Mr K Waghat v Northern Care Alliance NHS Foundation Trust: 2406812/2023

EMPLOYMENT TRIBUNALS

Case No 2406812/2023

Between

Mr K WaghatClaimant

Northern Care Alliance NHS Foundation TrustRespondent

Before

Employment Judge Phil Allen

In person for claimant

Ms L Quigley (instructed by counsel) for respondent

Date 10 September 2025

JUDGMENT

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

[2]The complaint of breach of contract in relation to notice pay is not wellfounded and is dismissed.

[3]The complaints of harassment related to race are not well-founded and are dismissed.

[4]The complaints of harassment related to sex are not well-founded and are dismissed.

[5]We did not have jurisdiction to determine the complaints of direct race and/or sex discrimination arising from a comment made and events of September 2019 (issue 5.4.18) as the claim was not brought within the time required or within such period as we found to be just and equitable.

[6]The complaints of direct race discrimination are not well-founded and are dismissed.

[7]The complaints of direct sex discrimination are not well-founded and are dismissed.

REASONS

[1]The claimant was employed by the respondent from 2 September 2019 until his resignation with immediate effect on 22 May 2023. He was a Debtors’ Officer in the East Lancashire Financial Services Team (ELFS). The claimant alleged that he had been constructively unfairly dismissed and wrongfully dismissed. He also alleged harassment related to race and/or sex and direct discrimination on grounds of race and/or sex. The claimant is British Asian of Indian origin. The respondent denied the complaints. Claims and Issues

[2]At the start of this hearing, we confirmed with the parties that the list of issues contained in the bundle (106) was an agreed and complete list of the issues which we needed to determine. That list was based upon the one prepared following the first and second preliminary hearings in this case on 17 January 2024 and 3 September 2024.

[3]We suggested that we would determine the liability issues first and then, if required, would only go on and determine the remedy issues if the claimant succeeded in any of his complaints. The parties agreed to that approach. That meant that we did not need to decide issues 2 or 6. The claimant confirmed that he was not seeking reinstatement or re-engagement (so issues 2.1-2.4 in the attached order did not need to be determined). The respondent confirmed that it was not contending that there was any contributory fault (so issues 2.6.9 and 2.6.10 did not need to be determined).

[4]At the start of the second day, we suggested that the list of issues was missing two things which we would need to determine. For one allegation we suggested that we would need to determine whether the alleged harassment was conduct of a sexual nature in addition to whether it was related to race and/or sex. The parties agreed at the time we would need to do so, but in fact we did not need to do so after the claimant decided not to pursue that complaint. We also highlighted that there were no time/jurisdiction issues in the list, and we would need to determine those issues as they applied to some of the more historic allegations, which the parties accepted/agreed.

[5]During his evidence, the claimant stated that he did not wish to pursue certain specific allegations. At the end of his evidence, we asked him to confirm the allegations he was not pursuing. It was confirmed that the claimant was not alleging that issue 1.1.1.15 (eye tests) was a reason for his resignation and therefore that issue did not need to be determined. He confirmed that he was not pursing harassment allegations 4.1.3, 4.1.5, 4.1.8 and/or 4.1.9. He confirmed that he was not pursuing direct discrimination allegations 5.4.20 (c) and (d). Accordingly, we have not determined those allegations.

Procedure

[6]The claimant represented himself at the hearing. Ms Quigley, counsel, represented the respondent.

[7]The hearing was conducted in person with both parties and the majority of the witnesses attending in-person in Manchester Employment Tribunal. Following an application made by the respondent to which the claimant did not object, three of the respondent’s witnesses were able to attend by CVP remote video technology and the hearing was converted to be a hybrid hearing so that they could attend prior to their evidence and when their evidence was given. The respondent made a late application for a fourth witness to attend and give evidence remotely. The claimant objected to their doing so prior to the hearing, but when the reasons were explained in more detail at the start of the hearing, the claimant confirmed that he did not object to them doing so. We also allowed an observer to attend remotely for the part of the hearing when it was conducted as a hybrid.

[8]We were provided with a bundle of documents. It had 1762 pages. We read only the documents in the bundle to which we were referred. On the first day of the hearing, we read the documents to which we were referred in the witness statements and in an agreed reading list. Where we refer to a number in brackets in this Judgment, that is a reference to the page number in the bundle.

[9]There was a little bit of confusion on behalf of the claimant about what documents he was asking the Tribunal to read. He on occasion referred to other pages which he said he wanted the Tribunal to read. It was established that the claimant had had the bundle since January and had revised his witness statement on one occasion to refer to the pages in the bundle. The reading list had also been amended to include those pages which he wished the Tribunal to read. The claimant emailed to the Tribunal a revised witness statement with additional page numbers and comments included with it, but we declined to look at it. The claimant did not make a formal application to rely upon an amended statement. The respondent objected to the revised statement being provided. It was highlighted to the claimant that if there were pages in the bundle which he believed disproved things said by the respondent’s witnesses or which he wished to put to them during cross-examination, he could refer to those pages even if they had not previously been read.

[10]We were provided with witness statements from all the witnesses called to give evidence. We read those witness statements on the first day and each witness confirmed the accuracy of their statement under oath when giving evidence.

[11]We heard evidence from the claimant, who was cross examined by the respondent’s representative, and we asked him questions. His evidence was heard during the second day and the morning of the third.

[12]We heard evidence from the following witnesses for the respondent. Each person was cross-examined by the claimant, we asked questions (where required) and they were re-examined (where the respondent’s representative chose to do so). The witnesses were:a. Ms Carol Kenyon, Credit Control Manager (her evidence was heard on the afternoon of the third day);

b. Ms Alexandra Lambert, Deputy Credit Controller (her evidence was heard on the morning of the fourth day, and she attended remotely);

c. Ms Jessica Hall, Management Accountant (her evidence was heard on the fourth day);

d. Ms Victoria Griffiths, Debtors Officer (she attended remotely, and her evidence was heard on the fourth day);

e. Ms Louise Washington, Accounts Recoverable Manager (her evidence was also heard on the fourth day);

f. Ms Donna Clarke, Team Leader/Deputy Credit Controller (her evidence was heard in the morning of the fifth day);

g. Ms Alison Miller, Credit Controller (she attended remotely, and her evidence was heard in the afternoon of the fifth day);

h. Mr Chris Endersby, Finance Service Delivery Director (his evidence was also heard in the afternoon of the fifth day); and

i. Ms Dannii Richardson, previously a Debtors Officer (she is no longer employed by the respondent, she attended remotely and gave her evidence on the morning of the sixth day).

[13]After the evidence was heard, each of the parties was given the opportunity to make submissions. They each made their submissions in writing (having provided their written submissions prior to the start of the sixth day), supplemented with oral submissions made during the extended morning of the sixth day (after an adjournment to read the written submissions).

[14]We adjourned the hearing from lunchtime on the sixth day until the start of the afternoon on the eighth, to consider and reach our decision. On the afternoon of the eighth day, we informed the parties of our decision and the reasons for it.

[15]Written reasons having been requested, the reasons for the Judgment are contained in this document.

Facts

[16]The claimant worked for the respondent from 2 September 2019. He joined the claimant as a band 2 invoice clerk but was rapidly promoted to be a Debtors’ Officer in October 2019 (without a further interview). He initially worked full time, but he reduced to working part-time two and a half days per week from 13 August 2020, before increasing his hours to three and a half days per week (26.25 hours over those days) from 1 October 2022. Those changes were made at the request of the claimant.

[17]The respondent operates a flexitime system. Employees must work core hours on the days of the week upon which they work but otherwise can choose their hours and can accrue flexi. The core hours ended at 3 pm each day and it was the respondent’s evidence that a number of employees stopped working at 3 pm. We were provided with a copy of the policy, which said that the employee must work in the office except as agreed otherwise with their manager. We heard evidence that employees can work at home or in the office when agreed with the respondent.

[18]We were provided with the respondent’s grievance procedure and their dignity at work procedure. The introduction to the former said that bullying and harassment complaints were to be dealt with under the latter. The timescales in the grievance procedure were that: all grievance resolution issues would be dealt with promptly and within ten weeks unless there was a valid reason for delay; and the meeting under the first formal stage was to be held within fourteen calendar days of receipt of the requesting a resolution from grievance form, with an outcome in writing normally within seven calendar days of the meeting. We were told that the grievance procedure had been new at the time when the claimant raised his grievance, as it was introduced following the merger of the Trusts which had led to the creation of the respondent (and the subsequent creation of new merged policies).

[19]It was the claimant’s evidence that, when he joined his section of twenty-four employees, he was the only non-white employee. He also said that there were only three male employees, albeit he later accepted that Mr Elms joined at the same time as the claimant did meaning that there were four. The respondent disputed that the claimant was the only non-white employee when he joined (a dispute which appeared to turn upon how the claimant categorised his colleagues). The respondent emphasised that within ELFS more generally there was greater diversity and a higher proportion of male employees. It was not in dispute that, over the time during which the claimant was employed, the diversity of his immediate team increased, and more men joined the team.

[20]In the first couple of weeks of his employment, the claimant was involved in a conversation about making tea with two colleagues, Amy Foden (from whom we did not hear evidence) and Victoria Griffiths. We were told that Ms Foden and Ms Griffiths made a lot of tea and did so more frequently than the claimant. It was not in dispute that the claimant was asked to make tea on a particular occasion and declined to do so. It was a matter of dispute whether the claimant said that he would not do so as it was women’s work. Ms Griffiths’ evidence was that the claimant did; the claimant denied that he did so. There was no dispute that Ms Griffiths said to the claimant that he was showing his true colours now. The claimant did not raise any issue about it when it was said.

[21]Shortly afterwards, on 7 November 2019, Ms Foden apologised to the claimant in an email (117). She said that no disrespect had been intended. She explained that her parents also had traditional roles, and she respected that and was not being judgemental. She explained that it had merely been teasing, and the claimant made good brews (something which Ms Griffiths also confirmed in evidence). On the same day the claimant responded to Ms Foden by email and said: “This is getting silly! There is no offence taken and no need to apologise. I meant to say don’t make a big deal about me ‘getting wound up’ I added my explanation to the normal course of conversation. I have been around a bit and very used to banter. Don’t worry, take it easy”

[22]It was the claimant’s evidence during cross-examination, that for quite some time he had decided that he was not going to hang around and that he would look for another opportunity which would take him away from the respondent. He said that, from relatively early on, he had decided that he would leave. He referred to the lack of pharmaceutical sales representative opportunities following the Covid pandemic and the fact that those opportunities took longer to return than had been envisaged. When asked when he had decided that he was going to leave, he confirmed that it was fairly early on in his time with the respondent that he had decided that he did not like the place and was going to go. He did not leave earlier for want of opportunities and because he needed to put bread on the table. He said that leaving was always his intention, and the role was just a stop gap.

[23]In common with many workplaces, as a result of the Covid lockdown from March 2020, the claimant, and all of the team with whom he worked, all worked from home. That continued until September 2021. The Team communicated using Teams and WhatsApp. A system called Jabba was installed to facilitate telephone calls from home using the system. From September 2021, a hybrid working policy was applied, where 65% of working time could be worked at home and 35% would be office based. The claimant initially objected to returning to work in the office but did so after he was told that he needed to do so. He worked in the office for one day a week.

[24]Covid also had an impact upon the work undertaken by ELFS, as the number of invoices dropped significantly because of reduced invoicing requirements in the NHS during the pandemic. There was a significant downsizing of the team.

[25]We heard a lot of evidence about timesheets. The claimant needed to complete a sheet to record the work undertaken each day and for whom. The timesheets were important for the respondent’s relationship with its clients, the work undertaken for them, and how they were charged. Ms Hall, a Management Accountant, checked the collective information recorded by all Debtors Officers and noted where required information had not been provided. Omissions or errors were followed up, as the information was required for client-purposes. It was not in dispute that the claimant had regular issues with timesheets on occasion with entries not appearing which he thought had been recorded. During evidence, there appeared to be a dispute between the claimant who emphasised that all employees had IT issues, and the respondent who believed that the majority of the claimant’s personal issues arose from user error.

