Mr C G Judge v Tameside Metropolitan Borough Council: 2404627/2023
EMPLOYMENT TRIBUNALS
Case No 2404627/2023
Between
Mr CG JudgeClaimantTameside Metropolitan Borough CouncilRespondentDate 18 March 2025
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment.
Background
[1]This claim arises out of the Claimant’s employment with the Respondent in the role of Development Surveyor. He was employed from 1 November 2021 until he was dismissed during his probationary period, on and with effect from 31 January 2023. His complaints before us are of harassment related to disability, discrimination arising from disability, failure to make reasonable adjustments, victimisation and outstanding holiday pay and deductions from wages. The Respondent resists all of the claims.[3]The Tribunal has previously judged that the Claimant is disabled within the meaning of section 6 Equality Act 2010 in relation to the following conditions/ impairments: a compromised immune system (as accepted by the Respondent), anxiety and depression (as accepted by the Respondent) and physical weakness as a result of recurring hernias (as determined at a preliminary hearing) [p. 621]. The Tribunal also struck out a claim for ordinary unfair dismissal contrary to s.94 of Employment Rights Act 1996, on the basis that the Claimant had less than two years continuous employment [p.60].[4]The hearing took place at Manchester Employment Tribunal between the 17 and 19 February 2025. The Tribunal deliberated on Thursday 20 February 2025.[5]The Claimant was represented before by Ms Millin. The Respondent was represented by Ms Carr.
The Issues
[6]The issues for us to determine were set out in the case management order of EJ Ainscough of the 4 August 2023 [pp.43- 59] save that some additional details had subsequently been added to include: the date of a meeting, particulars of the Respondent’s defence to the section 15 claim and issues relating to time limits. We understand these were the subject of discussion between Ms Carr and the Claimant previously. In any case, Ms Millin was provided with the updated list on the first day of the proceedings and no outstanding matters were raised.[7]In the course of closing submissions Ms Millin requested on behalf of the Claimant that the List of Issues (LOI) be amended in relation to the identified PCPs at paragraphs 3.2.1 to 3.2.3 by way of the substitutions shown in the tracked changes version at Annex A. It will be seen that this converts each alleged PCP from one affecting employees of the Respondent in general, to PCPs affecting the Claimant alone. Ms Carr did not oppose this. 1 Unless otherwise appears references to page numbers in these Reasons are to the correspondingly numbered page of the hearing bundle.[8]The Tribunal recognised that a List of Issues does not have the status of a pleading. Nevertheless, Ms Millin’s application was received and treated as an application to amend the Claimant’s claim. That follows since, in the Tribunal’s view, the List of Issues as attached to EJ Ainscough’s order represents an agreed distillation of the Claimant’s case which did not, in terms, identify any PCPs [pp.14-17]. We describe the LOI as “agreed” because, other than by way of the refinements to which we have referred above, we are not aware that the Claimant has ever given notice under paragraph 18 of the order [p.45] that the LOI was inaccurate.[9]The Tribunal did query with Ms Millin that on its face, the nature of the proposed changes would have the effect of narrowing the scope of the PCPs. As a matter of law therefore, we were likely to need addressing on how the reformulated PCPs met the requirements established by case law. We agreed to the application since(a) it was the Claimant’s express wish, Ms Millin submitting that the PCPs only applied to the Claimant(b) the Respondent did not oppose it and had addressed us already on the original, fuller basis which necessarily encompassed the narrower formulation of the PCPs and(c) there was correspondingly no adverse impact on the Tribunal’s ability to deal with the case. Following Vaughan v Modality Partnership [2021] ICR 535 the balancing exercise of relative injustice and hardship of allowing the amendment came down in favour of granting it. Evidence heard and received[10]We determined on the first day of the hearing that we should deal with liability and remedy separately since the time estimate was reasonably short for the volume of witnesses.[11]Each witness had prepared a written statement which was received as their evidence and upon which they were cross-examined.[12]The Claimant gave evidence. He also relied on the evidence of Mr. Dewsnap, a former colleague of some years.[13]The Respondent called six witnesses whose names and respective positions and roles relative to the case are as follows: Emma Varnam Assistant Director, Operations & Neighbourhoods Chaired the Probation Review Meeting and dismissed the Claimant. Bernadette Wilde Former Head of HR Operations and Workforce Strategy. Attended serious concerns meeting of 21 July 2022 Undertook second serious concerns meeting of 3 August 2022 Alison Glover Health and Safety Manager Appointed to manage the Claimant’s grievance of 30 September 2022 Tracey Brennand Assistant Director, People and Workforce Advised the panel considering the Claimant’s appeal from his dismissal. Louise Ashton Human Resources Manager Advised the Assistant Director (Investment, Development and Housing) in relation to the Claimant’s appeal from the grievance outcome of Alison Glover Samantha Holgate Senior HR Consultant who met with the Claimant on 24 November 2021[14]The Respondent did not call evidence from Ms Johnson who was Head of Asset Strategy and the Claimant’s line manager. We understand that she resigned with notice from the Respondent’s employment around the end of 2022.[15]We received an agreed bundle of documents of 894 pages, a key documents list, a chronology and a cast list. Reasonable Adjustments[16]We enquired of the Claimant what adjustments might be necessary to facilitate him giving best evidence. By way of an agreed adjustment for his disability of anxiety, we allowed the Claimant a break of 10 minutes at 30- minute intervals during cross-examination.
Findings of fact
[17]Having considered all the evidence, we find the facts set out between paragraphs 26 and 119 on a balance of probabilities, and such additional facts as are contained in the Analysis and Conclusions section below. The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because we have limited them to points that are relevant to our determination of the issues. Approach to fact-finding in the absence of witness evidence from Ms Johnson[18]We wish to say something about our approach to the evidence which informed our fact-finding process. As we have mentioned, a witness statement from Ms Johnson was not exchanged and the Respondent did not apply for a summons to compel her to give evidence. It made the task for the Tribunal of determining the facts more difficult, and we know it disappointed the Claimant. However, the Tribunal is not bound by the strict rules of evidence applied in civil courts or criminal courts. We make findings of fact, applying the standard and burden of proof having regard to all of the evidence placed in front of us – including hearsay - and applying such weight as we consider appropriate. We are all experienced in undertaking that task.[19]The Claimant submits we should infer Ms Johnson has not been called because she would acknowledge (or be at risk of acknowledging) discriminatory behaviours.[20]In the circumstances of this case, and in the light of the findings we shall come to, we have not drawn such an inference. The following points are for the present important to note.[21]The principal, relevant disputes of fact to which Ms Johnson is central are limited, chiefly:(a) the comments made by her at the first serious concerns meeting, and(b) to a lesser degree of importance for reasons we will explain, the question of whether Ms Johnson received solicited or unsolicited complaints about the Claimant’s conduct which went on to form the basis of her submission that the Claimant should be dismissed.[22]Ms Johnson’s position on both matters has, in meeting and interview notes, and importantly, in her own management submission, been consistently documented about both points. That documentation is all before us. It is not at all obvious, therefore, that Ms Johnson’s absence from the hearing somehow tells on the Respondent’s case in an important way.[23]We also have detailed notes of two key meetings Ms Johnson attended and contributed to. These are the first serious concerns meeting of 21 July 2022 and the probation review hearing of 31 January 2023. We have also heard from other witnesses from the Respondent who were present at those meetings along with the Claimant (Ms Wilde and Ms Varnam). Except in one limited respect (being the comments made in the first serious concerns meeting of 21 July 2022) we do not understand the Claimant to take issue with the accuracy of those notes, as opposed to the assertions made by the speakers. We have approached those notes from that starting point but clearly making our own independent evaluation of internal and external consistency of what was said, contrasting the notes with all with the other available evidence and drawing our own conclusions of reliability overall.[24]We also have detailed notes of two interviews conducted with Ms Johnson for the purposes of the Claimant’s grievances and we have heard from the interviewer (Ms Glover). We will explain below that we have found Ms Glover to be a reliable and honest witness. We are satisfied that the notes of the interview with Ms Johnson faithfully record Ms Johnson’s responses, although again we have brought our own independent assessment to bear on what was said.[25]Throughout, of course, we have kept in mind that in relation to disputed matters, the Claimant is the one that has appeared and been prepared to have his evidence fully tested by cross-examination. Ms Johnson has not been presented for challenge in that way. Pre-appointment discussions[26]Following on from the Tribunal’s judgment at the preliminary hearing, we find that the Claimant was disabled under the Equality Act at the time of first seeking employment with the Respondent in June 2021. He remained disabled at all times throughout his subsequent employment.[27]In June 2021 the Respondent advertised for the Claimant’s post. The role was as a member of the Strategic Asset Management Team and the wider Strategic Property Team. It was described as flexibly worked from home but requiring necessary attendance at site locations across the borough. The grade of the job was Grade K. There was a detailed job description which, of significance, required that the Claimant work, manage and prioritise a substantial caseload using initiative with minimum supervision to meet high performance management and other target objectives [p.579].[28]The Claimant applied.The application form asked whether the Claimant considered himself disabled. He responded “no” [p.577].[29]The Claimant has over 30 years' experience in the field of corporate property strategy and estates management. He is enthusiastic about his specialism and wants his work to make a difference for clients and end-users. At this time, he was in post working for Bury County Council as Corporate Asset Manager. In that role he was property lead for devising and managing property strategies to support corporate accommodation needs. The Claimant was responsible for his own caseload and also a team manager for three direct reports in the asset team. He line-managed Mr Dewsnap for a time in that role.[30]At this time the Claimant was absent on sick leave, a fact we find he shared at the interview for the role on 2 August 2021 which was conducted by Ms Johnson and Mr. Fairbrother. The Claimant’s role at Bury Council was also subject to a departmental restructure in consequence of which he had received a settlement offer to leave. We find the Claimant did not share any information of substance about his health conditions at the interview.[31]Although the Respondent made an unconditional written offer of employment to the Claimant on 10 September 2021, the Claimant was keen to have a medical or occupational health assessment by the Respondent before his employment started. He had previous experience of Occupational Health from working at Bury, going back, at least to February 2019 and continuing since. The Claimant pursued this possibility with James Keyzer, HR Recruitment Officer. Mr Keyzer duly took that up but learned that a preplacement medical was not required for the role [p.860]. The Claimant was referred to Ms Johnson.[32]We are satisfied that Ms Johnson was aware of the Claimant’s request but was advised by HR that, at this stage, this was not standard process [p.131]. We found convincing, contemporaneous evidence of an embedded policy whereby the Respondent would undertake pre-employment health checks for effectively two sets of employees:(a) those taking up safety critical roles where the purpose was to obtain a baseline for ongoing surveillance and(b) teachers and social workers where it is required to determine fitness to practice for professional standards purposes [p.168][33]The Claimant agreed a leaving day of the 22 September 2021 with Bury Council, his own personal understanding being that unless there was a break between the termination of his employment with Bury and the commencement of his employment with the Respondent of in excess of 14 days, that he would be entitled to be treated as having continuous service for the purposes of leave, sickness and employment right entitlements. His hope was to start with the Respondent such that he could preserve that continuity.[34]A telephone call took place on or around the 23 September 2021 between the Claimant and Ms Johnson in which the Claimant outlined the health issues then affecting him, as well as planned future operations that would likely result in an absence from work. He also made a request for “reduced working hours” [p.154]. The Work and Wellbeing Passport[35]Following this conversation Ms Johnson provided the Claimant with a copy of the Respondent’s Work and Wellbeing Passport Guidance in order for him to consider what supportive measure she might put in place. His observations were sought.[36]The Guidance document says that the Work and Wellbeing Passport is a “live record of reasonable adjustments that have been agreed or discussed between an employee and their manager”. It highlights it is for use by any employee who feels they need additional support at work. Examples are given of those who might feel they need extra support at work. These include: “individuals with a disability or a long-term condition”.[37]The Claimant replied with the completed passport, saying in his covering email that he believed his circumstances and ability to serve in the team would be improved if he could work reduced hours. He expressed a preference for not working on Mondays with the twin purposes of supporting his parents who lived some distance away and his own well-being [p.153].[38]Within the passport the Claimant completed the sections of the form marked “health condition or disability”, “personal circumstances” and “Impact”. The instruction above that latter heading asked the person completing to “describe the impact your health condition, disability and/or personal circumstances have upon you at work”.[39]In outline, the Claimant detailed within the health condition or disability section, significant surgeries and complications in 2017 leaving him with “long term effects that include a reduced immune system...” [our emphasis]. Describing his surgery and recovery he said this: “This has left me with a reduced immune system; I have less stamina and am more easily fatigued. I also suffer with...anxiety for which I am receiving treatment”.[40]In the Impact section, he identified the main impact of his “condition” (he did not specify which) was that he did not have the same stamina and resilience that he previously had. He said: “I have grown accustomed to this and manage it through good care of my health and wellbeing. I ensure that I take gentle exercise, careful diet, have good sleep and adequate downtime. I believe that I am up to the post of Development Surveyor and that I will be able to use my skills, experience and good work ethic to do a good job and justify the offer of a post. I do however believe that working to reduced hours, 4 days a week in a standard week, would support my own health and wellbeing situation...”[41]Ms Johnson declined the request for part-time working following consultation with Paul Smith, Assistant Director for Property and Strategy. On balance, we are satisfied that although Ms Johnson may, when explaining the decision to the Claimant, have focused more on concerns around future budgets, a very significant concern for her was the workload facing the new team who had an ambitious rationalisation goal. This was mentioned to the Claimant. We noted the Claimant’s email of some weeks later in which he references pre-appointment discussions with Ms Johnson in which “concerns about possible impacts on the establishment budget and also workloads” were discussed [p.170].[42]Ms Johnson and the Claimant went on to discuss the flexible working system and that it was possible to purchase annual leave. The annual leave purchase scheme provided for the purchase of up to an additional 20 days leave per year with approval being at the discretion of the manger, taking into account the relevant circumstances and needs of the service [p.288]. No amount of days or timescale for implementation of purchase was promised but we are satisfied the Claimant was encouraged by Ms Johnson’s attitude towards him which was positive and encouraging. The Claimant, we find, was happy with this option, concluding that along with flexi-time, it would allow him to manage his health needs and the role sufficiently. He accepted the job on 1 November 2021 on that basis. The Claimant’s contract of employment[43]The Claimant’s contract includes a summary of contract particulars which references a series of key, specific clauses set out in the full a contract of employment. It was accepted by the Claimant that he had received both documents. The summary is expressly incorporated within the contract of employment [p.566][44]The summary provides that 1 November 2021 is the date of commencement of current post as well as “Date of Local Government service”. Clause P2.4 provides as follow: Employment with any previous employer does not count as part of your continuous period of employment with the Council, except that: Under the National Agreement on Pay and Conditions of Service, periods of previous service with other Local Authorities and an organisation covered by the Redundancy Payments (Local Government )(Modification) Order 1999 (as amended) are allowed to count as continuous service for specified purposes i.e. annual leave, occupational sickness scheme and occupational maternity scheme[45]We have been provided with the National Agreement on Pay and Conditions, April 2022 version. This is the material version for the purposes of the Claimant’s claim. So far as material, it provides: “for the purposes of entitlements regarding Annual Leave, the Occupational Sickness Scheme and the Occupational Maternity Scheme continuous service will include continuous previous service with any public authority to which the Redundancy Payments (Continuity of Employment in Local Government etc) Modification Order 1999 applies”.[46]The term “continuous previous service” is not defined within the National Agreement.[47]The Claimant’s contract also provides for a probationary period of 12 months from 1 November 2021. The contract states that “during the probationary period you will be expected to demonstrate your suitability for the role”. Also that, “the probation process will apply when addressing issues of capability should they arise” [p.556]. Agreement to purchase additional annual leave[48]In his second week of work the Claimant applied directly to purchase 16 days of additional annual leave. Ms Johnson was at that stage reluctant as she felt the Claimant should first give a greater opportunity to see first how he found the role. The Claimant was firm though. Ms Johnson brought in Samantha Holgate, a senior HR consultant, to meet with Ms Johnson and the Claimant to discuss matters further. This was undertaken in the course of the Claimant’s first probation review.[49]The meeting took place on 24 November 2021 by Teams and Ms Holgate was provided in advance with the Work and Well-being Passport. Ms Holgate gave evidence about the conversation including that the Claimant wanted to take Mondays off for his caring responsibilities for his parents who live in Norfolk and not in relation to his health. The Claimant’s evidence was that he explained in detail that additional leave was needed due to his health history, need for recovery time and wellbeing needs.