Mr R King v North East Ambulance Service NHS Foundation Trust: 2501335/2024
EMPLOYMENT TRIBUNALS
Case No 2501335/2024
Between
Mr R KingClaimantNorth East Ambulance Service NHS Foundation TrustRespondent
Before
Employment Judge SweeneyDate 30 May 2025
JUDGMENT
The unanimous Judgment of the Tribunal is as follows:[1]The claim of automatically unfair dismissal withing section 103A ERA 1996 (automatically unfair dismissal on grounds of ‘whistleblowing’) is not well- founded and is dismissed.[2]The claim of Detriment under section 48 and section 47B Employment Rights Act 1996 (‘whistleblowing detriment’)[3]The claim of wrongful dismissal is not well-founded and is dismissed.[4]The claim of failure to make reasonable adjustments is not well-founded and is dismissed.[5]The claim of direct disability discrimination (section 13 Equality Act 2010) is not well-founded and is dismissed. Case number: 2501335/2024 2[6]The claim of discrimination because of something arising in consequence of the Claimant’s disability (section 15 Equality Act 2010) is not well-founded and is dismissed.[7]The claim of unlawful deduction of wages/breach of contract in respect of expenses is dismissed upon withdrawal.
REASONS
[1]The Claimant had been employed by the Respondent for less than two years. He brought complaints of: 1.1. Automatically unfair dismissal: section 103A Employment Rights Act 1996 (‘ERA’) (‘whistleblowing dismissal’) 1.2. Detriment under section 48 and section 47B ERA (‘whistleblowing detriment’) 1.3. Disability discrimination: sections 13, 15 and 20-21 Equality Act 2010 1.4. Wrongful dismissal 1.5. Unlawful deduction of wages/breach of contract[2]Although not apparent from the Claim Form, in this hearing, he maintained that a manager of the Respondent manipulated others and used an incident that occurred on 02 February 2024 as a pretext for his dismissal whereas, the principal reason for dismissal was that he had made a protected disclosure in about December 2023. He also contended that he had been subjected to various detriments in the course of the disciplinary procedure, because he had made the disclosure. The Respondent’s position on this was that nobody in the Trust, and particularly, nobody who had any dealings in managing or disciplining the Claimant knew anything about any disclosure. It dismissed him solely because of the manner of his driving on 02 February 2024 and his lack of insight regarding the incident, which it considered to amount to gross misconduct. If the Claimant made a protected disclosure, which it could not accept because it knew nothing of it, the Respondent contended that this was academic as it had nothing whatsoever to do with his dismissal.[3]The Claimant also asserted that his dismissal was motivated by the fact that he was disabled (by virtue of dyslexia and ADHD) and that the dismissal was because of something arising in consequence of his disability. The Respondent’s position was that it did not know and could not reasonably have known that the Claimant was disabled but that, in any event, the reason for his dismissal had nothing whatsoever to do with disability and that he was not Case number: 2501335/2024 3 treated unfavourably because of anything arising in consequence of his disability – either by being dismissed or by being treated unfavourably in any other respect.[4]The Claimant’s complaint of failure to make reasonable adjustments concerned the arrangements for the disciplinary process. The Respondent did not accept that he was put to any substantial disadvantage. It also contended that it did not know, nor could it reasonably have known that he was disabled or likely to be put to a substantial disadvantage by any of the alleged PCPs (some of which it contended were not applied).[5]The final two claims were wrongful deduction of wages and unlawful deduction of wages/breach of contract. He contended that his conduct on 02 February 2024 did not warrant summary dismissal. He also contended that he was owed expenses in respect of his volunteering role as a ‘CFR’. The Respondent contended that on 02 February 2024, the Claimant repudiated his contract of employment and it was entitled to terminate his contract without notice. It denied that it was liable to pay him expenses. Case management[6]At a preliminary hearing on 27 August 2024, Judge Loy tried to get a better understanding. He recorded his understanding of the Claimant’s explanation in paragraph 10 of his case management summary, which referred to Mr Brolly and Ms Mason. The Judge also recorded in paragraph 12 of his summary the inability of the Claimant to identify either the legal obligation he says he believed the Respondent might not be following or the danger posed to any individual. Therefore, Judge Loy ordered the Claimant to provide further information by 08 October 2024 (paragraph 11 of his orders). This was eventually sent by Mr King on 15 April 2025, some six months after the date ordered.[7]That further information was at page 67 of the bundle. As regards the information provided in the staff survey, the Claimant stated (we have extracted from the document what appears to be what the Claimant says he set out): “… I used this survey to raise concerns I believed were directly related to patient and public safety …. Specifically, I raised objections to the internal proposal ….to restructure the Community First Responder (CFR) program by transitioning it under the management and training supervision of personnel wearing blue uniforms… I raised concerns that this would cause public confusion, damage trust and reduce confidence in both emergency responses and first aid delivery…. Additionally, I raised the issue of serious communication difficulties within the team…I believed they presented a real risk to public safety if left unresolved.” Reading day[8]The first day of the hearing was used by the Tribunal for the purposes of reading into the case. The parties attended on the second day. Due to the need to discuss the issues and deal with various applications, evidence did not get under way until 1.30pm. Case number: 2501335/2024 4
Preliminary matters
[9]Before hearing evidence, we discussed a number of preliminary matters with the parties as follows: 9.1. Adjustment requests by the Claimant 9.2. The claims and list of issues. 9.3. The Respondent’s application to exclude the evidence of one of the Claimant’s witnesses, Captain Nicholson. 9.4. The Claimant’s application for disclosure and for a witness summons for Captain Nicholson and Derek Bowen. 9.5. Application for a witness to give evidence remotely. 9.6. The Claimant’s email of 13 May 2025 attached to which was a document called an ‘addendum’. Adjustments[10]Prior to the commencement of the hearing, Mr King emailed the Tribunal regarding adjustments he required for the hearing. This included permission to use both a laptop and a secondary desk top computer, access to Wi-Fi, use of pastel green document backgrounds or overlays to reduce visual stress and improve readability, breaks upon request and flexibility in scheduling where possible. In a subsequent email, Mr King confirmed that he would be able to bring his own overlays and the Tribunal did not need to provide any coloured paper. Mr King had access to a printer and had printed documents on green paper. All of Mr King’s requests were accommodated by the tribunal.
The list of issues
[11]The Respondent had prepared a list of issues which were later refined by the Claimant. Upon going through those issues: 11.1. The Claimant confirmed that he was withdrawing his unlawful deduction of wages/breach of contract in relation to alleged unpaid expenses. 11.2. Although direct disability discrimination had been identified in the list of issues at the preliminary hearing of August 2024, no such cause of action was pleaded and no permission to amend had been granted. The Respondent did not object to the Claim Case number: 2501335/2024 5 Form being amended to reflect a section 13 claim and we permitted the amendment as per the terms set out in Judge Loy’s case management summary list of issues. 11.3. The Respondent conceded for the purposes of these proceedings that, at all material times, the Respondent was a disabled person within the meaning of section 6 Equality Act 2010 by virtue of ADHD and dyslexia. It did not concede ‘knowledge’ of either or of substantial disadvantage. 11.4. Each party had prepared their own list of issues. However, on discussing each it was readily apparent and agreed by both parties that there were no substantial differences between them. We had regard to each party’s version. However, we have produced an Appendix at the end of these reasons which contains the issues on liability which we considered to be the appropriate based on the pleaded cases, including the further information provided by the Claimant [pages 67-70] in response to Judge Loy’s orders and both lists of issues prepared by the parties. Captain Nicholson witness statement[12]The Claimant had served two statements from a witness: one on 02 May 2025, being the date on which the parties exchanged statements) and a second, supplementary statement on 15 May 2025. We were unaware of the second statement until the Respondent made its application to exclude the evidence in the morning of 20th May. However, we obtained a copy. The Claimant had taken it upon himself to obtain and send this second statement (apparently volunteered by the witness) in response to an email in the bundle by one Kevin Curry.[13]Captain Nicholson is a personal acquaintance of the Claimant’s. The Claimant explained that he was not seeking to call him as a ‘formal’ expert witness, although plainly he was putting him forward as a person with expertise. The entire statements consisted of opinion. In the first statement, that opinion was largely confined to the driving of the ambulance driver – there was a single line referencing the Claimant’s driving. The second statement was a commentary on the views of a manager of the Respondent (Mr Curry).[14]We excluded the evidence. We gave our reasons at the time. We considered the nature of the proposed evidence. It was opinion evidence. The general rule is that opinion evidence is inadmissible, it being the function of a witness to give evidence of facts and it being the function of the tribunal to draw inferences and conclusions from those facts. This general rule is modified where a person is called as a witness on which they are qualified to give expert evidence. There are provisions in the civil courts for calling expert witnesses. Although the CPR does not apply to tribunals and the tribunal is not bound by the rules applied in the civil courts, the principles governing the admissibility of relevant evidence are the same: HSBC Asia Holdings BV v Gillespie [2011] I.C.R. 192, EAT. The Claimant proposed to call Captain Nicholson as an ‘expert’ in all but name but without the normal safeguards attached to expert evidence being applied. Nothing he had to offer by way of Case number: 2501335/2024 6 opinion had any relevance to the issues in the disability discrimination complaints (sections 13, 15, 20-21) or the whistleblowing complaints. We excluded it as being opinion evidence and not at all relevant to those claims. At best, it might be argued to be relevant to the wrongful dismissal complaint (and the question whether as a matter of fact the Claimant had repudiated the contract of employment). However, it is the tribunal’s function to decide whether the Respondent has established on the evidence that the Claimant repudiated the contract. We are able to make findings on what happened and from that make a decision on repudiatory conduct. We were conscious that we must be careful only to admit evidence that is relevant and not to let acquaintances pronounce on the legal or factual matters that were properly the province of the tribunal. We decided, therefore, to exclude his evidence on the basis that it was opinion and not sufficiently relevant to the complaint of wrongful dismissal. Application for disclosure[15]This was withdrawn by the Claimant in the course of discussing the information sought. Application for witness to give evidence remotely[16]This too was withdrawn. In the course of discussing the witness’s evidence (Janet Griffith) Mr King said that this witness was going to give relevant evidence the issue of ‘disability’ but in light of the concession on ‘disability’, he agreed that all that remained was character evidence plus the expression of an opinion at the end of her statement. He accepted that neither of these things were relevant to the issues and that he did not need to call her as a witness. The Claimant’s email of 13 May 2025 attaching an ‘addendum’[17]Mr King was not ordered to send any further information to the Tribunal or Respondent. He explained that he had simply wished to make some further submission on some of the points raised by the Respondent. It was agreed that he could make those submissions at the end and if he wished, he could use the document as a reference point for putting matters to the Respondent’s witnesses. Arrangements during the hearing[18]As indicated above, we made the following arrangements for the benefit of the Claimant: 18.1. He was permitted to bring and leave overnight a desk top computer. 18.2. He was permitted to bring his laptop to the witness table. 18.3. There were regular breaks of 15 minutes after every 1 ¼ hours of hearing time. Case number: 2501335/2024 7[19]On the Claimant’s application, we adjourned early on the afternoon of Wednesday 21 May 2025. Mr King was tired and became upset. We were of the view that he needed to have time to refresh, gather his thoughts and have further time to check any page numbers that might have changed in light of additional pages having been added to the bundle. He said he would hope he would be to carry on the next morning. Just before 10am on 22 May, Mr King emailed asking for some further adjustments. We arranged for a sign to be placed on a consultation room, reserving it for his use. Upon discussing the issues with the bundle, and having sent the parties out to discuss the bundle, it transpired that Mr King had prepared his questioning of the Respondent’s witnesses from an earlier ‘disclosure’ bundle and not from the ‘hearing’ bundle. He clarified what he meant in his email by explaining that this had not led to any confusion during his evidence but it led to some confusion on his part when he started questioning Miss Price the day before. It was this that led to his request to adjourn earlier than usual the day before. After a break, Mr King confirmed he had both bundles and was able and ready to proceed. The Tribunal explained that it could always assist locate a document in the bundle if necessary.[20]Mr King proceeded to cross-examine the Respondent’s witnesses and no significant issues arose in respect of the bundle. After lunch on 22 May 2025, Mr King asked to admit a new document to the bundle. Mr Anderson did not object and it was added to the bundle as pages 804 – 806. Application to exclude witnesses[21]During his evidence on Tuesday 20 May 2025, Mr King asked whether it was normal procedure for witnesses of the Respondent to be present when he was giving his evidence. The Tribunal explained that it was but that a party could make an application to exclude witnesses. The following morning, Mr King made such an application in writing. Mr Anderson objected. The Claimant then withdrew the application after he gained some further understanding of the principles through discussion. He agreed that it was fair that the Respondent’s witnesses should be present to hear the remainder of his evidence. Witnesses[22]The Claimant gave evidence on his own behalf. In addition, he called: 22.1. Dean Bowen, Communications Officer A&E Control[23]The Respondent called the following witnesses: 23.1. Sian Philips Strategic Education Lead (investigated the complaint against the Claimant). 23.2. Karen Gardner, Assistant Director (part of disciplinary panel) 23.3. Aaron Bahanda, Head of Resourcing and Business Planning (disciplinary chair Case number: 2501335/2024 8 and decision maker) 23.4. Rachel Lucas, Assistant Director Quality and Safety (appeal hearing chair) 23.5. Beverley Smith, Volunteer Development Support Manager (line manager)
Findings of fact
[24]The following facts are the key facts as found by the Tribunal for the purposes of arriving at a decision on the issues in the case.[25]The Claimant, Mr King, commenced his employment with the Respondent on 19 June 2023. He was summarily dismissed on 14 March 2024. In his application form for the role, he described himself as having excellent written and verbal communication skills, with the ability to clearly convey complex information to stakeholders at all levels. He described himself as having active listening skills and the ability to foster open and transparent communication. He described having meticulous attention to detail and an ability to identify and resolve errors and inconsistencies quickly and efficiently [page 77]. He holds a Bachelor of Science Honours degree in Science and Biology. He is a qualified teacher. He described having excellent report writing skills, honed through years of experience in various professional roles and he can present complex information in a clear and concise manner while tailoring his writing style to suit different audiences [page 81]. He referred to having strong organizational ability and able to keep track of complex information [page 82]. We recognise that Mr King was applying for a job when completing this application and we also recognise that he may have been reticent about referring to dyslexia. Nevertheless, he gives no indication to any reader that he has any difficulty in processing information or reading material.[26]The Respondent is an Ambulance Trust which operates across a wide geographical area consisting of Northumberland, Tyne & Wear, County Durham, Darlington and Teesside. Mr King was employed as a Community Resuscitation Training Officer, based at Team Valley in Gateshead. We shall refer to this as the ‘employed role.’[27]In addition to his employed role, Mr King also acted as an unpaid volunteer Community First Responder. We shall refer to this as the ‘volunteer role’ and ‘CFR’ interchangeably.[28]As part of the application process for the employed role, Mr King undertook a pre-employment medical assessment with the Respondent’s Occupational Health Service on 11 May 2023 [page 716]. The Occupational Health Adviser reported that, among other things, Mr King declared having been diagnosed as dyslexic; that he has overlays that the can bring to work as needed; that he declined to add this to the fit slip but agreed that ‘manager to discuss DSE needs with Robert’ be stated on the fit slip. DSE stands for ‘Display Screen Equipment’. There is an additional reference, as regards the employed role, to the Claimant having a mental health condition under the section headed ‘disability’ (by the ticking of a box) [page 148]. This is found in the new starter form. The purpose of gathering Case number: 2501335/2024 9 that information is stated at the top of the page: to ensure that staff are not discriminated against because of their disability etc…[29]In the application form for the voluntary role, Mr King stated that he was a ‘neuro divergent individual with Dyslexia’ [page 73]. Other than those, there was no other written references to dyslexia in the course of his employment. There was no reference anywhere to the Claimant having ADHD. Mr King was interviewed for the job by Mr Bahanda and Mrs Smith. He did not refer to dyslexia or neurodiversity at the interview. He did not identify any needs for him to do the job. The employed role[30]In this role, Mr King was employed full time, 37.5 hours a week. He worked 7 ½ hours a day, either from 8am to 4pm (core hours) or 7am to 3pm. He was based at Newburn but would carry out his duties at various locations. The clue to the nature of the job is in the title. He was a trainer. He trained internal and external groups in basic and emergency life support training. This included the design of and training of volunteers and raising awareness of the First Responder schemes at local and national levels. Clause 35 of the Claimant’s contract of employment stated, among other things: “we shall be entitled to dismiss you at any time without notice or payment in lieu of notice if you commit a serious breach of your obligations as an employee” [page 166]. The Claimant signed the contract on 13 June 2023 confirming his acceptance of the appointment on the basis of the agreed job description [page 167]. As part of his job description, he was required ‘to ensure as an employee that’ his ‘work methods do not endanger other people’ or himself and to ‘adhere to all Trust and regulatory body operational procedures, protocols and guidelines at all times’ [page 416-417]. Thus, the job description and protocols and guidelines are incorporated into the contract of employment. The volunteer role / CFR[31]On 10 May 2023, Mr King received confirmation that his application to become a volunteer CFR had been accepted [page 421]. Following a period of training, he took up the volunteer role on 19 July 2023. It is clear that he performed well during the period of training.[32]In this volunteer role, the Claimant would attend emergencies in his own time outside his working hours, just as any other member of the public who volunteers. The description in paragraph 10 of the Respondent’s Grounds of Resistance is not in dispute and merits setting out in full. CFRs are an integral part of patient care within the Ambulance Trust. The CFR is a trained volunteer who is dispatched by the Respondent to deal with emergencies prior to the arrival of an ambulance. The CFR is dispatched at the same time but may arrive first as they are nearer. The CFR can provide early interventions in the crucial first minutes of an emergency. A CFR is generally asked to respond to emergency calls within the area in which they are located when they log in. They are alerted to the emergency call via the National Mobilisation App (NMA), called the GoodSAM app. Case number: 2501335/2024 10[33]The document at pages 804-805 – an internal NEAS bulletin prepared by Paul Brolly - explains what this is and how it works. We can do no better than set out some extracts from of the document: “GoodSAM allows Ambulance Service approved staff to respond to cardiac arrests near them when they’re off duty to provide effective CPR until our crews arrive on scene. The GoodSAM (Good Smartphone Activated Medics) app was introduced at NEAS in 2017, offering NEAS volunteers the ability to register to be automatically alerted by the GoodSAM Responder app on their smartphones when someone has a cardiac arrest nearby. How GoodSAM works When someone dials 999 and reports a patient as ‘not conscious and not breathing’, in addition to dispatching an ambulance, the three nearest GoodSAM responders within a 500-metre radius will also be automatically alerted by the GoodSAM app. If a responder receives the alert and is available, they can accept via the app and then be given directions to the location of the patient. If they are not able to accept the alert, they can decline, and the app will continue to alert the next nearest registered individuals. This does not impact the ambulance service’s dispatch procedures and resources will continue to be dispatched in the usual way.”[34]In Mr Bowen’s evidence, which we accept, he confirmed gave some further explanation of how the system worked. Mr Bowen works in the emergency control room (‘Control’). When working in Control, he has a screen on which all resources (ambulances, helicopter ambulances, volunteers etc) are visible. A volunteer CFR will only be visible to those in control if he/she has signed on/logged on via the app. Once logged on, the CFR is essentially telling Control that he is available to respond to an emergency in his location. The CFR’s location then appears on the Control screen. The system is designed so that it automatically allocates the nearest CFR to the emergency. The CFR receives an alert and must accept or decline the request. If he accepts, he is automatically provided with the location of the emergency and he makes his way there. If he declines, the system automatically alerts the next nearest CFR. There is a facility for the dispatcher based in Control to override the automatic allocation – even after accepted by the CFR. This can happen if, for example, by virtue of local knowledge or for some other reason, the dispatcher (such as Mr Bowen) decides that another CFR will get there faster. The dispatcher can stand the CFR down. Another reason this might happen is, if the ambulance crew is already at the scene and the situation is under control. Driving at work policy Case number: 2501335/2024 11[35]The Respondent has a Driving at Work policy which applies to all staff who drive a Trust vehicle [page 218 -265]]. The purpose of the policy is to set out the standard of driving within NEAS and promote and maintain the professional image of NEASS staff and vehicles, among other things. It applies to all staff who are required to drive a Trust vehicle. All staff are required to drive with due care and attention and in a manner that does not jeopardise health and safety requirements [page 224]. All staff must drive in an appropriate manner, in accordance with current Road Traffic Law legislation, according to the provisions of the Highway Code. If exemptions from Traffic Law are to be claimed, then this must be done safely, correctly and in accordance with the Ambulance Driver training provided. The are required “always to conduct themselves in a professional manner whilst driving NEAS vehicles. This will include avoiding inappropriate driving behaviour likely to lead to complaints against NEAS and avoiding being drawn into confrontations with other drivers in respect of driving incidents” [page 225]. Exemptions from Traffic Law (such as obeying speed limits) only apply to those driving under blue light conditions. Of course, all drivers, even blue light trained drivers, must drive safety.[36]Paragraph 5.2.3 of the policy states: “Trust vehicles must, at all times, be driven at a speed compatible with safety, passenger comfort, vehicle sympathy and with reasonable consideration for other road users. Trust drivers are governed by the same regulations as other drivers using the road and it is only when engaged on emergency calls allocated by the Emergency Operations Centre that the legal exemption from statutory speed limits can be claimed when safe to do so. Staff are generally deemed to be in an emergency response when they are using emergency warning equipment to facilitate progress, at which point they may make use of exemptions afforded to them by legislation.” [page 228][37]Paragraph 5.4.5 specifically addresses driving by CFRs. It states: “No exemptions are afforded to CFRs, whether driving their own vehicle or one owned and operated by the Trust or a community scheme. The purpose of a community-based scheme is to allow appropriately trained members of the public to respond to certain clinical calls within their immediate location; this negates the need to act outside of the rules and regulations in force for all road users whilst responding. The driving safety performance of these volunteers will be monitored by the NEAS Risk and Regulatory Services Department with the support of the Collision Investigation Officer. Individuals who act in breach of the law, or who develop a poor driving safety profile may be removed from the scheme.” [page 232][38]Paragraph 5.6.5 refers to following other emergency vehicles whilst responding on emergency. Although this appears to apply to two ambulances in convoy, it also clearly states that convoy driving is not something that is to be attempted [page 240]. Green / Blue uniform Case number: 2501335/2024 12[39]Following discussion at a national level, it was proposed in 2023 that support services personnel would wear blue uniforms to distinguish them from operational or front-line staff. The Respondent has or had a Uniform Working Group. This group discussed and consulted on the proposal affecting support services. We shall refer to this as the ‘Uniform Proposal’.[40]On 31 August 2023, Alex Mason, a Community Development Officer [467.1] emailed Aaron Bahanda and Beverley Smith, copying in Paul (known as Paddy) Brolly. regarding the Uniform Proposal. Community Development Officers (specifically Ms Mason Mr Paul Brolly were to be designated as ‘support staff’. This would mean that, in accordance with the Uniform Proposal, they would move from their current green uniforms to blue uniforms. Ms Mason, who had returned from a period of sick leave, came to understand that his role was designated as support services, meaning that he would move from blue to green. He had always worn green. In his email he set out a case for keeping his and Mr Brolly’s green uniform. He made four points: 40.1. That they were clinically trained staff and carry equipment as required 40.2. They are clinical trainers, training CFRs and others. 40.3. They represent the ambulance service at public events. 40.4. Keeping the green uniform was in line with the proposed NEAS policy following guidance given by Claire Jobling and the Uniform Working Group.[41]The email was very much about why Ms Mason and Mr Brolly (two Band-5 employees) should remain in green. It was not about any wider policy issue, nor did it challenge the rationale behind support services wearing blue. Ms Mason’s point was about the nature of her and Mr Brolly’s particular roles, which she contended were akin to Training School trainers, given the clinical element of their roles. As it happened, the Respondent agreed that Ms Mason and Mr Brolly would remain in green uniform for the time being, even though others within their team moved to blue. Their concerns were addressed. Staff survey[42]In the period September to November 2023, the Respondent asked staff to complete a staff survey. This is an annual NHS survey. This survey was managed and administered by an external third-party provider. It is designed to enable the organisation to gauge the views of staff regarding things such as working conditions, morale and working experiences. The survey is confidential. No-one within the organisation sees any individual employee’s responses. There was a step-by-step guide to how the confidential survey administration process works at pages 168 – 171. Page 170 explains how the survey works. Case number: 2501335/2024 13[43]The guide provides examples. It gives the example of a ‘Mary Smith’ (for which we could read ‘Rob King’). It says: “Whilst Mary Smith may have ticked answer 1 to question 1a in her questionnaire, all the Trust will be able to see is that a total of 375 people or 89% ticked option 1 to say they had received Health and Safety Training in the last 12 months. The Quality Health, an IQVIA Business Systems make it impossible for anyone from the Trust to identify how an individual has responded to the survey and is therefore a highly confidential process.” [page 169][44]The guide goes on to explain: “The Survey is an official statistic, run independently of NHS England and to the highest standards of quality and accuracy. What you say is kept confidential and anonymous. Quality Health, an IQVIA Business typically conducts the survey for over half a million staff each year and receive responses from thousands of staff each day … We are not allowed to provide information about who has or hasn’t responded to anyone in your organisation; and more importantly, we are not allowed to provide information about how an individual has answered their questionnaire. This would be a breach of Data Protection regulations and our contractual obligations as an approved contractor – a responsibility which we regard with the utmost importance” [page 170][45]The third-party survey administrator collates the data from the survey and sends it to the Trust. What is sent is data – essentially statistics – which enables the Trust to see how it is perceived as doing or performing by staff. This in turn enables the Respondent to identify areas where it may wish to make improvements. The results for the 2023 survey were sent to the Trust in early March 2024.