Mr S Abelidis v Public Health England and Miss C Bellamy: 2418020/2018

EMPLOYMENT TRIBUNALS

Case No 2418020/2018

Between

Mr S AbelidisClaimant

Public Health England and Miss C BellamyRespondent

Before

Employment Judge Howard

Date 23 February 2022

JUDGMENT

[1]The following claims are dismissed on withdrawal by the claimant:a. All the claims of direct disability discrimination (s.13 of the Equality Act 2010)

b. All the claims of discrimination arising from disability (s.15 of the Equality Act 2010)

c. All the claims of victimisation (s.27 of the Equality Act 2010)

d. Those claims of disability related harassment set out at paras 4.2 (c) to (g) of the original List of Issues (Annex A to this judgment) (s.26 of the Equality Act 2010)

e. Those claims of failures to make reasonable adjustments set out at paras 3.2

(a) to

(b) of the original List of Issues (Annex A to this judgment) (s.20/21 of the Equality Act 2010)

[2]The claimant’s claim of unfair dismissal fails. He was not constructively dismissed.

[3]The claimant’s claims of disability related harassment set out at paras 4.2 (a) and (b) of the List of Issues fail and are dismissed.

[4]The claimant’s claims of failures to make reasonable adjustments set out at paras 3.2 (c) to (j) of the List of Issues fail and are dismissed.

REASONS

[1]By a claim form received by the Tribunal on the 19 December 2018 the claimant claims that he was unfairly dismissed, and that the respondent discriminated against him in breach of the Equality Act 2010, the relevant protected characteristic being disability.

[2]This hearing was by way of a hybrid hearing. Miss McCann, counsel for the respondent, attended by CVP link throughout as did Mr Williams and Ms Dowling. The claimant and his representatives and the Employment Judge attended in person at the Tribunal.

[3]The agreed hearing bundle consisted of pages numbered 1-881 (“the Bundle”). In electronic pdf format it consisted of 917 pages. During the hearing additional documents were added, namely extracts form the website of the proposed mediator, TCM. References in this Judgment to page numbers are to the page numbers appearing in the bottom right-hand corner of documents in the Bundle rather than the page number in the pdf of the Bundle.

[4]In addition to the Bundle we had a helpful chronology and cast list which were agreed by the parties.

[5]The claimant is a disabled person by reason of a visual impairment. Before the start of the hearing on Day 1 the Tribunal clerk liaised with the claimant to ensure that the layout of the room did not put him at a disadvantage. We also ensured the claimant had additional time to find and read any documents he was referred to in the Bundle when giving his evidence. In addition, where appropriate Miss McCann, with the claimant’s agreement, read out the passages from documents in the Bundle about which she was asking cross examination questions.

[6]Both counsel provided written closing submissions. After an extended break at the beginning of the afternoon of Day 7 to enable the Tribunal to read those written submissions we heard brief supplemental oral submissions.

[7]The Tribunal sat in chambers on 27 September 2021 to deliberate on its decision. The Employment Judge apologises for the delay in finalising this judgment due to absences form the Tribunal and other demands on judicial time.

[8]A remedy hearing had been listed for 10 February 2022 but was postponed due to the delay in finalising this judgment. In light of our decision that all claims fail a remedy hearing will no longer be required.

The Issues

[9]The Bundle included a List of Issues (pp.91i-91k). Unfortunately, it was generic and lacking in detail. The Tribunal asked counsel to produce an amended draft list. The original version is attached at Annex A to this judgment. During the course of the hearing the claimant withdrew a number of the claims. The final List of Issues, reflecting those withdrawn claims, is at Annex B to this judgment.

[10]The respondent conceded that the claimant was a disabled person at all material times by reason of his visual impairment and that the respondent had knowledge of that at all relevant times. Miss McCann at the start of the hearing submitted that the issue of the claimant being a disabled person by reason of stress, anxiety and depression was not conceded. However, having read correspondence sent by those instructing her (of which she had not previously been made aware) she confirmed that the respondent also conceded that the claimant was a disabled person by reason of stress, anxiety and depression from January 2018 (but not before then). The respondent did not concede that it had knowledge of that disability. Evidence and Findings of Fact

Evidence

[11]The claimant gave evidence in support of his claim on Days 2 to 4 of the hearing. For the respondent we heard evidence from Mrs Elsita Payne (“Mrs Payne”), Mrs Donna Lloyd (“Mrs Lloyd”) and Mr Tony Sborgia (“Mr Sborgia”) on Day 5 of the hearing; from Dr Jem Rashbass (“Dr Rashbass) and Mr Tim Gentry (“Mr Gentry”) on Day 6 and Ms Jayne Richardson (“Ms Richardson”) on Day 7.

[12]Below we set out our findings of facts based on the evidence we heard and read. Background Facts

[13]The claimant worked for the North West Cancer Intelligence Service (“NWCIS”) from 6 July 2009. NCWIS was part of the NHS but by April 2015 it had been transferred to the respondent and re-named the National Cancer Registration and Analysis Service (“NCRAS”). At all material times the claimant was employed as Informatics (Senior Project Manager) with responsibilities for IT management. The claimant’s expertise is in Informatics (IT), information governance legislation (“IG”) and project management.

[14]Until June 2015 the claimant was line managed by Roger Hartley, Head of Registration. When Mr Hartley retired, Mrs Payne was appointed Head of Registration for the East Midlands and North West regions of NCRAS.

[15]The claimant was managing the IT team in Manchester and we find that on appointment to her Head of Registration role Mrs Payne in June 2015 became the claimant’s line manager and remained so until April 2016. The claimant in cross examination evidence was reluctant to accept that the claimant was his line manager except in name only. However, we accept her evidence that she did fulfil that role, authorising the claimant’s annual leave, expenses and carrying out his Mid-Year Review in November 2015.

[16]A restructure of the National Disease Registers (“NDR”) led to the creation of a national NDR IT Team. It replaced the previous regional IT structure. On 1 April 2016, the claimant transitioned into that team, which was led by Mr Gentry, Head of Technology. He was based in the Cambridge Office. The practical effect was that the claimant was line managed from Cambridge while working in the Manchester office. All the IT operations were consolidated and run from Cambridge, apart from the national help desk which was operated from Manchester. The help desk was the claimant’s responsibility.

[17]Because Mr Gentry was based in Cambridge we find that in practice Mrs Payne (and when she was on maternity leave Mrs Lloyd) retained a quasimanagerial role in relation to the claimant, specifically in relation to matters which would only be apparent and could only in practice be dealt with by a manager physically in the same office as the claimant, e.g. time-keeping. We do not suggest that this was a formal line management role. The respondent’s policies and procedures

[18]The Bundle included the respondent’s grievance policy and associated guidance notes and its “Managing sickness related absence” with supporting guidance notes and a manager’s guide. We summarise the key points from those policies below. Grievance policy and procedure

[19]The grievance policy and procedure (pages 145-149) is amplified by the guidance notes (pages 150-178). We find the key points of relevance to the issues in this claim are:• Grievances should in the first instance be resolved informally. An informal grievance need not be raised in writing. It should be raised in the first instance with the employee’s line manager unless it is inappropriate to do so in which case the employee should approach the designated HR business partner or HR caseworker.

• An informal grievance should be dealt with by an informal meeting on a one-to-one basis and should result in an agreed action plan, a copy of which must be provided to the member of staff.

• If the aggrieved individual is not satisfied with the outcome of the informal stage (or with the implementation of the action plan agreed at the informal stage) they may submit a formal written grievance within ten working days of the informal meeting/the timescale set out in the action plan.

• A formal grievance should be initiated by completing the grievance record form in full (pages 164-165).

• The first stage of the formal process is a stage one grievance meeting. The stage one grievance manager should be at least two levels removed from the employee concerned, i.e. their reporting manager’s manager. However, the director of HR can nominate alternatives with sufficient knowledge and appropriate level of authority to consider the grievance.

• The stage one manager may investigate matters prior to the stage one hearing but is not required to do so. Instead the grievance hearing can be used to investigate and obtain full details. In those circumstances the stage one manager may adjourn the grievance meeting so a full investigation can take place before making their finding on the grievance.

• At any stage mediation may be appropriate but only where all parties involved agree to that.

• In the formal grievance process, the evidence given by individuals may in exceptional circumstances have to remain confidential. In those circumstances where confidentiality is necessary that will be explained to the member of staff and an appropriate summary of the evidence gathered will be given to the member of staff.

• The stage one grievance meeting should be held as soon as practically possible with an aim for this to be within ten working days but it will be delayed if there is a need to carry out prior investigation.

• The stage one manager will communicate the outcome of the grievance at the end of the grievance hearing and in writing within five working days or, by agreement, longer if it is necessary to obtain further information.

• If the stage one manager does not give an answer within the agreed time or if the answer is unacceptable the employee may refer the grievance formally in writing within ten working days of the stage one outcome to the final stage of the procedure. That “grievance appeal” is initiated by the employee using the grievance record form. The membership of the appeal panel depends on the seniority of the member of staff raising a grievance. Each one includes an external independent member, a senior management member and staff side/trade union representative. The appeal is a review not a re-hearing of the original grievance. Managing sickness related absence policy

[20]The respondent’s “Management of sickness related absence and supporting attendance at work” policy (“the sickness policy”) (pages 179-184) is supported by guidance notes (pages 185-199) and a manager’s guide to managing sickness absence (pages 200-230). We find the key points of relevance to the issues in this claim are:• On return to work after each episode of sickness the employee’s manager must hold a return to work meeting and complete a sickness form. Ideally that should take place on the employee’s first day back to work. One purpose of that discussion is to consider whether an OH referral is needed, for example where the staff member requires further assessment or support or where adjustments are required.

• If an absence is likely to continue beyond three working days, the employee should contact their line manager on the third day to inform them that the absence is continuing and where possible give an anticipated date of return.

• A fit note is needed where the absence continues beyond seven calendar days.

• During extended periods of absence, it is important that the employees keep their line manager informed of progress and likely date of return. The expectation is that line management and staff members will, where practicable, keep in touch via telephone at regular intervals. That should be agreed between the manager and the employee from the outset of any period of long-term sickness.

• Work-related illness or injury should be reported immediately to line management.

• The process for managing short-term absences starts with an informal meeting progressing to first, second and then third formal meetings. Dismissal will be considered at that third meeting where an employee’s attendance has not improved.

• Long-term sickness absence is defined as absence lasting more than four consecutive weeks (paragraph 2.3 page 186):

• Long-term absence is dealt with at section 10 of the guidance notes: o Long-term sickness absence needs to be assessed individually in each case with reference to OH and HR, particularly in relation to the EqA and the respondent’s reasonable adjustments policy and guidance notes. o It is essential for line managers to keep in touch with staff members during their absence in order to make appropriate arrangements for support during sick leave and on return to work (10.2). o In most circumstances a long-term sickness review meeting should be arranged at a suitable time when it is known that a period of sickness absence is likely to be prolonged. The employee will be given at least five working days’ notice of the meeting and have the right to be accompanied. That meeting can take place at a mutually convenient location (10.3). o The purpose of the meeting is to ensure that members of staff do not feel isolated, to arrange a referral to OH if necessary, to prepare for return to work (10.4). o When the reason for absence may be stress (whether work related or personal) a stress assessment should be discussed immediately if possible and arranged for the appropriate time (10.5). o Long-term sickness meetings should be arranged throughout the period of absence as appropriate as a means of supporting, keeping in touch and putting plans in place for the eventual return to work (10.8). o Ultimately if it become apparent the staff member is not fit to return to work and will not be within a reasonable timeframe and the absence cannot be sustained a further long-term sickness meeting should be arranged to discuss next steps, including amending job description, changing work hours, exploring whether work of a different kind or other suitable posts are appropriate (10.9). o If a return to work is not possible and OH is supportive an application for ill health retirement may be made.

[21]At appendix 2 to the guidance note is a flowchart for management of longterm sickness absence (page 198). It provides as follows:• A long-term sickness review meeting is to be held after 4-6 weeks’ continuous absence depending on the circumstances or sooner if stress related.

• Further long-term sickness review meetings should be held at regular intervals depending on the individual circumstances.

[22]The manager’s guide (pages 200-230) consists of nine pages of guidance followed by template letters for a manager to use. Of relevance to the issues in this case:• When it comes to sickness absence review meetings for long-term absence (paragraph 12): o Managers should conduct regular sickness review meetings. The meetings ensure that regular contact is maintained and that managers are kept up to date with the staff member’s progress towards returning to work. o The frequency of these reviews can be set in line with HR/OH advice and the individual’s preference but should not usually be less than every three months. o An HR representative should attend the meeting. o The purpose of the sickness absence review meeting is not to “punish” staff for being unwell or to question whether absences are for genuine reasons but to ensure they do not feel isolated when absent from work and to provide any support that can be put into place to assist them to return to work as soon as possible. o During the meeting the manager should give an update on any news or developments from the department since the last meeting. o Employees should give an update on their progress and when they might be fit to return to work. o If an OH referral has not been made that should be discussed or, if one has already been made, the results should be discussed. o The manager should clarify next steps, the aim being to identify ways in which the employer can assist the employee to return to work.

• Paragraph 14 the manager’s guidance deals with “management of workrelated stress”. It provides that any staff member at a heightened risk of suffering from stress at work should complete a stress risk assessment with their manager and an action plan should be generated. A risk assessment may also be recommended by HR, Occupational Health or by their line manager.

[23]The claimant suggests in his witness statement (paragraph 77) that the respondent’s policy in relation to Occupational Health (“OH”) referrals requires consent. He refers to page 208. The paragraph in relation to management of longterm absence refers to the manager and HR adviser explaining the process for an Occupational Health referral if one has not already been made and “obtaining consent and information from the staff member to do so”. That is in the context of a long-term sickness absence review meeting. Paragraph 9.4 of the respondent’s mental health and wellbeing policy also refers to obtaining the employee’s consent when referring to Occupational Health. The Occupational Health form itself (e.g. pages 481-483) refers only to the employee needing to be made aware of the referral rather than requiring their consent.

[24]If we are wrong, and the policies do mean that consent is required for such a referral when an employee is on long term sickness absence or in the context of mental health issues, the OH referral made in December 2017 in this case was not made in either of those circumstances. Our finding therefore is the claimant’s explicit consent for the referral made to OH in December 2017 Occupational Health was not required, i.e. a management referral can be made so long as the employee has been informed and is aware of the referral. That seems consistent with the fact that there is no requirement for the employee to countersign the management referral to Occupational Health to give their consent. Disability

[25]The claimant was diagnosed with bilateral optical neuropathy in 2000 and was registered with a severe visual impairment in 2004. He uses visual aids, a handheld magnifier and a monocular to read documents, books and newspapers. The respondent concedes that all material times the claimant was a disabled person for the purposes of s.6 of the Equality Act 2010 (“EqA”) by reason of that visual impairment. It also concedes that it had knowledge of that disability at all material

[26]The claimant also says he was a disabled person for the purposes of the EqA by reason of stress, anxiety and depression from January 2018 to October 2018. The respondent concedes that the claimant’s mental impairment constituted a disability from January 2018 onwards. However, it denies that it knew - or ought reasonably to have known - that he was disabled by reference to that mental impairment or that he was placed at a substantial disadvantage by reference to that disability any provision, criterion or practice (“PCP”) it applied to him. The claimant’s working relationship with Mrs Payne

[27]During the hearing we heard a substantial amount of evidence about incidents preceding those complained about in this case but which are not in themselves alleged to be acts of discrimination or acts contributing to the claimant’s alleged constructive dismissal. We do not make detailed findings about those specific incidents. However, we did find that evidence of assistance in making findings about the working relationship between the claimant and Mrs Payne. We also found that evidence of assistance in assessing the relative credibility of the claimant and Mrs Payne and the reliability of their evidence to this Tribunal.

[28]We find that the working relationship was an uneasy and, at times, a fraught one. That was not significantly in dispute. We find that Mrs Payne found the claimant at times unresponsive when she was seeking to engage with him. We find the claimant found Mrs Payne to be demanding and felt that she was seeking to undermine him (see, e.g. the claimant’s email to Mr Hartley in May 2015 pp.275a-b). We find that the problems between them dated back at least to 2014 when Mrs Payne was appointed as Mr Hartley’s deputy.

[29]We find that the claimant was suspicious of Mrs Payne’s motives at least from 2014 onwards and tended to view her actions in negative terms. We heard evidence, for example, about a temporary office move in March 2015. The claimant’s case was that Mrs Payne had failed to take his visual impairment into account when arranging that move. We find, however, that Mrs Payne had taken steps to involve the claimant and his team in advance of the move so the claimant’s needs could be taken into account and it was the claimant who did not engage with that process. We also find that there were sound explanations for other actions taken by Mrs Payne complained of by the claimant, such as his “exclusion” from the Isle of Man project in April 2017 and his “exclusion” from the Sheffield Office by Mrs Payne in May/June 2017.

[30]We find the claimant’s tendency to view Mrs Payne’s actions (and those of the respondent more generally) in negative terms was reflected in his evidence at the Tribunal. We found him reluctant to concede that there might be other valid perspectives on events than his own and unwilling to accept any criticism of his own actions. We find he was particularly unwilling to view any of Mrs Payne’s actions in a positive light. We find that this undermined his credibility as a witness and the reliability of his evidence.

[31]We find that Mrs Payne was not alone in experiencing difficulties in her interactions with the claimant. At p.421 in an email chain between Jane Jones, Mrs Lloyd and Mrs Payne from May 2017 Ms Jones refers to the claimant as “having a cob on” and ignoring her. However, it does seem to us that the claimant had a particular issue with Mrs Payne. By the time of the events about which we make our detailed findings below (i.e. from Mrs Payne’s return from maternity leave in May 2017), we find that the claimant had a fixed view that Mrs Payne (in collusion with Mrs Lloyd and/or Ms Richardson) had an agenda against him seeking, ultimately, to have him removed from employment. That is reflected, for example, in his unsent email to Dr Rashbass (pages 554-555) in January 2018. Even though he did not know who had raised concerns about his eyesight deteriorating with Ms Richardson, the claimant was absolutely certain that it was Mrs Payne and was also absolutely certain that there was no prospect that she had done so out of genuine concern for him or as a result of a duty of care towards him.

[32]We reject the claimant’s suggestion that Mrs Payne, Mrs Lloyd and Ms Richardson were in some way conspiring or acting “in cahoots” against him. We accept their evidence that Mrs Payne did not know Mrs Lloyd until she took on her role as her maternity cover. We also accept their evidence that neither of them knew Ms Richardson well. She was based in Cambridge whereas they were based in the North West and the East Midlands and she had no line management responsibility in relation to either of them. Her primary role was predominantly to deal with managing the transition of the respondent from the NHS to PHE. However, we find that she had a role as a senior manager whose views were sought as a “sounding board” by managers within the respondent and, specifically, she acted as a liaison or “gateway” between managers and the respondent’s HR department.

