Mr A Rayfield v Secretary Of State For Justice: 2505499/2013
EMPLOYMENT TRIBUNALS
Case No 2505499/2013Venue North ShieldsHearing 17-19 February 2020
Between
Mr A RayfieldClaimantSecretary Of State For JusticeRespondent
Before
Employment Judge GarnonDate 14 July 2022
JUDGMENT
The complaint of unlawful deductions from wages is dismissed following a withdrawal by the claimant. The claimant’s remaining claim(s) will proceed to hearing on 17th – 19th February 2020. JUDGMENT OF THE EMPLOYMENT TRIBUNAL Held at North Shields On 17-19 February 2020 Before Employment Judge Garnon Members Ms C Hunter and Ms E Wiles Appearances: For Claimant Mr M Brien of Counsel For Respondent Mr A Tinnion of Counsel JUDGMENT The unanimous judgment of the Tribunal is:[1]the claimant’s name is amended to that shown above;[2]his claim of harassment is well founded in part , as explained in the reasons;[3]remedy will be decided at a one day hearing on a date to be fixed. REASONS ( bold print is our emphasis and italics are quotations) 1. The complaints and issues 1.1. The claimant’s surname is now Johnson. He had taken his wife’s surname of Rayfield at the time he presented a claim on 19 December 2013 but since their divorce has reverted to Johnson. The respondent defended the claim. At all times both parties have been represented by experienced solicitors. 1.2. A claimant who can show negligence by his employer caused him psychiatric injury can bring a claim in the courts. Sheriff-v-Klyne Tugs held a claimant should bring a claim for such injury in the Tribunal if asserting injuries were caused by acts of discrimination. Claims in the two jurisdiction may overlap. In March 2014 came the first application for a stay of these proceedings pending civil proceedings which was granted by Employment Judge Johnson until 29 August 2014. Regional Employment Judge Reed kept the case under regular review. The stays were extended. The Tribunal was informed in the middle of 2015 the court case had been placed on hold due to the claimant’s ill-health. Towards the end of 2018, the Tribunal was informed the court case had been given a listing window of March-June 2019. The stay was extended. In about April 2019, the civil proceedings were settled for a payment of £125,000. Neither Counsel was fully aware of the overlap between the civil claim and the proceedings in this Tribunal as to what remedy could remain to be awarded. 1.3. Only on 23 August 2019 did the respondent accept the claimant had been disabled by post-traumatic stress disorder (PTSD) at all material times. Since 27 August 2019, when Employment Judge Garnon conducted a telephone preliminary hearing, the claimant has withdrawn all but one claim-harassment. Chapman-v-Simon precludes us dealing with claims which are not pleaded. Office of National Statistics –v-Ali held each type of discrimination is separate from the others and must be pleaded. Both parties accept we can deal with the pleaded case of harassment, but no more. The claimant relies upon the instances identified in his Particulars of Claim at paragraph 122. 1.4. The respondent had provided an adequate draft list of liability issues which included Did the Respondent engage in unwanted conduct related to disability? If so, did this conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, with reference to the Claimant’s perception, the other circumstances of the case and whether it would be reasonable for the conduct to have that effect? Were all of the Claimant’s complaints presented within the time limits set out in sections 123(1)(a) & (b) of the Equality Act 2010 (“EqA)? This will involve consideration of when the treatment complained about occurred, whether there was an act and/or conduct extending over a period, and/or a series of similar acts or failures; whether time should be extended on a “just and equitable” basis. Given the date the claim was presented, any complaint about something that happened before 20 September 2013 is potentially out of time. 2. Findings of Fact 2.1. The claimant was born on 10 November 1960 and employed as a Prison Officer from 4 July 1999, latterly at HMP Frankland which houses the most challenging and violent prisoners. He developed PTSD and Major Depressive illness as a result of involvement in an incident on 1 October 2011 where a prisoner was brutally mutilated, disembowelled and murdered by two prisoners. He was first on the scene, did what his job required of him and worked the rest of his shift. He says what he witnessed will haunt him for the rest of his life .We accept that and the profound effect it has had on his mental health. We heard his evidence and, for the respondent, Senior Officer (SO) Michael Gartside, SO Andrew Raymond Nutton and Ms Donna Pickering of HR at HMP Frankland. 2.2. The claimant returned to work the day after the murder and was detailed back to the same landing on C wing. On 17 October 2011, while carrying out a cell fabrication check (CFC) he was required to enter the cell where the murder had taken place. He walked in, looked down and realised he was standing in a pile of dried human blood that had been scraped by the forensics team and swept into a pile. He left the cell and informed his wing manager what had occurred. On 20 October 2011 when carrying out a CFC he was required to enter the cell again. When checking the integrity of the bed, he pressed down on the springs and blood ran out onto his hand. He informed his wing manager and Governor Aled Edwards. 2.3. He continued to attend work. On 8 November 2011, following an application in February 2011, he was transferred to G Wing. His behaviour was so changed at home, his wife left him and refused to return until he sought appropriate treatment. He asked Ms Carol Wetherall of Occupational Heath (OH) at HMP Frankland to make a referral for counselling. His appointments were on 15, 18 and 30 November, 2 and 8 December 2011 and 24 February 2012. He was granted “special” leave for some which is granted to anyone who has an important appointment that cannot be arranged outside work time and should not be confused with disability leave, only granted once a disability has been confirmed. 2.4. On 21 November 2011 he contacted Ms Wetherall saying his Counsellor had expressed grave concerns he was displaying all the classic symptoms of PTSD. She laughed and asked if Counsellors were now making diagnoses. 2.5. In December 2011 he tried to speak to Ms Jeanette Liddell (Head of Human Resources at HMP Frankland) but only managed to speak to her assistant Ms Moira Robinson whom he told he was feeling unwell, struggling to stay at work and was suffering from PTSD. He explained he had no wish to leave the prison service, but it may be his only option as he was not coping. He suggested a temporary secondment to another prison or some post in the civil service. He requested a meeting with Ms Liddell to discuss his options but, despite many calls, she never rang back as Ms Robinson promised many times she would . He continued to ring over the next three months, each time spoke to Ms Robinson but was never contacted by Ms Liddell. 2.6. On 20 December 2011 his wife rang and spoke to Officer Mark Lewis to check whether the claimant was on duty the following day. Mr Lewis said he was not, so he did not attend. The claimant had been mixed up with another officer called Johnson before. This time Mr Lewis had been wrong- the claimant was on duty. Such errors happened to all staff on a regular basis. On 21 December the claimant was called to a meeting with Governor Lamb to explain his absence. He explained the reason, the difficulties he was experiencing with PTSD and the lack of response of people he had contacted asking for help. Nothing happened to help him. 2.7. On 17 February 2012 he spoke to Ms Wetherall and requested ongoing counselling. She said the respondent had done all that was legally required of it by providing 6 sessions so he should ask his GP. 2.8. On 23 February 2012 he still had not been contacted by Ms Liddell so emailed Ms Robinson saying a post advertised in the prison service webpage ‘My Services’ and an email sent to everyone of a secondment to a different department (he does not recall where) would be a possible solution as he had worked as a Senior Officer in a secure unit for young offenders prior to joining the prison service. He had no reply. 2.9. On 22 March 2012 he was assessed via the NHS by the Mental Health Team (MHT) at Derwentside Centre. A diagnosis of PTSD was made. On 26 March 2012 he was told he would be offered intensive treatment and secondary care under the MHT. On 30 March 2012, a report was written confirming he was having anxiety and flashbacks. 2.10. On 1 April 2012 he emailed Ms Wetherall, Governor Lamb and SO Gartside (then his line manager) providing an update on his diagnosis and treatment plan. On 5 April he emailed Ms Wetherall and Governor Lamb confirming what he had been told by Ms Wetherall on 17 February 2012. Still nothing was done to help him. We have not seen those emails but his evidence on the point was not challenged. 2.11. On 28 April 2012 he contacted SO Clarke in the department which allocates shifts saying he would be reporting sick. A mere 30 minutes later he received a telephone call from Governor Lamb, to whom he again explained how he was feeling and said he doubted he would be returning to work at all. Governor Lamb stated as the claimant was booked for leave the next week he should take an extra day’s leave instead of reporting sick. Governor Lamb said he would investigate what assistance could be made available. Upon his return to work the claimant saw Governor Lamb who waved at him in passing and said he was off to the security department. He never spoke to the claimant or investigated support options. HMP Frankland had a Disability and Equality Co-ordinator, Ms Linda Butler, but she was not consulted. On 19 May 2012 the claimant received correspondence from the respondent asking him to explain his absence on 28 April. 2.12. On 7 June 2012 he recorded the incidents of 1,17 and 20 October 2011 in the accident book and wrote he had not done this sooner as he could not cope with recalling the details. 2.13. On 8 June 2012 he was reviewed in the Derwentside Clinic by Dr. Thejam Paralapalli, Consultant Psychiatrist, of Tees Esk and Wear Valley NHS Foundation Trust, a mental health trust. Also present were his Care Co-ordinator Michael Rogan, Dr. Toft and Dr. Miriam Lomas, Consultant Psychologist. He was diagnosed with PTSD and Secondary Depression. 2.14. On 12 June 2012 despite having been transferred to G Wing he was detailed back to the landing on C Wing where the three incidents had occurred for the fifth time since his transfer. 2.15. On 19 June 2012 a report by Dr Toft confirmed the diagnosis and that the claimant was having nightmares, flashbacks, poor sleep, panic attacks, and feeling frustration and anger. It is often unclear to whom at the respondent, if anyone, reports prepared by the MHT were sent, or when . 2.16. On 28 June 2012 the claimant received a telephone call from Governor Jobling querying why the three incidents were entered into the accident book only on 7 June 2012 when they had occurred in October 2011.The claimant explained the reasons and later queried in an email to Governor Jobling why this was being investigated by a Governor. The respondent has a health and safety department with a number of managers, all of whom were capable of asking him. To ask a Governor to investigate was unusual. 2.17. None of the above facts asserted by the claimant have been challenged, let alone disproved. We have heard no evidence at all from Governors Lamb, Finlay, Fox or Jobling, Ms Liddell, Ms Robinson or Ms Wetherell. This is the context in which we judge the effects of the specific acts of which the claimant complains. Until he went off sick none of his pleas for help had received any constructive attention. 2.18. On 29 June 2012 the claimant was taken into an office by SOs Gartside and Stewart Johnson. It was a confrontational meeting, not to do with his health, but an incident SO Gartside had seen in which he thought the claimant had not acted as he should during a unlocking procedure. For the next two days the claimant was not rostered for duty. On 2 July 2012 he went sick certified as “PTSD ( work related . Under Psychiatrist.) The sick note was for two months. The meeting, to him in his vulnerable mental state, was a “last straw” but it probably would not have been had he been well. In oral evidence he said until then, SO Gartside had regularly, albeit in passing, asked him how he was. The claimant did not return to work before his dismissal. 2.19. SO Gartside has been employed in the Prison Service since 16 May 1994 and at HMP Frankland since October 2004. He says he sought to maintain contact with the claimant In line with the relevant Absence Management Policy (PSO 8404) and noted his attempts in a record of contact log (pages 270-326). The record shows he tried to telephone the claimant on 3 July, left an answerphone message but received no call back. One entry describes the first date and reason for absence as “2/7/12—Undisclosed reason for sick absence. From the sick note the reason for absence is work related PTSD”. SO Gartside was totally unable to explain the use of the word “Undisclosed”. The claimant had worked for nine months since the murder and SO Gartside would have known little or nothing about the counselling he had received or how much the claimant had struggled to remain at work. From his point of view, he had given the claimant a telling off and then been handed a 2 month sick note. It is unsurprising he would be suspicious of such absence being genuine. He made 3 calls to the claimant in 3 days and a referral to the Occupational Health (OH) provider ATOS on 3 July. On 7 July, Dr Toft’s report was forwarded to OH. 2.20. On 13 July 2012 the claimant received a letter from SO Gartside “reminding” him of his obligations to maintain contact. SO Gartside does not recall the terms of this letter, but took HR advice before writing it. We accept the claimant read it as a written warning. SO Gartside tried calling, again unsuccessfully, on 23 July 2012 and Ieft a message they should arrange a meeting. The log refers him saying a second letter would be sent “ reminding him of his responsibilities to maintain contact whilst on sickness absence”. SO Gartside does not recall sending a second letter. The claimant says he was too ill to keep in touch with anyone, but he did not expressly tell anyone so, at that time. The respondent later relied upon this as part of their reason for withholding 50% of his compensation when they dismissed him. 2.21. On 23 July 2012 at about 9:45 am the claimant received a phone call from Christine Hitch of OH at HMP Frankland, which he missed. She left no message on the answer machine. He found out later that day from CM (Custodial Manager, or Principal Officer as they were known before July 2012) Colin Harris, that Ms Hitch had rung to say he had an ATOS appointment that morning at 10:00am. We now see from the contact log Ms Hitch was under the mistaken impression it was a telephone appointment, which makes sense because the claimant could not possibly have travelled to the prison from his home in 15 minutes. He had no prior notification of this appointment. At approximately 10:20 am he received an answer phone message from Ms Claire Stone, ATOS OH Advisor, who was at Frankland enquiring where he was. This missed appointment was the respondent’s mistake. 2.22. The claimant telephoned CM Colin Harris and explained he was having extreme difficulty communicating with anyone, let alone work, and requested he be allowed to maintain contact with a manager with whom he felt comfortable, or Linda Butler. CM Harris refused saying, according to his note, Ms Butler was “only the disability rep”, it was not in his opinion “in her remit” so the claimant would have to keep in contact with SO Gartside. Again, it is not clear to whom and when the claimant explained why the normal requirements to keep in regular contact with his line manager were causing him a particular problem. 2.23. SO Gartside made an unsuccessful attempt on 31 July to speak to the claimant by telephone and, on 1 August 2012, was informed SO Nutton would take over as the claimant’s line manager. SO Gartside’s determination to contact the claimant is explained by him as offering “support” to the claimant in line with policy and HR advice. We asked if an officer’s sick note said he had an accident or a stroke, whether he would contact such a person so soon and persist so frequently until he got an answer. He said he would unless they were in hospital. The prison service is a “ranked” profession and if a Governor, more senior Officer, HR, or written policy tell an SO to do something, he will. SO Gartside says he was not told why he was removed as the claimant’s line manager and was not curious to find out. The claimant accepts, as do we, some employees claim to have ailments which they do not, and some doctors write diagnoses on sick certificates which are only the claimant’ view. PTSD is triggered by a traumatic event which in this case is clear. The claimant himself says initially he was “in denial” of having PTSD and later used a telling phrase when he called his admission of his illness as “coming out”. In our judgment several people involved believed a prison officer in a maximum security prison should not be so vulnerable as to become disabled by “genuine” mental illness and/or is lying if he claims to be. This scepticism continued even after medical evidence to the contrary became known. 2.24. SO Nutton has been promoted to CM of a Unit at HMP Frankland. He started as a Prison Officer in 1990 and held this position at three different prisons. He was an SO from 2006 until 2012. He says he was asked to manage the claimant’s sick absence by the Deputy Governor after the working relationship between the claimant and SO Gartside “had broken down” but he does not know why it had. He did not ask, because if a Governor tells him to do something, he does. On 2 August, SO Nutton telephoned the claimant to introduce himself but the claimant did not pick up so he left a message. His contact log shows they spoke on 8 August in the afternoon for 50 minutes but the note of what was said is scant. The claimant said he had an ATOS assessment phone call on 13 August at 09:30 and they agreed to have a face to face meeting later that day. 2.25. On 2 August 2012 Linda Butler met with Wing Governor Darren Finley to discuss the claimant’s disability and offer advise on reasonable adjustments the respondent could make to assist him back to work. Governor Finley could not understand why Ms Butler was involved, stated it was not confirmed the claimant had PTSD and he did not believe he would be classed as disabled. Ms Butler confirmed he had been diagnosed. SO Nutton’s statement says where an employee is absent for “psychological reasons”, or for more than 20 days, there is a requirement for a referral to OH. SO Gartside had made a referral to ATOS in July. 2.26. SO Nutton’s statement says he followed the Absence Management Policy (PSO 8404) which requires managers to maintain contact with officers on sick, disabled or not, and log actual and attempted contacts. He asserts the contact log (270-326) shows significant problems contacting the claimant experienced by SO Gartside and himself, which it does, but, as the claimant said, everything put in the log did not necessarily happen. 2.27. On 13 August the claimant had a telephone assessment by an ATOS OH Nurse Claire Stone whose report (110 – 111) said he had PTSD, was not currently fit for work and unlikely to be for a further 8 weeks until his symptoms significantly improved. He was reporting low mood and disturbed concentration. She recommended a review in 6 weeks and said he was likely to be disabled. The 6 week review never took place. That day the claimant and SO Nutton had a face to face meeting. Also present was another SO, Ms Butler and the claimant’s wife Paula. SO Nutton said the prison service would only acknowledge a diagnosis of PTSD when they saw it clearly written in “black and white ”. Twice in his log, SO Nutton uses the phrase “alleged PTSD”. The meeting lasted I hour 25 minutes, is recorded in about the same number of words as this paragraph and makes no mention of what Ms Butler said. 2.28. On 28 August 2012, the Governor of the prison told SO Nutton to ask the claimant to complete forms for a further OH referral and consent to a report for the purpose of Ill Health Retirement (IHR). SO Nutton’s statement says I first spoke to the Claimant about this on 10 September 2012 and the Claimant explained he did not wish to consider this and he intended to return to work. I advised him I would speak to the Governor again in light of his comments. 2.29. On 30 August the claimant was assessed by Laura Eltringham Psychological Therapist, Dr’s Lomas and Paralapalli. The two doctors made a joint report dated 3 September 2012 (112-113) confirming the diagnosis of PTSD and saying he should have Cognitive Behavioural Therapy (CBT) and Eye Movement Desensitisation and Reprocessing (EMDR). There were two possible routes forward(a) to try to cure, or at least improve, the claimant’s mental health to enable him to return to work or(b) accept he never would and should be given IHR. 2.30. When the Governor told SO Nutton to get “IHR1” forms completed, which initiate IHR, the claimant had only been absent for 8 weeks. On 21 September 2012 the claimant rang SO Nutton requesting another face to face meeting. 