Mr D R Hardman v The Commissioners for HM’s Revenue and Customs: 2402065/2024

EMPLOYMENT TRIBUNALS

Case No 2402065/2024

Between

Mr D R HardmanClaimant

The Commissioners for His Majesty’s Revenue and CustomsRespondent

Before

Employment Judge Holmes

In person for claimant

Mr J Williams (instructed by Counsel) for respondent

Date 30 June 2026

JUDGMENT

It is the unanimous judgment of the Tribunal that: The claimant’s claims of disability discrimination in the form of: a) Harassment b) Section 15 – discrimination because of something arising in consequence of disability; c) Failure to make reasonable adjustments; and d) Victimisation are not well founded and are dismissed.

REASONS

[1]The claimant , who was formerly, when married, known by another name which he has changed and need not be referred to in this judgment, was, and remains, employed by the respondent. At the time giving rise to these claims, he worked in the Manchester , or Salford to be more accurate, office of the respondent’s Business , Tax and Customs line of business, in what is known as the National Clearance Hub (“NCH”).

[2]By a claim form presented on 3 April 2024 the claimant brings claims of sexual orientation harassment, and disability discrimination. The issues were agreed some time ago (the claimant was legally represented in the preliminary hearing on 25 October 2024) , and are set out at Annexe A to this judgment. The claimant originally made claims against two respondents, but he withdrew the claims against the individual second respondent , and has proceeded solely against his employer.

[3]The hearing was listed for 5 days. The claimant appeared in person , and was represented by Mr Bates, a lay representative, and friend (or possibly relative). The respondent was represented by Mr J Williams of counsel. The hearing was conducted remotely by CVP. Whilst the claimant originally intended to seek a postponement at the outset of the hearing, after some discussion he did not pursue this. The claimant also made an application that Mr Close be excluded from the hearing until he gave evidence, under (what was) rule 43. That application was refused for reasons given on the day. It was also clarified that although there would be evidence before the Tribunal of a previous anonymous offensive and harassing email being sent to the claimant in 2018, the claimant was not seeking to make any claim about that incident, it was merely background to the claim of harassment he makes in relation to a similar email received in February 2024. On that basis, no time limit issues arose. It was further agreed that the Tribunal would determine liability only at this stage.

[4]There was a hearing bundle, to which any page references relate. There was also a Cast List and a short outline Chronology. It was agreed that the Tribunal would determine liability only. The claimant gave evidence, but called no witnesses. That took longer than was originally intended, and the hearing was going to take longer than it was listed for. On 29 January 2026 , however, the claimant informed the Tribunal that Mr Bates had been taken ill overnight, and was not in a position to continue with the hearing. As the next stage would be cross – examination of the respondent’s witnesses, and the claimant did not feel confident of taking on that role himself, he sought a postponement, which the respondent did not oppose.

[5]The hearing resumed on 4 March 2026, when Mr Bates had recovered, and could resume representing the claimant. The respondent called Alison Doyle, Stacey Higson, Kerry – Ann McKinley, and Tom Barone , but not Chris Jones, or Robert Close, whose witness statements, however, were before the Tribunal. The evidence was concluded, in the second hearing but there was insufficient time for submissions, so it was agreed that the parties would make written submissions.

[6]These were made sequentially, the respondent’s are dated , and were received on, 13 March 2026. The claimant’s , which are undated , were received on 20 March 2026, run to some 105 paragraphs, and are extensive. Finally, the respondent submitted brief closing submissions in reply on 24 March 2026.

[7]The Tribunal convened in Chambers on 26 March 2026 to deliberate. Whilst it was hoped that a reserved judgment could be promulgated fairly soon after that, and before the Employment Judge was due to commence a period of sick leave for surgery on 15 April 2026, this proved not to be possible, and this judgment has, perforce, been delayed, for which he apologises.

[8]Having heard the evidence, considered the documents in the bundle, and the submissions made by each party, the Tribunal finds the following relevant facts:8.1 The claimant , who is gay, started his career with HMRC in June 2015 in the Peterlee office, where he was content, and did well. That office, however, was due to close as the respondent was moving to regional centres, so the claimant applied for a move to Manchester, as it was a choice of that or Newcastle at the time.

8.2 The claimant worked on the Customs side of the respondent organisation, and started work at the National Clearance Hub (NCH) in Manchester in November 2015.He was under the Senior Leadership Team (SLT) Stacey Higson, his Team Leaders (TL) were called Karen and John. The claimant had issues with these Team Leaders, but none of the matters he refers to in his witness statement form the basis of , or event the background to, any of the claims that he makes.

8.3 The claimant, for whatever reasons, then applied for another position on an out of hours team called ROSTER.He was offered the role of team leader on ROSTER, and accepted the role (there appears to be no documents relating to this in the bundle). The roster team comprised of 8 Front Line Manager Team Leaders and 36 Administrative Officer (AO) staff. It works in a business-critical work area, with 2 hours SLA. Managing staff working an 8-week shift pattern with 24/7 working, 365 days a year. The team work on Route 1, Preclearance, Customs Salford, and come under the Business, Tax and Customs (“BT&C”) line of business (“LOB”) of the respondent.

8.4 An announcement went out to all staff congratulating him on his successful application to ROSTER shortly before commencing the role. Around that time he received a threatening and abusive email. (Page 65).

8.5 He reported this to the SLT. From the documents disclosed by HMRC, it is evident that such malicious emails had been circulating since 2010, so approximately for 8 years prior (Page 72 of the bundle). He was encouraged to call the police and to try and use the language around his sexual orientation to push an investigation from the police. He did this immediately after the meeting, and was given a crime number (Page 68 of the bundle)

8.6 For the rest of the years the claimant was with HMRC at the national clearance hub he was never able to forget the email I had received in 2018, because it was something that was brought back to my mind every time someone else received one. Having close relationships with those he worked with, and being a team leader, he was often informed about others receiving anonymous emails. It was very difficult to know how to handle these situations as he shared a common upset. He was extremely empathetic, but he struggled to understand how he could support anyone more than emotionally, as it was apparent, in his view, that nothing was being done to stop these emails. Staff were continually informed to just report it upwards as there was an "investigation happening" about them.

8.7 These emails more than often attacked someone's characteristics, and something that could cause a lot of damage to someone's mental health, such as sexuality, body size, visual appearances.

8.8 During the first lockdown of March 2020 when many had been instructed to work from home by the Government, the claimant’s SLT mandated his attendance in the office, citing business needs for their decision. The claimant considered that there was no reason for this as there was absolutely nothing that he could not have fulfilled working from home, it was merely SLT choice why he had to attend the office.

8.9 The claimant caught covid-19 in October 2020. Until this date he had an impeccable sickness record with HMRC, never having a sickness day off in my whole working career. He struggled to breathe, had pain from head to toe and was isolating from everyone. In less than a month he went from a fit and healthy 30 year old who went to the gym during his lunch breaks at work, to someone who could not carry their own shopping bags out of the store or walk up the stairs without getting seriously out of breath.

8.10 The claimant was referred to Salford’s Post-Acute Covid Assessment Service. He was assessed by this service on 3rd February 2022 and subsequently diagnosed with Post-Acute Covid Syndrome (also known as ‘Long Covid’). He was at this point referred onto Post-Acute Covid Rehabilitation Services (Page 115 of the bundle).

8.11 After extensive medical tests it was concluded that all of his health conditions, such as fatigue, severe breathlessness, joint and muscle pain, gastric/digestive related issues, reduced strength and stamina, brain fog and mental fatigue, reduced tolerance to sensory input, sleep disturbance and anxiety, stress and low mood were all diagnosed as Long Covid. It was also concluded that this condition would now be considered a long-term disability under UK Legislation, The Equality Act 2010. An extensive list of his symptoms was provided to his employer in the letter from Kay Richardson, Senior Occupational Therapist (page 115 of the bundle).

8.12 At this time the claimant’s health was at its lowest point. His energy levels were getting lower and lower, he woke up exhausted and went to bed exhausted, and everything through the day was fighting back the fatigue and trying not to nap constantly. His mental health was in a very dark place. He felt that his brain fog was sapping his intelligence. He struggled to find the words to talk, he never felt happy. He developed noise and light sensitivity. People talking around him suddenly irritated and distracted me. He could not even enjoy walking from his home into work (he is a non – driver), as he now had to take breaks to gasp for air due to his reduced lung capacity. he had stomach pains and bowel issues whenever he ate food, and was put on an elimination diet,

8.13 This had even further ongoing detrimental effects, as he continuously gained weight as there was nothing he could do to exercise. He was not “himself”.

8.14 Everyone in the office, peers-managers-SLT’s alike witnessed and commented on his deterioration. His weight continued to increase, his condition continued to worsen, and it got to the point where his break every shift was used to nap, as he was so exhausted from my day he could barely maintain focus.

8.15 In late September 2022/early October 2022, I had an appointment with my occupational therapist Kay Richardson and a GP. They spoke to me quite firmly, explaining the further damage I was doing to myself by continuing to work long shifts and attending the office. She advised me to take a longer period of sickness, where I should try to focus on myself and get some regularity in my life. At this time, I was still Managed by Gillian Kidd and I explained to her that I needed to take some time off work, as I was desperate to see any sort of recovery, as so far, I had seen none, in fact, I was only ever getting worse. I was given a fit note by my GP from 01/10/2022 to 01/11/2022 (Page 113) and a further one from 01/11/2022 to 05/12/2022 (Page 114) and I then returned to work on a phased return from 05/12/2022. Gillian Kidd managed my phased return to work and always monitored any further adjustments as required. She initiated an informal meeting about her concerns in relation to my attendance. The notes from that meeting can be seen on (page 126).

8.16 Whilst Gillian Kid was the claimant’s manager throughout most of his sickness, and he considered that she was exceptional, shortly after he returned to work on his phased return, Gill went on Maternity leave. From 10th March 2023 Kerry - Ann McKinley was now his team leader.

8.17 Tom Barone was the senior officer. He was known to be very good friends with Stacey Higson, (his senior – G7) and Kerry - Ann McKinley and her partner, Dan Walsh, and Andrew Adshead, all who were now the claimant’s direct Senior Leadership team. They all had children, some of a similar age and would spend time together on weekends and come into the office at the same time as they would travel in together.

8.18 The SLT mandated rules to staff, including that ROSTER staff work 1 day on 1 day off, but themselves worked on a 60-40 basis as per the HMRC contract. Being on shift work, and having a manager who was rarely in the office, most especially on the same days as their staff, meant that a few months passed when the claimant would rarely see Kerry – Ann McKinley.

8.19 The claimant , in his witness statement, is critical of the SLT, which he saw as something of a “clique”, behaving somewhat hypocritically, and self – interestedly. That may have been so, but it is irrelevant to any of the claims that he makes. Its only relevance, potentially, is that this exacerbated his fatigue, triggered his low moods and he had no energy. That the claimant also refers to others who raised concerns about their wellbeing at the NCH, as he had done, detracts from, and does not assist his own claims.

8.20 The claimant had his first 1 – 2 – 1 meeting with Kerry – Ann McKinley on 1 November 2023. The claimant was working that day, a 12 hour shift. As he was struggling with his health and fatigue, instead of taking multiple short breaks during the day, he would often take his lunch break as one whole 1 ½ hours break, so that he could go to the recovery room and nap on the couch.

8.21 It was about 30 minutes before his break time when Kerry – Ann McKinley asked him on teams for a “Quick meeting, in 30 minutes” stating it should last about an hour (Page 182 of the bundle ). This was the first time Kerry - Ann McKinley had requested a 1-2-1 meeting with him. She had identified several performance concerns over a period of months. These concerns were based on:

• Her own observations,

• Feedback from other managers and roster HO techs,

• Issues raised by her line manager, Tom Barone.

8.22 Due to the claimant’s shift-based role, other managers had visibility of areas she was not present for, which contributed to the overall picture of performance concerns.

8.23 Kerry - Ann McKinley therefore arranged the informal meeting to discuss these concerns. The meeting was not disciplinary in nature but intended to:

• Share the performance issues identified,

• Understand the claimant’s perspective and any contributing factors,

• Explore what support could be offered to help him succeed in his role.

8.24 In the meeting Kerry - Ann McKinley explained that dips in performance can happen to anyone and may be caused by factors such as workload pressure, changes in responsibilities, health issues, or personal circumstances. She emphasised to the claimant that he was a valued member of the pre-clearance team who frequently supported others, and the aim was to work collaboratively to resolve the issues.

8.25 She discussed the following areas in detail, starting with what was going well before moving on to the concerns:

• Over the previous four to five months, the claimant had consistently failed to meet the expected standard for completing quality checks. The role required six checks per team member per week, with three hours allocated weekly for this task. Despite this, very few checks were completed.

• Additionally, the claimant was given three full working days to complete checks in support of a colleague’s work-from-home application. Only six checks were completed during this time, which did not meet expectations and did not demonstrate adequate support for the colleague. The supporting statement from the claimant required followup as it lacked supporting evidence.

• The claimant did not consistently report team members’ sickness absence correctly in the online HR system. Specifically, Day 1 absence information was missing from the relevant files, which created difficulties for other First Line Managers covering in his absence. This impacted the ability to update records and take appropriate followup actions.

• There was an instance of unprofessional communication in Teams chats involving the claimant and a Senior Officer. These exchanges included impolite comments. I was asked to address these to maintain a respectful and professional working environment.

• Concerns were raised by the claimant’s colleagues regarding his leave requests, particularly in relation to the week 7 and ‘relief week’. His requests impacted shift coverage and fairness to other team members. Kerry - Ann McKinley had been approached to discuss whether any of his leave could be adjusted to accommodate others and check it was in line with the AAA.

8.26 During the meeting the claimant disclosed health concerns. It was agreed that a new Occupational Health (OH) referral would be made. Kerry - Ann McKinley also proposed the following support measures:

• Regular check-ins to provide guidance and feedback,

• Option of introduction of a buddy system for additional support,

• Continued collaboration to implement any OH recommendations.

8.27 Kerry - Ann McKinley clarified that while a Performance Improvement Plan (PIP) was not being initiated at that time, it could be considered in the future depending on the circumstances. The focus remained on support and improvement.

