[1]The claimant was disabled by symptoms of long covid within the period March to July 2022.[2]The complaints of age discrimination and victimisation are dismissed on withdrawal by the claimant.[3]The Tribunal has no jurisdiction to consider complaints about matters occurring before 26 November 2022.[4]The remaining complaints of disability discrimination are not well founded and are dismissed.[5]The remedy hearing provisionally listed for 20 June 2025 is cancelled.
REASONS
[1]The claimant claimed disability discrimination. The claimant withdrew complaints of age discrimination and victimisation.[2]The list of complaints and issues had been largely, but not completely, agreed prior to the hearing.[3]The claimant had been acting in person prior to this hearing, other than at the second preliminary hearing, when he was represented by Mr Bronze. Mr Bronze also represented the claimant at this hearing.[4]The representatives were able to agree remaining points on the list of complaints and issues whilst the Tribunal was doing its reading. The agreed list is annexed to these reasons.[5]After the close of evidence and before closing submissions, the Tribunal gave the parties an opportunity to consider whether the respondent wished to concede any points or the claimant withdraw any complaints. They did not. However, during closing submissions, Mr Bronze agreed that the “something arising” in issue 14(a) was not relevant to any complaint of discrimination arising from disability and could be deleted.[6]The respondent conceded that the claimant was disabled by symptoms of long covid at relevant times other than in the period March to July 2022. The respondent averred that, during this period, the condition did not have a substantial effect on the claimant’s ability to carry out normal day to day activities and was not likely to recur. Timetable and reasonable adjustments[7]The respondent had suggested, in a timetable sent to the Tribunal shortly before the hearing, that the Tribunal should decide the remaining issue of disability before hearing evidence and deciding on other issues. However, the respondent’s representative acknowledged that this would not potentially dispose of all disability discrimination complaints. The claimant’s representative opposed dealing with matters this way. The Tribunal decided that we should hear evidence and submissions on all issues, including the outstanding issue in relation to disability, at the same time.[8]At the first preliminary hearing, the judge had agreed that the sitting days would be shorter than normal and that there would be a non-sitting day after the claimant had given evidence, as adjustments for the claimant. The hearing was conducted by video hearing as an adjustment for the claimant.[9]In accordance with the agreed adjustments, when sitting for a full day, the sessions were 10-12 and 1-3, with a 15 minute break during each of the sessions, with a few minor variations agreed with the claimant. The Thursday of the first week, after the claimant had given his own evidence, was a non-sitting day. Evidence finished early afternoon on Tuesday 11 February 2025. There was then an adjournment for the purposes of allowing the parties to consider whether there were any concessions or withdrawal of complaints to be made. After the parties confirmed that there were not, the hearing adjourned until the morning of Wednesday 12 February to allow the representatives to finish work on their written submissions.[10]Written submissions were read on the morning of Wednesday 12 February and oral submissions made. Mr Bronze’s submissions, responding to questions from the judge, and the respondent’s reply were completed after lunch on 12 February.[11]The remainder of 12 February and all of 13-14 February was spent by the Tribunal in deliberations. We had hoped to be able to deliver oral judgment and reasons on Friday 14 February but notified the parties on the afternoon of 13 February that we were not going to be able to do this and were reserving our decision. Application for a restricted reporting order/anonymity order[12]The claimant made an application at the start of the hearing that his name be anonymised. The respondent opposed this application. For reasons given orally, the Tribunal refused the application.[13]Following the Tribunal having reached a decision on the claimant’s claim, but before the judgment and reasons was sent to the parties, the claimant made a renewed application for a rule 49 order. The judge dealt with this case management matter, providing the parties with her decision and reasons in a case management order which, in accordance with normal practice, is not a public document. The judge delayed promulgation of this judgment and reasons on liability until she dealt with the application for a rule 49 order, having allowed time for the respondent to comment on the application. The second application was refused for reasons set out in that order.[14]Although written reasons had not been requested for the Tribunal’s refusal of the application for anonymisation made on 3 February 2025, the judge has included reasons for that decision in the case management order relating to the second application so that the decision on the second application could be better understood. Application to admit an expert medical report[15]On the Friday before this case began, the claimant had sent to the respondent on Monday 3 February 2025, a medical report he had commissioned. The respondent had not had prior notice that the claimant was intending to call expert evidence. The claimant had not made an application to the Tribunal for permission to call expert evidence. The respondent opposed the claimant’s application to admit the report in evidence. For reasons given orally, the Tribunal refused the application. We informed the parties that this decision did not preclude the claimant applying to have the report admitted in evidence in relation to remedy, if he was successful in all or any of his complaints and the case proceeded to a remedy hearing. If the parties wish to receive written reasons for the refusal of the application, they must request these, in writing, within 14 days of this judgment and reasons being sent to the parties.
Evidence
[16]There was an agreed hearing bundle of 770 pages and a supplementary bundle of 27 pages after the addition, at the application of the claimant and with the agreement of the respondent, of a GP record dated 24 October 2023 and an email from the claimant to Mark Bailey dated 29 October 2024.[17]The claimant and his partner, Leeanne Roxburgh, gave oral evidence for the claimant. Mark Bailey, Tracy Bean, Helen Keegan and Cathie Fillingham gave oral evidence for the respondent. There were witness statements for all these witnesses. In addition, the Tribunal read statements from Stuart Clark and Andrew Siddle, made on behalf of the claimant. These witnesses did not give oral evidence. The respondent agreed that the Tribunal could read these statements and give them such weight as was appropriate.[18]The claimant’s witness statement was 61 pages long, containing a very detailed account of events during the relevant period. The claimant informed us that he did not take any notes at the time so, apart from where there were contemporaneous documents (e.g. Teams’ messages), his account was based on his recollection. Given that the events were such a long time before his statement was written, and also given that the claimant says he was suffering from cognitive problems at the time, we do not consider that the account given can be regarded as reliable, where not supported by contemporaneous documents.
Summary
[19]The claimant began working for the respondent in September 2019. He was absent from work from July 2020 to March 2021 due to long covid. He returned to work on a phased return and worked variable hours but did not get back to full time hours before going on sick leave again in July 2022, after catching Covid again. He has been on sick leave since that time. He remained employed by the respondent at the time of this hearing.[20]There were discussions in late 2022/early 2023 about settlement terms under which the claimant would have left the respondent’s employment. These were not successful and the claimant continued in employment, albeit on sick leave. We heard evidence and saw contemporaneous documents relating to the settlement discussions.[21]The claimant brought a grievance in April 2023. This was partly upheld.[22]The claimant presented this claim on 7 May 2023, before the outcome of the grievance.[23]The complaints of disability discrimination include complaints about receiving a lower than average pay award in 2022, not being offered APMP training, alleged failure to investigate the claimant’s allegations of discrimination from December 2022 and pressure to keep increasing his working hours after his return to work in March 2021.
Facts
[24]The respondent is a UK based provider of infrastructure, defence, consulting and facilities management services to national and local government.[25]The claimant began work for the respondent on 16 September 2019 as a bid writer. Whenever a local authority puts a contract out to tender, companies like the respondent will pull together a tender document setting out why they should be awarded the contract. Bid writers collate relevant information and put it together into a bid document for the commercial teams.[26]The claimant had previous experience as a bid writer in the social housing sector. He has worked in the public and private sector as a writer, editor and proofreader. He is also a published author and screenwriter.[27]The claimant is acknowledged by the respondent to be a good writer, skilled at finding examples of previous projects they had worked on and writing up case studies for inclusion in tenders.[28]The claimant describes himself as an experienced wordsmith.[29]The claimant was initially employed within group functions along with other bid writers. Although the respondent is a large organisation employing thousands of employees, we accept that the respondent is a lean organisation in terms of certain functions. At the time of the 2022 pay award, the respondent was employing six bid writers.[30]In 2020 and 2021, the claimant received the same percentage pay rise as most employees. The claimant was initially employed on a salary of £46,000. Prior to the 2022 award, his salary was £47,623.80. He was the highest-paid bid writer. The next highest salary for a bid writer was £37,500.[31]In July 2020, the claimant went on sick leave with suspected Covid. At the time, there was no positive test but it was later thought likely that he had Covid and he was diagnosed with long covid. Prior to this sick leave, the claimant had worked full-time, five days a week.[32]During the claimant sick leave, the business devolved bid writing to the business units. However, whilst the claimant was on sick leave, and for some time after his return to work, the claimant was kept within the central group functions.[33]Mark Bailey, head of HR for group functions, had a series of remote welfare meetings with the claimant in March 2021.[34]The claimant returned to work on a phased return to work plan on 24 March 2021. He worked around 7.5 hours per week to start with. He had the freedom to work these hours over a number of days. He was able to work as much or as little as he was capable of. During this time, the claimant worked exclusively on case studies. He did not work on any bids.[35]Mark Bailey and other members of the respondent’s HR team obtained advice from time to time from Croners. We have seen summaries of the advice sought and received. A record dated 10 November 2021 refers to the claimant having long Covid on and off for around 10 months. It refers to the claimant being known to be a problem. We find that there was a perception among some managers, whether well founded or not, before the claimant’s absence, that he was a difficult employee to work with. There is a reference to him being “clever” and taking his last employer to employment tribunal. The claimant says this is not true and we have seen no evidence to this effect. Mark Bailey said that they had attempted to get the claimant moved but all the units had said no, they did not want him. He asked a question about whether they could make the claimant redundant. They received advice that redundancy would be contrived unless all staff were put at risk and the claimant could possibility have a disability discrimination claim. Croners advised that they could have a protected conversation with the claimant and see if he would accept a settlement. They advised to just move the claimant to a unit, not giving them the option of taking him but just moving him like everyone else was.[36]A record dated 6 December 2021 records Mark Bailey reporting that none of the business units wanted the claimant. The record asserts “he has thrown around multiple DDA claims.” It records that they had convinced a team to take the claimant on, that he has long Covid and is currently working one day per week. It recorded that he was only paid one day per week. They recorded that, when they moved him to the business unit, they would somehow have to increase him to 5 days per week working and performance manage him. The record states that the business was saying they could not sustain one day per week. Mark Bailey wrote that every discussion was an hour and that the claimant “wraps you up in long Covid, clinics etc”.[37]With effect from 4 January 2022, the claimant moved into the business unit Complex Facilities (previously called secure infrastructure, abbreviated in the HR notes to SI). He reported to Colm Fitzpatrick who was in his first management role.[38]The HR record for 5 January 2022 records that the claimant has a reputation as a difficult, vocal, hard to manage employee. We accept that this was Mark Bailey’s understanding from conversations with business unit managers when trying to place him in a business unit. The record recorded that they now needed to deal with the claimant. It noted that Complex Facilities had taken him on 4 January but he had dropped back to one day per week due to Covid symptoms in November and they may need him to increase his hours or address this through ill-health capacity. The next step was recorded as being a reference to occupational health. The record states that they needed to be robust in the questions about increasing his working days and timescales to return to full-time working. They question what he could do in view of one day per week not being sustainable for the business.