[46]Mr King completed the survey. He was one of 1,680 employees to do so. Whatever it was that the Claimant stated in the answer to one of the questions in the survey is far from clear. We say ‘whatever it was’ because it is far from clear what he stated. All that we are able to make a finding on is that Mr King expressed a view about the debate surrounding blue and green uniforms along the lines that there was disquiet about it and he felt it may undermine public confidence. In any event, whatever it was that he said, we are entirely satisfied and so find that nobody who had any dealings with the Claimant regarding the matters in these proceedings knew(a) that he had completed the survey and/or(b) what he said in the survey. Put simply: none of those people had any inkling of anything the Claimant wrote in the survey. We must also deal with the matter regarding Mrs Smith’s knowledge of the Claimant’s dyslexia. The Claimant put to Mrs Smith that some time before Christmas he told her directly that he had dyslexia and that was why he was having problems with his computer and that her response was to give him a wireless mouse. She denied this. We reject the Claimant’s account and accept Mrs Smith’s evidence. Mr King had indeed mentioned to Mrs Smith that he was having some computer trouble but at no point did he Case number: 2501335/2024 14 mention to her that he had dyslexia or that his computer trouble was connected with dyslexia or any thing else. Mrs Smith did not obtain a wireless mouse for him because he mentioned having difficulties with the computer. She bought six wireless mice for her team at Christmas as a Christmas gift. Every year she buys a work-related gift and that year it happened to be six different coloured wireless mice, one of which she gave the Claimant. The Claimant had experienced some minor difficulties in completing the flexible working sheets. However, this was not uncommon with employees owing to the complexity of the rules and at no point did he ever relate the difficulty with dyslexia. Mrs Smith did not know Mr King had dyslexia. 02 February 2024[47]On 02 February 2023, Mr King was working in his employed role at Team Valley in Gateshead where he was delivering a training course. His working hours on that day were 7am to 3pm. That morning, he drove his own car to Redcar where he picked up a Trust vehicle. He set off for Team Valley at about 6am. He intended to drive back to Redcar in the Trust car and pick up his own vehicle before returning home. The Trust car was ‘branded’ in the sense that the NEAS crest appeared on the driver’s door. In all other respects, it had the appearance of a normal, unmarked vehicle that any member of the public might drive.[48]The training course ended at about 2pm. Mr King then set off from Team Valley to Redcar. Before setting off, he logged on to the GoodSAM app, thus indicating that he was available to undertake volunteer work as a CFR. At this time – and indeed until 3pm – he was still engaged in his employed role albeit he is driving back to Redcar. He may have finished delivering the course, but he was moving from one place of work to another, before then ‘knocking off’ and going home. We find that, in his mind, he had ‘knocked off’.[49]At 2.19pm, he received a GoodSAM alert notifying him of a ‘CAT1’ emergency, under reference 29213861. CAT 1 stands for Category 1, which is a life-threatening situation or one that requires immediate intervention and/or resuscitation. It was Mr Bowen who put out the alert. Mr King accepted the notification and started driving to the scene.[50]An ambulance crew – crewed by a third-party provider, called NERAMS – had been dispatched to the same emergency under blue light conditions and was also on its way to the scene. The ambulance found itself behind the Claimant’s car. The paramedic driver, Joshua Sharp, eventually overtook the Claimant once he had pulled over. The crew attended the scene and dealt with the situation. The Claimant also continued to the scene, driving behind the ambulance and arriving a few seconds after it. Mr King spoke to the driver, Mr Sharp. The Claimant was left in no doubt that the ambulance crew was unhappy with the manner of his driving. He suspected that the NERAMS crew might complain about him. Therefore, after the incident, he called Beverley Smith and said as much, referring to the driver as being likely to contact her to have a bit of a ‘moan’ as the crew was a bit ‘prickly’. The Claimant recorded his side of this conversation. Mrs Smith asked him how he was and how the patient was. Case number: 2501335/2024 15[51]The ambulance driver, Mr Sharp, did indeed complain about the Claimant’s driving shortly after the incident. He called Control and spoke to an operator called Nicola. We have heard the recording of that call and there is a transcript of it on page 504.1. Mr Sharp said that they had been following the Claimant’s vehicle for a good 3 or 4 minutes on blue lights and sirens. He described the driving as absolutely ridiculous. The ambulance was equipped with a dashcam and side view camera and has GPS which shows the speed of the vehicle.[52]From the ambulance driver’s perspective, there was no way of knowing that the driver of the vehicle they saw in front of them worked for NEAS or that he was driving to the scene of the emergency. All that the crew saw was a driver driving fast ahead of them and not pulling in. Ordinarily, a NEAS employee looking to raise a complaint would raise it by completing an internal form or through their line manager. However, this was not available to the NERAMS crew. The control room operator took some advice as to how Mr Sharp should report the matter and provided him with the email address of Paul Brolly.[53]Later that evening, at 9.55pm, Mr Sharp emailed Paul Brolly about ‘concerns regarding recent incident involving an ambulance service vehicle’ [page 508-509]. In that email he complained about the Claimant’s driving.[54]Mr Brolly escalated the matter. On Monday 05 February 2024, he emailed Beverley Smith and Ronald Allaway, who was the Claimant’s line manager [page 508]. Ms Smith was on leave that day, as Mr Brolly points out in his email. He added: “I felt I needed to escalate this incident that Rob was involved in asap as I believe these needs addressing by yourself and the driver training team as this could have ended up as a serious incident that involved a staff member in a service vehicle.”[55]Mrs Smith was still on leave as of 05 February 2023 [page 508]. Mrs Smith cannot recollect when she returned from leave but having reviewed the emails to which she was copied in but did not reply it is more likely than not that she was still on leave as of 07 February 2024. She was certainly back by 15 February 2023. In any event, we are satisfied that others, including Mr Brolly and Mr Allaway recognised immediately that the complaint regarding the Claimant’s driving had to be investigated.[56]On Tuesday 06 February 2024, Mr Allaway, forwarded the NERAMS email to Kevin Curry. Mr Curry is the Respondent’s Driver Training Lead. He did so on the recommendation of Aaron Bahanda. Mr Allaway also noted that he had spoken to Mr King telling him that he must give way to any blue light vehicle [page 506]. Mr Curry replied that he was deeply concerned by the driving highlighted by Mr Sharp. Mr Allaway made arrangements for the dashcam or ‘CCTV’ footage to be obtained from NERAMS [page 505 and 527]. Thus far, Beverley Smith is not involved in any of this.[57]When the footage arrived, it was viewed by Mr Curry and the Respondent’s Accident Reduction Officer, Michael Baxter. Mr Curry emailed Mrs Smith on Thursday 15 February Case number: 2501335/2024 16 2024 with his view of the manner of Mr King’s driving as observed from the dashcam/CCTV footage [page 523]. He said that the driving could quite possibly be construed as dangerous driving. He observed:• That the driver deliberately impeded an emergency vehicle.• That he attempted a double overtake of a car and LGV approaching a roundabout and that he was wholly reliant on the actions of the LGV and the approaching car to avoid a head on collision.• That it appeared he was driving in excess of the posted speed limits however without tracking it would be difficult to prove• There were very many opportunities for the driver to safely pull over to allow the ambulance to proceed unhindered• It appeared the driver was trying to maintain contact with the ambulance after it got past him and was driving in convoy.[58]It is obvious to us that a complaint of this nature this had to be escalated. It was not Mrs Smith who escalated the issue. It was Mr Brolly and Mr Allaway. Once escalated, she had no involvement in any decision making and the most that she did was to check if Sian Price would be able to investigate the complaint [page 525]. That email is the absolute pinnacle of Mr King’s case that Mrs Smith was the ‘Iago-like’ character, manipulating matters behind the scene to pursue an investigation against him because of what he wrote in the staff survey back in the Autumn of 2023. From that single email, he has come to develop a theory that Mrs Smith manipulated Mr Curry’s view as well as that of Ms Price, Ms Gardner and Mr Bahanda. We say at this stage that Mr King’s allegation against Mrs Smith was baseless and wholly devoid of any merit.[59]In simple terms, we find that Mr King drove to the scene as if he were driving an ambulance under blue light conditions. At times, he drove at speed, by which we mean, at times he exceeded the speed limit of 60 mph and at other times drove at a speed which, although within the limit, was nevertheless inappropriate given the conditions (namely, approaching a roundabout and when there was oncoming traffic). He overtook a number of vehicles on the way to the scene. In one manoeuvre, he overtook a car and an HGV (a double overtake) as he approached a roundabout and while another car was approaching head-on, on his side of the road. The oncoming car stopped and Mr King increased his speed to complete the overtaking manoeuvre before reverting to his side of the road. He then approached and drove round the roundabout without stopping or slowing down. We also find that he was aware the ambulance was behind him and being aware, he continued to drive ahead of it despite there being opportunities for him to safely pull over – as other cars had done. We also find that once the ambulance got past, he again overtook another vehicle, in order to keep up with the ambulance, arriving at the scene only a few seconds after it. We make these findings of fact from looking at the dashcam footage which was in evidence before us. They were pretty obvious findings and consistent with Mr Curry’s observations as set out above. Case number: 2501335/2024 17[60]On 15 February 2024, the Claimant was suspended from driving pending an investigation into the incident [page 525].[61]Sian Price was appointed to investigate. She spoke to Mr Curry and Mr Baxter. Investigatory meeting[62]On 26 February 2024, Mr King was informed that he was to attend a fact-finding investigation meeting the following day, 27 February [pages 548.1 – 548.3]. The Claimant agreed to attend at short notice. He asked for Paul Brolly to attend as his companion and Miss Price arranged for him to attend.[63]The fact-finding invite letter explained that the accusation was that he had been driving a NEAS vehicle in a dangerous manner and that the disciplinary policy was available on Siren. This is an internal intranet system on which all the Respondent’s polices are stored and which are accessible by employees, including the Claimant. It is notable that the Claimant did not have a statutory right to be accompanied by a companion at the fact finding meeting. However, Miss Price was happy for him to be accompanied throughout the process by a colleague or trade union representative.[64]Section 8.2 of the disciplinary policy states: “If an employee has difficulty at any stage of the procedure because of a disability or an underlying condition affecting their ability to engage in this process, they should discuss the situation with their line manager as soon as possible, so that the appropriate Occupational Health advice can be obtained, and consideration given to any reasonable adjustments required.” [page 298][65]At no point prior to or during the investigatory fact-finding meeting did Mr King identify any difficulty in engaging with the process. He did not raise any issue regarding difficulties in understanding documents, accessing documents or processing the information that he was given. Although not noted in the notes taken by the HR officer [page 549-550] Miss Price asked Mr King at the beginning of the meeting whether he was okay to proceed and whether he needed anything. We doubt she expressed this in language of ‘reasonable adjustments’ as she said in her evidence. However, we do not for one moment believe she is trying to mislead the tribunal. We find that her recollection is that what she asked Mr King was, in effect, whether he required any reasonable adjustments. What is more likely is that she asked him whether he was able to and ready to proceed and whether there was anything he needed. It amounts in substance to the same thing. Mr King could have and was able to ask but did not ask for any special arrangements. He was able to proceed and was happy to do so as matters were. He was accompanied by Mr Brolly throughout that fact-finding meeting. He did not raise any issues regarding his ability to engage after the meeting either.[66]Mr King and Mr Brolly were shown the dashcam footage. This consisted of three videos – those seen by the Tribunal. Miss Price asked if Mr King wished to see them again and he Case number: 2501335/2024 18 said he did not. The meeting was relatively short, about 20 minutes. Mr King did not ask for a break and we find he did not need a break in that time. He understood what was being said. It was not complicated.[67]Mr King’s position at the fact-finding meeting, and at the subsequent disciplinary hearing and appeal hearing and indeed at this tribunal is that he believes his driving on 02 February 2024 was appropriate and safe. At its highest he said to the Respondent that it ‘could have been better’ although he has explained what he meant by this on the final page of his witness statement in these proceedings (something we refer to in our conclusions). After the meeting, Mr King told Miss Price that the crew had said something along the lines of ‘you were travelling fast’. He told her that when he saw the HGV pull over, he had risk assessed the gap and he felt it was okay to overtake and that it may have already pulled over for the ambulance anyway. Mr King added that he was unsure why the oncoming vehicles (i.e. those in his direct path) had stopped but suggested it may have been because they had seen the ambulance coming behind him.[68]Miss Price considered that there was sufficient evidence to proceed to a disciplinary hearing. She prepared a management statement of case [pages 554 – 565]. Although dated 01 March 2024, the ‘disciplinary hearing invite letter’ [pages 566-567] and Management Statement Of Case (‘MSOC’) were emailed to Mr King as pdf attachments on 07 March 2024 [page 573].[69]The disciplinary hearing was scheduled for Thursday 14 March 2024 at 2.30pm. The Claimant was advised that he was entitled to be accompanied by a trade union representative or a work colleague. The allegation against him was put as follows: “Concerns have been raised over potential dangerous driving that was witnessed and recorded in the CCTV of a third party. The allegation is ‘dangerous driving’ and breach of the NEAS policies and procedures in regard to behaviours and conduct”.[70]Shortly before the hearing, Mr King asked for a version of the MSOC with the ‘confidential’ watermarks removed. He did not relate this request to dyslexia. This was done and sent to him on 13 March 2024 by Miss Price [page 576]. She said that she was unable to send him the CCTV footage as it was not on their system. Leena Mulholland later emailed to say that if he wished the panel to review the CCTV footage he could ask for this at the hearing the next day [page 575]. Mr King said in evidence that he did not get Appendix 1 referred to on page 563 until the disciplinary hearing itself. This was the first time he had suggested this. However, we reject his evidence. Appendix 1 was one of three appendices and they formed the last three pages of the report. The appendices were referred to in the report index and in the covering letter attaching the report. Further, at the hearing itself, Mr King referred to having had the appendix but noting that it had been in small font and he was unable to enlarge it [page 579]. Whether he could enlarge it or not, he never drew this to the attention of anyone before the disciplinary hearing. Disciplinary hearing Case number: 2501335/2024 19[71]The disciplinary panel consisted of Aaron Bahanda, Head of Resourcing and Business Planning and Karen Gardner, Assistant Director People Development. Initially, Kevin Curry was to be a panel member but he was replaced by Ms Gardner because Mr Curry was unavailable for personal reasons. Although Ms Gardner contributed to and assisted in the deliberations and agreed with the ultimate decision to dismiss the Claimant, responsibility for the decision rested with Mr Bahanda. Ms Gardner has significant experience as a blue light high speed driver. She is head of the department with responsibility for driver training within the Trust She was well placed to be on the panel and participate in deliberations. Also present to assist the panel from an HR and administrative perspective was Leena Mulholland. The Management Statement of Case was presented by Miss Price with Allyson Croucher. Notes were taken by an HR administrator [pages 578-582].[72]The Claimant attended unaccompanied. Leena Mulholland asked Mr King if he needed any adjustments for the hearing. He was asked if he wished to proceed unaccompanied. She said that the hearing could be postponed to enable him to arrange for someone if he wished. Mr King declined this offer.. When asked by Mr Bahanda, Mr King mentioned that he had asked two people to support them but that they were unable to due to a conflict of interest. He explained that his union (one apparently not recognised by NEAS) He confirmed that he was content to proceed unaccompanied. We are satisfied that Mr Bahanda asked the Claimant more than once if he was happy to proceed. We also accept what Mr Bahanda says that, had the Claimant requested a postponement, this would have been granted. It seemed curious to the Tribunal that the Claimant had not asked Mr Brolly to accompany him to the disciplinary hearing. When asked about this, he said that Mr Brolly was not sufficiently experienced. He also noted that he had subsequently seen Mr Brolly speaking to Sian Price, although he did not know what about. Therefore, he chose not to ask Mr Brolly to accompany him. It was, in the end, a personal choice. Also at the disciplinary hearing, Mr King was also told that they could take a break at any point if he needed to. He did not ask for a break. In cross-examination, he said there was little problem with regard to breaks at that hearing. However, he added he felt unprepared and was not functioning at that hearing. We do not accept this. It is clear that he understood the issue and was able to and did respond to the allegation.[73]The hearing proceeded by Sian Price presenting the management case. The Claimant was asked if he wished to view the dashcam footage again. He said he did not. None of those involved, Ms Price, Ms Gardner or Mr Bahanda knew that the Claimant was dyslexic and no-one, including the Claimant, gave them any reason to suspect or believe that he might be. Mr Bahanda, in conjunction with Ms Gardner, concluded that the Claimant should be summarily dismissed for gross misconduct. He considered whether there should be any alternative sanction applied such a period of retraining or training. However, he discounted this because the Claimant’s employed role did not require him to drive to incidents and he was concerned that the Claimant’s lack of insight, given he maintained his driving was justified. In the end, he decided to terminate Mr King’s employment for: 73.1. Bringing the Respondent into disrepute (by causing NERAMS, a third party to Case number: 2501335/2024 20 complain about his driving) 73.2. Breaching the Respondent’s driving at work policy 73.3. Creating a risk to health and safety by driving dangerously Appeal hearing[74]On 12 April 2024, the Claimant appealed the decision to dismiss him [page 609]. Mr King had earlier asked for an extension of time to submit his appeal, not because of any particular issues with processing information or dyslexia but because of his caring responsibilities [page 611]. He was given an extension of time as requested [page 609].[75]The appeal hearing was initially to take place on 13 May 2024 [page 622]. In the run up to this, the Claimant emailed HR on 10 May 2024 to say that he was still attempting to obtain representation for the appeal hearing. He asked if Ms Hollows (the HR officer) would check if Brian of Unison or Michael Elvidge of the training school might be available, or his line manager Ronnie Allaway. He said he had been advised by his GP not to attend but he said that he would prefer to. Ms Hollows provided the Claimant with the contact details of those people he referred to.[76]The Claimant emailed Mr Dodds (a UNISON rep) on 10 May 2024 [page 632]. The same day he emailed Mr Elvidge [page 642]. Mr Elvidge replied on 13 May 2024 [page 641] to say that he had been on annual leave and was unavailable to represent him that afternoon. We have not seen any reply from Mr Dodds.[77]As it happened, the appeal hearing did not take place on 13 May 2024. On the morning of the appeal, Ms Hollows, of HR, emailed the Claimant asking if he had found anyone to accompany him to the hearing. If not, she asked if he would like the hearing to be rescheduled [page 648]. The Claimant replied to say that he would see her at 2pm, although he was being ‘forced into attending unrepresented’. The Claimant was told that the Respondent would be flexible and that the companion need not be a work colleague or union representative. He would be able to bring someone from outside the organisation page 648].[78]Ms Lucas spoke to the Claimant shortly before the hearing was due to start. She was genuinely concerned about him, noting the distress in his voice. She postponed the hearing to enable the Claimant to obtain representation or a companion. The account of the events in the email at page 651-652 is we find an accurate representation of the discussion Ms Lucas had the Claimant.[79]On 13 May 2024, the Claimant was notified of a new hearing date of 28 May 2024 [page 653 – 655]. Case number: 2501335/2024 21[80]On the morning of the hearing, the Claimant asked for documents available at the hearing to be large print. He asked for the hearing to be recorded as he had no one present to take notes [pages 661-662].[81]The Claimant attended the appeal hearing on 28 May 2024, again unaccompanied. He had asked a friend, Jane Griffith, but she did not or was unable to attend as she lives in Scotland. The hearing was chaired by Rachel Lucas, Assistant Director of Quality and Safety. She was accompanied by Fiona Cutherbertson, Assistant Director of Peoples’ Services.[82]At the outset of the hearing, Mr King said he was happy to proceed without representation or accompaniment. He said to the panel that he was dyslexic. The panel discussed this and asked whether he needed any special adjustments. The Claimant said not, that he had overlays with him and that the paper reports he had brought with him were on special paper. Ms Lucas went through the appeal carefully, one by one, giving the Claimant time to process and understand and reply. She then summarized each point before moving to the next point. Neither party in these proceedings told us how long the hearing lasted. Although the notes record that there was one break [on page 666], in fact there were at least two breaks, as Mr King accepts. He was told he could ask for a break at any time. Mr King did not ask for any further breaks. This was not a case where the employer was on notice that a set number of breaks was required. We are satisfied that, had Mr King asked for another break, it would have been granted. We find this because he was told by Mr Lucas that he could ask for a break at any time. Mr King accepted that the panel worked through his reasons for appealing one by one and that he was given time to explain each point fully. He accepted that after each point had been discussed, Ms Cuthertson summarsed the discussion to ensure he had the opportunity to hear and agree the key points. In cross-examination, Mr King accepted that the three bullet points at the top of page 672 were an accurate reflection of what happened at the appeal hearing.[83]The appeal was not upheld. On 31 May 2024, the Claimant was sent the outcome letter [page 668 – 678] Sections 20-21 Equality Act 2010: reasonable adjustments[84]The first situation in which a duty to make reasonable adjustments arises is where a ‘provision, criterion or practice’ (PCP) of the employer’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. A PCP is one ‘applied by or on behalf of’ the employer (paragraph 2(2)(a) Sch 8 EqA). What is a PCP?[85]Section 20(3) Equality Act 2010 states: Case number: 2501335/2024 22 “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.”[86]The term ‘provision, criterion or practice’ is often shortened to ‘PCP’. A PCP is to be construed broadly, ‘having regard to the statute’s purpose of eliminating discrimination against those who suffer disadvantage from a disability’: Lamb v Business Academy Bexley EAT 0226/15. However widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. The words ‘provision, criterion or practice’ all carry the connotation of a state of affairs indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. The PCP must place the employee at a substantial disadvantage[87]Section 212(1) EqA provides that ‘substantial’ means ‘more than minor or trivial’. The PCP must place the employee at a substantial disadvantage in comparison with persons who are not disabled[88]The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP: Sheikholeslami v University of Edinburgh [2018] IRLR 1090, EAT. If the disadvantage experienced by a disabled person arises from something other than a PCP, the employer will not be subject to a duty to make reasonable adjustments. Where, for example, the substantial disadvantage is caused not by the application by the employer of a PCP but as a real personal choice made by the employee, the section 20 duty will not be triggered. The duty arises only if there was a PCP relating to the claimant’s EMPLOYMENT job that needed to be alleviated because of his disability. Knowledge of substantial disadvantage[89]In Secretary of State for the Department of Work and Pensions v Alam [2010] I.C.R. 665, the EAT held that the correct statutory construction of what was then section 4A(3)(b) Disability Discrimination Act 1996 (‘DDA’) involved asking two questions: 89.1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to that question is: 'no' then there is a second question, namely, 89.2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? (referred to as ‘constructive knowledge’) Case number: 2501335/2024 23[90]If the answer to that question was also negative, then there was no duty to make reasonable adjustments. The DDA provisions then under consideration are replicated in Sch 8, Pr 3, para 20 of the Equality Act 2010.[91]It is for a Respondent to show that it did not know and could not reasonably have been expected to know of these things. If a tribunal were to find that an employer did not have actual knowledge, it must consider whether it had constructive knowledge. That involves a consideration of whether the employer could, applying a test of reasonableness, have been expected to know, not necessarily the employee's actual diagnosis, but of the facts that would demonstrate that he had a disability, namely that (in this case) he was suffering from a mental impairment that had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The same applies in relation to the likelihood of substantial disadvantage. Applying that test of reasonableness, the tribunal must ask what the Respondent could be expected to know. It is not enough to ask only what more might have been required of the employer in terms of process without asking what it might then reasonably have been expected to know: A Ltd v Z [2020] I.C.R. 199. Identifying the step which it is reasonable to take[92]The tribunal must identify with some particularity what ‘step’ it is that the employer is said to have failed to take in relation to the disabled employee. The degree of specificity required in identifying that step depends on the facts of each case.[93]The adjustment concerned should be a practical step or action as opposed to a mental process, and it should, if taken, help to alleviate the substantial disadvantage to which the claimant is put by the application of the relevant PCP. There does not necessarily have to be a good or even a ‘real’ prospect of an adjustment removing a disadvantage for it be regarded as a reasonable one. It is enough that there is a prospect of the disadvantage being alleviated: Leeds Teaching Hospital NHS Trust v Foster EAT 0552/10. In Griffiths v Secretary of State for Work and Pensions [2017] I.C.R. 160, CA, Elias LJ commented: “So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.”[94]Therefore, the focus of the tribunal must be on whether, having regard to other factors affecting reasonableness, there is a chance that the adjustment proposed would be effective in removing or reducing the disadvantage as a result of the claimant’s disability and not on whether it would advantage the claimant generally. Section 13 Equality Act 2010: direct discrimination[95]Section 13 provides that: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Case number: 2501335/2024 24[96]Direct discrimination requires there to be less favourable treatment of a claimant than a comparator (real or hypothetical) because of a protected characteristic. It is necessary to explore the mental processes, conscious or unconscious of the alleged discriminator to discover the facts that operated on his or her mind: Amnesty International v Ahmed [2009] I.C.R. 1450, EAT. However, the protected characteristic need not be the only reason or even the main reason for the treatment for it to be said to be ‘on grounds of’ or ‘because of.’ It is enough that the protected characteristic is an effective cause or significant influence of the treatment. Thus, the reason why a claimant was treated as he or she was treated is a relevant circumstance. That reason must also be included as a relevant circumstance in the case of a hypothetical comparator.[97]Section 23 of the Equality Act provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case. The comparator must be in the same position in all material respects as the claimant save only that he or she does not share the same protected characteristic. If the circumstances of each are materially different, then the comparator is not an ‘appropriate’ comparator (although what happened to such a comparator may still have evidential value – especially when considering how a hypothetical comparator would have been treated)..Equally important, it is important that material circumstances are not left out of account when determining whether an actual or hypothetical comparator was or would have been treated more favourably. Section 15 Equality Act 2010: discrimination because of something arising in consequence of disability[98]Section 15 provides:(1) A person (A) discriminates against a disabled person (B) if-- (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[99]The focus of section 15 is in making allowances for a person’s disability: General Dynamics Information Technology Ltd v Carranza [2015] I.C.R. 169, EAT, para 32. An employer cannot discriminate against a disabled person contrary to section 15 if, at the time of the unfavourable treatment, it did not know that the Claimant had a disability and could not reasonably have been expected to know that. Case number: 2501335/2024 25[100]For a claim under section 15 to succeed, there must be ‘something’ that led to the unfavourable treatment and this ‘something’ must have a connection to the claimant’s disability. Paragraph 5.9 of the EHRC Employment Code states that the consequences of a disability ‘include anything which is the result, effect or outcome of a disabled person’s disability’.[101]In Pnaisner v NHS England and anor [2016] IRLR 170, the EAT summarised the proper approach to section 15. First, the tribunal must identify whether the claimant was treated unfavourably and by whom. It then has to determine what caused that treatment — focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person. The ‘something’ need not be the sole reason for the unfavourable treatment but it must be a significant or more than trivial reason for it. In considering whether the something arose ‘in consequence of’ the claimant’s disability’, this could describe a range of causal links. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. There is no requirement that the employer be aware of the link between the disability and the ‘something’ when subjecting the employee to the unfavourable treatment complained of: City of York Council v Grossett [2018] I.C.R. 1492.