[33]We considered whether the email at p.421 supported the claimant’s suggestion of collusion against him. Mrs Lloyd responds to Ms Jones by saying: “He is probably upset he is having to work”. We find it does not. Although Mrs Payne started the email trail her email is about managerial matters and makes no reference to the claimant nor does she join in the comments about him. Ms Richardson is not part of the email exchange at all.

[34]For the avoidance of doubt the claimant did not, through the evidence we heard about the events no longer part of his complaint, prove facts which if taken into account along with our findings below would have changed our decision about whether the burden of proof passed in relation to any of the discrimination complaints he still pursues. “Intercepting and monitoring” the claimant’s timesheets (July/August 2017)

[35]Mrs Payne was on maternity leave from 13 June 2016. We accept her evidence that she returned from maternity leave on 2 May 2017. The respondent accepted that it had for a period of time monitored the claimant’s working time to ensure it tallied with what he was inputting on his flexi-time form. The claimant suggested that monitoring had been for a period of four months from April to July 2017.

[36]The monitoring was recorded on a spreadsheet (pages 423-425). It recorded the claimant’s flexitime start time, flexitime lunch breaks times and flexitime finish times. Alongside those it recorded his “real” start time, lunch break time and finish time. There were entries for 13 dates. The first five were in April 2017 beginning with 6 April. The next eight ran from 13 July to 25 July 2017. We find that the monitoring was carried out partly by Mrs Payne but mainly by Ms McManus, who was the Registration Team’s secretary.

[37]We find that around May or June 2017 concerns had been raised with Mrs Payne by members of the Manchester team that the claimant appeared to be doing “short days” (i.e. frequently arriving after 10.00am but leaving before 5.00pm), yet taking flexi leave on a regular basis. Mrs Payne discussed this with Mrs Lloyd, who had been her maternity cover and who was still at that point covering the Head of Registration role in relation to some matters, Mrs Payne having only just returned from maternity leave. Mrs Lloyd confirmed that similar concerns had been raised to her while Mrs Payne was off. They therefore approached Ms Richardson. We find that Mrs Richardson acted as a liaison between managers and HR and there was nothing unusual in Mrs Payne seeking her advice on this issue It was Ms Richardson who pointed out that they could not take action based simply on hearsay and instead needed to ascertain whether there was evidence to support the suggestion that the claimant was working short days.

[38]We find that Mrs Payne and Ms Richardson also discussed who would carry out the monitoring. Mrs Lloyd was not based in the Manchester office and Mrs Payne moved between the Manchester and Sheffield offices. We find it was agreed that Ms McManus would carry out the monitoring if Mrs Payne was not in the Manchester office to do so. We find that Ms Richardson and Mrs Payne discussed whether it was appropriate for Ms McManus to be involved in the monitoring and that they were satisfied that she could be trusted to keep matters confidential. That was based on her role already involving handling sensitive information about personnel and financial matters.

[39]We accept Mrs Payne’s evidence that although the spreadsheet includes dates in April the monitoring was only carried out in July 2017. We accept Mrs Payne’s evidence that she had not returned from maternity leave until May 2017 so could not have authorised the monitoring before then. We reject the claimant's suggestion that she had in some way been in touch and colluded with Ms Richardson and Ms McManus to set up the monitoring in April. We find that the monitoring was carried out over a period of less than three weeks. We find it plausible that there was a transcription error in the sense that a previous document was used which accounts for the April dates on the monitoring spreadsheet.

[40]The outcome of the monitoring was that there was insufficient evidence to raise concerns about the claimant accurately recording his flexitime. On that basis no further action was taken.

[41]We find that the procedure adopted of monitoring times of arrival and departure for a period of time was a procedure that had been adopted previously (page 733). That, we find, supports the suggestion that the claimant was not singled out in any way but that the respondent instead adopted standard practice in these cases. As a witness we found Mrs Payne to be measured and balanced and prefer her explanation that this was simply reasonable management action rather than some form of persecution of the claimant.

[42]It was put to Mrs Payne that as a potential disciplinary matter, it was strange that the issue had not been raised with Mr Gentry, the claimant’s line manager. She accepted in hindsight that it would have been better if Mr Gentry had been made aware of the situation. However, we accept her evidence that she did not do so at the time because the monitoring disclosed no cause for concern. We do not find in the failure to do so support for any suggestion that Mrs Payne was seeking to act behind Mr Gentry’s back in collusion with Ms Richardson. Events from 12 December 2017 to 14 December 2020 – OH referral and conversations with Mr Gentry and Ms Richardson

[43]On 12 December 2017 Mrs Payne emailed Ms Richardson in confidence to raise concerns that the claimant’s eyesight was deteriorating (p.467). She reported that these concerns had been raised with her by a couple of members of staff. They referred to an incident where the claimant had not been aware that a member of staff was stood with him until they spoke. Mrs Payne said she was not aware that the claimant’s eyesight had deteriorated so much. She did not know whether the claimant had raised this with Mr Gentry as his line manager nor whether any risk assessments or other assessments of the claimant’s needs had been done recently to ensure he had all the necessary support and equipment he needed. We find she was very conscious that the claimant was likely to react negatively if she raised the issue with him or if it became known that it was she who had raised the issue. We find that is why she suggested to Ms Richardson that the matter be raised in confidence with Mr Gentry.

[44]For the claimant it was submitted by Miss Barry that the allegations that the claimant’s eyesight was deteriorating were false. The claimant’s evidence (his witness statement paras 85 and 86) was that he was “absolutely sure” that these concerns had not been raised because of genuine concerns about his welfare. Although we accept that was the claimant’s view, we accept Mrs Payne’s evidence that as Head of Registration for the North West office she felt she was ultimately responsible for all staff based within that office even if their line management lay elsewhere. We also accept that, as she said in the email, she was genuinely concerned that the claimant’s eyesight may be deteriorating. That was based on concerns voiced to her by other members of staff and her own observations that the claimant was using a magnifying glass more frequently.

[45]We accept Miss McCann’s submission that there was other evidence which suggested the claimant’s eyesight may have deteriorated. First, similar concerns had been raised by Mrs Lloyd in confidence with Ms Richards and Mr Gentry in July 2017 (p.422). Second, the notes of the OH consultation on 25 January 2018 (p.529) record the claimant saying that “recently” he had had to lean closer to the screen to see. Although that wording was removed from the final OH report at the claimant’s request, we think it unlikely it would have been included by the OH practitioner in the contemporaneous record of their conversation if the claimant had not said it. We are clearly not in a position to decide definitively whether the claimant’s eyesight was deteriorating, nor do we need to for the purposes of this case. What we do find is that the evidence referred to in this paragraph supports a finding that the claimant’s eyesight may have been deteriorating. That in turn, it seems to us, reinforces our finding that Mrs Payne did have a genuine basis for raising concerns and was not making false allegations about the claimant.

[46]Ms Richardson confirmed by email she would speak to Mr Gentry and that Mrs Payne was not the first person to suggest that the claimant’s eyesight had deteriorated. We find that was a reference to Mrs Lloyd having raised similar concerns in July 2017.

[47]Ms Richardson spoke to Mr Gentry on 12 December 2017. She reported that she had received two independent expressions of concern about the claimant’s eyesight from the Manchester Officer. She suggested that it would be in accordance with the respondent’s duty of care to the claimant to make a management referral to “OH”. We do not accept, as the claimant suggested, that Ms Richardson “instructed” Mr Gentry to make the referral. She was not his line manager. We accept, however, that Mr Gentry followed her suggestion because of her role as a senior lead on workforce matters.

[48]Mr Gentry spoke to the claimant on the phone on 13 December 2017 before he submitted the OH referral. The claimant suggested that this was only to check his date of birth for the OH referral form. We prefer Mr Gentry’s evidence. We found him to be a sincere witness, willing to recognise matters he could not recall and to acknowledge when there was fault on his part. We find that the conversation was broader than suggested by the claimant and that Mr Gentry told him the purpose of the referral. We find that Mr Gentry told the claimant that Ms Richardson had suggested making an OH referral because colleagues had raised concerns. He did not name the colleagues because at that point he did not know who they were. Mr Gentry’s version of events seem to us more consistent with the wording of the claimant’s email to Ms Richardson on the following day asking “who said what” and “In what context or conversation” (p.474). If the conversation with Mr Gentry was limited to asking about his date of birth he would not have known to ask those questions of Ms Richardson.

[49]We accept that the claimant was inclined to dismiss concerns raised about his sight but also find that Mr Gentry thought that there were genuine concerns raised which meant that as an employer the respondent had a duty to ensure that the claimant’s sight was not deteriorating. In his cross-examination evidence, the claimant accepted that Mr Gentry made the reference out of genuine concern to ensure that the claimant was getting all the support he needed.

[50]In his evidence to the Tribunal the claimant said that he felt he had no option but to agree to the referral. We accept Mr Gentry’s evidence that although not enthused by the idea of the OH referral, the claimant agreed it was an opportunity to review the current impact of his visual impairment. He did not raise any objection in principle to the referral.

[51]On 13 December 2017, after his conversation with the claimant, Mr Gentry emailed the completed management referral form to OH (p.469). In the “reason for referral” section on the form (pp.470-471) Mr Gentry referred to colleagues raising concerns that the claimant’s eyesight was significantly more serious than Mr Gentry had realised and “seemingly deteriorating”. He explained he was concerned about the claimant’s wellbeing and that it was the respondent’s duty of care to ensure the claimant had all the support he needed. In the “information required” section, Mr Gentry ticked two boxes: “is the case covered by disability legislation and if so, what adjustments should be considered” and “is the employee likely to render reliable service and attendance into the future”. We do not accept that Ms Richardson had any part in deciding how that form was completed and which boxes were ticked.

[52]The claimant phoned Ms Richardson that same day. She was not in the office but he left her a voicemail and the following day she emailed him to suggest he call her on her mobile so she could find a quiet area to speak to him (p.471). He agreed to call her at 11 a.m. In his email he said that he needed Ms Richardson to “explain/clarify a couple of things” namely who had said what and in what context.

[53]There were no notes of the conversation on the 14 December other than those which the claimant emailed to himself on 21 December (p.500). We found Ms Richardson to be very precise in her evidence and willing to say when she did not remember. She did not try and evade questions. We found that she was a credible witness and find her evidence to be reliable. Where there was a direct conflict with the claimant’s evidence about what was said, we prefer Ms Richardson’s evidence.

[54]We find the conversations was a long one (Ms Richardson’s unchallenged evidence was that it lasted between 1-2 hours). Ms Richardson agreed that the claimant was angry during their conversation. We find that the central cause of that anger was that colleagues at the Manchester office had been talking about his disability behind his back. He was also angry that Ms Richardson refused to name the colleagues who had raised concerns, citing their desire for confidentiality as the reason for that refusal. We find that Mrs Payne and Mrs Lloyd had asked to remain anonymous. We also find that at that point Ms Richardson did not know the identities of those colleagues who had raised concerns with Mrs Payne and which she had passed on. We find that Ms Richardson told the claimant that the OH referral was meant to be a supportive process.

[55]The claimant says that 3 particular comments made by Ms Richardson during the conversation amounted to disability related harassment and contribute to a breach of the implied term. The first was her suggestion that the claimant’s eyesight was deteriorating. We do not find that she said that his eyesight was deteriorating. We find that what she told the claimant that concerns had been raised that the claimant’s eyesight was deteriorating – that was the reason for the OH referral. Ms Richardson’s evidence was that the claimant told her that he had a degenerative eye condition. The claimant denied saying that. We prefer Ms Richardson’s evidence on that point. We find he did say he had a degenerative eye condition and his eyesight was expected to deteriorate over time. We do not by that finding suggest that he agreed that his eyesight was at that point deteriorating.

[56]The second comment was Ms Richardson saying that the claimant’s colleagues were worried about him “walking in the dark”. Ms Richardson accepted she had said that and that she meant it literally not figuratively. Mrs Payne in her email (p.466) had raised concerns about the claimant travelling to and from the office on his own in winter. Miss Barry in her submissions suggested that no concern had been expressed in the past about the claimant’s commute to work. We find that is not entirely accurate. There had been an application for Access to Work which had been granted enabling the claimant to use a taxi to get to work (p.277 and p.599).

[57]Ms Richardson disputed that she had made the third comment attributed to her, namely that she had “urged the claimant to press for stem cell therapy”. She accepted that she had referred to stem cell therapy during their conversation. Her evidence, which we accept, was that the reference to stem cell therapy was in the context of discussing the benefits of the OH referral. We do find that Ms Richardson was seeking to promote the benefits of the OH referral and that in doing so she said that an OH report could put pressure on the claimant’s GP to take action. We accept that she said that one benefit of an OH recommendation was that it could potentially enable the claimant to access advice or resources based on possible new treatments. We find that she referred to stem cell therapy as an example of new scientific advances in medical treatment in a generalised way. We do not accept the claimant’s suggestion that Ms Richardson was seeking to give him medical advice about how his visual impairment could be treated.

[58]Since the claimant is saying that Ms Richardson’s comments are acts of disability related harassment, we record our findings about their impact on the claimant. The claimant did not record the contents of the conversation until his email to himself a week later (p.500). In doing so, he did not say that he found those comments particularly offensive. He does record that he told Ms Richardson that she did not know what she was talking about but that appears to be in relation to Ms Richardson suggesting his eyesight was deteriorating rather than her comments. He did not in any of his email to Mr Gentry or Ms Richardson in the days following the conversation refer to any of the three comments. He was happy to meet with them for a follow up conversation. We find that he was alarmed and distressed by what had happened, but that was focussed on the fact that he felt colleagues had been talking about his disability behind his back rather than on Ms Richardson’s comments. We do find that he felt that Ms Richardson was not in a position to comment on his visual impairment knowing so little about it, its impact on him and what medical care or treatment he was then receiving. Events from 15 December 2017 to 19 December 2017: the OH referral tick boxes and setting up the teleconference on 20 December 2017

[59]Although Mr Gentry had told the claimant that he had made a referral to OH on 13 December 2018, he had not provided him with a copy of the referral form. He sent it to the claimant on 18 December 2018 in response to the claimant’s request to do so. That request was prompted by Mr Gentry having emailed the claimant to tell him that OH wanted to see a copy of the claimant’s job description. The claimant’s email did not raise any objection in principle to the referral to OH nor does the tone of that email suggest any such objection (p.498-499).

[60]However, after he had seen the OH referral form, the claimant emailed Mr Gentry on the afternoon of 18 December to query why he had ticked the box requesting that OH advise on whether he was “likely to render reliable service and attendance into the future”. He asked for an explanation, given that neither Mr Gentry nor Ms Richardson had mentioned the second question and given that his previous sickness record was impeccable. He also recorded his alarm that colleagues at Manchester (he specifically named Mrs Payne) had not approached him to raise concerns about his eyesight seemingly deteriorating. He said he found it uncomfortable and strange that they had instead “escalated” matters to Mr Gentry and Ms Richardson (p.478).

[61]Mr Gentry responded by email that same afternoon (p.477). He gave his sincerest apologies for any unintentional distress caused. He said he had clearly been “tick box happy” and misunderstood that (second) request box. He confirmed he was in no way questioning the claimant’s sickness record and was merely looking to support the claimant with any workplace adjustments he might require. We find that accurately reflects Mr Gentry’s intention.

[62]Miss Barry in her submission made much of Mr Gentry’s acceptance in cross examination that he ticked that second box “intentionally” because he felt it was relevant. We did not understand Mr Gentry to mean that he was by ticking that box questioning the claimant’s sickness or attendance record. We accept his evidence that he intentionally (i.e. not accidentally) ticked the second box because he wanted to tick all the boxes that would help the claimant. We find he genuinely interpreted that second question (wrongly as he subsequently conceded) as being a question which would help the respondent identify what would enable the claimant to render reliable service in future. That seems to us consistent with his actions, which were to re-submit the OH referral that same afternoon and send a covering email to OH explicitly clarifying that he “did NOT (sic) require information on [the claimant’s] likelihood to render reliable service and attendance in future, this was ticked in error and I only seek to know what workplace adjustments he needs” (p.480). He also removed the reference in the OH referral to the claimant’s eyesight “seemingly deteriorating”.

[63]We do find that the claimant interpreted that second question very differently and thought (at least until Mr Gentry sent his email apologising and clarifying) that the respondent was questioning his attendance record or likelihood of future absence related to his visual impairment. He saw it, we find, as the respondent questioning his ability to continue doing his job because of his disability. However, on receipt of Mr Gentry’s email he responded to say “no problem”, he understood but it had been stressful.

[64]In that same email (sent at 16:23 on 18 December – p.477) the claimant said he wanted to set up a meeting with Mr Gentry and colleagues to understand the issues raised about his disability. He wrote that under the “disability act” (sic) he was entitled to know who said what about his eyesight behind his back and escalated those issues. He ended his email by saying “Let me reassure you it is not nice nor reasonable. Management discretion does NOT apply to the disability act”. We read the “it” being referred to there as the raising of issues by colleagues without referring to him first, rather than anything to do with the second box being ticked on the original OH referral form. This is the email which the claimant submits the respondent should have treated as a grievance (6(f) in the List of Issues). As the claimant accepts, it does not use the word “grievance” at any point.

[65]On the 19 December 2019 the claimant asked a number of colleagues in Manchester whether they had raised concerns about his eyesight deteriorating. The grievance investigation interviewed some of those concerned (Mrs Jones and Ms Stacey) who confirmed that the claimant did so in a confrontational manner and made his dislike of Mrs Payne evident in that conversation (pp.828).

[66]Mr Gentry emailed on 19 December 2017 to suggest that he and the claimant and Ms Richardson speak by phone on the following day. The claimant responded by email late afternoon on the 19 December to confirm he was happy to chat with Mr Gentry and Ms Richardson but that Mr Gentry had not answered his specific questions nor set up the meeting the claimant had demanded with the colleagues who had raised the issues about his eyesight. He said Mr Gentry needed to disclose the names of those individuals and be more specific about what was said. There was a further email exchange on the morning of the 20 December in which Mr Gentry said he did not know the names of the colleagues involved so could not set up a meeting with them to which the claimant respondent that Ms Richardson did know (pp.490-491). Events from 20 December 2017 to 10 January 2018 – teleconference on 20 December 2017 and request for Mrs Lloyd and Mrs Payne to meet the claimant

[67]On 20 December 2017 Ms Richardson, Mr Gentry and the claimant had a teleconference. In his formal grievance dated 8 August 2018, the claimant said that seeking to deal with matters by telephone was highly inappropriate. We find that the meeting took place by phone because waiting to set up a face to face meeting would have resulted in delay given that the participants were not in the same office. The claimant raised no objection to the meeting taking place by phone at the time.

[68]During the meeting the claimant said he felt there was a campaign of “Chinese whispers” against him. We find he was angry at that meeting. Ms Richardson sought to reassure him that the concerns raised by colleagues had been raised with her in confidence. During the meeting the claimant repeatedly asked for the names of those who had raised concerns. Mr Richardson said she could not do so without speaking to them since that would be a breach of the confidentiality they had requested. She agreed that she would contact them to ask them if they would be prepared to meet with the claimant. We find the claimant set a deadline of 9 January 2018 for them to do so, failing which he would escalate matters by way of a formal grievance to Dr Rashbass.