[39]In the period January to July 2022, the claimant was not offered APMP training. Other writers were put on this training. We accept the evidence of Helen Keegan that normally, when someone is on a phased return, the respondent will not introduce new training or give the employee anything additional to do what they were doing before the absence. Colm Fitzpatrick did not discuss with the claimant at the time why he was not being put on APMP training. We accept that the reasons for this were as explained by Colm Fitzpatrick in December 2022 to Tracey Bean. This is that the APMP certification takes time to revise and do practice exams within a one-year deadline. On the claimant’s return to work, Colm Fitzpatrick thought it did not make sense to sign the claimant up for this training as it would only have put more pressure on him given the deadlines. The focus was on getting him to be fit for work again with future development opportunities once he was working full-time.[40]In early 2022, the business announced a 4.21% pay increase. The general announcement we have seen does not qualify this for employees in band B, which was the band applying to the claimant.[41]By a letter dated 14 April 2022, the claimant discovered that he was receiving a lower pay increase than that given to most employees. This was a 1.25 percentage increase. The letter from the CEO did not explain why he was not getting a 4.21% pay increase.[42]We have seen some documents which we accept as contemporaneous documents relating to the 2022 pay exercise. These show the salaries of all the bid writers. As previously stated, the claimant was the highest paid bid writer by more than £10,000. Within Complex Facilities, there were three bid writers, including the manager Colm Fitzpatrick. The claimant was higher paid than Colm Fitzpatrick and the other bid writer. The other bid writer, Morgan, is female and was on a salary of £28,000. There is also a document which shows average salaries for bid writers within the respondent organisation and outside the organisation. The average salary in the upper quartile for bid writers with the respondent was £40,000. The average salary in the upper quartile for bid writers external to the organisation was £43,197. The claimant was, therefore, being paid above the average for the upper quartile both within and outside the respondent organisation.[43]In its original response to the claim and the amended response, the respondent referred to the claimant not being a frontline employee. We find this was of no relevance to the pay awards since none of the bid writers were frontline employees and other bid writers were given higher pay increases. Both the original and amended responses refer to the claimant being in receipt of a higher salary than other employees carrying out the same work and to the need to reduce the disparity as being a reason for implementing a 1.25% increase to the claimant’s pay. We consider that the documents we have seen are consistent with the respondent’s explanation that they were seeking to address the disparity by giving the claimant a lower pay rise. We accept the evidence of Tracey Bean that the respondent does seek to address pay disparities on occasions, particularly bearing in mind the possibility of having to justify differences in pay between men and women.[44]The document setting out pay, including proposed increases to pay, for the bid writers in complex facilities, included for the claimant in the business notes section the following: “current salary data and absence”. Tracey Bean and Paul Lewis, Colm Fitzpatrick’s manager, considered the internal and external salary data and made recommendations for the pay increases for bid writers in complex facilities. Paul Lewis, who no longer works for the company, did not give evidence. Tracy Bean gave evidence but was unable to recall or explain why a note was made about absence if this was not part of the reason for the percentage increase awarded to the claimant. Tracy Bean suggested that it could be to explain why the claimant did not get a nought percent increase but was unable to explain in a way we could understand why this would be something she had to justify and how the note assisted with this.[45]The claimant asked Colm Fitzpatrick on a number of occasions why he did not get a higher increase. The first time Colm Fitzpatrick said this was a matter for HR. When the claimant returned to him, having been told by someone else that it was a matter his line manager should address, Colm Fitzpatrick said he would look into it. No explanation was provided to the claimant until June 2022. On or around 20 June 2022, Colm told the claimant that the lower pay increase was because they had to level pay somehow. He said something along the lines that it was a levelling exercise and the claimant was paid more than everyone else. The claimant did not accept this explanation and wanted to know how an unequivocal pay rise could be withdrawn. Colm agreed to look into this again.[46]On 4 March 2022, the claimant sent an email to Colm Fitzpatrick saying that he had not felt “at the races” that day after a busy week and more exercise but saying there were positive signs at last. He asked to record 11.25 hours with two hours to carry over for the next week.[47]An occupational health report dated 17 March 2022 was obtained. This recommended that the long phased return to work programme continued and that the claimant should build up his hours according to his ability. It suggested trying to increase the claimant’s work hours by half a day every 2 to 3 weeks with the aim of increasing to 3.5 days per week within the next two months. The adviser wrote that the claimant would benefit from continued flexibility in his working hours to support his phased return to work plan as well as regular one-to-one meetings with his line manager for support and to ensure that he was coping with his workload and not being overwhelmed. The adviser wrote that he was likely to be covered by the Equality Act. They anticipated a full recovery in due course. They wrote that it was hard to give a timescale as to when he would make a full recovery and it was not likely he would be back to full time hours (37.5) within two months. The report made no recommendations about hours to be worked after the next couple of months. The adviser wrote that they had no planned follow-up with the claimant but were happy to reassess him.[48]On 28 March 2022, the claimant emailed Colm Fitzpatrick, writing that, as he got to three-day weeks, he could probably support bids in some capacity.[49]On 22 April 2022, the claimant wrote to Colm Fitzpatrick. He wrote that he was looking forward to supporting some of the bids. He wrote that he was hoping to do a consistent three day week soon and could then build to 3.5 days. He wrote “I know I am not hundred percent but I can still add value and take the strain off where we are stretched.” The claimant did not write that he could do writing but not collating material. He wrote that he had intended to do 18.75 hours a week but would fall short. He asked Colm Fitzpatrick to record his hours as 15 plus the bank holiday. He wrote that he should achieve three days the following week using two saved hours.[50]On 26 April 2022, the claimant wrote to Colm Fitzpatrick that he was “struggling slightly this week but making nice progress on a couple of case studies cheers and just going to pace myself”.[51]On 28 April 2022, the claimant met with Mark Bailey and Colm Fitzpatrick to discuss the occupational health report. They talked through a plan of phased return to work. Mark Bailey told the claimant to take it easy. The claimant expressed concern about when he got to 3.5 days per week and that it may take him longer. Mark Bailey said he was keen to stick to the plan. Mark Bailey said that he could pick this up with Colm Fitzpatrick at their regular one-to-ones. The claimant said he was hoping by July he would be back to normal. The claimant also mentioned to Mark Bailey that he had received a lower pay rise than he was expecting.[52]On the same day, after the meeting, Mark Bailey sent the claimant a copy of the phased return to work plan which he wrote was discussed and agreed with the claimant at the meeting. This started with 18.75 hours for the week commencing 25 April with an increase to full-time hours (37.5 hours) by the week commencing 11 July 2022. The plan included the claimant working for three weeks at 3.5 days per week in the weeks commencing 16, 23 and 30 May. There followed 2 weeks at 30 hours per week and then 3 weeks at 33.75 hours before increasing to full time hours. The plan up to 3.5 days per week was in line with the occupational health adviser’s suggestions. The report had not made suggestions as to the position once the claimant achieved 3.5 days per week.[53]Also on 28 April 2022, the claimant sent a message that he was on track to do three days that week. This was more than the phased return required. The plan for that week was 18.75 hours. 3 days was 22.5 hours.[54]The respondent’s practice when employees are on a phased return to work is to pay the employee only for hours worked. Some employees use time off in lieu which they have accrued (TOIL) or holiday to increase the amount they would otherwise be paid.[55]The agreed plan was sent to payroll so they knew how much to pay the claimant for each week. If there were any changes to the hours to be worked, payroll needed to be notified in good time, otherwise the claimant would receive the wrong pay for that week and, if overpaid, a deduction would have to be made in a later week.[56]The claimant managed his own start and finish times during the phased return to work.[57]On 29 April 2022, the claimant sent a message to Colm Fitzpatrick that he was “drained today but glad to have managed 22.5 hours and the resilience will come.”[58]We accept the evidence of the claimant that, on a call with Colm Fitzpatrick on 3 May 2022, the claimant raised the matter of APMP training, having noticed others in the team doing this. Colm said it would be better for the claimant to recover further first and get back to doing full bid writing. The claimant writes in his witness statement that this made sense and the chat quickly moved on. From his witness statement, it appears the claimant formed a belief at a later stage that he was being discriminated against by not being offered the training. The claimant did not raise the training issue again with Colm Fitzpatrick. The claimant said in evidence that he would not have been fit enough to do the training in January 2022.[59]On 6 May 2022, the claimant message to say that he had managed a good week and would only need four more hours to complete 22.5 hours, which was in accordance with the plan.[60]On 16 May 2022, Colm rang the claimant and said he was starting the claimant on a bid. The claimant was required to attend a bid kick-off meeting on 18 May. We accept the claimant’s evidence that he had previously told Colm that, when he returned to bids, he should only do tailoring pre-collated content into bid responses i.e. writing. The claimant tried to raise concerns about his ability to do work on the bid and Colm said it was a small the bid and some of the collation had already been done.[61]On 18 May 2022, the claimant sent a message to Colm checking whether to continue with work on the document or to attend a call at 2 pm. He wrote “it’s a little overwhelming but I’ll do what you prefer”. Colm rang him in response to this. The claimant attended the bid meeting. After the meeting, the claimant messaged Emma Oliver, writing that he had not expected to be on bids yet so it was only tentative steps but it would be lovely working with her again. She replied, saying it was not the biggest bid and hopefully would not be too much work for him.[62]Later that day the claimant messaged Colm again to say he was logging off and wrote “really tired today but steadily building that document.” He referred to having a good introduction from Emily and that it was “good for me to get involved”.[63]On 20 May 2022, the claimant messaged Colm writing: “the change of pace this week has been hard but I will have completed 26.25 hours (3.5 days). I’ll manage it and keep you posted particularly as we approach Tuesday. I am fine on the writing side but just finding the other aspects slightly overwhelming.” He wrote that he had not booked a train for a meeting because it worked better with his condition to drive. He wrote “I am hoping I’ll be strong enough to do the day without staying over one night.” Colm replied: “if you are finding it too difficult at times you need to take a break and not overdo it.”[64]On 24 May 2022, the claimant messaged Colm: “managed to get through that first storyboard session. Pretty tired now but a nice milestone.”[65]On 27 May 2022, the claimant messaged that he would complete 27.25 hours, 3.5 days “and an hour in the bank (now 4)”. The plan for that week had been to work 26.25 hours, so the claimant had worked one more hour than set out in the plan.[66]The claimant agreed in evidence that he never told Colm expressly that he was not able to manage the phased return. We find that he never requested a permanent change to his hours. We find that he did not ask to change the plan to remain longer on any particular number of hours per week.[67]On 8 June 2022, the claimant messaged that he was “shattered now so logging off”. The claimant said he would “jump on for an hour in the morning to try and chip another page or so”. Colm replied, saying there was no need to pop on the next morning and to take his full day that day and he would see the claimant on Friday.