Mr D Williams v Royal Mail Group Ltd: 2412913/2023
EMPLOYMENT TRIBUNALS
Case No 2412913/2023
Between
Mr D WilliamsClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge McDonaldMr Steve Peacock (instructed by solicitor) for respondentDate 12 September 2025
JUDGMENT
[1]The complaint of harassment related to disability is not well-founded and is dismissed.[2]The complaint of failure to make reasonable adjustments for disability is wellfounded and succeeds. It would have been a reasonable adjustment for the respondent to:a. Agree in September 2023 that the claimant’s start time should be 06:00 rather than 06:45.b. To allow the claimant to return to work in September 2023 initially on a start time of 05:00 and support the claimant to transition to his new start time of 06:00.[3]A hearing has been listed to decide remedy in the successful reasonable adjustment claim.
REASONS
[1]The claimant filed his claim form on 10 December 2023. He brings complaints of disability related harassment and a failure to make reasonable adjustments.[2]The final hearing of the case took place in person at Manchester Employment Tribunal.[3]The claimant represented himself, supported by his wife. The respondent was represented by Mr Peacock, a solicitor.
The Issues
[4]The issues in the case were clarified at a case management preliminary hearing before Employment Judge Tobin on 1 August 2024. It is at the Annex to this judgment. As we explain when we come to deal with the reasonable adjustment claim, the parties agreed a refinement of the PCP relating to the reasonable adjustment claim at 4.2 of the List of Issues. It was also agreed that there should be no reference to “automatic dismissal” in the remedy section of the List of Issues because the claimant has not been dismissed and does not bring an unfair dismissal claim.[5]At the start of the hearing Mr Peacock indicated that the respondent did not contend that any of the claims were out of time. We find the reasonable adjustment claim was in time. There would have been an issue about whether the harassment claim as clarified by the claimant during the hearing was in time but that claim failed so the time limit point did not arise.
Preliminary Matters
[6]The respondent accepts that the claimant is a disabled person by reason of autism and mental health issues. At the start of the hearing, we discussed whether the Tribunal needed to make reasonable adjustments to the way it conducted the hearing to take that into account. The judge explained to the claimant what the hearing would involve. The claimant confirmed that other than having his wife present to provide support, he did not think there were other reasonable adjustments that were needed. We are satisfied that the claimant was able to participate fully in proceedings both as a witness and as a party.[7]The claimant’s claim form was filed on the 10 December 2023. There has been no application to amend to add a complaint about what happened later. During the hearing, both parties gave some evidence about things that had happened after that date. They included a further proposed change to the claimant’s hours as a result of what was called the Network Window Change project in 2024. The claimant also raised the matter of his having been medically suspended in 2025. We explained to the parties that because there was no application to amend, we were only dealing with those issues set out in the claim form and included in the List of Issues. We accepted that we might need to hear some evidence about what happened later where it might be relevant to the issues we were considering.[8]It was agreed the hearing would deal with Liability only. Evidence Bundle of documents[9]There was a bundle of documents prepared for the hearing (“the Bundle”) running to 268 pages.[10]During his evidence on day 1 of the hearing, the claimant said he had other documents including special delivery letters he had received which were relevant to his harassment claim. We agreed that he could produce them at the start of day 2. Mr Peacock confirmed at the start of Day 2 of the hearing that the respondent had no objection to the Tribunal taking into account those documents in deciding the case. The documents did not print out very well but we had access to the full versions electronically. We discuss the relevant additional documents when dealing with the harassment claim. Witness
Evidence
[11]The claimant had not prepared a written witness statement. Mr Peacock helpfully agreed that the claimant could rely on the details of his claim at box 8.2 of the claim form as his Witness Statement. The claimant agreed to that suggestion. At the start of the claimant’s oral evidence we gave him the opportunity to add any further details he wanted to what was set out in box 8.2. He confirmed that he did not have any details he wanted to add.[12]For the respondent we had written witness statements from the following:• Mr Daniel Ward (“Mr Ward), Customer Operations Manager at Eccles Delivery Office, where the claimant worked. He held that position from February 2023. He left the respondent in June 2025. He was the claimant’s line manager from January 2023.• Mr Stephen Murphy (“Mr Murphy”). He is employed by the respondent as a people case support manager. He investigated the grievance raised by the claimant under the respondent’s Raising Concern process in 2025. That was about the claimant’s medical suspension in March 2025 by Mr Ward.