[69]Shortly after the meeting the claimant sent Ms Richardson and Mr Gentry an email thanking them for listening to his concerns. He hoped they “could put this bad incident behind us”. He confirmed he would wait until 9 January 2018 for the two individuals to come and speak to him directly and hopefully resolve the issues about his eyesight (p.495). There is nothing in that email to suggest that the claimant was unhappy that the meeting had taken place by phone nor to suggest he was unhappy with the proposed outcome. It does not suggest that he expected any further steps from Ms Richardson and Mr Gentry other than asking the individuals concerned whether they were willing to speak to the claimant direct.

[70]On 20 December 2017 Ms Richardson emailed Mrs Payne and Mrs Lloyd. She wrote to them individually without disclosing to the one who the other person was. She explained that the claimant felt that people were speaking about him behind his back, that they were not genuinely concerned about his well-being and that he referred to “Chinese whispers” which he finds “stressful and upsetting (and furious)”. We find that accurately reflected the claimant’s position as set out in the meeting on the 20 December. Ms Richardson went on to explain that the claimant had repeatedly asked her for the names of those who had contacted her and she had said that it was not within her power to break a confidence. She had, however, given her word to the claimant that she would speak to the colleagues who had raised concerns and ask them to meet with him to explain why they were concerned. She asked that if they were willing to do so, they make contact with the claimant by 9 January 2018. She said she appreciated that “[you may both feel that this is not something you want to do” but had given her word to ask so had done so. She confirmed that if the claimant did not hear from them by 9 January 2018 “and chooses to escalate his fury to [Dr Rashbass]” Ms Richardson would continue to maintain their confidence [p.513].

[71]Mrs Payne responded on 2 January 2018 (pp.511-511). She was upset about the situation she found herself in, feeling that she had been “completely thrown under the bus and into the lion’s den” when she was just trying to do the right thing. She reiterated that she had a duty of care to the claimant and that the frayed nature of her relationship with the claimant was the reason she had raised the matter via Ms Richardson rather than direct with the claimant. We accept that accurately reflects the reasons for her actions.

[72]Picking up on Ms Richardson’s references to the claimant’s “fury” in her email Mrs Payne went on to say that her working relationship with the claimant was difficult enough and that she now had to face the claimant and the “predictable outrage” he would bestow on her. She said she did not understand how the claimant was able to get so upset if the situation had been explained to him properly. She also queried why Mr Gentry had been copied into Ms Richardson’s email resulting in her identity being known to him. Ms Richardson responded to confirm that the way the email was sent meant her anonymity had been preserved.

[73]On 4 January 2018 Mrs Payne emailed Ms Richardson again. She said that having had time to get over her initial upset and think about matters she was happy to meet with the claimant and explain her genuine intentions. However, given the claimant’s reaction to what had happened she said that she would rather not meet him alone. She suggested that if the other person who had raised concerns were willing they could meet the claimant together. Her view was that the claimant might react better if he knew it was not just her raising concerns. Later that day, however, she emailed Ms Richardson again to say that having sought advice (from her union) she had changed her mind and did not think that meeting directly with the claimant was appropriate. She felt strongly that she had done the right thing. If the claimant wanted to pursue the matter as a grievance then that was for him (p.510).

[74]Ms Richardson responded the same day to say there was no obligation on Mrs Payne to speak to the claimant and confirmed again that she would maintain confidentiality. She said that if the claimant did decide to raise a grievance against her she was comfortable with that because they had throughout acted in his best interest. She concluded by saying that she thought Mrs Payne was “incredibly brave” for even considering meeting with the claimant (p.509).

[75]Mrs Lloyd responded on 10 January 2018. She said she felt it was not appropriate for her to meet the claimant direct. Similarly, to Mrs Payne, she said that she felt she was being put “in the firing line” for raising genuine concerns about a colleague’s well-being. She said that the claimant was not the most approachable person which is why she had felt it more appropriate for the issue to be raised via his line manager. Ms Richardson responded to confirm she would maintain confidentiality and to say that the other person (who she did not name) had also decided it was not appropriate to meet the claimant. In an email later that day in the same conversation Ms Richardson wrote to Mrs Lloyd that “You (both) did the right thing” (p.514). It was put to Ms Richardson that she was saying it was the right thing not to meet the claimant. We accept her evidence that what she was saying was that it was the right thing to have raised the concerns about the claimant’s eyesight. We also accept her evidence that she understood the position to be that she could not disclose the identity of those who had raised concerns without their consent given they had explicitly raised those concerns in confidence.

[76]The end result of the exchanges above was that neither Mrs Payne or Mrs Lloyd contacted the claimant by his deadline of 9 January 2018 (or at all). The claimant did not chase Ms Richardson when he heard nothing from anyone. Equally, however, Ms Richardson did not let the claimant know that neither of the colleagues she had approached had agreed to speak to him. Events from 15 January 2018 to 2 February 2018 -sickness absence, Dr Rashbass’s investigation and the outcome of the OH referral

[77]The claimant was signed off sick for one week from 15 January 2018 by his GP. Mr Gentry acknowledged the claimant’s email informing him of this within a few minutes of receiving it on the 15 January. The reason given on the fit note was “hypertension”. The claimant supplied that fit note to Mr Gentry on 5 February 2018. The claimant returned to work on 23 January 2018. Mr Gentry did not conduct a return to work interview. Dr Rashbass’ investigation

[78]On 24 January 2018 the claimant sent an email to Dr Rashbass to “inform [him] of a disability discrimination incident”. He referred to the OH referral and said that it was clear that “the Manchester member of staff had commented about my disability unlawfully”. He suggested that the OH referral was made “without any evidence by using false personal information given by a Manchester colleague”. He referred to Mr Gentry agreeing to amend the OH referral form and to the refusal to name “the individual” concerned. He said a deadline of 9 January 2018 had been agreed but that nobody had been in touch since the 20 December to discuss the disclosure or to ascertain his welfare. He said he had offered mediation and tried to resolve matters ASAP but said he had received inappropriate comments (though he did not specify what they were). He said he wanted the matter investigated and was seeking Dr Rashbass’s help to resolve it in a speedy manner (p.525-527). The claimant did not use the Formal Record of Grievance and did not refer to the grievance policy or to what he was doing as raising a grievance. We find that Dr Rashbass was entitled to find that what he was doing was raising an informal grievance as envisaged by the respondent’s grievance procedure.

[79]Dr Rashbass acknowledged the claimant’s email the same day and told him he would discuss the issues raised with Kara Barton from HR and get back to him. We find Dr Rashbass investigated the issues raised by the claimant over the next few days. On 25 January he spoke to Mr Gentry. On the following day he spoke to Ms Richardson and on the 29 January 2018 he spoke to Mr Gentry again to check whether the claimant was aware of the OH referral. He made notes of those conversations and his conclusions based on those (pp.556-558).

[80]Those conclusions were that the staff who had raised concerns had acted appropriately in raising those concerns with a senior manager. He concluded that it was understandable given their past history that the colleagues may not have wished to raise matters directly with the claimant. He found Mr Gentry had also acted appropriately and that the reference to a “seeming deterioration” in the claimant’s eyesight in the original HR referral form was not inappropriate. He acknowledged that raising concerns directly with the claimant would have been ideal but found it was clear that those members of staff did not feel able to do so. (We find that accords with the reality of the situation). He found nothing to suggest that anyone had shown “inappropriate respect” for the claimant and his disability and that their actions appeared to have been entirely based on their concerns of the claimant’s well-being and his ability to do his job. He decided the appropriate action was for the OH referral to be reviewed by HR and shared with the claimant so appropriate questions are included. That was to ensure that any guidance received from OH provided the basis for any adjustments to the working arrangement that may be needed.

[81]Dr Rashbass arranged to speak to the claimant by phone at 11 a.m. on 29 January 2018. He told him his conclusions. It was accepted that he told the claimant that the individuals concerned had been asked but declined to speak directly to him. Dr Rashbass explained the reason for that (and for the individuals not initially approaching the claimant directly) was because they were scared of his reaction and felt intimidated by him. The claimant responded that he had never hit anyone or been physically violent towards them. We accept that Dr Rashbass found the claimant unwilling to accept that colleagues could be intimidated by him in the absence of fear of physical violence. In terms of next steps, it was agreed that the OH referral would be reviewed. It was also agreed that Dr Rashbass would ask People Directorate colleagues to work with the team in the North West to understand the issues and propose solutions. That was because the claimant remained concerned about the office environment in the North West.

[82]Dr Rashbass summarised their discussion and agreed outcomes in an email on the same day (p.553). He invited the claimant to let him know if he wanted to correct any factual inaccuracy in the summary. The claimant did not respond to the summary to suggest any inaccuracies.

[83]There was a draft response by the claimant at pp.554-555. It disputed that the colleagues concerned had raised concerns out of concern for his wellbeing. Instead, he said that the person (clearly he had Mrs Payne in mind) had done so to further their own agenda. He confirmed that they did not get on and that he had “no doubt they would feel uncomfortable speaking with me”. He agreed that Dr Rashbass had acted quite rightly in accordance with legislation and that he was happy to have another workplace assessment. He said he would be very happy for the “People Department” to look at these issues. He said the idea that the rest of the staff and specifically his IT colleagues felt scared and intimidated was simply not true and he took exception to that. That email was not sent. The claimant did not at that point revert to Dr Rashbass with a formal grievance record form or anything else in response to the email.

[84]We find that both after the meeting and after the meeting on 20 December 2017 the claimant spoke to colleagues to ask whether they were scared or intimidated by him. We find that some colleagues did not recognise the picture of Manchester staff being “scared or intimidated” by the claimant. (pp.560). However, we find that others (including but not limited to Mrs Payne and Mrs Lloyd) did find him confrontational in his manner (pp.828). The outcome of the OH referral

[85]In the meantime, on 25 January 2018, OH had carried out a telephone consultation with the claimant arising from Mr Gentry's referral. In relation to his visual impairment, OH recorded (pp.529-531) the claimant saying that recently he was finding that he had to lean forward to get closer to the screen so that he can see, resulting in pain in back and neck. OH also recorded that the claimant said that he had been very stressed over the past week and that this was due to colleagues talking about him to his manager regarding his visual impairment and needed his manager to address the issue.

[86]The OH Specialist Nurse, Ms Caesar, advised the claimant of the Employment Assistance Programme and other wellbeing services. The recommendations (sent to the claimant on the same day as the consultation) were:• An ergonomic assessment and physiotherapy for his neck and back pain

• Steps and equipment to bring his computer screen closer

• A stress risk assessment to be carried out by the claimant and Mr Gentry to indicate areas in which the claimant might be struggling so that adjustments could be made

• It being beneficial for the claimant and Mr Gentry to meet regularly for review of action plans to enhance ongoing dialogue and positive communications between the two parties

• The steps above would ensure early identification of any issues which may be dealt with in a timely fashion. It noted that “this is a management issue and I believe management may need to obtain advice from HR regarding this is necessary”.

[87]The claimant was sent the OH recommendations by Ms Caesar on 25 January 2018 and asked whether he had any amendments. He did not. He was sent the referral report in full on 31 January 2018. He made what he called “a few corrections” in an email in response on 1 February (p.564). He said he had always leaned forward (suggesting the report was wrong to say that “recently” he had to lean forward more). He suggested amendments to the “work related factors” part of the report to refer to the stress at work being due to colleagues talking about his eyesight deteriorating behind his back and without any evidence to substantiate their claims. He said that he had asked management to name the individuals and had offered mediation but no one had come forward to discuss the matter further, adding to his stress. He asked for the situation to be “addressed appropriately” without being more specific about what that would involve. He made it clear he had no problem with Mr Gentry but with “a specific individual” which was clearly a reference to Mrs Payne. He said he found the whole scenario and sequence of events unbelievable and “seek your help to resolve it”.

[88]OH amended the report to incorporate those changes (other than the reference to a the problem being with a specific individual). The recommendations remained unchanged. The report in its final form was released to Mr Gentry on 2 February 2018 (p.541-542). In the meantime, he had countersigned the claimant’s application forms for the ergonomic assessment and physiotherapy. Events from 2 February 2018 to 20 February 2018 - meeting with Mr Gentry, Stress Risk Assessment, OH review and sickness absence.

[89]Mr Gentry spoke to the claimant on 2 February 2018 to discuss next steps in light of the OH recommendations. The claimant had already had his first physiotherapy appointment. They agreed that the claimant would draft the stress risk assessment (SRA) and that they would have a call to discuss once he had sent it to Mr Gentry. Mr Gentry also asked the claimant to supply his sicknote for the week of the 15 January which he did. Mr Gentry updated the Employee Sickness Record (ESR) at the claimant’s request.

[90]The claimant sent Mr Gentry the draft SRA on 12 February 2018. Mr Gentry was away that week on half term but arranged to speak to the claimant to discuss on the 20 February. That discussion took place by phone. The claimant raised no objection to that. The SRA form was completed partly by the claimant and partly by Mr Gentry and signed off by both (pp.576-581).

[91]In the employee section, the claimant said he had no issue with a referral to OH but repeated his belief that it was Mrs Payne who had raised issues with senior management, that her intent was not of concern for his well-being and that she had conducted a campaign of criticising him behind his back for many years. He said he found it stressful that management had not sought to verify the concerns raised with him rather than choose to believe what was said about him. He also said it was stressful that Dr Rashbass had in his investigation “only taken the view of Mrs Payne into account”. The claimant wrote that while he had no doubt that Mrs Payne would not want to speak to him it was simply untrue that the rest of the North West office was also scared of him. (We note that is not what Dr Rashbass had said-he had said they were scared of the claimant’s reaction and felt intimidated which is not the same thing as being scared of him). The claimant said he had evidence that colleagues were not scared of him. This referred to emails he had collected from colleagues after Dr Rashbass’s email confirming he had never bullied them and that they were not scared of him. The claimant said he felt his concerns had been ignored and not been addressed in a “fair unbiased and reasonable manner.” In terms of proposals about how his issues could be addressed the claimant did not put forward any specific proposals, only noting “offered mediation but it has been rejected due to false claims of intimidation and scariness”.

[92]In the employer section completed by Mr Gentry he noted that the claimant had suggested mediation but neither of the other parties felt comfortable with that and wished to preserve their anonymity. In terms of “actions to be taken by management” Mr Gentry acknowledged the stress caused to the claimant by the original wording of the OH referral form and the first action was for him to repeat that apology in the SRA itself.

[93]The second action was for the claimant and Mr Gentry to discuss if and how they communicate his stresses and concerns with the wider North West team. Mr Gentry suggested that colleagues may be unaware that the claimant wished all concerns about his wellbeing to be directed to him first.

[94]The third action was to review the effectiveness of the remedial actions recommended by OH to ensure they met the claimant’s needs.

[95]Mr Gentry accepted in his oral evidence that the claimant was not entirely happy about the wording of the second action. We find that is because the claimant’s fixed view was that Mrs Payne was behind the raising of concerns and that his fixed view was that she was well aware of the impact doing so would have on him. The claimant did however agree to its inclusion in the SRA and a date of 2 March 2018 was set to review communication with the North West team. The claimant sent the completed SRA to OH on the day it was agreed saying that they could discuss it at the next OH appointment.

[96]Miss Barry put it to Mr Gentry in cross-examination that there was nothing in the SRA to deal with the claimant’s concerns that his concerns had not been dealt with in a fair and unbiased manner by Dr Rashbass. We accept Mr Gentry’s evidence that his understanding was that any further steps in relation to Dr Rashbass’ investigation would be dealt with by the claimant with Dr Rashbass, e.g. by escalating matters to a formal grievance if he was not happy with Dr Rashbass’ response on 29 January 2018. The claimant did not as part of the SRA on in discussion with Mr Gentry say he did want to escalate matters to a formal grievance. We find it was reasonable for Mr Gentry to take the view that any grievance process was parallel but separate to the SRA and for the claimant to initiate under the grievance procedure. Events from 21 February 2018 to 26 April 2018 – OH review, sickness absences and transfer of data loading work

[97]On 26 February 2018 the claimant attended a follow-up appointment with Ms Caesar of OH. She recommended that he speak to his GP. We find that the claimant also spoke to RehabWorks (the EAP provider) and they asked the claimant to complete two questionnaires to assess his anxiety (page 532) and depression (page 533). It is accepted that those questionnaires show the claimant scoring highly on symptoms indicative of anxiety and of depression. There was no evidence that those questionnaires were shared with the respondent. They were however shared with the claimant's GP in March/April 2018.

[98]It is part of the claimant's case that Mr Gentry failed to address management issues as set out in the OH report. We find that as at the beginning of March 2018 the position, as far as Mr Gentry was concerned, was that Occupational Health recommendations in relation to physiotherapy and workplace assessments were in train. The SRA had been completed. The only outstanding issue as at the start of March was the “review of communication with North West team”. Mr Gentry was aware from completion of the SRA that the claimant had reservations about communicating his concerns to the North West team. We find that because the claimant did not revert back to him to confirm he wanted to raise the matter with the NW team, Mr Gentry concluded that he did not.

[99]It was submitted by Miss Barry for the claimant that there was a failure to progress to a formal grievance at this point. We find that the SRA made no reference to progress to a formal grievance. We find that the claimant’s email of 24 January 2018 to Dr Rashbass fell to be considered as an informal grievance so the next step was for the claimant to instigate a formal grievance in response to Dr Rashbass’ letter of 29 January 2018. It is true that that letter does not specifically refer to the grievance procedure, but the claimant in his evidence made it clear that he was acutely aware of what that procedure involved. Dr Rashbass had asked the claimant to let him know if he wanted to correct any factual inaccuracy in his written summary of their discussion. The claimant did not do so (the draft email at pages 554-555 remained unsent). So far as Mr Gentry or Dr Rashbass was concerned, therefore, there was nothing to indicate that the claimant wanted to escalate matters to a formal grievance. Under the grievance procedure and policy there is an onus on an employee to take the initiative to do so.

[100]Dr Rashbass had in his email also said that he would speak to colleagues in the People Department and ask them to contact senior managers to discuss what work could be done to address the issues in the office. That recommendation was also included within the note of his discussion with the claimant (page 557) which was forwarded to Kara Barton of the respondent’s HR team.

[101]The claimant was signed off sick from 8 March 2018 to 5 April 2018. The fit note gave “work-related stress” as the reason for his being unfit for work (page 595). The claimant emailed that fit note to Mr Gentry on 12 March 2018 and he acknowledged it the following day by email with a “get well soon”. Contrary to Miss McCann’s submission we find that Mr Gentry was aware that the claimant had been signed off with stress from 12 March 2018.

