Mr S Ahsan v East Lancashire NHS Hospitals Trust and K Forrest: 2409183/2023
EMPLOYMENT TRIBUNALS
Case No 2409183/2023
Between
Mr S AhsanClaimant(1) East Lancashire NHS Hospitals Trust (2) Karlyn ForrestRespondent
Before
Employment Judge Leach; Dr Tirohl; Ms WilliamsonIn person for claimantMr Sangha (instructed by counsel) for respondentDate 3 September 2025
JUDGMENT
The unanimous decision of the Tribunal is as follows:[1]The claimant’s complaints of harassment (protected characteristic, sex) do not succeed and are dismissed.[2]The claimant’s complaints of direct discrimination ( protected characteristic, sex) do not succeed and are dismissed.[3]The claimant’s complaints of victimisation do not succeed and are dismissed.[4]The claimant’s complaints of being subjected to detriments ( contrary to section 47B Employment Rights Act 1996) do not succeed and are dismissed.[5]The breach of contract complaint and complaints relating to holiday pay are withdrawn by the claimant and are dismissed.
REASONS
[1]The claimant was employed by the first respondent on a fixed term contract.[2]The claimant was dismissed on 31 March 2023 on expiry of his fixed term contract. The claimant says that decision to dismiss him was direct discrimination ( protected characteristic sex). The claimant says that he was a victim of domestic abuse and (during the time of his employment with the respondent) was being prevented, by his former partner, from accessing his children. The claimant says that the respondents assumed that, as a man, he must have been the perpetrator of any domestic abuse and that they did not want to continue his employment for that reason. That inaccurate assumption meant that he suffered direct discrimination and harassment ( protected characteristic, sex).[3]The clamant also raises various direct discrimination complaints, alleging the respondents treated him less favourably than they would have treated a female victim of domestic abuse in the same circumstances as him.[4]The claimant also alleges that he made protected disclosures and was subjected to detriments as a result. This hearing[5]We heard the claimant’s evidence from the afternoon of day one up to the end of day 3.[6]We then heard from the respondents’ witnesses:-a. Imran Devji (ID). At all relevant times ID was Deputy Chief Operating Officer at the respondent Trust.b. Gary Doherty (GH). GH was at all relevant times director of strategy and planning at Lancashire Teaching Hospitals NHS Foundation Trust (LTH)c. Helen Elftesi (HE) who was at all relevant times employed by the respondent as an HR officer.d. Alison Marsh (AM) who at all relevant times was employed as Associate Director in the elective recovery programme.e. Karyln Forrest (KF), who is the named second respondent. KF is programme director of the elective recovery programme, employed by LTH.f. Matthew Ireland (MI), deputy director of HR.[7]We heard submissions on day 7 and met on 15 August 2025 to reach our decision.[8]We were provided with a bundle and a supplementary bundle numbering a total of 976 pages.[9]Reference to the “respondent” means first respondent. Unless specified otherwise, we refer to the second respondent by her initials (KF).
The issues
[10]The parties attended with an agreed list of issues. Some changes were made to the list during the course of the hearing. The list of issues (with changes highlighted) is annexed to this Judgment. Findings of Fact Relevant Background
Findings of Fact
[11]The claimant was employed by the respondent in the role of senior project manager. The employment was under a fixed term contract which began on 14 June 2021 and was initially for a fixed period of 18 months. As explained below this was extended until 31 March 2023.[12]The claimant held fixed term employment positions in various sectors, before being employed by the respondent.[13]During the claimant’s employment with the respondent he faced some very difficult personal issues. Neither of the respondents nor any of their witnesses dispute any of the following:-a. That in or before January 2022, the claimant separated from his former partner (with whom he has 2 children)b. That prior to and/or during the course of that separation he was abused by his partner.c. That in January 2022, the claimant’s partner, without the claimant’s consent, took the children from the former family home (where the claimant was still living) and subsequently did not allow the claimant access to the children.d. That the claimant was required to go through the family courts to try to regain either custody or access.e. That the claimant complained to Greater Manchester Police about how they treated him when they attended the former family home in January 2022 when his former partner and other adults were in attendance.f. GMP’s response to the claimant’s complaints was unsatisfactory and he had to pursue the issue further. Elective recovery programme[14]During the coronavirus pandemic the respondent, like other NHS Trusts, had an increasing backlog in referrals and treatment of patients. Steps needed to be taken to reduce this. The respondent joined forces with other NHS Trusts in the Lancashire and South Cumbria area. A team was formed to work across 4 Trusts (including the respondent) called the Elective Recovery Team (ERT). Employees in this team were not all employed by the same trust. The claimant and some others in the team were employed by the respondent. Other employees (including KF) were employed by Lancashire Teaching Hospitals NHS Foundation Trust.[15]The team was not a “business as usual” team. It was intended to be for a finite period as the respondent managed the consequences of the pandemic and was funded through temporary funding arrangements from NHS England as well as some local funding. Members of the team were therefore engaged on fixed term arrangements. These arrangements were sometimes fixed contracts and sometimes secondment arrangements from other posts and/or Trusts.[16]The aim of the ERT was to better manage waiting lists to reduce the waiting times for patients. This included using technology including a “chatbot” system that the claimant was instrumental in developing during his employment at the Trust.[17]The second respondent (KF) was, from 17 October 2022, the programme director, heading up the ERT. Her predecessor was Tracey Murray (TM).[18]AM was in post as associate director from June 2022. Her predecessor was Jacqui Pickles (JP). AM and JP line managed the claimant.[19]Many of the claimant’s complaints are directed against KF and AM. In contrast, the claimant had the highest regard for JP and TM. This is what he says in his witness statement.” Both were highly respected by their peers and excellent to work with. Ms Pickles was in fact one of the best people I had worked with in my career, highly encouraging inclusive and intelligent who had herself worked in the NHS for 40 years”. June 2022 to 25 January 2023[20]When AM replaced JP as the claimant’s line manager, the claimant had already spoken with JP about the domestic abuse he had suffered and about the situation with his children. JP referred the claimant to occupational health appointment and the claimant attended this appointment on 14 June 2022. This referral arose from concern about the claimant’s health and welfare in the light of the domestic abuse that the claimant told JP he had suffered particularly in January 2022. A copy of the resultant report is at pages 179-182.[21]JP put in place support that was at the time considered appropriate. The support included a series of counselling sessions that the respondent paid for as well as ongoing discussion about the claimant’s circumstances, in weekly one to one meetings. AM spoke with JP as part of a handover process. JP told AM about the claimant’s personal circumstances and the supportive measures in place.[22]AM therefore took up this aspect of management (of continuing to provide support to the claimant) part way through the provision of that support. She continued with the counselling sessions. The claimant told AM that the counselling sessions were helpful and when they were coming to an end she arranged for funding for more sessions for the claimant. AM also took up significant time in talking with the claimant and being a sympathetic ear. Weekly one to one meetings continued and these would last in excess of an hour. AM received updates from the claimant about what he was going through. By that stage, the claimant was in family court proceedings, trying to secure access to his children. AM supported the claimant, not just in being there to listen and sympathise with the claimant but also in actions such as arranging for time off at short notice and also understanding (and reducing at times) the claimant’s workload. The claimant acknowledged support that he received from AM (for example in email from the claimant of 20 January 2023- page 705 and the email of 27 January 2023 referred to at para 43 below).[23]Initially the claimant’s fixed term was to end in November 2022. JP was able to find funding for an extension until 31 March 2023. By late 2022 there was no assurance that funding would continue beyond March 2023. In around October 2022, the respondent advertised for a role as a programme manager on a 12-month fixed term contract. AM encouraged the claimant to apply for the role, which he did.[24]The claimant met the shortlisting requirements for the programme manager role and was interviewed on 10 November 2022. The claimant was unsuccessful at interview. AM was one of 2 interviewers.[25]Following the interview process AM offered to provide the claimant with feedback. The other person who had interviewed the claimant, Leigh Hudson, also told AM that he had offered to provide feedback. The claimant declined the offer of feedback. The claimant did not raise any complaints about the recruitment process at the time. He did mention the issue in a grievance letter he sent dated 31 March 2023 (page 310) by speculating that AM may have told LH that he had been banned from seeing his children in order to convince LH not to hire him as part of a campaign on AM’s part to force the claimant out of the team.[26]The claimant made similar comments in a detailed email dated 27 April 2023 in which he sets out his appeal against the termination of his fixed term contract. The extent of his argument in that email is that he was well qualified for the role. In an email dated 2 June 2023 (page 363/4) the claimant provided more detail about the grievance he raised on 31 March 2023. There is no reference to the recruitment process in November 2022.[27]The claimant did not refer to the November 2022 recruitment process in his claim form. In the first version of a list of issues ( drafted by the claimant soon after this claim was issued) the claimant did refer to the recruitment noting particularly an allegation that AM “laboured” the DBS point in the interview and expressing surprise, given his experience and success, why he had not been appointed.[28]AM’s evidence (which we accept) is that she was required to score candidates from the responses to questions at the interview itself. Her evidence (which we accept) is that the claimant did not perform as well as the other candidates although she was willing to spend time with the claimant with feedback in order to help him in any future application.[29]At pages 213 to 240 are 3 interview packs; one for each of the 3 candidates interviewed. One page of each pack is headed “Standard Questions and Information ( Mandatory)” A section of this page is headed “DBS Charge” and includes the narrative below “If this role requires a DBS check, the trust will recover the cost of this from your salary, as stated on the advert. (Please indicate that you have confirmed this with candidate …. Has the candidate subscribed to the DBS update service? Yes/No[30]We find that the questions asked of the claimant about DBS were consistent with the mandatory instructions that had been given to the interviewers, who asked the same questions and provided the same information to all candidates. The claimant’s disclosures about domestic abuse.[31]The claimant told various people about the domestic abuse he was suffering. Many of these were, says the claimant, protected acts for the purposes of section 27 Equality Act 2010 and/or protected disclosures for the purposes of Part IVA Employment Rights Act 1996.[32]The claimant was referred to Occupational Health at different times during his employment. Referrals took place on 23 May 2022 and 14 June 2022. The documentary record of the May appointment is headed telephone enquiry – employee. The notes indicate that the claimant told the OH practitioner about an episode that had occurred earlier in the year when his ex-partner attended his house and forcibly took the children from him and that he was assaulted by people with whom the ex-partner attended.[33]The June 2022 appointment is headed “management referral.” The OH notes of this appointment record that the claimant explained to the practitioner that he was a male victim of domestic abuse and that he wanted people to understand he is the victim. The notes also record that by the time of this appointment he had attended 2 counselling sessions and that he felt they were helping. The claimant provided other details about the treatment of him by various agencies ( including the police and social services) and the emotional impact these events were having on him (alleged protected act 12.a).[34]Other alleged protected disclosures or protected acts are referred to in the sections below. Email of 25 January 2023.[35]The claimant sent an email to KF dated 25 January 2023. KF had taken up her position as programme director the previous October 2023. This email was sent on the eve of a meeting that had been arranged between KF and the claimant, to discuss the claimant’s employment position ( which was at that stage precarious as his fixed term was due to end on 31 March 2023 and – according to the respondents – further funding was not available).