2.31. On 17 October 2012 they met. SO Nutton handed to the claimant an IHR application form. The claimant asked why he had to complete this as he did not want to retire. SO Nutton stated he did not know. The report from Drs Lomas and Paralapalli was handed to SO Nutton. This was the last time the claimant saw SO Nutton despite the Keeping in Touch policy stating a Line Manager should meet face to face at least every 20 days with officers on long term sick. 2.32. SO Nutton denies compelling the claimant to complete the application for IHR when he said he did not want to be medically retired. He says genuine efforts were made to support the claimant to return to work including on 17 October 2012 he was specifically asked about returning to work and replied he did not wish to return to Frankland. SO Nutton claims he proposed a return to two other establishments, but the claimant declined. We find the claimant did not decline any offer, as none was made, only mention of a possibility of work elsewhere. 2.33. SO Nutton’s statement says IHR must be considered where a member of staff is on longterm sickness absence, or has a serious underlying health issue, and may have their employment terminated for being unable to render regular and effective service. This entails a referral to CAPITA to give a medical opinion whether the criteria for IHR are met. Our Employment Judge asked him whether he believed the claimant wanted to return to work. He said he did not. His view was the claimant was making use of the traumatic incidents in October 2011 as a means of exiting the prison service with the best financial package. That would be IHR. He was unable then to reconcile that view with his assertions the claimant failed to co-operate with the IHR process. SO Nutton’s statement says I first issued the IHR form for the Claimant to complete on 17 October 2012 I talked to him about this form at the time. I explained that as a capability hearing is likely to take place, a compulsory application for IHR is made to Capita to ask for advice on this before a capability hearing is held. There was delay managing the Claimant’s ill health as he changed his mind several times about consenting to disclose his medical records to the OH provider and to Capita. He also failed to attend and cancel OH appointments. The delays also arose because the Claimant claimed that he did not receive the relevant consent forms on three occasions between December 2012 and January 2013. The Claimant initially declined to be considered for IHR, which if granted, would entitle him to 75% of his salary until retirement at 65 years of age. By letter dated 27 November 2012, I wrote to the Claimant regarding his initial indication that he did not wish to be considered for IHR. I explained that I respected his choice on the matter, but wished to make clear the implications of this decision. I did not compel him to complete the IHR application, but wanted to ensure that he was making a fully informed decision. I explained that if he did not consent, he could not be considered for IHR. I stated that if he wished to reconsider his decision on this, he could contact me. I took advice from HR before writing this letter to the Claimant who advised my letter was appropriate. 2.34. We accept SO Nutton did not force the claimant to apply for IHR but he painted a bleak picture of what might happen if he did not. The claimant believes Ms Liddell and at least one Governor wanted him out of the prison because his continued employment may mean having to make adjustments, and absences would be likely to recur. IHR was the easier option for them. For him, it would involve mental acceptance he was never going to be able to return to work. Like physical illnesses, some mental illness can be cured, or at least controlled, while others cannot. In most cases, time alone will tell. We accept the claimant’s view as genuine, reasonable and consistent with the documentary evidence. On 23 October 2012 Ms Liddell emailed SO Nutton saying the claimant’s was “not an easy case to manage” and he would be eligible for Sick Leave Excusal (SLE) available if absence is due to injury on duty. She advised the IHR paperwork needed to be completed and, as the claimant was worried confidential medical information may “leak” from HR to colleagues, as Frankland, like all prisons is a hotbed of gossip, asked SO Nutton to assure him HR would not see medical records, only ATOS and CAPITA would. 2.35. On 6 November 2012 the claimant received written notification his pay would reduce to half as of 31 December 2012. He queried this with SO Nutton as an SLE application had been submitted on 2 November. It was his union representative, CM David Redford, who is at Durham prison, who explained about SLE and printed off the form for him, not SO Nutton Manager or anyone else at Frankland. We do not accept SO Nutton’s evidence he “supported” the claimant by assisting him with his SLE application. However, without his help, SLE was granted in November 2012 and gave him a further 6 months full sick pay. 2.36. On 16 November 2012 the claimant received notification ATOS, acting as OH advisors to presumably the DWP, said the incidents in October 2011 were industrial accidents, had caused impaired psychological function and qualified him for Industrial Injuries Disablement Benefit. On 22 November 2012 he received notification from Rachel Atkins (Shared Services) SLE had been approved from 2 July 2012 and was open ended. 2.37. On 27 November 2012 SO Nutton advised the claimant to tick the box on the OH consent form that he wanted to be considered for IHR on the basis that in cases where a Capability Hearing is likely to be held a compulsory application for IHR is made. The claimant therefore, on 29 November 2012, completed the forms saying he was doing so on their advice as his aim was to return to work (130). He was “hedging his bets”. This was wise, and advised by CM Redford, but he was still not abandoning hope of recovery sufficient to enable him to work somewhere in the prison service. 2.38. On 3 December 2012 a Medical Report was prepared by Dr Lomas (130A) and a copy sent to SO Nutton on 7 December 2012. It did not abandon hope of recovery with treatment. The claimant was due an ATOS appointment for 18 December 2012, which was cancelled. 2.39. On 11 January 2013 the claimant had a telephone call with SO Nutton who said the Prison was refusing to accept his sick note. The claimant was anxious for the ATOS appointment to go ahead and on 18 January 2013 wrote to the respondent asking why the 18 December appointment was cancelled, what needed to be done so it could go ahead, clarification of the forms to be completed for IHR, confirmation his sick note was rejected and the reasons for this. He said he was more than happy to co-operate fully as it was in his own interest to do so. The reason he had not received certain documents from the respondent was that they had not put sufficient postage on them (131-132). 2.40. SO Nutton replied on 21 January 2013 the appointment was cancelled due to the claimant not allowing CAPITA to access his medical file (133) and his GP needed to stamp the sick note (no earlier ones had been) so he had to resubmit it, but it was never returned to allow him to get it stamped. The claimant replied (134) on 29 January 2013 saying he had no issue with CAPITA or ATOS considering his records, his issue was with accepting retirement . He explained he was having difficulty completing the form and asked for patience. 2.41. The claimant received a memo from the respondent dated 20 February 2013 saying it had been decided to progress an IHR referral for him and management were considering convening a capability hearing at the end of the process (135-136). This distressed him so much his doctors refused to continue the EMDR treatment because he must be in the right mind set and needed no distractions to concentrate fully on EMDR. He was still hoping to get back to work by organising reasonable adjustments through Mr Redford and Ms Butler. 2.42. SO Nutton’s statement says “I later explained the process of managing his absence in more detail by letter dated 20 February 2013 and I stated in this letter that he could waive his right to be considered for IHR and said he should only complete the Capita consent form if he wished to consent to be considered for IHR.” Mr Tinnion’s excellent closing submissions say on this part of the claim the respondent applied no improper pressure on the claimant to complete the IHR forms in 2012 or the first half of 2013. He quotes passages from SO Nutton’s letter, written by HR, which say applying for IHR, or not, is a serious decision, but one for the claimant to make. It reads well, but we agree with the claimant he was being given a choice between IHR and a capability process virtually certain to end in dismissal. 2.43. SO Nutton says he offered in February to explore roles in other establishments in the area but the claimant declined. In March 2013, SO Nutton notified him of a role at another prison and the claimant said he had approached HMP Durham directly for alternative roles. He queried further training for himself. SO Nutton looked into this but the training requested could not be provided for reasons he explained by email. On 1 March 2013 the claimant received a memo and application for a Band 3 role at HMP Kirklevington Grange. Every officer in the prison service received this. We accept the claimant’s version no practical proactive steps were being taken by anyone at HMP Frankland to identify work elsewhere which would be suitable for his particular problems. We see here an attempt by the respondent make it appear the claimant was making a free choice to aim for IHR, but long before he was prepared to give up hope of recovery, and before any medical advisors were, the Governors, his line managers and HR had written him off because that was the easiest option for them. If he had returned to work anywhere, they thought a likelihood of future absence existed . 2.44. On 10 March the claimant wrote to SO Nutton asking what action was required to remedy Shared Services not accepting his sick note (140). He said he did not want to be accused of not fulfilling any responsibilities. HR must have seen this. 2.45. The respondent made an OH referral again on 28 February 2013. On 9 April 2013 OH reported (141-141) he had PTSD was unfit for work and would not be ready until after EMDR treatment. HR would see this too. 2.46. Mr. Tinnion put to the claimant he was being deliberately awkward and “ hard to manage”. That, out of context, is how it appears, but put in context it is symptomatic of the deep distrust which had grown between the claimant and what he called “Frankland”. Our Employment Judge asked who he meant, and his reply was Ms Liddell as the Head of HR. Mr Tinnion submitted the claimant at times was his “own worst enemy” and gave as one example asking for letters to be written explaining why a sealed sicknote was necessary. We reject that. The fact he was difficult for SO Nutton, and SO Gartside before him, to manage, is a reflection of their lack of training and understanding of mental health and their scepticism of the claimant being genuine despite all the medical evidence. It is precisely why someone in HR should have taken a grip on the situation, but no-one did. Ms Butler’s attempts to help were rejected. Importantly, SO Nutton too thought Ms Butler advised on adjustments for physical disabilities only. Ms Pickering said this was wrong, her role covered mental health disabilities too. 2.47. The claimant was then only 52 years old. Having his employer consign him to retirement, even with a good financial package, would violate the dignity of any person who had worked all his life and create a hostile environment for him. Mr Tinnion also submitted the claimant was for a long time in denial about the state of his own health and the likelihood of his making a return to work as he admitted in answer to the Employment Judge’s questions, and this must have coloured/tainted his reaction to the respondent’s otherwise reasonable conduct. This speaks volumes. The claimant was not ready to accept what turned out to be true, that he would never recover to the extent needed to return to work in a prison. This is not him being “awkward” or “hard to manage”. Examples exist of people who have committed suicide in circumstances where they lose self esteem and that is what was happening to the claimant. 2.48. On the time point Mr Tinnion says “by the last quarter of 2013” the claimant’s attitude towards applying for IHR had changed (following advice), and he continued with an IHR application of his own free will, so the respondent’s conduct was no longer “unwanted”. We will deal with that in our conclusions. 2.49. On 6 May 2013 the claimant received written notification he would be going onto half pay from 1 July 2013. He contacted SO Nutton who told him not to worry as he had SLE. From pages 307 to 320 are recorded communciations including SO Nutton and Shared Services (Emma Canning) who said there had been a misunderstanding, he would remain on full pay and a letter of apology and explanation would be sent to him. He never received one. There are calls from SO Nutton saying he had received an email from a Ms Lillian Stone regarding SLE that ‘policy was policy’. The claimant wrote to Ms Stone regarding the situation and enquired about disability leave. The problems over SLE halted his EMDR treatment for a second time because this news had such a destabilising effect on him his doctors cancelled treatment until he resolved this matter. On this point, we accept SO Nutton was doing his best to help. No-one of robust mental health could fail to be baffled and annoyed by the contradictions and bureaucracy these pages contain. They also contain many communications regarding his IHR application, including from him, showing he was not being difficult to contact He was placed on half pay from 1 July 2013. He was informed verbally by SO Nutton on 23 July his disability leave application had been refused, with written confirmation on 25 July. 2.50. Returning to the question of “contact”, the claimant had written to SO Nutton on 26 February 2013 saying he had called him on 13 and 15 February and SO Nutton had not called back. He said again he could be easily contacted by email. SO Nutton says he spends 80% of his day in his office but has no answer machine. When our Employment Judge asked why he did not use a reliable method , email as the claimant had requested or text, to indicate to the claimant he needed to speak to him, his response was Governors and HR advised personal phone contact was the method to use. Ms Pickering later confirmed this. Mr Brien asked if he had any discretion to which he said no, contact was to be made on the first day of absence and every few days thereafter. Our Employment Judge asked if he would do that if an officer had a stroke, and he replied he would probably contact less frequently. Ms Pickering later confirmed this too. We find every absent person, disabled or not, is persistently checked upon. The respondent says this is out of concern for them. Whether that is so or not, a person with a broken leg, which will heal in its own time, would still be telephoned weekly. 2.51. SO Nutton’s statement says he wrote on 17 July 2013 an informal short and polite reminder the claimant was required to be contactable whilst absent. This was done on advice from HR. SO Nutton says it was not a warning letter. The tone of it is fair. We accept the claimant in fact had difficulties contacting SO Nutton as he was busy. SO Nutton asked for an alternative contact number or email address (149) despite previously having his home and mobile telephone numbers and his email address. The claimant responded in writing stating he felt he was being unfairly singled out for unfavourable treatment as a result of his disability (150). He confirmed he took his responsibilities seriously and wanted to return to work, had contacted him on 9 occasions in 2 days without response. He said, due to being on half pay, to save money he had given notice to terminate his telephone and broadband contracts. 2.52. In his closing submissions on this part of the complaint, Mr Tinnion says nothing in the 17 July 2013 letter “reminding” the claimant of the “requirement to be contactable when on sick” is inappropriate , it is a standard letter about the respondent’s policy written in polite, professional, respectful terms. It is unreasonable for the claimant to perceive it as violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. He says the same of the 2012 letter sent by SO Gartside. It is the timing of that which is unreasonable as the claimant had only been off work 10 days. Mr Tinnion also submitted in 2013, the claimant’s physical and mental health was sufficiently robust that he could (i) engage in what would for most people be the hugely stressful exercise of building/project-managing a new home build in Otterburn (ii) go on holiday with his friends in Scotland. He said If C was fit and well enough to oversee the build of a new house in Otterburn, C was fit and well enough to be sent a letter like this “. 2.53. Again, these examples speak volumes. We have heard several cases where physical activity is recommended as a therapy to distract those suffering from mental ill health from over introspection. In the eyes of his managers, the claimant’s mental ill health was an excuse for not coming to work as SO Nutton admitted he thought. In context, the criticism implied by these letters certainly caused the claimant to feel harassed and we can see why. 2.54. SO Nutton’s statement says “the Claimant did not engage meaningfully and in a timely manner with myself during the period of his absence. He showed a lack of cooperation with the process of obtaining occupational health advice, and referral to Capita for consideration of medical retirement. He showed a reluctance to comply with the OH process, this was evident in his repeated indications to agreement and then withdrawal of consent to the OHP / HR process. All of these factors prevented me from being able to seek timely OH advice and work with Mr Johnson to monitor his progress and recovery and facilitate an early return to work. We do not accept this. It is obvious to us, his caution and suspicion about what he was being asked to do was a consequence of him not being able to cope with the technicalities of policies being applied and the contradictory information being given, all of which understandably led to his loss of trust in the respondent as an organisation . 2.55. The valid point Mr Tinnion makes is that the letter of 17 July 2013 does not “relate to” disability –it relates to perceived failure to reply to missed calls. When we come to SO Nutton’s calls, the claimant’s case is not that he missed those calls because of his disability but that he or his wife tried to reply to each and every missed call. 2.56. On 5 August 2013 the claimant was informed he did not qualify for IHR (153-157). The reason given by CAPITA is plain. On the available medical evidence, treatment had started, may succeed, so it was premature to say he would be permanently incapable of work. The claimant did appeal this decision and IHR was granted after he had been dismissed (255-256 and 267-268) based on fuller medical evidence and the passage of time without recovery. 2.57. SO Nutton says he had a discussion with the claimant on 28 August 2013, exactly one year after the Governor had told him to get the claimant to apply for IHR during which the respondent had given him no practical help but left him to struggle with needless red tape at the same time as serious mental illness. The claimant asked for his wife to accompany him to the capability hearing. SO Nutton checked with HR and was told to tell the claimant he could be accompanied his union representative or a workplace colleague. His wife could attend the venue but not be present during the hearing. He told the claimant that on 2 September 2013. He says he mentioned the date of the hearing to the claimant, who accepted when cross examined he may have, but it did not “register”. 2.58. On 2 September 2013 he received the letter to attend a Capability Hearing to be chaired by Governor Fox on 1 October 2013 (162-163). He was traumatised as that was the same date as the murder two years earlier. He says the respondent knew the effects of his condition as they had medical reports confirming he was suffering flashbacks to the incident but arranged a meeting to determine dismissal on the exact same date. When he received the letter he wondered if it was some kind of sick joke. He wrote requesting an alternative date. We accept the date was arranged through HR which schedules meeting based on availability of the necessary parties. Governor Fox wrote to the claimant describing the date choice as an “administrative oversight” (166) apologised for any upset caused saying it was not intentional, and rearranged the hearing for 4 October 2013 . 2.59. The claimant informed the respondent on 18 September 2013 medical advice he had received was he should not attend a Capability Hearing (169). A report of Professor Stephen Martin, a Consultant Psychiatrist (169A – 169D) states the claimant was very mentally ill, had a less than 20% chance of getting better and was not fit to attend. Ms Liddell wrote on 25 September saying she was “disappointed” he could not attend and asking for a letter from his consultant confirming this (170), which the claimant reasonably read as her not believing him . The claimant on 29 September sent Professor Martin’s report redacted save for the last sentence which gave that confirmation. Mr Tinnion suggested he had deliberately excluded damaging entries. Our view is he was exercising his right to respect for private life as he is entitled to do under the Human Rights Act. Be that as it may, no-one at the respondent saw the full version until much later. The hearing was fixed for 18 October. 2.60. SO Nutton’s statement says Efforts were made by Governor Fox to encourage the Claimant to attend the capability hearing at a neutral venue, and if he could not, to consider attending by telephone, providing written submissions and/or having his union representative attend on his behalf [172]. I telephoned the Claimant on 17 October 2013 to confirm whether he would be attending the meeting. However, I was unable to speak to the Claimant and only spoke to his wife. I was advised the Claimant would not be attending but would be represented by his union representative and disability advisor. The Claimant’s wife made no complaint he was being pressured to attend the meeting the following day, and simply advised he was not attending. 