8.28 Kerry - Ann McKinley followed up the meeting with an email on 11 December 2023, in which she set out a note of the discussion, and the conclusions reached. In particular, she noted this (at page 158 of the bundle): Daniel agreed he is probably not doing as good as you he has done previously, and that you could have done more Quality. You explained you had spoken to Gill about your fatigue and how you struggled with ongoing issues Healthwise, which you felt had some impact on your role. We spoke about the shifts and how you struggled with the 12 hour (early starts and length of shift) and night shifts. I offered the option of changing from 7-7's to 7-5's. You said this was a complete no to 7-5's, that you couldn't do 4 days in the with the office tiredness and exertion. Daniel explained how he literally want to cry as so tired a lot of the time. I know best thing is to get in to work and nothing anyone can do to help me. You said were unsure sure if it will ever go. You explained it was classed as disability. You were advised by the Long COVID clinic you attended that you shouldn't be doing shifts (working) and that you could claim PIP (personal independence allowance). You said you didn't want to do that, you wanted to continue to work and do your job. You stated is was up to you to manage your condition. That you had work so hard for to find the mental and physical strength most days. I guess I try to conserve energy. We discussed your previous OH report and that was focused on supporting your return to the office fulltime. Daniel stated how work looks to him now that he has been back. He sometimes feel's Lazy, he is most definitely not as sociable and doesn't speak to anyone as much as he used too, as it takes it out of me. We discussed Daniels sensitivity overload brain fog, and he feels so fatigued by things that don't usually bother him. This can lead to him being easily irritated. Ever since I've had COVID, he feels he can get easily distracted and stops him from concentrating. Following this we discussed the option of doing a new OH referral. As the previous was focussed on different outcomes and not what support/adjustments Daniel may need currently. Daniel agreed to go ahead with this.

8.29 She went on to summarise three action points going forward, and added some general points to consider (page 159 of the bundle) .

8.30 The claimant does not agree with most of the issues raised, save that he does accept that he was struggling to keep up with the required amount of quality checks that were being asked of him.

8.31 The claimant asked, and was allowed, to take the rest of the day off, as this meeting had taken 2 hours, and had taken up his break time. He was tired, and upset, He rang his mother (as he often did for support) on his way home. He was in tears. It was now the weekend and he was in a poor emotional state. He considered that the way in which the meeting had been arranged and conducted was callous. Not having the notes exacerbated his anxiety and caused more sleepless nights.

8.32 The claimant had previously gone through a divorce and lost my support network/accessibility (due to being a non-driver). He had long covid and daily fatigue, and not long prior a broken leg. He was going through counselling with the long covid clinic and seeing a dietician due to ongoing digestive issues.

8.33 Whilst Kerry - Ann McKinley had indicated that she would send the claimant the notes of their discussion the following day, she did not do, not doing so until 11 December 2023. This was more and more distressing for the claimant , who found the whole meeting stressful, and worrying.

8.34 The claimant continued in work, however. Although he says he saw his GP (he does not say when) there is no Fit Note in the bundle around this time until the one dated 22 December 2023.

8.35 On 6 November 2023, before he had received the notes of his meeting with Kerry - Ann McKinley, the claimant requested a transfer to HMRC Longbenton, in the North East. He did so by email sent to Tom Barone, copied to Kerry - Ann McKinley, at 18.18 that day (page 128 of the bundle). As this is an important document, it will be recited in full: I am writing to formally request a transfer to HMRC Newcastle Longbenton office under medical grounds. As you are aware, I have been suffering the effects of Long Covid; Post Exertional Malaise and Post Viral Fatigue for several years. This continues to pose serious detrimental effects on my health, wellbeing and energy levels, meaning that I suffer greatly at work. Despite this, and even going against medical advice, I continue to make every effort to ensure that I am completing my shifts, attending the office and completing my role as a manager and duty officer. Recently the stress of the role and the clear lack of care towards staff, combined with my recent performance discussion, has made it very apparent that my work and my efforts are not valued. I believe that the best thing for my health is to move away from shift work and back to a regular routine away from Route1 Pre-Clearance where I can focus on my health and be closer to my family for support. I am ready to transfer as soon as possible for the betterment of my health. The necessary logistics at my end have already been arranged in order to facilitate a transfer. I would prefer for the transfer to be of a Band EO role without management responsibilities; however, due to the health reasons behind this transfer request, I would be willing to take on management responsibilities in the interim if it would speed up the transfer process. Please could you approve this transfer request and keep me updated with its progress.

8.36 Tom Barone responded the following morning (page 129 of the bundle) saying that they could discuss this request that afternoon, when the claimant was due in work. They did indeed have a discussion, which is not documented anywhere. They have slightly different recollections of that discussion. The claimant considers that this was not a discussion to talk about what could be done to facilitate a transfer or to explore options, it was to put a barrier in place. Tom Barone said that the claimant was not considered a priority mover, and because there is no Customs presence in Newcastle, that he would not be able to transfer office. Tom Barone, however, says that he did try to support the claimant , offering him the chance to work days, and come off shifts, but the claimant did not want this, as he would lose his AAA allowance for working shifts, which he could not afford. Tom Barone also had not at that stage made any specific enquiries, so it is unlikely , the Tribunal considers , that he would have known, at that early stage, whether the claimant would or would not be a priority mover. Be that as it may, both agree that the claimant’s position was that it was up to the respondent to find a position for the claimant in the North East. Tom Barone was to refer the matter to Chris Jones, the Grade 6 officer for Salford.

8.37 In the meantime, following from the discussion that the claimant had had with Kerry - Ann McKinley on 1 November 2023, the claimant on 9 November 2023 sent her a consent form for a referral to OH. She was on leave at the time, but replied on 13 November 2023, pointing out that the attachment was missing from his email. She also mentioned the transfer request that the claimant had made since their meeting, and suggested making some temporary short term adjustments to support the claimant , and reduce the pressures discussed in their meeting. She suggested they discuss these matters, and the claimant agreed in his email in reply, to which he attached the missing OH consent form, on the same day, 13 November 2023 (page 130 of the bundle) .

8.38 Kerry - Ann McKinley also set about making enquiries of the HR Expert Advice Service (“EAS”) about the relevant policies and procedures relating to transfer requests.

8.39 Letitia Duguid of EAS sent an email to Kerry - Ann McKinley on 15 November 2023 summarising advice she had provided to her about any proposed transfer, and, in particular, priority or managed moves (pages 134 and 135 of the bundle). In particular she said:

• There is the priority movers guidance for individuals with a medical condition but this is usually in exceptional circumstances.

• Workplace adjustments includes Priority Movers - https://ukrc,servicenow.com/esc?id=kb article&svsparm article=KB0016761 - you’d consider all adjustments in the current LOB and usually expected to explore and have exhausted these and considered OH advice before considering of Priority Movers, if appropriate.

• Advisable to discuss the shift pattern the individual works and ensure adjustments are in place/OH advice sought and if looking at other roles, to also consider the shift allowance if there is a change in role - as advised you may want to discuss this and the case further with your local HRBP.

• Advised to signpost the Jh to support from PAM Assist, EAS/MH wellbeing pages and any other support.

• There’s policy on when a colleague requests a change to their office location - HR25402 — Colleague requests to change their office location (usually to support with caring responsibilities, relationship breakdown, support to family) She went on to refer to two other policies, but these are the more relevant ones. (Note: “LOB” is “line of business” and “Jh” is the jobholder).

8.40 There was, it seems, although this too is not documented, a meeting between the claimant and Kerry - Ann McKinley on 17 November 2023. She too discussed the possibility of the claimant moving off shifts pending the OH referral, or his transfer request, but the claimant again resisted this as too financial detrimental. Kerry - Ann McKinley explained the EAS advice that she had received, and how a managed or priority move may not be as easy as the claimant would wish.

8.41 Kerry - Ann McKinley followed up this meeting to the claimant with an email of 20 November 2023 (page 136 of the bundle) , to which she attached two further documents for his assistance , the Wellness Plan, and the Stress Management Plan, together with guidance thereon. She also referred him to the Stress and Resilience support tool, for him to complete and send back to her. The claimant did not do so.

8.42 The claimant in the meeting (or possibly at some other time, but clearly before 21 November 2023) voiced his concerns that Kerry - Ann McKinley had not informed EAS that the reason for his transfer request was his health, and that this had been underplayed. The claimant has continually (see, for example, paras. 6.4 and 7.1 of his witness statement) accused Kerry - Ann McKinley of linking his request to his performance issues , as discussed on 1 November 2023, thereby undermining it, and de-linking it from his disability. Kerry - Ann McKinley denies this, and in an email of 21 November 2023 (page 139 of the bundle) to the claimant she said this: Just to clarify it wasn't that your health wasn't a priority reason, however that the details surrounding your condition (as per your request to transfer email) did not automatically enter you in to the 'priority movers' category as it would not be classed as an exceptional circumstance. My reason for contacting EAS was to establish if there is a set process for transfers (I explain the reasons behind the request following the recent PDC meeting re performance) Explained we were happy to try and arrange a change to location/role, SO had reached out to G7. G6 has attempted to facilitate a move as much as we can, yet due to BT&C having no presence at Longbenton site we have no contacts and no further lines to make this work. Has suggested Washington however, you weren’t willing to compromise on location. Asked what obligations we had and any steps with what else we could consider to support the move. She went on to summarise four of the bullet points from Letitia Duguid of 15 November 2023, as recorded above, and the advice she had been given.

8.43 On 20 November 2023 Kerry - Ann McKinley sent the claimant a Workplace Adjustment Passport to complete, which was to be discussed before the OH referral. The claimant duly completed this, and returned it to Kerry - Ann McKinley on 21 November 2023 (pages 140, and 141 to 147 of the bundle).

8.44 Whilst in this document the claimant sets out several adjustments to his working arrangements and their impact upon him, in particular shift work, he nowhere suggests that a move of location would assist him, nor that he had actually , at that time, actually made a request for one.

8.45 Kerry - Ann McKinley went on to prepare the OH referral for the claimant. Whilst the actual referral does not appear to be in the bundle, an insight into what it probably contained can be found in an email that Kerry - Ann McKinley sent to Stacey Higson and Tom Barone on 28 November 2023 (page 148 of the bundle) , with the subject matter “Daniels OH Questions” . In it Kerry - Ann McKinley said this: 1. As we are an office based organisation, office presence is expected both as part of Daniels shift role and at a management level. Daniel has explained although he lives locally, as a non driver he is finding his usual walk to the office increases his fatigue before he even starts work. Due to the breathlessness he describes, he now regularly resorts to getting taxi's, which adds to the financial impact. One of the reasons he remains in his shift role. Would access to work be beneficial in this instance with his long term conditions? 2. Is [sic] there any additional office based adjustments you could recommend? 3. We have offered to explore a permanent move to days, though Daniel has confirmed he is not financially able to do accept this whilst he remains at this location. Please can you provide what particular issue(s) with your shift role that is impacting your health? 4. Daniel has described stress in his current role. We have discussed and planned to put in place some temp workplace adjustments to support his FLM role. For example reducing time in higher pressured aspects of the role such as the duty officer, which takes up huge amount of time/energy which will allow Daniel to increase his focus on areas he currently struggles to concentrate on further. Please could you recommend any other adjustments or support we can put in place to minimise any stress in his role?

8.46 The precise date of the referral being made to OH is unclear, but it was acknowledged on 30 November 2023 by the service provider (page 149 of the bundle).An appointment was duly made for the claimant on 19 December 2023.

8.47 On 7 December 2023 the claimant sent a lengthy email to Kerry - Ann McKinley and Tom Barone (pages 167 to 168 of the bundle). The subject matter is “Areas of concern/transfer request”.

8.48 The EAS service that the respondent operates is (perhaps curiously) available to both employees and management. The claimant had contacted EAS, and set out what he had been advised.

8.49 The first main point he made was that his transfer request was not in relation to his performance meeting, which he claimed Kerry - Ann McKinley had inferred. The second was that it was management’s decision whether he was a priority mover. He made complaint at the 4 weeks that his OH referral had taken. He went on to explain how he could not complete the documents that Kerry - Ann McKinley had sent to him, because he had still not received the notes of the meeting on 1 1 November 2023. He then went on to question what had been said in that meeting, and whether the notes would be accurate.

8.50 The claimant made reference to “G6” (i.e Chris Jones, who gives no evidence at all about this) trying to facilitate a move to Longbenton, but being told that there was no BT&C presence at that location. The claimant then made reference to his union making the respondent (he says “you”, so he may mean Kerry - Ann McKinley) aware that there in fact was such a presence, so that discussions could now take place, hopefully, with a view to a transfer there.

8.51 From this email exchange , it appears that the impression held by Chris Jones, and possibly therefore also Kerry - Ann McKinley, and/or Tom Barone, was that the claimant could not move to that location because there was no “BT&C” presence there, and that was the claimant’s business area.

8.52 Kerry - Ann McKinley replied on 8 December 2023 (pages 167 to 168 of the bundle). In relation to the delay in providing the minutes of the meeting on 1 November 2023, she said this: Thank you for your email and raising your concerns. Apologies that the notes have not been sent over to you prior to this or when I had stated. To clarify detailed notes were documented during the PDC, but not in a state to be sent over as there was quite a lot discussed in the PDC meeting. I wanted to ensure these were clear and documented sufficiently. Partly the delay was in relation to some mitigating circumstances which I believe you were aware of; the Friday 3rd Nov I was asked last minute to note take for a formal appeal case, where I was required to provide the notes that day due to me being on Annual Leave 6th - 12th November. On returning from leave 13th November, I returned your email as there was no OH consent form attached, you then attached this. Whilst I was on leave you had requested an Office location transfer. We had a conversation surrounding this and on the 20th November I sent you the Wellness plan/SMP to review and consider. I also sent you the WAP guidance to complete. We met on the 20th to discuss the transfer, advise I had sought from EAS and also the WAP. I was awaiting the return of these documents to support the OH referral, our discussion also provided further info I wished to consider to support any additional questions for your OH.