[68]On 15 June 2022, the claimant messaged Colm, writing that he had a call for a long Covid clinical assessment the following Monday afternoon. This was a physical assessment and he would probably only be able to work until 12.30 with maybe an hour when he got back. He wrote that he now had three long Covid appointments for that week but the other two appointments were remote “so shouldn’t impact those days too much”. Colm replied to say that was fine. The claimant did not ask that the plan for his working hours that week should be altered to reduce his hours.[69]On 20 June 2022, Colm rang the claimant and expressed concern that the claimant was not going to get his hours in that week with all the appointments. The claimant has not satisfied us that Colm said anything else which either required the claimant to work the scheduled hours or to say he could not attend the appointments. The earliest written account relating to the claimant’s assertion that he was required to work back time for medical appointments is in the addendum to the occupational health report which the claimant wrote on 30 November 2022. The claimant wrote in the addendum that his manager” “made me feel I had no choice but to work longer hours”.[70]On 24 June 2022, the claimant messaged Colm to say he had worked 27.75 hours. He asked to top this up to 30 with some of the TOIL. Colm initially replied to say he would log this. He then messaged again to say that, looking at the phased return to work plan, 20 to 24 June was supposed to be 33.75 hours. He wrote that he would deduct another 3.75 hours, ending “does that make sense?”. The claimant replied yes, he had the TOIL to deduct a further 3.75, so please do that.[71]Since payroll were expecting to pay the claimant in line with the phased return to work plan, the claimant would be paid for 33.75 hours that week. If the claimant had not topped up his actual working hours with TOIL, he would have received an overpayment which would have needed to be clawed back later. The claimant could have asked for this to be done instead of using TOIL to make up the hours for which he was paid.[72]On 1 July 2022, the claimant wrote to Colm that “I’ll have scraped 33.75 this week but it has been a struggle and that includes the remaining 1.25 hours I had.” We understand from that that the claimant had actually worked 32.5 hours and used his remaining 1.25 hours TOIL to make the hours up to 33.75. The phased return to work plan for that week was for 33.75 hours.[73]In accordance with the phased return to work plan, the claimant would have been on 33.75 hours per week for the week commencing 4 July 2022, increasing to full-time hours of 37.5 hours per week from the week commencing 11 July 2022. The claimant did not return to full time working.[74]The claimant began a further period of sick leave at the beginning of July 2022 and was still on sick leave at the time of this hearing. The claimant caught Covid again and then remained on sick leave with long Covid.[75]The HR advice record for 5 July 2022 records that the claimant was due to return back to full-time working but had gone off sick again. The advice was to move forward with an occupational health report. The record states that they would ask for the same OH adviser “as their report was quite robust last time”.[76]On 7 July 2022, Mark Bailey had a welfare call with the claimant. They agreed to arrange another occupational health appointment. Mark Bailey recorded in his notes that the claimant was “really struggling - feels rough”. The claimant told Mark Bailey that he had nearly been back to full-time work but told him he was struggling with this and may need another month to ease up from four days to 5 days. The claimant mentioned going to medical appointments and how this was difficult with work. The claimant also mentioned that he was playing tennis at the weekend.[77]The respondent made an occupational health referral. The claimant had an appointment in August 2022. The claimant refused to consent to release that report due to complaints he had about the way that the appointment was conducted, including the adviser allegedly taking multiple telephone calls during the appointment.[78]The claimant had a further occupational health appointment, with a different adviser, by telephone on 27 October 2022. The claimant spoke about an issue with training, the pay rise, not having regular check ins with management and feeling pushed to work more hours than he was capable of.[79]In HR notes dated 21 November 2022, it is recorded that the directors are “chomping at the bit” and want to let the claimant go.[80]The occupational health report was released and received by the respondent in early December 2022, after the claimant and then the occupational health advisor had added addendums. The claimant’s addendum included reference to the pay rise and APMP training, and telling his manager he was struggling with the hours and the phased return to work plan. He did not write that he had asked to amend the plan. He wrote about a week of medical appointments and making up time with TOIL and being put back on all aspects of bid writing.[81]The occupational health report said that the claimant was not fit for work. It referred to barriers to the claimant’s return being his ongoing symptoms and functional capacity this caused him. The adviser also recorded that management would need to speak to the claimant about perceived issues at work and resolve the unresolved managerial issues. The adviser wrote that the claimant was fit to attend meetings if required but suggested adjustments such as allowing the claimant to have someone with him to provide him with support, offering to conduct any meetings remotely or in a mutual location and allocate time for breaks if required.[82]HR advice on 8 December 2022 recorded that they needed to move forward as this was causing massive commercial problems for them.[83]The HR record for 9 December 2022 records that the claimant should be invited to a meeting to discuss the medical report. The advice was that concerns should be heard under the grievance procedure and that, if the claimant did not want to raise a grievance, they may need to take this out of his hands, referring to a duty of care and serious issues being raised which needed to be addressed.[84]On 13 December 2022, Tracey Bean spoke to Colm about the claimant’s complaints recorded in the addendum. Colm said that the APMP certification takes time to revise and do practice exams, all within a one-year deadline. He said that, as the claimant was not fit to work during a lot of that year and was working inconsistent hours, it did not make sense to sign him up for it and would only have put more pressure on him given the deadline. He said their focus was on getting him fit for work again with future development opportunities once he was working full-time. In relation to the pay rise, Colm said that the decision had been made by Paul. Colm said that he had asked Sandy to ask Paul for the rationale for the disparity and had to wait a while for the answer. He and Mark Bailey had also had a call with the claimant about his return to work where the claimant raised the issue of the pay rise and Mark said that he would follow this up. Mark had a phone call and then told Colm that the reason for the decreased pay rise was because there was a disparity between bid writers pay across the business and, given that the claimant was being paid significantly more, this decreased pay rise was a levelling issue. Colm said he then communicated this to the claimant in a telephone call. In relation to the claimant saying he did not have regular check ins with management, Colm said that, in addition to regular meetings of their small bid writing team, he had unscheduled calls with the claimant throughout his phased plan to work to check how he was doing. Colm said these were unscheduled because the claimant could choose when he wanted to work so Colm could only call when the claimant was online and feeling fit. He said they also had correspondences over Teams where they discussed the plan and, when the claimant voiced concerns, Colm was there to support him. In relation to the week in which the claimant had three appointments, Colm referred to their Teams correspondence. He said that the claimant did not request any change to his hours but, if he had done so, they could have discussed this with Mark or other relevant HR channels. Colm said “otherwise, I was simply following procedure by supporting David and being patient and flexible through his already planned out and agreed phased return to work as directed by HR.”[85]On 14 December 2022, the claimant had a call with Mark Bailey. Mark Bailey’s notes record that the claimant had “super flu” and was really struggling and felt worse than he did the previous month. Mark Bailey asked the claimant to come into the office for a meeting. We find that the claimant did not ask for the meeting to be in the New Year or to be held virtually. There is nothing in Mark Bailey’s contemporaneous notes about this and no emails or messages from the claimant about this. We accept Mark Bailey’s evidence that, if the claimant had asked for the meeting to be a virtual meeting, he would have agreed to this. This would have been consistent with how the respondent’s managers had dealt with the claimant previously. All previous welfare meetings had been virtual. This was the first meeting where the claimant had been asked to attend in person. We accept Mark Bailey’s evidence that he considered meetings like this to be better conducted in person and was keen to meet the claimant in person for the first time.[86]On 19 December 2022, Mark Bailey got HR advice about discussing settlement with the claimant.[87]We accept Mark Bailey’s evidence that the respondent sometimes has settlement discussions during welfare meetings, depending on the circumstances.[88]On the day of the planned meeting, 19 December 2022, the claimant emailed Mark Bailey, writing that he was struggling with his symptoms that day “but I appreciate you stressed the importance of catching up this week so come along later and I’m looking forward to meeting you.” The claimant made no request to convert the meeting to a virtual meeting or to postpone it.[89]The meeting took place with the claimant and Mark Bailey in person in an office and with Tracy Bean attending remotely to take notes. The claimant said at the start of the meeting that the journey had exhausted him. They discussed the occupational health report. The claimant said he felt the decisions about pay and training were made because of his ill-health. The claimant said there were two aspects about pay: not getting the pay rise and not been told about it. He said the training was not as serious but he was not treated the same way as everyone else and Colm did not discuss this. The claimant said he had not been given answers about the pay review and training questions. This was not correct in that Colm had given the claimant an explanation about the pay review although the claimant did not accept this explanation. Mark Bailey asked the claimant if he wanted to raise grievance. The notes record the claimant as saying “not really”. We consider it more likely that the notes are accurate than the claimant’s recollection of events so long after the event, which was that he said “not at this time”. We find, as recorded in the notes, that the claimant said he did not want to raise a grievance unless he had to. Mark Bailey said to him that they had a duty of care so he would need to look into the points the claimant had raised. All this discussion took place before the possibility of settlement discussions was raised.[90]Towards the end of the meeting, Mark Bailey asked the claimant if he wanted to have a without prejudice conversation. The claimant agreed to do this so, after a break, Mark Bailey and the claimant had a discussion about possible settlement terms under which the claimant would leave the respondent’s employment. Tracy Bean left the call before this conversation and no notes were taken of the without prejudice part of the conversation. The claimant indicated that he was looking for about six months’ salary. At the end of the meeting, the claimant wanted to give Mark Bailey a hug.[91]This was the first meeting at which there was a settlement discussion. There had been no such discussion in previous welfare meetings with the claimant.[92]We accept the evidence of Tracy Bean that she did not send the claimant notes of this meeting since she understood that the claimant would be leaving the business.[93]We also accept the evidence of Mark Bailey that he did not look into the claimant’s concerns following the meeting because of the settlement negotiations.[94]On 26 January 2023, Mark Bailey sent the claimant a proposed detailed settlement agreement. This included payment of notice pay of around £8700 plus compensation of around £12,800. The agreement included an extensive definition of employment legislation and agreement that the payment would be in settlement of such claims including disability discrimination and that the claimant would not present any such complaint to an employment tribunal or court.[95]The claimant instructed a solicitor and there were some contact between the respondent and the claimant’s solicitor until negotiations broke down.[96]Whilst negotiations were still in progress, on 25 February 2023, the claimant began early conciliation with ACAS.[97]The claimant solicitor made a counter offer on 9 March 2023. This was rejected by the respondent on 20 March 2023 but they said that the original offer remained open until close of business on 24 March.[98]On 24 March 2023, the claimant’s solicitor confirmed that the offer from the respondent was unacceptable and informed the respondent that the claimant would present a grievance.[99]The claimant said in evidence that he did not get advice from his solicitors about bringing an employment tribunal claim. We find this implausible, given the draft settlement agreement provided to the claimant and the fact that the claimant must have had some understanding about what he was negotiating to settle. We find he must have understood that he had been negotiating to settle claims which included the possibility of an employment tribunal claim.[100]The claimant was aware, from around summer 2022, due to something he saw in the news, that it was possible for someone with long Covid to bring a disability discrimination complaint.[101]On 13 April 2023, the respondent received HR advice to organise a grievance hearing as soon as possible.