2.61. The claimant considers the call on 17 October 2013 was offensive, insensitive and an act of harassment. He says “they” already knew he had representatives attending and had been informed of Professor Martin’s advice. SO Nutton’s unchallenged oral evidence was that on 17 October 2013 he did not know. We agree Mr Tinnion’s note Q: By the time you spoke to C’s wife on 17 October, were you not aware of the medical advice that C could not attend? A: Correct. I did know the Capability hearing was on 18 October. I was aware of the significance of that hearing. No-one from HR had informed me of the Claimant’s medical refusal. We accept SO Nutton did not know and was checking to ensure there was no change of plan. 2.62. The claimant did not attend on 18 October 2013 and provided a medical note to support his non-attendance. CM Redford, his union representative, represented him and Linda Butler was present too. The hearing lasted a mere 20 minutes (189-190) and the decision, based on a report by an HR case manager, Ms Julie Bennett, of whom we have heard nothing, was to dismiss on the grounds of medical inefficiency. There was a discretion to pay compensation in accordance with section 11.4 of the Civil Service Management Code. The claimant was informed he would receive 50%, as he had failed to engage in a meaningful , timely manner with his managers during his absence and not co-operated with the process by disclosing medical advisers recommendations. The OH report of 9 April 2013 confirms he had provided his clinical psychologist report. The CAPITA report of 5 August 2013 refers to medical evidence he had provided. He sent medical evidence to his managers on 17 October 2012, 7 December 2012, and 18 September 2013. The issue of compensation on termination was not discussed with his representatives but the HR report shows it was to be considered(the HR officer recommended a reduction of up to 25%) and at the end of the meeting Mr Redford asked if the point would be decided . The claimant says reducing compensation by 50% was harassment. He received written confirmation dated 30 October on 4 November 2013. 2.63. He appealed the decision on 6 November 2013 and was invited to the appeal meeting by letter from an HR Case Manager based in Manchester. The meeting was proposed for 3 December 2012. The date, time and venue were set by the HR Case Manager in liaison with the Personal Assistant to the Director of High Security Estate, Mr Richard Vince, who was to hear the appeal in Wakefield. Mr Vince bases himself in London or Wakefield. The respondent refused to allow the claimant’s wife to attend the hearing though they knew he was relying on her as his carer. He says that too was an act of harassment as was requiring him to travel to Wakefield when they knew travelling was difficult for him . 2.64. Donna Pickering, employed as a HR Case Manager by the Ministry of Justice for 10 years, gives HR advice to managers of all levels. She had no direct involvement with the claimant’s case but explains the arrangements for his appeal, as dictated by policy. Ms Liddell is still with the prison service and has been promoted, but the respondent did not call her or any CM or Governor. Ms Pickering’s statement says: It was and is not policy to pressure employees to attend formal meetings. ... Reasonable attempts are always made to hold meetings with employees. If these fail, meetings may take place in their absence, but employees are invited to provide written representations or to send a representative. The Claimant clearly understood this from the first stage capability meeting for which he just sent his representative. As to the complaint that the Claimant was told his wife could not attend the appeal meeting with him, he was told that she could attend with him, but not in the meeting, as he also had a union representative. This is in accordance with the statutory right to be accompanied and with policy.... This is an unusual arrangement and one put in place as a reasonable adjustment. As any HR officer would know, “reasonable adjustments” are made for disabled people, and the respondent did not concede the claimant was disabled until 23 August 2019. 2.65. The Appeal was heard on 23 December 2013. At the start Mr Vince kept calling the claimant Stephen. When asked why, he said that was the name on the paperwork. The claimant says the fact the respondent could not even get his name right demonstrates insensitivity and lack of interest in him. He raised the 50% reduction in compensation. Mr Vince threw the letter saying he would only get 50% into the bin and said he would be getting 100% compensation. The claimant did not even have to make any argument which suggests the previous decision was manifestly unfair and unreasonable. The claimant’s statement says the “most ridiculous thing about this however is that because I was then ill health retired, I never received the compensation at all. The statements made to reduce the award to 50% therefore never had to be made …” 3. Relevant Law 3.1. Section 40 makes harassment unlawful and s 26 includes (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect. The relevant protected characteristics include disability. 3.2. Mr Brien stated this case is brought on the basis of ‘effect’ not “purpose”. Harassment can arise regardless of intent and regardless of whether or not the alleged harasser knows the victim has a particular protected characteristic. Noble v Sidhil Ltd EAT 0375/14 held even where an employer had no reason to know an employee was depressed, it could still be liable for harassment by comments he was ‘weird’, ‘a fucking idiot’ and ‘not well in the head’. 3.3. In deciding whether conduct has the effect referred to in S.26(1)(b) each of the claimant’s perception; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect must be taken into account. The test has both subjective and objective elements. The subjective part involves looking at the effect the conduct had on the claimant. The objective part requires the tribunal to ask itself whether it was reasonable for the conduct to have had that effect on him. 3.4. The EAT in Richmond Pharmacology v Dhaliwal 2009 ICR 724 gave guidance as to how the ‘effect’ test should be applied. In Pemberton v Inwood 2018 ICR 1291, Lord Justice Underhill, who sat as the President of the EAT in Dhaliwal, revised his guidance thus: ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’ 3.5. The EAT adopted this in Ahmed v Cardinal Hume Academies EAT 0196/18, The ‘other circumstances’ part will usually shed light both on the claimant’s perception and on whether it was reasonable for the conduct to have the effect. The EHRC Employment Code notes relevant circumstances can include those of the claimant, such as his mental health. It can also include the environment in which the conduct takes place (see para 7.18). 3.6. In Dhaliwal Underhill P said in assessing effect, ‘One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt’ . In HM Land Registry -v-Grant 2011 ICR 1390, Lord Justice Elias said ‘When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.’ In determining whether a remark violated a worker’s dignity, it is relevant to consider the purpose of making it in context, Heafield v Times Newspapers Ltd EAT/1305/12 . These cases do not mean the harmful consequences of incompetent or insensitive conduct cannot be harassment, simply because no harm was meant. 3.7. In Chawla v Hewlett Packard Ltd 2015 IRLR 356, the claimant was signed off work with stress. In accordance with its normal practice on long-term sickness absence, the respondent shut down his access to e-mail and internet and informed colleagues to stop communicating with him during working hours. In the Employment Tribunal (ET)’s view, these actions were taken for justifiable security reasons so it dismissed the harassment claim. On appeal, the claimant argued the respondent’s motive was irrelevant, given his claim was based on the effect of the conduct, not its purpose. The EAT held the context of the conduct and whether it was intended to produce the proscribed consequences were material, but not decisive, to the decision as to whether it was reasonable for the conduct to have the effect relied upon. 3.8. Harassment may result from separate incidents. The EAT in Reed v Stedman 1999 IRLR 299, counselled against carving up a case into a series of specific incidents and then trying to measure the harm or detriment in relation to each. Instead, it endorsed a cumulative approach quoting from a USA Federal Appeal Court decision: ‘The trier of fact must keep in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes’ (USA v Gail Knapp (1992) 955 Federal Reporter). This was approved by the EAT in Driskel v Peninsula Business Services Ltd and, although both cases were decided before the EqA, there is no reason why the same approach should not apply. However, this does not give us licence to go outside the scope of the pleaded case. 3.9. The subjective part is a factual inquiry. Tribunals should bear in mind different people have different tolerance levels. Conduct that might be shrugged off by one person might be found much more offensive or intimidating by another. The objective test is intended to exclude liability where the claimant is hypersensitive and unreasonably takes offence. As said EAT in Dhaliwal , ‘While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase..'' Underhill P also said ‘Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question.’ 3.10. If we find it was not reasonable for conduct to have the proscribed effect, the claim will fail,Ahmed v Cardinal Hume Academies EAT/0196/18. However, we must consider whether it was reasonable for the conduct to have the effect on that particular claimant. The EAT in Reed v Stedman said ‘it is for each individual to determine what they find unwelcome or offensive, there may be cases where there is a gap between what the tribunal would regard as acceptable and what the individual in question was prepared to tolerate. It does not follow that because the tribunal would not have regarded the acts complained of as unacceptable, the complaint must be dismissed.’ In an ET case, not binding on us, Southern v Britannia Hotels Ltd Case No.1800507/14 where a claimant a young waitress in a fragile mental state suffered more extremely due to being particularly vulnerable, it resulted in a higher compensatory award for injury to feelings following sexual harassment. There is no doubt the so called “eggshell skull rule” applies at the remedy point. The more difficult point is what effect it has on liability. In another ET case Punch v Maldon Carers Centre 3202677/06. the claimant’s manager told her her crutch was a trip hazard. The ET noted this would not generally be reasonably considered as creating a hostile environment as employers need to consider the health and safety of the workforce and the crutch could have been a trip hazard. However, in that case it was reasonable for it to have the effect, given the manager’s generally unsympathetic attitude towards the claimant and her failure to consider her needs as a disabled person. It caused her to feel bringing a crutch into the office was an issue with the manager so the tribunal found unlawful disability harassment. 3.11. In those cases, there was no problem seeing how the conduct “related to“ the protected characteristic. In this case it is argued it did not, especially as to the “contact requirements”. Mr Tinnion in written submissions of law, which Mr Brien said he agreed, put the point thus: In order to be unlawful, the conduct must be related to a protected characteristic. It is not sufficient for the ET to conclude merely that unwanted conduct had been “in the circumstances” of the employee’s disability – this is not necessarily the same as “related to”. Private Medicine Intermediaries Ltd. v Hodkinson EAT/013/15 para. 36. 3.12. A feature of this case is the relationship between s26 and other forms of discrimination none of which are before us. We explore them briefly. Unlawful conduct under the EqA requires an act and a type of discrimination. The acts in s 39 include subjecting an employee to detriment which means doing or not doing anything which he might reasonably consider changes his position for the worse or puts him at a disadvantage. Section 212(1) includes “detriment” does not, subject to subsection (5), include conduct which amounts to harassment. So, if detriment caused by conduct falling within s. 13, 15, 19, 20 or 27 has an effect proscribed by s.26, it is s. 40 which is infringed, not s.39. 3.13. There are four types of discrimination related to disability. The first two are s13 direct discrimination which means treating an employee less favourably than the employer treats or would treat others because of a particular disability and s15 treating him unfavourably because of something arising in consequence of his disability . The second two are s19 indirect discrimination and s20/21 failure to make reasonable adjustment both of which involve the application of a provision criterion or practice (PCP) which places a claimant and other disabled people at a disadvantage. Disability discrimination law has changed since it was enacted by the Disability Discrimination Act 1995 (DDA) but still discrimination occurs when one treats people whose circumstances, apart from the protected characteristic , are the same, differently OR when one treats people the same when their circumstances, due to the protected characteristic are different. In addition, s27 prohibits victimisation which means subjecting an employee to a detriment because he does a protected act, or the employer believes he has done, or may do, a protected act. A protected act includes bringing proceedings under the EqA and making an allegation (whether or not express) that the employer or another person has contravened it. Some of these were pleaded, but have been dismissed on withdrawal. 3.14. In victimisation, s 13 and s15, we look for the “reason why” treatment was afforded. Not even in direct discrimination is malicious motive a requirement. Benign motive does not save a respondent from liability where causation between the “protected characteristic” and the subjection to detriment is established Amnesty International-v-Ahmed. Unreasonableness of treatment does not show why acts were done, neither does incompetence (Glasgow City Council –v- Zafar and Quereshi-v- London Borough of Newham). Sir Patrick Elias said in the EAT in Law Society –v- Bahl 94 The reason for this principle is easy to understand. Employers often act unreasonably, as the volume of unfair dismissal cases demonstrates. Indeed, it is the human condition that we all at times act foolishly, inconsiderately, unsympathetically and selfishly and in other ways which we regret with hindsight. It is however a wholly unacceptable leap to conclude whenever the victim of such conduct is black or a woman then it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. . 101. .Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself..” 3.15. Sections 19 and s20/21 require a Tribunal to decide what PCP’s existed, which were applied to the claimant and whether doing so placed him at a disadvantage. It matters not why the respondent applied them to him or what factors caused the disadvantage ( see Essop-v Home Office and Naeem-v- Secretary of State for Justice). 3.16. Before harassment was a separate statutory tort, if a person engaged in conduct towards another related to a protected characteristic but not because of it, there was no direct discrimination Porcelli-v-Strathclyde Council. Under previous legislation many forms of harassment still required a causal link. In Bakkali-v- Greater Manchester Buses Slade J said 31. In my judgment the change in the wording of the statutory prohibition of harassment from “unwanted conduct on grounds of race …” in the Race Relations Act 1976 section 3A to “unwanted conduct related to a relevant protected characteristic” affects the test to be applied. Paragraph 7.9 of the Code of Practice on the Equality Act 2010 encapsulates the change. Conduct can be “related to” a relevant characteristic even if it is not “because of” that characteristic. It is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant. (We respectfully disagree as we have seen many examples of unwanted conduct, possibly done because of something relating to a protected characteristic, but in which the conduct itself did not. However, if it is both, we can only find harassment proved). Slade J added, “related to” such a characteristic includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader enquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour. 3.17. We have no difficulty accepting that conduct such as described by Elias J in Bahl, which is incompetent or insensitive can cause harassment, but if it does so to disabled and nondisabled people alike it would not infringe s 19 or s20. That acts cause a claimant detriment does not mean they result from the application of a PCP. In Ishola v Transport for London, the Court of Appeal upheld this saying an ET was entitled to conclude requiring an employee to return to work without a proper and fair investigation of his grievances was not a PCP, as it was a 'one-off act in the course of dealings with one individual'. HH Judge Shanks said in Carphone Warehouse Ltd v Martin EAT/0371/12:…What the Employment Tribunal found, in effect, was the lack of competence or understanding by The Carphone Warehouse in preparing the Claimant's wage slip for July 2010 was capable of being a “practice” within the terms of s 4A and that the reasonable step they should have taken was the step of not delaying payment of the correct amount of pay. Mr Hutchin says, in effect, that this approach is misconceived. We are afraid we agree with him in this contention, for two related reasons. First, a lack of competence in relation to a particular transaction cannot, as a matter of proper construction, in our view amount to a “practice” applied by an employer any more than it could amount to a “provision” or “criterion” applied by an employer. Onu v Akwiwu and Taiwo v Olaigbe 2014 ICR 571, are examples of mistreatment of workers which did not contravene the EqA and we must always be resist the temptation to think all bad treatment must be unlawful. 3.18. Requiring regular contact is a PCP and would be justified in itself. Its application to the claimant would only be a breach of s20 if the respondent knew or ought to have known it was significantly harder for the claimant to comply because of his disability, see Schedule 8. We doubt Parliament ever intended harassment, primarily invented to remedy the gap in protection identified in Porcelli , should be seen as a further means of pursuing other claims for which the EqA expressly catered. This is particularly important in this case because such claims were brought and have been dismissed on withdrawal. 3.19. Section 109 includes (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. (3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval. 3.20. Section 136 includes (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. This reversal of the burden of proof was first explained in Igen-v- Wong (as elaborated upon in Madarassy –v- Nomura International. Royal Mail-v-Efobi confirms the claimant must prove the primary facts he alleges are more likely than not to be true otherwise the point of reversal is not reached, but, once he has, the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities the treatment was not of a prohibited kind. If it fails to establish that, the Tribunal must find the case proved 3.21. Section 120 EqA includes: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 3.22. The question of acts “ extending over a period” has been considered in a number of cases notably Cast-v-Croydon College 1998 IRLR 318 and Hendricks-v-Commissioner of Police for the Metropolis 2003 IRLR 96. Acts with only continuing consequences or a succession of isolated unconnected acts are not an act extending over a period. 3.23. The wording of s 120 is significantly different from its various predecessor Acts. The Tribunal may consider a claim it is just and equitable to do so. The guidelines on exercising that discretion are still best described in British Coal Corporation v Keeble [1997] IRLR 336. The length of and reasons for the delay, whether the claimant was being advised at the time and if so by whom and the extent to which the quality of the evidence is impaired by the passage of time are all relevant considerations. Fault of an advisor is not of itself fatal (see Chohan v Derby Law Centre) . Using internal proceedings is not in itself an excuse for not issuing within time , Robinson v The Post Office but is a relevant factor. 3.24. A Tribunal must consider evidence of acts beyond the claim upon which it adjudicates which points to proscribed grounds being, or not being , the cause of acts of which complaint is made, as established in Chattopadhay-v-Holloway School, Din-v-Carrington Viyella, explained by Mummery J in Qureshi v Victoria University of Manchester from which Sedley LJ quoted in Anya-v-University of Oxford. In our view we should approach the time limit issues after, not before, the merits issues.