Mr D Hooper v The Chief Constable of Nottinghamshire Police: 2600417/2021

EMPLOYMENT TRIBUNALS

Case No 2600417/2021

Between

Mr D HooperClaimant

The Chief Constable of Nottinghamshire PoliceRespondent

Before

Employment Judge P Britton

Mr O Thorne (instructed by Counsel) for claimant

Mr A Rathmell (instructed by Counsel) for respondent

Date 9 December 2024

JUDGMENT

[1]The claim of victimisation pursuant to Section 27 of the Equality Act 2010 ( the EqA) is dismissed, it having no prospect of success.

[2]The claim of direct disability discrimination pursuant to Section 13 of the EqA is dismissed as having no reasonable prospect of success.

[3]All heads of claim of harassment pursuant to Section 26 of the EqA are dismissed, save for that relating to the attendance support meeting and comments and notes thereto dated 17 - 21 July 2020. As regards that remaining head of claim, I do not make a deposit order as I cannot say the matter has only little reasonable prospect of success because it will be dependent upon findings following the hearing of evidence.

[4]An Order as to the way forward is hereinafter set out.

REASONS

[1]On 13 December 2021, I heard what was the third case management hearing in this matter; it was the second at which I had presided. Both Counsel as before me today were representing on that occasion. The Respondent had by then made application that the claims should either be struck out or deposit orders made.

[2]Against that background, I ordered this open preliminary hearing and I gave directions. These were that there should be before me today an agreed bundle (which has occurred); that if either party wanted to put statements in for me to consider, albeit that I would not be hearing live evidence, then they were permitted so to do.

[3]Stopping there, the Claimant has put in a witness statement and there is also a statement for the Respondent from Detective Inspector Claire Gould (CG). As ordered by me, I have also been provided with a cast list and chronology. Finally, both Counsel have as directed provided opening written skeleton submissions and therein made reference to the seminal authorities on the issue of strike out and also whether or not to make a deposit order.

[4]Then to assist the parties I refer back to the very detailed case management summary that I published following the second lengthy case management hearing that I heard on 24 September 2021. On that occasion, the Claimant was represented by a Solicitor, Ms R Townsend, and the Respondent by Ms G Roets, In-house Legal Executive.

[5]As is clear, one of the issues that I made plain is that there a was lack of sufficient particularisation by the Claimant in particular relating to his choice of comparators, hence why I ordered further and better particulars. Those are in the bundle before me commencing at page 53. In terms of my reference to pages in the bundle hereinafter, I will be using the prefix Bp following by the page number.

The hearing

[6]During the hearing today, I was provided with four further sets of documents. These are not page numbered as such.

[7]As to my power to strike out, suffice it to say that it is contained at Schedule 1, Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, namely at any stage of the proceedings, either on its own initiative or an the application of a party, a tribunal may strike out all or part of a claim or response on any of the following grounds and engaged in that respect is “(a) … no reasonable prospect of success;”.

[8]As to the making of deposit orders, this is set out at Rule 39(1): “Deposit orders 39.—(1) Where at a preliminary hearing … the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.”

[9]As to the jurisprudence relating to strike out, it is all set out in the two skeleton submissions. I will come back to this in due course, having set out the findings that I make as to facts, of course taking the Claimant’s case at its highest but confining myself to the documentation, including the statements before me. me.

[10]Much of the facts in this case are not in dispute, although there are some issues where they are. I will identify those in due course. Against that background, I am now going to set out the factual scenario as it is on the face of the papers before me and which are, as is perhaps now obvious, extensive. Thus findings thereto

Findings of fact

[11]Matters focus in relation to the period commencing with the change in line management of the Claimant and in that context, what was a reorganisation. Thus, the Claimant is a long-serving police officer and had risen to the rank of sergeant. He has caring responsibilities for his wife who, on the face of it, is clearly disabled. The Respondent. collectively so to speak. had knowledge of the disability but that does not mean that CG at the commencement of her involvement in this case was herself so aware. I shall come to that shortly.

Introduction

[12]There had been in the past requests by the Claimant to have flexible working given his caring responsibilities for his wife, and those from time to time were granted.

[13]There is no evidence as such in the bundle that, certainly by the time we come to the latter stages before material events, these arrangements had been formalised. That becomes important because circa 7 January 2019, the Claimant took up a role as a Complaints and Learning Sergeant (County Division) under the line management of Inspector Sam Wilson (SW). This was a somewhat arm’s length arrangement in that the department, PSD, was managed it seems from the Police Headquarters. SW was not part of PSD.

[14]Looking at the documentation and in particular that to be found in the email chain between SW and the Claimant commencing circa 23 November 2018 and running through to circa 26 March 2020, the Claimant had been allowed an informal flexible working arrangement whereby he split his shifts. What this meant was that he would it seems get up early in the morning and undertake his work in the PSD at home between around 06:00 to 07:30. Then he would stop to care for his wife first to help her get ready for her going to her job. These were what I might describe as good days. This included washing her hair for her and making sure she took her medication. Having done all that and having seen her off to her work, he would go back to his work. Then when she came home circa 15:30, he would stop again and undertake caring for her before resuming work. That was the ad hoc arrangement he had with SW. There is nothing in the documentation before me to the effect that was a formalised arrangement where there had been a written flexible working request, which had then been granted and logged with HR etc.

[15]During the period, the Claimant had regularly worked overtime and that can be seen in the various emails to which I have been referred and thence crossreferenced to the investigation report that in due course was to be undertaken in this matter by Detective Constable Laura Gooch under the instruction of Detective Chief Inspector Leigh Sanders and which investigation started 7 September 2020. DC Gooch completed her investigation report on 1 December 2020 and to which I shall return.

[16]The overtime which the Claimant applied for and was authorised by SW was extensive, but, on the other hand, it was never queried as such by her and was always authorised. What is quite apparent from the investigation report is that there was a lack of recording of what work had been undertaken specifically in terms of any overtime duties. That becomes important in terms of why the investigation to which I have referred in due course took place.

[17]The Claimant was at that stage spending a considerable amount of time home working, although obviously coming into the office as well. This could be accommodated for as part of the ad hoc arrangement.

[18]Because of concerns at the way in which the complaints and learning sergeants (which the Claimant was one of it seems three) and its lack of linking up into the overall PSD and with the coming into force of the new Police Conduct Regulations 2020, by February 2020 the Respondent had decided that it would reorganise so that these peripatetic sergeants were brought back into the PSD team to be based at the same location, which I gather was Police Headquarters. In that respect, the line manager of the Claimant would now become CG who in turn was line managed by DCI Sanders.

[19]I can detect that before the change, apart from the Claimant, these three Sergeants were Gerard Hazelwood (GH), David Egbokham (DE), but it is not at all clear from the documentation before me as to whether DE did transfer over. As per the original particulars of claim to the Claim (ET1), DE was a comparator for the purposes of the s.13 direct discrimination claim pursuant to the provisions of the EqA but he no longer is a comparator. The comparator in that respect now is, and has always been as per the pleading, GH.

[20]As per the amended Claim (see Bp 61), there is a new comparator, Police Sergeant (PS) Kate Long. I will refer to her in due course, but she is not relevant to the scenario at this stage.

[21]Dealing with another issue, which will become relevant, namely as to whether or not the Claimant knew that he ought to be keeping notes to show what it was that he was doing when he was undertaking the overtime, it is to be noted that SW did remind him, as example being the period 18-21 January 2019 (Bp 101 - 102), that he needed to log what he was doing, as an example in his day book and then respectively log it into the IT recording system and which is known as BOBO.

[22]This is important in terms of whether or not the Claimant is correct to say that he was never told that he should make sure that he was keeping records and as part of his explanation in terms of the investigation by DC Gooch.

[23]Turning to the period post the departmental change and the Claimant coming under the management of CG , she saw him and GH separately on 23 April 2020. I am not sure if these were face to face or virtual meetings. I say that because of course the country was at the height of the first round of the corona pandemic lockdowns and things such as homeworking for other than key workers. That matters because, before he transferred over from SW, the Claimant had circa 20 March made an application that he be permitted to work from home, a particular concern as an asthma sufferer being that he might otherwise be at risk. That request was accommodated (Bp 121). It meant that when the Claimant saw CG, he was homeworking and that seems to have continued to be the case until we get to 2 July 2020, to which I shall return.

[24]The Claimant as his first issue so to speak says that there is evidence of clear animus from CG to him in terms of the different way in which he was spoken to in his meeting as opposed to GH. I look very closely at the record of those two meetings (Bp 120) and of course I have heard submissions from both Counsel. It can be taken short. GH flagged up no issues. He did not require that he did not move until the requisite 28 days notice had expired. He was prepared to move there and then. The shift pattern of course was not going to alter: 08:00 - 16:00 and they discussed the logistics of the move and where he would be sitting etc. Otherwise, CG commiserated with him in terms of him failing the inspector’s exam for promotion and that she would support him if he was going to try again.

[25]The meeting with the Claimant was on the face of it considerably longer. This was because when SW told the Claimant that the requirement was to move to the PSD establishment and in that sense work in the office, he of course first of all raised that he had been given the work from home authorisation to which I have referred. It is significant to note that she had: “No issues” and in fact considered, given covid-19 and his asthma, it would be appropriate for him to so work from home.

[26]They then moved on to discussing the shift pattern and how it would not change; how he would now be based at HQ and be expected to work from the PSD and base himself there. This of course was subject to home working under the covid restrictions in the short term until the risk to him was removed.

[27]However, what then happened is that the Claimant made plain the arrangement he had viz working from home also was because his wife had her disability, ie the fibromyalgia. He went on to explain his daily caring of her, much along the lines I have already described, and how therefore SW had allowed him to operate in that flexible way with the early start to his work and then the break etc.

[28]It is quite obvious reading those notes that CG was not aware of the ad hoc arrangement he had enjoyed with SW. She stated: “I advised him that he cannot continue this arrangement as he needed to be in the office. Sgt Hooper stated that would not suit him. I advised him that he therefore needed to complete and submit a flexible working pattern to me as a matter of urgency and this would then be considered. I advised him that this needed the approval of the Head of the Department and HR. …”

[29]She also noted that she was concerned about the working arrangement he had in the sense that early starts at 06:30 were not reflected in “his DMS booking”1.

[30]She also was clearly aware of the extensive overtime to which I have referred. I can surmise because she is prima facie a very efficient manager and had obviously been familiarised at handover. I am also aware as a Judge having done many police cases that overtime is something which is invariably under scrutiny. In other words, the need to justify it and in terms of budgets. This is where the core issue begins to emerge. He advised he did overtime daily, and this was largely under 2 hours so self-paying via DMS. He advised that this was all necessary to stay on top of the workload of completing the amount of city LRs:

[31]She then said: “I then enquired as to his weekend working where largely he works most Saturdays and Sundays. Whilst I appreciate that this is not at enhanced cancelled RD pay of a minimum of 5 hours, I advised that I was concerned of the hours he was doing. This has incurred a large expense for Notts police and also the impact this has on a persons’ well-being. Rest Days are important to completely switch off from work. He again stated it was authorised by Insp Wilson and that he needed to do this owing to the workload of LRs.”

[32]She then stated: “I advised him that ALL overtime would need to be authorised by myself and that certainly weekend working would be ONLY authorised if I was entirely satisfied that this was an organisational necessity and that his needs and well-being were managed, especially in light of the significant complications he stated that his wife has been suffering with her ill health.”

[33]The Claimant alleges that in that meeting CG said to him and by reference to the overtime: “You will be under more scrutiny now.” That is the first claim brought under the allegation of harassment pursuant to s.26 of the EqA.

[34]Part of the Claimant’s case now is that this was the start of also less favourable treatment of him by reason of his association with his wife as a disabled person in contrast to the treatment of GH. So a claim based upon s13. This has become clearer today, but it is still not pleaded essentially that GH worked the same 1 I gather DMS is the system for booking hours worked and also such as overtime and thus for payment purposes. levels of overtime as the Claimant. However, I have not heard the Claimant say that GH might have had shortcomings in the way that he logged his overtime. Why that matters, and in a way I am darting back and forth but it gives the feel in this case, is that when the Claimant in the context of the Laura Gooch investigation and when interviewed with his Police Federation rep on 19 November 2020, he conceded that his paperwork was not very good and in particular because he was not “good at computers and was also so busy” (see investigation report of DC Gooch p 6. He accepted that this was with the benefit hindsight to be regretted. He never said that the same was true of GH. In the further and better particulars and in terms of reliance upon GH as the comparator, and as to the amendments see paragraph 52a at Bp 61: “The named comparator, … has been identified as an officer holding the same rank, carrying out the same role and responsibilities and undertaking overtime. The Claimant avers that the comparator is not materially different to him save that they do not have the caring responsibilities for a disabled person.”

[35]It does not say ‘undertaking the same level of overtime and with the same poor record keeping as to work done thereto’. In the run up to today, there has been no additional further and better particularisation and I learned that at no stage has the Claimant via his Solicitors requested the overtime details etc relating to GH and as to whether there was any analysis undertaken in relation to flagging up such as poor record keeping. I have already referred to the fact that there were certainly urging of the Claimant by SW that he should make sure that he was accurately recording what he was doing. There is no such documentation relating to GH.