[50]We have had close regard to Ms Holgate’s note [p.829] on which, we find she has, quite understandably, relied in recalling the conversation. The manner in which the note is set out, we accept, reflects a connection between parental visiting and the choice of non-working day. However, we find the Claimant was clear he wanted the additional time for his own heath and wellbeing too. Matters that support that include the very fact the Claimant provided so much detail about his medical history and current health circumstances to Ms Holgate; the reference in the note under the long paragraph which includes those health-related matters records the Claimant saying that he has “plenty to give in less number of hours”. There would also be a symmetry here with the Claimant’s Work and Wellbeing passport which he had no reason to backtrack from.[51]Having regard to the Claimant’s evidence and the contents of the note, we find the Claimant expressed that:(a) He was suffering from two current conditions of compromised (here “weakened”) immune system and anxiety and depression;(b) He had current reduced resilience to stress;(c) Past surgery had caused him to get current fatigue;(d) He was currently suffering from tiredness requiring to go to bed early at 8pm each night;(e) He was on current ongoing medications to manage his conditions;(f) That he had plenty to give in less number of hours;(g) His health had been a factor in his request for part-time working at 4 days per week;(h) He expected to have repeat surgery for which he would be reviewed in less than 3 months; and(i) He was maintaining alongside the above that he was fit for the role and ready to work again.[52]The Claimant experienced some annoyance that his request to buy leave was a cause for discussion and also that (in his view) he had wrongly been required to discuss his health concerns with two non-health professionals. Nevertheless, following that meeting Ms Johnson confirmed that she would now support the application, and the Claimant made a renewed application on 1 December 2021[p.288] for 13.5 days with a salary reduction of £1772.28. It was approved on 6 December 2021.[53]The Claimant emailed Ms Holgate on 3 December to update her about his application [p.167] and in the same email urged for the recruitment process to be reviewed to ensure health questionnaires and possible occupational health referral. We find the Claimant was straightforwardly providing feedback confined to the pre-appointment stage. Importantly, he did not seek any referral to occupational health himself. The Probation Period[54]Following the Claimant’s appointment he was required to have monthly probationary reviews. The first five took place on 24 November 2021, 26 January 2022, 14 February 2022, 16 March 2022, and 14 April 2022. They show: November 2021 – satisfactory across all 11 areas January 2022 – satisfactory across 7 of 11 areas with timekeeping, attendance, conduct, and attitudes, values and behaviours found to be good. February 2022 – the same as January but with a specific note detailed further below. March 2022 – satisfactory across 5 out of 11 areas with (in addition to the previous “good” areas), work relationships and client/customer focus found to be good. April 2022 – satisfactory across 3 of 11 areas with (compared with March 2022), quality and accuracy of work and self-development now good, and attitude, values and behaviours now found to be “excellent”.[55]At the February meeting the Claimant’s areas of focus had been agreed; these would be captured on a work tracker. We also find that Ms Johnson discussed with the Claimant the importance of managing multiple pieces of work at the same time which she described within the review record as “keeping plates spinning”. Through the form she also instructed the Claimant to be mindful about not becoming too focused on one project (the Hippodrome project) at the expense of other areas of work. She highlighted that other areas of work would be forthcoming over time.[56]Given the Claimant’s considerable experience and level at which he had previously been working at Bury, we find the Claimant’s honest takeaway from these meetings up to April 2022 was that whilst no serious problems had been raised, Ms Johnson was not hugely impressed. He remained consistently satisfactory in the crucial area of competency in the role and achievement of objectives This was after 5 months in post. Meetings[57]From the March 2020 lockdown many of the Respondent’s non-frontline staff had started working from home and this developed into hybrid working whereby when not meeting external customers, staff may work from home or from the office. Jobs are not labelled “hybrid” as such, but the Claimant’s role was treated on this basis, in keeping with the job advert and description. In fact, the Claimant’s personal preference when not on site was to go into the office twice a week in Ashton. This was a short distance of 8 miles from his home.[58]Ms Johnson lived some distance away from the office in a town in South Yorkshire. The meetings between the Claimant and Ms Johnson were conducted online most of the time and not in person. However, the Claimant did not, we find, specifically request face to face meetings with Ms Johnson and later acknowledged during the second serious concerns meeting, that virtual meetings allowed for non-verbal communication, and he was not suggesting Ms Johnson should travel the great distance to meet [p.410]. We understand that the Claimant personally believes that in the context of development strategy getting everyone together as a team is always a good idea. However, we find neither Ms Johnson nor the Respondent via any other route, were aware that virtual meetings presented a problem for the Claimant’s way of working or in reference to his disability of anxiety. What emerged from the Claimant’s cross-examination is that he found the online meetings were prone to interruptions and the way these were managed, he felt, were damaging to him. The Claimant is a clear and regular correspondent, however. We find he did not register any of these concerns.[59]On the amount and nature of the meetings, Ms Johnson’s position (derived from cross-comparison of the various notes) is a consistent one of saying that she had checked her calendar and that by 21 June 2022 there had been in excess of 40 formal meetings between the two which did not include informal catch-ups [p.403]. She acknowledged that on occasions she had needed to cancel a meeting to deal with other urgent matters, but she sought to rearrange those meetings. Notwithstanding the cancellations, the number of meetings with the Claimant, she said, still exceeded the number with other colleagues [p.786].[60]The Claimant says there was “constant cancellation” of meetings but there is also some acknowledgment, we find, that he sought out a relatively high number of meetings. The Claimant blames Ms Johnson for this because he felt she did not empower him and undermined him, as with the Zetland Street project (paragraph 62 of his witness statement refers).[61]We find that a reasonable number of online meetings were cancelled but nevertheless a high proportion of the claimed 40 meetings did go ahead, if not first time, then on a later occasion. Zetland Street[62]The Respondent’s Children’s Services were subject to an Ofsted inspection in December 2021. It was identified that the current Children’s Unit at Boyd’s Walk presented health and safety risks in relation to evacuation of children with disabilities. An interim solution was to increase staffing levels pending a move to alternative premises. This arrangement had the approval of fire and ambulance services. Nevertheless, we are satisfied it was a significant priority for the council from early 2022 with an aim it should be addressed within 6 months. Tony Decrop, Assistant Director of Children’s Social Care had, with Ms Johnson, identified that Wilshaw House was a viable venue and needed a project plan and timescales. Ofsted were due to undertake a further visit in May 2022.[63]In April 2022 [p.447] Ms Johnson highlighted to the Claimant in the course of his probation meeting that he needed to progress and prioritise supporting Children’s transformation journey. This included “Boyds/ Wilshaw”.[64]Between 10 and 30 May 2022 Ms Johnson took three weeks leave. She left the Claimant with responsibility for the property strategy development for Children’s services. Within the high level strategy, the proposed relocation for Boyd’s Walk at the time was Wilshaw House. The Claimant visited Wilshaw House on 19 May 2022. He reached a conclusion that the current proposals were not well enough considered or deliverable as a firm plan in the requisite timeframe.[65]The Claimant and Mr Cooper, a colleague, alighted on the option of using premises at Zetland Street. They both applied a lot of work into this to come up with a proposal for Ms Johnson’s return. Internal and external feedback[66]On 27 May 2022 Ms Johnson returned from leave and very shortly after doing so received a complaint from the Director of Place, Ian Saxon in regard to the Claimant’s performance whilst attending the Senior Leadership Board (SLT) meeting on 17 May 2022 in her absence. Ian Saxon was two grades higher than Ms Johnson. Ms Johnson received reports that the Claimant had talked over senior officers and made inappropriate statements and interrupted people. She spoke to the Claimant who said that it had gone well which disquieted her given the feedback received.[67]The Claimant has at different points, including throughout his grievance, argued that Mr Saxon’s feedback is an uncorroborated, hearsay report and that he believes Ms Johnson actively solicited the complaint. We do not accept that. We find there genuinely was negative feedback. We note the Claimant later acknowledged to Bernedette Wilde that someone - he did not say who - had been putting his virtual hand down in the course of the meeting [p.414]. That chimes convincingly with the detail of the feedback Ms Johnson shared with Alison Gover (“people had wanted to mute him in the meeting” - p.240) We find he also later said that the concerns were “overstated” [p.112], not that he believed there were no grounds for comment.[68]A site visit took place on 1 June 2022 at Zetland Street, following an inspection of Wilshaw House. Those present in reference to the Respondent’s interests were Elaine Todd, Director of Inspired Places and the General Manager of Tameside Local Education Partnership (LEP), a quantity surveyor from Robertsons and service managers from Children’s Services, Denise Buckley and Karen Scase. LEP is considered a third-party organisation.[69]During the visit, the Claimant had a difficult exchange with Ms Todd. The Claimant was frustrated because he felt the route for procuring architectural assistance (which was via the Head of Facilities, then via LEP who would in turn instruct Robertsons to procure architects) was not time or cost efficient [p142]. He challenged this set up to Ms Todd. She had been invited because the Claimant was potentially wanting a feasibility study on the Zetland Street premises. Ms Todd rebuked the Claimant to the point he felt a complaint - albeit in the Claimant’s view unjustified -might follow.[70]We are satisfied that Karen Scase made known to the Claimant that she was not impressed with the Zetland Street site [p.348]. The Claimant accepted this is cross-examination. The Claimant was also aware that Ms Johnson was completely unhappy with the work that had been done in her absence on strategy by Mr Cooper and the Claimant. We note the Claimant later told Emma Varnam that Ms Johnson thought it was a terrible idea [p.392]. Also, that he told Alison Glover that Ms Johnson had dumped the idea before even she got his briefing note.[71]After the site visit the Claimant emailed Ms Johnson to advise that a complaint about him might be coming her way from Ms Todd. We are satisfied that Ms Johnson spoke with Ms Todd who expressed that she had concerns about the manner in which the Claimant had conducted himself during the site visit [p.239].[72]We have not seen any documentation of what those concerns were. However, we are satisfied that they were reported to Ms Johnson, and we discount that they were solicited or contrived by her. An important fact is that Claimant himself highlighted in advance of any contact from Ms Todd that a complaint may result against him.[73]There was an online meeting on 13 June 2022 of the Children’s Services Senior Leadership Team at which the relocation of Boyd’s Walk was discussed. The Claimant had prepared a briefing note of 2 pages recommending the Estates Team give authority to agree terms for acquisition of the Zetland Street Premises. Tony Decrop and Tammy Sutherland were both frustrated during this meeting, and this became obvious to the Claimant to whom they were challenging. They felt progress was not being made with the clear plan for Wilshaw House which went back months. In the meanwhile, there was a significant imperative to organise a move from Boyds Walk.[74]We accept the Claimant feels aggrieved because he says that Ms Johnson had contact with Mr Decrop prior to this meeting to the effect that Zetland Street would not be pursued and also to halt the feasibility study which he had wanted. Thus, he felt unfairly exposed in promoting the plan to a disinclined audience.[75]That there had been such a conversation is given support by the comment made in the course of the First Serious Concerns meeting [p.405] by Ms Johnson. The notes from that meeting do not contain everything that was said once things became heated. We accept that it is more likely than not the case there had been a call from Children’s Services in which they indicated to Ms Johnson that Zetland Street was not suitable, Ms Johnson agreed and this had not yet been shared with the Claimant.[76]On the other hand, we are satisfied that the Claimant was already aware from Ms Johnson’s return from leave that she was not supportive of Zetland Street, that he well knew he was pursuing an option that was contrary to the intended settled direction and Ms Johnson was unsympathetic and unhappy. The Claimant, we find, later acknowledged that he had deviated from the core strategy of Wilshaw that has been in place prior to Ms Johnson’s leave and that he chose to look at alternative approaches and ran with it [p.413]. We accept, entirely, the Claimant was well-intentioned and had a personal, deep-seated belief that what he was doing made good, professional sense.[77]A sixth probation review scheduled for 16 June 2022 was postponed at the Claimant’s request because of a caring commitment. This was to count as the combined 6th and 7th probation review.[78]The day before the rescheduled meeting of 21 June the Claimant sent an email to Ms Johnson asking for an opportunity to review his Work and Wellbeing Passport. We find the Claimant had by this point run out of purchased annual leave and this was his motivation for seeking the review. He described in his witness statement (paragraph 58) that at this point he was suffering extreme exhaustion, struggled to do his work, was mentally burnt-out and had very high levels of anxiety. We find he had never previously described himself as suffering these serious symptoms to the Respondent. He did not do so when seeking the passport review. Rather, the Claimant did not raise his health as a subject for discussion with Ms Johnson (or otherwise with the Respondent) from 24 November 2021 until his email of 20 June, save that in meetings with Ms Johnson he indicated he sometimes experienced fatigue and resilience challenges. Serious concerns raised[79]When the meeting of 21 June came, the Claimant mentioned to Ms Johnson that he was feeling stressed, struggling, feeling fatigued and concerned that he had used all his purchased annual leave [p.403]. There was a discussion about this but not an exhaustive one. We deduce that from the exchange at the first serious concerns meeting [p.403 and p.148].[80]Ms Johnson assessed the Claimant as requiring improvement in the areas of conduct, client/customer focus, communication and achievement of objectives. She indicated to the Claimant there were areas of serious concern and having reviewed the probation procedure, he would be invited next week to a meeting to discuss them.[81]We accept the Claimant was extremely upset and surprised as a result of the meeting, having not foreseen that serious concerns would be raised. The meeting was on Tuesday 21 June and he commenced a period of sick leave the following Monday 27 June, for an original period of two weeks. His illness was anxiety and depression. Ultimately, he did not return to work at any point prior to the termination of his employment.[82]With the Claimant’s consent, Ms Johnson made an occupational health referral for assessment on whether he was fit to attend management meetings, including formal meetings arranged under the probation procedure.[83]On 19 July 2022 the Claimant underwent an occupation health telephone consultation. The adviser reported that the Claimant connected his current psychological issues, in effect, to the serious concerns expressed. Ms Johnson had by then referred him for counselling and he had received two sessions. The report said he was not fit for work [p.511]. The advisor said that on her interpretation the Claimant’s work-related issues/stress impairment is unlikely to be considered a disability because it has not lasted longer than 12 months. She cautioned, however, that the Claimant had physical health conditions which is had not been possible to explore in the time available. First Serious Concerns Meeting[84]At the first serious concerns meeting under the Probation Procedure on 21 July 2022 the Claimant was represented by his trade union representative Paul Taylor. There was a notetaker Lisha Mistry and a representative from HR Bernedette Wilde from whom we received evidence. The invitation to the meeting identified the serious concerns covering: attitude/behaviours/ communication and achievement of objectives/ required standards. The Claimant was given appropriate information including specific shortcomings identified in reference to the job advert, job description and and person specification. [pp. 399-400]. The three serious concerns were summarised in this way:(a) Your ability to work to the required standards of the post.(b) Your ability to achieve objectives.(c) Attitudes/behaviours and communication displayed by you in work.[85]Under the procedure, the outcome of the meeting would be either a determination that the Claimant’s performance continue to be assessed against the standard procedure or that there should be a probation review meeting at which management would be recommending that the Claimant’s appointment would not be confirmed.[86]Towards the beginning of the meeting both Ms Wilde and Ms Johnson enquired about the Claimant’s health. The Occupational Health assessment of 19 July was not available. In Ms Johnson’s case she returned to the incomplete discussion about wellbeing that took place on 21 June. She asked the Claimant to expand upon his feelings and impact on his job. He said fatigue was an issue but then referred to stress and feeling unsupported in reference to being “threatened” and “bullied”, respectively by Ms Todd and Mr Decrop.[87]When giving evidence, it was accepted by the Claimant that during this meeting Ms Johnson did not call him a fool (as stated in the LOI) but referred to him as being on a fool’s errand.[88]This is documented in the meeting minutes which we find are accurate in this respect.[89]Whilst neither of the two other comments relied upon as acts of harassment are noted in the minutes, we also accept the Claimant’s evidence that Ms Johnson also told the Claimant that he was focusing on vanity projects like the Hippodrome and that he had to manage his work.[90]We noted that when cross-examined Ms Wilde said she could not recall the phrase vanity project being used, also that she had no recollection of shouting. We find Ms Wilde an honest witness but also unhesitatingly find Ms Johnson lost her temper and raised her voice with the Claimant. The conversation was of relatively greater importance to the Claimant and his recollection is likely to be better. The Claimant’s trade union official also referred to it during the grievance appeal and reported to Greg Scott that he was “shocked by what was said” and “it was uncalled for” [p.357]. We also find the suggestion of Ms Johnson not undertaking the second serious concerns meeting was made when Paul Taylor went back to get the Claimant’s possessions on 21 July 2022. This is all consistent with Ms Johnson having lost her temper and the situation having become uncomfortable.[91]Though not an adequate justification, the immediate context for Ms Johnson’s loss of temper we find to be of some importance: the Claimant had been continuing to make the case for Zetland Street. In reference to his abortive proposal, he expressed that the work had been done, and he connected children being at risk to this not being pursued. When Ms Johnson commented that he had not found an ideal solution, the Claimant persisted that it would have been better to have the option.