Mr M Bentley v The Commissioner for HM Revenue and Customs: 2410176/2022

EMPLOYMENT TRIBUNALS

Case No 2410176/2022

Between

Mr M BentleyClaimant

The Commissioner for HM Revenue and CustomsRespondent

Before

Employment Judge Shotter

Members

Mr A Murphy

Mrs JE Williams

In person for claimant

Mr Dunne (instructed by counsel) for respondent

Date 24 January 2025

REASONS

The hearing

[1]The claimant, who is disabled, was invited to take as many breaks as he wanted, and given additional time to process information and recollect before answering questions on cross-examination and when dealing generally with his case over the six days allocated. Throughout the hearing the Tribunal took into account the guidance set out within the Equal Treatment Bench Book. In addition, the claimant, as a litigant in person, was given time (as was the respondent) to prepare written submissions. These were exchanged before oral submissions and the claimant was given additional time to read and prepare his written submissions (which he chose to do) before making oral submissions. The claimant took a break between oral submissions made by Mr Dunne before giving his oral submissions.

[2]Part way through the hearing the claimant withdrew allegations 4.1.1, 4.1.2 and 4.1.3 which were dismissed on withdrawal after the claimant was given time to consider his position in the knowledge that once he had withdrawn his claims they could no longer proceed.

[3]The claimant was repeatedly referred to the list of agreed issues throughout the hearing, including when he was cross-examining witnesses, and he was invited to take a break if he wanted to think about his questions, and asked if he intended to ask relevant witnesses about the allegations which he had not dealt with. At one point the Tribunal adjourned at the judge’s insistence to allow the claimant to gather up his thoughts and on return the claimant did ask additional questions, however, there were a number of instances when the claimant asked no questions despite being reminded of the relevant issue relating to that witness and informed on numerous occasions that if he did not cross-examine the witness on any matter which was in dispute the Tribunal was entitled to conclude that it was no longer disputed.

[4]The documents the Tribunal was referred to are in a bundle totalling 1238 pages the contents of which the Tribunal has referred to where relevant. In addition, the Tribunal had before it witness statements, an agreed chronology/facts and written submissions from both parties. The Tribunal is grateful to Mr Dunne for providing a cast list, chronology and proposed reading list and for the claimant checking through these documents. Time was given the claimant to see if there were any further documents reading list he wanted to provide and agree the chronology, which the claimant did. Witness evidence and credibility

[5]The Tribunal was provided with a seven witness statements in total, consisting of a written undated statement prepared by the claimant. On behalf of the respondent the Tribunal had before it signed and dated written statements from Sarah Maddox, Jayne O’Connor, Natalie Telfer, Dewi Roberts, Melanie Wadsworth and Adi Onabowu.

[6]There were a number of conflicts in the evidence between that given by the claimant and the respondent’s witnesses which the Tribunal resolved largely through the contemporaneous documents and notes taken at the time, which it was satisfied reflected the true position. It preferred the evidence given on behalf of the respondent’s witnesses supported by undisputed contemporaneous documents, to that given by the claimant, who was found to give unreliable evidence which had to be treated with care. An example of this was the claimant’s evidence that on 16 November 2022, Abi Onabowu told him that if he was unhappy with the situation, to look for another job, which was evidently not the case.

[7]It is notable that the claimant exaggerated his evidence including that given in relation to his health conditions, and when invited by the Tribunal to explain why he had not issued proceedings within the statutory time limit the claimant’s explanation was that he was unaware of the time limits, did not know of the procedures to follow, was waiting for his union representatives “to get back to me” and accessing union representation prevented him from issuing proceedings. In submissions the claimant changed his reason for failing to issue proceedings explaining it was due to his disability, an explanation not previously given. The claimant did not refer to any supporting medical evidence against a background of the claimant being actively involved in his own employment dispute with managers, providing a statement in another Employment Tribunal claim and continuing to work from home. The claimant also maintained the 2019 occupational health report referred to his kidney disease when it did not, and this was a matter the claimant could have checked against the occupational health report before making the assertion.

[8]Mr Dunne is correct in his submission that the claimant in oral evidence admitted his perception was wrong, and managers were supportive towards him and did not harass him in direct contrast to the case put forward by the claimant today and by his union representative, Georgina Griffith, at the time the alleged discrimination took place.

[9]The Tribunal recognises that in many cases parties can re-write their unreliable memories to fit in the facts of the case, however, Mr Bentley went further than this and the Tribunal found he was an inaccurate historian. The Tribunal when considering the evidence had in mind the well-known case of Gestmin SGPS SA v Credit Suisse (UK) Limited

[2013] EWHC 3560 (Comm)

[16] – [22] which set out number of principles relevant to this case. Claimant’s disability

[10]The respondent concedes disability at the relevant time; 19th September 2021 to 21st December 2022; by reason of(1) anxiety and depression;

(2) stage 3 kidney disease. It concedes knowledge in relation to anxiety and depression but not stage 3 kidney disease. List of issues

[11]We discussed the list of issues and their importance in these proceedings. The claimant has not read them recently and time was given for him to refresh his memory and confirm that the issues reflected the case he was bringing, included all his claims and the PCP relied on. Both parties had a separate copy of the List of Issues, a document repeated referred to throughout these proceedings.

[12]Mr Dunne conceded that on the 9 September 2021 the claimant provided a witness statement in support of a colleague’s Employment Tribunal claim, this was a protected act for the purpose of the section 27 Equality Act 2010 (“EqA” ) claim and the respondent was no longer relying on the statutory defence. The list of agreed issues were amended to reflect this concession. Jurisdiction 1. Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010 (“EA 2010”)? The Tribunal will decide.1.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates?

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

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

1.4 If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide:

1.5 Why were the complaints not made to the Tribunal in time?

1.6 In any event, is it just and equitable in all the circumstances to extend time? Disability 2. The Claimant relies on the following impairments for the purposes of his claim: Anxiety and Depression Stage 3 kidney disease

2.1 The respondent concedes that the claimant was a disabled person by reason of both those impairments at the material time: between 19th September 2021 and 21 December 2022.

2.2 Did the Respondent know of the Claimant’s disabilities (or could it reasonably have been expected to know of the Claimant’s disabilities) at the material time of the complaints referred to in the claim form? Knowledge in relation to stage 3 kidney disease is disputed. The respondent was aware of kidney stones, but it was not aware it amounted to a disability. Failure to Make Reasonable Adjustments (ss20 & 21 EA 2010) 3. A “PCP” is a provision, criteria or practice:

3.1 Did the Respondent have the following PCP: Requiring employees to work from the office (when it is open). The respondent says it said it didn’t apply PCP because of material time the claimant was working at home and there were difficulties with India Building. If the Tribunal is against the respondent it will say the claimant was not substantially disadvantaged because he never worked in the office, and he was allowed to work from home throughout this period. The contractual working from home application is different from the adjustment.

3.2 Did those PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability? The Claimant relies upon both impairments and alleges that he was put to the following substantial disadvantage:

(1) Exacerbating the claimant’s anxiety and depression

3.3 If so, did the Respondent know, or could it reasonably have been expected to know, that the Claimant was likely to be placed at those disadvantages?

3.4 Did the Respondent fail in its duty to take such steps as it would have been reasonable to have to take to avoid the substantial disadvantage? 3.6 The Claimant says that the following adjustment to the PCP would have been reasonable: Allowing the Claimant to work from home. 3.7 Would the above-mentioned adjustments have been reasonable in the circumstances and/or would they have alleviated the substantial disadvantages alleged? 3.8 If so, by what date should the Respondent reasonably have taken those steps? Harassment Related to Disability (s26 EA 2010)

4.1 Did the Respondent do the following things:4.1.1 On 26 October 2021 (during a meeting with Sarah Maddox) pressuring the Claimant to do telephony work and in doing so ignoring the occupational health reports which recommended the Claimant did no telephony work. This allegation was dismissed on withdrawal.

4.1.2 On or around November 2021, Sarah Maddox sending the Claimant for a fifth occupational health report.- this allegation was dismissed on withdrawal.

4.1.3 On 14 December 2021 Ms Maddox requesting a doctor’s certificate - this allegation was dismissed on withdrawal.

4.1.4 In or around October and November 2021 putting the Claimant on telephony training. This is the only issue for C.

4.1.5 On 28 November 2021, Michael Connell sending the Claimant a threatening message and the respondent being aware but taking no action in respect of it.

4.1.6 In mid-January 2022, the claimant’s new manager, Jane O’Connor failing to take appropriate action about the message; telling the claimant that as Mr Connell had left, it was no longer an issue.

4.1.7 Jane O’Connor placing the claimant on a PIP on 25th January 2022 and telling him that extra training was required because his KPIs were low.

4.1.8 Being constantly dragged into meetings between February and April 2022 by Ms O’Connor to discuss the PIP, Ms O’Connor criticising the claimant’s KIPs, pressurising him to return to the office and discussing stress reduction and stress management plans; on some occasions, 2 or 3 times a day. The claimant explained on each occasion that his KPIs were not poor and were commensurate with other team members, but Ms O’Connor would not listen. This behaviour led the claimant to submit a grievance.

4.1.9 The rejection of the claimant’s working from home application made on 7 the June 2022 being rejected by Ms O’Connor

4.1.10 The respondent ignoring the OH recommendations that the claimant should work from home of 8th June and 5th October 2022

4.1.11 The claimant’s appeal against the refusal being rejected by Melanie Wadsworth in Sept 2022

4.1.12 The claimant’s request made to Ms O’Connor to be moved to another team being rejected and being advised to look on the Civil Service Website for available roles.

4.1.13 The respondent’s conduct of the claimant’s grievance issued on 21st April 2022 and rejection of it on 10th November 202

4.2 If so, was that conduct unwanted?

4.3 Was it related to the Claimant’s disabilities? The claimant asserts that the behaviour alleged related to both his disabilities.

4.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

4.5 If it did not have that purpose, did it have the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Victimisation (s27 EA 2010)

5.1 Did the following amount to a protected act: On 9 September 2021, the Claimant providing a witness statement in support of a colleague’s Employment Tribunal claim?

5.2 Did the Respondent do the following things:5.2.1 On 28 November 2021, Michael Connell sending the Claimant a threatening message.

5.2.2 On 25 January 2022, Jane O’Connor putting the Claimant on a performance improvement plan.

5.2.3 In January 2022, Jane O’Connor sending the Claimant on extra training.

5.2.4 On or around 6 December 2021 Sarah Maddox and in January 2022, Jane O’Connor criticised the Claimant’s KPIs, saying he was below average. This an issue for the claimant that remains..

5.2.5 In or around October and November 2022 Jane O’Connor refusing to move the Claimant to a different team.

5.2.6 On 16 November 2022, Abi Onabowu telling the Claimant that if he was unhappy with the situation, to look for another job.

5.3 If so, did the Respondent subject the Claimant to a detriment?

5.4 If so, has the Claimant proven facts from which the Tribunal could conclude that it was because the Claimant did a protected act (or because the Respondent believed the Claimant had done, or might do, a protected act)?