[36]The email is set out below: Thanks for setting up the meeting and look forward to seeing you tomorrow. I spoke with Alison yesterday and wasn't expecting to come to Chorley House today, as we were meeting tomorrow. I have an enormous workload at the moment and doing 10-11 hours days for the past 2-3 weeks with very little support. I just want to convey the enormity of the pressure I am experiencing at the moment due to the uncertainty of my work situation and the prospect of not being able to fight for my children. A recent study found, between 2003 and 2015 some 8500 non-resident parents, parents whose children were not living with them, and/or did not have contact with their children, committed suicide. 95% of these were fathers on account of the distress caused by not seeing their children. This is the untold reality that fathers face - and in my case - with not a single justifiable reason presented for not having contact with my children, least of all being recognised as a victim of domestic abuse. I don't intend to be one of these tragic statistics, but this is the kind of pressure I am facing. Despite these pressures I have performed exceptionally evidenced by the near weekly contacts from within and outside LSC of directorates and organisations interested in Chatbot. On Monday I had contact from BTH colleagues who had spoken to NHS colleagues in Chester interested in Chatbot, yesterday I was contacted by a GP also interested in the programme for their PCN, and also yesterday, Alison emailed me because UHMB and ELHT wanted to use my 52w/78w model, which I had built from scratch for the planning round last April, which they used for their trajectories and want to use again.[37]KF’s evidence is that she was extremely concerned about the content of the email. This evidence is consistent with correspondence between her and AM following receipt. KF forwarded the email to AM within 25 minutes of receiving it, to state “I am sharing this email with you as Adeeb’s line manager if we could discuss at the earliest opportunity.”[38]We have also been provided with text messages between KF and AM on 25 January 2023. Again the messages indicate genuine concern. Meeting on 26 January .[39]The purpose of the meeting was to discuss with the claimant what the current position was, the likelihood that his role would end due to the absence of funding and, in the light of this, to provide what support they could. AM and the claimant had a oneto-one meeting on 24 January 2023 when it was agreed that AM would fix up a meeting with the claimant.[40]There are no notes of this meeting, other than some brief notes in a timeline document provided by AM. Our findings have been made from the evidence of the 3 attendees, together with documentary evidence that followed soon after the meeting. These are our findings:-a. The meeting was a long one – 90 minutes to 2 hours.b. During the first period of the meeting (up to an hour) the claimant told AM and KF about his personal circumstances. AM was aware of much of the detail but KF was not. The claimant told KF and AM about the domestic abuse and about how he had been/was being treated unfairly by multiple agencies. The claimant also explained what he was going through in still trying to secure access or custody of his children through the family courts.c. KF interacted with the claimant by providing a real-life example that she was aware of through a relative; of a father who had not been allowed to see his children. She wanted to convey to the claimant that she had some (limited) real life understanding of what the claimant must be experiencing in not being allowed to see his children.d. We are unanimous in finding that, in the context of providing this example, KF used the word “banned”; explaining that the father in the example had been banned from seeing his children.e. The claimant immediately reacted to this by commenting that he had not been banned from seeing his children, that it was his wife that was stopping him from seeing them.f. KF sought to correct any misunderstanding. She told the claimant that she knew he had not been banned, she did not mean that he had been banned and that she understood the stress that he was under.g. The meeting then moved on to discuss the absence of funding for the claimant’s role.[41]We make other findings of fact relevant to this meeting:-a. The claimant alleges that at the end of the meeting ( or shortly after the end of the meeting) KF said to the claimant “do not provoke me” in response to questions from the claimant about funding. This allegation was first made by the claimant in his grievance investigation meeting on 30 June 2023 (over 5 months after the comment was allegedly made). KF and AM deny any such comment was said. We find that it was not said.b. The claimant says that when KF used the word “banned” the claimant looked to AM who had her head hung in shame and this, says the claimant, was because AM had spoken to KF and misinformed KF that the claimant had been banned and was the perpetrator (not the victim) of domestic abuse. We do not find that AM hung her head in shame at this or any other point of the meeting. We do not find that AM had told KF that the claimant was a domestic abuser rather than the victim. We prefer AM and KF’s evidence on this issue, having considered the evidence they provided to us and that their evidence is supported by the content of contemporaneous texts and messages. The claimant’s version (that AM had decided – and told KF - that the claimant was a domestic abuser) is at odds with the content of those texts and messages. Events following the 26 January meeting[42]Page 250 of the bundle contains text messages between KF and AM on the day after the meeting. The main focus of these is the claimant’s employment position. They are supportive of the claimant in that they refer to a willingness to provide references and ongoing support. Whilst the main focus of the 26 January meeting in this case has been on comments that the claimant says KF made, that was not the main purpose of the meeting or the main focus immediately after the meeting. The meeting was to provide the claimant with a realistic update on his employment and to offer what support that KF and AM could.[43]On that same day (27 January) AM emailed the claimant to confirm she would be a referee for the purposes of his CV and that she had (because the claimant had asked for it) requested a report from the counselling sessions that the claimant had attended. The claimant replied to thank AM for those actions and for “all your support over the past few months.”[44]Also on 27 January (and as discussed in the meeting of the day before), the claimant was referred for an occupational health appointment (page 256). AM had requested (and the claimant had provided) details from the claimant so that the occupational referral could be made.[45]The claimant and AM met on 3 February 2023. Having been updated by the claimant about his personal circumstances and discussed the ongoing uncertainty with the role, the claimant raised with AM that KF had said that he had been banned from seeing his children, but that he had not. He was concerned to ensure that KF was clear he had not been banned from seeing his children. AM tried to assure the claimant that she did not think that KF thought he had been banned, that she had told KF that the claimant was going to court because his wife was stopping him from seeing them.[46]After the meeting, AM contacted KF and told her what the claimant had said. We accept KF’s evidence that she was (using her word) “mortified” that the claimant could have thought that and was apologetic. We also accept that she offered to speak with the claimant directly.[47]AM contacted the claimant following her call with KF to relay what KF had said. The claimant told AM that KF did not need to call him. We accept that he joked with AM to say that KF should not be a counsellor.[48]As far as AM was concerned, the concern that the claimant raised had been addressed.[49]KF and the claimant met on 15 February 2023. There is a dispute about the date of this meeting. The claimant recalls the meeting was on 2 February; KF says it was 15 February. On this we prefer the evidence of KF noting particularly an email exchange between KF and the claimant on 14 February 2023 in which the claimant requests a “brief catch up” and that “it’s nothing serious” (Page 707) KF replied to agree to the meeting.[50]During the meeting on 15 February 2023, the claimant showed KF a letter dated 10 May 2022 from Greater Manchester Police. A copy of this letter is in the bundle( page 162-164). It is a response to various complaints raised by the claimant after the police attended his house in January 2022 on the occasion that his ex-partner (and other relatives of hers) had come to the house and was taking the children away from the claimant. The claimant told KF that it was a response to a complaint against the police. KF read the letter and told him her view was that GMP’s response was very sterile. This letter is one of the alleged protected disclosures (17(a)ii). Relevant extracts are as follows: 30/01/22 - Police have attended and you feel that you were stereotyped by officers and treated as a perpetrator and not listened to. I believe that you have received a satisfactory level of service on this occasion. In determining this I have reviewed attending officers body worn video and reviewed their written summary of the incident. In addition, I have noted that there is still an ongoing crime being investigated which records you as the victim of a crime on the evening of 30/01/22. The reference for this is CRI/06A1/0005066/22. ………………………………………………………………………………………. You refer to being assaulted in 2020 but the police failing to take action. I believe that you have received a satisfactory level of service on this occasion. In determining this I have reviewed the attending officer body worn video and reviewed the crimes which were submitted at the time. Crime ref: CRI/06A1/0003132/20 was recorded as a common assault with yourself recorded as the victim.[51]The claimant’s evidence about this meeting differs from KFs. This is the claimant’s account in his statement:- “On 2 February 2023, I was considerably hurt that Ms Forrest made such an awful and hurtful comment and asked to meet with her again. This time I showed her the letter from Greater Manchester Police which I had shared with the Respondent in June 2022 to show her that I had been the victim of domestic assault. I asked Ms Forrest why she would say I had been banned from my children and she made no comment. I believe she made no comment because she wanted to convey her displeasure of me as a male victim of domestic violence, reinforcing her previous ‘banned’ comment that men could not be victims of domestic violence.[52]KF’s account is below: “Adeeb ……began talking about his personal circumstances and the discriminatory treatment towards him from multiple agencies. Adeeb then said that he had a document with him that he had shown to my predecessor but that they had shown it to some senior colleagues without his consent, which had upset him. He wanted me to read it. I felt as though it was very personal but could sense that it was important to him that I read it. The letter was dated 10 May 2022 from Greater Manchester Police addressing a complaint that Adeeb had made against them [162-164]. I remember reading the letter and saying that it was a sterile response from the police and was not satisfactory. Adeeb did not tell me why he was showing me the letter and then moved on to a different conversation.”[53]We find that the clamant did not mention the “banned” comment in this meeting. Had he done so, we are sure that KF would have engaged in a discussion with the claimant about it. The claimant’s purpose of showing the letter to KF was to evidence what he was going through in terms of being a victim of domestic abuse and the absence of any support from GMP. He wanted to convey to the respondent the enormous pressure that he was under and the importance of retaining employment in this most difficult of times for him. If he was also motivated to prove to KF that there was a record of him reporting a crime of violence against him, then he did not explain that to KF, he did not raise with KF his concern that KF did not believe that he was a victim.[54]The meeting on 15 February included a discussion about funding, KF telling the claimant that no funding had been identified. Whilst we are sure that KF also told the claimant that efforts were being made to secure other funding (we make findings below about efforts that were being made) KF and AM were also encouraging the claimant to apply for other roles. That was something that had been discussed on 26 January and as noted above, AM had offered to be a referee.[55]The claimant’s evidence is that he had asked KF if the funding could be extended for a period of 6 months, to enable him to get through the family court proceedings, but that KFs response was that the claimant could ask a new employer for flexible working (claimant’s grievance letter of 31 March 2023 – page 414). KF’s evidence is not very different; that the claimant told KF he was concerned that a new employer would not be as understanding about the claimant’s circumstances and would not be flexible. KF sought to reassure the claimant that many employers are willing to be flexible. The main difference in the 2 versions is the assumption that the claimant has made about KF’s motive; he says KF made these comments because she wanted him to leave because he was in her eyes a domestic abuser. We do not accept that was KF’s motive. KF was unable to simply find a budget to enable the claimant’s ongoing employment and she wanted to encourage the claimant to look for alternative employment. It was at that stage only 6 weeks or so before the claimant’s fixed term ended. Discussions with ID[56]During his employment with the respondent the claimant sometimes spoke with the respondent’s deputy chief operating officer, Imran Devji (ID). Their occasional discussions included personal topics. For example ID was aware that the claimant had separated from his partner and there were difficulties between them. He was not aware in any detail about the claimant’s circumstances. The 2 had a discussion at the end of February 2023. The claimant did not reference this discussion in his statement although there is reference in the List of Issues to a discussion with ID at the end of February/beginning of March that included a protected act (issue 12.b).