[4]Submissions and Conclusions 4.1. Mr Tinnion started his cross examination by asking the claimant why, after all these years, he maintained his harassment claim , to which the claimant replied the court case was about what the respondent did not do which it should have, whereas this case was about what they did which they should not have. That puts it fairly well. 4.2. Mr Tinnion breaks the claim down in his submissions thus: First, C was harassed by being sent “unfounded written warning letters”. Second, C was harassed by being compelled to complete an ill-health retirement assessment application (after expressing the fact he did not want medical retirement). Third, C was harassed by being pressured to attend his Capability hearing (combined with a complaint about the fact it was originally scheduled to take place on the anniversary of the 1 October 2011 incident). Fourth, C was harassed by a phone call A NUTTON made on 17 October 2013 in which he asked if C was attending the Capability hearing. Fifth, C was harassed by being pressured by the Director General of the High Security Estate to attend his own Dismissal Appeal hearing (combined with a complaint about C’s wife not being allowed to attend C’s Disciplinary Appeal hearing). 4.3. In our judgment he takes slightly too strict a view of the wording of the pleaded claim. Point 1 includes all alleged harassment about contact responsibilities including the 50% reduction of compensation, not just the letters . Point 4 includes the call came after his wife told Ms Liddell on 4 October 2013 why he would not be attending. Point 5 includes holding the appeal in Wakefield. 4.4. We agree with Mr Tinnion that(a) other than a dispute about whether the claimant returned (or tried to return) all calls made to him in 2012-2013 there are few material factual disputes and(b) Mr Brien did not put to SO’s Gartside or Nutton the contact “log” was fabricated misleading or incomplete despite the claimant so hinting in his evidence. Also Mr Brien confirmed purposive harassment is not alleged. 4.5. Mr Tinnion makes what he calls “broad submissions” one of which we now set out with our reason for firmly rejecting it First, the Prison Service is a large organisation with thousands of employees, and tens of thousands of prisoners to care for. It is inevitable that an organisation of that scale and public importance will create policies and procedures which it will then try to apply in practice - an ‘ad hoc’ approach is plainly neither workable nor desirable. This matters because many of C’s complaints about the support he was provided during his period of sickness absence appear to relate to the fact that they were ‘box ticking’ exercises and not personalised to him. To some extent, this was unavoidable. It was not unavoidable. Had the input offered by Ms Butler not been rejected as irrelevant, it would have produced a very different outcome. Had Ms Liddell, as Head of HR, responded to the claimant’s attempts to contact her and taken a grip of a situation which was not normal , the respondent , as an organisation, may not stand accused of harassment. However, we must not allow our view to obscure the legal tests 4.6. As for claim 1, SO Gartside started contact immediately, persisted and warned the claimant within 10 days of his absence starting he was not fulfilling his obligations. He would do so to anyone who was absent, disabled or not. The notes in the contact log about walking in Scotland and working in Otterburn show the SO’s thought the claimant, like probably others on sick, had to be checked on. A person with a broken leg would not get better any quicker for being contacted weekly but the SO’s will contact everyone, unless they are hospitalised, because that is what they are told by policy and HR to do. It is hard to see disproportionate adverse effect of this practice on disabled people generally so a s19 claim would probably fail. The claimant did not himself, or via his union, raise at the time why this practice was causing him particular problems so a s.20 claim would probably not overcome a Schedule 8 defence. In effect, we are now being asked to treat what was a s 20 claim as infringing s26. Doubtless it did distress the claimant and create a hostile environment for him but (a) the conduct itself does not relate to disability, but to absence and (b) objectively frequent contact is not unreasonable even though its main purpose is to ensure those on sick really are too unwell to work and(c) he did not make the claim within time. Mr Tinnion says the claim should be confined to unfounded written “warning” letters and is plainly out of time. The first letter was sent on 13 July 2012. The second letter is dated 17 July 2013 (149), which the claimant presumably read no more than a few days later. Any ‘continuing act’ here must have ended after the second letter and it would not be just and equitable to extend time. The reduction in compensation was in October but we struggle to see that as conduct which relates to disability. In short, this is the wrong claim at the wrong time, so it fails. 4.7. The same does not apply to claim 2. Working in a prison like Frankland is a demanding job for which an officer must be of sufficiently good physical and mental health not to be absent frequently or for long. It appears Governors at all levels at Frankland do whatever is necessary to run the prison well, which is laudable. The HR officers, particularly Ms Liddell, appear to aim to deliver whatever the Governors want and CM’s and SO’s obey orders and follow policy. If an officer says he cannot cope for mental health reasons, some think he must be making an excuse, whilst others think if he is genuine, he is of no use to the prison service. Either way, the claimant was pushed down the IHR option which clearly “ relates to “ disability as anyone who satisfy the eligibility criteria for IHR would , having regard to such cases as SCA Packaging –v-Boyle 2009 ICR 1056 and Banaszczyk v Booker Ltd 2016 IRLR 273 be a disabled person. 4.8. The Disability advisor, Ms Butler, was viewed as only useful to advise on aids and adaptation for physical impairments . Managers at all levels show no sign of having absorbed any training of equality, if any, they may have received. In many respects information was not shared when it should have been hence SO Nutton did not know the claimant was not attending his capability hearing for medical reasons. The SLE application was a fiasco. 4.9. Society expects prison officers, like members of its armed forces , the police and other emergency services, to put themselves at risk . If they are so injured in the line of duty that they are permanently incapable of work they may qualify for IHR. The fact the claimant was later given IHR and his civil case for compensation has been settled does not detract from the harm done to him by writing him off as a hopeless case for rehabilitation to some work long before he or any medical advisors were ready to do so . It is that which violated his dignity and created a hostile environment for him and it is entirely reasonable it would. The so called “eggshell skull rule” is relevant to reasonableness of effect, and will be to remedy. 4.10. Mr Tinnion argues the claimant’s attitude to being asked to complete an IHR application changed over time, from (i) an initial period in 2012 and part of 2013 when he was opposed to making one, to (ii) a period starting no later than early September 2013 when he accepted (following advice he trusted) it was in his own interests to do so. Since harassment relates only to unwanted conduct, Mr Tinnion says the only acts complained of can be in the earlier period, which since it predates 20 September 2013 means it is out of time. Ingenious though this argument is, we are not convinced acceptance of his union’s advice makes the conduct “wanted” but even if this claim is out of time, it is only by a few weeks at most. 4.11. He adds it is not just and equitable to extend time because (a) the claimant had the benefit of trade union advice throughout at the time he was trying to reach a solution before issuing proceedings (b) it is necessary his witness statement should put forward grounds for us to extend time because the burden rests on him to show it is just to extend time, not on respondent to show it is not, and (c) there is prejudice to the respondent in having to answer in February 2020 complaints about matters which occurred in 2012 and 2013 4.12. We reject these submissions . On point (a) , for many years Parliament has tried various means to ensure before employees rush to a Tribunal, they try to resolve problems internally. That is what the claimant and Mr Redford were doing . The claimant was in no fit mental state to be making fine decisions on when to issue and even if , which we do not accept, Mr Redford should have pressed him to, applying Chohan v Derby Law Centre we are not willing to say there were not good reasons for any delay If we do not exercise the discretion, patience before bringing proceedings to allow the respondent the opportunity to remedy the situation would result in a decision that great wrong was done to a claimant but he can have no remedy because he waited too long. That is not just or equitable. On point (b) the discretion is for us to exercise and our decision may be made based on the facts we have found and submissions without the point being in a witness statement . On point (c) it is the short delay in bringing the claim to which we must have regard not the delay in it being brought to trial which is the fault of neither party. This case passes all the tests in Keeble for extending time 4.13. Claims 3-5 have common elements as all relate to the claimant feeling harassment from the effects of being “forced”, as he sees it, to attend meetings. The respondent denies improper pressure was put on him to attend the capability hearing, including SO Nutton’s phone call on the day before it, or to attend his appeal. Due to the importance of the both to his career, it was in his own interests to attend if he could. The first indication he would not attend was by letter dated 18 September 2013. Ms Liddell’s response on 25 September 2013 (170) expressing her “disappointment” and adding “I would be grateful if you could provide me with a letter from your consultant stating this ” was reasonably read by the claimant as her doubting the truth of what he said. He was perfectly entitled under the Human Rights Act to think his medical records should be for the eyes only of people who need to see them to understand his condition. Ms Liddell said earlier they would not be seen by HR then asked for medical corroboration of the claimant saying he was too ill to attend. The last line of Professor Martin's report was all she needed to see, but the claimant has even through these proceedings been strongly criticised for sending a heavily redacted document. 4.14. As the meetings related to disability, the conduct might be seen to relate to it also, but we find it was only “in the circumstances of disability” as Eady J. said in Private Medicine Intermediaries Ltd. v Hodkinson.If we are wrong and the conduct is related to disability, the claimant passes the subjective test but in all the circumstances not the objective. We agree with Mr Tinnion the respondent was taking a prudent course of action in case the claimant later asserted unfairness of his dismissal due to it being decided in his absence. Governor Fox’s 30 September 2013 letter canvassing (i) holding the meeting by telephone (ii) the claimant being represented by his POA representative or a workplace colleague or (iii) making written submissions, concluded: “Please let me know your preference for taking this matter forward and if it is with written submissions, please send them to me prior to the scheduled meeting.” This was intended to give the claimant a choice of means by which he could meaningfully participate without being physically present. On 4 October 2013, his wife informed the respondent of the arrangements the claimant wanted which the respondent then confirmed in writing (173). However, we agree it was appropriate for SO Nutton as his line manager to call to check on the situation before the hearing. SO Nutton should have been told there was no need to. Checking, and checking again, the claimant was content for his future to be decided in his absence was sensible and reasonable. The letter does not ask him to reconsider his decision, or warn of any adverse consequences if he chose not to attend. 4.15. No pressure was put on the claimant to attend the appeal hearing at HMP Wakefield. His wife was allowed to attend but not be physically present in the room during the hearing itself. The claimant was accompanied by CM Redford and his own presence to give instruction helped his case. The sheer incompetence as various stages and insensitivity to the claimant by his managers and HR up to and including dismissal is staggering. This is contrasts with his treatment by Mr Vince, but even he could not then look for redeployment opportunities elsewhere in the service, let alone the wider civil service. These two parts of the claim fail. However, the one which has succeeded is what caused the claimant the greatest injury to feelings. We have fixed a one day remedy hearing on the basis we will only be dealing with argument about injury to feelings, aggravated damages and interest . If we are to be faced with any claim for direct financial loss or exemplary damages the parties must inform the tribunal soon as the remedy hearing may take longer.[8]The claimant accepts after the application was submitted there were no specific additional acts on the part of the respondent that forced him to continue with the application, although it is contended the original pressure put on him to make the application continued in some way until the application had been determined. 1.5. On 5 March 2021, HHJ Auerbach permitted two amended grounds to proceed, being the ET(a) in concluding at 4.10, the unwanted harassment of compelling the claimant to apply for IHR continued up to early September 2013, failed sufficiently to set out the findings or reasoning supporting that conclusion, having regard in particular to the fact the claimant had signed the original application for IHR in February 2013; and(b) erred when considering a just and equitable extension, in discounting the impact of the passage of time since the events, because (i) the fact it was no-one's fault there was a delay of many years in the matter coming to a hearing was not a sufficient reason to do so; and/or (ii) even if the ET was entitled to regard the complaint as being only a few weeks out of time, this did not preclude this impact being a relevant consideration. HHJ Auerbach said Adedeji-v-University Hospitals Birmingham NHS Foundation Trust 2021 EWCA Civ 23 may have a bearing on the second point. 1.6. Two grounds of appeal were dismissed. Ground 2 was that when addressing the time point we erred by (a) failing to apply our own findings at 2.37 to the issue of the date on which any pressure on the claimant to complete an IHR retirement application was no longer "unwanted' conduct (b) failing to apply that date to determine whether the IHR complaint had been presented in the 3 month primary limitation period or not. Mr Tinnion told HHJ Auerbach the ET made no finding that after 29 November 2012 the claimant ever wished to stop "hedging his bets"(a phrase used at the hearing) and no longer wished to apply for IHR. He averred we should have found (1) from 29 November 2012 the claimant was voluntarily applying for IHR (2) asking him to complete an IHR application after that date was no longer "unwanted' (3) the last date on which the respondent’s conduct was "unwanted' must have been 28 November 2012. His fall-back was it cannot have continued beyond when the claimant put in the final completed application form on 20 February 2013 and we erred by failing to identify that as the date from which time began to run or, alternatively, identify any other specific date. HHJ Auerbach said this did not preclude a finding the respondent was still subjecting him to unwanted, harassing, pressure to apply for IHR so he rejected ground 2 as not arguable. Ground 4 was we breached Chapman-v-Simon by (a) failing to adjudicate upon the complaint of harassment actually brought (b) adjudicating upon harassment complaints not brought. In the alternative, our determination was “tainted” by impermissible consideration of harassment complaints not brought. HHJ Auerbach took the view what we said at 4.9, indicated we had found pressure to apply for IHR was reasonably viewed by the claimant as an expression he had been “written off” which could be harassment. It arguably appeared from the final words of 4.10 we found the harassing conduct continued up until early September 2013 hence the reference to a "short delay" at the end of 4.12. So, ground 4 was not arguable. 1.7. At full hearing on 28 September 2021 (judgment sealed on 12 January 2022) HHJ Tayler held we failed to make specific findings about what conduct of the respondent constituted harassment and, if it extended beyond 20 February 2013 to no later than September (when he says “it was accepted” any conduct was no longer unwanted), when the period over which it extended ended. We never accepted conduct was no longer unwanted after 20 February. HHJ Tayler found we had not explained our reasoning to support the conclusion unwanted conduct continued to September 2013. HHJ Tayler also found we erred in holding it was only appropriate to take into account the period by which submission of the claim exceeded the usual three month time limit. It was also necessary to consider the effect extending the time limit would have on the respondent's ability to defend the claim, including the fact it would result in us having to make determinations about matters which occurred many years previous to the hearing, and we should have regard to Adedeji. 1.8. HHJ Tayler remitted to the same ET to determine the date or period over which the harassment occurred, and if that ended before 20 September 2013, to determine whether it is just and equitable to hear it ”having regard to all relevant circumstances, including that an extension of time would require consideration of matters many years ago”. We interpret our task as to explain our reasoning in 2020, which we will, and then to decide the time point based on what we have been told, and have decided, today. 1.9. We had a reading day on 20 April done at our homes. In discussion by telephone at the end we thought HHJ Tayler’s paras 7 and 8 of what the pleaded claim “appears to relate to” was incorrect. We thought 20 February 2013 was not the date on which the IHR assessment application was “completed”. The claimant largely filled in a form, albeit under protest, on 29 November 2012 and on 20 February, a date never in dispute which is why we did not mention it, posted a final version at SO Nutton’s request. As all EAT judges said, pressure on him to retire continued “in some way”. HHJ Barklem wrote “The ET held the fact the Claimant was later given ill health retirement and his civil claim for damages settled did not detract from the harm done from writing him off as a hopeless case for rehabilitation to do some work long before he or any medical advisors were ready to do so.” HHJ Barklem clearly saw we were concerned with the harassing effect of the respondent’s omissions to explore ways for the claimant to return to some work. HHJ Auerbach said the pleading did not preclude a finding the respondent was still subjecting him to unwanted, harassing, pressure to apply (which must mean to continue with the application) and our paragraph 4.9, indicated we found this pressure was reasonably viewed by him as another expression he had been “written off”. That is precisely what we found was harassment. 1.10. We will explain the law we applied in Part 2, after setting out the key facts, and our reasoning in 2020 so anyone without local knowledge and not present at the hearing can follow it. 1.11. The claimant went to work on the same landing the day after the murder on 1 October 2011. On 17 October, he had to enter the cell where the murder had taken place. He realised he was standing in dried blood swept into a pile by the forensics team. On 20 October in the same cell, he pressed down on the bed and blood ran onto his hand. In February 2011, he had applied to be transferred to another Wing, and on 8 November 2011 he was. His behaviour was so changed at home, his wife left and refused to return until he had treatment. The respondent arranged six sessions of counselling but refused his request to arrange more than six. 1.12. In December 2011 he tried to speak to Ms. Jeanette Liddell, Head of HR, but only got to speak to her assistant Moira Robinson whom he told he was feeling unwell, struggling to stay at work and had PTSD. He suggested a temporary secondment to another prison or some post in the civil service and asked for a meeting with Ms Liddell to discuss his options. Despite many calls, she never rang back as Ms. Robinson promised she would. He continued to ring over the next three months, each time spoke to Ms. Robinson but was never contacted by Ms. Liddell. On 23 February 2012 he emailed Ms. Liddell about a post advertised on the prison service webpage. He had no reply. 1.13. On 22 March 2012 the NHS Mental Health Team (MHT) diagnosed PTSD. On 26 March, MHT told the claimant he would be offered intensive treatment. On 30 March, a report confirmed he was having flashbacks. On 28 April he contacted SO Clarke saying he would be reporting sick. Governor Lamb telephoned 30 minutes later saying he should take an extra day of leave instead of reporting sick and he would investigate what assistance/support could be given. On his return the claimant saw Governor Lamb who waved at him in passing, but no steps to help were suggested. 1.14. On 12 June, despite having been transferred to G Wing he was detailed back, for the fifth time since transfer, to the landing on C Wing where the murder had occurred. On 19 June, a medical report confirmed the PTSD diagnosis and said the claimant was having nightmares, flashbacks, poor sleep, panic attacks, feeling frustration and anger. Until today we did not know how the claimant put the court claim but two prisoners, known to be dangerous, somehow acquired the means and opportunity to commit a brutal murder in a cell, which it is hard to imagine could have been allowed to happen. Chadwick-v-British Transport Commission 1967 1 All E.R. 945 held if a defendant is negligent is allowing something to happen and it is foreseeable someone coming on the scene may suffer harm, the defendant is liable to that person. The claimant today said the court claim was about what the prison did wrong, such as sending him back to C wing after transfer. 