5.5 If so, has the Respondent shown that there was no contravention of section 27 of the EA 2010? Statutory Defence – no longer being relied on by the respondent. 6. If the Respondent is found to have subjected the Claimant to discriminatory treatment, can the Respondent show that it took all reasonable steps to prevent Its employees from doing the discriminatory act or from doing anything of that description in accordance with section 109(4) EA 2010? The Respondent contends that it took the following steps which were reasonably practicable to prevent such discrimination.

6.1 Having a widely disseminated “How to Recognise and Deal with Bullying, Harassment and Discrimination Policy.”

6.2 Requiring staff to attend diversity training and refresher training.

6.3 Conducting investigations into allegations of discrimination where practicable. Remedy for Discrimination or Victimisation

7.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant?

7.2 If so, what should it recommend?

7.3 What financial losses has the discrimination caused the Claimant?

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

7.5 If not, for what period of loss should the Claimant be compensated?

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

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

7.8 Did the Respondent or the Claimant unreasonably fail to comply with it?

7.9 If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

7.10 Should interest be awarded? If so, how much? The pleadings

[13]In a claim form received on 21 December 2022 following ACAS early conciliation undertaken between the 17 October and 28 November 2022 the claimant brings claims of disability discrimination under sections20-21, 26 and 27 of the Equality Act 2010 (“the EqA”).

[14]The claimant remains employed by the respondent to date and will be retiring on the 3 September 2024.

[15]The claimant has referenced a number of events that have allegedly taken place i.e. his manager telling him that he had exhausted all avenues in 2024 and arrangements being made for the claimant to return to work followed by him taking accrued holidays before retirement. It was explained to the parties that the Tribunal will only be considering those matters raised by him in his claim form, which has not been amended and nor is there an application to amend before the Tribunal.

[16]Taking into account all of the evidence before it, the chronology, written and oral submissions and documents, the Tribunal has made the following findings of facts resolving the conflicts in the evidence on the balance of probabilities. Facts

[17]The respondent is a non-ministerial government department collecting UK’s tax payments in amongst other duties, which has departments nationwide including at India Buildings in Liverpool.

[18]The respondent recognises the union, including the Public and Commercial services Union (“PCSU”) who took part in the production of various policies and procedures and represent members when necessary. The claimant was and remains a member of the PCSU.

[19]The respondent relies on a number of policies and procedure providing the means by which employees can raise discrimination and bullying allegations, grievance procedures and to deal with performance management.

[20]On the 16th January 2012, the claimant started his employment with respondent as an assistant officer, a role in which he has remained to date. The claimant had various illhealth absences and was referred to occupational health. Occupational health report dated 23rd July 2019

[21]An occupational health report dated 23rd July 2019 was consented to by the claimant who had been absent before he returned on phased return and amended duties. The report confirmed that the claimant “explained he has not worked on telephony for some years now and that he feels he cannot cope with telephony without it making him ill” alleging he had been put under pressure by the respondent to work on telephony “since April this year” [the Tribunal’s emphasis]. Occupational health referred to the claimant’s medical condition of anxiety and depression “exacerbated when he undertakes telephony work” suggesting the claimant undertook an alternative role in addition to other adjustments such as breaks away from work. There was no reference to kidney stones or stage 3 kidney disease, and the claimant’s anxiety was described “of a moderate nature.”. The claimant’s evidence before the Tribunal was that he had never worked on telephony, his colleagues had and that state of affairs sometimes led to unhappiness of those who carried out client telephone work when he did not carry out such work.

[22]By March 2020 employees, including the claimant, worked from home due to the Covid Pandemic and the claimant was unhappy about a return to work in the office and refused to do so when instructed. The claimant has never returned to the office to date.

[23]By mid-December 2020 Sarah Maddox was the claimant’s line manager.

[24]The claimant remained working from home and there were problems with his performance. Sarah Maddox took the view that he was underperforming and it was difficult to manage the claimant whilst he remained working from home refusing to return to some office work with his team who had returned. The protected act

[25]On the 9th September 2021, the clamant provide a Witness Statement for his female colleague in her Employment Tribunal claim confirming the truth of a number of allegations made against Michael Connell, another employee.

[26]In October 2021, the claimant’s team moved to Corporation Tax work and the teams duties changed as they were required to carry out telephony duties as part of the team, work which the claimant refused to carry out. Sarah Maddox explored with the claimant his reasons for being unable to do telephony work and he linked this to his disability adamant that he was not prepared to carry out such duties.

[27]On 25th October 2021, the claimant met with manager Sarah Maddox and confirmed in the Wellness Plan discussed that to stay mentally healthy at work he should be allowed to “continue working from home” and he could not do any telephony work. Sarah Maddox was aware of the 2019 occupational health report, and decided that an updated medical report was required so that she could fully understand the claimant’s position.

[28]On the 3rd November 2021, the claimant consented to a occupational health referral concerning Telephony having informed the respondent that it caused him stress and anxiety.

[29]On the 17th November 2021, a Stress Management Plan (“SMP”) [was completed. The claimant confirmed he was feeling “highly stressed and worried at the pressure on me to do telephony work…” Sarah Maddox started to look into the reason why the claimant refused to carry out telephony work and whether a reasonable adjustment was made. The Michael Connell screenshot

[30]On Sunday, the 28th November 2021 Michael Connell (“the Michael Connell screenshot”) sent the claimant an abusive TEAMS message referring to an ongoing Employment Tribunal claim of a female colleague complaining about Michael Connell, for whom the claimant had agreed to provide a statement. The message was threatening, abusive and insulting and so the Tribunal found objectively assessed; “Don’t know what you thought you’d achieved with your bullshit lying statement…all you’ve achieved is letting people know how much of a spineless little fucking worm you are. Trust me everyone who works with you knows what you’ve done and they also know how much of a sneaky slimy prick who hasn’t got the bollocks to say it to my face kind of Weasley little rat bastard you are. Nobody likes you and nobody speaks to you, enjoy working in a space were you’re hated you spineless twat.” The claimant received and read the email but took no step to inform the respondent and did not seek advice from his union until the 14 December 2021.

[31]The claimant’s evidence before the Tribunal was that Mike McGugan, a higher officer managerial lead, was aware Michael Connell had sent him an abusive message, and he had been told this by Georgina Griffith, his trade union representative. The claimant’s evidence was that managers must know because TEAMS would pick up bad language without any evidence to this effect, and the Tribunal preferred the evidence given on behalf of the respondent that swearing on TEAMS would not bring the communications to the respondent’s notice. The Tribunal took the view that the claimant’s evidence was unsatisfactory and did not have the ring of truth bearing in mind neither the claimant or his trade union representative had a discussion with Mike McGugan to inform him (or any other manager) of the Michael Connell screenshot. It is notable the claimant did not call Georgina Griffith to give evidence, and it made no sense to the Tribunal that Michael Connell would have somehow shared with a senior manager, higher officer operational lead, the abusive message and nothing was said to the claimant or his direct line manager. The Tribunal found there was no evidence that the respondent was aware of the Michael Connell screenshot until the claimant raised it later as set out in the chronology below, and the claimant’s evidence was not credible on this point. 1st December 2021 Occupational Health Report

[32]The claimant spoke with occupational health on the 1 December 2021 and he consented to a report being produced on the same day. It is notable that the claimant made no mention of the Michael Connell email when he discussed his feelings of stress and anxiety regarding “the telephony requirements of their role” and being unable to cope without adjustments and support including long breaks and temporary work away from telephony in addition to a number of other adjustments suggested. The occupational health recommendation was that the claimant was ”fit for work…medically there is no clinical barrier to working on telephone…however his personality and emotional response to this task would indicate that he may not be best suited to this type of work…” [the Tribunal’s emphasis]. There was no mention of the Michale Connell screenshot received by the claimant three days earlier and the Tribunal concluded on balance this was because the claimant did not mention it, preferring to bide his time until he could use the abusive message to his advantage when arguing against returning to work in the office as borne out by the factual matrix.

[33]As far as managers were concerned the claimant continued to underperform and failed to meet his KPI’s whilst working at home. On 6th December 2021 Sarah Maddox discussed the performance issues and asked him if him needed extra support, and the claimant responded that he was struggling in four areas.

[34]On the 14 December 2021 Sarah Maddox emailed the claimant asking him to provide a letter from his GP confirming the diagnosis of anxiety and depression “in order for us to move forward with a decision regarding telephony work.” The claimant sought union support because he was unhappy that Sarah Maddox was considering the medical position concerning whether he could undertake telephony work or not despite occupational health advising that medically there was no reason the claimant could not carry out work on the telephone. The claimant had not been asked to carry out telephony work, he had not been pressurised to so and did not carry out any work on the telephone and so the Tribunal found.

[35]In an email dated 14 December 2021 the claimant sent a copy of the Michael Connell email to his union representative asking for legal advice confirming “I have not shown this message to my manager as I don’t trust any of them” [the Tribunal’s emphasis]. The claimant expressed his concern about being pressured to do “phone work.”

[36]The trade union representative responded in an email of the same date “normally your manager would make a referral but in the circumstances I think you can make a referral yourself.” Until the claimant and his colleagues were instructed to return to work in accordance with Government Guidelines, the claimant kept silent about the Michael Connell email, until the opportunity presented itself for the claimant to use the information to ensure he would remain working at home. Neither the claimant nor his union representative shared the Michael Connell screenshot with the respondent until later, and the respondent remained oblivious to it.

[37]On the 16th December 2021, the claimant provided a GP Fit Note concerning telephony “you may be fit for work taking account of the following advice…amended duties…patient unable to perform client telephone calls as generates significant stress.” The GP also confirmed the claimant had “anxiety/stress.” Stress Management Plan

[38]On the 19th January 2022, the claimant met with Jayne O’Connor, who had taken over from Sarah Maddox, the claimant’s previous manager. Jayne O’Connor introduced herself and went through a Wellness Plan which reflected that the claimant reported he was happy to continue working from home and “doesn’t feel highly stressed…” The claimant referred to a doctor’s note saying he should refrain from telephony for 3 months. A Stress Management Plan was completed and the claimant confirmed “the phones make me feel very stressed.”

[39]The Stress Management Plan reflected the claimant stating “there is a tension and a hostile atmosphere between the telephone and non-telephony individuals.” The claimant’s evidence is that he shared with Jayne O’Connor the Michael Connell email. Jayne O’Connor disputes this, and on the balance of probabilities taking into account the claimant’s communications with his union representative and the contemporaneous documents which makes no mention of the Michael Connell email, the Tribunal found the claimant’s recollection is mistaken preferring Jayne O’Connor’s evidence that she was first made aware when the claimant sent her the “Returning to the office toolkit form” on a date between the 9 and 11 February 2022. The Tribunal finds the relevant date is 9 February 2022 as reflected in Dewi Robert’s grievance investigation. There is no satisfactory evidence that anyone from the respondent was aware of the Michael Connolly screenshot until the 9 February 2022 when the claimant submitted his returning to the office toolkit form, over two and a half months after the claimant received and read the abusive message.