[102]The claimant returned to work on 6 April 2018. There was a dispute as to whether he had telephoned Mr Gentry and left him a message on 6 April to tell him that he had returned. We accept Mr Gentry’s evidence that he did not receive any such message even if it was left. We find that the first contact between them was on 13 April 2018. They had a brief conversation by telephone on that day. We find that Mr Gentry did not comply with the respondent’s sickness policy as amplified by the guidance notes. Although we accept that he had a brief discussion with the claimant during their telephone call about the claimant's return to work, there was no discussion about whether a further OH referral was needed, nor was there any record made of that conversation. We accept Mr Gentry’s evidence that he was simply pleased that the claimant had returned to work and dealt with matters “informally”.

[103]We find that during that same conversation Mr Gentry confirmed to the claimant that data loading was going to be transferred from the claimant's team to the national data management team. We find that this was something which had been mooted as far back as May 2017 and even earlier (page 418). We accept Mr Gentry’s evidence that the handover of that work lightened the claimant’s load and freed him up to concentrate on his primary role of managing the helpdesk. We accept that Mr Gentry saw the removal of that task as something which would help alleviate any stress the claimant was experiencing. In addition to that we find, as submitted by Miss McCann, that the claimant objectives for the year April 2017 to March 2018 did include a specific objective to hand over all the data loading to the registration team to reduce reliance on the IT team (page 865).

[104]We find that there was no discussion at that meeting of the actions from the OH report or the SRA. In relation to the physiotherapy and workplace assessment, that was not something that Mr Gentry was dealing with. The claimant had in fact completed a course of physiotherapy by 22 March 2018. Events from 26 April 2018 to 5 August 2018 – further sickness absence

[105]From 26 April 2018 the claimant was signed off sick with work-related stress. Mr Gentry acknowledged the fit note on 27 April 2018 and hoped the claimant would be well soon (p.597). The claimant sent a further fit note on the 25 May 2018 covering to the 21 June 2018 which Mr Gentry acknowledged the same day. That was for “stress”.

[106]On 5 June 2018 the claimant emailed Mr Gentry to let him know that he was due back at his GPs on 5 June 2018 and would keep him up to date with the outcome. Mr Gentry again acknowledged that email the same day and hoped the claimant was feeling better (p.605).

[107]On 21 June 2018 the claimant sent a further fit note until 18 July 2018. That was for “stress”. The claimant’s email said that his GP “thinks I would benefit from being off a bit longer” (p.607). Mr Gentry acknowledged on the same day. Events from 18 July 2018 to 17 August 2018 – the formal grievance and initial response

[108]The claimant had been on long-term sickness absence since 26 April 2018. On 18 July 2018 Mr Gentry asked the claimant whether he would be returning to work the following day (the claimant’s latest fit note expiring on that day (page 608). The claimant responded the same day from his home email to send a further fit note until 5 September 2018 for “stress”. The claimant said he could not access his email account with the respondent and asked Mr Gentry to send him the helpdesk number to reset it which Mr Gentry did. In the same email on 19 July 2018 Mr Gentry said he would be in touch “organising a catch-up meeting in the next week or so” (p.610). We find this was consistent with the respondent Manager’s Guide to the Absence Management Procedures which suggested that there should be a review meeting every three months (page 207). The claimant’s absence had been ongoing for slightly more than three months at that point. The formal grievance – 6 August 2018

[109]On 6 August 2018 the respondent’s solicitors wrote a “formal grievance and letter before action” to the respondent’s Chief Executive. It was sent by email and post to Dr Rashbass.

[110]In that letter the claimant’s solicitor informed the respondent that the claimant was unfit for work “suffering from depression and work-related stress”. It referred to his visual impairment and said that “accordingly our client is a disabled person for the purposes of the Equality Act 2010”.

[111]In summary, the grievance alleged that the claimant had been subjected to a detriment by the respondent and been victimised by the respondent and Mrs Payne since he had brought concerns that Mrs Payne was subjecting him to disability discrimination to the attention of Mr Sborgia and Dr Rashbass by an email dated 1 April 2016. The grievance alleged that the victimisation had recommenced after Mrs Payne had returned from maternity leave and set out a number of acts of alleged victimisation. Those included being referred to OH by Mr Gentry in December 2017 and the comments made by Ms Richardson at the meeting on 14 December 2017 by telephone. It also referred to the issues at (d)-(l) in the List of Issues. In relation to incident (g), i.e. refusing to confirm who had made allegations in relation to the claimant, the letter stated that, “the [respondent] continued to refuse to confirm that it was Mrs Payne who had made allegations”.

[112]The letter set out the claimant’s concerns that the respondent, by its conduct towards him, had prevented him from working, damaged his health, beached the respondent’s health and safety obligations, breached the implied term of trust and confidence, victimised the claimant and discriminated against and harassed him.

[113]In the section headed “Next Steps” (pages 623-624) the letter said that the claimant was concerned that the respondent was acting towards him in a manner which was calculated to destroy the relationship of trust and confidence to the extent that he would be entitled to resign and make claims of constructive unfair dismissal and discrimination. It went on to say that the claimant would refrain from doing that pending the respondent’s formal and substantive response to the grievance and the correspondence. The letter ended with a statement that it was reasonable that the respondent’s policies, criteria and practices be adjusted in that:(1) All correspondence and communication relating to the claimant be directed to the claimant’s solicitors;

(2) That his grievance be dealt with by way of correspondence and concluded within 21 days of the date of the letter, “to our client’s satisfaction such as to enable him to return to work”;

(3) An external CEDR qualified mediator be appointed and formal mediation take place following disclosure of all documents and allegations made in relation to the claimant’s disability and conduct, with that mediation being attended by “all employees who have raised any concern in relation to [the claimant’s] disability and/or conduct”;

(4) That the claimant received an undertaking that: “(a) his contractual sickness be extended such that he receives full pay until his grievance is concluded to his satisfaction and he returns to work; (b) no formal capability of sickness provision will be commenced or progressed against [the claimant] until the mediation has taken place and his grievances are concluded.

(5) Further adjustments are agreed such as will remove the claimant from the “people and environments which are damaging his health and exacerbating his disabilities”.

[114]The grievance also attached a subject data access request (page 625). The respondent’s response to the grievance

[115]Dr Rashbass acknowledged the grievance and referred it to Ms Bellamy. She responded to Mr Valentine by email on 14 August 2018. She confirmed she was treating it as a formal grievance. She copied her email to the claimant and attached a copy of the respondent’s grievance policy and procedure for the claimant's information. The email confirmed that they would be back in touch “with [the claimant] once we have assigned a stage one grievance manager”. Ms Bellamy also attached a copy of the respondent’s “Managing sickness related absence and supporting attendance at work” policy and relevant guidance notes for the claimant's information. She said that the respondent “will be in touch directly with [the claimant] to progress this as appropriate”. Her email acknowledged the subject access request and confirmed that it had been referred to the relevant team who would be back in touch in due course.

[116]On 17 August Ms Bellamy emailed a letter to the claimant, copying his solicitors. In her letter (pages 630-631) she said that the respondent took matters raised very seriously and had appointed Susanna Sewell, Operations Manager North West Centre, as the stage one manager who would hear the grievance. In the second paragraph of her letter Ms Bellamy noted that the claimant's solicitors had stated that all correspondence and communication relating to these issues should be referred directly to them, “however we do not have your consent to do so”. She asked the claimant to let her know, either in writing or via email, that the claimant was content for the respondent to liaise directly with Regents Solicitors about the formal grievance.

[117]The letter offered the claimant a meeting in line with the formal grievance procedure and suggested dates for the stage one grievance hearing on 28, 29 or 30 August. She asked the claimant to confirm by 21 August whether any of those dates were suitable. She went on to say, “however, if you decide you do want this matter dealt with by means of correspondence on your part only, we will of course comply with that request”. The letter confirmed that the respondent had begun the process to secure mediation services. It also confirmed (as requested by the claimant's solicitors) that the claimant would remain on full pay until the grievance procedure and the matters outstanding in the stress risk assessment were concluded. They were expected to be concluded “within and no longer than three months from the date of this letter”.

[118]The letter also assured the claimant that no formal action would be taken under the absence management procedures, although they would be keeping in touch in line with those procedures and to progress the stress risk assessment. It said that the claimant should let Ms Bellamy know if he wished another stress risk assessment to be carried or would find a referral to the OH services beneficial. The letter concluded with an acknowledgement that this may be a difficult time for the claimant and with information about the respondent’s Employee Assistance programme.

[119]Ms Bellamy also wrote to Mr Valentine on 17 August 2018 (pp.636-637). That letter substantially repeated the contents of her letter to the claimant. She provided more detail about the proposed mediator, explaining that the respondent engages with TCM Group to provide mediation services and were looking to appoint a mediator as soon as possible.

[120]Before Ms Bellamy’s letter had been sent the claimant's solicitors had sent a chasing email. That was sent on 14 August at 10:47. It criticised the respondent for “lethargy”, noting that they had had the claimant's grievance for “well over a week”. We find that throughout the exchanges the correspondence from the claimant’s solicitor tended to overstate criticism of the respondent and tended towards an antagonistic and at times unhelpful tone given the aim was to resolve matters by mediation. An example is the reference in this email to the respondent having had the claimant’s grievance for “well over a week”, whereas it had been sent on 6 August at 15:02 and Ms Bellamy had responded on 14 August at 7:46, i.e. just over a week later. Mr Valentine’s chasing email

[121]The chasing email repeated the demands for reasonable adjustments in the grievance letter itself, noting that the grievance “must” be dealt with within 21 days, i.e. before Monday 27 August 2018, that “an external (CEDR) mediator be appointed”, and underlining that there must be “disclosure of all documents”. The email also required “a substantive explanation” as to why these specific adjustments had “been dismissed” or proposed alternative adjustments. The email demanded that these be provided before close of business (17:00) on 17 August 2018. Events from 17 August 2018 – 28 August 2018 – steps to progress mediation and further exchanges regarding the grievance

[122]The evidence shows that the respondent contacted TCM on 17 August 2018 to seek assistance with mediation.

[123]On 20 August Dr Rashbass contacted various individuals to see whether they would be prepared to enter into mediation. Dr Rashbass spoke to Mrs Payne (who was on leave until 3 September) and she agreed to meet with the mediator. That was on the basis that she would remain anonymous at that initial mediation with her identity only being disclosed to HR if she agreed to proceed with the second mediation meeting. Dr Rashbass (page 641) asked Ms Richardson to take matters forward since she was also going to be meeting with the mediator as one of the people involved. Ms Bellamy then put Ms Richardson in touch with the mediator at TCM, Mr David Liddle. At 10:37 on 20 August 2018 Dr Rashbass confirmed to Ms Bellamy that he had now spoken to all the individuals to see whether they would be prepared voluntarily to enter into mediation, and they were all prepared to do so as a first step, so long as that was meeting with the mediator without the claimant being present. Once they had had that initial meeting they would decide whether to meet with the claimant.

[124]On 21 August 2018 the claimant emailed Ms Bellamy to confirm that Mr Valentine of Regents Solicitors was retained by him and that he “request all correspondence and communication is directed to him” (page 643).

[125]That same afternoon, Mr Valentine wrote to Ms Bellamy. He forwarded a letter which the claimant had received from the NHS Shared Business Services Team in Sheffield dated 17 August 2018 which informed the claimant that his entitlement to full pay during absence to ill health would expire on 22 September 2018, following which he would receive half pay until 23 May 2019. We find that letter is clearly a standard letter triggered by an automated process. In the accompanying letter (pages 646-648) the claimant's solicitors took Ms Bellamy to task for requiring the claimant's consent to correspond with them but confirmed that he would be providing that consent. It also notified the respondent that the employment of Susanna Sewell as the manager to hear the claimant's grievance was “not accepted”. This was because Ms Sewell was “implicated in the respondent’s failure to respond appropriately to the claimant's earlier grievances”. The letter stated that the claimant considered that it was reasonable in the circumstances that the respondent’s standard policies be adjusted such that:• The “very serious issues” raised by the claimant be dealt with by “a person at director level or above” and proposed that Deborah McKenzie (Chief People Officer) be appointed for that purpose;

• Prior to the claimant attending any grievance meeting he must receive full disclosure of all documents and allegations made in relation to his disability and/or conduct without redaction;

• The agenda of any such meetings agreed in advance; and

• (Particularly because of the claimant's disability) the claimant should be accompanied at any such meeting by Mr Valentine, with the meeting to take place at a neutral venue in Manchester City Centre to be agreed.

[126]The letter made it clear that as a result the claimant would not be attending a grievance meeting as proposed on 28, 29 or 30 August. We find that it was the claimant’s decision to reject the proposal of Ms Sewell being the grievance manager which led to the initial delay of the grievance meeting from 28, 29 and 30 August.

[127]We also find that it was reasonable for the respondent to read Mr Valentine’s letter as meaning that the claimant had now decided he did want to attend the Stage One Grievance Meeting face to face (subject to the conditions set out by Mr Valentine). Nothing in the letter suggested that the claimant objected to this and instead still required that the matter be dealt with by correspondence.

[128]The letter also insisted that mediation be conducted by a CEDR qualified mediator. It requested that the CV of the proposed mediator from TCM would be forwarded to the claimant with confirmation that they were CEDR qualified. The letter said that if TCM could not provide a CEDR qualified mediator the respondent should provide the CVs of three CEDR qualified mediators from which the claimant would “pick one”. It said, “if that means that the respondent needs to instruct a mediator independently of TCM, then so be it”. It does not explain why a CEDR qualified mediator is a reasonable adjustment.

[129]The claimant, according to the letter, also believed that “any mediation can only be effective is Mrs Payne agrees to attend and participate in the process”. It asked for confirmation that Mrs Payne was aware of the process and had agreed to participate. We accept the submission made by counsel for the respondent that this again suggested that the grievance was, at least in significant part, aimed at Mrs Payne even though there was at that point no confirmation that she had made any “allegations” against the claimant. The letter noted the previous confirmation that the claimant's full sick pay would continue until the completion of the grievance and asked in light of that for an explanation of the letter received from NHS Shared Business Services. The letter said: “We expect that Ms McKenzie will wish to offer a full and unqualified apology to our client in respect of the worry and hurt that has been caused to our client by reason of sending this correspondence directly to him which directly contradicts the respondent’s stated position.”

[130]The letter acknowledged the respondent’s entitlement to keep in touch with the claimant while he remains an employee of the respondent. It said that should the respondent wish to contact or correspond with the claimant that correspondence should be passed to the claimant's solicitors, who would then seek instructions and revert to the respondent.

[131]The email asked for the substantive response confirming the above matters and adjustments are agreed within seven days of the date of that letter.

[132]On the same day the claimant's solicitor wrote to the respondent FOI team seeking an acknowledgement of the subject access request and confirmation that the request would be completed by 5 September 2018. Events from 28 August 2018 to 12 September 2018 – the response to Mr Valentine’s letter of 21 August 2018

[133]In Ms Bellamy’s absence on leave, Rupert Goodman, the respondent’s deputy director of HR responded to Mr Valentine’s letter of 21 August 2018. Mr Goodman’s letter was emailed to Mr Valentine on 29 August 2018. It:• Confirmed that the respondent would look to identify another manager to replace Ms Sewell in dealing with the stage one grievance given the claimant’s objection to Ms Sewell dealing with it.

• Noted the request for the grievance to be dealt with by director level or above, but said it was for the respondent to determine an appropriate investigator and they would do that as soon as possible.

• Assured Mr Valentine that Deborah McKenzie would be “taking active oversight of this particular grievance”.

• Confirmed that “pertinent documents” would be shared prior to the grievance meeting.

• With regards to the request for an agenda, said the respondent was content to be led by the claimant about the format of the grievance hearing including whether there was an agenda.

• Confirmed an adjustment to the grievance policy confirms to allow the claimant to be accompanied to the stage one grievance hearing by Mr Valentine as his legal representative.

• Explained that CEDR was a legal mediation company whose specialism is not typically workplace mediation; that the respondent was committed to facilitating mediation in line with the standards of the Civil Mediation Council; confirmed that TCM was accredited by the CMC and therefore fully qualified to undertake workplace mediation.

• Confirmed that the respondent would be happy to provide further information regarding TCM and the mediator once they had been identified. He also confirmed that all parties approached about the mediation exercise had agreed to take part.

[134]Finally, with regard to the letter received by the claimant about his sick pay, Mr Goodman confirmed that the respondent’s Payroll was run by an outsourced provider and the confirmation of the extension of full sick pay had not reached them prior to the automated letter being sent. Mr Goodman asked Mr Valentine to “please convey our apologies for this to [the claimant] and reassure him that his pay would continue as full pay as agreed in his previous letter”.

[135]As at 4 September Mrs Payne and the other proposed participants in the mediation were waiting to hear from the respondent’s HR team about next steps (pages 655-656).

[136]On 7 September the NHS Shared Business Service sent a further letter to the claimant. This sent statutory sick pay form SSP1 confirming the reasons for not paying statutory sick pay. This was to confirm that SSP would cease on 8 October 2018 because the claimant would have been getting SSP for 28 weeks.

[137]On 7 September Ms Bellamy wrote to the claimant's solicitors to confirm that they had identified a manager to undertake the stage one grievance hearing, namely Louise Forster, Microbiology Services Network Manager. It asked Mr Valentine to liaise with the claimant to check which of two suggested dates for the stage one grievance hearing were most appropriate, 17 September or 10 October at a venue in central Manchester (page 664). We note from that that the respondent had agreed to the claimant's request that the grievance hearing take place at a “neutral venue”.

[138]On 10 September Mr Valentine wrote to confirm that he had arranged to see the claimant on the Friday of that week (i.e. 14 September 2018) to take instructions. Events from 13 September 2018 to 2 October 2018 – long term sick review meeting and further exchanges

[139]On 13 September 2018 Ms Bellamy forwarded to Mr Valentine an email for the claimant from Mr Gentry as his line manager. Mr Gentry’s forwarded email noted that the claimant’s fit note had run to 5 September and had therefore expired. Mr Gentry asked for a fit note to cover the full duration of the claimant’s sickness absence and confirmed that he would shortly be sending him a management referral to be submitted to Occupational Health to provide guidance to support the claimant's return to work. Mr Gentry said he was also conscious that contact while the claimant had been on long-term sick had not been as regular as he had anticipated. He said he wanted to arrange a long-term sick review meeting so that the claimant did not feel isolated during his ongoing absence and suggested three dates in October (2, 9 and 10 October) when they could meet by Skype. He also suggested 8 October 2018 as a date when they could meet face to face in Manchester. He asked the claimant to confirm which of the dates was the most suitable and also that he wanted to put in place regular fortnightly contact with him so that the claimant could be kept abreast of the respondent and departmental happenings so that his return to work “is seamless”. Mr Gentry said he would also benefit from being able to discuss with the claimant “a number of matters on a couple of issues and ideas that we are currently looking to resolve in the team”. He suggested that those catch-ups could be by telephone if that would be acceptable to the claimant. He reminded the claimant of the availability of the Employee Assistance Programme.

[140]On 17 September 2018 Ms Bellamy chased Mr Valentine for the outcome of his meeting with the claimant. He responded to say that the meeting had been delayed until Wednesday (19 September 2018) (p.678).

[141]By 24 September 2018 the respondent had not heard anything further so Ms Bellamy sent another chasing email asking for responses to the respondent's letters of 29 August, 7 and 13 September. Mr Valentine wrote on the 26 September 2018 to confirm he had received instructions and was in the process of drafting the response (p.675). On the same date Mr Valentine provided the claimant's latest sick certificate with a brief covering email (p.679). The certificate confirmed the claimant was not fit for work due to stress to 11 October 2018.

[142]Ms Bellamy responded on the 26 September 2018 to say that as per her letter of 17 August 2018, the respondent would be in touch directly with the claimant in order to manage his sickness absence and would relay the information shared with Mr Valentine on 13 September 2018 (i.e. in Mr Gentry's email) as part of that process (p.681). By 2 October 2018 there was no response from Mr Valentine so Ms Bellamy sent him a chasing email (p.682). 3-4 October 2018 – the letter from Mr Gentry to the claimant and Mr Valentine’s to Ms Bellamy

[143]On 3 October Mr Gentry emailed the claimant an invitation to a long-term sickness review meeting. The covering email hoped that the claimant was starting to feel better and that the respondent could support him back to work as soon as he was able (p.694). The attached letter (p.683-684) in essence repeated what was said in the email forwarded to Mr Valentine on 13 September 2018 but providing updated dates for a Skype or face to face meeting (9, 12 October for the former and 19 October 2018 for the latter). In contrast to the email it specified that the meeting was a formal meeting to be held under the Managing Sickness Related Absence and Supporting Attendance at Work policy and that Mr Gentry would be supported at the meeting by Kara Barton, HR Business Partner and the claimant had a right to be accompanied.

[144]Attached to the letter was an OH referral form completed by Mr Gentry with a view to being submitted to OH asking for an assessment of the claimant's fitness to work and the adjustments required to facilitate his return to work (p.685-687).

[145]On 4 October 2018 Mr Valentine sent a letter by email to Ms Bellamy. This was the response to the respondent’s email of 7 September 2018. We find the delay from then until the 4 October 2018 was solely due to the respondent waiting to hear back from the claimant and Mr Valentine. The letter accused the respondent of doing nothing to address the claimant’s grievance “except for asking our client to attend a grievance hearing”. We find that the claimant’s representative’s letters tended to attribute all fault to the respondent where the reasons for delay were in truth often attributable to the claimant.

[146]Mr Valentine’s letter went on to set out “the steps that the [respondent] must take to progress [the grievance] and the timescales that will apply”. The letter made it clear that if the respondent failed to agree to the conditions the claimant would resign with immediate effect and bring claims of constructive unfair dismissal and discrimination against it. In summary, the conditions and timescales were that:• That the grievance should be dealt with by someone at director level or above, whose details should be provided within 14 days. It said that as a result of the respondent failing to agree to “this very reasonable adjustment” there had been little attempt by the respondent to address the serious concerns raised by the claimant.

• That the claimant had set out his grievance in considerable detail already and had “consistently taken the position that these grievances must be addressed by means of correspondence”, and that that was a reasonable adjustment. The letter demanded that within 14 days of the letter the respondent must “set out the respondent’s substantive findings in respect of the grievance and initial findings”.

• That despite repeated requests on his and his solicitor’s part, the claimant “remains in the position where allegations in relation to his conduct, capability and disability have been made in relation to him, and yet these have not been put to him, and the documents relevant to those allegations have not been disclosed to him so he can respond”. The letter said that this was disability harassment and demanded that within 14 days the respondent must set out in full and disclose all the allegations and documents relating to “any matter relating to our client’s conduct or capability which has been brought to the attention of the respondent by [Mrs Payne]” and the contention of Dr Rashbass (made on 29 January 2018) that the claimant's colleagues were “intimidated” by him. It demanded that the respondent “must disclose the names of those persons who have alleged that our client intimidated them, the evidence that had been provided to substantiate the allegation and provide details of any investigation conducted in order to determine the voracity of such allegations”.

• That within 14 days the respondent must set out in full a plan whereby all recommendations set out in the Occupational Health report and the risk assessment would be addressed to the claimant's satisfaction within an agreed and reasonable timescale.

• That the claimant had for “several months” suggested that mediation was a reasonable and proportionate means of resolving this dispute. but that the respondent had made the claimant attending a grievance meeting a precondition of instructing a mediator. (We found no evidence that the respondent placed this pre-condition on mediation).

• That TCM could not “possibly be described as independent and objective” because TCM was a preferred supplier for the respondent. The respondent must within 14 days confirm its agreement to instruct a CEDR qualified mediator to conduct a mediation within 28 days, send names and CVs of three proposed CEDR qualified mediators from which the claimant would pick one, and confirm that Dr Rashbass and Mrs Payne had agreed to engage with the mediation process and attend the proposed mediation.

• That the claimant had made a subject access request on 2 August 2018 and the respondent had failed to adequately respond to that. It therefore demanded that the respondent provide all data held in a manual or automatic filing system by Ms Bellamy, Deborah McKenzie, Mrs Payne, Kara Barton, Ms Richardson, Dr Rashbass, Mr Goodman and Mr Gentry.

[147]The letter concluded by saying that the claimant would “not tolerate” a response which referred him back to the standard “and flawed” grievance procedure and insisting on attendance at a meeting. It stated the adjustments set out were reasonable adjustments on which the claimant “has no alternative but to insist” on. It said that if the matters were not agreed then the claimant would resign and issue his claims of constructive dismissal and discrimination at the Employment Tribunal (page 693). Events from 8 October to the claimant’s resignation on 15 October 2018

[148]The claimant did not respond to Mr Gentry’s letter of 3 October 2018. Instead, Mr Valentine responded on his behalf to Ms Bellamy by an email of 8 October 2018. It pointed out that correspondence had been sent direct to the claimant despite him making clear that all correspondence in relation to the matter should be directed to his solicitors, and said that “we do not intend to correspond further with [the respondent]” until there was a substantive response to the letter dated 4 October (page 694). The claimant submitted a further fit note dated 11 October signing him off until 8 November 2018 with stress.

[149]On 11 October 2018 Ms Bellamy responded to Mr Valentine’s email. She said that as confirmed in the letter dated 17 August and by email on 26 September the respondent would be contacting the claimant directly to manage his long-term sickness absence. She said that as an employee of the respondent the claimant had certain rights but also certain obligations under the respondent’s sickness policy. She said that the respondent would therefore expect the claimant to engage with the processes. While accepting that in the letter of 17 August 2018 the respondent had confirmed that it would not be taking any formal action under the policy until completion of the grievance process and the relevant mediation process, that concession was on the basis that matters could be expedited in a reasonable timescale. The respondent wanted to be reassured that the processes were to progress in a reasonable timescale in accordance with their policies. In those circumstances Ms Bellamy said that it was also reasonable to expect that the claimant engage in the sickness absence process. She confirmed the respondent was happy to be in touch with the claimant either by Skype or by phone and looked forward to hearing back from him with suitable dates and time to speak to Mr Gentry. She confirmed that she would be relaying the message to the claimant and encouraged him to keep in touch in accordance with the sickness policy. She confirmed that she would respond to Mr Valentine’s letter of 4 October separately (page 698).

[150]On 11 October 2018 Ms Bellamy forwarded that email to the claimant by email. It was sent at 19:52 to the claimant’s work email address. With that email Ms Bellamy forwarded a copy of Mr Gentry’s letter of 3 October. She told the claimant in her email that in order for Mr Gentry to manage the claimant’s long-term sickness the respondent was complying with its sickness policy and that it was reasonable for it to expect the claimant to do the same even if he would not rather not meet face to face at that point. She said the respondent therefore did expect a response to Mr Gentry’s letter and would hope to receive that in due course. She confirmed that the respondent was seeking to progress all matters to a mutually acceptable resolution in a timely manner in accordance with the relevant policies. She confirmed that the respondent would be responding to Mr Valentine’s most recent letter in due course, and she asked the claimant to contact her if she could assist in any way (page 697).

[151]Mr Valentine responded on 12 October by email. He said that the respondent was aware that the claimant was suffering from disabling depression and workplace stress and that sending him an email direct late at night added to that. He described Ms Bellamy’s tone as “patronising, demeaning and in itself discriminatory”. He said that referring to the respondent’s sickness policy was also discriminatory. He pointed out that in correspondence he had asked that an adjustment to made to those policies in that the respondent should communicate with him rather than with the claimant direct. He said that the claimant was “perfectly entitled to take reasonable action to prevent further damage to his health, and he has done so by his refusal to engage further with policies, criteria and practices of the [respondent] until such time as the [respondent] has taken action to resolve the matters that he has brought to his attention”. He suggested there had not even been an acknowledgement of his letter of 4 October (which is factually incorrect since Ms Bellamy had acknowledged it in her email of 11 October). He demanded that since Ms Bellamy had herself now discriminated against the claimant and since she did not “have the seniority or capability necessary to deal with a complicated and nuanced dispute such as this”, she must take no further part in conducting the matter. Mr Valentine repeated the demand that the matter be dealt with by a senior director within the respondent at director level or above, and confirmed that neither he nor the claimant would respond to any further correspondence “which does not come from a Director of the [respondent]”. In sum, Mr Valentine said that until there was a response to the letter of 4 October 2018 in advance or by the deadline of 18 October 2018 the claimant “has nothing further to say”.

[152]Having read Ms Bellamy’s email we do not find that it was “patronising and demeaning”.

[153]On 15 October 2018 Ms Bellamy responded to Mr Valentine copying her letter to the claimant. The letter sent with that email stated 11 October 2018 (pages 705- 707). Ms Bellamy’s letter made the following points:• That the respondent had been taking considerable steps to try and move forward the grievance, including identifying a stage one grievance manager, identifying suitable dates and venues for a meeting and liaising with all those involved to confirm their commitment to the process including mediation.

• That the respondent had been progressing the claimant's concerns in line with the respondent’s grievance policy and did not believe that the process was discriminatory in any way. They were keen to ensure that the claimant had the opportunity to discuss his concerns face to face.

[154]Responding to the points made by Mr Valentine in the letter dated 4 October 2018 she said as follows:• That Louise Forster, Microbiology Services Network Manager, had been assigned as the stage one grievance manager and that the respondent did not believe that the level of seniority of the person dealing with the grievance was a reasonable adjustment. What was more important was that the individual identified had the necessary competencies to undertake the role.

• That there had been delay on the part of the claimant. There had been no response from Mr Valentine on his client’s behalf to the respondent’s letter of 29 August 2018 until the letter of 4 October 2018. In that letter Mr Valentine confirmed that the claimant had “consistently” taken the position that the grievances must be addressed by means of correspondence. Ms Bellamy pointed out that in Mr Valentine’s letter of 21 August 2018 he had set out the adjustments the claimant would need to attend a grievance hearing face to face, including an advance agenda and Mr Valentine being allowed to attend the meeting and the venue being a neutral venue in Manchester City Centre. She pointed out that the respondent had agreed to all these adjustments. She confirmed that as a result of the letter of 4 October the respondent would now investigate the matters raised via correspondence and that she would that day liaise with Louise Forster and support her to undertake the necessary investigation. The respondent would then be back in touch in due course to confirm the outcome.

• She confirmed that the respondent would investigate the claimant's grievance via correspondence. She confirmed the investigation would be carried out in line with the respondent’s grievance policy which was provided to Mr Valentine on 14 August.

• In relation to the Occupational Health report in January 2018, she acknowledged that it recommended a number of reasonable adjustments including an ergonomic workstation assessment, physiotherapy and a stress risk assessment all of which were arranged and followed up. With regards to the recommendation for “ongoing dialogue and positive communication for both parties”, she said the respondent remained committed and ready to commence mediation in an attempt to resolve the claimant’s concerns.

• She denied that at any point the respondent had made it a precondition of instructing a mediator that the claimant first attend a grievance meeting. She confirmed that TCM were not a preferred supplier to the respondent but that they had worked closely with them on a number of issues and by the true nature of the service mediation is independent and therefore would be objective as part of their processes. She confirmed the respondent remained committed to a mediation process held in line with the standards of the Civil Mediation Council. She confirmed that “all those colleagues involved” were also ready to commit to a mediation process.

• With regards to the comments about the response to the subject access request, she said that she had relayed those to the relevant team and they would be back in touch in due course.

[155]Ms Bellamy concluded the letter by confirming that the respondent would be back in touch once the grievance investigation had been completed. In the meantime she looked forward to hearing back from Mr Valentine as soon as possible with the claimant's agreement to press on with the mediation exercise to support his return to the workplace.

[156]On the same day Ms Bellamy sent a second email to the claimant and his representatives stating that she had “today” responded to their letter of 4 October and set out in the letter how the respondent intended to continue to try and progress matters. She asked Mr Valentine to please inform the claimant that the respondent remained keen to engage with the claimant to discuss matters. She said that the respondent felt that the confrontational style of recent communications was not the best way to deal with these matters as the parties continue to try and resolve the issues (page 708). We find those sentiments understandable. While accepting that a representative is of course entitled to pursue their client’s case assertively it did seem to us that the confrontational language used in some of the letters from the claimant’s representative was not conducive to achieving the mediated solution to the issues which the claimant stated he sought to achieve.

[157]On 15 October 2018 Mr Valentine wrote on behalf of the claimant confirming the claimant's resignation with immediate effect. It stated that the respondent “must treat the date of this email as the effective date of termination”. That email did not set out the reasons for resignation.

[158]Ms Bellamy responded within half an hour, emailing the claimant (and copying his solicitor) to say that she had received the resignation email from Mr Valentine. She confirmed that as per her letter of 11 October the respondent was still hoping to progress the matter to a successful return to work. She asked him to please confirm that if he did not want to do that, he should confirm to her in writing that he wished to resign effective that day (page 711).

[159]The claimant did not respond but within the hour Mr Valentine had emailed Ms Bellamy and Ms McKenzie, sending copies of the early conciliation details in relation to claims against the respondent and Ms Bellamy (page 714). Findings of fact about the respondent’s knowledge of the claimant’s disability - stress, anxiety and depression

[160]The respondent concedes the claimant was disabled by reason of stress, anxiety and depression from January 2018 onwards. The claimant’s first absence in January 2018 was due to “hypertension” and did not mention any underlying mental health impairment. His first absence due to “stress” was from 8 March 2018 until 6 April 2018. The fit note for that absence referred to “work related stress” (p.595).

[161]The claimant was then off sick from 26 April 2018 until his resignation in October 2018. The fit notes for that period referred to “stress” apart from the first fit note which referred to “work-related stress”.

[162]The OH report sent to Mr Gentry on 2 February 2018 (pp.541-543) also referred to the claimant suffering from stress and explicitly linked that to work related matters. The SRA also referred to stress at work (pp.575-581). Ms Caesar’s report (at p.542) says in response to the question of whether the case is covered by the EqA that “his conditions of normal daily living do appear to be significantly affected at present.” That “at present”, it seems to us, must be a reference to the impact of stress on the claimant rather than a reference to his visual impairment which was long term and not confined to “the present”.

[163]In deciding whether the respondent had knowledge that the claimant was a disabled person, a relevant element is their knowledge that any impairment was likely to last for more than 12 months. As to that, we accept Miss McCann’s submission that the claimant’s email of 18 July 2018 is relevant to our considerations. It said the claimant’s GP thought he would benefit from being off “a bit longer”. The alleged failures to make reasonable adjustments relating to the stress, depression and anxiety relate to the formal grievance process and steps taken post 6 August 2018. By the 6 August 2018 the claimant had been continuously signed off due to stress for 3 months and 11 days.

[164]The formal grievance letter on 6 August 2018 is the first time that “depression” is mentioned. We find that the claimant’s Anxiety and Depression questionnaires (pp.532 and 533) were not shared with the respondent. They are referred to in the email exchange between Ms Caesar and RehabWorks (the external EAP provider) on 23 March 2018 but the contents not disclosed. The respondent was aware, however, via Ms Caesar that he had been given scores to give to his GP for an appointment due March/April 2018. Depression was not referred to by the claimant’s GP in any of the fit notes. The Law Unfair dismissal The right

The Law

[165]S.94 of the Employment Rights Act (“ERA”) gives an employee a right not to be unfairly dismissed by their employer. To qualify for that right an employee usually needs two years' continuous service at the effective date of termination, which the claimant had in this case.

[166]In determining whether a dismissal is unfair, it is for the employer to show that the reason (or if more than one the principal reason) for dismissal is one of the potentially fair reasons set out in s.98(2) of ERA or some other substantial reason justifying dismissal.

[167]If the employer shows a potentially fair reason for dismissal then whether the dismissal is fair (having regard to that reason) will depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee and shall be determined in accordance with equity and substantial merits of the case (s.98(4) ERA).

[168]In Polkey v A E Dayton Services Ltd

[1988] 1 AC 344

[1988] ICR 142

Lord Bridge said that "If an employer has failed to take the appropriate procedural steps in any particular case, the one question the [employment] tribunal is not permitted to ask in applying the test of reasonableness... is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken”.

[169]A constructive dismissal occurs where “the employee terminates the contract under which they are employed (with or without notice) in circumstances in which they are entitled to terminate it without notice by reason of the employer's conduct” (s.95(1)(c) ERA). To be a constructive dismissal the employer's actions or conduct must have amounted to a repudiatory breach of the contract of employment entitling the employee to resign: Western Excavating (ECC) Ltd v Sharp

[1978] 1 QB 761

[170]There is implied into every contract of employment a duty of mutual trust and confidence. Each party to the contract is under an obligation not, without reasonable and proper cause, to conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Malik v Bank of Credit and Commerce International SA (in compulsory liquidation)

1997 ICR 606

, HL). In this judgment we refer to this as “the implied term”.

[171]For the implied term to be breached the conduct must be such as, viewed objectively, is calculated or likely to undermine the duty of trust and confidence and must be conduct for which there is, objectively, no reasonable and proper cause (Bradbury v BBC

[2015] EWHC 1368 (Ch)

and Buckland v Bournemouth University Higher Education Corporation

[2010] EWCA Civ 121

[172]If the employer is found to have been guilty of such conduct, that is something which goes to the root of the contract and amounts to a repudiatory breach, entitling the employee to resign and claim constructive dismissal (Morrow v Safeway Stores [2002] I.R.L.R. 9).

[173]A breach of that implied term can result from the cumulative conduct of the employer rather that one repudiatory act. In many cases there can be a final act or “last straw” before the resignation. In Omilaju v Waltham Forest LBC (No.2) [2005] I.R.L.R. 35 the Court of Appeal explained that that “last straw” need not itself be a breach of contract and need not be unreasonable or blameworthy. However, the act complained of has to be more than very trivial and has to be capable of contributing, however slightly, to a breach of the implied term of mutual trust and confidence. It would be rare that reasonable and justifiable conduct would be capable of contributing to that breach

[174]Where the act that tips the employee into resigning is entirely innocuous, a constructive dismissal claim will still succeed, provided that there was earlier conduct amounting to a fundamental breach, that breach has not been affirmed and the employee resigned at least partly in response to it (Williams v Governing Body of Alderman Davies Church in Wales Primary School [2020] I.R.L.R. 589).