8.53 She went on to address other points made by the claimant , and pointed out how EAS had apparently given them both conflicting advice. She pointed out that the claimant had had no time off for medical appointments or health related reasons. Ahe explained why she had raised the performance issues on 1 November 2023. She ended her email with this: Following informal conversation's [sic] we held at the time and considering your long term health condition indicators the emphasis was on a transfer request to Longbenton (priority location) rather than Washington. As discussed with you on 20/11/2023, 1 was also grateful of the Union providing this information in regards to BT&C presence at Longbenton, which I immediately passed on to Tom and Stacey. Yet, as BT&C have no official presence in Longbenton, whilst there may be staff there they are not there in an official capacity, this is why we suggested Washington as we may have been able to facilitate a non-priority move (subject to availability). Thank you for clarifying you would be open to considering Washington as a second choice if it is agreed Longbenton cannot be an option.

8.54 She proposed a meeting on 13 December 2023. The claimant replied on 11 December 2023 (pages 166 to 167 of the bundle). He suggested that the meeting on 13 December 2023 be re-arranged so that he could have union representation, or the issues dealt with in writing. He continued to express his dissatisfaction with the delay in the provision of the meeting notes. He also continued to express his disappointment with Kerry - Ann McKinley’s “repeated assertion” that his transfer request was linked to the performance discussion. He went on to make (as he had done in other emails) further references to ACAS and the Equality Act 2010, and to assert that he was entitled to a reasonable adjustment of an office transfer. In particular , he said this (page 67 of the bundle) : I am troubled by the apparent reluctance to consider the reasonable adjustment I have requested, that is, the office transfer until an OH report is obtained. Legally, the employer is obligated to facilitate my reasonable adjustment transfer request immediately to Longbenton based on my health condition and my long-term disability. He went on to threaten to pursue “all legal routes” available to him under the Equality Act 2010.

8.55 On 11 December 2023 Kerry - Ann McKinley sent the claimant the notes of their 1-2-1 meeting on 1 November 2023 (pages 152 to 159 of the bundle) , as recorded above. On 12 December 2023 Kerry - Ann McKinley sent the claimant a further email (page 166 of the bundle) reiterating the advice she had received from EAS, to the effect that the claimant was not deemed a “priority mover”. She acknowledged receipt of his completed WAP, and suggested a DSE assessment to support it. She told him that her immediate priority was to get reasonable adjustments in place in his current role and provide all the support that he needed. It is unclear whether the meeting proposed for 13 December 2023 actually took place .

8.56 On 18 December 2023 Kerry - Ann McKinley (page 162 of the bundle) sent the claimant information relating to the Access to Work scheme, ahead of his OH meeting the following day. She did point out the need for there to be a discussion about alternatives before any such application could be progressed. She did point out that office attendance was mandatory in their business area (i.e. something that would assist any such application, as the claimant not attending the office would not be a suitable alternative), and went on to explain what steps needed to be taken for the claimant to qualify for Access to Work assistance.

8.57 The claimant alleges (paras. of his witness statement) that he was in the quiet room, connected to his work computer and awaiting the call from occupational health on 19th December 2023, when Tom Bartone came into the room, shook his head and bluntly said that there is no presence in Washington either, which means that a transfer cannot happen. This is not the subject of any claim made by the claimant , and is not mentioned in Tom Barone’s witness statement.

8.58 The OH report dated 19 December 2023 is at pages 160 and 161 of the bundle. This sets out the history of the claimant’s previous OH report, and the claimant’s assessment by the NHS Long Covid Clinic, which the author had not seen. It recites the claimant’s symptoms, and the difficulties he was experiencing in travelling to work, and completing his duties. His lack of support locally was noted, and his desire to move to an office closer to his family home would be helpful.

8.59 In the Opinion section, the report states: Opinion: It is my view that Daniel is fit for with adjustments. The current adjustments contained within the work adjustment passport are appropriate and I would suggest that they continue for the foreseeable future. Additionally to these, as much working from home as is operationally feasible would help Daniel in being able to take small naps to aid his exhaustion, remove the arduousness of his commute and further assist in his meal preparation and eating.

8.60 The report went on to state that a workplace stress assessment would be helpful. There then ensue four paragraphs which said to be answers to “your specific questions”, which are probably those proposed in Kerry - Ann McKinley’s email of 28 November 2023 (page 148 of the bundle) discussed above.

8.61 The first response confirms that the Access to Work scheme would probably be beneficial for the claimant and: A proportion of working from home would also be beneficial as previously mentioned, and the degree to which this could be accommodated would remain a business decision, however, as much flexibility as possible is recommended.

8.62 In the next paragraph the report recommends the provision of an allocated rest area for the claimant in work, unless he could work from home. The next paragraph dealt with the impact of shift work upon the claimant, and the next with the need for a stress risk assessment, and possible alteration of workplace targets and workloads.

8.63 The report went on to say this: Daniel is likely to require ongoing additional support within the workplace greater than a member of his non affected peergroup. As detailed earlier, he has very limited social support currently, and he reports that this would be very different if he was able to locate to live closer to his family and continue within his current employment. Given his condition and its chronicity, this would likely be of huge benefit to him and would be medically advisable.

8.64 The report was provided to the respondent on or about 20 December 2023. On 21 December 2023 the claimant sent an email to Kerry - Ann McKinley at 10.00, referring to the report, and formally requesting that he be allowed to work from home 100% of the time, with immediate effect, until the matter was concluded and his final reasonable adjustments were agreed.

8.65 Kerry - Ann McKinley replied on 21 December 2023 (page 205 of the bundle) confirming that she had seen and read the OH report. She told the claimant that she could not, due to the imminence of the Christmas period , and the leave of herself and members of the SLT, deal with his request at that time. She did, however, agree that the claimant could temporarily work from home on 23 December , 27 December and 29 December 2023 (those being the next dates that the claimant was rostered to work), but would be expected back in the office on 2 January 2024. She proposed that they had an informal meeting on 4 January 2024, and provided the claimant with details of vacancies at Longbenton. She also informed him that Tom Barone would be available on 27 December 2023 to support the claimant with any applications he wished to make.

8.66 On 22 December 2023 the claimant consulted his GP, and was provided with a Fit Note for 1 month , for fatigue from long covid (page 173 of the bundle). He informed Kerry - Ann McKinley of this by email that day (pages 204 and 205 of the bundle), and provided her with a copy of the Note. He pointed out that his GP had said (as is recorded on the Fit Note) that he would be fit to work on condition that he could do so from home as a reasonable adjustment. If he could not do so, however, the claimant said that he was advised to “go on the sick”. He went on to question whether the meeting scheduled for 4 January 2024 would be possible, or indeed whether it was necessary, but he was prepared to attend it remotely. He also mentioned the job vacancies at Longbenton, and asked that these were not suggested to him. He reiterated his request for a prioritised transfer, and indicated that he would be raising a formal grievance.

8.67 Tom Barone replied to the claimant by email on 27 December 2023 (page 203 of the bundle). He reiterated that the homeworking dates were limited to those set out in Kerry - Ann McKinley’s email, and that he would be expected back in the office on 2 January 2024. He went on to discuss the purpose of the meeting that was scheduled, and to try to understand what the claimant had meant by what he had said about job vacancies at Longbenton. He also explained that the sharing of job vacancies had been advised by EAS.

8.68 The claimant replied to Tom Barone later that day (page 203 of the bundle). In short , in this email , the claimant asked Tom Barone whether he would allow the claimant homeworking, or would prefer him to serve his shifts on the sick, under cover of his Fit Note. Tom Barone replied at 10.44, in the absence on leave of Kerry - Ann McKinley , on 2 January 2024, but did not answer this question specifically. The claimant replied at 12.51 that day (same page), again asking the same question about homeworking for the 4 week period in question. At 13.27 that day Tom Barone emailed the claimant to tell him that he would agree to him homeworking for that day.

8.69 Kerry - Ann McKinley returned from leave , and resumed management of the claimant in January 2024, Tom Barone ceased to manage him at this time.

8.70 Whilst there is no documentation to confirm this directly the claimant was never thereafter required to work in the office, and continued homeworking until his transfer.

8.71 Meanwhile the claimant submitted a grievance by email to Chris Jones on 30 December 2023, to which he attached a “Formal concern” form that he had completed (pages 174 to 200 of the bundle) . In that document the claimant raises seven specific grievances, most of them relating to Kerry - Ann McKinley’s dealings with his transfer request, and allied matters. The claimant in this grievance alleges breaches of the Equality Act 2010, and the grievance is, and is conceded by the respondent to be, a protected act for the purposes of s.17 of the Act.

8.72 Although the claimant submitted his grievance to Chris Jones, who acknowledged it on 2 January 2024 (page 247 of the bundle) it was ultimately allocated to Robert Close , a VAT Tax Specialist , to deal with. In this email Chris Jones went on to explain how he had made some enquiries about any BT&C presence in Longbenton, and that he had made some enquiries of the Washington site to see if they had any vacancies, but they did not. This process does not appear to be fully (or at least very clearly) documented in the bundle, but the claimant was clearly aware of Robert Close’s appointment, as on 16 January 2024 , following a telephone call with him, he sent him some additional information (pages 236 to 244 of the bundle) of which more below.

8.73 Meanwhile, Kerry - Ann McKinley continued to manage the claimant , who remained working from home during January 2024. They had a discussion on 3 January 2024, which she then summarised in an email at 17.43 that day (pages 212 to 213 of the bundle). That email discussed various points about the claimant’s own situation, but also management issues that were current in relation to his management of his team.

8.74 From the email exchange on 3 January 2024 (pages 211 to 214of the bundle) it appears that Kerry - Ann McKinley confirmed her approval for the claimant to continue to work from home until 16 January 2024. In his reply email at 21.47 he pointed out that his Fit Note ran from 22 December 2023 and would therefore cover shifts up to 21 January 2024. He noted that Kerry - Ann McKinley had extended his homeworking to 20 January 2024, but he needed her to approve homeworking on this date. In this email he confirmed (although she was already aware) to Kerry - Ann McKinley that he had submitted his formal grievance on 30 December 2023. He went on to express his willingness for her to continue to review his case in a further meeting, and for her to give him her decision on his two requests for reasonable adjustments, i.e the transfer request and the homeworking request.

8.75 Kerry - Ann McKinley also sought EAS guidance on 3 January 2024, and her note of what she was advised is at page 207 of the bundle.

8.76 On 4 January 2024 at 14.59 Kerry - Ann McKinley sent the claimant a further email (pages 210 and 211of the bundle) in which she set out the process for workplace adjustments, and , in particular, for a workplace adjustment passport. She went on ask about the forthcoming meeting that they had been trying to arrange, and clarified her position on his working from home, which she agreed to extend temporarily until they could meet. She asked the claimant to clarify whether he was only asking for 4 weeks WFH, or permanent home working. If the latter, she referred the claimant to the relevant policy. She did , however, also point out how the claimant’s role as a manager did require 60% office attendance, and his role as a deputy ICO (“Incident Control Officer”, i.e a designated person who was required to take charge and carry out certain functions in the office in the event of an incident such as a fie or evacuation) as part of out of hours health and safety cover, would be a consideration in any decisions on reasonable adjustments for additional home working.

8.77 The claimant replied to this email on 5 January 2024 at 10.47 (pages 209 to 210 of the bundle). In it the claimant made a number of points about the reasonable adjustments process, and confirmed that his request was for permanent home working. He referred to the advice he had received from his own EAS advisor, and went on to say how he had sought that the decision on his reasonable adjustments requests should now be taken by the Decision Manager of his grievance, and not by Kerry - Ann McKinley. He therefore proposed to cancel the meeting scheduled for the following week, as being no longer necessary.

8.78 Kerry - Ann McKinley replied by email of 5 January 2024 at 15.25 (pages 208 and 209 of the bundle) . She did not say much in this email about the points raised by the claimant , nor did she comment upon his stated intention to have his reasonable adjustments requests determined by the Decision Maker on his grievance. She did, however, address further some of the management issues that had been discussed in relation to the claimant’s own team.

8.79 Also on this day, 5 January 2024, Tom Barone sent an email to Gaby Jacobson of HR (presumably in the North East) asking her to check for any vacancies for an FLM in her area, as he had received a transfer request , and she replied on 8 Janaury 2024 (page 430 of the bundle) telling him that she had asked a colleague to respond to his quesry.

8.80 The claimant replied by email of 7 January 2024 at 21.28 (page 208 of the bundle). After dealing with the management issues within his own team, he went on to say this: Secondly, I must express my concern about the tone and content of your recent emails, particularly in the context of the stress and anxiety they are causing me. In my previous email, I clearly communicated the significant stress caused by your current handling of my case. Your subsequent email, focusing on operational issues and queries about team management, again shows a lack of empathy on your part, and has regrettably added to my stress. The cumulative effect of your communications is becoming increasingly concerning. It is reaching the point where it could be considered as victimisation, especially considering the formal grievance recently raised regarding your handling of various matters. I urge a more considerate and respectful approach in your communications with me in the future. It is crucial for our interactions to be constructive and supportive. I appreciate your attention to these matters and look forward to a more collaborative and understanding approach going forward.

8.81 Kerry - Ann McKinley then sought further guidance from EAS. She sent herself an email on 10 January 2024, which appears to be a note of a discussion that she had with EAS in 19 December 2023.

8.82 Her next email to the claimant was on 11 January 2024 at 13.38 (page 215 of the bundle) which appears to be a response to one from him (not, it seems, included in the bundle) in which he had updated Kerry - Ann McKinley about a member of his team, and their return to work. She asked for an update now that they had returned to work. No reply appears in the bundle.

8.83 At 14.55 the same day, Kerry - Ann McKinley sent the claimant a further email (page 216 of the bundle) regarding another (it seems, but it may be the same person, the redaction makes it hard to tell) member of the claimant’s team, and their request to work from home. She asked the claimant to discuss the issues with the team member, and to update the shift roster accordingly. Again, no reply from the claimant is apparent.