[26]On 28 October 2020 Ms Kenyon emailed the claimant because some time worked had not been recorded (173). The claimant responded and said he did not know what Ms Kenyon meant. The emails concluded with a request to call. On 15 February 2021 there was an exchange of emails between Ms Kenyon and Ms Hall in which Ms Hall was asked to look at the claimant’s timesheets and she responded to say it should be right, but she wasn’t sure why it had not calculated correctly. Ms Kenyon informed the claimant that Ms Hall had corrected the timesheet, to which the claimant responded no problem and with thanks. On 20 April 2021 Ms Kenyon said she could not work out why the claimant was six hours under for the previous week and a discussion followed. The claimant asked Ms Hall about being denied access to his timesheet on an occasion when he had been told by the system that his timesheet was being updated by someone else. He said the timesheet was missing and he asked for help to find it. Ms Hall responded to say she had recovered it, to which the claimant expressed his thanks.

[27]On 7 June 2021 Ms Kenyon sent the claimant an email about missed entries for work undertaken in May (447). The claimant responded by email saying he was gob smacked. He referred to having worked only two weeks in the previous month due to annual leave and said that he saw this as unrealistic and unreasonable criticism. He also said he had not seen much change in the workload when going from full-time to part-time. Ms Kenyon spoke to the claimant and sent a supportive email following the conversation. She set out an agreed way of the claimant working over the days of the week upon which he worked.

[28]On 15 June 2021, as a result of the claimant’s complaint about work allocation, Ms Kenyon asked her manager, Ms Lambert, about the number of invoices that the claimant worked and his part-time working. The figures were provided (441). The average number of invoices for full-time staff in the team were 920. The claimant was averaging 331. That figure was lower than a pro rata equivalent to the average for those working full-time.

[29]The claimant alleged that there was a verbal discussion with Ms Washington about equipment which he had at home in September 2021. Ms Washington could not recall any such conversation. Some emails were sent about equipment.

[30]The respondent operated KPIs in accordance with the agreements made with their clients. The standard review document applied standard targets based upon achievement of the KPIs and matters such as the percentage of meaningful diary comments entered on spreadsheets. Those targets were the same for all, based upon the client-specific KPIs. We were provided with a blank appraisal template containing the standard targets (473). Those were the targets which were applied to the claimant.

[31]The claimant had an annual contribution conversation (an appraisal) with Ms Kenyon on 25 October 2021. The completed form was provided (624). The claimant’s contribution was recorded as having been satisfactory, albeit that some of the standard objectives had not been achieved. The claimant recorded that he felt he was carrying a workload which was comparable with a full-time worker. In the manager’s comments, it was said that the claimant had been assured that he had been given more or less half the number of live invoices given to full time colleagues. In a part of a sentence upon which the claimant placed some emphasis, it was acknowledged that one of the Trusts for whom the claimant was working at the time had been “quite challenging in getting things resolved”.

[32]On 25 October 2021, following the claimant’s appraisal, Ms Kenyon asked Ms Lambert in an email to confirm the number of invoices assigned to the claimant in comparison to Ms Clarke. The claimant had 493 invoices at the time, Ms Clarke had 1200 (620).

[33]On 10 January 2022, Ms Kenyon and the claimant exchanged emails about timesheets. The claimant was asked to raise it with Mr Juma, which he did. On 11 April 2022 the claimant and others exchanged emails about timesheets. On 14 April Ms Hall said she was not sure why the issue had happened, but she suggested to the claimant ensuring that he was connected to the VPN when he saved his timesheet.

[34]On 17 August 2022, Ms Lambert met with the claimant and undertook his appraisal (746). The claimant raised with her his work allocation as a part-time worker. He asserted that the two Trusts for whom he was working were both in a mess. The claimant was told that a restructure in the team was ongoing and there would be changes to work allocation, but they would not be immediate. The reason for the two particular clients being allocated to the claimant was explained. The form recorded that, if and when new clients were taken on and it became possible in terms of workload, the claimant would be provided with only one Trust, but at the time of the appraisal the claimant’s Trusts were “the best option in terms of his workload and capability”.

[35]On 22 August 2022, Ms Kenyon emailed the claimant to say his timesheet had not completed for the previous Wednesday. The claimant explained the issues he was having with timesheets not saving in a response and said that Ms Hall had notified IT and he had reported the problem to Ms Hall from time to time. Ms Hall sent a response explaining what she had done and that she had updated the claimant’s timesheet for the previous week. The emails showed Ms Hall trying to contact the claimant.

[36]The list of issues recorded that the claimant alleged that in December 2022 Ms Clarke said to him “so you come here for fun?”. That date was taken from what the claimant wrote in his own further and better particulars (94). The claimant’s evidence in his witness statement was different, in that he said it was some time at the start of January 2023. He said this occurred on two occasions and it was said that the comment was made because Ms Clarke was not happy that the claimant was finishing work at 4.30 pm on the first occasion and 4.15 on the second. Ms Clarke’s evidence was that she did not recall ever saying that to the claimant and she said it was not something that she would ever have commented to anyone. She also denied that she had said it because of the claimant’s race or sex. In evidence, she highlighted that she regularly finished at 3 pm to pick her daughter up from school (and therefore finished earlier than the claimant on those days). Ms Clarke acknowledged that there would have been conversations in the team about what time someone was working that day, as part of a conversation starter with colleagues.

[37]In January 2023, the claimant’s work was changed so that he became responsible for one client only, the Whittington Health Trust (referred to as WHT). That was an entirely new client to the respondent. Based upon what the client had informed the respondent, it was believed that there would be 600 invoices per month. The claimant said that he was informed by Ms Clarke and Ms Kenyon on 4 January 2023 that there would be approximately 600 invoices.

[38]The claimant alleged that he raised that the numbers of WHT invoices was higher than expected and was told “we know that, but you are good at it”. In the list of issues, it was alleged that the comment was made on 4 January 2023.

[39]At some point from January 2023, Ms Kenyon referred to Dick Whittington. The claimant alleged that it was a name used for him personally. In crossexamination, he said he was offended by it because it included the name Dick which the claimant appeared to consider offensive. Ms Kenyon’s evidence was that she used the name to describe the Trust for which the claimant had taken on responsibility. She explained in evidence that she did so because she had previously acted for Wrightington, Wigan and Leigh, and muddled that Trust up with the Whittington. She used Dick Whittington (the name of a well-known historic character in what was described at the hearing as a rags to riches story) as a label for the Whittington to assist her in not referring in error to Wrightington. There was no evidence that the claimant complained or raised the issue at the time. The claimant could not recall precisely when it was that he said this had occurred.

[40]On 4 January 2023, Ms Washington sent an email to a large group of employees (838) asking them to let her know if they had a long internet cable as systems were going to replace them with dongles. On 5 January she messaged the claimant and asked if he used a long cable (839). The claimant replied to say he had a standard cable plugged under his desk, so he did not need one. On 1 February, the claimant messaged Ms Washington and said his powerline adaptor had blown and he asked whether it was possible to get a dongle? Ms Washington replied to say she was not sure how long it would be before they got the dongles. She asked a question about what had blown? The claimant explained and Ms Washington replied, “Bring it in on Monday then we can see if systems have a replacement”. The claimant said he would bring it in next time he was in work. He did not do so. He did not request a dongle again. He did not get one. He did not need one because he resolved the issue using his own equipment.

[41]On 9 January 2023 (849), the claimant emailed Ms Hall and said he had not been able to enter a value on his timesheet for 3 January, attached what he said it should be, and asked for it to be amended. Ms Hall replied on 10 January and said the folder was available and asked the claimant to sort it out as she said she did not have time. The claimant then corrected his previous statement in an email sent in response in which he said the error was on the flexi-sheet. On 10 January Ms Hall then addressed the request.

[42]On 24 January 2023, Ms Clarke agreed to the claimant’s request to change his regular working day in the office from Wednesday to Monday. On 21 February 2023, after the claimant requested to change it back again with immediate effect because the change did not suit his personal circumstances, Ms Clarke agreed that it could be changed back.

[43]On 20 February 2023, the claimant attended his appraisal meeting (his My Time conversation). It was conducted by both Ms Kenyon and Ms Clarke. Ms Kenyon addressed the work the claimant had previously done with the two Trusts for whom he had been responsible prior to January 2023. Ms Clarke was the manager responsible for WHT and addressed the forward-facing elements. The form prepared was provided in the bundle (1007). It was the claimant’s evidence that he never signed it off because of what was said in it. The form recorded that the claimant had not achieved KPIs. The claimant was thanked for his commitment and contribution for the last six months and wished well with his work with the new Trust.

[44]It was Ms Kenyon’s evidence, that she recorded in the appraisal that the claimant had been satisfactory. That was because of the mitigating factors and even though the claimant had not achieved many of his targets. However, the claimant was also told that if, when the new targets commenced for the new Trust (following a period when no targets applied because they were a new Trust), he did not meet the KPIs, there might have to be a performance improvement plan put in place. It was the claimant’s evidence that he was threatened with a PIP. Ms Kenyon denied that he was and emphasised that what she said about PIPs if KPIs were missed was correct. Ms Clarke’s evidence was that Ms Kenyon addressed that due to the claimant being moved to one Trust, it was expected that KPIs would be achieved once the Trust had settled and, if there was no progression with the KPIs, then the next step would be a PIP. Ms Clarke also stated that there was no threat of a PIP, but accepted it was discussed.

[45]It was common ground that the claimant responded to the mention of the PIP in the appraisal meeting by saying that if the respondent did that, he would walk. Ms Clarke described the claimant as having become very angry. It was also her evidence that, following that conversation, the claimant failed to engage with her, would not look at her, and answered her questions with one-word responses. It was clear from the claimant’s evidence, that the claimant was very unhappy with a PIP being mentioned in that conversation.

[46]At 10.51 am on 20 February 2023, the claimant emailed Ms Hall about a timesheet in which the post lunch activity had not saved (1200). Ms Hall is a Management Accountant. Her role included identifying errors from timesheets following a report run weekly. It was also clear that she, on occasion, assisted the claimant (and others) with rectifying errors. She was not employed as IT support nor was she employed as an assistant to the claimant. Three minutes after he sent his first email, the claimant emailed Mr Juma (Ms Hall’s manager) copying the email he had sent to Ms Hall and referring to it. On 27 February, the claimant emailed Mr Juma and Ms Hall about the lack of response and the fact that his flexi-sheet had not been updated, copied to Ms Clarke and Ms Washington. Ms Hall responded on 28 February explaining that she did not know what the claimant was doing with his timesheets, but she said it was a weekly occurrence, and she made some suggestions about rectifying the issue. In cross examination, Ms Hall accepted that the reference to weekly was an exaggeration, but she said the claimant frequently had issues. The claimant responded by email in quite robust terms (1198), referring to the fact that updating the sheets was not rocket science. He said he found Ms Hall’s attitude to be quite patronising. He said it happened because nothing had been done about it. He also, notably, asserted that Ms Kenyon had had the same problems. Ms Washington responded to the email trail by saying “let’s nip this in the bud, I don’t like how this email conversation has gone at all”.

[47]It was Ms Hall’s evidence that the issues which the claimant had with his timesheets were human error. They occurred because either he was saving updates to his desktop which did not enter them in the correct place, or because he was not saving them when the VPN was connected, which happened on occasion. The claimant denied that they were due to human error.

[48]At some point in March 2023, the claimant spoke to Ms Richardson about an issue he was having with invoices for his new Trust. Ms Richardson assisted him and offered to process the invoices for him, to which the claimant agreed. Ms Richardson said to the claimant, when looking at the issue, “oh Khursh they shouldn’t give you difficult invoices like that”.

