Mr A Mills v Driver and Vehicle Standards Agency: 2600528/2021 and 2600559/2022
EMPLOYMENT TRIBUNALS
Case No 2600528/2021, 2600559/2022
Between
Mr A MillsClaimantDriver and Vehicle Standards AgencyRespondent
Before
Employment Judge BroughtonDate 18 November 2022
JUDGMENT
The Claimant’s claim that he was a disabled person for the purposes of section 6 of the Equality Act 2010 is not well founded and his claims of disability discrimination are therefore also not well founded and are dismissed.
REASONS
Conclusions
[1]At a previous preliminary hearing for case management before Employment Judge Blackwell on 15 June 2021, the case was listed for today’s hearing to determine the issue of whether the Claimant suffered from a disability at the relevant time.[2]The Claimant issued a claim on 16 March 2021. Mr Serr confirmed today that the claims include that he was constructively unfairly dismissed because of a breach of the implied duty of mutual trust and confidence, complaints of a failure to make reasonable adjustments and unfavourable treatment (detriments) because of something arising in respect of his disability.[3]The Claimant was employed from 3 September 2018. He resigned and his employment ended on 15 or 16 March 2021.He was employed as a Driving Examiner.[4]The Claimant submitted a second claim on 21 February 2022, in which he complains of victimisation (with the protected act being the first claim). The two claims have been consolidated.[6]As agreed at the outcome of this hearing, the issue of disability is only relevant to the allegations/claims in the first claim . Disability/ Impairments[7]The Claimant submitted further and better particulars on 12 July 2021 in respect of the first claim (p.42 – 49). Those further particulars confirmed that the Claimant relies on the conditions of hypertension and anxiety as disabilities.[8]It is common between the parties that the Claimant was diagnosed with hypertension in January 2019. Relevant Period: March 2020 to March 2021[9]I discussed with the parties at the outset what the relevant period is for the purposes of the disability discrimination complaints. Mr Serr confirmed that it was between March 2020 and March 2021 on the basis that first alleged act of discrimination was 9 March 2020 when the Claimant raised a grievance. Mr Serr explained that while he had not actually seen the documents relevant to the formal grievance and was not sure whether the Claimant had actually mentioned in that grievance that he was disabled however, he believes that he had alleged that he was treated differently to his colleagues and had referred to stress and the impact on his health. While Mr Rudd explained that the Respondent does not accept discrimination took place in March 2020, the Respondent accepts that applying what he described as a ‘broad-brush’ approach, the relevant period is March 2020 to March 2021.
Evidence
[10]I was assisted today by a joint bundle of documents which numbered 195 pages.[11]The Claimant had produced a witness statement. Part of the Claimant’s statement dealt with the issue of the Respondent’s knowledge. Mr Serr accepted that the final section on the issue of knowledge does not need to be considered during today’s hearing.[12]I was concerned by the lack of detail in the Claimant’s witness statement, particularly with respect to the alleged effect on his day to day activities of the pleaded impairments. He described symptoms without clarifying the period when they occurred and in some cases the frequency. Mr Serr asked no supplemental questions. I asked a number of questions to assist me in determining the issues. I asked those questions prior to Mr Rudd carrying out his cross examination to ensure that he had an opportunity to address the Claimant’s evidence on those points in cross examination. No objection was raised by either counsel to proceeding in this way.[13]The Claimant produced in the bundle GP records for the period September 2018 to June 2021. There was a letter from a counselling service called Insight Healthcare (p.173- 174), an OH report dated 29 January 2021 (including a second slightly amended version), some correspondence relating to admissions into the Emergency Department and extracts from the NHS and British Heart Foundation websites . The Claimant has not produced a medical report from his GP or other medical professional addressing the issues which I am required to consider in determining whether the Claimant has a disability or disabilities, for the purposes of section 6 EqA. Late Disclosure[14]After the hearing, the Claimant’s representative emailed to the Tribunal on 6 July 2022 further documents and requested that they be taken into account and any judgment deferred until after the parties had the opportunity to make representations. The documents were clinical notes from Insight Healthcare, who had provided the Claimant with counselling. The Respondent wrote on 7 July 2022 objecting to the late disclosure and that it had not had an opportunity to cross examine the Claimant on this new evidence but if the hearing was reconvened to enable it do so, the Respondent expressed concern on the potential impact on the timetable for the final hearing. The documents related to appointments between February and October 2021 and thus the Respondent challenged the Claimant’s assertion that he had only just became aware of their existence. The Respondent also made the point that the documents are largely counselling notes from April 2021 onwards and postdate the relevant period in any event. The Claimant’s responded to the Respondent’s objection, expressing the view that it would be disproportionate to reconvene the hearing and that he was not requesting that. The Claimant stated that if the Tribunal were to decide that the Respondent should be given an opportunity to cross examine the Claimant on the late disclosure, the Claimant would withdraw the application to submit them into evidence.[15]There are entries in the late disclosure which relate to consultations/counselling sessions which took place outside the relevant period and references to the impact of these tribunal proceedings on the Claimant’s mental health. It is difficult to see what relevance those records which post-date the relevant period have to the issues to be determined.[16]With respect to the documents which relate to sessions/consultations during the relevant period, the Claimant had been cross examined at some length by the Respondent on the content of the GP records and the extent to which they were consistent with his account of events, his account of the effects of the conditions and the cause of his symptoms. It would not be in accordance with the overriding objective, specifically the need to ensure the parties are on an equal footing, to allow the Claimant to submit further medical evidence at this late stage without giving the Respondent the chance to cross examine him on those documents and make further submissions. In those circumstances, and as neither party want to reconvene the hearing, the application to submit the additional documents is refused.
THE LAW
[17]I proceeded to consider the case without reference to those documents.
Findings of fact
[18]I made the following findings of fact based on a balance of probabilities. All references to page numbers are to pages in the agreed joint bundle.[19]The findings set out are not intended to be a complete record of all the evidence I heard during the hearing. I took all the evidence into account unless otherwise noted however, I set out the evidence material to the determination of the issues before me. Start of symptoms : From October 2018[20]The Claimant described starting to suffer certain symptoms but his statement did not address when these first stated. In response to questions I put to him, he gave evidence that he was uncertain when these first began but believed that it was between starting employment in September 2018 and January 2019 when he was diagnosed with hypertension. He ultimately gave evidence that he thought it would have been be in or around October 2018.[21]The Claimant complains that he began around that time to suffer with headaches, with heart and chest pains, which became more regular as the symptoms continued and lack of sleep. He described how he thought he was having a heart attack and that he became paranoid because he had not suffered pains in his chest before and he did not know what was wrong with him.[22]He described the headaches as “daily” and “constant”. His evidence is that he was taking about 8 paracetamols a day but the tablets had no effect. Impact on day to day activities: headaches and other symptoms[23]The Claimant alleges that the “constant” headaches affected his daily activities in that his exercise declined, although he was probably still trying to do some but how the headaches were “morning to night”, debilitated him, and how he would have to “ lie down in a dark room on the bed” such was the extent of the headaches. However, he describes how although the headaches were “all the time” they were not the main concern, the main concern at the time, was the chest pains because there was no explanation for what was causing them. He also complains of not sleeping, having sporadic diarrhoea, it was hard to focus, he had a lack of energy and his health declined Impact on day to day activities: chest pains[24]In terms of the chest pains, the Claimant described how he could not do the cooking or housework because of the chest pains but how this was mental as well as physical because he was so worried about the cause of the chest pains, the paranoia “consumed my life”. He went on to clarify that he it was not the physical chest pains but the fear of the cause of the chest pains which stopped the Claimant from undertaking tasks such as a housework. This also impacted on the exercise he took.
FINDINGS OF FACT
[25]The Claimant also complained of a lack of sleep; either having no sleep or broken sleep where he was awake; “50 or more times a night”, which he described as not an exaggeration and that the more he did not sleep, the more worried he became and the more he suffered with chest pains. September/October 2018: other health conditions[26]The Claimant suffered from other health conditions in 2018.[27]In cross examination the Claimant accepted that in September/ October 2018 he was suffering with a sore throat. The records refer to a diagnosis of Tonsilitis (p.123).[28]In 2018 the Claimant had a second job, working as a part time mobile caretaker ( 15 hours per week) for Nottinghamshire County Council (Council). He had not mentioned this second job in his evidence in chief. In cross examination he gave evidence, that the role involved opening sites and checking the fire alarms and taking water samples but he disputed that there was any maintenance work involved.[29]On the 21 September 2018 he was issued a fit note for work until 18 October 2018 due to arm and back injury. The Claimant on 17 October 2018 (p.123) was reporting with 5 months of elbow pain arising from a workplace incident in his other job. He was diagnosed with ‘tennis elbow’ (lateral epicondylitis).[30]The Claimant gave evidence that he later stopped working for the Council however he was rather vague about when this was, he believed it was sometime in 2018.[31]On the 5 November 2018, his GP notes (p.124) record;. “ ongoing prob with lat epicondyle pain –… Was working as caretaker, feels cant do it due to pain R elbow.” Job with Respondent:[32]The Claimant described how his job with the Respondent required him to “very alert” and have good reactions to intervene if he needed to. He describes how any of the symptoms he suffered stopped him doing his job effectively but that together at times it meant it was unsafe for him to carry out his role. January 2019[33]The Claimant on 2 January 2019 (p.126) was seen at the Hospital Emergency Department complaining of diarrhoea and vomiting and a rash. During this visit his Blood pressure was noted to be “very high”. The Claimant confirmed under cross examination that he was not alleging the symptoms he had attended the hospital with on this occasion related to his blood pressure. The notes also record him referring to work being very stressful.[34]The Claimant was signed as not fit for work from 2 January 2019 to 7 January 2019 with a diagnosis of a rash/URTI.[35]There is no record at this time in the GP notes, of problems with headaches or sleeping.[36]His GP records on 2 January 2019 : “viral but noted to have raised bp..” and later on 11 March 2019 he is diagnosed with a viral respiratory infection (p.126).[37]There is reference to diarrhoea, but no medical evidence linking this to either of the pleaded impairments. He was suffering a rash and viral infection and by 2 January 2019. The notes record that; “D + v and rash resolving”.[38]The GP records do not report an ongoing issue with diarrhoea. I find on balance, that the diarrhoea was not linked to hypertension or anxiety but the viral infection and was not an ongoing symptom.[39]The GP notes record that by 9 January 2019 (p.125) the Claimant attended for a blood pressure check and now reports the Claimant suffering headaches and dizziness but “more headaches than anything else”. He was put on a 24 hour blood pressure check machine. The Claimant conceded under cross examination that there was nothing in the GP notes which states that the headaches he reported were caused by high blood pressure and the Claimant accepted during cross examination, that during this period he also had a viral infection for a few months. When asked what his evidence was about the likely cause of the headaches, he replied that: “ I don’t know – not for me to say – I’ve not said, ‘ this happened because of that’ but just talked about the symptoms in that period – I just said what happened – you are asking me to say medical things I don’t know about”.[40]However, on 17 January 2019 (p.125) the GP notes record that the Claimant; “History 1: discuss blood results … Aware lifestyle related – too much alcohol last year ( declined further details) – will cut down Also put on more weigh – aware needs to lose. … 2. wants Med3 to cover period 26th Dec til end of Jan works 2 jobs – full time as DVLA assessor – also part time at night in care - was needing to do manual handling in this job – wasn’t able to do this ; same employer has lined up new job for him, but can start end of the mth- cleaning supervisor 3 hrs at night – happy w this arrangement – employer needs med3 to cover period between 26thDec to start date…”[41]The Claimant accepted that the problem with his elbow was on-going in early 2019 but he was vague and could not recall whether or not he took on a different second job or not. The GP notes clearly however indicate that he still had a second job by early 2019 and I find on balance, that he did have another job during this period and he was expecting to change jobs in January 2019.[42]The Claimant accepted in cross examination that during this period, despite the alleged severity of his headaches, chest pains, paranoia and sleep problems and the need to be ‘alert’ as a driving instructor, he did not take any time off work from his employment with the Respondent.[43]The Claimant was suffering with elbow pain and had requested a fit note from his GP on 17 January 2019, in relation to his second job which involved manual handling. I find on balance, not disputed by the Claimant (who appeared to struggle to recall what the situation was with his second job during this period), that he was expecting to change his second job to a supervisory role which would require him to work nights. He was therefore working during the day for the Respondent and anticipated being well enough to be able to also undertake night shifts in his second job.[44]Although there is reference to headaches and dizziness, there is no indication in the GP records of what the cause of these symptoms were, whether it was blood pressure, stress, viral infection or something other. The Claimant’s own evidence, is that he does not know what the cause of the symptoms was.[45]Further, what the Claimant was reporting to the GP during this period, I find is not consistent with the severity or frequency of the symptoms he describes in his evidence in chief. February 2019[46]The GP notes record that the Claimant was diagnosed with essential hypertension on 20 February 2019 (p.126) following the identification of very high blood pressure (BP) when he attended the Emergency Department on 1 January 2019 following a ‘111’ call. On the 20 February 2019, he is now prescribed medication for the hypertension , “Ramipril 2.5mg capsules (one daily)”.[47]Given the identification of high BP in January 2019, the parties are in agreement that the diagnosis of hypertension should be treated as a diagnosis which covers the period from January 2019.[48]The plan on 18 February 2019 was for the Claimant to do his own BP testing at home and fit a monitor (p.126) but this was not appropriate for his driving job so he bought a compact monitor to use at home to record his BP (w/s para 2 and p.126).[49]During this same period in February and in March, the Claimant still had on ongoing sore throat and cough.[50]The GP notes still do not record any opinion expressed by the GP about any possible link between hypertension and any of the symptoms the Claimant described or was reporting. The Claimant accepted that the notes to do not record that he was suffering from any symptoms as a result of hypertension, commenting that ; “not mentioned in the GP notes but that does not mean it did not happen” March 2019[51]That the Claimant however was suffering chest pains from October 2018 is I find consistent with the entry in his GP records on 4 March 2019 (p.126) which refers to the Claimant getting; “some chest pains since October” . However, by March 2019 the GP reports the symptoms as follows. “Has been getting some chest pains since October, also some neck pains more recently, comes and goes not related to exercise , play squash and ok there, not yet started meds for BP, stressful time with job 6 weeks training pass or fail at the end. No SOB, no cough, no palps… Diagnosis MSK chest pains. Plan: General discussion, simple analgesia”[52]There is no mention within the notes of “constant” headaches or the other symptoms described by the Claimant. This entry also records “ no palpitations”.[54]When put to him under cross examination, the Claimant did not dispute that the diagnose of “MSK” was a reference to musculoskeletal pain. The GP therefore I find, did not consider that the chest pains were related to hypertension. The only objectively reasonable interpretation of the notes, is that the GP considered that what the Claimant was describing at the time, was musculoskeletal pain, which is consistent with other entries in the notes of ; “Tenderness on palpation of the left chest wall and left PSM OF c - spine”. No possible link with hypertension is recorded.[55]The Claimant under cross examination did not himself dispute that the GP notes did not suggest the chest pains were related to high BP, giving evidence that; “ it is not for me to say … I am not a medical procession …I could not accept or deny if professional enters data on it”.[56]The Claimant’s evidence under cross examination, was not consistent with the evidence in his witness statement which sets out his definitive view of the long term effects since January 2019 of the impact of hypertension and anxiety. There is no mention of diagnosis of MSK in his witness statement or of having a viral infection in early 2019.[57]The GP notes up to March 2019 similarly do not I find, record symptoms consistent with the Claimant’s description in his evidence in chief of the effects of the pleaded impairments.[58]On 11 March 2019 (p.126) the GP notes record that the claimant is still doing his job as a driving test instructor as “they don’t like time off”. The Claimant during this same period, according to his evidence in chief is having constant headaches, not sleeping, suffering diarrhoea, heart palpitations and chest pains and yet does not require time off work. That he did not require time off work is not consistent with his evidence about the effect on his normal day to day activities. His GP also records that in March 2019 to he was still playing squash “and ok there”.