8.84 On 11 January 2024 at 16.18 Kerry - Ann McKinley also sought advice from EAS, in the person of Tony Hancock, in particular in relation to an email that she proposed to send to the claimant, a draft of which she provided to him. He commented upon her draft in his email in his reply at 17.02 the same day (pages 217 and 218 of the bundle), his proposed amendments being added in red in the original . In particular he suggested that the following (in bold in this document) be added to what Kerry - Ann McKinley had drafted: As your manager I appreciate the various point's [sic] raised in your most recent email response, also outlining the formal concern raised. Whilst taking the above into account I consider it a reasonable and essential management request (as per EAS advice) to continue to move forward with a meeting together to discuss and implement any reasonable adjustments operationally feasible in conjunction with your OH report. This is a supportive measure to ensure that everything that can be put in place to support you in carrying out your role is done so and also to discuss options going forward. This will be my third attempt to arrange an informal meeting with you for this purpose. I have planned a meeting for Friday 19th January at 12pm. If you still require union representation for this then please arrange accordingly. I will then also arrange for a note taker so a clear record of what is discussed is available following the meeting. Either way I expect for the meeting to go ahead as proposed on the above date. EAS have confirmed regardless of any ongoing concerns this is a reasonable management request. We are both expected to fulfil our required roles as such further refusal to engage with me on this could be considered a behavioural issue, and may result in formal action. This is obviously not something that we want to do but it is important that you are made aware of this at this stage. I understand this is a difficult time for you but I hope holding the meeting and discussing the issues will prove productive

8.85 The email , in the form suggested by Tony Hancock in his amendments , was sent by Kerry - Ann McKinley to the claimant at 17.32 on 11 January 2024 (pages 221 and 222 of the bundle) . The claimant replied to Kerry - Ann McKinley at 11.01 on 12 January 2024 (pages 220 and 221 of the bundle). He said, in the second and third paragraphs: The tone and content of your communications continue to be hostile. They include aggressive and threatening elements which are exacerbating my sense of victimisation. Furthermore, this is heightening my stress and anxiety, which is not conducive to my health condition. This is especially pertinent given the formal grievance filed against you. I am therefore copying my case handler from the Expert Advice Service into this email to ensure that your pattern of victimisation and its effect on my wellbeing will now also form part of my formal grievance. As I have raised a formal concern against you, your involvement in handling the reasonable adjustments I have requested, and those contained within 2 occupational health reports, present a clear conflict of interest, which is both significant and concerning. In line with ACAS guidance and UK employment law, it is imperative to avoid such conflicts to ensure fairness and impartiality. I strongly urge you to consider leaving this case to the CSS Decision Manager appointed to handle my case, to prevent any such conflict of interest from affecting this matter.

8.86 The claimant continued to confirm that he would attend the meeting arranged for 19 January 2024, but said this was only because of the threat of formal disciplinary action if he did not. He went on to say that he would add these matters to his grievance, and to threaten legal action. This causes Kerry - Ann McKinley some anxiety and concern, which she expressed to Tom Barone and Tony Hancock.

8.87 Tom Barone was copied into this exchange, and on 12 January 2024 , as was Tony Hancock . His advice was for Kerry - Ann McKinley to proceed with the meeting (page 219 of the bundle).

8.88 On 15 January 2024 at 11.49 Kerry - Ann McKinley sent a further email to the claimant (page 229 of the bundle) in which she apologised if the claimant had found the tone of her email hostile or aggressive, but she did not agree that was the case, and confirmed that it was not her intention. She went on to explain the role of the Decision Manager, and that she and Tom Barone would fully co-operate with him, The meeting arranged for 19 January 2024 was confirmed.

8.89 On 16 January 2024 at 08.29 the claimant sent Robert Close an email to which he attached a document entitled “Supplemental Grievance” (pages 236 to 244 of the bundle) , with attachments. This sets out further complaints that the claimant wished to raise about Kerry - Ann McKinley’s communications and lack of empathy and understanding. In one paragraph , headed “Perceived Victimisation”, he said this: Perceived Victimisation: The ongoing nature of Kerry McKinley's communications to me since my raising of the formal grievance, creates a sense of victimisation. This is particularly evident in the email dated 5th January 2024, where Kerry continued to focus on operational issues despite being aware of my formal grievance and the stress it was causing me. This approach not only disregards my health concerns but also makes me feel that Kerry is seeking revenge, especially in light of the grievance raised. There has also been a marked increase in the volume of communications from Kerry McKinley, which are pressuring, controlling, and manipulating. Communications from various members of management, including Kerry McKinley, Diane Holland, and Catherine Mutch, all in relation to sickness absence, contribute to a feeling of being bombarded and harassed. This barrage of contact, with Catherine on Sunday 7th January 2024 at 20:41, Diane on Tuesday 9th January 2024 at 22:41, and Kerry herself on Thursday 11th January 2024 at 13:38, appears to be a deliberate targeting and harassing tactic offering me no respite. Kerry's persistent and overwhelming stream of communication, which shifts focus as one issue is resolved only to highlight another, has created an oppressive work environment. It is reflective of harassment and has significantly intensified my experience of victimisation. The pattern of these interactions, especially in the context of an existing formal grievance, is both inappropriate and distressing, and I believe it merits serious attention and rectification.

8.90 At 12.10 the same day Tom Barone sent an email to the claimant (page 245 of the bundle) telling him that he was awaiting contact from the team in PT ( Personal Tax, the Tribunal understands) and that he would send over the information once he had had the call. This was a potential move to the North East.

8.91 The claimant at 14.31 that day sent an email to Chris Jones seeking his assistance in resolving the issues he was having with Kerry - Ann McKinley (page 246 of the bundle) . He mentioned at the conclusion of this email that he had just been notified of a potential transfer to Longbenton, which he was hoping would come to fruition.

8.92 It appears that there was an informal meeting on 16 January 2024 with the claimant (for there are notes of it at pages 249 and 250 of the bundle) but who it was with is not clear, and no witness deposes to it. Given the contents of the email from Robert Close on 16 January 2024 to the claimant (page 273 of the bundle) , it seems likely that this document was created by him.

8.93 Chris Jones replied to the claimant’s email to him of 16 January 2024 on 17 January 2024 (page 252 of the bundle). He sought some clarification from the claimant, and confirmed that he had made some further enquiries about vacancies at Longbenton. He went on, however, to explain how any move would not be a priority move, but if “they” (i.e HMRC) could facilitate it, this would be best all round. He also explained how Kerry - Ann McKinley had been asked to carry on as normal , despite the grievance he had raised of which she had been made aware. He noted the claimant’s concerns about this, but considered that he was not the best person to make a decision of this, so had referred the matter on to Stacey Higson, the G7 manager.

8.94 In the meantime there had been email communications between one Helen Laird of HR (presumably for Salford) and PT Operations at Newcastle, which stated on 9 January 2024, to explore whether there may be an vacancy for a Band O (the claimant’s Band) FLM – Front Line Manager - in Newcastle, to accommodate the claimant’s transfer request. Over the next few days it emerged that there might be such a vacancy, and the two parties explored the further details in further emails , involving other HR personnel as well. It was confirmed by Salford that the proposed move was not a priority move, and that the was not on any attendance or performance procedures (pages 268 to 272 of the bundle).

8.95 The upshot of this was confirmation on 17 January 2024 from Leanne Ratcliff in PT Operations North East England, that there was a gap for a FLM, and she explained what the role would entail (page 267 of the bundle) . Leanne Ratcliff still had some questions, particularly as to any trial period, and the following day contacted Tom Barone directly to suggest they spoke, which, it seems , they did on or about 19 January 2024.

8.96 On 19 January 2024 at 10.57 Tom Barone sent the claimant an email to confirm that PT Operations (in Longbenton) had confirmed a vacancy for an FLM. He went on to explain how this post would be to manage a team of new recruits joining the National Insurance line of business. This would involve an initial period of 6 weeks attendance in the office to attend training and consolidation. Thereafter the requirement would be office attendance 3 days a week, with one late night per week. He confirmed that this was not a priority, which meant that if the claimant declined it, there would be no further exploration of alternatives by the Longbenton office. He asked for the claimant’s thoughts urgently.

8.97 By email at 13.47 the same day the claimant replied, saying he would accept the position , should it be formally offered. He went on, however, to express his ongoing concerns about the tone and content of recent communications from management. He commented that the statement about there being no further exploration if he declined the role as a “restrictive and threatening stance”. He went on to make further observations about the respondent’s approach to reasonable adjustments, but, in short , agreed to discuss this transfer further with Tom Barone when they next met (these two emails are at page 258 of the bundle), and thanked him for his efforts in facilitating this potential transfer. The meeting that was to have been held that day was cancelled. 8.98. On 22 January 2024 after a discussion between Tom Barone and Leanne Ratcliff, the latter sent an email (pages 265 and 266 of the bundle) to confirm the discussion, setting out the position in relation to the proposed transfer, and the terms upon which it would be offered. After further discussion (it seems, although no one says this in their evidence, and it seems via messaging between the two at pages 338 to 341, which no one took the Tribunal to ) between the claimant and Tom Barone, the later replied to Leanne Ratcliff later that day (pages 264 and 265 of the bundle) to say that the claimant was happy to commit to the role, with the only issues being any trial period, as the claimant would be giving up his home in the North West, and an actual start date. After further discussion as to whether a trial period would be required, which remained a requirement, but with some reassurance (in an email of 23 January 2024, at page 264 of the bundle) that if necessary, if the claimant was unable to fulfil the role, which was not expected, Longbenton would look for a more suitable role for him, the claimant agreed to the move on these terms. Tom Barone communicated that to Leanne Ratcliff by email of 23 January 2024 (page 263 of the bundle). In terms of a start date, the claimant had suggested, and it was agreed that this would be 19 February 2024. 8.99 On 22 January 2024 the claimant obtained a further Fit Note (page262 of the bundle) covering the period from 22 January 2024 to 19 February 2024, in the same terms as the previous one, i.e that he was fit to work on condition that he worked from home. The claimant continued to work from home, and was not required to attend the office again, before his transfer on 19 February 2024. 8.100 Perhaps surprisingly there appears to be no documentation in the bundle formally documenting the claimant’s transfer to his new role in Longbenton, but as it is common ground that he did so transfer, on 19 February 2024, nothing turns on this. The claimant has been much happier at Longbenton, where he feels he is much better supported by a much more empathetic SLT, and has the benefit of support from his family. 8.101 For completeness, the claimant’s grievance was determined by Robert Close on 6 March 2024. His outcome of that date is at pages 322 to 335 . Of the six concerns raised in the grievance , Robert Close only upheld one, that relating to the 4 week delay in Kerry - Ann McKinley providing the notes of the PDC meeting on 1 November 2023 to the claimant , which he found (page 329 of the bundle) to be unreasonable. All other grievances were dismissed. The malicious email of 14 February 2024. 8.102 On 14 February 2024, the claimant’s last working day before his transfer, the claimant his second anonymous and abusive email (page 295 of the bundle). The Tribunal does not propose to recite the terms of the email in full, as it contains devices designed to circumvent firewalls and other controls, in which it succeeded, which it would not be in public interest to publicise. This email disgusted the claimant to the core. It referenced HIV, him dying and being “gone” , and how once a “couple more are gone” they (i.e other staff) would be risk free. This email was sent on his final day just prior to his annual leave starting. The claimant considered it uncanny that the abusive email was sent literally just before his period of leave commenced. He considered that the timing of this was no coincidence, it was pre planned for my departure. This meant that whoever sent this email had access to the document that recorded my leave or they had been told about his leave by somebody else. The email made reference to his surname “Hardman” which is a name he had only had for a few weeks at this point since changing it by deed poll after his divorce. This all reinforced his belief that this is someone who he worked closely alongside or that they were colluding with the perpetrator. 8.103 He reported this immediately to the SLT, i.e. Tom Barone, Stacey Higson and Chris Jones, at 13.05 that day (page 294 of the bundle). Stacey Higson replied at 13.29 that day (pages 293 and 294 of the bundle) , expressing her concern that the claimant had received such an appalling message, and telling him that she would refer the matter to Chris Jones, who had a contact in Internal Governance, and advising the claimant to consider reporting the matter to the Police. She asked whether the claimant had received such an email before (she thought he had). She noted that IG had had difficulty previously in tracking down where such emails came from, but said that this would not deter them from taking this forward. She offered the claimant support from PAM Assist, and from any of the management chain , if the claimant wanted to talk about the matter. 8.104 Tom Barone also responded to the claimant at 13.44 the same day (page 293 of the bundle), saying he agreed that the email was absolutely disgraceful, and encouraging the claimant to report the matter to the Police. He also provided a link to further source of support. On the same day , at 14.39, Tom Barone reported the incident to Internal Investigations, and attached a copy of the email (page 351 of the bundle). 8.105 The claimant did report the matter to the Police, and an investigation was carried out. He was in touch with Greater Manchester Police force for around 8 months after the report was made. They tried their very best to utilise the resources available to find out who was sending these emails. After much investigation, he was actually provided a name of a suspect of who was sending these emails. He was asked if this person was known to me and if they were employed by HMRC as it had been traced back to their home address and personal computer. He confirmed that he knew this person and that they were employed by HMRC. He was instructed by the Police not to mention this name to anyone as this could impact the investigation. He honoured this request. The suspect was arrested and questioned under caution by the police, but after the arrest, there was not enough evidence to secure a conviction and the case was dropped. He was informed by the Police that the suspect had informed them that another colleague had accessed that personal computer while he was visiting his home. Again, the other colleague was somebody the claimant knew from work. The historic background of malicious emails. 8.106 The problem of anonymous malicious emails being sent to HMRC employees goes back to 2017, probably earlier. The claimant received one on 6 September 2018 (page 65 of the bundle). Stacey Higson was the site lead G7 officer at the time. The email was reported to her, and at the time the procedure was to refer such matters to Internal Governance (“IG”), and this was done. The claimant was also encouraged to, and did, report the matter to the Police. Chris Jones was overseeing all reports of malicious emails at the time, and this one was also referred to him. He, however, did not want the claimant’s email adding to the current open cases, because it had become a Police matter, and he wanted to keep it separate. The Police investigation, however, came to nothing, and the matter was not pursued further. 8.107 There was email discussion (pages 106 to 108 of the bundle) between Simon Cubbitt, Chris Jones and Alison Doyle in 2022 about the likely source of these emails, and how to identify the senders. An email service based in Switzerland, Proton, was identified as a possible sources of these emails, but Simon Cubbitt explained how it would require court orders from the Swiss Courts to compel disclosure from that provider. Such providers are referred to as “guerilla” sites, as they enable their users to avoid detection when sending offensive or damaging material over the interent. The respondent , between 2017 and 2024, made a number of efforts to discover the identity of any perpetrators, or to prevent such malicious emails , but these were not successful These are set out in detail in the witness statements of Alison Doyle, Stacey Higson and , in less detail, Chris Jones. It is not proposed to recite here all the various steps that the respondent took during this period, but none were successful in detecting the perpetrators, or preventing recurrence of the offensive emails, not only to the claimant on 14 February 2024, but also to others of the respondent’s employees (whose sexual orientation is not apparent) in the period between 2018 and 2024. 8.108 The claimant does not challenge that the respondent took the steps that have been outlined in its evidence. Rather, his issues are with what the respondent did not do, not what it did, in two particular respects, and it is them, and them alone, that the Tribunal will consider.. 8.109 In particular, his criticisms are as follows. The respondent could not monitor what is known as “non – Stride” email traffic. At the time (i.e 2018) the respondent had two IT networks, known as STRIDE. This was installed around 2017 in all HMRC offices. At the time of installation (and therefore before 2018) the decision had been made that the facility to monitor non – STRIDE communications would not be included due to costs constraints , and the view taken that this was not business – critical. Following the receipt of the offensive email by the claimant in 2018, no review of this decision , or other alternative, was considered or implemented. Subsequently, however, the IT systems were changed, and from 2019 into 2023 Gov – Wi-Fi replaced the STRIDE system. There is no evidence as to whether at that stage any facility to monitor external emails was considered, or implemented, and the claimant makes no specific complaint about this period. 8.110 Following this incident, Simon Cubbitt, of Cyber and Digital Forensics emailed Alison Doyle, then Grade 6 Operational Lead, in response to concerns she raised about anonymous offensive emails, seeking his advice on 9 November 2018 (page 75 of the bundle). He advised her to retain the originals of such emails to a CAF (Cyber Assessment Framework) or similar destination, and to make sure it was saved before being forwarded. This (in effect , a form of quarantine) became the procedure, and Alison Doyle ensured that management were aware of this procedure. 8.111 There is no evidence as to whether or not this procedure was followed after the February 2024 was sent to the claimant . Tom Barone sent the email on to Internal Investigations, but there is no further evidence as to what steps were then taken, and whether the “quarantine” CAF procedure was followed in this instance.