[102]An employer will avoid liability under section 15 if it shows that the unfavourable treatment was a proportionate means of achieving a legitimate aim. In the EHRC Employment Code, paragraph 4.30 states that the means of achieving a legitimate aim must be proportionate. Burden of proof[103]Discrimination can be subtle. The law recognizes that there is rarely evidence of discrimination. That much depends on inferences to be drawn from the facts. People usually do not admit to discrimination, not even to themselves. The law tries to assist in section 136 Equality Act 2010, which provides that: (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[104]Section 136 lays down a two-stage process for determining whether the burden shifts to the employer. However, it is not obligatory for Employment Tribunals to apply that process. Whether there is a need to resort to the burden of proof provision will vary in every given case. Where there is room for doubt as to the facts necessary to establish discrimination, the burden of proof provision will have a role to play. However, where the tribunal is in a position to make positive findings on the evidence one way or the other, there is little to be Case number: 2501335/2024 26 gained by otherwise reverting to the provision: Hewage v Grampian Health Board [2012] I.C.R. 1054.[105]In cases where the tribunal is not in a position to make positive findings, s136(2) means that if there are facts from which the tribunal could properly conclude, in the absence of any other explanation, that A had – for example – discriminated against B, it must so conclude unless A satisfies it otherwise. In considering whether it could properly so conclude, the tribunal must consider all the evidence, not just that adduced by the Claimant but also that of the Respondent. That is the first stage, which is often referred to as the ‘prima facie’ case. The second stage is only reached if there is a prima facie case. At this stage, it is for A to show that he did not breach the statutory provision in question. Therefore, the Tribunal must carefully consider A’s explanation for the conduct or treatment in question: Madarassy v Nomura International plc [2007] I.C.R. 867, CA; Igen Ltd v Wong [2005] I.C.R. 931, CA Public interest disclosures[106]The ERA provides two forms of protection to ‘whistle-blowers’:(1) protection from detriment under s47B and(2) protection from dismissal under s103A. By s103A ERA 1996, if the reason or principal reason for dismissal is that the employee made a protected disclosure, that dismissal is regarded as being automatically unfair. By s47B ERA a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[107]Whistle-blowers do not have to be right. They may be wrong in their belief. The legislation is concerned with reasonableness. In order for a disclosure to be considered a protected disclosure under the ERA two things need to be satisfied 107.1. Firstly, there needs to be a ‘qualifying disclosure’ within the meaning of section 43B. 107.2. Secondly, it must be made in a manner which accords with the scheme of the Act set out in s43C to s43H. In this way it becomes a ‘protected’ disclosure. What is a qualifying disclosure? information[108]The worker must disclose information: Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38, EAT. In Kilraine v Wandsworth Borough Council UKEAT/0260/15/JOJ Langstaff J observed that tribunals should observe the principle in Cavendish Munro with caution to the extent that it must not be ‘seduced’ into thinking that it must decide whether something is either ‘information’ or an ‘allegation’. Information may be provided in the course of making an allegation. However, the requirement is still for information to be disclosed. If there is a disclosure, it is necessary to Case number: 2501335/2024 27 consider whether that disclosure is a qualifying disclosure. This will depend on the nature of the information disclosed.[109]As can be seen from the exercise undertaken by Langstaff J (in paragraphs 31-35 of the Kilraine case) it is a question of carefully assessing what was said or written so as to determine whether information was provided (which meets the qualifying criteria in the Statute) whether or not an allegation was made as well, or whether what was said does not amount to information, for example because of the vagueness or lack of specificity or clarity. The information must, in the reasonable belief of the worker, tend to show a relevant failure[110]Section 43B identifies 6 things which the disclosed information must, in the belief of the worker, ‘tend to show’. Each of the six categories involves some form of malpractice or wrongdoing and are referred as the ‘relevant failures’. The worker is not required to establish that the information is true. He must establish that at the time he made the disclosure, he/she held a reasonable belief that the information disclosed tended to show. It is not a question of whether a hypothetical reasonable employee held a reasonable belief, but whether the particular worker’s belief was reasonable.[111]There is a subtle but vital distinction, in that it is not about deciding whether the worker reasonably believed that a breach of a legal obligation had occurred, is occurring or is likely to occur. Rather, it is a case of deciding whether he held a reasonable belief that the information he was disclosing tended to show that such a breach had occurred, is occurring or is likely to occur. Further, when assessing the worker’s belief, the test is not a wholly subjective one. It is the reasonableness of the belief of the particular worker which is being assessed.[112]In cases where a claimant relies on breach of a legal obligation, the source of the legal obligation must be identified before going on to assess the reasonableness of the belief of the employee. Public interest[113]The worker must reasonably believe that he is making the disclosure in the public interest. That aspect is to be determined in accordance with the guidance of the Court of Appeal in Chesterton Global Ltd (t/a Chestertons )v Nurmohamed [2018] I.C.R 731.[114]What is clear from that authority is that there is no 'bright line' between personal and public interest. It is not the case that any element of personal interest rules out the statutory protection. In a case of mixed interests, it is for the tribunal to determine as a matter of fact as to whether there was sufficient public interest to qualify under the legislation. Case number: 2501335/2024 28[115]The question of what is ‘in the public interest’ does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be.[116]The law protects the worker only against the act of disclosure. If the principal reason for dismissal is not the act or fact of disclosure then there can be no unfair dismissal contrary to s103A ERA. If the worker was not subjected to a detriment because he made the disclosure, there is no contravention of section 47B. Protection[117]If a disclosure is a qualifying disclosure then it becomes ‘protected’ if (among other things) it is made to the employer (s43(c)(1)(a)).[118]If the Claimant has established on the balance of probabilities that he made protected disclosures, that there was a detriment and that the employer subjected him to that detriment, then the burden shifts to the employer to show that he was not subjected to the detriment on the ground that he made the protected disclosure. The employer must then show that, in subjecting the claimant to the detriment that the protected disclosure did not materially influence its decision to do so: Fecitt v NHS Manchester [2012] I.C.R. 372. S103A: The reason for dismissal[119]A claimant will only succeed in a claim of s103A unfair dismissal if the tribunal is satisfied, on the evidence, that the ‘principal' reason for dismissal is that the employee made a protected disclosure. A ‘principal' reason is the reason that operated in the employer's mind at the time of the dismissal. If the fact that an employee made a protected disclosure(s) was merely a subsidiary reason to the main reason for dismissal, then the employee's claim under s103A will fail. Where an employee has insufficient qualifying service to bring ordinary unfair dismissal proceedings, he bears the burden of proving that the making of the disclosure was the reason or principal reason: Ross v Eddie Stobart Ltd [2013] 8 WLUK 88. S47B: causation and burden of proof[120]Causation under s47B has two elements:a. Was the worker subjected to the detriment by the employer?b. Was the worker subjected to that detriment because he had made a protected disclosure? Wrongful dismissal Case number: 2501335/2024 29[121]If an employee is dismissed with no notice or in adequate notice in circumstances which do not entitle the employer to dismiss summarily, this will amount to a wrongful dismissal and the employee will be entitled to claim damages in respect of the contractual notice.[122]An employer is entitled to terminate a contract without notice in circumstances where the employee has committed an act of gross misconduct. It is for the employer to prove on the balance of probabilities whether the employee has committed gross misconduct. Whether an employee has committed gross misconduct entitling the employer to terminate summarily is a question of fact in each case. However, the courts have considered when ‘misconduct’ might properly be described as ‘gross’: Neary v Dean of Westminster IRLR [1999] 288 (para 22). In Neary, Lord Jauncey of Tulichettle rejected a submission that gross misconduct was limited to cases of dishonesty or intentional wrongdoing.[123]Neary was considered more recently by the Court of Appeal in Adesokan v Sainsbury’s Supermarkets Ltd [2017 I.C.R. 590. At paragraph 23, Elias LJ said that the focus was on the damage to the relationship between the parties. The question, in any particular case, will be whether a negligent dereliction of duty is so grave and weighty as to amount to a justification for summary dismissal. This involves an evaluation of the primary facts and an exercise of judgment. Whist the exercise is one of judgment, in paragraph 24 Elias LJ cautioned that the parameters of the exercise are not boundless and that “it ought not readily to be found that a failure to act where there was no intentional decision to act contrary to or to undermine the employer’s policies constitutes such a grave act of misconduct as to justify summary dismissal.” Submissions[124]Mr Anderson produced written submissions. These were kept to the minimum to assist the Claimant and were prepared on larger font. By agreement, Mr Anderson’s solicitors sent the submissions to the Claimant at 11.40am. Mr King was provided with additional time in order to complete his own submissions. He emailed his submissions at 2pm. Those submissions do not engage with the issues in the case. The Tribunal read both submissions before the parties returned at 2.40pm. Mr King did not read Mr Anderson’s submissions. Therefore, the Tribunal asked Mr Anderson to speak to them. We had a further break to allow the Claimant to gather his thoughts if he wished to add anything in response to Mr Anderson’s submissions. He did and he prepared some further points in response which he read aloud to the tribunal. The tribunal adjourned at 4.20pm on 27 May and began deliberations the following morning at 10am.
Discussion and conclusions
[125]We shall first of all set out our conclusions on the ‘whistleblowing’ claims. Those are the claims covered by paragraphs 1 to 3 of the list of issues in the Appendix. Did the Claimant make a qualifying disclosure? Case number: 2501335/2024 30[126]The Claimant has not satisfied us on the evidence that he did make a qualifying disclosure. Indeed, it was apparent to us that Mr King – like many people in our experience - did not really appreciate what a qualifying or protected disclosure is. In paragraphs 22 and 23 of the Particulars of Claim, it is said that ‘in or around December 2023 it came to the Claimant’s attention that there was continued disquiet over the role designation and correct uniform. In or around December 2023 the Claimant via a survey raised his disclosure’. The only thing that could be gleaned so far from that was that he raised the fact that there was continued disquiet over that issue. Paragraph 24 of the Particulars pleads that he believed this tended to show that the Respondent had failed and/or was failing or was likely to fail to comply with a legal obligation and that the health or safety of persons had been or was being or was likely to be endangered. The legal obligation was unspecified as was the identity of the persons (or group of people) whose health or safety was being endangered. Leaving aside any element of public interest belief, it is not immediately apparent how someone might believe a comment about continuing disquiet tends to show either of these things. No doubt that is what prompted Judge Loy’s orders at the case management preliminary hearing.[127]Mr King does not say much more in his witness statement about the ‘information’ he gave when he completed the staff survey. He says that the ‘raised a concern regarding a proposed change of uniform for staff managing the CFR programme’. The remainder of section 3 of his statement relates to what he believed – not what he believed the information tended to show, He believed that a shift from green to blue uniform for those managing CFRs ‘may’ undermine the ‘perceived authority’ and ‘role clarity’ of those supporting CFR volunteers. He went on to say that he believed that the ‘issues’ raised a ‘legitimate concern under the health and safety heading’ where operational efficiency and trust were concerned’ He says nothing in his statement about communication within the team or what that tended to show.[128]We have no hesitation in agreeing with Mr Anderson. The Claimant has not, even on his own case, made a qualifying disclosure. We were unable to identify what it was he said in the survey other than to say that he made a broad reference to the disquiet regarding the uniform issue and the possibility that this would undermine public confidence (see paragraph 46 above). He did not satisfy us that he provided ‘information’ as opposed to merely stating a ‘view’ about public confidence. We arrive at this conclusion in full appreciation that there is no bright line between an ‘allegation/view’ and ‘information’ (see paragraph 108 above)[129]Even proceeding on the assumption that he did give some ‘information’, we noted that Mr King gave no evidence as to what legal obligation he believed the information tended to show the Respondent to be failing to comply with and made no submission regarding any such legal obligation. Nor did he given evidence as to whose health or safety he believed the information tended to show had been or was likely to be endangered. The Tribunal judge observed during the hearing that it was not readily apparent to the tribunal how, by expressing a view on the move from green to blue uniform for certain managers (in this Case number: 2501335/2024 31 case, Mr Brolly and Ms Mason ) he believed this tended to show that the health or safety of any individual was likely to be endangered. The judge observed that this was something the Claimant might want to address us on in submissions. However, the most that Mr King had to say about the matter was in paragraph 22 of his written submissions.[130]We are satisfied and conclude that the Claimant did not actually believe that the ‘information’ he provided in the survey tended to show a breach of legal obligation or that the health or safety of any individual had been, was being or was likely to be endangered. He may well have believed that the move from green to blue may have undermined the perceived authority of Mr Brolly and Ms Mason (and anyone else doing their job) but that is very different. He may also have believed that for some people attending an emergency in a blue uniform that this ‘may’ undermine public confidence. But that too is not sufficient to render anything he said a qualifying disclosure.[131]Finally, on the belief issue, even if he did believe that the information tended to show the health or safety of any individual was likely to be endangered, that belief was not reasonably held. At its highest, he can point to Alex Mason’s email. Ms Mason does not make any wider point regarding the move from blue to green. We refer to our findings on this in paragraphs 40-41 above. It is not reasonable to believe that the information tended to show the health or safety of the uniform wearer to be in endangered. It is not reasonable to believe that the information tended to show that the health or safety of any member of the public is likely to be endangered. Causation[132]In light of the fact that Mr King did not make a protected disclosure, his claims of detriment and automatically unfair dismissal must fail. However, we must emphasise that, irrespective of whether he had or not made a protected disclosure when he completed the staff survey, we are entirely satisfied that his dismissal had nothing whatsoever to do with anything he said in that survey. We arrive at this conclusion for the following reasons: 132.1. No-one knew he had completed the survey or what he said. (see our findings in paragraph 46 above), e.g. page 170).. 132.2. The confidential results of the survey were not made available to anyone early March 2024. This was after the decision to investigate take disciplinary action had been taken and after Sian Price had investigated.[133]The assertion that Bev Smith saw what the Claimant had written about uniforms was itself fanciful and based on zero evidence. The further assertion that, because she saw what he had written, she then seized on the events of 02 February 2024 and manipulated others (Kevin Curry, Sian Price, Karen Gardner and Aaron Bahanda and/or Rachel Lucas) is also based on zero evidence and flies in the face of the evidence that was staring everyone in the face. The Claimant accepted in cross examination that he had not put his name on the Case number: 2501335/2024 32 survey but that if a diligent person wanted to find out who he was, they could, that it would not take a ‘rocket scientist’. By diligent person, he had in mind Bev Smith – the ‘Iago’ figure. As we have said, this is entirely fanciful stuff. Stopping for a moment to think about this: it would require Bev Smith to know (or guess) that the Claimant had completed the survey; to then have the wherewithal to contact the administrator of the scheme, persuade them to breach the confidentiality protocol which lies at the heart of the survey (see paragraphs 42-44 above); persuade them to search to see if the Claimant had completed the survey and for someone then to either give her access to the content or to send her what it was that the Claimant had written. She would then presumably have had to decide to seize on the incident of 02 February 2024, persuade experienced people like Kevin Curry, Sian Price and Karen Gardner to pursue disciplinary proceedings and somehow persuade Mr Bahanda to dismiss him. She would have had to do this orally or have destroyed or withheld any emails (as would others). All the witnesses would have to be lying to us. This is irrational stuff devoid of any evidential base.[134]So that Mr King is under no misapprehension, we are entirely satisfied and conclude that: 134.1. The decision to investigate his driving was made in good faith and motivated solely and entirely by the third-party complaint from NERAMS. Having seen the video footage and understood the nature of the complaint, this tribunal would expect the matter to have been investigated as a disciplinary matter. 134.2. The decision to recommend the matter proceed to a disciplinary hearing was made in good faith and motivated solely and entirely by the view formed by Ms Price, in conjunction with others she had discussed it with – Mr Curry and Mr Baxter – regarding the standard of driving on the day and the breach of the Respondent’s policies. 134.3. The decision to dismiss him for gross misconduct was made by Mr Bahanda, in discussion with Ms Gardner in good faith and was motivated solely and entirely by the view they formed of the standard of his driving, the lack of insight displayed by Mr King, the damage to the relationship of employer and employee and the reputational damage to the Respondent. Conclusion on the alleged detriments in paragraph 3 of the
LIST OF ISSUES
[135]Although the whistleblowing detriment claim fails for the above reasons, we must make clear our conclusion that: 135.1. The Claimant was suspended from driving duties and subjected to a disciplinary process solely because of the complaint regarding the nature of his driving. 135.2. Although he refers to a ‘flawed disciplinary process due to procedural Case number: 2501335/2024 33 irregularities, there was, in our judgement no flawed process and no procedural irregularities. We cover this more fully in our conclusions under the section 15 discrimination claim and the failure to make reasonable adjustments claim. 135.3. Although the Claimant refers to him being excluded from proper representation, he was not excluded or denied or impeded by the Respondent as regards representation (see our findings in paragraph 65, 72, 81, 82 above in particular). Although the Claimant maintained that a number of people had been told they could not attend with him, we did not accept that and made no finding to that effect. If there was any disadvantage to the Claimant by not having anyone attend the hearings then it was unrelated to anything he said in the survey. As we shall address, it was also unrelated to his disability. Disability discrimination claims Knowledge of disability[136]Disability, by virtue of dyslexia and ADHD was conceded by the Respondent at the outset of the hearing. The issue remained whether the Respondent had actual or constructive knowledge of disability. If an employer did not know and could not reasonably have been expected to know that the Claimant had a disability, that is a defence in itself to a claim under section 15 Equality Act and a claim of failure to make reasonable adjustments.[137]The Claimant’s case was that the Respondent knew he had dyslexia and that it ought to have known that he had ADHD. Dyslexia and ‘actual’ knowledge of disability[138]The first question we asked was whether the Respondent – that, is the Trust – had ‘knowledge’ of the Claimant’s dyslexia. Mr Anderson submitted that it had knowledge of the fact of dyslexia by the time of the appeal hearing. We disagree. It may be that certain individuals did not have that knowledge, but we are considering not only the particular individuals who gave evidence in these proceedings but the Respondent as an employer. We refer to paragraphs 28-29 above of our findings. The fact that dyslexia was mentioned in the volunteer application does not, in our judgement, alter the fact that the Trust, as an employer, knew the Claimant was dyslexic. The form was received by someone employed by the Respondent. We infer that someone employed by the Respondent – the person whose job it was to collate the information given by job applicants or volunteer applicants – must have seen and did see that the Claimant declared as being dyslexic. Furthermore, on 11 May 2023, occupational health notified someone within the Respondent that the Claimant declared himself to be dyslexic. This was in relation to the employed role. Once again, that may not have filtered down to particular managers (the Claimant did not apparently want it to be noted) but someone in a position of authority knew this when they Case number: 2501335/2024 34 received the occupational health report. In any event, the actual knowledge of the occupational health adviser is imputed to the employer.[139]Therefore, at the ‘corporate’ level (if that is the right phrase) the Respondent (as the employer) did have knowledge of the Claimant’s dyslexia from the outset of his employment. That does not mean that it knew he had a disability of course. Many people have dyslexia. It is not something that in and of itself would lead someone to conclude the Claimant had a disability. Just because someone has mentioned on an application form that they have dyslexic does not lead to this conclusion. It is uncontroversial to describe dyslexia as a learning difficulty that exists on a continuum. Dyslexia may affect reading and writing and may affect processing of information on a wide range from mild to severe. Mr King accepts this. Indeed, some people may exaggerate their symptoms in order to gain an advantage. That has not been suggested in the Claimant’s case; but it demonstrates that the mere mention of dyslexia by an individual does not equate to knowledge of disability.[140]We looked at the documentary evidence. We considered the fact that the Claimant also referred on his form to being ‘neurodiverse’. Neurodiversity is a term that appears to describe the natural variation in human brains. References to ‘neurodiversity’ are becoming more and more common in our language these days. The tribunal has plenty experience of individuals referring to themselves as ‘neurodiverse’, not necessarily suggesting that their ‘neurodiversity’ amounts to a disability but simply making the point that they think differently to others and that they do not fall within what might be described as a ‘typical’ range of behaviour. The term ‘neurodiverse’ can also, however, be used as a catch-all phrase to describe neurological differences that may amount to a disability, for example, dyslexia, dyspraxia, autism, ADHD and more. We looked at the application form he completed for the job. It reads very well. Among other things, he had been a teacher before he joined the Respondent. He refers to himself as being an excellent communicator (see our findings in paragraph 45 above). The Claimant referred the Tribunal to the psychological report from 1999 at pages 699-704. Of course, the Respondent was not aware of that report or its contents. Indeed, in parts it is hard to equate what is said in the psychological report [pages 699-704] with what the Claimant says in the application form about his ability to communicate and process information (paragraph 45 of our findings). But we also note the age of the report. The Claimant has most likely developed coping mechanisms since that diagnosis which have helped him do the things he describes in his application for the job to the level he set out in that application.[141]Taking all the documentation as a whole, we were satisfied and concluded that nothing that was noted on the documents alone would lead us to conclude that the Respondent knew the Claimant had a disability, by virtue of dyslexia. Therefore, we looked at what evidence there was of how the Claimant presented himself at work and what, if anything, he said to management about his needs.[142]There was no evidence before the tribunal of Mr King struggling with reading or writing or processing information in his day-to-day employed role or in his volunteer role. The results Case number: 2501335/2024 35 of his competency testing for the CFR role were very good. There was no suggestion by him that he had any difficulties in working with training materials, presenting training courses. There was some limited evidence of minor difficulties. He had some problem regarding the use of his computer – albeit the nature of the problem was never clearly explained. Whatever it as, at no time did Mr King express this to be connected in any way to dyslexia (we found against him on this point – see paragraph 46 above): Rather he simply said that he was having difficulties with the computer – much as he expressed IT problems in the course of this hearing which were wholly unrelated to dyslexia. The Claimant had experienced some difficulties in completing the flexible working sheets. However, as we found, this was not uncommon with employees owing to the complexity of the rules and it was not put across nor was it discernible as being due to dyslexia – if indeed it was.[143]There was no evidence that the Claimant presented himself at work in any way that led or might have led to any manager believing him to be experiencing substantial adverse effects on his ability to read or process information.[144]We are satisfied therefore that the Respondent has shown that, considering the facts, it did not know that the Claimant was disabled by way of dyslexia: either at an individual manager level or at a ‘corporate’ level (i.e. someone within HR). Dyslexia and ‘constructive’ knowledge of disability[145]However, the Respondent must prove not only that it did not know the Claimant had a disability by virtue of dyslexia but also that it could not reasonably be expected to have known.[146]The Code of Practice on Employment 2011 suggests that employers should consider whether a worker has a disability even where one has not been formally disclosed. The Respondent, as an employer, was on notice from the outset of the potential that the Claimant might have a disability within section 6 Equality Act. We have referred to the purpose of collating information in the Respondent’s own document at page 148 (new starter form - see paragraph 28 above). Given that purpose we would have expected someone within the Respondent to act on that information and make further inquiries of the Claimant himself. That could be someone from HR or a line manager. The Respondent failed to do this. The new starter’s form goes was stored on its Electronic Staff Record database (see page 148).[147]Of course, a failure to enquire into a possible disability is not in itself enough to fix the employer with constructive knowledge. It is also necessary to establish what the employer might reasonably have been expected to know had it made such an enquiry: A Ltd v Z [2020] I.C.R. 199, EAT. This is a difficult exercise to undertake. On one hand, we were struck by the absence of any mention by the Claimant of any difficulties he faced with reading or processing information during his employment and noted how he had referred to himself in the application form and said nothing at interview. We also noted how the occupational health adviser recorded him as being reluctant to add ‘dyslexia’ to his ‘fit slip’ Case number: 2501335/2024 36 That – together with the lack of evidence of any difficulties at work – might suggest that the Claimant, upon the Respondent making further enquiries about his dyslexia, would have underplayed its effects with the result that the Respondent might not have understood from its inquiries that he had a disability. Without doubt, in our judgment, Mr King was reticent to mention his dyslexia at work.[148]Although a possible outcome of making further enquiries was that the Respondent would have concluded he was not disabled, on balance we concluded that – had it made further enquiries - it would have learned more about the effects of the Claimant’s dyslexia on his ability to read and process information. Reticent as the Claimant has been, had he been asked supportive questions with a view to understanding any difficulties and needs, accompanied with an explanation that the Respondent was following up on the comments he made in his application form for the employed role and the volunteer role, it is likely that that the Claimant would have relayed the sort of information contained in the psychological report from 1999 [page 699 – 704]. That is especially so had someone explained to him that the purpose of the enquiry was to establish whether he had a disability so that his needs could be understood and were being addressed. It may well have come from that enquiry that the Claimant was coping well with his dyslexia and had no need for any adjustments – that is a different issue, which we shall address below. But this is about whether the Respondent could reasonably be expected to have known that he had a disability. We conclude that the Claimant would have said more about the effects of his dyslexia, in line with those set out in the psychological report. Old as that report may be, the Claimant had kept it and dyslexia is not something that goes away, albeit one may develop methods to cope with it, as the Claimant clearly has over the years since diagnosis.[149]Therefore, although we were satisfied the Respondent did not have actual knowledge of disability, it has failed to establish that it did not have constructive knowledge of disability by virtue of dyslexia. ADHD and ‘actual’ knowledge of disability[150]We do not reach the same conclusion in respect of ADHD. As we have set out in our findings, the Claimant never mentioned to anyone within the Respondent that he had or that he believed he may have ADHD. Indeed, he was not diagnosed with ADHD until April 2025, shortly before this hearing began. We considered the documentary evidence. Anyone reading the Claimant’s description of himself on page 73 document as ‘’a neurodivergent individual with Dyslexia’’ would be forgiven for thinking that they were meant as one and the same thing. In other words, there is no reason to think that the use of the word ‘neurodivergent’ adds anything to ‘dyslexia’ or describes anything other than his dyslexia.