[59]There are also entries on 11 and 25 March 2019 which refer to a sore throat and cough but that his chest is clear with a diagnosis of “ infection related”. ` May- July 2019[60]There is significantly less activity in terms of attendance with his GP during the months of May to July 2019.[61]As at end of March 2019 (p,127) he is noted as having a persistent cough.[62]There is a notable entry on 23 May 2019 when the Claimant reports itchy, gritty eyes and. “sometimes vision slightly blurry at a distance , no eye pain, never had eyes tested… …difficult to see fundi ? beginning of cataract. Normal eye movements, no inflammation of conjunctive”[63]There is no indication whatsoever in the notes that the blurry vision the Claimant reports he sometimes has, is related to hypertension and/or anxiety. The Claimant has not produced any other medical evidence which deals with the issue with his eyesight. The Claimant alleges in his statement that having had hypertension over a long period of time, this may now have affected his vision. There is nothing in the medical evidence provided which sets out what his symptoms are, what the cause is likely to be and at what stage if any, the hypertension may have had an impact on his vision. 2 August 2019[64]The Claimant attended his GP on 2 August 2019 following a road traffic accident that day, reporting radiating pain in left knee and lower back. He was diagnosed with soft tissue injury and prescribed medication (naproxen and omeprazole) .[65]The Claimant accepted under cross examination that this incident caused him ongoing musculoskeletal pain. Something he neglected to mention in his evidence in chief. August 2019[66]There is an entry in his GP records on 15 August 2019 that the Claimant was not fit for work from 15 to 28 August 2019 due to lower back injury and knee pain and on 28 August 2019 the Claimant was diagnosed as not fit for work from 28 August to 10 September 2019 with again a diagnosis of lower back injury and knee pain.[67]The Claimant complains that one of the effects he suffered because of the hypertension/ anxiety was not being able to exercise. He declines however to address in his evidence in chief, the knee and back pain he suffered from 2 August 2019 because of the road traffic accident and the degree to which this impacted on the exercise he could take and his ability to play squash.[68]The Claimant accepted under cross examination that from March to August 2019, (p.127) he took no sick leave from his job with the Respondent apart from a few days in 2019. Again that is not consistent I find, which his description of the symptoms he suffered of constant headaches, palpitations and inability to sleep. His job required him to be ‘alert’ and in charge of a vehicle on the road for hours at a time. September 2019[69]The Claimant was absent from work from the Respondent on 5 September 2019 due to lower back and knee pain due to the road traffic accident and by 10 September the GP notes record that due to back/knee injury he had not worked for 6 weeks or so.[70]The Claimant’s GP records refer to the Claimant on 10 September 2019 (p. 128) alongside ‘HT’ (which it is not disputed refers to hypertension), not taking the prescribed medication because of side effects. The notes do not record the what the alleged side effects are. The print out from the GP of the medication prescribed (p.139) shows a prescription of 28 capsules ( one to be taken daily) on 20 February 2019 but no further prescription until a year later on 25 February 2020 which is consistent with the body of the GP notes with the entry on 25 February 2020 (p.131) stating :”put pt straight on bp meds” after a recording of high BP.[71]I find therefore that for almost 12 months from about March 2019, the Claimant had not taken the medication prescribed to help reduce his blood pressure, and only started it again in February 2020.[72]A fit note was issued and the Claimant was deemed not fit for work from 10 to 23 September and then from 24 September to 7 October 2019 2019 with a diagnosis of knee/back injury which was under review .[73]On 25 September 2019 there is (p.128) reference to ongoing back pain with sciatic radiation and the Claimant feeling stressed due to an Occupational Health (OH) review which included the comment that he would be better with a session of two of physiotherapy, with the GP recording that there is no guarantee that this would be curative. On 26 September 2019 the Claimant is reporting as feeling; “slightly anxious or depressed”. The Claimant in answer to my question, gave evidence that he could not recall an actual diagnosis being given of depression. No diagnosis is recorded in the GP notes or any other medical evidence provided by the Claimant and I find no such diagnosis was made. 26 September 2019[74]There is an entry in the GP records (p.128) which states that his BP fluctuates and lists his hobbies as squash and badminton. There is reference to some mobility issues with the Claimant reporting having slight problems in walking about and; “slight ache on EOR due to stiffness MP 10 % reduced … Advised gradual return to fitness, squats lunges, dynamic balance, stairs, hip.. … Advised on heat therapy Pt anxious therefore booked with B5 to do some gym excs to enable return to fitness … Lack of activity causing stiffness RTA reduced confidence in activity…”[75]The Claimant in cross examination gave evidence that at this time his sleep was affected by the pain and discomfort from the road traffic accident but also the anxiety arising from the alleged bullying at work. He accepted that during this period with respect to the pain from the injuries he sustained in the road traffic accident; “ 100% it would affect sleep, if had painful joints definitely” and that the HP “may be a factor” also.[76]There is no reference in the GP notes however to hypertension or anxiety impacting on his sleep but the records report “sleeping affected” following a reference to the knee injury and the pain across his back.[77]There is reference to the Claimant having “moderate problems” with his “ usual activities” such as work, study, housework, family or leisure activities. (p. 128) however, this is not identified as relating to hypertension of anxiety and I find, that considering the context in which these affects are recorded, these effects relate to the impact of the knee and back. The GP goes on to recommend a return to exercise and that it is the RTA which has “reduced confidence in activity”. There is a recommendation for MSK pathway referral and physiotherapy. There is no discussion at this stage about medication or counselling for anxiety. I find the effects on his normal activities as described, were not related to either of the pleaded impairments at this stage.[78]There is also no reference to diarrhoea but rather “constipation” caused by the naproxen (prescribed for the knee and back pain).[79]By the 26 September 2019, the Claimant is reporting that he is “slightly anxious or depressed” He is not reporting problems with headaches, or difficulty sleeping due to anxiety or any other effects I find, of anything other than the back and knee pain. October 20219[80]On the 2 October 2019 (p.129) the GP records, refer to there being; “No reported problems or complications encountered” and that the “ Patient feels well…”[81]The Claimant attended the nurse for a BP check(p.130) on 16 October 2019 and there is no record of any reported impact on his activities caused by either pleaded impairments, during this consultation. Albeit it is not disputed that it would have been a short appointment. 3 January 2020[82]The Claimant attended his GP on 3 January 2020 (p.130) because of a cough. The Doctor checks and comments that his lungs are clear.[83]There is still no record of the Claimant reporting headaches, sleeping difficulties or other effects of the pleaded impairments at this stage. 25 February 2020[84]The Claimant was prescribed Ramipril again in February 2020 (p.131)to try and bring his BP down due to a high BP recording however, there is no record of the Claimant reporting any problems at all in terms of any impact on his day to day activities. There is no reference to issues with his sleep, headaches, diarrhoea, concentration or indeed any of the alleged adverse effects of the pleaded impairments. March 2020[85]The Claimant’s evidence is that in March 2020 he was allocated another line manager but the stress at work continued and his health declined, and he clarified that by this he meant his palpitations and chest pains were becoming stronger and he was sleeping less and that this resulted in uncontrolled episodes with ambulances called to him and an admission into hospital. He gave evidence that the ambulance had been called, not directly by hm but after calling “111”, 3 times over a period of 3 ½ years but he could not recall the dates. When I asked whether on each occasion it was due to chest pains, he referred to it being “3 different issues”.[86]The Claimant describes that in terms of the effect on his normal day to day activities, it was the “same thing”, he had no interest in doing things , his exercise was reduced, he was not socialising, eating too much or not properly .[87]The Claimant gave evidence that he was probably still trying to do some exercise but could not do what he had done before, it was probably “little to none”. He stopped playing squash which had been a passion of his. He described how his mental health was profoundly affected . He also describes his headaches in response to a question I asked, in March 2020 as still “persistent and consistent”. That he had them most of the day and it was “tiring me out”. He could not recall if he was still taking any paracetamol for the headaches or not because they had had no effect. He described how he did know how he continued working because he was “bombed out”. That there was very little going on at home, it was all at work, that he was under so much pressure from his Acting Manager that it consumed his life. I find that his description of how he was feeling is not supported by the medical evidence he has provided. 11 March 2020[88]The Claimant attended his GP again on 11 March 2020 (p131) and his BP was still raised. There still however, is no reference to any side effects/symptoms of the BP, no reference to headaches or inability to sleep. Indeed I note that what is recorded is. “No reported problems or complications encountered Patient feels well …” 24 March 2020[89]The Claimant has a telephone consultation on 24 March with his GP (p.131). It notes that his BP is still high but that the claimant; “ sounds very well on the phone”.[90]The Claimant under cross examination, denied being asked about how he was feeling during this call. He had not addressed this in his evidence in chief. I also do not find it credible that given his alleged issues with his memory and the vagueness around his recollection of some events, (including whether he had started a different role with Nottinghamshire City Council), it is plausible that he could recall this particular call with his GP from March 2020. In any event, he does not allege that he raised any concerns during this call either, about headaches, disturbed sleep or otherwise effects from the hypertension or anxiety. There is an issue recorded about his urine but “no chest symptoms”. I find on balance, that he did present to that GP as sounding well on the phone, whether he was specifically asked the question or not. Covid – shutdown- end March 2020[91]The Claimant did not dispute under cross examination that at the end of March 2020 the Respondent shut down its business for 4 months and the drivers were sent home during the Covid pandemic and therefore he was not required to work. April 2020.[92]On the 8 April 2020 (p.131) the GP notes record that the Claimant’s BP was still raised but had gone down slightly and the Claimant thinks because he was off work, the reason could be the stress at work.[93]The GP records also refers to the Claimant having bought a treadmill and that he had started using it . The Claimant accepted under cross examination that a contributory factor to his high blood pressure could have been his lifestyle including issues with his weight and his alcohol consumption and in fact the GP records refer to him losing weight and his BP having come down at this time.[94]On 18 April 2020 an ambulance was called to the Claimant and there is an Ambulance care summary (p.150). The call out was related to abdominal pain. The Claimant’s case is that he believes the pain was due to his heightened anxiety about his health and this anxiety caused him to seek emergency advice. The Claimant in answer to my question, gave evidence that he believed this was the first occasion an ambulance was called out to him. The record of this incident refers to chronic abdominal pain and diarrhoea. It refers to blood pressure as 196/125 which the Claimant alleges (which not supported by medical evidence but was not disputed in cross examination or submissions), that anything over 200 would probably indicates a stroke and therefore the BP reading was very high and chronic.[95]He gave evidence that there were other episodes when he had chronic chest pains but he did not seek assistance on those other occasions, when his heart was “beating through his chest” but because of the Covid pandemic and he did not want to “clog up the phones”.[96]The Claimant in his evidence referred to abdominal pain being a side effect of the medication he was taking however, there is no medical evidence to support that and later in his oral evidence, he alleged that the anxiety was also a possible explanation for the abdominal pain.[97]The Call Incident Report (p.151) refers to occasional diarrhoea and cramping /bloating and gives a diagnosis of : Imp – abdo pain? Viral GE - ? cause.” There is no reference to the symptoms likely to be caused by medication, hypertension or anxiety. There is by this stage no referral for counselling or advise about medication for anxiety/stress. May / July 2020[98]There are a number of entries of attendances with the Claimant’s GP throughout May 2020 and no reported affects/symptoms. The Claimant alleged in cross examination that headaches are part and parcel of BP and just because the GP did not record headaches does not mean that he was not having them and that he had got so use to them they became “insignificant” hence he did not mention them to the GP. Paracetamol did not help and he was taking no medication to help with them . However, not only do the GP notes not report the pleaded symptoms/effects, the entry for 19 May 2020 (p. 132) actually states. “No reported problems or complications encountered Patient feels well …”[99]The Claimant in his evidence states that the dosage of Ramipril was increased to 10ml in May 2020 but this had little effect so he was also prescribed Amlodipine. He expresses an opinion that without the Amlodipine the symptoms of his hypertension would be far more severe as he was told that he was a stroke waiting to happen. There is no medical evidence to support this and nothing in the GP notes record any such advice or opinion. There is no medical evidence on the reason for the medication, the effects of it or what the likely effects would have been without it. Further, what is clear is that he was still being advised that what would also assist was changes to his lifestyle, such as diet, exercise and reduced consumption of alcohol.[100]The Claimant’s further oral evidence was that the purpose of the Amlodipine was to draw sodium in the body so that he would use the lavatory more, to assist the Ramipril.[101]The medical records suggest and the Claimant does not dispute, that he was not prescribed Amlodipine until July 2020 (p.139). Ramipril[102]The Claimant was prescribed Ramipril at 2.5 mg in February 2019, the prescription was increased to 5mg on 24 March 2020 and then reduced to 2.5 mg on 21 April 2020. It increased to 10mg on 12 May 2020 and that dosage continued to be prescribed until 12 May 2021. The Claimant’s oral evidence is that the Ramipril on its own had little effect without the Amlodipine (which was introduced in July 2020) but that he believes the medication is still not effective now. In answer to questions I put to him, the Claimant gave evidence that his symptoms were not helped by the medication. He described how the diarrhoea was still sporadic “not often”, the headaches remained daily, the chest pains were not everyday but “often” and the heart palpitations progressed mainly at night to “all the time” and how his heart could be seen beating in his chest.[103]The Claimant gave oral evidence that chest pain and palpitations are a common side effect of the medication for high BP however, there is no medical evidence which deals with the impact or side effects of the medication and further, he had complained of suffering chest pain before taking the medication. The reference to chest pain in the GP notes records a diagnosis of MSK.[104]I do not find on the evidence, that the chest pains and palpitations were a side effect of the medication prescribed for high BP. 27 May 2020[105]The Claimant gave evidence that under cross examination that he was not sure whether he had been asked to return to work by the Respondent by 27 May 2020 however, the GP notes record the Claimant informing his GP that on that date that he had been asked to return to work and he was warned about a return with raised BP. I find therefore that he had by this date been asked to return and his concern was about the risk of Covid. The notes entry appears to record his GP advising that to Claimant that he was not at increased risk with high BP. April/May 2020 to September 2020[106]In answer to a question I put to the Claimant, he gave oral evidence that there was no change in his symptoms from April/May 2020 through to September 2020, that the symptoms remained the same and he has the same symptoms as at the date of this hearing. However, there is no record in the GP notes of the effects on his day to day activities he describes. There is no reference to the Claimant reporting that he is suffering from headaches, disturbed sleep, palpitations, diarrhoea, loss of concentration, impact on memory, motivation to exercise or engage in social situations etc[107]The Claimant accepted that it was around June/ July 2020 that he returned to work. There is reference to the Claimant on 6 July 2020 having a lots of stress at work and going through a grievance which was likely to be a contributory factor, but no reference to the impact on his normal daily activities or otherwise any potential symptoms, other than raised BP. October 2020.[108]There is no attendance after 6 July 2020 until 12 October 2020 (p.133). The next notable entry in the GP records is on 31 October 2020 when the Claimant reported that he contacted ‘111’ because of chest pains for 3 days and palpitations.[109]There is another Ambulance Care Summary document dated 31 October 2020 (p.153). The complaint is recorded as chest pain radiating to his back with a BP reading of 185/102. The Claimant gave evidence that his BP was still chronic and uncontrolled even though he was taking medication.[110]There is a letter from the Hospital dated 31 October 2020 (p.155) which refers to his attendance at the Emergency Department and refers to his chief complaint being chest pains but that in terms of diagnosis; “No abnormality detected”. He was given verbal advice and discharged home. There is no issue raised in the medical evidence about a possible link between the chest pains and his hypertension to which the Claimant gave evidence that; “I have never said it was- it can be- but I have stress and anxiety at the same time” and “heart rate and palpitations are a classic sign of stress and anxiety”. The Claimant then went on to comment that his GP reported a 120 heart rate (p.133) and suggested this may be a side effect of the medication .[111]The Claimant however was not able to identify anything within the medical evidence to suggest that any medical practitioner considered that the reason for the chest pains was stress and anxiety. When this lack of supporting medical evidence was put to the Claimant under cross examination, his response was that it was not his job to tell the doctor what to do. However, later on 3 November after follow up investigations (p.134) following the Claimant attending the Emergency Department on 31 October 2020, the diagnosis is reported as ; “ MSK chest pain2 Viral URTI”.
