J W K Boggs v Warrington and Halton Teaching Hospitals NHS Foundation Trust and Ms D Matthew: 2402734/2022

EMPLOYMENT TRIBUNALS

Case No 2402734/2022

Between

J W K BoggsClaimant

Warrington and Halton Teaching Hospitals NHS Foundation Trust and Ms D MatthewRespondent

Before

Employment Judge Aspinall

Mr Macmillan (instructed by Counsel) for claimant

Ms Barry (instructed by Counsel) for respondent

Date 20 April 2024

JUDGMENT

[1]The claimant’s complaint of unfair dismissal fails.

[2]The claimant’s complaint of wrongful dismissal fails.

[3]The claimant’s complaint of discrimination arising out of disability fails.

[4]The claimant’s complaint of failure to reasonably adjust succeeds in part.

[5]The claimant’s complaint of harassment fails.

REASONS

[1]By a Claim Form dated 22 April 2022 the claimant brought complaints of unfair dismissal, disability and sex discrimination and claims for unpaid notice pay and holiday pay against the first respondent and two named individuals. He entered early conciliation on 10 February 2022 and achieved a certificate on 23 March 2022.

[2]There was a case management hearing before EJ Feeney and a draft List of Issues was produced. The matter came to final hearing in person at Liverpool. The claimant withdrew his sex discrimination complaint and his complaints of direct and indirect disability discrimination at the start of the final hearing. They were dismissed on withdrawal in a judgment dated 20 February 2024. The complaint against a second named individual was withdrawn and dismissed in the above judgment so that the claim proceeded against the first and second respondent as named above. A timetable for the hearing was agreed.

[4]The Tribunal invited the representatives to say if any witnesses or party needed any adjustments and reminded the parties that the Tribunal regularly makes adjustments such as screening, or additional breaks or use of aids so as to achieve best evidence and full participation. The claimant, who relies on autism and anxiety and depression taken together as his disability, did not request any adjustment.

The List of Issues

[1]The issues for the Tribunal to determine were as follows: Time Limits1.1 Given the date the claim form was presented and the effect of early conciliation, any complaint about something that happened before 11 November 2021 may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide: 1.2.4.1 Why were the complaints not made to the Tribunal in time?

[2]Unfair dismissal Dismissal2.1 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:2.1.1 The respondent genuinely believed the claimant had committed misconduct;

2.1.2 there were reasonable grounds for that belief;

2.1.3 at the time the belief was formed the respondent had carried out a reasonable investigation;

2.1.4 the respondent followed a reasonably fair procedure;

2.1.5 dismissal was within the band of reasonable responses.

2.2 Did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant?

[3]Remedy for unfair dismissal3.1 What basic award is payable to the claimant, if any?

3.2 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

3.3 If there is a compensatory award, how much should it be? The Tribunal will decide:3.3.1 What financial losses has the dismissal caused the claimant?

3.3.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

3.3.3 If not, for what period of loss should the claimant be compensated?

3.3.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

3.3.5 If so, should the claimant's compensation be reduced? By how much?

[4]Wrongful dismissal / Notice pay4.1 The claimant was entitled to the statutory minimum notice period of 12 weeks.

4.2 Was the claimant paid for that notice period?

4.3 If not, can the respondent prove that the claimant was guilty of gross misconduct which meant that the respondent was entitled to dismiss without notice?

[5]Discrimination arising from disability (Equality Act 2010 section 15)5.1 Did the respondent know, or could it reasonably have been expected to know that the claimant had the disability? The claimant relies on the combined impact of autism, anxiety and depression From what date?

5.2 If so, did the respondent treat the claimant unfavourably in any of the following alleged respects:5.2.1 Being subjected to attendance management process for sickness absence from 12 Mar 2020 (GoC para 76(b)(i) )and escalation to a stage 3 sickness absence meeting and again on 19 Jul 2021 for absence.

5.2.2 withdrawn

5.2.3 Being subjected to a Final Written Warning for 18 Months from 6 Jul 2020 in relation to the criminal conviction;

[6]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)6.1 Did the respondent know, or could it reasonably have been expected to know, that the claimant had the disability? From what date?

6.2 A "PCP" is a provision, criterion or practice. Did the respondent have the following PCPs:6.2.1 Applying a multistage absence management procedure and

6.2.2 Applying R’s a disciplinary policy;

6.2.3 Not permitting pharmacists to take unpaid leave but to accept demotion when unable to practice;

6.2.4 withdrawn

6.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant's disability, in that:6.3.1 He was formally disciplined and placed on an 18-month warning where those with the claimant's condition would similarly be more likely to suffer recurrent incidents during the currency of the warning (namely, the car parking incident of 25 Jun 2021),

6.3.2 and/or C was at greater risk of suffering further periods of absence due to illness and going to a stage 3 hearing in March 2020;

6.3.3 Having to fulfil a humiliating portering role relative to his senior position;

6.3.4 The imposition of a risk assessment in which he had not been consulted?

6.4 Did the respondent fail in its duty to take such steps as ii would have been reasonable to have taken to avoid the disadvantage? The claimant says that the following adjustments to the PCP would have been reasonable:

[7]Harassment related to disability (section 26 Equality Act 2010)7.1 Did the respondent do the following alleged things:7.1.1 Obliging the claimant to work as a porter and be de facto demoted in circumstances where, for reasons related to his disability, the claimant had been unable to fulfil his usual role?

7.1.2 withdrawn

7.1.3 Did the first respondent's workplace become a hostile environment in which the claimant's training was halted on 25 June 2021 without reasonable explanation?

7.1.4 Was the first respondent's failure to address either the claimant's grievance or appeal in a timely or adequate manner unwelcome where both related to the claimant's disability related complaints?

7.1.5 Was the claimant's dismissal disability related and unwanted conduct?

7.2 The Tribunal will decide whether it was unwanted conduct.

7.3 Was it related to the claimant's disabilities?

7.4 Did the conduct have the purpose of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

[8]Remedy for discrimination8.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

8.2 What financial losses has the discrimination caused the claimant?

8.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

8.4 If not, for what period of loss should the claimant be compensated?

8.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

8.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

8.7 Is there a chance that the claimant’s employment would have ended in any event?

8.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

8.9 Did the respondent or the claimant unreasonably fail to comply with it by [specify breach]?

8.10 If so, is it just and equitable to increase or decrease any award payable to the claimant?

8.11 By what proportion, up to 25%?

8.12 Should interest be awarded? How much? The Hearing 5. The parties had prepared an agreed bundle of 1542 pages over three lever arch files. 6. The respondent’s witness Jacqui Ward substituted a witness statement of 90 paragraphs for one of 88 paragraphs by consent. Oral evidence 7. The Tribunal heard oral evidence from Mr Durrand, the claimant’s representative from the Pharmacists Defence Association at the disciplinary and appeal hearing. He gave his evidence in a helpful way. 8. The claimant gave evidence over two days. He gave his evidence in a helpful way.

The Hearing

[9]The respondent called 8 witnesses and relied on the witness statement evidence in chief of Ms Sally Proffitt (SP), whom the claimant did not need to question.

[10]Ms J Ward (JW) gave her evidence in a helpful way. She was familiar with her own contemporaneous notes of many supportive conversations that she had had with the claimant, particularly during late 2019 and early 2020.

[11]Diane Mathew (DM) was guarded in giving evidence. The reason she gave for attending the claimant’s home address, uninvited and outside of normal working hours was not plausible.

[12]The respondent’s other witnesses; Philip James (PJ), Ian Wright (IW), Victoria Young (VY), Hilary Stennings (HS), Amanda Heaton (AH) and Daniel Moore (Mr Moore) each gave their evidence in a straightforward and helpful way. Ms Young took great care to be exact in her responses. Ms Stennings did not have a good recollection of what she had seen or not seen in arriving at her decision to dismiss but was robust as to her rationale for dismissal.

The Facts

[13]The claimant started working for the respondent on 1 June 1999. At the time of the matters complained of he was a Band 7 Pharmacist. His manager was JW and her manager was MM and her managers were two Deputy Chief Pharmacists, later JP and VY, and the Chief Pharmacist was DM.

[14]The claimant’s practice was regulated by the General Pharmaceutical Council GPhC. For the purposes of this judgment the Tribunal accepts that pharmacists have to maintain their position on a register held by GPhC and do this by submitting proof of their continuing professional development. The claimant was required to submit his CPD statement by 31 October each year and if he did not do so would be removed from the register from 31 December of that year. GPhC had discretion, if someone was off ill or unable to engage in CPD, to adjust the CPD submission requirement or give exemption. In 2020 GPhC, in response to the pandemic, there was a lesser CPD requirement for all pharmacists. April 2019 Absent from work anxiety and depression

[15]On 10 April 2019 the claimant began a period of sickness absence for psychological symptoms. His managers referred him to OH. 17 July 2019 OH meeting

[16]The claimant attended a meeting with Dr Hadland who reported on 17 July 2019 that the claimant’s psychological symptoms meant that the provisions of the Equality Act applied to the claimant. The claimant was not fit to return to work and Dr Hadland arranged a follow up appointment. Welfare meetings took place on 21.6.19, 30.7.19, 2.8.19. 25 September 2019 WM meeting

[17]The claimant met with JW. He was still off sick and awaiting referral for diagnosis and treatment of psychiatric and orthopeadic issues. The orthopaedic issues have not played any part in the issues in this case and are not mentioned

[18]The claimant met with JW in the union office at work. He was still unfit for work. He was waiting to be referred to psychiatric services. It was agreed he would speak again to GP about his medication for anxiety and that he would speak to GPhC about validation issues.