[151]In addition, there was no indication as to how the Claimant presented at work that he had ADHD and the Claimant has not presented any such evidence. Even if the Claimant’s friend, Mr Duckmanton, had his suspicions back in 1990, the Claimant never acted on them, Case number: 2501335/2024 37 never sought medical advice or input until after his dismissal and never maintained to anyone that he had ADHD.[152]We are satisfied and conclude that no-one within the Trust knew that the Claimant had ADHD. We reach the same conclusion on disability by virtue of ADHD in terms of actual knowledge. No-one from the Respondent knew that the Clamant had a disability by virtue of ADHD. ADHD and ‘constructive’ knowledge of disability[153]Whilst there was good reason for the Respondent to make enquiries of the Claimant as to the effects of his dyslexia, there was nothing that suggests they ought reasonably to have made enquiries of the effects of ADHD. This is for fairly obvious reasons, as there was simply no suggestion of this at the time. Further, we conclude that, in the course of making enquiries about the effects of his dyslexia, it is highly unlikely that the Claimant would have said anything about ADHD or the effects of it. We say this for the following reasons: 153.1. He has made no reference to it in his application form. 153.2. He made no reference to it when speaking to Occupational Health. 153.3. Any difficulties regarding reading and processing of information he put down to dyslexia and he would have put such difficulties down to dyslexia had he been specifically asked by someone from the Trust making the sort of enquiries one might expect an employer to make in light of the specific reference to dyslexia.[154]Therefore, the Respondent has satisfied us that it could not reasonably be expected to have known that the Claimant had a disability by virtue of ADHD. Indeed, in his disability impact statement [page 65] we note that the Claimant does not refer to ADHD at all and says: ‘the disability I rely upon for the purposes of my claim is a diagnosis of dyslexia’. Whether he had ADHD or not adds little if anything to the case. Direct disability discrimination[155]We shall deal with this part of the claim very briefly. Although we have concluded that the Respondent had constructive knowledge of the Claimant’s disability through dyslexia, we found that Bev Smith did not know that the Claimant was dyslexic. Nor did Sian Price, Karen Gardner or Aaron Bahanda. The first time during the disciplinary process that the Claimant referred to his dyslexia was at the appeal hearing.[156]We refer back to the findings in paragraph 73. Our conclusions in paragraph 134 above and to the legal principles in paragraphs 95-97. The Claimant’s dismissal had nothing whatsoever to do with the fact that he has a disability. Mrs Smith did not influence or manipulate anyone. Ms Price was concerned only with the Claimant’s driving on 02 Case number: 2501335/2024 38 February 2024 as was Mr Bahanda, Ms Gardner and Ms Lucas, when she came to hear the appeal. None of these people was influenced by something they were unaware of, namely the Claimant’s disability or for that matter any perception of disability.[157]A person without the Claimant’s particular disability but who had been the subject of the same complaint would have been investigated, suspended from driving duties and, we are entirely satisfied, dismissed. Failure to make reasonable adjustments[158]We then addressed the claim of failure to make reasonable adjustments.[159]It is not uncommon for workers to say, in essence: ‘I am disabled, therefore my employer must make reasonable adjustments.’. However, that is not what the law says.[160]The duty to make reasonable adjustments is triggered only in certain circumstances – see paragraphs 85-94 above under ‘Relevant Law’ The starting point is to consider whether there was a ‘PCP’ which put the disabled employee to a substantial disadvantage compared to persons without his disability. It is for a claimant to establish that there was such a PCP. Those which the Claimant contended put him to a substantial disadvantage are identified by us in paragraph 7.1.1 to 7.1.5 of the list of issues. We take them in turn. Placing the onus on employees to arrange the attendance of a companion (issue 7.1.1)[161]The Respondent did indeed operate such a practice – as does most, if not every employer, this tribunal has had experience of. The Tribunal has never come across a situation where an employer takes on the role of finding an employee’s companion or representative. Indeed, the statutory right in section 10 Employment Relations Act 1999 is for the worker to be accompanied by a companion chosen by the worker. In the course of the hearing, Mr King confirmed that he was not contending that the onus should be on the respondent to do this. In any event, even if he had so contended, the practice did not and does not put him at a substantial disadvantage in comparison with persons without his disability. The Claimant’s inability to find a companion or trade union representative had absolutely nothing to do with his disability. It was down to choice or the location of the individual (Scotland) We refer to our findings in paragraphs 72 and 81 above and to paragraph 88 under ‘relevant law’. Whilst Mr King has dyslexia and ADHD, he is an intelligent individual. He is more than capable of expressing himself and understanding. While his processing may be somewhat slower than others, he can and does process information. He is an effective, articulate communicator. Quite how he was going to establish a disadvantage in this respect was very unclear from the outset. It was little surprise that he did not pursue that argument to the end.[162]We must, however, address the argument that he did pursue to the end: which was that what he really meant by this was that the Respondent prevented him from or impeded him Case number: 2501335/2024 39 in arranging a companion. We reject this. The Respondent’s managers did not in any way seek to stop the Claimant from bringing a companion of his choosing. We reject the suggestion by him that managers told people that they should not accompany the Claimant because of a conflict of interest – we made no findings in favour of the Claimant in this respect. Further, the Claimant had been accompanied by Paul Brolly at the investigative interview. The reality is that the Clamant chose not to ask him to accompany him to the disciplinary hearing or the appeal hearing. The Respondent had provided him with email addresses for the purposes of the appeal.[163]Whether in its original form or developed form, the Claimant has not made out his case. Indeed, having regard to the evidence and our findings, this was a hopeless argument. Holding disciplinary meetings in the absence of a companion having been arranged by employees (issue 7.1.2)[164]This is very much related to the first alleged PCP. It is right to say that the Respondent has the practice of holding disciplinary hearings and appeals in the absence of a companion but only in circumstances where they have asked and have been told by the employee that the employee is happy to continue without one, having been given the opportunity to bring someone along. That last part is an important caveat: the Respondent does not engage in a practice (a ‘PCP’) of not reminding employees of the right to bring a companion and without checking that they are happy to proceed without one. Thus, in the way that the Claimant has put the PCP, he has not made it out. In any event, we asked what more can an employer do above and beyond what this employer did? It reminded the Claimant in advance of his right. It permitted him to bring a companion (Paul Brolly) to an investigative meeting, even though the statutory right does not extend as far as this. It reminded him in advance of the disciplinary hearing. It checked with him at the disciplinary hearing. It was entitled to proceed on the basis of the Claimant’s say-so. We repeat: the Claimant was and is perfectly capable of saying what he needs when he feels it right to do so – for example, as he did throughout these proceedings. We are satisfied that had he asked for a postponement in order to try again and arrange a companion for the disciplinary hearing, he would have been granted this. In conducting disciplinary and appeal meetings, using white paper without considering accessibility? (issue 7.1.3)[165]It is right that the Respondent, in the disciplinary and appeal hearing used white paper and did not consider whether the Claimant had been able to read and understand the information provided in the Management Statement of Case. However, this is understandable at the disciplinary hearing given that the Claimant did not mention that he had difficulty, because of dyslexia or for any other reason, in reading or processing the information. Further, at the appeal hearing he had printed the documents on green paper. Therefore, no disadvantage arises at that hearing. The Claimant’s case in substance amounts to this: whilst he could have but did not ask anyone before or at the disciplinary Case number: 2501335/2024 40 hearing to copy the statement management of case on green paper, nonetheless they should have done so and that by failing to do so they impeded his ability to participate and discriminated against him.[166]Even recognising the obligations on employers in this field, there is in our view something unsavoury about this approach. It is not as if the Claimant is unable to speak up. Whilst it may be that he processes information slower than others, he is not incapable. On the contrary, he is a considered, capable man of some considerable experience of life and work as is clear from the content of his application form (see paragraph 25 above). None of those engaged in this process showed any sign that they would refuse a request like that if made. If he believed he was at a disadvantage by not having the management statement of case – or if he had access difficulties of any sort – he could, and in our judgement, would have mentioned it. He did, after all, ask for the ‘confidential’ water mark to be removed as it was emblazoned across the text. The Respondent removed it.[167]We conclude that, in fact, the Claimant was not put to any disadvantage by the Respondent conducting the hearings with the use of green paper. That is because the Claimant had been sent the information well in advance of the hearing by pdf. He had the ability to read this on his computer at home. He was able to print the documents on coloured paper at home or use his green overlays. The Claimant never saw fit to mention any of this or any particular needs for the hearing. By the time he attended the disciplinary hearing, he had the documents, understood them, had seen the CCTV footage, had been asked if he wished to review it again but declined, had been reminded of his right to be accompanied. It may be that the Claimant did not print out the management statement of case on green paper or bring his overlays with him but that was his choice. That he did not do this is, in our judgement, a clear indication, that he did not personally believe or feel that he was at a disadvantage. The whole premise of the Claimant’s case lacked credibility. The case he had to meet was simple: video footage showed him driving in a way the Respondent considered unsatisfactory. All he had to do was explain himself. This was not a case where he was swamped or overwhelmed by documents.[168]Although we are clear that, on the evidence, the Claimant was not in fact put to a disadvantage by the fact that at the disciplinary hearing white paper was used, even if he had been disadvantaged, the Respondent did not know that he was at any disadvantage. Not everyone with dyslexia requires documents to be printed on paper other than white paper. It is very personal to the individual. Some are fine with white paper, others prefer off white, green or yellow. The point of printing documents on a colour which works for the individual is that it can help reduce visual stress and make reading more comfortable. Everyone is different. Because the Claimant said nothing whatsoever to those engaged in the disciplinary process about any of this, they did not know that the ‘PCP’ was likely to put him at a substantial disadvantage.[169]Further, in the absence of a request for information to be put onto green paper, the Respondent could not reasonably have been expected to know this. That is notwithstanding Case number: 2501335/2024 41 our conclusion that it ought reasonably to have known back in 2023 that he had a disability by virtue of dyslexia. Just because it ought reasonably to have known this, it does not follow that it ought reasonably to have known that he was put to a disadvantage by the use of white paper at the hearing. Had the Respondent asked specifically in advance of the disciplinary hearing whether he needed any adjustment because of his dyslexia at the disciplinary hearing, we are entirely satisfied that the Claimant would have said no. We reach that conclusion because of our finding that the Claimant was asked multiple times if he needed anything and he said no, he was happy to proceed. We also note our finding in paragraph 82, where he asked if he needed any adjustments for the appeal hearing and he said not because he had printed documents on special paper (green). That is something he had been able to do before the disciplinary hearing. Conducting fact-finding, disciplinary and appeal meetings without providing sufficient breaks (issue 7.1.4)[170]We take each meeting in turn. First of all, the fact-finding meeting of 27 February 2024. This was a relatively short meeting that lasted about 20 minutes. As we have found in paragraph 66 above, the Claimant did not ask for a break. That is unsurprising given the length of the meeting. We are satisfied that he did not ask for a break because he did not need a break and had he asked for a break there is nothing to suggest that this would not have been afforded. There were no documents for him to have to read at this meeting. Ms Price showed him the CCTV footage and asked him to explain his position. That was something the Claimant was perfectly able to do. He displayed no difficulties in processing any information and we are satisfied that he had no difficulty in processing what was happening. The position was very simple: he was shown dashcam footage of him driving in the manner that was plain to see and he was asked for his explanation.[171]We then considered the disciplinary hearing. We refer to our findings in paragraph 72 above and where the Claimant conceded in cross-examination that, in fact, he had no problems with breaks in respect of the disciplinary hearing.[172]As regards the appeal meeting, we refer to paragraph 82 above where Rachel Lucas told the Claimant that he could ask for a break at any time. The Claimant had at least two breaks during this hearing. He did not ask for any other breaks and there is no reason to suppose that he asked for another break that this would have been refused. That is so in light of the finding that Rachel Lucas said he could ask for a break at any time.[173]In his submissions to the Tribunal, the Claimant said he struggled to function because of the complex array of documents throughout the process. We do not accept this. There was no complex array of documents. The case against him was simple and was based on the dashcam footage. He was asked by Ms Price whether he wished to see it again and he declined. He was asked by Mr Bahanda whether he wished to see it again at the disciplinary hearing. He declined (paragraph 73 above). In our judgement, Mr King declined because he felt he did not need to see it again because he believed his driving to be appropriate. As Case number: 2501335/2024 42 far as he was concerned, the case was simple: he was responding to a CAT1 situation and as far as he was concerned, he acted appropriately. It was no more complicated than that. Dyslexic he may be and he may have ADHD but the suggestion that he was disadvantaged by any arrangements or practices of the Respondent was, again, fanciful.Therefore, insofar as the allegation is that the Respondent proceeded without providing sufficient breaks, the Claimant has not made it out. On the contrary, it is clear to us that it did provide sufficient breaks and offered the Claimant the facility to have breaks at his request. The Claimant was not disadvantaged in any way by the way in which the Respondent organized the meetings. Provide evidence during disciplinary hearings (issue 7.1.5)[174]It was only during the course of the Claimant’s evidence that Mr King explained what he meant by this. When first asked by Mr Anderson he said he did not know what it was about. He then said he believed it was about appendix 1 on page 563 of the bundle. The font was too small for him to read. Certainly on the hard copy it could be seen that the text was extremely small and the tribunal was unable to read it. The Tribunal judge (working from a pdf and hard copy of the bundle) was able to enlarge the text. The Claimant said that he could not do that on his copy of the pdf. Surprising as that may be, if is of course, possible depending on which pdf reader is being used. However, what is more surprising is that at no point prior to the disciplinary hearing did he contact anyone to say he could not enlarge the text. Had he done so, there is no reason to suppose that an alternative version would not have been provided. He had after all asked for the water mark to be removed. Up until the Claimant’s cross examination, what he meant by providing evidence at the disciplinary hearing was extremely vague. As was the case with most of the issues, he said nothing about it at all in his witness statement. However, the matter was remedied at the disciplinary hearing itself and in any event, it did not impede his understanding or ability to assimilate or understand in any way.[175]The Claimant was put to no substantial disadvantage at the hearing by having been sent in advance of that hearing a report which contained a letter in small font. That is because, by the time of the hearing he knew and understood the allegation and was able to state his position as he clearly did. He could have, but did not, ask for larger font. That he did not, suggests to us that he was able to enlarge it, or that the inability to enlarge it was unimportant to him.[176]We are clear in our conclusion that the Claimant was not put to any substantial disadvantage at the meetings or by the way the Respondent managed the investigatory and disciplinary proceedings. The Claimant has made much of what is a very simple state of affairs in an attempt to secure some judgment in his favour.[177]We are entirely satisfied that he was able to process the relevant information and was able to communicate effectively and clearly throughout. Section 15 discrimination Case number: 2501335/2024 43[178]The Claim Form contains a complaint that the Claimant was dismissed because of something arising in consequence of his disability. It was his case that his driving was not inappropriate or below the standard of a competent driver. Therefore, this was not a case where he argued his poor standard of driving arose in consequence of either his dyslexia or his ADHD. Not only that, he submitted that ADHD made him more focused and able to drive more safety that day. It was difficult to see in what way he was contending his dismissal to be because of something arising in consequence of any disability.[179]In our experience, many litigants have difficulty in understanding section 15 of the Equality Act. The Tribunal judge tried to explain how it, and other statutory provisions, had to be considered in a structured way. It is necessary to identify the ‘something’ that arises in consequence of the disability. The Claimant’s case as pleaded is that he was dismissed because of his impeded ability to assimilate information and read and communicate effectively. These things he contends (the ‘something’) arose in consequence of his dyslexia.[180]However, he was not dismissed because of those things. He was dismissed because of the standard of driving on 02 February 2024. It is as simple as that. His standard of driving was wholly unconnected to his disabilities. His impeded ability to assimilate or communicate played no part in the motivation of anyone.[181]The section 15 complaint is, as Mr King confirmed, really about process – that is, because of the way the Respondent conducted the meetings, he was disadvantaged in the way in which he was able to assimilate information and communicate his position to the Respondent and this resulted in his dismissal. However, we have found that he was able to assimilate the information and what was being alleged. It was, after all, not complicated. We found that he was able to and in fact did actively and effectively participate and communicate his position, knowing and understanding what was alleged against him.[182]We are satisfied that he was not subjected to unfavourable treatment in any of the ways listed in paragraph 6.1 of the list of issues because of something arising in consequence of his disability. The claim fails and must be dismissed. Wrongful dismissal[183]That leaves the claim of wrongful dismissal. The key question is whether on 02 February 2024, the Clamant repudiated the contract of employment. If he did, then the Respondent acted lawfully in terminating his employment without notice.[184]We agree with what Mr Anderson says in paragraph 71 of his submissions and we refer to our findings of fact in paragraph 59 above. We also agree with paragraph 72(c) of Mr Anderson’s submissions that Mr King did not seek to apologise or mitigate his actions. This was evident not only from what Mr King had said to managers during the disciplinary process Case number: 2501335/2024 44 but it is clear from the final page of his witness statement in these proceedings, where he seeks to clarify a comment he made at the time, namely ‘I can always do better’. He was at pains to say that this was a ‘general reflective comment’ and ‘not an admission of fault, poor judgement or misconduct.’ He goes on in his statement to say that this should not be interpreted as acceptance of wrongdoing and that he made the comment solely on on professional principles, not culpability.[185]We also agree with the submission that the Claimant’s view all along has been the end justifies he means. The standard of his driving was of no concern to him because as far as he was concerned, he made decisions to drive as he did based on what he believed he was capable of doing safely and that, owing to his advanced driving skills, he drove safely.[186]Mr Bahanda genuinely believed the Claimant’s driving to be dangerous that day. We can see why he might arrive at that conclusion. It was a reasonable conclusion for him to draw in the circumstances. Whether the way a person drives is to be regarded as below or far below what would be expected of a competent and careful driver does not require the driving skills of a particular driver to be analysed. Indeed, in a case of dangerous or careless driving, a special skill or lack of it of a driver is an irrelevant circumstance when considering whether a driver has been driving dangerously: R v Bannister [2009] EWCA Crim 1571.[187]Not only did Mr Bahanda believe the Claimant’s driving to have been dangerous judged by the standard of what would be expected of the competent and careful driver and that this damaged the employer/employee relationship, he also believed that the Claimant’s lack of insight damaged to the level of trust in the employer/employee relationship. This was especially so given the nature of his role as a trainer. The Claimant was is in a position where he was required to train CFRs who have to respond to CAT1 emergencies. Mr Bahanda was concerned that the Claimant could not accept that he erred in any way.[188]As this is a wrongful dismissal claim, it is for the Respondent to establish that the Claimant repudiated the contract of employment. It is our judgement that matters, not that of Mr Bahanda or the Respondent. What he genuinely believed in and what genuinely led him to dismiss are relevant to the section 103A ERA claim and the sections 13 and 14 claim.[189]We agree with the Respondent that the conduct of the Claimant on 02 February 2024 was such that it seriously damaged trust and confidence We are conscious that it was a single incident. However, it was a serious breach of the Respondent’s policies. The terms in those policies regarding driving are essential terms in light of the nature of the undertaking and the role of the Claimant in training CFRs. Mr King’s lack of insight was a clear demonstration that he no longer intended to be bound by those essential terms. No matter what, Mr King feels he was justified because he was driving a CAT1 incident. He only began to water down his position in his written submissions to this tribunal. Even then, it was a very modest concession where he goes no further than saying that his driving ‘was not perfect’. He is still reluctant to accept what is, we would say, obvious to any independent observer, Case number: 2501335/2024 45 namely that his driving was as we have set out in our findings. He was driving at speeds ahead of a speeding ambulance and then keeping up with it after it in convoy style.[190]Mr King relied on the Social Action, Responsibility and Heroism Act 2015 (SARHA). We considered this. However, we concluded that his reliance on this piece of legislation was misplaced for two reasons: firstly, it applies only to civil claims where a person is alleged to have been negligent or in breach of a statutory duty. The Claimant (nor the Trust) is not faced with a civil claim against him. He has brought a claim against the Respondent for wrongful dismissal. The Act does not apply to these proceedings. Secondly, and in any event, the Act requires only that the court must consider whether the person was acting for the benefit of society or any of its members or acting heroically by intervening in an emergency to assist an individual in danger. The Respondent always had regard to the fact that the Claimant was responding to a CAT1 emergency. That is unsurprising given it is the reason it exists as an organisation. However, it still requires those driving to such incidents to comply with its procedures and the law. We too, in our deliberations have had regard to the fact that the Claimant was responding to an emergency situation and was going to the scene not for his benefit but for the benefit of a member of society. Thus, in effect having regard to the matters referred to in SARHA.[191]Having done so, we are satisfied and conclude that the Claimant fundamentally breached the contract of employment justifying summary dismissal. We had regard to the nature of the organisation, the nature of his role as a trainer, the manner of the driving, the lack of insight displayed by the Claimant and the very real risk – indeed, in our judgement, probability - that if faced with a similar situation he would do the same again. Applying the law as we understand if following Adesokan, we need to focus on the effect of that conduct on the employment relationship. In our judgement, the Claimant’s conduct struck right at its heart. We make it clear that we have not gone as far as to conclude that the Claimant’s driving was dangerous within the meaning of section 2A of the Road Traffic Act 1998. We did not need to go as far as this.[192]Therefore, the claim of wrongful dismissal is not well-founded and is dismissed. Employment Judge Sweeney _____________________________ Date: 30 May 2025 Case No:2500244/2020 APPENDIX LIST OF ISSUES[1]PROTECTED DISCLOSURE1.1 Did the Claimant “raise objections to the internal proposal to restructure the Community First Responder (CFR) program by transitioning it under the management and training supervision of personnel wearing blue uniforms” and/or the “issue of serious communication difficulties with the team”, via a confidential staff survey in or around December 2023?1.2 Did the Claimant in that confidential staff survey, make a qualifying disclosure as defined in section 43B of the Employment Rights Act 1996?1.2.1 Did the Claimant disclose information?1.2.2 If so, did the Claimant believe the information tended to show that:1.2.3 Was his belief a reasonable belief?1.2.4 Did the Claimant believe the disclosure of information was made in the public interest?1.2.5 Was his belief a reasonable belief?(a) a person had failed, was failing or was likely to fail to comply with any legal obligation? (as per Section 43B(1)(b) Employment Rights Act 1996); or(b) that the health or safety of any individual has been, is being or is likely to be endangered (as per Section 43B(1)(d) Employment Rights Act 1996).1.3 If the Claimant made a qualifying disclosure, was it protected in that it was made:1.3.1 to the Claimant’s employer or other responsible person; or1.3.2 to a prescribed person.[2]AUTOMATIC UNFAIR DISMISSAL – SECTION 103A EMPLOYMENT RIGHTS ACT 1996 2.1 Was the reason or principal reason for dismissal that the Claimant made the protected disclosure?[3]WHISTLEBLOWING DETRIMENT – SECTION 47B EMPLOYMENT RIGHTS ACT 19963.1 Did the Respondent subject the Claimant to a detriment:3.1.1 By suspending him from duties? Case No:2500244/20203.1.2 By carrying out a disciplinary process?.3.1.3 By carrying out a flawed disciplinary process due to procedural irregularities?3.1.4 By excluding him from proper representation?3.2 If so, was did the Respondent subject the Claimant to such detriment(s) on the grounds that the Claimant made a protected disclosure?[4]KNOWLEDGE OF DISABILITY 4.1 As at the material times, did the Respondent know, or ought they reasonably to have known, that the Claimant had a disability by virtue or dyslexia and/or ADHD?[5]DIRECT DISCRIMINATION – SECTION 13 EQUALITY ACT 2010 5.1 Was the Claimant dismissed because of disability?[6]DISCRIMINATION ARISING FROM DISABILITY – SECTION 15 EQUALITY ACT 20106.1 Did the Respondent treat the Claimant unfavourably by:6.1.1 Conducting a disciplinary process in which the Claimant could not actively or effectively participate and6.1.2 Conduct an appeal process in which the Claimant could not actively or effectively participate?6.1.3 Dismissing him?6.2 If so, did the Respondent so treat the Claimant because of something arising in consequence of his disability, namely:6.2.1 the Claimant’s impeded ability to assimilate information,6.2.2 the Claimant’s impeded ability to communicate effectively and6.2.3 the Claimant’s impeded ability to read effectively.6.3 If so, can the Respondent justify such treatment as a proportionate means of achieving a legitimate aim?[7]FAILURE TO MAKE REASONABLE ADJUSTMENTS – SECTION 20 AND SECTION 21 EQUALITY ACT 20107.1 Did the Respondent:7.1.1 In conducting disciplinary and appeal meetings place the onus on employees to arrange the attendance of a companion? Case No:2500244/20207.1.2 Hold such disciplinary meetings in the absence of a companion having been arranged by employees?7.1.3 In conducting disciplinary and appeal meetings, use white paper without considering accessibility?7.1.4 Conduct fact-finding, disciplinary and appeal meetings without providing sufficient breaks?7.1.5 Provide evidence during disciplinary hearings?7.2 If so, did any or all of these “PCP’s” put the Claimant at a substantial disadvantage in relation to the disciplinary process when compared to persons without his disability, in that he was unable to:7.2.1 assimilate information; and7.2.2 communicate clearly and effectively.7.3 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?7.4 If so, what steps could have been taken by the Respondent to avoid the disadvantage? The following steps were suggested:7.4.1 Place the onus on the employer to arrange a companion.7.4.2 Refrain from continuing with a disciplinary meeting when the Claimant had no companion.7.4.3 Refrain from using white paper or offer written material in green paper.7.4.4 Allow adequate time for the Claimant to consider written materials or allegations.7.4.5 Provide frequent breaks in meetings.7.4.6 Make provision for additional processing time during meetings or for answering questions.7.4.7 Refrain from providing evidence during a disciplinary hearing.7.5 Was it reasonable for the Respondent to have to take those steps?7.6 Did the Respondent fail to take those steps?