[57]ID’s recollection (that we accept) was that the claimant mentioned to him that he found it unprofessional if people spoke about his personal circumstances. ID recommended that the claimant take the issue up with his line manager. When asked what he should do if he had a complaint about his line manager, ID recommended speaking with their line manager. We accept ID’s evidence that the claimant did not report to him that KF had told the claimant he had been banned from seeing his children. The claimant was much less specific. Claimant’s absence[58]The claimant began a period of absence due to sickness at the end of February 2023. In the days before then, the claimant had been more closely managed by KF as AM was on annual leave. We have seen email exchanges between claimant and KF between 20 and 24 February that indicate good working relations between the 2.[59]During her annual leave, AM received an occupational health (OH) report following the claimant’s OH appointment on 20 February 2023. The report is brief. It is apparent that not all of AM’s instruction text had reached OH. The report simply notes that there had been a referral to the Specialist Nurse Practitioner. The claimant alleges that, during the OH meeting, he told OH that he was being abused by AM and KF as a male victim of domestic abuse. This is alleged protected disclosure 17.a.iii.[60]The claimant’s absence began shortly after then. On 26 February 2023 the claimant emailed KF to say this:- Karlyn, Recent weeks and months have taken their toll on my physical and mental health. My experience within the team have compounded matters. I saw the OH practitioner on Monday who referred me to my GP. I saw my GP on Friday who was concerned about how my work and personal circumstances had impacted me. I had mentioned to both how distressed I had been since hearing people in my team had conveyed to you that I had been "banned from seeing my children". I wondered whether the same feeling would have been expressed if I were a mother fighting for her children, who had shared a letter from the police of twice being the victim of assault at the hands of my partner. Accepting myself as a male victim of domestic abuse has been difficult, and still is, challenging scepticism has been hard, but to hear such words from my work, after having worked tirelessly, to have had my efforts taken from me, judged wrongly, as though open season, has truly made me feel sick. These are not the values of the NHS nor of caring people. This was not the only incident at work, but the one that I have felt most acutely. I will update on my health in due course, but for now I'm likely to be off work for the next 2 weeks. The claimant alleges that this is a protected disclosure (17.a.i and 17.a.iv.)[61]KF contacted HR for advice. Following that advice, KF replied to the claimant in these terms: Evening Adeeb I am again sorry to hear you are not well and appreciate you letting me know. With Alison still being on leave this week, please do not hesitate to get in touch if I can help with anything. When you are feeling better, it would be good to meet - if this is something you wanted to do - to understand in more detail the points shared in your email. We can discuss at a later date once you are feeling better. On a more practical note, if you do find yourself off work sick for more than 7 days, you will need to get a fit note from your GP and send this through to us. If this is this week, you can forward to me but it can also wait for Alison’s return next Monday. Take care of yourself and hear from you soon.[62]On 3 March 2023 the claimant emailed KF and attached a fit note covering a period of 6 weeks from 24 February 2023. The claimant said this in his email:- My physical and mental health have suffered as a result of how I feel I have been treated within the team. I feel disappointed at the comments made towards me about my children and that whilst having gone over and above in my role, working without a job description for 20 months, working long hours as and when required, and having established a programme regarded by NHSE as the standard for patient validation for the entire NHS, and all under very difficult personal circumstances, I feel let down, that ultimately it has not been my performance that has been judged.[63]The claimant did not return to work before the date his fixed term came to an end on 31 March 2023. Events of 30 March 2023.[64]The alleged protected disclosures and protected acts listed in the list of issues includes ones made/done in a telephone call with Helen Elftesi (HE) on 30 March 2023 (Issues 12.d and 17 a v). The claimant also makes a complaint of harassment against HE, arising in this telephone call.[65]There is no reference to this call in the claimant’s statement. According to the list of issues, the claimant told HE that he was being abused by AM and KF.[66]HE attended the hearing to give evidence. She is no longer employed by the Trust. She was at the time an HR Officer with the respondent and worked part time. Her evidence was a candid account of the call and of her genuine concern for the claimant’s health. We accept her evidence.[67]HE had been asked to attend a meeting between the claimant and AM in a supportive capacity. The meeting concerned the ending of the claimant’s fixed term. The claimant did not attend.[68]HE tried to contact the claimant on 30 March 2023 but initially without success. However the claimant returned HE’s call that evening and HE took the call at her home, as she was preparing her children’s tea. The call with the claimant lasted about an hour. The claimant alleges he did a protected act and made a protected disclosure in his call with HE (issues 12.d and 17(a)(v)).[69]In the call the claimant told HE about the abuse that he had been subjected to by his ex-partner, that he had lost his children and was trying to get them back and that he was losing his job which was very stressful for him. The claimant also told HE about thoughts he had of taking his own life; this prompted HE to ask the claimant questions as a result of which the claimant assured HE that he was not going to hurt himself. The claimant also told HE that he felt everyone ( including AM and KF) “had it out for him” (HE’s words). This is what HE says in her statement: “the way he was speaking was as though every single person he knew or had interacted with was out to get him. This included the likes of the police. His comments were muddled in with this explanation that his wife had abused him. So I did not conclude from our conversation that Adeeb was telling me he had been abused by Allison or Karlyn. Nor did I conclude that Adeeb was raising concerns that he had been discriminated against.” It follows from that evidence (that we accept) that HE did not tell the claimant that action would be taken against HE and KF. HE did not give any indication that any action would be taken against either.[70]We accept HE’s evidence that after the call had ended she remained very worried about the claimant’s wellbeing, that she was unable to sleep. The following morning HE spoke with an HR colleague and between them decided that they should refer the claimant for an occupational health appointment. That appointment took place by telephone the same day (the claimant’s last day of employment with the respondent).[71]The list of issues also includes an allegation that the claimant did a protected act in telling OH that he was being discriminated against (issue 12(c)). The claimant does not also allege a protected disclosure on this occasion. There is no reference in the claimant’s statement to this alleged protected act other than a fleeting reference at para 73 when the claimant alleges a failure by the respondent to act on his protected disclosures in relation to the abuse he was experiencing from the respondents (we take this to be a reference to AM and KF) as a male victim of domestic violence and includes in the list of alleged protected disclosures to “Occupational Health and HR on 20/2/23, 30/3/23 and 31/3/23.” .[72]We have seen the OH report of 31 March 2023 (741 – 744). The OH clinician provides an extensive note in the report. Included in this is an account of a discussion with the claimant in which there are references to suicide. The claimant agreed to OH making an urgent referral to his GP. The report also notes that a decision was made to involve the safeguarding team and from there, enquiries that led to a decision to contact the emergency ambulance service who agreed to carry out a welfare check. These decisions were all made within the OH setting. They did not involve HE.[73]The same extensive report includes this: The client expressed dismay due to feeling that his experience was not validated by other people- both the police and management. The client informed me that his manager had made a hurtful comment linked to his custody of the children and this had caused him long term distress. The client stated that he was good at his job, so he was struggling to understand why his contract had ended- he stated that he believed that he had been treated unfairly as he was a good project manager. The client informed me that the police, management, and HR were aware of the historic abuse he had been subject to[74]That is the best evidence we have of the alleged protected act 12.c. We find the note quoted at 73 above to accurately summarise the relevant comments in the claimant’s discussion with OH on 31 March 2025. Funding arrangements[75]The funding for the claimant’s post was ending on 31 March 2023. The claimant has referred us to documents that he says indicate that funding was still available but we do not accept that.[76]The claimant initially had fixed term employment until 14 December 2022. The respondent had secured funding that extended this until 31 March 2023.[77]In the months leading up to 31 March 2023, efforts were being made by the respondent and other Trusts in the consortia to obtain ongoing funding for the elective recovery team. It was a priority for KF to take steps to obtain funding for this team and related programmes whose funding was ending on 31 March 2023. The bundle includes documents that show efforts being taken. Included is an email of 19 January 2023, from GD to Roger Smith, a senior executive of the relevant clinical commissioning group (CCG) ( KF is copied in): Hi Roger There have been discussions ongoing for some time to agree/establish a budget for the Elective Recovery Team led by Karlyn. These discussions are now critical and need to be concluded/implemented before March 31st – though as you would expect for the members of the team the sooner this uncertainty is lifted the better. I have been discussing the matter with Andrew but I understand from him that you would now be taking the lead on the decision. Is that your understanding? If so, can we please meet asap to address? Many thanks[78]The matter became increasingly urgent. This is GC’s email of 16 February 2023 to Roger Smith: Hi Roger I have spoken to Jonathan – he has confirmed that the ICS gave resource to the PCB in 2022/23 but, in his words “This however explicitly excluded Elective Care. This was abundantly clear at the time.” The reason for the above was that it was acknowledged at the time that there may be CCGs/ICB resources/people that could have taken on the work or transferred, so time was needed to examine any cross over. I believe that work has now completed, and no resource has transferred. Where we are now is that the work that for example Kevin Lavery has showcased to MPs or that I have showcased to Prof Briggs is going to have to stop because we are letting staff go as their contracts end – which will mean a difficult conversation up the line but more importantly it would mean that the figures submitted by the Trusts for next year’s plan would have to be revised downwards/deteriorate. To state the obvious I’d rather not have to do either but I have been raising this issue for months and unless you can see a way through I dont really know what more I can do.[79]A Programme Team meeting took place on 23 February. KF prepared a paper which set out the risks of not obtaining funding. (276 to 280) including the impact on employment. The claimant’s employment was specifically noted as his fixed term was ending on 31 March 2023.[80]The response from the CCG was that there was no identified funding available and there was a need to close unfunded things down if safe and practical to do so ( page 281).[81]There was no solution by April 2023 (after the end of the claimant’s employment) (page 343). New Team[82]As funding had not been obtained, the 4 Trusts who participated in the elective recovery programme decided to identify and pool between them some limited funding. This decision was made in May 2023. The costs of running the team were reduced and a new structure was put in place. This new structure involved fewer employees. There were however 4 posts created at Grade 8b. This is a grade above that held by the claimant and the same grade as the role that the claimant applied for, unsuccessfully, in November 2022. The new structure did not include any posts at grade 8a (the grade of the post that the claimant held).[83]After funding had been identified (12 May 2023) it then took time to settle on a new structure and to grade the posts in that structure. Posts were advertised from 6 July 2023. The grade 8b posts were advertised externally on the NHS jobs website. The host trust was to be Lancashire Teaching hospitals NHS Trust, not the first respondent.[84]We questioned the respondent witnesses about 8b roles, asking whether they were very similar to 8a roles in terms of seniority. The evidence ( that we accept) is that they are a good deal more senior and attract additional annual pay (compared to an 8a post) of about £10,000.[85]The claimant did not apply for one of the Grade 8b roles although there was nothing to stop him from doing so. The NHS jobs website is public and attracts applications nationally and internationally.