[9]Those, then, are the relevant facts. It will be appreciated that not every fact rehearsed in the witness statements has been included in the Tribunal’s findings. That is because not all such facts are actually relevant to the issues as the Tribunal sees them. There has not been much factual dispute, but where there has , the Tribunal has generally preferred the evidence of the respondent’s witnesses. That is not because the Tribunal considers that any witness has given anything less than truthful evidence, but because the Tribunal has found that the claimant’s perceptions, perhaps affected by his condition, and his generally negative view of Kerry - Ann McKinley (in comparison particularly with her predecessor) , and of the respondent’s actions, and their motivations, has not always accorded with reality. A case in point is the claimant’s insistence that Kerry - Ann McKinley had linked his transfer request solely to their 1- 2-1 meeting. Kerry - Ann McKinley went to great lengths to explain that she had not, but it was fact (and an obvious one) that this request came after that meeting. In seeking advice she considered that it was a relevant factor, but she acknowledged that it was not the only one. She did not, contrary to the claimant’s suggestion in his email of 11 December 2023 (page 167 of the bundle) , ever suggest that his health condition was “non – existent”. This type of hyperbole and inaccurate reportage , whilst understandable, has rendered the claimant’s evidence , at times, unreliable in the Tribunal’s view.

[10]That is not to say that the respondent’s evidence has been totally satisfactory, not, again, in terms of honesty, but in terms of completeness and clarity of details. This is particularly so in respect of what, exactly, occurred in the period between 1 November and the end of December 2023. Both Kerry - Ann McKinley and Tom Barone clearly had conversations with the claimant in that time, but these are not noted, nor indeed actually referred to in either of their witness statements, which are rather sweeping and broad about what these events. Tom Barone’s witness statement at paras. 7 to 13 is, with respect , very poor, and lacks much relevant detail about this period.

[11]Examination of the documents, however, reveals rather more details, which should, frankly, have been set out fully in the witness evidence. In particular discussions about the potential move, possibly to Longbenton, or in the alternative, to Washington were held, but these too do not appear in the witness statements. Indeed, the precise situation at Longbenton has not been deposed to in any of the respondent’s witness statements. What is clear from the documents, however, (and should therefore have been clear to at least one or more of the witnesses) is that the situation at Longbenton in terms of any possible vacancy for the claimant was not simple. It appears that the impression held by Kerry - Ann McKinley , and/or Tom Barone, was that the claimant could not move to that location because there was no “BT&C” presence there, and that was the claimant’s business area.

[12]From the email chain between the claimant and Kerry - Ann McKinley between 7 and 18 December 2023 it is apparent that, following union involvement, it was clarified that there was in fact a BT&C presence at Longbenton , but that this was not an “official presence”, merely that some staff were located there. She said she would refer this on to Tom Barone, and Stacey Higson. None of this features in any of the witness statements. At the end of the day this may not matter greatly, given the fact that the claimant did settle for a move to Washington, it is, with respect, and without wishing to be gratuitously critical, disappointing to say the least that the Tribunal should be required to unearth its own facts, when professionally prepared witness evidence should be complete (especially when there are documents which should assist this process), and helpful to the Tribunal.

[13]Another example is the absence of any evidence from Kerry - Ann McKinley as to how the claimant came to continue to work from home for the rest of his time until his transfer, which is also not documented anywhere. Again, this was not a contentious issue, but it should have been dealt with much more fully.

[14]As the parties have made written submissions, which are available on the Tribunal’s file, it is not intended to recite them in this judgment. They will be considered in the context of each claim as the Tribunal considers them The Law.

[15]Unless set out in the ensuing paragraphs in which the claims are discussed, the relevant statutory provisions are set out in Annexe B to this judgment. The harassment claims. a)Initial considerations – the legal issues.

[16]These are the first claims listed in the List of Issues. As will be seen, although framed as one, there are in fact two distinct claims here. Either way, they seek to impose liability for harassment upon the respondent for what is (or may well be, for the contrary cannot be established) an act of harassment perpetrated by a third party for whom the respondent is not vicariously liable. The liability that the claimant seeks to impose, therefore is primary, not vicarious.

[17]This raises the extent to which an employer can be held liable for the actions of third parties for whom they are not vicariously liable. That has been the subject of much discussion , and indeed legislation, over the years.

[18]Until the decision in MacDonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield Secondary School

[2003] IRLR 512

, , it was thought to be the law that the employer who fails to take adequate steps to protect employees from harassment emanating from third parties with whom the employee comes into contact at work would thereby face liability under the anti-discrimination legislation. That stemmed from cases such as Burton and Rhule v De Vere Hotels

[1996] IRLR 596

, the notorious case of waitresses, who were subjected to racial harassment in the form of racist 'jokes' by the comedian Bernard Manning, and in the form of insulting comments and behaviour by guests at the function at which he was performing. Their employer was held liable for that discrimination.

[19]This line of cases was considered in Pearce v Governing Body of Mayfield Secondary School

[2000] IRLR 548

, by the EAT , where it was observed, obiter, that before the Burton principle could come into play (at least in the context of where it was alleged a school had failed to protect a teacher against taunts by pupils amounting to discrimination) not only must the steps which the school could have taken be identified, but there had to be a conclusion that the taking of those steps could have prevented or reduced discrimination. Unless this could be established, it could not be said that the school, by its inaction, had subjected the applicant to a detriment.

[20]In Pearce v Governing Body of Mayfield Secondary School

[2003] IRLR 512

in the House of Lords, a much larger criticism prevailed. All their Lordships held that Burton v de Vere Hotels Ltd was wrongly decided, and had gone too far. They considered that the failure to take reasonable steps to prevent an employee from racial or sexual abuse was discrimination only where the reason for that failure to act amounted to race or sex discrimination. In Lord Nicholls' words: 'Where the Burton decision is, indeed, vulnerable is that it treats an employer's inadvertent failure to take such steps [ie to protect their employees from racial or sexual abuse] as discrimination, even though the failure had nothing to do with the sex or race of the employees.'

[21]A similar approach was adopted by the EAT in Conteh v Parking Partners

[2011] ICR 341

in which it was confirmed that—under the Race Relations Act 1976—an employer can only be liable under the harassment provisions for failing to take action in relation to offensive conduct of a third party if: '— the complainant had wanted the employer to take such action; — the employer's inaction helped to create an environment that was intimidating, hostile, degrading humiliating or offensive to the complainant; and — the employer failed to take action on the grounds of race.'

[22]Until the Equality Act 2010, that remained the position for third party harassment on grounds other than sex. The law on an employer's potential liability for third party sexual harassment was, however, amended , as from 6 April 2008), to introduce a limited form of liability, which was subsequently extended by the Equality Act 2010 , s.40, to all protected characteristics except marriage and civil partnership and maternity and pregnancy.

[23]Section 40 of the 2010 Act provided as follows: ''(2) The circumstances in which A is to be treated as harassing B under subsection (1) include those where—(a) a third party harasses B in the course of B's employment, and

(b) A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. (3) Subsection (2) does not apply unless A knows that B has been harassed in the course of B's employment on at least two other occasions by a third party and it does matter whether the third party is the same or a different person on each occasion. (4) A third party is a person other than— (a) A, or (b) a employee of A's''

[24]By virtue of that section of the 2010 Act , therefore, an employer was under an obligation to stop repetitive harassment by third parties and would be liable where:(1) the claimant had experienced harassment relating to one of the protected characteristics during the course of their employment;

(2) there had been two previous incidents of harassment (not necessarily by the same third party) of which the employer knew; and

(3) the employer had failed to take reasonably practicable steps to prevent the harassment.

[25]This protection against third party harassment under s. 40 of the 2010 Act was, however, repealed—as from 1 October 2013—as a result of the amending provisions of the Enterprise and Regulatory Reform Act 2013. It is now clear that there is no explicit liability for third party harassment, but there have been attempts to resurrect such liability under s.26.

[26]This issue was considered by the Court of Appeal in Unite the Union v Nailard

2019 ICR 28

cited by the respondent. The claimant argued that liability for third-party harassment was implicitly present in the definition of harassment in s.26 , and remained intact, notwithstanding the repeal of s.40(2) . Lord Justice Underhill (giving the only judgment) rejected this argument — it could not be the case that Parliament had introduced a careful and explicit scheme providing for third-party liability, notwithstanding that such liability was already implicitly provided for elsewhere. Furthermore, it was hard to see the point of Parliament repealing that scheme if the effect were to leave in place an implied liability which was broadly equivalent but of uncertain scope. Underhill LJ thus concluded that the 2010 Act no longer contains any provision making employers liable for failing to protect employees from third-party harassment as such, although they may of course be liable if the proscribed factor forms part of the motivation for the employer’s inaction. In substance, he confirmed that the position remains as analysed in Conteh (above).

[27]In Bessong v Pennine Care NHS Foundation Trust

2020 ICR 849

, the EAT noted that it was bound by Nailard to conclude that there is no explicit liability under the Equality Act 2010 on an employer for failing to prevent third-party harassment. It also held that there was nothing in the wording of the EU Race Directive (No.2000/43) either that would indicate that an employer will be liable where an act of harassment ‘takes place’ even though the employer’s failings themselves were not related to race.

[28]Therefore, following Nailard (above), an employer will not be liable under s.26 for failing to protect an employee against third-party harassment, unless the employer’s failure to safeguard the employee itself satisfies the statutory definition of harassment.

[29]The Tribunal’s view, therefore, is that there is unlikely to be any potential liability upon the respondent on the facts of this case for any harassment by any third party, but it will examine the facts carefully to see whether the claimant can bring himself within the very limited scope of s.26 as it is now to be applied.

[30]Whilst the claimant’s evidence goes into some detail as to the subsequent history of his complaint to the Police in 2024, and the subsequent investigation , at the conclusion of which he was given some information which suggested that one or another fellow employees at Salford may be responsible for the February 2024 email, he has not named them, nor has he brought any claim based upon any vicarious liability on the part of the respondent for their actions in sending that email. Hence these claims are solely based upon the primary liability of the respondent.

[31]The claim is accordingly put in the List of Issues at para. 2.1.1 as [Did the respondent] Fail to act in respect of/prevent the Claimant’s receipt of an offensive email on 14 February 2024.

[32]The respondent’s submissions on this claim, in summary , at para.32.1, are as follows: On Issue 2, the claim for harassment in respect of the 2024 Email must fail because C’s managers clearly did act promptly in relation to it, and were not in a position to prevent him receiving it in the first place. Even if they were, any failure to do so was not related to C’s protected characteristic.

[33]In more detail, at para. 44 , the respondent submitted this: During Mr Bates’ cross-examination of R’s witnesses, C appeared to change his case to allege that in fact R’s failure was not take any action, but to take certain very specific steps about how the email should have been saved / investigated. These were based on the process which was supposedly introduced in 2018 [75], although C made no application to amend his case.

[34]The respondent went on to submit, at para. 46, as follows: Where an employee seeks to argue that an employer’s inaction in the face of thirdparty harassment is unlawful, the Court of Appeal confirmed in Unite the Union v Nailard

[2019] ICR 28

that the employee would need so show that the protected characteristic was itself the reason for the employer’s failings. At §99 Underhill LJ (who delivered the only reasoned judgment) said this: [T]he 2010 Act, for better or for worse, no longer contains any provision making employers liable for failing to protect employees against third party harassment as such, though they may of course remain liable if the proscribed factor forms part of the motivation for their inaction…

[35]Mr Williams went on to make reference to the amendment introduced in October 2024 of an exception in relation to sexual harassment, but that is not the claim made here, and, in any event, these provisions were not in force at the relevant time.

[36]The claimant’s submissions on harassment are at paras. 18 to 46 of his submissions. They will not be rehearsed in full here, as they can be read, but the main points are as follows. The 2018 material is not relied upon as a separate act, for which liability is sought, but as background to the alleged 2024 failure to act or to prevent the issue. In particular, the claimant submits at paras. 20 to 21 as follows:20. The Respondent relies heavily on Unite the Union v Nailard

[2018] EWCA Civ 1203

. The Claimant does not shrink from that authority. Properly read, it does not assist the Respondent to the extent suggested. Nailard confirms that conduct can include inaction, but the focus must be on the alleged harasser’s own conduct or inaction and whether that conduct is related to the protected characteristic. Inaction due to illness, incompetence or some real non-discriminatory constraint will not ordinarily be related to the characteristic; but if the inaction or cold shoulder is really indicative of taking sides with the perpetrator, or if the protected-characteristic character of the incident shapes the decision-path, the conduct may well be related to the protected characteristic. That is a fact-sensitive inquiry. (Respondent’s Closing, para. 37) 20.1. The Claimant also relies on the more recent authority of Carozzi v University of Hertfordshire (

[2025] IRLR 179

). That case makes clear that in harassment claims the phrase 'related to' is broader than a narrow motive test. The question is whether there is a clear relationship between the conduct complained of and the protected characteristic. That is important here because the Respondent seeks to reduce the sexual orientation harassment claim to a binary question of motive. The proper question is whether HMRC's own decisions and omissions, once the abuse had been identified as homophobic and as a protected-characteristic matter, were sufficiently connected to sexual orientation to satisfy section 26 of the Equality Act 2010.

21. The Respondent also seeks to characterise the case as if it were merely a failure to stop abuse by an unidentified third party. That is not a complete description of the pleaded case or of the evidence. The Tribunal does not need to find, as a proved fact, that the sender was an outsider or a stranger to HMRC. What is proved is that the abusive messages were repeatedly directed to HMRC work email addresses over many years within the same office environment, and that HMRC itself treated the matter as an internal governance and safeguarding problem. The Claimant’s case is therefore not an abstract "third-party harassment" case divorced from workplace context. It is a case about HMRC’s own conduct and omissions in response to known homophobic abuse affecting one of its employees. Discussion and findings on the harassment claims.

[37]The first point to make is that there are two claims here, although they have been conflated into one by use of the formula “failure to act/failure to prevent” . This has not been helpful. This is important because they relate to two different timescales, the first is before the offensive email was received, the second is after it was. In the List of Issues they are put in reverse order, and the Tribunal will indeed deal with them in that order. a)Post – receipt conduct as harassment.

[38]The evidence on this issue was not contested. The claimant reported receipt of the email to the SLT, Tom Barone, Stacey Higson and Chris Jones. All three of them replied to him. He was told that the issue would be reported to IG, as was the process, and he was advised to report the matter to the Police, which he did.

[39]The claimant’s case on this aspect of the harassment claims is a little hard to follow. It seems to have a lot to do with the other aspect, i.e the failure to prevent the 2024 email being received in the first place.

[40]Much is made in the claimant’s submissions about the respondent’s alleged failure to prove what steps it took after receipt of the email by the claimant. The claimant’s witness statement however makes no mention of following up receipt of the this email with the respondent once he had transferred to the North East, and reported the matter to the Police. Rather, his focus was upon the 2018 investigation, and what he has subsequently (i.e during the course of these proceedings) learned about what was or was not done then or in the intervening 8 years. What he says in his witness statement is this: I was in a desperate state. I was in a state of shock, felt scared, isolated and once again unsupported by SLT. I was upset that I had experienced yet another appalling email, around 8 years after my first one. This meant that this malicious email situation had been happening within the NCH for 14 years in total now. This reignited my feeling that not enough was being done to catch the perpetrator and to put an end to all of this victimisation towards myself and other staff members. When I managed to compose myself and think straight, I realised how relieved I was to be finally escaping the NCH office.

[41]The Tribunal has had to focus upon this second timeframe, and consider what, in its conduct post – receipt , the respondent did, or failed to do, which amounts to harassment. The claimant’s submissions (para. 44) accept that the Tribunal is not required to find that the respondent wanted to humiliate the claimant, although this is how this claim is put in the List of Issues at para. 2.4.

[42]The test of harassment under s.26 is as follows: 26. Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. And: (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[43]For the purposes of this part of the harassment claim the Tribunal is limiting itself solely to the respondent’s conduct after receipt of the offensive email and the claimant’s notification of this to the respondent. Whilst much is made in the claimant’ submissions about the respondent’s reaction to the claimant “within the hour” and that this, and what the claimant was told, was “not enough”, the fact is that the claimant never made any further complaint about this, or followed up what the respondent had or had not done after he informed it of the receipt of the email.

[44]The claimant’s submissions focus upon the alleged failure of the respondent to take steps to preserve the February 2024 email in the CAF, to enable it to investigate properly, or at least to prove that it did this.

[45]That may be so, but if it was, it is not something that the claimant was aware of. One cannot be harassed without knowledge of the conduct alleged to constitute harassment. In Greasley-Adams v Royal Mail Group Ltd

[2023] IRLR 723

Lady Haldane held that because the list of matters which the Tribunal must take into account in deciding whether the conduct has the effect of violating dignity includes the complainant's own perception, there can be no harassment if the complainant is not aware of the conduct.

[46]The claimant says nothing about this in his witness statement. Rather , he says this, at para. 9.4: I was in a desperate state. I was in a state of shock, felt scared, isolated and once again unsupported by SLT. I was upset that I had experienced yet another appalling email, around 8 years after my first one. This meant that this malicious email situation had been happening within the NCH for 14 years in total now. This reignited my feeling that not enough was being done to catch the perpetrator and to put an end to all of this victimisation towards myself and other staff members. When I managed to compose myself and think straight, I realised how relieved I was to be finally escaping the NCH office.

[47]Thus, it is clear that the claimant himself moved on, literally and metaphorically, after this email. True it is that he reported the matter to the Police, and co-operated in their investigation. Nowhere does he suggest, however, that he was aware of, or impeded by, any lack of action in terms of any technical response to the email on the part of the respondent. Indeed, it seems that the Police were also not hampered by any technical issues in terms of the respondent’s curation of the offensive email, as they were able to identify one, indeed, two possible suspects .

[48]An important aspect of s.26 is the use of the word “environment”, and the relevant environment at the time was the NCH in Salford, where the claimant worked, but which, on the day after the email was received he was leaving. Clearly, had he not been leaving, an ongoing environment of homophobia at that location would have been likely. As his witness statement recognises, however, he was relieved to be leaving that office, and he reports no similar issues since his move to the North East.

[49]The Tribunal is left therefore with no conduct on the part of the respondent, of which the claimant was aware, in the post – receipt period that could reasonably be considered as having the proscribed effect, and this aspect of the harassment claim fails. b) The alleged failure to prevent the February 2024 as harassment.

[50]This claim is probably the most difficult of those presented by the claimant, it certainly has been hard to follow. It has given rise to the claimant adducing evidence relating to, and the respondent also dealing with, its response to the first offensive email received by the claimant in 2018, and, indeed to the extensive email problem that continued to afflict many other employees of the respondent for the 8 years thereafter.

[51]The claimant has made much of the various technical investigations and evidence gathering options that were available to the respondent, and which it attempted to implement, not always successfully, or refused to implement , during this period.

[52]The genesis of this claim is the decision, made in 2018, to treat the claimant’s offensive email as a stand alone case, and not to include it in the respondent’s internal investigation. The reason for that was given , and the Tribunal has no reason to doubt it, as being that the claimant had taken the matter to the Police, the first time that anyone had done so. That was Chris Jones’ explanation, and the Tribunal accepts it. Even if the Tribunal did not, the claimant brings no claims out of the 2018 email, and is way out of time for doing so. The claimant, however, continues to seek to anchor his 2024 claim in this differential treatment.

[53]The claimant follows this up with allegations of failures on the part of the respondent to monitor “non – Stride” Wi – Fi traffic. The respondent has explained that this was because of cost. Stacey Higson’s evidence , in particular the Annex thereto, also makes it clear that this decision goes back to when that system was introduced in late 2017 and into 2018. The decision was that this was not business - critical, so such a facility was not added to the system. This was not, then, a reactive decision, it was a feature of the system from the time of installation. In any event, That system was superseded by Gov Wi - Fi rolled out from 2019 to 2023.

[54]The claimant’s submissions seem to acknowledge this, as at paras. 31 to 33 it is submitted:31. Again, the crucial point is not simply that the decision existed. It is what HMRC did after it knew the Claimant had been targeted by a homophobic email and that tracing capability was limited.

32. The Respondent produced no document showing that, once the homophobic/protected characteristic dimension was known, anyone sought an exception, reconsideration or alternative technical route to compensate for the tracing

33. This is another reason the case is not a mere negligence complaint. The Claimant’s case is not simply that HMRC.s systems were imperfect. It is that once HMRC knew the abuse was homophobic, it still left the tracing deficit untouched and undocumented. That is conduct by the employer in response to homophobic abuse.

[55]The Tribunal disagrees, and , indeed, considers that this claim is indeed more appropriately framed as a negligence claim. Once it is accepted that the initial decision not to instal the relevant systems to the “no – Stride” communications pre-dates the 2018 email, and was part of the installation process, the claimant is left, as his submissions show, suggesting that after his homophobic email in 20189 the respondent should have “sought an exception, reconsideration or alternative technical route” for the tracing gap.

[56]A number of points arise. The first is that all this would have been after the event, so it would have been unlikely to identify the perpetrator of the 2018 email. The second is that, in any event, the IT systems were changed to Gov Wi- Fi from 2019 into 2023, and no complaint is made about any deficiencies in those systems, the ones actually in place when the claimant received his second email. The third is that, whilst the claimant makes much of the fact that his two emails were homophobic, the alleged system deficiencies in tracing the source of his emails would apply to every other employee who received such emails, regardless of their protected characteristics. There is no basis to suggest that these alleged failures adequately to trace the source of these emails was related in any way to the claimant’s protected characteristic.

[57]The second matter relied upon in support of this claim is the alleged failure of the respondent to save the February 2024 email into a CAF (Cyber Assessment Framework) . The claimant submits , at para. 37: The agreed issue is not whether managers were polite or whether the email was forwarded onward. It is whether HMRC failed to act/prevent in the ways pleaded. The Respondent’s own cybercrime evidence identifies the proper action. The Respondent has not proved it took those steps in February 2024.

[58]Again, there is the conflation of the two claims, but in the context of this second one, failure to put the offending February 2024 email into a CAF has nothing to do with prevention, it is after the event. Similarly, in respect of the first part of this claim, as the claimant was not aware whether the respondent had or had not put the email into a CAF, this cannot amount to harassment of him, as discussed above. Conclusion on the harassment claims.

[59]The Tribunal’s conclusion is that these claims do not succeed. Legally, they stretch the limits of potential primary liability on the part of an employer for failing to prevent third party harassment, as set out and confirmed in Nailard. There is nothing on the facts found which would entitle the Tribunal to find that the respondent’s conduct met the more stringent tests in place since the repeal of s.40, and that judgment.

[60]To be complete, applying the Conteh tests, the Tribunal would accept that the claimant wanted the respondent to take action, but whether the employer's inaction helped to create an environment that was intimidating, hostile, degrading humiliating or offensive to the complainant, is very much open to doubt. That is because the failings identified and complained of by the claimant are of failures to have in place or to operate systems which would identify, or help to identify, the senders of harassing material. Nothing that the claimant identifies the respondent failed to do would have stopped the 2018 or 2024 emails being sent, it would have made detection of the offender more likely. Perhaps if that tracing facility existed , and were to have been widely publicised, it may have deterred any potential harassers, but the respondent may equally have chosen not publicise its facilities to trace the senders of such emails, for fear of alerting them to the risk of detection, and encouraging the exploration of yet more strategies to avoid detection. Either way, the Tribunal is not satisfied that the second limb of the Conteh test is met.

[61]Finally, of course, there is still the requirement that the employer failed to take action on the grounds of , in this case, the claimant’s sexual orientation. All that the claimant can point to in support of such a contention is the treatment of his 2018 complaint. That has, in any event , been explained, but even if the Tribunal were to accept that that decision was in any way influenced by the fact that the claimant’s email was in relation to his sexuality, the Tribunal can see nothing at all to suggest that any of the respondent’s conduct and handling of such emails over the intervening 6 years had anything to do with it.

[62]In para. 24 of his closing submissions, the claimant says this: 24. That (i.e the fact that the respondent knew that the 2028 email was homophobic) matters because the Respondent’s closing repeatedly says all staff were treated equally seriously and all emails were handled in line with Internal Investigations’ steer. The open-case evidence contradicts that broad claim. The 2018 homophobic email was not treated like just another email. Chris Jones decided it should not be added to the current open case because it was being approached as a possible hate crime. Irrespective of the justification behind the decision to exclude it from the open-case, it was agreed at the hearing that this reduced the investigative options and was detrimental to the claimant. Whether the Tribunal treats 2018 itself as a standalone act or as background only, that decision remains central to the 2024 question because it shows a different decision-path once the sexual-orientation aspect was recognised. (pages 67–71)

[63]The Tribunal does not agree. The “decision path” taken in 2018 has not been shown to have any bearing at all upon the respondent’s handling of offensive emails received in the ensuing 6 years, or of the February 2024 email once received. The fact is that the claimant cannot show that the respondent’s conduct towards him (at least of which he was aware) was in any way related to the claimant’s protected characteristic , even as widely read on the authority of Corozzi , which does not overrule or in any way distinguish Nailard. These claims fail. The reasonable adjustments and s.15 claims.

[64]The Tribunal proposes to consider the next claims in the List of Issues – failure to make reasonable adjustments and the s.15 claims in the reverse order from the List of Issues, considering that there will be common issues to both which should inform the decision on the s.15 claims more clearly once these had been discussed under the reasonable adjustments claims. The claims of failure to make reasonable adjustments.