[102]The claimant presented his grievance on 14 April 2023. The issues raised in the grievance included the pay award and what the claimant alleged to be deceit over this. He alleged it was because of his long-term health condition. He alleged that there was a failure to follow occupational health advice. He asserted that he had told Colm he was struggling and overwhelmed but Colm took no action to support him. He wrote that Colm had put him on all aspects of bid writing despite having asked to focus initially on tailoring pre-collated content. He asserted that Colm pressured him to work back time spent on medical appointments in the week 20 to 24 June 2022. He wrote that he had been denied APMP training. He asserted that he was singled out because of his long-term health condition. He alleged this was victimisation aimed at making him leave. He asserted that he was now an inconvenience as an older bid writer with a long-term health condition.[103]We have seen the respondent’s grievance procedure. Relevant parts of this include a statement that “minutes of meetings will be taken, which the employee will have the opportunity to see and make comment on following the meeting.” Evidence for the respondent has been that HR advice from Croners was not to send minutes unless requested. We accept that Helen Keegan and Cathie Fillingham understood this to be the advice they had been given by Croners but consider that this advice goes against the natural reading of the policy. We consider that the policy requires minutes to be supplied to the employee before a decision is made, without the need for a request from the employee.[104]The section of the policy dealing with appeals sets out that grounds for appeal may be one or more of the following: the procedure was not properly followed; and/or that new information has become available. This suggests to us that appeals are by way of review rather than making the decision afresh.[105]We find that the respondent’s policy as to who employees can be accompanied by at meetings is in line with the statutory right that employees can be accompanied by a trade union representative or work colleague. The claimant was informed of this right in the invitation to the grievance hearing and then the appeal hearing. However, as illustrated by Helen Keegan’s agreement that the claimant could bring his partner to the grievance hearing, the respondent will make exceptions in some cases to the general policy.[106]The claimant was invited to a grievance hearing. The claimant requested, and Helen Keegan agreed, that he could bring his partners to support him in that meeting. The claimant asked, if he did not feel able to visit the office for the meeting, that it be held remotely. Helen Keegan agreed.[107]The grievance hearing took place on 2 May 2023. It was conducted by video conference by Helen Keegan. Although the claimant had been given permission to bring his partner, he did not do so and said it was fine for him to proceed alone. He said he was at home so it was fine for him not to have his partner with him. In relation to the pay issue, the claimant said that if they had received an explanation in the first place that they wanted to uplift the bid writers to the same salary near enough and he did not get as high an uplift, he would have grumbled but would have had an explanation. He said that the employment tribunal would make Amey pay the uplift and back date this and the best solution would be to give him what he had asked for.[108]The claimant said he had told Colm he was struggling. When he was asked if he had escalated matters to senior managers, he said he had not. Helen Keegan asked the claimant detailed questions relating to his grievance and asked him to send the emails he referred to. She said she was on leave in May but would aim for an outcome at the end of May or beginning of June. The claimant said that was fine.[109]Contrary to what we consider to be the natural reading of the respondent’s own policy, minutes of the grievance hearing were not sent to the claimant. As previously noted, we accept that this was in accordance with what Helen Keegan understood to be advice given by Croners.[110]On 7 May 2023, before the outcome of the grievance, the claimant presented his claim to the tribunal. The claimant said in evidence that he could not have presented his claim earlier due to his health and trying to manage the settlement process.[111]On 10 May 2023, the claimant sent copies of various emails to Helen Keegan.[112]On 31 May 2023, Helen Keegan spoke to Colm about the pay award, the alleged failure to provide support, following occupational health advice and training. Colm gave the same information to Helen Keegan as he had previously given to Tracy Bean.[113]On 14 June 2023, Helen Keegan emailed the claimant with the progress report. She apologised for the delay. She wrote that she had had to have some time off from work and this had slowed things down. We accept Helen Keegan’s evidence that she had had unplanned time off as well as the planned leave, although this was not made clear in her letter. The claimant replied on 16 June, thanking her for her update and writing that he understood that there was a lot to look into.[114]On 26 June 2023, Helen Keegan sent the grievance outcome to the claimant. She did not use the word “discrimination” in the outcome letter. She partly upheld the pay award complaint and the training complaint, concluding that there should have been better communication about the pay rise and training. In relation to the pay award, she said the reason for the lower pay award was a levelling exercise due to the disparity in pay between bid writers. Although she did not use the words “no discrimination”, we consider it implicit from this conclusion that she was finding that the pay award was not due to the claimant’s disability. In relation to the training issue, she wrote that he had not raised this with his line manager. She wrote that she understood he was not put forward for the training to ease and support his return to work, the course had a deadline and would have required additional outputs from the claimant while he was already completing a phased return. She did not believe he was denied training and believed the manager acted with the claimant’s best interests in mind. She recommended that the claimant be enrolled on the course at his earliest convenience once he was fit and well for work. She did not uphold the complaint about failing to provide support following occupational health advice. She wrote that she had seen no evidence to suggest that necessary support was not provided. The issue was not discussed with the claimant’s line manager and this may have led to a misunderstanding about how much support was required.[115]On 30 June 2023, the claimant appealed against the outcome of the grievance. The claimant asked for extra time to provide his details of appeal and this request was granted.[116]Cathy Fillingham was appointed to deal with the appeal. She copied Mark Bailey in on the correspondence from the claimant.[117]On 11 July 2023, the claimant sent in his grounds of appeal. He described the outcome as “a deeply flawed report that fails to refer once to discrimination”. He questioned why, if there was a genuine reason for denying the full pay rise, this was not immediately conveyed to him. He questioned why Colm Fitzpatrick did not revise the phased schedule even when the claimant used twice the “red flag” word “overwhelmed”. Cathy Fillingham forwarded this email to Mark Bailey with a comment which she accepts now was ill judged of “a bit of light reading for you” accompanied by a smiling face emoji.[118]The claimant was invited to an appeal hearing. We find that no request was made prior to the appeal hearing by the claimant to be accompanied by his partner. The respondent did not proactively offer this. The invitation letter was in the respondent’s standard form, referring to the right to be accompanied by a trade union representative or work colleague. We accept Cathy Fillingham’s evidence that, had the claimant asked to be accompanied by his partner, this would have been agreed, as it had been agreed by Helen Keegan for the grievance hearing. We find that the claimant had no reason to believe that, if he made a request to be accompanied by his partner, this would be denied. The claimant gave evidence that he did not make the request because it slipped his mind.[119]The appeal hearing was held on 15 August 2023 by video conference. Cathy Fillingham began the meeting by saying that she would review the outcomes in line with the initial allegations and investigations in accordance with the grievance policy. As is consistent with the respondent’s policy, Cathy Fillingham was not looking at things afresh.[120]Minutes were taken of the meeting and sent to Cathy Fillingham on the afternoon of the meeting. Cathy Fillingham accepts that they lack some detail but she took no steps to change them. In accordance with what she understood to be advice from Croners, but contrary to what we consider the respondent’s policy requires, she did not send the minutes to the claimant.[121]We find that the claimant did not say at the appeal hearing that he would have liked his partner to attend. The claimant’s witness statement does not assert that he said this. In oral evidence, the claimant asserted that he said that he would have liked to be accompanied by his partner but they had not given him that option. The claimant has not satisfied us that he mentioned this possibility. There is no record of this in the notes and we do not consider that the claimant’s recollection on this point in oral evidence, so long after the relevant events, is reliable.[122]The meeting lasted for just over one hour. Cathy Fillingham asked the claimant questions and the claimant had an opportunity to say what he wanted to say.[123]On 20 August 2023, the claimant sent a further email to Cathy Fillingham reiterating his reasons for appeal. This includes the point that there was no mention of disability discrimination in the grievance outcome, which he said was one of the most important aspects of his grievance.[124]On 24 August 2023, Cathy Fillingham sent the claimant the grievance outcome. She structured this by responding to the 15 numbered points in the claimant’s email of 20 August 2023. Her responses include that she did not believe that there had been any discrimination displayed. Further evidence relevant to the disability issue[125]We accept the evidence of the claimant in his disability impact statement as to the impact of long Covid symptoms on his ability to carry out normal day-to-day activities in the period March to July 2022. This included that, in April 2022, the claimant was averaging over 12 hours per day in bed and only having enough energy to leave the house two or three times per week. He declined social occasions because he lacked the energy to attend these. By the middle of May 2022, the claimant spent virtually no time on activities other than work, due to lack of energy. He could not face going to the shops.[126]We also accept the evidence given on the claimant’s behalf by his partner and Mr Clark and Mr Siddle in relation to the impact of the impairment and the claimant’s ability to carry out normal day-to-day activities in this period. In particular, we note from Mr Clark and Mr Siddle’s statements that the claimant ceased to socialise in the way he had before he first caught Covid and that continued throughout and beyond the period of March to July 2022. Leanne Roxburgh gave evidence that the claimant did not do too badly in taking care of himself in March and April 2022 but was not so good in May. He could shower himself but was not able to cook for himself and she did a lot for him.[127]The Occupational Health report in March 2022 stated that the claimant was managing about 15 hours per week at work. He was managing day-to-day activities by pacing himself and could complete short walks.[128]GP entries for March 2022 indicate that the claimant was struggling, was weak and lethargic and had a flu like illness.[129]GP entries for 4 July 2022 recorded that the claimant had been to a long Covid clinic. He had been feeling worse for the past couple of weeks. He had felt lightheaded after playing tennis.[130]A report from the Walton Centre dated 9 September 2024 recorded that, before he caught Covid again in July 2022, he was making a reasonable recovery, up to about 3.5 days’ work per week and managing long walks in Wales.[131]We accept that lack of other entries in his GP records in the period March to July 2022 does not indicate that the claimant had significantly recovered. Rather, it was because the claimant did not consider there was anything else the GP could do to help him at the time. Submissions[132]Both representatives prepared detailed written submissions which were sent to the Tribunal and the other party by 9.15 a.m. on Wednesday 12 February. After reading these submissions, we heard oral submissions from each representative. By agreement, this had been limited to 40 minutes each, although extra time was allowed for the representatives to answer questions put by the Tribunal.[133]Ms Watson’s oral submissions highlighted parts of her written submissions. Mr Bronze made some additional oral submissions and responded to questions from the judge. He clarified that, for the complaints of discrimination arising from a disability, the relevant “something arising” for each complaint of unfavourable treatment was as follows: Unfavourable treatment Relevant “something arising” 15(a) 14(b) 15(b) 14(c) 15(c) 14(d) 15(d) 14(e) 15(e) 14(f)[134]He confirmed that, for the complaints of failure to make reasonable adjustments, the relevant substantial disadvantage and suggested adjustment for each PCP was that with the same letter e.g. the relevant substantial disadvantage for the PCP at 21(a) was that at 22(a) and the relevant adjustment that at 23(a).[135]Before and after a lunch break, Mr Bronze identified for the Tribunal how he said that the alleged unwanted conduct for the complaints of harassment was said to be related to disability. We record these in our conclusions when dealing with the relevant complaints.
Law
[136]The only live disability issue related to the part of the definition that requires the impairment to have a substantial (in the sense of more than minor or trivial) adverse impact on the claimant’s ability to carry out normal day to day activities.[137]Consideration must be given to what the claimant cannot do, not what they can do.[138]Although we were referred to the parts of the definition dealing with recurring conditions, we do not need to set these out since, given our findings of fact, we did not need to apply those provisions. Burden of proof[139]Section 136 Equality Act 2010 (EqA) provides: “(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.”[140]Section 123 EqA provides that proceedings may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable. Section 123(3) provides that conduct extending over a period is to be treated as done at the end of the period.[141]Time limits are extended to take account of time spent in the early conciliation process with ACAS, if notification to ACAS is made within the normal time limit.[142]The Tribunal has a wide discretion when considering whether it would be just and equitable to extend time. The Tribunal must consider all relevant factors, which will almost always include the length of and reasons for the delay and the prejudice caused to the parties of extending or not extending time.[143]The Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194, CA rejected the argument that, in the absence of an explanation from the claimant as to why she did not bring the claim in time and an evidential basis for that explanation, the employment tribunal could not properly conclude that it was just and equitable to extend time. Direct disability discrimination[144]Section 13(1) EqA provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. Section 4 lists protected characteristics which include disability.[145]Section 23(1) EqA provides that “on a comparison of cases for the purposes of section 13….there must be no material difference between the circumstances relating to each case.” Discrimination arising from disability[146]Section 15 EqA provides: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim”.[147]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.[148]There is no statutory definition of unfavourable treatment. The EHRC Code 5.7 says this means that the person “must have been put at a disadvantage.” Failure to make reasonable adjustments[149]Section 20 EqA and Schedule 8 contain the relevant provisions relating to the duty to make adjustments. Schedule 8 imposes the duty on employers in relation to employees. Section 20(3) imposes a duty comprising “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.”[150]“Substantial” means more than minor or trivial: s.212(1).[151]Paragraph 20 of Schedule 8 provides that an employer is not subject to a duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know that the employee had a disability and was likely to be placed at the relevant disadvantage.[152]A one-off or discretionary decision can be a provision, although “practice” has been held to suggest some degree of repetition: Nottingham City Transport Ltd v Harvey EAT 0032/12.[153]The Court of Appeal in Ishola v Transport for London 2020 ICR 1204, considered that the words “provision”, “criterion” and “practice” all carry the connotation of a state of affairs indicating how the employer generally treats similar cases or how it would deal with a similar case if it occurred again. The Court pointed out that a PCP must be capable of being applied to others.[154]The respondent has referred to Finnigan v Chief Constable of Northumbria Police 2014 1 WLR 445 CA for the proposition that the claimant cannot rely on an adjustment as constituting a PCP. We consider this to be a wider proposition than the judgment in that case states. At paragraph 29, Lord Dyson emphasized the importance of distinguishing between a PCP and the adjustments made to a PCP to alleviate the detrimental effects to which a disabled person may be subjected by it. This was in the context of identifying the relevant PCP. Lord Dyson said, “by definition, therefore, the PPP does not include the adjustments.” We do not take this as authority ruling out that something done as an adjustment for one PCP cannot constitute another PCP for which other adjustments may be required. Harassment[155]The relevant parts of section 26 EqA provide: “(1) A person(a) (A) harasses another(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …… (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.”[156]Subsection (5) lists relevant protected characteristics which include disability.[157]“Related to” the protected characteristic has a wider meaning than treatment being “because of” the protected characteristic, although treatment which is “because of” the protected characteristic will be conduct related to the protected characteristic.[158]In Carozzi v(1) University of Hertfordshire(2) Ms A Lucas [2024] EAT 169, HHJ James Tayler gave a helpful summary of the relevant law on whether conduct is “related to” a protected characteristic, at paragraphs 15-17 and paragraphs 24-25. We take from this the following points: 158.1. The term “related to” is designed to have a relatively broad meaning. It is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic. 158.2. There must be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question and in the manner alleged by the claim. 158.3. Section 26 does not bite on conduct which is not properly found for some identifiable reason to have been related to the characteristic relied upon. 158.4. Conduct can be related to a protected characteristic where it is done because of the protected characteristic, but that is by no means the only way that conduct can be related to a protected characteristic. 158.5. There may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser. An example is where a person unknowingly uses a word which is offensive to people who have a relevant protected characteristic because it is historically linked to oppression of people who have the protected characteristic. The fact that the person, when using the word, did not know that it had such a meaning or connotation, would not prevent the word used being related to the protected characteristic.[159]In Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40, the employment tribunal had upheld a complaint of age-related harassment about predetermining the outcome of the claimant’s grievance. HHJ James Tayler wrote at paragraph 9: “It is important to note that it is the “conduct” that must be “related to” the protected characteristic. Thus, if it is asserted that a failure properly to investigate a grievance alleging discrimination constitutes harassment it is not sufficient that the grievance was related to the protected characteristic, the failure properly to investigate the grievance, which constitutes the conduct, must be related to the protected characteristic. Accordingly, it will generally be necessary to consider the mental process of the person who considered the grievance and decide whether the failure to investigate was related to the protected characteristic, such as if the person considered that protection of the protected characteristic is of no importance and so did not treat the grievance as seriously as other types of grievance would have been treated.”[160]The judge allowed the appeal and substituted a decision rejecting the complaint. He wrote, at paragraph 29: “The only connection the Employment Tribunal found between the claimant’s age and the grievance process was that the grievance included an allegation of age discrimination. The Employment Tribunal did not identify anything that connected the claimant’s age to the prejudgment of the grievance. It was the prejudgment of the grievance that constituted the “conduct” that had to be “related to” age. There was no use of ageist language that could have resulted in a conclusion that the prejudgment of the grievance inherently involved age discrimination. Accordingly, the Employment Tribunal was required to consider the mental process of the grievance panel. They had done so in rejecting the complaint of direct discrimination. The Employment Tribunal’s rejection of the contention that the panel was influenced by the claimant’s age in their approach to the grievance means that the age harassment claim was bound to fail. Nothing has been identified that could establish that the prejudgment of the grievance was related to the claimant’s age.”[161]In Betsi Cadwaladr University Health Board v Hughes and ors EAT 0179/13, the EAT considered whether certain treatment violated the claimant’s dignity. It commented that the word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. Some conduct, including a letter sent to consultants referring to the deterioration in the claimant’s health, could not justify a finding that it violated her dignity or created a degrading environment, even if the claimant found it upsetting. Neither did a referral to occupational health violate her dignity or create a degrading environment.[162]In Weeks v Newham College of Further Education EAT 0630/11, Mr Justice Langstaff, then President of the EAT, pointed out that “environment” means a state of affairs. Such an environment may be created by a one-off incident, but its effects must be of longer duration to come within the provisions of s.26(1)(b)(ii). Discrimination in the employment field[163]Section 39 EqA provides, amongst other things, that an employer must not discriminate against an employee by subjecting them to a detriment. Discrimination includes s.15 discrimination.
Conclusions
[164]Disability is only in dispute in relation to the period March to July 2022. The respondent averred that the condition did not have a substantial effect on the claimant’s ability to carry out normal day to day activities during that period and was not likely to recur. “Substantial” means more than minor or trivial.[165]In deciding whether the claimant was disabled for the purposes of the Equality Act within this period, we must focus on what the claimant could not do, not what he could.[166]During this period, the claimant was not able to manage to work 5 days per week; he managed, at most, 4 days per week of work. There were still serious limitations on what he did outside work. He did much less socialising than pre Covid. Helping out at his father’s garage was a one off (and in an earlier period than March to July 2022). In terms of personal care (showering, getting dressed etc), the claimant could look after himself only by pacing himself, which was a coping strategy. His partner largely dealt with the cooking.[167]We conclude that the symptoms of long covid had more than a minor or trivial adverse effect on the claimant’s ability to carry out normal day to day activities in the period March to July 2022. We conclude that he was disabled, during this period, within the meaning in the Equality Act.[168]Given our findings of fact about the impact of the impairment on the claimant’s ability to carry out normal day to day activities in the period March to July 2022, we have no need to look at the provisions in the Equality Act which relate to recurring conditions. Complaints of disability discrimination[169]There are time limit issues in relation to some complaints. Complaints in respect of anything occurring before 26 November 2022 are potentially out of time, unless they form part of a continuing act.[170]Since the merits of the complaints will be relevant to whether or not there are continuing acts of discrimination, we deal first with the merits of the complaints and will then return to the issue of whether we have jurisdiction, having regard to the relevant time limits, to consider all the complaints.[171]We use the numbering in the agreed list of issues to identify each complaint. Direct discrimination 8a Failure to award the claimant a 4.21% pay rise in March 2022[172]There is a time limit issue in relation to this complaint.[173]The claimant must prove facts from which we could conclude that there was less favourable treatment because of disability. The comparison must be with a real comparator or a hypothetical comparator in the same or not materially different relevant circumstances. The claimant relies on the named comparators Colm, Morgan, James and Vicky.[174]We consider that the relevant circumstances of an appropriate comparator, when considering treatment in relation to the pay award, must include the comparator’s level of pay. We consider that the comparator must be someone on the same pay level as the claimant but without the claimant’s disability. All the named comparators were on substantially lower pay than the claimant. We do not consider, for this reason, that they are appropriate comparators.[175]Although the claimant did not identify that he wished to rely, in the alternative, on a hypothetical comparator for this complaint, since the claimant has been acting as a litigant in person during most of the preparation of this case, we have gone on to consider a comparison with a hypothetical comparator. We consider that a hypothetical comparator would be a bid writer with the same level of skills and experience as the claimant, on the same salary but without his disability. Such a comparator would, like the claimant, be earning more than £10,000 p.a. more than the next highest paid bid writer.[176]The claimant has not clearly identified the facts from which he would say we could conclude that there was direct discrimination, but we have considered, on the basis of his evidence, that he might be relying on the following facts: 176.1. the announcement of a general pay award, without making it clear that not all band B employees would necessarily receive this percentage increase; 176.2. the lack of an immediate explanation for the lower percentage rise given to the claimant; and 176.3. the reference in the notes on p.362 to “absence”.[177]Even if “absence” can be taken as a proxy for being disabled (which we doubt, since someone can be absent for reasons other than disability) the note on p.362 must be read as a whole: “current salary data and absence”. Current salary data is clearly relevant to the decision.[178]We do not consider these matters, or any other circumstances, to be sufficient to satisfy the initial burden of proof. The claimant has not proved facts from which we could conclude that there was less favourable treatment than would have been given to a comparable non-disabled person when the claimant was given a 1.25% rise rather than 4.25% and that, if there was less favourable treatment, this was because of disability.[179]We have considered whether our decision that the salary of the comparator is part of the relevant circumstances risks bringing the respondent’s explanation for the treatment into consideration of whether the claimant has satisfied the initial burden of proof. We have decided it does not. The claimant’s salary must be a relevant factor in a decision about pay increases.[180]We conclude that this complaint would fail on its merits even if, having regard to the relevant time limits, we have jurisdiction to consider the complaint. We will return to the question of jurisdiction later. 8b Failure to offer the claimant APMP training between January to July 2022[181]The claimant relies on the actual comparators of Colm, Morgan, Natalie, James and Vicky. Colm is a bid writing manager. The others are bid writers. They were placed on APMP training. The claimant was not.