The Hearing
[13]On Day 1 of the hearing we considered and dealt with the preliminary matters set out above. We read the witness statements and key documents in the Bundle on the morning of Day 1.[14]We heard the claimant’s evidence on the afternoon of Day 1 and the morning of Day 2. He was cross examined by Mr Peacock and answered questions from the Tribunal.[15]We heard Mr Ward’s and Mr Murphy's evidence on the afternoon of Day 2. They were cross examined by the claimant and answered questions from the Tribunal. Mr Ward was briefly re-examined by Mr Peacock.[16]At the end of day 2, we went through the List of Issues with the parties and explained to the claimant that we would need to hear his submissions, i.e. the points he wanted to make explaining why his case should win, on the morning of Day 3.[17]We heard the parties’ submissions on Day 3. Both the claimant and Mr Peacock had provided very helpful and clear written submissions. We heard oral submissions from Mr Peacock and then from the claimant. We offered Mr Peacock the opportunity to reply but he confirmed he had not further points to make.[18]We deliberated in chambers for the rest of Day 3 and the start of Day 4. We gave judgment with oral reasons on the morning of Day 4. The claimant asked for those reasons in writing. On Day 4 we also listed the remedy hearing and made directions setting out the steps the parties need to take to prepare for that hearing. Relevant Law Equality Act 2010 claims
Relevant Law
[19]The complaints of disability-related harassment and a failure to make reasonable adjustments were brought under the Equality Act 2010.[20]S.40 of the 2010 Act prohibits harassment of employees. So far as material to this case they provide as follows: “39 Employees and applicants ….(5) A duty make reasonable adjustments applies to an employer… 40 Employees and applicants: harassment (1) An employer (A) must not, in relation to employment by A, harass a person (B)— (a) who is an employee of A's”. The Burden of Proof[21]The 2010 Act provides for a shifting burden of proof. Section 136 so far as material provides as follows: "(2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision."[22]This means that it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the 2010 Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.[23]As for what is required to discharge the burden at the first stage, that must be something more than a difference in the relevant protected characteristic and a difference in treatment; see Madarassy v Nomura International plc [2007] ICR 867, CA. That said, the something more required at the first stage need not be a great deal; see Deman v EHRC [2010] EWCA Civ 1279.[24]A finding that an employer has behaved unreasonably, or treated an employee badly, will not, however, be sufficient, of itself, to cause the burden of proof to shift; Glasgow City Council v Zafar [1998] ICR 120.[25]The guidance in in Igen Ltd v Wong [2005] ICR 931, CA states when the burden has passed, not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment. However, that explanation need not be “adequate” in the sense of providing a reason which satisfies some objective standard of reasonableness or acceptability – it does not matter if the employer has acted for an unfair or discreditable reason provided that the reason had nothing to do with the protected characteristic (Royal Mail Group v Efobi [2021] UKSC 33 at para 29).[26]The burden of proof also applies in reasonable adjustment claims. The burden is on the employee, initially, to show (if disputed) that the PCP was applied and that it placed the employee at the substantial disadvantage asserted. They also need to put forward and identify some at least potentially or apparently reasonable adjustment which could be made. But, if they do, then the burden may pass to the employer to show that it would not have been reasonable to expect them to make that adjustment (Rentokil Initial UK Ltd v Miller [2024] EAT 37, para 43; Project Management Institute v Latif [2007] IRLR 579). Disability-related harassment[27]The definition of harassment appears in section 26 of the 2010 Act which so far as material reads as follows: “(1) A person(a) (A) harasses another(b) (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B… (4) In deciding whether conduct has the effect referred to sub-section (1)(b), each of the following must be taken into account - (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.”[28]The Equality and Human Rights Commission gives more detail on the factors relevant in deciding whether conduct has the effect referred to in s.26(1)(b) (“a harassing effect”) at paragraph 7.18 of its Statutory Code of Practice on Employment (“the EHRC Code”): “7.18 In deciding whether conduct had that effect, each of the following must be taken into account: a) The perception of the worker; that is, did they regard it as violating their dignity or creating an intimidating (etc) environment for them. This part of the test is a subjective question and depends on how the worker regards the treatment. b) The other circumstances of the case; circumstances that may be relevant and therefore need to be taken into account can include the personal circumstances of the worker experiencing the conduct; for example, the worker’s health, including mental health; mental capacity; cultural norms; or previous experience of harassment; and also the environment in which the conduct takes place. c) Whether it is reasonable for the conduct to have that effect; this is an objective test. A tribunal is unlikely to find unwanted conduct has the effect, for example, of offending a worker if the tribunal considers the worker to be hypersensitive and that another person subjected to the same conduct would not have been offended.”[29]For a complaint of disability-related harassment to succeed, the Tribunal must be satisfied that there was unwanted conduct which was disability-related and which had a harassing purpose or a harassing effect. Harassment can occur even if the conduct did not have a harassing purpose, so long as it had the harassing effect.[30]The test of whether conduct is “related” to a protected characteristic (in this case disability) is different to that of whether it is “because of” a protected characteristic which applies in a case of direct discrimination. The term ‘related to” is wider and more flexible than “because of”. In a disability-related harassment case, conduct could be found to be “related to” disability where it was done because of disability, but that is not a requirement. So, for example, if A subjects B to unwanted conduct with the purpose of “creating an intimidating environment for B” in circumstances in which it is established that A would not have subjected someone without the disability to the same conduct, that would establish that the conduct was “related to disability”. But there are many other ways in which conduct could be “related to disability”. One example given in a case of race-related harassment is where there is conduct that is inherently racist such as telling racist jokes (Blanc de Provence Ltd v Ha [2023] EAT 160).