[49]On 22 March 2023, the claimant attended at work as he was required to do, as it was the day of the week upon which he was required to work in the office. He attempted to use two computers in the office but was unable to do so due to technical issues. He did not speak to the IT support in the office or notify them. He did not speak to or notify a manager. He went home. By 9.58 am he was at home. He emailed his manager (1108) to say he was at home. It was the claimant’s evidence that he went home with the best of intentions. However, his VPN did not work at home. He therefore did no work at home. He did contact IT support from home. He could have undertaken work if he had been in the office, but he was not. He did not return to the office. That was, in part, because his wife had taken the car after he had returned home, but, as he agreed in evidence, he could have used a taxi to return to work but chose not to do so. He took his lunch earlier than usual. At 1.40 pm Ms Clarke emailed the claimant (1106) asking him to phone systems and stress that he had not worked all morning. She went on to say, “The only other thing I can suggest is going back in to the office for the rest of your shift and getting Systems to resolve the issue so you can at least work there”. In an email response sent five minutes later the claimant said, “I will go in and see”. Ms Clarke understood that to mean that the claimant was returning to the office as she had suggested. It was not clear what the claimant meant, but he did not do so. He stopped working at 3 pm, albeit that he had not in fact undertaken any work whatsoever during that day (save for contacting IT support to ask them to assist him with resolving the issues with remote access).

[50]The claimant recorded on his time sheet the working time for the day as continuing up to 3pm. Ms Washington instructed Ms Clarke to ask the claimant to amend the time so that the claimant was only recorded as having worked to 1.40 pm. The impact of that change was that the claimant would have a reduced flexi time amount of one hour and twenty minutes from the day.

[51]Ms Clarke emailed the claimant on 23 March (1149). Ms Clarke’s email recounted what had occurred the previous day including highlighting that “without consulting any other senior member of staff you took it upon yourself to return home, where you experienced further log on issues there too”. What was said to the claimant was “Please can you ensure that your time sheet for yesterday reflects your lunch taken as well as “IT Issues Homeworking” from the time you logged on in the office until 1:40 pm, where I had suggested for you to return to the office if you couldn’t get through to systems … Please could any time you need to make up be done today – if you have prior appointments which would prevent the time being made up today then please ensure that this is done by the end of next week”

[52]On 23 March, Ms Washington spoke to the claimant as he was upset in the office. She persuaded him to speak to her in a pod. He expressed his dissatisfaction with what had been said in Ms Clarke’s email. Ms Washington informed him it had been her decision. At the end of the conversation, the claimant alleged that Ms Clarke had previously made comments to him. Ms Washington said that she would speak to Ms Clarke. It was Ms Washington’s evidence that she did not say that she would revert to the claimant after having done so. Ms Washington spoke to Ms Clarke who denied that she had said what the claimant alleged. Ms Washington took no further steps as a result.

[53]The claimant initially responded to Ms Clarke’s email in a short email on 23 March in which he said her email was highly inaccurate and accusative.

[54]On 27 March, Ms Clarke asked the claimant to update his timesheet for the previous week to show a 1.40 pm finishing time for the Wednesday. The claimant responded pointing out that Ms Clarke had already changed his timesheet, and he said that all actions had been based on conjecture and prejudice. Ms Clarke provided a lengthy explanation of what she said had occurred and why the adjustment had been made (1123). She said that having a full day logged as IT issues was not something which could be justified to higher management, and it was pointed out that if the claimant had been in the office while systems were trying to resolve the log on issues, then he could have assisted other team members with the printing folder and post. The relevant section of the policy on hybrid working was quoted to the claimant regarding working in the office when agreed/required. The email concluded with a confirmation that the timesheet would remain as amended, showing the working day as having ended at 1.40 pm.

[55]On 29 March, the claimant returned to working in the office for the first time since the day upon which he had chosen to go home when he had IT issues. The claimant chose to covertly record himself entering the office and speaking to his colleagues (1477). From the transcript of the recording, the claimant clearly and obviously endeavoured to create a conversation about the events of the previous Wednesday. The claimant recorded on his mobile phone (on this and subsequent occasions) what others said to him and said in the office, without informing anyone that he was doing so. The claimant’s evidence was that he recorded people covertly in the office only on the five occasions for which we had transcripts in the bundle. He said that he decided to record others in January 2023. He also said that the reason he covertly recorded people was to leave his phone recording when he was away from his desk so that he could hear what others said about him. He appeared to have no qualms whatsoever about having covertly recorded his colleagues and he likened the action of doing so to having CCTV at home. The claimant did not inform anyone that he was recording them, including when he recorded an entire meeting which he had with Mr Endersby, a senior manager. We found the claimant’s willingness to undertake covert recordings of others in the office, including his colleagues, to be somewhat distasteful and we took into account the claimant doing so when we assessed credibility. We also formed the view, based upon what was said in some of the recordings, that the claimant appeared to be deliberately trying to steer some conversations around to issues about which he wanted evidence and that his reason for undertaking recordings was effectively to assist him in creating a case as he had already decided to leave the respondent and was seeking material to support a potential claim.

[56]On 3 April, the claimant sent a lengthy email (1146). That email addressed what had been said at considerable length, which will not be reproduced in this Judgment. The claimant did admit that he had made a bad choice going home without speaking to management but insisted it had been done with the best of intentions. He also said that, following an unfortunate and unintentional pattern of the past few weeks where he had taken time off or gone home on a Wednesday, he said it would not be unreasonable for there to be some suspicion. Before highlighting ongoing IT issues, the claimant said that there was a lack of duty of care, breach of trust, workplace bullying, harassment, and a lack of due process. The claimant did not state that he wanted his email addressed as a grievance. He did not allege discrimination or harassment on grounds of, or related to, race or sex.

[57]On 5 April 2023, Ms Richardson said to the claimant that today was going to be a very good day. It was covertly recorded by the claimant. The transcript was provided (1487). The claimant’s evidence was that he was in a sulk and the conversation took place at the start of the day. What the transcript recorded Ms Richardson as saying was “Today is going to be a very good day, today is going to be a very good day. Khursh, today is going to be a very good day”. The claimant said, “is it?”. There was laughter. Ms Richardson said, “positive mindsets. Never a good day when you are in here”.

[58]We were also provided with the transcript of a covert recording which the claimant made of a conversation between two of his colleagues, apparently also on 5 April 2023 (1488). In that conversation, the colleagues talked about a cocker spaniel. They then talked about one of the speaker’s sons who has a beard. In describing the beard, the claimant’s beard was referred to for comparison. The claimant recorded in his further and better particulars (91) that he was likened to a cocker spaniel. The allegation in the list of issues recorded that the claimant’s beard was referenced to a dog’s mane. It was patently obvious from the transcript provided of the covert recording, that the claimant was not likened to a cocker spaniel, nor was his beard referenced to a dog’s mane. His beard was used as a basis for describing the speaker’s son’s beard. During his cross-examination, the claimant chose not to pursue his allegations based on that transcript.

[59]The claimant met with Mr Endersby on 5 April. Mr Endersby’s evidence was that he had been concerned about the claimant’s email, which was why he spoke to him. The claimant covertly recorded the meeting without Mr Endersby’s knowledge. It was the claimant’s evidence that, at the time, he was covertly recording the office on his phone, so he simply continued the covert recording while he spoke to Mr Endersby. He did not inform Mr Endersby that he was doing so. We were provided with a transcript of what was said (1461). In the course of a reasonably lengthy conversation, the claimant said that he did not give a damn about the hour or so, but it was actually the tone of what he described as an attack, about which he had been concerned. Mr Endersby said that he agreed that, with hindsight, it would have made more sense for the claimant to have been sat down and for it to have been discussed. He said it perhaps had been a bit heavy-handed. He said that the way Ms Clarke had handled it was perhaps a bit blunt. However, he also said that he agreed with what the outcome had been, but not necessarily how it had been arrived at.

[60]In the course of the discussion with Mr Endersby, the claimant explicitly stated that he intended to raise a grievance. He said that he would put something together over the next few days and would submit it. Mr Endersby asked whether there would be any merit in a conversation between the claimant and Ms Clarke, and the claimant said there was no chance of that as he had lost confidence. At the end of the meeting, Mr Endersby told the claimant that if it was an ear he needed, he could come and talk to Mr Endersby, but obviously his first route was through his existing management structure. Mr Endersby said that he would not respond formally but would tell Ms Washington about the conversation. He said that, once the claimant had formulated his thoughts on his grievance, then that would be a process that would be worked through.

[61]On 6 April, the claimant emailed Mr Endersby (1215). He said that he would like to amend the agreement and went on to say that, upon reflection, he felt that he had done himself a huge disservice by agreeing that docking his flexi time was acceptable. He went on to say that “I would like management to adjudicate on the matter, as it is clear that there was no actual or wilful insubordination. I also believe I acted in good faith, and I am being deprived of the benefit of the doubt and compassion. This is important as I would consider an appeal for this to be looked at by an independent person”. Mr Endersby’s evidence was that he thought he had responded by email but could not locate the email which he sent. In any event, he did not read the email as being a grievance and he understood that the claimant would be raising a grievance after the conversation of the previous day.

[62]In the first week of April, the claimant gained access to the respondent’s system and compared the number of invoices for which he was responsible with those of his colleagues. He identified that he was responsible for 1146, Mr Elms was responsible for 519 (he worked three days per week), Ms Morgan was responsible for 840, Ms Champ had 1348, Ms Richardson had 730, and Ms Birom had 694. The claimant emailed to his personal email account the documents which showed the accounts for which he was responsible.

[63]On 12 April, the claimant covertly recorded a conversation between his colleagues when he attended work. We were provided with the transcript (1480) and we were also played the recording. It appeared that Travis Hamer was assisting Ms Kenyon with an IT issue. Ms Kenyon asked Mr Hamer whether he was in all day. There was laughter, it was not entirely clear why. The claimant later spoke to Ms Kenyon. He asked about what had been said to Mr Hamer and why there had been laughter. He contended that Ms Kenyon had used the same words on the phone the previous week to someone else. Ms Kenyon informed the claimant that it came from a comedy sketch by Eric Morecambe or the Two Ronnies (her evidence to us was that it was something said by the Two Ronnies).

[64]On 17 April, the claimant raised a formal grievance in an email sent to Mr Endersby and copied to Ms Washington (1272). He said that his formal grievance was against Ms Clarke and Ms Richardson. He referred to what he described as the heavy-handed response of 22 March. He also raised a number of other issues (which we will not reproduce in this Judgment). He said “I have never been made to feel a part of the team. I have tried to integrate but I have not found any friends. I have suffered exclusion. Some how I don’t belong and I cant rule out racism”. He contended that no one had wished him happy birthday or happy Eid in four years. Amongst other things, he made the allegation that on 5 April a cocker spaniel’s mane had been compared to his beard. He concluded his email by saying “This is unreal stuff, and it makes the Yorkshire Cricket Club bullying and Racism scandal look like a fairy tale”

[65]The claimant was absent from work on ill health grounds from 18 April 2023. He provided a fit note. He did not return to work until 22 May 2023.

[66]Mr Endersby acknowledged the grievance by email on 20 April (1271). The claimant did not see the response until later as it went into his spam. The grievance was not progressed. Mr Endersby gave two reasons for the delay. He sought advice from HR and their advice was slow because of absences in HR (he particularly sought advice about the correct procedure to follow between the new grievance procedure and the dignity at work procedure because he felt it was not clear – this was the first and only grievance which Mr Endersby has dealt with in the NHS despite being employed in the NHS for a long time). He also did not want to place the claimant under further pressure where he had been signed off with work related stress.

[67]On 16 May 2023, the claimant was asked to complete a grievance form. The need for the form was explained by Mr Endersby with reference to the advice from HR. The claimant did so and submitted the completed form on 18 May. In an email of 17 May, the claimant expressed his understandable disappointment that it had taken almost five weeks from raising the grievance to being asked for the form. He concluded his email by saying that he would complete and return the form soon. On 19 May, Mr Endersby provided his explanations for the delay (1269), “This was partly due to delays in accessing HR support as to the correct way to progress this matter, and partly due to you currently being on sick leave and me trying to be sensitive to your situation”.