[36]It follows that as I move forward, I do not have any evidence at all in the documentation, because it has never been sought it seems, to show that the Claimant was treated less favourably in comparable circumstances, ie overtime and more important record keeping, than GH and this is without getting into the real reasons why the Clamant came under scrutiny, to which I shall come in due course.

[37]Turn it around another way and there is no evidence before me and it has not been pleaded to any degree, that GH was undertaking the same levels of overtime and equally failing to record the same and so there should have been just the same concerns flagging up from 22 April in relation to him as opposed to the Claimant.

[38]What it means is that on the face of the papers, given the substantial amount of overtime that came to light, that any reasonable manager would have been entitled to raise the same in that first meeting with the Claimant on 23 April. The second point is that as CG clearly did not know about the ad hoc arrangement with SW and learned about the Claimant’s caring responsibilities only in that meeting, that as a responsible manager she would have been expected to discuss it with him.

[39]The final point to make is taking the Claimant’s case at its highest for CG to have told the Claimant that he would be under scrutiny from now on, is on the face of it is a reasonable approach given the very high level of overtime which in due course was found to be “inordinate”.

[40]It may be that the Claimant felt aggrieved that this was being said to him but when it comes to harassment (and I will deal with the definition in due course) is to remembered that context is crucial. It follows that as I move forward, at this stage I make plain that I find that that element of this case in itself does not lend weight to an accusation of harassment as per s.26.

[41]The next point to make is that if as alleged CG was adverse to him being in her team from the word go inter alia because of his caring commitments, then how is it that the Claimant having submitted his flexible working request whereby he would start at 08:30 and end at 16:30 CG immediately granted it as to which see Bp 125 – 127? I am with Counsel for the Respondent that it just does not square. The fact that the Claimant had decided to make a flexible working request limited to that change in his hours from the start time of 08:00 rather than seek the same ad hoc arrangement that he had with SW because he was reluctant to ask for more lest he be viewed unfavourably, is irrelevant. If he does not apply for it from CG, then how can she be said to be displaying, if that was to be inferred, an animosity towards him because of his caring responsibilities. To turn it around another way, her granting of that flexible working request is inconsistent with the allegation against her.

[42]The next material thing that happened is that on 2 July 2020 CG wrote to the Claimant and important is she copied in her superior, Superintendent Donna Lawton. A core part of it read (Bp 137): “… Ma’am Lawton has done a review of those in the Dept working from home. She has reviewed all the personal assessments that were completed in line with the wishes of the Chief and the further easing of the Government guidelines from 4th July. She has therefore asked that you return to working from the office from W/C 4th July. Your flexible pattern working 0830-16:30 is obviously still approved. …” It is to be noted that this was at the behest of the Superintendent obviously having discussed matters with the Chief Constable, and not of CG.

[43]In the interim, the Claimant had raised concerns about his work levels circa 8 June 2020 and GC had replied in what is not an unsympathetic way and the Claimant had assured her he could cope. In any event, having had the requirement that he must now return to working in the office, the Claimant was signed off for one month with work-related stress. This was to be extended by a further sicknote and in fact the Claimant was not to return to work until 27 October 2020.

[44]This brings me to the attendance support telephone meeting that CG had with the Claimant on 28 July 2020 in terms of keeping in touch with him in terms of his absence as per the Respondent’s appropriate procedures. CG’s note of that discussion commences at Bp 143. Most of it cannot be read because of the poor photocopying. The Claimant pleads, as per paragraph 31 of the amended Particulars of Claim (Bp 57): “31. The notes include the following comment by Insp Gould ‘Dave has been asked to reflect on how he can alter this situation and to consider if there are any roles that he feels able to complete around this caring angle. It is not considered that he can discharge his duties adequately with the distraction of caring’. …”

[45]Obviously, this must have been in the context of them discussing the reasons for the Claimant’s absence, CG doubtless reminding herself of what the Claimant had said on 22 April and of his caring responsibilities and also her knowledge of the extensive amount of overtime he was doing, and I would detect as to whether all of this was having an impact upon his health in terms of the demands of the job, the doing of the extensive overtime and then of course his caring responsibilities, which also included daughter who was also now suffering from a similar complaint as that of his wife.

[46]Before I deal with that point, the Claimant therefore says that as per paragraph 32 that her having therefore requested him “… to consider adjustment to his working day (part time) and also if another department/role would be more suited to his home situation.” that in effect she was making a clear indication that she did not want him in her department. But, and it is a hallmark of the Claimant’s case, this is not a correct presentation of what she actually did because in sending him the notes with her email of 22 July (Bp 142), she stated at para 2: “I have also added for you to consider if more flexible working/part time/reduced hours or if a different role would suit you.”

[47]In other words, she is not ruling out his continuing to work in her PSD department as is obvious from the reference to flexible working. The Claimant cannot do part-time because he cannot afford to because his wife only works part-time, thus, he cannot take reduced hours. She is not ruling out that he could remain in the PSD undertaking the role with more flexible working.

[48]So, what do I make of this particular point because it is the second allegation of harassment? Prima facie, to refer to: “It is not considered that he can discharge his duties adequately with the distraction of caring” is an unfortunate phrase, particularly given the word “distraction”. Therefore, seen in isolation, there may be well a case to answer; certainly one that requires an explanation from the Respondent, ie via CG2, as to why say that and is it harassment within s26 in the context? Although for reasons I shall come to, it has to be borne in mind that she was not ruling out he could make a further application for flexible working. In due course this he was to do, in effect whereby he would get back 2 Her statement is silent on the issue. the situation as it was under SW with that kind of shift pattern. As it is, that request never got dealt with for reasons I am not clear about, other than it may have been overtaken by investigation events and the fact that the Claimant then moved to a different Department, taking up a post in Ashfield at the beginning of 2021. 48. In any event, the Claimant took issue with what he perceived in terms of CG and the note of their discussion and so wrote a detailed email to her on 28 July 2020 (Bp 141). This is pleaded by the Claimant as being a protected act for the purposes of his victimisation claim pursuant to s.27. It is written in strong terms. Clearly the Claimant was upset, and I bear in mind that he was unwell by now suffering from stress, which was later to be further diagnosed as anxiety and depression, but inter alia he took up the point as he perceived it: “… You add that this new role is busier due to the new police regulations and that due to the busier nature of this role you feel that I can not discharge my duties adequately with the distractions of caring, but I feel that this is a flawed argument as I was always working at capacity …”

[49]This was by now an issue which is obvious from the correspondence and goes to the issue of the Claimant being required to cease homeworking: Secondly I also object to the use of word adamant, where you explain that I was adamant that I would not be returning to work after the end of the current sick note. I am currently off sick with stress/depression and I can not see a way forward at the moment. This shows a lack of understanding and empathy of the situation that I am experiencing. As I have highlighted I have spent the last 15 years trying to balance my work with my caring responsibilities and even with the introduction of the Equality Act 2010 I find that I am still having the same struggles with the same lack of empathy from Nottinghamshire Police, who as a public service is required to champion such legislation.”

[50]Just dealing with this chapter of events, the Claimant then followed that up at the request of CG with more detail in terms of his modus operandi and the working day and in the context of his caring responsibilities and he added to that by a second email on 5 August.

[51]Taking it simply, the first of those emails (which is extensive) sets out first of all a good normal working day and the level of care that he still has to give his wife. Firstly in the morning (and I have already touched upon this) to get her up from bed, fed, assist her to go out for work (at the very least washing and drying her hair) and in the evening: “cooking the family meal and the usual household chores”. He then gave details of what happened on a bad day and I have already referred to that. So that would mean that his wife would need longer to be able well enough to go to work and thus putting back a start time; that would thus: “… push the above tasks back at least a couple of hours”. He went on: “Then there are the days that she is simply too ill to get out of bed and will require looking after throughout the day with medication, food and drink. … On top of this there are the caring responsibilities throughout the night, providing pain relief to both my wife and daughter on most nights, this point would make working on response unsuitable as well as the point of having to take unpaid leave on the bad days to care for either of them as there would be no facility to work from home whilst caring for my wife or daughter …”

[52]He then went on to refer to: “Whilst working from home would be the ideal, and I have clearly demonstrated over the past 18 months that I am able to work from home with no issues for either the organisation or my caring responsibilities, I can see that with some adjustments I can continue to work in my current role. As I see it these adjustments would include the option of on a bad day, when either of my loved ones are too ill to leave the house, of working from home. Any hours that I can not complete throughout the remainder of that (sic) day can be either taken as toil or made up at another time. On the days that my wife attends work late then I could work from home whilst she recovers and then after the normal morning routine is completed is completed make my way to work, again any loss of hours could be taken as toil/A/L or made up on another day.”

[53]He then referred to how he could not work part-time because of the need for income and that his asthma was persistently moderate and therefore does not present him from working as such. At that stage on 21 August 2020 he made the second application for flexible working, to which I have referred. So, the third allegation of harassment is actually being asked to provide this information.

[54]But, in the context of CG on the face of the papers needing to deal in terms of the Claimant with a member of staff who was ill for the reasons I have given and who had already main plain that he had caring issues but was working extensive overtime, is it actually objectively harassment to ask for this information in order to be able to consider the way forward? The answer on the face of it is that it is not.

[55]So, it means that we move forward in terms of my adjudication to the core issue and whether it could be said that these incidents, which I have now dealt with, in context form part of overall harassment. If they do not, then there is only one identifiable matter that might just constitute harassment and therefore could get over the fence of strike out and that would be the reference as per paragraph 31, to which I have referred.

[56]Otherwise, encapsulated on the face of the papers there is no evidence that the Claimant was being treated in a discriminatory/harassing manner by CG. In fact, what the papers show is that she was endeavouring to accommodate for the Claimant’s need for flexible working and had granted the first request and had in effect invited him if he wanted to, as well as other options, put in an application for further flexible working. She had been behaving in a professional way in terms of trying to find out what his issues were and the underlying reasons for his absence and whether in fact the Claimant was simply taking on too much and in that context so much overtime in the context of such extensive caring responsibilities. Looked at like that, this allegation of harassment is very weak, at best. Limb two of this case - the investigation process

[57]This brings in the procedures under the Police (Conduct) Regulations 2020. When the perceived excessive levels of overtime issue first flagged up in the PSD hierarchy at the transfer into it of the Claimant, it was not just CG who was concerned of what appeared to be inordinate levels of overtime. It is quite clear that this concern was either led by or shared by her superior, Detective Chief Inspector Leigh Sanders. What happened is that the matter was put forward for investigation under the Police (Conduct) Regulations 2020. Detective Chief Inspector Leigh Sanders was appointed the appropriate authority for the purposes of those Regulations. There was an investigation undertaken, as to who by I do not know from the papers.

[58]The documents on this matter came in during the hearing over the lunchtime, it having become obviously material that they be considered. Suffice to say that there was a first investigation, to which I have referred, out of which is undertaken what is known as a ‘severity assessment’ as whether that established during the investigation is such as to warrant taking the matter further forward. This of course could involve such as disciplinary action.

[59]Summarised, what that first investigation established, which I have now touched upon in any event, is that the Claimant had always asked for authorisation for the overtime which he then worked under the auspices of SW. But, because she was not in the same Department as him, in other words this was a loose supervisory arrangement, she would not in fact have the same budgetary concerns as might for instance CG and therefore a need for scrutiny as to the justification for the overtime.

[60]The point then being is that it could not be said that the Claimant had undertaken unauthorised overtime and in that sense therefore cheated the system, so the matter was not pursued although it was noted that there was very little recording, if any, by the Claimant as to what work he had actually done in terms of a case when doing this overtime. Put at its simplest, therefore, the matter was left at that stage in terms of there not warranting a severity rating, but it is to be noted that DCI Sanders did reserve the right to review in the future; in other words if something additional emerged.

[61]What then happened is that when the Claimant had given the details of his day in a life so to speak to CG, when she looked at it she was concerned that this was incompatible with the level of overtime that the Claimant said he was working and also particularly as to working so much of it at weekends and given his caring responsibilities. That meant that via CG and DCI Sanders, the matter was re-referred and DCI Sanders was formally appointed as a review officer under the Police (Conduct) Regulations 2020. Under the protocol, once an investigation had been undertaken and a report completed, it is his function to then consider if further action is warranted and if so to decide what the outcome should be. The lowest form of outcome, other than of course it being found there is no case to answer, being the issuing to the police officer under investigation of what is known as a ‘Practice Requiring Improvement’ (PRI).

[62]I agree with Counsel for the Respondent that as per the Regulations, which are before me, that this is not a disciplinary penalty; it is intended to be a mechanism by which a performance failing can be improved upon, although I will accept as per Counsel for the Claimant that the police rank and file may nevertheless perceive it to be a disciplinary sanction.