[86]Neither KF nor AM contacted the claimant in July 2023, to make him aware that these roles were being advertised. KF’s evidence is that she does not recall whether or not this was a conscious decision on her part but that she is sure that the claimant would not have welcomed contact from her. We note that the claimant instructed HR to tell AM not to contact him. One of the claimant’s complaints of harassment was about the contact he had received from AM in March 2023, when he was absent due to sickness.[87]The claimant told us that he was not aware of the roles at the time they were advertised but, had he been aware of the roles, he would not have applied. He included this complaint as it highlights an ongoing need for the work to be done and is evidence that the reason given for his dismissal was a sham. Grievance[88]The claimant sent in a letter of grievance on the final day of his employment – 31 March 2023. A copy is at pages 309-311. It was addressed to Gary Doherty (GD) and to Sharon Gilligan ( the respondent’s chief operating officer). The letter includes the following comments :-a. An explanation that he is the victim of domestic abuse and details about this;b. some detail about the family court proceedings he was going through;c. an assertion that in the meeting of 26 January 2023, KF had said to him “it must be difficult if you have been banned from seeing your children” and how he was “gobsmacked” at hearing those words because no one had banned him “It was their mother that had forcibly taken them from our home …. Karlyn did not correct her statement and nor did Alison.”d. about how KF’s words had made him feel traumatised and wondering, if she would have said the same thing to a mother in those circumstances;e. an account of the subsequent discussion with AM stating that AM replied to his query by telling him that KF had misspoken;f. assertions that he gave KF another opportunity to refute the statement at a meeting between them when he showed her the letter from the police and she had not done so;g. the claimant’s belief that AM had falsely told KF that he had been banned from seeing his children;h. comments about how much the claimant loves his job and that he had been treated unfairly;i. comments that there was some funding called “Mutual Aid” that could and should have been used to fund his post going forwards;j. an assertion that KF indicated further her intent for the claimant to leave by telling him he could ask a new employer for flexible working arrangements.[89]The final main paragraph of this grievance letter is as follows:- “ I have raised these issues multiple times now with Occupational Health and HR. I have told both of the emotional distress caused by Alison and Karlyn wanting me to believe that they think I’ve been banned from seeing my children, which after over a year of working and fighting for my children, is callous and a kick in the teeth. I cannot conceive that if I was a female member of staff and a mother that I would have been treated in this way, but as a man and a person of colour, the impact of my treatment seems not to be taken seriously. I hope you will look into these matters. The emphasis above is ours. It highlights the only part of the detailed 3-page letter that indicates an allegation of discrimination.[90]The respondent’s Director of People acknowledged the letter on 4 April, told him that a colleague would be in touch about his grievance, provided details of the respondent’s resolution policy (a replacement to a previous grievance policy) and encouraged the claimant to appeal against the decision to end his fixed term contract (the termination letter dated 30 March 2023 having referred to a right of appeal).[91]The claimant did appeal against this dismissal. That was received by the respondent on 27 April 2023. (page 330-332). In summary, the claimant’s appeal document:-a. appeals against the non-renewal of the contract on grounds of sex, race and religious discrimination.b. notes confusion about what policy was being followed and also that the delay in the appeal was due to the claimant’s poor health.c. refers to the call with HE (see above) and asserted that HE had said that she was not happy with AM and KFs conduct towards him and would be taking the matter further – but in the end she did not, referring him instead for an occupational health appointment.d. makes this allegation:- “Helen's lack of concern and response was a reflection of how I had been treated by Alison and Karlyn, judgemental and prejudiced. This response came despite me telling each one that men and fathers face considerable ill treatment in this country especially in relation their children. Fathers for Justice campaigned for the equal treatment of fathers over 20 years ago. But despite this and some 760,000 male victims of domestic abuse each year, comprising a third of all victims of domestic abuse, the response from most people is consistent, to dismiss the experience and existence of male victims of domestic abuse. I do not evidently fit the profile of a male victim of domestic abuse according to Alison, Karlyn and Helen.”e. makes reference to suicide rates of non-resident fathers.f. alleges that KF used “an entirely false pretext claiming I had been banned from seeing my children to ensure my role within the team ended.”g. alleges that the same false pretext was also the reason for not telling the claimant about his right to raise a grievance or appeal against his dismissal.h. refers to the grievance of 31 March including his belief that AM used the false allegation to persuade LH not to appoint the claimant to the programme manager role in November 2022 and his grievance about the comment he alleges was made on 26 January 2023.i. summarises his high performance during his fixed term employment.[92]The claimant complains about the delay to the grievance process. Our findings below focus on facts relevant to this complaint. We note however that we have read the various investigation notes as part of our wider fact finding.[93]A meeting took place on 22 May 2023 between the claimant, GD and an HR manager (James Walsh) to discuss possible, informal resolution of the claimant’s grievances. The claimant considered that the formal process should be followed owing to the seriousness of his allegations.[94]The respondent decided to carry out a combined investigation into the grievance and the appeal against dismissal. GD was appointed as a commissioning manager. This meant that he commissioned an investigation and then considered the investigation report and outcome before reaching a decision about the grievance and appeal.[95]The respondent appointed an investigator in late May 2023. A document (Terms of Reference for Investigation) is dated 30 May 2023. It is at pages 358-362. It estimates that the investigation will take 6 weeks.[96]The investigator (Martin Bishop) met with the claimant on 30 June 2023. Notes of that meeting are at pages 372 – 380. The claimant made significant additions to these notes before he returned them.[97]The investigator then interviewed 4 people including AM and KF. Those interviews took place on 11 July 2023 and then on 15 and 17 August 2023. KF was interviewed for a second time on 4 September 2023.[98]The investigation report was then completed. It is dated 8 September 2023 (pages 478-496). It was provided to GD.[99]GD considered the report and wrote to the claimant on 28 September 2023 with the outcome (page 497-499) We summarise the outcome:-a. In relation to the comment allegedly made on 26 January (and matters surrounding that) the outcome is consistent with our own findings of fact.b. As for the decision to dismiss, GD concluded that was as a result of the employment being for a fixed term and the “financial situation of the team” there were no other reasons or motives for the claimant’s dismissal. Again, this outcome is consistent with our own findings of fact. We are satisfied that GD reached these conclusions on the basis of the evidence. He was not in some way influenced by any of the claimant’s protected disclosures to reach a decision that was detrimental to the claimant. Subject access request.[100]The claimant complains about the delay in responding to a data protection subject access request he made. His complaint is one of direct discrimination. The respondent was very slow indeed in responding to the claimant. Matthew Ireland (deputy HR director) attended this hearing to give evidence about the delay. We found him to be a candid witness who accepted there had been failings by the respondent.[101]The claimant submitted his request in August 2023. He complains that he did not receive a reply to the request until after a preliminary hearing on 23 April 2024. Chronologically that is not in dispute. Mr Ireland took us to various correspondence between the respondent and the claimant in which the respondent apologised for the delay in dealing with the request. The request was not answered until 25 April 2024. (page 715).[102]In his witness statement the claimant complains that the respondent hoped to hide certain disclosure and would have done so had it not been for the claimant bringing proceedings. The claimant has a section in his witness statements that is headed “disclosure.” Almost all of this section is taken up with an explanation of his pursuit of certain specific disclosure applications in these proceedings and his representation of comments made by judges in relation to those applications. There are 2 allegations in the claimant’s statement about the respondent’s failures to comply with the subject access request.a. That copies of the respondent’s policies were not provided until 8 months after the subject access request. Any failure to comply with a subject access request is a matter for the ICO. However a complaint that a corporate policy should have been disclosed in response to a SAR would be misguided.b. Misleading the ICO in correspondence, saying that the claimant’s SAR results were “ready to collect.”[103]The reference to documents being “ready to collect” is in an email from the Occupational Health team dated 21 December 2023 (page 561). We find that response related only to the claimant’s personal data held by occupational health. Otherwise it would be at odds with the correspondence from the respondent’s HR team – for example an email from Jason Cowgill of a month later ( 25 January 2024) which states:- “Good evening Adeeb. I can confirm that the documentation you requested is currently being pulled together and will be sent to you as soon as possible. I apologise for the delay in you receiving the documentation, this is due to current staffing within the team.”[104]We find that to be the explanation for the seemingly inconsistent messages. Other relevant facts Respondent’s domestic abuse policy.[105]The respondent has a domestic abuse policy (Policy). A copy is at pages 723 – 740. One of the complaints is that the respondent failed to support the claimant in accordance with this policy and as such directly discriminated against him. The claimant’s evidence ( that we accept) is that he did not know that this policy existed during his employment with the respondent. We note there is no reference in the contract documents to the existence of local policies.[106]The following parts are relevanta. Part 3.0 (Scope of Policy) which states that while mainly women experience domestic abuse, the policy applies equally to men.b. Part 10.0 ( Providing support for employees. Support will be available to employees involved in domestic abuse. Support is available via several routes, these include the individual’s manager, a Human Resources Manager, the Hospital Safeguarding Team, Occupational Health and Wellbeing Service, Union Representative etc . Support is also available through specialist services for supporting those experiencing domestic abuse and staff can access these directly. (See Appendix 1) Part 10.0 then sets out what good practice may include when supporting an individual. This includes consistent management; an environment where employee feels safe to talk about what they are experiencing; listening and believing what they are saying; managers being informed about supportive options available in the policy and discuss with employee; keeping in touch with the employee during any period of absence.c. Part 11.0 – the SEE Network. This is a network of staff members at the respondent who have experienced domestic abuse and are in a position to support other staff on an informal basis. As SEE is not a formal specialised service it is recommended that it is accessed in addition to specialised support from domestic abuse services including an external advocate – and Independent Domestic Violence Advocate ( IDVA). An appendix to the policy notes that the respondent has access to an IDVA covering residents of Blackburn with Darwen.d. Part 12.0 Routine Enquiry. This provides that all staff who have contact with the OH service will be asked about domestic abuse.e. Part 13.0 Roles and responsibilities. This includes a section for line managers that repeats many of the good practice points. It includes a section for Trust employees – noting that all employees have a responsibility to familiarise themselves with the policy and adhere to its process.f. Part 15.0 dissemination and Implementation. This states that the respondent will raise awareness of domestic abuse through various measures listed including:- Publicising, maintaining and posting in locations of high visibility a list of external and internal resources for individuals subject to and perpetrators of domestic abuse Publicising a statement from the Trust communicating the Trust’s position on domestic abuse to all employees. Publicising and distributing information on the Trust’s policy on the intranet.g. Appendix one to the policy provides details of national and local advice agencies.[107]A support mechanism for the claimant was set up in or prior to June 2022, following discussion between the claimant and his line manager at the time. It included a referral to occupational health, the commencement of regular (weekly) review meetings between claimant and line manager) and arranging and funding of a series of counselling sessions – which the claimant said were helpful to him. Counselling was not something that was specifically mentioned in the Policy – other than the possibility of support by allowing time off to enable an employee to attend counselling sessions. To this extent therefore the respondent’s support went above and beyond the options in the policy.