[182]We must consider whether the comparators are in the same or not materially different relevant circumstances. We conclude that part of the relevant circumstances must include the employee not working their normal working hours and being on a phased return to work. An appropriate comparator must be someone working the same hours as the claimant and on a phased return following absence, but for a reason other than disability. None of the named comparators were working reduced hours, on a phased return to work. We assume, having not heard any evidence to the contrary, that the comparators do not have a disability.[183]As with the last complaint, although the claimant did not rely, in the alternative, on a hypothetical comparator, we have considered what we would have decided if he had. This hypothetical comparator would be someone working the same hours as the claimant and on a phased return following absence but without the claimant’s disability. The claimant has not proved facts from which we could conclude that he was being treated less favourably than such a comparator would have been treated, because of his disability.[184]We conclude that this complaint would fail on its merits even if, having regard to the relevant time limits, we have jurisdiction to consider the complaint. We will return to the question of jurisdiction later. 8c Failure to investigate allegations of discrimination from December 2022 to May[185]There is no time limit issue in relation to this complaint.[186]The claimant first referred to complaints of discrimination in the addendum to the October 2022 Occupational Health report, received by the respondent in early December 2022. He complained in this about being discriminated against and punished for having a long-term illness, including in relation to the pay award and lack of training.[187]Tracy Bean interviewed Colm Fitzpatrick before the meeting 19 December, in line with HR advice to look into the matters raised in the addendum even if the claimant did not raise a grievance.[188]There was a gap in investigation in period 19 December (following the meeting between Mark Bailey and the claimant) until the claimant presented a formal grievance on 14 April 2023.[189]Helen Keegan then investigated the claimant’s grievances including allegations of discrimination. Although she did not use the word “discrimination” in the outcome letter, we consider it implicit, from her written conclusions, that she had not found discrimination.[190]The appeal against the grievance is beyond the period complained about. Cathie Fillingham, as the appeal officer, was to carry out a review, unless new evidence was presented. No new evidence was presented. She did not investigate matters already investigated by Helen Keegan. She did include an express conclusion that there was no discrimination.[191]We conclude that, in the period 19 December 2022 to 14 April 2023 there was no investigation into allegations of discrimination.[192]The claimant relies on a hypothetical comparator and Michael Cox. The claimant asserts, in the list of issues, that a hypothetical comparator would be any non-disabled Amey employee raising allegations defined as gross misconduct under the Amey Disciplinary Policy. The list of issues asserts that Michael Cox raised concerns about the conduct of Steven Bailey, who was subsequently dismissed by the respondent under the Amey Disciplinary Policy.[193]We heard no evidence about Steven Bailey so have no evidence on which we could conclude that the claimant was treated less favourably than Michael Cox because of the claimant’s disability. The complaint must, therefore, rely on a hypothetical comparator.[194]We conclude that the claimant has not proved facts from which we could conclude direct disability discrimination.[195]If burden had passed, we would have found the reason the respondent did not investigate in the period 19 December 2022 to 14 April 2023 was that they were involved in settlement negotiations until 24 March 2023. From 24 March they understood the claimant was intending to put in a grievance and HR advice was to organise a grievance hearing as soon as possible. We would have concluded that the treatment was in no sense whatsoever because of the claimant’s disability.[196]We conclude that this complaint is not well founded on the merits. Overall conclusion in relation to complaints of direct discrimination[197]Whether the Tribunal has jurisdiction to consider complaints 8(a) and 8(b) will be considered under the heading “Time limits” later in these reasons.[198]All the complaints of direct discrimination are not well founded on their merits and will, therefore, fail, even if the Tribunal has jurisdiction to consider them. Discrimination arising from a disability 15a being made to work back hours from medical appointments[199]There is a time limit issue in relation to this complaint, which relates to events in the week beginning 20 June 2022.[200]On the basis of the facts we have found, we conclude that the claimant was not made to work back hours from medical appointments. Colm expressed some concern that with the appointments, the claimant might have difficulty working his hours. When the claimant told him he had worked 27.75 hours, short of the hours on the phased return to work plan, Colm did not require him to work more hours but, by agreement, the claimant was going to be paid for the difference between the hours on the schedule and the hours he actually worked by using up accrued TOIL.[201]We conclude that the claimant was not subjected to unfavourable treatment, as alleged.[202]We will return to the question of whether the Tribunal has jurisdiction to consider this complaint, having regard to the relevant time limits but, if the Tribunal does have jurisdiction, the complaint fails on its merits. 15b being denied important career training given to everyone else in his bid writing team[203]There is a time limit issue in relation to this complaint.[204]The relevant “something arising” relied upon is at 14(c); being unlikely to complete training if this was required in a short timeframe, due to fatigue.[205]We conclude that being unlikely to complete training if it was required in a short timeframe was something arising in consequence of the claimant’s disability; fatigue was a symptom of long covid which he was suffering from and reduced his ability to work, including carrying out training.[206]The claimant was not put on training and other bid writers were.[207]The claimant has not satisfied us that he was treated unfavourably by not being put on training at this time. Although others were given the training and he was not, when he discussed this with Colm on 3 May 2022, the claimant agreed it made sense to recover first. He knew that he would be able to go on the training once he had recovered enough to work normally. The claimant did not raise the issue of training again with Colm and only complains about it with the addendum to the OH report sent to the respondent in December 2022. We do not consider that the treatment, delaying training until he was fit enough to work normally, was treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment. If the Tribunal has jurisdiction to consider this complaint, it would fail on its merits for this reason. However, we have gone on to consider what we would have decided in relation to other parts of the test for discrimination arising from disability if we had found (which we have not) that there was unfavourable treatment.[208]The ”something arising” relied upon did form part of Colm’s explanation for not putting the claimant on training at that time so, if there had been unfavourable treatment, we would have concluded it was because of something arising in consequence of disability.[209]Had we concluded there was unfavourable treatment because of something arising in consequence of disability, we would have concluded that the treatment was a proportionate means of achieving a legitimate aim. The legitimate aim relied upon is having a workforce capable of carrying out their roles. Not putting the claimant on training until he was capable of resuming his full hours of work and duties was a proportionate means of achieving this aim.[210]We will return to the time limit issue. 15c Requiring the claimant to physically attend a welfare meeting on 19 December 2022, during which a settlement discussion unexpectedly took place[211]There is no time limit issue in relation to this complaint.[212]The relevant “something arising” relied upon is at 14(d); being incapable of attending and maintaining concentration through a physical meeting, due to fatigue and brain fog exacerbated by recent flu.[213]We understand the complaint to be about having to attend the meeting in person, rather than remotely.[214]We found that the claimant did not ask to attend remotely. Had he done so, Mark Bailey would have agreed. In these circumstances, we conclude there was no unfavourable treatment.[215]Even if we had concluded there was unfavourable treatment, the claimant would not have proved facts from which we could have concluded that requiring him to attend in person was because of the something arising relied upon. We have to look at why Mark Bailey asked him to attend in person. There is no evidence on the basis of which we could conclude it was because of the relevant something arising.[216]If the burden of proof had passed to the respondent, the respondent would have satisfied us that Mark Bailey’s reasons for asking the claimant to attend in person were not in any way because of the “something arising”. Mark Bailey wanted to have the meeting in person because he considered that such meetings were best dealt with in person. Previous welfare meetings had been conducted online and Mark Bailey wanted to meet the claimant in person.[217]We conclude the complaint is not well founded. 15d failure to promptly or properly investigate the claimant’s allegations of discrimination, leaving the claimant feeling unsupported and with no assurance it would be safe to return to work[218]There is no time limit issue in relation to this complaint.[219]The relevant something arising is at 14(e): being on long-term sickness absence following exacerbation of disability symptoms at work and needing assurance this would not reoccur.[220]We found that the respondent did not fail to promptly or properly investigate the allegations. The respondent began steps to investigate very soon after it received the complaints in the addendum to the Occupational Health report. Investigations were paused when settlement negotiations were underway and resumed after these ceased and the claimant put in a grievance.[221]In relation to the period when there was no investigation, the claimant has not proved facts from which we could conclude this was because of the “something arising”. If the burden passed to the respondent, they satisfied us it was because of the settlement negotiations.[222]We conclude this complaint is not well founded. 15e Failure to consider the claimant’s actions and grievance evidence through the lens of someone with a cognitive impairment[223]The Tribunal did not understand what treatment by the respondent this complaint was about so the judge asked Mr Bronze to clarify this in his closing submissions. Mr Bronze told us that it was about the respondent, in its grievance outcome and grievance appeal outcome, saying that the claimant did not raise certain things and did not escalate certain things.[224]Based on this explanation, there is no time limit issue in relation to this complaint.[225]The relevant “something arising” relied upon is at 14(f): being cognitively impaired by brain fog and long Covid fatigue in sending day to day work messages, particularly as the hours and work pressure increased. We assume, without deciding, that this is something arising in consequence of the claimant’s disability. We have to consider whether the reason for the respondent saying that the claimant did not raise certain things and did not escalate certain things was because of the something arising i.e. because the claimant was cognitively impaired by brain fog and long Covid fatigue in sending day to day work messages, particularly as the hours and work pressure increased. There is no evidence to suggest this was a material reason for the respondent saying that the claimant did not raise certain things and did not escalate certain things. We conclude that the claimant has not proved facts from which we could conclude that the relevant “something arising” was a material reason for the treatment.[226]We conclude that this complaint is not well founded. Overall conclusions in relation to the complaints of discrimination arising from a disability[227]Whether the Tribunal has jurisdiction to consider complaints 15a and 15b will be considered under the heading “Time limits” later in these reasons.[228]All the complaints of discrimination arising from a disability are not well founded on their merits and will, therefore, fail, even if the Tribunal has jurisdiction to consider them. Failure to make reasonable adjustments 21a A requirement to keep increasing working hours in accordance with a phased return schedule[229]We consider there is a time limit issue in relation to this complaint since the PCP ceased to be applied when the claimant started a further period of sick leave in July 2022.[230]The substantial disadvantage to the claimant is said to be feeling overwhelmed and exhausted by the phased return schedule. The adjustment which the claimant says should have been made is adjusting required hours in the phased return schedule when the claimant stated he was struggling or overwhelmed.[231]In the section on the law, we expressed the view that Finnegan does not set out the general proposition suggested in submissions by the respondent i.e. that something which is an adjustment for one PCP (a requirement to work full time), cannot in itself be a PCP. We consider that the ratio of the case is that, in identifying a PCP, it is important to distinguish between a PCP and the adjustments made to a PCP to alleviate the detrimental effects to which a disabled person may be subjected by it.[232]The case law suggests a liberal approach should be taken to considering what may constitute a PCP. Although there was some flexibility in compliance with the schedule, we conclude that there was an expectation, in general, that the claimant would work in accordance with this, unless it was altered by agreement. Mark Bailey’s comment at the meeting on 28 April 2022 that he was keen to stick to the plan supports there being such an expectation.[233]We consider next whether the PCP put the claimant at a substantial disadvantage in the sense of more than minor or trivial disadvantage. The substantial disadvantage to the claimant is said to be feeling overwhelmed and exhausted by the phased return schedule.[234]We are not satisfied that the claimant was put at a substantial disadvantage by the PCP. Although there are some messages using the word “overwhelmed”, even these are qualified. The claimant was not sending what we consider could reasonably be understood as a clear message that he could not cope with the schedule. In fact, in some weeks, the claimant worked more hours than required and “banked” the extra time. Some other weeks the claimant used TOIL to make up hours.