[63]All that needs to be said is that the investigation was undertaken by Detective Constable Laura Gooch. That report is in the additional bundle of documents provided to me today in what I will refer to as document 3 and between pages 1-12. It was clearly a very thorough investigation. In the context of it, the Claimant was interviewed in the presence of his Police Federation rep, although not by Detective Constable Gooch as she was unwell on that occasion. He had also prior thereto put in written representations. What DC Gooch concluded against the background of the already established extensive overtime as authorised by SW prior to the taking over of management of the Claimant by CG and with little regard to budgetary constraints or assessment as to the actual need for the overtime, was that most importantly there was now the issue of whether the Claimant had perhaps not worked that overtime because he had in fact been caring for his wife at the material time or having been unable to complete his duties in his normal working hours because of the burden of caring for his wife and daughter, he therefore by inference cheated on the system by instead working at weekends and claiming overtime to clear up work he ought to have done during his normal working week.

[64]The Claimant gave a full explanation that he had always been able to juggle his caring responsibilities with undertaking his work, and that the overtime had always been genuine because the team was hard pressed in dealing with all the complaint investigations and therefore, being a man short, that is why he had worked the overtime.

[65]The only issue to him was that he had not properly recorded it. The Claimant says that this is down to shortcomings in the system. That does not really square with what he said during the interview or indeed his meeting with DCI Sanders on 25 January 2021 when he was given the PRI.

[66]Boiled down, it was as I have already stated an acceptance that he ought to have made sure his worked was recorded and in a way capable of scrutiny if necessary, and which really fits with what I have already noticed in the emails back in 2019. That was what he was reminded so to speak to do by Inspector Sam Wilson (SW). But he blamed it on his not being “good at computers” and not particularly good at paperwork and in that context being “too busy”.

[67]DC Gooch’s conclusions summarised were :67.1 Overtime was always authorised even, if it was through an inefficient or insufficient supervisory line management.

67.2 No evidence that it was not undertaken.

67.3 The concern however about the Claimant’s lack of keeping records of exactly what work he had been doing obviously therefore to justify on audit the expenditure on the substantial overtime and not undermine the integrity of an overtime claim, needed to be addressed with him.

[68]That therefore led to the decision of DCI Sanders dated 6 December 2020 commencing Bp 151. These are very thorough conclusions by him. On a balance of probabilities, he ruled out that there was a case of misconduct to answer. However, he was concerned at what had been disclosed regarding the shortcomings in record keeping and time management, hence the justification for issuing a PRI for the reasons I have gone to.

[69]Read closely, and it is quite clear that DCI Sanders was giving the Claimant the benefit of the doubt in terms of that he had actually done this work because there was no evidence to establish that he had not. On the other hand, it could be observed that there was little or no evidence that he had actually done the work apart from what he said but of course he was a long-serving officer of the rank of sergeant.3 Hence the decision.

[70]The final point to make is that it is said by the Claimant that he ought never to have been issued with the PRI by DCI Sanders; instead, it should have been his direct line manager, which by now was Mark Dixon at Ashfield. But, in the meeting with the Claimant, him having his Police Federation rep present, and at which DCI Sanders gave his outcome and thence issued the PRI and in a meeting which clearly went back and forth in terms of “challenges”, he justified why he was giving the Claimant the PRI as follows: “Informed by time briefed Insp Dixon of the issues, facts, complexities - PSD centric, to save time and also embarrassment4 to DH. DCI LS would deliver the PRI. …”

[71]It is to be noted that the Police Federation rep did not object. The Claimant, as per his statement and in terms of providing in a sense more particularisation to the amended Particulars of Claim on this topic, is saying that even if the Regulations do provide that DCI Sanders could give the PRI as an officer of at 3 Due to his long serve he has now taken retirement. 4 My emphasis least a rank above the Claimant rather than his own line manager, nevertheless there is a custom and practice that this will not occur. I have no details of that today. However, I again observe in terms of assessing the strength of this case that on the face of it, as the Claimant was going to be starting a new role in Ashfield and given his exemplary service, it would make obvious sense for him to be given his PRI by DCI Sanders because that way it could be kept from the knowledge of Mark Dixon, hence saving the Claimant embarrassment. I fail to see how in the context of the Equality Act 2010 it follows that this can be an actionable head of claim. How can it be detrimental? Factoring back in the direct discrimination claim

[72]That brings me to the second comparator relied on by the Claimant in terms of his s13 direct discrimination claim. The Claimant relies upon Sergeant Kate Long on the basis that she received her PRI (incidentally for an entirely different concern unrelated to PSD) from her line manager. I know no more. Given my findings on the face of the papers I fail to see how a comparator in the same circumstances and by now transferred and with the long service of the Claimant would have been treated any differently in terms of keeping the new line manager out of the loop and because it avoided such as embarrassment. Turn it round another way, if that didn’t happen in the case of Sgnt Long, then the Claimant has been treated more favourably. I had already made that observation to the Claimant through his Counsel.

[73]I have already dealt with why reliance on GH as a comparator does not work. It follows that the direct discrimination claim is struck out as having no prospect of success. Back to harassment

[74]As to the other heads of claim on this topic it is alleged that the issue of the Regulation 17 notice constitutes a further act of harassment. This is the notice that is served upon the officer at the first stage following the initial assessment of the concerns on the basis that it meets the severity threshold for further investigation. This is at Bp 149-150 dated 2 December 2020. Set out is what the allegations were, stemming from the DC Gooch investigation, essentially revolving around the overtime, which incidentally was claimed on 125 occasions between 1 August 2019 and 19 April 2020. Essentially that: “The written representations you made to your line manager on 29/07/2020, around your caring responsibilities , do not correlate with the fact that you have worked so much overtime. The long hours you have worked previously is not commensurate with the difficulties and demands that you portray as being evident in your home environment, particularly when you cite that you could use TOIL/AL to make up the deficit in hours, when in fact you have been working a significant amount of overtime rather than having to use ‘time off’ to ensure your caring obligations are met.”

[75]So, the boxes were ticked as to this being potential ‘Misconduct’ therefore requiring that it would need to go forward to a misconduct meeting but it is to be noted that this document is clearly headed: “NOTICE OF THE ALLEGED BREACH OF THE STANDARDS OF PROFESSIONAL BEHAVIOUR”. I stress the word used is ‘allegation’.

[76]The Claimant sees this as harassment in that thereby his integrity and honesty are called into question. Of course, it may be apropos the definition of harassment that this would be unwanted treatment and clearly in the mind of the Claimant and his perception that it was at least humiliating, but again is back to the crucial point about harassment, which is the importance of the context and third whether or not it is objectively reasonable for the conduct complained of to have that effect ie of constituting harassment as defined. I will come back to the definition.

[77]To turn it around another way, there was prima facie evidence to warrant an investigation. Objectively this police force, or any other such establishment, would be failing in its duty to the public if there was no investigation, given the high level of overtime, the lack of any real records that this actually had been worked and now this evidence coming to light via the Claimant setting out that which in a day needed to be devoted to his caring responsibilities and if therefore that could square with the overtime claimed and when it was worked.

[78]The point then becomes that the investigation itself cannot be faulted; there is nothing wrong with it and the outcome results only in a PRI where the Claimant himself had accepted that his record keeping/noting of what he was doing was not as it should have been and which with the benefit of hindsight he regretted. Those are clearly matters that would therefore need to be addressed, as was made clear by DCI Sanders and it was not really opposed by the Police Federation rep. It follows that it is very difficult to see how that chain of events would constitute harassment. Summary overall viz harassment

[79]In summary therefore what I have in relation to the harassment, really leaves only one issue which has any triable substance to it, namely did CG say on 17 July 2020 or in her note of 21 July 2020: “It is not considered that he can discharge his duties adequately with the distraction of caring”. In itself, and I shall now come to the definition, that could constitute harassment but of course it is very much in isolation given the rest of my findings.

[80]Therefore, that brings me to the definition of harassment - s.26 Equality Act 2010: 26 Harassment (1)A person(a) (A) harasses another

(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to 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;

[81]I remind myself of the importance of context and the Judgment of Mr Justice Underhill (as he then was) in Richmond Pharmacology Ltd v Dhaliwal

[2009] IRLR 236

EAT. Given the circumstances and the issues that warranted investigation and which are so obvious on the papers, then despite the perception of the Claimant, taking the other circumstances and thence coming to limb (c), which is an objective test, was it reasonable for this conduct in the context to have the effect thus it is harassment? For reasons which I hope are now abundantly clear, even taking the Claimant’s case at its highest but going on the face of the papers, in all respects, save for the remark of CG that I have referred to, I conclude this case has no reasonable prospect of success.

[82]That brings me therefore in that context to the case law summarised on strike out. It is accurately set out by both Counsel but I will in particular refer to Mr Rathmell’s skeleton submissions and commencing at paragraph 9 and his reference to Malik v Birmingham City Council [2019] 5 WLUK 707 (EAT) per Choudhury J at paragraphs 30 to 32.

[83]Therein, the Judge of course sets out that striking out of a discrimination based claim is a draconian step and should only be taken in the clearest of cases. He then recites the well-known principles of the Court of Appeal in Mechkarov v Citibank N. A.

[2016] ICR 1121

and inter alia 31(4): “(4) if the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out …”

[84]Furthermore, at paragraph 32: “… ‘the time and resources of the ET’s ought not be taken up by having to hear evidence in cases that are bound to fail’.”

[86]Taking the correspondence trail the integrity of which is not disputed, in other words the Claimant has not said any of it is fabricated, as is obvious from my rehearsal of the same I just cannot see how any Employment Tribunal would be able to find that this chain of events constituted harassment. It follows that I find that it has no reasonable prospect of success.

[87]It follows that the only element of the harassment claim which is permitted to proceed is the allegation relating to the observation/remark of Detective Inspector Claire Gould (CG) on or about 17 July 2020 as per Bp 143 - 145. Albeit that remains as an isolated harassment allegation confined to itself and therefore a very limited issue, I cannot say it does not have only little reasonable prospect of success because it will require the questioning of her. The Claimant should of course be aware that it is a claim which has very limited value, if any, in the context of matters. Victimisation

[88]The following is the definition - s.27 EqA 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— … (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. …”

[89]As to the heads of claim as per the amended particulars viz victimisation, first of all prima facie the email of the Claimant to CG of 28 July 2020 is, as I have already stated, potentially capable of being a protected act. The issue becomes was the investigation, starting with the Claimant being given the first Regulation 17 on notice on 2 September 2020, a detriment which was because he had made that protected act?

[90]Stopping there, obviously to be subjected to a potential misconduct investigation with all the anxiety that would cause a long-serving police officer is in itself a detriment. But was it taken for perverse reasons which might be an indication as to whether it is therefore a detriment because he has made the protected act? Prima facie for all the reasons I have given, and it flows through from the documentation, whatever the Claimant might think, ie his perception, objectively the documentation shows to me conclusively that there was objective justification. It follows that the Claimant could only get off the ground on this accusation if he was seeking to say that it was improperly started at the inception of CG or, given that this was a joint referral, Superintendent Lawson. The Claimant is very vague in his pleading in that respect, as to which see Bp 60, paras 47 - 49. He gives no particularisation as to who the perpetrator was. On the face of it, there is this clear-cut justification for the inception of both the first and the second investigation, as to which objectively it cannot be faulted, certainly nothing would flag up to indicate there was any perversity about the way in which it was conducted or the findings. Albeit the Claimant might say that the outcome is “saving face”, it does not square with the content of the report or the reasoning of DCI Sanders, and which I have now rehearsed.

[91]It follows that taking his case at its highest, the Claimant is left with hoping that he can by way of cross-examination of such as CG establish such a causal link between the protected act and the inception of the process. But there is nothing wrong with what happened thereafter and objectively the conclusions are such as to mean, apropos Mechkrov , that this part of the Claimant’s claim on the face of it is “totally and inexplicably inconsistent” with undisputed contemporaneous documents. In any event, this unparticularised hope, as it seems to me, that something might turn up through cross-examination is such in the context as per paragraph 32 of the Choudhury Judgment to mean: “… ‘the time and resources of the ET’s ought not be taken up by having to hear evidence in cases that are bound to fail’.”

[92]It follows that I am dismissing the victimisation claim as having no prospect of success. The direct discrimination claim

[93]Engaged is s.13 of EqA: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. … (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. …”

[94]This case is brought as one of disability discrimination by way of association, namely the Claimant’s disabled wife. The first core question of course needs to be resolved, which is who is the comparator? This I raised at the first case management hearing before me on the basis that there appeared to be little detail provided of who was the comparator and why. We then got the further and better particulars. I have now made reference to that and the fact that Sgnt Kate Long cannot be sustained as a comparator and which leaves GH. As to the shorter discussion CG had with him as opposed to the Claimant in April that is not relied upon. In any event I have already dealt with that.

[95]As per para 51k- n (Bp60) of the amended particulars of claim there are four claims based on less favourable treatment: “k. Having his ability to carry out and discharge his full time duties called into question by Insp Gould in the ASM notes provided on 21 July 2020”.

[96]Claims l- n relates to the misconduct proceedings; the issuing of the PRI ; and its being issued by DCI Sanderson.