[19]He was continuing to suffer extreme anxiety that caused a tremor, vomiting, sleeplessness and inability to concentrate. At times he could not even summon the energy to make a telephone call to mental health services. His neighbour had a dog that howled continuously and teenage children that played loud music. He was friendly with his neighbour and had a good relationship with her and did not want to raise the noise with her. This exacerbated his anxiety. He had for many months prior to going off sick been avoiding going home because of the discomfort and distress the noise caused. Further, there was a residential home nearby which housed patients with mental health issues. One of the patients would sit in a car and honk the horn loudly and repetitively. The noise was an issue for all of the neighbours but the claimant was particularly sensitive to it. The 19 October 2019 incident at the nursing home

[20]On 19 October 2019 after two nights of no sleep and extreme anxiety and noise sensitivity there was an incident at the residential home which the claimant says was noise related and sent him “bonkers” and which resulted in his being arrested and charged. He subsequently pleading guilty and was convicted of offences. 28 October 2019 catch-up meeting (p144)

[21]The claimant told JW about the incident at the nursing home. He said he had been arrested for aggression and had had a bad week. She recorded in her note of the meeting that he was exhibiting classic symptoms of severe depression. She found him very emotional during the meeting and recorded that he was experiencing insomnia and anxiety.

[22]JW raised his GPhC position with regard to submitting his CPD by 31 October and the claimant told her he had filled out the exemption form and needed to upload the evidence to achieve exemption from 2019 CPD requirements for revalidation. On 19 November 2019 JW referred him to OH. JW noted on the referral that the claimant had been seen by a mental health practitioner who had diagnosed severe depression. 29 November 2019 catch-up meeting (p149)

[23]Again the claimant spoke with JW. He was tearful, anxious and stressed and told her he was due in court next week in relation to the criminal charges. He told her the detail of those charges. He shared with her that his family were in touch. He raised that noises at his home, which he had found difficult, had reduced.

[24]On 2 December 2019 the claimant told JW that he had not told the GPhC of his arrest and the incident on 25 October 2019. His plan was to tell them the following week after his court hearing. He had told GPhC of his mental health absences. He had been communicating with GPhC about the need for revalidation to remain on the professional register and the usual requirement to demonstrate Continuing Professional Development. He had now paid his fee to stay on the register and was not required to produce evidence of CPD for 2019 as he had been off sick for most of the year. JW agreed to delay the next WM meeting, that a senior manager had agreed to delay the meeting and that JW would inform HR of that decision.

[25]On 4 December the claimant met with JW and agreed that DM would be his emergency contact whilst JW was on leave. DM then helped the claimant to complete a declaration form to inform GPhC of the incident. The claimant pleaded guilty in the magistrates court in early December and he was referred up to the Crown Court for sentencing.

[26]On 6 January 2021 the claimant received a suspended custodial sentence and was placed under curfew with electronic tagging for three months.

[27]DM prepared a document to commission a disciplinary investigation into the claimant’s criminal conviction. She set out the full allegations of gross misconduct that were to be investigated. She did not send it that day. She consulted HR on 7 January 2020 but did not inform the claimant of the commissioning of the investigation at that time. 8 January 2020 Welfare Meeting (p157)

[28]At this meeting with JW the claimant told her that as part of the criminal process he had been seen by a psychiatric nurse who had suggested that he may have autism. The claimant was very distressed at the meeting with JW, just two days after his sentence. JW was so concerned for him that she arranged for him to be seen by the OH nurse that day. He saw nurse CE that day. He was tearful, confused and mentally unwell.

[29]It was agreed at the 8 January meeting that all management meetings would be put on hold as the claimant was too unwell to participate in them.

[30]The claimant was frustrated that what he needed was urgent mental health referral but his GP would not refer him and OH could not prescribe nor expedite counselling for him. Nurse CE spoke to a counselling provider for the claimant to try to expedite treatment for him but without result. On 8 January CE wrote I would suggest he is not fit to attend a meeting with management and HR for the next few weeks

[31]JW prepared a letter recording the content of that meeting but did not send it as the claimant was so unwell. He was not told at that meeting that his absence was being managed under the AMP and that the next stage would be to go to a hearing as a result of which he could be dismissed. He was not told that DM had prepared a document to commission a disciplinary investigation because of his criminal offences.

[32]At around this time articles appeared in the press about the claimant’s criminal case. There was a staff meeting at which DM referred to the press interest and instructed staff not to talk about it. The claimant remained off sick due to anxiety and depression. His fit note expired on 30 January 2020. On 28 January 2020 JW asked OH if she could send the 8 January letter she had drafted to him. Nurse CE replied that it may be worth waiting for next week. She said perhaps JW could meet with the claimant before the meeting with Dr Hadland which was scheduled for 3 February 2020. 31 January 2020 catch up meeting with JW

[33]The claimant met with JW. She enquired about GPhC and the claimant said he had no further contact from GPhC about fitness to practice. He told her his severe depression was the problem but that he was feeling slightly better on changed medication and had had contact from the Autism Assessment Centre (ASC).

[34]On 31 January 2020 IS from HR emailed JW and CE to say that the claimant’s sick pay entitlement would expire in April 2020 and she recorded that management had already informed the claimant that the respondent could not support his employment indefinitely. The email said Had it not been for the recent incident {we} would most likely have been taking the matter to a hearing soon to consider the possible termination of his employment on health grounds. The email continued that it was important to progress on the AMP. Occupational Health Referral (p174)

[35]Dr Hadland saw the claimant on 3 February 2020 and decided that he was unfit for any work at that time and too unwell to be able to give a return to work date. The claimant was finding the actions of the respondent intrusive and oppressive but he did not say this to Dr Hadland. He did not say that he wanted the processes to all be put on hold until he recovered sufficiently to be able to deal with them. The OH report again said that the Equality Act applied. Dr Hadland quoted IS’s email which must have been shared with him saying that it was important to progress the AMP. Dr Hadland said the claimant was fit to attend meetings with management but should be accompanied.36. The claimant received letters from GPhC about his mental health and his criminal conviction. GPhC informed him that it would conduct an investigation to. They wanted him to speak to a psychiatrist of their nomination. They explained that the investigation could take up to six months. 7 February 2020 Welfare Meeting p178

37. The claimant met with JW to discuss the latest OH report. Dr Hadland had said that the claimant was unfit for any work and that he could not give a return to work date at that time. The claimant told JW he was due to have his autism assessment on 25 February 2020 and a mental health matters assessment (for counselling) on 27 February 2020. The claimant said he was not finding the OH referrals useful as what he needed was someone to expedite his access to a mental health assessment and to counselling. The claimant said he had arranged

[40]DM prepared a decision rationale document to consider suspension of the claimant. The rationale included: “Although the incident occurred outside work there are concerns about the nature of the incident and the need to assess / assure the safety of the employee, patients and staff before a return to work is considered.”

[41]DM said that she considered a further incident unlikely but that if there were one it could result in a custodial sentence. DM thought it not possible to move the claimant to another work area as an action short of suspension. She thought that his practice could be limited and supervised but that: “Due to his length of service from work his practice would need service updates, supervision and competency assessment as per Departmental Standards.”

[42]She included that the claimant’s fitness to practice was under consideration by GPhC. 8 February 2020 Private Medical Assessment (p179)

[43]The claimant, having tried alternate routes to get counselling or other mental health support on the NHS, now consulted a private psychiatrist Dr Al-Asady. Dr Al-Asady changed the claimant’s medication and prepared a report letter which the claimant shared with the respondent. The letter cited difficulties the claimant had had with noises, both loud music and dog barking, from his next door neighbour preventing him from sleeping and making him feel vulnerable. The claimant reported his history of depression with occurrences in 1997 and 2005. Dr Al-Asady found him to be anxious, worried and emotional during the consultation when describing recent events. Dr Al-Asady diagnosed recurrent depressive disorder currently of moderate severity. He changed the claimant’s medication and recommended CBT. He recommended a follow up in six weeks’ time.

[44]The claimant had taken other steps to aid his recovery including changing GP and seeking out alternate counselling (which was not forthcoming). 17 February 2020 WM

[45]The claimant was accompanied by workplace colleague TK at a meeting with JW and IS. JW prepared a letter setting out the content of the meeting. It recorded the claimant’s absence history and Dr Al-Asady’s diagnosis of recurrent depressive disorder and his imminent assessment for autism on 25 February 2020.

[46]The claimant said he did not think the criminal incident would have occurred if he had been well. He said he was recovering and hoping to get back to work soon. IS told the claimant that they had intended to discuss his absence and potential incapability dismissal at the previous meeting but had decided not to because of concerns about his mental health. IS said it was now necessary to refer the matter to a hearing to decide whether his employment should be terminated on health grounds. She said a report would be prepared setting out the details of his long term absence. The letter sent by JW after the meeting recorded its content and repeated: “You will have a copy of the report in advance and will be entitled to attend the hearing to give your side of the matter. You will be entitled to be accompanied at the hearing.”

[47]JW then informed the claimant, after consulting IS, that the claimant’s actions in the criminal incident may fall under the Trust’s Disciplinary Policy and that there would be a process but that neither JW nor IS would be involved in the process but that DM as Chief Pharmacist would be in touch about it. JW said that she had not wanted that news to set the claimant back in his recovery and that is why she had chosen to tell him about it face to face so it was not a surprise to him. The AMP

[48]JW prepared a management statement of case for the AMP hearing. The management statement of case included a full sickness absence history, the claimant had had no significant absence prior to April 2019, and a record of the welfare meetings and OH referrals. It stated that the disability provisions of the Equality Act 2010 are likely to apply. It set out that the claimant had attended a private appointment a consultant psychiatrist was seeking out counselling and CBT. The statement of case concluded: “JB was involved in a serious police incident in October 2019, this incident and subsequent court appearances had an adverse impact on his mental health and recovery. This limited the opportunity to meet with him and discuss his ongoing long-term absence. However, since the conclusion of the police action January 2020, it appears that JB is now actively seeking medical support and counselling and is beginning to make progress towards recovery.”