[235]Even if we are wrong on this, we conclude the respondent could not reasonably have been expected to know that the claimant was at a substantial disadvantage because of the positive messages and, at its strongest, mixed messages the claimant was sending out. The claimant never asked for the schedule to be changed.[236]If we have jurisdiction to consider this complaint, we conclude this complaint fails on its merits. 21b A requirement to do every aspect of bid writing work[237]There is a time limit issue in relation to this complaint, since it relates to events in May 2022.[238]The substantial disadvantage to the claimant is said to be feeling overwhelmed and cognitively overloaded after agreed adjustments to duties were discarded.[239]The adjustment which the claimant says should have been made is adjusting the claimant’s duties so he was not given duties that were known to overwhelm him and reintroducing him to such duties on a gradual basis in line with his ability.[240]We conclude that this PCP was applied once the claimant started to do some work on bids in May 2022.[241]We are not satisfied, however, that the claimant was put at a substantial disadvantage by the application of this PCP. The claimant was not put on bid work until he said he was ready and was managing with increased hours. This was not prompted by Colm. The use of the words “a little overwhelming” and “slightly overwhelming” in the messages of 18 May and 20 May 2022 we do not consider, taken in context, to be the “red flags” that the claimant now suggests they were. The claimant describes himself as an experienced wordsmith. As such, he can be expected to have chosen his words with care. The claimant was not saying that the bid writing work was too much for him. It appears that Colm had selected the bid writing work on which the claimant was to be reintroduced to such work deliberately in terms of it being a small bid on which some of the collation had already been done.[242]Alternatively, we conclude that the respondent cannot reasonably have been expected to know that the claimant was disadvantaged by the application of this PCP, given the, at best, mixed messages given by the claimant.[243]For these reasons, the complaint would fail on its merits even if the Tribunal has jurisdiction to consider the complaint. 21c A requirement to work back time taken for medical appointments[244]There is a time limit issue in relation to this complaint, which relates to the week commencing 20 June 2022.[245]The substantial disadvantage to the claimant is said to be struggling further to maintain the phased increase and performance level as the claimant was effectively told to work more hours than he was capable of, leaving him exhausted, overstretched and critically run down in the days before he was exposed to Covid again.[246]The adjustment which the claimant says should have been made is allowing the claimant to drop his expected hours in any week where he had medical appointments.[247]We found, as a matter of fact, that the claimant was not required to work back time taken for medical appointments. The claimant was able to work around the appointments and was not required to actually work all the hours on the schedule. If he wanted to make up the hours for the purpose of being paid the hours on the schedule, he was allowed to use TOIL to do so. He could have asked for the schedule to be varied for that week but did not do so.[248]We conclude that, even if the Tribunal has jurisdiction to consider the complaint, this complaint would fail on its merits. 21d Only offering APMP training to able-bodied, full-time staff[249]There is a time limit issue in relation to this complaint, which relates to the period January to July 2022.[250]The substantial disadvantage to the claimant is said to be being denied APMP career development training.[251]The adjustment which the claimant says should have been made is agreeing an extension to ensure the claimant could be offered and complete APMP training.[252]We have not heard evidence that all those offered training were able-bodied and full time.[253]On the assumption, without deciding, that all those offered training were ablebodied and full time, we conclude that the claimant was not placed at a substantial disadvantage because of application of this PCP. The training for the claimant was deferred until he was fit for normal work. The claimant agreed when he raised this with Colm in May 2022 that this made sense.[254]Even if the claimant had been placed at such a disadvantage, we conclude that the respondent could not reasonably have been expected to know he was disadvantaged since the claimant agreed with Colm in May 2022 that it made sense to defer the training until he was fit for normal work and the claimant did not raise this as an issue until the addendum to the Occupational Health report, which the respondent received in early December 2022. The claimant had been on sick leave since July 2022.[255]Even if the Tribunal has jurisdiction to consider the complaint, the complaint would fail on its merits. 21e Holding welfare meetings only in person and without delay[256]There is no time limit issue in relation to this complaint.[257]The substantial disadvantage to the claimant is said to be being left exhausted and cognitively overwhelmed by having to drive for 45 minutes to attend the December welfare meeting when the claimant also had flu.[258]The adjustment which the claimant says should have been made is holding the welfare meeting in January or remotely.[259]We conclude that the respondent did not have a requirement to hold welfare meetings only in person. Every previous welfare meeting with the claimant had been by video conference and we accepted Mark Bailey’s evidence that, if the claimant had asked, he would have agreed to a virtual meeting. Mark Bailey’s preference was for a face to face meeting, but he would have agreed to a virtual meeting if the claimant had asked for this, saying it was too difficult to attend in person.[260]In relation to holding meetings without delay, if this refers to the claimant’s assertion that he asked to put back the meeting until January and Mr Bailey refused, we were not satisfied this happened as a matter of fact. We would accept that the respondent had a practice of holding meetings in a timely fashion, but this, in itself, could not put the claimant at a substantial disadvantage; on the contrary, it would be to his benefit. If alleged that the respondent had a practice of holding meetings even if the employee was not fit to attend, the claimant has not proved facts which could lead us to conclude there was such a PCP.[261]We conclude that this complaint fails on its merits. 21f Starting settlement discussions during welfare meetings[262]There is no time limit issue in relation to this complaint.[263]The substantial disadvantage to the claimant is said to be being trapped into an unfavourable settlement that the claimant was neither forewarned about nor in any fit state to discuss.[264]The adjustment which the claimant says should have been made is arranging a meeting separate to the welfare meeting to discuss options, such as settlement, when the claimant felt stronger and less cognitively exhausted.[265]We conclude that no such PCP was applied. The respondent sometimes did start settlement discussions during a welfare meeting, depending on the circumstances, but this was not a general practice.[266]Even if there was such a PCP, we conclude that the claimant was not put at a substantial disadvantage by the PCP. The claimant had a choice whether to participate in the discussion. Discussing settlement did not, as alleged, trap him into an unfavourable settlement. The claimant was not required to reach a settlement during the meeting or at any time afterwards. Proposals were discussed at the meeting and afterwards and agreement was not reached. The claimant continued, and continues, in employment. He was not required to accept the respondent’s offer.[267]We conclude that this complaint fails on its merits. 21g Requesting Occupational Health reports but ignoring their recommendations[268]On the basis that this relates to the report received by the respondent in December 2022, there is no time limit issue in relation to the complaint. If the complaint relates to any recommendations in the earlier OH report, there is a potential time limit issue.[269]The substantial disadvantage to the claimant is said to be suffering depression, anxiety and worsening long Covid (detriment 1) and being unable to return to work (detriment 2) because the respondent did not act on the Occupational Health recommendations or the claimant’s allegations of discrimination, both of which would have supported a return to work.[270]The adjustment which the claimant says should have been made is promptly investigating and resolving the “unresolved managerial issues” referred to in the 27/10/2022 Occupational Health report.[271]We conclude that no such PCP was applied. We are not satisfied that the respondent ignored OH recommendations in the claimant’s case and there is no evidence that they have a practice of doing so in other cases.[272]The respondent proposed a phased return which was in line with recommendations in the earlier OH report. The fact that OH did not make specific recommendations about increases to hours after the first few months following the report does not mean that, by including further months on the schedule, the respondent was ignoring the recommendations.[273]The stage was not reached where the respondent could reasonably have been expected to understand the claimant could not cope with the planned phased return. A stage had not been reached where an adjustment was required to the phased schedule so the respondent was not ignoring that. We found there was frequent contact between Colm and the claimant by Teams messages and calls, so the respondent was, in this way, reviewing the claimant’s situation. The one to ones were not at scheduled times because of accommodating the claimant working when he best felt able to.[274]We conclude that the respondent did not ignore recommendations about managerial issues in the second OH report. The respondent did not ignore what was said. They started to look into the issues raised by the claimant in the addendum, with Tracy Bean interviewing Colm about them. There was then a pause in investigation because of settlement negotiations. Once settlement negotiations broke down, there was a grievance investigation and outcome.[275]The respondent did allow the claimant to have support. Helen Keegan agreed he could bring his partner to the grievance hearing, although, in the end, he did not and said he was able to continue with the meeting without her there. The respondent would have agreed that the claimant could bring his partner to the appeal hearing, had he asked. We conclude that not proactively offering that the claimant could bring his partner is not the same as ignoring the OH recommendation.[276]In relation to offering remote meetings, Helen Keegan agreed to the grievance hearing being held remotely. The appeal hearing was also held remotely. Mark Bailey’s preference was for the welfare meeting to be held face to face and the claimant did attend in person but, had the claimant asked to attend remotely because he would find it difficult to attend in person, Mark Bailey would have agreed to this. We do not consider Mark Bailey ignored the recommendation.[277]If there was any failure to comply with any recommendation, we conclude there was not a practice of ignoring recommendations.[278]We conclude that the complaint fails on its merits, even if the Tribunal has jurisdiction to consider all parts of this complaint. 21h Only allowing the claimant to be accompanied by a trade union official or colleague to the grievance appeal hearing[279]There is no time limit issue in relation to this complaint.[280]The substantial disadvantage to the claimant is said to be being unsupported, feeling more stressed and struggling to think clearly.[281]The adjustment which the claimant says should have been made is allowing the claimant to be accompanied to the grievance appeal hearing by his partner.[282]We conclude that no such PCP was applied. The claimant knew from his experience at the grievance hearing that, if he asked, he could bring his partner. He had no reason to think that a request in relation to the appeal hearing would be treated differently; the parts of the letters dealing with the right to be accompanied were the same in each letter, expressing the general practice, in line with statutory rights. It was common ground he had not asked to bring his partner before the hearing and we found he did not ask in the hearing.[283]Even if this PCP is read as relating to the respondent’s general policy, the claimant has not satisfied us he was at a substantial disadvantage. He knew from past experience with the grievance hearing, that he was likely to be able to bring his partner if he asked. At the grievance hearing, the claimant said he was able to participate without his partner. He appears to have been able to engage in the same way with the appeal hearing which was also conducted remotely so he was at home.[284]We conclude that this complaint fails on its merits. 21i Not notifying the claimant that he could be accompanied by someone other than a trade union official or colleague to the grievance appeal hearing[285]There is no time limit issue in relation to this complaint.[286]The substantial disadvantage to the claimant is said to be being so overwhelmed that the claimant forgot he could request personal accompaniment.[287]The adjustment which the claimant says should have been made is notifying the claimant he would be allowed to be accompanied to the grievance appeal hearing by his partner.[288]We conclude that the respondent did have a practice of not notifying the claimant that he could be accompanied by someone other than a statutory companion, since they used their standard wording in the invitation letter, referring only to statutory companions, and we have no reason to think they would not have done this again.[289]For same reasons as in relation to the previous complaint, we conclude that this PCP did not put the claimant at a substantial disadvantage.[290]We conclude that this complaint fails on its merits. Overall conclusions in relation to the complaints of failure to make reasonable adjustments[291]There are time limit issues in relation to complaints 21a, 21b, 21c and 21g (in part, if part relates to recommendations in the earlier OH report). If we do have jurisdiction to consider these complaints, we conclude that the complaints fail on their merits.[292]The complaints in respect of which there are no time limit issues fail on their merits. Harassment 25a Being repeatedly denied an explanation – by Colm Fitzpatrick in May and June 2022 (the last time on 20/06/22), then Mark Bailey when raised by the Claimant by emails on 11/08/22,19/08/22), in the OH report addendum on 30/11/22 and in the welfare meeting on 19/12/22– for disparate treatment in respect of the April 2022 pay award[293]There are time limit issues with this complaint in so far as it relates to any failures to provide an explanation before 26 November 2022, unless there is a continuing act of discrimination.