[108]The claimant’s position is that he should have been referred to the SEE network and would have been had he been a woman who had suffered domestic abuse. The claimant was asked whether ( for example via his GP or Manchester social services ) he had been referred to a Manchester IDVA. He replied that he had not.[109]There was no evidence that the respondent fulfilled the obligations under part 15.0 ( dissemination and implementation). We asked whether details of the policy were made available to employees – e.g. on local noticeboards or internet equivalent – and were told that they were not. Texts between claimant and AM[110]The bundle includes copies of texts between the claimant and AM between July 2022 and 28 March 2023. On the whole these indicate a supportive working relationship between the 2 and include encouraging and supportive comments from AM, regarding the claimant’s personal circumstances.[111]The messages became much more “one way traffic” in March 2022. On 7 March, on her return from leave, AM sent a text to the claimant:- “ Hi Adeeb, I'm sorry to hear you have been unwell whilst I've been on leave. I do hope you're doing OK. I wanted to try and meet up with you to catch up and see if there is anything else I can do to help. Would you let me know when you're free and I'll move things around to enable those to do so. Thanks, Allison.”[112]The claimant replied that he was not doing great but that he may be in touch towards the end of that week. AM replied to express sympathy, to ask whether the claimant had received an appointment from a specialist nurse and to ask him to contact her at the end of the week in case there was anything else she could do to help.[113]On 14 March AM sent a message to the claimant to ask if he would contact her to check in, see how things are and in case there was anything else AM could do to help. AM also noted that she needed to go through HR support mechanisms for long term absence. The claimant replied:- “Hi Alison. I don't feel well enough at the moment for a conversation this week. I'll be in touch later this week and maybe we can arrange something early next week.”[114]AM replied the following day to say she would update HR and would see if they could plan a meeting the following week.[115]On Monday 20 March AM contacted the claimant, noting that she understood he may not be ready to speak and to ask how he would prefer to communicate. She noted that she had received an OH report which recommended she maintain contact with the claimant (see our findings about this below). She also told the claimant that he needed to send him information regarding long term absence as well as updating him on the position with the fixed term contract – the update being that the position remained the as it was.[116]On 21 March AM sent another text to the claimant. In that text she told the claimant that, having updated HR they told AM to put 2 meetings in the diary “so we could discuss support for you.” The claimant was told that 2 letters were coming unfavourable treatment in the post to the claimant but she offered to email them. The claimant replied “It’s OK. I’m not great at the moment. I’ll look out for the letters. “[117]AM sent another message on 27 March saying that she just wanted to check in with the claimant to see how she was doing and to check the claimant had received the letters. The claimant did not reply[118]The following day (28 March) AM sent another text to ask the claimant to let her know that he was OK; that she was worried about him. She told the claimant that she understood he may not be ready to talk and to state that was fine, but asked him to message her. She also told the claimant that she had asked HR about whether she should carry out a wellness check, to come and see the claimant but also noting that he might think this was a bit much. She told the claimant that she was going to send the claimant a Teams Invite for the following day so they could have a “very quick wellness check” and they could discuss access to other services.” That was AM’s last message.[119]The Occupational Health recommendation referred above followed an appointment on 14 March 2025. The relevant OH report is at page 293. It includes the following “Adeeb feels at the present time contact from the workplace is too much and he feels he requires some time to himself.” “In my opinion Adeeb is not fit for duty. I would recommend regular meetings with management to help support the client and monitor any improvement in symptoms.” Under the heading of Comments and detailed suggestions: “ Adeeb feels at this present time contact from the workplace is too much and he feels he requires some time to himself. I would recommend when Adeeb returns to work he has regular meetings with management to help support him. I recommend phased return. I recommend a stress risk assessment on his return to work.” Alleged protected acts 12.2; 12f and 12g.[120]The claimant alleges he made protected acts in correspondence from him as detailed below:a.26 June 2023. In an email to GD. The relevant extract ( at page 717) is as follows:- “As a vulnerable victim of domestic abuse I consider their actions to be materially no different to an NHS member of staff abusing a vulnerable patient.b.16 August 2023. In an email to Kate Quinn. The relevant extract (at page 443) is as follows:- Dishonesty and obfuscation have been hallmarks of this entire process notwithstanding LTH staff abusing victims of domestic abuse and thereafter hiding their abusesc.3 September 2023. In a letter from the claimant to the respondent’s Board. The letter is at page 404-406. The claimant does not highlight any particular part of the letter. It alerts the board to the abuse of victims of domestic abuse by the respondent’s staff alleging that was his treatment over his 21 months of employment and the 5 months following the termination of employment. The claimant expresses very strong feelings about his treatment:- Kate Quinn, Executive Director of People and Culture can explain to you how and why she has put the ELHT board in the position of dealing with its own potential Letby moment, of how NHS managers like her are conducting themselves as though above the law, above accountability and consider themselves more important than the patients they are duty bound to selflessly serve. ………… My ill treatment was coupled with agonisingly dragging out my contract whilst I was telling both that by doing so they were heaping more stress and anxiety. They remained unmoved as though I was speaking to people for whom care was an alien concept. On 25.01.23 I emailed Karlyn complaining about my treatment. The very next day and instead of seeking to understand the considerable struggle I was facing as a man/Muslim man, in expecting fair treatment and with the compassion any NHS patient would expect, Karlyn saw fit to tell me, “Oh it must be difficult if you have been banned from your children”. What a foul and odious comment for a senior NHS manager to make to a victim of domestic abuse who was displaying attributes if found in others would have been a source of celebration – determination, courage, empathy, fortitude, resilience and selfless devotion to his children. She showed no reaction, no remorse, offered not apology, made no retraction, and gave no explanation for why she said such foul and dishonest words to the applicant in private family law proceedings, who was his children’s primary carer, protector, and provider, if not evidently stemming from a place of a lack of accountability. As then, so now, I invite ELHT, LTH, Alison, Karlyn, Gary and Kate to provide me with the evidence to support those odious words. Claimant’s previous experience of Employment Tribunal proceedings.[121]The claimant confirmed, in response to questions from Mr Singha that he had some experience of Employment Tribunal proceedings although had not previously been to a final hearing. However he was aware of employment Tribunal time limits.[122]The claimant commenced early conciliation against the first respondent on 28 June 2023 and against the second respondent (KF) on 1 August 2023. There are time limit issues in respect of complaints dating before 28 March 2023 in respect of the first respondent and 1 May 2023 in respect of KF. Submissions[123]Both parties provided written submission documents. The parties also had an opportunity to make oral submissions. Mr Sangha particularly added various submissions to his written document.[124]We do not attempt to summarise the submissions here. They were considered by us and helped us in our fact finding and in reaching our conclusions.
The Law
[125]Section 123 Equality Act 2010 (EQA) provides that complaints may not be brought after the end of 3 months “starting with the date of the act to which the complaint relates” (s123(1)(a) EqA). This is modified by section 140B – providing for early conciliation.[126]Section 123(1)(b) provides that claims may be considered out of time, provided that the claim is presented within “such other period as the employment tribunal thinks just and equitable.”[127]Section 123(3)(a) provides that “conduct extending over a period is to be treated as done at the end of that period.” (We refer to this below as a continuing act).[128]As for the exercise of the power under section 123(1)(b) we note the following passage from paragraph 25 of the judgment of Leggat LJ in Abertawe Bro Morgannwg University Local Health Board v. Morgan [2018] EWCA Civ 640 the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.[129]The EqA itself does not set out what Tribunals should take into account when considering whether a claim, which is presented out of time, has been presented within a period which it thinks is just and equitable. I note the following:-a. British Coal v. Keeble UKEAT 496/96 in which the EAT advised, when considering whether to allow an extension of time on just and equitable grounds, adopting as a checklist the factors referred to in s33 of the Limitation Act 1980. These are listed below:-• 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.• the extent to which the party sued had co-operated with any requests for information.• the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action.• the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.b. Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] ICR 283 EAT. This case noted that the issue of the balance of prejudice and the potential merits of the (in that case) reasonable adjustments claim were relevant considerations to whether to grant an extension of time.c. In Adedeji v. University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ. 23 noted that Tribunal’s should not rigidly adhere to the Keeble checklist (above). “The best approach for a Tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time including in particular … “the length of and the reasons for the delay”. If it checks those factors against the list in Keeble, well and good but I would not recommend taking it as the framework for its thinking.” (from para 38 of the Judgment). Harassment – section 26 Equality Act 2010 (“EqA”)[130]Section 26 (1) states: “ A person (A) harasses another (B) if – (a) A engages in unwanted conduct relating 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[131]The EAT decision in Richmond Pharmacology Limited v. Dhaliwal [2009] IRLR 336 emphasised the need for Employment Tribunals when deciding allegations of harassment to look at three steps, namely:-a. Whether the respondent had engaged in unwanted conductb. Whether the conduct had the purpose or effect of violating the claimant’s dignity or creating an adverse environmentc. Whether the conduct was on the grounds of the applicable protected characteristic?[132]Unwanted means unwanted by the claimant, a term that should be largely assessed subjectively ( Sanderson Blinds Ltd v. English EAT 0316/10)[133]We also considered case law which provides guidance to Tribunals when a single act is alleged to constitute harassment, notably Insitu Cleaning Co v Heads 1995 IRLR 4 and Quality Solicitors v. Tunstall [2014] WLUK 975.[134]As to whether the conduct in question has the effect set out in section 26(1)(b), regard must be had to section 26(4) “In deciding whether conduct has the effect referred to in subsection 1b, each of the following must be taken into account.(a) the perception of B.(b) the other circumstances of the case.(c) whether it is reasonable for the conduct to have that effect? Direct Discrimination – section 13 Equality Act 2010 (“EqA”)[135]Section 13 states: “A person (A) discriminates against another if, because of a protected characteristic, A treats B less favourably7 than A treats or would treat others.”[136]An important question for us is whether the claimant’s race was an effective cause of the respondent’s treatment of the claimant. As was made clear in the case of O’Neill v. St Thomas More Roman Catholic School [1996] IRLR 372 the relevant protected characteristic need not be the only cause of the treatment in question.[137]We also note the following:-a. the House of Lords in Nagarajan v London Regional Transport [1999] ICR 877, HL, held “discrimination may be on racial grounds even if it is not the sole ground for the decision……..If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.” (judgment of Lord Nicholls)b. Paragraph 3.11 of the EHRC Employment Code which states that ‘the characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause’[138]Section 13 provides that direct discrimination occurs where an individual is treated “less favourably” than another. It is generally necessary therefore to identify a comparator who does not share the claimant’s protected characteristic, although claimants can rely on a hypothetical comparator (the term “or would treat others” within the wording of section 13 makes this clear).