[31]Whether conduct is ‘related to’ a protected characteristic is a matter for the appreciation of the Tribunal, making a finding of fact drawing on all the evidence before it. The fact that the claimant considers that the conduct is related to that characteristic is not determinative. There must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and anor 2020 IRLR 495).[32]Case-law has made it clear that the language used in s.26, i.e. "violation of dignity" and "intimidating, hostile, degrading, humiliating, or offensive" is significant: "Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment." (per Elias LJ Grant v HM Land Registry [2011] EWCA Civ 769 at paragraph 47 ) "The word 'violating' is a strong word. Offending against dignity, hurting it, is insufficient. 'Violating' may be a word the strength of which is sometimes overlooked. The same might be said of the words 'intimidating' etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence." (per Langstaff P Betsi Cadwaladr University v Hughes UKEAT/0179/13 at paragraph 12)”. Failure to make reasonable adjustments[33]The duty to make reasonable adjustments appears in Section 20 Equality Act 2010 as having 3 requirements. The requirement of relevance in this case is the first requirement in Section 20(3). That is as follows:- “the first requirement is a requirement, where a provision, criterion or practice [“the PCP”] 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”.[34]The importance of a Tribunal going through each of the constituent parts of that provision was emphasised by the EAT in The Royal Bank of Scotland –v- Ashton [2011] ICR 632 (approved by the Court of Appeal in Newham Sixth Form College v Sanders [2014]). A Tribunal must identify: a) the provision, criterion or practice applied by or on behalf of an employer, or b) [where relevant] the physical feature of premises occupied by the employer, c) the identity of non-disabled comparators (where appropriate) and d) the nature and extent of the substantial disadvantage suffered by the Claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both the ‘provision, criterion or practice applied by or on behalf of an employer’ and the, ‘physical feature of premises’ so it would be necessary to look at the overall picture. The EAT added that although it will not always be necessary to identify all four of the above, (a) and (d) must certainly be identified in every case.[35]The obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is one in respect of which the EHRC Code provides considerable assistance. A list of factors which might be taken into account appears at paragraph 6.28 and includes the practicability of the step, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer’s financial or other resources and the type and size of the employer. Paragraph 6.29 makes clear that ultimately the test of the reasonableness of any step is an objective one depending on the circumstances of the case. Examples of reasonable adjustments in practice appear from paragraph 6.32 onwards[36]As to whether a disadvantage resulting from a provision, criterion or practice is substantial, Section 212(1) of the 2010 Act defines “substantial” as being “more than minor or trivial”.[37]Paragraph 20(1) of Schedule 8 to the 2010 Act provides that: “a person is not subject to the duty to make reasonable adjustments if he or she does not know, and could not reasonably be expected to know:(a) in the case of an applicant or potential applicant for work, that an interested disabled person is or may be an applicant for the work in question;(b) in any other case referred to in Part 2 of the Schedule, that an interested disabled person has a disability and is likely to be placed at a disadvantage by [the employer’s provision, criterion or practice (PCP), the physical features of the workplace, or a failure to provide an auxiliary aid]”[38]The employer’s knowledge can be actual or “constructive”. A Tribunal should approach this aspect of a reasonable adjustments claim by considering two questions:• first, did the employer know both that the employee was disabled and that the disability was liable to disadvantage the employee substantially?• if not, ought the employer to have known both that the employee was disabled and that the disability was liable to disadvantage the employee substantially? Secretary of State for Work and Pensions v Alam 2010 ICR 665, EAT, and McCubbin v Perth and Kinross Council EATS 0025/13.[39]In Smith v Churchills Stairlifts plc 2006 ICR 524, CA, the Court of Appeal confirmed that the test of reasonableness in the context of what is now S.20 of the Equality Act 2010 is an objective one and it is ultimately the employment tribunal’s view of what is reasonable that matters.[40]The question of whether there was a failure to make reasonable adjustments must be considered by reference to the position during the entirety of the period to which the claim relates. A Tribunal should not find that an employer had acted reasonably by reference to matters that were not known by the employer at the relevant time (confirmed in Hindmarch).[41]If the steps that it is suggested that a Respondent should have taken by way of reasonable adjustment (whether in the form of the provision of an auxiliary aid or otherwise) would have no real chance of avoiding or reducing the disadvantage, then the Respondent is under no duty to take those steps. It cannot be reasonable to require a party to make an adjustment that has no prospect of achieving the desired effect (Hindmarch v North-East Ambulance NHS Foundation Trust [2025] EAT 87).[42]However, it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage. Cumbria Probation Board v Collingwood [2008] All ER (D) 04.[43]The claimant referred to the possibility of a trial period. The EAT in Rentokil v Miller confirmed that a trial period (in that case in a different role) can be a reasonable adjustment. Offering an employee a trial period in a different role on a trial basis effects a substantive change in what they are doing, though it remains to be seen how it will work out, and how long it will last. Time limits for the Equality Act complaints[44]The time limit for bringing a claim under the 2010 Act appears in section 123 as follows:- “(1) subject to Sections 140A and 140B proceedings on a complaint within Section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable. (2) … (3) for the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.”