[40]Jayne O’Connor was concerned the claimant was not performing well at home. He was not meeting national set key performance indicators (“KPI”) by a wide margin; under 50 percent. In cross-examination the claimant explored whether the KPI’s had been fairly set because those employees carrying out telephony work could achieve a greater number of the KPI’s than the claimant and he should not be compared with them. The claimant accepted he had not met his KPI’s and gave reasons for this i.e. the team was carrying out new work including working on the telephone which he refused to do, arguing that he was not effectively underperforming. It is uncontroversial that the claimant on the 24th January 2022 the claimant met with Jayne O’Connor regarding concerns about performance and whether he required additional support. The claimant stated that he did not.

[41]The Tribunal was satisfied that the claimant was not meeting his KPI’s and he was underperforming. Jayne O’Connor’s attempts at managing the claimant’s performance were unconnected to the Michael Connolly screenshot, and solely concerned with improving his performance, which was achieved albeit fleetingly. The 25th January 2022 Informal Performance Improvement Plan

[42]On the 25th January 2022, an Informal Performance Improvement Plan (“ PIP”) started and additional support together with training was arranged, which the claimant attended.. Between the 3rd Feb to 22nd Mar 2022 the claimant and Jayne O’Connor undertook PIP Review Meetings with the 21st February 2022 intended PIP End Date. Anticipated return to office end of February 2022

[43]By the end of February 2022 there was an expected office wide return post-COVID. The claimant was not happy and believed he was at risk of COVID and refused to return to the work in the office remaining at home. The claimant never returned to work in the office and has remained working from home to date, as was his intention following the COVID lock down and he communicated with managers by telephone, on line and through Teams. The claimant had never met Jayne O’Connor in person until she attended this final hearing. Michael Connell email first brought to the attention of managers

[44]On the 31 January 2022 employees were given notice that they will be working 3 days office and 2 days at home, including the claimant. As they had been working from home during the COVID pandemic all employees returning to the office employees were required to complete a document titled “Returning to working in an office and our future ways of working – discussion toolkit” (“the Toolkit”). The Toolkit referred to occupational health advice for any medically related concerns affecting an employee’s ability to return to the office.

[45]On the 9 February 2022, the claimant provided a copy of the Michael Connolly screenshot in his Toolkit response stating he did not want to return to the office because of the “hostile environment.” Immediately she received the claimant’s completed Toolkit Jayne O’Connor took action, and the fact she did so reinforced the Tribunal’s conclusion that the claimant had not informed her of the Michael Connolly email earlier as he alleges. It makes no sense to the Tribunal that Jayne O’Connor would take no action in January (the date the claimant allegedly shared his screen with her showing the Michael Connolly email) and then take immediate action on the 10 February 2022 after the email was brought to her attention on the 9 February 2022. First discussion concerning the Michael Connell screenshot

[46]On the 10 February 2022, the claimant had a discussion with Jayne O’Connor about the Michael Connell screenshot. The contemporaneous notes reflect the following; “Michael has told me he does not want to return to the office because of this and is seeking union representation” and it was confirmed that Jayne O’Connor would speak to a manager and see if Michael Connell was still working for the respondent. She discovered that he was not and informed the claimant on the 11 February 2022 who “advised this doesn’t change his request to permanently work from home. He is concerned about returning as a friend of the ex-employee works on our team. Martin wouldn’t divulge their name.” Supported Return Plan completed in or around the 14 February 2022

[47]In the claimant’s Supported Return Plan completed in or around the 14 February 2022 it was agreed Jayne O’Connor would speak to a manager about friends of the ex-employee Michael Connell working in India Buildings, which she did advising the claimant that the old team worked on another floor. The claimant did not dispute this, and it is a matter of agreed fact that apart from the Michael Connell screenshot the claimant was not subjected to any behaviour by another employee which could be categorised as harassment, victimisation or general threatening behaviour and nothing else was said to him about the fact that he had agreed to provide a witness statement in a colleague’s case. The claimant had worked in the office before the COVID Pandemic and apart from the Michael Connell screenshot nothing had changed apart from the claimant preferring to work from home and he was prepared to use whatever means he could to achieve this end in order that he never worked in the office and never saw his managers physically face to face. In the years leading to his retirement in September 2024, the claimant achieved this end as he has never worked in the office again and the first time he met his line manager face-to-face was at this final hearing. In short, the reasonable adjustment he relies on was made, albeit reluctantly on the part of the respondent due to the poor performance and training issues, and the fact that there was no medical reason why the claimant’s contract should be changed permanently from office working to home working and so the Tribunal found.

[48]On the 15th March 2022 Jayne O’Connor discussed with the claimant his stress condition and inability to take client telephone calls. The claimant confirmed his view he was unable to take client calls and should be permanently home working seeking a permanent change to his contract of employment. The claimant stated that it was “our contact to return to the office…[and] due to being on a PIP” affected him.

[49]The PIP was extended giving the claimant more time to improve performance, which he did by 22nd March 2022 by which date the PIP was completed. The claimant alleges he was victimised, however, the Tribunal finds that this was the case. The claimant improved his performance which reflects there were performance issues, and it was always open to the respondent to take the claimant down the capability route in respect of performance and his refusal to attend the office for any face-to-face communication/training/work in accordance with his office based employment contract given the occupational health evidence at the time. At no time during the process was the claimant threatened with formal capability proceedings and this points away from the claimant’s evidence that he was concerned about being dismissed, which was an option for the respondent given his blank refusal to return to work in the office and his behaviour during meetings.

[50]The information before the respondent at the time was that the claimant did not want to work in the office as opposed to could not work in the office., and the Michael Connell screenshot was being used by the claimant when objectively, there was no realistic prospect of any adverse consequences to the claimant were he to have returned to work in the office. The long and the short oof it was the claimant following the COVID pandemic lockdown was happier working at home that in the office being managed by managers whom he did not know or trust. The Tribunal found that the claimant and his union representative would have known the reality of the situation, and chose to rely on any argument to support the claimant remaining working at home including his inability to travel on public transport, when that was not the case. It is notable when the respondent later offered taxis to and from work as an adjustment to support the claimant and facilitate his return, travelling to and from work was no longer an issue because the claimant walked to work despite, according to this evidence at this liability hearing, the fact that Michael Connell worked near to where the claimant lived and the claimant believed he was at risk. The claimant’s position was illogical and he should have appreciated that at the time. Final PIP 22 March 2022

[51]A final PIP was completed on the 22 March 2022 that referenced the training undertaken by the claimant, which the claimant was happy with and confirmed it had assisted him, for example, identifying cases over £25,000. He also confirmed no further training was necessary and “he was fine to use the support chats when needed.” The PIP had a positive and Jayne O’Connor congratulated the claimant on his improved performance. There was nothing to suggest the legal test for harassment or victimisation was met by the claimant. The PIP was positive, supportive and helpful. There was no causal link to the protected act and no evidence the Jayne O’Connor was “pressurising him to return to the office” as alleged, and so the Tribunal finds. 29th March 2022 Occupational Health Report

[52]The 29th March 2022 Occupational Health Report confirmed: “given the concerns raised by Mr Bentley there will be no medical resolution.” “Ongoing dialogue” was advised between the claimant and management “regarding his current situation and reluctance to return to office based working. I have suggested he may wish to consider anger management intervention…Mr Bentley’s perception regarding how he will be treated in the office appears to be the main barrier to him returning to work” [the Tribunal’s emphasis].

[53]In short, the medical advice was that there was no medical reason for the claimant refusing to return to work in the office, and resolution of the impasse could be achieved only through dialogue. It is notable that the claimant and his union representative Georgina Griffith were not interested in dialogue at the time, intent on pressuring the respondent’s managers to give in to the claimant’s insistence that he should always work from home and never attend the office. As an aside the Tribunal with its industrial experience notes that a trade union representative, who has a vital and important role in resolving workplace disputes, could have approached the problem in a constructive manner with a collaborative approach. This did not happened and the Tribunal’s observation is borne out particularly in the 14 June 2022 meeting when the claimant and Georgina Griffith were intentionally obstructive having agreed before the meeting not to answer questions as recorded below. The claimant’s grievance

[54]On 7th April 2022, the claimant submitted a HR VI01 Concern signed by Georgina Griffith. The claimant complained about the Michael Connell screenshot approximately 5 months after he received it, and 4 months after a discussion took place with his union representative about a referral to “internal governance.”

[55]By the 7 April 2022, the claimant was aware that Michael Connell was no longer employed and alleged for this reason Jayne O’Connor had told him “there isn’t an issue” and “he had not reported it.” The claimant explained he had not shown the message to his manager Sarah Maddox “as I felt that she was victimising me for putting in the witness statement.” This was in complete contrast to what the claimant had told his union representative at the time, which was “I have not shown this message to my manager as I don’t trust any of them.” There was no reference to victimisation, the reason for this is that the claimant and Georgina Griffith were making up allegations over time to make sure the claimant never worked in the office and so the Tribunal found.

[56]On the 21st April 2022, the claimant had a 1-2-1 meeting with Jayne O’Connor. Contemporaneous notes were taken that reflect the completed PIP was discussed, counselling and cognitive behavioural therapy (“CBT”) support offered by the respondent. The 25 October 2021 Wellness Plan was discussed and it was agreed that there would be a further meeting in a week’s time suggested by the claimant undermining his case that he was being “constantly dragged into meetings between February and April 2022”.

[57]After the 1-2-1 meeting Jayne O’Connor and Georgina Griffith exchanged emails which were passive aggressive in content on the part of Georgine Griffith. Georgina Griffith was refusing to part in the informal meeting if Jayne O’Connor brought a notetaker with her. Georgina Griffith in an email dated 21 April 2022 15.17 made allegations of victimisation of a TU representative due to Jayne O’Connor’s email of the same date sent at 11.16 “It has also been recommended to me that I have a note taker so I can concentrate on the meeting.” The exchange is indicative of the intransigent and unreasonable attitude adopted by Georgina Griffith and the claimant. Neither were not seeking to reach an amicable solution by working with the respondent instead they were intent on setting up obstacles no matter how spurious., and so the Tribunal found. Formal Concern Form

[58]On the 21 April 2022, the claimant raised a Formal Concern Form alleging disability discrimination and victimisation. The claimant alleged “my employer placed me on a personal improvement plan and said my KPI had dropped after I had been abused on teams by a member of staff…my employer took no action, nor did they support me after and I have been asked to return to the office even after me stating I fear I will be attacked outside…I was then asked to go back on the phones…I was put through telephone training…I want to be changed to a designated home worker to improve my mental health…” [the Tribunal’s emphasis].