[92]In terms of communicating the serious concerns, only some progress was made. Regard was had to the written information already provided. The Claimant asked for supporting examples. Ms Johnson said the Claimant had a relatively low workload only 5 active projects, that she felt there was a lack of initiative, and that she was doing work the Claimant should be undertaking. No further detail was shared because the exchange about Zetland Street followed, Ms Johnson lost her temper, made the comments we have mentioned and the Claimant left the meeting. Second Serious Concerns Meeting[93]The second serious concerns meeting took place on 3 August 2022. Ms Wilde set out the concerns in the broad following areas:(a) In excess of 40 meetings had been held between the Claimant and Ms Johnson which was excessive and called into doubt such matters as his ability to deliver services, work at pace, to be self-motivated and a self starter;(b) The meetings were taking Ms Johnson away from delivering services; and(c) That the Claimant’s case load was not significant and Ms Johnson was supporting him with one of the areas (Childrens).[94]At that meeting, Ms Wilde then expected that the Claimant would be returning to work on 8 August. She said to the Claimant that there would be a formal managing attendance meeting and for that he should think about what he would like to assist his return to work. She noted, communication and booking time in with Ms Johnson. The Claimant did not ask for part-time working again during this meeting [p.416].[95]On 22 September 2022 the Claimant underwent a second occupational health review by telephone [p.428]. This followed a referral of 12 September 2022 by Ms Johnson. That in turn arose because of the earlier report noting the need for advice about physical medical conditions and because the Claimant had requested an assessment to give advice about the impact on his day-to-day work and wellbeing. Ms Johnson sought advice about reasonable workplace adjustments.[96]The adviser indicated that the Claimant was currently experiencing moderately severe depression and severe anxiety, that he was not fit for work or attendance at the then planned meeting of 5 October 2021, and that work-related issues would remain a barrier to him returning to work. The report said the Claimant did not feel at this point that he would be able to return to work and wanted consideration for ill health retirement. The report included disability advice that the Claimant’s anxiety and depression and splenectomy were likely to be covered by the Equality Act 2010 [p.284]. Grievance[97]The Claimant lodged a grievance on 30 September 2022 which was headlined “discrimination due to disability characteristics” in which he alleged “conscious or unconscious discriminatory tactics to give unjust criticisms and use of unfair disciplinary actions against me”. He identified: lack of acknowledgement of health issues creating disadvantage; inadequate support leading to his performance being questioned; his health making it difficult to fulfill indefinite and unreasonable expectations and a lack of opportunity for improvement.[98]Alison Glover was appointed to manage the grievance. She is Health and Safety Manager for the Respondent and has been in post since 2018. She has 22 years previous experience in that specialism. We found her to be an honest and open witness. Both as a result of hearing her evidence and examining her documented approach to the Claimant’s grievance, we consider she is a focused, intelligent manager who takes a robust and logical approach to her work. We accepted Ms Wilde’s oral evidence that within the Respondent Ms Glover is valued for her independence.[99]The Claimant’s grievance was dealt with under the following headings :preemployment activity, discriminatory practices, lack of support from management and unfavourable treatment and probation procedure.[100]The Claimant participated in this via written answers. The investigation conducted was, we find, taken seriously and comprehensive. It involved interviews with Ms Johnson (x2), Mr Decrop and Ms Sutherland as well as consideration of relevant documentation.[101]Ms Glover partially upheld the grievance, in reference to the lack of documented detail on the Work and Wellbeing passport about the discussions and resultant agreement for the purchase of annual leave and a review period not being set [pp.91-92]. She did not otherwise uphold it, providing a detailed, lengthy and reasoned response.[102]The Claimant appealed. Part of the basis of that was that he should have been granted part-time working at the pre-employment stage. He now believed (Alison Glover reporting in her outcome that the reason stated to her was to do with the volume of work [p.91]), that there had been no sound basis to refuse his part-time working request. He considered the two advanced reasons for refusal (budget-protection reason and workload) had both been shown to be unsound.[103]The Claimant also said he could only conclude the lack of support that he had received was discriminatory since the treatment received by him was not equal to what would he been expected of anyone else.[104]A stage three appeal hearing was held in reference to the Claimant’s grievance on 16 January 2023. This was chaired by Greg Scott who was supported by Louise Ashton. Mr Scott agreed with Alison Glover’s conclusions. We heard evidence from Ms Ashton and we have examined the notes of the hearing. We conclude Mr Scott asked appropriately enquiring questions and showed a good command and interest in the detail. We note he also answered information requests made by the Claimant [p.363-364] including what were, essentially, FOI requests. He did so in some detail. The outcome was drafted by Louise Ashton and communicated in a document of 20 January 2023. We accept Ms Ashton discussed the issues with Mr Scott prior to determining the appeal. We further accept her honest impression was that Mr Scott did not reach the decision because the Claimant had complained of discrimination. The Claimant, we note, himself considered the process, excluding the outcome, was reasonably balanced, thorough and that he had been given a chance to put forward his points (paragraph 72 of his witness statement refers).[105]On 30 January 2023 the Claimant made an application for ill health retirement. We accept he had received advice from his union representative that he needed to do this whilst still an employee and there was a risk of termination the day following. In a supportive statement written 13 days later, the Claimant told the trustees that he had tried to get back to work but could not manage even with significantly reduced hours. Also, that he was feeling unable to take on any kind of permanent work since he never quite knows how he will be day to day [p.648]. Probation Review Panel and Non-Confirmation[106]The Probation Review Panel ultimately took place on 31 January 2023 for which the Claimant prepared a lengthy document [p.458]. He had five main themes:(a) That the probation process had not been followed in accordance with the procedure (particularly timely reporting of areas of improvement) and this represented a breach of contract;(b) His performance across all his projects was at least satisfactory; his professional behaviours reflected best practice approaches and gets things done quicker with less stress;(c) There was poor leadership from Ms Johnson including no clear idea of what she wants or agreement of objectives;(d) There was a discriminatory aspect whereby he had been required to buy annual leave which was a non-adjustment; and(e) Whilst his grievance had not been fully upheld, that reflected that the Respondent was self-investigating.[107]Ms Johnson also provided a detailed management submission which concluded with the recommendation that the Claimant’s appointment not be confirmed on grounds of unsatisfactory performance. The chief issues identified were consistent with those highlighted in the first and second serious concerns meeting and her earlier concerns document. The following points were made:(a) The 5 projects were a small amount of project work and the Claimant required a lot of support direction and input;(b) He had been expected with his knowledge and experience to soon achieve targets and objectives but this had not happened and had meant workload could not be increased;(c) Children’s estate strategy and Youth Services were two areas where there was reluctance to take the lead and significant support and direction had been required;(d) The Claimant had focused too much time on researching comparative options for the Hippodrome;(e) The Claimant was requiring unnecessary support with accompanying to meetings with the Theatre Trust(f) The Claimant’s performance at the SLT meeting had not reflected well on the team or Ms Johnson who needed to have confidence in the Claimant deputising for her, and for whom manging, communicating and presenting to internal and external stakeholders was a requirement of his job/person specification;(g) The Claimant’s own description of his comments with Ms Todd were not at a level expected of a senior officer;(h) The turnover of staff had not impacted his performance;(i) His work with Zetland Street lost valuable project time and demonstrated a lack of strategic judgment and understanding of the brief;(j) Whist some meetings had been cancelled, there was nevertheless an excessive number of meetings; and(k) Ms Johnson denied that she had solicited negative feedback.[108]In the course of the meeting Ms Johnson, when requested, gave as further evidence of not meeting objectives, another piece of work in reference for Children’s Services. Ms Johnson described how the Claimant had come up with a proposal that Ashton Town Hall should be used as a base for the back-office teams. In Ms Johnson’s view, a lot of time and effort had been put into this project which was also unfeasible because of high investment required (£12 million), and this was against a backdrop of a requirement for swift action. Reputational damage to the service had resulted, she said.[109]Ms Emma Varnam, Assistant Director of Operations & Neighbourhoods chaired the meeting. The meeting lasted around 2 hours and we accept the notes are a true and accurate record. Of relevance Ms Varnam heard from each side with a summary of their filed statements and questioned them both, as well as giving them each a good chance to question each other.[110]Ms Varnam’s evidence to us, which we accept, was that the Claimant’s grievance was not produced as part of the evidence which she considered. Obviously, the Claimant’s statement mentioned it, in passing. Ms Varnam was also clear that she did not have detailed knowledge of the Claimant’s medical history or conditions.[111]We accepted Ms Varnam’s evidence that in reaching her decision she was particularly concerned about the Claimant’s actions in the context of projects for Children’s Services and the Claimant’s engagement with senior managers and stakeholders. She accepted that his actions were damaging the team reputation, his decision making was flawed and Ms Johnson had received concerns about his conduct. We also accepted that speed of working or whether he could spin plates were not intrinsic to her decision. It is not referred to in the outcome letter. Probation Appeal[112]The Claimant pursued his employment appeal to Counsellors Kitchen, North and Dickinson on 6 July 2023. This took place over two months after these proceedings were issued. Further, although the claim alleges dismissal was a consequence of something arising from the Claimant’s disability or a failure to make reasonable adjustments, and alternatively, an act of victimisation, there has been no amendment to complain about the appeal process on the same basis or at all. We make short findings about it therefore, to the extent (which we have to say, was not expressly submitted) that the Claimant prays it in aid as probative of the Respondent’s preexisting mind set.[113]The counsellors were supported by Tracey Brennand. The Claimant was supported by Mr Dewsnap. Mr Dewsnap did not mention the meeting in his evidence.[114]We accept that the grievance was not included in the evidence pack and that the Counsellors only became aware of it because the Claimant raised it. The Claimant had wanted to refer to the grievance in order to highlight material rehearsed within it, about work he had done. Ms Brennand, we find, warned those she was advising that the purpose of the meeting was not to review the grievance process.[115]The outcome letter [p.599] recorded that the panel were aware of “the concerns” raised by the Claimant through the grievance process and that it has been through an investigation and appeal. It did not otherwise, across the 5.5 pages, refer to it. We do not take from the glancing reference that the appeal panel were aware in detail of the concerns and the assertions in the grievance which made it a protected act.[116]The appeal panel heard from Ms Varnam and the Claimant. The panel dismissed both of the Claimant’s two grounds of appeal: that the decision was too hard and disproportionate to the conduct and concerns and that it arose due to detrimental treatment in consequence of the Claimant’s disability.[117]Looking at the notes of the meeting, we observed that both councillors asked relevant questions. Detailed notes of the thirty minutes deliberation have been produced. No reference is made to the grievance .The outcome was to confirm non-confirmation of employment which the panel found to be within the bounds of reasonableness, one which any other employer would have taken given the seniority and specialist nature of the role, particularly taking into account the Claimant’s extensive experience [p.599]. Holiday and Sick Pay[118]The Claimant was paid 17 days holiday at the end of his employment made up as to 3.5 days accrued but untaken at the end of July 2022 and 13.5 days accrued but untaken in the current leave year. These figures are predicated on an annual leave entitlement of 27 days. Ms Wilde gave evidence that in fact 3.5 days was not due and owing although the basis for the error is not completely clear to us. The Claimant says that he has only been paid 27 days of holiday rather than 30 [p.29] although the period over which this accrued is also unclear to us. The Claimant would be entitled to 30 days per leave year if the period of his employment at Bury Council counted as continuous service [p. 552].[119]The Claimant’s sick pay from the commencement of sick leave on 27 June 2022 was paid at 1 month’s full pay and two month’s half pay. This is the amount that is payable under his contract of employment if he was in the first year of his continuous service. If the period of his employment at Bury Council counted as continuous service, then his entitlement to sick pay would be three month’s full pay and three month’s half pay. The Law Jurisdiction
The Law
[120]The Equality Act 2010 (EqA 2010) provides time limits for bringing claims. The provisions relevant to this case are as follows:[123]Time limits(1) Subject to section 140B, proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it” 121. We considered Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548, CA and Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530, CA in respect of the correct approach to continuing acts. The Tribunal should look at the substance of the complaints in question — as opposed to the existence of a policy or regime — and determine whether they can be said to be part of one continuing act by the employer. Discretion to extend time – just and equitable 122. The tribunal has the discretion to extend the time limit for a discrimination claim to be presented by such further period as it considers just and equitable (section 123(1)(b), EqA 2010). It is a wide discretion. The Tribunal had regard to the case of Adedeji v University Hospital Birmingham NHS Foundation Trust [2021] EWCA Civ 23 which cautioned against over-reliance on the “Keeble factors”. The best approach for a tribunal in considering the exercise of the discretion is to assess all the factors in the particular case that it considers relevant, including in particular the length of, and the reasons for, the delay (as per Underhill LJ in Adedeji at paragraph 37) . Prohibition on pre-appointment discrimination 123. We record the scope of the prohibition upon employers under s.39 EqA 2010 since sub-section 1 is germane to aspects of the Claimant’s case that arise in his pre-employment period. Section 39 provides: (1) An employer (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.(2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment. Harassment (Section 26)[124]Section 26 provides (so far as relevant): (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.[125]We note from GMB v Henderson [2016] EWCA Civ 1049 that whether the conduct relates to the protected characteristic “will require consideration of the mental processes of the putative harasser”, (as per Underhill LJ). However, we also had regard to the recent decision of the EAT in Carozzi v University of Hertfordshire and others [2024] EAT 169, where HHJ Tayler held:(a) The term “related to” is designed to cover all forms of conduct that properly viewed has a relationship to the protected characteristic (paragraph 15) and is designed to have a relatively broad meaning (paragraph 17)(b) That “there is no requirement for a mental element equivalent to that in a claim for direct discrimination for the conduct to be related to a protected characteristic. Treatment may be related to a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic, and there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser” (paragraph 24)(c) An example is the unknowing use of a word offensive to those who have a relevant characteristic. The fact the person when using the word did not know it had that meaning or connotation would not prevent the word used being related to the protected characteristic (paragraph 25).[126]As to what violates dignity and employer’s liability for an “effect” , we note from Richmond Pharmacology v Dhaliwal [2009] ICR 724 (Underhill J at paragraphs 15 & 22): 15...although the proviso in subsection (2) is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That, as Mr Majumdar rightly submitted to us, creates an objective standard. However, he suggested that, that being so, the phrase “having regard to … the perception of that other person” was liable to cause confusion and to lead tribunals to apply a “subjective” test by the back door. We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a “subjective” element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt . ... 22. We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. We accept that the facts here may have been close to the borderline, as the Tribunal indeed indicated by the size of its award. But we are satisfied that the Tribunal, which clearly considered the case most conscientiously, was entitled to hold that what it found Dr Lorch to have said did indeed fall on the wrong side of the line. We can see no error of law in its decision and this appeal must be dismissed.”[127]We had regard to the following important principles on the violation of dignity and the creation of the proscribed environment: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”(Grant v HM Land Registry & EHRC [2011] IRLR 748, Elias LJ at paragraph 47) AND “17....Thus, although we would entirely accept that a single act or a single passage of actions may be so significant that its effect is to create the proscribed environment, we also must recognise that it does not follow that in every case that a single act is in itself necessarily sufficient and requires such a finding. …20. The fact that terms that are plainly related to gender, such as ‘girlie chat’, ‘power-dressed women’ and ‘harem’, are used only once in the course of a fairly lengthy period of time, again, would not prevent in an appropriate case, and with appropriate surrounding circumstances, those comments being seen to create the environment spoken of.21. However, it must be remembered that the word is ‘environment. An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staff-room concerned. We cannot say that the frequency of use of such words is irrelevant. For example, if the conclusion of the Tribunal here had been that the words were used all the time, in effect, in regular conversation, one would have expected the ultimate conclusion to be very different and to have required the Respondent as employer of the other staff concerned to have given some explanation as to its action or inaction about it. It seems therefore that none of the factors that the Tribunal says it took into account amongst others could be said to be a factor it should not have taken into account. In our view, therefore, the Tribunal cannot be said to have been in error by taking account of irrelevant factors. Their weight is another matter: but, short of a perverse conclusion, is a matter for the Tribunal and not for us to judge.” (Weeks v Newham College of Further Education, Langstaff P) Discrimination arising from disability (section 15)[128](1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[129]In Pnaiser v NHS England [2016] IRLR 170 EAT, Simler J (as she then was), sitting in the EAT, summarised the meaning and effect of s15(1)(a) as follows (paragraph 31): “In the course of submissions I was referred by counsel to a number of authorities … From these authorities, the proper approach can be summarised as follows:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. …(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment …(d) The Tribunal must determine whether the reason/cause … is “something arising in consequence of B’s disability”. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history … the causal link between the something that causes unfavourable treatment and the disability may include more than one link. …”[130]The Claimant must show that the unfavourable treatment was due to “something arising in consequence of his/her disability” and not due to the disability itself. Where disability provides only the background for the impugned treatment (as in Kelso v Department for Work and Pensions EATS 0009/15) and there is a non-discriminatory reason for the treatment, then causation will not be satisfied.[131]It is the mental processes of the decision maker that are relevant; the test to be applied is not the “but for” test (Robinson v Department for Work and Pensions [2020] EWCA Vic 859- paragraphs 55 and 56).[132]It is not a defence for the employer to argue it did not know that the something leading to the unfavourable treatment was a consequence of the employee’s disability (City of York Council v Grosset [2018] ICR 1492) Objective Justification[133]The Tribunal must also consider whether the Respondent’s actions were a “proportionate means of achieving a legitimate aim”. The legitimate aim must not be discriminatory and should be a real, objective consideration. Examples include health and safety, safeguarding vulnerable persons, protection of the public and business needs e.g. ensuring the business can meet its contractual obligations[134]The EHRC Employment Code sets out that to be proportionate the actions of the employer do not have to be the only possible way to achieve the aim, but the Tribunal must consider whether a less discriminatory measure could have been taken to achieve the same aim. Legitimate aims are not limited to what was in the mind of the employer at the time of the unfavourable treatment ICTS (UK) Ltd v Visram EAT 0344/15[135]To be a proportionate means of achieving a legitimate aim, the Tribunal must look at whether the act of discrimination was also a reasonably necessary means of achieving that aim; Homer v Chief Constable of West Yorkshire [2012] UKSC 15. The Tribunal is entitled to consider whether a less discriminatory measure could have achieved the legitimate aim; Naeem v Secretary of State for Justice [2017] UKSC 27. Following Hensman v Military of Defence UKEAT/0067/14 when carrying out the assessment the ET must have regard to the business needs of the employer. This includes the sizes and resources of the particular employer. Failure to make reasonable adjustments (sections 20 ad 21)[136]Sections 20, 39(5) Equality Act 2010 and Schedule 8 to that Act operate to impose a duty on employers to make reasonable adjustments, as well defining the circumstances in which an employer will not be subject to that duty.[137]Section 20 EqA 2010 provides (so far as material): “Duty to make adjustments 1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.… (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[138]To establish a provision, criterion or practice (PCP), there must be an element of repetition, actual or potential. In Ishola v Transport for London [2020] ICR 1204, the Court of Appeal said that all three words “provision”, “criterion” and “practice” “..carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.” A genuine on-off decision which is not the application of policy is unlikely to be a practice: Nottingham City Transport Limited v Harvey [2013] All ER (D) 267.[139]According to s.212(1) EqA ‘substantial’ means more than trivial. This is a question of fact to be assessed on an objective basis and is not a high threshold to satisfy.[140]The disadvantage must be linked to the disability however. Simler P said in Sheikholeslami that: “The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP. That is not a causation question a...For this reason also, there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s circumstances. 49. ... The fact that both groups are treated equally and that both may suffer a disadvantage in consequence does not eliminate the claim. Both groups might be disadvantaged but the PCP may bite harder on the disabled or a group of disabled people than it does on those without disability. Whether there is a substantial disadvantage as a result of the application of a PCP in a particular case is a question of fact assessed on an objective basis and measured by comparison with what the position would be if the disabled person in question did not have a disability.”[141]Paragraph 20 of Schedule 8 of the EqA 2010 provides: 20(1)A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a)in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; and (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.”[142]It follows that under s.20(1)(b) an employer may succeed in defending an RA claim by demonstrating a lack of actual or constructive knowledge of either the employee’s disability or the likelihood of the employee being placed at a substantial disadvantage by the relevant PCP. The burden of proving a defence of this kind is on the employer. We say more about knowledge of disability below. Reasonable steps[143]For an adjustment to be reasonable, it is sufficient that there is a prospect of it alleviating the disadvantage: Leeds Teaching Hospital NHS Trust v Foster EAT 0552/10. In Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 the Court of Appeal put the matter in this way: “So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness”[144]As for effectiveness, that falls to be determined in the light of the information available at the time of the alleged breach Brightman v TIAA Limited UKEAT/0318/19[145]Failing to consult an employee about reasonable adjustments cannot itself be a breach of the duty to make reasonable adjustments (Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664, EAT). In the same vein, obtaining a medical report is not a reasonable adjustment since “the carrying out of an assessment or the obtaining of a medical report does not of itself mitigate or prevent or shield the employee from anything. It will make an employer better informed as to what steps, if any, will have that effect but of itself it achieves nothing” (as per Elias P at paragraph 43 Spence v Intype Libra Limited UKEAT/0617/06). Burden of proof for reasonable adjustments claim[146]The Claimant is required to establish a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred, in the absence of an explanation, that the duty has not been complied with.[147]The employer’s defence operates by preventing a duty to make adjustment from arising and the legal requirements are set out further below. Actual or constructive knowledge of disability[148]Although the wording between paragraph 20(1) of schedule 8 EqA 2010 and s.15(2) EqA 2010 differs marginally, the test for actual or constructive knowledge of the employee’s disability is not different.[149]In Gallop v Newport City Council [2014] IRLR 211 consideration was given to what is required for knowledge of disability, at paragraph 36: “Ms Monaghan and Ms Grennan were agreed as to the law, namely that(i) before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person; and(ii) that for that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee’s disability as identified in s.1(1) of the DDA. Those facts can be regarded as having three elements to them, namely (a) a physical or mental impairment, which has (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day-to-day duties”[150]On the question of constructive knowledge for the purposes of s.15(2), HHJ Eady QC, as she then was In A Ltd v Z [2020] ICR 199 (EAT) (in a decision since approved by the Court of Appeal in Sullivan v Bury Street Capital [2021] EWCA Civ 1694; [2022] IRLR 15) , set out a number of principles arising from the relevant caselaw: “(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Council v Grosset [2018] ICR 1492 CA at paragraph 39. (2) The Respondent need not have constructive knowledge of the complainant’s diagnosis to satisfy the requirements of section 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person(a) suffered an impediment to his physical or mental health, or(b) that that impairment had a substantial and(c) longterm effect, see Donelien v Liberata UK Ltd UKEAT/0297/14 at paragraph 5, per Langstaff P, and also see Pnaiser v NHS England & Anor [2016] IRLR 170 EAT at paragraph 69 per Simler J. (3) The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] IRLR 535 CA at paragraph 27; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant. … … (5) The approach adopted to answering the question thus posed by section 15(2) is to be informed by the Code, which (relevantly) provides as follows: 5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially. (6) It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v TC Group [1998] IRLR 628; SoS for Work and Pensions v Alam [2010] ICR 665). (7) Reasonableness, for the purposes of section 15(2), must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code.”[151]We also note the recent decision in Mefful v Citizens Advice Merton and Lambeth Ltd [2024] EAT 198 from which we take that the purpose of the employee’s communication in which their health circumstance is mentioned may be a relevant circumstance to which regard may be had when considering whether the putative discriminator ought reasonably to have taken steps to find out whether the employee might be disabled. Victimisation (Section 27)[152]Section 27 EqA 2010 provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. ... (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[153]Thus, a Claimant seeking to establish victimisation must demonstrate two things (a) That they have been subjected to a detriment; and (b)That he or she was subjected to that detriment because of a protected act.[154]A detrimental act will not constitute victimisation, if the reason for it was not the protected act itself, but some properly separable feature of it. There is no requirement that the circumstances be exceptional for such a case to arise: Page v Lord Chancellor and anor [2021] IRLR 377 (CA), per Underhill LJ at paragraphs 55-56.[155]A Claimant does not need to show that the treatment was less favourable than that which would have been afforded to a comparator who had not done a protected act.[156]The essential question in determining the reason for the Claimant’s treatment is: what, consciously or subconsciously, motivated the employer to subject the Claimant to the detriment? This will require an inquiry into the mental processes of the employer. If the necessary link between the detriment suffered and the protected act can be established, the claim of victimisation will succeed.[157]Nagarajan v London Regional Transport [1999] IRLR 572 HL establishes that victimisation does not have to be conscious decision or possess any malice as long as the protected act represented a significant factor in the employer’s decision.[158]The case of Chief Constable of Greater Manchester Police v Bailey 2017 EWCA Civ 425, CA. provides guidance on how a Tribunal apply the reason why test and reiterates the well-established legal test for victimisation that an act will be done "because of" a protected characteristic, or "because" the claimant has done a protected act, as long as that had a significant influence on the outcome: “It is trite law that the burden of proof is not shifted simply by showing that the claimant has suffered a detriment and that he has a protected characteristic or has done a protected act….”[159]‘Because’ is the key word. Materially, this is not identical to a ‘but for’ test; Ahmed v Amnesty International [2009] ICR 1450. The Tribunal is looking for the ‘reason why’ the treatment occurred. Where treatment is not inherently discriminatory, one must look into the ‘mental processes’ of the decision maker. We must be satisfied, and have sufficient evidence before us, that the decision-maker’s ‘mental processes’, even if operating at a subconscious level, were discriminatory if we are to find victimisation. Burden of proof for proceedings relating to a contravention of the EqA 2010[160]Section 136 of the Equality Act 2010 sets out the burden of proof:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[161]These provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board [2012] IRLR 870, SC.)[162]Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision.[163]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. Once the burden of proof has shifted, it is then for the Respondent to prove that it did not commit the act of discrimination. To discharge that burden, it is necessary for the Respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the Respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.[164]The Court of Appeal in Madarassy v Nomura International Plc [2007] EWCA Civ 33, a case brought under the then Sex Discrimination Act 1975, states: “The burden of proof does not shift to the employer simply on the Claimant establishing a difference in status (e.g. sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the Respondent had committed an unlawful act of discrimination”.[165]We also note Simler P’s observation in Pnaiser (above) that “Although it can be helpful in some cases for the Tribunal to go through the two stages suggested in Igen v Wong, as the authorities demonstrate, it is not necessarily an error of law not to do so, and in many cases, moving straight to the second stage is sensible”. Deductions from wages – unauthorised and excepted deductions[166]The statutory provisions applicable to the claim are section 13, 14 and 27 of the ERA 1996. Section 13 enshrines the right not to suffer an unauthorised deduction from wages other than in prescribed circumstances. So far as relevant, it provides as follows: 13.— Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.[167]As to wages: 27.— Meaning of “wages” etc. (1) In this Part “wages” , in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, Construction of employment contracts[168]A term (which we will call “an extraneous term”) that is not directly rehearsed in a written employment contract may be incorporated expressly by reference to another source containing that term for example, an employee policy. Whether incorporation has happened is a question of law.[169]Following Leader v Trafford Council ET Case No.2400230/16 in order for any extraneous term to be incorporated either it/the other document within which it is found, must have been brought to the employee’s attention other than by glancing reference and the employee should be furnished with access to it.[170]The contra proferentem rule applies to resolve any ambiguity. However, in the case of a contract reduced exclusively to writing, the subjective beliefs of a party about the operation or meaning of a particular term in the contract are not generally admissible as a tool to aid construction, unless there is such ambiguity. The starting point, absent ambiguity, is the contract itself. As such the position is that employees may be bound by clear written contracts to which they have signed freely however they may personally have misread or not read their contents and so harboured misbeliefs about their operation.[171]The following paragraph of the Master of the Rolls’ lead judgment in Adams and Ors v British Airways plc 1996 IRLR 574, we find, is instructive: Whatever the difficulties of application, I cannot regard the governing principles as contentious. The court is not concerned to investigate the subjective intentions of the parties to an agreement (which may not have coincided anyway). Its task is to elicit the parties' objective intentions from the language which they used. The starting point is that the parties meant what they said and said what they meant. But an agreement is not made in a vacuum and should not be construed as if it had been. Just as the true meaning and effect of a mediaeval charter may be heavily dependent on understanding the historical, geographical, social and legal background known to the parties at the time, so must a more modern instrument be construed in its factual setting as known to the parties at the time. Where the meaning of an agreement is clear beyond argument, the factual setting will have little or no bearing on construction ; but to construe an agreement in its factual setting is a proper, because a common sense, approach to construction, and it is not necessary to find an agreement ambiguous before following it. [Our Emphasis][172]We have also taken into account the Supreme Court authority of Autoclenz v Belcher and others 2011 ICR 1157, from which it is clear the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreements truthfully represent what was agreed. Continuity of Service[173]Section 210 ERA provides as follows:(1) References in any provision of this Act to a period of continuous employment are (unless provision is expressly made to the contrary) to a period computed in accordance with this Chapter.(2) In any provision of this Act which refers to a period of continuous employment expressed in months or years— (a) a month means a calendar month, and (b) a year means a year of twelve calendar months.(3) In computing an employee's period of continuous employment for the purposes of any provision of this Act, any question— (a) whether the employee's employment is of a kind counting towards a period of continuous employment, or (b) whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment, shall be determined week by week; but where it is necessary to compute the length of an employee's period of employment it shall be computed in months and years of twelve months in accordance with section 211.(4) Subject to sections 215 to 217, a week which does not count in computing the length of a period of continuous employment breaks continuity of employment.(5) A person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous.[174]Following Secretary of State for Employment v Globe Elastic Thread Co Limited 1979 ICR 706 HL a private agreement over continuity of employment cannot give rise to a statutory right but may give rise to a contractual right. ANALYSIS AND CONCLUSIONS[175]The Tribunal noted there is a jurisdictional point (i.e., the time limit point) which if determined in favour of the Respondent would mean that parts of the claim could not proceed. Having heard significant evidence on the entire case, however, the Tribunal determined that it would be appropriate to reach its conclusions on the substantive merits of the claim and to do so before determining the jurisdictional point.[176]On the question of the shifting burden we have noted the Claimant and his Counsel stressed the oddity of not using a capability process to manage the Claimant’s performance.[177]This is an incidental part of a pleaded allegation to which we will come. We think it is right to examine it in the context of whether this suggests any discriminatory motivation in reference to the Claimant which may affect the burden.[178]We do not consider the use of the probationary process as a marker of that at all. We note (see paragraph 47 above) that using the probation procedure to deal with capability issues during the probationary period is provided for expressly under the contract. We do not see that it calls for explanation, or even sceptisism, that the Respondent invoked the process. That’s before we get to the Respondent’s explanation. We accepted Ms Wilde’s evidence, echoed by Ms Varnam’s oral evidence, that the ethos of probation process is to monitor performance in very much the same way a manager would if a formal performance plan is implemented. Ms Wilde told us in her oral evidence that the capability procedure would be used when someone had exhausted their probationary period. We find the Claimant appreciated there was a probationary period and in no sense was he led to believe it was perfunctory in his case or that outcome was a foregone conclusion; the monthly reviews are testament to that. Issue 1: Harassment[179]Issue 1.1: The Respondent, through Ms Johnson, did the things asserted at issue 1.1.1 to 1.1.13 of LOI.[180]Issue 1.2:The conduct was unwanted conduct.[181]Issue 1.3: The next “gateway” issue for us in reference to each remark is whether it was related to disability.