[175]It does not automatically follow that an act of unlawful discrimination also breaches the implied term in Malik. The question which the tribunal must assess in each case is whether the actual conduct in question, irrespective of whether it constitutes unlawful discrimination, is a breach of that implied term (Amnesty International v Ahmed [2009] I.C.R. 1450).

[176]The Court of Appeal clarified the correct approach for the Tribunal to take in constructive dismissal cases in Kaur v Leeds Teaching Hospitals NHS Trust

[2019] ICR 1

, para 55: “In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

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

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

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a breach of the Malik term?

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

[177]Where the employee waits too long after the employer’s breach of contract before resigning, he or she may be taken to have affirmed the contract and thereby lost the right to claim constructive dismissal. In the words of Lord Denning MR in Western Excavating (ECC) Ltd v Sharp1978 ICR 221, CA, the employee “must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged”.

[178]In Gordon v J & D Pierce (Contracts) Ltd

[2021] UKEAT 0010_20_1201

the EAT held that an employee does not affirm a contract of employment by engaging in a grievance process available under that contract. Equality Act Claims

[179]By the end of the hearing the claimant had withdrawn a number of his claims under the Equality Act 2010 (“the EqA”). Those remaining were claims of failures to make reasonable adjustments and harassment. The respondent says that those incidents which occurred before 6 August 2018 are out of time. Reasonable adjustments

[180]Section 39(5) of the EqA provides that a duty to make reasonable adjustments applies to an employer.

[181]That duty appears in Section 20 as having three requirements, and the requirement of relevance in this case is the first requirement in Section 20(3)

[182]Section 20(3) provides as follows:- “The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”.

[183]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) the physical feature of premises occupied by the employer,

(d) the nature and extent of the substantial disadvantage suffered by the Claimant. 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.

[184]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

[185]As to whether a disadvantage resulting from a provision, criterion or practice is substantial, Section 212(1) of the EqA defines “substantial” as being “more than minor or trivial”. Knowledge of disability

[186]Schedule 8, Pt 3, para 20 of EqA states that 'A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know-(a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b) [in any case referred to in Part 2 of this Schedule] that an interested disabled person has a disability and is likely to be placed at the substantial disadvantage referred to in the first, second or third requirement'.

[187]In Gallop v Newport City Council

[2013] EWCA Civ 1583

[2014] IRLR 211

the Court of Appeal summarised the relevant requirement for knowledge:• before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person; and

• that for that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in [s.6 of the EqA]

• Those facts can be regarded as having three elements to them, namely

(a) a physical or mental impairment, which has

(b) a substantial and long-term adverse effect on

• Provided the employer has actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a 'disabled person' as defined in [s.6]

[188]Whether the respondent has actual or constructive (i.e. could reasonably be expected to have) knowledge is a question of fact for the Tribunal.

[189]If an employer’s agent or employee (such as an occupational health adviser, a HR officer or a recruitment agent) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability and that they therefore have no obligation to make a reasonable adjustment.(EHRC Code para 6.21). It will either be actual knowledge, or knowledge which ought reasonably to have been transmitted to the appropriate person.

[190]However, information will not be 'imputed' or attributed to the employer if it is gained by a person providing services to employees independently of the employer. This is the case even if the employer has arranged for those services to be provided (paragraph 6.22 of the EHRC Code). Each case will turn on its own facts.

[191]The EHRC Code says at 6.19 that: "The employer must, however, do all they can reasonably be expected to do to find out whether [a worker has a disability and is, or is likely to be, placed at a substantial disadvantage]. What is reasonable will depend upon the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”

[192]As to the extent of an employer's enquiries into whether an employee is disabled under the EQA, see Gallop v Newport City Council

[2014] IRLR 211

. An unquestioning reliance on Occupational Health advice may not be sufficient to enable the employer to rely on the knowledge defence.

[193]As Miss McCann submitted, ignorance is not a complete defence. In relation to this question, the Tribunal should consider whether the respondent ought reasonably to have made more enquiries on the basis of what it already knew, having regard to all the relevant circumstances: Donelien v Liberata UK Ltd

[2018] IRLR 535

. Harassment

[194]The definition of harassment appears in section 26 of the EqA 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;

[195]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) at paragraph 7.18 of the EHRC Code (“a harassing effect”): “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.”

[196]The Court of Appeal in Grant v HM Land Registry

[2011] EWCA Civ 769

pointed out that the words “violating dignity”, “intimidating, hostile, degrading, humiliating, offensive” are significant words. Elias LJ said that: “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.”

[197]The EAT in Betsi Cadwaladr University Health Board v Hughes [2014] 2 WLUK 991 “wholeheartedly agree[d]”: “…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.”

[198]In Pemberton v Inwood

[2018] ICR 1291

, Underhill LJ revisited his guidance on harassment in Richmond Pharmacology Ltd v Dhaliwal

[2009] ICR 724

in light of the wording of s.26 (Dhaliwal having been decided under the predecessor discrimination legislation). He said that in order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so. The Burden of Proof

[199]The EqA 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."

[200]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 EqAt. 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. Time limits under the EqA

[201]The time limit for bringing a claim 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.” end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.” Continuing Acts

[202]In Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

the Court of Appeal confirmed that in deciding this question: ‘The focus should be on the substance of the complaints … was there an ongoing situation or a continuing state of affairs in which [officers] … were treated less favourably? The question is whether that is ‘an act extending over a period’ as distinct from a succession of unconnected or isolated specific acts'.

[203]In considering whether separate incidents form part of an act extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’ Aziz v FDA

2010 EWCA Civ 304

, CA.

[204]Acts which the Tribunal finds are not established on the facts or are found not to be discriminatory cannot form part of the continuing act: South Western Ambulance Service NHS Foundation Trust v King EAT 0056/19. Just and equitable extension of time

[205]In Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, CA, the Court of Appeal stated that when employment tribunals consider exercising the discretion under what is now S.123(1)(b) EqA, ‘there is no presumption that they should do so…a tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.’ However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds.

[206]In British Coal Corporation v Keeble

[1997] IRLR 336

the EAT suggested that in determining whether to exercise their discretion to allow the late submission of a discrimination claim, tribunals would be assisted by considering the factors listed in S.33(3) of the Limitation Act 1980. Those factors are in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.

[207]In Southwark London Borough Council v Afolabi

[2003] ICR 800

, CA, the Court of Appeal confirmed that, while that checklist in S.33 provides a useful guide for tribunals, it need not be adhered to slavishly. That point was also made by the CA more recently in Adedeji v University Hospitals Birmingham NHS

[2021] EWCA Civ 23

[208]In Adedeji the Court of Appeal approved what was said by the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

. At paragraph 25 of that Judgment the Court of Appeal stressed that: “Factors which are almost always relevant to consider when exercising any discretion whether to extend time are: The length of and the reasons for the delay; and Whether the delay has prejudiced the respondent (for example by preventing or inhibiting it from investigating the claim while matters were fresh.”

[209]The Court of Appeal in that case also made clear that there was no justification for reading into section 123 of the EqA a requirement that the Tribunal had to be satisfied there was good reason for the delay, let alone that time could not be extended absent an explanation from the employee. However, the reason for the delay is a relevant matter to which the Tribunal can have regard. Failure to comply with the ACAS Code on Disciplinary and Grievance procedures

[210]Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“s.207A”) gives the Tribunal a power to adjust compensation where there has been an unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Compensation can be increased where it is just and equitable but by no more than 25%.

Discussion and Conclusions

[211]The claimant withdrew a significant number of his claims during the course of the hearing. The claims which remain are of constructive unfair dismissal, a failure to make reasonable adjustments and disability related harassment. The constructive dismissal claim is based on a breach of the implied term of trust and confidence (“the implied term”). The incidents relied on as contributing to a breach of the implied term are set out at 6(c) to (t) of the List of Issues. Some of those incidents are also said to be acts of harassment or incidents of failures to make reasonable adjustments.

[212]We have decided that the best way to structure this part of our judgment is to go through incidents 6(c) to (t) in order. For each we first set out our conclusion on whether it breached (or contributed to a breach) of the implied term. We have then set out our conclusion on whether that incident was a failure to make a reasonable adjustment or an act of harassment (where it is so alleged by the claimant).

[213]After doing so we review the incidents applying the approach in Kaur. We then deal with the time limit issues for the EqA claims before 6 August 2018 (7(a) to (c) in the List of Issues). Disability and knowledge of disability

[214]When it comes to disability (Issue 1), the responded accepted that the claimant was at all material times a disabled person for the purposes of the EqA by reason of visual impairment. It accepted that it had knowledge of this disability at all material times.

[215]The respondent also accepted that the claimant was a disabled person by reason of stress, anxiety and depression from January 2018. The earliest remaining claim related to this disability, chronologically, is the failure to make a reasonable adjustment in August 2018 (3.2(c) on the List of Issues). Since that is after the date when the respondent accepted the claimant was disabled by reason of this impairment we did not have to decide any issues about the application of s.6 EqA.

[216]However, the respondent did not concede that it knew (or ought reasonably to have known) that the claimant was a disabled person by reason of stress, anxiety and depression. Miss McCann’s submission (para 40.13 of her written submissions) was that we need to determine that “knowledge” question at the date of each alleged incident of discrimination which relies on this disability. It is relevant to the incidents from 6(m) which is the first incident said to be a failure to make a reasonable adjustment relating to stress, anxiety and depression rather than the claimant’s visual impairment.

[217]We find, on balance, that the respondent could reasonably have been expected to know that the claimant was disabled by reason of his mental impairment from 6 August 2018 onwards. By that point, the claimant had been signed off sick for a total of 4 months with stress, the latest (ongoing) period being 3 months and 11 days. Although the earlier fit note had referred to work related stress, the later ones referred to “stress”. The grievance letter alerted the respondent to the claimant suffering from “depression”. We have taken into account Miss McCann’s submission that the stress was linked to incidents at work and that therefore the respondent reasonably understood that the stress was time-limited and resolvable.

[218]We prefer Miss Barry’s oral submission that by August 2018 the respondent ought reasonably to have known that the claimant was disabled by reason of stress, anxiety and depression, with the effect likely to last for in excess of 12 months or to recur. In making that finding we accept Miss Barry’s submission that had Mr Gentry followed the respondent’s long-term sickness procedure there would have been a further referral to OH by August 2018 which would have disclosed the claimant’s stress, anxiety and depression. In particular, had the respondent made further enquiry of the claimant as at April 2018 we find that the respondent would have become aware of the anxiety and depressions questionnaires completed by the claimant and provided to his GP which indicated he scored highly on indicators of anxiety and depression. Miss McCann submitted that the respondent could not be blamed for failing to make further enquiries as it had attempted to arrange a further OH referral in relation to the claimant. That, however, was not until Mr Gentry’s email of 13 September 2018 by which time the claimant had been off sick for in excess of 4 and a half months. Incidents 6(c) to 6(t) 6(c) Having his timesheets intercepted and monitored in July/August 2017 by E

[219]The respondent accepts that it monitored the claimant’s arrival and departure times. We do not accept that the claimant's timesheets were “intercepted” in any way. We preferred the respondent’s case that the monitoring in this case only lasted for a couple of weeks in July 2017 and not for the four months suggested by the claimant. We find that Mrs Payne had legitimate grounds for doing some initial monitoring of the claimant's arrival and departure times, concerns having been raised with her. We also find that the method adopted was a reasonable one, viewed objectively. What happened was that concerns were raised, the respondent took steps to monitor that and established that there was no need for taking any action against the claimant, and it therefore decided not to do so. We find that it was sensible for them to adopt the course they did rather than raise the matter with the claimant direct. It would be self-defeating to alert someone thought to be working short days that they were going to be monitored. We have accepted the explanation given for not alerting Mr Gentry to the situation until there was evidence that action was needed.

[220]We remind ourselves that the test we must apply is whether viewed objectively the respondent’s conduct was such as to destroy or damage the employment relationship, and that it was conduct for which there was, objectively, no reasonable and proper cause. In this case we find that there was reasonable and proper cause for the conduct, namely the allegations raised with Mrs Payne about the claimant working short days. We find that the respondent’s approach, viewed objectively did not breach the implied term.

[221]Although not originally pleaded in that way, during his evidence the claimant suggested that it was also inappropriate that the monitoring was carried out by Ms McManus. The suggestion appeared to be that her junior status made it inappropriate for her to be carrying out the monitoring because of its sensitivity. We find that there were objectively sound reasons why she carried out the monitoring. Mrs Lloyd was based at a different office and Mrs Payne herself was not working from the Manchester office every day. In those circumstances it was perfectly reasonable for the monitoring to be carried out by someone trustworthy who worked from the Manchester office.

[222]Our conclusion in relation to this incident, therefore, is that it did not in itself breach the implied term nor was it conduct which could have contributed to a cumulative breach of that term. 6(d) In December 2017 being referred to Occupational Health/questioning whether the claimant could render effective service by T Gentry/J Richardson Constructive unfair dismissal

[223]It is accepted that on 13 December 2018 Mr Gentry made a management referral to OH. We found he did so because the information passed on to him by Ms Richardson suggested there were grounds for concern that the claimant’s eyesight might be deteriorating. We also found that, contrary to the claimant’s case Mr Gentry had a conversation with the claimant about the referral before it was submitted to OH. We do not accept that Ms Richardson “instructed” Mr Gentry to make the OH referral as the claimant suggested. Given the information she had received from Mrs Payne and her awareness that this was not the first time the issue had been raised we find that it was perfectly reasonable for Ms Richardson to suggest to Mr Gentry that it was appropriate to refer the claimant to OH. We accept Miss McCann’s submission that a referral to OH in the context of concerns raised is a supportive act. The claimant accepted in cross examination that Mr Gentry submitted the referral out of genuine concern about whether his visual impairment was deteriorating. As we noted, the claimant did not object to the submission of the referral in principle.

[224]We do accept that after he saw it, the claimant objected to the OH referral in the form as originally submitted by Mr Gentry because he had ticked the second box relating to “providing reliable service”. We found that Mr Gentry did not intend by ticking that box to suggest that there were concerns about the claimant being able to continue in employment. Read as a whole, the form did not support that reading – the text box in the form made it clear that what was being asked for was advice to ensure the claimant had all the support he needed. We find Mr Gentry realised the impact on the claimant of ticking that box and apologised. We find that he made two amendments as a result of conversations with the claimant and sent an email to OH clarifying that he was only seeking to identify reasonable adjustments rather than seeking an assessment of whether the claimant could render effective service. The claimant’s email to Mr Gentry at 16.24 on 18 December 2018 (p.467) after the correction said it was “no problem”.

[225]The claimant’s case is that the referral to OH and questioning whether the claimant could render effective service contributed to a breach of the implied term. In relation to the referral itself, we find this was not a breach of the implied term and was, viewed objectively a perfectly reasonably managerial action given the concerns raised by the claimant’s colleagues. In relation to questioning whether the claimant could render effective service, we find that the respondent did not in reality “question” the claimant’s ability to do so. We accept that Mr Gentry ticked that second box on the original OH referral form but corrected this and apologised to the claimant, which he accepted. It was in any event clear from an objective reading of the form that the focus of the referral was to identify what support could be provided for the claimant if his eyesight was deteriorating.

[226]Our conclusion in relation to these two incidents, therefore, is that neither in themselves breached the implied term nor was there a cumulative breach of that term as a result of those incidents. Disability related harassment

[227]These incidents are also said to be acts of disability related harassment. In relation to this, we accept that the referral was made because of concerns about the claimant's visual impairment. The conduct was disability related.

[228]In relation to whether the referral was unwanted conduct, the evidence is that the claimant was aware of and did not object to the referral to OH, albeit he was, to quote Mr Gentry, “not enthused” about it. We find that the conduct was “unwanted” – we do not think an employee has to actively object to conduct for it to be unwanted.

[229]In deciding whether the referral had a harassing effect, we must take into account the claimant’s subjective perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect. We find that the claimant did subjectively find the referral to be violating to his dignity in the sense that it created a humiliating or offensive environment. He saw it as arising from “false allegations” about his visual impairment and based on colleagues talking about him behind his back. We find that perception was rooted in his tendency to view anything Mrs Payne did in a negative light. It is clear that from the first he was certain that it was Mrs Payne who had raised concerns with Ms Richardson. However, we do not think that it was reasonable for the referral to have that effect. The purpose of the referral (as submitted and corrected by Mr Gentry) was to ask OH whether there were further reasonable adjustments which could be made to assist the claimant. That was based, we find, on genuine concerns raised by colleagues. It was, as Miss McCann submitted, a supportive act. The claimant himself accepted that Mr Gentry made the referral out of genuine concern for his wellbeing given the information he had received. Given that, we find that the making of the OH referral did not have a harassing effect nor did it have a harassing purpose.

[230]The claim of disability related harassment based on the making of the OH referral fails.

[231]We accept the claimant did not consent to the OH referral raising the question about his rendering effective service in the original OH referral and that this was unwanted conduct. We do find, based on the claimant’s evidence, that he perceived the ticking of that box to create a humiliating environment but do not think it was reasonable for it to have that effect. Mr Gentry took swift action in apologising and correcting the form and the claimant accepted the apology was sincere. We do not find the ticking of the second box had a harassing effect or purpose. The disability related harassment claim based on it fails. 6(e) Alleging (on 14 December 2017) the claimant's eyesight was deteriorating/referring to the claimant as “walking in the dark”/failing to disclose who had made allegations/urging the claimant to press for stem cell therapy.

[232]We accepted Ms Richardson’s evidence that she did not tell the claimant that his eyesight was deteriorating but that she did say that concerns had been raised by the claimant’s colleagues that the claimant’s eyesight was deteriorating. That was why an OH referral was appropriate. The respondent owed the claimant a duty of care. It also needed to identify whether there were any adjustments or support it needed to put in place. Miss Barry submitted that there was no proper basis for asserting that the claimant’s eyesight was deteriorating. We have found that Ms Richardson did not make that assertion except in terms of reporting the concerns raised with her. We have found that the concerns raised were genuine concerns. We do not find that Ms Richardson reporting what she had been told about those concerns breached the implied term. She was explaining to the claimant why she had advised an OH referral was appropriate.

[233]So far as the comment about walking in the dark is concerned, we find that Ms Richardson literally meant it as that. The claimant’s team had raised concerns about the claimant walking in the dark in icy weather. We found that Ms Richardson’s conversation arose out of genuine concerns. So far as the comments about stem cell therapy are concerned, we found Ms Richardson made them in the context of explaining the benefits of the OH referral.