[59]The contents of the Formal concern Form had no basis in reality and so the Tribunal found, for example, the claimant had never told the respondent he feared he would be attached outside and he had never been asked to go back on the phones. The reality was that nothing untoward had taken place since the Michael Connell screenshot sent just over 5 months ago, and the claimant was aware that Michael Connell was no longer employed, his team worked on another floor and no one had ever approached the claimant from that team and nor had Michael Connor made contact with the claimant, despite the fact that according to the claimant’s evidence, he worked close to where the claimant lived. 4th May 2022 Informal Meeting

[60]On the 4th May 2022, an informal meeting took place with Jayne O’Connor and a note taker, the claimant and Georgina Griffith. The meeting started with Georgina Griffith and the claimant arguing over the presence of the note taker. Mediation was offered and rejected, the claimant made it clear that “management had caused this and cannot do anything to support him [and]…not criticise his KPI.” The claimant rejected the offer of counselling, CBT and phased return to work in the office i.e. 1 day a week. The claimant refused a monthly stress management plan, additional training, Work Place Adjustment Password (a passport for disabled employees which follows them from department to department in order that they do not have to explain the adjustments agreed with new managers.) It was left that the claimant would “think about” consenting to an occupational health referral. 24th May 2022 Occupational Health Report

[61]The occupational health report confirmed the claimant had verbally consented to its release.

[62]The report recorded that the claimant felt threatened at the prospect of returning to work and may be at “risk of harm whenever he goes out.” The recommendation was that as he had concerns about “being treated unfairly in the office by friends of his colleague who had since left…support measures have been discussed with him to enable his return to work…however he still feels exposed to the colleagues he raised concerns about…he does not believe his an office is a safe work environment…if fit for his full duties…his work concerns are acting as a barrier” [the Tribunal’s emphasis]. A dialogue with the claimant was suggested. The claimant believes occupational health were supporting him in respect of a non-return to the office, and on a common sense reading of the 24 May 2022 report it is apparent the claimant was saying he would not return and all that was left was a dialogue between the claimant and managers.

[63]Throughout this period the claimant’s position was that there was nothing managers could do and the only resolution was the claimant continuing to work from home, which he did.

[64]On the 26th May 2022, the claimant and Georgina Griffith met with Natalie Telfer, technical lead, who investigated the claimant’s HR VI01 Concern. At this meeting the claimant confirmed Michael Connell had not made any additional threats, the claimant had not had any sickness absence and his preferred outcome was “continued to work from home.”

[65]On the 27th May 2022, the claimant met with Dewi Roberts to discuss his grievance referred to as a “Formal Concern.” Dewi Roberts spoke with Michael McGugan who confirmed the claimant had “consistently been unperforming for three years…there have been a number of occasions where MB was close to being placed in a PIP but then due to the task reallocation he was not…we got to a point where it wasn’t sinking in with MB and we started an informal process…which looked to help MB. It was not and is not a punishment...I see the end product and statistics…MB’s name was coming up every week. Initially he had some leeway because of the movement of tasks and Covid. Because of this we asked MB to come back in the office as he was struggling at home. He refused. He didn’t tell us about the email scenario…until about February or March…” Providing the claimant with additional 1-2-1 training was also discussed The claimant’s Application for contractual working from home 6 June 2022

[66]On the 6th June 2022 the claimant made an application for contractual working from home referring to a number of reasons including an inability to travel on public transport which causes “panic and paranoia…Martin has been working from home for a few years and this has been effective, he feels threatened in work…on arriving or travelling home Martin feels he is in danger…feels that if he was to take up the offer of being met at the door would not give assurances of his safety…there are no adjustments that would be suitable to enable Martin to come into the office…Martin has suffered with kidney stones and kidney infections for over 20 years. Martin had tests done 4 to 5 years ago which showed his kidney was working less than 60 percent. This causes Martin to be aware of what he eats…has to take more frequent toilet breaks…the kidney stones causes severe pain…” 14th June 2022 the claimant and Georgina Griffith met with Jayne O’Connor to discuss his working from home application

[67]On the 14th June 2022, the claimant and Georgina Griffith met with Jayne O’Connor to discuss his working from home application. Prior to the meeting the claimant and Georgina Griffith had agreed that he should answer the questions put to him. The contemporaneous notes reflect the claimant answering questions by stating “I would not like you to go into any medical issues” when Jayne O’Connor wanted to “go over the points raised by you in your application.” In relation to public transport exacerbating his condition the claimant responded “If you can refer to my OHS report” when there was no reference in the Occupational Health report to the claimant’s condition being exacerbated by him using public transport to get to and from work. A discussion took place about the claimant being provided with taxis and “It’s not travelling to work that is the issue, it’s being in work” undermining the written application.

[68]When asked whether the claimant managed to go outside his home, Georgina Griffith responded “I would like to know why these questions as they are not on the form and don’t seem relevant” despite in the last occupational health report the claimant reported he risks harm whenever he goes out and the line of questioning was valid, and so the Tribunal finds. The claimant responded “I go shopping” and no further information was provided.

[69]When asked why the claimant felt threatened at work he refused to answer and referred to the Occupational Health report, and when asked “why do you feel being met at the door would cause a hostile and negative environment” the claimant responded “not answering that.”

[70]The claimant stated “Kidney stones” were referred to OHS report, and when asked how the condition impacted attendance, the claimant respondent “Will not answer that” and again to the question “when did you last attend hospital for this” and “do you take any medication” the claimant responded on both occasions “will not answer that.”

[71]The claimant confirmed no adjustments were needed for the kidney condition and in response to the question “I have only recently become aware of this so do you need a OH referral for this condition” the claimant responded he did not. When it was put to him “I can sit you close to a toilet if that would help you without condition” the claimant responded “I refer to my latest OHS report, that says not to return” when the last report did not mention the claimant’s kidney stones/kidney disease.

[72]The claimant was offered a phased return or visit to the office “where you can come in but you do not have to work” to which the claimant responded “at the moment no” confirming he had attended the office for an induction around September 2021, and there were no reasonable adjustments which could be put in place.

[73]When asked about the Michael Connell screen shot the claimant confirmed it was the reason he could not go into the office, and refused to give any further details “but would rather not say anymore.”

[74]Towards the end of the meeting the claimant was invited to ask questions or raise any concerns regarding his health and work issues having been informed by Jayne O’Connor “I will make a decision based on what you’ve told me today, and refer to OHS reports and any other information I hold.” The claimant was reminded of the support available to him. His response was the only support he needed was “support my application to work from home” and no further information was provided by him.

[75]The meeting was key, and the claimant’s opportunity to put forward reasons why his contract should change from being office based to working from home, and he deliberately withheld information, was obstructive and intentionally put barriers up to such an extent that there were no cogent reasons for his contract to be changed. The meeting reflects the reality of the situation, which is that the claimant was attempting to intimidate Jayne O’Connor into granting his application when he had very little information to put forward in support, his main argument being the Michael Connell screenshot that in reality had no repercussions for the claimant either in or outside the workplace. In short, the claimant was used to working at home, he enjoyed working at home, he did not want to be managed face-to-face in the office, he did not want to be the subject of PIP’s in the future, and he wanted to continue carrying out part of his limited duties in the knowledge that a full workload could only be undertaken in the office, for example, documents requiring an actual “wet signature.” The Tribunal’s view is that the 14 June 2022 reflects the claimant’s case and attitude “in a nutshell” and it is unfortunate that the claimant and Georgina Griffith did not take the opportunity offered, which were numerous adjustments ranging from taxis, being accompanied by a manager on entering and exiting the office, working for a limited time in the office and placing his workplace near a toilet. The claimant’s tactic was that he could work from home and with the assistance of Georgina Griffith he placed barriers between management and being managed and succeed in achieving that aim because he never worked in the office, carried out a proportion of his contractual duties, continued to underperform and was never managed/trained face-to-face.

[76]On the 5th July 2022 Jayne O’Connor attended a Forum Meeting who considered the claimant’s Working From Home Application on a confidential basis so only Jayne O’Connor knew of the claimant’s identity in accordance with the respondent’s process. The panel advised the claimant’s expectations should be managed and a phased return to the office offered.

[77]In an email dated 7th July 2022 from Jayne O’Connor to the claimant his application was rejected for a number of reasons, not least an extensive face-to-face training programme which required all staff that are available to attend the office, the adverse effect on the claimant’s performance “and that of the team. Over the last 7 months we have taken informal steps to improve your performance around worklists…It was apparent that the inaccessibly to immediate and regular support from your line manager and experienced colleagues when required meant that your performance wasn’t where it needed to be…learning in an office based environment ins unmatched…your performance has not been consistent…All CT staff in Liverpool will be undertaking the full AO training programme…the training will be extensive, complex and will require effective support in place…”

[78]The claimant was informed that he did not meet the criteria for contractual homeworking as the claimant did not have “complex needs that can’t be provided in an office, we expect most colleagues to balance their working time before home and office…What HMRC expects from you is to be willing to trial other flexibilities where homeworking isn’t appropriate such as flexible working hours and working at home some of the time…we expect you to be willing to trial other flexibilities that have been presented to you, you have chosen not to trial any of them.”

[79]David Roberts provided Sarah Maddox and Mike McGugan with documents concerning the claimant’s grievance including the meeting notes for discussion during the investigation. On the 15th July 2022 David Roberts met with Mike McGugan and interviewed him concerning the claimant’s grievance raised in the “Formal Concern.”

[80]By 18th July 2022 acts/omissions before this are prima facie out of time. The contractual working from home appeal

[81]On 26th July 2022, the claimant submitted a Contractual Working From home Appeal which reiterated largely his earlier application with no reference to the kidney condition. Georgina Griffith confirmed the request was made due to the claimant “never given a reasonable adjustment and placed on a PIP” and “the office is not safe for him after receiving victimisation from another member of staff, no action taken on the staff member. No support given regarding the issue to Martin. Martin is frightened and mentally exacerbated.” According to the claimant he remained frightened 8 months after Michael Connell’s screenshot during which time nothing untoward had happened to him.

[82]On the 4th August 2022 David Roberts met with Jayne O’Connor and interviewed her concerning the claimant’s grievance raised in the “Formal Concern.”

[83]On the 11th August 2022 David Roberts met with Sarah Maddox and interviewed her concerning the claimant’s grievance raised in the “Formal Concern.” 1st September 2022 the claimant met with Melanie Wadworth

[84]On the 1st September 2022, the claimant and Georgina Griffith met with appeal manager Melanie Wandsworth. The claimant accepted adjustments had been offered but there was “nothing they could do to stop what would happen if I went back to work…can’t see what would be put in place to prevent what would be a hostile environment.” When asked “why do you feel it would be a hostile environment” the claimant responded “At first it was due to message Mick sent he said he would turn people against me and had spoken to others in the office. Now after everything I have no trust in the managers and would feel uncomfortable being around them. Feel as though they are creating issues to put me up for dismissal” [the Tribunal’s emphasis]. The claimant’s response reinforced the Tribunal’s conclusion that behind the claimant’s application to change his contract and work permanently from home was to avoid being managed by the respondent’s managers.

[85]The claimant was asked about kidney stones and responded “manager did say she would put him sitting next to the toilet if in the office. if I am sitting at work running to the toilet I am worried what people would thing especially manager as would be there for quite some time.” This was new information not previously provided by the claimant, who had rejected the offer of being seated near a toilet.