CONCLUSIONS
[112]It also reports that the Claimant had stopped taking Amlodipine and Ramipril 2 months before. The Claimant gave evidence that he stopped taking the medication because he felt it was contributing to his heart palpitations but under cross examination, he gave evidence that he did not actually know if the palpitations were due to the medication or BP.[113]The Claimant was still however working for the Respondent during this period and conceded no adjustments were made because ; “I did not acknowledge I had a problem.”[114]On the 30 November 2020, the GP entries record work related stress and records the level of alcohol the Claimant was drinking. The notes record the Claimant as understanding that the raised BP may be related to his drinking. He was signed off sick from 30 November to 10 January 2021 with a diagnosis of work related stress and hypertension being secondary.[115]There is a reference to the Claimant feeling “panic” on 3 November 2020, and reference to panic attacks on 25 January 2021.[116]The Claimant was absent from work on sick leave from 30 November 2020 and did not return to work for the Respondent . 25 January 2021[117]By 25 January 2021 the GP notes record that that the Claimant was reporting work related stress for over a year, “feels tense and episodes of strong palpitations making the patient worry even more”. It also refers to the Claimant having a cough since Christmas, of being unsure if this was coronavirus and (p.136). “…since then impaired eyesight – noticed to be a lot more-blurry, headaches, lightheadedness, back and neck pain (paracetamol hasn’t helped).”[118]The diagnoses records hypertension, work related stress and panic attacks, and long term symptoms of a cough (possibly Covid).[119]The treatment recommended is to restart BP medication and the GP records that the palpitations are. “..more likely due to panic attacks rather than medication side effects.”[120]CBT therapy is recommended for stress and panic attacks.[121]There is also an entry recording “sleep poor” on 25 January 2021. OH report 29 January 2021[122]The Occupational Health (OH) report of 29 January 2021 (p.165) refers to the Claimant being unfit for work due to impaired psychological health and perceived work related stressors. It reports that the Claimant continues to suffer from symptoms of stress and anxiety. It refers to him taking medication for raised blood pressure and reporting no side effects. It reports that his symptoms appear to be reactionary due to the stress and strain he perceives he has been under at work and that the disability legislation is unlikely to apply as the HP has not been ongoing for 12 months and he is unlikely to have any long term or substantial impairments of his daily activities. There is a second version of the report again dated 29 January 2021 (p.168) provided by same OH Advisor, the only difference is the paragraph on the disability legislation now states. “ The disability legislation may apply (Mr Mills confirmed that his hypertension has been ongoing for twelve months or more).” February 2021[123]On the 16 February 2021, the GP records record a further consultation where the Claimant reports. “Headaches – frontal resolve with paracetamol – wonders if related to BP meds – unlikely” (p.136)[124]The diagnosis is work related stress and hypertension. The Claimant disputes that his headaches were resolved with paracetamol.[125]On the 23 February 2021 (p.137) another entry reads that the claimant. “still anxious and depresses, still having headaches. Paracetamol doesn’t help with headaches… Not sleeping, counselling not working would like medication Used to run on treadmill, but not feeling motivated, but considering going back on it”.[126]The Claimant in cross examination accepted that he had not started medication but starting counselling and attended 2 rounds of counselling.[127]There is a report from Insight Healthcare (p.156) who provided the Claimant with counselling, following a referral by his GP, dated 22 February 2021. The report refers to Depression and Generalised Anxiety Disorder but it is expressed not to be a formal diagnosis but with psychometric measure of its severity.[128]The Claimant’s evidence is that he began counselling in February 2021 fortnightly by telephone (due to the Covid restrictions), for 3 to 6 months. He was not prescribed nor wanted to take anti- depressant medication although he recalled his GP mentioning medication on a couple of occasions.[129]The GP records report on 23 February 2021 (p,137) that he was still having problems at work and anxious and depressed and still having headaches and that paracetamol does not help. It also reports that. “Not sleeping. If counselling not working would like medication Used to run on treadmill but not feeling motivated but considering going back on it”[130]The Claimant conceded in cross examination that there was no diagnoses in the medical records of clinical depression, the diagnosis is work related stress. 23 February 2021[131]On the 23 February 2021 shortly before his decision to resign (p. 137), the GP reports that the Claimant had started counselling the day before and that he was not interested at that point in taking medication for his mood and that the Claimant felt that he should make a decision about his job and that; “….he feels like that would be a massive weight off his shoulders”.[132]The Claimant’s evidence is that the counselling was fortnightly for about 3 to 6 month. There is no evidence from the GP or Insight Healthcare about how many sessions the Claimant had, whether further counselling was recommended or what had been achieved through the counselling process and what the impact on his day to day activities may have been, without the counselling. The Claimant does not allege that further counselling was recommended at the end of the 3 or 6 month period ( he could not be more specific about how long the sessions were intended to last) or that he asked for it, however this would have fallen outside the relevant period. Long terms effects[133]The Claimant also in his evidence in chief states that because he has had hypertension over a long period of time, this may now have affected his vision, that he recently had an eye test and was told he has a form of astigmatism. He could not recall when he started suffering blurred vision but the eye test was early in 2022, he was not more specific on dates. The GP records (p.127) refer to “ slightly blurry left eye” and refers to “ beginning of cataract on 23 May 2019.[134]The Claimant has not produced the results from his eye test and I was not taken to any reference in the GP notes where it records the possibility of blurred vision being caused by the hypertension in the Claimant’s case.[135]The Claimant in answer to my questions, clarified that his evidence is that the blurred vision happened “occasionally” about once per week and the impact on him is that he has to leave the room if he is watching TV and wait 30 minutes for his vision to reset. He has spectacles for long distance and does not require them to watch television, however he does not watch a lot of television but reading for a ‘long period’ can also bring it one; he did not elaborate on what he meant by a ‘long period’.[136]The Claimant complains that he finds it difficult to engage with any form of exercise and is no longer playing squash or any form of sport but he has a treadmill at home and was running 5k in just under 30 minutes but because of daily headaches and chest pains, he cannot use it and has gained 2 stone in weight over the past 18 months. He complains that part of the reason he has stopped playing squash is that he does not want to talk to people at the gym because he feel uncomfortable.[137]The Claimant also complains that he had become very disconnected from friends and family and no longer attend any social events and is suffering with low mood such that he rarely goes out of the house.[138]The Claimant complains that his memory and concentration have also been impacted and that he sometimes has to pull over because he cannot recall the direction that he is supposed to travel in.[139]He refers to the side effects of the medication, including going to the toilet more frequently. He described this as tiring, like having a urinary infection. He also describes nausea and headaches and the long terms effects of uncontrolled hypertension which include the high risk of stroke and heart attacks . His evidence is that he no longer drives for long periods of time due to the need to use the toilet more often.[140]In terms of the long terms effects, I tried to establish with the Claimant when those started because this was not dealt with in his evidence in chief. . He referred to the impact on his memory and concentration which he complains about being “later on”, about “ last year”, which would be 2021, he could not say more precisely when. The incident when he needed to pull over while driving because he could not recall where he was going, he thought may have been perhaps in the “middle of 2021” but then said that he could not recall when it was.[141]The document in the bundle from the NHS website, refers to high blood pressure or hypertension as a condition which; “…rarely has noticeable symptoms but if untreated , it increases your risk of serious problems such as heart attack and strokes. About a third of adults in the UK have high blood pressure, although many will not realise it.” (p.189)[142]The pages from the British Heart Foundation (p.1893) advise that many people with high blood pressure feel fine so it is important to get blood pressure checked regularly but goes on to state that high blood pressure. ...” rarely has noticeable symptoms. The following can be symptoms of high blood pressure. Blurred vision … Chest pain Dizziness Headaches… Submissions[143]I set out below the submissions of the parties which I have considered in full; Respondent’s submissions[144]The Respondent submitted a written skeleton argument which I have considered and made further oral submissions.[145]The Respondent submits that the burden of establishing the disability rests with the Claimant.[146]It is submitted that to deduced effects are not relied on and in any event it would usually require expert evidence to decide on what the effects of the conditions would be without medication. Hypertension[147]It is accepted that the Claimant suffers from hypertension and had high BP from 2019, this is established from the medical records and it is submitted, on the evidence probably manifested from January 2019 when it was picked up in routine tests. It is submitted that the blood pressure rate fluctuated as can be seen from the GP entries.[148]The Claimant was treated with two medications but the key issue is whether it caused long term substantial adverse effects .Counsel refers to a short period of the Claimant taking Ramipril in 2019 and then again in 2020.[149]It is submitted that hypertension is an asymptomatic condition with reference to the NHS guidance documents.[150]While the Claimant alleges he had symptoms and they may have been an effect of the hypertension, while it is possible, it would require medical evidence to confirm the link. It is submitted that the Claimant is an individual with lots of medical problems (eg urinary tract infections over that period, injuries from a road traffic accident which caused problems with his chest and viral infections), thus there needs to be clear evidence of what the cause of the effects were.[151]It is submitted that there is however cogent medical evidence that shows there is in fact no link and counsel refers to the following entries specifically;•24 March 2929 where the entry states; “ no symptoms due to high blood pressure” (p.131) and•16 February 2021 (p.136) where it states “headaches frontal resolve with paracetamol wonders if related to BP meds, unlikely[152]Counsel submits that there is evidence in the GP records that the high blood pressure and hypertension was linked to the Claimants’ lifestyles and while it is not important what caused the hypertension, it is relevant to consider in terms of likely effects of it and that the symptoms/effects can be controlled with sensible measures. Counsel refers to the Guidance document on matters which should be take into account when determining disability (see below) .[153]The Claimant stopped taking the medication for hypertension and the entries record that during those periods there were no side effects of not doing so and his evidence is that the symptoms remained the same.[154]Counsel refers to the OH report and the opinion that the disability legislation is unlikely to apply with the second version stating that it may, however counsel submits that the issue is not how long the Claimant has had hypertension but what the effects of it are on his normal day to day activities and how long those lasted and the OH Advisor does not engage with that. It was in January 2021 that the Claimant was off sick with work related stress. Anxiety/stress[155]It is submitted that the references to stress and anxiety in the GP records ‘come late in the day’, and largely after the Claimant went off work sick in November 2020.[156]There is no clinical diagnosis of depression and the Claimant took no medication for it.[157]Counsel submits that until November 2020 it is not clear from the medical evidence what effects the stress at work is having and indeed whether the stress is an important factor in his health at all.[158]Counsel refers to: J v DLA Piper UK LLP 2010 ICR 1052, EAT and submits that there is a distinction to be drawn between suffering “clinical depression” rather than simply a reaction to adverse life events and the latter applies, he submits in this case.[159]Even if wrong about the effects of stress, counsel argues that the effects did not last 12 months because they only started from November 2020 and there is no evidence of likelihood of lasting 12 months from that date; there is no expert evidence, the Claimant did not require medication and it was reactive to what was happening at work.[160]Counsel also referred to Mr E Parnaby v Leicester City Council UKEAT/0025/19/BA and invited me to distinguish that case on the grounds that in this case, the Claimant was not dismissed because of his disability, he resigned.[161]Counsel also submits there is no evidence that the Claimant stopped exercising because of stress, he was drinking too much and he was warned about his lifestyle. Claimants submissions[162]Counsel for the Claimant clarified that the included a claims do not include a complaint that the dismissal was an act of disability discrimination. Counsel referred to paragraph 21 of the further and better particulars of the claim (p.46) where it sets out the claim of constructive unfair dismissal based on a breach of the implied duty of mutual trust and confidence.[163]Counsel submits that there is a problem with the Respondent’s submissions in that I am being invited to separate out the two conditions of hypertension and stress/ anxiety, when what I am invited to do by the Claimant is combine the two conditions and focus on the combined effects; headaches, heart palpitations, chest pains that lead to the effects and whether together they meet the definition of substantial.[164]Counsel referred to the Claimants’ evidence about his lack of motivation, not playing squash, not exercising, not going to the pub, or engaging in social situations and the Effect on relationships and together they are substantial and that the high blood pressure ‘can’ cause itself cause stress and anxiety.[165]Counsel refers to the hypertension diagnosis in January 2019 and by March 2019 the symptoms are “already manifesting themselves “.[166]I asked by what date he submits the effects had lasted or were likely to last 12 months, counsel submitted that it was February 2020, based on the fact that hypertension and stress were recorded in the records back in January and March 2019. Counsel submits that the effects had lasted for 12 months by that stage but in any event by March 2021, it was clear that the effects were likely to last more than 12 months.[167]As for the OH report, counsel submits that the explanation for the two versions is that it was probably amended after the Claimant had asked for a copy of the report.[168]Counsel also submits that I must consider the effects of the conditions without the medication and counselling but did not expand on this and make submissions about it was being alleged the effects would be but for the treatment.[169]Counsel concedes that there is no diagnosis of depression but when considering the stress/ anxiety I am invited to take into account the high reading from the assessment about his mood (23/27).[170]As for the Parnaby case, counsel submits that the claimant’s resigned in circumstances where it was constructive unfair dismissal but in any event his symptoms have continued from that date (ie termination was not curative in any event). The Law Disability[171]The definition in section 6 (1) Equality Act 2010 (EqA) is the starting point for establishing the meaning of ‘disability. The supplementary provisions for determining whether a person has a disability are set out in Part 1 of Schedule 1 to the EqA.[172]The Government has issued ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (‘Guidance’) under S.6(5) EqA. The Guidance does not impose any legal obligations in itself but courts and tribunals must take account of it where they consider it to be relevant para 12, Sch 1, EqA and Goodwin v Patent Office 1999 ICR 302, EAT.[173]The Equality and Human Rights Commission (EHRC) has published the Code of Practice on Employment (2015) (‘the EHRC Employment Code’), which provides some guidance on the meaning of ‘disability’ under the EqA and this also does not impose legal obligations but must be taken into account where it appears relevant to any questions arising in proceedings.[174]The Equality Act 2010 contains the definition of disability and provides: Section 6. Disabilitya. A person (P) has a disability if— i. P has a physical or mental impairment, and ii. the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. … Schedule 1 sets out supplementary provisions including: Part 1: Determination of disability Impairment Long-term effects 2 (1) The effect of an impairment is long-term if— iii. it has lasted for at least 12 months, iv. it is likely to last for at least 12 months, or v. it is likely to last for the rest of the life of the person affected.b. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.c. For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.d. Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.e. Effect of medical treatment 5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— i. measures are being taken to treat or correct it, and ii. but for that, it would be likely to have that effect.f. “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid. PART 2 GUIDANCE
Preliminary
