting is an opportunity for an employer to obtain a genuine answer and an unfiltered response to allegations. The claimant attended this fact-finding meeting and was able to give his unvarnished response to the allegations (which was, in summary, that he said he should be allowed to tweet what he wanted). Making the adjustment proposed would not have changed the outcome. In this case we did not find that the respondent was under a legal duty to make the adjustment sought, taking account of the claimant and how his autism impacts him.

[198]The claimant also sought three other adjustments in relation to the first PCP. He said he should have been given advance notice of the things to be discussed. That proposed adjustment did not address the disadvantage which the claimant suffered, as knowing what he was to be spoken to about in advance would not have alleviated the impact of the stress and anxiety and, potentially, could have made it worse. Similarly, being able to bring his wife to the meeting would also not have alleviated that disadvantage and, in the circumstances of this case, was not an adjustment which the respondent would have reasonably been required to have made. Informing those conducting the meeting of the claimant’s autism would not have avoided, addressed, or ameliorated, the asserted disadvantage which the claimant suffered.

[199]The second alleged PCP relied upon (b), was conducting the disciplinary hearing by MS Teams without access for the claimant to the work system. That was a practice which the respondent had. The need to download Teams at the last minute did not in and of itself disadvantage the claimant in comparison to anyone else. However, for the same reasons that we have explained for the first PCP (a), we accepted that the claimant was placed at a disadvantage by change, stress and routine (or expected process) being disrupted. However, when applying issue 3.4 to the second PCP (b) we did not find that the respondent either knew or could reasonably have been expected to know that the requirement that the claimant join the meeting by Teams would, or would have been likely to, have placed him at a disadvantage. The claimant was someone who was IT literate and his particular issue with Teams arose from the fact that he did not use it. Even had Ms Tynkler and Ms Brannigan have known about the claimant’s autism prior to the start of the meeting, it would not have been reasonable for them to have known that the claimant would be placed at a disadvantage in comparison with someone who was neurotypical because the claimant was required to use Teams to join the meeting (without the suspension of the respondent’s system being lifted). Also relevant to knowledge was the exchange of emails with the claimant in advance of the meeting, in which the claimant did not request a delay to the start and sent a relatively upbeat message starting that he had sorted it and included an emoji when doing so (R394). Had we needed to have gone on to consider the adjustments sought in relation to the second PCP (issue 3.5.2) we would have found that giving the claimant access to the work system to undertake the meeting would have been a reasonable adjustment (we heard no evidence why it could not have been done), but we would not have considered that holding the meeting inperson was something which addressed the disadvantage. That was an entirely different thing. In any event, the claimant chose to attend the appeal meeting by Teams later on, when it had been initially intended that the appeal meeting be conducted face-to-face, suggesting that a face-to-face meeting was not a reasonable adjustment required to be made for the claimant.

[200]The third alleged PCP (c) was said to be the claimant not being allowed to contact colleagues and not being told how he could arrange for a work colleague to attend the disciplinary hearing. That was not the respondent’s practice or policy. The claimant was told that he could contact a colleague if he wanted them to accompany him at the disciplinary hearing. That was set out in both the suspension letter (R330) and he letter inviting him to the disciplinary hearing (R379). He was also told to speak to Ms Coyne each day, which he did, when he could have spoken about how to contact someone. The PCP alleged was not one the respondent applied and one of the adjustments proposed was exactly what the respondent did.

[201]The fourth alleged PCP (d) was said to be the people conducting the disciplinary hearing not initiating breaks. Those conducting the claimant’s disciplinary hearing did both initiate and offer the claimant breaks. The respondent did not have the PCP alleged.

[202]The fifth alleged PCP (e) was noting the disciplinary meeting, rather than recording it and providing the claimant with a copy of the recording. That was the respondent’s practice at the time. That was confirmed in evidence by both Ms Brannigan and Mr Stevens. The claimant’s contention was that having notes rather than a transcript placed him at a particular disadvantage because of his memory problems which made it difficult for him to comment on the notes. Where notes are reflective of the conversation, they do not place somebody with memory issues at a substantial disadvantage to anyone else. We did not find that the claimant was placed at a substantial disadvantage in this case. On 31 December (471) the claimant confirmed in an email that, with only a couple of slight errors not worth pointing out, he agreed that the notes provided reflected the conversation. Nothing in the evidence which we heard suggested that the claimant was placed at a disadvantage by the use of notes rather than a transcript, as it made no difference to the outcome (and nothing that we heard suggested that it had). There was nothing which would have affected the outcome which did not appear in the notes. There was no disadvantage. It was in practice an academic debate about what might have been preferable, but no disadvantage was found. We also noted Mr Stevens evidence about the fact that whilst Twitter transcripts are now enabled, transcription is not entirely accurate, and they still require a minute taker to form minutes. The claimant’s memory issues would still have impacted upon his ability to dispute the transcript.

[203]Had we needed to consider either or both of knowledge (issue 3.4) or the proposed reasonable adjustment (issue 3.5.5) for the fifth alleged PCP (e), we would not have found that the respondent would have known or been reasonably expected to have known that noting the meeting placed the claimant at a substantial disadvantage. We would not have found that transcribing the hearing was a reasonable adjustment which the respondent was legally obliged to make to comply with the duty to make reasonable adjustments. We did not find that employers are routinely required to make transcription available. Many employers routinely note meetings, without recording them. The claimant indicated that the notes reflected the conversation. Mr Stevens’ evidence was that transcription on Teams had not been enabled at the time. Transcribing the hearing would not have been a reasonable adjustment in the circumstances of this case.

[204]The sixth alleged PCP was said to be expecting the claimant to respond orally within the course of the disciplinary hearing to all points raised before a decision was made (f). We accepted that the respondent did have a practice of requiring those attending a disciplinary hearing to respond orally in the course of the meeting to the issues raised, as that is the usual practice for such hearings. We did not find that the claimant was placed at a substantial disadvantage by that approach. In advance of the disciplinary hearing, he had been provided with copies of the relevant documents and tweets. He provided his response in the hearing and there was no indication that any memory issues impacted upon the explanation which he gave. We considered it to be a perfectly reasonable approach to ask anybody to respond to questions asked in a disciplinary hearing and we considered such a hearing to be the norm and to be consistent with the ACAS code. In this case, the respondent gave the claimant the opportunity to add anything which he wished to at the hearing. We noted that the claimant was employed as a call handler and the evidence was that he was fully able to do his job. The respondent was not under a legal duty to make the adjustments sought in this case. In any event, one of the adjustments sought was something which the respondent did in this case. Just before the adjournment in the meeting, Ms Tynker did expressly provide the claimant with the opportunity to provide information in writing before a decision was made if he wished to, and the claimant did provide some limited information. Accordingly, one of the proposed reasonable adjustments was something which the respondent did. The other proposed adjustment of splitting the hearing into several parts, was not something which we considered would have been a reasonable adjustment which the respondent was required to make (as the respondent submitted, it would have been a significant and unusual adjustment) and it would not have addressed the disadvantage which the claimant contended that he suffered as a result of his memory issues.

Summary

[205]For the reasons explained above, we found that the claimant was dismissed by reason of conduct and that dismissal was not unfair. We did not find that the claimant was dismissed for something arising in consequence of his disability. We did not find that the respondent breached its duty to make reasonable adjustments.