[49]The statement of case also said that JB was assisting the GPhC with respect to registration related matters.

[50]On 26 February 2020 DM wrote to HR seeking advice and saying that she had a member of staff who will need to be investigated under the Disciplinary Policy following his conviction in January. DM went on to say that there was a potential that the claimant could return to work in April and she said: “Absence on ill-health grounds has priority over suspension, in the event that he is deemed fit to return to work though we may need the option to

[51]JW’s 25 February 2020 meeting letter was sent. The claimant received the letter which referred to a potential dismissal on health grounds. The letter also referred to a potential dismissal on disciplinary grounds because of the October incident.

[52]On 27 February 2020 there as a further welfare meeting. The claimant said that his autism assessment had been cancelled as the clinician was ill and that his mental health matters review to access counselling had also been cancelled. The claimant said he was feeling better and was planning to ask the GPhC if he was able to return to work whilst the investigation team was ongoing. He informed JW that his electronic tag would be removed on 5 April 2020 and that he hoped to have it removed before returning to work. The plan at that meeting was a return to work before the end of April 2020. JW explained the format of the AMP stage III hearing which was due to take place.

[53]The claimant’s autism assessment took place on 2 March 2020. 4 March 2020 attendance at claimant’s home

[54]On 4 March 2020 DM attended the claimant’s home without prior agreement outside of office hours and knocked at the door. The claimant answered the door and was shocked to see his manager’s manager’s manager, the Chief Pharmacist, on the doorstep. He was wearing underwear and a T shirt and was embarrassed both that he was not fully dressed and that his undress revealed the electronic tag on his ankle. He asked DM to step inside so that he could not be seen from the street. DM told him she was delivering a letter inviting him to a disciplinary investigation meeting and that he would be suspended once he had a return to work date.

[55]The letter from DM invited the claimant to a disciplinary process investigation meeting to look into the impact of the criminal conviction at work. DM had decided to commission the investigation in January but had not been able to send the letter because OH had said he was too unwell. She had consulted AC about the process on 26 February because she was worried that he might be returning to work in April. The letter invited the claimant to a meeting on 11 March 2020 in her office to discuss the investigation and told him of his right to be accompanied at that meeting.

[56]On 11 March 2020 the claimant again saw Dr Hadland. Dr Hadland reported that the claimant reported an improvement in his psychological symptoms. Importantly, the report said that the claimant would be likely to return to work in the coming weeks.

[57]JW updated her management statement of case document for the AMP hearing to include the 11 March OH report to reflect a likely to return to work in the coming weeks.

[58]The respondent’s Managing Sickness Absence (AMP) policy contained

[59]The policy provided information on Termination of Employment on the Grounds of Ill-health. It said: “If a return to work date is not agreed and/or suitable redeployment cannot be found, a final review of an employee’s case must be carried out under the following circumstances:• following the third welfare meeting or at any point…. If the health and well-being team advised the employee is unfit for the foreseeable future

• in all other cases and where employees are entitled to 6 months full pay in six months half pay, at the very latest, 12 weeks prior to expiry of Occupational Sick Pay …… An appropriate manager with the power to dismiss under the Trusts Disciplinary Policy must be present and make the decision. The employee will be encouraged to attend the meeting accompanied by the trade union representative or workplace colleague and are HR Business Partner will also be present to support the manager chairing the meeting. Both manager and the HR Business Partner will have had no prior involvement in the case. The outcomes of the meeting will include one of the following options

• where medically the health and well-being department advised a member of staff is likely to return by specified date there may be a recommendation to return to work….

• Where the health and well-being department advised that medically the employee is unlikely to return to work in the foreseeable future may be a recommendation termination of contract. The employee will have the right of appeal against any decision made to terminate the contract.”

[60]The Policy contains separate guidance for Managing Sickness Absence and the Equality Act 2010. It provided that where an employee has declared an underlying condition and OH has confirmed that the condition is covered by the Equality Act then the managers: “must consider whether or not the condition contributed to any of the absences in the employee’s absence record and must then go on to consider are there any adjustments suggested in order to support the employee to maintain his or her attendance.” The guidance provided the employer: “must consider making reasonable adjustments for disabled employee if it becomes aware of their disability and an employee sickness record or delay in returning to work is linked to their disability. Reasonable adjustments can include amending the triggers set out in the section above (this must only be undertaken if health and well-being advised the nature of the condition means that the standard of attendance expected should be amended, and in agreement with an HR Business Partner).”

[61]Provision therefore existed for reasonable adjustment to the triggers at each stage of the Managing Sickness Absence Policy. 12 March 2020 suspension

[62]On 12 March 2020 the claimant attended the investigatory meeting with DM at her office, she was supported by KH from HR and he by his workplace colleague TK. DM told him that during his welfare meetings he had disclosed criminal convictions and that she considered that they amounted to 4 separate allegations of gross misconduct. DM cited the disciplinary rules that she felt applied; Rules 12,19, 21 and 24. She said that because of the serious nature of the allegations the claimant would be suspended. She noted that he remained unfit for work and the claimant told her that he was due to see his psychiatrist again in two weeks, that he had been seeing OH and that he was hoping to return to work. DM raised GPhC and said she understood that they were pursuing two separate paths in relation to his fitness to practice; his mental health and his criminal convictions.

[63]DM then read through the suspension checklist. She explained that sickness absence would override suspension so he would remain on sick pay but that he was suspended with immediate effect from his post as clinical pharmacist to enable a full investigation to take place and would remain suspended until the investigation was completed. She gave him a copy of the Disciplinary Policy.

[64]On 12 March 2020 DM put the content of the meeting and the terms of the suspension in a letter to the claimant. It said that it was hoped the investigation would be completed in as short a time as possible. It directed the claimant to the Trust’s Freedom to Speak Up Guardian JH.

[65]There was also the AMP underway. The claimant received a formal invitation letter to the Stage 3 AMP hearing dated 18 March 2020 from JW. It set out his right to be accompanied and enclosed the JW Management Statement of Case. The letter advised him that a possible outcome of the hearing was

[70]This was not information that had come from the claimant who knew himself to be registered and exempt from 2019 CPD requirements and under investigation for fitness to practice but with no current conditions or restrictions on practice. Return to work and suspension

[71]JW and KHg from HR agreed following a request from the claimant that he would return to work on 14 April 2020 but that he would be suspended on full pay. He remained suspended from 14 April 2020 until and his suspension was reviewed by DM fortnightly and letters extending his suspension sent on Suspension letters extending suspension 414 441 445 468 ASC report

[72]On 24 April the ASC Diagnostic Service reported that the claimant had a diagnosis of autism spectrum condition. The report outlined• The claimant has difficulty with change.

• He is sensitive to noise particularly high pitched noise and he reported a lot of external noise at work. Noise can lead to him feeling overwhelmed because of sensory processing difficulties.

• His language is good and he has excellent communication skills. He has a good sense of humour but is aware he can be perceived as being blunt so takes care in case his words are taken the wrong way. He usual social gestures including smiles and is good at talking to people. He has limited social imagination skills. He shows good understanding of his emotions and is able to relay how he feels to other people.

[73]The report provided recommendations and recommended reasonable adjustments including:• Ensure background distractions are minimized particularly background music or noise.

• His communication can change if he is feeling anxious or uncomfortable in an interaction, do not pressure him to provide an answer, allow him to respond in his own time. If he is feeling overwhelmed reduce the complexity and allow processing time.

• John benefits from a quiet working environment or one where he is in control of any noise.

• Allow him to plan in advance and maintain routine. 11 ay 2020 occupational health report

[74]This was a telephone consultation during the pandemic lockdown. The report set out the diagnosis of autism spectrum condition and that the claimant remained suspended from work and awaiting a decision from GPhC as to how they would respond to his convictions. Dr Hadland reported that the claimant was fit to

[75]JW had been keeping in touch with the claimant and was able to update IS from HR on 18 May 2020 that she had had a good chat with the claimant who was eager to get back to work and felt his mental health was improving.

[76]DM then appointed SP to conduct a disciplinary investigation into the claimant’s criminal conviction. DM prepared an investigation plan document setting out the terms of reference which included: “to undertake a thorough and robust investigation into the above allegations against JB, obtaining relevant information to establish the issues of fact in line with the disciplinary policy to meet with JB and any other relevant parties to obtain information as appropriate, including confirmation of the outcome of the court hearing … The purpose of the report will be to set out the facts as ascertained by the investigation team and will be used to determine the next steps and whether the case should proceed to a disciplinary hearing.”

[77]SP contacted JW and obtained a statement from her and then contacted the claimant on 19 May 2022 to invite him to an investigatory interview. The meeting took place on Tuesday, 26 May 2020. The claimant attended with his workplace colleague TK. The interview was conducted by SP who was supported by ER from HR. The claimant gave a detailed account of the incident on 19 October 2019. He gave the broad context of having been off work sick from April 2019 with anxiety and depression and the immediate context of noise of a car horn sounding repetitively. He gave details of contact with occupational health and the support he had had from DM in informing the GPhC of his convictions and ill-health. He said that GPhC were running their own investigation and wanted an independent medical assessment but that he did not think the GPhC position prevented him coming back to work. He gave SP a copy of the ASC report. He said that the report showed that he had issues with noise which is a typical indicator of having autism and that he had never been able to deal with high-pitched noises. He also gave SP the statement that he had submitted to the AMP hearing.