[8]WRONGFUL DISMISSAL8.1 The Respondent agrees that the Claimant was dismissed without provision of his contractual notice period, following a finding of gross misconduct.8.2 Did the Claimant repudiate the contract of employment? Case No:2500244/20208.3 If not, is the Claimant entitled to damages for wrongful dismissal in the amount of 1 week’s notice pay of £482.87? Case number: 2501335/2024 1 EMPLOYMENT TRIBUNALS Claimant: Mr R King Respondent: North East Ambulance Service NHS Foundation Trust CERTIFICATE OF CORRECTION Under Rule 67, the judgment sent to the parties on 2 June 2025, is corrected as set out in block type at paragraph 2 of the corrected judgment. Approved by: Employment Judge Sweeney 20 June 2025 Important note to the Claimant(s) and Respondent(s): Any dates for asking for written reasons, applying for reconsideration or appealing against the judgment are not changed by this certificate of correction and corrected judgment. These time limits still run from the date the original judgment or reasons were sent, as explained in the letter that sent the original judgment. Case number: 2501335/2024 2 EMPLOYMENT TRIBUNALS Claimant: Mr R King Respondent: North East Ambulance Service NHS Foundation Trust Heard at: Newcastle Employment Tribunal On: 19th – 23rd, 27th, 28th May 2025 Before: Employment Judge Sweeney L Jackson P Wright Appearances For the Claimant, In person For the Respondent, Jamie Anderson, counsel[1]The Claimant had been employed by the Respondent for less than two years. He brought complaints of: 1.1.Automatically unfair dismissal: section 103A Employment Rights Act 1996 (‘ERA’) (‘whistleblowing dismissal’) 1.2.Detriment under section 48 and section 47B ERA (‘whistleblowing detriment’) 1.3.Disability discrimination: sections 13, 15 and 20-21 Equality Act 2010 1.4.Wrongful dismissal 1.5.Unlawful deduction of wages/breach of contract[2]Although not apparent from the Claim Form, in this hearing, he maintained that a manager of the Respondent manipulated others and used an incident that occurred on 02 February 2024 as a pretext for his dismissal whereas, the principal reason for dismissal was that he had made a protected disclosure in about December 2023. He also contended that he had been subjected to various detriments in the course of the disciplinary procedure, because he had made the disclosure. The Respondent’s position on this was that nobody in the Trust, and particularly, nobody who had any dealings in managing or disciplining the Claimant knew anything about any disclosure. It dismissed him solely because of the manner of his driving on 02 February 2024 and his lack of insight regarding the incident, which it considered to amount to gross misconduct. If the Claimant made a protected disclosure, which it could not accept because it knew nothing of it, the Respondent contended that this was academic as it had nothing whatsoever to do with his dismissal.[3]The Claimant also asserted that his dismissal was motivated by the fact that he was disabled (by virtue of dyslexia and ADHD) and that the dismissal was because of something arising in consequence of his disability. The Respondent’s position was that it did not know and could not reasonably have known that the Claimant was disabled but that, in any event, the reason for his dismissal had nothing whatsoever to do with disability and that he was not treated unfavourably because of anything arising in consequence of his disability – either by being dismissed or by being treated unfavourably in any other respect. Case number: 2501335/2024 4[4]The Claimant’s complaint of failure to make reasonable adjustments concerned the arrangements for the disciplinary process. The Respondent did not accept that he was put to any substantial disadvantage. It also contended that it did not know, nor could it reasonably have known that he was disabled or likely to be put to a substantial disadvantage by any of the alleged PCPs (some of which it contended were not applied).[5]The final two claims were wrongful deduction of wages and unlawful deduction of wages/breach of contract. He contended that his conduct on 02 February 2024 did not warrant summary dismissal. He also contended that he was owed expenses in respect of his volunteering role as a ‘CFR’. The Respondent contended that on 02 February 2024, the Claimant repudiated his contract of employment and it was entitled to terminate his contract without notice. It denied that it was liable to pay him expenses. Case management[6]At a preliminary hearing on 27 August 2024, Judge Loy tried to get a better understanding. He recorded his understanding of the Claimant’s explanation in paragraph 10 of his case management summary, which referred to Mr Brolly and Ms Mason. The Judge also recorded in paragraph 12 of his summary the inability of the Claimant to identify either the legal obligation he says he believed the Respondent might not be following or the danger posed to any individual. Therefore, Judge Loy ordered the Claimant to provide further information by 08 October 2024 (paragraph 11 of his orders). This was eventually sent by Mr King on 15 April 2025, some six months after the date ordered.[7]That further information was at page 67 of the bundle. As regards the information provided in the staff survey, the Claimant stated (we have extracted from the document what appears to be what the Claimant says he set out): “… I used this survey to raise concerns I believed were directly related to patient and public safety …. Specifically, I raised objections to the internal proposal ….to restructure the Community First Responder (CFR) program by transitioning it under the management and training supervision of personnel wearing blue uniforms… I raised concerns that this would cause public confusion, damage trust and reduce confidence in both emergency responses and first aid delivery…. Additionally, I raised the issue of serious communication difficulties within the team…I believed they presented a real risk to public safety if left unresolved.” Reading day[8]The first day of the hearing was used by the Tribunal for the purposes of reading into the case. The parties attended on the second day. Due to the need to discuss the issues and deal with various applications, evidence did not get under way until 1.30pm. Preliminary matters Case number: 2501335/2024 5[9]Before hearing evidence, we discussed a number of preliminary matters with the parties as follows: 9.1.Adjustment requests by the Claimant 9.2.The claims and list of issues. 9.3.The Respondent’s application to exclude the evidence of one of the Claimant’s witnesses, Captain Nicholson. 9.4.The Claimant’s application for disclosure and for a witness summons for Captain Nicholson and Derek Bowen. 9.5.Application for a witness to give evidence remotely. 9.6.The Claimant’s email of 13 May 2025 attached to which was a document called an ‘addendum’. Adjustments[10]Prior to the commencement of the hearing, Mr King emailed the Tribunal regarding adjustments he required for the hearing. This included permission to use both a laptop and a secondary desk top computer, access to Wi-Fi, use of pastel green document backgrounds or overlays to reduce visual stress and improve readability, breaks upon request and flexibility in scheduling where possible. In a subsequent email, Mr King confirmed that he would be able to bring his own overlays and the Tribunal did not need to provide any coloured paper. Mr King had access to a printer and had printed documents on green paper. All of Mr King’s requests were accommodated by the tribunal. The list of issues[11]The Respondent had prepared a list of issues which were later refined by the Claimant. Upon going through those issues: 11.1. The Claimant confirmed that he was withdrawing his unlawful deduction of wages/breach of contract in relation to alleged unpaid expenses. 11.2. Although direct disability discrimination had been identified in the list of issues at the preliminary hearing of August 2024, no such cause of action was pleaded and no permission to amend had been granted. The Respondent did not object to the Claim Form being amended to reflect a section 13 claim and we permitted the amendment as per the terms set out in Judge Loy’s case management summary list of issues. Case number: 2501335/2024 6 11.3. The Respondent conceded for the purposes of these proceedings that, at all material times, the Respondent was a disabled person within the meaning of section 6 Equality Act 2010 by virtue of ADHD and dyslexia. It did not concede ‘knowledge’ of either or of substantial disadvantage. 11.4. Each party had prepared their own list of issues. However, on discussing each it was readily apparent and agreed by both parties that there were no substantial differences between them. We had regard to each party’s version. However, we have produced an Appendix at the end of these reasons which contains the issues on liability which we considered to be the appropriate based on the pleaded cases, including the further information provided by the Claimant [pages 67-70] in response to Judge Loy’s orders and both lists of issues prepared by the parties. Captain Nicholson witness statement[12]The Claimant had served two statements from a witness: one on 02 May 2025, being the date on which the parties exchanged statements) and a second, supplementary statement on 15 May 2025. We were unaware of the second statement until the Respondent made its application to exclude the evidence in the morning of 20th May. However, we obtained a copy. The Claimant had taken it upon himself to obtain and send this second statement (apparently volunteered by the witness) in response to an email in the bundle by one Kevin Curry.[13]Captain Nicholson is a personal acquaintance of the Claimant’s. The Claimant explained that he was not seeking to call him as a ‘formal’ expert witness, although plainly he was putting him forward as a person with expertise. The entire statements consisted of opinion. In the first statement, that opinion was largely confined to the driving of the ambulance driver – there was a single line referencing the Claimant’s driving. The second statement was a commentary on the views of a manager of the Respondent (Mr Curry).[14]We excluded the evidence. We gave our reasons at the time. We considered the nature of the proposed evidence. It was opinion evidence. The general rule is that opinion evidence is inadmissible, it being the function of a witness to give evidence of facts and it being the function of the tribunal to draw inferences and conclusions from those facts. This general rule is modified where a person is called as a witness on which they are qualified to give expert evidence. There are provisions in the civil courts for calling expert witnesses. Although the CPR does not apply to tribunals and the tribunal is not bound by the rules applied in the civil courts, the principles governing the admissibility of relevant evidence are the same: HSBC Asia Holdings BV v Gillespie [2011] I.C.R. 192, EAT. The Claimant proposed to call Captain Nicholson as an ‘expert’ in all but name but without the normal safeguards attached to expert evidence being applied. Nothing he had to offer by way of opinion had any relevance to the issues in the disability discrimination complaints (sections 13, 15, 20-21) or the whistleblowing complaints. We excluded it as being opinion evidence and not at all relevant to those claims. At best, it might be argued to be relevant to Case number: 2501335/2024 7 the wrongful dismissal complaint (and the question whether as a matter of fact the Claimant had repudiated the contract of employment). However, it is the tribunal’s function to decide whether the Respondent has established on the evidence that the Claimant repudiated the contract. We are able to make findings on what happened and from that make a decision on repudiatory conduct. We were conscious that we must be careful only to admit evidence that is relevant and not to let acquaintances pronounce on the legal or factual matters that were properly the province of the tribunal. We decided, therefore, to exclude his evidence on the basis that it was opinion and not sufficiently relevant to the complaint of wrongful dismissal. Application for disclosure[15]This was withdrawn by the Claimant in the course of discussing the information sought. Application for witness to give evidence remotely[16]This too was withdrawn. In the course of discussing the witness’s evidence (Janet Griffith) Mr King said that this witness was going to give relevant evidence the issue of ‘disability’ but in light of the concession on ‘disability’, he agreed that all that remained was character evidence plus the expression of an opinion at the end of her statement. He accepted that neither of these things were relevant to the issues and that he did not need to call her as a witness. The Claimant’s email of 13 May 2025 attaching an ‘addendum’[17]Mr King was not ordered to send any further information to the Tribunal or Respondent. He explained that he had simply wished to make some further submission on some of the points raised by the Respondent. It was agreed that he could make those submissions at the end and if he wished, he could use the document as a reference point for putting matters to the Respondent’s witnesses. Arrangements during the hearing[18]As indicated above, we made the following arrangements for the benefit of the Claimant: 18.1. He was permitted to bring and leave overnight a desk top computer. 18.2. He was permitted to bring his laptop to the witness table. 18.3. There were regular breaks of 15 minutes after every 1 ¼ hours of hearing time.[19]On the Claimant’s application, we adjourned early on the afternoon of Wednesday 21 May 2025. Mr King was tired and became upset. We were of the view that he needed to have time to refresh, gather his thoughts and have further time to check any page numbers that Case number: 2501335/2024 8 might have changed in light of additional pages having been added to the bundle. He said he would hope he would be to carry on the next morning. Just before 10am on 22 May, Mr King emailed asking for some further adjustments. We arranged for a sign to be placed on a consultation room, reserving it for his use. Upon discussing the issues with the bundle, and having sent the parties out to discuss the bundle, it transpired that Mr King had prepared his questioning of the Respondent’s witnesses from an earlier ‘disclosure’ bundle and not from the ‘hearing’ bundle. He clarified what he meant in his email by explaining that this had not led to any confusion during his evidence but it led to some confusion on his part when he started questioning Miss Price the day before. It was this that led to his request to adjourn earlier than usual the day before. After a break, Mr King confirmed he had both bundles and was able and ready to proceed. The Tribunal explained that it could always assist locate a document in the bundle if necessary.[20]Mr King proceeded to cross-examine the Respondent’s witnesses and no significant issues arose in respect of the bundle. After lunch on 22 May 2025, Mr King asked to admit a new document to the bundle. Mr Anderson did not object and it was added to the bundle as pages 804 – 806. Application to exclude witnesses[21]During his evidence on Tuesday 20 May 2025, Mr King asked whether it was normal procedure for witnesses of the Respondent to be present when he was giving his evidence. The Tribunal explained that it was but that a party could make an application to exclude witnesses. The following morning, Mr King made such an application in writing. Mr Anderson objected. The Claimant then withdrew the application after he gained some further understanding of the principles through discussion. He agreed that it was fair that the Respondent’s witnesses should be present to hear the remainder of his evidence. Witnesses[22]The Claimant gave evidence on his own behalf. In addition, he called: 22.1. Dean Bowen, Communications Officer A&E Control[23]The Respondent called the following witnesses: 23.1. Sian Philips Strategic Education Lead (investigated the complaint against the Claimant). 23.2. Karen Gardner, Assistant Director (part of disciplinary panel) 23.3. Aaron Bahanda, Head of Resourcing and Business Planning (disciplinary chair and decision maker) Case number: 2501335/2024 9 23.4. Rachel Lucas, Assistant Director Quality and Safety (appeal hearing chair) 23.5. Beverley Smith, Volunteer Development Support Manager (line manager) Findings of fact[24]The following facts are the key facts as found by the Tribunal for the purposes of arriving at a decision on the issues in the case.[25]The Claimant, Mr King, commenced his employment with the Respondent on 19 June 2023. He was summarily dismissed on 14 March 2024. In his application form for the role, he described himself as having excellent written and verbal communication skills, with the ability to clearly convey complex information to stakeholders at all levels. He described himself as having active listening skills and the ability to foster open and transparent communication. He described having meticulous attention to detail and an ability to identify and resolve errors and inconsistencies quickly and efficiently [page 77]. He holds a Bachelor of Science Honours degree in Science and Biology. He is a qualified teacher. He described having excellent report writing skills, honed through years of experience in various professional roles and he can present complex information in a clear and concise manner while tailoring his writing style to suit different audiences [page 81]. He referred to having strong organizational ability and able to keep track of complex information [page 82]. We recognise that Mr King was applying for a job when completing this application and we also recognise that he may have been reticent about referring to dyslexia. Nevertheless, he gives no indication to any reader that he has any difficulty in processing information or reading material.[26]The Respondent is an Ambulance Trust which operates across a wide geographical area consisting of Northumberland, Tyne & Wear, County Durham, Darlington and Teesside. Mr King was employed as a Community Resuscitation Training Officer, based at Team Valley in Gateshead. We shall refer to this as the ‘employed role.’[27]In addition to his employed role, Mr King also acted as an unpaid volunteer Community First Responder. We shall refer to this as the ‘volunteer role’ and ‘CFR’ interchangeably.[28]As part of the application process for the employed role, Mr King undertook a preemployment medical assessment with the Respondent’s Occupational Health Service on 11 May 2023 [page 716]. The Occupational Health Adviser reported that, among other things, Mr King declared having been diagnosed as dyslexic; that he has overlays that the can bring to work as needed; that he declined to add this to the fit slip but agreed that ‘manager to discuss DSE needs with Robert’ be stated on the fit slip. DSE stands for ‘Display Screen Equipment’. There is an additional reference, as regards the employed role, to the Claimant having a mental health condition under the section headed ‘disability’ (by the ticking of a box) [page 148]. This is found in the new starter form. The purpose of Case number: 2501335/2024 10 gathering that information is stated at the top of the page: to ensure that staff are not discriminated against because of their disability etc…[29]In the application form for the voluntary role, Mr King stated that he was a ‘neuro divergent individual with Dyslexia’ [page 73]. Other than those, there was no other written references to dyslexia in the course of his employment. There was no reference anywhere to the Claimant having ADHD. Mr King was interviewed for the job by Mr Bahanda and Mrs Smith. He did not refer to dyslexia or neurodiversity at the interview. He did not identify any needs for him to do the job. The employed role[30]In this role, Mr King was employed full time, 37.5 hours a week. He worked 7 ½ hours a day, either from 8am to 4pm (core hours) or 7am to 3pm. He was based at Newburn but would carry out his duties at various locations. The clue to the nature of the job is in the title. He was a trainer. He trained internal and external groups in basic and emergency life support training. This included the design of and training of volunteers and raising awareness of the First Responder schemes at local and national levels. Clause 35 of the Claimant’s contract of employment stated, among other things: “we shall be entitled to dismiss you at any time without notice or payment in lieu of notice if you commit a serious breach of your obligations as an employee” [page 166]. The Claimant signed the contract on 13 June 2023 confirming his acceptance of the appointment on the basis of the agreed job description [page 167]. As part of his job description, he was required ‘to ensure as an employee that’ his ‘work methods do not endanger other people’ or himself and to ‘adhere to all Trust and regulatory body operational procedures, protocols and guidelines at all times’ [page 416-417]. Thus, the job description and protocols and guidelines are incorporated into the contract of employment. The volunteer role / CFR[31]On 10 May 2023, Mr King received confirmation that his application to become a volunteer CFR had been accepted [page 421]. Following a period of training, he took up the volunteer role on 19 July 2023. It is clear that he performed well during the period of training.[32]In this volunteer role, the Claimant would attend emergencies in his own time outside his working hours, just as any other member of the public who volunteers. The description in paragraph 10 of the Respondent’s Grounds of Resistance is not in dispute and merits setting out in full. CFRs are an integral part of patient care within the Ambulance Trust. The CFR is a trained volunteer who is dispatched by the Respondent to deal with emergencies prior to the arrival of an ambulance. The CFR is dispatched at the same time but may arrive first as they are nearer. The CFR can provide early interventions in the crucial first minutes of an emergency. A CFR is generally asked to respond to emergency calls within the area in which they are located when they log in. They are alerted to the emergency call via the National Mobilisation App (NMA), called the GoodSAM app. Case number: 2501335/2024 11[33]The document at pages 804-805 – an internal NEAS bulletin prepared by Paul Brolly - explains what this is and how it works. We can do no better than set out some extracts from of the document: “GoodSAM allows Ambulance Service approved staff to respond to cardiac arrests near them when they’re off duty to provide effective CPR until our crews arrive on scene. The GoodSAM (Good Smartphone Activated Medics) app was introduced at NEAS in 2017, offering NEAS volunteers the ability to register to be automatically alerted by the GoodSAM Responder app on their smartphones when someone has a cardiac arrest nearby. How GoodSAM works When someone dials 999 and reports a patient as ‘not conscious and not breathing’, in addition to dispatching an ambulance, the three nearest GoodSAM responders within a 500-metre radius will also be automatically alerted by the GoodSAM app. If a responder receives the alert and is available, they can accept via the app and then be given directions to the location of the patient. If they are not able to accept the alert, they can decline, and the app will continue to alert the next nearest registered individuals. This does not impact the ambulance service’s dispatch procedures and resources will continue to be dispatched in the usual way.”[34]In Mr Bowen’s evidence, which we accept, he confirmed gave some further explanation of how the system worked. Mr Bowen works in the emergency control room (‘Control’). When working in Control, he has a screen on which all resources (ambulances, helicopter ambulances, volunteers etc) are visible. A volunteer CFR will only be visible to those in control if he/she has signed on/logged on via the app. Once logged on, the CFR is essentially telling Control that he is available to respond to an emergency in his location. The CFR’s location then appears on the Control screen. The system is designed so that it automatically allocates the nearest CFR to the emergency. The CFR receives an alert and must accept or decline the request. If he accepts, he is automatically provided with the location of the emergency and he makes his way there. If he declines, the system automatically alerts the next nearest CFR. There is a facility for the dispatcher based in Control to override the automatic allocation – even after accepted by the CFR. This can happen if, for example, by virtue of local knowledge or for some other reason, the dispatcher (such as Mr Bowen) decides that another CFR will get there faster. The dispatcher can stand the CFR down. Another reason this might happen is, if the ambulance crew is already at the scene and the situation is under control. Driving at work policy Case number: 2501335/2024 12[35]The Respondent has a Driving at Work policy which applies to all staff who drive a Trust vehicle [page 218 -265]]. The purpose of the policy is to set out the standard of driving within NEAS and promote and maintain the professional image of NEASS staff and vehicles, among other things. It applies to all staff who are required to drive a Trust vehicle. All staff are required to drive with due care and attention and in a manner that does not jeopardise health and safety requirements [page 224]. All staff must drive in an appropriate manner, in accordance with current Road Traffic Law legislation, according to the provisions of the Highway Code. If exemptions from Traffic Law are to be claimed, then this must be done safely, correctly and in accordance with the Ambulance Driver training provided. The are required “always to conduct themselves in a professional manner whilst driving NEAS vehicles. This will include avoiding inappropriate driving behaviour likely to lead to complaints against NEAS and avoiding being drawn into confrontations with other drivers in respect of driving incidents” [page 225]. Exemptions from Traffic Law (such as obeying speed limits) only apply to those driving under blue light conditions. Of course, all drivers, even blue light trained drivers, must drive safety.[36]Paragraph 5.2.3 of the policy states: “Trust vehicles must, at all times, be driven at a speed compatible with safety, passenger comfort, vehicle sympathy and with reasonable consideration for other road users. Trust drivers are governed by the same regulations as other drivers using the road and it is only when engaged on emergency calls allocated by the Emergency Operations Centre that the legal exemption from statutory speed limits can be claimed when safe to do so. Staff are generally deemed to be in an emergency response when they are using emergency warning equipment to facilitate progress, at which point they may make use of exemptions afforded to them by legislation.” [page 228][37]Paragraph 5.4.5 specifically addresses driving by CFRs. It states: “No exemptions are afforded to CFRs, whether driving their own vehicle or one owned and operated by the Trust or a community scheme. The purpose of a community-based scheme is to allow appropriately trained members of the public to respond to certain clinical calls within their immediate location; this negates the need to act outside of the rules and regulations in force for all road users whilst responding. The driving safety performance of these volunteers will be monitored by the NEAS Risk and Regulatory Services Department with the support of the Collision Investigation Officer. Individuals who act in breach of the law, or who develop a poor driving safety profile may be removed from the scheme.” [page 232][38]Paragraph 5.6.5 refers to following other emergency vehicles whilst responding on emergency. Although this appears to apply to two ambulances in convoy, it also clearly states that convoy driving is not something that is to be attempted [page 240]. Green / Blue uniform Case number: 2501335/2024 13[39]Following discussion at a national level, it was proposed in 2023 that support services personnel would wear blue uniforms to distinguish them from operational or front-line staff. The Respondent has or had a Uniform Working Group. This group discussed and consulted on the proposal affecting support services. We shall refer to this as the ‘Uniform Proposal’.[40]On 31 August 2023, Alex Mason, a Community Development Officer [467.1] emailed Aaron Bahanda and Beverley Smith, copying in Paul (known as Paddy) Brolly. regarding the Uniform Proposal. Community Development Officers (specifically Ms Mason Mr Paul Brolly were to be designated as ‘support staff’. This would mean that, in accordance with the Uniform Proposal, they would move from their current green uniforms to blue uniforms. Ms Mason, who had returned from a period of sick leave, came to understand that his role was designated as support services, meaning that he would move from blue to green. He had always worn green. In his email he set out a case for keeping his and Mr Brolly’s green uniform. He made four points: 40.1. That they were clinically trained staff and carry equipment as required 40.2. They are clinical trainers, training CFRs and others. 40.3. They represent the ambulance service at public events. 40.4. Keeping the green uniform was in line with the proposed NEAS policy following guidance given by Claire Jobling and the Uniform Working Group.[41]The email was very much about why Ms Mason and Mr Brolly (two Band-5 employees) should remain in green. It was not about any wider policy issue, nor did it challenge the rationale behind support services wearing blue. Ms Mason’s point was about the nature of her and Mr Brolly’s particular roles, which she contended were akin to Training School trainers, given the clinical element of their roles. As it happened, the Respondent agreed that Ms Mason and Mr Brolly would remain in green uniform for the time being, even though others within their team moved to blue. Their concerns were addressed. Staff survey[42]In the period September to November 2023, the Respondent asked staff to complete a staff survey. This is an annual NHS survey. This survey was managed and administered by an external third-party provider. It is designed to enable the organisation to gauge the views of staff regarding things such as working conditions, morale and working experiences. The survey is confidential. No-one within the organisation sees any individual employee’s responses. There was a step-by-step guide to how the confidential survey administration process works at pages 168 – 171. Page 170 explains how the survey works. Case number: 2501335/2024 14[43]The guide provides examples. It gives the example of a ‘Mary Smith’ (for which we could read ‘Rob King’). It says: “Whilst Mary Smith may have ticked answer 1 to question 1a in her questionnaire, all the Trust will be able to see is that a total of 375 people or 89% ticked option 1 to say they had received Health and Safety Training in the last 12 months. The Quality Health, an IQVIA Business Systems make it impossible for anyone from the Trust to identify how an individual has responded to the survey and is therefore a highly confidential process.” [page 169][44]The guide goes on to explain: “The Survey is an official statistic, run independently of NHS England and to the highest standards of quality and accuracy. What you say is kept confidential and anonymous. Quality Health, an IQVIA Business typically conducts the survey for over half a million staff each year and receive responses from thousands of staff each day … We are not allowed to provide information about who has or hasn’t responded to anyone in your organisation; and more importantly, we are not allowed to provide information about how an individual has answered their questionnaire. This would be a breach of Data Protection regulations and our contractual obligations as an approved contractor – a responsibility which we regard with the utmost importance” [page 170][45]The third-party survey administrator collates the data from the survey and sends it to the Trust. What is sent is data – essentially statistics – which enables the Trust to see how it is perceived as doing or performing by staff. This in turn enables the Respondent to identify areas where it may wish to make improvements. The results for the 2023 survey were sent to the Trust in early March 2024.