1.15. On 2 July 2012 the claimant went sick certified as “PTSD (work related, under Psychiatrist)”. On 3 July a referral to ATOS was made and on 7 July, Dr Toft’s report was forwarded to OH. The claimant telephoned Custody Manager (CM) Colin Harris requesting to maintain contact with a different manager or Linda Butler. CM Harris refused saying, according to his note, Ms Butler was “only the disability rep”, it was not, in his opinion, “in her remit”. Today the claimant told us, which the respondent had not, Ms Butler was assigned by the prison service to be his “advocate”. 1.16. On 1 August 2012, SO Nutton took over as the claimant’s line manager. He did not come across to us as ill-disposed to the claimant but made statements which did not bear logical examination, eg he believed the claimant was making use of the incidents in October 2011 as a means of exiting the prison service with the best financial package, which would be IHR entitling him to 75% of his salary until retirement at 65 years of age. SO Nutton was unable to reconcile his view with his assertions the claimant failed to co-operate with the process. Anyone who wanted IHR would “talk up” the severity and likely permanence of his PTSD and say he needed IHR. The claimant did the opposite. SO Nutton managed the patrol dog section. It was patently obvious he had no idea how to deal with a person with serious and complex mental health issues. He did what he was told by Governors and/or Ms Liddell following orders and HR “advice” without understanding why. Emails show various HR officers dealing with the case at different times using a standard policy-based approach. Ms. Liddell, though Head of HR, never arranged for herself or someone senior with HR and disability training to see, or even speak by phone, to the claimant. 1.17. On 2 August 2012 Linda Butler met Governor Finley to advise on adjustments to assist the claimant back to work. Governor Finley could not understand why she was involved, stated it was not confirmed the claimant had PTSD and he did not believe the claimant was disabled. Ms Butler confirmed he had been diagnosed. We heard no evidence from Governor Finley. SO Nutton, and others thought Ms Butler advised on adjustments for physical disabilities only. The respondent’s only HR witness, Ms Pickering, confirmed Ms Butler’s role covered mental health disabilities too. 1.18. On 13 August SO Nutton spoke to the claimant with Ms. Butler present. On the same day ATOS OH Nurse Claire Stone reported (OB 110-111) the claimant had PTSD, was not fit for work and unlikely to be until his symptoms significantly improved. She recommended a review in 6 weeks and said he was likely to be disabled. The review never took place. 1.19. On 28 August 2012, a Governor told SO Nutton to ask the claimant to complete forms for a further OH referral and consent to a report for the purpose of IHR. SO Nutton’s statement says “I first spoke to the Claimant about this on 10 September 2012 and the Claimant explained he did not wish to consider this and he intended to return to work. I advised him I would speak to the Governor again in light of his comments”. This is the context in which IHR started to be suggested and the start of the pressure to apply for it. The claimant had only been off work for eight weeks. 1.20. On 30 August the claimant was assessed by a Therapist, a Consultant Psychologist and a Consultant Psychiatrist. Their report of 3 September 2012 (OB112-113) confirmed PTSD and that he should have Cognitive Behavioural Therapy (CBT) and Eye Movement Desensitisation and Reprocessing(EMDR). Possible routes forward were (a) enough improvement in the claimant’s mental health to enable him to return to some work or (b) acceptance he never would improve and should be ill health retired or dismissed for incapability. IHR entails a referral to CAPITA to give a medical opinion whether the criteria for it are met. It will not be granted if treatment may succeed, and it is premature to say he will be permanently incapable of work in the prison service. 1.21. On 17 October 2012 SO Nutton gave the claimant an IHR application form. The claimant asked why he had to complete it as he did not want to retire. SO Nutton replied he did not know. He told us IHR must be considered where an officer is on long-term sick absence, or has a serious underlying health issue, and may be dismissed as unable to render regular and effective service. It is hard to imagine someone with a health issue serious enough for IHR not being “disabled”. Noone could reasonably doubt the claimant had a mental impairment likely, without treatment, to have more than minor adverse effects on his ability to perform day to day activities for at least 12 months. 1.22. SO Nutton said he asked the claimant about returning to work, who replied he did not wish to return to Frankland. A different workplace may have helped the claimant, but he was never given one and did not return to work before his dismissal. SO Nutton claimed he proposed a return to Low Newton (a women’s prison very close to Frankland) and/or Deerbolt (for young offenders, near Barnard Castle over 20 miles away). Within commuting distance for the claimant there is also HMP Durham a category B prison housing remand prisoners and those convicted or less serious offences than the violent and dangerous ones at Frankland. Work elsewhere was an obvious avenue to explore, and one the claimant did not decline. In 2020 our view was he believed an alternative role would still be explored, even if he signed a form applying for IHR as something to fall back on if nothing could be done to get him well enough to work, He did not expect it to be the only route to be explored. He made clear he wanted to remain working in a prison, or some civil service, role with extra training if needed. 1.23. On 23 October, Ms Liddell emailed SO Nutton saying IHR paperwork needed to be completed. In a significant exchange of emails at OB115 she says to SO Nutton this was “not an easy case to manage” and expresses surprise at the claimant’s response to non-uniform work at Frankland or work at Low Newton or Deerbolt where SO Nutton says “he would not have the flashbacks and panic attacks when near Frankland”. Ms Liddell adds there are “not many prisons left in the area. Does he want a move out of the area? Possibly something to explore in the future”. SO Nutton replied the next day saying he did not. None of this was put in writing to the claimant and no-one from HR discussed it with him. Our view was , and still is, transfer to another workplace was obviously something to be explored soon if the claimant was ever to return to work. 1.24. On 27 November, SO Nutton advised the claimant to tick the box on the OH consent form that he wanted to be considered for IHR because, where a capability hearing is likely, an application for IHR is compulsory and, if he did not consent, he could not be considered for IHR but may be dismissed anyway. SO Nutton took advice “from HR” who said his letter was “appropriate”. He was unable to explain why “HR” did not advise steps to help the claimant remain employed if his health improved. We found at the hearing, and reiterate, this was because the decisions were coming from above him–Governors and/or senior HR officers. The claimant replied on 29 November his hope, and wish, was to get better and return to work. 1.25. The claimant said he came to believe, obviously later, Ms Liddell and at least one Governor wanted him out of the prison service. For him, IHR involved mental acceptance he would never be well enough to work. Like physical illnesses, some mental ones can be cured, or controlled, while others cannot. He was still hoping to work in a prison by organising reasonable adjustments with the help of Ms. Butler and his union representative, Custody Manager Dave Redford of the Prison Officer’s Association (POA), who works at HMP Durham and represents officers all over the region. 1.26. On 29 January 2013 the claimant wrote saying he had no issue with CAPITA or ATOS seeing his medical records, his issue was with accepting retirement. He received a memo dated 20 February 2013 saying it had been decided to progress an IHR referral for him and management were considering convening a capability hearing at the end of the process. We found long before he was prepared to give up hope of recovery, and before any medical advisors were, some Governors and HR had “written him off”. No-one called knew enough to admit or deny that was a conscious decision, or, if it was, when it was made. On 26 February 2013, the claimant confirmed he had, on 20 February, posted the application form, as SO Nutton had asked. 1.27. After that date, on 1 March the claimant was told of a role at Kirklevington Grange, a category D prison near Stockton, much further from his home. The claimant had already approached HMP Durham directly for alternative roles. On 5 March he emailed SO Nutton (OB138) and the Frankland training manager, querying further training and saying “As I have explained on numerous occasions, I have no intention of medically retiring despite being constantly forced by Frankland down that route and believe the above courses would afford me the means of a return to full duties albeit in another establishment in another role”. Usually in public sector employments, transfers to other jobs or workplaces are prioritised for people at risk of dismissal for redundancy or disability related reasons and the active support of senior managers and/or HR to identify suitable posts is very useful. SO Nutton, only one grade above the claimant. did not even believe he needed a transfer. SO Nutton emailed the claimant on 11 March saying the training he had asked for would not be provided. The respondent did not say it was, or give the appearance of, ruling out options other than IHR or dismissal. 1.28. On 9 April 2013, OH again confirmed he had PTSD, was unfit for work and would not be ready until after EMDR treatment, but full recovery was expected with it. HR would see this. Still, no-one in HR took a grip on the situation. On 30 May (OB307) the claimant again told SO Nutton “Frankland” were pushing him to retire when he wanted to get better enough to work. That, in short, had always been his complaint. 1.29. Mr Tinnion submitted the claimant was for a long time “in denial” about the severity of his PTSD and the likelihood of a return to work as he had admitted in answer to the ET’s questions. The claimant, in hindsight, accepted he was, referring to his admission to himself and others of how bad his PTSD was as “coming out”. He knew the job of prison officer requires mental strength, but, like many who suffer physical illness or injury, was not yet ready to accept what turned out to be true, that he would not recover to the extent needed to work in a prison. He was only 52 years old. Exiting the prison service would violate the dignity of any person who had worked all his life. 1.30. We agree, as Mr Tinnion told HHJ Auerbach, we did not find the claimant ever wished to stop "hedging his bets", but that was not the complaint he was making. His priority, and what he “wanted”, was to become well enough to work. If and only if, he could not, he preferred IHR to dismissal. In contrast, we found his senior managers and HR, probably thinking he would never become mentally well enough to work, viewed steps which may help him remain employed as a pointless waste of time. Though they favoured him taking IHR to having to dismiss him, they explored no other alternative. Mr Tinnion, like any good advocate, cross examines asking questions designed to obtain the answer he wants but we must interpret the answer in context. The claimant gave one reply at the original hearing which Mr Tinnion said was acceptance the respondent’s conduct was “no longer unwanted”. In context, the reply showed no more than acceptance that if he had to leave the prison service, he would tolerate IHR as the least undesired outcome if all else failed. The respondent’s suggestion the claimant at this time wanted IHR and was content no steps to avoid it be explored is, on the facts we found, well evidenced by documents, wholly wrong. 1.31. On 18 June CAPITA said their doctor wanted to meet the claimant face-to-face. On 28 June the claimant told SO Nutton (OB 310) he was to have such a meeting on 24 July, but had already told CAPITA he did not want to retire so did not know why he had to go. SO Nutton said it was a “mandatory process”. The claimant was expected to give continuing co-operation with the process, disclose medical evidence and ultimately see the CAPITA doctor. We have no note or recollection of the claimant ever accepting no specific additional acts forced him to continue with the application. SO Nutton painted applying for IHR as a “box to be ticked” before anything else was done. In 2020, it appeared clear to us the claimant himself hoped “anything else” may include transfer to another role. We accept he was struggling to understand complex processes. If his advisors, being CM Redford and Ms Butler, also thought “anything else” may still include transfer to an alternative role, we would need evidence from them to decide whether they held that view and, if they did, whether it was reasonable. 1.32. OB322 confirms he saw the doctor as planned. On 5 August 2013, four months since OH reported on 9 April 2013 he may recover with treatment during which no steps to find him work outside Frankland were taken, CAPITA decided he did not qualify for IHR. The refusal certificate is dated 12 August 2013. The reason given is plain. On the available medical evidence, treatment had started, may succeed, so it was premature to say he would be permanently incapable of any work in the prison service. The author actually writes the claimant did not want to retire but hoped for adjustments which, combined with success in treatment, would enable him to work somewhere. 1.33. SO Nutton had a discussion with the claimant on 28 August 2013, one year after a Governor had told him to get the claimant to consent to a referral for IHR assessment, during which no-one at the respondent had given the claimant any practical help. No-one had ever said they would do no more or done an act overtly inconsistent with looking for alternatives. 1.34. On 2 September 2013 the claimant received a letter to attend a capability hearing to be chaired by Governor Fox on 1 October 2013, the same date as the murder two years earlier, which Governor Fox called an “administrative oversight”. It was re-scheduled to 18 October. An exchange of emails, and SO Nutton’s log, show the claimant pleading to be allowed to attend the hearing with his wife, who was his carer, and his request being refused on grounds of “policy”. Despite IHR being refused, the respondent was proceeding with a dismissal process. This could be seen as “inconsistent” indicating a decision not to even try to keep him employed, but only if the outcome was a foregone conclusion. Both the initial letter, and one of 11 September (OB167) setting a new date, had a list of points to be “discussed” including whether he would be able to return to work in the near future, then, each on a new line, your current fitness to work in your role as a prison officer, whether you will be able to provide regular and effective service going forward, whether there are any adjustments that could be made to enable you to return to work whether there are any adjustments that could be made to enable you to provide regular and effective service now and for the foreseeable future. A distinction appears to be made between return to his existing role and regular and effective service in another role. The last two points for discussion were “Eligibility for Medical Retirement” and “Dismissal on grounds of medical inefficiency”. 1.35. OB322 shows Julie Bennett of HR telling SO Nutton on 27 August the “No1 Governor “would convene a capability hearing “as all documentation is now in place”. If IHR assessment was seen as having to take place, and be refused, before a person can be dismissed for incapacity, it explains that phraseology. A report by Ms Bennett (OB 174-178), for Governor Fox says one option is to explore a return to work in an alternative role, if the claimant can provide an early return date. This is a “Catch 22 situation”. For a return to work to succeed, steps to explore opportunities for another role needed to be taken before, not after, he was fit enough to try. A view held by some employers, based on what we consider to be a misreading of certain comments in reported cases, is that until a person is ready and able to return to work no duty to take any step arises. In Hill-vLloyds Bank plc, the EAT held it would have been a reasonable adjustment for an employer to give an undertaking to a disabled employee who claimed to have been bullied and harassed by colleagues that she would not be required to work with them. She had more anxiety and fear about work than a non-disabled person who had been bullied and harassed would have and the giving of the undertaking may have alleviated that. The parallel here is that everyone, including SO Nutton, knew the claimant had a major problem with flashbacks and anxiety when he was even near Frankland. Had he been told he could have an alternative role somewhere else, if there was one available, that problem may have been alleviated. At the time, the claimant, his wife, CM Redford and Ms Butler would not see Ms Bennett’s report. If CM Redford and Ms Butler thought he may be allowed to remain in the service rather than dismissed even if he was not fit to work very soon, we would need their evidence to decide if that was reasonable. 1.36. On 19 September Professor Martin, Consultant Psychiatrist reported the claimant was very ill, had a less than 20% chance of getting better and was not fit to attend the hearing. He also said (OB169c) there was “no doubt whatsoever”” the claimant was disabled as defined in the EqA. He did not attend, but CM Redford and Linda Butler did. The hearing (OB189-190) lasted 20 minutes. CM Redford said his personal opinion was the claimant had the worst PTSD he had ever seen, was unlikely to return to work, had a very poor quality of life, was dependent on his wife for care and at times unable to hold a rational conversation. Governor Fox did not address a role elsewhere. The claimant had 3 months from 12 August to appeal the refusal of IHR but, as at October, had not. The respondent’s note of the hearing said he would be and was aware of the deadline to do so. 1.37. On 30 October Governor Fox wrote telling the claimant of the decision to dismiss on the grounds of medical inefficiency with a 50% reduction in the compensation paid to people whose incapacity arose from work. The claimant received the letter on 5 November and appealed his dismissal on 6 November, indicating, though he had been off work for about 15 months, with no improvement in his health, he still wanted to remain employed, not retire. At the appeal on 23 December the Director of High Security Estate, Mr Richard Vince, threw the letter saying he would only get 50% compensation into the bin saying he would get 100%, but the decision to dismiss stood. The brief written for Mr Vince on 25 November by yet another HR officer, Janice Wake, says, by then, the claimant had appealed the refusal of IHR. IHR was granted at appeal on fuller medical evidence and the passage of time without recovery. He received no compensation payment because it is an alternative to IHR. 2. Mr Tinnion’s argument and some Relevant Law 2.1. Mr Tinnion’s position statement for today’s hearing sets out these issues which we agree First, what is the (correct) nature/construction of the one successful s.26 EqA harassment claim: “Compelling the Claimant to complete an ill health retirement assessment application when he emphatically expressed the fact he did not want medical retirement” Second, whether the respondent (R) engaged in conduct after 20 Feb 2013 which “compelled” the Claimant(C)to complete an ill health retirement assessment application”. Third, the time limit for C to present a timely ET1 in respect of the claim. Fourth, whether C’s claim was presented out of time, and if so by how much. Fifth, whether it is just and equitable for the ET to extend time in respect of the claim. 2.2. In an attempt to “pin the claimant down” he says: It is essential for both R and the ET to understand C’s case. To avoid further prevarication/ obfuscation on the issue, at the outset of the 4 July 2022 hearing R will ask the ET to put C to the following election before C gives any further witness evidence (a)to concede that after 20 Feb 2013 R did not engage in conduct which compelled C to complete an ill-health retirement assessment application (IHRAA) (b)to identify with particularity each and every act/omission C says R did after 20 Feb2013 which compelled C to complete an IHRAA. We did not need to put this to the claimant because of the concession explained in Part 5 below. 2.3. He adds “Common sense and logic suggest a party cannot be compelled to do something they have already done. The following facts are not (and have never been) in dispute: (a) on 20 Feb 2013, A NUTTON sent C a memorandum regarding C’s future capability hearing/ill-health retirement [NB139-140] (b) on 20 Feb 2013, C completed (and posted) his one and only IHRAA [NB141];(c)on 20 Feb 2013,C informed A NUTTON he had done so [NB141].In this context, C’s harassment claim (pleaded by Thompsons) is clear, unambiguous, and makes perfect sense: it is a complaint about the conduct/steps R took on or before 20 Feb2013 which compelled C to complete his IHRAA on 20 Feb 2013. We disagree entirely. 2.4.Lord Hoffman in Investors Compensation Scheme-v-West Bromwich Building Society said (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time ... (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. 2.4. Mr Tinnion’s reading inserts a word, shown in brackets below, which is not there: “Compelling the Claimant to complete an ill health retirement assessment application (form) when he emphatically expressed the fact he did not want medical retirement." In colloquial speech, using “completing an application” as synonymous with completing the form which initiates it may be acceptable if the person submitting the form has nothing else to do, eg applying for a ticket to an event where the number available is restricted. In contrast, filling in an IHR assessment application form means he is applying for his eligibility to be “assessed”. It remains for all involved to “complete” the assessment, the application for which could be withdrawn at any time. Even as a matter of language, to equate “completing” an assessment application with completing the form which initiates the assessment, is plainly wrong. 2.5. To us, at the original hearing and today, any ambiguity is resolved by understanding public sector IHR. About 30 years ago there were concerns some employees were being given IHR too readily, which depleted pension funds, so new regulations provided for assessments by specialist doctors to decide if inability to work was likely to be “permanent”. On the Disability Discrimination Act 1995 (DDA) coming into force this was decided having regard to the duty to make reasonable adjustments, so consideration was to be given to a person, for example, being moved to a vacancy outside his existing workplace, unless that imposed a disproportionate burden on the employer. IHR will not be given if medical treatment may succeed and reasonable steps, including transfer to an alternative role, have not either been tried or ruled out as unreasonable. 2.6. If the claim is not confined to pressure to fill in the form, what does it cover? In short, the unwanted conduct we saw as claimed was a combination of acts and omissions over a period starting in September 2012 and ending not before September 2013, more probably even later. Section 40 of the Equality Act 2010(EqA) makes harassment unlawful and s 26 includes: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect. 2.7. The Equality and Human Rights Commission Code of Practice (“EHRC Code”) notes “conduct” can include a wide range of behaviour. An omission or failure to act can be unwanted conduct as well as positive acts. In Marcella-v-Herbert Forrest Ltd ET Case No.2408664/09 failure to provide female toilet facilities on a building site for the only woman bricklayer and in Owens-v-Euro Quality Coatings Ltd ET Case No.1600238/15, failure to remove a picture of a swastika for weeks, were unwanted conduct. This reflects s 212(2) and (3) which say: (2) A reference (however expressed) to an act includes a reference to an omission. (3) A reference (however expressed) to an omission includes (unless there is express provision to the contrary) a reference to— (a) a deliberate omission to do something; (b) a refusal to do it; (c) a failure to do it. 2.8. Reed-v-Stedman 1999 IRLR 299 warned against carving up a case into a series of specific incidents. It endorsed a cumulative approach quoting from a USA Federal Appeal Court decision: ‘The trier of fact must keep in mind that each successive episode has its predecessors, the impact of the separate incidents may accumulate, and the work environment created may exceed the sum of the individual episodes’ (USA-v-Gail Knapp 1992 955 Federal Reporter approved by the EAT in Driskel-v-Peninsula Business Services Ltd . We viewed Mr Tinnion’s arguments as “carving up” connected acts and/or omissions and starting a time limit running from each, an approach which cannot be not anchored in statute or authority. HHJ Tayler wrote “Conduct on the part of a respondent that constitutes harassment could potentially be conduct that extends over a period If unwanted acts are followed by connected omissions and/or failures, time runs from when the last were decided upon, or taken to have been as shown by either an act inconsistent with exploring ways of him remaining employed or the passage of enough time to enable a reasonable person to conclude nothing would change. 2.9. As is obvious from the wording of s 26, if conduct ceases to be unwanted, it ceases to infringe the section. However, conduct may be tolerated but still be “unwanted” as said in Munchkins Restaurant Ltd-v-Karmazyn EAT/0359/09 "there are many situations in life where people will put up with unwanted, or even criminal, conduct which violates their personal dignity because they are constrained by social circumstances to do so... Putting up with it does not make it welcome, or less criminal. Mr Tinnion’s written closing submission in 2020 included the claimant’s attitude to being asked to complete an IHR application changed over time, from (i) an initial period in 2012 and part of 2013, when he was opposed to making one, to (ii) a period starting no later than early September 2013 when he accepted (following advice he trusted) it was in his own interests to seek IHR, and, since harassment relates only to unwanted conduct, his complaint was out of time. We note even Mr Tinnion did not then equate completing an IHR assessment application with filling in the initial form, but he said the claimant continued with an IHR application of his own free will. We rejected that at the hearing and again now. The flaw in his submission is to equate the claimant being content to have IHR only if he could not return to work, with him actually wanting IHR. The CAPITA report said he wanted to work, not retire. HHJ Tayler said it appears the ET “took its lead” from this submission by focusing on any conduct having ceased to be unwanted by no later than early September 2013, so any delay was relatively short. We did not “take a lead”. To us, it was obvious, as the claimant wrote, pushing him towards IHR, against his often repeated wish not to retire, was unwanted conduct until and beyond then. 2.10. Pressure can also be exerted by the respondent doing nothing to find any viable alternative. In the public sector, transfers do not just “happen”. The active support of senior managers and/or HR to identify suitable posts is vital to secure a transfer and, in our experience, is normally forthcoming, despite the risk he may still go off sick again. We often see a “trawl” for potential posts elsewhere. There was no evidence of any Governor or Ms Liddell or anyone in HR, for example, emailing or telephoning other prisons saying something like “We have an experienced officer who cannot continue at Frankland but may be able to work in another role. Will you consider a transfer to your prison?” 2.11. In February 2022, the Court of Justice of the European Union (CJEU) decided X-v-HR Rail SA. An employee training as specialist technician became incapable of performing essential functions of that post but could be employed in a post which met certain requirements. He was assigned to a temporary position and informed he would receive “personalised support” to find a new job with the company. However, he was later informed his traineeship was terminated owing to his total and permanent incapacity to perform the duties for which he was recruited. The issue was whether the employer was obliged to re-assign him. According to article 5 of Council Directive 2000/78/EC, to ensure equal treatment for disabled persons, appropriate steps must be taken, unless they impose a disproportionate burden on an employer. The CJEU held the employer was required to take effective and practical measures, taking each individual situation into account, to enable a disabled person to have access to employment. Where one became permanently incapable of doing his existing job because of the onset of a disability, reassignment to another job may be “appropriate” within the meaning of article 5. 2.12. There is nothing new about this. Tarbuck-v-Sainsbury’s Supermarkets said there is no obligation to create a post which is not necessary, merely to make a job for a disabled person, but, as Lord Hope said about 20 years ago in Archibald-v-Fife Council[16]As the determination of the employment tribunal makes clear, a substantial number of adjustments to the normal procedures were made in Mrs Archibald's case. Some of them involved positive discrimination in her favour, .. This was within the scope of the duty, as it was necessary for the council to redress the position of disadvantage she was in due to her disability. The crucial question is whether it should have taken one more step and simply transferred her to a .. job for which she was suitable, or at least dispensed with the need for competitive interviews. 2.13. Unlawful conduct under the EqA requires an act and a type of unlawful behaviour. One type of disability discrimination is s 20, the duty to make reasonable adjustments and s.21 which says an employer discriminates against a disabled person if it fails to comply with it. The DDA gave examples of steps it may be reasonable to take. The EqA does not but paragraph 6.33 of the EHRC Code does, including(i) transferring him to fill an existing vacancy(ii) assigning him to a different place of work. This, and other, types of discrimination were originally pleaded but later dismissed on withdrawal. The acts in s. 39 include subjecting an employee to detriment which means doing, or not doing, something, which he might reasonably consider changes his position for the worse or puts him at a disadvantage. Section 212(1) says “detriment” does not, …include conduct which amounts to harassment. We are well aware this is not a s20/21 claim, but quite apart from HHJ Auerbach dismissing ground 4, we did not decide a claim other than that pleaded. 2.14. Spence-v-Intype Libra EAT/0617/06 held an employer may carry out a proper assessment and fail to make reasonable adjustments, or fail to carry out a proper assessment but make all necessary adjustments. Elias J explained at paragraph 38:"The issue … is whether the necessary reasonable adjustment has been made; whether it is by luck or judgment is immaterial". S.20/21 is not concerned with the process but the outcome. Such a claim may fail if an ET finds a step would not have been reasonable. Pre EqA legislation introduced a new tort of harassment though the wording in each statute was not identical. Under s 26, the link is between the protected characteristic and the conduct. Slade J said in Bakkali-v-Greater Manchester Buses “Conduct can be “related to” a relevant characteristic even if it is not “because of” that characteristic. … “related to”.. includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader enquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour”. Section 26 is concerned with how the process was handled and a claim under it may succeed where other claims would fail. If an employer fails to comply with s20/21 and acts and/or omissions which could fall in s.20/21 are also unwanted conduct which has an effect proscribed by s.26, s212(1) means s.40 is infringed, not s.39. If harassment covered the facts asserted, withdrawal of other claims was the right step for the claimant to take. 2.15. But for today’s developments, the key issue would have been when time started to run. We still need to address that to explain our 2020 reasoning and why the result today may, though not inevitably would, have been different had no concession been made. Section 123 EqA includes: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 2.16. An ET must distinguish isolated acts, or omissions, from ones inextricably connected, as Mummery L.J. did in Hendricks-v-Commissioner of Police for the Metropolis saying: ”Miss Hendricks .. is, in my view, entitled to pursue her claim .. on the basis the burden is on her to prove, either by direct evidence or by inference from primary facts, the numerous alleged incidents of discrimination are linked to one another and they are evidence of a continuing discriminatory state of affairs covered by the concept of "an act extending over a period." I appreciate the concern expressed about the practical difficulties that may well arise in having to deal with so many incidents alleged to have occurred so long ago; but this problem often occurs in discrimination cases, even where the only acts complained of are very recent. Evidence can still be brought of long-past incidents of less favourable treatment in order to raise or reinforce an inference that the ground of the less favourable treatment is race or sex The question is whether there is "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. In Parr-v-MSR Partners 2022 EWCA Civ 24 the Court of Appeal held the respondents' acts were not "conduct extending over a period" but isolated acts with continuing consequences. This echoes a case we cited, and followed, in our original judgment- Cast-v-Croydon College. 2.17. Matuszowicz-v-Kingston-Upon-Hull Council 2009 IRLR 289 was a s.20 claim, but the time limit points apply to any omissions or failures. They start time running in a way less obvious than positive acts. Mr Matuszowicz, whose right arm had been amputated, was employed as a teacher by Hull Council. In September 2003 he began work for it at Hull Prison where he had a problem coping with heavy doors. In July 2005 he was transferred to another Prison but the problem was the same. He contended by August 2005 it was clear working in the prison sector was unsuitable because of his disability, and the respondent had a duty to transfer him to alternative work. From October 2005 he was given lighter duties, and, from December 2005, garden leave, but his post remained in prisons. On 1 August 2006 the Council transferred its undertaking of teaching in prisons, so his employment transferred under TUPE. He presented a grievance to the respondent on 4 October 2006 in relation to matters occurring up to 31 July 2006. After a premature attempt to claim, he presented a claim to the ET on 31 January 2007. The Court of Appeal was concerned with the failure to give him suitable employment and, by default, enforced transfer to unsuitable employment on 1 August 2006. 2.18. Lord Justice Lloyd said it was necessary to consider how the complaint was formulated and quoted the exact terms used in the ET1:"The respondent failed to transfer the claimant to suitable alternative work once it was clear working in the prison sector was unsuitable (at least as early as August 2005) due the claimant's disability and effectively forced the claimant to TUPE transfer to unsuitable employment despite the respondent being in the full knowledge of the unsuitable nature of the employment." As Counsel for the claimant pointed out, an employer may fail to comply with the duty to make reasonable adjustments by either deliberate conduct or inadvertent omission. Then, as now, the legislation deals with both. 2.19. If “conduct” includes omissions/failures when is it "done" or “treated as occurring”? S. 123 (3) allows for evidence as to when the employer decided on a deliberate omission but, in the absence of such evidence, s.123 (4) defines when it is to be taken as having decided upon the omission. The alternatives are (a) when it does an act inconsistent with doing the omitted act showing it was irrevocably omitting to do it, and it is understandable time runs from that moment and (b) which presupposes the employer has done nothing inconsistent with doing the omitted act, and requires consideration of the period within which it might reasonably have been expected do the omitted act if it was to be done. In such a case, it is to be treated as having decided upon the omission at the time when it might reasonably have been expected to have done the thing omitted. Lloyd L.J. added .., even if the employer was not deliberately failing to comply with the duty, and the omission to comply with it was due to lack of diligence, or competence, or any reason other than conscious refusal, it is to be treated as having decided upon it at what is in one sense an artificial date. Certainly, it may not be a date that is readily apparent either to employer or to employee.” 2.20. The ET had treated the failure to make adjustments for Mr Matuszowicz as a series of acts running from August 2005 to August 2006, which Lloyd L.J. said was not the correct analysis. A failure to make adjustments is an omission, not an act. There may be positive acts inconsistent with the duty but the failure itself is, in its nature, an omission. His Lordship approved HHJ Reid Q.C. in Humphries-v-Chevler Packaging EAT/0224/06 in which the employer, after lengthy dealings with the employee or her representatives, replied on 11 April 2005 to a letter from her solicitors asking for its intentions in respect of the availability of suitable employment, by saying the only job available was as a cleaner, which had been offered, refused but was still open. The claimant contended that was not a compliance with the duty to make reasonable adjustments, so, on 16 May resigned and later issued in the ET. If time ran from 16 May her complaint was in time, but if it ran from 11 April, it was not. HHJ Reid held because on 11 April there had been a definitive refusal to offer anything other than the cleaner job, a deliberate omission had been decided on as at that date, which set time running, understandably on those facts. 2.21. Counsel for Mr Matuszowicz submitted it would be unsatisfactory to impose a start date which employer and/or employee may not realise had occurred. The employer might still be trying, even if not diligently, to make adjustments, and the employee might be waiting for that. Lloyd L.J. saw force in that but held a policy of the legislation is to impose relatively early cut off dates for claims which may be brought when the employment is ongoing, which both s20 and s26 claims can. He accepted the issue of uncertainty is real but considerably alleviated by the opportunity for a longer time if it would be just and equitable, thus accommodating situations in which the employee does not realise the start date has occurred or the employer lulls him into a false sense of security by appearing still to consider what adjustments it ought to make. 2.22. Lloyd L.J. viewed Mr Matuszowicz’s allegation as one of a continuing omission until 1 August 2006 to find alternative employment, so the claim was in time. An occupational health report dated 13 April 2006 concluded he should be assessed with a view to redeployment to a post more suitable than one in prisons. A document dated 11 May 2006 appeared to show the respondent had not come to a final conclusion. On 28 July 2006 an employee of the respondent telephoned the claimant saying she had been told not to take any further steps and it was too late to do other than transfer him. Lloyd L.J. said there might be a case for saying the respondent then decided, shown by its inconsistent act, it was not prepared to make any further efforts so time started to run, but added “ It is ironical, in the context of time limits, it would be in the interests of the respondent to allege it might reasonably have been expected to have dealt with the position much earlier than it actually did, whereas it would be in the claimant's interests to assert that it would have taken as long as it in reality did, so as not to give rise to an earlier date as the starting date”. If the respondent could rely on a start date on 28 July, the claim was out of time by a few days. Lloyd L.J. said there was a good chance of extending time where the delay was that short. 2.23. Sedley L.J. agreed, adding the purpose of the legislation was to prevent a situation of neglect from dragging on indefinitely and, where no overtly inconsistent act had set time running, put the onus on the claimant to decide when something should have been done and to bring a claim within 3 months of that date. His Lordship continued “For obvious reasons this can create very real difficulties for claimants and their advisers….when deciding whether to enlarge time tribunals can be expected to have sympathetic regard to the difficulty ..As Lloyd LJ points out, its effect is to give the employer an interest in asserting it could reasonably have been expected to act sooner, perhaps much sooner, than it did, and the employee in asserting the contrary. Both contentions will demand a measure of poker-faced insincerity which only a lawyer could understand or a casuist forgive”. Unlike failure to make reasonable adjustments, harassment may occur through a combination of positive acts and omissions, deliberate or otherwise, or simple failures, but for the start of the time limit points, the analysis in Matuszowicz is very helpful. 3. Extracts from the Conclusions in our First Judgment ( included for ease of reference) 4.7. Working in a prison like Frankland is a demanding job for which an officer must be of sufficiently good physical and mental health not to be absent frequently or for long. It appears Governors at all levels at Frankland do whatever is necessary to run the prison well, which is laudable. The HR officers, particularly Ms Liddell, appear to aim to deliver whatever the Governors want and CM’s and SO’s obey orders and follow policy. If an officer says he cannot cope for mental health reasons, some think he must be making an excuse, whilst others think, if he is genuine, he is of no use to the prison service. Either way, the claimant was pushed down the IHR option which clearly “relates to“ disability as anyone who satisfies the eligibility criteria for IHR would .. be a disabled person. 4.8. The Disability advisor, Ms Butler, was viewed as only useful to advise on aids and adaptations for physical impairments. Managers at all levels showed no sign of having absorbed any training on equality, if any, they may have received. In many respects information was not shared when it should have been hence SO Nutton did not know the claimant was not attending his capability hearing for medical reasons. The SLE application was a fiasco. 