[78]On 27 May 2020 JW had a further catch up meeting with the claimant who again said that he was keen to return to work. JW said that she would go through the autism report to look at adjustments. The claimant consented to the pharmacy team seeing the report but said he didn’t want people wasting time adjusting to all of the recommendations in the report.

[79]On Thursday 28 May 2020 the claimant sent DM, in response to her chasing him, a letter he had from GPhC saying that there were no restrictions on his practice. 4 June 2020 decision to proceed to disciplinary hearing

[80]DM received SP’s investigation report into the criminal conviction. It was open to her to decide either: no case to answer, informal action or disciplinary action. The report concluded that the claimant had been mentally unwell at the

[81]DM decided there was a disciplinary case to answer. She wrote to advise the claimant of this on 8 June 2020 and to convene a disciplinary hearing to take place on 17 June 2020. The claimant was advised of his right to be accompanied and told that the hearing would be decided by IW, Associate Director of Estates and Facilities and that she, DM would present the management side case. She enclosed the management side documentation and asked for the claimant to provide any documentation to be included to her at least five days before the hearing. The letter advised the claimant that if the allegation was proven disciplinary action may lead to dismissal. She set out the following allegations derived from the Disciplinary Rules Gross misconduct 12. Criminal conduct at work or other than at work which may have relevance to the duties and tasks employee is required to perform and/or impact on professional registration. 19. Engaging in activities that may bring the Trust into disrepute, including the use of the Internet and social networking sites. 21. Physical or indecent assault on any person whilst on or off duty and or on the trust premises. 24. Serious or repeated breach of Trust Values and Behaviours. 17 June 2020 the disciplinary hearing took place.

[82]The decision maker was IW. The documents before the panel included; the transcript of the interview with the claimant, the statement from JW, the ASC report, the personal statement from the claimant which had been used at the AMP hearing, and the following character statements in support of the claimant.a. a staff nurse on intensive care unit described him as a pleasure to work with

b. neighbours TM and SM who said he was a good neighbour and the first to offer help and assistance to anyone in need. They found him to be a quiet well spoken man who’s been unwell for the best part of the year and described how they and others had done as much as they could to support and help him.

c. neighbours W, E and AK who said they been shocked to hear about the criminal matters, they had been neighbours for over 10 years and found to be an exemplary member of the community. They described him as a thoroughly decent and kind man who had been through a traumatic time.

[83]For some reason, DM, not SP who had prepared the report, presented the management statement of case. The claimant described how he had flipped in October 2019 and then been badly advised by his solicitor and barrister and let down at the last minute for representation so that he pleaded guilty to avoid the risk of a custodial sentence and that he had not had medical evidence to submit in mitigation at the time but now had his autism diagnosis and that his anxiety and depression were now well controlled and that it could be sure there would be no repetition of the conduct he had exhibited in October 2019.

[84]6 July 2020 disciplinary outcome letter

[85]On 6 July 2020 IW wrote to the claimant to say that he had decided not to dismiss but to impose a first and final written warning which would remain on his record for 12 months. IW said: “…this was clearly a significant incident and one which could serve to undermine your employment with the Trust and it was clear that you have acted in a way which would breach the Trust disciplinary rules. Accordingly, serious consideration was given to terminate your employment on the grounds of gross misconduct. However, your long service with the Trust was considered …as was the evidence that this incident was linked to an undiagnosed and uncontrolled medical condition. This condition has since been diagnosed treated and therefore appears to now be well controlled which makes any repetition unlikely as well as providing further mitigation.”

[86]The claimant was informed of his right to appeal but did not appeal this outcome. GPhC write to the respondent87. On 30 June the respondent received a letter from GPhC requesting information. DM replied on 14 July 2020 providing factual responses but also offering further information expressing reservations as to whether the claimant had sufficiently recovered from his illness to be able to cope with work, whether the claimant had sufficient insight into his underlying health conditions to be able to recognise signs of symptoms returning and develop coping strategies, as to what adjustments might be needed and whether they would be reasonable, as to the technological changes that had occurred since the claimant was lasting work and the level of support needed to provide complete training and competency requirements. Also express the reservation that there may be: “potential or persisting triggers that might put the claimant at risk of future actions that could lead to a custodial offence or further disciplinary action.”

88. DM asked what position would the GPhC take in relation to the two fitness to practice concerns, health and disciplinary, and whether the claimant’s registration status would allow him to practice as a pharmacist. She said this was a complex situation and that the Trust had significant concerns but that the Trust

[90]The claimant accepted that having been out of pharmacy practice for so long he would need retraining. He raised that he would like to be retrained on the pharmacy computer system Lorenzo and on the patient management system EPMA. They discussed the recommendations of the latest OH report that said the claimant should have a phased return and weekly supporting meetings. DM said that the claimant would need to return to work at Warrington, not Halton. He had been working at Halton before he went off sick and felt that was a quieter place of work. He had been hoping to return to Halton but did not feel, whilst he was still on suspension, able to negotiate or ask for anything other than what DM said. DM said there would need to be a risk assessment for his return to work. The claimant explained that the only adjustment he felt he would need was the robot alarm situated in the pharmacy to be relocated so as to minimize his exposure to the repetitive alarm noise. DM repeated that he contact Access to Work for headphones. 91. DM wrote to the claimant setting out the content of their return to work discussion but failed to include his request for a reasonable adjustment in relocation of the robot alarm and refers only to it in terms of his contacting Access to Work.

[92]It was agreed the claimant would return to work in a non-patient facing role. He was given duties in the clinical office for pharmacy, reviewing policy documents. He found that a welcoming environment and was pleased to have the company of others. He was then allocated to a small office, without a telephone, off the main corridor. He made no complaint about the office allocation at the time, still feeling he was at risk at work but he was concerned that DM was seeking to isolate him from colleagues. He did raise there not being a phone and nothing was done.

[93]There was then agreement that the claimant would take leave from 23 July 2020 to 7 August 2020 and return on 10 August 2020. 12 August 2020 return to work meeting with JW

[94]A staged return was agreed and the claimant accepted that he needed re-training and that competency assessment would have to be undertaken. Everyone understood this to be being given 500 items to dispense over a 2-3 week period with a requirement for a high degree of accuracy. If the accuracy standard was not met a further 100 items would be required to be dispensed to meet the standard. The claimant accepted that he would need to read Standard Operating Procedures (SOP) before beginning the competency assessment and that might take three days. 27 August 2020 Catch up meeting

[95]JW met with the claimant who had returned to work the previous week on staged return and was doing Controlled Drug (CD) Audits and reviewing the SOPs prior to commencing competency assessment. 21 September 2020 catch up meeting with JW 96. The claimant was working a full week by 21 September 2020 and finding he was very tired towards the end of the week. He was using annual leave to take Fridays off. He was still doing CD audits and reading. When asked he said he felt the department were doing all they could to support him at that time. 1 October 2020 catch up meeting with JW

[97]The claimant told JW he was shocked to have heard from GPhC that they had referred his case to senior lawyer. He was still doing CD audits and had not started his competency assessment. He said he was getting “snow blindness” with the CD audits and reading as it was monotonous. She suggested he take some annual leave. They agreed there would be a risk assessment so as to get the claimant back into working in (following competency assessment) in his professional role in the dispensary and an OH referral, the aim being to start the claimant on his training (prior to competency assessment) back in the dispensary on 12 October 2020. 9 October 2020 catch up meeting with JW

[98]The claimant had received a letter from GPhC telling him that it would convene a Fitness to Practice hearing in view of his conviction but that it would not be until some time next year. He had a deadline in December for submitting his documents for that hearing. He was very upset at this news. It led to an exacerbation of his anxiety and depression so that he was not fit for work again for a short period from 9 October 2020. 12 October 2020 catch up meeting with JW

[99]The claimant was very anxious at this meeting and still off sick. JW encouraged the claimant to talk to his counsellor. She provided him with details of the wellbeing hub and told him she would ask OH what tasks he was fit to undertake. He made contact with the home treatment team and had visits from them whilst off sick. They talked for over 45 minutes. 15 October 2020 catch up meeting with JW

[100]The claimant returned to work and met with JW. This was an hour long meeting. The claimant was upset and even said that he was having some suicidal thoughts and was not sure he should be doing CD Audits if GPhC thought there was an issue about his fitness to practice. He said that his anxiety is about the GPhC issue but that he was dreading coming to work to have to complete another CD audit and was weary of that work. The claimant was not put in dispensary to begin training for reassessment. The claimant continued doing CD Audits. 29 October 2020 meeting

[101]The claimant met with JW again and again said he was fed up doing CD Audits but was told that it was important to complete one task before moving on to

[102]JW had spoken to DM and confirmed that there were only two policy documents left for the claimant to read before retraining could begin. They discussed the importance of him completing his tasks on time and not staying late. The claimant asked about taking a period of extended leave to return to Northern Ireland.

[103]JW was aware that the October absence meant the claimant would trigger the AMP and she asked KHg at HR about that. She expressed concern because he was disabled and wondered if attendance targets applied to him. She says she wasn’t sure where he stood. KHg asked what was the reason for absence, was it his anxiety and psychological symptons. JW said that it was ie disability related. On 12 November 2020 KHg says that his long term absence would be covered under the Equality Act and says she has looked at the OH reports but can’t see that. KHg advised JW to progress to stage 1 AMP.

[104]On 17 November 2020 the claimant was told that his absence in October had triggered stage 1 AMP and that he would be called to a stage 1 meeting.