[97]As to para 51k, Mr Thorne in his written and oral submissions does not focus on GH as a comparator in this respect. And in the further and better particulars there is no construct as to a hypothetical comparator. Very little is said as to why this is a direct discrimination claim. This is important as per s.23 EqA; “23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, … there must be no material difference between the circumstances relating to each case.

[98]Prima facie as submitted by Mr Rathman the correct comparator would be by example a serving police officer who as a single parent had extensive child caring responsibilities and whose juggling with work and caring issues in the same way as the Claimant might well have been questioned in the same way. No argument has been pleaded for the Claimant that this would not be the comparator or as to who the comparator is other than GH, but he cannot be the comparator as there is no evidence that he is in similar circumstances as per the definition to the Claimant.

[99]Suffice to say that for the reasons I have already given I find weight in the arguments of Mr Rathbone. It follows that I conclude that this head of the direct discrimination claim has no reasonable prospect of success.

[100]And that brings me to that the primary focus in terms direct discrimination is on the investigation / overtime issue. As to reliance upon GH being the comparator, the Claimant has provided no details whatsoever in that respect other than at para 52a (Bp 61): “…and undertaking overtime …”. The fact that he might undertake overtime is not the issue. For him to be a comparator, as I have already said it has to be that he also undertook a similarly high amount of overtime working as the Claimant and in similar circumstances with the regime outside work being prima facie incompatible in terms of commitments with the overtime claimed and when it was being taken. Finally, into the equation would be similar deficiencies in record keeping of work undertaken. So the Claimant has failed to provide these particulars.

[101]Otherwise the Claimant is relying on a hypothetical comparator, ie para 53: “… being a Police Sergeant in a similar role undertaking overtime who does not have caring responsibilities for a disabled person …”

[102]But the same comparator applies as per the first limb of the direct discrimination claim for reasons as already given.

[103]The Claimant had ample opportunity prior to today, given I had raised issues about comparators and the need to get it clearer and that I had ordered back in December this hearing and that the parties were to agree a bundle, to have applied for such discovery as he considered to be relevant to deal with the issue of whether or not there was evidence that the police force does so act in comparable circumstances with other policemen and which he has not done. There has been no such request and his Counsel who in submissions I do appreciate has done his valiant best, has not sought to argue that there should be an adjournment because there had been such a failure to provide material disclosure for the purposes of dealing with the issues before me today and by the Respondent Solicitor in the run up to this hearing. I make clear that this has not been alleged.

[104]Thus it follows that the Claimant has deployed no substance to his contention that the comparator would have been treated more favourably. Put simply there is no evidence that this police force would not, faced with these potential issues of abuse of the overtime system, have incepted the second investigation against any police officer in its ranks and irrespective of whether it be a person caring for disabled partner or on the other hand a single parent with caring responsibilities.

[105]And it then logically flows that the same must apply in terms of concluding that there was a need to issue a PRI notice.

[106]Also for reasons I have already given, administering the PRI by other than a new line manager following a transfer to another division so as to avoid embarrassment to the Claimant and thus give him a fresh start.

[107]It follows that on the face of the papers the Claimant’s case of direct discrimination is “conclusively disproved” and is “totally inexplicably inconsistent” with what is undisputed contemporaneous documents.

[108]And finally letting the case proceed on the basis of the Claimant clutching at a straw in the hope that something might turn up under cross-examination would be such that the time and resources of the ETs ought not to be taken up by having to hear evidence in a case that as of now is bound to fail.

[109]Thus, it follows that I dismiss in its entirety the direct discrimination claim. The way forward

[110]It means that the only claim that I am allowing to proceed is the claim of harassment relating to Detective Inspector Gould and the remark that prima facie she may have made in her note on 21 July 2020.

[111]The parties must now of course consider their options in terms of whether this case is to proceed or whether this residual matter is capable of resolution without the need for the tribunal, given its very limited compass. Accordingly, I direct as follows:

[1]It is just and equitable to extend time so that all claims are deemed presented in time; but

[2]All claims of harassment related to disability fail and are therefore dismissed;

[3]All claims of victimisation fail and therefore and are therefore dismissed; and

[4]All claims of direct discrimination because of disability fail and are therefore dismissed.

[5]Mr Hooper brings claims of harassment related to disability and direct discrimination because of disability and also brings a claim of victimisation. Page 1 of 31 The disability is not his but is that of his wife and therefore he is relying on his association with her. The Police deny the allegations. The hearing

[6]The hearing proceeded as follows: 6.1. Ms R Mellor, Counsel, instructed by Rebian Solicitors represented the claimant. 6.2. Mr G Allsop, Counsel, instructed by East Midlands Police Legal Services represented the respondent. 6.3. We heard the following oral evidence: 6.3.1. On the claimant’s behalf from the claimant himself, 6.3.2. On the respondent’s behalf from (and identifying them by the posts and ranks that they held at the times relevant to this claim): Insp Claire Gould, Inspector and Line Manager of Mr Hooper from April 2020, DCI Lee Sanders, Detective Chief Inspector and Second Line Manager of Mr Hooper, and DC Laura Gooch, Detective Constable who is the Investigator in the Professional Standards Department (PSD). We have taken into account all of the oral evidence when we made our decision. 6.4. There was an agreed bundle of 264 pages. We have taken into account those pages to which the parties have referred us to in either evidence or submissions. 6.5. The case was listed for 6 days. The evidence finished on the 3rd day and the parties made submissions on the 4th day. However, our deliberations took longer than envisaged. Therefore, we used 2 of the remaining days to deliberate. 6.6. Because of the complexity of the issues, and with the parties’ agreement, we have dealt only with liability. If remedy were required, the Tribunal would list another hearing. 6.7. During the hearings, we took a 5-minute break every 30 minutes to accommodate Mr Hooper as a reasonable adjustment. We also took the other usual breaks, such as lunch. We sat from 10am to 4pm or thereabouts. No party requested other reasonable adjustments or appeared to require them.

[7]No party has complained this was an unfair hearing. We are satisfied the hearing was fair.

[8]We decided that we would reserve our decision. This is that decision. It is unanimous. Issues

[9]The agreed issues before the Tribunal at this hearing are as follows. The claimant took the approach of cross-referencing to the grounds of Page 2 of 31 complaint. For avoidance of any doubt or making a mistake summarising the claimant’s complaints, we quote it in full. 9.1. Did the Respondent engage in the conduct set out below? 9.1.1. Comments made by Insp Gould on 23 April 2020, informing the Claimant that he would be under more scrutiny; 9.1.2. Comments made by Insp Gould on 17 July 2020 during a telephone call, questioning the Claimant’s ability to work regular overtime if he had to care for his wife and daughter; 9.1.3. Comments made by Insp Gould included in the Attendance Support Meeting (ASM) notes and sent to the Claimant on 21 July 2020: 9.1.3.1. “Dave has been asked to reflect on how he can alter this situation and to consider if there are any roles that he feels able to complete around this caring angle. It is not considered that he can discharge his duties adequately with the distraction of caring.” The Claimant believes the reference to ‘this situation’ is his need to care for his wife and daughter. 9.1.3.2. “I have also asked him to consider adjustment to his working day (part time) and also if another department/role would be more suited to his home situation”. 9.1.4. Having his ability to discharge his duties adequately being called into question; 9.1.5. Being asked to set out a ‘typical day’ by Insp Gould in July 2020; 9.1.6. The narrative set out in the Regulation 17 Notice, as set out at para 36 above; 9.1.7. Having his honesty and integrity called into question; 9.1.8. Being subject to an investigation by Professional Standards Department (PSD); 9.1.9. Being subject to the recorded interview on 19 November 2020; 9.1.10. Being given Performance Requires Improvement advice (PRI) by a Chief Inspector of PSD. 9.2. If so, was that conduct unwanted? 9.3. If so, was that conduct related to disability? 9.4. If so, did that conduct have the purpose or effect of Page 3 of 31 9.4.1. Violating the Claimant’s dignity; 9.4.2. Create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. 9.5. Was it reasonable in each in those circumstances for the conduct to have that effect? 9.6. There is no dispute that the claimant’s email to Insp Gould on 28 July 2020 was a protected act within the meaning of section 27 Equality Act 2010? 9.7. Was the Claimant subject to detrimental treatment as a result, namely: 9.7.1. Being served with the Regulation 17 Notice on 2 September 2020 and subject to misconduct allegations and investigation by PSD; 9.7.2. Being sanctioned and provided with PRI on 25 January 2021. 9.8. If so, in each case did the Respondent subject the Claimant to the treatment because of the protected act or because he believed that he had or? 9.9. Was the Claimant subjected to the following treatment? 9.9.1. Having his ability to carry out and discharge his full time duties called into question by Insp Gould in the ASM notes provided on 21 July 2020; 9.9.2. Being subject to Misconduct Proceedings under the Police (Conduct) Regulations 2020 (the Conduct regulations) on 2 September 2020; 9.9.3. Being sanctioned and provided with PRI on 25 January 2021; 9.9.4. Having the sanction meted out by PSD on 6 December 2020. 9.10. If so, was the Claimant treated less favourably than DS PQ, Sgt ST, or a hypothetical comparator was treated or would be treated? 9.11. If so, was the less favourable treatment because of the Claimant’s association with a disabled person? 9.12. Did the acts which occurred fall outside of the three months’ timescale preceding the presentation of the Claimant’s ET1 and/or did acts form a continuing act? 9.13. If so, should the Tribunal use its discretion to allow the claim if it is just and equitable to do so? Page 4 of 31

[10]Issues of remedy do not arise at this stage. Findings of fact Witnesses

[11]Our conclusions about the quality of the witnesses’ evidence are as follows. 11.1. We are satisfied that each witness did their best to tell us what they honestly believed the situation to be. 11.2. We have concluded however that Mr Hooper is not a reliable witness. We were left with the impression that he is viewing offence with the benefit of re-interpretation and that his evidence therefore cannot be relied on. In his evidence in cross examination, he demonstrated to us that he had changed his mind on an interpretation of what happened. This is exactly the sort of revision of memory that Leggatt J cautioned tribunals to watch out for in Gestmin SGPS SA v Credit Suisse (UK) Ltd and aor [2020] 1 CLC 428 HC(Comm) at [15]-[22]. His Lordship’s guidance has been applied in many jurisdictions and we see no reason it cannot apply to evidence to a Tribunal, provided we remember that it is not a rule of evidence (see Martin v Kogan

[2021] FSR 10

CA) For example: 11.2.1. There was a meeting on the 20 July between Insp Gould and Mr Hooper. At the time he saw it as positive. Now he has a very different view which derives from how event played out much later. 11.2.2. He confirmed in answers to the Tribunals questions that it was only on 2 September when he was served the Regulation 17 Notice (as to which see below) that he saw things in a different light. Until that point everything was positive. Then on receiving the notice he reinterpreted everything that preceded this as being negative. However, he did not point to anything that showed that his view about events prior to the service of the Regulation 17 Notice was in fact wrong, and he did not persuade us that service of the notice cast a different light on prior events. 11.2.3. There was a lot where he said he could not remember various things being discussed but he had what can be described as (to use Leggatt J’s words) “flashbulb” memories about particular things - all things that supported his case. 11.3. There are illogical aspects that in our view undermine the credibility of the case he presents in evidence: 11.3.1. He complained to us about the investigation. During the hearing outside of Tribunal, however, he told DS Gooch that the investigation was one that was fair and the outcomes of that were fair. She confirmed this in evidence and it was not challenged. Page 5 of 31 11.3.2. His case is in parts illogical. He says, for example, that he was “meted out” with a sanction of a PRI. This is not a sanction as the conduct regulations make clear, and so no such sanction was ever imposed. That he sees it as a sanction tells us that he is viewing this case in a negative rather than rational light. 11.4. We are satisfied that Insp Gould is a credible and reliable witness. During the course of her evidence, she did not try to fill the gaps, she was hazy about one or two matters, for example, she was not able to tell us how DCI Sanders came by certain information but it is important to note that she did not dispute that the information was provided by her to DCI Sanders. This is consistent with DCI Sanders own evidence. The significance is that when he gave his evidence on the topic, it was after Insp Gould had given her evidence and he had been absent when she did so. In addition, her evidence appears to tally with the documents in the bundle on the whole. 11.5. We found DCI Sanders to be credible. There was nothing in the manner in which he gave evidence or in his answers to questions that gave us any reason to believe that we should doubt or not accept his evidence. 11.6. DC Gooch was a credible witness. It is particularly difficult for Mr Hooper to criticise her because (as noted) he accepted that she conducted a fair investigation and the outcome of her investigation her conclusions were fair.

Introduction

[12]We make the following findings of fact on the balance of probabilities.

Background

[13]Mr Hooper is married. His wife is disabled within the meaning of the Equality Act 2010. Her disabilities are myalgic encephalomyelitis (ME) and fibromyalgia. They are variable conditions. Some days she will be barely able to care for herself. On other days she will be able to go to work and require little if any support or care from Mr Hooper. Often it is in between the two. Their daughter also has ME and also requires Mr Hooper’s care. Mr Hooper however did not suggest that she was likewise disabled within the meaning of the Equality Act 2010 at the times relevant to this case.

[14]Mr Hooper has been a Police Officer since October 1996. In 2002 he transferred to the Nottinghamshire Police and was promoted to the rank of Sergeant. Informal flexible working arrangements

[15]While with Nottinghamshire Police, the Police have put into place various ad hoc arrangements over a long period of time to enable him to care for his wife. While they could be described as flexible working arrangements, those arrangements were informal. He never formally applied for flexible working and an entitlement to flexible working has never been formally granted. Page 6 of 31 Mr Hooper joins the Complaints and Learning Team

[16]An opportunity arose in late 2018 for a sergeant to join the Complaints and Learning Team (CLT). This team dealt with various complaints from either the public or from within the Police. It was divided into 2 sections: City that dealt with complaints from Nottingham and County that dealt with complaints other than from Nottingham. Each had a Sergeant allocated to it. The relevant team leader was Insp Wilson. If successful she would be his line manager. Before applying formally for the posting, Mr Hooper met with Insp Wilson. They discussed his potential working arrangements if he were posted. Insp Wilson said that: “Flexible working was an option and that she was open to part-time, split shifts, sliding shifts and later shifts”.

[17]He applied for the post. In January 2019, the Police posted Mr Hooper to the CLT. Mr Hooper dealt with complaints from the County Section. His colleague who worked on the same role for the City Section was DS PQ.

[18]His working pattern settled into an informal but long-term, flexible working pattern. The Police allowed him to work from home as and when required. However, if his wife and daughter were well enough, and so he did not need to provide care, he would go to a Police Station and work from there. He also went to a police station if his specific duties required him to attend a station.

[19]While he was a sergeant in CLT, he often worked overtime. From the documents and evidence, we formed the impression it was almost as a matter of routine. The Police paid for the overtime. The value was significant.

[20]The overtime system so far as relevant at the time worked as follows: 20.1. If he undertook 2 hours or less in overtime, he would simply log it on the appropriate system, enter the claim, and the system would mark it automatically as approved; and 20.2. If he worked for more than 2 hours, the claim would require Insp Wilson’s approval. He could get that approval after the event or before the event. The emails show that he informed Insp Wilson of his claims and she approved them promptly.

[21]While in the CLT, Insp Wilson remarked to others that he was a hard worker and was very flexible worker when it came to the many tasks required. Introduction of the conduct regulations

[22]The conduct regulations came into effect in February 2020. They provided a statutory scheme for the investigation of complaints.

[23]The regulations generally provide for a structured process when dealing with any police misconduct. In summary (so far as relevant to this case) it is as follows: 23.1. Scoping: In short, the investigations teams conduct a preliminary enquiry to see if the complaint is even worth investigating and if so, what should be investigated? Page 7 of 31 23.2. Formal investigation: In short, an officer investigates whether there is a case to answer. This results in a recommendation. The result could be a formal disciplinary process or no further action which may be accompanied by advice, or as happened here, PRI advice at a reflective practices meeting (RPM). While the regulations make it a more formal than a quick discussion over, say, a cup of tea in the kitchen, the regulations make it clear it is not a sanction – disciplinary or otherwise. Rather its purpose is to give guidance what improvement the recipient could make to his performance.

[24]Regulation 17 prescribes that an investigator must give to the officer under investigation a notice that contains certain information, as soon as reasonably practicable after appointment. These include the written terms of reference where practicable. There are certain qualifications to these obligations but it is not suggested they apply here. The notice is a Regulation 17 notice.

[25]Part 6 is entitled “Reflective practice review process” and is distinct from the parts that deal with misconduct proceedings and accelerated misconduct hearings.

[26]Regulation 65(1) and (2) provides as follows: ““65.–(1) In this Part““participating officer” means the police officer whose actions or behaviour are subject to the reflective practice review process, and ““reviewer” means the person who is conducting the reflective practice review process. “(2) The reviewer must be“(a) the line manager of the participating officer; “(b) another officer who is senior to the participating officer, or “(c) a police staff member who, in the opinion of the appropriate authority, is more senior than the participating officer.”

[27]Regulation 66(3) and (4) provide: “(3) A participating officer must not be prevented from applying for or obtaining a promotion by reason of the officer's participation in the reflective practice review process. “(4) Any account given by the participating officer under regulation 67(1)(b) or during the reflective practice review discussion held under regulation 69 is not admissible in any subsequent disciplinary proceedings brought against the participating officer, except to the extent that it consists of an admission relating to a matter that has not been referred to be dealt with under the reflective practice review process.”

[28]Regulation 70(6) provides as follows: “The report and review notes must be discussed as part of the participating officer’s performance and development review during the 12-month period following agreement of the report.” Page 8 of 31

[29]In our opinion the regulations show that an RPM or that PRI advice can be described reasonably as a sanction. Firstly, misconduct is dealt with separately in the regulations and apart from reflective practices. Secondly the prohibitions in regulations 66(3) and (4) are at odds with the idea that an RPM or PRI advice is a sanction. If they were, then they would be highly relevant to promotion or subsequent disciplinary proceedings. The Secretary of State was clearly keen to ensure that police officers could be given advice that improves their practice and performance without it impacting on their careers. Thirdly regulation 70 is clearly aimed at securing the best outcome that benefits both the officer and the Police. This is far more consistent with PRI advice not being a sanction. Covid-19

[30]At the same time that the conduct regulations came into force, the Covid19 pandemic (caused by a virus) had arrived in the United Kingdom. The virus was a respiratory virus. It could a serious risk to people with certain disabilities, illnesses and vulnerabilities. The government introduced various regulations and guidance to control the spread. One measure was to encourage working from home where appropriate to protect vulnerable people. Mr Hooper, his wife and daughter were vulnerable persons according to the regulations and guidance. Therefore, the Police agreed that for the duration of the pandemic, Mr Hooper should work from home full-time. Implementation of the regulations

[31]To give effect to the conduct regulations, the Police reorganised CLT by unifying it into a single department called the PSD. This was to be based at Police Headquarters. There would no longer be a City and County section. The Police transferred Mr Hooper and DS PQ to PSD. All members of the PSD were to work from headquarters. The Police appointed Insp Gould to lead the PSD, and so she became the line manager of both Mr Hooper and DS PQ. Insp Gould meets DS PQ and Mr Hooper

[32]On 23 April 2020, and before their transfer to PSD, Insp Gould met with DS PQ and with Mr Hooper. She made notes of the meeting afterwards for her own benefit. They are not contemporaneous but we have no reason to doubt they are reasonably accurate. Where they are disputed, we prefer her evidence over Mr Hooper’s because she is more credible. In his meeting, DS PQ said he was ready and willing to move to the PSD.

[33]The meeting with Mr Hooper was the same day, but far longer. Mr Hooper told Insp Gould that he had asthma, that is why he was working from home and this arrangement had been agreed by Inspector Wilson.

[34]Insp Gould replied that his shift pattern will not be affected albeit his base station will change to Forces Headquarters. She confirmed this was because of the change brought about as a result of the conduct regulations. She made it clear to him that he could not work from home in this new role. In evidence it transpired that her superior officers had forbidden working from home in the PSD. At this point, Mr Hooper advised that he had a local agreement put in place by Insp Wilson to work from home because of his Page 9 of 31 wife’s disability. He confirmed there was no formal agreement. He also gave Insp Gould a brief outline of a typical day. Insp Gould made it clear the informal arrangement could not continue. She advised him that if he wanted the arrangement to continue, he would need to submit a formal application for a flexible working pattern as a matter of urgency and it would require various approvals. He confirmed that he understood this and would give it some thought.

[35]At this point Insp Gould already had some concerns about Mr Hooper’s working pattern because it did not appear to reflect what was on the Duty Management System (DMS). She made it clear to Mr Hooper that all overtime would now have to authorised by herself and that she would only authorise weekend working if she were satisfied both that there was an organisational necessity and that his needs and wellbeing were being well managed. She said also that she would ensure that he was not swamped with work and therefore needing overtime daily.

[36]Mr Hooper left the meeting with the view that it was a positive meeting. He felt that Insp Gould was listening carefully to him. We note while the informal arrangement could not continue, Insp Gould encouraged him to complete a flexible working request to see if the informal arrangement could be formalised.

[37]Mr Hooper says Insp Gould told him he would be under more scrutiny. We find as a fact she did not. She denied the allegation and she is more credible than he was. The words do not appear in her note. It also is in contrast to the positive view he held at the time of the meeting. If she had said it, we do not think he would see the meeting as positive. The phrase also seems incongruous with the fact she encouraged him to complete a flexible working request. We think this more likely something arising from when he reinterpreted matters in September. DS PQ and Mr Hooper’s overtime in PSD

[38]Upon commencing his posting Insp Gould and DS PQ agreed he would be able to work overtime so that he could act up as an Inspector in the Response Department, provided he prioritised work in the PSD. This was to allow DS PQ to gain experience to enable him to pursue his ambition to become an Inspector. DS PQ also undertook additional responsibilities to deal with persistent complainants to the Police. Mr Hooper did limited work on this and it did not give rise to a need for overtime.

[39]DS PQ therefore undertook approved overtime when in the PSD. In contrast, Mr Hooper decided not to undertake any overtime work once he transferred to PSD. Mr Hooper’s flexible working request

[40]Mr Hooper submitted his flexible working request on 29 April 2020. He wrote the request and lodged it without assistance from colleagues, a police federation representative or without checking his proposal with any senior offer e.g. Insp Gould. No-one applied any pressure on him to make any particular type of request or not request certain adjustments. Page 10 of 31

[41]He requested his shift pattern to be changed so that he started half an hour later (at 8.30am rather than 8am) and finished work half an hour later (430pm rather than 4pm). Given his desire to be able to work from home to care for his wife, the freedom he had to put what he wanted on the request and Insp Gould’s encouragement clearly focused on his desire to work from home, and having heard the evidence, we cannot understand why he chose only to seek that his shift be moved half an hour. What we can say is we are satisfied it was his own freely taken decision to request this minor adjustment.

[42]The Police approved the request on 30 April 2020. In fact, because of the Covid-19 pandemic, Mr Hooper worked from home until 2 July 2020. Restriction on overtime

[43]On 14 May 2020 Insp Gould informed Mr Hooper and DS PQ by email that all overtime was to be authorised by her for the PSD, and that there was to be no more weekend working unless authorised specifically.

[44]As noted, Mr Hooper had decided not to work since joining the PSD. Thus, he never sought any approval to work overtime or weekends. On the other hand, DS PQ did seek approval to work overtime, and his requests were all authorised by Insp Gould. Mr Hooper’s workload

[45]In June 2020 it became apparent that Mr Hooper was building up a number of cases that he had to deal with. Insp Gould intervened. She told colleagues that Mr Hooper could not take any more work. In due course she reallocated work away from him to others in order to reduce his workload.

[46]In late June 2020 Mr Hooper, in an email, explained that there were personal family circumstances in the background (the details of which are irrelevant) that were causing difficulties for him. Insp Gould responded similarly by reallocating tasks away from Mr Hooper to reduce his workload. Requirement to return to the office

[47]In July 2020, government regulations and guidance eased. Working from home was no longer mandatory, though it would be apt in some circumstances.

[48]On 2 July 2020, Insp Gould informed Mr Hooper that she had been instructed by her superiors that Mr Hooper need to return to working from the office with effect from 4 July 2020. She confirmed his flexible working arrangement remained in place. She also confirmed that there would be arrangements to ensure social distancing and hand-sanitising. Mr Hooper is signed off work

[49]On 3 July 2020, Mr Hooper’s doctor certified that Mr Hooper was unfit for work because of stress. In due course he did not return to his role. Page 11 of 31 ASM 17 July 2020

[50]Insp Gould held an ASM with Mr Hooper on 17 July 2020 by telephone because he was working from home because of the risk arising from Covid19.

[51]At the time of the meeting, she did not know that Mr Hooper’s wife was disabled or about previous informal flexible working arrangements. Rightly or wrongly, the Police had a policy of not revealing the contents of the human resources file to the new line manager when an officer moved to a new team, or their line manager changed. During the meeting, Mr Hooper did not make her aware that his wife (though not his daughter) was a disabled person within the meaning the Equality Act 2010, though he did refer to how their conditions affected them.

[52]There is no transcript of the meeting or contemporaneous note. Instead, we have only a note she wrote on a report on 21 July 2020 and sent to Mr Hooper on 22 July 2020. The note also included thoughts which occurred to her after the meeting while writing the note up. There is a question about its accuracy, therefore. We find as a fact that is a reliable note for the following reasons. It may not be contemporaneous, but matters would be reasonably fresh in her mind. Secondly, Insp Gould has been clear about which parts are additions after the meeting and which are records of what was discussed at that meeting. Thirdly, Mr Hooper replied on 28 July 2020. Again, matters would be fresher in his mind than today. He raised 2 objections, which we set out below, but did not query the substantive notes or accuracy of the record. Finally, Mr Hooper’s new objections are all as seen through a reinterpretation of events. He confirmed to us that at the time he thought it a supportive meeting and it was only later he changed his mind. As we noted above, this undermines his credibility and means we cannot accept any other objections or criticisms are valid.

[53]The notes show that they discussed various matters.

[54]Among the points discussed were that: 54.1. Mr Hooper was the main carer for his wife; 54.2. The need for care was constant. He was struggling to keep up with work, household chores and caring for his wife; 54.3. He had to attend regularly to her during the night. This has led to increased tiredness to the point he feels exhausted; and 54.4. He reported that his daughter now had ME and he had become her carer, which made things more difficult.

[55]They discussed how he used to manage this demand. He explained that before joining PSD the work arrangements had allowed him to work flexibly to manage his day around caring issues. The flexibility to work from home was the reason he managed it. Insp Gould replied that in the PSD Team, working from home would be the exception and that working from the office was the rule because of the amount of work, increase in cases arising from the conduct regulations. Page 12 of 31

[56]Mr Hooper explained that the request to work from the office had caused more stress and that is why he had was sick because he feared contracting the virus and taking this back home. Moreover, though his main stress remained caring for his wife and daughter.

[57]Mr Hooper alleges that in the meeting Insp Gould questioned his ability to work and regular overtime if he had to care for his wife and daughter. We find this did not happen. In his own evidence-in-chief Mr Hooper said: “37. The call was once again incredibly intimidating. DI Gould was asking about my caring responsibilities for both my wife and daughter, and I believe I was being totally honest with her balancing act I have had to do over many years. “38. DI Gould again asked so again then asked me how I had managed to do regular overtime. I explained that it's usually done in the evenings, once I'd sorted things for [my wife] and my daughter.” In our view, this does not support Mr Hooper’s case because his own evidence-in-chief does not evidence that Insp Gould said what he alleges she said. Besides, there is no evidence of that comment in the detailed notes. Insp Gould cannot recall if they discussed it. We consider if it were part of the discussion, Insp Gould would have made a record of it. While we note Mr Hooper’s apparent clear recollection, we note he has demonstrably revised his interpretation of the meeting - at the time he found it supportive but changed his mind later. We also note he did not complain about it in his email challenging some aspects of the notes.

[58]Mr Hooper told us that Insp Gould asked how he had managed to do regular overtime previously. He replied: “I explained that this was done in the evenings once I had sorted things for Sarah and my daughter.”

[59]The notes specifically contain the following text, on which Mr Hooper relies: “Dave has been asked to reflect on how he can alter this situation and to consider if there are any roles that he feels able to complete around this caring angle. It is not considered that he can discharge his duties adequately with the distraction of caring.” “I have also asked him to consider adjustment to his working day (part time) and also if another department/role would be more suited to his home situation”.

[60]Mr Hooper says that he believes the reference to “this situation” is solely to his need to care for his wife and daughter, which would suggest that Insp Gould was asking him to reflect on he can alter the need to care for his wife and daughter. The tenor of his position to the Tribunal was this: he believed that Insp Gould was asking him to make some sort of arrangements regarding the care for his wife and daughter so he could then return to the PSD full time.

[61]We reject that. His belief about the meaning of the “the situation” may be his belief now. However, it is not borne out by a reasonable and full reading Page 13 of 31 of the notes, in our view, or that the purpose of the meeting was to check on his welfare ultimately to get Mr Hooper back to working for the Police at least in some role (as evidenced by the later reference to an alternative role). It also does not sit well with his feeling at the time that the meeting was supportive. In our view the only reasonable interpretation is that Insp Gould was referring to the intersection of the need to care for his family and its impact on him with the requirements of his new role in the PSD to work from the office. She was not suggesting he needed in effect to prioritise his role in the PSD over care for his family. This is yet another example of Mr Hooper re-seeing events in a different light at a later stage.

[62]Insp Gould added to her notes that she had asked Mr Hooper to reflect on how he can alter the situation and consider if there are any other roles compatible with his caring requirements, if he needed to reduce his hours or work part-time or needs to review his flexible working. She also wrote: “It is not considered that he can discharge his duties adequately with distractions with caring”.

[63]Whatever Insp Gould’s intention (which we accept was benign), we consider that a reasonable person would read that as the writer suggesting that the caring was in the writer’s view incompatible with Mr Hooper’s post in the PSD. Mr Hooper’s email of 28 July 2020 shows that he read it that way too and was offended by it. This was before he reinterpreted events. It also accords with an objective interpretation of events.

[64]As an aside, we recognise the similarity of what is in the notes to what Mr Hooper avers Insp Gould said in the meeting. However, we know Insp Gould added comments to her notes that were not parts of the discussion there. We also note his email of 28 July 2020 makes no mention of that comment being made in the meeting, which we are satisfied he would have raised if it had been said. We see no incompatibility therefore between a finding that Insp Gould did not question his ability to work and regular overtime if he had to care for his wife and daughter in the meeting, but finding she made the written comments above. We are not persuaded that the latter on balance proves that the former occurred.

[65]Mr Hooper said that he could not foresee any solutions to his current situation. Insp Gould wrote: “…but he is adamant that he feels he cannot see an end to his stress.” The protected act of 28 July 2020

[66]Insp Gould sent her notes on 22 July 2020. Mr Hooper replied on 28 July 2020 that he was not happy with some of the contents of the note of the discussion. He wrote his reply on one sitting, while things were fresh in his mind. He did not follow it up with further comments. We find as a fact that what he wrote were the only concerns he had after reading Insp Gould’s statement. His complaints were: 66.1. the suggestion the role may not be suitable it seemed odd that this role is now unsuitable when in his previous role under Insp Wilson he was able to work at capacity; and Page 14 of 31 66.2. Insp Gould’s suggestion that Mr Hooper was adamant that he would not return to work, suggesting it showed a lack of empathy and understanding. We note that is not what Insp Gould actually wrote in her notes. He added that he had: “… spent the last 15 years trying to balance my work with my caring responsibilities and even with the introduction of the Equality Act I find that I am still having the same struggles and same lack of empathy [from the Police] who… is required to champion such legislation.” It is agreed this was factually a protected act within the meaning of the Equality Act 2010 section 27.

[67]We accept Mr Hooper was clearly upset by the notes. The fact he sent the email shows this to be true. We accept that he focused on what were the main points for him at this time. We do not accept it follows that only those comments concerned him. Mr Hooper focused on what he felt mattered. It is not inconsistent that he let other matters slip that he did not find them to be upsetting or offensive. Therefore, when he complains before us about the comments referring to “this situation”, working in another department and calling into question discharge of his duties with concurrent caring responsibilities, we find as a fact that it affected him adversely and were unwanted. It tallies with documentary evidence he was upset by the notes, it is credible he would find such observations unwelcome, and we note this is all before he changed his mind and revised his views. These are comparatively minor matters and it is therefore understandable he did not raise them.

[68]That said, this is not open-ended. We note that that Mr Hooper did not raise any other complaints in the email or after sending it. Taking into account his revision of events in his mind, we conclude that whatever other complaints he makes of Insp Gould’s note or conduct in that meeting are later inventions arising from revision of events. This is particularly if he found the meeting to be unfair or intimidating. This is a significant thing we consider he would have raised if he felt it at the time to be true. Therefore, when he told us this was an intimidating meeting, we reject that characterisation and find as a fact it was not. In fact, it was a supportive meeting in which Insp Gould was doing her best to help Mr Hooper so far as was compatible with the limits to her authority and the need to manage the PSD. This conclusion is additionally supported by the notes themselves and what he told us he felt at the time. Enquiry about the typical day

[69]Insp Gould asked Mr Hooper to write out what a typical normal day would look like. It is not clear when. He replied by email on 29 July 2020, supplemented with comments on 5 August 2020. He raised no objection Insp Gould asking him to set out these details. In his email on 29 July he wrote as follows: “Any hours that I cannot complete throughout the remainder of that day can either be taken as TOIL [time off in lieu] or made up at another time. On the days when my wife attends work then I could work from home whilst she Page 15 of 31 recovers and then after normal morning routine make my way to work, again any loss of hours could be taken as TOIL or annual leave or made up on another day.” Second flexible working application

[70]On 21 August 2020 Mr Hooper submitted another flexible working application. He sought to adjust his hours slightly so that he would leave work an hour early and then complete the last hour at home. Insp Gould raises concerns with DCI Sanders

[71]At some point around this time (though it is not known when) Insp Gould liaised with DCI Sanders. She raised with him that she had concerns about Mr Hooper and his working arrangements, and that she was unsure how to proceed. Neither recalls when and how she liaised him and there are not notes or emails, but both accept it happened. DCI Sanders asked Insp Gould to leave matters for him to consider. DCI Sanders concerned about overtime

[72]DCI Sanders became concerned about whether Mr Hooper’s claims for overtime when he worked in CLT were legitimate. He therefore commenced a process under the conduct regulations. Scoping and access to emails

[73]The Counter-Corruption Team scoped the case. They can access police systems and particularly emails of Police Officers without those officers knowing. Of course, an officer can also forward an email to them. DCI Sanders did not know if they accessed anyone emails in this case. However, the documents show that they somehow became aware of Mr Hooper’s email of 29 July 2020 and that he had explained that he could use TOIL or annual leave to make up various shortfalls arising from his caring responsibilities. They also had access to the overtime records from his work at CLT. Whether DCI Sanders was aware of the email of 28 July 2020, which referred to the Equality Act 2010.

[74]The evidence shows that it is possible that the Counter-Corruption Team could have seen that email, but there is no evidence that they did – yet alone that they told anyone else about it. If they are investigating possible issues with overtime, then the email is irrelevant. However, DCI Sanders was unable to tell us if they did see because he would not have known what they saw. DCI Sanders had no recollection that he had seen it. Insp Gould had no recollection she either showed it to him or told him about it. It is not obvious to us what sensible reason there could be for Insp Gould either to have shown him the email or told him about it, yet alone that it referred to the Equality Act 2010. It is not relevant to her concern.

[75]We conclude that DCI Sander was not aware of the email or of Mr Hooper’s reference to the Equality Act 2010. At its highest the case is that it is technically possible that it could have come to DCI Sander’s attention by a few routes. There is no evidence it did, however. To find that we could properly conclude it did would require us to draw an unsupported inference Page 16 of 31 that it did, speculate about how and why it would have done when it is not relevant to the investigation, and disregard the evidence of 2 credible witnesses - DCI Sanders and Insp Gould – that they have no recollection of it being passed to DCI Sanders and that he has no recollection of seeing it. We consider this is not tenable and requires improper levels of speculation. In the absence of any evidence, we find as a fact DCI Sanders was not aware of the email or that Mr Hooper has referred to the Equality Act 2010. Formal investigation and the Regulation 17 Notice

[76]The scoping exercise resulted in a conclusion that it required a formal investigation. The Police served a Regulation 17 Notice on Mr Hooper accordingly. It said: “Allegation 1 “During a recent reorganisation of the working arrangements within PSD and a change in your line management, you have raised an issued with regard to your inability to comply with the requirement to attend [headquarters] and be present during 8am to 4pm each weekday. “This has resulted in a review of your DMS [diary management system] bookings, because PSD were unaware of a ‘local agreement’ in place around flexible working, allowing you to undertake caring duties for your wife and daughter. “This review revealed that between 01/08/2019 and 19/04/2020 you claimed overtime on 125 occasions. Of these, 61 dates were rest days less than 15 days’ notice, generating an enhanced overtime payment. “The written representations you made to your line manager on 29/07/2020, around your caring responsibilities, do not correlate with the fact that you have worked so much overtime. The long hours you have worked previously is not commensurate with the difficulties and demands that you portray as being evident in your home environment, particularly when you cite that you could use TOIL/AL to make up the deficit in hours, when in fact you have been working a significant amount of overtime rather than having to use ‘time off’ to ensure your caring obligations are met. “[This allegation relates to] Honesty & Integrity”. The Regulation 17 Notice classified this as potential misconduct. It warned him it may require him to attend a misconduct meeting. We are satisfied the Police served the notice because they genuinely believed that the circumstances warranted a formal investigation. There is no evidence that in our view even begins to suggest the protected act played a part in the decision to begin a formal investigation. We find as fact therefore it did not.

[77]The Police assigned DC Gooch to direct and carry out the PSD investigation. She sent to Mr Hooper through his Police Federation Representative (as the parties agree is the usual way of conducing these matters) a disclosure pack, details of the allegation, some background information about the overtime claimed and purported to ask 12 questions Page 17 of 31 for Mr Hooper to answer. In fact, one was a statement and one was incomplete and so unanswerable. The Claimant provided his answers to these questions promptly through the Federation.

[78]On 19 November 2020 an investigator on behalf of DC Gooch interviewed Mr Hooper under “civil caution” (i.e. without the qualification to the right to silence). A Police Federation representative accompanied Mr Hooper. There is only a summary before us, but there is no suggestion it omits anything of relevance. Mr Hooper found the experience to be unpleasant and intimidating. We remark that is not surprising. In the interview, Mr Hooper explained that he did not update his notes to log of what he was doing on a daily basis. He reported that he was never told to update the notes of cases and he was not very good with computers in any case. He told the interviewer that he was so busy he would not have had time to keep a record of his work anyway. He admitted he had not kept full records, and he accepted in the interview in hindsight he should have kept better records.