Findings of Fact
[45]We set out below our findings of fact based on the evidence we heard and read and taking into account the parties’ submissions on that evidence. Background Facts[46]The claimant is employed by the respondent as a postman, his official job title being an Operational Postal Grade (OPG). At all material times he was based at the respondent’s Eccles Delivery Office. Delivery of post from the delivery office was divided into Delivery Walks. Mr Ward estimated that at the relevant time the Eccles Delivery Office had around 25-28 Delivery Walks.[47]The respondent accepts that the claimant was at all relevant times a disabled person by reason of autism and mental health issues. The claimant received a diagnosis of autism in summer 2022.[48]The respondent is now a private company. However, it remains bound by the Universal Service Obligation (“the USO”). The USO is a legal requirement on the respondent to deliver letters 6 days a week and parcels 5 days a week to every address in the United Kingdom. OFCOM has fined the respondent 3 times since 2020 for failing to meet delivery targets. Those fines are substantial: £1.5 m in 2020, £5.6 m in 2023 and £10.5 in 2024[49]The respondent faces increasing competition when it comes to delivery of parcels and packages. Pressure to improve efficiency has increased due to that increased competition. It has sophisticated systems in place plan Delivery Walks (Geo and Pegasus). It uses those when carrying out revisions of the Walks. A full revision is a complicated matter which involves the use of the systems referred to and a dedicated Planner. The respondent also carries out more frequent “tabletop” revisions. Ad hoc revision could be needed if, e.g. there was a short term need to reallocate part of a Delivery Walk due to absences. The tabletop revisions were local revisions.[50]Revisions of Delivery Walks using these systems are far more frequent than they used to be. Mr Murphy’s unchallenged evidence was that revisions were now carried out far more frequently (about every couple of years rather than on the previous much longer 10-15 year cycle). Periodic revisions were always needed to take into account any changes to addresses which needed delivering to in an area, e.g. because a new block of flats had been built. We find they have happened far more regularly in recent years because the respondent needed to ensure that the Walks associated with a particular delivery office were designed in the most efficient way. That enabled the respondent to complete the Walks in the fewest total hours, potentially enabling a reduction in postal operatives required to deliver them and an increase in efficiency.[51]The majority of roles at the Eccles delivery office involved outdoor postal delivery. The respondent accepted that there were some roles at Eccles which did not involve outdoor delivery. There were some ringfenced posts for employees who could not complete outdoor tasks like Delivery Walks. There were also 2 x Postal Higher Grades (“PHGs”). Their roles included sorting out the post before delivery began. Once the deliveries were underway they undertook duties in the delivery office such as working in the secure locker and allocating the special delivery items via a PDA. Mr Ward’s unchallenged evidence was that their role also involved working on the customer service point, dealing with customers. Outline of events relevant to the claimant’s claims[52]We start with an outline of the events in the case. We will then set out in turn the facts and our conclusions on the harassment claim and the reasonable adjustment claim.[53]The claimant had worked for the respondent at the Eccles Delivery Office since he was 15. It was not disputed that prior to starting a period of sickness absence in November 2022, the claimant’s working hours were 05:00 until 12:42. Those had been his hours for a long time. It does not seem that there was any record of why the claimant started work earlier than most of his colleagues, other than a flexible working request he had made in August 2012 when his son was much younger. In any event, the respondent does not dispute that (whatever the reason for them might be) the claimant’s working pattern as at November 2022 and for a long time before that involved a 05:00 start and 12:42 finish.[54]The claimant would arrive at the delivery office to help one of the PHGs open it up at 05:00. He would then help sort the post as it arrived at the delivery office until around 09:00 when he would start his Delivery Walk. His Delivery Walk was close to the delivery office and was short enough that he could complete it by 12:42.[55]The claimant had followed that routine throughout his employment with the respondent. Following the same pattern daily reduced his anxiety. Starting and finishing early also reduced the amount of contact he had with crowds of people, which he found anxiety provoking. The early finish also meant he could get home to provide support for his wife who herself has issues with her health.[56]The claimant was absent due to ill health from November 2022 until his return to work on 25 February 2023. By the time he returned 2 significant things had happened. The first was that Mr Ward had become his line manager. The second was that the Delivery Walk he had been doing had disappeared. It had been absorbed into other Delivery Walks as a result of a revision of the Delivery Walks at the Eccles delivery office early in 2023. 2 other Delivery Walks were also absorbed into others at the same time.[57]The claimant returned to work on a phased basis in February 2023. He worked 50% hours in weeks 1 and 2, 75% in week 3 and then returned to full hours in week 5. During week 3 (week/commencing 13 March) the claimant started partially delivering on a Delivery Walk called Bindloss. By week 5 (w/c 27 March 2023) the claimant was completing the Bindloss Delivery Walk. He was at that point starting work at 05:00.