[234]In relation to the constructive dismissal claim, we do not find that the comments were such as to breach the implied term. Although, as we say below in considering the harassment claim, some disabled people would find the comments patronising, we do not think that they can be characterised as conduct without reasonable or proper cause (given that we have found genuine concerns had been raised about the claimant’s eyesight deteriorating) nor do we find it was conduct intended or likely to destroy or seriously damage the employment relationship.

[235]The final element of this complaint about this conversation is the failure to disclose who had raised concerns about the claimant’s deteriorating eyesight. Ms Richardson in this case was seeking to balance the desire of the employees concerned to remain anonymous with the claimant’s desire to know who had been saying these things about him. Given that the persons raising the matters had wanted to remain anonymous, we find that Ms Richardson did have an obligation at that point not to disclose their identity without at least seeking their consent to do so. We found there is reasonable and proper cause for the decision not to disclose. We do not find that this was conduct breaching the implied term. Disability related harassment

[236]We accept the comments made by Ms Richardson were “unwanted” and were related to the claimant’s disability. We do not find that Ms Richardson intended any of her comments during the call on 14 December 2017 to have a harassing effect. We considered whether they had a harassing effect. In doing so, we bear in mind the context. The relationship between the claimant and Mrs Payne was, as we have said, a fraught one. It is apparent from the claimant’s email to his wife on 21 December 2017 (p.500) that the claimant thought (correctly as it turned out) that it was Mrs Lloyd and Mrs Payne who had raised concerns. His perception of the comments made by Ms Richardson was undoubtedly influenced by his perception of Mrs Payne having an agenda against him.

[237]In terms of the effect on the claimant, we noted that he did not write the email recording what was said at the meeting until 21 December 2017, a week later. In that email he does not say that he found the comments particularly offensive or humiliating. However, we accept that the fact that he recorded those comments at all meant he found them significant. He did not specifically set out the comments in his email to Dr Rashbass on 24 January 2018 but did say that senior management “commented on my disability without any knowledge”. He was happy to meet Ms Richardson with Mr Gentry on 20 December 2017.

[238]We found that Ms Richardson did not make the comment alleged about the claimant’s eyesight deteriorating. We find that what she did was report the concerns raised by colleagues that it was deteriorating. That was by way of explaining why the OH referral was appropriate. On balance, we find that the claimant did not at the time perceive the comment as having a harassing effect. In reaching that conclusion we have taken into account the guidance in Betsi Cadwaladr and Grant about the threshold to be met if words are to have a harassing effect. We find that although the claimant was unhappy and angry about what Ms Richardson was telling him that anger was focussed on the concerns having been raised anonymously “behind his back” rather than on Ms Richardson’s comment itself. That seems to us consistent with the claimant not specifically raising that comment with Dr Rashbass, the timing and manner of its recording in his email on 21 December 2017 and the fact that he was happy to meet Ms Richardson again on 20 December 2017. If we are wrong and the claimant did perceive the comment to have a harassing effect then we would have found that it was not reasonable for the comment to have that effect. It was merely passing on information raised as an expression of genuine concern in the context of explaining why an OH referral was appropriate.

[239]When it comes to the comment about “walking in the dark”, our conclusions are the same. Although we accept that even where motivated by genuine concern, a suggestion that the claimant could not manage to safely get home by himself could be seen by some as paternalistic and patronising, we do not think that the claimant perceived it as having a harassing effect. We say so for the same reasons as apply to the first comment. If we are wrong and the claimant did perceive it to have that effect we find it would not have been reasonable for it to have that effect. Not everything which is perceived as offensive meets the seriousness needed to objectively have a harassing effect. In this case (especially given the intent was benign) we would have found it was not reasonable for it to have that effect.

[240]The same conclusions apply to the comment relating to stem cell therapy. We do not think that the claimant’s subsequent characterisation of what Ms Richardson said is accurate. We find that she did refer to the possibility of Occupational Health being able to, by a report, increase the likelihood of any treatment being progressed if it was needed (see page 495). Again we do not think that at the time the claimant perceived this to have a harassing effect. We accept the claimant may have thought Ms Richardson did not know what she was talking about but do not think that at the time he found the comment so offensive as to have a harassing effect. If we are wrong and the claimant did perceive it as having that effect, we do not think it was reasonable for it to have that effect. We are conscious that the test is not whether Ms Richardson intended the comment to have that effect but whether it was reasonable for it to have that effect. However, the fact that Ms Richardson made the comments by way of seeking solutions (even if clumsily put) taken with the context (seeking to explain how an OH referral could assist) means we find that it was not reasonable for the comment about stem cell therapy to have a harassing effect.

[241]When it comes to harassment, we accept that Ms Richardson did not have a harassing purpose in not disclosing the names of those who had raised concerns. In terms of whether it had a harassing effect, we do accept that for the claimant not knowing who had raised concerns about him was unsettling and could make him anxious. We do not think, however, that the failure to disclose the names was sufficient to meet the threshold for conduct having a harassing effect. Even if the claimant did genuinely perceive it to have that effect, we find it was not reasonable for it to have that effect. Ms Richardson had explained why it was not appropriate to disclose the names and had provided the claimant with reassurance that the concerns had been raised in confidence with her rather than being the subject of “Chinese Whispers” between his colleagues. 6(f) Failing to treat the claimant's email as a grievance/failing to progress the claimant's request for a meeting by T Gentry/J Richardson from 18 December 6(g) Refusing to confirm who had made (false) allegations in relation to the claimant by J Richardson from 18 December 2017 6(h) During a teleconference with T Gentry and J Richardson on 20 December 2017, J Richardson refused to give the names of those who had raised concerns and said she would only speak informally to those individuals

[242]Miss Barry suggested that the claimant’s email of 19 December (page 496) to Mr Gentry and Ms Richardson should have been treated as a grievance. That email was part of the email conversation setting up the meeting with Mr Gentry and Ms Richardson on 20 December. We do not understand the claimant to be saying that that email constituted a formal grievance. The claimant's evidence was that he was familiar with the respondent’s grievance procedure which requires a formal grievance to be raised using a grievance record form. The email does not use the word “grievance”, but even if it is treated as an informal grievance it seems to us that Ms Richardson and Mr Gentry did take steps to seek to address it. They did not do so in the way that the claimant wanted, i.e. by disclosing the names of those colleagues who had raised concerns. We find, however, that the respondent acted reasonably in seeking to balance the claimant's desire to know who had raised the concerns against the concerns of those colleagues who had raised the matter confidentially. Ms Richardson and Mr Gentry did not fail to progress the matter. Instead, Ms Richardson contacted the two individuals concerned and asked them to meet with the claimant, giving a specific deadline set by the claimant (9 January 2018) for doing so.

[243]If there was a criticism to be raised of Ms Richardson, it was that she did not subsequently contact the claimant to let him know that the individuals concerned (i.e. Mrs Payne and Mrs Lloyd) had declined to meet with him. We accept that what had been agreed was that the individuals would contact the claimant. It does not seem that there had been any agreement about what would happen if they refused to do so. In hindsight it would have been preferable if Ms Richardson had confirmed what the position was rather than “leave the claimant hanging”. We note, however, that the claimant did not contact Ms Richardson or Mr Gentry to chase up matters after 9 January 2018. We do find that there was an onus on the claimant to progress matters using the respondent’s grievance procedure if he sought to do so. That is in fact what he subsequently did by contacting Dr Rashbass on 24 January 2018.

[244]Viewed objectively, we do not think that this was conduct which could breach the implied term. Nor do we think that cumulatively events up to that point breached that implied term. We are supported in that view by the claimant's own email of 20 December after the meeting in which he thanked Mr Gentry and Ms Richardson for listening to his concerns. We conclude that the claimant as at that point was happy with the steps that had been agreed. 6(i) Failing to refer to the grievance procedure/alleging the claimant intimidated colleagues/proliferating criticism by T Rashbass on 24 January 2018

[245]In relation to Dr Rashbass’ actions, we found that he treated the claimant’s email as an informal grievance. We find he was entitled to do so, in particular given that the claimant had not submitted it as a formal grievance record or otherwise referred to it as a grievance. He dealt with it as an informal grievance in accordance with the grievance procedure. He carried out an investigation in a speedy manner, met with the claimant and confirmed the outcome in writing. The outcome was not what the claimant wanted, but that is not something which amounts to a breach of the implied term. It was for the claimant to take the next step and escalate matters by lodging a formal grievance if he was unhappy with the outcome. He did not do that until 6 August 2018. He did not respond to Dr Rashbass at all to suggest he was unhappy with the outcome - we found the draft email at page 554 was unsent.

[246]When it comes to the comment that the claimant’s comment found him intimidating, we accept that that was not something the claimant wanted to hear but it was, we find, the feedback which Dr Rashbass had received. In those circumstances, we do not find his conduct objectively was something which could have contributed to wards a breach of the implied term.

[247]We do find that there was a degree of lack of co-ordination between the various tracks which the respondent was pursuing to address the claimant’s concerns. In hindsight it might have been better if there was someone from HR involved co-ordinating to ensure what Mr Gentry was doing dove-tailed with what Dr Rashbass was doing. However, we do not find that, viewed objectively, that failure was sufficient to breach the implied term. 6(j) Failing to address management issues as set out in the OH report in early February 2018

[248]This refers to pages 541-543. At this point there was nothing to suggest (as the formal grievance subsequently did) that the claimant had any issues with the outcome of the OH recommendations and their implementation. The workplace assessment and physiotherapy were implemented and the SRA was carried out. Both the claimant and Mr Gentry signed off on the SRA. It did not include any suggestion that escalating to a formal grievance was the next step. The only outstanding outcome seems to us to have been consideration of whether the claimant wanted to discuss matters with the rest of the NW team, specifically to make it clear they should raise any issues about his disability with him first. The deadline for that was early March.

[249]It seems clear to us that what the claimant wanted was action taken against Mrs Payne. It is clear he disagreed with Dr Rashbass’ conclusions. However, the claimant did not as part of the SRA on in discussion with Mr Gentry identify escalating matters to a formal grievance as an action point, which would have been the next step. We find it was reasonable for Mr Gentry to take the view that any grievance process was parallel but separate to the SRA and the onus at that point lay on the claimant to raise a formal grievance if that was what he wanted to do. Similarly, so far as Dr Rashbass was concerned, the claimant had not responded to his email setting out the outcome of his investigation of the informal grievance. He had invited the claimant to comment but he had not done so either by email or by escalating matters to a foal grievance.

[250]As we have said, we do find that there was an element of fragmentation in the way that the respondent was addressing the various matters being raised by the claimant through various channels. Dr Rashbass was dealing with one aspect, Mr Gentry was dealing with the OH recommendations and the SRA. As we have said, in hindsight problems might have been reduced if there had been greater coordination. We do not find that failure, however, to amount to a breach of the implied term either in itself or cumulatively with what went before. 6(k) Failing to implement back to work procedures and failing to meet the claimant/failing to proactively address reasonable adjustments by T Gentry on 5 April 2018

[251]We do accept that Mr Gentry failed to carry out and record a formal return to work interview with the claimant when he returned from his periods of absence in March-April 2018. We found Mr Gentry was not aware the claimant had returned until 13 April 2018. We find that Mr Gentry did informally carry out a return to work interview by phone on that date but it was brief, limited to asking the claimant how he was and discussing work matters. We accept that Mr Gentry did not complete any of the documentation required by the relevant policy. We do find that had Mr Gentry conducted a full return to work interview that might have contributed to better relations with the claimant. It might have identified specific needs the claimant had (though there is no evidence the claimant raised nay). We find that this was something which could have been done better but was not sufficient in itself to breach the implied term. It was conduct which could contribute cumulatively with other matters to such a breach but even taking that into account we do not find that cumulatively there was a breach as at 13 April 2018. 6(l) Removing work from the claimant by T Gentry on 13 April 2018

[252]In her submissions for the claimant Miss Barry accepted that the data loading work was always expected to be removed. It is clear to us that not only was it expected to be removed as far back as 2017 but that the claimant was supportive of that. In addition, we find that the removal of the work would have lessened his workload and potentially, from Mr Gentry’s point of view, helped alleviate the stress he was under. We do not find that the removal of the work was a breach of the implied term. As we said in relation to incident 6(k), however, we find that had a fullblown return to work interview been carried out this might have reduced the claimant's perception that the decision to remove the work at this point was somehow part of an ongoing process to undermine or ostracise him. Viewed objectively, however, we do not think that the action of removing the data loading work could breach the implied term. There were reasonable grounds for it, and we find that it was an attempt to alleviate the claimant's workload rather than punish or persecute him in any way. We do not find that it was an incident which could contribute to a cumulative breach. This is the final incident referred to in the List of Issues which occurred prior to the formal grievance issued by the claimant on 6 April 2018 through his solicitor.

[253]To summarise the position, we found that there were some things which the respondent could have done better. We find in particular that had Mr Gentry carried out a more comprehensive return to work interview on 13 April this might have alleviated some of the claimant's concerns that he was being treated badly by the respondent. Viewed objectively, however, we do not find that cumulatively at this point the respondent’s conduct did breach the implied term. 6(m) Corresponding directly with the claimant/ignoring proposed reasonable adjustments/applying a standard grievance procedure/failing to proactively address the claimant's grievances within a stated timescale/failing to agree to CEDR mediation by the respondent and J Rashbass from 6 August 2018

[254]The matters raised in this issue continue and overlap with subsequent issues in the list. For example, the issue of CEDR Mediation recurs in issues (n) and (t). However, we have to examine whether there was a cumulative breach of the implied term at various points in time and to assess whether there was at those points in time a failure to make reasonable adjustments. Rather than deal with each issue (e.g. CEDR Mediation) together for the whole of the period up to resignation we have therefore examined that issue as at the point in time to which the issue relates. We have tried to cross refer between issues where that helps reduce repetition.

[255]We take this issue to relate to the respondent’s initial response to the claimant’s formal grievance since later matters are dealt with in subsequent items on the list of issues. In relation to communicating directly with the claimant, we found that Ms Bellamy did write to the claimant on 17 August 2018. She did so partly to seek his consent to respond to his solicitors. We find that was a perfectly reasonable step for her to take.

[256]She did in her letter of 17 August 2018 confirm that the respondent would be keeping in touch with the claimant in line with its long-term absence management procedures. Again, we find that a perfectly reasonable thing for her to do. Viewed objectively we do not find that to be something which was intended or likely to destroy or seriously damage the employment relationship. If anything, it was the opposite, i.e. a commitment to attempting to maintain that relationship and enable the claimant to eventually return to work.

[257]In fact, once she received the claimant’s consent on 21 August 2018 the respondent corresponded with Mr Valentine on behalf of the claimant until 3 October

[258]When it comes to the alleged failures to proactively address the grievance, we find this is simply not supported by the facts. Ms Bellamy’s response on 17 August 2018 confirmed the appointment of Ms Sewell as a Stage One Manager to deal with the grievance, set out dates 28-30 August for the Stage One grievance meeting but also confirmed that the claimant’s part in the process would be dealt with by correspondence only if he so requested.

[259]When it comes to the failure to agree to external mediation, Ms Bellamy’s letter confirmed that the respondent that the respondent would progress that and would be in touch as soon as possible with details. She did not specifically confirm the mediator would be CEDR qualified but we do not see that as something which could contribute to a breach of the implied term when viewed objectively.

[260]Ms Bellamy’s letter also agreed to the requests that the claimant’s salary would remain at full pay throughout the grievance process and that no formal action would be taken under the absence management procedures. We do not find that anything in the respondent’s initial response to the grievance, viewed objectively, amounted to or could contribute to a breach of the implied term. Failures to make reasonable adjustments

[261]These matters were also said to be failures to make reasonable adjustments. The alleged PCP was the application of the respondent’s standard grievance procedure. The substantial disadvantage was said to be the claimant's inability to deal with his grievance using the standard procedure by reason of his mental health condition. We accept that – we find that the claimant’s pre-existing mental impairment meant he would be placed under additional stress in undergoing the standard grievance procedure compared to those not having that mental impairment.

[262]We also find that the respondent did know or could reasonably have been expected to know that application of the standard grievance procedure would cause the claimant additional stress compared to someone not already suffering from stress, anxiety and depression. It had constructive knowledge, based on the claimant’s long-term stress related absence and the letter of 6 August 2018 that the claimant was already suffering from that mental impairment.

[263]We do not find that applied to insistence on a CEDR mediator. Certainly at this point in the correspondence, there was no explanation of why, specifically, an external CEDR qualified mediator was a reasonable adjustment. We do not find that the respondent could at that point have known that failure to secure an external CEDR mediator would place the claimant under a substantial disadvantage. We find the duty to make a reasonable adjustment in relation to the type of mediator did not arise.

[264]In relation to adjustments to the Grievance Procedure generally, we find, that at this point there was no failure to make reasonable adjustments to the grievance procedure. The adjustments sought (dealing with matters by correspondence, no reduction in sick pay and no capability procedure) had all been agreed to. The adjustment of corresponding with the claimant’s solicitor about matters was also agreed to as had the change of grievance manager. We do not find that initially seeking the claimant’s confirmation that he consented to the respondent corresponding with Mr Valentine was a failure to make a reasonable adjustment. 6(n) Failing to elevate the grievance to Director/failing to address grievance by means of correspondence/failing to progress grievance in a timely fashion/insisting that claimant attends a grievance meeting/continuing failure to agree to CEDR mediation/pressing claimant to attend capability meeting/progressing formal capability process by the respondent and C Bellamy on 28 August 2018

[265]We take this issue to relate to matters up to Mr Goodman’s letter of 29 August 2018 which was the respondent’s substantive response to Mr Valentine’s letter of 21 August 2018. We reject the suggestion that the respondent was failing to progress the grievance in a timely fashion. It was the claimant who had rejected the proposed Stage One Grievance Manager and the proposed dates for the first grievance meeting at the end of August 2018.

[266]We also reject the submission that the respondent insisted that the claimant attend a grievance meeting. The respondent had made clear in its two letters of 17 August 2018 that the claimant could participate in the grievance process by correspondence if he so requested but offered the claimant the opportunity to attend a face to face stage one meeting. Mr Valentine’s letter of 21 August appeared to switch track by setting out the terms on which the claimant would attend a face to face meeting, rather than insisting on participation by correspondence only.

[267]By the 29 August 2018 the respondent had agreed to the appointment of a different grievance manager, agreed to the proposal of an agenda for the face to face meeting, to a neutral venue and to Mr Valentine attending (despite it being standard procedure that legal advisers did not do so). It had also set out its (we find) perfectly reasonable explanation for why TCM would be an appropriate mediator in this case rather than a CEDR mediator.

[268]It is correct that it failed to agree to the claimant’s demand that the grievance be dealt with by the respondent’s Chief People Officer. Viewed objectively, we do not see anything in that refusal which could breach or contribute to a breach of the implied term. We accept Miss McCann’s submission that as a Band 7 employee, it was perfectly appropriate for the grievance to be dealt with by someone below Chief People Officer level. The eventual appointee, Louise Forster, was at Band 8a, so 3 bands more senior than the claimant.