[65]As a preamble to the consideration of these claims, the Tribunal’s first observation is that these claims are binary – the respondent either did or did not comply with its duties to make reasonable adjustments. How it did so, and why it did, are, frankly, irrelevant to the decision as to whether it did so. The Tribunal makes this point because much of the claimant’s evidence criticises the SLT in particular for lack of empathy, and the like, but that is, with respect, irrelevant to whether the duty was or was not complied with. The most empathetic and concerned employer may genuinely strive to make well – intentioned adjustments, but can still fail to make reasonable ones, just as a callous and indifferent employer may nonetheless actually comply with its duties, whilst not being very empathetic in the manner in which it does so.

[66]In Royal Bank of Scotland v Ashton

2011 ICR 632

, the EAT emphasised that when addressing the issue of reasonableness of any proposed adjustment the focus has to be on the practical result of the measures that can be taken. In the words of Langstaff, J. : ‘It is not — and it is an error — for the focus to be upon the process of reasoning by which a possible adjustment was considered… [I]t is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment.’ This stance was fully endorsed by the Court of Appeal in Owen v Amec Foster Wheeler Energy Ltd and anor

2019 ICR 1593

. a) Failure to allow the claimant to work from home.

[67]The first claim of failure to make reasonable adjustments is that of not allowing the claimant to work from home. The respondent’s submissions are simple, the claimant was allowed to work from home from the time , 6 December 2023, that he asked to do so. There was therefore no failure to make this reasonable adjustment. The claimant’s case, however, is that this was not a reasonable adjustment because it was not permanent, or because this situation only arose because the claimant was subject to a Fit Note which said that he was only fit to work if he could work from home. He was therefore subjected to uncertainty, and never got a formal written response to his claim for this reasonable adjustment on a permanent basis.

[68]The Tribunal does not agree. The claimant’s argument, with respect, and, the Tribunal has discerned, not for the first time, focusses on form over substance. As the words of Langstaff J. cited above show, the focus should be on the practical result of the measures, not the thought process.

[69]Another way of looking at it is to bear in mind the actual wording of s.20 of the Equality Act 2010, which creates the duty to make reasonable adjustments. The scheme of this section is to set out the three requirements of which the duty comprises.S.20(3), the first of which is in relation to PCPs which put the disabled person at a substantial disadvantage, which provides: (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

[70]The crucial word here is “where”, which the Tribunal considers could equally well be “when”. It is to be noted that , unlike similar wording in s.19(2)(b) , indirect discrimination, this subsection requires that the PCP actually puts, not “would put”, the disabled person at the requisite disadvantage. Thus, the Tribunal considers, as the duty to make reasonable adjustments arises when (or “where”) the PCP puts the disabled person at the disadvantage, logically, it must also cease when the PCP ceases to have that effect. It is to be noted too that s.20 does not use the language of “applying” any such PCPs, although practitioners use that as a type of shorthand, it simply requires that the PCP “puts” the person to the disadvantage.

[71]The simple fact here is that once the claimant produced his Fit Note, which the respondent accepted , and acted upon , he was never again required to work from the office. This may have been a series of decision by management, but they covered the whole of the period from his initial Fit Note on 22 December 2023 until his transfer on 19 February 2024, and he was never again required to work from the office, for whatever reason. The PCP of requiring him to do so was not being applied to him, did not put him at the relevant disadvantage, so the duty to make reasonable adjustments did not then arise. It is irrelevant why the PCP was not being applied, it simply was not, and so the duty did not arise. Alternatively, if it did, the respondent made the adjustment required. It not being “permanent” does not make it unreasonable, in the circumstances that the claimant was likely to be moving office in any event, and did so. This claim fails. b) Failure to allow the claimant to move office.

[72]The Tribunal now turns to the next claim of failure to make reasonable adjustments, at para. 5.5.2 , namely allowing the Claimant to transfer to a different office. The respondent, of course, did so , and in relation to the move to a location in the North East, the claimant’s claim, now, is that this this took too long.

[73]Neither the Equality Act 2010 nor the EHCR Code of Practice on Employment (Chapter 6 – Duty to make reasonable adjustments) say anything about the timescale within which adjustments must be made to satisfy the requirement to make reasonable adjustments. That the employer cannot be in immediate breach as soon as the duty is engaged is clear from the decision of the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] IRLR 1050

. Whilst a case on time limits, and the grant of the discretionary extension, the judgment of Leggatt LJ makes it clear that the respondent is not to be considered to be in instant breach. At para.11 of the judgment , he cites the judgment of the Employment Tribunal, as follows: The tribunal’s finding with regard to when that period expired is contained in the following passage of its judgment: ‘9.6 The respondent would have a reasonable time in which to deal with the process of making adjustments. However at some point it would become clear to the claimant probably by June/July 2011 that the respondent was restricting its approach to redeployment. Firstly by not using the redeployment register and secondly by not searching outside the mental health directorate. Further it would have been clear to the claimant that the respondent was not taking up Dr Tidley’s offer to evaluate roles for the claimant. 9.7 Therefore in terms of reasonable adjustments we judge that time begins to run by no later than the beginning of August 2011. On that basis the claimant’s claim should have been presented by 31st October 2011.’

[74]At para. 14 , he goes on to say this: Pursuant to s 20(3) of the Equality Act, the duty to comply with the requirement relevant in this case begins as soon as the employer is able to take steps which it is reasonable for the employer to have to take to avoid the relevant disadvantage.

[75]That, therefore, on the facts of this case cannot mean that the respondent came under a duty to make the “immediate” adjustment of moving the claimant into a post in Longbenton, as he requested in his email of 11 December 2023.

[76]As the Code of Practice makes clear, the obtaining of medical advice is considered a reasonable part of this process, and the respondent duly set about this. Looking at the overall period of delay from the claimant’s request on 6 November 2023 to the respondent formally offering him the move he wanted on 19 January 2024 was just under 11 weeks. That does not strike the Tribunal, in the round, as an unreasonable period of time. That is, however, to take it at its highest from the claimant’s point of view. That however ignores the first period of what the claimant regards as delay, that from 6 November 2023 when he made the request, to 19 December 2023, when the OH report was available. He is critical of that initial period of 6 weeks, where he considers that Kerry - Ann McKinley was unduly slow in making the referral to OH, linked as it was, also, her delay (upheld as unacceptable in the grievance) to her delay in providing the claimant with the notes of their meeting on 1 November 2023.

[77]A consideration of the email traffic between the claimant and Kerry - Ann McKinley between 7 and 11 December 2023, however, reveals that she explained her reasons for the delay in supplying the notes. Further, as is apparent from that exchange , the parties were in something of a “Catch – 22 “ position, in that the claimant had not completed all the various documents that Kerry - Ann McKinley had sent him, which she considered she needed before she could complete the OH referral, so added to the delay. Whilst that may have been better communicated , it soon was, and the referral was then carried out. Again, the overall period of 6 weeks for the OH report to be provided was not, the Tribunal considers, unreasonable. The Tribunal makes this finding, however, mindful of the finding of Robert Close on the claimant’s grievance, that the period of 4 weeks (as he saw it) was unreasonable. That is noted, but the Tribunal is not considering the provision of these notes in isolation, as he was. The provision of the notes is not the reasonable adjustment that should have been made. Their provision was but a step in the process of making such adjustment. Their relevance in that context is to the delay, if any, in , firstly, obtaining the OH report (itself not a reasonable adjustment) , and secondly , then acting upon it.

[78]Nor was it unreasonable for the respondent to require one before actioning the potential reasonable adjustment sought by the claimant. Again, whilst the claimant seems to have been of the view that his mere assertion of the need for such an adjustment based on his own medical evidence should have been enough to guarantee him the “immediate” adjustment he was seeking, the Tribunal cannot agree. No previous OH report had suggested that a transfer of office was required as an adjustment because of any disability of the claimant.

[79]Further, whilst a constant theme of his communications at the time, the potential relevance of his performance issues could not simply be ignored by the respondent. The respondent was under a duty to make reasonable adjustments, but such an adjustment would not be reasonable if it then exposed the claimant to further performance issues arising from his disability.

[80]The obtaining of a further OH report, and the time it took, was not, the Tribunal finds unreasonable, and does not thereby make the adjustment that the claimant was then offered on 19 January 2024 , an unreasonable one.

[81]The claimant’s evidence , at para. 15 of his witness statement , was to the effect that the SLT failed to take prompt action with regards to the reasonable adjustments requested, especially given that there had been an OH report on his file for approximately one year, i.e the report of December 2022. That was so, but, crucially, that report was not prepared for the purposes of addressing the issue of whether the claimant needed to re-locate as an adjustment for his condition. The respondent was therefore acting reasonably in requiring an up to date report addressing that issue.

[82]The claimant is critical in his closing submissions of the time that his transfer took. He is also critical of the , as he puts it, unnecessary delay in addressing whether his should be a priority move. He suggests that the respondent could and should have been making the enquiries that could have led to a transfer sooner than it did.

[83]In terms of the priority transfer, it was, in fact, the claimant who was initially seeking such a move, and he was complaining that he had been told he would not get one. In terms of the enquiries that were being made, the evidence is (and the claimant would not necessarily see this until these proceedings) that enquiries and potential vacancies for the claimant in the North East were being made by Tom Barone and HR as early as 5 January 2024.

[84]Whilst the claimant did not actually take up the transfer until 19 February 2024, that was his choice (see his text message to Tom Barone on what may be, it is not clear, 23 January 2024 at page 341 of the bundle), and the respondent was prepared to allow his transfer whenever he wanted it, so the Tribunal considers that 19 January 2024 was the date upon which the respondent made the reasonable adjustment of allowing the claimant to transfer.

[85]It has to be observed again that the claimant’s case does constantly incline to emphasise the form , rather than the substance , of the position. Para. 72 of his submissions is a case in point, where he says: The Respondent says the adjustments were made. That misses the point. Reasonable adjustments liability is not automatically defeated just because some version of the requested outcome eventually happened. The Tribunal must still ask whether reasonable steps were taken when they should have been. A stop-gap arrangement dependent on rolling fit notes is not the same as a timely, reasoned, formal adjustment decision. A transfer that eventually happens after avoidable delay is not the same as a properly handled adjustment step.

[86]The Tribunal does not agree. As Royal Bank of Scotland v Ashton referred to above makes clear, the focus must be on the practical result of measures that could be taken. That is what the Tribunal has done. The respondent did not therefore fail to comply with its duty to make reasonable adjustments in this regard, and these claims are dismissed. The s.15 claims.

[87]These claims are put in the List of Issues as follows: 4. Discrimination arising from disability (Equality Act 2010 section 15)4.1 Did the Respondent treat the Claimant unfavourably by:4.1.1 Refusing the Claimant’s request to transfer of 06.11.23

4.1.2 Failing to respond to the Claimant’s request on 21.12.23 for a reasonable adjustment to work from home

4.2 Did the following arise in consequence of the Claimant’s disability:4.2.1 The Respondent failed to formally respond to the Claimant’s request for reasonable adjustments.

4.2.2 The Respondent failed to properly consider the Claimant’s reasons for the transfer request.

[88]It will be noted that these claims are the same two claims which are then put as reasonable adjustments claims in the List of Issues, which have been dealt with above. There is, as has been observed (by Elias LJ, in Griffiths, cited para. .. of the claimant’s submissions, for example) often some considerable overlap between reasonable adjustment and s.15 claims. This has, perhaps , lead to some confusion on the part of claimants that they are simply interchangeable, and they can be pleaded in the alternative, as appears to be the case here. In fact, they often are not, as an analysis of the essential elements of a s.15 claim reveals.

[89]The essential features of s.15 claims are unfavourable treatment , because of something arising in consequence of the claimant’s disability. So, there must be a causal link between the treatment and the “something arising”. That therefore requires the Tribunal first to identify what the “something arising” is. In these claims it is pleaded to be the respondent failing to formally respond to the Claimant’s request for reasonable adjustments, and failing to properly consider the Claimant’s reasons for the transfer request.

[90]With respect, that confuses the treatment with the reasons for it. The claimant has not accurately identified what the something arising from his disability actually was.

[91]This point was, perhaps surprisingly, not actually picked up by Mr Williams, and the claimant is not alone (even when parties are legally represented) in not being able to fully grasp the legal concepts in s.15 claims , and to frame them accurately.

[92]Be that as it may, even if these claims could be rescued by the identification of the correct “something arising from” , they would still fail, for the simple reasons that, firstly, the respondent did not refuse the claimant’s transfer request of 6 November 2023. The claimant has not taken the Tribunal to any evidence of a refusal of that request, which, in any event , we know was granted on or about 19 January 2024. He may have issues (explored above in the reasonable adjustment claims) with the time that it took, but that is not the same as a refusal, which is this pleaded claim, which must fail.

[93]The second claim must also fail on the facts because the respondent did not fail to respond to the claimant’s request on 21 December 2023 to be permitted to work from home. It did respond, albeit not as the claimant wished it to, but it did respond. It did, in fact , actually allow him to work from home for the duration of his employment in Salford. Now, the claimant has issues, the Tribunal appreciates, with this not being a “permanent” adjustment, but again, this is a matter more properly within the reasonable adjustments claims above, where it has been considered. As pleaded as this s.15 claim in this form , however, this claim too must fail on the facts. The victimisation claims.

[94]Finally, the Tribunal will consider the claims of victimisation, but in the List of Issues as follows, following the concession by the respondent that the claimant’s grievance (in fact in two parts, on 30 December 2023 and 16 January 2024) was a protected act: 6.2 Did the Respondent do the following things:6.2.1 Ms McKinley started sending the Claimant large numbers of direct emails

6.2.2 Ms McKinley started to address additional issues with the Claimant putting him under stress

6.2.3 On 11.01.24 Ms McKinley emailed the Claimant to ask for a meeting on 19.01.24 to discuss reasonable adjustments and threatened with disciplinary action if he failed to attend

[95]The first issue to be considered in respect of each of these claims is whether the treatment to which the claimant is alleged to have been subjected amounted to a detriment for the purposes of s.27 at all. As submitted by Mr Williams, the test of what amounts to a detriment for these purposes is as set out in Shamoon v Chief Constable of the RUC

[2003] ICR 337

at §35, and is whether: the treatment [is] of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment. An unjustified sense of grievance cannot amount to “detriment”.