[175]This Part of this Schedule applies in relation to guidance referred to in section 6(5). Examples 11 The guidance may give examples of— (a)effects which it would, or would not, be reasonable, in relation to particular activities, to regard as substantial adverse effects; (b) substantial adverse effects which it would, or would not, be reasonable to regard as longterm. Adjudicating bodies 12(1) In determining whether a person is a disabled person, an adjudicating body must take account of such guidance as it thinks is relevant. The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011)[176]Relevant provisions which I have considered include the following and I have emboldened certain parts which I consider to be particularly pertinent; A3. The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. A4. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities.... A5. A disability can arise from a wide range of impairments which can be: 2.mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post-traumatic stress disorder, and some self-harming behaviour… A6. It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa. A7. It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment, although an addiction to alcohol itself is expressly excluded from the scope of the definition of disability in the Act. What it is important to consider is the effect of an impairment, not its cause – provided that it is not an excluded condition. (See also paragraph A12 (exclusions from the definition).) Section B Meaning of ‘substantial adverse effect’ B1. The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect. This is stated in the Act at S212(1). B2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity. Cumulative effects of an impairment B4. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect. B6. A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities. Effects of behaviour B7. Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial, and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities. Effects of treatment B12. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. B13. This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect… Section C: Long-term The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected. Meaning of ‘likely’ C3. The meaning of ‘likely’ is relevant when determining:• whether an impairment has a long-term effect (Sch1, Para 2(1), see also paragraph C1); whether an impairment has a recurring effect (Sch1, Para 2(2), see also paragraphs C5 to C11); whether adverse effects of a progressive condition will become substantial (Sch1, Para 8, see also paragraphs B18 to B23); or how an impairment should be treated for the purposes of the Act when the effects of that impairment are controlled or corrected by treatment or behaviour (Sch1, Para 5(1), see also paragraphs B7 to B17). In these contexts, ‘likely’, should be interpreted as meaning that it could well happen. Recurring or fluctuating effects C5. The Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. Meaning of ‘normal day-to-day activities’ D2. The Act does not define what is to be regarded as a ‘normal day to-day activity’. It is not possible to provide an exhaustive list of day to-day activities, although guidance on this matter is given here and illustrative examples of when it would, and would not, be reasonable to regard an impairment as having a substantial adverse effect on the ability to carry out normal day-to-day activities are shown in the Appendix. D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. Adverse effects on the ability to carry out normal day-to-day activities D11. The Appendix set out an illustrative and non-exhaustive list of factors which, if they are experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. The following examples appear relevant to this case; Difficulty entering or staying in environments that the person perceives as strange or frightening; Persistent general low motivation or loss of interest in everyday activities; Persistently wanting to avoid people or significant difficulty taking part in normal social interaction or forming social relationships, for example because of a mental health condition or disorder. Case Authorities[177]The time at which to assess the disability is the date of the alleged discriminatory act: Cruickshank v VAW Motorcast Limited 2002 ICR 729 EAT.[178]Goodwin v Patent Office 1999 ICR 302 EAT; The EAT set out guidance on how to approach such cases; “Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions.(1) The impairment condition Does the applicant have an impairment which is either mental or physical?(2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry’ out normal day to day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?(3) The substantial condition Is the adverse effect (upon the applicant’s ability) substantial?(4) The long-term condition Is the adverse effect (upon the applicant’s ability) long-term? Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that dis-aggregation should not take one’s eye off the whole picture.[179]In J v DLA Piper (2010 ICR 1052) the Employment Appeal Tribunal , presided over by Underhill P, gave important guidance as to the approach to the determination of disability which Employment Tribunals should adopt at paragraphs 39 and 40 of their judgment and I have considered that guidance.[180]In All Answers Ltd v W 2021 IRLR 612, CA, the Court held that the EAT was wrong to decide that the tribunal’s failure to focus on the date of the alleged discriminatory act was not fatal to its conclusion that the claimants satisfied the definition of disability. The Court held that, following McDougall v Richmond Adult Community College 2008 ICR 431, CA, the key question is whether, as at the time of the alleged discrimination, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at that date and so the tribunal is not entitled to have regard to events occurring subsequently.[181]The impairments do not need to be related or interact with each other for their combined effect to be considered — Ginn v Tesco Stores Ltd EAT 0197/05.[182]Where a claimant is seeking to rely on a number of potential conditions and it is unclear which conditions might have led to his or her various symptoms, it is important that the tribunal makes clear findings as to the nature of the disability and which symptoms were attributable to it: Morgan Stanley International v Posavec EAT 0209/13[183]Mr E Parnaby v Leciester City Council UKEAT/0025/19/BA The EAT determined that, as set out in the headnote ; “..The ET had needed to consider the question of likelihood – whether it could well happen that the effect would last at least 12 months or recur – at the time at which the relevant decisions were being taken, which was prior to the implementation of the decision to dismiss”. Conclusions[184]Having regard to my findings of fact, and applying the appropriate law, and taking into account the parties' submissions, I have reached the following conclusions:[185]The first matter we have to decide is whether the Claimant has established that he was suffering from the pleaded impairments at the relevant time: (1) The impairment/condition Hypertension[186]I am mindful of the guidance on Goodwin repeated in the DLA Piper case, that in in cases where there may be a dispute about the existence of an impairment it will make sense, to start by making findings about whether the Claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.[187]However, it is not disputed that the Claimant had the impairment of hypertension and that it was diagnosed in January 2019. Counsel for the Claimant in his submissions did not seek to argue that I should find that the Claimant had this impairment at a time prior to January 2019.[188]The GP notes support the Claimant’s case, not disputed by the Respondent that he continued to have this impairment from 2 January 2019 throughout the relevant period. He was still being prescribed Ramipril until 12 May 2021, albeit there was some fluctuation in his blood pressure levels. Stress/ anxiety[189]It is conceded in submissions by the Claimant that there was no formal diagnosis of clinical depression during the relevant period, and I am not invited to make a finding that contrary to the medical evidence, the Claimant suffered from clinical depression. The condition is identified within the further and better particulars of the claim, as anxiety and in submissions counsel referred to the condition only as stress/ anxiety.[190]Counsel for the Respondent focusses on the effects and cause of the symptoms which he submits are due to adverse life events, as supporting a finding that the Claimant did not have what could be described as an ‘impairment’.[191]Because of the absence of any formal diagnoses, I consider that it is appropriate to return to the question of whether the symptoms he suffered from stress/anxiety are such that they support a finding that he was suffering from a condition amounting to an impairment; Section C of the Guidance.[192]While the effects on the Claimant of one condition may not have been during the relevant period, sufficiently substantial to constitute a disability, the cumulative effects of his problems may have had an adverse and substantial impact on his ability to carry out day-to-day activities. The impairments do not need to be related or interact with each other for their combined effect to be considered: Ginn v Tesco Stores Ltd EAT 0197/05.[193]A potential difficulty with cases involving more than one impairment is however, that it may be unclear which symptoms are attributable to which impairment and in this case the medical evidence confirms that the Claimant suffered from a number of conditions during the period from 2018 onwards to the end of the relevant period ( tennis elbow, viral infections, etc) and symptoms ( headaches, palpitations etc) which might or might not have been part of or attributable to the two conditions he has pleaded in his claim.[194]The lack of detail from the Claimant in his evidence and the absence of a medical report makes the task of assessing which impacts arise from which conditions difficult. However, it is nonetheless incumbent on me to identify the nature of the disability as far as I am able to do so, and make findings as to which symptoms were attributable to the conditions that the Claimant is relying upon. (2) Adverse effects of the condition/s[195]Did the impairment have an adverse effect on the Claimant’s ability to carry out normal day to day activities ?[196]I reminded myself of paragraph A7 of the Guidance including that the effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa and A8 which provides that it is not necessary to consider how an impairment is caused .What it is important to consider is the effect of an impairment not its cause – provided that it is not an excluded condition. Hypertension : impairments Headaches[197]Taking into consideration account the NHS guidance that has been supplied which neither party seeks to argue against and in the absence of any medical report, I conclude that hypertension generally speaking, rarely has noticeable symptoms.[198]Counsel for the Claimant submits that I must consider the effects of the conditions without the medication and indeed the counselling. Before considering the impact of the medication, the first step is to determine what the effects of the hypertension were from January 2019.[199]The Claimant describes headaches and although in his evidence in chief he refers to the headaches being because of hypertension, there is no reference in the GP notes to his doctor expressing an opinion that there is or is likely to be, any link between the headaches and hypertension. As set out in my findings, the Claimant is advised that it is “unlikely” that there is any link (p. 136)[200]The Claimant does not allege that he had been told that the hypertension was the cause or likely cause of the headaches. His evidence is that he did not know and it was not for him to say. However, the burden of proof rests with the Claimant and if his own case is that he does not know whether there is a link or not and he has not produced any medical evidence to even suggest a link, in light of the contradicting evidence, the only possible conclusion is that he has failed to satisfy the burden of proof. He has not established on the balance of probabilities that the headaches he alleges he suffered were related to the impairment hypertension.[201]Aside from the issue of whether it is the pleaded impairment of hypertension which caused the headaches, the Claimant’s description of his headaches/ the effects, is I conclude, not credible. The Claimant’s evidence about the frequency and severity of the headaches is not consistent with the medical evidence as set out in my findings. His description of those effects is not plausible and I conclude is exaggerated.[202]The Claimants’ description was of headaches which were “ constant” from “morning to night” such that he had to; “ lie down in a dark room on the bed”. He also described how paracetamol did not help and therefore there is no issue about considering how serious those headaches may have been but for this medication. Further, despite numerous attendances with his GP from January 2019 to March 2021, there is scant reference to a problem with headaches and nothing on the scale he describes.[203]There is a reference to headaches and dizziness on 9 January 2019 but no description of the impact as he describes it or the frequency of them. There is also reference over a year later on 16 February 2021 to headaches but again nothing in terms of the extent or severity he describes.[204]The Claimant alleges the headaches were not significant because he had them so often and that he puts forward as the explanation for not mentioning them to his GP. That is simply not credible. He reports a cough for example but over a number of years neglects to mention headaches so intense and frequent that he has to lie in a dark room.. He does not ask his GP for any stronger pain killers and although he describes how ‘alert’ he needs to be to function in his job, he continued to work while allegedly suffering daily, debilitating headaches[205]Further, as set out in my findings there are entries where the Claimant is reported as feeling well on 11 March 2020 and on 19 May 2020 (p. 131).[206]I do not find credible nor plausible that someone suffering with such constant and debilitating headaches could continue to carry out a job which requires them to be alert while being unable to ameliorate the headaches with pain killers, and although he mentions to his doctor having quite a sore throat (p.134) he does not consider the headaches sufficiently significant to mention.[207]I find on balance that the Claimant had on occasion, suffered some headaches because the notes report him 9 January 2019 and over 12 months later on 16 February 2021 referring to having headaches, however, I do not find that he had those uninterrupted over a period of 12 months and further, do not accept that the limitation caused by the headaches were substantial. I conclude that he had occasional headaches and that it is normal for people to have occasional headaches. I do not find that the headaches had the impact he describes, which would explain why he never asked for stronger painkillers from his GP.[208]I heard no evidence about the likelihood of the headaches recurring after 19 January 2019 or 16 February 2021, on the occasions when he reported having them . On 9 January 2019 the Claimant was suffering with a viral infection, which I conclude is most likely to have been the cause of the headaches he was reporting on that occasion. The GP also cautions the Claimant about his lifestyle, his alcohol consumption and weight, which may also have been a cause or contributory factor.[209]I conclude that the Claimant has failed to establish that the headaches were an effect of the hypertension. I am also not persuaded that the headaches were such that they had a substantial effect on normal day to day activities. I do not find the Claimant’s description of their severity or frequency to be reliable. (I am mindful that if not substantial separately however, I need to consider the combined effect). Insomnia[210]The Claimant’s description of the problems he had sleeping would amount to a substantial adverse on his normal day to day activities (i.e. sleeping) and be likely to have caused significant fatigue during the day. However, I do not find his description of the impact on his sleep from October or even from January 2019 to November 2020 to be credible. There are scant references to this problem in the GP notes and further. I take into consideration that he continues to be able to carry out his job (subject to short periods of absence and time away from work during the Covid shutdown), until November 2020.[211]From October 2018 the Claimant was in pain from an elbow injury and on balance, my findings are that if his sleep was effected during this period, it was more likely than not due to the pain from his elbow. He was signed off work in December 2019 but this was due to his elbow injury and related not to his employment with the Respondent but to the second job which according to the GP records, required manual work.[212]I conclude that the Claimant has failed to establish that insomnia was an effect of the hypertension. Chest pains /palpitations[213]The Claimant complains of chest pains and palpitations from October 2018 . There is medical evidence of reports of these chest pain and palpitations (p.126) however, there is no medical evidence that links the chest pains and palpitations to the hypertension. As set out in my findings, the only diagnosis is that the chest pains are due to MSK and the is treatment prescribed is simple analgesia. The Claimant suffered a road traffic accident which caused ongoing musculoskeletal pain. The Claimant took no time off work form the Respondent from March to August 2019. The Claimant maintains that the chest pain and palpitations may be due to anxiety about the hypertension and I address this below.[214]An ambulance was called out to the claimant on 16 October 2019 and 18 April 2020 when the claimant was attended by the Ambulance Service because he was experiencing abdominal and back pain but there is no indication in the medical evidence that the pain was caused by high blood pressure. The Claimant attended hospital on 31 October 2020 complaining again of chest pain but an ECG was conducted with no abnormality detected.[215]The Claimant’s oral evidence is that at the time he thought the pains and palpitations may have been caused by medication for the blood pressure however, there is medical evidence to support this and complains of chest pains and heart palpitations before he started taking the medication.[216]I am not persuaded on the evidence that the chest pains or palpitations, were an effect of the hypertension and the Claimant himself in answer to questions in oral evidence shifted his position to allege that they are a “classic sign of anxiety” rather than caused directly by the hypertension or medication. His evidence was not consistent on which impairment he was alleging caused those effects and I find on balance on the medical evidence, that any chest pain was caused by MSK and that the palpitations were possibly a result of panic, a side effect of the MSK chest pain. Diarrhoea[217]The Claimant complains of diarrhoea, however there is no medical evidence to link this to the blood pressure.[218]The entry for diarrhoea and vomiting in January 2019 was at time when the Claimant also had a rash and he does not seek to argue that those symptoms related to high blood pressure.[219]The Claimant complains that he suffers with diarrhoea as a result of the medication however, there is no reference in the medical notes to suggest that the Claimant is suffering from diarrhoea as a result of the medication. While taking the medication, he did not have a significant amount of time off work as a driving test examiner, until there was an escalation in his anxiety/ stress later in November 2020 and by that stage, the Claimant had for many months been taking the same medication.[220]In conclusion, I do not find his evidence plausible that he was suffering from such adverse side effects from the medication and this is not reflected in the medical evidence and did not prevent him from carrying out his driving duties. Further, I conclude what is more likely is that the occasional incidents of diarrhoea were caused by other unrelated conditions such a viral infections. Lack of exercise/ impact on sports/hobbies[221]The Claimant alleges that he did not engage in exercise and sports because of daily headaches and chest pains. As I have concluded, the Claimant has not established that the chest pains and headaches were linked to the hypertension.[222]There is in the GP notes a reference in September 2019 to the Claimant not undertaking activities but this impact on his activities, is recorded as due to reduced confidence, not due to heart palpitations and chest pain but the injuries arising from the road traffic accident as set out in my findings.[223]Throughout the GP reports there is also reference to the Claimants’ lifestyle and the GP encouraging the Claimant to exercise, reduce his weight and drink less alcohol.[224]There is no evidence that the hypertension caused the chest pains or palpitations, or that he was unable because of the hypertension, to continue to exercise.[225]In conclusion, I am not persuaded that any reduction in his sporting activities and exercise is a side effect of the medication or hypertension. Blurred vision[226]I am not persuaded that the Claimant’s report of blurred vision is linked to the impairment of hypertension.[227]The Claimant in his evidence in chief states that the hypertension “may” have caused blurred vision but there is no advice from an Optometrist or Ophthalmologist or even his optician to suggest that there was any connection. The Claimant’s description of the impact on his vision is also in any event, I find not substantial, he describes it occurring when he watched TV and will need half an hour to reset his vision or if he reads for a long time but does not describe how long that it and those affects may of course be due to natural aging.[228]I am not persuaded on the evidence that the Claimant has established, that there was a link between the hypertension and the blurred vision. Concentration/memory[229]There is no evidence in the medical records to suggest that he suffered from the alleged effects on his concentration and memory as he describes or that such effects are linked to the impairment of hypertension or the medication he takes for it.[230]I am not persuaded on the evidence and my findings of fact as set out, that the Claimant has established that there was a link between the hypertension and any such alleged effects. Social life/ effect on relationships[231]The Claimant refers to rarely going to the pub and the impact on the relationship with his partner, although he did not expand on what that impact on his relationship is and therefore it is not possible to assess the severity of it.[232]The Claimant does not in his evidence, explain however why he alleges the effect on those activities are caused by the impairment of hypertension rather than the stress and anxiety he was feeling and there is no support for them being an effect of the hypertension in the medical evidence, as set out in my findings.[233]I am not persuaded on, that the Claimant has established, that there was a link between the hypertension and these alleged effects on those activities. Medication[234]With respect to effects of the medication and the extent to which this may have masked the extent of the adverse effects, the Claimant’s evidence is that he does not take medication for the headaches, and paracetamol makes no difference.[235]In terms of the hypertension, the Claimant’s evidence is that the Claimant gave evidence in response to my questions, that the symptoms/adverse effects were not helped by the medication in his opinion. He gave evidence that while he complains of chest pain before taking the medication his evidence is that after he was diagnosed with high blood pressure and started the medication, the chest pains did not go, the symptoms continued as before.[236]The Claimant refers in his evidence to the long terms effects with uncontrolled HP including high risk of stroke and heart attack. There is no medical evidence however specific to the Claimant about the likely effects for him of the hypertension impairment if he did not take the medication or what the likelihood would be of a stroke or heart attack.[237]Further, I also take into account that the ‘likelihood’ of such long term effects would also have to take into account the effect/impact of his own behaviour and what he could reasonably be expected to do to modify his behaviour including the reasonable restrictions he should place on his lifestyle, including reducing his consumption of alcohol and controlling his diet, as he was being fairly regularly advised to do. On the 30 November 2020 his GP is recorded as referring to him drinking over 60 units of alcohol per week and 5 years of regular weekend binges and that the blood pressure readings were raised about the same time and the Claimant understanding that raised blood pressure may be related and that he is confident he can stop drinking.[238]I accept the Claimant’s evidence which was not disputed, that anxiety can increase blood pressure and thus controlling anxiety can in turn help control hypertension. I have therefore considered to what extent the counselling should be considered when determining whether the impairment of hypertension was likely to have caused a stroke or heart attack as the Claimant but for this treatment. However, the Claimant did not address this specifically in his evidence nor did he produce any medical opinion to assist me in that exercise. The Claimant has not therefore established that without the counselling, the hypertension is likely to have had a substantial adverse effect on his normal day to day activities.[239]In conclusion, there are no adverse effects on the Claimants’ normal day to day activities which he has established on the balance of probabilities, were caused by the pleaded impairment of hypertension or that the impairment is likely to have a substantial effect on his day to day activities or result in a stroke or heart attack, but for the medication and/or counselling. Anxiety[240]The Claimant in his oral evidence focused on the anxiety induced by the heart palpitations and the impact this had on his confidence to undertake exercise however, I am not satisfied that the anxiety and stress he felt was the cause of the chest pains and palpitations. The chest pains are more likely I find, to have been caused by MSK, but accept his evidence that the pains in turn caused him some anxiety.[241]The Claimant’s evidence is that his health declined from March 2020 when he was allocated another line manager at work, and the medical records do refer to the Claimant feeling very stressed in the context of work from January 2019 (p.125) and then on 4 March 2019 (p.126) again in the context of work. He reports feeling slightly anxious or depressed in in September 2019. There is no referral for counselling or discussion about medication and there is no report of any symptoms as a result of the stress in the GP records at this time. He reports feeling well on 11 March 2020.[242]The level of stress then I find, escalates to “anxiety, fear and panic” on 3 November 2020 (p. 134). This then ties in with when the Claimant going off work sick from 30 November 2020.[243]The only symptoms referred to in the OH on 29 January 2021 report are high blood pressure , insomnia and headaches. High blood pressure is however not of itself an effect on normal day to day activities. There is no reference in the medical evidence to further panic attacks after the 25 January 2021 and I heard no evidence (or submissions) about the likelihood of the reoccurrence of panic attacks.[244]The headaches the Claimant alleges he began to suffer from October 2018 he asserts could be caused by hypertension or the anxiety. For the reasons I have set out in my findings and conclusions, I am not persuaded that the Claimant suffered the headaches as severe or frequently as he alleges. The stress and anxiety is not reported until many months after the Claimant alleges he started experiencing the alleged debilitating headaches.[245]I take into consideration however, that the OH report does refer to headaches. This does tie in with an entry in the GP records on 16 February 2021 reporting headaches and the further entry on 23 February 2021 which reports that he is still having headaches and paracetamol does not help.[246]I am persuaded on the basis of the OH report and GP records, that by January 2021 the Claimant was suffering with headaches and as this was at a time when he was now reporting fairly regularly with stress and reporting feeling tense, that the headaches on a balance of probabilities, were caused by the stress/anxiety. I am not persuaded that the headaches even during this period, were as severe or frequent as the Claimant alleges. His account of their impact is not supported by the medical records or OH report. I do accept on balance that he was having fairly regular headaches during this period which were not alleviated by medication. Given how unreliable however I find the Claimant’s evidence as to the extent of the impact of the symptoms, it is difficult or make a finding as to the severity or frequency.[247]The OH report also refers to the Claimant suffering from insomnia.[248]The Claimant was signed off work from November 2020. The Claimant refers to prior to this, after his return in June/July 2020 following the Covid shutdown period (March to June 2020), returning home and feeling ‘shot’ and just because he could do his job, the Claimant argues that this does not mean that the effects did not make it more difficult. In March 2020 he was reported as sounding well on the phone by his doctor and in April 2020 he had bought a treadmill and had been using it for the last week. At the end of May he reports concerns about returning to work and stress at work in July 2020, but there is no report in the GP notes of insomnia or headaches or other symptoms that were causing him difficulties, until the chest pains and palpitations on 31 October 2020 (as set out in the findings) and then anxiety , fear, and panic on 3 November 2020. The Claimant was then signed off work with work related stress from 30 November 2020.[249]As set out in my findings from November 2020 he is then reporting a collection of symptoms; panic attacks, headaches, lack of motivation, poor sleep and is in due course referred for counselling.[250]The effects the Claimant describes in his evidence about lack of motivation, sleep, headaches, panic attacks, lack of interest in social engagements, is supported by the OH report and GP records from November 2020 and he is then signed as unfit to return to work.[251]It is not possible to reach a finding on how substantial each of those effects were separately given that I have found the Claimant’s description of the impact of the effects to be unreliable and the lack of supporting medical evidence however, taking into account the OH report, the Claimant’s evidence about the symptoms worsening over time and the entries in the GP records and the GP signing the Claimant as unfit to work, I am persuaded that from the end of October 2020 the combined effects at least of those symptoms were, on a balance of probabilities, more than trivial. I conclude that the Claimant was experiencing persistent general low motivation or loss of interest in everyday activities including attending social events and carrying out exercise; at times a loss of concentration, wanting to avoid people or difficulty taking part in normal social interaction and difficulty sleeping.[252]I conclude that the substantial adverse effects started from the end of October 2020 when he first reported (p. 133) chest pains for 3 days and palpitations following which on 3 November 2020 he was recorded as experiencing anxiety, fear and panic.[253]Returning the issue of impairment, I conclude that the effects he was experiencing, collectively were caused by stress/anxiety and that the Claimant suffered from a stress-related illness. (3) Long term[254]The next issue to determine is whether at any point from October 2020 until the end of the relevant period in March 2021, the impairment of a stress related condition was likely to last for 12 months.[255]I take into consideration that the GP notes record in one of the last entries, on 23 February 2021, before the Claimant resigned, that the Claimant was feeling that he should make a decision about his job and hoe he feels that this would be a “massive eight off his shoulders”(p.137) .[256]This is not a situation like the Parnaby case, where I am considering the effect of a further act of alleged discrimination (i.e. a dismissal), but the effect of a decision the Claimant is himself planning to take and what he considers at this stage, the beneficial effect of that may be. The Claimant clearly is of the opinion, that to make a decision about his employment would alleviate his anxiety. The Guidance ( B7) provides that account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. I consider it equally relevant to take account of the action the Claimant himself considers he could take to prevent or reduce the effects of the stress/anxiety he is suffering by making a decision. The Claimant does make the decision ultimately of course to resign.[257]I also take into account that the Claimant had by February 2021 been signed off work and started counselling on 22 February 2021 ( according to the GP notes of the 23 February 2021: p.137). The Claimant’s evidence, not disputed, was that the counselling was due to last for 3 to 6 months. It was expected therefore that the Claimant would require counselling up to end of May or August 2021.[258]There is no medical evidence/report from the Claimant dealing with the likelihood as at October 2020 to March 2021, of the adverse effects on his normal day to day activities continuing such that they would last for 12 months (ie continue to October 2021). Whether or not the adverse effects did in fact continue, is not relevant[259]The Claimant did not address this issue of likelihood of the adverse effects being long term in his evidence, he only gave evidence that they had in fact continued[260]There is no opinion from his GP and no report from Insight Healthcare or OH, about how long the adverse effects were likely to last.[261]The evidence I have before is the Claimants’ evidence that the counselling arranged for him was to last between 3 and 6 months and there was no suggestion from the Claimant that it was anticipated (before the end of the relevant period) that he would require further sessions. There is no evidence before me, whether from the Claimant or in medical evidence about the likelihood of reoccurrence and this was not addressed in submissions.[262]Taking all these factors into account, the Claimant has not established on a balance of probabilities, that at any time during the relevant period it was likely that the adverse effects of the impairment, namely the stress- related illness, was likely to last for 12 months.[263]I stress that I am not determining what happened after the end of the Claimant’s employment. His symptoms may have become worse and he may therefore have continued to suffer the effects of the stress related illness long term however, what I am limited to considering is what happened and what was seen as likely to happen, during the relevant period only.[264]It is invariably difficult without a medical report which addresses the relevant issues and sufficiently detailed (and reliable) evidence from the Claimant, for a tribunal to determine issues around mental health, especially where there is no formal diagnosis of a medical condition (such as clinical depression). What I have had to determine is whether the Claimant has met the required burden of proof based on the evidence which has been produced. The Claimant exaggerated I conclude the symptoms and effects he was suffering from which rendered his evidence in material respects, unreliable. The burden of proving that he met the definition under section 6 of the Equality Act 2010, rests with the Claimant and he has not satisfied that burden.[265]The Claimant did not have a disability for the purposes of section 6 of the Equality Act 2010 at any stage during the relevant period. This means that the claims of disability discrimination, cannot success and are struck out accordingly. Orders Separate orders are made for case management.
Conclusions
[1]The remaining complaints of victimisation are dismissed on withdrawal by the Claimant.[2]The complaint of constructive dismissal fails and is dismissed.[1]This is a claim brought by Mr. Andrew Mills (“The Claimant”) against his now former employer, the DVSA (“The Respondent”). The Claimant commenced two sets of proceedings. In the first he complained of constructive unfair dismissal and various strands of disability discrimination. In the second he made complaints of post termination victimisation. Both claims were consolidated to be heard together.[2]At the time that he presented the first Claim Form the Claimant was unrepresented. By the time of the second claim he had secured representation by solicitors, although they parted company before this hearing, and at all times since then the Claimant has been acting as a litigant in person.[3]The first claim came before Employment Judge Blackwell at a Preliminary hearing which took place on 15th June 2021. By that time the Claimant was legally represented and it was agreed that further and better particulars of the claim were required. Those were duly produced on 21st February 2022 along with the further Claim Form complaining of post termination victimisation.[4]Disability remained in dispute and that question was considered at a Preliminary hearing before Employment Judge Broughton on 11th August 2022. She concluded that the Claimant was not at the material time a disabled person within the meaning of Section 6 Equality Act and accordingly all complaints of unlawful disability discrimination were dismissed save as for the complaints of victimisation.[5]There was then a further Preliminary hearing before Employment Judge Camp on 4th October 2022. By that time the Claimant was acting as a litigant in person. At that hearing Employment Judge Camp refused an application made by the Claimant to amend the claim to add further complaints of victimisation and also of detriment and dismissal contrary to Sections 44 and 100 Employment Rights Act 1996. Employment Judge Camp issued a Judgment dismissing certain parts of the claim as a result and the Judgment set out that the only remaining complaints were of “ordinary” unfair dismissal and victimisation which were limited to three acts of post termination victimisation which were set out at paragraph 38 of the second Claim Form. That was the claim that was therefore before us for determination.[6]Prior to the commencement of the hearing the Respondent had prepared a draft list of issues. We went through that with the parties before we commenced the evidence. Some refinement was made to the list of issues at the Tribunal’s request so as to replicate all of the matters on which the Claimant was relying as being causative of his resignation for the purposes of the constructive dismissal claim and to encompass all protected acts upon which he relied within the Claim Form for the victimisation complaints. That finalised list of issues was agreed by the Claimant as being all the matters which the Tribunal were required to determine. However, during discussion of the list of issues the Claimant abandoned the third complaint of victimisation as to a delay in him progressing to his Approved Driving Instruction third stage examination because in fact he never made that application.[7]Following evidence from the two witnesses who dealt with the circumstances which gave rise to the remainder of the victimisation claim the Claimant withdrew those complaints and we have dismissed them on withdrawal. We therefore do not need to say anything further about those complaints or the circumstances that gave rise to them.[8]The only complaint that therefore remained before us is that of constructive dismissal. The Claimant relies upon a breach of the implied term of mutual trust and confidence and relies on the following acts as being destructive of that implied term:a. That he was bullied by his temporary manager Mr. Rayfield and/or the Respondent did not take reasonable steps to protect him from bullying by Mr. Rayfield;b. The Respondent through Amanda Lane failed to interview any witnesses in respect of his grievance against his line manager, Tony Walker;c. The Respondent through Craig Lambourn indicated that a further investigation would be necessary following the outcome of the grievance by Tony Walker against the Claimant to establish if his behaviour towards colleagues could be in breach of the Civil Service code and the DVSA policies on respect in the workplace and warranted disciplinary action;d. The Respondent through Craig Lambourn transferred the Claimant temporarily to the Leicester Cannock Street testing centre and/or the Respondent so informed the Claimant of the move after his sickness absence had begun; ande. The Respondent failed to investigate the collective grievance in respect of Andrew Rayfield submitted on 28th October 2020 in a timely manner.[9]The Respondent denies that there was any breach as alleged or argue in the alternative that the Claimant waived his right to rely on them due to the delay in his resignation. Alternatively, it is said that following his evidence the reasons for his resignation are not clear and that in all events if he had been dismissed then there was a potentially fair reason for that dismissal and that he had contributed to it by his conduct.
THE HEARING
[10]The claim was allocated 6 days of hearing time with the first day being a reading in day for the Tribunal. Given the volume of documents within the hearing bundle and the number of witness statements that we were required to read we also spent some of the morning of the second day of hearing time concluding our reading in.[11]We concluded the evidence in the early afternoon on the fifth day of hearing time and conducted our deliberations thereafter. The parties were to return at 2.00 p.m. on the final day of the hearing to receive our Judgment. However, we determined that rather than delivering a lengthy oral Judgment which might be difficult for the Claimant as a litigant in person to follow and fully digest why we had reached the decision that we had – particularly when under pressure and stress – that we would hand down our Judgment with full written reasons as they were likely to be required anyway. In view of that the Judge raised with the parties by email in the morning of 18th November that we would be prepared to hand down the Judgment by email instead which would save both parties the time and cost of attending the hearing. Both parties were in agreement with that proposed and we proceeded accordingly.[12]Given that the Claimant was acting as a litigant in person during the course of the hearing we adjourned at times when it was clear that he needed more time to properly consider the issues in the claim and to prepare cross examination questions; referred him to the list of issues to ensure that all matters were covered and assisted him where appropriate in considering areas where he need to put questions to the Respondent’s witnesses so as to place him on as equal a footing as possible with the Respondent who was represented by experienced Counsel. That included an adjournment in the afternoon of the fourth day of the hearing to allow the Claimant time to prepare cross examination questions for Mr. Brimelow. The adjournment was opposed by the Respondent although we granted it with reasons given orally at the time. Neither party has asked that those reasons be included within this decision and so we need say no more about them.[13]Although we do not rehearse here all that we have seen and heard during the course of the hearing the parties can be assured that we have taken into account all that they have told us both in evidence and submissions before reaching a conclusion in respect of the claim before us. WITNESSES[14]During the course of the hearing we heard evidence from the Claimant on his own account.[15]On behalf of the Respondent we heard from the following witnesses:a. Andrew Rayfield – A Driving Test manager for the Respondent who had assumed line management responsibility for the Claimant and who the Claimant contends bullied him during that time;b. Craig Lambourn - Operational Delivery Manager for the Respondent who oversaw and implemented recommendations made in respect of grievances raised by and against the Claimant;c. Amanda Lane – the manager responsible for investigating a grievance raised by the Claimant against his line manager, Tony Walker, and a counter-grievance raised by that individual against the Claimant;d. Simon Rossiter – the decision maker in respect of the above grievance;e. Mike Dalton – the decision maker in respect of a collective grievance raised by driving examiners, including the Claimant, against Andrew Rayfield;f. Kelly Phillipson – Operations Manager for the Respondent’s Test Theory Centre which dealt with the Claimant’s application to be placed on the Approved Driving Instructor (“ADI”) register after his employment with the Respondent had terminated; andg. Tim Brimelow – National Deployment Manager for the Respondent’s ADI booking team.[16]In addition to the witnesses from whom we have heard we have paid careful reference to the documentation within the hearing bundle before us and to the helpful submissions received both from the Claimant and from Mr. Serr on behalf of the Respondent. If we fail to mention something in this Judgment that does not mean that we have not considered it as the parties can be assured that we have taken into account everything that we have been told when reaching our decision.
The Law
[17]Before turning to our findings of fact, we remind ourselves of the law which we are required to apply to those facts as we have found them to be. Constructive dismissal[18]Section 95 provides for a situation where an employee terminates the employment contract in circumstances where they are entitled to do so on account of the employer’s conduct – namely a constructive dismissal situation.[19]Tribunals take guidance in relation to issues of constructive dismissal from the leading case of Western Excavating – v – Sharp [1978] IRLR 27 CA:- “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; or, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”[20]Implied into every contract is a term that an employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee. Breach of that implied term, if established, will almost always inevitably be repudiatory by its very nature.[21]The question of whether or not there has been a repudiatory breach of the duty of trust and confidence is to be judged by an objective assessment of the employer’s conduct. The employer’s subjective intentions or motives are irrelevant. The actual effect of the employer’s conduct on an employee are only relevant in so far as it may assist the Employment Tribunal to decide whether it was conduct likely to produce the relevant effect.[22]If there is a fundamental breach of contract, an employee must, however, resign in response to it. That requirement includes there being no unconnected reasons for the resignation, such as the employee having left to take up another position elsewhere or any other such reason if that is unrelated to the breach relied upon. However, if the repudiatory breach was part of the cause of the resignation, then that suffices. There is no requirement of sole causation or predominant effect (see Nottinghamshire County Council v Meikle [2004] IRLR 703).[23]It is possible for an employee to waive (or acquiesce to) an employer’s breach of contract by their actions, including continuing to accept pay or a lengthy delay before resigning. In those circumstances, an employee may affirm the contract and will be unable to rely upon any breach which may have been perpetrated by the employer in seeking to argue that they have been constructively dismissed.[24]Tribunals are also assisted by the guidance in Kaur v Leeds Teaching Hospitals NHS Trust [2018] I.R.L.R. 833 which requires us to consider the following when determining a complaint of constructive dismissal:(i) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(ii) Has he or she affirmed the contract since that act?(iii) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of trust and confidence? and(iv) Did the employee resign in response (or partly in response) to that breach? FINDINGS OF FACT[25]We ask the parties to note that we have only made findings of fact where those are required for the proper determination of the issues in this claim. We have therefore invariably not made findings in respect of each and every area where the parties are in dispute with each other on the evidence.[26]The Claimant was employed by the Respondent as a Driving Examiner (“DE”) based at one of their testing centres in Colwick in Nottingham. He worked there in that capacity between 3rd September 2018 and 16th March 2021 when his employment terminated by reason of his resignation. The Claimant had had a previous spell of employment with the Respondent which he had also resigned from before re-joining them. It is not necessary to deal with the reasons why the Claimant resigned from his initial period of employment.[27]At each of the test centres there is a Local Driving Test Manager or LDTM who effectively manages the centre itself and line manages each of the DE’s. At the time that the Claimant joined the Colwick test centre the LDTM was a Tony Walker. Grievance against Tony Walker[28]On 9th March 2020 the Claimant wrote to the then Area Manager, Thomas Neave, to raise a grievance against Mr. Walker (see page 376 of the hearing bundle). He set out that he was making a complaint of bullying and harassment and referred to Mr. Walker treating him differently to the rest of the team. He set out that the incidents that he was complaining of were too numerous to include within his grievance and therefore dealt only generically with the type of complaint that he was advancing. He did not set out in that document any examples of the conduct that he was complaining of although, as we shall come to, he did that at a later stage.[29]The trigger for the grievance related to an incident that had occurred during a telephone conversation between the Claimant and a colleague called Carol which concerned re-booking a driving test for a member of the public that had missed their own test. After that conversation Carol had called to express her dissatisfaction about how she perceived that she had been spoken to by the Claimant which she considered was condescending and that what he had asked to be done had been outside her normal procedures. She spoke at that time to Andrew Rayfield who had been covering line management duties at Colwick in the absence of Mr. Walker that day.[30]Mr. Rayfield asked Carol to send an email to himself and Mr. Walker so that it could be picked up when the latter was back at the test centre the following day. Whilst our view is that that was not strictly necessary because the matter could potentially have been resolved by simply making a note of the matter and raising it informally with the Claimant, we are satisfied that this was not done so as to seek to escalate the matter or cause a complaint to be made that had not otherwise been intended. We found Mr. Rayfield to be a credible witness and one who is minded to keep strictly to policy and that was the reason that he took the action that he did and so as to have a reference point for when Mr. Walker returned to the centre. It was not intended nor did it reasonably and objectively have the effect of bullying the Claimant.[31]Mr. Walker spoke to the Claimant about the matter in a meeting which was held in private and sent him an email on 12th February 2020 with a request for his version of events. The Claimant did not reply to that email and so Mr. Walker chased the matter up again on 29th February 2020 expressing his disappointment and requesting a response by the following week. Although there was a reference to the original meeting being a “fact find” we understand from the evidence of Mr. Rayfield that that is not a formal process but one which is used to determine if there needs to be any formal investigation.[32]The Claimant replied to say that he had not seen the original email, that he did not accept the characterisation of his conduct described by Carol and that the note of the meeting that Mr. Walker had attached to his email amounted to a character assassination because he had described him as being angry and aggressive. He ended the email by saying that he intended to raise a grievance against Mr. Walker and copied in Mr. Walker’s line manager.[33]Further email communications followed which failed to resolve the issue and the Claimant reiterated his intention to raise a grievance against Mr. Walker. In turn Mr. Walker replied to say that he no longer considered it appropriate that he be involved in the Claimant’s line management because he was raising a grievance (and indeed by that time he had done so) and that he should now contact Mr. Rayfield. Although Mr. Rayfield had originally been employed by the Respondent as a Driving Examiner at Colwick, by that time he had been promoted to an LDTM and was based at another of the three test centres in Nottingham.[34]On 25th March 2020 Mr. Neave wrote to the Claimant in polite terms expressing his concern about the situation and asking to meet with him to see if the matter could be resolved using the dispute resolution policy. As we understand it that policy is in effect an attempt to resolve matters on an informal footing such as the use of mediation to try to repair relationships. Mr. Neave expressed a preference to use that process to try to resolve matters but explained that if the Claimant still wanted to raise a formal grievance then he was entitled to do so and he explained how the Claimant could go about that.[35]The Claimant did not wish to seek an informal resolution of his complaints and submitted his grievance formally to Mr. Neave. That was acknowledged on 2nd April 2020 by Mr. Neave who asked the Claimant for examples of the bullying and harassment that he was complaining about (see page 396 of the hearing bundle). He at the same time asked the Claimant to again consider in the first instance dealing with an informal resolution and referred to the fact that meetings to discuss matters would need to take place by Skype or on the telephone because by that time England was in the first national lockdown due to the Covid-19 pandemic.[36]The Claimant replied on 5th April 2020 to say that he was not comfortable dealing with matters without a face to face meeting and as that could not be done it would not be possible to move matters forward at that time. He did not at that stage provide the examples that Mr. Neave had asked for about his complaints of bullying and harassment.[37]On 29th April 2020 Mr. Neave notified the Claimant that he would not be progressing the grievance as a formal complaint because he could not move forward with it without the examples that the Claimant relied upon as amounting to bullying and harassment. He also pointed out that he could not place matters on hold for an indefinite period of time until face to face meetings were again possible. No-one knew at that stage of course how matters were going to turn out in respect of the pandemic and lockdowns.[38]The Claimant replied to express his dissatisfaction at that position and on 7th May 2020 provided details of the allegations that he said amounted to bullying and harassment by Mr. Walker (see pages 428 and 429 of the hearing bundle).[39]Whilst he referred to there being instances of bullying going back to the commencement of his employment, the only actual examples of what he said amounted to bullying and harassment that he gave were these:a. The incident with the complaint from Carol and that Mr. Walker had referred to the Claimant looking at three disciplinaries but that had dealt with things differently for another DE, Mr. Johnson, who had had a complaint made against him;b. An incident when he had left the office to get tea and coffee supplies for the Approved Driving Instructors (“ADI’s) and Mr. Walker had taken him to task and made reference to a disciplinary; andc. That Mr. Walker had described him as an aggressive character who refused to cooperate.[40]However, in the meantime, Mr. Walker had been notified that the Claimant’s grievance was not going to be progressed because he had not provided examples of the complaints that he was making. As a result of that Mr. Walker issued what has been termed as a counter-grievance against the Claimant. That was sent to Mr. Neave on 30th April 2020 (see pages 399 to 403 of the hearing bundle). The grievance that Mr. Walker raised expressly set out that it did not contain allegations of bullying, harassment or discrimination (something that it appears requires confirmation on the template grievance form) but that the complaint was that the Claimant’s grievance had been malicious because it had no foundation in evidence and that he had deliberately not followed the dispute resolution procedure so as to elongate the process to Mr. Walker’s detriment.[41]Mr. Walker provided an update to his complaint on 25th June 2020 (see pages 415 to 417 of the hearing bundle) although that related more to his position that there had been no cause for the Claimant to allege that he had been bullied and harassed and to suggest a way in which he wanted his own grievance to be resolved. That included his position that he could not work with the Claimant again irrespective of the outcome of his complaints.[42]The Claimant’s grievance was progressed following his email of 7th May 2020 setting out the details of his complaints against Mr. Walker. Both that grievance and the grievance of Mr. Walker were passed to Amanda Lane, an LDTM in another area to investigate. That was done by Craig Lambourn who by that time had taken over responsibility for the grievances from Mr. Neave whose role as Operational Delivery Manager (“ODM”) he had assumed on 18th May 2020.[43]Mr. Lambourn provided terms of reference to Amanda Lane in respect of both the Claimant’s grievance and that of Mr. Walker. She then carried out investigations in respect of both grievances. We comment only on the process and outcomes of the grievances where there is a need to do so in view of the issues involved in these proceedings.[44]Following receipt of the terms of reference Ms. Lane arranged to meet with both Mr. Walker and the Claimant in order to deal with her investigations into their respective grievances.[45]The Claimant met with Ms. Lane for an investigatory meeting on 11th August 2020. Towards the end of the meeting the Claimant gave the names of three other DE’s at Colwick who he said had commented that Mr. Walker had either bullied him or made comments of the type that he was treated differently to others.[46]Ms. Lane sought advice from Human Resources (“HR”) after the meeting and she determined thereafter that it was not necessary for her to interview those individuals. Her rationale for that was that it would require all DE’s at Colwick to be interviewed rather than any who had effectively been cherry picked and none of them could in any event shed any light on the three instances of bullying conduct which the Claimant relied upon because he had accepted that that had all taken place “behind closed doors” and there were no witnesses. She therefore viewed interviewing anyone else as “fishing”.[47]In our view it would have been better for Ms. Lane to have interviewed the DE’s named by the Claimant. That is because if they had made comments about bullying on the part of Mr. Walker and that was their perception, examples of other instances that they had witnessed might well have informed Ms. Lane about what had gone on “behind closed doors” and whether the Claimant’s account was to be preferred.[48]However, whilst that it our view it was nevertheless legitimate for Ms. Lane to approach the investigation in the way that she did given that no-one named by the Claimant had witnessed anything material of which he was complaining. Indeed, in his evidence before us the Claimant was not able to say what, if anything, any of those people interviewed would have said that would have changed the outcome, they were not approached at any stage of the internal processes by the Claimant or his trade union representative to give statements and we have not heard evidence from any of them. This was therefore not a serious omission on the part of Ms. Lane and there is nothing at all to say that it would have affected the outcome of the grievance for the reasons that we have already given.[49]Ms. Lane met separately with the Claimant and again with Mr. Walker to discuss the grievance of the latter. Those meetings took place on 21st and 25th August respectively. She also met with Mr. Rayfield as part of her overall investigations and that meeting took place on 10th September 2020.[50]The Claimant accepted in his evidence that it was understandable that Ms. Lane spoke to Mr. Rayfield as part of the investigation because he was a witness to the “Carol complaint” given that he had initially taken the telephone call from her.[51]Ms. Lane compiled a report in respect of her investigation and sent that to Mr. Lambourn on 6th October 2020. Whilst Mr. Lambourn was the decision maker at that time, that role was subsequently passed on to Simon Rossiter, another ODM of the Respondent, in November 2020. That was because, as we shall come to, by that time the DE’s at Colwick had raised a collective grievance against Mr. Rayfield and Mr. Lambourn stepped back to seek to mediate a way forward in respect of those collective complaints.[52]We accept the evidence of Mr. Rossiter that he spent some time considering Ms. Lane’s reports and the evidence that was appended to them which she had gathered during the course of the investigations. The relevant part of her report in respect of the Claimant’s grievance said this: “7. Summary of findings & conclusion Andrew has raised this dispute as he feels he is treated differently to others in the office. The examples that were used involved the method (using threatening language in an inappropriate manner) in which Tony dealt with the three complaints on the 12th Feb 2020, not allowing Andrew medical appointments the same as the rest of the team, the way Tony has dealt with a verbal complaint differently to the written complaint Andrew had from Carol in deployment and that Tony describes Andrew as an aggressive character. The meeting on the 12th Feb 2020 that Andrew is referring to was held behind closed doors with only Tony and Andrew present and their perceptions of that conversation and each other’s behaviours on that day differ, there are no witnesses. There was no formal outcome to this meeting. Tony sent an informal email following this meeting asking for Andrew to send his thoughts across so him so he could answer the complaint, this is a reasonable thing to do and gives Andrew the opportunity to add his perception of the conversation. Andy did not reply, Tony chased on the 29th Feb 2020, Andrew stated he hadn’t seen the email and went on to mention that he felt bullied by Tony and was going to put in a grievance. The is no written evidence of medical appointments being refused. Tony agrees he dealt with a verbal complaint differently to the written complaint as he would do regardless of the examiner. Tony confirmed that he would ask for written comments for any written complaint and would always try to deal with verbal complaints from ADI’s verbally and at the time. I did ask if these verbal complaints were ever followed with emails to the examiner and Tony didn’t think they were. Andrew stated that Tony has referred to him as an aggressive character and Tony agrees that he finds Andrew’s behaviour to be aggressive and challenging. I asked if this had been documented in follow up emails of which Tony said they had. I also asked if this behaviour had ever been taken down the formal route for conduct, as Tony explained it had happened on numerous occasions, Tony stated that Andrew’s behaviour had never been addressed formally. Speaking to Andy Rayfield he described Andrew’s behaviour as aggressive but also said he had never taken this down the formal route. There is no evidence to support Andrew’s claims of being treated differently, but there are numerous reports of Andrew’s behaviour being aggressive. For dispute resolution: Does the evidence support the complaint? NO”[53]Ms. Lane’s summary and conclusions in respect of the complaint raised by Mr. Walker said this: “7. Summary of findings & conclusion Tony has raised this dispute as he feels Andrew Mills has raised a malicious complaint against him, with no foundation in evidence. Tony also claims that Andrew has deliberately not followed the dispute resolution policy when raising his complaint as a way of elongating the process and worsening the situation for Tony. Andrew Mills did raise a formal complaint against Tony. Andrew Mills let Tony know of the complaint on the 2nd March and informed Tony’s line manager on the 9th March. At this time Andrew Mills did not provide any evidence. It took until the 7th May for Andrew Mills to follow up this formal complaint with evidence to Tom Neave. The evidence appears unfounded and unsubstantiated, following a recent investigation. Tony appears correct in his assumption that there was no foundation to the evidence. It appears the process was elongated by the requesting of face to face meetings during a global pandemic, when everyone was working from home, with no date for resuming normal work duties at this time. The time it took to provide evidence would also have elongated the process, this could have been provided a lot sooner as the evidence that Andrew provided was from before the 2nd March. Andrew Mills did seek advice to follow the dispute resolution policy and was in contact with Tony Walker’s line manger from the 9th March. Andrew stated that Tony has referred to him as an aggressive character and Tony agrees that he finds Andrew’s behaviour to be aggressive and challenging. I asked if this had been documented in follow up emails of which Tony said they had. I also asked if this behaviour had ever been taken down the formal route for conduct, as Tony explained it had happened on numerous occasions, Tony stated that Andrew’s behaviour had never been addressed formally. Speaking to Andy Rayfield he described Andrew’s behaviour as aggressive but also said he had never taken this down the formal route. There is some evidence to support Tony’s claims of Andrew Mills formal dispute being malicious. There are numerous reports of Andrew Mill’s behaviour being aggressive and potentially may be viewed as upward bullying by Andrew, towards Tony Walker and Andy Rayfield. For dispute resolution: Does the evidence support the complaint? Yes”[54]We do not agree with the conclusion reached by Ms. Lane that the evidence supported the complaint because Mr. Walker’s grievance had never included any complaints about bullying by the Claimant. It had centred on the grievance that he had raised being malicious and without evidential basis and the Claimant having elongated the process to Mr. Walker’s detriment. Ms. Lane had in fact found evidence that was unrelated to the actual complaint that Mr. Walker had raised.[55]Mr. Rossiter met with Mr. Walker on 6th November 2020 to discuss the investigation report findings before reaching his conclusions in respect of that grievance. He subsequently wrote to Mr. Walker on 10th November 2020 to set out his final decision. His conclusion was to uphold the complaint in part. He set out that there was insufficient evidence to conclude that the Claimant had raised his grievance maliciously or that he had elongated the process to cause undue distress. Given that that was precisely what Mr. Walker had complained about it is difficult at first blush to see on what basis Mr. Rossiter was in fact upholding the grievance in part. However, that followed on from the findings of Ms. Lane which we have already referred to above as to alleged upwards bullying by the Claimant. Again, that had not formed a part of the grievance that Mr. Walker had actually made.[56]We accept that Mr. Rossiter had wanted to meet with the Claimant on 6th November (the same date as he met with Mr. Walker) but those meetings were twice postponed at the Claimant’s request and eventually took place on 24th November 2020 (see pages 833 to 842 of the hearing bundle). At the meeting the Claimant’s Trade Union representative read from a pre-prepared statement which was critical of the way in which the investigation had been conducted.[57]Although in his evidence before us Mr. Rossiter was critical of that statement and saw it as attempting to undermine the investigation, we see nothing unusual about that statement as that meeting was the opportune time to raise any concerns about how the investigation had been conducted before a final decision was taken.[58]One issue within the statement raised the fact that Ms. Lane had not interviewed the other DE’s identified by the Claimant in his investigatory meeting. Mr. Rossiter adopted the same view as Ms. Lane as to the evidential value that those individuals could add to the complaints made by the Claimant and although we would not have taken the same view, for the reasons that we have already said above there was a legitimate reason for taking that stance and overall it was not a serious matter.[59]Mr. Rossiter wrote to the Claimant by letter dated 30th November 2020 (but which it appears was sent the following day) rejecting his grievance which he set out was unsupported by any evidence (see pages 877 to 880 of the hearing bundle).[60]Although his outcome letter in both cases was relatively brief, both Mr. Walker and the Claimant had copies of the reports produced by Amanda Lane, the rationale of which Mr. Rossiter agreed with and had adopted. He also dealt with the points that the Claimant had raised in the pre-prepared statement read out by his Trade Union representative. That included the position about interviews of the other named DE’s.[61]The Claimant was notified of his right of appeal and how that should be exercised. The Claimant duly appealed but the decision on appeal remained the same.[62]The Claimant was also notified at the same time as to the outcome of Mr. Walker’s grievance against him (see pages 896 and 897 of the hearing bundle). Both he and Mr. Walker were informed that there would be a further investigation to establish if the Claimant’s behaviour towards colleagues (i.e. Mr. Walker and Mr. Rayfield) could be in breach of the Civil Service Code and the Respondent’s policies on respect in the workplace and whether they warranted disciplinary action. In fact, as Mr. Rossiter now accepts he made an error in respect of the wording of the letter because the decision as to implementing an investigation was one for Mr. Lambourn as ODM of the Nottingham area and his position was only a recommendation. We accept that that error arose because of the use of template letters which Mr. Rossiter had received from HR.[63]The Claimant is critical of the timing of the sending of those letters because on 30th November 2020 he had obtained a Statement of Fitness for Work (“Fit Note”) signing him off as being unfit to attend work. We understand that the Claimant sent that Fit Note to the Respondent, but we are satisfied that Mr. Rossiter was unaware of it when he sent his outcome letters to the Claimant.[64]The Claimant is equally critical of the timing of correspondence that was sent to him by Mr. Lambourn on 2nd December 2020 confirming his decision on the implementation of the recommendations of Mr. Rossiter (see pages 900 and 901 of the hearing bundle). However, again we are satisfied from Mr. Lambourn’s evidence that he was unaware at the time that he wrote those emails that the Claimant had been signed off sick and had submitted a Fit Note.[65]In his correspondence Mr. Lambourn confirmed that an investigation would take place into the matters which had been referred to by Mr. Rossiter in his outcome letter. We accept that that investigation would effectively start from scratch and it was not the case that the findings of Ms. Lane would be adopted and the matter simply move to disciplinary action. The Claimant would have been involved in that process and had the full opportunity to challenge any allegations made.[66]Whilst we have been somewhat critical of the conclusions of Ms. Lane and Mr. Rossiter, we accept that Mr. Lambourn was not dealing with the outcome of the grievances but merely the recommendations. His evidence was that there was a zero tolerance approach to bullying in the Respondent and therefore we accept that when faced with information that suggested that there might have been instances of upward bullying, he was required to act on that no matter where it had come from. His approach was not as a punishment of the Claimant as he appears to suggest for having raised a grievance or gone off sick.[67]Within the same correspondence Mr. Lambourn set out that as a temporary measure the Claimant would be transferred to Leicester to be line managed by a Mr. Heggs who was the LDTM at that testing centre. It was made plain that that arrangement was not assuming any guilt on the part of the Claimant as to the matters that were to be investigated but was because of the stress involved and to protect the integrity of the investigation. It was in our view a sensible course of action. Given the grievance and counter-grievance it is almost impossible to see how the Claimant could return to being line managed by Mr. Walker, or indeed, Mr. Rayfield. It would have created an unhealthy at best working environment and more likely a toxic one and would have impacted both the Claimant and Mr. Walker.[68]Mr. Lambourn had been told by HR that the distance between the Claimant’s home address and the Leicester testing centre was approximately 22 miles and that it fell within the 45 minute reasonable travelling distance operated by the Respondent. The Claimant’s contract of employment did include a mobility clause which provided for moving between posts within reasonable travelling distance (see page 202 of the hearing bundle).[69]The Claimant is critical of the decision of Mr. Lambourn to transfer him because his position is that he had undertaken a dummy run which had taken him almost three hours as a round trip and that he could ill afford that additional time because he had caring responsibilities. However, the email from Mr. Lambourn made it plain – which the Claimant now accepts – that if he had any concerns then he should contact either Mr. Heggs or himself. The Claimant did not do so and in fact because he was absent on the grounds of ill health up to the point of his resignation he never attended at Leicester.[70]However, we accept the evidence of Mr. Lambourn that if the Claimant had contacted him then they would have discussed alternatives which could have included flexibility in working times so that he was not travelling in rush hour or working from the Respondent’s Head Office in Nottingham until the investigation was concluded. However, he was unaware because the Claimant did not tell him or Mr. Heggs that the move to Leicester was controversial.[71]As it was, no investigation into disciplinary action was pursued because the Claimant resigned. Although there has since been a change in policy to the effect that the process would continue irrespective of resignation, that was not the case at the time of the termination of the Claimant’s employment and so the matter was discontinued. Collective grievance[72]As we have already set out above, following the Claimant’s grievance against Mr. Walker he had removed himself from his line management and Mr. Rayfield had taken over. Whilst the Claimant had said that he was happy to continue to work from Colwick and be managed by Mr. Walker whilst the grievance was investigated, we accept the Respondent’s position that that simply was not a tenable suggestion. Arrangements were therefore made for Mr. Walker to manage the Chilwell test centre which Mr. Rayfield usually managed and for Mr. Rayfield to manage Colwick, including line management of all staff there which included the Claimant.[73]Mr. Rayfield informed the Claimant that he was going to take over temporary line management duties for him on 16th July 2020. By that time, the Respondent was seeking to reintroduce on a phased basis a return to the normal working environment for DE’s who had been working from home during the pandemic. We accept that working from home for DE’s was most unusual because they were of course employed to undertake driving examinations which was not possible for a home working environment. However, during lockdown there was little option because of restrictions which had been put in place and the fact that no driving tests were taking place.[74]On 28th October 2020 all of the nine DE’s at Colwick, including the Claimant, raised a collective grievance against Mr. Rayfield. Each of the DE’s submitted a statement attached to the collective grievance, albeit a few of them were complaining about events that they had witnessed as opposed to matters directed at or directly involving them.[75]The Claimant’s statement as part of the collective grievance said this: “With regards to the situation at Colwick / Andy Rayfield, my statement is as follows: During Andy Rayfield’s time as acting Manager I have seen a noticeable decline in moral amongst my colleagues and that is an ongoing matter of concern, this has been the case very early on into Andy’s time at Colwick. I have witnessed him being derogatory to several of my colleagues in relation to their age, making comments using words such as “cronies”. I have also witnessed him have strong opinions, on multiple occasions talking about sensitive issues such as politics and religion, with an office of people with varying beliefs and religious backgrounds I find this completely inappropriate and uncomfortable. I have personally been targeted by Andy, on countless occasions questioned, physically followed around questioning me on how I carry out my role as a civil servant, accused of breaking civil service codes. Some of which have been followed up via e-mail. I would also like to highlight that on more than 1 occasion I had been talking to colleagues on my dinner break outside the office about matters unrelated to work, and been approached by Andy in a confrontational way and interrupted, and made to feel we were doing something wrong. Andy’s management approach is inconsistent, confrontational and unprofessional with a -do as I say, not what I do attitude. Using quotes such as “I enjoy confrontation“ I would like to include my Q2 performance review as an example of how Andy conducts his management duties. During my Q2 meeting at the beginning of October, which lasted over 2 hours, certain subjects were discussed that were completely irrelevant to my performance. I was even told after submitting the completed form to quote; “you need to change that statement or it will be rejected “to which I replied “that’s not going to happen as that’s what was said and took place in my meeting “Andy used the phrase “it’s a reasonably management request” however asking someone to lie about what was said is completely unreasonable and an abuse of their position. My most recent incident with Andy was in fact only today, 26th October, where he confronted me aggressively as he overheard me briefing my colleagues about a test I had just conducted. In short, Andy told me I was wrong on my judgement and when I asked for written clarification his comment was “you don’t need it, your most recent update from your superior on this occasion being me, that is the clarification” however Andy was wrong and his confrontational approach was witnessed by 3 members of the team, one of which corrected Andy and pointed out why he was wrong and why my assessment decision was right. Andy went on to say he didn’t say I was wrong in my assessment, he lied to my face and not for the first time, when he not only said I was wrong he tried goading me and saying I was talking over him. All of this was witnessed by others, with those commenting to me that they have never seen anyone let a alone a manager speak to another member of staff so aggressively and unprofessionally. I know that all of these examples have had an extremely negative impact on my colleagues and my own working environment at Colwick Test Centre”.[76]As we have already observed, Mr. Lambourn had stepped back from dealing with the grievances of the Claimant about Mr. Walker and vice versa in order to try and mediate in respect of the collective grievance. An informal approach of that nature is the Respondent’s preferred method of seeking to deal with complaints in the first instance which is a sensible stance to adopt in such circumstances.[77]Mr. Lambourn held a meeting with all of the Colwick DE’s on 11th November 2020 to discuss the collective grievance. It was agreed that Mr. Lambourn and the complainants would go away and consider the next steps after the meeting and that he would liaise with the group spokesperson about that (see page 1745 of the hearing bundle).[78]A further group meeting took place on 25th November 2020 with the complainants and Mr. Lambourn. After the meeting Mr. Lambourn wrote to the DE’s (see pages 846 and 847 of the hearing bundle) asking them to confirm how they wished to approach the next steps of dealing with their complaints.[79]The options given were as follows:(i) Engage with group mediation to work together to agree a way of working together in future;(ii) Engage in a group facilitation with him, the DE’s and Mr. Rayfield to agree future working relationships and how any future concerns will be addressed and escalated;(iii) Go direct to formal dispute resolution; or(iv) Offer another appropriate solution to resolve the issues raised.[80]On 27th November 2020 the spokesperson for the DE group confirmed that there was agreement that mediation was not appropriate and that they wished the matter to progress to formal dispute resolution (see page 854 of the hearing bundle). Three days later Mr. Lambourn passed the grievance to HR with a view to an investigation manager being appointed.[81]HR informed Mr. Lambourn on 17th December 2020 that they had an investigator ready to take the grievance forward and that he could commence dealing with it in January. That of course took account of disruptions over the Christmas and New Year period.[82]Mr. Lambourn had asked the DE’s, via their spokesperson, whether they were all happy with the content of their statements before the investigation commenced. A reply was forthcoming that that was the case with the exception of one DE who wanted to make some additions to her statement. Mr. Lambourn chased the matter up on 12th January 2021 and received the amended statement on the same day (see page 1044 of the hearing bundle).[83]Around the same time Mr. Heggs as the Claimant’s temporary line manager arranged an occupational health referral. One of the reasons for the referral was to see if the Claimant was fit to participate in formal workplace meetings, including grievance meetings. The Occupational Health report was received by the Respondent on 5th February 2021. It set out that whilst the Claimant was unfit for work, he was able to attend workplace meetings (see page 1071 of the hearing bundle).[84]Mike Dalton, an ODM previously not involved with matters, was appointed as decision maker in respect of the grievance and Mr. Lambourn sent terms of reference to him on 12th February 2021. Although there was a delay in finalising the terms of reference which could foreseeably have been done sooner after the grievances were finalised on 12th January 2021, the Respondent was still at that time awaiting the occupational health report to see if the Claimant was fit to attend workplace meetings.[85]However, upon the terms of reference being finalised and documents relating to the grievance being sent to the investigating officer, he did in fact withdraw from dealing with the grievance because he realised that he did not have the capacity to take it on and HR had to source a new investigation manager. That was Sarah Scott, the Deputy Head of Publishing.[86]There was also a delay until 4th March 2021 with the terms of reference and documentation relating to the grievance being sent to the original investigator. If they had been sent in a more timely fashion then the problems of identifying a new investigator would have come to light earlier but the Respondent was not to know that. Whilst things could have been dealt with more swiftly that needs to be looked at in the context that the grievance had a number of people involved and complexities arising from that and it was not the only matter that Mr. Lambourn and HR were dealing with.[87]On 12th March 2021 Mr. Lambourn updated the DE’s spokesperson about the progress on the collective grievance (see page 1144 of the hearing bundle). As it was agreed at the earlier grievance meeting that Mr. Lambourn would liaise with that person there is nothing to suppose that he did not update the other DE’s.[88]By the time that Ms. Scott commenced her investigation the Claimant had resigned although he was still involved in the process thereafter. She conducted interviews with all nine DE’s who had complained, including the Claimant, between 31st March 2021 and 22nd April 2021. She also conducted an interview with Mr. Rayfield on 22nd April 2021 and she had a further telephone call with him to ask additional questions on 27th May 2021 and sent an email with further enquiries on the same date. She also interviewed Mr. Lambourn, Mr. Heggs and a Mr. Weaver in late April 2021.[89]The outcome of the collective grievance was dealt with by Mike Dalton as decision maker following the investigation by Sarah Scott and the production of her report on 28th May 2021. The collective grievance was not upheld and that was communicated to the complainants by Mr. Dalton on 29th June 2021. It is not necessary for us to deal with the reasons why that decision was taken because it did not come until after the Claimant had resigned from his employment with the Respondent and the outcome cannot therefore be causative of that decision that he made to terminate his employment.[90]However, the Claimant does rely on the content of the grievance and a number of comments made by DE’s during the course of the investigation as evidencing that he was bullied by Mr. Rayfield. We have considered this issue very carefully. It might appear obvious to the Claimant that we should find that Mr. Rayfield did bully him because of the weight of complaints that were made about his alleged actions in the collective grievance and, particularly, that all DE’s at Colwick complained about him in some way, shape or form.[91]However, we accept the force of the submissions made by Mr. Serr that in reality that is a dangerous approach. We have not heard evidence at this hearing from any of the other DE’s that were involved in the collective grievance and so the veracity of their statements has not been able to be tested in cross examination.[92]Moreover, as this was a collective grievance it is plain that there was more than a degree of collusion between the DE’s in the making of their complaints. They all plainly saw the statements of the others and over time they added more fuel to the fire in terms of their complaints about Mr. Rayfield.[93]Furthermore, we accept the evidence of Mr. Rayfield that from the get go there was negativity towards him from the DE’s at Colwick when he returned as an LDTM. We find that that was the case for two reasons. Firstly, Mr. Rayfield had previously been a DE at Colwick and had in a reasonably short period of time gained a promotion to LDTM. He was therefore returning to line manage people who had previously been his peers and some who had been DE’s for a substantially longer period of time. We accept his evidence that there was a view that promotion ought to be based on length of service and it was bound to foster resentment that he had achieved a relatively swift promotion ahead of longer serving colleagues.[94]Secondly, we accept that there had historically been a rather relaxed approach to the management of the DE’s from Mr. Walker and that they were not used to being more robustly managed. We also accept that the DE’s at Colwick as a whole did not like being managed and when Mr. Rayfield came along his different and more zealous management style caused an issue.[95]Any change from something of a laissez faire management style requires very careful handling to avoid upset and ruffled feathers. Mr. Rayfield did not have the required management experience in our view to avoid the ruffling of feathers and where he viewed things in his words as not sitting right with him, he stuck to the letter of procedure to deal with them. The DE’s at Colwick were not used to that.[96]We deal further with that in the context of examples that the Claimant relies on as being instances of bullying by Mr. Rayfield but it appears to us that having taken a rather more zealous and hands on management approach than Mr. Walker, he brought about resentment and upset within the DE cohort at Colwick. Indeed, his evidence was that the entire team did not like being managed and some degree of irritation and ill feeling is inevitable when faced with a switch in management styles of this nature.[97]Our findings are also informed by the fact that we found Mr. Rayfield to be a credible and straightforward witness. We accepted his evidence that he had not made discriminatory comments and that he had not told another DE, Mr. Johnson, words to the effect that he was going to force the Claimant to resign. We found Mr. Rayfield to be a manager who sticks to the rules and follows policy and that does not sit well with a comment such as that being made to a subordinate and then colleague of the Claimant. Whilst Mr. Johnson might well have said that to the Claimant or words to that effect, he himself does not have first hand knowledge of having himself heard Mr. Rayfield say that. There are many reasons why something of that nature might have been said and Mr. Johnson clearly had an issue with Mr. Rayfield given his involvement in the collective grievance. Without the benefit of hearing directly from him in cross examination we prefer the account of Mr. Rayfield about what the actual discussion was.[98]In that regard, we accept that Mr. Johnson approached Mr. Rayfield and attempted to engage him in discussion which appeared to the latter to be fishing for information about the Claimant’s grievance regarding Mr. Walker. Mr. Rayfield accordingly attempted to close the discussion down because, quite rightly, he considered that it was inappropriate. During that time, we accept that Mr. Johnson told Mr. Rayfield that the Claimant did not like being managed and he had replied in terms to say that did not mean that he could stop managing him.[99]There is support for our finding in that regard from the fact that we accept that the Claimant did not like being managed in a way that he perceived as being intrusive into his autonomy. Particularly, his reaction to Mr. Rayfield asking him in quite reasonable, pleasant and understandable terms on one occasion to ensure that he let him know when he was going to be away from his duties whilst working from home was met with quite unfounded accusations of bullying and micromanagement. We say more about that incident later.[100]We turn in that regard to some of the instances that the Claimant relies upon as being acts of bullying by Mr. Rayfield. We have already dealt with one of those with regard to the complaint from Carol above and so we do not need to deal with it again here but suffice it to say that we did not find that it amounted to bullying.[101]We have also touched upon the second incident which was that during a time with the DE’s were working from home during the pandemic Mr. Rayfield sought to contact the Claimant four times during what would have been his normal working hours but could not get in touch with him. It transpired that the Claimant had left to go to the chemist to collect medication for his mother. Mr. Rayfield asked the Claimant in an email, in perfectly reasonable terms, to let him know if he was not going to be contactable in normal working hours. The Claimant took and continues to take significant issue with that.[102]However, we accept that Mr. Rayfield needed to know where the Claimant was when he was not working because he had a duty of care towards him. He wanted to ensure that he knew when he was not contactable in case he might have injured himself and that was the reason why he could not reach him. In addition, given the unusual situation of DE’s working from home the Respondent had asked managers to keep an eye on the situation because some were abusing the situation and not undertaking any work during core hours and instead attending to personal matters such as decorating or gardening. We therefore accept that it was perfectly proper for Mr. Rayfield to ask the Claimant where he had been and to politely remind him as he did to make sure that he let him know if he was not contactable in working hours.[103]The email exchange made plain that no issue was taken as to providing flexibility if members of the team needed to do something in their core hours as long as the time was made up and he knew where they were. Indeed, Mr. Rayfield gave evidence about another member of the team who took his child to the park and there was no issue with that as long as he was aware of it. We also accept his evidence that all other members of the team let him know when they would be away from their desks and there was no difference in treatment towards the Claimant.[104]Whilst the Claimant takes issue with Mr. Rayfield having sent screenshots of the times that he had tried to contact him onto Mr. Lambourn, that was simply to seek advice and guidance from his manager because the Claimant had accused him of bullying. Although the Claimant was working from home we accept entirely and can properly see why Mr. Rayfield would need to know when he was away from his duties. The Claimant’s reaction and reply to the emails sent to him by Mr. Rayfield about this matter reinforce our views set out above as to the fact that he does not take well to being managed.[105]There is one further incident of note which is an interaction that Mr. Rayfield had with the Claimant in early September 2020 where he had overheard him make a comment to a disgruntled ADI who had said that things with the Respondent had not changed in 30 years. The Claimant had said words to the effect that he agreed with the comment. He raised that with the Claimant and followed it up in an email where he made a reference to what had been said potentially being seen as a breach of the Civil Service Code. Whilst we consider that, even on Mr. Rayfield’s own account of what happened, to have been an unnecessary thing to mention because it was a minor matter we do not accept that it was done to bully the Claimant nor that it could reasonably and objectively have had that effect. It is simply an example of Mr. Rayfield’s management style and the importance which he places on management and policy.[106]Although there were therefore things that Mr. Rayfield could have done better that was not because he was bullying the Claimant but done through a perhaps slightly overzealous approach and because of relative inexperience. He candidly accepted in his evidence that there were things that he had done in terms of management actions at the time which he would now do differently with the benefit of greater experience and hindsight.[107]We therefore do not accept that the actions taken by Mr. Rayfield amounted objectively to bullying of the Claimant. However, we should say that we have no doubt that the Claimant genuinely feels that what happened amounted to bullying but it is not unusual in our view for that to be a viewpoint when those who feel wronged are looking at otherwise relatively routine matters of management through a prism of suspicion and unfairness. Particularly, here the Claimant was also looking at matters in the context of his also genuinely held belief that he had been bullied by Mr. Walker and he essentially viewed Mr. Rayfield to be picking up where he had left off (see page 550 of the hearing bundle). The Claimant’s resignation[108]On 16th March 2021 the Claimant tended his resignation with immediate effect. That was prior to Ms. Scott commencing her investigation of the collective grievance although as we have already observed the Claimant continued to play a part in it thereafter and was interviewed as part of the process (see page 1307 of the hearing bundle).[109]The Claimant’s resignation letter set out that he considered that he had been constructively dismissed and raised the following matters:a. That he considered trust and confidence to have broken down irretrievably;b. That the investigation into his grievance about Mr. Walker had been biased and unfair and that he had faced retaliation for raising it;c. That his work location had been changed which added a three hour commute to his day and did not take into account his caring responsibilities;d. That he had suffered harassment from Mr. Rayfield and that although a complaint had been made the Respondent had not done anything to address it;e. That he had suffered disability discrimination and the Respondent had done nothing to support him and had instead isolated him, placed him in a position of having an additional three hour commute and commenced what he termed a “bogus” investigation in recrimination to him having raised a grievance;f. That he had been told about the investigation after he had submitted a Fit Note and had heard nothing since; andg. That he was now on long term sick.[110]The Respondent replied to the Claimant on 23rd March 2021 acknowledging his resignation and replying to the points that he had made in his letter. That letter appears at page 1182 and 1183 of the hearing bundle, but it is not necessary to set out its contents here other than to say that it disagreed with the points that the Claimant was making.[111]Thereafter, the Claimant issued the proceedings which are now before us for determination.
Conclusions
[112]Insofar as we have not already done so we now turn to our conclusions in respect of the remaining complaint of constructive dismissal.[113]We deal in turn with each of the separate instances upon which the Claimant relies as being destructive of mutual trust and confidence before dealing with, whether singularly or cumulatively, they were destructive of that term.[114]The first of those matters is that the Claimant alleges that he was bullied by Mr. Rayfield. For the reasons that we have already given above we do not accept that the conduct described by the Claimant can objectively be considered to be bullying and we do not accept that he was bullied by Mr. Rayfield. He was only subject to more robust management than that which had previously been the case and which the Claimant found objectionable as he did not care for management intervention in all events.[115]As part and parcel of this part of the complaint the Claimant also complains that the Respondent did not take reasonable steps to protect him from bullying by Mr. Rayfield. We discussed that aspect of the matter with the Claimant at the outset of the hearing because it was – and remains – somewhat unclear what he was saying that the Respondent should have done in that regard. The only thing that the Claimant was able to tell us in this respect is that Amanda Lane should have interviewed all of the DE’s in respect of his grievance. However, it is not clear how that would have helped given that that grievance was about Mr. Walker and not Mr. Rayfield. In all events, we are satisfied that Mr. Rayfield did not bully the Claimant and so there was nothing to protect him from in that regard.[116]The second issue relied on by the Claimant is the fact that Amanda Lane failed to interview any witnesses in respect of his grievance against Mr. Walker. As a matter of fact that is correct and we have already observed above the reasons why we consider that a different approach should have been taken. However, there is nothing at all to suggest that the approach taken by Ms. Lane was intended to be in some way detrimental to the Claimant and although we would have acted differently, she did explain in her evidence why she dealt with matters as she did. We accept in this regard that she simply did not see them as relevant to the actual allegations.[117]More importantly than that, however, is that the Claimant was not able to say in his evidence what evidence any of the DE’s that he named would have given that would have had any bearing on the outcome of his grievance. All that being the case, we do not accept that this incident is sufficient enough to be destructive of mutual trust and confidence and it was not a serious matter.[118]The third issue relied upon by the Claimant is that Mr. Lambourn indicated that a further investigation would be necessary following the outcome of the grievance by Mr. Walker to establish if his behaviour towards colleagues could be in breach of the Civil Service code and the DVSA policies on respect in the workplace and whether it warranted disciplinary action. As we have set out above, Mr. Lambourn had information before him that suggested that there might have been (and it was no more than that) upward bullying.[119]Although there could have been other more informal ways to deal with that, in view of the Respondent’s zero tolerance approach to bullying it was open to Mr. Lambourn to commission an investigation. We have already set out above, that investigation would be starting from scratch and the Claimant would be involved in it with the opportunity to challenge any allegations which resulted. We do not accept therefore that informing the Claimant that an investigation was going to be commenced was destructive or mutual trust and confidence. Equally, we are satisfied that when Mr. Lambourn told the Claimant that he was going to be transferred he did not know that he had submitted a Fit Note.[120]The next matter relied upon by the Claimant is that Craig Lambourn transferred him temporarily to the Leicester Cannock Street testing centre and/or the Respondent so informed the Claimant of the move after his sickness absence had begun. As to the timing of that notification, as we have already observed Mr. Lambourn did not know that the Claimant had submitted a Fit Note. As to the transfer itself, for the reasons that we have already given that was a necessary step to take to protect both the Claimant and Mr. Walker and any difficulties that resulted from that decision could have been discussed and remedied if Mr. Heggs or Mr. Lambourn had been made aware of them.[121]The final matter relied upon is that the Respondent failed to investigate the collective grievance in respect of Andrew Rayfield submitted on 28th October 2020 in a timely manner. Whilst we agree that, for the reasons that we have given above, there was some delay that could have been avoided it was not so serious as to be destructive of trust and confidence. Both Mr. Lambourn and HR were dealing with other matters and there was delay in amendments being made to a statement by one of the DE’s and to obtain an Occupational Health report which needed to be taken into account. Whilst things could in places have taken place slightly swifter, those are minor matters and could not been seen as being destructive of mutual trust and confidence.[122]Whilst we have therefore made some criticisms of the Respondent in terms of not interviewing further witnesses and there being some delay in dealing with the collective grievance none of those things either singularly or cumulatively are so serious as to breach the implied term of mutual trust and confidence. They did not go to the root of the contract for the reasons that we have already set out in our findings of fact above and were minor matters for which there was reasonable explanation.[123]However, even had we found there to be a fundamental breach of contract we could not be satisfied from the Claimant’s evidence that he resigned in response to it. In this regard, when asked by Mr. Serr why he had resigned at the point that he did the Claimant’s evidence was that he could not remember and that the date of his resignation was not a “poignant” one. The Claimant does not therefore suggest that there was some trigger – or last straw – which prompted him to resign at the point that he did and in particular he does not suggest that it was any ongoing delay in resolving the collective grievance. Given the uncertainty about the reason that he decided to terminate his employment at the point that he did and could not recall why we could not be satisfied that the instances where we have been critical of the Respondent were the reasons behind that.[124]Moreover, even if we had found there to have been a fundamental breach of contract in respect of those matters and that the Claimant had resigned in response to them then we would have nevertheless concluded that the Claimant had by his delay in resigning waived his right to rely upon them and had affirmed the contract.[125]The last act which might be said to have triggered the Claimant’s resignation given what was said in his resignation letter is the indication from Mr. Lambourn that he was to be temporarily transferred to Leicester and there was to be a further investigation. Those matters were communicated to the Claimant on 2nd December 2020, but his resignation did not come until almost three months later on 16th March 2021. Whilst we remind ourselves that mere delay by itself does not constitute an affirmation of the contract if the delay goes on for too long it can be very persuasive evidence of an affirmation. The Claimant has not provided any reasons for the delay in him electing to resign and whilst he was absent from work on the grounds of ill health he nevertheless continued to accept sick pay from the Respondent. He did not make any protest about either the transfer or the proposed investigation despite certainly in respect of the former being invited to contact Mr. Lambourn and/or Mr. Heggs with any queries or concerns.[126]Given the passage of time we are satisfied that the delay, inaction as to raising concerns and the continuing acceptance of pay from the Respondent saw the Claimant affirm the contract so that he waived his right to resign in response to the conduct of which he complains.[127]For all of those reasons the remaining complaint of constructive dismissal fails and is dismissed.