[79]He also explained that although he did not keep a diary of his working hours, he wrote some dates in the back of one of his notebooks as to what he worked.

[80]Further investigation revealed that Insp Wilson had approved all overtime claims that required her approval, and all others had been properly selfcertified.

[81]During the course of the investigation, the investigators interrogated the Police’s computer management system to see whether the times he logged in and out tallied with the claims for overtime. At first it appeared there was a mismatch that suggested he was not working. The investigators asked him to explain discrepancies on certain dates. He satisfied them he was working on those dates. The investigators then asked him about a second set of dates. The Police Federation object to this on Mr Hooper’s behalf. It appears the Police accepted that repeated questioning was in appropriate and that the computer records were not reliable for this purpose. He found the repeated questioning unpleasant and akin to the Police hounding him and found it hostile and intimidating. We accept this is how he felt and can understand why.

[82]However overall, even Mr Hooper concedes that DC Gooch conducted a fair investigation. Therefore, while there may have been unpleasant moments, as noted above, even on Mr Hooper’s own case, they must be consistent with and part of a fair investigation. If they are part of a fair investigation then we infer and find as a fact that Mr Hooper cannot reasonably object to them. Outcome of the formal investigation

[83]DC Gooch concluded that there was no case for Mr Hooper to answer. She recommended that he should be referred for a Reflective Practice Meeting (RPM) because the investigation had shown that Mr Hooper agreed that had not kept full records like he should have. As we noted, Mr Hooper has accepted this was a fair outcome.

[84]DC Gooch’s recommendation was given to DCI Sanders. He also accepted it, and he arranged for an RPM to take place. Page 18 of 31

[85]We find there is no evidence that shows that either DC Gooch’s conclusions (which Mr Hooper accepted was a fair outcome) or DCI Sander’s acceptance and administration of the PRI advice at the RPM are connected in any way to the protected act.

[86]The RPM took place on 25 January 2021. DCI Sanders conducted the meeting. He did so because he was familiar with the matter and it would be quicker for him to do it than to brief another officer superior to Mr Hooper who had not been involved and was unfamiliar with the case to do it. The parties agree that the effect of the conduct regulations was that DCI Sanders was an officer authorised to conduct the RPM and give the PRI advice.

[87]The Claimant described it as a sanction. We find it was unwanted. It is quite usual for a person not to want to be told they have room for improvement. However well intentions or justified, it is understandable that it may not be welcome. However, we find as a fact it was not for reasons we gave earlier when we reviewed the regulations, above. That fact it may or may not be on the Human Resources is neither here nor there because the regulations are clear about the limit to which one may rely on the fact the Police gave PRI advice to an officer.

[88]There is no evidence that DCI Sanders gave the PRI advice to Mr Hooper because of the protected act. Indeed, the fact it was the recommended outcome from DC Gooch and Mr Hooper agrees that is a fair outcome rather undermines the argument there is any link, factually. We therefore find as a fact there is no link between the protected act and the outcome. Sargent ST

[89]The Police also gave PRI advice to a Sgt ST. This was after a complaint about how she had spoken to a member of the public. However, unlike Mr Hooper, Sgt ST worked in a public facing role. In addition, unlike Mr Hooper, Sgt ST was the subject of misconduct proceedings because the investigation into her conduct found there was a case to answer. The outcome of Sgt ST’s misconduct process was that there was no case to answer, but the panel felt she would benefit from an RPM with PRI advice. The outcome may have been the same for both her and Mr Hooper. However, the route that her case went through was very different. However, none of that detracts from the fact that PRI advice is not a sanction. Law Disability

[90]The Equality Act 2010 section 6(3)(a) provides that, in relation to disability, a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability. In other words, the focus must be on the particular disability in question, not disability as a general concept.

[91]The Equality Act 2010 section 26 (in relation to disability) provides a person(a) (A) subject another

(b) (B) to harassment if they subject B to unwanted conducted related to disability that has the purpose or effect violating B's Page 19 of 31 dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. If the focus is on effect, then the Tribunal must take into account B’s perception, the other circumstances and whether that effect is reasonable. Context is important in deciding whether the effect is reasonable.

[92]While the parties have referred us to various cases, the Employment Statutory Code of Practice (published by the Equality and Human Rights Commission) (the Code) summarises accurately much of the position found in the cases – at least so far as relevant for present purposes. For example, paragraph 7.8 of the Code “unwanted” means essentially the same as “unwelcome” or “uninvited”.

[93]The main question is what is meant by “related to”. It is agreed that the disability need not be the claimant’s disability. But there was a dispute about what is sufficient to show conduct is truly “related to” disability.

[94]The claimant’s case appeared to be that as long as disability is somewhere connected to the unwanted conduct, it is sufficient. The code at paragraph 7.9 onwards appears to support this loose connection: “7.9 Unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic. … “7.10 … b) Where there is any connection with a protected characteristic. “Protection is provided because the conduct is dictated by a relevant protected characteristic, whether or not the worker has that characteristic themselves. This means that protection against unwanted conduct is provided where the worker does not have the relevant protected characteristic, including where the employer knows that the worker does not have the relevant characteristic. Connection with a protected characteristic may arise in several situations: “• The worker may be associated with someone who has a protected characteristic. Example: “A worker has a son with a severe disfigurement. His work colleagues make offensive remarks to him about his son’s disability. The worker could have a claim for harassment related to disability. “… “The unwanted conduct is related to the protected characteristic but does not take place because of the protected characteristic. “Example: “A female worker has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by continually criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker, but because of the suspected affair which is related to her sex. This could amount to harassment related to sex. Page 20 of 31 “7.11 In all of the circumstances listed above, there is a connection with the protected characteristic and so the worker could bring a claim of harassment where the unwanted conduct creates for them any of the circumstances defined in paragraph 7.6.”

[95]We consider that the code however has potential to mislead because it does not appear to explain the need to show a proper relationship based on the circumstances. This need can be found expounded in Unite the Union v Nailard

[2017] ICR 121

EAT at [100]-[104] (not departed from on appeal

[2019] ICR 28

CA) The EAT said: “In our judgment section 26 requires the employment tribunal to focus upon the conduct of the individual or individuals concerned and ask whether their conduct is associated with the protected characteristic—for example, sex as in this case.”

[96]In Tees Esk & Wear Valleys NHS Foundation Trust v Aslam and others

[2020] IRLR 495

EAT, the EAT recently considered the Court of Appeal decision in Nailard and said: “24. … the broad nature of the "related to" concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual's conduct was related to the characteristic in question. [The appellant’s Counsel] confirmed in the course of oral argument that that proposition of law was not in dispute. “25. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim [Our Emphasis]. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.”

[97]The Equality Act 2010 provides that if a person A subjects another B to a detriment because B did a protected act, then A has victimised B. There was no dispute Mr Hooper had done a protected act. The code paragraph 9.8 defines a detriment as “Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage.” This tallies with the explanation provided in cases such as Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

UKHL. Page 21 of 31

[98]“Because of” requires that the protected act has a significant influence on the detriment caused to B but need not be the sole or principal reason: e.g. Chief Constable of Greater Manchester Police v Bailey

[2017] EWCA Civ 425

; likewise, The Code at paragraph 9.11.

[99]The Equality Act 2010 section 13 provides a person A directly discriminates against a person B if A treats B less favourably than they treat or would treat another, and the reason for that is disability. That other may be a real or hypothetical person, but their circumstances must not materially differ from B’s. Even if the claimant relies on real people who are not true comparators, they may still be of some evidential value. The disability can be that of B or, as here, a person associated with B. Whether treatment is less favourable is to be assessed objectively: Burrett v West Birmingham Health Authority

[1994] IRLR 7

EAT. The protected characteristic need not be only reason provided it has a significant influence: Nagarajan v London Regional Transport

[1999] ICR 877

UKHL and the Code paragraph 3.11. Except in rare circumstances that do not apply here, acts of harassment cannot also be acts of direct discrimination: Equality Act 2010 section 213. Burden of Proof

[100]The Equality Act 2010 section 136 provides for the burden of proof in claims under the Equality Act. A number of cases since have explained it; notably Efobi v Royal Mail Group

[2021] IRLR 811

UKSC (which reviewed and approved a significant number of previous cases). In summary we understand it as follows: 100.1. The claimant must prove facts on the balance of probabilities from which the Tribunal could properly conclude that the respondent has committed an unlawful act under the Equality Act 2010. The Tribunal ignores any potential explanation but takes into account the evidence adduced by both sides. 100.2. If the claimant succeeds, the respondent must then on balance of probabilities prove that discrimination, harassment etc. were not the reason for the treatment; 100.3. A difference in status and in treatment is not enough alone to shift the burden of proof to the respondent; and 100.4. If the Tribunal can make positive findings one way or the other, it should do. The burden of proof in such cases is likely to have little to offer.

[101]The Equality Act 2010 requires any claim to be presented within 3 months of the act complained of or within such other time as is just and equitable. It is for the claimant to persuade the Tribunal to extend time.

[102]Ultimately the Tribunal has a broad discretion when weighing up all the circumstances, but length of delay and reasons for it are always relevant, Page 22 of 31 as is the prejudice to the respondent if a claim that is out of time is allowed to proceed: Abertawe Bro Morgannwg University Local Health Board v Morgan

2018 ICR 1194

, CA.

[103]Where there are a series of act that can be linked into a continuing act, the 3 months does not start until the last of those acts. An overarching sense of a discriminatory affairs is not enough: South Western Ambulance Service NHS Trust v King

[2020] IRLR 168

EAT.

Conclusions

[104]We deal first with the issue of harassment. For simplicity we will deal with each of the following questions under each alleged act of harassment. 104.1. Did the Respondent engage in the conduct set out below? 104.2. If so, was that conduct unwanted? 104.3. If so, was that conduct related to disability? 104.4. If so, did that conduct have the purpose or effect of 104.4.1. Violating the Claimant’s dignity? 104.4.2. Create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 104.4.3. If effect, was it reasonable in each in those circumstances for the conduct to have that effect? Comments made by Insp Gould on 23 April 2020, informing the Claimant that he would be under more scrutiny;

[105]We found as a fact this did not happen. Therefore, this allegation is dismissed. Comments made by Insp Gould on 17 July 2020 during a telephone call, questioning the Claimant’s ability to work regular overtime if he had to care for his wife and daughter.

[106]We found as a fact this did not happen. Therefore, this allegation is dismissed. Comments made by Insp Gould included in the Attendance Support Meeting (ASM) notes and sent to the Claimant on 22 July 2020:a. “Dave has been asked to reflect on how he can alter this situation and to consider if there are any roles that he feels able to complete around this caring angle. It is not considered that he can discharge his duties adequately with the distraction of caring.” The Claimant believes the reference to ‘this situation’ is his need to care for his wife and daughter.

b. “I have also asked him to consider adjustment to his working day (part time) and also if another department/role would be more suited to his home situation”. Having his ability to discharge his duties adequately being called into question;

[107]These arise from the notes of the ASM meeting and so we deal with them together. Page 23 of 31

[108]Insp Gould wrote the alleged comments. However, context is important. Mr Hooper did not hold the belief at the time – it is a more recent reinterpretation. We also find as a fact that “the situation” is not the need to care for his wife and daughter but to the intersection of the need to care for his family and its impact on him with the requirements of his new role in the PSD to work from the office.

[109]Whatever her intention, the effect of her words was that it called into question his ability to discharge his duties. We note however that Mr Hooper has deliberately as part of his case not included the other part of the phrase which this complaint is based on, i.e. Insp Gould’s words “with distractions with caring.” He made no application to add those words and has been represented throughout. We assume it is a conscious choice to put his case that it is the calling into question that matters and not that it is “with distractions with caring.”

[110]On balance we conclude that these comments were unwanted as we explained above. They may not have been in the notes. However, it is credible they were unwanted and it accords with a part of his evidence we can accept.

[111]We have seen no evidence to show Insp Gould made them for the proscribed purpose. We conclude she did not make these comments for the prescribed purpose.

[112]We are satisfied that he found the words “Dave has been asked to reflect on how he can alter this situation and to consider if there are any roles that he feels able to complete around this caring angle. It is not considered that he can discharge his duties adequately with the distraction of caring” offensive or degrading. However, we do not consider that this reaction is reasonable. Read in context it was not about the need to care for his wife and daughter but the intersection of that need with his role. His reading is not reasons.

[113]We are satisfied he found the words “I have also asked him to consider adjustment to his working day (part time) and also if another department/role would be more suited to his home situation” offensive or degrading. We do not consider that the reaction was reasonable, however. We cannot see how it is reasonable to suggest ways that he can balance the demands on him in his professional or personal life, and the reasonable way they that Insp Gould phrased it, can reasonably be said to have the proscribed effect.

[114]We accept that having his ability to discharge his duties adequately being called into question had the effect of being offensive or degrading. As well as according with his evidence it is inherently plausible it would have this effect.

[115]We do not accept that any of the above allegations were related to his wife’s disability. 115.1. We deal firstly with asking him to on how he can alter this situation and to consider if there are any roles that he feels able to complete around this caring angle, and the comment that Insp Gould asked him to consider adjustment to his working day (part Page 24 of 31 time) and also if another department/role would be more suited to his home situation”. 115.1.1. The comments are entirely obvious and ordinary observations that it was reasonable to make about Mr Hooper’s particular case. As the non-legal members observed, the process was more-or-less “textbook”. 115.1.2. If Mr Hooper’s situation in his personal life – whatever they may be or the cause – meant he had or appeared to have difficulties discharging his professional duties, then it is entirely proper and rational for Insp Gould to make those comments that he consider adjustments to his working day or consider another role or post around caring. The fact that the issue here is carerelated, or that his wife is disabled, is merely coincidence in our view. The non-legal members particular said in their experience it is appropriate for an employer (which for present purposes we can consider The Police to be) to make observations and suggestions alike those which Insp Gould made. 115.1.3. As an analogy, we consider Insp Gould’s approach would have been the same whether it were a caring or other issue, and whether it were caring for his daughter alone (who is not disabled) if Mr Hooper were experience the same challenges aligning his work demands with the other, external commands. We are no seeking to assess by using a comparison, but seeking to demonstrate why we consider the fact it was care for his disabled wife is no more than a coincidence or incidental fact to Insp Gould’s acts. In summary we cannot properly say her acts were properly related to disability. 115.2. We now consider the comment that Insp Gould called into question his ability to discharge his duties. 115.2.1. We note that Mr Hooper his is allegation specifically does not complain about the words ““with distractions with caring.” These are the words however that, at best, relate the unwanted conduct to disability. That he has not relied on them undermines in our view that the conduct alleged is properly describable as related to disability and undermines his claim. 115.2.2. However, in any case we consider the same reasoning as before applies here. We consider that even if it were something other than caring that appeared to be troubling Mr Hooper and having the same effect, she would have done the same. It shows the fact his wife is disabled is merely coincidental or tangential to what happened. We do not consider one Page 25 of 31 can say the conduct is properly related to disability, therefore.

[116]Both allegations are dismissed. Being asked to set out a ‘typical day’ by Insp Gould in July 2020;

[117]This event happened.

[118]We do not accept it was unwanted conduct. Mr Hooper raised no objection at the time. It was in the context of following the ASM meeting that he believed supportive. It is only recently he has decided it was unwanted because he has revised his memory of matters. Therefore, the claim fails at this stage.

[119]In any case we do not consider there is any evidence to show that Insp Gould asked with the purpose of harassing Mr Hooper. We do not consider it had that effect either. He responded without objection, and only later decided it was objectionable after he revisited matters and revised his opinions in September 2020. In any case it is reasonable to ask about his day as part of understanding how me might return to work. She asked him an open, non-judgmental question. It was also as part of process connected with the ASM meeting he found at the time to be supportive. Therefore, even if it had the proscribed effect, in the circumstances and given what it asked, it was not reasonable.

[120]Finally, we cannot see how it is properly related to disability. The fact he spent some time caring for a disabled person is merely incidental. The driver was the absence from work and his welfare.

[121]This allegation is dismissed. The narrative set out in the Regulation 17 Notice Having his honesty and integrity called into question

[122]These arise from the same event and the same document. We consider them together. The parties did not suggest that they could sensibly be divided.

[123]Clearly these events happened. While he has not specified what he found objectionable about the narrative, we are satisfied having considered it as a whole that Mr Hooper found it to be unwanted conduct. We readily conclude that he found having his honesty and integrity called into question because it is inherently plausible.

[124]There is no evidence that the Police issued this notice for the prescribed purpose.

[125]We conclude it had the proscribed effect, however. The circumstances are important to our explanation. He had been working from home for a long time, albeit on informal arrangements. He had been claiming overtime which was approved in line with the Police’s policies. He had made no secret of his situation or claims. From his point of view there was no explanation why it is suddenly an issue. There was no forewarning. In those circumstances it is entirely reasonable that he found it offensive, humiliating or intimidating. Page 26 of 31

[126]However, we conclude that it was not related to disability. The whole focus of these allegations is that the Police had a concern that Mr Hooper had been wrongly (possibly fraudulently) claiming overtime when he should not have been. We accept that the notice referred to claims around caring responsibilities. One must focus on the concern or allegation: it was that there was a prima facie mismatch between his explanation about caring responsibilities and his claims for overtime. A concern that someone’s explanation about caring responsibilities does not match with claims for overtime. In our view it is at best tangential that the caring responsibilities involved in part caring for a disabled person. We are quite satisfied from the evidence that if the caring responsibilities were for non-disabled person or persons only (e.g. for his daughter only), then the concerns of the Police would be the same, the evidence of the mismatch between his reported caring responsibilities and his overtime claims would be the same and so the reaction would be the same. Like with the other allegations there is nothing to show that his wife’s disability plays any part in this other than being in the background. The sole factor was he appeared to claim overtime when his own explanation of his caring responsibilities suggested those claims were illegitimate or dishonest.

[127]These claims fail. Being subject to an investigation by Professional Standards Department (PSD) Being subject to the recorded interview on 19 November 2020

[128]We have considered these separately but they are part of the same process and we feel we can take them together for brevity.

[129]We conclude that they were not done for the proscribed purpose because there is no evidence to support that.

[130]We repeat our findings of fact about how he found the process. We note that it is quite reasonable for a police officer not to welcome an investigation into their conduct or being interviewed. However, in this case we find that the effect was not reasonable. The reason is that Mr Hooper accepted that the investigation was a fair one. This is part of that investigation. We consider that this is inconsistent with the suggestion that it was reasonable for him to find these had the proscribed effect.

[131]In any case, we do not accept it related to disability. This was a part of the investigation that was justified by the apparent prima facie discrepancy between the claims for overtime and for caring. It is merely part of the background that his wife was disabled and he cared for her. There is no proper relationship between the two.

[132]These claims fail. Being given PRI advice by a Chief Inspector of PSD.

[133]Having heard evidence and received the submissions, we still struggle to understand the issue that this allegation is aimed at. 133.1. The outcome was fair, as Mr Hooper agreed. Being given PRI advice was the recommended outcome. We also repeat the purpose and effect (or lack of effect) of PRI advice, noting it is Page 27 of 31 not a sanction. We cannot accept that is unwanted conduct, even if Mr Hooper has now decided it was. 133.2. If the focus is that DCI Sanders administered the advice, we also conclude that is not unwanted conduct. The regulations clearly empower DCI Sanders to give the PRI advice. It is true that others could have done it. However, the regulations do not set out a hierarchy of who should be chosen first to give PRI advice. We cannot see any issue with DCI Sanders giving the PRI advice. He had the right to do it, and the investigation that gave rise to it was from the department he was in charge of. We still do not understand what Mr Hooper’s objection is. It has the air of trying to find something to complain of.

[134]It is notable that at the time neither he, nor a Federation representative acting for him, raised any objection. This further supports our view that this was not unwanted conduct – it is only later he has come to see it this way.

[135]In any event: 135.1. None of these actions were done for the proscribed purpose; 135.2. None of these actions had the proscribed effect. It is a nonsanction which was the fair outcome of a fair process administered by an officer authorised to do so. Even if had had the proscribed effect. In the circumstances, that effect was not reasonable; and 135.3. Finally, we cannot see how these acts can properly be said to be related to his wife’s disability. That is but a piece of background information. This occurred because and only because of the fair outcome from the fair investigation and DCI following the regulations to administer the PRI Advice.

[136]Because there is no dispute that the claimant’s email to Insp Gould on 28 July 2020 was a protected act within the meaning of section 27 Equality Act 2010, we move to the next questions? Was the Claimant subject to detrimental treatment as a result, namely: …being served with the Regulation 17 Notice on 2 September 2020 and subject to misconduct allegations and investigation by PSD;

[137]Being served with a Regulation 17 notice is a detriment because it is quite reasonable to consider it puts one in a worse position. However as noted we found as a fact this was not connected to the protected act. This claim fails. Being sanctioned and provided with PRI on 25 January 2021.

[138]For reasons set out above, we found there was no sanction. It is clear he was given PRI advice. We do not accept it is a detriment because, as explained above, it has no impact on his ability to seek promotion, does not accept future disciplinary processes and is advice to improve the discharge of his duties. That cannot be reasonably seen as a detriment. Page 28 of 31 If so, in each case did the Respondent subject the Claimant to the treatment because of the protected act or because he believed that he had or?

[139]Whether they were detriments or not, we found as a fact (as set out above) there is no link between the protected act an (alleged) detriments.

[140]Both these claims are dismissed.

[141]For each allegation we answer the following questions: 141.1. Was the Claimant subjected to the treatment? 141.2. If so, was the Claimant treated less favourably than DS PQ, Sgt ST, or a hypothetical comparator was treated or would be treated? 141.3. If so, was the less favourable treatment because of the Claimant’s association with a disabled person? Having his ability to carry out and discharge his full-time duties called into question by Insp Gould in the ASM notes provided on 21 July 2020;

[142]It is clear the Police subjected him to the treatments.

[143]The correct comparator is someone who had the same caring responsibilities and the same overtime history as Mr Hooper, but who was not associated with a disabled person.

[144]DS PQ is not in that situation. He had no caring responsibilities. His overtime history under Insp Wilson is not known. His overtime on transfer to PSD was authorised in advance and in any case Mr Hooper deliberately chose not to work overtime after transferring to PSD. We do not consider DS PQ is a proper comparator and do not consider his circumstances are such to provide any evidential assistance.

[145]In our view, the facts show Insp Gould would have done the same thing to a hypothetical comparator because the facts would have been the same – i.e. there appeared to be a conflict between the caring obligations and the ability to do the job. That is quite apparent the focus was on his ability to do the role to which he was assigned and whatever the cause of that impact was irrelevant. It just happened to be a caring responsibility. Put another way, the reason for the treatment was because of the apparent difficulty meeting the duties of his role, not the association with a disabled person. The presence of in Mr Hooper’s situation of a disabled person with whom Mr Hooper was associated would be of no relevance and would play no part. Insp Gould would have said the same thing and the outcome would be the same. Disability played no part in what happened.

[146]This claim fails. Being subject to Misconduct Proceedings under the Police (Conduct) Regulations 2020 (the Conduct regulations) on 2 September 2020;

[147]He was clearly subjected to these proceedings.

[148]DS PQ sheds no light on this scenario for reasons given earlier. The hypothetical comparator is the same as above. Page 29 of 31

[149]The fact is that the scoping exercise suggested a mismatch between his assertions about the demands that his caring responsibilities placed on him and his claims for overtime. The proceedings began because of that mismatch, not disability. It has nothing to do with his association with a disabled person – that was just incidental to the fact that it appeared that his assertions that the demands of caring appeared at odds with an ability to do regular overtime. If a hypothetical comparator had the same apparent demands on their time and same apparent need for regular overtime, but was not associated with a disabled person, they too would have been the subject of the same misconduct proceedings. The disability played no part in what happened.

[150]This claim fails. Being sanctioned and provided with PRI on 25 January 2021;

[151]Like with this allegation under harassment, it is difficult to know what the issue is. Firstly, he was not sanctioned. Secondly the PRI was on his own case a fair outcome. Thirdly for similar reasons, DS PQ sheds no light on this. Nor does Sgt ST because her situation is nothing like that of Mr Hooper’s.

[152]Given this PRI advice was a fair outcome it is difficult to see how it could ever be less favourable treatment. He did not, understandably, suggest there should have been an unfair outcome. He did not, rightly, argue that it was discriminatory because there could have been a better outcome.

[153]In any case, if this were a fair outcome, anyone else in Mr Hooper’s situation but who was not associated with a disabled person (i.e. the same earlier comparator) would have had the same, fair, outcome too. Put another way, his wife’s disability played no part in this this.

[154]This claim fails. Having the sanction meted out by PSD on 6 December 2020.

[155]He was not sanctioned. This claim must fail, therefore.

[156]We deal with this point briefly because every claim has failed on its merits.

[157]It is apparent that because there are no unlawful acts under the Equality Act 2010 there is no continuous act. Therefore, a number of claims are out of time.

[158]The claimant advances no good reason for the delay. Indeed, it seems there is a bad reason: In September 2020 he changed his mind and decided to view things differently.

[159]There is no significant delay in our view. Based on the information before us, we also consider that it could not have been said before the hearing that the claims had no reasonable prospect of success.

[160]However, the most significant factor for us is that at no time has there been any evidence or suggestion that the Police have been prejudiced in having to respond to the allegations – whether out of time or not. Indeed, it seems Page 30 of 31 they have been able to meet the allegations unhampered by the fact the claim in relation to that allegation might technically be out of time.

[161]Overall, for those reasons we consider it just and equitable to extend time so that the claims are all deemed presented in time, albeit they fail on their merits.