[46]Mr King completed the survey. He was one of 1,680 employees to do so. Whatever it was that the Claimant stated in the answer to one of the questions in the survey is far from clear. We say ‘whatever it was’ because it is far from clear what he stated. All that we are able to make a finding on is that Mr King expressed a view about the debate surrounding blue and green uniforms along the lines that there was disquiet about it and he felt it may undermine public confidence. In any event, whatever it was that he said, we are entirely satisfied and so find that nobody who had any dealings with the Claimant regarding the matters in these proceedings knew(a) that he had completed the survey and/or(b) what he said in the survey. Put simply: none of those people had any inkling of anything the Claimant wrote in the survey. We must also deal with the matter regarding Mrs Smith’s knowledge of the Claimant’s dyslexia. The Claimant put to Mrs Smith that some time before Christmas he told her directly that he had dyslexia and that was why he was having problems with his computer and that her response was to give him a wireless mouse. She denied this. We reject the Claimant’s account and accept Mrs Smith’s evidence. Mr King Case number: 2501335/2024 15 had indeed mentioned to Mrs Smith that he was having some computer trouble but at no point did he mention to her that he had dyslexia or that his computer trouble was connected with dyslexia or any thing else. Mrs Smith did not obtain a wireless mouse for him because he mentioned having difficulties with the computer. She bought six wireless mice for her team at Christmas as a Christmas gift. Every year she buys a work-related gift and that year it happened to be six different coloured wireless mice, one of which she gave the Claimant. The Claimant had experienced some minor difficulties in completing the flexible working sheets. However, this was not uncommon with employees owing to the complexity of the rules and at no point did he ever relate the difficulty with dyslexia. Mrs Smith did not know Mr King had dyslexia. 02 February 2024[47]On 02 February 2023, Mr King was working in his employed role at Team Valley in Gateshead where he was delivering a training course. His working hours on that day were 7am to 3pm. That morning, he drove his own car to Redcar where he picked up a Trust vehicle. He set off for Team Valley at about 6am. He intended to drive back to Redcar in the Trust car and pick up his own vehicle before returning home. The Trust car was ‘branded’ in the sense that the NEAS crest appeared on the driver’s door. In all other respects, it had the appearance of a normal, unmarked vehicle that any member of the public might drive.[48]The training course ended at about 2pm. Mr King then set off from Team Valley to Redcar. Before setting off, he logged on to the GoodSAM app, thus indicating that he was available to undertake volunteer work as a CFR. At this time – and indeed until 3pm – he was still engaged in his employed role albeit he is driving back to Redcar. He may have finished delivering the course, but he was moving from one place of work to another, before then ‘knocking off’ and going home. We find that, in his mind, he had ‘knocked off’.[49]At 2.19pm, he received a GoodSAM alert notifying him of a ‘CAT1’ emergency, under reference 29213861. CAT 1 stands for Category 1, which is a life-threatening situation or one that requires immediate intervention and/or resuscitation. It was Mr Bowen who put out the alert. Mr King accepted the notification and started driving to the scene.[50]An ambulance crew – crewed by a third-party provider, called NERAMS – had been dispatched to the same emergency under blue light conditions and was also on its way to the scene. The ambulance found itself behind the Claimant’s car. The paramedic driver, Joshua Sharp, eventually overtook the Claimant once he had pulled over. The crew attended the scene and dealt with the situation. The Claimant also continued to the scene, driving behind the ambulance and arriving a few seconds after it. Mr King spoke to the driver, Mr Sharp. The Claimant was left in no doubt that the ambulance crew was unhappy with the manner of his driving. He suspected that the NERAMS crew might complain about him. Therefore, after the incident, he called Beverley Smith and said as much, referring to the driver as being likely to contact her to have a bit of a ‘moan’ as the crew was a bit ‘prickly’. Case number: 2501335/2024 16 The Claimant recorded his side of this conversation. Mrs Smith asked him how he was and how the patient was.[51]The ambulance driver, Mr Sharp, did indeed complain about the Claimant’s driving shortly after the incident. He called Control and spoke to an operator called Nicola. We have heard the recording of that call and there is a transcript of it on page 504.1. Mr Sharp said that they had been following the Claimant’s vehicle for a good 3 or 4 minutes on blue lights and sirens. He described the driving as absolutely ridiculous. The ambulance was equipped with a dashcam and side view camera and has GPS which shows the speed of the vehicle.[52]From the ambulance driver’s perspective, there was no way of knowing that the driver of the vehicle they saw in front of them worked for NEAS or that he was driving to the scene of the emergency. All that the crew saw was a driver driving fast ahead of them and not pulling in. Ordinarily, a NEAS employee looking to raise a complaint would raise it by completing an internal form or through their line manager. However, this was not available to the NERAMS crew. The control room operator took some advice as to how Mr Sharp should report the matter and provided him with the email address of Paul Brolly.[53]Later that evening, at 9.55pm, Mr Sharp emailed Paul Brolly about ‘concerns regarding recent incident involving an ambulance service vehicle’ [page 508-509]. In that email he complained about the Claimant’s driving.[54]Mr Brolly escalated the matter. On Monday 05 February 2024, he emailed Beverley Smith and Ronald Allaway, who was the Claimant’s line manager [page 508]. Ms Smith was on leave that day, as Mr Brolly points out in his email. He added: “I felt I needed to escalate this incident that Rob was involved in asap as I believe these needs addressing by yourself and the driver training team as this could have ended up as a serious incident that involved a staff member in a service vehicle.”[55]Mrs Smith was still on leave as of 05 February 2023 [page 508]. Mrs Smith cannot recollect when she returned from leave but having reviewed the emails to which she was copied in but did not reply it is more likely than not that she was still on leave as of 07 February 2024. She was certainly back by 15 February 2023. In any event, we are satisfied that others, including Mr Brolly and Mr Allaway recognised immediately that the complaint regarding the Claimant’s driving had to be investigated.[56]On Tuesday 06 February 2024, Mr Allaway, forwarded the NERAMS email to Kevin Curry. Mr Curry is the Respondent’s Driver Training Lead. He did so on the recommendation of Aaron Bahanda. Mr Allaway also noted that he had spoken to Mr King telling him that he must give way to any blue light vehicle [page 506]. Mr Curry replied that he was deeply concerned by the driving highlighted by Mr Sharp. Mr Allaway made arrangements for the Case number: 2501335/2024 17 dashcam or ‘CCTV’ footage to be obtained from NERAMS [page 505 and 527]. Thus far, Beverley Smith is not involved in any of this.[57]When the footage arrived, it was viewed by Mr Curry and the Respondent’s Accident Reduction Officer, Michael Baxter. Mr Curry emailed Mrs Smith on Thursday 15 February 2024 with his view of the manner of Mr King’s driving as observed from the dashcam/CCTV footage [page 523]. He said that the driving could quite possibly be construed as dangerous driving. He observed:• That the driver deliberately impeded an emergency vehicle.• That he attempted a double overtake of a car and LGV approaching a roundabout and that he was wholly reliant on the actions of the LGV and the approaching car to avoid a head on collision.• That it appeared he was driving in excess of the posted speed limits however without tracking it would be difficult to prove• There were very many opportunities for the driver to safely pull over to allow the ambulance to proceed unhindered• It appeared the driver was trying to maintain contact with the ambulance after it got past him and was driving in convoy.[58]It is obvious to us that a complaint of this nature this had to be escalated. It was not Mrs Smith who escalated the issue. It was Mr Brolly and Mr Allaway. Once escalated, she had no involvement in any decision making and the most that she did was to check if Sian Price would be able to investigate the complaint [page 525]. That email is the absolute pinnacle of Mr King’s case that Mrs Smith was the ‘Iago-like’ character, manipulating matters behind the scene to pursue an investigation against him because of what he wrote in the staff survey back in the Autumn of 2023. From that single email, he has come to develop a theory that Mrs Smith manipulated Mr Curry’s view as well as that of Ms Price, Ms Gardner and Mr Bahanda. We say at this stage that Mr King’s allegation against Mrs Smith was baseless and wholly devoid of any merit.[59]In simple terms, we find that Mr King drove to the scene as if he were driving an ambulance under blue light conditions. At times, he drove at speed, by which we mean, at times he exceeded the speed limit of 60 mph and at other times drove at a speed which, although within the limit, was nevertheless inappropriate given the conditions (namely, approaching a roundabout and when there was oncoming traffic). He overtook a number of vehicles on the way to the scene. In one manoeuvre, he overtook a car and an HGV (a double overtake) as he approached a roundabout and while another car was approaching head-on, on his side of the road. The oncoming car stopped and Mr King increased his speed to complete the overtaking manoeuvre before reverting to his side of the road. He then approached and drove round the roundabout without stopping or slowing down. We also find that he was aware the ambulance was behind him and being aware, he continued to drive ahead of it despite there being opportunities for him to safely pull over – as other cars had done. We also find that once the ambulance got past, he again overtook Case number: 2501335/2024 18 another vehicle, in order to keep up with the ambulance, arriving at the scene only a few seconds after it. We make these findings of fact from looking at the dashcam footage which was in evidence before us. They were pretty obvious findings and consistent with Mr Curry’s observations as set out above.[60]On 15 February 2024, the Claimant was suspended from driving pending an investigation into the incident [page 525].[61]Sian Price was appointed to investigate. She spoke to Mr Curry and Mr Baxter. Investigatory meeting[62]On 26 February 2024, Mr King was informed that he was to attend a fact-finding investigation meeting the following day, 27 February [pages 548.1 – 548.3]. The Claimant agreed to attend at short notice. He asked for Paul Brolly to attend as his companion and Miss Price arranged for him to attend.[63]The fact-finding invite letter explained that the accusation was that he had been driving a NEAS vehicle in a dangerous manner and that the disciplinary policy was available on Siren. This is an internal intranet system on which all the Respondent’s polices are stored and which are accessible by employees, including the Claimant. It is notable that the Claimant did not have a statutory right to be accompanied by a companion at the fact finding meeting. However, Miss Price was happy for him to be accompanied throughout the process by a colleague or trade union representative.[64]Section 8.2 of the disciplinary policy states: “If an employee has difficulty at any stage of the procedure because of a disability or an underlying condition affecting their ability to engage in this process, they should discuss the situation with their line manager as soon as possible, so that the appropriate Occupational Health advice can be obtained, and consideration given to any reasonable adjustments required.” [page 298][65]At no point prior to or during the investigatory fact-finding meeting did Mr King identify any difficulty in engaging with the process. He did not raise any issue regarding difficulties in understanding documents, accessing documents or processing the information that he was given. Although not noted in the notes taken by the HR officer [page 549-550] Miss Price asked Mr King at the beginning of the meeting whether he was okay to proceed and whether he needed anything. We doubt she expressed this in language of ‘reasonable adjustments’ as she said in her evidence. However, we do not for one moment believe she is trying to mislead the tribunal. We find that her recollection is that what she asked Mr King was, in effect, whether he required any reasonable adjustments. What is more likely is that she asked him whether he was able to and ready to proceed and whether there was anything he needed. It amounts in substance to the same thing. Mr King could have and was able to ask but did not ask for any special arrangements. He was able to proceed and was Case number: 2501335/2024 19 happy to do so as matters were. He was accompanied by Mr Brolly throughout that factfinding meeting. He did not raise any issues regarding his ability to engage after the meeting either.[66]Mr King and Mr Brolly were shown the dashcam footage. This consisted of three videos – those seen by the Tribunal. Miss Price asked if Mr King wished to see them again and he said he did not. The meeting was relatively short, about 20 minutes. Mr King did not ask for a break and we find he did not need a break in that time. He understood what was being said. It was not complicated.[67]Mr King’s position at the fact-finding meeting, and at the subsequent disciplinary hearing and appeal hearing and indeed at this tribunal is that he believes his driving on 02 February 2024 was appropriate and safe. At its highest he said to the Respondent that it ‘could have been better’ although he has explained what he meant by this on the final page of his witness statement in these proceedings (something we refer to in our conclusions). After the meeting, Mr King told Miss Price that the crew had said something along the lines of ‘you were travelling fast’. He told her that when he saw the HGV pull over, he had risk assessed the gap and he felt it was okay to overtake and that it may have already pulled over for the ambulance anyway. Mr King added that he was unsure why the oncoming vehicles (i.e. those in his direct path) had stopped but suggested it may have been because they had seen the ambulance coming behind him.[68]Miss Price considered that there was sufficient evidence to proceed to a disciplinary hearing. She prepared a management statement of case [pages 554 – 565]. Although dated 01 March 2024, the ‘disciplinary hearing invite letter’ [pages 566-567] and Management Statement Of Case (‘MSOC’) were emailed to Mr King as pdf attachments on 07 March 2024 [page 573].[69]The disciplinary hearing was scheduled for Thursday 14 March 2024 at 2.30pm. The Claimant was advised that he was entitled to be accompanied by a trade union representative or a work colleague. The allegation against him was put as follows: “Concerns have been raised over potential dangerous driving that was witnessed and recorded in the CCTV of a third party. The allegation is ‘dangerous driving’ and breach of the NEAS policies and procedures in regard to behaviours and conduct”.[70]Shortly before the hearing, Mr King asked for a version of the MSOC with the ‘confidential’ watermarks removed. He did not relate this request to dyslexia. This was done and sent to him on 13 March 2024 by Miss Price [page 576]. She said that she was unable to send him the CCTV footage as it was not on their system. Leena Mulholland later emailed to say that if he wished the panel to review the CCTV footage he could ask for this at the hearing the next day [page 575]. Mr King said in evidence that he did not get Appendix 1 referred to on page 563 until the disciplinary hearing itself. This was the first time he had suggested this. However, we reject his evidence. Appendix 1 was one of three appendices Case number: 2501335/2024 20 and they formed the last three pages of the report. The appendices were referred to in the report index and in the covering letter attaching the report. Further, at the hearing itself, Mr King referred to having had the appendix but noting that it had been in small font and he was unable to enlarge it [page 579]. Whether he could enlarge it or not, he never drew this to the attention of anyone before the disciplinary hearing. Disciplinary hearing[71]The disciplinary panel consisted of Aaron Bahanda, Head of Resourcing and Business Planning and Karen Gardner, Assistant Director People Development. Initially, Kevin Curry was to be a panel member but he was replaced by Ms Gardner because Mr Curry was unavailable for personal reasons. Although Ms Gardner contributed to and assisted in the deliberations and agreed with the ultimate decision to dismiss the Claimant, responsibility for the decision rested with Mr Bahanda. Ms Gardner has significant experience as a blue light high speed driver. She is head of the department with responsibility for driver training within the Trust She was well placed to be on the panel and participate in deliberations. Also present to assist the panel from an HR and administrative perspective was Leena Mulholland. The Management Statement of Case was presented by Miss Price with Allyson Croucher. Notes were taken by an HR administrator [pages 578-582].[72]The Claimant attended unaccompanied. Leena Mulholland asked Mr King if he needed any adjustments for the hearing. He was asked if he wished to proceed unaccompanied. She said that the hearing could be postponed to enable him to arrange for someone if he wished. Mr King declined this offer.. When asked by Mr Bahanda, Mr King mentioned that he had asked two people to support them but that they were unable to due to a conflict of interest. He explained that his union (one apparently not recognised by NEAS) He confirmed that he was content to proceed unaccompanied. We are satisfied that Mr Bahanda asked the Claimant more than once if he was happy to proceed. We also accept what Mr Bahanda says that, had the Claimant requested a postponement, this would have been granted. It seemed curious to the Tribunal that the Claimant had not asked Mr Brolly to accompany him to the disciplinary hearing. When asked about this, he said that Mr Brolly was not sufficiently experienced. He also noted that he had subsequently seen Mr Brolly speaking to Sian Price, although he did not know what about. Therefore, he chose not to ask Mr Brolly to accompany him. It was, in the end, a personal choice. Also at the disciplinary hearing, Mr King was also told that they could take a break at any point if he needed to. He did not ask for a break. In cross-examination, he said there was little problem with regard to breaks at that hearing. However, he added he felt unprepared and was not functioning at that hearing. We do not accept this. It is clear that he understood the issue and was able to and did respond to the allegation.[73]The hearing proceeded by Sian Price presenting the management case. The Claimant was asked if he wished to view the dashcam footage again. He said he did not. None of those involved, Ms Price, Ms Gardner or Mr Bahanda knew that the Claimant was dyslexic and no-one, including the Claimant, gave them any reason to suspect or believe that he might be. Mr Bahanda, in conjunction with Ms Gardner, concluded that the Claimant Case number: 2501335/2024 21 should be summarily dismissed for gross misconduct. He considered whether there should be any alternative sanction applied such a period of retraining or training. However, he discounted this because the Claimant’s employed role did not require him to drive to incidents and he was concerned that the Claimant’s lack of insight, given he maintained his driving was justified. In the end, he decided to terminate Mr King’s employment for: 73.1. Bringing the Respondent into disrepute (by causing NERAMS, a third party to complain about his driving) 73.2. Breaching the Respondent’s driving at work policy 73.3. Creating a risk to health and safety by driving dangerously Appeal hearing[74]On 12 April 2024, the Claimant appealed the decision to dismiss him [page 609]. Mr King had earlier asked for an extension of time to submit his appeal, not because of any particular issues with processing information or dyslexia but because of his caring responsibilities [page 611]. He was given an extension of time as requested [page 609].[75]The appeal hearing was initially to take place on 13 May 2024 [page 622]. In the run up to this, the Claimant emailed HR on 10 May 2024 to say that he was still attempting to obtain representation for the appeal hearing. He asked if Ms Hollows (the HR officer) would check if Brian of Unison or Michael Elvidge of the training school might be available, or his line manager Ronnie Allaway. He said he had been advised by his GP not to attend but he said that he would prefer to. Ms Hollows provided the Claimant with the contact details of those people he referred to.[76]The Claimant emailed Mr Dodds (a UNISON rep) on 10 May 2024 [page 632]. The same day he emailed Mr Elvidge [page 642]. Mr Elvidge replied on 13 May 2024 [page 641] to say that he had been on annual leave and was unavailable to represent him that afternoon. We have not seen any reply from Mr Dodds.[77]As it happened, the appeal hearing did not take place on 13 May 2024. On the morning of the appeal, Ms Hollows, of HR, emailed the Claimant asking if he had found anyone to accompany him to the hearing. If not, she asked if he would like the hearing to be rescheduled [page 648]. The Claimant replied to say that he would see her at 2pm, although he was being ‘forced into attending unrepresented’. The Claimant was told that the Respondent would be flexible and that the companion need not be a work colleague or union representative. He would be able to bring someone from outside the organisation page 648].[78]Ms Lucas spoke to the Claimant shortly before the hearing was due to start. She was genuinely concerned about him, noting the distress in his voice. She postponed the hearing to enable the Claimant to obtain representation or a companion. The account of the Case number: 2501335/2024 22 events in the email at page 651-652 is we find an accurate representation of the discussion Ms Lucas had the Claimant.[79]On 13 May 2024, the Claimant was notified of a new hearing date of 28 May 2024 [page 653 – 655].[80]On the morning of the hearing, the Claimant asked for documents available at the hearing to be large print. He asked for the hearing to be recorded as he had no one present to take notes [pages 661-662].[81]The Claimant attended the appeal hearing on 28 May 2024, again unaccompanied. He had asked a friend, Jane Griffith, but she did not or was unable to attend as she lives in Scotland. The hearing was chaired by Rachel Lucas, Assistant Director of Quality and Safety. She was accompanied by Fiona Cutherbertson, Assistant Director of Peoples’ Services.[82]At the outset of the hearing, Mr King said he was happy to proceed without representation or accompaniment. He said to the panel that he was dyslexic. The panel discussed this and asked whether he needed any special adjustments. The Claimant said not, that he had overlays with him and that the paper reports he had brought with him were on special paper. Ms Lucas went through the appeal carefully, one by one, giving the Claimant time to process and understand and reply. She then summarized each point before moving to the next point. Neither party in these proceedings told us how long the hearing lasted. Although the notes record that there was one break [on page 666], in fact there were at least two breaks, as Mr King accepts. He was told he could ask for a break at any time. Mr King did not ask for any further breaks. This was not a case where the employer was on notice that a set number of breaks was required. We are satisfied that, had Mr King asked for another break, it would have been granted. We find this because he was told by Mr Lucas that he could ask for a break at any time. Mr King accepted that the panel worked through his reasons for appealing one by one and that he was given time to explain each point fully. He accepted that after each point had been discussed, Ms Cuthertson summarsed the discussion to ensure he had the opportunity to hear and agree the key points. In crossexamination, Mr King accepted that the three bullet points at the top of page 672 were an accurate reflection of what happened at the appeal hearing.[83]The appeal was not upheld. On 31 May 2024, the Claimant was sent the outcome letter [page 668 – 678] Sections 20-21 Equality Act 2010: reasonable adjustments[84]The first situation in which a duty to make reasonable adjustments arises is where a ‘provision, criterion or practice’ (PCP) of the employer’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not Case number: 2501335/2024 23 disabled. A PCP is one ‘applied by or on behalf of’ the employer (paragraph 2(2)(a) Sch 8 EqA). What is a PCP?[85]Section 20(3) Equality Act 2010 states: “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.”[86]The term ‘provision, criterion or practice’ is often shortened to ‘PCP’. A PCP is to be construed broadly, ‘having regard to the statute’s purpose of eliminating discrimination against those who suffer disadvantage from a disability’: Lamb v Business Academy Bexley EAT 0226/15. However widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. The words ‘provision, criterion or practice’ all carry the connotation of a state of affairs indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. The PCP must place the employee at a substantial disadvantage[87]Section 212(1) EqA provides that ‘substantial’ means ‘more than minor or trivial’. The PCP must place the employee at a substantial disadvantage in comparison with persons who are not disabled[88]The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP: Sheikholeslami v University of Edinburgh [2018] IRLR 1090, EAT. If the disadvantage experienced by a disabled person arises from something other than a PCP, the employer will not be subject to a duty to make reasonable adjustments. Where, for example, the substantial disadvantage is caused not by the application by the employer of a PCP but as a real personal choice made by the employee, the section 20 duty will not be triggered. The duty arises only if there was a PCP relating to the claimant’s EMPLOYMENT job that needed to be alleviated because of his disability. Knowledge of substantial disadvantage[89]In Secretary of State for the Department of Work and Pensions v Alam [2010] I.C.R. 665, the EAT held that the correct statutory construction of what was then section 4A(3)(b) Disability Discrimination Act 1996 (‘DDA’) involved asking two questions: Case number: 2501335/2024 24 89.1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to that question is: 'no' then there is a second question, namely, 89.2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? (referred to as ‘constructive knowledge’)[90]If the answer to that question was also negative, then there was no duty to make reasonable adjustments. The DDA provisions then under consideration are replicated in Sch 8, Pr 3, para 20 of the Equality Act 2010.[91]It is for a Respondent to show that it did not know and could not reasonably have been expected to know of these things. If a tribunal were to find that an employer did not have actual knowledge, it must consider whether it had constructive knowledge. That involves a consideration of whether the employer could, applying a test of reasonableness, have been expected to know, not necessarily the employee's actual diagnosis, but of the facts that would demonstrate that he had a disability, namely that (in this case) he was suffering from a mental impairment that had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The same applies in relation to the likelihood of substantial disadvantage. Applying that test of reasonableness, the tribunal must ask what the Respondent could be expected to know. It is not enough to ask only what more might have been required of the employer in terms of process without asking what it might then reasonably have been expected to know: A Ltd v Z [2020] I.C.R. 199. Identifying the step which it is reasonable to take[92]The tribunal must identify with some particularity what ‘step’ it is that the employer is said to have failed to take in relation to the disabled employee. The degree of specificity required in identifying that step depends on the facts of each case.[93]The adjustment concerned should be a practical step or action as opposed to a mental process, and it should, if taken, help to alleviate the substantial disadvantage to which the claimant is put by the application of the relevant PCP. There does not necessarily have to be a good or even a ‘real’ prospect of an adjustment removing a disadvantage for it be regarded as a reasonable one. It is enough that there is a prospect of the disadvantage being alleviated: Leeds Teaching Hospital NHS Trust v Foster EAT 0552/10. In Griffiths v Secretary of State for Work and Pensions [2017] I.C.R. 160, CA, Elias LJ commented: “So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness.”[94]Therefore, the focus of the tribunal must be on whether, having regard to other factors affecting reasonableness, there is a chance that the adjustment proposed would be effective Case number: 2501335/2024 25 in removing or reducing the disadvantage as a result of the claimant’s disability and not on whether it would advantage the claimant generally. Section 13 Equality Act 2010: direct discrimination[95]Section 13 provides that: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[96]Direct discrimination requires there to be less favourable treatment of a claimant than a comparator (real or hypothetical) because of a protected characteristic. It is necessary to explore the mental processes, conscious or unconscious of the alleged discriminator to discover the facts that operated on his or her mind: Amnesty International v Ahmed [2009] I.C.R. 1450, EAT. However, the protected characteristic need not be the only reason or even the main reason for the treatment for it to be said to be ‘on grounds of’ or ‘because of.’ It is enough that the protected characteristic is an effective cause or significant influence of the treatment. Thus, the reason why a claimant was treated as he or she was treated is a relevant circumstance. That reason must also be included as a relevant circumstance in the case of a hypothetical comparator.[97]Section 23 of the Equality Act provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case. The comparator must be in the same position in all material respects as the claimant save only that he or she does not share the same protected characteristic. If the circumstances of each are materially different, then the comparator is not an ‘appropriate’ comparator (although what happened to such a comparator may still have evidential value – especially when considering how a hypothetical comparator would have been treated)..Equally important, it is important that material circumstances are not left out of account when determining whether an actual or hypothetical comparator was or would have been treated more favourably. Section 15 Equality Act 2010: discrimination because of something arising in consequence of disability[98]Section 15 provides:(1) A person (A) discriminates against a disabled person (B) if-- (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Case number: 2501335/2024 26(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[99]The focus of section 15 is in making allowances for a person’s disability: General Dynamics Information Technology Ltd v Carranza [2015] I.C.R. 169, EAT, para 32. An employer cannot discriminate against a disabled person contrary to section 15 if, at the time of the unfavourable treatment, it did not know that the Claimant had a disability and could not reasonably have been expected to know that.[100]For a claim under section 15 to succeed, there must be ‘something’ that led to the unfavourable treatment and this ‘something’ must have a connection to the claimant’s disability. Paragraph 5.9 of the EHRC Employment Code states that the consequences of a disability ‘include anything which is the result, effect or outcome of a disabled person’s disability’.[101]In Pnaisner v NHS England and anor [2016] IRLR 170, the EAT summarised the proper approach to section 15. First, the tribunal must identify whether the claimant was treated unfavourably and by whom. It then has to determine what caused that treatment — focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person. The ‘something’ need not be the sole reason for the unfavourable treatment but it must be a significant or more than trivial reason for it. In considering whether the something arose ‘in consequence of’ the claimant’s disability’, this could describe a range of causal links. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. There is no requirement that the employer be aware of the link between the disability and the ‘something’ when subjecting the employee to the unfavourable treatment complained of: City of York Council v Grossett [2018] I.C.R. 1492.