4.9. Society expects prison officers, like members of its armed forces, the police and other emergency services, to put themselves at risk. If they are so injured in the line of duty that they are permanently incapable of work they may qualify for IHR. The fact the claimant was later given IHR and his civil case for compensation has been settled does not detract from the harm done to him by writing him off as a hopeless case for rehabilitation to some work long before he or any medical advisors were ready to do so. It is that which violated his dignity and created a hostile environment for him and it is entirely reasonable it would. 4.10. Mr Tinnion argues the claimant’s attitude to being asked to complete an IHR application changed over time, from (i) an initial period in 2012 and part of 2013 when he was opposed to making one, to (ii) a period starting no later than early September 2013 when he accepted (following advice he trusted) it was in his own interests to do so. Since harassment relates only to unwanted conduct, Mr Tinnion says the only acts complained of can be in the earlier period, which since it predates 20 September 2013 means it is out of time. Ingenious though this argument is, we are not convinced acceptance of his union’s advice makes the conduct “wanted”, but even if this claim is out of time, it is only by a few weeks at most. 4.11. He adds it is not just and equitable to extend time because....(c) there is prejudice to the respondent in having to answer in February 2020 complaints about matters which occurred in 2012 and 2013 4.12. We reject these submissions. … On point (c) it is the short delay in bringing the claim to which we must have regard not the delay in it being brought to trial which is the fault of neither party. This case passes all the tests in Keeble for extending time. 4. The basis of our decision on time limits in our 2020 Judgment 4.1. Incompetent or insensitive conduct can be harassment, even no harm was meant or there may be valid reasons for it, see Chawla-v-Hewlett Packard 2015 IRLR 356. Malicious motive towards a claimant is certainly not a requirement but benign motive does not save a respondent if the necessary elements of unlawful conduct are shown. An analogy is Amnesty International-v-Ahmed where a lady wishing to work in Somalia was refused because her race and religion put her at risk there. The respondent had still directly discriminated. 4.2. Some managers may have thought, benignly, IHR was the best option for the claimant, but the respondent called no evidence to that effect. We found Governors and HR had written the claimant off as unsuitable for work in Frankland or any prison, so even exploring transfer was a waste of effort. The people who dealt with him had neither the medical knowledge nor equality training to do so properly. Their lack of knowledge of what the claimant may expect to achieve by way of recovery coupled with the common misconception that someone who has been off work with PTSD for months will never become well enough to work in a prison, may have caused them to “write off” the claimant. Section 26 makes them guilty of harassment even if it was not their intention, or even a conscious decision. Section 26 is concerned with how the process was handled, the overall context and the effect it reasonably had on the claimant, not with why the respondent acted as it did or whether steps taken would have been effective. 4.3. Was there a conscious decision that if he was not able to overcome the effects of seeing the mutilated body of a murder victim, he was no use to any other prison? Obviously, the respondent did not say there was. We have to infer the answer from the primary facts. 4.4. One view would be some Governors and HR were deliberately engineering a situation in which the claimant would be given IHR because that was easier and safer for them. If he was given IHR, he would not have been “dismissed” so its position on an unfair dismissal or s15 claim would be stronger. Ms Bennett’s report at OB 178 identifies and assesses these as “risks” of dismissal. Also, IHR would reduce his losses, in an ET or civil claim, at the expense of the pension fund. The chances of IHR would be reduced if a post could be identified where he may be able to work. Noone gave evidence to explain why in his case steps which normally would be taken were not. Not even looking for transfer opportunities may have been a plan. 4.5.A more likely possibility was subconscious stereotyping of mental illness. Some jobs require people to cope with pressures most people never have to. Paramedics, police officers, fire fighters and soldiers see awful carnage but have to carry on. Other officers saw the murder victim and did not have as severe or long term a reaction as the claimant, maybe due to him being first on the scene. In any prison, violence may erupt and all officers must act as trained to safeguard each other as well as inmates and the public. It may be the claimant could not have overcome his PTSD to the extent needed to work in any prison environment, but medical evidence, at least until Professor Martin’s report in late September 2013 was that, given time and treatment, he might have. We would have understood a Governor’s reservations about having an officer who, due to PTSD, may do the wrong thing, panic or “freeze”. The respondent called no evidence to that effect. 4.6. Another possibility is incompetence and blind adherence to “policy”. Ms Liddell was right to say this case was hard for SO Nutton to manage but he was left to be the one communicating with a claimant. Why were trained HR advisors who would to do a much better job of discussing options with the claimant not used? From reading the documents, and hearing Ms. Pickering, the answer may be that is how things are done in the prison service whatever the special circumstances of an individual case. Several people in HR dealt with the case. Some documents are addressed to SO Gartside and SO Nutton at “HMPS Shared Services Centre” in Newport, South Wales. Our original reasons described the sick leave excusal (SLE) issue about pay as a fiasco. It was. There are calls from SO Nutton saying he had received an email from Ms Lillian Stone regarding SLE saying ‘policy was policy’. We said “On this point, we accept SO Nutton was doing his best to help. No-one of robust mental health could fail to be baffled and annoyed by the contradictions and bureaucracy these pages contain.” Julie Bennett of HR who prepared the briefing note for Governor Fox does not appear to have had previous involvement with, let alone spoken to, the claimant. All this led to confusion, mis-communication and no-one doing what may have avoided any harassment. 4.7. We have seen many examples of large public bodies, eg. Government departments, local authorities, NHS Trusts adopting a standard, policy-driven approach to cases which are crying out for individual attention. We cannot believe anyone would consciously arrange a capability hearing on the second anniversary of the murder, but it is all too believable it was arranged by someone who either did not know, or simply overlooked, the fact. Governor Fox’s decision on compensation shows he did not understand the effects PTSD had on the claimant’s behaviour though some were set out in medical reports. Mr Vince, throwing the letter into the bin, clearly did. 4.8. At paragraph 4.5. of our original reasons we quoted one of Mr Tinnion’s “broad submissions” “First, the Prison Service is a large organisation with thousands of employees, and tens of thousands of prisoners to care for. It is inevitable an organisation of that scale and public importance will create policies and procedures which it will then try to apply in practice - an ‘ad hoc’ approach is plainly neither workable nor desirable. This matters because many of C’s complaints about the support he was provided during his period of sickness absence appear to relate to the fact they were ‘box ticking’ exercises and not personalised to him. To some extent, this was unavoidable”. We said and now re-iterate “It was not unavoidable. Had the input offered by Ms Butler not been rejected as irrelevant, it would have produced a very different outcome. Had Ms Liddell, as Head of HR, responded to the claimant’s attempts to contact her and taken a grip of a situation which was not normal, the respondent, as an organisation, may not stand accused of harassment”. What was needed, as we originally said, was someone in HR, preferably Ms Liddell, to take “ownership” of an untypical and serious case. 4.9. Instead, the claimant was treated as being of no importance, not worth the effort of trying to retain. It dealt with him as a burden not a person. A “message” can be conveyed by acts and omissions as well as words. In context, the totality of the respondent’s conduct sent the message:” if you cannot overcome seeing the mutilated corpse of a murder victim, you are no use to the prison service and must be retired or dismissed, rather than transferred to another prison where you might go sick again or not perform well”. That “relates to” his disability and violates his dignity. Had the respondent assigned someone competent to look for vacancies elsewhere, found none which posed no risk to others, met the claimant at somewhere of his choice, accompanied by his wife, CM Redford and/or Ms Butler, then explained to him there was no viable alternative to IHR, he may have accepted it, and his responses to the CAPITA doctor been different to the extent IHR would have been given without the need to appeal. Had he still not accepted how ill he was, we may have found him to be unreasonable not to. Instead of persuading him IHR was the best option for him, the respondent “compelled” him to a course he neither wanted nor understood. 4.10. With insufficient basis to infer any omissions were “decided upon”, we find stereotyping and/or incompetence is the more likely reason for the wholly insensitive way in which the claimant was treated. We would have to decide when the respondent was to be “taken to” have decided upon a continuing omission to explore options for an alternative role? For this Matuskowicz is very helpful. We start by looking for an act inconsistent with any outcome other than IHR or dismissal. Although we found everything except dismissal was inevitable after IHR had been refused because there was no “alternative role”, he had been on sick for 15 months and showed no sign of getting well enough to do his original job, we did not find any “inconsistent act” by the respondent showing they would not be looking for any alternative role. 4.11. The final question is when the “penny should have dropped” that if managers at Frankland had done nothing to find a role he might be able to do, they never would. On that date time would start to run. The letters of 2 and 11 September indicated the respondent may still to consider at the capability hearing adjustments it may make right up to 18 October. In that case, the claim was in time. Alternatively, if the letters are read as an indication no other role would be offered, we thought this claim was at most was 18 days late and considering it was “just and equitable”. 4.12. We recorded Mr Tinnion’s submissions on time limits and our rejection of them only briefly in 2020 because, when an advocate for a respondent has no factual answer to the allegations against their client they often, and rightly, turn to Chapman-v-Simon and time limit points as a means of winning. Six years two months from presentation to a liability hearing is the worst delay EJ Garnon has known in 25 years as an EJ during which he has dealt with countless time limit arguments. He accepts our original reasons may have sacrificed detail for brevity and speed of promulgation, but in 2020 such points appeared to have little merit. We are not alone in that view. HHJ Barklem said on initial consideration of the grounds of appeal “The prospective appeal is concerned with the ET's acceptance the single claim which succeeded was validly in time. I am sceptical the appeal is wellgrounded, and concerned the grounds are an overly technical analysis of a wide-ranging decision .. on whether it was just and equitable to extend time- manifestly a matter for the ET. However, given the complex factual situation I am -just- persuaded the Appellant should be given the opportunity to amplify the grounds .. in an oral Preliminary Hearing”. Today, the situation differs greatly. 5. Today’s developments 5.1. HHJ Tayler wrote “The claimant accepts after the application was submitted there were no specific additional acts on the part of the respondent that forced him to continue with the application, although it is contended the original pressure put on him to make the application continued in some way until the application had been determined”. We had anticipated the claimant, who could have refused to see the CAPITA doctor but went because he was told he had to by SO Nutton on 28 June 2013, would argue that was one way in which the pressure to see it through was maintained. If that was the last act relied upon the claim was nearly 3 months late. He may also have argued pressure was exerted by the respondent doing nothing to find any viable alternative. That appears to us to be the possibility HHJ Barklem and HHJ Auerbach saw. We now understand why HHJ Tayler wrote what he did. 5.2. Mr Tinnion said today, and Mr Brien did not challenge, that when asked by HHJ Tayler, Mr Brien was unable to identify in the evidence before the ET a single act (or omission) by a single person (named or unnamed) on a single occasion (dated or undated) after 20 February 2013 which compelled the claimant to continue his application for IHR. The claimant’s new evidence did not identify a post-20 February 2013 incident either. Mr Tinnion says if the claimant had sought to withdraw his application after 20 February and the respondent put pressure on him not to, such allegations (i) are not part of his pleaded case(ii) are not in his witness evidence(iii) were not put to at the 2020 final hearing(iv) have never formed part of his case. We agree, but see no reason why the claimant seeking to withdraw his application should be a requirement of the respondent’s conduct not being viewed by him and us as pressure to continue with it. Mr Tinnion also says the schedule of loss includes “The claim was issued on 19 December 2013 with the tribunal finding that the last act of discrimination took place in September 2013” but fails to mention precisely what act of discrimination took place in September 2013 – the EAT found it was not in the ET judgment. He invites us to “infer the obvious” that the respondent did not engage in conduct after 20 February which “compelled” the claimant to complete an IHR assessment application ; the claimant knows this but is unwilling to admit it and is clearly hoping the ET will “do his job for him” by finding something in the evidence (which he has been unable to identify) justifying a conclusion the respondent engaged in conduct after 20 February 2013 which “compelled” him to continue. 5.3. Today, the case Mr Brien presented was unambiguous. His written submissions include On 28 August 2012, the Governor of the prison told SO Nutton to ask C to complete consent to a report for Ill Health Retirement (IHR). C was first spoken to by SO Nutton about IHR on 10 September 2012. He was asked to complete the IHR form on 17 October 2012. C completed the IHR application on 20 February 2013 The parties agree that there was no further conduct by R after 20 February 2013. Regrettably, neither party made this clear at the time of the original hearing. In any event, C accepts that this aspect of his harassment claim was pleaded on the basis that the ‘conduct’ was being compelled to complete the IHR assessment application. Although the effect of this remained until 20 September 2013 when C accepted that it was in his own interests to complete the IHR form (though advice from his union rep), C cannot point to any acts/omissions by R in relation to the pleaded claim of completing the application. In those circumstances C does not advance an argument the conduct extended over a period of time. It is however argued the pressure C felt under as a result of R’s conduct up to 20 February extended until C accepted the need for the IHR and is relevant to the question of extending time. The parties agree that in light of the above, the primary 3-month limitation period for presenting the claim expired on 19 May 2017. The Claim was therefore presented 7 months out of time. The sole issue for the tribunal is whether it is just and equitable for C to be permitted to present the complaint 7 months out of time. 5.4. Rule 2 of the Employment Tribunal Rules of Procedure 2013 says their overriding objective is to enable ET’s to deal with cases fairly and justly which includes (a) ensuring the parties are on an equal footing (c) avoiding unnecessary formality and seeking flexibility in the proceedings (d) avoiding delay. Rule 41 says "The tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair having regard to the principles contained in the overriding objective. . The tribunal shall seek to avoid undue formality and may itself question the parties or any witness so far as appropriate in order to clarify the issues or elicit the evidence. 5.5. In East of England Ambulace Service NHS Trust-v-Sanders, Langstaff P. held an ET confused assisting litigants in person to give the best evidence they would wish to give to make their case with making for them a case they have not tried to make. The ET “descended impermissibly into the arena”, its job is to adjudicate impartially on a dispute between the parties in the case before it. It is not to advocate the case for either. Counsel for the Trust argued principles, though expressed in relation to the civil courts, “where there are forensic gladiators acting for both sides who can trade blows with equal force and knowledge” are nonetheless the approach which should be taken in ET’s Langstaff P. said ET’s are familiar with people who have no legal training and may find the whole process of going to law distressing and difficult to navigate without any experienced person to turn to. Inevitably they are at a disadvantage when confronted by the legal team instructed by another party. An ET has to be sensitive to that. This may, however, lead to a fudging of the boundary which must be kept between that which it is obliged to do, that which it is not obliged to but can do, and that which it has no right to be doing at all. Its role is to ensure the questioning by one side or the other is appropriate, and, by asking its own questions, that a witness gives the best evidence he would wish to give. However, ET's which should be careful to avoid making a case for either party. It should begin with the complaint before it, understand why it has been made, and ensure clarity. 5.6. The claimant is disabled, a factor we must take into account to ensure the parties are on an equal footing, but he has been legally represented throughout. We must give the effect to the overriding objective without “taking the claimant’s side”. 5.7. We have no difficulty identifying in SO Nutton’s own log him telling the claimant on 28 July seeing the CAPITA doctor was “mandatory” - a positive act. As in Matuskowicz, the continuing omission to provide any viable alternative role effectively forced the claimant to appeal the refusal IHR by as a better option than dismissal without it. We had anticipated an argument, along the lines in 4.11. above, the pressure to see through to a conclusion his assessment application for IHR continued beyond 20 February by the respondent’s omission so the complaint was in time, or late only by a short period. That argument must come from the claimant and his representatives not from us. As we explain later, it may have made no difference, given what we heard today. 5.8. The claimant had made two short statements for this hearing. The first includes that the ET found “the last act of discrimination took place in September 2013. The claim is therefore a few weeks out of time”. We did not find that as such. The first statement says in the last 4 months of 2013 “I was not the same person as I am today, or even as I was before the tribunal in 2020… The simple answer for the delay would be that I was mentally incapacitated so was therefore unable to submit a claim within the prescribed time limits. Even had I wished to pursue such actions my wife had power of attorney over all my affairs as I was deemed mentally unable to manage my life’s most basic of matters. The power of attorney was awarded to my wife by the mental health team / social services against my will and I had absolutely no say in the matter. So even had I have wished to pursue a claim, in the eyes of the law, I couldn't …” It was my wife and my union who did the work to get the claim issued in December 2013.. I was diagnosed with increased PTSD on 16 October 2013 [230] In light of my condition at the time and the support that I was being provided by my wife and my union, and in consideration of the fact that if the claim is out of time it is out of time by a matter of weeks with no other prejudice to the Respondent, I would ask the tribunal to find that it was just and equitable to extend time”. 5.9. The claimant recently was given extra time to submit this, his solicitor having told the ET he had a relapse in his mental health. He now appears to be relying solely on his ill health at the time and pursuit of internal means to resolve his issues to obtain an “extension”. The second statement, which we saw for the first time today at NB142-143, says his case was about being “treated like shit” –“they were throwing me away like a piece of garbage in the gutter”---“they could not be bothered to help me”—and he was “bullied into trying to take retirement”. This is closer to what we thought and found his case was in 2020 and seems to be an allegation of conduct extending over a period. We asked the claimant, who gave evidence, a few “open” questions. His answers tended to show he instructed his solicitors, and they had instructed Mr Brien, knowing the implications. We cannot, and would not, “take his side“ and remind readers we found for the respondent on 4 of 5 allegations. 