[105]The claimant applied to have special leave to attend afternoon appointments at the wellbeing hub. It was granted. Stage 1 AMP meeting

[106]On 24 November 2020 the claimant attended a stage 1 AMP meeting with MM who sent a letter that same day recording the outcome. He was told that the respondent had ignored the April 2019 to April 2020 absence. That the Equality Act had applied and therefore the claimant had not progressed to stage 1 following the stage 3 hearing. He was told that he had had five days absence in October 2020. He was told that five days in October triggered the 10 days in any twelve month period.

[107]The report said that the claimant was working a four day week using annual leave to reduce his working hours. He had continued to carry out administrative work and had still not restarted refresher training or competency assessment for dispensary duties. OH found him fit to continue at work.

[108]JW interpreted Dr Hadland’s “carry on as you are” as meaning the claimant could only do administrative duties such as policy review of CD audits. Dr Hadland had not been asked that. There was nothing to say that the claimant couldn’t commence dispensary retraining and competency assessment. JW consulted HR as to whether the claimant’s pay at Band 7 pharmacist could continue whilst he was only doing administrative duties.

[109]The claimant continued working in November. On 16, 17 November and 20 -21 November he was absent due to an adverse reaction to a COVID vaccination.

[110]The claimant returned to work and carried on performing the administrative and audit tasks allocated to him. He was not put back in the dispensary.

[111]In January 2021 there was an allegation that the claimant had accessed medical records inappropriately. This came through PALS. The complaint was made by someone known to him from the motor sports world. The claimant had two days absence. He was anxious and vomiting. Return to work interviews were conducted on each occasion. The PALS issue was being looked into.112. In early 2021 KHg chased updates from the GPhC and was told that updates would not be provided as they were confidential to the claimant. KHg sent the GPhC the outcome letter from the IW disciplinary hearing. 17 January 2021 Catch up meeting with JW

113. On 17 January 2021 JW told the claimant that she did not propose to take any action in relation to the PALS complaint. She discussed comments he had made on social media about the complainant and guided him not to make comments that would be considered unacceptable to the Trust. He said he was struggling with emotional outbursts. 18 January 2021 JW wrote to him to confirm that meeting and to remind him about professional responsibilities and standards and the importance of getting help. She reminded him that he must not be providing medical or pharmaceutical advice whilst he is not practicing. Risk Assessment

114. On 5 February 2021 JW completed a risk assessment for the claimant which repeated the respondent’s requirement that the claimant not counsel patients or colleagues with pharmaceutical advice. He was not undertaking any clinical or patient facing duty. The claimant was still working a 4 day week because his mental health and anxiety caused him fatigue. He was using annual leave, but had now switched his annual leave day to Wednesday.

[115]The RA recorded that the claimant was not undertaking clinical or patient facing duties or refresher training or competency assessment because they were Pending further information from professional body 23 March 2021 catch up meeting with JW 116. The claimant and JW met and he had at this time been given a date for his GPhC hearing on 6 and 7 July 2021. JW encouraged the claimant to continue to use his accumulated annual leave. He had booked leave for the week of his GPhC hearing. He was told he needed to book 60% of his annual leave by October. The respondent was concerned at the amount he was accumulating. There was open discussion about his medication and health. The claimant had still not started retraining in the dispensary but had been doing fridge temperature audits across the site. JW then did an OH referral and asked: “Can he undertake full time duties or would a temporary reduction in working hours be considered? Advice re best use of annual leave Can he return to pharmacist related duties – retraining and competency assessment?”

[117]This was the first time Dr Hadland had been asked if the claimant was fit to do his retraining and competency assessment and he said yes he was. The referral took place on 31 March 2021. Dr Hadland said the claimant was fit to attempt a return to 5 days a week, he recommended the claimant used his annual leave and said: “There is no medical reason to consider John unfit to restart the training and competency assessment”

[118]He did not think a case conference was needed. 13 April 2021 catch up meeting with JW

[119]The claimant reported increasing anxiety in relation to the GPhC hearing. It was agreed he would restart a 5 day week, book some annual leave, that timescales would be put in place to start training and: “John has a responsibility to let us know if noise is affecting his training.”

[120]The claimant had said, as long ago as April 2019 that the noise of the robot alarm disturbed his work in the pharmacy. Nothing had been done about that. 26 April 2021

[121]The claimant had been absent 23 – 25 April 2021 following a car accident and whiplash incident. He met with JW and they agreed they would meet next week and if the claimant wanted they could start with him re reading the dispensing Standard Operating Procedures again prior to starting retraining and competency assessment. The claimant went home sick after being checked out at ED for headache and dizziness. 6 May 2021 catch up meeting with JW

[122]The claimant had shared his ASC report with management. He disagreed with a lot of the recommendations. He said again that his main trigger was the robot alarm and that he did not have an issue with the noise from staff.

[123]They discussed a forthcoming welfare meeting with HR. The claimant had had an invite letter dated 5 May 2021 from KHg to discuss working arrangements and the contents of the latest OH report. 13 May 2021 HR meeting

[124]On 13 May 2021 the claimant, met with KHg and JW. They discussed the ASC report and said they would email OH about any adjustments following that report. KHg again referred the claimant to the wellbeing hub and Access to Work. The claimant told JW and KHg that he felt DM was on his case, that there had been an incident when she had taken him into the office and blocked the door and that she tries to get him to react and that he had felt bullied by her. KHg offered a facilitated discussion or mediation but the claimant did not want to go down that

[125]There was a second meeting that day, this time with MM who said a nurse had come to her with concerns for his mental health because of the level of detail he had gone into when talking to her. The claimant said he did not need an urgent referral to mental health. He talked again about the GPhC and his retraining and assessment. He said that as there was a Fitness to Practice hearing still to go ahead with GPhC it may not be worth starting the reassessment now as he may not be able to practice at all going forward. 18 May 2021

126. JW wrote to the claimant setting out the content of the meeting of 13 May with her and KHg. She outlined the process she would follow to complete the RA which would be to take into account the ASC recommendations, OH comment on that report and the claimant’s beliefs and feelings. She recorded his concerns about the robot alarm and feeling bullied by DM. Her plan was to do the RA and for him to start retraining. 24 May 2021 OH report 14

127. The claimant met with Dr Hadland again. He was still carrying out audit work but it was recorded that he hoped to start refresher training and competency assessments next week. Dr Hadland suggested contact with Access to Work for support in implementing the recommendations of the ASC report. He noted that the claimant had significant concerns about the report and recommended a reassessment. He also recommended the claimant contact Access to Work.

128. The claimant then had some annual leave and returned on 1 June 2021. JP, a pharmacist colleague, then wrote to him to thank him for the audit work that had been completed and to say that he had to read SOPS before starting refresher training. 15 June 2021 claimant works in the dispensary

[129]The claimant moved back into the dispensary and began an assessment period. He had to keep a log of what he was dispensing and dispense around 500 items and have that log checked for accuracy. If all was well, within acceptable standards of accuracy then the claimant could resume pharmacy role. If the claimant did not meet the accuracy standard then he could be reassessed. The claimant was paired with a pharmacy colleague GD for this process.

[130]The next day JW met with him to discuss how he felt about being back in the dispensary. The claimant was pleased to be doing something he was employed to do. He said he had counselled patients. JW told him that he was not supposed to have done that. She escalated that to MM. She also reminded the claimant that he must read the SOPS and be familiar with them before undertaking dispensing. JW wrote to KHg in HR: “He has not been given a verbal or written warning but I did meet with him in the presence of my line manager to discuss this and once again reiterate

[131]Dr Hadland’s report of 21 June 2021 recorded that the claimant had started refresher training and competency assessment. It noted that the claimant had not contacted Access to Work as requested. 21 June 2021 catch up meeting with JW 132. The claimant said he was going to seek reassessment with ASC, as discussed with Dr Hadland, as he did not agree all of the recommendations in the report but that he would leave this until after his GPhC hearing which was imminent. The claimant was working happily on dispensary training full time and was happy to continue. JW asked him again to contact Access to Work, management could not get Access to Work support unless the claimant initiated it, and the claimant said he would look again at their website before deciding whether or not to contact them. He knew that headphones or ancillary equipment was not what he needed. He needed and had asked repeatedly for the robot alarm to be relocated.

[133]The respondent had not been able to obtain an update direct from GPhC for confidentiality reasons. KHg in HR now asked JP, a registered pharmacist, to write to the GPhC and outlined terms he might use, for example saying: “He (JP) is new to the Trust and has been made aware of the pending hearing for JB. He is aware that DM sent through some information for them in July 2020 but if they require any further information or update, prior to the hearing you are happy to provide it.”

[134]KHg was suggesting language that JP should use so that the respondent could send more unsolicited information to influence the claimant’s GPhC hearing. The car park incident at work 135. On 25 June 2021 the claimant came onto site in his car after lunch and found the only available parking space would mean blocking in a colleague who had parked horizontally across three bays instead of vertically as indicated by the yellow parking lines. The claimant parked vertically, blocking the vehicle in. He took photographs of the two cars and reported to security that he may be needed to move his car later. He gave his details. Later, security informed him that someone needed him to move his car. He went to the car park quickly intending to move his car and approached the other driver NB. NB was seated in her car and put up her hand and told him to wait as she was talking on her phone. He waited. She then said that she was stuck because of his inconsiderate parking. He attempted to explain the direction of the lines and convention of parking vertically. She told him to stop talking and just move his car. A heated exchange took place. He raised his voice and swore at her can’t you see the fucking yellow lines. NB said You are the most horrible, disgusting, vile man that I have ever spoken to I just want you to move your car.” The claimant walked away to calm down before returning within minutes to move his car. Whilst he had been away NB had called security. The claimant moved his care and then, upset and distressed, went to see his pharmacy colleague JP.