[68]On 22 May 2023, the claimant returned to work. Ms Washington sent her usual regular email to the team checking that everyone was ok, and the claimant responded to say that he was back to work. Ms Washington spoke to the claimant and explained who had covered work in his absence. She emailed Ms Clarke to inform her. Ms Clarke sent the claimant an email at 9.16 am which said it was good to have the claimant back and she hoped he was feeling better, before addressing work matters.

[69]The claimant submitted his resignation by email at 9.50 am on 22 May (1277). He said it was his resignation with immediate effect. He said that for two and a half years he had been deliberately and systematically overburdened with disproportionate workload. He referred to the Trusts for whom he had worked, that he had been told that the Whittington had around six hundred invoices on a monthly basis, and that in the first week of April he had gleaned that he had 1145 invoices to chase by the month end, in contrast to his colleagues (whose numbers he recounted). He said he believed he had been deliberately lied to, he also said that he had separately complained of bullying, racial and sexual harassment, exclusion, and that he had the strong suspicion that his timesheets had been monitored regularly. At the end of his email, the claimant referred to the March flexi time issue and the informal and formal grievances he had raised.

[70]The claimant was offered an exit interview and a stay with us conversation. The claimant said that he did not wish to have one, and said he had answered things in his resignation email and other recent emails and did not see the point of going over it again. The respondent took no further action regarding the claimant’s grievance. Mr Endersby’s evidence was that, in doing so, he acted upon advice from HR that the resignation should be processed.

[71]The claimant entered into ACAS Early Conciliation from 30 May to 1 June and entered his claim at the Tribunal on 15 June 2023.

[72]We heard evidence about cards and gifts sent to members of ELFS. It was the respondent’s evidence that cards and gifts were sent on occasion, such as for significant birthdays and for long term absence, but they were not provided universally and (at least from the advent of Covid) were not done routinely. The claimant did not receive a card or gift for any of his birthdays while employed by the respondent (but none were significant). The claimant was also hospitalised with Covid at one time, an occasion when the claimant emphasised the seriousness of his condition. He did not receive a card or present on that occasion, albeit we were shown concerned emails sent to him on his return. The other evidence about cards and gifts is addressed in our conclusions below.

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

The Law

[74]An unfair dismissal claim can be pursued only if the employee has been dismissed as defined by Section 95 of the Employment Rights Act 1996. Section 95(1)(c) provides that an employee is dismissed by his employer if: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

[75]The principles behind such a constructive dismissal were set out by the Court of Appeal in Western Excavating (ECC) Limited v Sharp

[1978] ICR 221

. The statutory language incorporates the law of contract, which means that the employee is entitled to treat himself as constructively dismissed only if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which showed that the employer no longer intended to be bound by one or more of the essential terms of the contract.

[76]The term of the contract upon which the claimant relied in this case was the implied term of trust and confidence. As the claimant submitted, the leading authority on that term is Malik and Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606

in which the House of Lords said that it imposed an obligation that the employer shall not: “…without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

[77]The test is an objective one in which the subjective perception of the employee can be relevant but is not determinative.

[78]Not every action by an employer which can properly give rise to complaint by an employee amounts to a breach of the duty of trust and confidence. The formulation approved in Malik recognises that the conduct must be likely to destroy or seriously damage the relationship of confidence and trust. The respondent’s counsel emphasised that the term is only breached where the employer had no reasonable and proper cause for its actions (citing Gogay v Hertfordshire County Council

[2000] IRLR 703

[79]A failure to adhere to a proper procedure is capable of amounting to a breach of the implied term of trust and confidence. It is for us to assess in each case whether what occurred was sufficiently serious as to amount to a breach of that implied term.

[80]The employee must resign in response to the repudiatory breach, but it is not necessary to prove that the breach was the sole cause. There may be concurrent causes operating on the mind of the employee, and the proper approach is to ask whether the employee has accepted the repudiation found by treating the contract of employment as at an end – it must be in response to the repudiation. There must be sufficient causal connection between the repudiation and the resignation.

[81]The claimant relied upon a “last straw”. He also referred us to what was said in the decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju

[2005] ICR 481

. The last straw itself need not be a repudiatory breach as long as it adds something to what has gone before, so that when viewed cumulatively a repudiatory breach of contract is established. However, the last straw cannot be an entirely innocuous act or be something which is utterly trivial. Dyson LJ said the following in Omilaju: “The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase 'an act in a series' in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle. Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective”

[82]Where there is a fundamental breach of contract by the employer, the employee may elect to accept the breach and bring the contract to an end or treat the contract as continuing requiring the employer to continue to perform it – that is affirmation. Where the employee affirms the contract, they lose the right to treat the employer’s conduct as having brought the contract to an end. Affirmation can be express or implied. Mere delay will not, in the absence of something amounting to affirmation, amount in itself to affirmation. However, the ongoing and dynamic nature of the employment relationship means that a prolonged or significant delay may give rise to an implied affirmation because of what occurred in that period. Acts which are consistent only with the contract continuing are likely to be implied affirmation.

[83]In Kaur v Leeds Teaching Hospitals NHS Trust

[2019] ICR 1

Underhill LJ said: “In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reasons given…)

(5) Did the employee resign in response (or partly in response) to that breach?”

[84]An entirely innocuous act on the part of the employer cannot amount to a final straw, even if the employee genuinely but mistakenly interpreted the act as hurtful and destructive of his trust and confidence in the employer.

[85]We are required to take into account what is said in the ACAS code of practice on disciplinary and grievance procedures (albeit that a breach of what is said in the code does not, in itself, make a person or organisation liable to proceedings). That says that employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.

[86]The direct discrimination claim relies on section 13 of the Equality Act 2010 which provides that: “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.”

[87]Section 39(2) of the Equality Act 2010 provides that an employer must not discriminate against an employee. It sets out various ways in which discrimination can occur, and these include any other detriment and dismissal. The characteristics protected by these provisions include race and sex.

[88]As the respondent’s counsel emphasised, direct discrimination is based on comparative treatment. It must be established that the claimant was treated “less favourably” than someone else, who will be either an actual person or a hypothetical person whose circumstances are materially the same as their own.

[89]Under Section 23(1) of the Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. The requirement is that all relevant circumstances between the claimant and the comparator must be the same and not materially different, although it is not required that the situations have to be precisely the same. In Leicester City Council v Parmar

[2024] EAT 85

the Employment Appeal Tribunal said that comparing the treatment of a claimant with that of another person is a subtle business and the analysis is highly context specific. The respondent reminded us of what was said in the EHRC code of practice at 3.23.

[90]We were reminded in the respondent’s submission of what was said by the Employment Appeal Tribunal in London Borough of Islington v Ladele

[2009] IRLR 154

as follows: ''The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport

[1999] IRLR 572

, 575—“this is the crucial question”. He also observed that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p 576) as explained by Peter Gibson LJ in Igen v Wong

[2005] EWCA Civ 142

[2005] ICR 931

[2005] IRLR 258

paragraph 37.

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test, which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong.

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. …

(5) It is not necessary in every case for a tribunal to go through the twostage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC

[2007] EWCA Civ 32

[2007] IRLR 259

paragraphs 28–39. …

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford

[2001] EWCA Civ 405

[2001] IRLR 377

esp paragraph 10.

(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ahsan

[2008] IRLR 243

[2008] 1 All ER 869

… paragraphs 36– 37) …''

[91]Section 136 of the Equality Act 2010 sets out the manner in which the burden of proof operates in a discrimination case and provides as follows: “(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But sub-section (2) does not apply if A shows that A did not contravene the provision”.

[92]At the first stage, we must consider whether the claimant has proved facts on a balance of probabilities from which we could conclude, in the absence of an adequate explanation from the respondent, that the respondent committed an act of unlawful discrimination. This is sometimes known as the prima facie case. It is not enough for the claimant to show merely that he has been treated less favourably than a comparator and there was a difference of a protected characteristic between them. In general terms “something more” than that would be required before the respondent is required to provide a non-discriminatory explanation. At this stage we do not have to reach a definitive determination that such facts would lead us to the conclusion that there was an act of unlawful discrimination, the question is whether it could do so.

[93]If the first stage has resulted in the prima facie case being made, there is also a second stage. There is a reversal of the burden of proof as it shifts to the respondent. We must uphold the claim unless the respondent proves that it did not commit (or is not to be treated as having committed) the alleged discriminatory act. To discharge the burden of proof, there must be cogent evidence that the treatment was in no sense whatsoever on the grounds of the protected characteristic.

[94]In practice Tribunals normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, second, whether the less favourable treatment was on the ground that the claimant had the protected characteristic. However, a Tribunal is not always required to do so, as sometimes these two issues are intertwined, particularly where the identity of the relevant comparator is a matter of dispute.

[95]In most cases there is a need to consider the mental processes, whether conscious or unconscious, which led the alleged discriminator to do the act. Determining this can sometimes not be an easy enquiry, but we must draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). The subject of the enquiry is the ground of, or the reason for, the alleged discriminator’s action, not his or her motive.

[96]We need to be mindful of the fact that direct evidence of discrimination is rare and that Tribunals frequently have to infer discrimination from all the material facts.

[97]The protected characteristic does not have to be the only reason for the conduct, provided that it is an effective cause or a significant influence for the treatment.

[98]The explanation for the less favourable treatment does not have to be a reasonable one. Unfair or unreasonable treatment by an employer does not of itself establish discriminatory treatment. The fact that the claimant has a protected characteristic, and it is found that the respondent has treated him badly does not equate to an adverse inference of discrimination; there needs to be something more (Zafar v Glasgow City Council

[1998] IRLR 36

[99]The way in which the burden of proof should be considered has been explained in many authorities, including the following (most of which were cited by the respondent’s counsel and the claimant cited Igen): Barton v Investec Henderson Crosthwaite Securities Limited

[2003] IRLR 332

; Shamoon v Chief Constable of the RUC

[2003] IRLR 285

; Hewage v Grampian Health Board

[2012] ICR 1054

; Igen Limited v Wong

[2005] ICR 931

; Madarassy v Nomura International PLC

[2007] ICR 867

; Royal Mail v Efobi

[2021] UKSC 33

[100]Section 26 of the Equality Act 2010 says: “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.” “In deciding whether conduct has the purpose or 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;

[101]Both parties referred us in their submissions to the decision of the Employment Appeal Tribunal in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

. It was stated that harassment is defined in a way that focuses on three elements:(a) unwanted conduct;

(b) having the purpose or effect of either: (i) violating the claimant's dignity; or (ii) creating an adverse environment for her;

(c) on the prohibited grounds. Although many cases will involve considerable overlap between the three elements, it is normally a healthy discipline for Tribunals to address each factor separately and ensure that factual findings are made on each of them. The claimant submitted that Dhaliwal confirmed that the impact on the victim was key.

[102]Conduct which is intended to have the relevant effect will be unlawful even if it does not, in fact, have that effect. A respondent can be liable for effects, even if they were not its purpose.

[103]If the conduct has had the proscribed effect, it must also be reasonable that it did so. The test in this regard has both subjective and objective elements to it. The assessment requires us to consider the effect of the conduct from the claimant's point of view; the subjective element. We must also ask, however, whether it was reasonable of the claimant to consider that conduct had that requisite effect; the objective element. We must do that taking into account all the other circumstances of the case.

[104]Tribunals have been warned that whilst it is important to be sensitive to the hurt that can be caused by comments or conduct, it is important not to encourage a culture of hypersensitivity or the imposition of legal liability for every unfortunate phrase. We must consider whether it was reasonable for the conduct to have the effect on this claimant.

[105]We must also decide whether the conduct related to race or sex. There is not a requirement that the conduct must be motivated by race or sex. It is always relevant to take into account the context of the conduct which is likely to be an important factor.