[294]The claimant says that this was related to disability because it is inconceivable that the respondent would not provide an explanation if it did not relate to disability, so it follows that it must be related to disability.[295]The claimant got an explanation for the first time on 20 June 2022, after asking three times previously.[296]We conclude that there was unwanted conduct in not getting an explanation earlier.[297]We have not found that the claimant was not provided with an explanation after June 2022. He had received an explanation but did not accept this. Complaints in respect of alleged failures to provide explanations after June 2022 fail on the facts if the Tribunal has jurisdiction to consider them, having regard to the relevant time limits.[298]The reason for not providing the explanation before June 2022 must relate to disability. It was only Colm whom the claimant asked for an explanation before Colm provided an explanation in June 2022.[299]We conclude that the claimant has not proved facts from which we could conclude that Colm not providing an explanation earlier was because of disability. It is too great a leap to say, as submitted, that it is inconceivable that an explanation would not have been provided if the reason for not providing the explanation was not disability. There is no overt relationship with disability in not providing an earlier explanation so we have to consider the mental process of those responsible for not providing an explanation earlier. The initial burden of proof is on the claimant to prove facts from which we could conclude that this is related to disability. The claimant has failed to satisfy this initial burden and this complaint fails on its merits. 25b Being pushed by Colm Fitzpatrick between April – July 2022 to meet the hours set out in the phased schedule;[300]There are time limit issues with this complaint.[301]The claimant says this was related to disability because the claimant’s disability meant he struggled to work full time hours and disability was the reason he was on the return to work schedule.[302]For reasons given previously, we are not satisfied that the claimant was pushed to meet those hours. If the Tribunal has jurisdiction to consider the complaint, we conclude that the complaint fails on the facts. 25c Being required by Colm Fitzpatrick to carry out duties that the Claimant had already stated would aggravate his brain fog and cause him stress, contrary to a previous agreement, including placing him on a first bid in nearly two years at very short notice on 16 May 2022;[303]There are time limit issues with this complaint.[304]The claimant says that this was related to disability because being required to do this was in opposition to the objective and against the agreement that he was not doing his full duties on grounds of health.[305]We are doubtful whether this was unwanted conduct. The claimant had invited Colm to put him back on bid work. We accept that there was a degree of discomfort in adjusting to the demands of doing this again but the claimant’s emails do not give a clear picture that it was unwanted at the time.[306]Even if it was unwanted conduct, we do not consider that the claimant has proved facts from which we could conclude that the other elements of harassment are met.[307]We had difficulty in understanding the claimant’s submission on the related to disability point. We do not agree that the facts found support the submission that Colm putting him on this bid work on 16 May was contrary to agreements reached. The claimant was to resume his normal duties as part of the phased return and the claimant, without prompting from Colm, had said he was ready to start supporting bid work. From what Colm said to the claimant, it was a small bid with some of the collation already done so it appears Colm considered it not to be an onerous reintroduction to bid work.[308]Just because the context is of a phased return due to disability, does not make Colm’s actions in reintroducing bid work relate to disability. Bid work is the essence of the claimant’s job as a bid writer. If he was to return to normal duties, bid writing had to be introduced in some way at some time. The claimant has not proved facts from which we could conclude that Colm’s actions in putting the claimant on bid work at this time was related to disability.[309]Even if we had found it was related to disability, we are not satisfied that the treatment had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.[310]If we have jurisdiction to consider this complaint, the complaint fails on its merits. 25d Being pushed by Colm Fitzpatrick on 20 June 2022 to work back time from long Covid-related medical appointments that week;[311]There is a time limit issue in relation to this complaint.[312]For reasons we have given previously, we are not satisfied that, as a matter of fact, the claimant was pushed by Colm Fitzpatrick to work back time from medical appointments.[313]Even if we have jurisdiction to consider the complaint, it fails on the facts. 25e Being pushed by Mark Bailey to physically attend a welfare meeting on 19 December 2022 when the Claimant had already stated he was unfit to attend and requested postponement until the new year;[314]There is no time limit issue in relation to this complaint.[315]We conclude that this complaint fails on the facts. The claimant did not satisfy us that he stated he was unfit to attend a meeting in person or that he requested postponement until the New Year. Mark Bailey wanted him to attend in person but this was not in the face of the claimant saying he could not attend in person.[316]Even if we had been satisfied that Mark Bailey pushed the claimant to physically attend the meeting, we would have concluded that the claimant had not proved facts from which we could have concluded that the reason for doing so related to disability. Mr Bronze submitted that this treatment related to disability because the push was in defiance of OH advice recommending remote attendance because the claimant was unfit to attend in person because of long covid. He submitted that the requested postponement (which we were not satisfied was requested) was on health grounds and this was a push against measures due to disability. There is nothing overtly related to disability in requesting that someone attend a meeting in person. We need, therefore, to consider Mark Bailey’s motivation in requesting that the claimant attend in person. The claimant has not proved any facts from which we could conclude that Mark Bailey was in any way motivated by OH advice that the claimant should be allowed to attend a meeting remotely when making the request to attend in person.[317]Even if the claimant had satisfied the initial burden of proof in this respect, we would have concluded that the respondent had satisfied us that the conduct was not in any way related to disability. Mark Bailey needed to meet with the claimant and thought such meetings were better conducted face to face where possible. He had not met the claimant in person before and wanted to do so.[318]We would also not have been satisfied that requiring the claimant to attend the meeting in person had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The fact that the claimant wanted to give Mark Bailey a hug at the end of the meeting suggests that this was far from the case. 25f The Respondent’s failure to investigate the Claimant’s allegations of discrimination between December 2022 and May 2023, despite being told these had damaged his health and were having a continuing impact on his health and ability to return to work;[319]There is no time limit issue in relation to this complaint.[320]We found that the failure to investigate in the period 19 December 2022 until the grievance was presented in April 2023 was due to settlement negotiations. The claimant has not satisfied us that it was unwanted conduct not to investigate during that period.[321]We found no failure to investigate after the grievance was presented in April 2023. Helen Keegan did investigate and provided the claimant with an outcome.[322]For these reasons, the complaint is not well founded.[323]Even if we had found otherwise on unwanted conduct, we would not have been satisfied that the failure to investigate had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. 25g The Respondent’s failure to conduct a timely, thorough or fair grievance investigation/process;[324]This appears to be the same complaint as 25f and fails for the same reasons. 25h Failing to offer the Claimant personal support (a personal companion of his choice who was not a trade union official or colleague) in attending the grievance appeal hearing when the Respondent knew the Claimant was going through a mental health crisis.[325]There is no time limit issue in relation to this complaint.[326]We are doubtful that this was unwanted conduct at the time. The claimant knew, because he had been allowed to bring his partner to the grievance hearing (although, in the end, he did not) that he was likely to be allowed to bring his partner to the grievance appeal hearing.[327]Even if it was unwanted conduct, we would have concluded that the claimant has not proved facts from which we could conclude that the failure was related to disability. Mr Bronze submitted that it was related to disability because the respondent knew from grievance preparation/correspondence that the claimant needed, on account of his health, the support of his partner and failing to offer that support hindered his ability to perform/exacerbated his brain fog. There is nothing overtly related to disability in failing to offer that someone can be accompanied by a personal companion of choice, other than those in respect of which there is a statutory right to be accompanied. We must, therefore, consider the motivation of Cathie Fillingham in not proactively offering the claimant such personal support. The claimant has not proved any facts from which we could conclude that Cathie Fillingham not offering such support was in any way related to disability. The invitation letter suggests that the standard process was followed in alerting the claimant to his statutory right to be accompanied. We accepted that, if the claimant had made a request to be accompanied by his partner, this would have been agreed, as it was for the grievance hearing.[328]We would also not have been satisfied that not offering personal support had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.[329]This complaint fails on its merits. Overall conclusions in relation to complaints of harassment related to[330]There are time limit issues in relation to complaints 25a, 25b, 25c and 25d. Even if we have jurisdiction to consider these complaints, we conclude that they fail on their merits.[331]We have concluded that the complaints in respect of which there are no time limit issues fail on their merits. Indirect discrimination PCP 29 a) Only allowing the claimant to be accompanied by a trade union official or colleague to grievance appeal hearings.[332]There is no time limit issue in relation to this complaint.[333]We conclude that no such PCP was applied for the same reasons as in relation to the complaint of failure to make reasonable adjustments relying on the same PCP (see paragraph 282). For this reason, the complaint fails.[334]The PCP could not be applied to persons without the claimant’s disability since it refers to “only allowing the claimant to be accompanied….”. Even if the PCP was reworded to relate to the respondent’s general policy (to which exceptions were made), which was to only allow employees to be accompanied by trade union officials or work colleagues, we would not have been satisfied that there was group disadvantage suffered by people sharing the claimant’s disability, or that the claimant was at a substantial disadvantage. We had no evidence relating to group disadvantage. The claimant knew from past experience, at the grievance hearing, that he was likely to be able to bring his partner if he asked. At the grievance hearing, the claimant said he was able to participate without his partner. He appears to have been able to engage in the same way with the appeal hearing which was also conducted remotely so he was at home. PCP 29b: Not notifying the claimant that he could be accompanied by someone other than a trade union official or colleague to a grievance appeal hearing.[335]There is no time limit issue in relation to this complaint.[336]We conclude that the respondent had a practice of not notifying the claimant (unless he asked) that he could be accompanied by someone other than a statutory companion, since they used their standard wording in the invitation letter and we have no reason to think they would not have done this again.[337]The PCP could not be applied to persons other than the claimant, since it refers to not notifying the claimant that he could be accompanied by someone other than a statutory companion.[338]If the PCP was redrafted as referring to not notifying employees generally that they could be accompanied by someone other than a statutory companion, the claimant would not have satisfied us that there was group or personal disadvantage in the application of this PCP. We had no evidence of group disadvantage. For the same reasons as in relation to the complaint about PCP 29(b), we conclude that the claimant has not satisfied us that the PCP put him at a substantial disadvantage.[339]We conclude that this complaint is not well founded. Overall conclusions in relation to complaints of indirect disability discrimination[340]There is no time limit issue in relation to these complaints but we conclude that the complaints are not well founded.[341]Since, on the merits, we have found that none of the complaints of discrimination would succeed, there can be no continuing act of discrimination.[342]Any complaint in respect of something occurring before 26 November 2022 was, therefore, presented out of time. We would only have jurisdiction to consider the complaints in relation to such matters if we considered it just and equitable to do so in all the circumstances.[343]The claimant was aware from around summer 2022 of the possibility of disability discrimination complaints being based on long covid symptoms.[344]From early 2023, the claimant was getting legal advice in relation to the settlement negotiations. That must have included advice on ET complaints. The claimant must have been aware of the type of complaints that he was trying to settle.[345]The claimant started early conciliation with ACAS on 25 February 2023. The certificate was issued on 8 April 2023. He presented his claim on 7 May 2023.[346]The claimant was suffering from long covid throughout the period including the normal time limit and up to the present. We heard no evidence to suggest that he was fit enough to present his claim in May 2023 but not earlier.[347]The claimant was engaged in settlement negotiations with the respondent from December 2022 to March 2023.[348]We conclude that there would be no prejudice to the claimant in not extending time since we have found his complaints to be not well founded on the merits.[349]We conclude, in these circumstances, that it would not be just and equitable to extend time. The Tribunal does not, therefore, have jurisdiction to consider complaints in respect of matters occurring before 26 November 2022. Approved by