[136]The security guards stopped NB as she was leaving the car park and found her to be visibly shaken and upset. One of the guards told NB that the claimant had a criminal history and that she should look him up. The guards went to the patient flow office and reported to HS that there had been a car park incident involving John from Pharmacy. HS asked where is John now ? and the guards said that he had gone back to pharmacy. HS then rang JP in Pharmacy to ask was John there and was told that he was upset. HS asked were security there and did JP need any assistance. A male security guard was there and JP did not need assistance.

[137]HS asked the security guards in patient flow office how was the driver ? and was told NB was very upset. A week later HS had an email from colleagues to say that NB had had an incident in the car park. HS spoke to NB’s line colleagues about the incident and requested that NB prepare a factual statement and HS asked to meet with NB. HS directed that NB report a DATIX incident log which she did. By the time NB logged the incident NB had searched and found and knew of the claimant’s convictions. On 28 June 20212 line manager colleague HL then emailed HS to say: “Thank you for your support with this incident. A datix was completed and submitted this afternoon. Hilary, I understand that you have requested a factual statement (below) and to meet with Nicola. I have copied Nikki into this email and let her know…she is free to meet with you when you are available.”

[138]The Datix report giving NB’s version of the car park incident was attached.

[139]HS then emailed DM to say: “Please see statement below from a member of therapy staff affected by the incident last Friday.”140. JP told DM about the incident. DM, who had received reports from JP and HS, decided to commission an investigation into the claimant’s conduct. 28 June 2021 Welfare meeting with JW

141. JW and MM met the claimant to discuss the car park incident. He told them that the autism report said that he can dwell on things and that he had spent the weekend going over and over the incident from Friday. He said he had been tearful and taking diazepam. He said he had not been well on Friday, that emotion had been running high and that he had not meant some of the things he had said. MM explained that was why managers were reluctant to have him work in pharmacy. It was agreed he was unfit for work and he went home.

142. Following that discussion JW made a further occupational health referral giving the reason as: “Difficulty controlling emotions leading to aggressive behaviour and visible physical and verbal signs of distress.”

[143]It would appear that by 28 June 2021 JW had decided that the claimant had been aggressive in the incident and that her manager MM had decided that his

[144]The claimant was under enormous pressure in June and July 2021. He was to face his Fitness to Practice Hearing on 6 and 7 July 2021. The claimant went off sick on 28 June 2021. He saw his GP about his anxiety level and was prescribed diazepam and propranolol. 6 July 2021

145. Whilst the claimant was at his GPhC hearing KHg emailed JW marked strictly private and confidential to advise that the claimant, by his recent absence, had triggered stage 2 of the AMP. She advised JW to do a return to work meeting and then give notice of a stage 2 meeting. The GPhC hearing

146. The claimant went to London to his hearing. He had a solicitor represent him. He was so anxious that he could hardly eat. He was not sleeping and was vomiting. His anxiety caused a tremor in his arms and legs. He had prepared a written submission and found this incredibly difficult to do as his mental state was one of such anxiety that concentration was difficult.

147. On 6 and 7 July the claimant’s GPHC hearing took place. The outcome of that hearing was that the claimant was suspended from pharmacy practice by his professional body for two months, from 5 August to 5 October 2021. The claimant was distressed at this outcome as he had hoped only to receive a warning. He was also relieved not to have had a harsher sanction. He took the rest of the week off as annual leave. 12 July 2021 first day back after GPhC

148. On 12 July 2021 MM met the claimant to conduct a return to work interview. He was not well at this time. He immediately told the respondent of the outcome of the GPhC Fitness to Practice hearing. He had two months suspension from practice from 5 August to 5 October 2021. MM said that as his sickness absence from 28 June to 7 July had exceeded 8 days he would need to send a GP fit note. MM told the claimant that he had reached Stage 2 of the AMP. The claimant said that his absence in January should be discounted. MM agreed to look into that.

149. During the meeting the claimant became tearful when describing his anxiety levels over the past 18 months. He had lost a lot of weight and even feared he might have cancer. He told her how difficult he had found his London trip, including the fact that he had cried when he was told on his return journey that his ticket wasn’t valid for the train he wanted to take.

150. MM asked him to make a written statement about the car park incident on 25 June 2021. He described the car park incident and said it had not been handled well by security who had taken the side of NB. He described a previous road traffic incident he had been involved in in which a female driver had sworn at him, details of which he had shared with GPhC, and how he felt that GPhC had held it against

[152]The claimant responded to MM’s request on 12 July 2021 that he write a statement about 25 June car park incident. He did not include in his statement that he had raised his voice or said can’t you see the fucking yelllow lines. On 16 July 2021 DM wrote to the claimant to tell him that she had commissioned an investigation into the car park incident. DM used the words extremely aggressive behaviour in the letter setting out the allegation. The claimant was again referred to OH. 19 July OH meeting

[153]On 19 July 2021 the claimant saw Dr Hadland. The OH report from that meeting said: “John is continuing to take medication as prescribed for psychological symptoms…… There is a diagnosis of autistic spectrum disorder which was made in April 2020…… I also note the incident which occurred in the car park on 25 June 2021 when security was involved. Today John told me that his anxiety levels had increased prior to the GPhC hearing that this has now improved. … There is a history of vomiting but John told me that there has been no further vomiting since the GPhC hearing. I consider John medically fit to remain in work…. I recommend his retraining continues to be paused until his suspension period is completed. …. In my opinion John will benefit from increased management support over the coming months. I recommend that he has weakly supported contact with his line manager.”

[154]The OH referral had asked Dr Hadland did his stress and increased anxiety contribute to the alleged incident (25 June 2021) and Dr Hadland replied: “this does seem possible.”

[155]The OH referral had asked Dr Hadland could John’s management of the alleged incident have been linked to his diagnosis of autism and Dr Hadland replied:

[156]The OH referral had asked Dr Hadland whether or not John was able to recognise when his symptoms were increasing in order to enact his coping strategies and Dr Hadland replied: “it does seem that John is able to recognise his own psychological symptoms.”

[157]Dr Hadland’s view was that the claimant did have insight into his own actions and behaviours and was able to contact any necessary support services for himself. The 19 July 2021 Role Agreement and Risk Assessment 158. On 19 July 2021 JW and the claimant met to discuss what roles he could perform(i) between 19 July 2021 and the start date of his GPhC suspension on 5 August 2021 and

(ii) during the suspension from 5 August 2021 to 5 October 2021. The claimant was told that he could perform a pharmacy porter role, delivering medicines around the hospital.

[159]JW then undertook a Risk Assessment of the claimant for that role. She relied on the content of the OH reports and the ASC report. The claimant had said repeatedly that he did not accept the recommendations from the ASC report; he found them insulting, and that he had not found Dr Hadland at OH helpful; what he had needed from OH was support accessing counselling and he had not had that. JW took the recommendations from both ASC and Dr Hadland and created a table with columns; recommendation, comments and agreed outcome. An example of a recommendation from the ASC report is: “Ensure that you have John’s full attention before giving him information or asking a question. Ask John to repeat back if the instruction is important to ensure his understanding.”

[160]The claimant told JW that he found that level of recommendation insulting, he had worked as a senior pharmacist for twenty years, that he did not need his colleagues to use checking back questions. JW took on board what he said and acceded to that request and the agreed outcome for that recommendation was: “We have considered this requirement of the ASC report and it is John’s wish not to have information repeated back to him whilst undertaking training to work as a porter. This risk assessment is for working as a porter only and we feel this is appropriate.”

[161]The RA document was 7 pages long and it covered the issue of background noise. It said: “If the noise within the department is distracting to John he will refer to the senior in the dispensary/ stores and request that they deal with the situation. The alarm to the pharmacy robot may be a potential trigger for John to lose his concentration. John has a responsibility to raise this concern with the senior in the dispensary and request that they deal with the situation.”

[162]The RA provided: “John must not provide any clinical information to other staff members and any patients.”

[163]The RA provided nominated individuals GD/KH to assist the claimant and act as a first port of call for him for any issues arising whilst he was undertaking the portering role. It was also agreed that the claimant would have regular meetings with his line manager (this had been recommended by OH) to discuss any issues. Provision was made for one hour per day to be ring fenced for the claimant to undertake clinical refresher reading and provide him with quiet time away from interaction with colleagues. The ASC had report had said he might experience overwhelm. JW required in the RA that: “John is to complete one delivery at a time and has been informed that on come occasions he may need to undertake multiple runs to the same ward.”

[164]The RA quoted from the ASC report saying for new tasks demonstrations and observed practice are better than verbal descriptors. The RA recorded that the claimant did not think this necessary or appropriate. The RA nonetheless required that the claimant be supported on delivery runs by a pharmacy assistant until his competency pack is complete and it said: “John may find that he has suggestions on how to improve the current process, he has been informed that although new suggestions are welcomed there are to be no changes to the process in the absence of KH and IJ……he is to adhere to the process….at all times.”

[165]The RA recorded: “John is particularly bothered by the robot alarm as it may cause him to lose his concentration. John to escalate this issue in a timely manner………John has been informed of planned maintenance work on the robot scheduled between 26 July and 30 July which may cause increase in noise and disruption to daily routine.”

[166]During the meeting the claimant asked if he could be permitted to take two months unpaid leave for the duration of the GPhC suspension. It was his preference to return home to Northern Ireland and spend time with family. JW explained that this would need to be discussed and approved with HR and with DM. The claimant consented to the RA being shared with colleague KH.167. On 22 July 2021 JW recorded in an email to the claimant the content of the 19 July 2021 meetings and attached the RA.

168. The claimant felt he had not grounds on which to counter much of what was

[171]JW wrote to the claimant after the meeting on 19 July 2021 setting out the stage 2 warning and stating: “As previously communicated to you, I advised you that the prolonged period of sickness absence from April 2019 to April 2020 would have triggered a stage I in line with the Attendance Management Policy, however following receipt of advice from OH that the reason for your sickness absence would be classed as a disability in line with the Equality Act, an adjustment to the policy was made and you did not progress to stage one at this time. We discussed that you were issued with a first notification of concern on 24 November 2020 which was to remain on your file for 12 months. I advised that as you had reached the trigger of two episodes in three months or 10 working days in a rolling 12 month period I was therefore issuing you with the final notification of concern at stage 2 of the Attendance Management Policy, which will remain live for 12 months.” Disciplinary Investigation terms of reference 172. On 19 July 2021 Diane Matthew commissioned an investigation into the allegation that the claimant attended the car park and displayed extremely aggressive behaviour towards a member of staff including shouting and swearing. Deputy Chief Pharmacist Victoria Young was the investigating manager. KHg and KM were HR advisors to the investigation. The allegations were:• it is alleged that JB attended the car park and displayed extremely aggressive behaviour towards the member of staff, which included shouting and swearing

• as a consequence of this it is alleged that JB has breached the following disciplinary rules gross misconduct

• rule 5: violence or exceptionally offensive behaviour

• rule 18: serious professional misconduct

• rule 24: serious or repeated breach of Trust values and behaviours

• rule 28: serious examples of disrespectful or negative attitudes to patients visitors or staff misconduct

• rule 6: dangerous horseplay or unacceptable behaviour whilst on duty

• rule 11: reach of Trust values and behaviours

• personal or professional misconduct of a nature sufficiently serious to affected employees position at work

[173]The Terms of Reference were: “To fully investigate the allegations listed above in order to determine the facts in the circumstances. The investigation is to be conducted in a fair, impartial and timely way. The investigation should consider all facts surrounding the above allegation including any mitigating circumstances or factors. The investigating officer should include all key findings and details in the investigation report for consideration by the Commissioning Manager. During the course of the investigation, the investigating officer will arrange to meet with the relevant individuals and witnesses. A number of statements have already been obtained. Further statements have been requested. Any additional information received from the Occupational Health and Well-being Department will be reviewed and appropriate action taken.” The GPhC suspension pay band reduction174. During his GPhC suspension the claimant was told by DM that he would be downgraded from a Band 7 to a Band 5 with consequent pay reduction. The rationale for this was that he could not perform the duties of a pharmacist during that period. The claimant had not been performing the duties of a pharmacist since April 2019 but had been at Band 7 pay rate throughout.

175. The claimant was interviewed by VY on 29 July 2021 in the presence of his workplace colleague TK and gave his full version of the incident. At the outset of the meeting he was told: “It is a purely fact-finding investigation and until it is complete we cannot determine whether it will warrant a disciplinary hearing.”

176. Notes were taken and he was able to amend the notes so that the version that went forward to disciplinary showed his tracked changes. He did not say that NB had been shouting or swearing at him. He said: “When I get anxious my short term memory goes.” He accepted that he swore on one occasion saying the fucking yellow lines are not there as a suggestion they show you where to park and he said that NB may have sworn at him too. He said NB was aggressive and that he had been animated and was trying to stay calm because NB was suggesting it was all his fault. He said she was of the opinion she had not done anything wrong and he wanted her to understand. He said: “She was giving me the hand. She is a Karen, if you have heard that expression, do and say what she wants.” He said that he could have parked elsewhere but would have been late and then someone in pharmacy would have pulled him up. He said: “I feel like I am being watched all the time.”

[181]The claimant again saw Dr Hadland. He told Dr Hadland about his GPhC

[186]It is not clear when DM received the investigation report. The claimant was informed on 3 September 2021 that DM had decided to progress the matter to a full disciplinary hearing.187. The claimant contacted JH, the freedom to speak up Guardian, on 10 September 2021. He had been corresponding with her since the car park incident. On 10 September 2021 he told her that he hadn’t yet received a copy of the investigators report but had been told he will be given a date for the disciplinary meeting. He said he needed help, that he didn’t feel able to trust his line manager or her line manager as everything he said seemed to get back to DM. He said he felt this was ongoing bullying harassment intimidation and discrimination from DM. In July 2021 he had told JH about his concerns with DM; about having been locked in an office by her for privacy during conversation and about her attending his home address on 4 March 2020 at approximately 11 PM to hand deliver a letter. He had said in July 2021 to JH that he saw this parking incident as her latest attempt to get rid of him, that she had wanted to get rid of him since his conviction. He had told JH on 21 July 2021 that he had been diagnosed with Autism Spectrum Condition in April 2020 and felt that his diagnosis is constantly being used as a weapon against him to prevent him from doing his job properly. He said he was at his wits end. Disciplinary hearing

188. In late September 2021 HR were attempting to assign someone to chair the claimant’s disciplinary hearing. HR asked JH if she could chair the hearing but she declined. She had supported the claimant as a FTSU guardian. HR then asked FW who agreed to chair the hearing on 1 November 2021.

189. During the last week of September the claimant met with JP and MM to forward plan for the duties he could undertake when his GPhC suspension ended on 5 October 2021. They asked him to confirm in writing that there would be no further conditions or restrictions imposed upon him by GPhC. On 1 October 2021 the claimant wrote to JP to confirm that there would be no conditions on his practice as a pharmacist imposed by GPhC following completion of the period of suspension. Apart from the period of suspension and despite him not being allowed to perform pharmacist dispensing role since 2019, there never had been.

190. His period of suspension ended on 5 October 2021 Invitation to disciplinary hearing

191. On 7 October 2021 the respondent wrote to the claimant to tell him that he was required to attend a disciplinary hearing on Monday, 1 November 2021. He was given the location and purpose of the hearing and told who would be in attendance. VY said that she would present the management statement of case and call any witnesses. She explained that if the claimant wished to call any witnesses it was his responsibility to make arrangements with those individuals and offered to help do so. She informed him of his right to be accompanied by a representative of his Trade Union, professional association or workplace colleague.

192. The letter set out the disciplinary allegations and their potential classification as gross misconduct and or misconduct. She enclosed the management statement of case including copies of the witness statements and asked that the

[232]Section 94 Employment Rights Act 1996 (ERA) provides that an employee has the right not to be unfairly dismissed by his employer.

[233]Section 98 provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal; and

(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;

[234]The burden of proof lies on the employer to show what the reason or principal reason was, and that it was a potentially fair reason under section 98(2). According to Cairns LJ in Abernethy v Mott, Hay & Anderson

[1974] ICR 323

: “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.” This requires the Tribunal to consider the mental processes of the person who made the decision to dismiss. In Linfood Cash and Carry v Thomson “The Tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question -could this employer, acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence is that given during the disciplinary procedures and not that which is given before the Tribunal”.

[235]Jhuti in the Court of Appeal cited Arnold J in the EAT in Burchell v British Home Stores

[1978] IRLR 379

which set out the standards for determining whether dismissal for (mis)conduct is fair: “First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds on which to sustain that belief. And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds...had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

[236]Where the employee has admitted his misconduct the employer will be acting reasonably in believing that the misconduct has been committed so the requirement for investigation will be reduced Royal Society for the Protection of Birds v Croucher

[1984] IRLR 425

[237]Where the employer does show a potentially fair reason for dismissing the claimant the question of fairness is determined by section 98(4). “(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –a. depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

b. shall be determined in accordance with equity and the substantial merits of the case.”

[238]In Iceland Frozen Foods Limited v Jones

[1982] IRLR 439

, Browne-Wilkinson J formulated the correct test in the following terms

[239]If the three parts of the Burchell test are met, the Employment Tribunal must then go on to decide whether the decision to dismiss the employee (instead of imposing a lesser sanction) was within the band of reasonable responses, or whether that band fell short of encompassing termination of employment. In a case where an employer purports to dismiss for a first offence because it is gross misconduct, the Tribunal must decide whether the employer had reasonable grounds for treating the misconduct as gross misconduct: see paragraphs 29 and 30 of Burdett v Aviva Employment Services Ltd

UKEAT/0439/13

[240]Generally gross misconduct will require either deliberate wrongdoing or gross negligence. Even then the Tribunal must consider whether the employer acted reasonably in going on to decide that dismissal was the appropriate punishment. An assumption that gross misconduct must always mean dismissal is not appropriate as there may be mitigating factors: Britobabapulle v Ealing Hospital NHS Trust

[2013] IRLR 854

(paragraph 38). The Tribunal must determine whether dismissal was a response that no reasonable employer could have adopted in the circumstances.

[241]The Court of Appeal in Salford Royal Northern Foundation Trust v Roldan

2010 IRLR 721

determined that more will be expected of a reasonable employer where the allegation is one of misconduct and the consequences to the employee if they are proven, are particularly serious. Elias LJ, at paragraph 13, quoting his own judgment from A v B

[2003] IRLR 405

said “the relevant circumstances {in Section 98(4)} include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite. In A v B the EAT said this: “a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him”

[242]In London Ambulance Service NHS Trust v Small

2009 EWCA Civ 220

Mummery LJ reminded tribunals that it is all too easy to slip into a substitution mindset. A tribunal must avoid conducting its own fact-finding forensic analysis. The real question is whether the employer acts fairly and reasonably in all the circumstances at the time of the dismissal.

[243]When applying Section 98(4) the Tribunal must take into account the size and administrative resources of the respondent, any relevant Code of Practice and the Human Rights Act 1998. The ACAS Code on Disciplinary and Grievance Procedures provides at paragraph 4:• Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.

• Employers and employees should act consistently.

• Employers should carry out any necessary investigations, to establish the facts of the case.

• Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.

• Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.

• Employers should allow an employee to appeal against any formal decision made.'

[244]The band of reasonable responses test applies to all aspects of the dismissal process including the procedure adopted and whether the investigation was fair and appropriate: Sainsburys Supermarkets Ltd v Hitt

[2003] IRLR 23

. The focus must be on the fairness of the investigation, dismissal and appeal, and not on whether the employee has suffered an injustice.

[245]The ACAS Code at paragraphs 5 -7 addresses the elements of an investigation ''5. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. 6. In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing. 7. If there is an investigatory meeting this should not by itself result in any disciplinary action. Although there is no statutory right for an employee to be accompanied at a formal investigatory meeting, such a right may be allowed under an employer's own procedure.”

[246]The Tribunal should consider procedural fairness together with the reason for dismissal Taylor v OCS Group Ltd

[2006] EWCA Civ 702

. The tribunal must decide whether in all the circumstances of the case the employer acted reasonably in treating the reason they have found for the dismissal as a sufficient reason to dismiss.

[247]Polkey v AE Dayton Services Limited

[1987] IRLR 50

HL established that where a claimant is successful a reduction may be made to an award on the basis that if the employer had acted fairly the claimant would have been dismissed in any event at or around the same time. This may take the form of a percentage reduction, or it may take the form of a tribunal making a finding that the individual would have been dismissed fairly after a further period of employment (for example a period in which a fair procedure would have been completed). The question for the tribunal is whether the particular employer (as opposed to a hypothetical reasonable employer) would have dismissed the claimant in any event had the unfairness not occurred.

[248]The Employment Rights Act 1996 at section 122 and section 123 provides for a reduction in compensation because of contributory fault by the claimant. Wrongful dismissal

[249]The right to summarily dismiss an employee arises when the employee commits a repudiatory breach of contract. An employer can then waive the breach or treat the contract as discharged.

[250]In Mbubaegbu v Homerton University Hospital NHS Foundation Trust

UKEAT/0218/17

(18 May 2018, unreported) cited in Harvey, Choudhury J quoted a passage from Neary v Dean of Westminster

[1999] IRLR 288

which relied on a breach of the term of mutual trust and confidence. In that case the conduct in question “must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment. More recently, the test was set out by Collins Rice J in Palmeri v Chares Stanley & Co Ltd

[2021] IRLR 563

“The test I am required to apply for that is variously formulated in the authorities. It includes considering whether, objectively and from the perspective of a reasonable person in the position of Charles Stanley, Mr Palmeri had “clearly shown an intention to abandon and altogether refuse to perform the contract” by repudiating the relationship of trust and confidence towards Charles Stanley (Eminence Property Developments v Heaney [2011] 2 All ER (Comm) 223). In a case like this “the focus is on the damage to the relationship between the parties” (Adesokan v Sainsbury's Supermarkets Limited

[2017] ICR 590

per Elias LJ paragraph 23). There is relevant analogy with the formulations in the employment cases: “the question must be — if summary dismissal is claimed to be justifiable— whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.” (Laws v London Chronicle

[1959] 1 WLR 698

, pages 700-701) It must be of a “grave and weighty character” and “seriously inconsistent – incompatible – with his duty as the manager in the business in which he was engaged” (Neary v Dean of Westminster

[1999] IRLR 288

, paragraph 20), or “of such a grave and weighty character as to amount to a breach of the confidential relationship between employer and employee, such as would render the employee unfit for continuance in the employer's employment” (Ardron v Sussex Partnership NHS Foundation Trust

[2019] IRLR 233

at paragraph 78).''

[251]A repudiatory breach might be said to be conduct the effect of which is to render the continued relationship unsustainable. Conduct that is wilfull, a deliberate flouting of essential contractual conditions will cross a repudiatory line. The Tribunal therefore has a fact finding function in wrongful dismissal, to establish what the employee has actually done and not just, as in unfair dismissal, what the

[252]The Equality Act 2010 provides that a complaint of discrimination must be brought within(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period and failure to do something is to be treated as occurring when the person in question decided on it. In the absence of evidence to the contrary, a person is to be taken to decide on failure to do something when he does an act inconsistent with doing it, or if he does no inconsistent act, on the expiry of the period in which he might reasonably have been expected to do it.

[253]A continuing course of conduct might amount to an act extending over a period, in which case time runs from the last act in question. Hendricks v Commissioner of Police of the Metropolis

[2003] IRLR 96

considered the circumstances in which there will be an act extending over a period. “The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of "an act extending over a period." I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be side-tracked by focusing on whether a "policy" could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.” Early Conciliation Provisions

[254]Section 18A of the Employment Tribunals Act 1996 contains a requirement that before a person (the prospective claimant) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information in the prescribed manner about that matter.

[255]The prescribed period means prescribed in Employment Tribunal procedure regulations. In relation to claims for disability discrimination the prescribed period is three months. 256. The case law on the application of the “just and equitable” extension provides that it is the task of the tribunal to take account of all relevant factors, and leave out of account any which are not relevant: Abertawe Bro Morgannwyg University Local Health Board v Morgan

[2018] EWCA Civ 640

. Leggatt LJ said this at paragraphs 18-19: “18. First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen

[257]In Robertson –v- Bexley Community Centre (T/A Leisure Link) 2003 [IRLR 434] the Court of Appeal considered the extent of the discretion to extend time on a just and equitable basis under the discrimination legislation. The Employment Tribunal has a “wide ambit”. At paragraph 25 of the judgment Auld LJ said:- “It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse. A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.” Discrimination arising from disability

[258]Section 15 Equality Act 2010 provides: “(1) a person(a) (A) discriminates against a disabled person

(b) (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if (A) shows that (A) did not know, and could not reasonably have been expected to know, that (B) had the disability”.

[259]A Section 15 claim will not succeed if the respondent shows that it did not know, and could not reasonably have been expected to know, that the claimant had the disability.

[260]In McQueen v General Optical Council

[2023] EAT 36

the Employment Appeal Tribunal upheld the first instance decision that the claimant’s disabilities

[261]Scott v Kenton Schools Academy Trust

[2019] UKEAT 0031

considered the test, under Section 15, of something arising in consequence of the disability. HHJ Auerbach said at paragraph 41 of the judgment: “The test has been examined in prior authorities now on a number of occasions, as well as other aspects of Section 15. The most useful guidance to be found in one place, I think, is that in the decision of the President of the EAT, as she then was, Simler J, in Pnaiser v NHS England & Another

[2016] IRLR 170

where she drew the threads together of the previous authorities, as follows: 31. ………the proper approach to determining section 15 claims …. can be summarised as follows: (a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

[262]The Court of Appeal in Robinson v Department for Work and Pensions

[2020] EWCA Civ 859

considered causation in a section 15 complaint. Bean LJ at paragraphs 55 and 56 of the judgment rejected a “but for” test in establishing whether the treatment (unfavourable treatment for a section 15 complaint and less favourable treatment for a section 13 complaint) was because of the claimant’s disability or something arising in consequence of it. Bean LJ affirmed Underhill LJ in Dunn v Secretary of State for Justice

[2018] EWCA Civ 1998

who stated that a prima facie case under section 15 is not established solely by the claimant showing that she would not be in the situation…if she were not disabled. The Tribunal must look at the thought processes of the decision maker concerned to ascertain “the reason why they treated the claimant as they did. Was it wholly partly because of something that arose in consequence of the claimant’s disability?”.

[263]Section 26 Equality Act 2020 provides: (1) A person (A) harasses another (B) if: (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of: (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …………… (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account — (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 264. In a harassment complaint the unwanted conduct must be related to the protected characteristic. The EHRC Code at paragraph 7.9 states that ‘related to’ should be given a broad meaning ‘a connection with the protected characteristic’. Context will be relevant and mere reference to a protected characteristic may not be sufficient to establish that the conduct was “related to” the characteristic. It must be shown that the characteristic was the ground or reason for the treatment to which objection is taken. In the EAT case of Warby v Wunda Group PLC

UKEAT/0434/11

Langstaff J stated: “We accept that the cases require a Tribunal to have regard to context. Words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken. Generally a Tribunal might conclude that in consequence the words themselves are that upon which there must be focus and that they are discriminatory, but a Tribunal, in our view, is not obliged to do so. The words are to be seen in context; the context here was that the dispute and discussion was about lying. The conduct complained of, as the Tribunal saw it, was a complaint emphatically made about lying; it was not made to the Claimant because of her sex, it was not made to the Claimant because she was pregnant, and it was not made to the Claimant because she had had a miscarriage. In the words of Ahmed at paragraph 37, as earlier quoted: "The fact that a Claimant's sex or race is a part of the circumstances in which the treatment complained of occurred, or of a sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment."

[265]The conduct complained of must be unwanted. It will normally suffice that the claimant genuinely did not welcome the conduct. The conduct must have the required purpose or effect. Conduct with purpose requires an examination of the alleged harasser's intentions. It may be necessary for the tribunal to draw inferences from the surrounding circumstances. Effect must be assessed from the victim's point of view subject to the important qualification that the conduct must reasonably be considered to have violated the victim's dignity or to have created

[266]Section 20 and section 21 Equality Act 2010 provide for the duty to make reasonable adjustment for disabled people. (1) The duty comprises the following three requirements. 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. The second requirement is a requirement, where a physical feature 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. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid. ……………….. In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to — (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it. Applying the Law to the Facts Unfair dismissal If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? Reason The respondent genuinely believed the claimant had committed misconduct 267. The Tribunal heard oral evidence from the dismissing officer HS. Applying Burchell it accepts that she genuinely believed that the claimant had sworn at NB, raised his voice and walked away before returning to move his car. HS had reasonable grounds for that belief as the claimant admitted having sworn, raised