[86]When it was pointed out the respondent had zero tolerance on bullying an intimidation, the claimant responded that he had “never met his manager” referring to Jayne O’Connor, whom he did not trust. The claimant and Georgina Griffith agreed they had had a fair hearing. 13th September 2022 Working from Home Appeal Outcome

[87]In the outcome letter dated 19th September 2022 Melanie Wadsworth, the appeal officer, confirmed the claimant had a continuing reasonable adjustment in place with regard to telephony, a new occupational health referral was requested and a 12 week noncontractual arrangement for the claimant to continue working at home was offered “to give you time to get the professional support you need” as it was clear to her the claimant had taken no action to manage his anxiety, he had not sought professional help or taken up the respondent’s offer to provide medical assistance through PAM assist. A mediation between the claimant and managers was suggested. 26th September 2022 meeting

[88]On the 26th September 2022, the claimant and Georgina Griffith met with Jayne O’Connor to discuss Melanie Wandsworth’s recommendations set out in the appeal outcome on Return to Office with an expected date of 5 December 2022. The claimant did not want to discuss sitting near a toilet, was not interested in PAM assist, mediation was discussed and the claimant confirmed “he does not require it.” The claimant confirmed that none of Michael Connolly’s colleagues had been in touch or been offensive towards him. Reference was made to India Buildings being closed due to a flood and training being put on hold.

[89]The contemporaneous note reflected the claimant mentioning “moving to the Home Office but TU advised we wouldn’t be able to do that but we could move him to another business stream within HMPC so he wouldn’t be working with colleagues who knew the person who left last years…I asked if he was looking at the HMRC job website for jobs.”

[90]The discussion was confirmed in an email sent on 26 September 2022. ACAS early conciliation

[91]ACAS early conciliation undertaken between the 17 October and 28 November 2022

[92]On the 19 October 2022, the claimant had a meeting with David Roberts after lodging the Formal Concern Report. He was accompanied by Georgina Griffith. 20th October 2022 Occupational Health Report

[93]The 20th October 2022 occupational health report dealt with the claimant’s anticipated return to work on the 5 December 2022.

[94]Occupational health confirmed “the situation is the same as we reported to you in May of this year…the key themes relate to Martin having lost trust in HMRC management. These are employment relationship issues rather than medical ones…no commentary or advise on his fitness to return to the office can sensibly be made without emphasising how damaged the employment relationship seems to be. There can be no prospect of any successful return to work in the office, unless the mutual trust and goodwill that underpins any functioning employment relationship can be restored in the course of what whatever further dialogue three may be…” It is with that caveat in mind that occupational health’s opinion was the claimant was fit to work “he is unfit to attend the office, and therefore clinically, I would support his request for a full-time work from home contract…I think that this measure allowance of full time work from home may likely to be the only solution to enable him to remain in his employment, at least until such time confidence and trust are restored” [the Tribunal’s emphasis]. The claimant relies on the opinion element of the report, excluding the earlier section. Both should be read in tandem, and a common sense interpretation given, which is the claimant did not want to work in the office because he no longer trusted managers, and the only way he can continue working was from home which is an employment relationship issue and not a medical one.

[95]The kidney stones (not kidney disease) and neck discomfort were referred to in the report, and there is no hint of this in the information provided in the claimant’s working from home application including the need for a nearby toilet. Occupational health advised “these conditions do not impact him.” That must be the case because the claimant accepted the report and agreed for it to be released to the respondent, and at no stage did the claimant take the respondent up on the offer to make adjustments to facilitate kidney stones. Outcome of Formal Concern from David Roberts

[96]In an email sent on the 10th November 2022 Dewi Roberts dismissed the claimant’s grievance. He found the claimant was placed on a PIP because he was underperforming and figures were set out supporting his conclusion. Reference was made to the support and training given to the claimant which resulted in an improved performance. The claimant confirmed there was “no evidence that any of the team didn’t like you.” Dewi Roberts noted “the request for telephony staff was sent to all non-telephony staff and you weren’t singled out with this message…” The claimant had rejected the offer to be escorted in the office and provided with taxis to and from work.

[97]With reference to the telephony work the claimant’s grievance was partially upheld; “OH advice does not appear to be fully taken into account and a more phased approach may have been more appropriate...and if telephony is to be introduced in the future an agreed supportive plan should be put in place…”

[98]The argument concerning the claimant working from home continued, and on the 14th November 2022 Abi Onabowu who line manged Jayne O’Connor and Mike McGugan, became involved to protect Jayne O’Connor who was distressed by the emails she had been sent from Georgina Griffith about this matter. The Tribunal has read a number of the emails set out within the agreed bundle which does not intend to record, other than to note that they were aggressive in tone, persistent, lengthy and made allegations concerning the “office as a toxic and unsafe environment” despite the claimant not working in the office since March 2020, over two and a half years ago. Abi Onabowu emailed Georgina Griffith at 15.43 “I am keen and willing to work with you to establish that trust” referring to the last occupational health report. Abi Onabowu replied to claimant concerning working from home

[99]Abi Onabowu became aware that the claimant wanted to be moved, and emailed Georgina Griffith on the 16 November 2022 “it is sad and unfortunate that we are currently at a point where Martin has requested a move outside his current management chain. I have already been made aware of this and did contact EAS colleagues speaking to a complex case worker for advice. I was made aware that there is no obligation as a business to adhere to Martin’s request. Martin’s request is voluntary and not part of any compulsory moves and neither is he surplus to our resource requirements. He may need to register himself on the Civil Service jobs if he hasn’t done so already…” The Tribunal found a matter of fact that on 16 November 2022, Abi Onabowu had not told the claimant that if he was unhappy with the situation, to look for another job, and the claimant’s allegation and evidence that he had was not credible and unfounded. It is notable that the claimant accepted in cross- examination that Abi Onabowu had not said this. It follows that allegation 5.2.6 is fabricated and the claimant had no basis for bringing it.

[100]On the 30th November 2022, the claimant raised a further grievance regarding the respondent refusing a transfer request as a reasonable adjustment, “suggesting that if I am not happy with the situation I could look for another job on the Civil service jobsite…” The grievance was also a fabrication designed to ensure the claimant remained working at home, and the claimant was prepared to say and do anything to achieve his end aim of continued home working after 5th December 2022. The claimant achieved his aim because he never returned to work to the office. 101. 14th December 2022 the claimant had an online 1-2-1 meeting with Jayne O’Connor at which adjustments were discussed, the claimant’s improved performance was acknowledged and the contemporaneous note recorded “I know he had mentioned wanting to move to another department so I asked had he set up alerts on the jobs website. He said he hadn’t but he will do. I asked would he like me to help him do that and he said no he was okay.” The contemporaneous note reflects the true position.

[102]On the 21st December 2022, the ET1 was presented. Law Disability discrimination – failure to make reasonable adjustments.

[103]The duty to make reasonable adjustments in S 20 of the Equality Act 2010 (“EqA”). Section 20(3) sets out the first requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. Section 21(1) provides that a failure to comply with the first, second or third requirement is a failure to comply with the duty to make reasonable adjustments. Schedule 8 of the EqA 2010 applies where there is a duty to make reasonable adjustments in the context of 'work' and the Statutory Code of Practice on Employment is to be read alongside the EqA.

[104]In the well-known case Secretary of State for Work and Pensions (Job Centre Plus) v Higgins [2013]

UKEAT/0579/12

the EAT held at paragraphs 29 and 31 of HHJ David Richardson’s judgment that the Tribunal should identify(1) the employer’s PCP at issue,

(2) the identity of the persons who are not disabled in comparison with whom comparison is made,

(3) the nature and extent of the substantial disadvantage suffered by the employee, and

(4) identify the step or steps which it is reasonable for the employer to have to take and assess the extent to what extent the adjustment would be effective to avoid the disadvantage.

[105]Mr Dunne referred the Tribunal to a number of legal principles, including Griffiths v SSWP

[2017] ICR 160

CA, Elias J held that [at 44-47]: ‘It is critical to identify the relevant PCP concerned and the precise nature of the disadvantage which it creates by comparison with its effect on the nondisabled. The importance of this is that until the disadvantage is properly identified, it is not possible to determine what steps might eliminate it’

[106]Secondly, a PCP must be applicable to disabled and non-disabled persons. Otherwise, it cannot cause a substantial disadvantage ‘in comparison.’ The PCP must be applied.

[107]Thirdly, the PCP must put C at a ‘substantial disadvantage’ compared to non-disabled persons. The burden of proof is on the claimant. A substantial disadvantage should be identified with precision. An ET will fall into error, unless the precise substantial disadvantage is identified, and why it was caused by the PCP and Disability; Environment Agency v Rowan

[2008] IRLR 20

EAT.

[108]Fourthly, the respondent must have knowledge of that substantial disadvantage. This is a fundamental and requisite part of the test. Again, knowledge is actual or constructive. Reasonableness of adjustments

[109]The statutory duty is for respondent to take such steps as are reasonable, in all the circumstances of the case, for it to have to take in order to avoid the disadvantage. The test of “reasonableness” imports an objective standard - Smith v Churchills Stairlifts plc

[2005] EWCA 1220

. It is important to precisely identify the step which could remove the substantial disadvantage complained of. In the Tribunal’s view in Mr Bentley’s case it was satisfied the respondent took all reasonable steps open to it at the time focusing on the practical outcome which was the claimant working at home throughout the relevant period not the process followed. Mr Dunne referred to Langstaff J held in the EAT case of RBS v Ashton

[2011] ICR 632

[at 24]. It is not - and it is an error - for the focus to be upon the process of reasoning by which a possible adjustment was considered… [I]t is irrelevant to consider the employer’s thought processes… leading to the making or failure to make a reasonable adjustment Harassment

[110]Section 26 EqA covers three forms of prohibited behaviour. In the claimant’s case the Tribunal is concerned with conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment — S.26(1) It states that a person(a) (A) harasses another

(b) (B) if: A engages in unwanted conduct related to a relevant protected characteristic — S.26(1)(a), and 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 — S.26(1)(b).

[111]The EHRC Employment Code provides that unwanted conduct can be subtle, and include ‘a wide range of behaviour, including spoken or written words or facial expressions’ para 7.7. Where there is disagreement between the parties, it is important that an Employment Tribunal makes clear findings as to what conduct actually took place.

[112]The word ‘unwanted’ is essentially the same as ‘unwelcome’ or ‘uninvited’ confirmed by the EHRC Employment Code at para 7.8. Unwanted conduct means conduct that is unwanted by the employee assessed subjectively.

[113]S.26(4) states that, in determining whether conduct has the proscribed effect, a tribunal must take into account the perception of the claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. There can be cases where the claimant when alleging the acts violated his or her dignity, is oversensitive and it does not necessarily follow that an act of harassment had objectively taken place despite a subjective view that it had.

[114]In order to decide whether any conduct has either of the proscribed effects under s.26 (1)(b) EA 2010, the ET must consider both (by reason of s. 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of s.4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). All the other circumstances must also be taken into account (s.4(b)) - Pemberton v Inwood

[2018] EWCA Civ 564

[115]Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended - Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

. A claim based on 'purpose' requires an analysis of the alleged harasser's motive or intention. Three essential elements for a claim of harassment to be proved as follows:a. unwanted conduct

b. that has the prescribed purpose or effect, and

c. which relates to a relevant protected characteristic. Related to a protected characteristic.