[58]On or around 11 April 2023 the claimant asked Mr Ward to complete an OH referral. The claimant’s view was that Mr Ward had lied on the OH referral form. He started a period of self-certified sickness absence from 18 April. On 25 April 2023 he started a period of 4 weeks sickness absence certified as being due to “Stress at Work”. There was an altercation between him and Mr Ward on 25 April 2023 when the claimant handed in his fit note. On or around 26 April 2023 the claimant raised a grievance against Mr Ward.[59]The claimant was absent due to sickness from 18 April 2023 until February 2024, i.e. for the whole of the period covered by this claim. We come back to our findings of fact about the alleged acts of harassment by Mr Ward in May 2023 when we come to discuss that claim. The next significant incident in April/May 2023 was that Richard Carberry was appointed as the claimant’s stand-in manager while the grievance against Mr Ward was ongoing. Mr Carberry carried out a Disability Risk Assessment with the claimant on 3 June 2023 and arranged an OH referral. OH reports were obtained on 7 June, 27 July and 29 August 2023. They all reported the claimant was unfit to return to work. They referred to severe depression and severe anxiety with issues at work being identified as needing resolution before he could return. He continued to file fit notes. They referred to stress at work and/or to depression as the reason for absence.[60]The OH report of 29 August 2023 (p.145) refers to the claimant reporting that “management have advised that his hours will change on a return to work”.[61]On 7 September 2023 the claimant and Mr Carberry met at the Eccles delivery office to discuss his start time of 05:00. Clare Drummond of the CWU attended as the claimant’s union representative. The claimant confirmed his work pattern and said he would like his start time to be as near to 05:00 as possible. He noted that the PHG’s start time was staying at 05:00 and queried why it was only his start time that was changing from 05:00. He said he felt he was not being treated fairly given that others had had adjustments made.[62]It appears that Mr Carberry then spoke to Mr Ward. We did not have a copy of their meeting notes in the Bundle. However, the email exchange between Mr Carberry and the claimant at pp.180-181 confirmed that Mr Ward had told Mr Carberry that the claimant would need to “fall in line with the new office structure as the unit cannot support a delivery duty that starts at 5am due to inefficiency.” That email confirmed the claimant’s new start time would be 06:45 except for Tuesdays when it would be 07:30. Those emails were undated. Doing our best with them it seems to us probable that they date from on or around the September meeting because the surrounding emails refer to sending the claimant the meeting notes.[63]On 29 September 2023 Mr Carberry wrote to the claimant to confirm that his request to continue working at 05:00 was refused and that he was “required to start in line with all other delivery OPGs at the Eccles Delivery Office”. The explanation for that decision was that “there is little we can offer at this point due to the issues of having a delivery OPG starting his duty at 5 a.m. which impacts the USO.”[64]The claimant continued on sickness absence until February 2024. However, the OH report of 15 November 2023 (pp.156-157) said that he would be fit to return on a phased return with a start time between 5-6 a.m. That report said that 6.45 a.m. starts would affect the claimant’s mental health leading to further absenteeism.[65]The next OH report was dated 11 December 2023. It confirmed that at that point the claimant was fit to return to work immediately if recommended adjustments could be implemented. It did not specify what those reasonable adjustments were but referred back to the 15 November report, noting that that report set out adjustments recommended with regard to start times.[66]That OH report was produced after the claimant issued his claim on 10 December 2023. However, we find that it confirms that the position as to the claimant’s fitness for work and recommended adjustments at the point the claim was issued remained the same as that set out in the 15 November 2023 OH Report.[67]Moving on to the specific claims brought by the claimant. First is the harassment claim. The Harassment Claim[68]The claimant’s harassment claim was about what happened after he started his second period of sickness absence on 18 April 2023. His case is that while off sick he was getting “constant emails and letters telling me I have to change my hours”. He says that he felt harassed and asked them to stop.[69]In submissions the claimant confirmed that the “unwanted conduct” he relied on in the harassment claim were the communications from Mr Ward around 9-11 May 2023. There were also texts and emails later in 2023 between the claimant and Mr Carberry and with Mr Trebbi, the manager appointed as the claimant’s grievance manager. The claimant confirmed he was not relying on them as part of his harassment claim.[70]We accept that when it came to the claimant’s file, the only paperwork Mr Ward had to go on was the flexible working request from 2012. He accepted that the claimant’s working hours started at 05:00 but did not know why. He confirmed in evidence that he did not ask previous managers why the claimant was on the work pattern he was. Based on the evidence before us, we find Mr Ward did genuinely believe that the claimant’s different working pattern resulted from a flexible working request being granted in 2012. We also accept that Mr Ward had been asked to review all flexible working arrangements at Eccles in light of the 2023 Revision.[71]Mr Ward accepted that the claimant had raised a grievance about him around 26 April 2023. He said he did he did not know about that when he wrote to the claimant on 9 May 2023 and that once he was told to, he stepped back from dealing with the claimant.