6. Submissions on “extension” of time 6.1. Mr Brien submits C makes the following points in support of its claim that it would be just and equitable to extend time on this claim:[1]C’s evidence as to his reasons for the delay are that he was ‘mentally incapacitated at the time. This is supported by the ET’s findings at §2.45 that he had PTSD in April 2013 and was unfit for work . C was formally diagnosed with PTSD on 16 Oct 2013.[2]Shortly after C accepted the need for IHR in September 2013, he was invited to attend the capability hearing on 1 October 2013. This was heard in his absence on 18 October 2013, with the appeal heard on 23 December 2013. C was still trying to return to work and deal with issues internally at this stage[3]C also refers to his wife having power of attorney over his affairs which would undoubtedly have affected the time for C to present a claim;[4]In the present claim, any extension of time will result in consideration of matters seven years old at the time of the original decision, and the tribunal is required to consider this in its determination of whether to extend or not, the effect on R in the present case is significantly mitigated by the fact C’s complaint and the meetings surrounding it were all recorded in a written record. In addition, there is little factually in dispute between the parties on this specific allegation that the tribunal needed to resolve. Though the period may be long, the effect on R is limited; it is not wrong for the ET to take into account the lengthy delay between the events happening and the trial was the parties’ agreement to stay the employment claim pending the PI claim. The sevenmonth delay by C (from May-Dec 13) is in large part explained by his medical condition at the time and the fact he was still trying to reach an agreement with R to return to work. It is clear from Adedeji and Abertawe the tribunal has a wide discretion and it is for the tribunal to consider in any particular case the factors that are most relevant. In light of those factors, C submits that it is just and equitable to extend time in the present claim. 6.2. At the first hearing Mr Tinnion said it was not just and equitable to extend time because(a) the claimant had trade union advice throughout at the time he was trying to reach a solution before issuing proceedings(b) it is necessary his witness statement should put forward grounds for us to extend time because the burden rests on him to show it is just to extend time, not on respondent to show it is not, and(c) there is prejudice to the respondent in having to answer in February 2020 complaints about matters which occurred in 2012 and 2013 6.3. We rejected these submissions saying: “4.12 On point (a), for many years Parliament has tried various means to ensure before employees rush to a Tribunal, they try to resolve problems internally. That is what the claimant and Mr Redford were doing. The claimant was in no fit mental state to be making fine decisions on when to issue and even if, which we do not accept, Mr Redford should have pressed him to, applying Chohan-v-Derby Law Centre we are not willing to say there were not good reasons for any delay. If we do not exercise the discretion, patience before bringing proceedings to allow the respondent the opportunity to remedy the situation would result in a decision that great wrong was done to a claimant but he can have no remedy because he waited too long.That is not just or equitable. On point (b) the discretion is for us to exercise and our decision may be made based on the facts we have found and submissions without the point being in a witness statement. On point (c) it is the short delay in bringing the claim to which we must have regard not the delay in it being brought to trial which is the fault of neither party. This case passes all the tests in Keeble for extending time 6.4. Today Mr Tinnion submits it is not just and equitable for the ET to exercise its discretion to extend time, because: (i) 7 months is very substantially late (ii) throughout 2012 and 2013, the claimant had the support of his wife and trade union who were able to present an ET1 in December 2013 and he has not identified any reason why he (or they on his behalf) could not have presented his ET1 by 19 May 2013 (iii) earlier than 14 May 2013 the claimant had instructed a solicitor, who was giving legal advice about what he should/should not do. At OB306 SO Nutton’s log of a phone call with the claimant on 14 May 2013) includes “I tried to arrange a meeting with Officer Johnson but he said that he had sought advice from his solicitor who had advised him not to have the meeting as I would be accompanied by another person from the prison and this was in breach of medical confidence as only Officer Johnson and myself should discuss his medical issues” and , at OB320 on 23 July 2013):“Spoke with Officer Rayfield ( the claimant changed his name to this from, and later back to, Johnson) this morning and we discussed his emails and the disability act. I explained the policy and said I would put it in writing what he had asked for. Officer Rayfield informed me that he had spoken to his solicitor about his claim against the Governor and that the prison service solicitor had asked for an extension of time to the set date to respond which was originally 30th May; this has now been extended to 30th July.” The claimant said today he had not received advice from a solicitor but CM Redford may well have relayed advice the union’s solicitor had given to him. Although we accept the claimant himself was not in a fit state to be weighing up legal advice, those helping him were. 6.5. Mr Tinnion submits the claimant’s new witness evidence, seeking to explain his delay, alleges “I was mentally incapacitated so was therefore unable to submit a claim within the prescribed time limits. Even had I wished to pursue such actions my wife had power of attorney overall of my affairs as I was deemed mentally unable to manage my life’s most basic of matters” Mr Tinnion cites 39 items of contemporaneous documentation contradicting the claimant’s case that he was not fully capable of rational thought, expression, and action at the time. He points out the power of attorney the claimant mentions has not been disclosed and he was never, as he accepted, “sectioned”. 6.6. Mr Tinnion also submits the claimant’s harassment claim is extraordinarily stale: in April 2019 when the ET stay was lifted, it concerned matters already 6/7 years old; in February 2020 at final hearing, it concerned matters then 7/8 years old; now it concerns matters which occurred 9/10 years ago. He says, through no-one’s fault, the evidence has been materially adversely affected by the stay while the court claim was progressed/ resolved and the absence of witness evidence from Governors Lamb, Finlay, Fox and Jobling, Ms. Liddell, Ms. Robinson, Ms. Wetherell.[7]Relevant Law and our Decision 7.1. Guidelines on when it is “just and equitable” to hear a case presented after 3 months were given in British Coal Corporation-v-Keeble 1997 IRLR 336. The length of and reasons for the delay, whether the claimant was being advised at the time, if so by whom, and the extent to which the quality of the evidence is impaired by the passage of time are all relevant considerations. On 15 January 2021 in Adedeji Underhill L.J. said Keeble only suggested potentially relevant factors, but rigidly applying them could lead to a mechanistic approach to what is meant to be a broad general discretion. We have never thought otherwise. This is not “new” law. Leggatt LJ said in Abertawe Bro Morgannwg University Local Health Board-v-Morgan 2018 ICR.1194 " .. Parliament has chosen to give the employment tribunal the widest possible discretion. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). 7.2. Adedeji was submitted a few days outside the time limit but allowing it to proceed would have resulted in consideration of matters that went back over a considerable period. Well before Hendricks, Sir John Mummery in the EAT in Quereshi-v-Manchester Victoria University, extensively cited with approval by Sedley LJ in Anya-v-Oxford University, explained ET’s have to deal with background events from years earlier and try to keep the evidence within reasonable bounds. There is nothing new about this either. In 2001 EJ Garnon chaired Rihal-v-London Borough of Ealing. The claimant, a Sikh immigrant, had worked as a surveyor in London for many years, had not been given as many “acting up“ opportunities as British colleagues and repeatedly failed to secure promotion to higher managerial grades. His claim was brought within 3 months of two promotions he had been refused but his evidence covered historic failures to give him the “springboards“ for promotion of “acting up“. The respondent argued it was hard in 2001 to give as good an explanation as they may otherwise have been able to of why the claimant had not been given such opportunities many years earlier due to passage of time and senior managers having left. The ET said it had to make allowances for that, but as Mr Rihal’s pleaded claim was in time, it was right to consider the historic evidence. The EAT and Court of Appeal upheld our decision. 7.3. Underhill LJ held the EJ in Adedeji was right to be concerned evidence of old events was likely to be less good than if a claim about them had been brought nearer the time, but added: “Of course employment tribunals very often have to consider disputed events which occurred a long time prior to the actual act complained of, even though the passage of time will inevitably have impacted on the cogency of the evidence. But that does not make the investigation of stale issues any the less undesirable in principle. As part of the exercise of its overall discretion, a tribunal can properly take into account the fact that, although the formal delay may have been short, the consequence of granting an extension may be to open up issues which arose much longer ago” and later” the fact the grant of an extension will have the effect of requiring investigation of events which took place a long time previously may be relevant to the tribunal's assessment even if there is no reason to suppose the evidence may be less cogent than if the claim had been brought in time." 7.4. HHJ Tayler said para 4.12 of our original reasons gave the impression delay in coming to trial was of no relevance, but that was never our view, though we see how what EJ Garnon wrote could give that impression. Our reference to “the fault of neither party” was an observation that a long line of authority says where there is factual overlap between what a Court and Tribunal have to consider, the court case should go first, but if there is some claim, like harassment, which ET’s have been given exclusive jurisdiction to decide, the Court cannot deal with it and it must then come back to the ET. That this would be better avoided was a feature of Lord Justice Briggs’ report into civil justice in about 2015, but the problem remains. Were it not for the claimant’s ill health the civil claim would have been tried or could have been settled and the ET case heard much earlier. It appeared to EJ Garnon necessary to record that neither party, nor the ET, should be blamed for that. 7.5. Time limits are short because discrimination cases are fact sensitive so it is necessary for witnesses to be able to remember what was said or done, why, and the context in which it was. The sooner an employer is made aware a claim may be made, the sooner enquiries can be made of witnesses and recorded in writing, whilst events are still as fresh as possible in their memory. Leggatt LJ in Abertawe Bro Morgannwg and Underhill LJ in Adedeji spoke of prejudice to a respondent having to investigate matters which occurred years ago. The effect of the passage of time in this case is hugely different to Rihal where people who had taken routine decisions about “acting up” years earlier had moved on or retired or died before it was known a claim may be made and their decision would have to be explained. There is nothing routine about a prisoner being brutally murdered in a cell. It beggars belief extensive investigations into what happened, and why, were not made and evidence reduced to writing as soon as the respondent became aware claims against it would be made in the ET and civil courts which it was in 2013. Mr Tinnion submitted in 2020 prejudice to the respondent in having to answer then complaints about matters which occurred in 2012 and 2013 was clear and obvious. We disagreed then and now. 7.6. Mr Tinnion broke the harassment claim down to five points, all but the second of which concerned acts or omissions on which the three witnesses we heard could give an explanation and did, so we found for the respondent. Passage of time did not prejudice it at all, because those who took decisions refreshed their memories from broadly contemporaneous notes and documents. In contrast, on the IHR claim, we heard two SO’s who were obeying orders and following HR advice, and a fairly low ranking HR officer who had no direct involvement with the case and could not answer for those whose conduct caused harassment. We heard no Governor or Ms Liddell, who was still with the prison service and had been promoted. Mr Tinnion rightly says the ET was informed at the liability hearing some people had retired/left the service, but we were not told who had or when. We were not told which were not traceable. He adds “even if witness evidence had been sought (indicating it was not) from these 7 potential witnesses after the stay was lifted in April 2019, all 7 would have had to base their recollections on events already more than half a decade old”. As we have said they, like those who were called, would have notes and documents to rely upon. 7.7. It is up to a party to decide who to call but the effect of s136 EqA is that explanations for why acts and omissions occurred need to come from as many of those who took decisions or omitted to do something as can give evidence. As any advocate will know, not calling witnesses who are obviously from the pleadings and the claimant’s witness statement needed to answer his allegations may be a conscious decision that the witness is likely to do more harm than good to one’s case under cross examination or may be for other reasons. Whatever the reason, key people were conspicuous by their absence. Recently the EAT decided a second appeal in Department for Work and Pensions-v-Boyers. Mr Tinnion appeared for DWP. The EAT commented it is more difficult for a respondent to show it acted proportionately if, as happened in the case, it provided no evidence on how its decision-makers thought their actions would serve legitimate aims or had considered other, less discriminatory, alternatives. What caused the respondent to lose the one claim before us was not prejudice caused by passage of time but not calling the very people who may have explained why efforts which would normally be made to keep an experienced officer in the prison service were omitted and IHR was the single minded course senior prison managers and HR followed. We see exactly why the EJ in Adedeji decided as she did. She had a discretion and exercised it on the facts of that case because she could take into account the prejudice to the respondent of avoidably having to meet historic background evidence. Nothing in Adedeji causes us not to exercise the broad discretion on the facts of this case. There are other reasons we are not willing to exercise our discretion in the claimant’s favour. 7.8. First, Mr Brien having accepted there was no harassing conduct after 20 February we are being asked to to excuse a 7 month delay, not, as we thought in 2020, 18 days at most. 7.9.1. Second, a significant difference between what we know now and what we knew in 2020 relates to the help the claimant did have at relevant times. In 2020 we knew prison managers shunned the attempts of Ms Butler to advise them what they should do but did not appreciate Ms Butler had been assigned to a role which enabled her to take the claimant’s side and “advocate” for him as well as advising the respondent. CM Redford is a representative of the POA with access to advice from its full time officials and Thompson’s solicitors. The claimant said CM Redford would have been taking such advice if only on the court claim. A personal injury claim must be brought within three years from the injury and by 2013 it should have been underway. Even a solicitor specialising in that would know time limits in an ET are much shorter and, in the absence of evidence from CM Redford, we would be surprised if no-one at Thompsons alerted him to that. Ms Butler as a disability advisor must have known of it. 7.9.2. Fault of an advisor is not of itself fatal (Chohan-v-Derby Law Centre) and using an internal process is not in itself an excuse for not issuing within time(Robinson-v-The Post Office) but both are relevant factors. What we were told in 2020 did not convey the claimant had as much skilled advice as we now know he had. In the stricter test for hearing late claims under the Employment Rights Act 1996 Dedman-v-British Building held it may be enough that a claimant was reasonably unaware of the time limit. However, Wall’s Meat Company-v-Khan and Riley-v-Tesco Stores held if a claimant’s advisors were not reasonably unaware their fault is to be attributed to him. We have more discretion under the EqA but cannot ignore what his advisors should have realized. 7.10. The claimant’s health issues at the time is one reason argued for it being just and equitable to consider this claim. Mr Tinnion, rigorously but fairly, challenged the claimant saying he was at all times “compos mentis”. As on other occasions in this case, Mr Tinnion’s instructions placed him in the unenviable position of having to pursue contradictory lines of questioning. In 2020, he put to the claimant he was not being realistic about the gravity of his condition even in 2013, a valid question, but hard to reconcile with the respondent not admitting disability until 2019 and him now saying the claimant was himself well enough to make judgments. While we do not accept Mr Tinnion’s view the claimant’s “lack of candour is to be deprecated” but agree with his characterisation of the claimant as an “unreliable historian“. We believe he was severely impaired in his understanding and decision making at relevant times. Knowing how ill he was makes it important his advisors at the time should have taken the initiative of acting in his best interests, even without his express agreement. 7.11. The claimant told us himself today he was, at the time, desperate to get back to work, not retire, and not focused on making any claim in the ET or Courts. He was raising grievances written with help from others, which contained all manner of objections to the way he was being treated. In December 2011 he tried to speak to Ms. Liddell without success. Soon after,he suggested a temporary secondment to another prison or some post in the civil service to Ms. Robinson and asked for a meeting with Ms Liddell to discuss his options. Despite many calls, she never rang back. On 23 February 2012 he emailed her about an advertised post in the prison service webpage and had no reply. After he went sick, months went by without him being offered an alternative role. Ms Butler and CM Redford would know how the prison service works, so even if the claimant and his wife, naïvely, reasonably did not “read the signals” the respondent’s actions sent out as showing nothing would change, they should have known better. We do not criticise them as we know it is hard to tell a person one is representing what you know they do not want to hear, but sometimes such advice has to be given. As early as 11 March 2013 (see para.1.27. above), they should have realised internal processes were getting them nowhere and told the claimant to issue a s.20/21 and/or s.26 claim. Another reason time limits are short in discrimination cases is an early claim can make the employer deal with it before matters reach a “point on no return” like dismissal. As Lloyd L.J. and Sedley LJ said, set out in 2.21 and 2.23 above, a policy of the legislation is to impose relatively early cut off dates for claims which may be brought when the employment is ongoing, which both s20 and s26 claims can, to prevent a situation of neglect continuing. We would not wish the claimant, who has been through so much, to think Ms Butler, his union or its legal advisors had culpably “let him down“ ,though errors of judgment, in difficult circumstances, may have been made. 7.12. HHJ Barklem, allowing the appeal to proceed to a preliminary hearing, said “The judgment under appeal is an excoriating indictment of the treatment of a prison officer who suffered PTSD after witnessing the aftermath of the mutilation.. and murder of a prisoner by two other inmates. It catalogues a disbelieving and mechanistic approach applied by senior officers, a refusal to engage properly a disability adviser, who was viewed as of use only to deal with aids and adaptations for physical disabilities. The ET held the fact the Claimant was later given ill health retirement and his claim for damages settled did not detract from the harm done from writing him off as a hopeless case for rehabilitation to do some work long before he and his advisers were ready to do so… We agree entirely the claimant was treated very badly due to a disbelieving approach by Governors and a mechanistic one by HR. But we cannot ignore the law as to time limits just because we fell sympathy for him the question for us is whether there is enough to make it just and equitable to consider a claim seven months, or even if only three months, out of time when it could, and should, have brought in time. We find there is not. EMPLOYMENT JUDGE T M GARNON