[106]In her submissions, the respondent’s counsel referred to passages from the Judgments in Dhaliwal, Pemberton v Inwood

[2018] EWCA Civ 564

, and Bakkali v Greater Manchester Buses (South) Ltd (t/a Stagecoach Manchester)

[2018] ICR 1481

, which we took into account but will not reproduce here.

[107]Section 123 of the Equality Act 2010 provides that proceedings must be brought within the period of three months starting with the date of the act to which the complaint relates (and subject to the extension for ACAS Early Conciliation), or such other period as the Tribunal thinks just and equitable. Conduct extending over a period is to be treated as done at the end of the period. A failure to do something is to be treated as occurring when the person in question decided on it. If out of time, we need to decide whether it is just and equitable to extend time. Section 123(1)(b) of the Equality Act 2010 states that proceedings may be brought in, “such other period as the Employment Tribunal thinks just and equitable”. The most important part of the exercise of the just and equitable discretion is to balance the respective prejudice to the parties. The factors which are usually considered are contained in section 33 of the Limitation Act 1980 as explained in the case of British Coal Corporation v Keeble

[1997] IRLR 336

, albeit they are not a checklist to which we must rigidly adhere. Some of those factors are: the length of, and reasons for the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; and the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action. Conclusions – applying the Law to the Facts Constructive dismissal

[108]We made our decision following the order of matters as set out in the list of issues. The first issue was the claimant’s unfair constructive dismissal claim. We considered the matters set out as individually or cumulatively forming the alleged breach of the duty of trust and confidence as listed at 1.1.1.

[109]Issue 1.1.1.1 was whether the respondent imposed on the claimant unrealistic and unfair KPIs? We accepted the position as put forward in the respondent’s submissions: the KPIs were specific to the Trust and not the person; KPIs were set by the client in consultation with the respondent; the respondent could be penalised if it failed to meet the KPIs; and, from January 2023 until the claimant’s resignation, no KPIs were being actively applied for the Trust for which the claimant undertook work. It was the evidence of the respondent’s witnesses, that the KPIs applied were not unfair or unrealistic. We did not find that the claimant was set KPIs which were unrealistic or unfair. The KPIs were generic and applied to anyone undertaking the work for that Trust.

[110]Issue 1.1.1.2 asked whether the respondent gave the claimant too many Trusts’ accounts to manage? Within her submissions, the respondent’s counsel set out the history of the Trusts upon which the claimant had worked. Between October 2019 and September 2020, he worked on two Trusts, each of which was shared with another Debtors Officer. One was smaller and one larger. Between October 2020 and September 2021, the claimant worked with two Trusts, one being the same as he had worked previously and one being a small Trust which was not new to the respondent. From August 2021, another Debtors Officer took over responsibility for chasing one of the Trust’s aged debt. From October 2021 until May 2022, the claimant did undertake work for three Trusts, but one of those Trusts was shared with another Debtors Officer (as it had been since August) and for the largest of the Trusts (the respondent itself) the claimant worked on only a part of the work and three colleagues worked full time on it. Between June 2022 and January 2023, the claimant worked for only two Trusts, one of which was a small ambulance Trust; and from January 2023 the claimant worked for WHT only. We did not find that the claimant was given too many Trust accounts to manage. Even when he worked for three Trusts, their work was not uniquely his. For the constructive dismissal claim, the most important period was the last five months of his employment when the claimant was given only one Trust. He was given work for only one Trust, because that was what the claimant had asked for. It took some time for circumstances to arise, following his request, when he could be given one Trust of an appropriate size, and, when that occurred, it was given to him. As at 22 May 2023, the claimant had been working for only one Trust since January and that Trust’s KPIs had been suspended.

[111]Issue 1.1.1.3 was whether the claimant was given too many invoices to chase each month, particularly as he worked part time? The list of issues recorded the numbers of invoices which the claimant identified when he looked at a snapshot of the figures in the first week of April, when he emailed the list of invoices to his own email address. The respondent demonstrated in evidence and in submissions that the claimant was not given a disproportionate number of invoices throughout his employment, prior to the April 2023 snapshot identified by the claimant. Whilst it may have appeared at first glance that the claimant had a disproportionately high number of invoices as at that snapshot, in fact there were the following explanations for the high number of invoices: 758 of the invoices recorded for the claimant were legacy debt; Ms Clarke was reviewing the debt for the new client which would have led to a reduction in the number recorded; and only 319 of the invoices were live cases. That number of live cases was significantly below the average pro rata number based upon the claimant’s three and a half days part-time hours and his colleagues’ invoice numbers. As a result, we did not find that the claimant was given too many invoices to chase, either each month or at the time when the claimant looked at the invoice numbers in April 2023.

[112]Issues 1.1.1.4 and 1.1.1.5 addressed the same issue. For both, the claimant alleged that he was misled into thinking he would have approximately 600 invoices to chase per month, when in fact he was given approximately 1150 per month (for one Trust). In 1.1.1.5 he alleged that one of the respondent’s employees made comments such as, “We know that but you are good at it”. We did not find that the respondent misled the claimant when he was told about the anticipated invoice numbers for WHT. That Trust was a new client to the respondent at the time when the claimant was told. The respondent relied upon what it was told by the client. The respondent also knew that there would need to be an initial period when it would need to clear up the invoices and the data around them, which was the reason why the KPIs for the new client were suspended for the first few months. It would, in fact, appear (for the reasons given when addressing the previous issue) that, when considering only live invoices, the number was less than the 600 which the claimant was told. We did not find that the claimant was misled as alleged.

[113]In terms of the comment quoted as part of allegation 1.1.1.5, Ms Kenyon accepted that she said it at some point in February 2023. We found it to be a positive comment which was encouraging. It praised the claimant’s ability. We found that there was nothing about the comment being made which could form a breach of the duty of trust and confidence or be a part of such a breach.

[114]Issue 1.1.1.6 was that the claimant alleged that he was given problem or difficult Trusts to sort and turn around and, once he had sorted the problems with those accounts, the respondent would remove him and ask him to sort out different problem Trusts. We did not find that was what had occurred at all. Focussing upon the end of the claimant’s employment, the reason why the claimant was given WHT was because he asked to be given a single Trust, and it was the single Trust of the right size which became available. It was a new client to the respondent. He was not given the organisation because it was a problem or difficult Trust. By that time, he had greater experience than newer Debtors Officers and that was, in part, why he was given a client new to the respondent (and other newer officers were given Trusts who had been clients for some time). However, that did not substantiate the claimant’s allegation as set out in the list of issues, and what occurred did not constitute a breach of the duty of trust and confidence.

[115]Issue 1.1.1.7 was the allegation that the respondent failed to act on its promises to improve the claimant’s workload. There was no evidence that the respondent agreed to reduce the claimant’s workload. We have explained in the facts section, that the respondent did address concerns that the claimant had with his workload when they were raised. As we have already explained, what the respondent did do was move the claimant to working with only one Trust, based upon what the claimant asked for.

[116]In issue 1.1.1.8 the claimant alleged that he had been admonished for not meeting KPIs in what were described as emails with Alex Lambert and Carol Kenyon on 7 June 2021. On 7 June 2021 (447) Ms Kenyon emailed the claimant explaining that in May 2021 there had been a failure to fill in 79 entries. That email was sent because those were gaps in the required data. In the email, advice was given on what to do next. We did not find that the email contained any admonishment. The claimant was not told off in the email. As the respondent submitted, the email was polite and professional and highlighted the issue. It was an email saying what needed to be done.

[117]In response to 7 June email, the claimant explained that he had been on leave for some of the previous month. There appeared to have been a conversation between the claimant and Ms Kenyon, and Ms Kenyon had then sent a response. The response sent acknowledged that, during annual leave, things would slip and it suggested an approach to dealing with matters. We noted that Ms Lambert appeared to have no involvement in the exchange at all, she was simply copied in. We did not find that there was anything about the email exchange which breached the duty of trust and confidence or was even capable of doing so. This was a management issue which was appropriately addressed. We also considered it entirely inconceivable that such an email exchange in June 2021, was a part of the reason why the claimant resigned in May 2023.

[118]Issue 1.1.1.9 arose from what was said to the claimant in his appraisal meeting on 20 February 2023. That was conducted by both Ms Kenyon and Ms Clarke. The claimant alleged that he was threatened with a personal improvement plan if he did not hit his KPIs. We accepted the evidence of both Ms Kenyon and Ms Clarke that the claimant was not threatened in that meeting as alleged. We found it to have been an entirely appropriate management action for the claimant to be told what could or would occur in the future if KPIs were not hit, where the claimant had not hit a large number of KPIs (something which had occurred on more than one occasion). In the 20 February meeting, the attendees accepted the mitigation for the KPIs not being hit on that occasion. The respondent was perfectly able to, it was entirely appropriate to, and arguably it was necessary to, explain the possibility of a PIP in the future if KPIs continued not to be hit. We would add that, whilst the respondent’s submission that a PIP is a supportive tool had some validity, we accepted that what was being outlined to the claimant in that meeting if it had occurred, was something which the claimant viewed as having adverse connotations for him.

[119]We considered issue 1.1.1.11 before 1.1.1.10 as it occurred first (that being a complaint about what happened on 22 March and what was decided as a result, whereas 1.1.1.11 was about the claimant raising issues afterwards). The issue arose from the respondent’s decision to deduct one hour from the time recorded for the claimant on 22 March 2023, which he was therefore required to work at another time, because the claimant had not in fact been undertaken working for that period. In the list of issues, that was described as Ms Clarke having impounded the claimant’s hours. We have already described the events as they occurred on 22 March. We accepted that the respondent was perfectly able to take the approach that it chose to take towards the claimant’s working hours for 22 March. The claimant had not worked during that time and had not been at the place where he should have been to undertake the work (had he been in the office, or had he returned to the office, he would have been able to undertake some work). Indeed, we considered the respondent to have acted relatively leniently in the action taken. We considered that a reasonable employer could have taken a more significant approach. The claimant did not suffer a reduced wage as a result, he simply had to make up a proportion of the time for which he had not worked on 22 March, on another occasion (consistent with the evidenced approach to another employee). For an hour which the claimant had not worked, he was required to work on another date. That was not a breach of contract or capable of being such a breach. We accepted the respondent’s submission that Ms Washington had reasonable and proper cause for the deduction made to the time recorded for the claimant’s flexi. We also accepted that the decision was one made by Ms Washington and not Ms Clarke.

[120]Issue 1.1.1.10 was the contention that Ms Washington failed to investigate a verbal complaint made by the claimant on 23 March 2023, which was said to have been of bullying, harassment and maltreatment by Ms Clarke. On 23 March, Ms Washington spoke to the claimant about the events of 22 March and the decision which had been made regarding his flexi. We accepted Ms Washington’s evidence that she saw that the claimant was upset in the open office, so went over and asked him to meet with her in a pod for a chat. Ms Washington informed the claimant that it had been her decision to deduct the hour. The majority of that conversation was not about a complaint from the claimant, but rather it was a conversation about something the claimant was unhappy about. There was no obligation on Ms Washington to investigate her own decision as a result of that conversation and, indeed, it was Ms Washington’s evidence that during the discussion the claimant accepted Ms Washington’s reasons for doing so.

[121]At the end of the conversation with Ms Washington, the claimant also made a statement that Ms Clarke had said to him “do you come here for fun”. We accepted Ms Washington’s evidence that she did not say that she would investigate and respond. She did day that she would speak to Ms Clarke, which she did. In her evidence, Ms Washington accepted that she probably should have gone back to the claimant with a response. We did not find that, in the circumstances, her failure to do so was a breach of the duty of trust and confidence. It was not a failure to investigate a formal complaint or grievance.

[122]Issue 1.1.1.12 was Mr Endersby’s alleged failure to investigate Ms Clarke’s decision to impound the hour (said to be an hour worked by the claimant, something which we have already addressed). It was said in the list of issues, that because he made no decision that had left the claimant with no right of appeal. Three occasions were raised in the list when the claimant said he had made the complaint to Mr Endersby: 5 April in a verbal complaint in a meeting; 6 April in an email; and 16 April in a formal grievance.

[123]On 5 April 2023 the claimant spoke to Mr Endersby. He covertly recorded the conversation and therefore we had a transcript of exactly what was said, as we have described. It was very clear from the transcript that the claimant told Mr Endersby that he intended to raise a grievance, would put something together over the next few days, and would submit it. It was agreed at the end of the meeting that, once the claimant had recorded his thoughts as a grievance, that was the process which would be worked through. As a result, it was not expected the Mr Endersby would do anything following the conversation. It was Mr Enderby’s evidence (which we accepted) that he informed the claimant that he agreed with the outcome/decision. To that extent, Mr Endersby did adjudicate on the claimant’s complaint about the hour in the meeting. There was no failure to do so.

[124]On 6 April, the claimant emailed Mr Endersby and said that he would like to amend his decision to agree and asked for an adjudication. Mr Endersby was unable to provide us with a response. There was, accordingly, a failure to do what the claimant requested. However, as Mr Endersby had informed the claimant that he agreed with the decision on 5 April and as the claimant had made clear on 5 April that he would be raising a formal grievance, we did not find that there was any failure to adjudicate (as alleged) in the absence of a response. A failure to respond to that specific email was not a breach of the duty of trust and confidence.

[125]On 17 April, the claimant raised a formal grievance. As that was the subject of issues 1.1.1.13 and 1.1.1.14, we have addressed that in addressing those two issues. Within issue 1.1.1.12, the claimant contended that he was left without a right of appeal by the alleged failure to adjudicate. As the claimant went on to do, his opportunity to raise issues formally was by using the respondent’s grievance procedure. He was not denied an opportunity to raise a grievance or to appeal against the decision which Ms Washington had made.

[126]Issues 1.1.1.13 and 1.1.1.14 were the respondent’s alleged failure to investigate the formal grievance raised by the claimant (against Ms Clarke and Ms Richardson) and the alleged failure to follow the ACAS code and the respondent’s own grievance policy. Whilst we were not taken by the claimant to any specific part of the ACAS code on disciplinary and grievance procedures, that does say that employers should deal with issues promptly. As we have described in the facts, the respondent’s grievance procedure also set out that issues would be dealt with promptly, whilst specifically saying that matters would be addressed within ten weeks (unless there was a valid reason for delay) and that the meeting under the first formal stage was to be held within fourteen calendar days of receipt of the requesting a resolution from grievance form.

[127]The claimant’s formal grievance was raised on 17 April. After a request made on 16 May to complete the requesting a resolution from grievance form, that form was completed on 18 May. The claimant resigned on 22 May. Irrespective of whether or not the respondent should still have investigated the grievance and followed a process after the claimant’s resignation, only things which occurred prior to the resignation could be relevant when deciding the constructive dismissal claim and why it was the claimant resigned. We found that the respondent failed to deal with issues promptly, as it was required to do both in accordance with its own procedure and in accordance with the ACAS code. Absolutely nothing happened to actually progress or address the claimant’s grievance, from it being entered on 17 April, until to his resignation on 22 May (save for a very late request for the relevant form to be completed). We noted that Mr Endersby explained the delay by reference to: delays in HR advice being provided; confusion over which policy to follow, particularly in the context of a new grievance policy; and a view taken about progressing the grievance whilst the claimant was absent on ill health grounds. None of those reasons (which we accepted were the reasons) altered that fact that the grievance was not addressed promptly. Technically, the respondent did not breach the specific timescales in the policy, as the claimant only completed the form on 18 May and he had resigned before the required fourteen calendar days for a meeting had elapsed. It was also still within ten weeks of his grievance when the claimant chose to resign.

[128]We did not find that the failure to deal with the claimant’s grievance promptly in the circumstances and for the reasons given, was, in and of itself, a breach of the duty of trust and confidence. We found that the delay was not sufficient to amount to such a breach in the circumstances of this case. Even were we to have been wrong about that, we have also addressed the reason for the claimant’s resignation in paragraph 133 below, which meant that we would not have found for the claimant based upon that alleged breach in any event.

[129]The claimant in his closing submissions (for the first time), relied upon the failure to address his grievance as being the last straw which caused him to resign. The last straw does not need to be a breach of the duty of trust and confidence itself, it just needs to add something to what has gone before. Had we found that the duty of trust and confidence had been breached in some other way, we would have found that the failure to progress the claimant’s grievance promptly would have been sufficient for it to have constituted the last straw required.

[130]Issue 1.1.2 asked whether those things breached the duty of trust and confidence. We have already set out that we did not consider that any of the things alleged individually constituted such a breach. For the things which we found occurred, we also considered whether they collectively amounted to a breach of the duty of trust and confidence, and we did not find that they did. For some of the matters, the respondent had reasonable and proper cause for what occurred. The respondent did not behave in a way which, viewed objectively, was calculated or likely to destroy or seriously damage the trust and confidence between itself and the claimant.

[131]Issue 1.1.3 asked whether any breach of contract was a reason for the claimant’s resignation? In practice, we found that the reasons for the claimant’s resignation were: the fact that the claimant saw the role as a stop gap and he had decided to leave from early on in his employment; the issue of a PIP being raised in his appraisal on 22 February 2023 about which he was clearly aggrieved; and the decisions taken following the day when the claimant returned home on 20 March.

[132]In the course of the hearing, we heard argument that Ms Clarke still being the claimant’s manager when he returned to work on 22 May and emailing him about work matters, after he had raised a grievance against her, was part of the reason for the claimant’s resignation. That was not the claimant’s pleaded case, and it had not previously been argued as being a part of the breach of the duty of trust and confidence. We also noted that it was not something to which the claimant referred when he resigned. Accordingly, we did not find that was genuinely a reason for his resignation, as, if it had been, he would have mentioned it in his resignation, referred to it in his claim form and grounds of claim, and/or he would have raised it during the lengthy process of clarifying his Tribunal claim. We also did not find that was genuinely the last straw which led to his resignation, for the same reasons.

[133]We also did not find that the last straw relied upon by the claimant in his submissions, was in fact a reason for his resignation. The last straw he relied upon in submissions was the failure to progress his formal grievance. Based upon the evidence which we heard, we found that the claimant had already decided to resign prior to his grievance being raised. We found that his resignation decision had already been made at the time when the claimant chose to take the approach of covertly recording his colleagues in the office in order to try to obtain evidence to support his intended case (if not before). Whilst the claimant’s evidence about when he decided to do that was confused and that decision may have been made as early as January 2023, if we took the date of the first recording in late March 2023 as being the date when the claimant had decided to resign, that pre-dated the grievance being raised. We also noted what was said in the claimant’s email of 17 May (1270), when the claimant responded to the request for his grievance form, when he chose to complete the form and submit it. That response and the form being submitted were also inconsistent with the delay in the grievance being addressed genuinely being the reason for his resignation. We, accordingly, found that the claimant would not have remained in employment irrespective of whether or not the respondent progressed his grievance promptly, and therefore that failure (being the last straw relied upon) was not a part of the reason why the claimant resigned.

[134]As a result of those decisions, we did not need to address or decide issues 1.1.4 or 1.2-1.4 (albeit the respondent did not pursue any positive argument on issues 1.2-1.4). Wrongful dismissal

[135]Issue 3 was the claimant’s wrongful dismissal claim or claim for breach of contract. Following on from our decision that the claimant was not constructively dismissed because there was no fundamental breach of contract by the respondent, the claimant himself chose to resign with immediate effect. There was no breach by the respondent. Harassment related to race and/or sex

[136]Issue 4 set out the things to be determined in the claimant’s complaints of harassment related to race and/or sex. As we have already recorded, during the hearing the claimant chose not to pursue the allegations set out at 4.1.3, 4.1.5, 4.1.8 and 4.1.9, so we did not need to decide those complaints. For the remaining issues as set out at 4.1, we considered each of them and applied all of the issues set out at 4.1-4.5 to each allegation in turn.

[137]The first allegation of harassment (4.1.1) was that the claimant alleged that he was called Dick Whittington several times by Ms Kenyon from January 2023 onwards in the presence of Travis Hamer and Rebecca Anson. We accepted Ms Kenyon’s evidence that she did not refer to the claimant as Dick Whittington, she referred to the Whittington Hospital Trust as Dick Whittington, for the reason which she gave of word association.

[138]We considered whether Ms Kenyon referring to the Trust in that way was unwanted conduct (issue 4.2). We were surprised that, when asked during submissions, the claimant did not know anything about Dick Whittington, and he did not have any understanding of whether or not using the name was a pleasant thing to say. We could not therefore understand how it could genuinely be said to have been unwanted conduct. Issue 4.3 asked whether the conduct was related to race or sex. In the allegation itself, it had been alleged that this was unlawful harassment related to sex (but not race). In evidence, the claimant provided the explanation included in the facts above, that he considered the use of the name Dick to be insulting. We did not find that the use of the name Dick Whittington was related to sex, nor did we find that the use of that name was of a sexual nature. In his submissions, the claimant contended that it was a “racialised nickname”. When asked what he meant, he provided the answer that he did not know anything about the person/character. On that basis, we could not see any way in which the use of the name was related to race. We accepted Ms Kenyon’s explanation for her use of the name Dick Whittington and therefore accepted that the conduct did not have the requisite purpose required (issue 4.4). For issue 4.5, we needed to decide whether the conduct had the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. We did not find that it did have that effect in practice, and we would not have found it to have been reasonable for it to have had that effect even if it had.

[139]Allegation 4.1.1 was an allegation which we found to be plainly ridiculous in the context of the full name being used by Ms Kenyon. Without the claimant knowing anything about the person/character referred to, he was prepared to pursue this/these most serious of allegations against the respondent, even when he admitted to not knowing whether or not it was an adverse thing to say. As we will confirm when we address the subsequent allegations, the claimant persisted in pursuing a number of his allegations despite them being in practice untenable and/or there being no basis whatsoever for asserting that they were related to sex or race or (for the direct discrimination allegations) on grounds of race or sex. We found that, in conjunction with the other matters explained below, this meant that we found the claimant lacked credibility.

[140]Most importantly when considering the claimant’s credibility, we took into account that he had covertly recorded his colleagues in the office. He had no qualms about having done so. He admitted to covertly recording them when he was not present at the time. On at least one recording, he appeared to be endeavouring to entice Ms Kenyon to say something to assist his case, whilst covertly recording her. He recorded a meeting with Mr Endersby, a senior manager, without informing him that he was being recorded. We considered that to be, at the very least, distasteful and unpalatable, and, arguably, more serious. We also found the claimant’s evidence about when and what he recorded, to be somewhat inconsistent in that the recordings that we had transcribed did not in the majority of cases reproduce what was recorded when the claimant was not present, when he explained that capturing what was said when he was not there was the purpose of his covert recording. We also could not understand why, if the claimant had decided to record his colleagues in January 2023 as he told us, the only transcripts of recordings which we had were apparently from March and April (although the transcripts had no dates or timing records, the recordings being out of context extracts). We also found that, during the hearing, the claimant made assertions on a number of occasions which he was unable to substantiate with documents, despite asserting that he could do so. In contrast, we found all of the respondent’s witnesses to be genuine, credible and consistent. They made appropriate concessions. Indeed, we found some of the respondent’s witnesses to be impressive. As a result, and whenever there was a dispute between the evidence given by the respondent’s witnesses and that of the claimant, we preferred the respondent’s evidence. Whilst we have addressed this when explaining our decision on issue 4.1.1, it applied more widely to all of the issues which we needed to determine.

[141]Issue 4.1.2 was what was alleged to have been a sarcastic remark made on 12 April 2023 by Ms Kenyon to Mr Travis, when she asked him if he was in all day. We accepted Ms Kenyon’s evidence about what was said and why. The conversation had nothing whatsoever to do with the claimant. The claimant was not even involved in the conversation, before he joined and appeared to us to be trying to entrap Ms Kenyon. The comment was made to two other people, not the claimant. It was not unwanted conduct for the claimant. It was not related to race or sex and there was nothing which might have shifted the burden of proof. In any event, what was said did not have the required purpose or effect (and it would not have been reasonable for it to have the requisite effect even had it done so).

[142]In issue 4.1.4 we were asked to decide if the respondent unfairly/maliciously questioned the claimant’s working pattern and attempted to curtail his flexi working privileges. We heard no evidence that the respondent had ever unfairly or maliciously questioned the claimant’s working pattern or attempted to curtail his flexi working privileges. It was also alleged within 4.1.4 that Ms Clarke asked the claimant what time he was working until and said “so you come here for fun” when he replied. We accepted Ms Clarke’s evidence that she did not make the comment alleged at all. We noted the explanation which she provided based upon her own working pattern as to why the allegation made no genuine sense. In any event, even had we found that the question had been asked (which we did not), it was not related to either race or sex, and it did not have the requisite purpose or effect (and it would not have been reasonable for it to have had the effect required).

[143]Issues 4.1.6 and 4.1.7 were whether the claimant was subjected to unjustifiable and unreasonable heavy-handed treatment following the IT issues on 22 March 2023 (the day when the claimant went home and did not return) and the decision made to impound the claimant’s hour. We have already explained why we did not find that the claimant was subjected to unjustifiable, unreasonable, or heavyhanded treatment when addressing issue 1.1.1.11. What occurred was not related to race or sex. The purpose of the conduct was not that required by law (to be unlawful harassment). Whilst we accepted that, for the claimant, the decision to require him to make up an hour of flexi did appear to have had the requisite effect (he was certainly outraged by it), we also did not find that it was reasonable for it to have had that effect in circumstances where the claimant was being asked to make up an hour during which he had undertaken no work and not been at his required place of work.

[144]The claimant alleged, as issue 4.1.10, that Ms Hall and Ms Washington unfairly and unjustifiably monitored and manipulated the claimant’s time sheets. We found this allegation to have absolutely no merit whatsoever. We accepted Ms Hall’s evidence about what occurred and the assistance which she tried to provide to the claimant. She monitored the time recorded by all Debtors Officers as required for client purposes. She did not specifically monitor the claimant at all. She helped the claimant when he raised issues. The claimant appeared to us to have treated a management accountant as if she was an IT service assistant. The allegation that the claimant’s timesheets were monitored and manipulated was without merit. It is not necessary for us to decide whether in fact the claimant’s timesheet issues were due to user error as the respondent asked us to do. The allegation was not made out, whether it was due to IT failures as the claimant asserted or user error. In saying that, we were not questioning Ms Hall’s evidence that she believed they occurred due to the claimant, it was just not necessary for us to decide whether she was right. There was no evidence whatsoever that anything about the timesheets was related to race or sex or anything which could shift the burden of proof. This was an allegation which we found impacted upon the claimant’s credibility, where it was so lacking in merit, and was pursued nonetheless. Direct sex and/or race discrimination

[145]At issues 5.2 and 5.3 we were presented with a list of named comparators upon which it was said the claimant relied. Some of those named were those with whom the claimant compared his invoice numbers in allegation 5.4.3 and some of those named were those who were sent cards and messages as alleged at allegation 5.4.21. With the exception of those two allegations, it appeared that the claimant did not rely upon named comparators and therefore we have considered the other allegations by considering a hypothetical comparator only. We did note that we appeared to have heard no material evidence whatsoever about either Ms Greenhalgh or Ms Campbell, being two of the comparators named, and that Ms Foden did not appear to have been referenced as a comparator.

[146]Issues5.4.1 and

5.4.2 (unfair KPIs and too many Trusts to manage) have already been addressed and determined by the findings which we have already explained for issues 1.1.1.1 and 1.1.1.2. We did not find that either occurred or that there was any detrimental or less favourable treatment. The claimant did not show anything which showed that either KPIs or allocation of Trusts had anything to do with race or sex (and the burden of proof did not shift as a result).

[147]Issue 5.4.3 was about the number of invoices given to the claimant each month. We have addressed the facts of that allegation when determining issue 1.1.1.3 and have found that the claimant was not generally allocated too many invoices. When the claimant looked at a snapshot of invoice numbers in the first week of April 2023, the position was as described in issue 5.4.3. On the face of it, the claimant had more invoices that all Debtors Officers except Ms Champ and more invoices pro rata to working hours than all six people named. At that point in time: the claimant was not subject to KPIs as they had been suspended for his new client; and the respondent was taking steps to cleanse the new invoices as part of the onboarding process, as Ms Clarke evidenced. When the claimant viewed the invoice numbers, he did see the number of invoices which had been allocated to him as a detriment (issue 5.5). The claimant was not in materially the same circumstances as either the white British colleagues or the women with whom he compared himself, as they were not responsible for a newly on-boarded Trust for whom KPI’s had been suspended and who at the time was being subject to the on-boarding process. The comparators’ numbers did not include the substantial proportion of aged debt which applied to the claimant’s Trust. We found that a hypothetical comparator in the same circumstances as the claimant who had just taken responsibility for a Trust new to the respondent (who was female or of a different race), would also have been allocated the substantial number of invoices the claimant had been allocated. There was nothing which showed the something more required to shift the burden of proof, to show that the allocation of invoices to the claimant was because of race or sex. The claimant, in practice, did not put forward any genuine basis for the burden of proof to have been shifted.

[148]We have already determined that the claimant was not misled about reducing his workload or the number of invoices per month which the new Trust was expected to require (when determining issues 1.1.1.4 and 1.1.1.5). That determined issues 5.4.4 and 5.4.5. The reason why the claimant was allocated the invoices for that new Trust, was because he had asked to only be responsible for one Trust, and that request was granted when a new Trust was taken on which appeared to have the right profile for the claimant.

[149]Issue 5.4.6 was said to be that the respondent agreed that WHT was a more challenging Trust than others and commented “we know that but you are good at it”. We did not find that anybody at the respondent agreed that WHT was in itself a more challenging Trust than others. As a new Trust, nobody knew how challenging it might be (including the claimant, as he accepted in cross-examination). As it was a new client to the respondent, it was correct that there were additional challenges to it, and that was why new clients were allocated to more experienced Debtors Officers and not the newer recruits. The claimant had wanted one Trust. We found that a hypothetical comparator of a different race or sex with the same experience as the claimant would also have been allocated the same Trust, in contrast to a newer recruit who would not have been allocated the Trust which was new to the respondent. We did not find that the comment relied upon was less favourable or a detriment for the claimant, as it was a positive comment.

[150]The allegation to be determined as issue 5.4.7 was that the claimant was given problem or difficult Trusts to sort out and turn around and, once he had sorted them out, they would be removed, and he would be asked to sort out a different problem Trust. We did not find that what was alleged in fact occurred. In 2023 the claimant was allocated the new single Trust, because he had asked to work for only one Trust and that requested was granted when it was possible to do so. From the evidence we heard, it was good for employees to gain experience of working with different Trusts. We accepted that the decisions made to re-allocate Trusts were made for practical business reasons (as evidenced) and not for the reasons alleged. There was no evidence that the claimant had sought to continue working for any specific Trust. There was nothing whatsoever put forward which could have showed that any client-allocation decisions were made on the grounds of race and/or sex (or which shifted the burden of proof).

[151]Issue 5.4.8 was the allegation that the respondent had failed to act on its promises to improve the claimant’s workload. We did not find that any such promises were made to the claimant.

[152]Issue 5.4.9 mirrored that already addressed as issue 1.1.1.8 and was that the claimant alleged that he was admonished for not meeting KPIs in emails of 7 June 2021. We did not find that the claimant was admonished. The claimant was sent an email highlighting the gaps in KPIs. We found that the emails sent were professional and appropriate. A hypothetical comparator of a different race or sex would not have been treated any differently. The emails sent had nothing whatsoever to do with race and/or sex and there was nothing which could have shifted the burden of proof for the claimant’s allegations of direct discrimination.

[153]Issue 5.4.10 was that the claimant alleged that he was threatened with a Personal Improvement Plan if he did not hit his KPIs in the meeting on 20 February 2023 (although dated 22 February in the list). As we have already explained, we did not find that the claimant was threatened with a PIP. We accepted that the mention of the potential of a PIP in the meeting could reasonably have been seen as a detriment by the claimant. It was clear from his evidence, that he found it being mentioned to be very difficult and it appeared to him to challenge his own self-worth. However, we did not find on the facts that there was anything which provided the something more required to shift the burden of proof in showing that it could have been mentioned on grounds of race or sex. The burden of proof was not shifted. In any event, the reason why a PIP was mentioned was because the claimant had not met his KPIs and anyone in the same circumstances, irrespective of their sex or race, would also have had the same conversation.

[154]Issue 5.4.11 said that in December 2022 and January 2023 (through Ms Clarke) the respondent had maliciously and unfairly questioned the claimant’s working pattern, attempted to curtail his flexi-working privileges, and impounded his worked hours, without due process (i.e. refuse to pay for hours at home without IT support.). The list of issues also recorded that the claimant said that derogatory comments were made about timekeeping in order to dissuade him from using flexi time. It was said that white and female employees started and finished as they pleased. We found that allegation to be quite confused as it appeared to raise matters which did not occur on the dates alleged. In December 2022 Ms Clarke was not the claimant’s manager. There was no evidence before us whatsoever that Ms Clarke had maliciously and unfairly questioned the claimant’s working pattern. The claimant did not say so in his evidence. He did not put to Ms Clarke that she had done so. There was no evidence of her attempting to curtail his flexible working privileges. There was no evidence of anyone dissuading the claimant from using flexi time. There was evidence that, in early 2023, the claimant was granted his request to change his working day in the office by Ms Clarke, and then, very shortly afterwards, she granted his request to change it back again.

[155]All employees at the respondent, irrespective of race or sex, worked to the respondent’s flexi policy. That included core hours when they were required to work and requirements about the proportion of time they were required to be in the office (on days agreed with a manager). We heard evidence that some employees took a break in the afternoon at the end of core hours, with the manager’s agreement, for childcare reasons and then resumed working at home shortly afterwards. The claimant was not treated detrimentally or less favourably in the way alleged.

[156]In submissions, the respondent’s representative addressed this allegation in relation to the events of 22 March. That was the day when the claimant went home when he had been due to be in the office and did not undertake any work. That was not the date recorded for this allegation in the list of issues. In any event, we found that someone in the same position as the claimant of a different race or sex, would have been treated in exactly the same way as the claimant was treated (and would have needed to make up the hour of work, where they had not been working on the afternoon of 22 March and had not returned to the office to do so).

[157]Issue 5.4.12 was that, on 10 January 2023, Ms Hall had said to the claimant that she was too busy so he should amend his own timesheet and on 23 February 2023 had said, “I really don’t know what to do with these time-sheets, it’s a weekly occurrence …”, which the claimant contended showed her attitude in doing so as being patronising and belittling.

[158]On 9 January 2023 (849), the claimant emailed Ms Hall and said he had not been able to enter a value on his timesheet for 3 January, attached what he said it should be, and asked for it to be amended. Ms Hall replied on 10 January and said the folder was available and asked the claimant to sort it out as she said she did not have time. The claimant then corrected his previous statement in an email sent in response, in which he said the error was on the flexi-sheet. On 10 January, Ms Hall then addressed the request. From the evidence that we heard, the claimant appeared to consider Ms Hall (a management accountant) not immediately sorting out his issue, as a detriment. We did not find it reasonable for him to do so, where Ms Hall had explained that she was too busy, he had named the wrong sheet, and, in fact, Ms Hall went on to rectify the issue. In any event, there was nothing whatsoever which provided the something more to show that Ms Hall’s response would have been any different if the email had been received from a hypothetical comparator of a different race or sex. It was not Ms Hall’s job. There was no evidence of her responding differently to others.

[159]On 23 February 2023, Ms Hall did say what was stated in the list of issues. She did so after the claimant had initially sent her an email, before sending one to her manager three minutes later when he did not get a response. He had then followed it up when she did not rectify his issue. We found that Ms Hall was plainly irritated. We found that there was nothing which evidenced or otherwise showed that a hypothetical comparator of a different race or sex would have been responded to differently (there was no something more). We found that she would have responded in the same way to any other person who she believed was frequently having repeated issues due to user error, based upon her view of the errors on the system. We also noted that the claimant’s own response to her email reflected his own irritation.

[160]Issue 5.4.13 was said to be that the claimant’s timesheets regularly went missing from the folder where everyone’s timesheets were kept. It was said that only the claimant’s timesheets were regularly missing. The claimant did not establish that his timesheets went missing as alleged, but it was clear that there were issues with them being completed and entries being lost. There was, however, no something more. There was no evidence that any issues with timesheets were because of the claimant’s race or sex, even on the claimant’s own case and evidence. The claimant argued in his submissions that everyone at the respondent had IT issues, and he said that was clear from the WhatsApp messages in the bundle. In practice, that argument from the claimant, supported the respondent’s case. There was nothing whatsoever that suggested that the issues the claimant suffered, even if as a result of ongoing IT failures, were on grounds of race or sex.

[161]In issue 5.4.14 we were asked to decide whether the hours and data on the claimant’s timesheets were tampered with. In the list of issues, were listed a number of specific dates when timesheet issues arose. There was no evidence whatsoever that timesheets were tampered with. Whatever the reason for the claimant’s ongoing issues (whether IT failures or user error), we found this allegation to be far-fetched and untrue. The emails referred to, showed IT issues arising, many of which were addressed and resolved by Ms Hall. We have already addressed what occurred on the occasion of the last of those listed. There was no evidence that deliberate tampering occurred. This was one of the allegations for which we found that the fact that it was pursued to the end of the hearing, adversely impacted upon the claimant’s credibility.

[162]In issue 5.4.15 it was alleged that, after the claimant asked to work from home during Covid, his hours were scrutinised to check that pay was legitimately claimed. We heard no evidence to support this allegation at all. The claimant did not adduce any evidence about it.

[163]Issue 5.4.16 was that, on 4 January 2023, Ms Washington sent out an email asking people if they needed a Wi-Fi dongle. In his response, the claimant said he did not need one because he had his own Powerline to give him wired internet connection to his desk. In the list of issues, it was said that a couple of weeks later his Powerline developed a fault, he phoned Ms Washington to say he would need a dongle after all, and, instead of providing the dongle, the claimant contended that Ms Washington made the claimant bring the damaged equipment into work to prove that it was not working. The issue ended with the complaint that the claimant never got a dongle.

[164]The facts related to this allegation commenced with Ms Washington sending an email to a large group of employees. She followed it up with the claimant. Approximately a month later, the claimant asked for a dongle because of issues with the equipment which he had at home ceasing to work. Ms Washington made an entirely appropriate response, which we considered to have been seeking to establish what equipment it was which had ceased to work and whether a replacement could be found. We did not see that what was said was in any way distrustful of the claimant as alleged. We could not understand from the messages, why the claimant did. Ms Washington was simply trying to assist the claimant. The claimant resolved his issue, did not take any equipment into the office, and did not continue to request a dongle. The exchange had nothing whatsoever to do with race and/or sex and there was nothing which could have shifted the burden of proof to show that the response would have been any different to a hypothetical comparator of a different race or sex.

[165]Issue 5.4.17 was about requests made to the claimant about the office equipment which he had at home. On 25 August, 7 September and 13 September, Ms Washington asked questions in emails. Ms Washington could not recall a verbal discussion in September and there was no evidence that such a discussion took place. We did not find that any of the emails sent constituted a detriment, and we did not find that the claimant genuinely thought the emails to be detrimental. What was sent were routine management requests seeking to ascertain what NHS Trust equipment was being used by home-workers. We could not see anything underhand or inappropriate about the requests, or the ways in which they were made. In any event, there was no evidence that anything asked would not also have been asked of a hypothetical comparator of a different race or sex.

[166]Issue 5.4.18 was that in September 2019, when the claimant first joined ELFS during the first few weeks, the claimant said he was subjected to constant ‘banter’ by Amy Foden and, when challenged, Ms Griffiths commented that “oh he is showing his true colours now”. Reference was also made in the issue to Ms Foden sending the claimant a written apology.

[167]We considered that this allegation stood out as being a discrete and separate allegation which considerably pre-dated the other matters alleged. Whilst it was not recorded in the list of issues, we needed to address time and jurisdiction for the matters alleged and the parties agreed at the start of the hearing that we should do so. We have generally addressed time and jurisdiction for all of the allegations collectively below, but we considered time and jurisdiction for this issue specifically, as it appeared to pre-date by well over a year all of the other things alleged.

[168]We did not consider this allegation to be part of a continuing series of events with any of the other things alleged (and, in any event, as we did not find for the claimant on any of his allegations, it could not have been entered in time by being part of a series). We noted that Ms Foden had left the respondent’s employment long before the Tribunal claim. The claimant provided no genuine explanation for his complaint about this issue not having been entered earlier. The respondent highlighted, when addressing the balance of prejudice, the receding of recollections, and that was a far more notable factor for an allegation about things said in September 2019 than it was for the much later allegations. We also noted what the claimant said in his email to Ms Foden about the issue at the time, when considering the gravity of the issue and the prejudice to the claimant if time was not extended. On that basis, we decided that it was not just and equitable to extent time for issue 5.4.18 and, therefore as the claim had not been entered in the time required (it having been entered on 15 June 2023, approaching four years after the event), we did not have jurisdiction to determine the issue.

[169]Had we had jurisdiction to do so, we also would not have found that direct discrimination occurred as alleged. We have addressed in the facts the evidence which we heard about this issue, including Ms Foden’s apology (117) and the claimant’s response to that apology. In the light of what the claimant said in his email, we did not find that any comment made by Ms Griffiths was a detriment for the claimant (as that is, effectively, what he said). There was certainly no detriment in being given the apology by Ms Foden. There was nothing which shifted the burden of proof to show that a different comment would have been made to a hypothetical comparator of a different race or sex. We also accepted Ms Griffiths’ evidence about what the claimant said to which she was responding, and in those circumstances accept that her response would have been the same to anyone who made the same comment to her.

[170]Issue 5.4.19 was that, sometime in March 2023, Ms Richardson said to the claimant ‘oh Khursh they shouldn’t give you difficult invoices like that’. It was accepted that Ms Richardson made the comment. As was recorded in the respondent’s submissions, the claimant accepted that it was said in response to a question about raising invoices on WHT, the new Trust to the claimant. It was submitted it was a friendly and helpful comment, and we agreed. It was also not in dispute that Ms Richardson then did the invoices for the claimant, which helped him. We agreed with the respondent’s further submission, that this was an instance of the claimant relying upon an innocuous and friendly comment to claim discrimination, when there was nothing unfavourable about it and no nexus to his sex or race.

[171]Issue 5.4.20 in practice included a number of related allegations. The claimant alleged generally, that members of the team gossiped about him and engaged in back-biting. More specifically, the claimant relied on two allegations:(a) on 5 April 2023, Ms Richardson said “today is going to be a very good day”; and

(b) on 12 April 2023, Ms Kenyon asked Mr Hamer if he was “in all day”. In terms of the general allegation, we heard no evidence of gossiping about the claimant or what could be described as back-biting.

[172]Allegation (a) was something which was recorded on one of the transcripts provided to us. Ms Richardson did say what was alleged. We accepted the respondent’s submission that what was said was a positive comment. It was intended to be supportive and uplifting. It certainly was not gossip about the claimant or backbiting. We found there to be nothing offensive about the comment. It was not a detriment. It had nothing to do with race or sex and there was no evidence that anything different would have been said had a hypothetical comparator of a different race or sex been present, rather than the claimant.

[173]Allegation (b) was also factually correct, in that Ms Kenyon did ask Mr Hamer whether he was going to be in all day. It was covertly recorded by the claimant and a transcript was provided. It was followed by the claimant seeking to insert himself in the conversation and we found that he did so in an attempt to entrap Ms Kenyon into saying something which would assist his case. It was not gossip about the claimant or backbiting. We found there to be nothing offensive about the comment. It was not a detriment. It had nothing to do with race or sex and there was no evidence that anything different would have been said had a hypothetical comparator of a different race or sex been present, rather than the claimant.

[174]The fact that the claimant maintained that 5.4.20(a) and (b) were allegations of direct discrimination on grounds of race or sex, when there was no genuine basis for doing so, adversely impacted upon our view of the claimant’s credibility.

[175]Issue 5.4.21 was that management never sent the claimant a birthday card or message or a get-well card/message after he had been in hospital, whereas other members of staff did receive such cards and messages. We did hear evidence that others received cards and gifts on occasion. The claimant did not, albeit he did receive emails from managers following his return from ill health absence expressing concern and support. There was a difference in treatment.

[176]One of the comparators relied upon by the claimant was Karen McGregor. She sadly passed away whilst employed by the respondent. Her family received condolences and a gift. We found the claimant’s reliance upon Ms McGregor as a comparator to be distasteful. Clearly, the circumstances were materially different; they were in no way comparable to the claimant.

[177]The claimant relied upon Mr Elms as a comparator (being a white male). He was sent a card and gift organised by his colleagues. He had posted on WhatsApp about his hospitalisation and was hospitalised for some time. The claimant did not inform his colleagues about his period in hospital. That was a material difference.

[178]We also heard evidence that a colleague received a card for her thirtieth birthday. That was considered to be a milestone birthday. The claimant did not have a milestone birthday. Ms Richardson received a card at the time she moved home. A colleague received a card and gift when she had a baby. Ms Washington’s evidence was that birthday cards were not sent as standard after the start of Covid. Whilst the claimant gave evidence that Susan Roxby and Rebeca Anson received cards, we heard no evidence about the circumstances in which they did so.

[179]It appeared from the claim, that the claimant considered himself not receiving a card or gift during his time with the respondent to be a detriment. All of the specific people for whom it was evidenced that they received a card and/or gift, were in materially different circumstances to the claimant (at least to the extent that specific evidence was available). For a hypothetical comparator of a different race or sex, the claimant did not provide the something more required to show that such a comparator would have been sent a card or gift for a non-milestone birthday or after being hospitalised with Covid (but without informing colleagues that he/she had been). There was no evidence that a hypothetical comparator would have been treated differently. There was nothing whatsoever which showed that the treatment was on grounds of race or sex.

[180]We have already commented on the covert recordings and the impact that they had on our view of the claimant’s credibility. However, we did also observe that, given that the claimant had endeavoured to use covert recording to capture his colleagues saying things which would support his claim, he failed to provide any recorded evidence which did so. What the claimant provided as transcripts of the conversations which took place, did not substantiate his case at all. Based upon the evidence which we heard, we found that the team appeared to operate in a congenial and supportive way. We heard nothing which showed anything different. As an example, we noted that Ms Washington, as a senior manager, sent an email regularly to check that all members of the team were ok. That was clear evidence of support for the claimant and the other members of the team. Time/jurisdiction

[181]We finally considered the issues of time and jurisdiction as they applied to the complaints generally (having already addressed issue 5.4.18 specifically). As the respondent submitted, some of the matters claimed were clearly brought in time and some were not. It might have been arguable that those otherwise outside the primary time limit were part of a continuing act with the events in time, had we found that they occurred. We might have found it to have been just and equitable to extend time for events which occurred out of time which were not part of a continuing act (save for that in 2019), particularly as the respondent had successfully defended the claims and that indicated there was little prejudice to the respondent if time were extended. Unltimately, as we did not find that the claimant had made out any of his complaints, we did not need to determine the time/jurisdiction issues for any complaints, and therefore, other than for 5.4.18, we did not do so.

Summary

[182]For the reasons explained above, we did not find that the claimant succeeded in any of his complaints.