[72]Based on the documents in the Bundle and the emails provided by the claimant on Day 2 of the hearing, we find the sequence of events started with Mr Ward’s letter of 9 May. That letter invited the claimant to attend a meeting on 12 May 2023 because the respondent was reviewing all flexible working hours in place. It said the claimant had “flexible working hours” which were overdue for review. After that, we find the sequence of events was as follows:a. On 10 May 2023 at 18:35 the claimant wrote an email about the 9 May letter. He told Mr Ward in forthright terms he would not be attending the meeting on 12 May. He said that Mr Ward already knew that he was raising a grievance against him and had told “no truth” in the occupational health referral he had made.b. Mr Ward responded to that email on 11 May at 14:51. His email did not directly engage with the points made by the claimant in his email. He explained the purpose of the meeting referred to in his letter of 9 May was to discuss the claimant’s flexible working arrangement. He said the last flexible working application on the claimant’s file was dated 17 August 2012 so was overdue for review. He confirmed he had posted a flexible working application form to the claimant along with a copy of the flexible working policy.c. We find the claimant was angered and frustrated by that email. He responded at 15:43 the same day to say that he wanted to wait to speak to the grievance manager about the matter. He said he was due to speak to them the following week. He said he didn’t know why he was being asked to fill in a form about his hours because he had explained the reasons for them to Mr Ward when they met. We accept the claimant was confused and frustrated by the reference to flexible working. His view was that his duty started at 05:00 and that was nothing to do with a flexible working request made 11 years earlier when his son was still a child.d. Mr Ward emailed back at 16:06 to thank the claimant for his “prompt response” and explain they had been asked to review all flexible working arrangements and that was why the process was necessary and why he had sent the claimant the form. He said that the claimant’s flexible working arrangement was overdue for review. Again, his email did not directly engage with the concerns raised by the claimant other than to say the review of flexible hours was “independent of any other processes” which we take to be a reference to the grievance.e. The claimant emailed later that same day to say he had just received the flexible working form which Mr Ward had sent in the post. It is clear from his email that he was further confused and frustrated by the form, which asked him why he wanted to change his hours. He pointed out he did not wish to change his hours. He confirmed he would not be completing any form. He also pointed out that he was signed off work with stress and that the letters and emails were adding to his anxiety. He asked Mr Ward to leave him to deal with the grievance. His email finished in capitals “I DON’T WANT TO CHANGE MY HOURS”.f. There is no evidence Mr Ward communicated with him after that email within the context of the harassment claim.[73]When it comes to issue 3.1. in the List of Issues, we find that Mr Ward sent the claimant 2 letters and 2 emails about the review of his flexible working arrangements between 9 and 11 May 2023.[74]For the respondent, Mr Peacock accepted that those communications were unwanted (Issue 3.2). We find that they were.[75]The next question for us is whether the conduct was disability related (Issue 3.3). We accept the claimant was at the relevant time a disabled person. We also accept the claimant was off sick when the conduct occurred. We do not find that that context is enough to make the conduct disability related. We accept Mr Peacock’s submission that Mr Ward was writing to the claimant because he understood the flexible working arrangement needed review, and that his communications were not related to the claimant’s disability. There was nothing in them which referred to the claimant’s disability and there was no suggestion that Mr Ward was writing to the claimant because he was off sick.[76]We find that the unwanted conduct by Mr Ward was not disability related which means that the claimant’s claim of disability related harassment fails. However, as is usual, in case we are wrong about that issue, we have gone on to make findings and decide issues 3.4 and 3.5[77]When it comes to issue 3.4, we did not understand the claimant to be suggesting that Mr Ward had a harassing purpose in sending those letters and emails. For completeness, however, we set out our decision on that point. We accept that Mr Ward genuinely, albeit mistakenly, believed the reason the claimant started at 05:00 was a historic flexible working arrangement agreed in 2012. We also find he had been tasked with reviewing all flexible working arrangements. We find that was his purpose in writing to the claimant. Although he initially carried on trying to explain why the flexible working arrangement review was necessary despite the claimant’s objections, he stopped emailing him when the claimant asked him not to in the claimant’s last email of 11 May. We find Mr Ward did not in sending the 2 letters and 2 emails have the purpose of seeking to violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him.[78]The final issue is whether Mr Ward’s conduct had a harassing effect (Issue 3.5). In deciding that, we need to take into account the claimant’s perspective, the other circumstances and whether it was reasonable for the conduct to have a harassing effect. In reaching our decision we bear in mind what the case law tells us, which is that not all upsetting or offensive conduct will have a harassing effect. We must not cheapen the significance of the words “violating dignity”, “humiliating, hostile, intimidating and offensive” in section 26 of the Equality Act 2010.[79]For the respondent, Mr Peacock accepted that the claimant did perceive the exchange of emails and letters to have a harassing effect.[80]When it comes to the circumstances in which the communications took place, they did so at a time when Mr Ward knew the claimant was off sick, the fit note stating “work related stress” as the reason. The last face to face interaction between them on 25 April 2023 when the claimant had handed in his sick note had been acrimonious (p.106). The claimant had indicated at that interaction that he would be putting a grievance in against Mr Ward. We find that Mr Ward had not been formally notified of a grievance against him at the time when he sent the emails and letters on 9-11 May 2023. He had not yet been told to step back from engagement with the claimant because of a grievance by the claimant against him. The claimant in oral submissions accepted he did not know when Mr Ward would have been officially informed that the grievance had been raised.