[139]Section 23(1) EqA requires that there is “no material difference” between the claimant’s position and his/her comparators position. Case law makes clear that the comparator’s circumstances do not have to be the same in all respects; rather they have to be the same (or nearly the same) in those circumstances which are relevant to the claimant’s claim. (see for example the decisions of the House of Lords in Shamoon v. Chief Constable of the Royal Ulster Constabulary 2003 ICR 337 and MacDonald v. MOD; Peace v. Mayfield School 2003 ICR 937). Victimisation[140]Section 27 Equality Act 2010 is relevant here. It prohibits a person ( the claimant) from being subjected to a detriment by another person ( the res[pendent) because the claimant had done a “Protected Act.”[141]A protected act is defined at section 27(2) which provides as follows. “Each of the following is a protected act:a. bringing proceedings under this Act.b. giving evidence or information in connection with proceedings under this Act.c. doing any other thing for the purposes of or in connection with this Act.d. Making an allegation (whether or not express) that A or another person has contravened this Act.[142]Mr Sangha referred us to the following authorities on the issue of what is a protected act.a. Beneviste v. Kingston University UKEAT/0395/05b. Durrani v. LB Ealing UKEAT/0454/12c. Chalmers v.Airpoint Ltd UKEATS/0031/19[143]In Chalmers, the Employment Tribunal decided that the wording of a grievance by the claimant in that case did not amount to a protected act. The wording was “My work is mostly ignored and I have been excluded from both the Christmas night out and from the hardware refresh, neither of which is acceptable to me and both of which may be discriminatory[144]That finding was upheld on appeal, the EAT Judge noting that they were not the finders of fact and there were factors ( such as the absence of an identified protected characteristic, the use of the word “may” and the claimant’s considerable HR experience) that supported the Tribunal’s finding. It was not overturned.[145]We also note the more recent EAT decision in Kokomane v. Boots Management Services Limited [2025] EAT 38 and the guidance at paragraph 24 of that judgment: It appears to me the law could be summed up in this way: what is necessary is that the ET should take account of all of the factors that are provided in the information given by the employee to the employer. In addition the ET needs to consider that information on the basis of how it would be understood by the employer in context. It would be understood by the employer, in part, because of the general facts about the employee and the place of work, which the employer would know of in any event. In terms, that the employee’s complaint should be considered by the ET by examining the way that it would be understood by the employer. When the employee makes the complaint explicit that will be an easy task. When the complaint is oblique the context becomes important.[146]The EHRC Employment Practices Code provides guidance on what is meant by a detriment. ‘Detriment’ in the context of victimisation is not defined by the Act and could take many forms. Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards. A detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment.[147]In Warburton v. Chief Constable of Northamptonshire Police (2022 EAT 22) at paragraphs 49-51 particularly, the EAT provided useful guidance on the definition of detriment, referring to earlier binding authorities49. Detriment is a word to be interpreted “widely” in this context: Chief Constable of West Yorkshire v Khan [2001] 1 WLR 1947 per Lord Mackay at para 37 (cited in Shamoon at para 33).50. The key test for present purposes is for the ET to ask itself: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?”. It is not necessary to establish any physical or economic consequence for this question to be answered in the affirmative. The requirement that this hypothetical worker is a reasonable person means, of course, that an unjustified sense of grievance would not pass this test. All of this is established by the judgment of Lord Hope (and other cases which he cites) in Shamoon at para 35.51. Although the test is framed by reference to “a reasonable worker”, it is not a wholly objective test. It is enough that such a worker would or might take such a view. This is an important distinction because it means that the answer to the question cannot be found only in the view taken by the ET itself. The ET might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test is satisfied. It should not, therefore, be particularly difficult to establish a detriment for these purposes[148]Where a claimant has shown that they have been subjected to a detriment, the Tribunal has to consider whether that detrimental treatment was because of the protected act rather than whether the treatment would not have happened “but for” the protected act. On this point, we note the Court of Appeal’s comments in Greater Manchester Police v Bailey [2017] EWCA Civ 425 particularly at paragraph 36.[149]The protected act need not have been the only reason for the detrimental treatment, but it must have been a significant influence, meaning that any influence that the protected act did have must have been no more than trivial (Villalba v. Merrlil Lynch and Co UKEAT/0223/05). Burden of Proof – Equality Act 2010[150]We are required to apply the burden of proof provisions under section 136 EqA when considering complaints raised under the EqA. Section 136 states:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are any facts from which a court could decide in the absence of any other explanation, that a person (A) has contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection 2 does not apply if A shows that A did not contravene the provision.”[151]We have also considered the guidance contained in the Court of Appeal’s decision in Wong v. Igen Limited [2005] EWCA 142. This case concerned the test as set out in discrimination legislation that pre-dated the EqA but the guidance provided in there remains relevant. It is the annex to the judgment particularly that provides guidance. (the amended Barton guidance). We note the following particularly from the guidance (recognising that the guidance is now relevant to the application of s136 EqA)a. That it is guidance only and not a substitute for the statutory languageb. It is for the claimant to prove on the balance of probabilities, facts from which the tribunal could conclude, in the absence of adequate explanation, that the respondent has committed an unlawful act of discrimination. If the claimant does not prove such facts then the claim will fail.c. It is unusual to find direct evidence of discrimination.d. It is important to note the use of the word “could” at s136(2) – that, at this stage of analysis, a definitive determination does not have to be made.e. The Tribunal needs to decide what inferences of secondary facts can be made from the primary facts at this stage, on the assumption there is no adequate explanation for those facts?f. Where the claimant has proven facts from which the Tribunal could conclude that the respondent has treated claimant less favourably on the grounds of (in this case) the claimant’s race then the respondent must prove that it did not do so. It must pro9ve that the treatment of the claimant was in no sense whatsoever on the grounds of the claimant’s race.g. The tribunal will need to assess(1) whether the respondent has provided an explanation for the relevant facts and(2) that the explanation is adequate to discharge the burden of proof on a balance of probabilities.h. The facts necessary to discharge the burden of proof would normally be in the possession of the respondent and a tribunal would therefore normally expect cogent evidence to discharge that burden of proof.[152]We also note that there can be occasions, particularly where a claimant is relying on a hypothetical comparator ( as here) where it is appropriate to dispense with the first stage of the burden of proof test and to focus on the second stage, the reason why the Respondent treated the claimant in the way that it did. See for example the EAT Judgment in Laing v. Manchester City Council [2006] IRLR 748 (paragraphs 73 to 77). However we also note the EAT’s caution against Tribunals adopting this approach too readily - in the recent case of Field v. Steve Pye and Co (KL) Limited [2022] EAT 68 and particularly paragraphs 43-46. Mr Sangha also urged us in this case to apply the 2-stage burden of proof test.[153]Finally, on the issue of burden of proof, we are mindful of guidance from case law indicating that something more than less favourable treatment may be required in order to establish a prima facie case of discrimination; see for example Madarassey v. Nomura International [2007] ICR 867, where the following was noted in the judgment: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” Protected Disclosures[154]The claimant claims that he was subjected to detriments on the grounds that he had made a protected disclosure. Section 47B Employment Rights Act 1996 (“ERA”) provides as follows: “(1) A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[155]Section 43A ERA - Meaning of “Protected Disclosure”: “In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[156]Section 43B ERA– Disclosures qualifying for protection “(1) In this Part a “qualifying disclosure) means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –a. That a criminal offence has been committed, is being committed or is likely to be committed;b. That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;c. That a miscarriage has occurred, is occurring or is likely to occur;d. That the health or safety of any individual has been, is being or is likely to be endangered;e. That the environment has been, is being or is likely to be damaged; orf. That information tending to show any matter falling within any of the preceding paragraphs has been or is likely to be deliberately concealed. …”[157]Section 43C ERA: “A qualifying disclosure is made in accordance with this section if the worker makes the disclosure... –(a) to his employer, or(b) where the worker reasonably believes that the relevant failure relates solely or mainly to – (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person…..”[158]Section 48(2) ERA: This section provides that on a complaint under these provisions: “…it is for the employer to show the ground on which any act or deliberate failure to act was done.”[159]In considering whether there have been one or more qualifying disclosures in this case we have considered guidance provided by a number of cases including(1) Chesterton Global Limited v Nurmohamed [2017] IRLR 837 (“Chesterton”),(2) Parsons v Airplus International Limited UKEAT/0111/17.(3) Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 (“Korashi”);(4) Wharton v Leeds City Council EAT 0409/14;(5) Kilraine v London Borough of Wandsworth [2018] ICR 1850.(6) Kuzel v. Roche Products [2008] ICR 799 (“Kuzel v. Roche”)[160]Having regard to the terms of the ERA and the case law referred to above, the following is relevant:(1) The worker making a disclosure has to reasonably believe that it is made in the public interest and also has to reasonably believe that it “tends to show” one or more of the subject matters listed at 43B(a) to (f) ERA (see above).(2) The terms of section 43B ERA require a reasonable belief of the worker making the disclosure (our emphasis). This wording provides a mixed objective and subjective test. The test is not whether there is a reasonable belief on the part of a reasonable worker; rather the test is whether the particular worker making the disclosure has a reasonable belief.(3) The question whether a disclosure is in the public interest depends on the character of the interest served by it rather than simply on the numbers of people sharing the interest (Chesterton - paragraph 35).(4) The question as to whether the particular worker has a reasonable belief that there is or is not a disclosure in the public interest is a question to be answered by the Tribunal on a consideration of all the circumstances of the particular case.(5) There must be some objective basis for the worker’s belief in order for that belief to be reasonable. Some evidence is required; rumours, unfounded suspicions, uncorroborated allegations and the like will not be good enough to establish a reasonable belief (Korashi).(6) The information disclosed only has to “tend to show” one or more of the matters set out in (a) to (f) of section 43B. It does not have to prove the matter and information may, in the reasonable belief of the worker “tend to show” one or more of the matters at section 43B(a) to (f) even if the worker is in fact mistaken. (Kilraine)(7) Where a claimant relies on breach or likely breach of an unspecified legal obligation as the relevant failure, that claimant may have difficulty in persuading a Tribunal that his or her belief was reasonable (Kilraine).(8) Where a Tribunal cannot identify the grounds on which a respondent subjected a claimant to a detriment, it does not automatically follow that the claimant’s claim – by which he or she asserts an unlawful reason for the detriment – is successful (Kuzel- Roche)[161]In deciding whether there have been protected disclosures, we have taken note of the EAT’s decision in Blackbay Ventures Limited v. Gahir (UKEAT/0449/12). and the importance of (and guidance to) a structured approach to decision making set out at paragraph 98. 98. It may be helpful if we suggest the approach that should be taken by employment tribunals considering claims by employees for victimisation for having made protected disclosures. 1. Each disclosure should be identified by reference to date and content. 2. The alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered or as the case may be, should be identified. 3. The basis upon which the disclosure is said to be protected and qualifying should be addressed. 4. Each failure or likely failure should be separately identified. 5. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the employment tribunal to simply lump together a number of complaints, some of which may be culpable, but others of which may simply have been references to a check list of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the employment tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the employment tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest of act or deliberate failure to act relied upon and it will not be possible for the Appeal Tribunal to understand whether, how or why the detriment suffered was as a result of any particular disclosure; it is of course proper for an employment tribunal to have regard to the cumulative effect of a number of complaints providing always they have been identified as protected disclosures. 6. The employment tribunal should then determine whether or not the claimant had the reasonable belief referred to in s.43B(1) and under the 'old law' whether each disclosure was made in good faith; and under the 'new' law whether it was made in the public interest.[162]On the issue of causation, we have been guided by the Court of Appeal’s judgment in Fecitt v. NHS Manchester [2011] EWCA 1190, including:-a. Paragraph 45: “Section 47B will be infringed if the protected disclosure “materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower.”b. Paragraph 51 “... where the whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical — indeed sceptical — eye to see whether the innocent explanation given by the employer for the adverse treatment is indeed the genuine explanation. The detrimental treatment of an innocent whistleblower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer.” Detriment[163]This term is not more accurately defined in the legislation. It means putting under a disadvantage and that should be looked at from the point of view of the worker. (Ministry of Defence v. Jeremiah [1980] ICR 13 CA).[164]The judgment of the House of Lords in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 is a leading judgment on the meaning of detriment. Whilst that is a decision of a case brought under sex discrimination legislation; the terms of that judgment must be applied when considering whether something amounts to a detriment for the purposes of section 47B ERA. We note particularly paragraph 31-37 of that judgment and the following arising from those paragraphs:-a. That a Tribunal, in deciding whether the act a claimant complains of amounted to a detriment, should consider whether a reasonable worker would or might take the view that he had been disadvantaged in the circumstances in which he had thereafter to work. (para 34).b. To show a detriment, it is not necessary to show some physical or economic consequence ( para 35)c. That an unjustified sense of grievance cannot amount to a detriment (para 35) Burden of Proof – detriment complaints[165]The claimant claims that he was subjected to detriments on the grounds that he made one or more protected disclosures. Section 48(2) ERA provides that on a complaint of being subjected to a detriment contrary to section 47B ERA, it is for an employer to show the ground on which any act or deliberate failure to act was done. The burden of proof therefore is on the employer/respondents. Although that burden of proof only applies if the claimant proves:- d. that he made one or more protected disclosures e. That he was subjected to a detriment. Time Limits – detriment complaints.[166]Section 48(3) of the ERA provides that a detriment complaint must be: “presented–a. Before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates. Or where that act or failure is part of a series of similar acts or failures, the last of them. Or:-b. Within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[167]Section 207B of the ERA extends the time limits at s111(2) to take account of the statutory requirement for early conciliation, but only where the claimant has contacted ACAS within those time limits. That did not occur in this case and therefore the claim was not presented in time.[168]Where a complaint of being subjected to detriments has not been presented in time, an Employment Tribunal must consider whether or not it was “reasonably practicable” for the claim to have been presented in time. That is a decision that must be made on the facts.[169]The term reasonably practicable mean neither “reasonable”, nor “something that is physically capable of being done”. The term means somewhere between these 2 ( see Palmer v Southend on Sea BC 1984 IRLR 119). We also note the following from paragraph 35 of Palmer: What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the Industrial Tribunal and that it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, an Industrial Tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Industrial Tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases, the Tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisors' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there has been any substantial fault on the part of the employee or his advisor which has led to the failure to comply with the statutory time limit. Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the Industrial Tribunal taking all the circumstances of the given case into account. Discussions and conclusions[170]We agree with Mr Sangha’s calculation that matters complained of before 28 March 2023 against the first respondent may be out of time and matters complained of before 1 May 20923 against the second respondent may be out of time. Where appropriate we deal with the time limit issues against each individual complaint. However where we have concluded in our findings of fact that something simply did not happen, we have not gone on to consider whether a complaint should be dismissed on a time limit point. Harassment (issues 7.a to 7.e ) Conclusions to 7.a[171]We have not found that KF told the claimant that he was banned from seeing his children. We have made a finding that KF used the term “banned” but this was used in the context of KF telling the claimant and AM about the circumstances of another individual. Further, the circumstances were relayed by KF in an effort to show sympathy and understanding for the claimant’s position. The alleged comment was not said.[172]The comment that was said does not meet the definition of harassment.a. Having regard to KFs conduct (of showing sympathy and understanding for the claimant) it should not have been unwanted. As it was, the comment was only unwanted by the claimant because he misunderstood the comment made. It was not therefore the conduct of KF that was unwanted but the comment that the claimant says was made (but was not made) by KF.b. There are no facts from which we could conclude that the comment was related to sex. The fact that the example provided related to a father estranged from his children does not make it related to sex.c. It had neither the purpose nor the effect of violating the claimant’s dignity nor creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. It would only have had that effect had(1) the comment been said as alleged by the claimant(2) that was part of an overall course of conduct – also as alleged by the claimant (but not found). In reaching this conclusion we have considered carefully those authorities referred to above regarding a single act amounting to harassment for the purposes of section 26 Equality Act 2010. Conclusions to 7.b The comment was not said. See our findings at para 41. Conclusions to 7.c[173]AM sent text messages to the claimant on 7, 14, 20, 21, 27 and 28 March 2023 These texts were sent by the claimant’s line manager during a time when the claimant was absent from work due to sickness. Further:-a. comments from the claimant gave cause for concern.b. At the same time, the line manager (AM) needed to confirm to the claimant hat his fixed term employment was ending.[174]Whilst the claimant did indicate that he did not want any contact from the respondent, the protected characteristic was irrelevant to the messages. There are no facts from which we could conclude that the protected characteristic of sex was relevant either to the messages themselves or AM’s motive in sending the messages.[175]In addition, such contact as there was ( in terms of frequency and content) did not have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. If we are wrong about this and the messages did have that effect, then it was not reasonable for the conduct to have had that effect (and therefore the statutory definition of harassment is not met).[176]As for time limits, on the assumption that the allegation is that the conduct of sending the messages as a whole (rather than any particular message) amounted to harassment then the complaint is in time. Conclusions to 7.d[177]HE did not tell the claimant that she was going to take action against KF and AM as alleged. As for HE’s involvement and actions on 30 and 31 March 2023, see our findings of fact at para 64 – 74 and particularly at para 69. HE did not understand that the claimant was complaining that he had been abused by AM and KF. She did not tell the claimant that she was going to take action against AM and KF. The alleged act did not happen. Conclusions to 7.e[178]The respondent’s occupational health department decided to involve the emergency ambulance service. Whilst (as appears from the fact that this allegation is made) this may have been unwanted by the claimant, there are no facts from which we could conclude that the referral had anything to do with the fact that the claimant is a man or that it was done with the prohibited purpose or effect. Direct Sex Discrimination (issues 3 a to j) Conclusion to 3.a[179]The claimant has not shown any facts from which it can be shown that he was not appointed because he was a man. The arguments raised by the claimant are speculative and not based on fact. The claimant has sought to focus on the domestic abuse issue (trying to show that AM had a view that he was the perpetrator of domestic abuse) by referencing the comments made in the interview about DBS checks. We find that the same comments about DBS checks were made to all interviewees.[180]As there are no facts from which we could decide discrimination had occurred, the burden under section 136(2) Equality Act 2010 has not been discharged.[181]Further, this complaint is well outside of the primary time limit at section 123 Equality Act 2010 and we find that it is not just and equitable to extend time under section 123(1)(b).[182]The claimant was provided with an opportunity to receive feedback but refused even though – it now appears – he was suspicious about the outcome.[183]Whilst the claimant expressed a complaint in terms of a “belief” during internal proceedings, he only provided detail as to his particular concern – the alleged emphasis about DBS checks – at case management stage in these proceedings, some 18 months after the recruitment process.[184]We also note that the claimant is aware of Employment Tribunal time limits yet did not issue the claim until well after the alleged discriminatory act. Conclusion to 3b.[185]KF did not make the alleged comment. See our conclusions to 7.a above. Conclusion to 3c.[186]KF did not make the alleged comment. See our findings at para 41. Conclusion to 3d.[187]KF sought to assure the claimant that were other employers who would also provide the flexibility that the claimant sought. The claimant’s evidence that KF commented that other employers might offer flexible work options does not discharge the burden under section 136(2).[188]Further,a. the claimant’s sex was irrelevant to the comment made. KF would have made the same comment to a female employee whose fixed term was due to end and who was expressing some reticence at applying for other roles due to a need for flexibility.b. This complaint is out of time. Having regard to(1) the fact that this complaint is about a comment made in a discussion, many months before the claimant raised a complaint about that comment(2) the absence of merit of this complaint(3) the claimant’s knowledge of employment tribunal time limits: we conclude it is not just and equitable to extend time to allow this complaint against either respondent. Conclusions to 3e[189]There are no facts from which it could be concluded (in the absence of other evidence) that the claimant’s dismissal was because he was a man. Contrary to the claimant’s assertions, there was no funding available as at end March 2023, to enable the role to continue.[190]Further, assuming that there are facts from which that conclusion could be reached in the absence of other evidence, we are satisfied that the respondent has proved that there was no relevant funding available as at the end of March 2023. See our findings of fact at paras 75-81. Conclusions to 3f.[191]This complaint of direct discrimination is one that the respondent took longer with the grievance process because the claimant is a man.[192]There are no facts from which we could reach that conclusion (in the absence of other evidence). See our findings of fact at 88-98 above. There was undoubtedly some slippage of time in the process and cumulatively (from the date that the appeal against dismissal was received) this resulted in the process taking almost 5 months. Sadly that is something that Employment Tribunals see all too often. Delay may undermine the fairness of a process but that is not the issue here. There are no facts from which we could decide (in the absence of any other explanation) that an aggrieved female employee would have been treated any more favourably. The burden of proof at section 136(2) Equality Act 2010 has not been discharged. Conclusions to 3g.[193]Not being pursued. Conclusions to 3h.[194]The respondent advertised 4 band 8b positions in July 2023. There is no evidence from which we could decide that the respondent advertised for these roles because the claimant is a man.