[102]An employer will avoid liability under section 15 if it shows that the unfavourable treatment was a proportionate means of achieving a legitimate aim. In the EHRC Employment Code, paragraph 4.30 states that the means of achieving a legitimate aim must be proportionate. Burden of proof[103]Discrimination can be subtle. The law recognizes that there is rarely evidence of discrimination. That much depends on inferences to be drawn from the facts. People usually do not admit to discrimination, not even to themselves. The law tries to assist in section 136 Equality Act 2010, which provides that: (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; Case number: 2501335/2024 27 (3) But subsection (2) does not apply if A shows that A did not contravene the provision[104]Section 136 lays down a two-stage process for determining whether the burden shifts to the employer. However, it is not obligatory for Employment Tribunals to apply that process. Whether there is a need to resort to the burden of proof provision will vary in every given case. Where there is room for doubt as to the facts necessary to establish discrimination, the burden of proof provision will have a role to play. However, where the tribunal is in a position to make positive findings on the evidence one way or the other, there is little to be gained by otherwise reverting to the provision: Hewage v Grampian Health Board [2012] I.C.R. 1054.[105]In cases where the tribunal is not in a position to make positive findings, s136(2) means that if there are facts from which the tribunal could properly conclude, in the absence of any other explanation, that A had – for example – discriminated against B, it must so conclude unless A satisfies it otherwise. In considering whether it could properly so conclude, the tribunal must consider all the evidence, not just that adduced by the Claimant but also that of the Respondent. That is the first stage, which is often referred to as the ‘prima facie’ case. The second stage is only reached if there is a prima facie case. At this stage, it is for A to show that he did not breach the statutory provision in question. Therefore, the Tribunal must carefully consider A’s explanation for the conduct or treatment in question: Madarassy v Nomura International plc [2007] I.C.R. 867, CA; Igen Ltd v Wong [2005] I.C.R. 931, CA Public interest disclosures[106]The ERA provides two forms of protection to ‘whistle-blowers’:(1) protection from detriment under s47B and(2) protection from dismissal under s103A. By s103A ERA 1996, if the reason or principal reason for dismissal is that the employee made a protected disclosure, that dismissal is regarded as being automatically unfair. By s47B ERA a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[107]Whistle-blowers do not have to be right. They may be wrong in their belief. The legislation is concerned with reasonableness. In order for a disclosure to be considered a protected disclosure under the ERA two things need to be satisfied 107.1. Firstly, there needs to be a ‘qualifying disclosure’ within the meaning of section 43B. 107.2. Secondly, it must be made in a manner which accords with the scheme of the Act set out in s43C to s43H. In this way it becomes a ‘protected’ disclosure. What is a qualifying disclosure? Case number: 2501335/2024 28 information[108]The worker must disclose information: Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38, EAT. In Kilraine v Wandsworth Borough Council UKEAT/0260/15/JOJ Langstaff J observed that tribunals should observe the principle in Cavendish Munro with caution to the extent that it must not be ‘seduced’ into thinking that it must decide whether something is either ‘information’ or an ‘allegation’. Information may be provided in the course of making an allegation. However, the requirement is still for information to be disclosed. If there is a disclosure, it is necessary to consider whether that disclosure is a qualifying disclosure. This will depend on the nature of the information disclosed.[109]As can be seen from the exercise undertaken by Langstaff J (in paragraphs 31-35 of the Kilraine case) it is a question of carefully assessing what was said or written so as to determine whether information was provided (which meets the qualifying criteria in the Statute) whether or not an allegation was made as well, or whether what was said does not amount to information, for example because of the vagueness or lack of specificity or clarity. The information must, in the reasonable belief of the worker, tend to show a relevant failure[110]Section 43B identifies 6 things which the disclosed information must, in the belief of the worker, ‘tend to show’. Each of the six categories involves some form of malpractice or wrongdoing and are referred as the ‘relevant failures’. The worker is not required to establish that the information is true. He must establish that at the time he made the disclosure, he/she held a reasonable belief that the information disclosed tended to show. It is not a question of whether a hypothetical reasonable employee held a reasonable belief, but whether the particular worker’s belief was reasonable.[111]There is a subtle but vital distinction, in that it is not about deciding whether the worker reasonably believed that a breach of a legal obligation had occurred, is occurring or is likely to occur. Rather, it is a case of deciding whether he held a reasonable belief that the information he was disclosing tended to show that such a breach had occurred, is occurring or is likely to occur. Further, when assessing the worker’s belief, the test is not a wholly subjective one. It is the reasonableness of the belief of the particular worker which is being assessed.[112]In cases where a claimant relies on breach of a legal obligation, the source of the legal obligation must be identified before going on to assess the reasonableness of the belief of the employee. Public interest Case number: 2501335/2024 29[113]The worker must reasonably believe that he is making the disclosure in the public interest. That aspect is to be determined in accordance with the guidance of the Court of Appeal in Chesterton Global Ltd (t/a Chestertons )v Nurmohamed [2018] I.C.R 731.[114]What is clear from that authority is that there is no 'bright line' between personal and public interest. It is not the case that any element of personal interest rules out the statutory protection. In a case of mixed interests, it is for the tribunal to determine as a matter of fact as to whether there was sufficient public interest to qualify under the legislation.[115]The question of what is ‘in the public interest’ does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be.[116]The law protects the worker only against the act of disclosure. If the principal reason for dismissal is not the act or fact of disclosure then there can be no unfair dismissal contrary to s103A ERA. If the worker was not subjected to a detriment because he made the disclosure, there is no contravention of section 47B. Protection[117]If a disclosure is a qualifying disclosure then it becomes ‘protected’ if (among other things) it is made to the employer (s43(c)(1)(a)).[118]If the Claimant has established on the balance of probabilities that he made protected disclosures, that there was a detriment and that the employer subjected him to that detriment, then the burden shifts to the employer to show that he was not subjected to the detriment on the ground that he made the protected disclosure. The employer must then show that, in subjecting the claimant to the detriment that the protected disclosure did not materially influence its decision to do so: Fecitt v NHS Manchester [2012] I.C.R. 372. S103A: The reason for dismissal[119]A claimant will only succeed in a claim of s103A unfair dismissal if the tribunal is satisfied, on the evidence, that the ‘principal' reason for dismissal is that the employee made a protected disclosure. A ‘principal' reason is the reason that operated in the employer's mind at the time of the dismissal. If the fact that an employee made a protected disclosure(s) was merely a subsidiary reason to the main reason for dismissal, then the employee's claim under s103A will fail. Where an employee has insufficient qualifying service to bring ordinary unfair dismissal proceedings, he bears the burden of proving that the making of the disclosure was the reason or principal reason: Ross v Eddie Stobart Ltd [2013] 8 WLUK 88. S47B: causation and burden of proof[120]Causation under s47B has two elements: Case number: 2501335/2024 30a. Was the worker subjected to the detriment by the employer?b. Was the worker subjected to that detriment because he had made a protected disclosure? Wrongful dismissal[121]If an employee is dismissed with no notice or in adequate notice in circumstances which do not entitle the employer to dismiss summarily, this will amount to a wrongful dismissal and the employee will be entitled to claim damages in respect of the contractual notice.[122]An employer is entitled to terminate a contract without notice in circumstances where the employee has committed an act of gross misconduct. It is for the employer to prove on the balance of probabilities whether the employee has committed gross misconduct. Whether an employee has committed gross misconduct entitling the employer to terminate summarily is a question of fact in each case. However, the courts have considered when ‘misconduct’ might properly be described as ‘gross’: Neary v Dean of Westminster IRLR [1999] 288 (para 22). In Neary, Lord Jauncey of Tulichettle rejected a submission that gross misconduct was limited to cases of dishonesty or intentional wrongdoing.[123]Neary was considered more recently by the Court of Appeal in Adesokan v Sainsbury’s Supermarkets Ltd [2017 I.C.R. 590. At paragraph 23, Elias LJ said that the focus was on the damage to the relationship between the parties. The question, in any particular case, will be whether a negligent dereliction of duty is so grave and weighty as to amount to a justification for summary dismissal. This involves an evaluation of the primary facts and an exercise of judgment. Whist the exercise is one of judgment, in paragraph 24 Elias LJ cautioned that the parameters of the exercise are not boundless and that “it ought not readily to be found that a failure to act where there was no intentional decision to act contrary to or to undermine the employer’s policies constitutes such a grave act of misconduct as to justify summary dismissal.” Submissions[124]Mr Anderson produced written submissions. These were kept to the minimum to assist the Claimant and were prepared on larger font. By agreement, Mr Anderson’s solicitors sent the submissions to the Claimant at 11.40am. Mr King was provided with additional time in order to complete his own submissions. He emailed his submissions at 2pm. Those submissions do not engage with the issues in the case. The Tribunal read both submissions before the parties returned at 2.40pm. Mr King did not read Mr Anderson’s submissions. Therefore, the Tribunal asked Mr Anderson to speak to them. We had a further break to allow the Claimant to gather his thoughts if he wished to add anything in response to Mr Anderson’s submissions. He did and he prepared some further points in response which he read aloud to the tribunal. The tribunal adjourned at 4.20pm on 27 May and began deliberations the following morning at 10am. Case number: 2501335/2024 31 Discussion and conclusions[125]We shall first of all set out our conclusions on the ‘whistleblowing’ claims. Those are the claims covered by paragraphs 1 to 3 of the list of issues in the Appendix. Did the Claimant make a qualifying disclosure?[126]The Claimant has not satisfied us on the evidence that he did make a qualifying disclosure. Indeed, it was apparent to us that Mr King – like many people in our experience - did not really appreciate what a qualifying or protected disclosure is. In paragraphs 22 and 23 of the Particulars of Claim, it is said that ‘in or around December 2023 it came to the Claimant’s attention that there was continued disquiet over the role designation and correct uniform. In or around December 2023 the Claimant via a survey raised his disclosure’. The only thing that could be gleaned so far from that was that he raised the fact that there was continued disquiet over that issue. Paragraph 24 of the Particulars pleads that he believed this tended to show that the Respondent had failed and/or was failing or was likely to fail to comply with a legal obligation and that the health or safety of persons had been or was being or was likely to be endangered. The legal obligation was unspecified as was the identity of the persons (or group of people) whose health or safety was being endangered. Leaving aside any element of public interest belief, it is not immediately apparent how someone might believe a comment about continuing disquiet tends to show either of these things. No doubt that is what prompted Judge Loy’s orders at the case management preliminary hearing.[127]Mr King does not say much more in his witness statement about the ‘information’ he gave when he completed the staff survey. He says that the ‘raised a concern regarding a proposed change of uniform for staff managing the CFR programme’. The remainder of section 3 of his statement relates to what he believed – not what he believed the information tended to show, He believed that a shift from green to blue uniform for those managing CFRs ‘may’ undermine the ‘perceived authority’ and ‘role clarity’ of those supporting CFR volunteers. He went on to say that he believed that the ‘issues’ raised a ‘legitimate concern under the health and safety heading’ where operational efficiency and trust were concerned’ He says nothing in his statement about communication within the team or what that tended to show.[128]We have no hesitation in agreeing with Mr Anderson. The Claimant has not, even on his own case, made a qualifying disclosure. We were unable to identify what it was he said in the survey other than to say that he made a broad reference to the disquiet regarding the uniform issue and the possibility that this would undermine public confidence (see paragraph 46 above). He did not satisfy us that he provided ‘information’ as opposed to merely stating a ‘view’ about public confidence. We arrive at this conclusion in full appreciation that there is no bright line between an ‘allegation/view’ and ‘information’ (see paragraph 108 above) Case number: 2501335/2024 32[129]Even proceeding on the assumption that he did give some ‘information’, we noted that Mr King gave no evidence as to what legal obligation he believed the information tended to show the Respondent to be failing to comply with and made no submission regarding any such legal obligation. Nor did he given evidence as to whose health or safety he believed the information tended to show had been or was likely to be endangered. The Tribunal judge observed during the hearing that it was not readily apparent to the tribunal how, by expressing a view on the move from green to blue uniform for certain managers (in this case, Mr Brolly and Ms Mason) he believed this tended to show that the health or safety of any individual was likely to be endangered. The judge observed that this was something the Claimant might want to address us on in submissions. However, the most that Mr King had to say about the matter was in paragraph 22 of his written submissions.[130]We are satisfied and conclude that the Claimant did not actually believe that the ‘information’ he provided in the survey tended to show a breach of legal obligation or that the health or safety of any individual had been, was being or was likely to be endangered. He may well have believed that the move from green to blue may have undermined the perceived authority of Mr Brolly and Ms Mason (and anyone else doing their job) but that is very different. He may also have believed that for some people attending an emergency in a blue uniform that this ‘may’ undermine public confidence. But that too is not sufficient to render anything he said a qualifying disclosure.[131]Finally, on the belief issue, even if he did believe that the information tended to show the health or safety of any individual was likely to be endangered, that belief was not reasonably held. At its highest, he can point to Alex Mason’s email. Ms Mason does not make any wider point regarding the move from blue to green. We refer to our findings on this in paragraphs 40-41 above. It is not reasonable to believe that the information tended to show the health or safety of the uniform wearer to be in endangered. It is not reasonable to believe that the information tended to show that the health or safety of any member of the public is likely to be endangered. Causation[132]In light of the fact that Mr King did not make a protected disclosure, his claims of detriment and automatically unfair dismissal must fail. However, we must emphasise that, irrespective of whether he had or not made a protected disclosure when he completed the staff survey, we are entirely satisfied that his dismissal had nothing whatsoever to do with anything he said in that survey. We arrive at this conclusion for the following reasons: 132.1. No-one knew he had completed the survey or what he said. (see our findings in paragraph 46 above), e.g. page 170).. 132.2. The confidential results of the survey were not made available to anyone early March 2024. This was after the decision to investigate take disciplinary action had been taken and after Sian Price had investigated. Case number: 2501335/2024 33[133]The assertion that Bev Smith saw what the Claimant had written about uniforms was itself fanciful and based on zero evidence. The further assertion that, because she saw what he had written, she then seized on the events of 02 February 2024 and manipulated others (Kevin Curry, Sian Price, Karen Gardner and Aaron Bahanda and/or Rachel Lucas) is also based on zero evidence and flies in the face of the evidence that was staring everyone in the face. The Claimant accepted in cross examination that he had not put his name on the survey but that if a diligent person wanted to find out who he was, they could, that it would not take a ‘rocket scientist’. By diligent person, he had in mind Bev Smith – the ‘Iago’ figure. As we have said, this is entirely fanciful stuff. Stopping for a moment to think about this: it would require Bev Smith to know (or guess) that the Claimant had completed the survey; to then have the wherewithal to contact the administrator of the scheme, persuade them to breach the confidentiality protocol which lies at the heart of the survey (see paragraphs 42-44 above); persuade them to search to see if the Claimant had completed the survey and for someone then to either give her access to the content or to send her what it was that the Claimant had written. She would then presumably have had to decide to seize on the incident of 02 February 2024, persuade experienced people like Kevin Curry, Sian Price and Karen Gardner to pursue disciplinary proceedings and somehow persuade Mr Bahanda to dismiss him. She would have had to do this orally or have destroyed or withheld any emails (as would others). All the witnesses would have to be lying to us. This is irrational stuff devoid of any evidential base.[134]So that Mr King is under no misapprehension, we are entirely satisfied and conclude that: 134.1. The decision to investigate his driving was made in good faith and motivated solely and entirely by the third-party complaint from NERAMS. Having seen the video footage and understood the nature of the complaint, this tribunal would expect the matter to have been investigated as a disciplinary matter. 134.2. The decision to recommend the matter proceed to a disciplinary hearing was made in good faith and motivated solely and entirely by the view formed by Ms Price, in conjunction with others she had discussed it with – Mr Curry and Mr Baxter – regarding the standard of driving on the day and the breach of the Respondent’s policies. 134.3. The decision to dismiss him for gross misconduct was made by Mr Bahanda, in discussion with Ms Gardner in good faith and was motivated solely and entirely by the view they formed of the standard of his driving, the lack of insight displayed by Mr King, the damage to the relationship of employer and employee and the reputational damage to the Respondent. Conclusion on the alleged detriments in paragraph 3 of the list of issues Case number: 2501335/2024 34[135]Although the whistleblowing detriment claim fails for the above reasons, we must make clear our conclusion that: 135.1. The Claimant was suspended from driving duties and subjected to a disciplinary process solely because of the complaint regarding the nature of his driving. 135.2. Although he refers to a ‘flawed disciplinary process due to procedural irregularities, there was, in our judgement no flawed process and no procedural irregularities. We cover this more fully in our conclusions under the section 15 discrimination claim and the failure to make reasonable adjustments claim. 135.3. Although the Claimant refers to him being excluded from proper representation, he was not excluded or denied or impeded by the Respondent as regards representation (see our findings in paragraph 65, 72, 81, 82 above in particular). Although the Claimant maintained that a number of people had been told they could not attend with him, we did not accept that and made no finding to that effect. If there was any disadvantage to the Claimant by not having anyone attend the hearings then it was unrelated to anything he said in the survey. As we shall address, it was also unrelated to his disability. Disability discrimination claims Knowledge of disability[136]Disability, by virtue of dyslexia and ADHD was conceded by the Respondent at the outset of the hearing. The issue remained whether the Respondent had actual or constructive knowledge of disability. If an employer did not know and could not reasonably have been expected to know that the Claimant had a disability, that is a defence in itself to a claim under section 15 Equality Act and a claim of failure to make reasonable adjustments.[137]The Claimant’s case was that the Respondent knew he had dyslexia and that it ought to have known that he had ADHD. Dyslexia and ‘actual’ knowledge of disability[138]The first question we asked was whether the Respondent – that, is the Trust – had ‘knowledge’ of the Claimant’s dyslexia. Mr Anderson submitted that it had knowledge of the fact of dyslexia by the time of the appeal hearing. We disagree. It may be that certain individuals did not have that knowledge, but we are considering not only the particular individuals who gave evidence in these proceedings but the Respondent as an employer. We refer to paragraphs 28-29 above of our findings. The fact that dyslexia was mentioned in the volunteer application does not, in our judgement, alter the fact that the Trust, as an employer, knew the Claimant was dyslexic. The form was received by someone employed Case number: 2501335/2024 35 by the Respondent. We infer that someone employed by the Respondent – the person whose job it was to collate the information given by job applicants or volunteer applicants – must have seen and did see that the Claimant declared as being dyslexic. Furthermore, on 11 May 2023, occupational health notified someone within the Respondent that the Claimant declared himself to be dyslexic. This was in relation to the employed role. Once again, that may not have filtered down to particular managers (the Claimant did not apparently want it to be noted) but someone in a position of authority knew this when they received the occupational health report. In any event, the actual knowledge of the occupational health adviser is imputed to the employer.[139]Therefore, at the ‘corporate’ level (if that is the right phrase) the Respondent (as the employer) did have knowledge of the Claimant’s dyslexia from the outset of his employment. That does not mean that it knew he had a disability of course. Many people have dyslexia. It is not something that in and of itself would lead someone to conclude the Claimant had a disability. Just because someone has mentioned on an application form that they have dyslexic does not lead to this conclusion. It is uncontroversial to describe dyslexia as a learning difficulty that exists on a continuum. Dyslexia may affect reading and writing and may affect processing of information on a wide range from mild to severe. Mr King accepts this. Indeed, some people may exaggerate their symptoms in order to gain an advantage. That has not been suggested in the Claimant’s case; but it demonstrates that the mere mention of dyslexia by an individual does not equate to knowledge of disability.[140]We looked at the documentary evidence. We considered the fact that the Claimant also referred on his form to being ‘neurodiverse’. Neurodiversity is a term that appears to describe the natural variation in human brains. References to ‘neurodiversity’ are becoming more and more common in our language these days. The tribunal has plenty experience of individuals referring to themselves as ‘neurodiverse’, not necessarily suggesting that their ‘neurodiversity’ amounts to a disability but simply making the point that they think differently to others and that they do not fall within what might be described as a ‘typical’ range of behaviour. The term ‘neurodiverse’ can also, however, be used as a catch-all phrase to describe neurological differences that may amount to a disability, for example, dyslexia, dyspraxia, autism, ADHD and more. We looked at the application form he completed for the job. It reads very well. Among other things, he had been a teacher before he joined the Respondent. He refers to himself as being an excellent communicator (see our findings in paragraph 45 above). The Claimant referred the Tribunal to the psychological report from 1999 at pages 699-704. Of course, the Respondent was not aware of that report or its contents. Indeed, in parts it is hard to equate what is said in the psychological report [pages 699-704] with what the Claimant says in the application form about his ability to communicate and process information (paragraph 45 of our findings). But we also note the age of the report. The Claimant has most likely developed coping mechanisms since that diagnosis which have helped him do the things he describes in his application for the job to the level he set out in that application. Case number: 2501335/2024 36[141]Taking all the documentation as a whole, we were satisfied and concluded that nothing that was noted on the documents alone would lead us to conclude that the Respondent knew the Claimant had a disability, by virtue of dyslexia. Therefore, we looked at what evidence there was of how the Claimant presented himself at work and what, if anything, he said to management about his needs.[142]There was no evidence before the tribunal of Mr King struggling with reading or writing or processing information in his day-to-day employed role or in his volunteer role. The results of his competency testing for the CFR role were very good. There was no suggestion by him that he had any difficulties in working with training materials, presenting training courses. There was some limited evidence of minor difficulties. He had some problem regarding the use of his computer – albeit the nature of the problem was never clearly explained. Whatever it as, at no time did Mr King express this to be connected in any way to dyslexia (we found against him on this point – see paragraph 46 above): Rather he simply said that he was having difficulties with the computer – much as he expressed IT problems in the course of this hearing which were wholly unrelated to dyslexia. The Claimant had experienced some difficulties in completing the flexible working sheets. However, as we found, this was not uncommon with employees owing to the complexity of the rules and it was not put across nor was it discernible as being due to dyslexia – if indeed it was.[143]There was no evidence that the Claimant presented himself at work in any way that led or might have led to any manager believing him to be experiencing substantial adverse effects on his ability to read or process information.[144]We are satisfied therefore that the Respondent has shown that, considering the facts, it did not know that the Claimant was disabled by way of dyslexia: either at an individual manager level or at a ‘corporate’ level (i.e. someone within HR). Dyslexia and ‘constructive’ knowledge of disability[145]However, the Respondent must prove not only that it did not know the Claimant had a disability by virtue of dyslexia but also that it could not reasonably be expected to have known.[146]The Code of Practice on Employment 2011 suggests that employers should consider whether a worker has a disability even where one has not been formally disclosed. The Respondent, as an employer, was on notice from the outset of the potential that the Claimant might have a disability within section 6 Equality Act. We have referred to the purpose of collating information in the Respondent’s own document at page 148 (new starter form - see paragraph 28 above). Given that purpose we would have expected someone within the Respondent to act on that information and make further inquiries of the Claimant himself. That could be someone from HR or a line manager. The Respondent failed to do this. The new starter’s form goes was stored on its Electronic Staff Record database (see page 148). Case number: 2501335/2024 37[147]Of course, a failure to enquire into a possible disability is not in itself enough to fix the employer with constructive knowledge. It is also necessary to establish what the employer might reasonably have been expected to know had it made such an enquiry: A Ltd v Z [2020] I.C.R. 199, EAT. This is a difficult exercise to undertake. On one hand, we were struck by the absence of any mention by the Claimant of any difficulties he faced with reading or processing information during his employment and noted how he had referred to himself in the application form and said nothing at interview. We also noted how the occupational health adviser recorded him as being reluctant to add ‘dyslexia’ to his ‘fit slip’ That – together with the lack of evidence of any difficulties at work – might suggest that the Claimant, upon the Respondent making further enquiries about his dyslexia, would have underplayed its effects with the result that the Respondent might not have understood from its inquiries that he had a disability. Without doubt, in our judgment, Mr King was reticent to mention his dyslexia at work.[148]Although a possible outcome of making further enquiries was that the Respondent would have concluded he was not disabled, on balance we concluded that – had it made further enquiries - it would have learned more about the effects of the Claimant’s dyslexia on his ability to read and process information. Reticent as the Claimant has been, had he been asked supportive questions with a view to understanding any difficulties and needs, accompanied with an explanation that the Respondent was following up on the comments he made in his application form for the employed role and the volunteer role, it is likely that that the Claimant would have relayed the sort of information contained in the psychological report from 1999 [page 699 – 704]. That is especially so had someone explained to him that the purpose of the enquiry was to establish whether he had a disability so that his needs could be understood and were being addressed. It may well have come from that enquiry that the Claimant was coping well with his dyslexia and had no need for any adjustments – that is a different issue, which we shall address below. But this is about whether the Respondent could reasonably be expected to have known that he had a disability. We conclude that the Claimant would have said more about the effects of his dyslexia, in line with those set out in the psychological report. Old as that report may be, the Claimant had kept it and dyslexia is not something that goes away, albeit one may develop methods to cope with it, as the Claimant clearly has over the years since diagnosis.[149]Therefore, although we were satisfied the Respondent did not have actual knowledge of disability, it has failed to establish that it did not have constructive knowledge of disability by virtue of dyslexia. ADHD and ‘actual’ knowledge of disability[150]We do not reach the same conclusion in respect of ADHD. As we have set out in our findings, the Claimant never mentioned to anyone within the Respondent that he had or that he believed he may have ADHD. Indeed, he was not diagnosed with ADHD until April 2025, shortly before this hearing began. We considered the documentary evidence. Any- Case number: 2501335/2024 38 one reading the Claimant’s description of himself on page 73 document as ‘’a neurodivergent individual with Dyslexia’’ would be forgiven for thinking that they were meant as one and the same thing. In other words, there is no reason to think that the use of the word ‘neurodivergent’ adds anything to ‘dyslexia’ or describes anything other than his dyslexia.