[116]This is a very broad test, but some guidance about how the Tribunal should approach the issue was provided in UNITE the Union v Nailard

[2018] EWCA Civ. 1203

. It should make findings as to the mental processes of the alleged harassers.

[117]Whilst the view of a claimant might be that the conduct related to the protected characteristic is relevant, it is not determinative - Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

EAT. The ET has to apply an objective test in determining whether the conduct was related to the protected characteristic in issue. The intention of the actors concerned might form part of the relevant circumstances, but it is not the only factor. Victimisation 118. .S.27(1) provides: ‘A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

[119]The EHRC Employment Code refers to treatment that may amount to a ‘detriment’: ‘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’ — paras 9.8 and 9.9.

[120]To succeed in a claim of victimisation the claimant must show he was subjected to the detriment because of doing a protected act or because the employer believed the claimant had done or might do a protected act. Where there has been a detriment and a protected act, but the detrimental treatment was due to another reason, e.g. underperformance , a claim of victimisation cannot succeed.

[121]In the well-known case of Chief Constable of West Yorkshire Police v Khan

2001 ICR 1065

, HL Lord Scott said that the language used in S.2(1) of the Race Relations Act 1976 (RRA) was not the language of strict causation. Rather, it required the tribunal to identify ‘the real reason, the core reason, the causa causans, the motive’ (our stress) for the treatment complained of. In the case of Mr Bentley the Tribunal asked itself whether his protected act of putting in a statement supporting a colleague’s Employment Tribunal claim amounted to a significant contributory factor i.e. if protected acts had a ‘significant influence’ (being more than trivial) on the respondent’s decision-making, concluding there was no connection.

[122]Detriment cannot be because of a protected act in circumstances where there is no evidence that the person who allegedly inflicted the detriment knew about the protected act. Burden of proof

[123]The Tribunal has applied the burden of proof in this case, and apart from allegation 5.2.1 involving the Michael Connell screen shot, the claimant has not discharged the burden on him. If the Tribunal is wrong on this point, it would have gone on to find had the burden of proof shifted to the respondent, an explanation untainted by disability was provided by the respondent.

[124]Section 136 of the EqA provides:(1) this section applies to any proceedings relating to the contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provisions concerned, the court must hold that the contravention occurred.

(3) Subsection (2) does not apply if A shows that A did not contravene the provisions.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.”

[125]In determining whether the respondent discriminated the guidelines set out in Barton v Investec Henderson Crossthwaite Securities Limited

[2003] IRLR 332

and Igen Limited and others v Wong

[2005] IRLR 258

apply, as affirmed in Ayodele v CityLink Ltd

[2018] ICR 748

. The claimant must satisfy the Tribunal that there are primary facts from which inferences of unlawful discrimination can arise and that the Tribunal must find unlawful discrimination unless the employer can prove that it did not commit the act of discrimination. The burden of proof involves the two-stage process identified in Igen. With reference to the respondent’s explanation, the Tribunal must disregard any exculpatory explanation by the respondent and can take into account evidence of an unsatisfactory explanation by the respondent, to support the claimant’s case. Once the claimant has proved primary facts from which inferences of unlawful discrimination can be drawn the burden shifts to the respondent to provide an explanation untainted by sex [or in the present case disability], failing which the claim succeeds. Conclusion – applying the law to the facts. Time Limits

[126]With reference to the first issue relating to time limits, any acts/omissions pre-dating 18th July 2022 fall out of time.

[127]With reference to the issue, namely, were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010 (“EA 2010”), the Tribunal found as follows:127.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates, allegations 4.1.10, 4.1.11, 4.1.12, 4.1.13, 5.2.5 and 5.2.6 were made within the statutory three months taking into account ACAS early conciliation. Allegations 4.1.4, 4.1.5, 4.1.6, 4.1.7, 4.1.8, 4.1.9, 5.2.1, 5.2.2, 5.2.3 and 5.2.4 were not presented to the Tribunal before the end of the period of 3 months beginning when the act complained of was done.

127.2 With reference to the issue was there conduct extending over a period, as reflected in its findings of facts the Tribunal found that there was not. Mr Dunne referred the Tribunal to Hendricks v CPM

[2002] EWCA Civ 1686

. The Tribunal agreed the claims concerned different alleged perpetrators, are different in nature, have large gaps in time and should stand alone.

127.3 With reference to the issue, namely, if not, were the claims made within such further period as the Tribunal thinks is just and equitable, the Tribunal found that they were not. The claimant and his union representative, Georgina Griffith, made various allegations of discrimination and victimisation at various intervals when the claimant refused to return to the office to work after COVID lockdown was lifted. The Michael Connell screenshot is a case in point where the claimant did nothing for a few weeks, then approached his union for legal advice before months later (despite suggestions made by the union representative who was not Georgina Griffith) raising an internal complaint after Ms O’Connell had started to deal with it and months before he finally issued proceedings. The claimant’s evidence was he knew of the Tribunal jurisdictions but did not look into it, spoke to union in June, July and August 2022 who were advising him throughout, and waited another 4 months before approaching ACAS on the 17 October 2022. The Tribunal concluded on the balance of probabilities that the claimant intentionally chose not to issue proceedings until he was facing the prospect of returning to the office to work following which he undertook ACAS early conciliation in an attempt to force the respondent’s hand to grant his application for a permanent change to homeworking in his contract of employment.

127.4 With reference to the issue, namely, is it just and equitable in all the circumstances to extend time, the Tribunal found it was not. The claimant’s reason for the delay was contradictory and unsatisfactory. In oral evidence the claimant explained he had left the matter in the hands of his trade union because he did not understand the process, despite being involved in the claim of a fellow colleague who had brought discrimination proceedings in the Employment Tribunal. The claimant was aware that discrimination proceedings could be brought, he had access to his union and the internet. After Michael Connell’s screenshot, albeit following a delay of weeks, the claimant referred the matter to his trade union for “legal advice.” The claimant chose not to bring proceedings, using the Michael Connolly screenshot as a lever for forcing the respondent’s hand to allow him to work from home, which was his only concern as he did not want to work in an office under the control of managers dealing with him face-to-face preferring to work and communicate via electronic means including TEAM meetings. In short the claimant had no intention of issuing proceedings until he was facing a return to work in the office on the 5 December 2022, with a view to stopping the respondent in their tracks and remaining working from home, which he achieved together with the reasonable adjustment of not being required to undertake client telephone work.

127.5 Whilst s.123(1)(b) EqA allows a Tribunal to consider a complaint out of time where it is just and equitable to do so, there is no presumption that the Tribunal should exercise its discretion to extend time. Furthermore, a Tribunal should not extend a time limit unless the claimant can demonstrate that it is just and equitable to do so as confirmed in the Employment Appeal Tribunal case of Robertson v Bexley Community Centre

[2003] IRLR 434

. The exercise of discretion should be the exception rather than the rule. This approach was approved by the Court of Appeal in Department of Constitutional Affairs v Jones

[2008] IRLR 128

127.6 In considering whether to grant a just and equitable extension of time the Tribunal took into account its findings of facts above, the lack of credibility in the claimant’s evidence, the weakness in his claims and the balance of prejudice. It is aware there is no requirement for it to treat S.33(3) Limitation Act 1980 and the factors set out in British Coal Corporation v Keeble

[1997] IRLR 336

as a tick list. However, the Tribunal has attempted to look at the whole picture, including the unsatisfactory and contradictory reasons given by the claimant for failing to issue proceedings in time followed by the balance pf prejudice to the parties.

127.7 There is no doubt that the claimant, if the Tribunal does not use its discretion and allow the claims to be accepted out of time, will suffer prejudice. However, the greater prejudice lies with the respondent who is facing a claim which the claimant intentionally did not bring within the statutory time limit. For example, had the claimant complained about Michael Connell in good time, the respondent could have taken the necessary action which was unavailable to it once Michael Connell left the organisation. Mr Dunne is correct that the claimant’s out-of-time claims require the respondent to recall events from as far back as 3 years ago, having an inevitable impact on memories and the cogency on the evidence, for example, oneoff conversations that allegedly took place in 2021 or early 2022, where there is no verbatim note. The respondent has no access to a key witnesses, Michael Connell, who may have/may not have admitted sending the screenshot communication relied on by the claimant. It is undisputed the out of time claims expose the respondent to greater damages and reputational risk against a background where the claimant intentionally chose not to issue proceedings in time. The claimant is less prejudiced, having multiple claims in time, which he pursued with the possibility that there was a continuing act (although the Tribunal found this not to have been the case).

[128]If the Tribunal is wrong on the time limit point and taking into account this case has taken 6-days to be heard, in the alternative, it would have found the following taking the list of issues in the same order concluding the claimant’s claims would not have succeeded with the exception of the victimisation claim resulting from the abusive message sent to him by Michael Connell for which Michael Connell can be severely criticised. Disability: knowledge

[129]The Claimant relies on the following impairments for the purposes of his claim: Anxiety and Depression, and Stage 3 kidney disease. The respondent concedes that the claimant was a disabled person by reason of both those impairments at the material time: between 19th September 2021 and 21 December 2022.

[130]With reference to the issue, namely, did the respondent know of the claimant’s disability relating to stage 3 kidney disease (or could it reasonably have been expected to know of the Claimant’s disabilities) at the material time of the complaints referred to in the claim form, the Tribunal found it did not. These proceedings are the first time the claimant has mentioned stage 3 kidney disease, and the Tribunal took time to go through the documents to which it had been referred, satisfying itself the respondent could not have been reasonably expected to know the claimant was disabled with stage 3 kidney disease during the relevant period.

[131]The respondent was aware of kidney stones, but it was not aware it amounted to a disability. The Tribunal found as recorded in its findings of facts that the respondent had knowledge of the kidney stones and it had no knowledge of stage 3 kidney disease. In the claimant’s application to work from home no reference was made to stage 3 kidney disease, however, Georgina Griffith did make reference to “Martin has suffered with kidney stones and kidney infections for over 20 years. Martin had tests done 4 to 5 years ago which showed his kidney was working less than 60 percent. This causes Martin to be aware of what he eats…has to take more frequent toilet breaks…the kidney stones causes severe pain…” This information was theoretically sufficient to put the respondent on notice as of 6 June 2022 that the claimant could be disabled with a kidney infection that required further investigation. The respondent asked the claimant about this and he refused to provide information. It requested occupational health to deal with it, and in the final occupational health report as agreed with the claimant, it was confirmed kidney stones (not kidney disease) as follows “these conditions do not impact him.”