[269]Although the issue refers to “pressing claimant to attend capability meeting/progressing formal capability process” that was not the case at this point in time. If this refers to the automated letters sent out relating to the claimant’s sick pay, the respondents had explained and apologised for these.

[270]Our conclusion is that as at 29 August 2018 the respondent had not breached the implied term. In fact, we find that it had agreed to the majority of the demands made of it by Mr Valentine on the claimant’s behalf.

[271]Our conclusions are similar to those relating to issue (m). While accepting the standard grievance procedure placed the claimant at a substantial disadvantage and the respondent had knowledge of this, we find there was no failure to make reasonable adjustments. It was the claimant not the respondent who had decided on a face to face grievance meeting rather than correspondence only. The respondent agreed to the reasonable adjustments in relation to that meeting including there being an agenda, a neutral venue and Mr Valentine attending. They also agreed to a change in the officer conducting the stage one grievance.

[272]Our conclusions in relation to the appointment of a CEDR qualified mediator in (m) also apply at this point in time. We find the duty to make a reasonable adjustment in relation to the type of mediator did not arise.

[273]In relation to the insistence that the grievance be dealt with by the Chief People Officer, there was no explanation as to why that was a reasonable adjustment. There is no evidence that having the grievance dealt with by someone at Ms Forster’s level of seniority rather than director level would cause the claimant a substantial disadvantage compared to a non-disabled person. That is not explained in Mr Valentine’s letter of 21 August 2018 which talks about the seriousness of the issues raised but does not set out the need for the CPO’s involvement in terms of impact on the claimant. We find that the duty to make a reasonable adjustment in relation to the seniority of the person carrying out the grievance did not arise. 6(o) Pressing the claimant to attend a long-term sick review meeting with fortnightly meetings thereafter by the respondent/C Bellamy on 13 September

[274]We remind ourselves that the context for Mr Gentry’s email of 13 September 2018 was that the claimant’s fit note had expired on the 5 September 2018. In his letter of 21 August 2019, Mr Valentine had acknowledged that the respondent was “Of course” entitled to keep in contact with the claimant while he was their employee. We find the email from Mr Gentry was supportive and focussed on increasing the chances that the claimant would be able to return to work and on keeping in touch with him. Contrary to the way the issue is phrased, it did not insist on “fortnightly meetings” but on fortnightly contact to keep the claimant up to date with departmental happenings.

[275]We find that if anything Mr Gentry should have contacted the claimant earlier under the respondent’s sickness policies. We note that, as had been agreed, the request was sent via Mr Valentine not direct to the claimant. We do not accept, which this and subsequent issues in the list appear to suggest, that the long-term sickness review meeting was some form of “capability process” or other action against the claimant. Rather, it seems to us it was an attempt to maintain links between the respondent and the claimant with a view to facilitating his eventual return to work. Mr Gentry was acting in accordance with the respondent’s sickness policy makes it clear that the purpose of such a meeting is not to “punish” the employee for being unwell but to ensure they are not isolated and to provide any support they can. We find it was not something which breached or contributed to a breach of the implied term.

[276]The PCP was said to be the application of the respondent’s sickness and capability procedure. The substantial disadvantage was the fact that the claimant was unable to participate in that process because of mental health condition and which the respondent had been advised had been caused by their treatment of him.

[277]In relation to this, the claimant has not shown that the requirement to attend the long-term sickness review meeting put him under a substantial disadvantage compared to a non-disabled person. We find that the considerations which apply to the grievance procedure which we accept would be stressful do not automatically apply to the kind of long-term sickness review meeting suggested by Mr Gentry nor to the subsequent contact proposed in his email. In her submissions, Miss Barry suggested that the correspondence from the respondent did not make it clear that these were simply informal/keeping in touch meetings. We do not accept that submission. As we said above, the email from Mr Gentry was very supportive and nothing in it, we find would read to suggest that the claimant was being subjected to the initial steps of capability proceedings. We find, in the absence of evidence that being invited to a long-term sickness review meeting would put the claimant at a substantial disadvantage that the duty to make reasonable adjustments did not arise. We also find that the respondent could not reasonably have known that an invitation to such a meeting in supportive terms would have placed the claimant at a substantial disadvantage. Accepting that they had knowledge he was disabled due to stress, anxiety and depression does not seem to us to mean that everything the respondent did in relation to the claimant would make the stress worse.

[278]We find, in any event, that the respondent did make changes to its usual procedure by sending the invite via the claimant’s solicitor rather than corresponding directly with the claimant as would have been the norm under its sickness process. 6(p) Continuing to press the claimant to attend a meeting rather than address his concerns in the manner agreed by correspondence by the respondent/C Bellamy in August and September 2018

[279]As we said in relation to issue (n) we found that it was the claimant who wrote putting forward terms on which he would meet face to face. It was not the respondent who refused to deal with his concern (by which we take the claimant to be referring to the grievance) by correspondence. It had made clear its willingness to do so in its letter of 17 August 2018 if that is what the claimant wanted to do. It was not until Mr Valentine’ letter of 4 October 2018 that he re-stated that the claimant wanted the grievance dealt with by correspondence, to which the respondent again agreed. Nothing the respondent did in relation to this was, we found, conduct breaching or contributing to a breach of the implied term.

[280]In relation to this we repeat our conclusions in (m) and (n). The respondent had agreed to make reasonable adjustments by agreeing to deal with the grievance by correspondence. There was no failure to make a reasonable adjustment in that regard. 6(q) Setting out an intention to communicate directly with the claimant contrary to the claimant's stated reasonable adjustment/continuing to press the claimant to attend a meeting by the respondent/C Bellamy in September/October 2018

[281]Ms Bellamy did on 26 September 2018 confirm to Mr Valentine that the respondent would be in touch with the claimant to manage his sickness absence. The context for that was two-fold. The first, as already mentioned, was that Mr Valentine had acknowledged in his letter of 21 August 2018 the respondent’s right to contact the claimant while he was still its employee. The second was that it was 13 days since Mr Gentry’s email had been sent to Mr Valentine to pass to his client and there was still no response about the proposed meetings. By 2 October, that delay had grown to over 3 weeks. In those circumstances we do not find it inappropriate or a breach of the implied term for the respondent to contact the claimant about the long-term sickness review meeting direct on 3 October 2018. Neither do we find that setting up the meeting was itself an act in breach of the implied term. We have set out our reasons for that in relation to issue (o) above. We do not find that the meeting detailed in the letter being put on a more explicitly formal footing changes those consideration. There was still we find no suggestion that the meeting was a “capability” meeting or otherwise done to punish the claimant.

[282]The PCP was said to be the application of the respondent’s grievance policy. The substantial disadvantage was the claimant's inability to communicate directly with the respondent and attend meetings with them due to his mental health condition which the respondent was advised had been caused by their treatment of him.

[283]In relation to this, we find that the respondent did not insist on 3 October 2018 on communicating directly with the claimant direct in relation to the grievance. It did not in relation to the letter of 3 October 2018 apply the PCP of applying its standard grievance policy. That was irrelevant to the letter sent by Mr Gentry which dealt with a long-term sickness review meeting.

[284]For the avoidance of doubt, if the intention is to refer to the respondent’s sickness policy as being the PCP, we repeat our conclusions in relation to issue (o) above.

[285]In relation to communicating with the claimant direct about the long term sickness review meeting, had there been a duty to make a reasonable adjustment we find that it was no longer a reasonable adjustment to communicate via the claimant’s representative where that representative was no longer responding substantively resulting in delay. We say that in particular given that the communication was not in relation to the grievance but in relation to a long-term sickness review meeting. 6(r) Instructing the claimant he must attend a formal capability meeting contrary to an agreed adjustment by the respondent/C Bellamy on 3 October 2018

[286]It seems to us this issue overlaps with the issue above. We find that there was no instruction that the claimant must attend a formal capability meeting. The meeting the claimant was invited to attend was a long-term sick review meeting. That is fundamentally different. We have set our conclusions on the invitation to attend that meeting in relation to issue (o) above and do not repeat them here. 6(s) By email sent late in the evening instructing the claimant he must respond to communications personally and attend a formal capability hearing by the respondent/C Bellamy on 11 October 2018

[287]We do not find this allegation to be made out. The claimant was not invited to a “capability hearing”. The invitation was to attend a long-term sickness review meeting which, as we have noted already, is a supportive process intended to facilitate a return to work and ensure the employee on long term sickness absence is not isolated. We also accept Miss McCann’s submission that Ms Bellamy’s email of 11 October 2018 does not require that “he must respond to communications personally”. Ms Bellamy requested “a response” without specifying it must be from the claimant. The context for that was Ms Bellamy having tried and failed to obtain a response from Mr Valentine to Mr Gentry’s request for the claimant to attend a longterm sickness review meeting. The broader context was the acceptance by Mr Valentin for the claimant from the exchange of correspondence in August 2018 that the respondent was entitled to keep in touch with the claimant while he was their employee.

[288]We also accept Miss McCann’s submission that Ms Bellamy could have had no expectation that the claimant would pick up a work email sent outside working hours given that he was at that point signed off sick with stress.

[289]Neither the email itself nor the time it was sent, viewed objectively, were matters which breached or could contribute to a breach of the implied term.

[290]These matters are also said to be a failure to make a reasonable adjustment. The relevant The PCP was said to be the application of the respondent’s capability process. The substantial disadvantage was the claimant's inability to respond in the manner requested by the respondent and attend a hearing due to his mental health condition and the respondent’s treatment of him.

[291]As we have said above, we do not find that the allegation is made out. We find the PCP was not applied. The respondent did not apply its capability procedure to the respondent. It applied its long-term sickness management policy. We have given our reasons in relation to issue (o) as to why we find that the duty to make reasonable adjustments did not arise in relation to that long term sickness policy. 6(t) Failing within 14 days of 4 October 2018 to reasonably or adequately address the claimant's grievance by means of a modified procedure/elevate the matter to a senior executive/set out in full the allegations that have been made against the claimant/set out a plan by which OH recommendations would be addressed/agree to instruct CEDR mediator and remove C Bellamy from conduct of the matter by the respondent/C Bellamy on 15 October 2018

[292]Most of these matters in this issue are a repeat or continuation of matters we have already dealt with in relation to previous issues. To avoid repetition, we will summarise our conclusions. We find that the respondent had sought to progress the claimant’s grievance. We find that delays in making progress were due to the claimant shifting his position (in terms of whether his participation was to be by correspondence or face-to face) and demanding changes to the manager appointed to progress the grievance. The claimant had agreed to various adjustments to its standard procedure including dealing with matters by way of correspondence; changing the grievance manager; allowing Mr Valentine to attend the face to face meeting when that appeared to be the claimant’s preferred way of participating; confirming the claimant’s sick pay would not be reduced and confirming he would not be subject to absence management/capability procedures. Of the matters it had not agreed, we find (for reasons already given above) that it acted perfectly reasonably in refusing to appoint a Director level manager to deal with the grievance and in proposing to use a CMC accredited mediator rather than a CEDR accredited mediator. When it comes to the OH recommendations, we find that they had been implemented (see issue (j)).

[293]We also do not find that there were grounds for removing Ms Bellamy from the process. As already stated, we found nothing to reproach in her conduct or in her correspondence with the claimant or Mr Valentine. In short, we find the respondent had done its best to progress matters and it was the claimant’s shifting and substantial demands about how the process should be conducted which had led to delays in progressing it. For the avoidance of doubt, we also find that the lack of substantive response from Mr Valentine during September 2018 meant there were reasonable grounds for Ms Bellamy and Mr Gentry to seek to progress the long terms sickness review by contacting the claimant direct.

[294]Viewed objectively, we do not find that the respondent’s conduct (whether cumulatively or because of any individual acts) breached the implied term.

[295]The PCP is said to be the application of the respondent’s grievance procedure. The substantial disadvantage was the claimant's inability to participate in that process due to his mental health condition as a result of the respondent’s

[296]We do not repeat what we have already said in relation to these matters above. In relation to the “new” issue of removing Ms Bellamy, even if the duty did arise, we do not consider that would be a reasonable adjustment. As we have said, we found nothing to reproach in her conduct or in her correspondence with the claimant or Mr Valentine. The email from Mr Valentine demanding her removal does not establish a link between her continued involvement and the alleged substantial disadvantage to the claimant. Instead it seeks her removal based on (we find) baseless assertions that she did not have the capability to deal with the matter and vague allegations that she had discriminated against the claimant (which we find she did not). We find no reason for thinking that any other HR manager appointed to deal with the claimant’s grievance would have acted any differently than Ms Bellamy did. Replacing her with a different manager who would have carried out the same steps would only have resulted in further delay given the need for them to be brought up to speed. We find no reason to think that appointing a different HR manager would have alleviated any substantial disadvantage if any were established unless they were willing to accede unquestionably to the claimant’s demands via his representative.

[297]In summary, we find no evidence that Ms Bellamy’s involvement led to a substantial disadvantage to the claimant. If we are wrong about that, we find the respondent could not reasonably be expected to know of any such substantial disadvantage. If we are wrong about that, we find that replacing Ms Bellamy would not have alleviated that disadvantage. Conclusions on constructive dismissal (1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

[298]Although not explicitly stated as such in the resignation email, we find that the resignation was in response to Ms Bellamy’s letter of 15 October 2018. (2) Has he or she affirmed the contract since that act?

[299]No. Affirmation does not arise in this case. (3) If not, was that act (or omission) by itself a repudiatory breach of contract?

[300]As explained above, we have found that it was not. (4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a breach of the Malik term?

[301]As explained above, we have found that Ms Bellamy’s letter of 15 October 2018 and the decisions set out in it were not part of a course of conduct which, viewed objectively, amounted to a breach of the implied term. We have set out our conclusions on this issue when dealing with the separate incidents in the list of issues from (c) to (t) above but summarise our conclusions below.

[302]We have noted that in some ways the respondent could have handled matters better. In particular, it seems that there were times when there was a lack of communication between the managers dealing with various strands relating to the claimant, for example between Dr Rashbass dealing with the claimant's informal grievance in January 2018 and Mr Gentry dealing with the stress risk assessment at around the same time. As we have noted, there were also points where, in hindsight, communication could have been better with the claimant, such as letting him know in January 2018 that neither of the colleagues who had raised concerns about him were willing to meet with him. We have no doubt that the claimant was sincere in feeling that he had been badly treated by the respondent and that, in particular, it had failed to engage with his contention that Mrs Payne was following her own agenda when she raised concerns about his eyesight to the respondent rather than doing so for genuine reasons. As we noted at the start of our findings of fact, by the time the incidents covered by the List of Issues began, we find that the claimant had already formed a view that Mrs Payne was in some way “out to get him”.

[303]We find that the claimant was incapable of appreciating that there might be alternative points of view to his when it came to what had happened. In particular, we find that the respondent, and Ms Richardson specifically, did have obligations to Mrs Payne and Mrs Lloyd who had provided information in confidence. The Tribunal also take the view that some of the claimant's colleagues (we accept not all) did find him difficult to deal with and from that point of view intimidating. We do not accept (and indeed it was not suggested by the respondent) that the claimant deliberately intimidated colleagues in any way.

[304]We remind ourselves that we must view the respondent’s conduct objectively. The question is whether viewed in that way its conduct was such as to be conduct which was intended or likely to destroy or seriously damage the employer and the employee. That behaviour must also be without reasonable cause. We do not find that the respondent at any point acted with the intention of breaching the implied term. We find that there were reasonable grounds for all of its actions. If there is criticism it is that it could have done some things better, as we have set out above.

[305]Not all failings by an employer will be serious enough to breach the implied term. In this case we find that even viewed cumulatively they are not. We find in particular that when it comes to the way that the grievance process was handled Ms Bellamy and her colleagues who dealt with the formal grievance from 6 August 2018 onwards did not act in a way to breach the implied term, despite the claimant's solicitor taking a strong and occasionally confrontational line on behalf of the claimant. He was clearly entitled to do so but we do agree that there is merit in Miss McCann’s suggestion that the tone of the correspondence and some of the demands made were the source of the difficulties in resolving matters.

[306]Our conclusion, therefore, is that there was no breach of the implied term. On that basis the claimant's constructive dismissal claim fails and we do not need to deal with the remaining issues in the list relating to unfair dismissal. Jurisdiction(a) Are acts prior to 12 September 2018 out of time?

(b) If so, can the claimant establish a course of continuing conduct to bring those acts in time?

[307]The respondent in its written submissions conceded that acts from 6 August 2018 were a continuing act and therefore in time. This question therefore arises only in relation to acts prior to 6 August 2018.

[308]Prior to that date, the last alleged acts of discrimination were the comments made by Ms Richardson in her telephone call with the claimant on 14 December 2018 and the failure to disclose who had raised concerns about the claimant's eyesight deteriorating. Since we have found that these were not acts of harassment we do not strictly need to decide the time limit point.

[309]However, in case we are wrong about that, we deal briefly with the time limit point. We find that the alleged acts of harassment in December 2017 did not form part of a continuing act with the alleged discrimination from 6 August 2018. We say that both because the nature of the acts complained about seem to us to be one-off incidents rather than part of a continuing state of affairs. We also say that because the alleged harassers (Mr Gentry and Ms Richardson) are not the same people involved in the decisions from August 2018 which the claimant says amounted to failures to make reasonable adjustments. We find, therefore, that the time for bringing a claim in relation to the incidents in December 2017 started to run from the date of the last of those incidents. We do find that those incidents taken together amounted to a continuing act up to 14 December 2017. That means that the usual time limit for bringing a claim under the EqA would expire on 13 March 2018. Even allowing for an extension of time for early conciliation the claim would ordinarily have had to be lodged by April 2018. In fact the claim was not lodged with the Tribunal until 19 December 2018. We therefore find that any claim is around 7-8 months out of time.

[310]The claimant did not adduce any evidence as to the reason for the delay in bringing a claim in relation to the incidents of harassment. Based on the other evidence we heard, we do find that the claimant was suffering from work-related stress from March 2018. However, he returned to work on 6 April 2018 until 26 April 2018. There is no indication that he would have been unable to lodge a claim or initiate ACAS early conciliation during that time. Certainly, from 6 August 2018 when Mr Valentine was instructed as his solicitor, there does not seem to be any impediment to the claimant issuing a claim at the Tribunal. From the Tribunal’s own experience, it is not unusual for a Tribunal claim to be lodged and for a grievance to continue in the meantime.

[311]We remind ourselves that as an EqA claim the test we are applying is whether it would be just and equitable to extend time. We take into account that disallowing that part of the claimant’s claim would cause him some prejudice. However, the substantial part of his claim i.e. the matters resulting in his dismissal, would still remain.

[312]For the respondent there is clearly, we find, a prejudice in having to deal with matters from December 2017 when the claim form was filed a year later. The nature of the allegations being made (i.e. what was said in conversations in December 2017 which were not formal meetings) means that there is a prejudice to the respondent in adducing evidence to defend the claim. On balance, therefore, had we been required to make that decision we would have refused the application to extend time on the just and equitable basis. Employment Judge McDonald Date: 23 February 2022