[195]By continuing with this complaint the claimant told us that advertising for these roles so soon after dismissing him, was an indication that the dismissal was unlawful, in one or more of the ways alleged by him. We considered this when reaching relevant conclusions ( to issues 3e; 13f; 20d). Conclusions to 3i[196]The respondent took too long to respond to the claimant’s Data Protection subject access request. But the issue for us is whether in doing so, the respondent discriminated against the claimant; that it treated him less favourably because he is a man. There are no facts from which we could decide, in the absence of any other explanation, that in taking so long to respond to the claimant’s subject access request, direct discrimination had occurred. The burden under section 136(2) Equality Act 2010 has not been discharged. Conclusions to 3j[197]The claimant was supported in accordance with the Policy. The claimant was provided support by his line manager. Weekly one to one meetings took place over many months, the claimant was referred for occupational health assessments, counselling was identified and paid for – and the series of counselling sessions provided were subsequently extended. Counselling was not specifically provided for in the policy and to that extent the respondent went above and beyond the support options under the policy itself. The claimant himself expressed his gratitude for the support that he was receiving from the respondent.[198]It became apparent as the hearing progressed that the particular concern was that the claimant had not been afforded the opportunity to be referred to the SEE Network. The complaint does not identify when that (or any other) additional support should have been provided. The complaint does not acknowledge that a referral to SEE is not straightforward, that the policy only recommends a referral to SEE when the employee being referred is receiving specialist support from an IDVA. The claimant was not receiving this specialist support – see para 107 above.[199]We do not know (because there has been no evidence about it) whether any other support was contemplated – or even discussed – and dismissed in May or June 2022 when measures to support the claimant were identified and begun. We do know how impressed the claimant was with his manager at that time( JP) – see para 19.[200]Had the respondent decided not to provide any support to the claimant then that might have been a set of facts from which we could decide discrimination might have occurred and looked to the respondent for an explanation. But the evidence shows significant support was provided and, further, that there was genuine concern about what the claimant was going through. The burden under section 136(2) has not been discharged.[201]As for time limits, the complaint is out of time (dating back to June 2022). However, the claimant did not receive a copy of the policy until after the issue of these proceedings and for that reason alone, it is just and equitable to extend time.[202]We also note our findings at para 109. No evidence was given that the respondent disseminated information about this policy. In this respect, the respondent failed to act in accordance with its own policy. However, such failure to act adversely affected every employee who may benefit from this policy (man or woman). Victimisation – alleged protected acts (issues 12a to g) Conclusions to 12.a[203]The claimant did tell an Occupational Health clinician that he was a victim of domestic abuse because his manager at the time (JP) referred him for an occupational health appointment after the claimant had disclosed to her the domestic abuse he had suffered. (see finding of fact at para 20) . This does not satisfy the definition of protected act under section 27 Equality Act 2010. Concluson to 12.b[204]The claimant made no reference to this in his statement. See our findings of fact at paras 56-57. The comments made to ID do not fit the definition of protected act under section 27 Equality Act 2010. Conclusion to 12.c[205]The claimant alleges that he told the OH clinician in an appointment on 30/31 March 2023 that AM and KF were victimising, abusing and harassing him. Other than a fleeting reference to this reference at paragraph 74, the claimant gives no evidence of this alleged protected act in his witness statement. (see our findings of fact at para 73)[206]We have considered the EAT’s recent guidance in Kokomane and conclude as follows:-a. The person receiving the information ( the occupational health adviser) would not understand that the claimant was making an allegation of sex discriminationb. The claimant had not by that stage made a complaint about sex discrimination and we cannot therefore look at the claimant’s comments in this OH appointment in the context of a complaint already made.c. The claimant referred to a hurtful comment; he questioned why he was losing his job; he referenced historic domestic abuse. These references are too oblique to be considered as allegations of unlawful discrimination.[207]Whilst we accept that a claimant does not have to be explicit about the complaint being raised in order to satisfy the definition of protected act, for the reasons stated above, the statutory definition of a protected act is not met. Conclusion to 12.d[208]No protected act was done by the claimant in this telephone call. See findings of fact at para 69. Concluson to 12.e.[209]Again, we have applied recent guidance in Kokomane. There is no direct allegation of a breach of the Equality Act. The reference to 2 members of staff acting in an equivalent way to abuse of a vulnerable patient is simply too oblique to be regarded as an allegation of sex discrimination.[210]We do acknowledge that the claimant’s grievance letter did include an allegation of discrimination ( see our finding at para 89). The claimant does not rely on this part of the grievance letter as a protected act in relation to his victimisation complaints. Conclusion to 12.f[211]No reasonable interpretation of this comment would lead to a conclusion that the claimant was alleging he had been discriminated against. This comment refers to abuse of victims and a cover up. Conclusion to 12.g[212]Whilst the claimant expressed strong views about the way he says he was treated; he did not make any complaints of discrimination or do anything else that fits the definition of protected act. See our findings of fact at para 120.c. Issue 13 – the alleged detriments.[213]As we conclude that the claimant did not do a protected act, we do not need to reach decisions about whether he was subjected to any of the alleged detriments and if so why. However, we have made relevant findings of fact and we provide the following conclusions. We set these out in the alternative – in case any of our conclusions about what is and is not a protected act, is considered to be wrong. Conclusions to 13.a[214]AM did not tell KF that the claimant had been banned from seeing his children See our conclusions to complaint 7.a.above. Conclusions to 13b.[215]See findings of fact at para 30 above. Further (and for the same reasons as we set out in conclusion to 3.a above) this complaint is out of time. Conclusions to 13c-f[216]See conclusions to 3b,c, d and e Conclusions to 13g.[217]See findings of fact at paragraphs 88 to 99. We also refer to our conclusions to complaint 3.f above.[218]No part of the delay was in some way because the claimant had done one or more of the alleged protected acts. Protected disclosures – alleged protected disclosures, issues 17.a.i to 17.a.vii Conclusion to 17.a.i[219]The relevant findings of fact are at para 35-38 above.[220]Issue 17.e lists as relevant, 4 of the subsections of section 43B(1) ERA. The claimant is not more specific than this.[221]Of these 4, we find that section 43(1)((c) is met – that “the health and safety of any individual has been, is being or is likely to be endangered”. This disclosure informs the reader that where a parent is estranged from their child or children their health and safety is likely to be adversely affected (endangered).[222]It is in the public interest to recognise and tackle the impact on parents of being estranged from their children. However there is nothing in the email or any other evidence to indicate that the claimant made this disclosure reasonably believing it was made in the public interest. The disclosure was made to ensure that the claimant’s managers recognised the personal impact that his circumstances were having on the claimant.[223]As it does not meet the public interest requirement, this did not meet the definition of protected disclosure. Conclusion to 17.a.ii[224]The relevant findings of fact are at para 49-55.[225]Again, the claimant is not more specific about which of the 4 listed subsections of section 43B is relevant. We find that the letter from GMP informs the reader that the claimant raised a complaint that the police were failing to comply with a legal obligation (one that the claimant did not specify but we find it reasonable to assume that there is a legal obligation on the police to provide effective police service. On this point we note the guidance in Blackbay Ventures case – see 159 above. An allegation that a police service is failing in its duty, strikes us as one of those cases where it is obvious that a breach of a legal obligation is being alleged.[226]However, as with the first alleged disclosure, this disclosure was not made in the public interest. It was made by the claimant to convey to KF the difficulty of his own personal circumstances and the pressure that the claimant was under at a time when his employment was likely to be ended.[227]Even on the claimant’s version of events (see para 51 – a version we did not accept) the claimant showed KF this letter to try to correct a misunderstanding about his own personal circumstances. Conclusion to 17.a.iii[228]We have made no finding of fact relating to this alleged disclosure because no evidence was given. In his statement, the claimant simply lists the dates when he says protected disclosures were made.[229]Accepting, for the purposes of reaching this conclusion, that the claimant told an OH clinician that his managers were abusing him, then that too would not meet the test, again due to the requirement that the person making the disclosure must reasonably believe it is made in the public interest. Telling a healthcare professional about circumstances that the disclosing party believes may be making them poorly, is unlikely to be in the public interest and was not here. Conclusion to 17a.iv[230]As with the alleged disclosures above, this fails on public interest grounds. It was relevant to the claimant’s personal circumstances and emerging dispute with the respondent. Conclusion to 17a.v[231]The alleged disclosure was not made. See findings of fact at paras 64-74. If it was then again, it would not meet the public interest requirement. Conclusion to 17a.vi[232]See para 120.a. The statement relied on raises issues of potential public interest and importance; notably the abuse of vulnerable patients and the vulnerability of victims of domestic abuse. It is also stating the obvious that where a disclosure tends to show that a vulnerable patient or a victim of domestic abuse was being abused, that would be a subject matter that would potentially meet the definition of a protected disclosure (section 43B(1).a and d for example). The claimant’s tactic of comparing his circumstances with those of a vulnerable patient being abused within the Trust may have been an attempt to catch the interest of board members; but it does not amount to a protected disclosure.[233]There is no disclosure of information which tends to show that vulnerable patients were being abused. The information that, according to the claimant, tends to show that victims of domestic abuse are being abused, is the claimant’s own account of the meeting of 26 January 2023. The account of that meeting is not repeated in the disclosure but we accept that is what the claimant is referencing.[234]Whilst the claimant has attempted to frame this allegation as a public interest issue, it is not. Instead it is a dispute about what was said to the claimant by a manager at a particular meeting and whether what was alleged to have been said, betrayed a prejudice towards the claimant (and no one else) to the extent that the claimant’s manager did not want to work with the claimant anymore. Any belief that the comment was made in the public interest, cannot have been a reasonable belief. Conclusion to 17a.vii[235]See findings of fact at para 120.c. The accounts that the claimant provides about the respondent staff abusing victims of domestic abuse are:-a. the claimant’s version of that part of the meeting of 26 January when he says (but we do not find) that KF told him he had been banned from seeing his children.b. that in some way the respondents people director had put the respondent’s board in “the position of dealing with its own potential Letby moment.”[236]Regarding a. above – see our conclusion to 17a.vi regarding public interest.[237]As for b. above, we simply do not understand how the claimant can reasonably align the way that he alleges he has been treated with the well-publicised circumstances surrounding the nurse Lucy Letby. Again, it may have been a tactic on the claimant’s part to catch the interest of board members about his own personal circumstances, but it is not a protected disclosure. There is no disclosure of information. The comment is made to highlight the claimant’s own personal and individual position. Any belief that the comment was made in the public interest cannot have been a reasonable belief. Protected disclosures – alleged detriments.[238]For completeness we set out below our conclusions against each of the alleged detriments in the list of issues at para 20 a-h ( noting that 20 a and f were withdrawn). Again we do this as we have heard evidence and are in a position to make findings about the alleged detriments and in case any of our conclusions above about the alleged protected disclosures are considered to be wrong. Conclusions to 20 b, c and d[239]See conclusions to 3 b, c. and d. Conclusions to 20e[240]See conclusions to 3f above. Conclusions to 20g.[241]The roles were advertised because there was a need to fill the roles. That need (arising out of the new team structure) was not in any way connected to or influenced by any of the alleged protected disclosures. Conclusions to 20h.[242]This is a reference to the decision of GD – to dismiss the claimant’s grievance and his appeal against dismissal. See para 99 above. The alleged protected disclosures had no influence on GD’s decision. That decision is consistent with our own findings of fact having considered for ourselves the evidence before us. Approved by