[96]Mr Williams’s submissions then (albeit slightly out of order, it would seem, or conflating issue6.2.1 with

6.2.2 ) address these alleged detriments, contending that they do not satisfy that test. In relation to issues 6.2.1 and 6.2.2, in particular, he submits that these were simply normal management communications, in a modest number, where the claimant , working from home, had requested written communication. In relation to 6.2.3, he submits that the suggestion of disciplinary action could not be detrimental to the claimant in the circumstances where he had requested substantial workplace adjustments but was not willing to have a meeting to discuss them.

[97]The claimant does not agree. His submissions also refer to the test in Shamoon, but he goes on also to cite St. Helens Borough Council v Derbyshire

[2007] UKHL 16

and Woodhouse v West North West Homes Leeds Ltd [2013]

UKEAT/0007/12

. In relation to the issue in 6.2.1, at para. 8o of the submissions in terms of the allegedly “large number of direct emails” , he submits that the point is not that there were emails, it is that the claimant was subjected repeated direct managerial communications which placed multiple demands upon him within short timeframes and required engagement on separate matters at once. That is, of course, not the pleaded case, which is simply the large number of the emails, not their content.

[98]He goes on, however, to highlight the number of emails, going back to Kerry - Ann McKinley’s email chain starting on 3 January 2024. He invites the Tribunal to consider the cumulative position, and the claimant’s particular circumstances at the time. Discussion on detriment 6.2.1

[99]The Tribunal will confine itself to the pleaded case, which is simply based upon the volume of emails, and not their content, as the claimant has attempted in closing to expand this detriment. In terms of the emails in question, the Tribunal’s analysis is as follows. Following submission of the grievance on 30 December 2023, the email traffic was as follows: 17.43 3 January 2024 – KAM to C (page 212 of the bundle) (C replied at 21.47 that day) 14.59 4 January 2024 – KAM to C (page 210 of the bundle) (C replied at 10.47 on 5 January 2024) 15.25 5 January 2024 – KAM to C (page 208 of the bundle) (C replied at 21.28 on 7 January 2024) 13.38 11 January 2024 – KAM to C (page 215 of the bundle) 14.55 11 January 2024 – KAM to C (page 216 of the bundle) (C replied at 11.01 on 12 January 2024) 11.49 15 January 2024 – KAM to C (page 229 of the bundle)

[100]That is, in essence, it . That is a total of 6 emails from Kerry - Ann McKinley, in this period, and the claimant relies upon none after the submission of the second part of his grievance on 16 January 2024. The claimant was still working, was not off sick (his Fit Note saying he was fit for work, if he worked from home) , and had managerial responsibilities of his own. In his communications (e.g. his email of 7 January 2024, page 208 of the bundle) at the time he complained not of the volume of emails from Kerry - Ann McKinley , but of their content and tone. Further, in his second grievance document (page 237 of the bundle) he included not only emails from Kerry - Ann McKinley, but two other managers as well, which he has not relied upon for this claim. Indeed, his complaint starts with these, the term “bombarded” in relation to these emails, which the claimant says, correctly, were about his management of the sickness absence of a member of his team.

[101]The Tribunal does not consider that this treatment begins to meet the test of detriment required for a s.27 claim. The actual volume of emails cannot be regarded , reasonably, not subjectively, as excessive, particularly given that the claimant was still working and was fit to do so. This claim fails at this stage. Issue 6.2.2 – discussion and findings.

[102]The Tribunal accordingly moves on to consider the next issue, where the arguments of each side are similar, and overlap to some extent , with those deployed in relation to the previous issue.

[103]Here the claim is slightly different, in that it is not the volume of emails that is complained of, but the fact that Kerry - Ann McKinley allegedly started to “address additional issues” with the claimant . The claimant has not really articulated what he means by “additional issues”. Additional to what ?The email traffic in question at this time was either about the claimant’s requests for reasonable adjustments, or related to the claimant’s management of his own team. He was working, and management of his team’s sickness absences was one of his responsibilities. In what way was this “additional”? As we have seen, Kerry - Ann McKinley was not the only manager raising these issues, but no complaint is made that they too were victimising the claimant.

[104]The Tribunal’s view is that this alleged detriment too cannot reasonably be considered to amount to a detriment, and this claim fails on that basis as well. Issue 6.2.3 – threat of disciplinary action.

[105]This treatment , the respondent does not (para. 100 of the closing submissions) accept amounts to detriment either. It does so on the basis that the claimant had indeed been acting unreasonably in avoiding the meeting that Kerry - Ann McKinley was trying very hard to arrange to discuss his requests for reasonable adjustments. That, it submits, fails the test in Shamoon , on the basis that the claimant’s sense of grievance was unjustified.

[106]The Tribunal does not agree. Any reasonable worker would take the view that a threat of disciplinary action was to his detriment. That such action may actually be justified does not, in the Tribunal’s view , change that. A threat is no less a detriment because it is a justified threat, unless the circumstances are so extreme that the employee could hardly have expected anything else, which appears to be the respondent’s argument. That is far from the case here.

[107]So as this claim passes the threshold of detriment, the issue now comes down to causation, the burden of proof, then, under s.136 of the Act, of course, passing to the respondent to show that the detriment was ( as per Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

2005 ICR 931

) was in no sense whatsoever based on the protected because of the protected act (something overlooked by Mr Williams in para. 12 of his closing submissions in reply , where he suggests that the claimant has to establish that Kerry - Ann McKinley acted because of the claimant’s protected act, which is not correct once the protected act is conceded).

[108]An examination of the evidence reveals clearly that whilst Kerry - Ann McKinley was the author of the email sent to the claimant containing this threat, it did not emanate from her. Rather, the offending words were added by Tony Hancock of EAS, whom Kerry - Ann McKinley approached for advice on how to word her next email of 11 January 2024. She was not going to make any threat of disciplinary action, and was in fact, uneasy about its insertion.

[109]The Tribunal notes, and takes into account the claimant’s submissions on this issue at paras. 93 to 96, where he says:93. The Respondent cannot avoid this issue by saying the wording merely reflected EAS advice. The pleaded detriment remains the same: the email sent by Ms McKinley to the Claimant. The Claimant does not seek to change that case. The point is simply that, even if EAS commented on or suggested wording for consideration, Ms McKinley adopted that wording and chose to send it in her own name as the Claimant’s line manager. The Tribunal is concerned with the communication the Claimant actually received, not with the Respondent’s later attempt to dilute responsibility for it. (page 217)

94. That position is consistent with principle. In Gallop v Newport City Council

[2013] EWCA Civ 1583

, the Court of Appeal made clear that an employer cannot simply rubber-stamp outside advice and must apply its own judgment to the facts before acting. The same reasoning applies here. Even if EAS suggested stronger wording, that did not deprive Ms McKinley of agency or judgment. The relevant question is whether it was appropriate, in the grievance and conflict context, to send the Claimant an email threatening behavioural consequences and formal action in order to compel attendance at a meeting about disability-related adjustments.

95. Nor does EAS involvement make the communication neutral. Derbyshire confirms that employer communications in the context of equality disputes may amount to victimisation where they go beyond legitimate case management and exert pressure on the employee in relation to their protected rights. The Tribunal is therefore entitled to focus on the objective wording, timing and effect of the email itself.

96. Finally, if the Respondent seeks to say that responsibility lies elsewhere because the wording originated with EAS, that does not assist it. Under section 109 Equality Act 2010, anything done by an employee in the course of employment is treated as also done by the employer, and it does not matter whether it was done with the employer’s knowledge or approval. The pleaded act remains Ms McKinley’s email. The legal consequence is simply that the Tribunal is entitled to treat that email as both her act and, in law, HMRC’s act. The Respondent therefore cannot escape the victimisation allegation by saying, in effect, that someone else told her to say it.

[110]With respect, the Tribunal cannot accept these arguments. Firstly, although the last point made, there is no issue here as to vicarious liability, the respondent has not pleaded, and the Tribunal would be most unlikely to find, that it was not liable for the acts of Kerry – Ann McKinley. Secondly, the relevant question here is not that posed in para. 94. The issue is causation, not the appropriateness of the sending of the email in those terms. Thirdly, whilst the reference to Derbyshire is correct, this case is a world away from the circumstances of that case. Kerry - Ann McKinley’s evidence was that she did not make the threat of disciplinary action because the claimant had raised a grievance against her, but because Tony Hancock suggested that she should. Good, bad or indifferent, the Tribunal accepted her evidence as to the reasons why she sent that email.

[111]So on causation, the evidence is clear, the detriment of the threat of disciplinary action was not made, in reality, by Kerry - Ann McKinley at all. It is, however, against her that this claim is made, and she has satisfied the Tribunal that the inclusion of that threat was not because of the grievance that had been raised against her, but because of the advice of Tony Hancock of EAS to include this wording in the email to the claimant. This claim too fails, for that reason.

[112]For completeness, had the other two victimisation claims not fallen at the first hurdle, the Tribunal would also have found that the reason for that alleged treatment was not because of the grievance, but because Kerry - Ann McKinley was making genuine and legitimate attempts in the relevant email chain to a) progress the claimant’s requests for reasonable adjustments and, b) to continue to manage him in the role which he was employed to carry out, and was carrying out in January 2024.

[113]All the victimisation claims are accordingly dismissed. Overview and Conclusion.

[114]For completeness, and to do justice to the claimant’s substantial submissions, the Tribunal will finally address the issues raised in the submissions as paras.8 to 17 of the submissions, under the headings Disclosure History, Overnight search and EAS material, Withdrawn Witness and Annex A.

[115]In relation to the first, the disclosure history, the Tribunal notes what the claimant says, but does not consider that the lateness of the disclosure relied upon has not led to the Tribunal drawing any inferences of the nature that the claimant seeks. Material relating to the 2018 to 2024 period in particular is of only tangential relevance to the harassment claims, for the reasons discussed above, and other disclosed material , whilst more relevant was nonetheless perfectly genuine , and there were no grounds to challenge its authenticity, which is what the claimant seems to ask the Tribunal to do.

[116]In relation to the second heading, the overnight search and EAS material, the Tribunal is not quite sure what point the claimant is making. It seems to be that there was , or may have been, more EAS advice material in terms of advice to the respondent than was disclosed. That may be so, but what has been disclosed (and was originally disclosed) merely shows the advice being given, and , crucially, in the case of the third allegation of victimisation, how the email to the claimant came to be worded as it was. That is the real relevance of the EAS input, the rest is merely background, with the respondent, as the claimant has pointed out, being ultimately responsible for the actions it took, regardless of want advice it received.

[117](Pausing there , and by way, really of a footnote, the Tribunal was struck by the fact that emerged during the hearing that the respondent’s EAS service advised both sides in this dispute. That is a matter that the respondent, and perhaps any relevant trade unions, may wish to consider in more depth. Neither side sought to claim privilege for the advice that they each received, and , indeed, it would be doubtful whether they could invoke legal professional (or any other) privilege in these circumstances. That meant that the EAS advice to both sides was disclosable, and indeed, was disclosed, whether in totality or otherwise does not matter. It may be that employees who seek advice from EAS, which is a service provided by their employer, do not realise that such advice may well be disclosable in any subsequent proceedings. Whether EAS operate any “Chinese wall” system in internally is unclear, but no such protection of the privacy of communications between EAS and employees seems to exist at the stage of litigation. Thus, as employees using this service can probably not claim that all such communications are legally privileged, they may need to be wary of what they tell “their side” of EAS, as they may find it used against them in legal proceedings. That, however, is going beyond the scope of what is required in this judgment, but is mentioned for the benefit of those involved in future disputes.)

[118]Turning to the withdrawn witness, it is a matter for a party which witnesses it calls to give live evidence. The focus of this argument is upon Chris Jones, and his treatment of the claimant’s reporting of the 2018 offensive email. As has been clear, this was not one of the claims that the claimant made. It was, therefore, a peripheral matter, although one that the claimant placed great weight upon in attempting to build an edifice upon which to found his harassment claims based upon the 2024 email. The claimant’s submissions, with respect, would have far more force if there had been any claim about the 2018 email as such, and the burden of proof were to shift to require the respondent to show a non – discriminatory reason for the differential treatment. There was not, and so the respondent did not need to discharge any burden of proof in those circumstances. In any event, the Tribunal has made it clear that even if the treatment of the claimant’s report of the 2018 email was in any way shape or form tainted by the fact it was a homophobic email, that was far too flimsy a basis upon which to construct an argument that the respondent’s treatment of all such complaints over the next 6 years, and of the claimant’s email on 14 February 2024 was in any way “related to” his protected characteristic.

[119]Finally, in relation to Annex A to Stacey Higson’s witness statement, the Tribunal takes the points made by the claimant , but again, these are peripheral matters, relating to the steps that the respondent took or failed to take in terms of the detection of the senders of the offending emails , which, of course, went to many other employees, with other protected characteristics. The document may have limited weight, but it is peripheral relevance to the issues to be decided.

[120]The Tribunal accepts, as will be apparent , that the respondent’s preparation of this case has not been perfect, but the claims have not always been easy ones to understand. Ultimately, in the round, these were , or should have been, quite simply claims, which can be, and hopefully now have been, stripped down to some fairly simple issues. Nothing in the understandable complaints that the claimant makes of the respondent’s conduct of the proceedings leads the Tribunal to doubt the correctness of its findings above.

[121]All the claimant’s claims, therefore, must fail. The Tribunal appreciates that the claimant , doubtless, at the end of 2023 , following the break-up of his marriage, his increasing sense of isolation in the North West when his family support was still in the North East, and the increasing difficulties he was experiencing at work, felt under great pressure to extricate himself from this position, and return to the North East. His desire for speed, and a degree of protection until his transfer was achieved , was understandable. The Tribunal has to look, however, at both sides, and assess the respondent’s actions in the round, and in the strict legislative framework. Whilst not perfect, the Tribunal cannot find that the respondent fell sufficiently short of what was reasonably required to warrant the findings that the claimant seeks in terms of failure to make reasonable adjustments, or as s.15 claims, or that its conduct satisfies the tests for harassment or victimisation. These findings are no reflection upon Mr Bates, for whose assistance the claimant is doubtless grateful, and who cannot be said to have left any avenue unexplored on behalf of the claimant. Approved by :