[132]The claimant had adduced no evidence that the respondent knew or could be expected to have known the claimant was disabled with stage 3 kidney disease which adversely impacted his day-today activities, during the relevant period of this litigation. The Tribunal is satisfied that as submitted by Mr Dunne, the respondent did not have knowledge of all the elements of disability, as required; Stott v Ralli Ltd [EA-2019-000772-VP. The claimant did not reference this in his Occupational Health Reports in 2019 or 2021 and when the claimant raised the requirement of being near to a toilet when working, which was accepted by the respondent who proposed he should be seated near a toilet, the claimant rowed back from his position, for example, on the 14 June 2022 the claimant refused to comment on his kidney condition referring Jayne O’Connor to an occupational health report which did not mention it, as planned with Georgina Griffith before the meeting. Kidney stones (and not kidney disease or stage 3 kidney disease) was mentioned for the first time in the occupational health report dated October 2021 as recorded above. On 26th September 2022, the claimant and Georgina Griffith met with Jayne O’Connor to discuss Melanie Wandsworth’s recommendations set out in the appeal outcome on Return to Office with an expected date of 5 December 2022. The claimant did not want to discuss sitting near a toilet and rejected the adjustments proposed.

[133]The Tribunal agreed with Mr Dunne that at the most the respondent possessed knowledge that the claimant had kidney stones “which is a great distance from respondent knowing of a disability of Stage 3 Kidney Disease” concluding the respondent at the material time: between 19th September 2021 and 21 December 2022, did not know of the claimant’s disability relating to stage 3 kidney disease and nor could it reasonably have been expected to know of the Claimant’s disability. Failure to Make Reasonable Adjustments (ss20 & 21 EA 2010)

[134]A “PCP” is a provision, criteria or practice and the claimant relies on a specific PCP, namely requiring employees to work from the office when it was open.

[135]With reference to the issue, namely, did the respondent have the following PCP: requiring employees to work from the office (when it is open), the Tribunal found it did not. For the avoidance of doubt the Tribunal also found the respondent did not have a PCP that employees who were contractually office based could not be home based as a matter of contract or a contractual variation to an office based contract. The respondent’s case is that it did not apply PCP because at material time the claimant was working at home, and the Tribunal agreed as a matter of fact there was no such PCP because the claimant(a) never worked in the office and had been working from home for approximately four and a half years before these proceedings were issued, and

(b) as an adjustment for him it was proposed that he was work 1 or 2 days in the office and the rest of the time at home.

[136]In the alternative, had such a PCP existed (which the Tribunal found did not), with reference to the issue, namely, did the PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, the Tribunal found he was not because he never worked in the office, and he was allowed to work from home throughout this period. The contractual working from home application is different from the adjustment sought by the claimant of working from home. A contractual right to work from home was not a reasonable adjustment relied on by the claimant. In any event, had it been the Tribunal would not have found it a reasonable adjustment bearing in mind the claimant’s failure to take the respondent up on the wide ranging adjustments offered in the hope that eventually the claimant could return to work in the office for better training, assistance to meet KPI’s and working with his team.

[137]The Claimant relies upon both impairments and alleges that he was put to the following substantial disadvantage:(1) Exacerbating the claimant’s anxiety and depression – the Tribunal finds there was no satisfactory evidence of this and the key issue for the claimant was being managed by managers he did not trust, as found by the Tribunal in its findings of facts above, and its conclusion that there was no logical reason for the claimant to be concerned about Michael Connell who no longer worked for the respondent, or his wider team who worked on a different floor and had no contact with the claimant. The Tribunal reiterates its finding that the Michael Connell screenshot was a lever by which the claimant sought to force the respondent to allow him to continue working from home permanently until retirement.

(2) In respect of stage 3 kidney disease; the discomfort and distress of working in the office; the need to visit the toilet more often and fear of harm or actual harm which could be caused through physical contact to kidney area, preventing the claimant from navigating and accessing office space comfortably, using lifts or crowded staircases. The respondent did not know and nor could reasonably be expected to know the claimant was likely to be placed at a disadvantage. There was no evidence in any occupational health reports up to the 20 October 2022 which make no mention of kidney disease, and in the final report the kidney stones did not impact the claimant. The claimant’s description both in contemporaneous documents and in the list of issues of the effect on him was exaggerated and aimed at bolstering up his disability discrimination claim. Further, there was no medical evidence whatsoever to support his claims, and the claimant was offered a reasonable adjustment of being seated near a toilet which he refused for spurious reasons as reflected in the findings of facts. As far as the respondent was concerned (and this was not disputed by the claimant) it understood the claimant’s kidney stones had no impact on his ability to return to the office.

[138]With reference to the issue, namely, was the claimant put to those disadvantages, the Tribunal found that he was not.

[139]In the alternative, had the claimant discharged the burden of proving he had been put to the disadvantage he claims (which he did not) , the Tribunal would have gone on to find in respect of the knowledge issue, did the respondent know, or could it reasonably have been expected to know, that the claimant was likely to be placed at those disadvantages, that it did not.

[140]With reference to the issue, namely, did the respondent fail in its duty to take such steps as it would have been reasonable to have to take to avoid the substantial disadvantage, the respondent did not. The claimant says that the following adjustment to the PCP would have been reasonable: allowing the claimant to work from home. The claimant was allowed to work from home. The Tribunal agrees with Mr Dunne that the fact the claimant’s application to change his contract to one in which he would permanently work from home as opposed to being office based (which is not the claimant’s pleaded case) is a different question that has an extensive impact on the claimant’s training, performance and the business because the claimant could never be required to attend the office for any reason. Taking into account the Tribunal’s conclusion that the adjustment was sought because the claimant no longer trusted his managers who had tried to control him and his poor performance, seeking a permanent contractual right not to be managed face-to-face by managers who believed his long standing performance concerns would be more easily dealt with in the office rather than at home due to the support available, and the extensive and complex training was to be in person, for example, physical presence in the office was required for “wet signature training.” The respondent is office based with home working allowed, for example, following the COVID pandemic, a leak in India Buildings and as a reasonable adjustment.

[141]The claimant refused all adjustments offered without any intention on his part to trial them, and the Tribunal concluded that it was reasonable for the respondent to have offered them in tandem with a 12-week working from home period in order to ascertain whether the claimant could return to work in the office with adjustments, including undertaking a mediation with the managers he distrusted and did not want to meet face-to-face, preferring to work from home carrying out a smaller proportion of his contractual duties. Harassment Related to Disability (s26 EA 2010)

[142]With reference to the following issues, namely, did the Respondent do the following things: 142.1 Issue 4.1.1: On 26 October 2021 (during a meeting with Sarah Maddox) pressuring the Claimant to do telephony work and in doing so ignoring the occupational health reports which recommended the Claimant did no telephony work. This allegation was dismissed on withdrawal. It is notable that nowhere in the contemporaneous documents is there any evidence to the effect that the claimant was pressurised as alleged, and the fact the claimant raised this allegation questioned his credibility. 142.2. Issue 4.1.2: On or around November 2021, Sarah Maddox sending the claimant for a fifth occupational health report.- this allegation was dismissed on withdrawal. 142.3 Issue 4.1.3: On 14 December 2021 Ms Maddox requesting a doctor’s certificate - this allegation was dismissed on withdrawal. 142.4 Issue 4.1.4: With reference to the issue, in or around October and November 2021 putting the claimant on telephony training, the Tribunal found it was not an act of harassment. It was made clear to the claimant that he was being trained as a contingency in case he may be in a position to make client calls in the future. The claimant was trained virtually whilst working from home, and was never asked to perform the role. As the training was a contingency according to Sarah Maddox who gave credible evidence to the effect that it did not have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The claimant worked at home with a trainer one to one and watched some videos. The claimant’s perception at the time was that he may be asked to undertake telephony work in the future, but he was aware that he had not performed such work in the past and nor was he asked to do so at any stage during his employment leading to him issuing these proceedings (or indeed after) when it was made clear that not undertaking telephony work was a reasonable adjusted agreed to by the respondent. In the circumstances of the case it was not reasonable for the conduct to have the proscribed effect. 142.5 Issue 4.1.5: With reference to the issue, on 28 November 2021, Michael Connell sending the claimant a threatening message and the respondent being aware but taking no action in respect of it, the Tribunal agreed it was an act of harassment for which Michael Connell can be severely criticised. However, it was not related to the claimant’s disability. As recorded in the findings of facts above, the Tribunal did not accept the respondent was aware of message but took no action, quite the reverse. Immediate action was taken and attempts made to satisfy the claimant that Michael Connell was no longer an employee, his team worked away from the claimant on a different floor and there was no threat to him. It is unfortunate the claimant delayed in reporting it, had it done so at the time, the respondent would have been in a better position to investigate and take any necessary action (see below). 142.6 Issue 4.1.6: With reference to the issue, namely, in mid-January 2022, the claimant’s new manager, Jayne O’Connor failing to take appropriate action about the message; telling the claimant that as Mr Connell had left, it was no longer an issue, the Tribunal found this did not happen and the claimant has failed to discharge the burden of proof. The Tribunal agreed with Mr Dunne that once Jane O’Connor was told about the Michael Connell screenshot she took immediate action and attempted to put the claimant’s mind at ease concerning Michael Connell and his ex-colleagues who as a matter of fact never approached the claimant in any way, including suggesting the claimant was accompanied in and out of the workplace and taxis provided to and from work. As admitted by the claimant during cross-examination, Jayne O’Connor was supportive and her proactive actions reflected that it was an issue which she wanted to resolve with the claimant and get him back into office work. It is notable that Jayne O’Connor was one of the managers the claimant no longer trusted. 142.7 Issue 4.1.7: With reference to the issue, namely, Jane O’Connor placing the claimant on a PIP on 25th January 2022 and telling him that extra training was required because his KPIs were low, the Tribunal finds this was not an act of harassment, it was intended to support the claimant who was underperforming , had been so for some time, and his performance improved as a result of KPI, the extra support and extra training given as conceded by the claimant, and this was not linked to the claimant’s disability. 142.8 Issue 4.1.8: With reference to the issue, namely, being constantly dragged into meetings between February and April 2022 by Jayne O’Connor to discuss the PIP, Jayne O’Connor criticising the claimant’s KIPs, pressurising him to return to the office and discussing stress reduction and stress management plans; on some occasions, 2 or 3 times a day. The claimant explained on each occasion that his KPIs were not poor and were commensurate with other team members, but Jayne O’Connor would not listen. This behaviour led the claimant to submit a grievance. The Tribunal found the claimant was not “dragged into meetings” as alleged. the PIP has been dealt with above. The office return discussions were normal management interventions, and Jayne O’Connor attempted to support the claimant through a Stress Management Plan, Wellness Plan and the PIP. The claimant raised no questions on this allegation during x-examination of Jayne O’Connor despite being invited by the judge to do, who gave him “quiet time” by way of adjournment in which to think about the list of issues and his cross-examination. 142.9 Issue 4.1.9: With reference to the issue, namely, the rejection of the claimant’s working from home application made on 7 the June 2022 being rejected by Jayne O’Connor, this was unwanted conduct but not conduct related to his disability as reflected in the findings of facts above. The decision was made by a panel and not Jayne O’Connor, from the information provided by the claimant in support of his application which was scant and did not assist him, the claimant having agreed with Georgina Griffith beforehand that he should not answer the questions. Despite being invited to do so, the claimant did not question Jayne O’Connor whose evidence as to why the claimant’s application was rejected remained unchallenged. 142.10 Issue 4.1.10: With reference to the issue, namely, the respondent ignoring the Occupational Health recommendations that the claimant should work from home dated 8th June and 5th October 2022, they were not ignored and Jayne O’Connor’s evidence remains unchallenged by the claimant. It is undisputed the claimant worked from home and continued to do so. 142.11 Issue 4.1.11: With reference to the issue, namely, the claimant’s appeal against the refusal being rejected by Melanie Wadsworth in September 2022, the respondent accepts this was unwanted conduct and the Tribunal agrees. It found the appeal was rejected on cogent grounds, it had no link to the claimant’s disability and the purpose was not to violate the claimant’s dignity etc. 142.12 Issue 4.1.12: With reference to the issue, namely, the claimant’s request made to Ms O’Connor to be moved to another team being rejected and being advised to look on the Civil Service Website for available roles, the Tribunal finds this did not happen as described by the claimant and there was no link to the claimant’s disability. At the 14th December 2022 1-2-1 meeting with Jayne O’Connor the contemporaneous note recorded “I know he had mentioned wanting to move to another department so I asked had he set up alerts on the jobs website. He said he hadn’t but he will do. I asked would he like me to help him do that and he said no he was okay.” Jayne O’Connor did not reject the claimant’s request to be moved, and she did not advise him to look on the Civil Service website, instead she offered to help him. The way in which the claimant has couched this allegation undermines his credibility. 142.13 Issue 4.1.13: With reference to the issue, namely, the respondent’s conduct of the claimant’s grievance issued on 21st April 2022 and rejection of it on 10th November 2022, the claimant did not make clear what he was alleging in respect of Dewi Robert’s conduct until this liability hearing . The claimant alleged Dewi Roberts should not have sent minutes of the claimant’s meeting with Dewi Roberts to Jayne O’Connor and Mike McGugan and he was unable to cogently explain how this fell under section 26 of the EqA. The straightforward and credible reason given by Dewi Roberts was the notes were provided for them to focus on the claimant’s allegations and the fact that the rejection of the claimant’s grievance appeal was unwanted conduct, did not have the purpose of violating the claimant’s dignity etc. The claimant did not challenge Dewi Robert’s evidence on this, or the investigation report dated 19 September 2022 which reflected similar information that was before the Tribunal, for example, the claimant’s underperformance.

[143]Issue 4.2: If so, was that conduct unwanted, the Tribunal has dealt with this above.

[144]Issue 4.3: Was it related to the Claimant’s disabilities? The claimant asserts that the behaviour alleged related to both his disabilities, the Tribunal did not agree having make the findings above as to the mental processes of the alleged harassers: UNITE the Union v Nailard and Tees Esk and Wear Valleys NHS Foundation Trust v Aslam above.

[145]Issue 4.4: Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, the Tribunal found that it did not for reasons given above and in its findings of fact.

[146]Issue 4.5; If it did not have that purpose, did it have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect, and it found the claimant’s “perception” was informed by his sole intent, which was to work from home and avoid being managed face-to-face including performance managed when necessary and he was prepared to use any means possible to achieve this end. Victimisation (s27 EA 2010)

[147]Issue 5.1: Did the following amount to a protected act: On 9 September 2021, the Claimant providing a witness statement in support of a colleague’s Employment Tribunal claim, the respondent now accepts it is a protected act. The Tribunal accepts Jayne O’Connor knew of the protected act on the 9 February 2022 when the claimant made reference to it in a Toolkit response (but not the contents of the statement the claimant had provided) preferring the evidence of Ms O’Connor to that of the claimant on this point taking into account the contemporaneous documents, including the claimant informing his trade union representative that he did not want managers knowing about the Michael Connell screenshot.

[148]Issue 5.2: Did the Respondent do the following things:5.2.1 On 28 November 2021, Michael Connell sending the Claimant a threatening message, the Tribunal found that he did but the claim is out of time (see above on time limits)..

5.2.2 On 25 January 2022, Jayne O’Connor putting the Claimant on a performance improvement plan, the Tribunal found that the claimant was put on a PIP.

5.2.3 In January 2022, Jayne O’Connor sending the Claimant on extra training. The Tribunal found the claimant was sent on extra training which he was happy to do and benefitted from.

5.2.4 On or around 6 December 2021 Sarah Maddox and in January 2022, Jane O’Connor criticised the Claimant’s KPIs, saying he was below average. As recorded in the findings of facts above, the claimant was underperforming and managers were concerned that he could not be managed whilst working from home, and was limited in the contractual duties he could undertake. The underperformance factor was their sole consideration. Sarah Maddox did not know about the protected act, and Jayne O’Connor became aware when the claimant brought it to her attention on the 9 February 2022 . The Tribunal did not accept the claimant’s uncorroborated evidence that there was a conspiracy between managers who were hiding the fact the claimant had provided a statement despite not being told by the claimant of its existence. There is no logical reason why such a conspiracy would exist. The claimant was underperforming, he denies this is the case pointing to other employees misusing the system, however, the claimant accepts his performance did improve as a result which in itself suggests there was an issue. The PIP was aimed at supporting the claimant, which it did, enabling him to continue working from home when the alternative could have been to proceed down a formal poor performance route aimed at dismissing the claimant (which is what he feared although never threatened with) an option open to the managers given the long term performance issues and the claimant’s blanket refusal to return to work in the office after the Covid lockdown. The claimant was provided with online one to one training which supported him, and congratulated when performance improved. There was no evidence managers were conspiring against the claimant because he had agreed to provide a witness statement in an discrimination claim, even if they knew about it, which they did not at the time of the PIP.

5.2.5 In or around October and November 2022 Jayne O’Connor refusing to move the Claimant to a different team, the Tribunal found she did not refuse as alleged. There was no evidence that Jayne O’Connor had the authority to do so, and the claimant’s trade union representative confirmed the position as set out in the findings of facts..

5.2.6 On 16 November 2022, Abi Onabowu telling the Claimant that if he was unhappy with the situation, to look for another job. As recorded above, this did not happen. In oral evidence the claimant conceded that his perceptions were wrong, the words relied on had not been used and the respondent wished to retain him, but if he wanted to leave he needed to take certain action. Mr Dunne submitted this has no link with the protected act and the Tribunal agreed, the claimant having failed to discharge the initial burden of proof There is no evidence that Abi Onabowu was concerned by the claimant’s statement made 12 months earlier that did not involve him, and the Tribunal found the claimant to be an unreliable witnesses prepared to make allegations without any basis to further his claim.

[149]With reference to issue 5.3, in conclusion, the respondent did not subject the claimant to a detriment, he has not proven facts from which the Tribunal could conclude that it was because the claimant did a protected act (or because the Respondent believed the Claimant had done, or might do, a protected act) and the respondent has shown that there was no contravention of section 27 of the EqA.

[150]In conclusion, the claimant’s claim of disability discrimination brought under section 26 and 27 of the Equality Act 2010 set out in allegations 4.1.1, 4.1.2 and 4.1.3 are dismissed on withdrawal by the claimant.

[151]The claimant’s claim of disability discrimination brought under section 26 and 27 of the Equality Act 2010 set out in allegations 4.1.4, 4.1.5, 4.1.6, 4.1.7, 4.1.8, 4.1.9, 5.2.1, 5.2.2, 5.2.3 and 5.2.4 were not presented to the Tribunal before the end of the period of 3 months beginning when the act complained of was done (or is treated as done) the last date being the 18 July 2022. ACAS early conciliation commenced on the17 October 2022 , the certificate was issued on the 28 November 2022 and claim form presented on the 21 December 2022. The complaints are out of time and in all the circumstances of the case it is not just and equitable to extend time. The Tribunal does not have the jurisdiction to consider the complains which are dismissed.

[152]In the alternative, the claimant’s claims of unlawful disability discrimination brought under sections 26 and section 27 of the Equality Act 2010 and set out in set out in allegations set out in allegations 4.1.4, 4.1.6, 4.1.7, 4.1.8, 4.1.9, 5.2.2, 5.2.3 and 5.2.4 are not well founded. The respondent’s conduct did not have the proscribed affect under section 26 and 27 of the Equality Act 2010, the claimant’s claims of harassment and victimisation fail and are dismissed.

[153]The claimant’s claims of disability discrimination brought under section 26 and section 27 of the Equality Act 2010 and set out in set out in allegations 4.1.10, 4.1.11, 4.1.12, 4.1.13, 5.2.5 and 5.2.6 are dismissed. The respondent’s conduct did not have the proscribed affect under section 26 and 27 of the Equality Act 2010, the claimant’s claims of harassment and victimisation fail and are dismissed.

[154]The respondent was not in breach of its duty to make reasonable adjustments and the claimant’s claim brought under section 20-21 of the Equality Act 2010 is dismissed.

The hearing

[1]The claimant has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, and the claim had no reasonable prospect of success.

[2]The claimant is ordered to pay to the respondent a contribution of costs in the sum of £20,000 (twenty-thousand pounds) under Rule 74(1)(a) and (b) of the Employment Tribunal Procedure Rules 2924. Case Number: 2410176/2022

[1]The claimant’s claim of disability discrimination brought under section 26 and 27 of the Equality Act 2010 set out in allegations 4.1.1, 4.1.2 and 4.1.3 are dismissed on withdrawal by the claimant.

[2]The claimant’s claim of disability discrimination brought under section 26 and 27 of the Equality Act 2010 set out in allegations 4.1.4, 4.1.5, 4.1.6, 4.1.7, 4.1.8, 4.1.9, 5.2.1, 5.2.2, 5.2.3 and 5.2.4 were not presented to the Tribunal before the end of the period of 3 months beginning when the act complained of was done (or is treated as done) the last date being the 18 July 2022. ACAS early conciliation commenced on the17 October 2022 , the certificate was issued on the 28 November 2022 and claim form presented on the 21 December 2022. The complaints are out of time and in all the circumstances of the case it is not just and equitable to extend time. The Tribunal does not have the jurisdiction to consider the complains which are dismissed.

[3]In the alternative, the claimant’s claims of unlawful disability discrimination brought under sections 26 and section 27 of the Equality Act 2010 and set out in set out in allegations set out in allegations 4.1.4, 4.1.6, 4.1.7, 4.1.8, 4.1.9, 5.2.2, 5.2.3 and 5.2.4 Case Number: 2410176/2022 are not well founded. The respondent’s conduct did not have the proscribed affect under section 26 and 27 of the Equality Act 2010, the claimant’s claims of harassment and victimisation fail and are dismissed.

[4]The claimant’s claims of disability discrimination brought under section 26 and section 27 of the Equality Act 2010 and set out in set out in allegations 4.1.10, 4.1.11, 4.1.12, 4.1.13, 5.2.5 and 5.2.6 are dismissed. The respondent’s conduct did not have the proscribed affect under section 26 and 27 of the Equality Act 2010, the claimant’s claims of harassment and victimisation fail and are dismissed.

[5]The respondent was not in breach of its duty to make reasonable adjustments and the claimant’s claim brought under section 20-21 of the Equality Act 2010 is dismissed.

[6]The remedy hearing listed for 4 November 2024 will not go ahead and is cancelled.