[81]Turning to whether, viewed objectively, it was reasonable for Mr Ward’s conduct to have a harassing effect. We find the volume and persistence of the communications from Mr Ward was not the constant and prolonged communication the claimant suggested in his claim. It happened over the course of 3 days and consisted of 2 letters and 2 emails from Mr Ward. We accept, however, that harassment does not have to consist of prolonged and persistent unwanted conduct. A single act can amount to harassment.[82]Turning to the content of the communications from Mr Ward. We do not think the first letter sent on 9 May 2023 was in any way inappropriate. Mr Ward had been tasked with reviewing flexible working arrangements at Eccles. It seems to us it would be unfair not to involve the claimant in any review that Mr Ward was carrying out, even if he was at that point absent due to work related stress.[83]We find the process that Mr Ward was trying to carry out was a reasonable managerial process in reviewing what he understood to be a long standing flexible working arrangement. The language of his responses to the claimant is neutral. It does not expressly say that the claimant “has to change his hours” as the claimant alleged. It tries to explain what the review of flexible hours will entail. We do find that Mr Ward was trying to move the process of reviewing what he understood to be a historic flexible working arrangement forward. We accept that another manager might well have decided to step back from engaging with the claimant given the claimant’s email of 10 May. We do not think that is sufficient to make it reasonable for the emails that followed to have a harassing effect as defined by s.26 of the Equality Act 2010. When the claimant asked Mr Ward expressly to stop emailing him, Mr Ward did so.[84]In those circumstances, while we accept that the communications from Mr Ward did cause the claimant genuine upset and frustration, we find it was not reasonable for them to have had the harassing effect required by s.26. That means that even if we had found the conduct was disability related, the harassment claim would have failed because the conduct had neither a harassing purpose nor a harassing effect.[85]The claimant’s harassment claim fails. The reasonable adjustment claim[86]Moving on to the reasonable adjustment claim. During the hearing the relevant PCP was refined and agreed to be:• The standard start of Duty time for a Delivery Postal Worker at Eccles Delivery Office was 06:45.[87]Mr Peacock confirmed in his submissions that the respondent conceded that:a. it applied that PCP from 29 September 2023 (Issue 4.2)b. the PCP put the claimant at the substantial disadvantage, specifically that adjusting the start time to after 06:00, put C to a substantial disadvantage in so far as it increased his anxiety (issue 4.3)c. at the point the PCP was applied, the respondent had knowledge of the claimant’s disability and that the claimant was likely to be put at that substantial disadvantage (4.4)[88]That meant that whether the reasonable adjustment claim succeeded depended on whether there were steps it was reasonable for the respondent to take to avoid that disadvantage.[89]The claimant’s case was that avoiding the disadvantage could only be avoided by an earlier start-either 5 or 6 a.m. That would have to be at Eccles. The claimant agreed in submissions that relocation was not an option for him. A move to a new delivery office would be a far more significant change than a change in hours, affecting not only his working day but things like his journey into work, where he parked and familiarity with the area he was working in. Routine in relation to those things was crucial to the claimant and any change to a different location would increase his disadvantage rather than avoid it.[90]The question then is whether it was reasonable for the respondent to vary the PCP to allow the claimant a start time of 05:00 or (at the latest) 06:00. The claimant’s evidence was that he could cope with a change to 06:00 (allowing for a transitional period). That is supported by the OH report on 15 November 2023. Doing so would avoid the substantial disadvantage conceded by the respondent.[91]Rentokil Initial UK Ltd v Miller makes it clear that the burden passes to the employer to show that it would not have been reasonable to expect them to make an adjustment once the claimant has established a case that the duty arises and identified a potentially reasonable step. We find the claimant has done so in this case. The burden is then on the respondent to show it would not have been reasonable to make the adjustment.[92]We accept that the Delivery Walk the claimant had carried out prior to his absence in November 2022 was no longer current, having been absorbed in the 2023 Revision. That Walk was not at that point available for the claimant to simply slot back into.[93]We accept the respondent couldn’t have a work pattern which involved a postal operative starting their Delivery Walk earlier than everyone else delivering letters. They would have to start around 9 a.m. If the claimant had an earlier start time for his shift (whether 05:00 or 06:00) he would have to have an earlier finish time for his shift. Any Walk would have to be done between around 9 a.m. and the end of his shift. If 5 a.m. then by around 12:42 and if 6:00 am by around 13:42. That would require him to have a shorter walk.[94]We do not accept that the claimant’s previous Walk having disappeared as a result of the 2023 Revision made it unreasonable to look again at the Delivery Walks. The evidence was that by 2023 Revisions of Delivery Walks occurred every 1-2 years. We accept it was not a straightforward process to do so. However, the mechanism to do so was in place and the respondent has not provided sufficient evidence that the inconvenience of doing so was sufficient to render having another look unreasonable. We do not accept that the fact that there had been a recent revision would make it unreasonable to look again at the Eccles Delivery Walks and see whether a shorter Walk could be created as an adjustment to allow the claimant to have an earlier start time.