[151]In addition, there was no indication as to how the Claimant presented at work that he had ADHD and the Claimant has not presented any such evidence. Even if the Claimant’s friend, Mr Duckmanton, had his suspicions back in 1990, the Claimant never acted on them, never sought medical advice or input until after his dismissal and never maintained to anyone that he had ADHD.[152]We are satisfied and conclude that no-one within the Trust knew that the Claimant had ADHD. We reach the same conclusion on disability by virtue of ADHD in terms of actual knowledge. No-one from the Respondent knew that the Clamant had a disability by virtue of ADHD. ADHD and ‘constructive’ knowledge of disability[153]Whilst there was good reason for the Respondent to make enquiries of the Claimant as to the effects of his dyslexia, there was nothing that suggests they ought reasonably to have made enquiries of the effects of ADHD. This is for fairly obvious reasons, as there was simply no suggestion of this at the time. Further, we conclude that, in the course of making enquiries about the effects of his dyslexia, it is highly unlikely that the Claimant would have said anything about ADHD or the effects of it. We say this for the following reasons: 153.1. He has made no reference to it in his application form. 153.2. He made no reference to it when speaking to Occupational Health. 153.3. Any difficulties regarding reading and processing of information he put down to dyslexia and he would have put such difficulties down to dyslexia had he been specifically asked by someone from the Trust making the sort of enquiries one might expect an employer to make in light of the specific reference to dyslexia.[154]Therefore, the Respondent has satisfied us that it could not reasonably be expected to have known that the Claimant had a disability by virtue of ADHD. Indeed, in his disability impact statement [page 65] we note that the Claimant does not refer to ADHD at all and says: ‘the disability I rely upon for the purposes of my claim is a diagnosis of dyslexia’. Whether he had ADHD or not adds little if anything to the case. Direct disability discrimination Case number: 2501335/2024 39[155]We shall deal with this part of the claim very briefly. Although we have concluded that the Respondent had constructive knowledge of the Claimant’s disability through dyslexia, we found that Bev Smith did not know that the Claimant was dyslexic. Nor did Sian Price, Karen Gardner or Aaron Bahanda. The first time during the disciplinary process that the Claimant referred to his dyslexia was at the appeal hearing.[156]We refer back to the findings in paragraph 73. Our conclusions in paragraph 134 above and to the legal principles in paragraphs 95-97. The Claimant’s dismissal had nothing whatsoever to do with the fact that he has a disability. Mrs Smith did not influence or manipulate anyone. Ms Price was concerned only with the Claimant’s driving on 02 February 2024 as was Mr Bahanda, Ms Gardner and Ms Lucas, when she came to hear the appeal. None of these people was influenced by something they were unaware of, namely the Claimant’s disability or for that matter any perception of disability.[157]A person without the Claimant’s particular disability but who had been the subject of the same complaint would have been investigated, suspended from driving duties and, we are entirely satisfied, dismissed. Failure to make reasonable adjustments[158]We then addressed the claim of failure to make reasonable adjustments.[159]It is not uncommon for workers to say, in essence: ‘I am disabled, therefore my employer must make reasonable adjustments.’. However, that is not what the law says.[160]The duty to make reasonable adjustments is triggered only in certain circumstances – see paragraphs 85-94 above under ‘Relevant Law’ The starting point is to consider whether there was a ‘PCP’ which put the disabled employee to a substantial disadvantage compared to persons without his disability. It is for a claimant to establish that there was such a PCP. Those which the Claimant contended put him to a substantial disadvantage are identified by us in paragraph 7.1.1 to 7.1.5 of the list of issues. We take them in turn. Placing the onus on employees to arrange the attendance of a companion (issue 7.1.1)[161]The Respondent did indeed operate such a practice – as does most, if not every employer, this tribunal has had experience of. The Tribunal has never come across a situation where an employer takes on the role of finding an employee’s companion or representative. Indeed, the statutory right in section 10 Employment Relations Act 1999 is for the worker to be accompanied by a companion chosen by the worker. In the course of the hearing, Mr King confirmed that he was not contending that the onus should be on the respondent to do this. In any event, even if he had so contended, the practice did not and does not put him at a substantial disadvantage in comparison with persons without his disability. The Claimant’s inability to find a companion or trade union representative had absolutely nothing to do with his disability. It was down to choice or the location of the in- Case number: 2501335/2024 40 dividual (Scotland) We refer to our findings in paragraphs 72 and 81 above and to paragraph 88 under ‘relevant law’. Whilst Mr King has dyslexia and ADHD, he is an intelligent individual. He is more than capable of expressing himself and understanding. While his processing may be somewhat slower than others, he can and does process information. He is an effective, articulate communicator. Quite how he was going to establish a disadvantage in this respect was very unclear from the outset. It was little surprise that he did not pursue that argument to the end.[162]We must, however, address the argument that he did pursue to the end: which was that what he really meant by this was that the Respondent prevented him from or impeded him in arranging a companion. We reject this. The Respondent’s managers did not in any way seek to stop the Claimant from bringing a companion of his choosing. We reject the suggestion by him that managers told people that they should not accompany the Claimant because of a conflict of interest – we made no findings in favour of the Claimant in this respect. Further, the Claimant had been accompanied by Paul Brolly at the investigative interview. The reality is that the Clamant chose not to ask him to accompany him to the disciplinary hearing or the appeal hearing. The Respondent had provided him with email addresses for the purposes of the appeal.[163]Whether in its original form or developed form, the Claimant has not made out his case. Indeed, having regard to the evidence and our findings, this was a hopeless argument. Holding disciplinary meetings in the absence of a companion having been arranged by employees (issue 7.1.2)[164]This is very much related to the first alleged PCP. It is right to say that the Respondent has the practice of holding disciplinary hearings and appeals in the absence of a companion but only in circumstances where they have asked and have been told by the employee that the employee is happy to continue without one, having been given the opportunity to bring someone along. That last part is an important caveat: the Respondent does not engage in a practice (a ‘PCP’) of not reminding employees of the right to bring a companion and without checking that they are happy to proceed without one. Thus, in the way that the Claimant has put the PCP, he has not made it out. In any event, we asked what more can an employer do above and beyond what this employer did? It reminded the Claimant in advance of his right. It permitted him to bring a companion (Paul Brolly) to an investigative meeting, even though the statutory right does not extend as far as this. It reminded him in advance of the disciplinary hearing. It checked with him at the disciplinary hearing. It was entitled to proceed on the basis of the Claimant’s say-so. We repeat: the Claimant was and is perfectly capable of saying what he needs when he feels it right to do so – for example, as he did throughout these proceedings. We are satisfied that had he asked for a postponement in order to try again and arrange a companion for the disciplinary hearing, he would have been granted this. Case number: 2501335/2024 41 In conducting disciplinary and appeal meetings, using white paper without considering accessibility? (issue 7.1.3)[165]It is right that the Respondent, in the disciplinary and appeal hearing used white paper and did not consider whether the Claimant had been able to read and understand the information provided in the Management Statement of Case. However, this is understandable at the disciplinary hearing given that the Claimant did not mention that he had difficulty, because of dyslexia or for any other reason, in reading or processing the information. Further, at the appeal hearing he had printed the documents on green paper. Therefore, no disadvantage arises at that hearing. The Claimant’s case in substance amounts to this: whilst he could have but did not ask anyone before or at the disciplinary hearing to copy the statement management of case on green paper, nonetheless they should have done so and that by failing to do so they impeded his ability to participate and discriminated against him.[166]Even recognising the obligations on employers in this field, there is in our view something unsavoury about this approach. It is not as if the Claimant is unable to speak up. Whilst it may be that he processes information slower than others, he is not incapable. On the contrary, he is a considered, capable man of some considerable experience of life and work as is clear from the content of his application form (see paragraph 25 above). None of those engaged in this process showed any sign that they would refuse a request like that if made. If he believed he was at a disadvantage by not having the management statement of case – or if he had access difficulties of any sort – he could, and in our judgement, would have mentioned it. He did, after all, ask for the ‘confidential’ water mark to be removed as it was emblazoned across the text. The Respondent removed it.[167]We conclude that, in fact, the Claimant was not put to any disadvantage by the Respondent conducting the hearings with the use of green paper. That is because the Claimant had been sent the information well in advance of the hearing by pdf. He had the ability to read this on his computer at home. He was able to print the documents on coloured paper at home or use his green overlays. The Claimant never saw fit to mention any of this or any particular needs for the hearing. By the time he attended the disciplinary hearing, he had the documents, understood them, had seen the CCTV footage, had been asked if he wished to review it again but declined, had been reminded of his right to be accompanied. It may be that the Claimant did not print out the management statement of case on green paper or bring his overlays with him but that was his choice. That he did not do this is, in our judgement, a clear indication, that he did not personally believe or feel that he was at a disadvantage. The whole premise of the Claimant’s case lacked credibility. The case he had to meet was simple: video footage showed him driving in a way the Respondent considered unsatisfactory. All he had to do was explain himself. This was not a case where he was swamped or overwhelmed by documents.[168]Although we are clear that, on the evidence, the Claimant was not in fact put to a disadvantage by the fact that at the disciplinary hearing white paper was used, even if he had Case number: 2501335/2024 42 been disadvantaged, the Respondent did not know that he was at any disadvantage. Not everyone with dyslexia requires documents to be printed on paper other than white paper. It is very personal to the individual. Some are fine with white paper, others prefer off white, green or yellow. The point of printing documents on a colour which works for the individual is that it can help reduce visual stress and make reading more comfortable. Everyone is different. Because the Claimant said nothing whatsoever to those engaged in the disciplinary process about any of this, they did not know that the ‘PCP’ was likely to put him at a substantial disadvantage.[169]Further, in the absence of a request for information to be put onto green paper, the Respondent could not reasonably have been expected to know this. That is notwithstanding our conclusion that it ought reasonably to have known back in 2023 that he had a disability by virtue of dyslexia. Just because it ought reasonably to have known this, it does not follow that it ought reasonably to have known that he was put to a disadvantage by the use of white paper at the hearing. Had the Respondent asked specifically in advance of the disciplinary hearing whether he needed any adjustment because of his dyslexia at the disciplinary hearing, we are entirely satisfied that the Claimant would have said no. We reach that conclusion because of our finding that the Claimant was asked multiple times if he needed anything and he said no, he was happy to proceed. We also note our finding in paragraph 82, where he asked if he needed any adjustments for the appeal hearing and he said not because he had printed documents on special paper (green). That is something he had been able to do before the disciplinary hearing. Conducting fact-finding, disciplinary and appeal meetings without providing sufficient breaks (issue 7.1.4)[170]We take each meeting in turn. First of all, the fact-finding meeting of 27 February 2024. This was a relatively short meeting that lasted about 20 minutes. As we have found in paragraph 66 above, the Claimant did not ask for a break. That is unsurprising given the length of the meeting. We are satisfied that he did not ask for a break because he did not need a break and had he asked for a break there is nothing to suggest that this would not have been afforded. There were no documents for him to have to read at this meeting. Ms Price showed him the CCTV footage and asked him to explain his position. That was something the Claimant was perfectly able to do. He displayed no difficulties in processing any information and we are satisfied that he had no difficulty in processing what was happening. The position was very simple: he was shown dashcam footage of him driving in the manner that was plain to see and he was asked for his explanation.[171]We then considered the disciplinary hearing. We refer to our findings in paragraph 72 above and where the Claimant conceded in cross-examination that, in fact, he had no problems with breaks in respect of the disciplinary hearing.[172]As regards the appeal meeting, we refer to paragraph 82 above where Rachel Lucas told the Claimant that he could ask for a break at any time. The Claimant had at least two Case number: 2501335/2024 43 breaks during this hearing. He did not ask for any other breaks and there is no reason to suppose that he asked for another break that this would have been refused. That is so in light of the finding that Rachel Lucas said he could ask for a break at any time.[173]In his submissions to the Tribunal, the Claimant said he struggled to function because of the complex array of documents throughout the process. We do not accept this. There was no complex array of documents. The case against him was simple and was based on the dashcam footage. He was asked by Ms Price whether he wished to see it again and he declined. He was asked by Mr Bahanda whether he wished to see it again at the disciplinary hearing. He declined (paragraph 73 above). In our judgement, Mr King declined because he felt he did not need to see it again because he believed his driving to be appropriate. As far as he was concerned, the case was simple: he was responding to a CAT1 situation and as far as he was concerned, he acted appropriately. It was no more complicated than that. Dyslexic he may be and he may have ADHD but the suggestion that he was disadvantaged by any arrangements or practices of the Respondent was, again, fanciful.Therefore, insofar as the allegation is that the Respondent proceeded without providing sufficient breaks, the Claimant has not made it out. On the contrary, it is clear to us that it did provide sufficient breaks and offered the Claimant the facility to have breaks at his request. The Claimant was not disadvantaged in any way by the way in which the Respondent organized the meetings. Provide evidence during disciplinary hearings (issue 7.1.5)[174]It was only during the course of the Claimant’s evidence that Mr King explained what he meant by this. When first asked by Mr Anderson he said he did not know what it was about. He then said he believed it was about appendix 1 on page 563 of the bundle. The font was too small for him to read. Certainly on the hard copy it could be seen that the text was extremely small and the tribunal was unable to read it. The Tribunal judge (working from a pdf and hard copy of the bundle) was able to enlarge the text. The Claimant said that he could not do that on his copy of the pdf. Surprising as that may be, if is of course, possible depending on which pdf reader is being used. However, what is more surprising is that at no point prior to the disciplinary hearing did he contact anyone to say he could not enlarge the text. Had he done so, there is no reason to suppose that an alternative version would not have been provided. He had after all asked for the water mark to be removed. Up until the Claimant’s cross examination, what he meant by providing evidence at the disciplinary hearing was extremely vague. As was the case with most of the issues, he said nothing about it at all in his witness statement. However, the matter was remedied at the disciplinary hearing itself and in any event, it did not impede his understanding or ability to assimilate or understand in any way.[175]The Claimant was put to no substantial disadvantage at the hearing by having been sent in advance of that hearing a report which contained a letter in small font. That is because, by the time of the hearing he knew and understood the allegation and was able to state his position as he clearly did. He could have, but did not, ask for larger font. That he Case number: 2501335/2024 44 did not, suggests to us that he was able to enlarge it, or that the inability to enlarge it was unimportant to him.[176]We are clear in our conclusion that the Claimant was not put to any substantial disadvantage at the meetings or by the way the Respondent managed the investigatory and disciplinary proceedings. The Claimant has made much of what is a very simple state of affairs in an attempt to secure some judgment in his favour.[177]We are entirely satisfied that he was able to process the relevant information and was able to communicate effectively and clearly throughout. Section 15 discrimination[178]The Claim Form contains a complaint that the Claimant was dismissed because of something arising in consequence of his disability. It was his case that his driving was not inappropriate or below the standard of a competent driver. Therefore, this was not a case where he argued his poor standard of driving arose in consequence of either his dyslexia or his ADHD. Not only that, he submitted that ADHD made him more focused and able to drive more safety that day. It was difficult to see in what way he was contending his dismissal to be because of something arising in consequence of any disability.[179]In our experience, many litigants have difficulty in understanding section 15 of the Equality Act. The Tribunal judge tried to explain how it, and other statutory provisions, had to be considered in a structured way. It is necessary to identify the ‘something’ that arises in consequence of the disability. The Claimant’s case as pleaded is that he was dismissed because of his impeded ability to assimilate information and read and communicate effectively. These things he contends (the ‘something’) arose in consequence of his dyslexia.[180]However, he was not dismissed because of those things. He was dismissed because of the standard of driving on 02 February 2024. It is as simple as that. His standard of driving was wholly unconnected to his disabilities. His impeded ability to assimilate or communicate played no part in the motivation of anyone.[181]The section 15 complaint is, as Mr King confirmed, really about process – that is, because of the way the Respondent conducted the meetings, he was disadvantaged in the way in which he was able to assimilate information and communicate his position to the Respondent and this resulted in his dismissal. However, we have found that he was able to assimilate the information and what was being alleged. It was, after all, not complicated. We found that he was able to and in fact did actively and effectively participate and communicate his position, knowing and understanding what was alleged against him.[182]We are satisfied that he was not subjected to unfavourable treatment in any of the ways listed in paragraph 6.1 of the list of issues because of something arising in consequence of his disability. The claim fails and must be dismissed. Case number: 2501335/2024 45 Wrongful dismissal[183]That leaves the claim of wrongful dismissal. The key question is whether on 02 February 2024, the Clamant repudiated the contract of employment. If he did, then the Respondent acted lawfully in terminating his employment without notice.[184]We agree with what Mr Anderson says in paragraph 71 of his submissions and we refer to our findings of fact in paragraph 59 above. We also agree with paragraph 72(c) of Mr Anderson’s submissions that Mr King did not seek to apologise or mitigate his actions. This was evident not only from what Mr King had said to managers during the disciplinary process but it is clear from the final page of his witness statement in these proceedings, where he seeks to clarify a comment he made at the time, namely ‘I can always do better’. He was at pains to say that this was a ‘general reflective comment’ and ‘not an admission of fault, poor judgement or misconduct.’ He goes on in his statement to say that this should not be interpreted as acceptance of wrongdoing and that he made the comment solely on on professional principles, not culpability.[185]We also agree with the submission that the Claimant’s view all along has been the end justifies he means. The standard of his driving was of no concern to him because as far as he was concerned, he made decisions to drive as he did based on what he believed he was capable of doing safely and that, owing to his advanced driving skills, he drove safely.[186]Mr Bahanda genuinely believed the Claimant’s driving to be dangerous that day. We can see why he might arrive at that conclusion. It was a reasonable conclusion for him to draw in the circumstances. Whether the way a person drives is to be regarded as below or far below what would be expected of a competent and careful driver does not require the driving skills of a particular driver to be analysed. Indeed, in a case of dangerous or careless driving, a special skill or lack of it of a driver is an irrelevant circumstance when considering whether a driver has been driving dangerously: R v Bannister [2009] EWCA Crim 1571.[187]Not only did Mr Bahanda believe the Claimant’s driving to have been dangerous judged by the standard of what would be expected of the competent and careful driver and that this damaged the employer/employee relationship, he also believed that the Claimant’s lack of insight damaged to the level of trust in the employer/employee relationship. This was especially so given the nature of his role as a trainer. The Claimant was is in a position where he was required to train CFRs who have to respond to CAT1 emergencies. Mr Bahanda was concerned that the Claimant could not accept that he erred in any way.[188]As this is a wrongful dismissal claim, it is for the Respondent to establish that the Claimant repudiated the contract of employment. It is our judgement that matters, not that of Mr Bahanda or the Respondent. What he genuinely believed in and what genuinely led Case number: 2501335/2024 46 him to dismiss are relevant to the section 103A ERA claim and the sections 13 and 14 claim.[189]We agree with the Respondent that the conduct of the Claimant on 02 February 2024 was such that it seriously damaged trust and confidence We are conscious that it was a single incident. However, it was a serious breach of the Respondent’s policies. The terms in those policies regarding driving are essential terms in light of the nature of the undertaking and the role of the Claimant in training CFRs. Mr King’s lack of insight was a clear demonstration that he no longer intended to be bound by those essential terms. No matter what, Mr King feels he was justified because he was driving a CAT1 incident. He only began to water down his position in his written submissions to this tribunal. Even then, it was a very modest concession where he goes no further than saying that his driving ‘was not perfect’. He is still reluctant to accept what is, we would say, obvious to any independent observer, namely that his driving was as we have set out in our findings. He was driving at speeds ahead of a speeding ambulance and then keeping up with it after it in convoy style.[190]Mr King relied on the Social Action, Responsibility and Heroism Act 2015 (SARHA). We considered this. However, we concluded that his reliance on this piece of legislation was misplaced for two reasons: firstly, it applies only to civil claims where a person is alleged to have been negligent or in breach of a statutory duty. The Claimant (nor the Trust) is not faced with a civil claim against him. He has brought a claim against the Respondent for wrongful dismissal. The Act does not apply to these proceedings. Secondly, and in any event, the Act requires only that the court must consider whether the person was acting for the benefit of society or any of its members or acting heroically by intervening in an emergency to assist an individual in danger. The Respondent always had regard to the fact that the Claimant was responding to a CAT1 emergency. That is unsurprising given it is the reason it exists as an organisation. However, it still requires those driving to such incidents to comply with its procedures and the law. We too, in our deliberations have had regard to the fact that the Claimant was responding to an emergency situation and was going to the scene not for his benefit but for the benefit of a member of society. Thus, in effect having regard to the matters referred to in SARHA.[191]Having done so, we are satisfied and conclude that the Claimant fundamentally breached the contract of employment justifying summary dismissal. We had regard to the nature of the organisation, the nature of his role as a trainer, the manner of the driving, the lack of insight displayed by the Claimant and the very real risk – indeed, in our judgement, probability - that if faced with a similar situation he would do the same again. Applying the law as we understand if following Adesokan, we need to focus on the effect of that conduct on the employment relationship. In our judgement, the Claimant’s conduct struck right at its heart. We make it clear that we have not gone as far as to conclude that the Claimant’s driving was dangerous within the meaning of section 2A of the Road Traffic Act 1998. We did not need to go as far as this. Case number: 2501335/2024 47[192]Therefore, the claim of wrongful dismissal is not well-founded and is dismissed. Employment Judge Sweeney _____________________________ Date: 30 May 2025 APPENDIX LIST OF ISSUES[1]PROTECTED DISCLOSURE1.1 Did the Claimant “raise objections to the internal proposal to restructure the Community First Responder (CFR) program by transitioning it under the management and training supervision of personnel wearing blue uniforms” and/or the “issue of serious communication difficulties with the team”, via a confidential staff survey in or around December 2023?1.2 Did the Claimant in that confidential staff survey, make a qualifying disclosure as defined in section 43B of the Employment Rights Act 1996?1.2.1 Did the Claimant disclose information?1.2.2 If so, did the Claimant believe the information tended to show that:1.2.3 Was his belief a reasonable belief?1.2.4 Did the Claimant believe the disclosure of information was made in the public interest?1.2.5 Was his belief a reasonable belief?(a) a person had failed, was failing or was likely to fail to comply with any legal obligation? (as per Section 43B(1)(b) Employment Rights Act 1996); or(b) that the health or safety of any individual has been, is being or is likely to be endangered (as per Section 43B(1)(d) Employment Rights Act 1996).1.3 If the Claimant made a qualifying disclosure, was it protected in that it was made:1.3.1 to the Claimant’s employer or other responsible person; or1.3.2 to a prescribed person.[2]AUTOMATIC UNFAIR DISMISSAL – SECTION 103A EMPLOYMENT RIGHTS ACT 1996 2.1 Was the reason or principal reason for dismissal that the Claimant made the protected disclosure?[3]WHISTLEBLOWING DETRIMENT – SECTION 47B EMPLOYMENT RIGHTS ACT 19963.1 Did the Respondent subject the Claimant to a detriment:3.1.1 By suspending him from duties?3.1.2 By carrying out a disciplinary process?.3.1.3 By carrying out a flawed disciplinary process due to procedural irregularities?3.1.4 By excluding him from proper representation?3.2 If so, was did the Respondent subject the Claimant to such detriment(s) on the grounds that the Claimant made a protected disclosure?[4]KNOWLEDGE OF DISABILITY 4.1 As at the material times, did the Respondent know, or ought they reasonably to have known, that the Claimant had a disability by virtue or dyslexia and/or ADHD?[5]DIRECT DISCRIMINATION – SECTION 13 EQUALITY ACT 2010 5.1 Was the Claimant dismissed because of disability?[6]DISCRIMINATION ARISING FROM DISABILITY – SECTION 15 EQUALITY ACT 20106.1 Did the Respondent treat the Claimant unfavourably by:6.1.1 Conducting a disciplinary process in which the Claimant could not actively or effectively participate and6.1.2 Conduct an appeal process in which the Claimant could not actively or effectively participate?6.1.3 Dismissing him?6.2 If so, did the Respondent so treat the Claimant because of something arising in consequence of his disability, namely:6.2.1 the Claimant’s impeded ability to assimilate information,6.2.2 the Claimant’s impeded ability to communicate effectively and6.2.3 the Claimant’s impeded ability to read effectively.6.3 If so, can the Respondent justify such treatment as a proportionate means of achieving a legitimate aim?[7]FAILURE TO MAKE REASONABLE ADJUSTMENTS – SECTION 20 AND SECTION 21 EQUALITY ACT 20107.1 Did the Respondent:7.1.1 In conducting disciplinary and appeal meetings place the onus on employees to arrange the attendance of a companion?7.1.2 Hold such disciplinary meetings in the absence of a companion having been arranged by employees?7.1.3 In conducting disciplinary and appeal meetings, use white paper without considering accessibility?7.1.4 Conduct fact-finding, disciplinary and appeal meetings without providing sufficient breaks?7.1.5 Provide evidence during disciplinary hearings?7.2 If so, did any or all of these “PCP’s” put the Claimant at a substantial disadvantage in relation to the disciplinary process when compared to persons without his disability, in that he was unable to:7.2.1 assimilate information; and7.2.2 communicate clearly and effectively.7.3 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?7.4 If so, what steps could have been taken by the Respondent to avoid the disadvantage? The following steps were suggested:7.4.1 Place the onus on the employer to arrange a companion.7.4.2 Refrain from continuing with a disciplinary meeting when the Claimant had no companion.7.4.3 Refrain from using white paper or offer written material in green paper.7.4.4 Allow adequate time for the Claimant to consider written materials or allegations.7.4.5 Provide frequent breaks in meetings.7.4.6 Make provision for additional processing time during meetings or for answering questions.7.4.7 Refrain from providing evidence during a disciplinary hearing.7.5 Was it reasonable for the Respondent to have to take those steps?7.6 Did the Respondent fail to take those steps?[8]WRONGFUL DISMISSAL8.1 The Respondent agrees that the Claimant was dismissed without provision of his contractual notice period, following a finding of gross misconduct.8.2 Did the Claimant repudiate the contract of employment?8.3 If not, is the Claimant entitled to damages for wrongful dismissal in the amount of 1 week’s notice pay of £482.87?