[182]We emphatically find none of the remarks related to disability. In reaching that conclusion we have properly reflected on the broad meaning to be given to the words “related to” and that Ms Johnson did not need to be motivated by the Claimant’s disability in order to have harassed him under the Equality Act. We have also considered the Claimant’s evidence as to how he connected the comments to his disability. In his witness statement he said that they reflected biased perceptions linked “to his health and professional judgment”.[183]The comment fool’s errand was made in reference to the Claimant pursuing Zetland Street as a new location for the Children’s Unit, then at Boyd’s Walk.[184]The comment of a vanity project was in reference to the Hippodrome project.[185]The comment in relation to managing his work was more likely than not in reference to his perceived inability to work sufficiently independently as required in the job role.[186]In our judgment the clear, objective implication of the comments was, respectively:(a) Fool’s errand: that the Claimant had wasted time on a predictably fruitless task;(b) Vanity project: that the Claimant had indulged in a project of the kind that would garner praise but was not useful; and(c) the Claimant had responsibility for managing his own work.[187]Having regard to the Claimant’s established impairments of anxiety and depression, compromised immune system, and physical weakness as a result of recurring hernias, and of simply being a person with a disability, we cannot see any connection with the comments made and their natural meaning. That is so even allowing for a connection that Ms Johnson might not be aware of herself. There is certainly no stereotype or trope of which are aware that people with any or all of the Claimant’s conditions are considered timewasting, frivolous or unable to be responsible for their work. The comments related to Ms Johnson’s assessment of the Claimant’s professional abilities and competence in his role.[188]The remaining issues fall away therefore but for completeness we express a view as to whether the comments had the purpose or effect of violating the Claimant’s dignity or creating the proscribed environment.[189]We are not satisfied Ms Johnson had the requisite purpose under s.26. Her purpose in reference to the fool’s errand and vanity project was to bring home her low assessment of the worth of these projects to the Respondent as an organisation and why, in her view, they were emblems of poor performance at work. In a later report to the Council [p.783] in her own words “it was never my intention to upset him”.[190]We accept that the Claimant was greatly upset by these two comments but not by being told he had to manage his work. He took from it that the term fool’s errand was an act of “name-calling” [p.108]. Before us he maintained that its use meant Mr Johnson had called him a fool. We do not agree. She was characterising the Zetland Street proposal and not the Claimant. Nevertheless, Ms Wilde acknowledged the Claimant’s clear upset in his oral evidence. He decided not to return to the meeting. We find the Claimant’s sense of professional worth was damaged and, subjectively, his dignity was violated.[191]Objectively we conclude it was not reasonable for it to have that serious effect, nor, considering the enduring nature of an “environment”, was it reasonable for the comments to create the proscribed environment. The comments of Ms Johnson were transitory, out of character and the Claimant, with all respect, was at this point prone to sensitivity. Hence why he has clung on to the idea that he was being called a fool. We completely understand, given the risks to his employment, why the Claimant was feeling vulnerable, and we are not criticising him in any way for that. He had, we accept, never previously faced criticism over his standard of work. However, a neutral observer’s view of the exchange, we think, is likely to be that Ms Johnson behaved unprofessionally by shouting and expressing management concerns with intemperate language. However, she did so because the Claimant was continuing to gainsay her managerial assessment of projects. Her remarks did not meet the requirements of s.26(1) having regard to the factors in s.26(4).[192]It was submitted to us by Ms Millin that we should draw an adverse inference from the fact of Ms Johnson not having been called that she did make discriminatory remarks to the Claimant. We do not find any force in that submission for the reasons we have given earlier.[193]Ms Millin also submitted that the Claimant’s performance was not as it should be because he was ill. We reflected on whether this could make the undoubtedly adverse criticism of his work, “related to” his disability. However, the assertion that the Claimant’s performance, especially in these two areas of criticism, connected to his disability runs counter to the Claimant’s own evidence as we explain further below in relation to the s.15 claim. Issue 2: Discrimination Arising from Disability Knowlege[194]Issues 2.1 and 3.1: We record the submissions and our conclusions on the subject of knowledge. These are the same for issues 2.1 and 3.1.[195]The Respondent says that at interview the Claimant simply mentioned his health such that there was no basis upon which the Respondent could be aware that he had a disability.[196]Of the Work and Wellbeing Passport, the Respondent says that three issues are referred to which have affected his stamina and make him easily fatigued. They say this encapsulates the Respondent’s state of knowledge at 2021 and is not enough to give them knowledge of disability. They also point to the fact the Claimant had the opportunity to tick a box on the application to say that he had a disability which he did not do.[197]The Respondent says it could not reasonably be expected to know, based on this information and particularly in terms of the effect, that there would be the requisite substantial adverse effect on the Claimant’s ability to carry out day-to-day activities.[198]So far as the first occupational health report is concerned (19 July 2022) the Respondent submits this looked at stress and anxiety and concludes the Claimant is unlikely to be disabled. Correspondingly it does not have constructive knowledge upon receipt of that report.[199]The Respondent submits it only has knowledge of disability at the time it receives the second occupational health report of 22 September 2022.[200]Ms Millin submitted that the Respondent had knowledge of the Claimant’s disability from the completion of the Work and Wellbeing Passport in October 2021.[201]We find the Respondent had the requisite degree of knowledge of disability as a result of compromised immune system, from the time of receipt of the Work and Wellbeing Passport in early October 2021. We find the Respondent had the requisite knowledge of disability as a result of anxiety and depression from the meeting on 24 November 2021 with Ms Johnson and Ms Holgate.[202]This follows by applying the guidance under given in A Ltd v Z and in the EHRC Code, and noting that:(a) The passport was provided in the clear context of the Claimant wanting a supportive measure whilst at work in reference to his health;(b) That he anticipated interference with his ability to undertake a professional full-time job is itself some marker of adverse effect upon his ability to carry out normal day to day activities;(c) The completed passport expressly identifies reduced immune system as a “long term” effect;(d) The Claimant is clear in the passport that he is having to actively manage his lifestyle to accommodate his condition and that a day off a week would support his health;(e) If not actual knowledge, this is clear basis for the Respondent to begin a chain of enquiry with the Claimant. We must then consider the likelihood of those enquiries revealing disability. The Claimant has been acknowledged by Ms Johnson as being up front about his health throughout. She was the Claimant’s first contact with the Respondent. Given he was also urging occupational health in September 2021 and suggesting he would co-operate with it still in November 2021, we are satisfied the Claimant would have cooperated fully with any enquiries of the Respondent and this would have led to a complete state of knowledge.(f) Relying on the latter principle, we reach a similar conclusion in relation to anxiety and depression. We have rejected Ms Holgate’s evidence that the Claimant was seeking to buy additional leave simply to see his parents in Norfolk. That makes an absurdity of the wide-ranging disclosure he made about his health which she noted.(g) At the meeting on 24 November 2021, the Claimant identified he had received two therapies (EMDR and CBT) already for anxiety and depression and that he was taking citalopram daily. We are certain the Claimant was open and identified that this medicine was for anxiety and depression.(h) We are also certain that when talking to Ms Holgate, the Claimant connected his anxiety to the “hell last 5 years” of which he told her. On that basis, there was a potentially enduring quality to it. That fits with what the Claimant had done in the passport, a fair reading of which connects the Claimant’s traumatic surgery to some post-traumatic stress (which we accept is not a disability) and anxiety. This was all again a very real, firm basis for taking forward further enquiries with the Claimant. We find the answers would have brought forward that the Claimant was disabled by reference to this impairment too.[203]Issue 2.2: The Claimant was not confirmed in his appointment which brought about a dismissal. This was unfavourable treatment.[204]Issue 2.3: We begin with the case advanced by the Claimant as to why and how the concerns expressed about his work originated. “Concerns” are not defined in the LOI but we understand them to be those concerns advanced by Ms Johnson which Ms Varnam decided were a basis for nonconfirmation. The dominant ones are concerns around poor professional judgment in relation to projects (specifically Zetland Street and Ashton Town Hall for Children’s services) and reputational harm and risk from conduct with stakeholders.[205]With respect to the Claimant, his own evidence ran entirely counter to the allegation that these concerns arose from his disability:(a) During cross-examination the Claimant disavowed any relationship between his disability and his conduct at the SLT meeting of May 2022, his conduct at the site visit with Ms Todd or his approach in relation to Zetland Street. This included the indirect means of not being allowed to work part-time but only having the facility to buy additional leave. The Claimant accepted this would not have made a difference.(b) The Claimant also maintained when questioned that he was still performing despite his health challenges.(c) In his evidence he also maintained his longstanding assertion that Ms Johson had solicited complaints from Ian Saxon and Ms Todd about his performance. We have not found that to be the case but the pertinent point for now is the Claimant does not accept there ever were any genuine criticisms.(d) This, we find, is all consistent with the position taken in his grievance (“few could have done more, disability characteristics or not....I believe the...reason for recommendation to probation panel should be upheld as discriminatory – since it is not explained in any other way - p.107 - 108].(e) In relation to Zetland Street it is quite clear to us that, to this day, the Claimant considers Ms Johnson’s assessment of his actions is completely misplaced and that there was justification and merit in what he was doing. In his view it would be sensitive, time-consuming and complex to relocate the existing services at Wilshaw House. He remains aggrieved that his professional expertise was impugned and resents that he was stopped in that process before a feasibility study was done. We consider his sense of injustice that he suffered criticism over his approach to this particular project has been a driver in these proceedings. However, the question of whether he or Ms Johnson is right as matter of asset strategy is not a matter for us to adjudicate on. It is only relevant to the Claimant’s pleaded case insofar as it was a concern that arose from his disability. The Claimant is plainly not making that direct relationship because he believes his judgment was not affected by any of his conditions. To put matters plainly, he is still certain that he was right.[206]We noted the Claimant’s assertion in his oral evidence that Ms Johnson had an agenda to dismiss him. To the extent the Claimant may be saying Ms Johnson made a perverse professional assessment of his judgment because of or influenced by his disability, we consider(a) this is likely to be an allegation of direct discrimination contrary to s.13 which has not been pleaded and(b) if it truly is “something arising, we do not agree in any case.[207]For our part we are content that the full range of concerns advanced by Ms Johnson were honestly and genuinely held. The frustration that spilled over from Ms Johnson in the first serious concerns meeting we find is actually evidence of this, the issue of Zetland Street being a significant concern and irritation. The importance of the project and the Claimant’s intended role is underscored by the remark in his probation review from April 2022[208]Ms Johnson articulated clear and cogent reasons why she thought Zetland Street was a non-starter to Alison Glover. These are objectively reasonable. These include that the site was self-evidently not suitable because of its size, limited car parking, lack of outside space which would not have met service requirements, being subject to a lease through a third party, and it would have meant splitting two areas of the service. We have already found the Claimant appreciated he was deviating from the established proposal whilst Ms Johnson was on leave. Putting all of this together, there is no sensible basis to infer that Ms Johnson criticised the Claimant other than on and for his performance which she did not value and provided reasoned justification for. The fact the Claimant was very hurt and does not agree is very difficult for him. We are sympathetic, but it is not relevant for this claim.[209]Ms Millin sought to rely on the probation review outcome letter and submitted that the concerns for which the Claimant was dismissed by Ms Varnam all arose from his health. We do not agree. We have made findings already about the reason why Ms Varnam made her decision. Her letter expressly references that evidence of the Claimant not performing to the expected level were: projects for Children’s services and engagement with senior stakeholders and managers [p.380].[210]In the circumstances, it is unnecessary for us to consider the alternative, objective justification defence put forward by the Respondent. Issue 3: Reasonable adjustments[211]We have dealt with knowledge already. We refer to paragraphs 201 and 202 above.[212]In this section we take each PCP through its respective stages within section 3. PCP1 (LOI Paragraph 3.2.1)[213]Requirement to work full-time: We find there was a one-off decision to refuse the Claimant part-time working which occurred before the Claimant was appointed. There were two reasons: workload and budget preservation. This did not constitute a PCP of requiring the Claimant to work full-time because it was a one-off decision in relation to the execution of his role, relative to matters as they stood in the department in October 2021. We have found no evidence of a PCP that surveyors in the Claimant’s role and/ or at the Claimant’s grade would never be permitted part-time working; the option later given to the Claimant demonstrates that was not the case. We also reject that there was an express or implied embargo on the subject between those times which meant it was akin to a policy. The Claimant accepted that after being refused part-time working he did not raise the issue again. The thrust of his evidence was that it would be impolitic and illogical for him to go against a management decision again so soon after getting the job. That was a personal choice however, and we have not found he was actively deterred.[214]Requirement to use flexitime or additional leave. There was no PCP to this effect. Rather the Claimant agreed a personal arrangement for purchasing annual leave and using flexitime that were acceptable to him. PCP1 – Substantial disadvantage and Respondent’s knowledge of it[215]If there were such a PCP as 3.2.1 of LOI, we reject that that there was any substantial disadvantage to the Claimant or if there was, that the Respondent had the requisite knowledge. A development surveyor without the Claimant’s disability who took his role would have been refused parttime working in October 2021. They would have been required to apply to buy additional leave (which may not have succeeded) or use flexitime, had they wanted to have reduced hours in an indirect way. The Claimant suffered no substantial disadvantage by comparison. To the extent it may be said that the Claimant has greater need than a non-disabled surveyor for the reduced hours in order to be effective in his role, the Claimant cannot show purchasing leave to achieve that goal, rather than gaining it through part-time work disadvantaged him.[216]The net position achieved was broadly comparable in outcome to part-time working in that the Claimant suffered a commensurate reduction in take home pay which would also have been the case with a part-time pro rata salary. No real point of effective difference was demonstrated to us. More to the point, it was an arrangement the Claimant in the full knowledge of his own circumstances agreed would meet his requirements and which he later acknowledged allowed him to get in the necessary recuperation. We note the Claimant has been offended that an analysis was done during his employment of when he actually did take his leave. It was noted by Ms Wilde that it was often taken as part of block periods of leave. That was entirely the Claimant’s prerogative. He had paid for the leave, but it underscores, perhaps, that the flexibility over having the choice over which days to take off had its own advantages to the Claimant. We reject the Respondent knew or could have been expected to know that the Claimant would be disadvantaged by purchasing leave.[217]Ms Millin submitted to us that the arrangement for purchasing leave could never be a reasonable adjustment when it was a facility open to all employees via the flexible working policy. We do not agree. First, not every employee would have such an application accepted. The Claimant’s circumstances, of which his health was a significant part, were the reason why. Secondly, the measure of whether an adjustment is a reasonable adjustment is whether it avoids the substantial disadvantage identified. The fact that it may be available to others in different circumstances, and for nondisability related reasons, would not prevent it from being a reasonable adjustment provided it is curative of the substantial disadvantage. The corollary of Ms Millin’s submission we also think is that to be a reasonable adjustment the Claimant should have been allowed pre-agreed, defined amounts of additional leave without payment or part-time working without a pro rata reduction in salary. We do not consider that would be a reasonable adjustment.[218]We do not accept there was any expectation the Claimant work in excess of his contracted hours. The Claimant was able to use, and did use, the flexitime system to take back time he chose to spend working outside regular hours. In his witness statement the Claimant says that as a result of his own reflections on his probation assessment in February 2022 he resolved to put in more hours with more work in the evenings (paragraph 31) but this work has not been detailed by him otherwise than on a single occasion on the evening of 14 June 2022. It is not coincidence, we find, that this was the only occasion he identified as working late to Ms Wilde He was also, we note, quick to elicit Ms Wilde’s agreement that working in the evening was not being promoted by the Respondent.[219]We find the Claimant working long hours therefore was very isolated. The Claimant told Ms Wilde that he had the capacity to take on more work if it was shared by Ms Johnson [p.412].[220]We similarly do not accept that the requirement to work full-time in the circumstances meant he actually did get more stressed, tired or unable to get the recovery time that he needed to perform his role. He was clear that the additional leave had benefited him by allowing him to take a day just for himself. This gave him the time needed to recharge [p.415].[221]We have noted the Claimant produced a small number of emails for his grievance intended to show that he sometimes needed to negotiate the times of taking his additional leave, but we are not convinced any disadvantage grew from this. The arrangement was working well.[222]To the extent that changed when on 20 June 2022 the Claimant asked for a review of his passport (see paragraph 79 above) the discussion was started but did not progress because so shortly afterwards the Claimant commenced sick leave. There was no substantial disadvantage to the Claimant who was not then at work. If there was such a disadvantage the Respondent was not aware in that period. The Claimant did not make a request for part-time working e.g. at second concerns meeting when he was asked by Ms Wilde (see paragraph 94 above)[223]The next time Ms Johnson and the Claimant met together in person was the second interim review meeting under the managing attendance procedure on 31 August 2022. Ms Johnson indicated that on a return to work she was more than willing to reconsider the request for part-time working [p.774]. It was suggested that the Claimant revisit his request and indicate the pattern he wished to apply for. The Claimant was clear this would be in substitution of the purchase of leave.[224]The claimed reasonable adjustment of offering the Claimant flexitime was in place; he used this to build up time.[225]For the reasons we have identified, the Respondent was not under a duty to offer the Claimant reduced hours or part-time role as a reasonable adjustment. PCP2 (LOI Paragraph 3.2.2)[226]We do not find there was a PCP of not facilitating one-to-one face to face meetings between the Claimant and managers. We accept that the Claimant and Ms Johnson did not meet face-to-face generally. Also, that he generally met other more senior staff online. In the case of Ms Johnson, that reflected both parties operating in the hybrid model of working. The style of working was entirely consistent with the Claimant’s job advert of “flexibly worked from home”.[227]We took from the oral evidence of Ms Wilde that post-Covid many one-toone meetings at the Respondent do take place over Zoom or Teams. The Claimant could not identify any evidence where he had requested a one-toone meeting, and it had not happened. There is no persuasive evidence of a provision, criterion or practice of ignoring requests for meeting in person. We are unable to deduce the alleged PCP. PCP2 - Substantial disadvantage and Respondent’s knowledge of it[228]If there was a PCP, we do not accept that the Claimant was caused stress and difficulty coping with his disability at work because of a lack of face-toface meetings with managers, in contrast to a person without the Claimant’s disability. Our finding is that the Claimant has a clear preference for in person meetings which he thinks attract better focused attention to the subject matter. His main wish was for more in person team meetings to promote discussion and drive progress. We find it was frustrating to him that domestic matters could permeate into online meetings with Ms Johnson and could be more readily postponed. But that was the extent of it. Although in his witness statement the Claimant said the nature of online meetings caused him “considerable levels of anxiety”, he did not recount this during the serious concerns meetings. We also find the Respondent had no actual or constructive knowledge of the substantial disadvantage; the Claimant did not identify it nor is it axiomatic that a person with the Claimant’s disability would be disadvantaged in the way claimed. If anything, the reverse is true, particularly in relation to compromised immune system.[229]It follows that there was no duty to make a reasonable adjustment of offering and participating in one-to-one face to face meetings. PCP 3 (LOI Paragraph 3.2.3)[230]Not enquiring about welfare: There was no PCP of not enquiring about the Claimant’s welfare and in fact (as the Claimant acknowledged in crossexamination) the real gravamen of his complaint is not that Ms Johnson did not make enquiries (she did) but that, in his view, they were not of an adequate nature. We note that it was not a “headline” topic on the face of the probation review form. However, these were only some of the meetings that took place. Overall, we found that Ms Johnson did enquire of the Claimant’s wellbeing. This was not done in a formal way or through a formal mechanism, but she did enquire and give to the Claimant an opportunity to explain any concerns. When the Claimant said he wanted to discuss the Work and Wellbeing Passport, it is common ground Ms Johnson agreed to this and did discuss it with the Claimant on 21 June 2022. The alleged PCP is not established.[231]Referrals to Occupational Health: There was a clear pre-employment policy of not referring preferred job applicants to Occupational Health or medical screening prior to appointment, other than in the two categories of cases to which we have referred (see paragraph 32 above). There was no post-appointment policy of not referring the Claimant to occupational health. This has not been evidenced. He did not seek a referral after his appointment that was refused. His concluding position on the subject in December 2021 after the agreement to purchase annual leave was simply to give feedback about the pre-employment process. The trigger for referral in summer 2022 was his sickness absence. We are satisfied that was in accordance with standard policies and procedures relating to sickness absence as described by Ms Wilde. However, we do not find there was a policy by which the Clamant would otherwise have been automatically refused a referral had one been requested in the period between November 2021 and the Claimant commencing sick leave. We accepted there was a balance to be struck (to which Ms Wilde alluded) since some employees can be offended by the suggestion and it is also the case that the individual generally knows their own circumstances so any health concerns can be navigated through the Work and Wellbeing passport and conversations with managers. The alleged PCP has not been established as a matter of fact. PCP 3 - Substantial disadvantage and the Respondent’s knowledge of it[232]If there was a PCP as alleged, we do not accept the Claimant was substantially disadvantaged in contrast to a person without his disability or that the Respondent had knowledge of it. The Claimant alleges that as a result of not making enquiries or making referrals to occupational health that he struggled to cope at work which led to serious concerns being raised by the Respondent and the Claimant being dismissed. That is wrong as a matter of evidence given the concerns were wholly unconnected to the Claimant’s disability so would have arisen in any event irrespective of the alleged PCP. The point also remains that the making of enquiries, or indeed a referral to occupational health, does not of itself achieve anything tangible. We have received no evidence to suggest that occupational health assessments are not undertaken independently (in fact, they appear to be outsourced), with the purpose of producing a dispassionate assessment of the employee’s fitness or whatever other matter the assessor is asked to comment upon. The outcome of any assessment obtained could not be guaranteed - and cannot now be known. The Claimant became acutely stressed in summer 2022 so the assessments done then cannot be assumed to reflect assessments done at any earlier point. Nor would the Respondent be obliged to agree with and act upon the assessment. The Claimant has not therefore demonstrated he is in a worse position than a person without his disability as a result of non-referral or inadequate enquiries about his wellbeing.[233]It follows the Respondent was not under a duty to make the adjustment of conducting welfare discussions and referrals to occupational health.[234]We note, as it appears in the List of Issues, the implementation of an improvement plan is suggested as a reasonable adjustment to PCP3. This only works as a reasonable adjustment if we accept the substantial disadvantage of not enquiring about welfare or making referrals to occupational health is that the Claimant’s performance became impaired. We have not found that to be the case. Issue 4: Victimisation[235]Issue 4.1: The Claimant’s grievance constituted a protected act. It is such by virtue of making an implied or express allegation that another person has contravened the Equality Act 2010.[236]Issue 4.2.1: The grievance was rejected at each stage. It was partly upheld by both Alison Glover and Greg Scott.[237]Issue 4.2.2: The Respondent dismissed the Claimant.[238]Issue 4.3: The rejection of parts of the Claimant’s grievance and his dismissal were a detriment.[239]Issue 4.4: The Claimant has not demonstrated facts from which we can conclude that the grievance was substantially rejected at each stage because of the lodging of the grievance or that the Respondent believed he might do another protected act. We find positively that there was no such connection.[240]We have set out our findings already as to the clear independence with which we are satisfied Ms Glover and Mr Scott approached their task. By definition they both knew of the grievance and the Claimant’s assertion of the protected characteristic of disability. However, there is nothing about the manner in which the grievance was managed by either of them that is remotely suggestive of any closed mind, any disinclination to the Claimant or the subject matter of discrimination. Alison Glover did an outstandingly thorough investigation and applied considerable personal effort. That is not consistent with any conscious or unconscious motivation to not uphold the grievance. A testament to her attention to detail is that she partly upheld points about the inadequate documentation. The Claimant own subjective impression of the meeting with Mr Scott was of balance.[241]Paragraph 239 applies similarly and with equal force to the suggestion that Ms Varnam dismissed the Claimant as an act of victimisation.[242]We noted that in her invitation to the re-scheduled probation review hearing, Ms Varnam did reference that the grievance process had concluded. However, we fully accepted her evidence that she understood that she was an independent chair and that it would not be appropriate for her to be provided with additional material beyond the pack. She was unequivocal that she had not seen the Claimant’s grievance. It is a fact that the Claimant himself referenced it in some detail in his representation [p.461] but we accept that Ms Varum did not act on his request to have regard to it. We find Ms Varnam to be an intelligent, thoughtful director with high standards of propriety who takes her role as a public servant very seriously. We accept that an unconscious motivation may be enough. However, we exclude that because we find we find that her reasons for dismissing the Clamant were that she honestly believed he did not meet the professional standards commensurate with his role She also did not know of the Claimant’s medical conditions at the time. We also had close regard to the notes from the probation review hearing [pp.382 - 394]. There is nothing performative about it which suggests a pre-determined outcome. We find a range of probing questions (including questions that followed-up answers given) were posed. This is consistent with the concerns expressed being looked at genuinely on their merits. Examples of her rigorous approach are: that she noted and wanted to understand an improvement noted between probation meeting one and two in a number of areas [p.384], she required Ms Johnson to provide specific examples of the Claimant not meeting set objectives [p.384] and she asked, we find, a series of open questions to the Claimant about what projects he took on and whether he had written briefing notes and reports.[243]We also reflect that Ms Varnam was determining a case put forward to her by Ms Johnson about concerns first expressed by Ms Johnson to the Claimant August 2022. This was before the Claimant’s grievance. On no assessment could the formation of those concerns, which went back further still, be connected to the bringing of the grievance. That would not exclude the possibility of Ms Varnam victimising the Claimant opportunistically for his grievance (which we have discounted - above) but it is as clear as day that he became at risk of dismissal for wholly unconnected reasons. There was no orchestrated plan. Issues 6 & 7: Sick Pay and Holiday Pay (LOI Paragraphs 6 and 7)[244]The actual issues for determination emerged somewhat differently to the LOI.[245]Ms Millin submitted that we should construe clause P2.4 of the employment contract as saying that periods of previous service with other local authorities count as continuous service, without conditions of any sort.[246]We cannot agree. Ms Millin’s formulation would render completely otiose the words “under the National Agreement on Pay and Conditions of Service...”. Those words are not merely descriptive because we know that the National Agreement imposes conditions for allowing previous service to count.[247]We find the National Agreement conditions are incorporated by reference. We therefore interpret P2.4 as providing a general prohibition on employment with a previous employer counting as part of continuous service with the Respondent, subject to a proviso by which the prohibition does not apply where the National Agreement on Pay and Conditions of Service conditions allow for such service to be counted.[248]To understand the status of the Claimant’s past service we then turn to the National Agreement. “Continuous service will include continuous service with any public authority ..”. We pause there to note, it has not been disputed that the Claimant’s previous employers would count as a public authority for the purposes of clause 14.2 of the National Agreement.[249]The issue then becomes what is meant by continuous service. It is not defined in the National Agreement. We note the summary of contract particulars. It gives as “Date of Local Government Service” 1 November 2021. The form contemplates that date may be different from the date of Tameside Service. Consistent with what the Claimant said about his own view that he had not retained continuous service, and that he received and did not demur from the contract, we are satisfied the date of 1 November 2021 really does represent the parties’ mutual agreement that for the purposes of the rider to prohibition on aggregating other earlier service, the Claimant cannot treat any local authority service earlier than 1 November 2021 as being continuous service with a public authority. Therefore, he cannot rely on the proviso as a matter of contract.[250]Ms Carr submitted that the phrase “continuous service” should be construed as having the same meaning as continuous employment under the Employment Rights Act 1996. Correspondingly, a week during which the whole or part of the Claimant’s relations with his employer are not governed by a contract of employment will break continuity (s.210(4)). In the Claimant’s case, that gap was between 12 September and 1 November 2021. We think this submission has some force given the statutory regime is well-known, long standing and, along with the case law, provides a set of definitive rules by which the question of continuity can be established with certainty. On the other hand, it does make it very curious that if such was the intention, the National Agreement did not use the same term (continuous employment) or refer to the statute. It is also established (see paragraph 174 above) that whilst an agreement concerning continuity cannot supersede the ERA provisions so as to confer jurisdiction, a continuity clause may create enforceable contractual rights. It is not necessary, therefore, that those drafting the National Agreement would need to dovetail with the ERA regime to give their agreement efficacy. In the circumstances we do not find it necessary to reach a conclusion on this point, but we reject the claim on the basis set out in the paragraph above and on the further basis that the natural and ordinary meaning of the word continuous means “unbroken”. That is not consistent with, in the Claimant’s case, a break of over a month.[251]We therefore find the Claimant was not entitled to the sick pay and holiday pay which he has claimed are due under the contract because he has insufficient continuous service to qualify for them. Issue 8: Time Limits[252]There was no discrimination against the Claimant and therefore no continuing act for the purposes of time limits. Any complaint about something that happened before 10 November 2022 is therefore out of time and jurisdiction depends on the Tribunal being satisfied it is just and equitable to extend time to the date of issue of the proceedings on 23 March 2023. The out of time complaints include the harassment claim (going back to 21 July 2022) and the claim for reasonable adjustments (which in respect of the three PCPs goes back, in the case of PCP 1 to the point when a part-time working application was promoted i.e. 3 August 2022, in the case of PCP 2 to 21 June 2022 when the Claimant stopped meeting virtually with Ms Johnson and in the case of PCP 3 to 7 July 2022 when Ms Johnson referred the Claimant to occupational health.) Time expired for these claims before even the early conciliation process started on 9 February 2023. The Claimant is therefore in need of an extension of up to 7 months (e.g. PCP 2 would need to have been issued by 20 September 2022)[253]The Claimant’s evidence about why he did not bring his claim sooner than 23 April 2023 [p.2] is that he left it to the latest time to apply to tribunal in the hope that a settlement would be reached and he would not be subject to further stress. That was set out in his ET1 [p.17]. We consider “the latest time” to be a reference to his in-time claim for discriminatory dismissal. The issue of time limits was not revisited in his witness statement.[254]Reflecting on the relevant factors, the Claimant, we appreciate, was unfit for work from 27 June 2022. We fully accept he was greatly stressed by the turn of events and anxious to avoid dismissal. Apart from the Occupational Health records we have noted that he attended his GP. By November 2022 we find his mental health symptoms had passed their worst point which was over the summer of 2022. By that start of November 2022 he was starting to feel less anxious with a brighter mood [p.609] and by the end of the month, his sleep pattern was poor but his mood was not as low [p.606]. He saw his GP about other non-mental health related issues but we are not satisfied that in January 2022 they impeded him from bringing a claim.[255]We have also noted that he was only awaiting his grievance outcome – which considered all the facts underlying the out of time claims – until 30 November 2022. By that stage he had already, some two months before, consulted with ACAS, the CAB, and the disability advisory and support service. He was well informed about the rights of employees with disability and he was making a clear assertion of disability invoking the wording of s.15 Equality Act. He was supported by his union. He was aware of tribunal proceedings and told the Respondent he had legal expenses insurance [pp.88-89] which we find he must have had sufficient presence of mind to research.[256]Against that backdrop the Claimant’s explanation for delaying the issuing of proceedings, most especially in respect of the harassment claim, is not persuasive or compelling in respect of the out of time clams. Following ABM University Health Board v Morgan [2018] ICR 1194 that is not a determinative factor but is strongly relevant in our view. We had regard to Department of Constitutional Affairs v Jones 2008 IRLR 128 to which Ms Millin referred us. Although the Claimant’s disability is a relevant factor the case did not establish a general proposition that a person with a mental health problem is entitled to delay bringing a claim as a matter of course. Having been provided with a reliable contemporaneous sight line to the Claimant’s health we do not accept his disability meaningfully presented a barrier to issuing proceedings sooner.[257]We find the grievance appeal outcome had no certain prospect of success; objectively, Ms Glover had done a thorough job so to delay for the appeal was a risky strategy.[258]It has not been submitted that there was specific forensic prejudice to the Respondent in meeting the out of time claims. The fact the Respondent has successfully marshalled a defence to those claims, points to the contrary. However, allowing the extension requires the Respondent to meet a claim which would otherwise be defeated by limitation. That is a form of prejudice in its own right. The claims do not have merit for the reasons we have found following an in-depth examination. We are entitled to take the merits into account.[259]Balancing all of the factors, we are not satisfied it would be just and equitable to extend time for the out of time claims. Were it otherwise we would have dismissed those claims in any event for the reasons we have given. Approved by Tribunal Judge Miller-Varey acting as an
The Law
[1]The Claimant’s application dated 1 April 2025 for reconsideration of the judgment sent to the parties on 19 March 2025 is refused pursuant to rule 70(2) of the Employment Tribunal Procedure Rules 2024.
Background
[2]By an application dated 1 April 2025 (referred to the Judge on 26 April 2025) the Claimant requests that the Tribunal reconsider its judgement, as promulgated in writing with reasons on 19 March 2025. The final hearing in the case took place at the Manchester Employment Tribunal on 17, 18 and 19 February 2025. The Tribunal convened in Chambers to deliberate on 20 February 2025.[3]I am satisfied the Claimant’s application has been made within the 14-day time limit set down in rule 69. Applicable law and procedure[4]The Employment Tribunal Procedure Rules 2024 came into force on 6 January 2025. Those rules apply to procedural aspects of this case from that date onwards.[5]The Tribunal has discretion to reconsider any judgment upon the application of a party where it is in the interests of justice to do so. That arises under rule 68(1). The powers available to it upon reconsideration are: to confirm the judgment, to vary the judgment or to revoke the judgment (rule 68(2)). If the Tribunal determines to revoke the judgment, it has the power to make the decision again and, if appropriate, to reach a different conclusion (rule 68(3)).[6]In accordance with rule 70(2), if the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked, it is required to refuse the application. Where there is no such refusal, steps are then mandated by which a decision is reached about whether the application should be determined with or without a hearing, there being a presumption in favour of the latter (rules 70(3) and 70(4)).[7]In accordance with paragraph 16 of the Joint Presidential Guidance on Panel composition, the Judge alone shall consider the test imposed by rule 70(2).[8]The principles for reconsideration set out in new rule 68 are unchanged from the predecessor rule in the 2013 Rules, with the exception that it is clarified the Tribunal taking the decision again may come to a different conclusion. Correspondingly, the authorities in relation to old rule 70 remain relevant. From those authorities, I derive the principles set out in paragraphs 9 to 15 as relevant to the exercise of the discretion. These fall to be considered alongside the material in the Claimant’s application when I evaluate the application’s prospects of success.[9]Examples of circumstances in which the interests of justice might allow a review are these: the decision was wrongly made as a result of an administrative error; a party did not receive notice of the proceedings leading to the decision; the decision was made in the absence of a party; new evidence has become available since the conclusion of the hearing to which the decision relates (Outasight VB Limited v Brown 2015 ICR D11, EAT, paragraphs 30 and 48) or there has been a procedural mishap prior to the decision being reached which prevented a party from having a fair and proper opportunity to put his case (Trimble v Supertravel Ltd 1982 ICR 440 EAT and Ebury Partners UK Ltd v Acton Davis 2023 IRLR 486 EAT).[10]Where a party applies to introduce fresh evidence after a case has been determined, the interests of justice will in most cases be encapsulated by the principles in Ladd v Marshall [1954] 1 WLR 1489 (Outasight at paragraph 49). Those principles are essentially threefold: that the evidence could not have been obtained with reasonable diligence for use at the original hearing; that the evidence is relevant and would probably have had an important influence on the hearing; and that the evidence is apparently credible.[11]Nevertheless, it may sometimes be appropriate to allow evidence to be adduced which could reasonably have been known of or foreseen provided there is some special additional circumstance which leads to the conclusion that justice does require a review. (Flint v Eastern Electricity Board [1975] ICR 395, [1975] 5 WLUK 87). That could be that the evidence, though known of and foreseen, was not available. The special circumstance or mitigation must be connected with the failure to adduce the evidence in question at the hearing (General Council of British Shipping v Deria [1985] ICR 198, EAT ).[12]The interests of justice allow for a broad discretion which must be exercised judicially. This means “having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”. (as per Her Honour Judge Eady QC, as she then was, in Outasight at paragraph 33).[13]Whilst the discretion to reconsider needs to be exercised in accordance with the overriding objective of dealing with cases justly, the principles set out in Flint and Deria remain valid, in particular on the importance of finality in litigation (Newcastle upon Tyne City Council v Marsden 2010 ICR 743, EAT).[14]The right to a fair hearing under article 6(1) of the ECHR may be a factor in the exercise of discretion. If a party has been ambushed at the hearing or an issue has arisen over disclosure of documents, that might amount to an additional circumstance where new evidence could be adduced despite not meeting the Ladd v Marshall criteria (Outasight at paragraph 38).[15]Procedural mishaps may be corrected under the reconsideration procedure but the province of correcting errors of law is that of the EAT. Following Ebury Partners UK Ltd v Acton Davis 2023 IRLR 486, EAT (paragraph 24): “In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT”.[16]What is meant by “reasonable prospect” in rule 70(2)? I have not identified case law that gives specific guidance on the term for the purposes of rule 70(2). The test is a familiar concept which applies in various other strike out provisions and which - in particular reference to the draconian effects of exercising those discretions without a full hearing in discrimination and whistleblowing cases - has generated an associated body of case law (see for example: Anyanwu and anor v South Bank Student Union and anor (Commission for Racial Equality intervening) 2001 ICR 391, HL, and Ezsias v North Glamorgan NHS Trust 2007 ICR 1126, CA.)[17]In my judgment the principles those cases establish are not wholly apposite where a full hearing with evidence has taken place and the issue is not whether the claim should be allowed to proceed but whether the claim should be allowed to be re-opened where evidence has been heard from both sides and all of the issues adjudicated upon. Nevertheless, the clear use of the word “no” reasonable prospect must mean (as it does for strike out cases in reference to the prospect of succeeding in a claim) that the test is not whether the Claimant is likely to fail in securing a variation or revocation of the judgment nor whether it is possible the application will fail. There must be “no” reasonable prospect (Balls v Downham Market High School [2011] IRLR 217 ,paragraph 6].[18]In making this application the Claimant is acting in person. I have taken that into account when construing the possible bases for reconsideration to which his written application may give rise.[19]At the hearing the Claimant was represented by Counsel, Ms Leslie Millin. Ms Millin told the Tribunal that she had been instructed and had received the bundle only during the week immediately prior to the hearing. The judgments[20]The “Judgment” may be said to comprise a number of judgments having regard to the definition of judgment in rule 2. That arises in the following way:[21]Paragraph (a) has two components:(i) a final determination of the issue of whether the complaint under s.26 Eq Act 2010 was a claim for which the Tribunal had jurisdiction and(ii) a final determination that if (contrary to (i)) jurisdiction does exist, the complaint fails.• Paragraph (b) is a final determination that the complaint under s.15 Eq Act 2010 fails.• Paragraph (c) has two components: (i) a final determination of the issue of whether the complaint under s.20 and s.21 Eq Act 2010 is a complaint for which the Tribunal has jurisdiction and (ii) a final determination that if (contrary to (i)) jurisdiction does exist, the complaint fails.• Paragraph (d) is a final determination that the complaint under s.27 Eq Act 2010 fails.• Paragraph (e) is a final determination that the complaint of unauthorised deductions from pay under Part II Employment Rights Act 1996 fails.• Paragraph (f) is a final determination of the complaint in respect of holiday pay not paid at termination fails.[22]I consider there is no reasonable prospect of any of the identified individual judgments being varied or revoked on the basis of the Claimant’s application. The Application[23]The Claimant has made his application for reconsideration in 23 points, appearing under four headings. The material under the Claimant’s final heading (“Error of interpretation leading to injustice”) discretely relates to judgments (e) and (f) only.[24]The other headings are: “Late Withdrawal and Incomplete Witness Evidence” “Misinterpretation of facts” “Performance and Discriminatory Treatment”[25]I treat the material under these first three headings as the Claimant’s grounds to consider all of the other judgments, with the sole exception of the Claimant’s Point 1. That point is uniquely concerned with time limits and therefore reconsideration of judgments a(i) and c(i) only (as identified in paragraph 20 above). It is convenient to deal with that aspect in the final section of these Reasons. Ms Johnson not being called as a witness and no adverse inference having been drawn – Point 2[26]There are some matters of overarching relevance to this and the points the Claimant makes about Mr Cooper and Ms Taylor not giving evidence. The matters of principle are these. It is a decision for each party what witness evidence they wish to rely on. Whether they can rely upon their evidence depends usually on compliance with case management orders relating to prior exchange of a witness statement and the witness appearing at the hearing. This is subject always to any further order made by the Tribunal in exercise of its general case management powers, the overriding objective and the Tribunal’s unconstrained ability to receive relevant evidence whether or not it would be admissible before the Courts (rule 41(3)).[27]In terms of the arrangements in this case, under EJ Ainscough’s order of 4 August 2023 witness statements were to have been exchanged by 19 January 2024. This date was subsequently extended. A statement not so disclosed could not be relied upon (paragraphs 7.1 to 7.3 of Part Two of EJ Ainscough’s order at p.51 of the bundle refer). I return to Ms Johnson.[29]No witness statement was exchanged by the Respondent from Ms Johnson. The Claimant’s first point is that this was a late surprise and also unfair to him because he lost evidence that would have been adduced from cross-examining her.[30]There is no possibility of finding a procedural mishap - or other unfairness which might sound on an Article 6 basis - in any of that. There are three reasons. First, the Tribunal does not determine the witnesses from whom it hears, and no Claimant has any guaranteed opportunity to challenge the person they feel strongly is connected to their mistreatment. Second, it is speculation what material cross-examination would have yielded. If the Claimant is somehow certain that under oath Ms Johnson would have committed a complete or partial volte face in respect of the matters she has been amply documented as having said on the subject previously, then he could have sought a summons to compel Ms Johnson. He is not saying he wishes to do so now. Third, Ms Johnson’s absence, though unforeseen by him, did not prejudice the Claimant in any practical way. He must have appreciated from the time he received the Respondent’s witness statements that Ms Johnson would not be appearing, whatever surmise he had previously made. His preparation for the hearing would, or should reasonably, have been refocused accordingly.[31]The Claimant also argues that the proper inference was not drawn by the Tribunal about the Respondent not calling Ms Johnson. He says that the reason she was not called was because she would have been critical in supporting his testimony. To my mind, this is much more in the nature of an appeal point; the Tribunal expressly considered the inference issue and set this out in its Reasons at paragraphs 18 to 25 (at some length) and in paragraph 192. If I am wrong and this may be legitimately pursued through reconsideration, I cannot identify any basis upon which it could justify variation or revocation of any of the judgments.[32]We were referred by Ms Millin to the Court of Appeal decision in Royal Mail Group Ltd v Efobi [2019] EWCA 18, in support of the proposition that at Stage 1 the Tribunal should consider all of the evidence and not just the Claimant’s. We did this. That decision went on to be considered and upheld by the Supreme Court (Royal Mail Group Ltd v Efobi [2021] UKSC Ltd 33) when the correct approach to adverse inferences at stage 1 was also set out. I am satisfied our judgment reflected the approach noted by Lord Leggatt in paragraphs 40 and 41: “40. It does not follow [from the Court of Appeal decision in Igen Ltd v Wong at paras 21-22], however, that no adverse inference of any kind can ever be drawn at the first stage from the fact that the employer has failed to call the actual decisionmakers. It is quite possible that, in particular circumstances, one or more adverse inferences could properly be drawn from that fact.[41]The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules”.33. When reflecting on the likelihood of the judgment being varied or reversed on this ground too, it must also be kept in mind that the Claimant’s complaints did not fail because the two key identified areas of factual dispute between the Claimant and Ms Johnson (see paragraph 21 of our Reasons) were resolved in Ms Johnson’s favour. We found Ms Johnson made the disputed comment that the Claimant was on a fool’s errand. Our analysis was that this was not an act of harassment. On the second key factual dispute, the Claimant’s legal case as set out in the List of Issues (LOI) was not put that Ms Johnson solicited complaints in order to dismiss the Claimant because of his disability or because of behaviours arising from his disability. (Nor, it has to be said, did the Claimant lead any positive evidence of such a case, acknowledging in cross-examination that he could not say Ms Johnson made up the complaint from Ian Saxton, only that Ms Johnson may have exaggerated or solicited it.)34. The Claimant’s legal case as reflected in paragraphs 2.3 and 2.4 of the LOI was predicated upon the Respondent having actual, not sham, areas of concern about his work (the something he identified as arising in consequence of his disability) and him being dismissed because of those concerns. This is also what is reflected in the reasonable adjustments claim: “the Claimant struggled to cope at work which led to serious concerns being raised by the Respondent and the Claimant was ultimately dismissed” (LOI paragraph 3.33).35. As we indicate in paragraphs 206 and 207 of our Reasons though, if the Claimant’s case theory applied to the LOI really amounts to (substituting issue 2.3): “Did the Respondent manufacture areas of concern about the Claimant’s work in consequence of his disability?”, we think that is likely to be a different legal claim. Nevertheless, we judged it to be unsound on the evidence we received. We have also positively found the reasons of the decision maker – who was Ms Varnam and not Ms Johnson - were concerns that did not arise from the Claimant’s disability.36. Of equal significance to the inference question is that Ms Johnson was the alleged perpetrator in relation to the s.26 harassment allegation only. In relation to the s.15 discrimination complaint (where Ms Varnam was the decision maker) and the victimisation complaint (where Ms Glover and Ms Varnam were the decision makers) we made our factual findings having received direct evidence from those whose actions and mindset we were directly concerned with. It is difficult to see any impact Ms Johnson’s evidence would have on those claims and thus the materiality of the adverse inference that is urged. The reasonable adjustments claim connected to Ms Johnson in respect of PCP 3.2.2 (lack of one-to-one meetings) and 3.2.3 (not enquiring about the Claimant’s welfare). Neither of those complaints failed because (or exclusively because) the Tribunal found Ms Johnson’s account in the documentary evidence to be truthful on a particular matter and the Claimant not to be truthful. Paragraphs 58, 226, 230 of our Reasons reflect this. That even further diminishes the Claimant’s argument that the interests of justice require a variation or revocation on this basis. Mr Cooper – Point 337. The Claimant contends that Mr Cooper withdrew his offer to act as a witness providing supportive evidence on his behalf following “threats” made by the Respondent. The Claimant says in his application for reconsideration that Mr Cooper “should not have been approached”. He makes no argument as to why he should not have been approached.38. On the morning of the hearing the Tribunal was aware (as the Judge told the parties) of the matters I shall set out in paragraphs 38 to 40. 39. The Claimant applied on 10 February 2025 for a witness summons in respect of Mr Cooper’s attendance. The grounds were that Ms Cooper’s witness statement was central to the Claimant’s claim; that Mr Cooper had been threatened by the Respondent’s solicitors with legal consequences for providing his evidence; that Mr Cooper was now seriously concerned about appearing as a witness and an order was needed to provide Mr Cooper with legal security that he would not be liable for any action taken by the Respondent. 40. EJ Buzzard refused the application in directions given on 12 February, on the following grounds: 1. Nothing has been sent to the Employment Tribunal that confirms the witness in question is available to attend the hearing. Given it is due to commence on 17 February 2025, and in the absence of clear confirmation from the witness that they are available to attend, it is difficult to see how fair notice of the requirement to attend the hearing could now be given. 2. The claimant has not provided full details of the witness, including their address. 3. The claimant has not clearly identified the relevance of the witness concerned. Whilst the claimant has stated that the witness is important to his case, there appears to be no reference to a Mr Cooper in the claim form. In the agenda for the case management hearing the claimant indicated he wanted to call unnamed witnesses to evidence the impact of alleged discriminatory conduct. Such witnesses would usually only be relevant to issues of remedy, and not relevant to issues of liability. The claimant can raise concerns about witness intimidation at the outset of the final hearing. The claimant should ensure that he has with him evidence of the alleged intimidation if he intends to do so. 41. EJ Buzzard also directed that the request be forwarded to the Respondent’s solicitors for comment. That comment came from Ms Carr shortly after directions were sent in the following terms: In response to EJ Buzzard’s invitation to the respondent to comment on Mr Judge’s allegation of witness intimidation, we can confirm that the claimant’s witness in question, Mr Cooper, is a former employee of Tameside MBC who, at the conclusion of his employment, entered into settlement terms with the authority. Following the provision of Mr Cooper’s witness statement, we quite properly contacted him to advise him that in giving the evidence set out in his statement he would be in breach of the provisions of the settlement agreement, thereby giving our client a cause of action against him. These were matters of fact and could not in any way be described as any form of “intimidation”.[42]In the preliminary discussions at the very start of the final hearing Ms Millin expressed that it was very unfortunate that Mr Cooper was not giving evidence because he was very supportive of the Claimant. She made no criticism of the conduct of the Respondent’s solicitors, whether under the ET Procedure Rules or otherwise.[43]Ms Carr informed the Tribunal that Mr Cooper giving evidence would have been a breach of an agreement between Mr Cooper and the Respondent. In the week prior to the hearing the Respondent had now reached a further agreement with Mr Cooper (in which Mr Cooper was independently advised by a solicitor) by which he would not give his evidence.[44]Neither the Claimant nor the Respondent placed before the Tribunal any evidence about their respective communications with Mr Cooper about this matter, or copies of agreements or arrangements made with him. Mr Cooper’s witness statement was not seen by the Tribunal.[45]The Judge commented that the issue of the evidence which the Claimant wished to call remained a matter for him. If the Claimant sought to renew the application for a summons for Mr Cooper, the Claimant would need to show a material change of circumstance from that which maintained when the application was dealt with by EJ Buzzard. It appeared that Ms Carr would oppose the application. That judicial indication reflected the principles in Secro v Wells [2016] ICR 768 and the more recent case of Liverpool Heart and Chest Hospital NHS Foundation Trust [2022] EAT 9. The recognition that the application could be renewed was consistent with Tribunal’s power under rule 34(1) not being automatically ousted by the agreements of which we had been told: Paul, Weiss, Rifkind, Wharton & Garrisson LLP & Ors v Christie ([2019] UKEAT 0137 at paragraph 41.[46]In the event, the Claimant did not make a further application for a summons and no other submissions were received on the point.[47]Those circumstances, together with the important facts that the Claimant was(1) professionally represented at the hearing and(2) has not delineated the witness’s real importance to the issues on which the Claimant failed, mean Mr Cooper’s absence as a witness is a point that has no reasonable prospect of resulting in variation or revocation of any of the judgments. Ms Taylor – Point 4[48]I have considered this point alongside what the Claimant has said in point 6 of his application. The Claimant says that the Respondent indicated on the Friday before the case started on Monday that it would not be calling Ms Taylor as a witness. He references that he had frequent regular contact with Ms Taylor as department Wellbeing officer and she would have supported that he registered his concerns contrary to the conclusion reached by the Tribunal in paragraph 58 of its Reasons. That conclusion was: However, we find neither Ms Johnson nor the Respondent via any other route, were aware that virtual meetings presented a problem for the Claimant’s way of working or in reference to his disability of anxiety. What emerged from the Claimant’s cross-examination is that he found the online meetings were prone to interruptions and the way these were managed, he felt, were damaging to him. The Claimant is a clear and regular correspondent, however. We find he did not register any of these concerns.[49]The correspondence to which the Claimant has referred in his reconsideration application [pp.862 – 863 of the bundle] shows that in response to the Claimant’s request for disclosure of any notes and records of conversations that he had with Ms Taylor, she replied to the Respondent on 4 February 2025 in the following terms: “I can confirm that I had informal conversations with Clinton in my capacity as the Wellbeing Champion in the team and confirm I didn’t take any formal notes of those conversations. From what I recall, they were generally informal discussions around looking after mental health and ways of dealing with stress...”[50]That email was disclosed to the Claimant in the week prior to the start of the hearing.[51]I am unable to see any reasonable prospect of the Claimant establishing any of the judgments should be revised on this basis. There are three main reasons why this aspect of the application is so weak.[52]The amalgam of Ms Taylor’s email and the fact of her not being called by the Respondent is a long way from showing Ms Taylor would be a supportive witness on the specific finding challenged by the Claimant.[53]Further, if that was the Claimant’s own assessment, he knew in advance of the hearing that she was not being called and what her email said. He did not seek a summons or an adjournment to secure her attendance through cooperation. I return to the fact the Claimant had experienced legal representation by this stage. It is naturally impossible to know now what the outcome would have been upon either application being made. I am quite confident that account would have been taken of the Claimant being in anyway wrong-footed by misunderstanding that the Respondent can decide not to call any of its witnesses, at any time. As it was, in contrast to Ms Johnson, the Claimant did not even submit to us during the hearing that Ms Taylor’s absence should be the subject of an adverse inference.[54]The authorities are clear that the interests of justice strongly favour finality in litigation and refusing the relitigation of matters where a party has had a fair crack of the whip. Ms Taylor’s email is wholly equivocal. There is no reasonable prospect the Claimant will satisfy the Tribunal it would be in the interests of justice to vary or revoke any of the judgments on this basis.[55]The Claimant’s final point in this section (point 5) is really one of argument about weight given to the written evidence before the Tribunal of what Ms Johnson is recorded as having said or what she herself wrote (in the case of the management submission) throughout the various contemporaneous written materials before us. The Tribunal gave conscientious consideration to its evaluation of the facts which took into account that Ms Johnson did not give evidence, as well as the nature of the documentary evidence in which her position was rehearsed. Paragraphs 22 to 24 of our Reasons are particularly relevant. The Claimant has not challenged our analysis in any meaningful way or, more importantly, in a way that was not previously open to him. The Tribunal is profoundly unlikely therefore to conclude the interests of justice mean any of its judgments should be varied or revoked. “Misinterpretation of facts” - Points 6 to 8[56]The second sentence of point 6 is a clear challenge to the Tribunal’s conclusion at paragraph 213 of the judgment that there was no PCP of requiring the Claimant to work full-time. The Claimant accepted at the hearing (and accepts still) that he made the request for part-time working once, it was refused and he did not make a request again. He says this conclusion is “unfair” because the Respondent’s refusal was “firmly put”. However, this issue was considered by the Tribunal (i.e. whether the onedecision could operate as a de facto policy). We found “no evidence of a PCP that surveyors in the Claimant’s role and/ or at the Claimant’s grade would never be permitted part-time working; the option later given to the Claimant demonstrates that was not the case. We also reject that there was an express or implied embargo on the subject between those times which meant it was akin to a policy…. The thrust of his evidence was that it would be impolitic and illogical for him to go against a management decision again so soon after getting the job. That was a personal choice however, and we have not found he was actively deterred.”[57]The Claimant is in my view plainly seeking to reopen a point here that, after evidence and argument, we have already reflected upon fully and decided. In addition, this is only part of the reason why this aspect of the reasonable adjustments claim did not succeed. It also failed on the lack of substantial disadvantage and the Respondent’s knowledge of the same (paragraphs 215 to 218 of our Reasons).[58]In order for the Claimant to have any prospect of success in having the judgment on this aspect of the claim varied or revoked therefore, he would need to show it is in the interests of justice to revisit those conclusions too. His application discloses no grounds for that. His point 7 makes generalised points about the inadequacy of the leave purchase arrangement to meet the Claimant’s requirement to get recovery time. There is nothing new or different in that assertion to that which has already been argued, considered and adjudicated upon. The factual and legal efficacy of the leave purchase arrangement as a reasonable adjustment was extensively canvassed by both sides in evidence, in Tribunal Member questions and in argument. Paragraphs 216 and 217 of our Reasons refer. The greater reason, therefore, for there to be no reasonable prospect of this being redecided.[59]Point 8 is misconceived. The Claimant advanced no evidence, other than his own conjecture of exaggeration or solicitation, that Mr Saxton and Ms Todd did not genuinely complain about him to Ms Johnson. There was evidence supporting that their complaints were made (see paragraphs 67 and 72 of our Reasons). In those circumstances, the Tribunal is not debarred by the principles of evidence or natural justice from finding they were not solicited or contrived simply because the Respondent did not produce the complainants as witnesses. At the risk of repetition, it has to be remembered that the Claimant’s case was that concerns from his performance arose in consequence of his disability. That was the case the Respondent had to meet with its evidence; not the case that the Claimant appeared to veer into which was that Ms Johnson confected a basis/bases to get rid of him and that could only have been because of his disability precisely because his performance was not impaired and her actions cannot therefore be otherwise explained “Performance and discriminatory treatment” – Points 9 to 22[60]Respectfully, point 9 is a misreading of the Judgment. The Tribunal did not find poor performance per se; it finds that the Respondent genuinely and honestly considered the Claimant’s performance unsatisfactory; this was the reason why it did not continue his employment; that the areas in which it found the Claimant unsatisfactory did not arise in consequence of his disability nor were they an act of victimisation because of his grievance.[61]The claims pleaded did not require the Tribunal to make any substantive, independent evaluation of the Claimant’s competence as a surveyor. This was not on trial. There was no claim for wrongful dismissal. Nor was it a requirement in law (as it would have been if the Claimant had protection from unfair dismissal contrary to Part X ERA 1996) that to succeed in its defence the Respondent needed to satisfy the Tribunal that it had adequately warned the Claimant about his performance, had given the Claimant a chance to improve and that dismissal was within the range of reasonable responses. That was, essentially, a claimed reasonable adjustment (issue 3.5.3) but the Claimant had first to establish a duty to make the adjustment. He did not do so.[62]The Tribunal made this abundantly clear (paragraph 205(e) and paragraph 208 of our Reasons): Paragraph 205(e) In relation to Zetland Street it is quite clear to us that, to this day, the Claimant considers Ms Johnson’s assessment of his actions is completely misplaced and that there was justification and merit in what he was doing. In his view it would be sensitive, time-consuming and complex to relocate the existing services at Wilshaw House. He remains aggrieved that his professional expertise was impugned and resents that he was stopped in that process before a feasibility study was done. We consider his sense of injustice that he suffered criticism over his approach to this particular project has been a driver in these proceedings. However, the question of whether he or Ms Johnson is right as matter of asset strategy is not a matter for us to adjudicate on. It is only relevant to the Claimant’s pleaded case insofar as it was a concern that arose from his disability. The Claimant is plainly not making that direct relationship because he believes his judgment was not affected by any of his conditions. To put matters plainly, he is still certain that he was right. Paragraph 208 Ms Johnson articulated clear and cogent reasons why she thought Zetland Street was a non-starter to Alison Glover. These are objectively reasonable. These include that the site was self-evidently not suitable because of its size, limited car parking, lack of outside space which would not have met service requirements, being subject to a lease through a third party, and it would have meant splitting two areas of the service. We have already found the Claimant appreciated he was deviating from the established proposal whilst Ms Johnson was on leave. Putting all of this together, there is no sensible basis to infer that Ms Johnson criticised the Claimant other than on and for his performance which she did not value and provided reasoned justification for. The fact the Claimant was very hurt and does not agree is very difficult for him. We are sympathetic, but it is not relevant for this claim. [My emphasis][63]Following on from that, the Claimant’s points 10 to 17, 19 and 22 are also misconceived because they reassert and seek to persuade the Tribunal of his soundness in post and in respect of the concerns we have found were honestly held by the Respondent. They have no prospect of resulting in a variation or revocation of the judgments.[64]Points 18 and 20 make factual assertions and rehearse evidence about matters that we have found on the balance of probabilities and for which we have given reasons - paragraph 76 of our Reasons refers. The Claimant may not agree with them but that is not a basis upon which it would be in the interests of justice to revisit the conclusions reached when so much time, cost and effort on both sides and by the Tribunal have been already devoted to the determination of the matter. This is contrary to the interests of justice on its face. I cannot conceive there is a remote possibility the Tribunal would conclude otherwise.[65]Point 21 contends that the Respondent’s application of the probationary process when addressing capability issues does not “serve” the interests of justice. With respect, a generalised obligation for the Respondent to act justly was not a legal issue before us. It is also not a ground for an application under rule 70.[66]Finally on this section, in the context of urging a different approach to performance management, the Claimant has referred in a number of his points (12 & 21) to ACAS guides on the management of performance. He has not identified whether he is referring to the Code of Practice or the advice document “Supporting disabled people at work, Capability and Performance found here: https://www.acas.org.uk/supporting-disabledpeople/capability-and-performance-when-someone-is-disabled.[67]Irrespective, we were not referred to any specific part of the Code or the advice note by the Claimant’s Counsel during the hearing. There is no obvious reason why any relevant reference to those materials could not have been made. In any event, I am not satisfied that it is a point at all apt to change the outcome. The best the Claimant would be able to argue is that the alleged non-adherence is some indicator of a discriminatory motivation. We recorded in paragraph 178 of our Reasons what using the probationary process rather than an improvement plan signified to us. It did not cause the burden to shift. Moreover, we have made a positive factual finding that the concerns for which the Claimant was dismissed did not arise in consequence of his disability. “Error of Interpretation” - Point 23[68]In point 23 the Claimant quite fairly acknowledges that the point he makes about the proper construction of his employment contract may be a legal one. He is right. It is. It is also one for which he had a fair and full opportunity to make his case already. It is substantially a repetition of the argument made by Ms Millin and rehearsed at paragraph 245 of our Reasons. We rejected this for the reasons given in paragraphs 246 to 249. The Claimant has no reasonable prospect of persuading the Tribunal that it would be in the interests of justice for it to vary or revoke its judgment in this respect. It is wholly outwith the usual (albeit clearly non-exhaustive) case-types where the interests of justice require variation or revocation. Were there some different, relevant law on interpretation to which the Tribunal had not been referred or had omitted to have regard, and which could affect the conclusion, it may be different. The Claimant has not identified any. There is no procedural mishap. The Claimant’s proper avenue to challenge what he sees as our error is through an appeal. Time limits – Point 1[69]The Claimant identifies the following points of injustice and/or procedural irregularity: that he was not aware of time being an issue until the week before the hearing; that it was then added by the Respondent to the LOI and not by the Tribunal; and that EJ Ainscough should have determined the issue at or following the hearing before her.[70]The issue of time limits was not included in the LOI annexed to the order of EJ Ainscough of 31 July 2023. It appears from the Record of the case management hearing, that time limits were not discussed at all, perhaps because of an understandable focus on distilling the complaints and addressing jurisdiction in respect of the claim for ordinary unfair dismissal. I also note that the Respondent did not in the fourteen days following the hearing raise that the issue had been omitted, as required under paragraph 18 of the order [p.45 of the bundle]. On the other hand, the original grounds of resistance [p.25 of the bundle] expressly reserved the Respondent’s position on limitation and “whether the Claimant’s claims have been brought within the three months of the acts complained of”.[71]As a matter of law, it is fully open to the Tribunal to raise the question of time limits at a final hearing when they have not been picked up by any Judge or party sooner Radakovits v Abbey National plc 2010 IRLR 307, CA. It is right to note that although that case relates to the jurisdiction for unfair dismissal, the wording of s.123 Eq Act 2010 (as with s.111(2) ERA in reference to unfair dismissal) similarly provides that a Tribunal “shall not consider”. The point is that time limits are a matter of jurisdiction. The Tribunal cannot adjudicate upon claims for which there is no jurisdiction. Even where an employer accepts a claim is in time, this is not sufficient to confer justification (as per Radakovits at paragraph 17).[72]It is not, therefore, arguable that the procedural history (or the conduct of the Tribunal or of the Respondent) prevented the Tribunal reaching the decision it did. Accordingly, there is no reasonable prospect of variation or revocation of the time limit judgments on that basis.[73]That leaves open the Claimant’s other point about his late realisation of time limits being a matter before the Tribunal. Is there a reasonable prospect that what he says here will warrant variation or revocation? In my judgment, there is no such prospect.[74]In summary that is because: (i)there is nothing within the Claimant’s application and from what I know to suggest he was denied a fair and proper opportunity to present his case on time limits as a result of the late incorporation into the LOI and/or that there is now available some previously unconsidered evidence or argument which could materially bear upon the outcome and which it would be just to consider further; and (ii) even if the time limit judgments were to be varied or revoked, the interests of justice would not be served by variation or revocation of them because the other related judgments (i.e. (a)(ii) and (c)(ii)) provide that the underlying claims should fail in any event. For the reasons I have already given, there is no reasonable prospect of those underlying judgments being disturbed.[75]It is necessary to say something further about reason (i). Reason (ii) speaks for itself.[76]It is clearly unfortunate that time limits were not placed in the LOI sooner. However, it is equally plain that the Claimant had around a week’s notice that the Respondent was intending to raise a limitation defence at the hearing; the addition to the LOI would not otherwise be necessary.[77]For what part of that week and on what basis (if any) Ms Millin was instructed to advise, I do not know and rightly cannot comment. I am certainly prepared to assume for the purposes of this application that the Claimant was acting then entirely alone. I further assume in his favour, that it was likely to have been a busy and anxious period in which he was also pursuing an application for a witness summons. I take into account his established disabilities. However, the Claimant is an intelligent, professional man devoted to his case. He was not then otherwise employed. He is capable of undertaking legal research using online resources. The revised LOI highlighted what would be the questions for the Tribunal. I accept entirely that the complexities of calculating the provisional cut-off date (and therefore agreeing or not agreeing with the specific date identified) would be extremely challenging for a non-lawyer but the LOI highlights, crucially, that there is power to extend time in any event, if it is “just and equitable” [LOI paragraph 8.2.4.2]. That is a concept to which the Claimant could readily direct himself.[78]The Claimant also knew (or could have read and seen) that EJ Ainscough had not made any positive declaration that any of the complaints were brought in time. She had only excluded that he did not have sufficient service to bring a complaint of ordinary unfair dismissal. That is a separate jurisdictional issue.[79]The circumstances, overall, were far from an ambush.[80]A further significant opportunity for the Claimant on this matter arose on the morning of the first day of the hearing, by which time he was represented by Counsel. Before the Tribunal commenced its reading of the statements and bundles, it raised the LOI with the parties. Ms Carr outlined the changes to the LOI annexed to EJ Ainscough’s order, expressly referencing that time limits had been added.[81]If further time had been needed by the Claimant to take advice or determine his strategy on this matter (including whether, for example, to seek to adduce further evidence on the reasons for delay and/or obtain permission to supplement his witness statement), it could have been requested. The Claimant could have made the points he has made in point 1 of his application in support of such requests. No adjournment was requested and no submissions were made about the inclusion of the issue. The Claimant’s only request to change the LOI came in the course of closing submissions. That request did not touch on the question of time limits at all. The Tribunal took fully into account the submissions which Ms Millin made about time limits. It had regard to what the Claimant had said in his ET1.[82]I also note that within his application the Claimant does not say in terms either that he now disagrees with the identified provisional cut-off date of 10 November 2022 (which the Tribunal independently checked) or that he wishes to adduce further or different evidence on the question of an extension of time. He says that he does not consider it just and equitable to dismiss his claims on the basis of time. That assertion alone does not disclose a basis upon which it would be in the interests of justice to vary or revoke the conclusions reached.[83]With respect to the Claimant, this point of challenge therefore falls squarely into the category of trying to have another bite at the cherry. All the relevant authorities highlight this is a significant factor weighing against the grant of an application. The production of this judgment[84]The parties should note that the Claimant’s application for reconsideration was referred to her by Tribunal staff for the first time by email on Saturday 26 April. She was then on leave. She returned from leave on Tuesday 6 May. In the light of the internal delay, she aimed (and a message may have already been conveyed to the parties to this effect) to complete the review process required under r.70(2) by Tuesday 13 May. She experienced significant WIFI connectivity problems on Monday 12 May, the day she had put aside to undertake the task. Unfortunately, she was then working remotely from the Tribunal and this inhibited work on the electronic case papers. She apologies to the parties for any inconvenience caused.[85]I would only add further that the Claimant appears from the electronic system available to me to have sent correspondence to the ET for my attention on 23 April. I have seen his covering email of that date (timed at 17.05) and thus know it is concerned with an extension of time to appeal to the EAT. However, the enclosed letter has not been uploaded and has not been forwarded to me separately. I assume the letter does not add to the application of 1 April and saw no purpose in delaying this Judgment pending sight of it. I shall of course track it down and address anything further that may arise once I have digested its contents. Approved by Tribunal Judge Miller-Varey Acting as an