[95]We accept Mr Peacock’s submission that the “surplus” deliveries created by the claimant having a shorter Walk would have to be delivered by someone. Giving the claimant a shorter walk would therefore have a knock-on effect on colleagues.[96]We did not understand Mr Peacock to suggest that it would not be reasonable to give the claimant a shorter round because his colleagues who were asked to pick up the surplus created might object. Even if it was, when it comes to that, the EHRC Code at para 6.35 says that it is unlikely to be a valid defence to a claim under the Act to argue that an adjustment was unreasonable because staff were obstructive or unhelpful when the employer tried to implement it.[97]The respondent relied heavily in evidence and submissions on the need to comply with the USO as a barrier to taking steps. When it comes to our findings of fact relevant to this issue, we accept the importance of the USO to the respondent. The claimant suggested that in reality, the respondent paid little respect to the principle of public service enshrined in the USO and that it was regularly breached. We find, however, that whether from a respect for the principle of public service or from a need to avoid the hefty fines it incurred if it failed to meet the USO requirements impacting its profits, the USO was a priority for the respondent. While there might be occasions when Duty Walks were not completed because of unforeseen circumstances, we accept Mr Peacock’s submission that the respondent could not “plan to fail” in the sense of sending someone out on a Duty Walk which the respondent knew they could not complete in the time allocated to it.[98]We do not find the respondent has provided sufficient detailed evidence that having to absorb any “surplus” (created by the claimant having a shorter walk) into the other Delivery Walks would have prejudiced the Eccles delivery office’s ability to meet the USO. Although we accept that the trend appears to be towards having less “slack in the system” due to staff reductions, there was no clear evidence that the system was at breaking point.[99]We find therefore that it would have been a reasonable step for the respondent to use the sophisticated systems available to it to design a route which the claimant could complete in a shorter time slot than his colleagues. We accept there was reduced ability to absorb “surplus” time by 2023. Allowing the claimant to start at 05:00 would have required the respondent to re-distribute a “surplus” of 1 hour 45 minutes. We do not think that would be reasonable, but we do find it would have been a reasonable step to revise the Delivery Walks to allow the claimant to start his shift at 06:00 and end his shift at 13:42 leaving 45 minutes to be absorbed in other Walks. The respondent has not provided an adequate explanation as to why that step was not reasonable.[100]The respondent submitted that there was another element which made a start earlier than 06:45 unreasonable. Its contention was that it could not let the claimant start his day at 05:00 or 06:00 if he had no tasks to fulfil before 06:45. They could not pay him to come in early and do nothing. We do not accept that submission. We accept the claimant’s evidence about the tasks he had been doing for years when he came in at 05:00, including opening up and helping the PHG sort. There was no evidence that anything had changed which would require a decrease in that work. In fact the evidence was to the contrary, with the respondent confirming that employees were paid overtime to come in early to help out.[101]Even if we accept that the need for that had reduced somewhat because of the reduction in mail and another PHG having been moved to the 05:00 duty, the respondent has not satisfied us that there would be insufficient productive duties for the claimant to carry out if he started at 05:00, and even less so if he started at 06:00. The PHG who was moved to start working at 05:00 had previously started work at 06:00. In the absence of evidence about a reduction in the tasks to be done before delivery started, we find that there would have been sufficient tasks for the claimant to make it a reasonable step for him to start work at 06:00.[102]Our conclusion then is that it would have been reasonable for the respondent to agree in September 2023 that the claimant's start time should be 06:00 rather than 06:45. We find that the claimant would have been able to transition to that start time of 06:00 with support from the respondent. We heard evidence from the claimant about how he managed such a transition. It seems to us that that would also be consistent with the November 2023 OH Report’s conclusions that a start between 05:00 and 06:00 would be a reasonable adjustment. It would have been a reasonable step for the claimant also to return to work initially on a 05:00 start and then transition to a new permanent start time at 06:00. That period of adjustment would also have reduced the substantial disadvantage.[103]The reasonable adjustment claim succeeds.[104]If we are wrong that a permanent change to the claimant’s hours to 06:00 was a reasonable step, we find it would have been reasonable for the respondent to allow the claimant to work that pattern for a trial period to enable him to show that it would not lead to any jeopardising of the USO and that his time spent before 06:45 was productive.
Summary
[105]Our decision then is that the harassment claim fails but the reasonable adjustment claim succeeds. Approved by:
Summary
[1]The judgment of the Tribunal is that the respondent shall pay to the claimant without any deductions the sum of £12,925.59 as compensation for injury to feelings. That amount includes interest.[2]The Tribunal makes the following recommendation under s.124(2)(b) of the Equality Act 2010: the respondent must by 19 December 2025 write to the claimant to confirm that his current start time is 6 a.m. Approved by: