Mr T Manley v Secretary of State for Justice: 2601722/2021

EMPLOYMENT TRIBUNALS
Case No 2601722/2021
Between
Mr Thomas ManleyClaimantSecretary of State for Justice PRELIMINARY HEARINGRespondent
Before
Employment Judge CampIn person for claimantMr P Keith (instructed by counsel) for respondentDate 18 May 2023

JUDGMENT

The complaint of direct disability discrimination, alternatively discrimination under EQA section 15 (“section 15 discrimination”) is struck out.

REASONS

[1]The claimant was ordered to pay a deposit of £400 following a preliminary hearing held on 21st July 2022.The Order was sent to the claimant on 18 August 2022. The claimant has failed to pay this deposit. The complaint of direct disability discrimination, alternatively discrimination under EQA section 15 (“section 15 discrimination”) is therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013.[2]The remaining complaint proceeds to final hearing listed for 15-23 May 2023.[1]The Judgment issued on 12 September 2022 and sent to the parties on 22 September 2022 is varied under rule 73 of the 2013 rules to remove the words “direct disability discrimination, alternatively” from both the judgment and reasons. The claim of direct disability discrimination in relation to the dismissal decision proceeds to determination on its merits. The unanimous judgment of this tribunal is that:-[2]The section 13 claim of direct disability discrimination in relation to dismissal fails and is dismissed.[3]The section 13 claim of direct disability discrimination in relation to being deterred from raising a formal written grievance fails and is dismissed.[4]The section 15 claim of discrimination because of something arising in consequence of disability in relation to being deterred from raising a formal written grievance fails and is dismissed. Case number: 2601722/21[1]Introduction 1.1 The claim before us alleges disability discrimination. There is no dispute that the claimant was disabled at the material time in respect of the mental impairment of depression although there are other aspects of disability status to which we will have to return. A number of claims were originally presented. As a result of the case management of the claim, most have fallen away. Three distinct legal claims remain relating to two factual matters. The first relates to the dismissal, communicated on 26 February 2021, which is said to be an act of direct discrimination. The other is an allegation that on 30 October 2023 Mr Manley was deterred from raising a formal written grievance which is said to be either direct discrimination because of his disability of depression or discrimination arising from it.[2]Preliminary Issues2.1 The first issues concerned a mistake in the prior case management. This came to light when discussing the issues at the outset. It relates to an earlier strike out judgment following a deposit order that was not paid by Mr Manley. The deposit was ordered in respect of the dismissal decision but only in respect of the s.15 claim, not the s.13 claim. After the date for payment passed without payment, a judgment was issued under rule 39(4) which had the effect of correctly striking out s.15, but it also incorrectly struck out the s.13 claim. The error was compounded further after the respondent’s solicitor wrote to the tribunal seeking clarification of the judgment. The duty judge who dealt with that appears to have understood this to have been a request for confirmation of whether a strike out judgment had been issued, as opposed to whether the terms of the judgment itself were correct and the parties were referred back to the original judgment. Despite that strike out coincidentally being a judgment of mine, I had read into this case understanding that the direct discrimination claim relating to dismissal was proceeding. Upon the error being identified and the implications being discussed further with the parties, I was then able to reconsider the judgment of my own initiative.2.2 That then led to consideration of the appropriate next steps to address any prejudice this caused to the parties. After discussing the way forward with both, both were satisfied that their witness evidence and the bundle addressed the issues in the dismissal decision. Both required time to reflect on cross examination before commencing the evidence. This was given. The parties agreed about 2 hours would be sufficient and we adjourned until 1:30pm.2.3 The second preliminary issue related to the wider basis of disability status. Judge Camp had decided only part of the question at the preliminary hearing heard last July based on the respondent’s partial concession that the claimant was disabled in respect of the mental impairment of depression. He was also found not to be disabled by virtue of stress between January and April 2020. For reasons not entirely clear to us, the question of whether he was disabled disable by virtue of stress as an underlying impairment at the material time in late October 2020 was not determined and instead left open to be determined at this hearing.2.4 We explored whether that was necessary and how the separation of overlapping causes made any difference to the determination of the remaining claims. Mr Keith agreed but only insofar as the alleged something arising was said to arise in consequence of the disability as it is currently found. If the claimant says the ‘thing’s arising’ relied on arise from his depression, then the wider determination does not arise. If he says they do not but do arise from the stress or anxiety, then we will have to determine whether that forms part of the disability status.2.5 The third preliminary issue arose in respect of disclosure. Mr Manly had sought to rely on(a) the stress policy and guidance and(b) sought signed copies of the return-to-work forms. He had a copy of the former and we invited him to share it with Mr Keith before it came to us. In doing so he explained the purpose of the document was to put to witnesses how they had failed to have regard to his stress and mental health. We invited him to reflect on the purpose of that as it appeared to suggest the decision maker had not had his mental health, and therefore disability, in mind at the time. In the event, it turned out this was an old document and Mr Manley withdrew his application to adduce it. In respect of the signed forms, they were not signed and the unsigned forms were in the bundle. The issue there was whether the meeting took place and/or had been accurately recorded. We explained we could not order the disclosure of something that did not exist and explained how the issue would have to be explored in cross examination and submissions.[3]Evidence3.1 For the Claimant we heard from Mr Manley himself. He also relied on witness statements from Neil Hutchings, a colleague and Martyn Collins, the claimant’s PCS union representative who had supported him. Neither attended to give evidence. We had read the witness statements and explained how because the content was untested, we would give it such weight as we felt justified in the circumstances.3.2 For the respondent we heard from: - a) Mr Ian Prestidge, the claimant’s line manager for some of the material time. b) Andy Thomas, who acted as line manager at times and spoke to the events of 30 October 2020. c) John Phynn, the claimant’s senior manager and dismissing decision maker directly involved in both of the factual allegations.3.3 We received a hearing bundle running to 396 pages.3.4 We heard closing submissions from Mr Manley and Mr Keith.[4]Issues 4.1 The issues were agreed upon at a preliminary hearing held on 21 July 2022. Some matters are no-longer relevant due to a deposit not being paid.[5]Law5.1 The cause of action to bring a claim to this tribunal is set out in s.39(1)(c) where the employee is dismissed and s.39(1)(d) in respect of suffering any other detriment.5.2 The meaning of detriment was set out in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. A worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work. An “unjustified sense of grievance” is not enough:5.3 So far as direct disability discrimination is concerned, Section13 of the Equality Act 2010 provides: -(1) a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.5.4 By that provision, we are required to identify the reason why the treatment complained of occurred. That is the crucial question in cases of direct discrimination (Nagarajan v London Regional Transport [1999] IRLR 572 HL) and if we are able to, we will seek to make an explicit finding of the reason why it occurred. (Amnesty International v Ahmed [2009] IRLR 884 EAT). In this regard, the “because of” and “less favourable” questions are not always apt for separate consideration, particularly where the comparator is hypothetical.5.5 Where the reason why is not readily apparent, we will turn to s.136 of the Equality Act 2010 which provides: -(2) if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.5.6 We considered Madarassy v Nomura International PLC [2007] IRLR 246 as authority for the proposition that the burden does not shift by proving a difference in treatment and difference in characteristic alone, something more is required. a) The claim of discrimination arising from disability derives from section 15 which provides: - (1) A person (A) discriminates against a disabled person (B) if— (a) treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.5.7 The constituent elements of this statutory tort to be addressed start, therefore, with unfavourable treatment.5.8 Next is whether the reason for the treatment was something that arose in consequence of the disability. We considered Pnaiser v NHS England [2016] IRLR 170 for the propositions, in summary, that the something arising may be part of mixed reasons as long as has some significant influence to amount to an effective cause, that motives are irrelevant and that the something arising may be found in more than one step between the disability and the treatment.5.9 Next is the causal connection. As with all forms of prohibited conduct where the causal link is based on a test of “because of”, the question is to identify what it was that consciously or subconsciously caused the alleged discriminator to act. The burden of making out those essential elements rests with the claimant. He may discharge that burden by satisfying us outright that the “because of” test is made out on the on the evidence on the balance of probabilities in the ordinary way. Alternatively, he may rely on s.136 of the 2010 Act as set out above.5.10 In short, the claimant need only prove a prima facie case. If he does prove facts from which we could conclude, in the absence of any other explanation, that the reason for the dismissal was something arising in consequence of his disability, we then turn to the respondent to prove that the treatment was not for that reason.5.11 The respondent may justify the treatment. The approach to whether an aim is proportionate was considered in Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15. That is authority for the following propositions: - a) The test of proportionality means that the measure (the PCP) had to be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so. b) What is being justified is the PCP, not the discriminatory effect of the PCP. c) However, part of the assessment of whether the PCP can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer. d) To some extent the answer depends upon whether there were non-discriminatory (or less discriminatory) alternatives available.5.12 In Hardy’s & Hansons plc v Lax [2005] EWCA Civ 846 [2005] ICR 1565, it was held it is not enough that a reasonable employer might think the criterion justified. The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of the requirement.5.13 We considered a number of cases identified by Mr Keith which were submitted partly for the obvious reason to advance his case but also in some cases in order to discharge his duty to the tribunal to present a balanced assessment of the law when appearing against a litigant in person. We are grateful to him for his fair approach.[6]Discussion and Conclusions on the claims6.1 The background is that the claimant was a driver. His employment terminated with notice by reason of misconduct on 1st March 2021. The claimant was paid in lieu of notice and accrued annual leave. At the time of his dismissal, he was subject to a live final written warning. This was not a gross misconduct summary dismissal.6.2 On 6th July 2020, he was then suspended again and faced a second investigation into his conduct following complaints from colleagues of about inappropriate comments. That investigation was dropped by the respondent. There was reasonable cause to suspend and investigate but, upon examining the situation, the allegations were dismissed. We found the manner in which that was dealt with demonstrated a genuine, sensible and measured approach by the claimant’s managers.6.3 Over the summer the respondent dealt with various grievances by the claimant. He was referred to occupational health.6.4 We find on 27th October 2020, the Claimant was involved in an altercation with a colleague. That person had previous complained to Mr Phynn about the claimant and requested that the Claimant be instructed to leave him alone and sought different shift pattern to the claimant. The following day we find Mr Phynn instructed the Claimant to avoid contact with the colleague. We find on 30th October 2020, the Claimant ignored that and approached the colleague in an abusive and aggressive manner.6.5 This led to the claimant becoming extremely distressed to the point of an ambulance being called. We find Mr Phynn was again extremely supportive of the claimant and suggested he take some time off work the following week. There were further text messages between the two confirming the concern Mr Phynn had for Mr Manley’s wellbeing and seeking to support him. It is in this exchange that the second factual allegation is said to occur.6.6 The fact remained, however, that the claimant had breached his managers injunction and acted in a threatening way towards that colleague. On 9th November 2020, the Claimant was suspended pending an investigation of conduct in breach of the standards of conduct and behaviour expected from employees. A reasonable investigation followed and concluded there was sufficient evidence of misconduct to be considered at a disciplinary hearing, delayed due to the claimant’s absence from work. The claimant attended the disciplinary hearing with a representative in February 2021. The decision taken was that the allegations were made out and constituted serious misconduct. We note in the circumstances this was not treated as gross misconduct but, because of the final written warning and repeated misconduct, led to a sanction of dismissal with notice terminating his employment on 1st March 2021.6.7 Before analysing were those facts take us in this claim, we make two observations about matters that have been put before us.6.8 Firstly, whenever we come to analyse cases there are almost always events that could have been done differently or better. Sometimes things may have happened which might be relevant to other potential claims that the Tribunal is not determining. We have had regard to the full chronology, the wider picture and all aspects of this claim that Mr Manley has challenged. Many of those challenges went to the fairness of the situation generally, the investigation or disciplinary process. Those challenges are not irrelevant to our forensic analysis as they may indicate alternative reasoning by the actors, but they are not directly part of the test in the claims that are actually before us, as it would be in, say, a claim of unfair dismissal.6.9 We also wanted to deal with the issue of credibility, and we do so only because it was raised in the submissions. We wanted to make clear that this is not a case that we have had to resort to credibility of the witnesses particularly in so far as Mr Manley’s credibility was in question. We have not had to refer to that in reaching any of the conclusions that we have made. In fact, Mr Manley’s rejection of the suggestion that his credibility might be an issue was well made as indeed was the Respondent’s observation that there is little factual dispute between the parties. This case is more a question of interpreting the underlying meaning, intentions and motivations in what happened. The Dismissal Allegation6.10 We deal with dismissal first as that is the more recent in time and also because of the implications that has to time limits.6.11 The date of the dismissal decision as far as we can see was 26 February albeit it took effect on 1 March 2021. That meant early conciliation had to be started by 25 May, which it was. It concluded on 6 July meaning a claim had to be presented by 6 August 2021. That claim was actually presented 4 days later on 10 August 2021.6.12 Section 123 of the Equality Act 2010 requires that claim to have been presented within 3 months or such other period as is just and equitable. It clearly wasn’t presented within 3 months allowing for the modifying effect of Early Conciliation and even if we were to take the view that the discrimination continued until 1 March. So, the question for us is whether it is just and equitable to extend time. We will deal with this relatively briefly. The Claimant relies on the state of his mental health, the fact that after being dismissed his initial focus was on finding another job and, it seems, exhausting the internal appeal process. He relies on the fact he is only 4 days late and that it seems he didn’t have the same level of active support of his Trade Union as he had during his employment.6.13 For the Respondent, Mr Keith obviously cannot concede the point but recognises how four days was not a substantial delay. From that we infer the point being made is that there would have to be some particular injustice to the respondent in being required to defend this claim in order for the hardship to weigh against an extension.6.14 We agree. This is a case where there isn’t any particular injustice beyond the loss of the limitation defence but certainly no evidential prejudice. Indeed, the parties are here and have been able to evidence and argue their positions fully. Our conclusion is, therefore, that it is just and equitable to extend time to 10 August.6.15 We turn then to the merits of the dismissal claim. For reasons we don’t need to revisit, we are only concerned with whether that is an act of direct disability discrimination under Section 13 of the Equality Act 2010. There is no dispute that the Claimant was dismissed and therefore can bring this claim. The question for us is whether this dismissal was less favourable treatment because of his disability.6.16 We start by considering the actual comparators relied on. They are two colleagues called Nathan and Jason. We take the view they are not proper comparators for the exercise that we are required to perform under Section 23 of the Equality Act. They faced criticism by Mr Manley but they were not in materially similar circumstances as they had not been accused of the nature and type of conduct towards another employee which breached the expected standards of conduct. Nor had they been instructed by a manager not to engage with another employee in circumstances of trying to avoid conflict in the workplace which they then ignored. We consider that is a significant difference and takes them outside the scope of materially similar circumstances for the purpose of Section 23.6.17 The comparison doesn’t end there, however, because we have in any event to consider the hypothetical comparator. That is someone who faced materially similar allegations as the Claimant did where the evidence behind those allegations unfolded in materially the same way including the injunction not to contact another employee, and where the hypothetical comparator was already subject to a final written warning. In order to isolate the protected characteristic, the material difference between the Claimant and the hypothetical comparator would, of course, be that the hypothetical comparator would be somebody who was not disabled by virtue of depression. We have come to the conclusion that the hypothetical comparator would have been treated in exactly the same way. That means there is no difference in treatment and if there is no difference in treatment there cannot be less favourable treatment, still less can there be less favourable treatment for the particular protected characteristic engaged here. We have reached that conclusion because of our findings on the reason why the dismissal happened.6.18 Firstly, there was clear evidence of the conduct which was in breach of the standards of conduct expected of staff. There was clear evidence of the recent instruction by Mr Phynn, even if that was informal and even if the written record of it is only in Mr Phynn’s own notes. We are satisfied it was given and, indeed, it was wholly consistent with the surrounding circumstances and was a very recent instruction to the events that then happened on the 30 October very soon afterwards.6.19 Secondly, we are satisfied that the conclusions Mr Phynn reached about the events of 30 October were conclusions he was more than entitled to reach on the evidence he had. That evidence includes the account given by Mr Manley and his contribution to explaining what happened that day.6.20 Thirdly, we accept it was those facts and those facts alone that were genuinely operating on Mr Phynn’s mind when he made the disciplinary outcome decision and then indeed the next step the decision to dismiss.6.21 Fourthly, we have seen lots of evidence of what we find was a genuinely supportive approach to Mr Manley by each of the three managers that we have heard from, particularly Mr Phynn. We also note that the fact that the final written warning was live meant the possibility of alternative disciplinary sanctions were themselves considerably limited once the alleged misconduct was made out, which we are satisfied it was.6.22 Against that, there are the matters Mr Manley wanted us to examine in support of the claim. We start by acknowledging that there are aspects of the chronology and events around the investigation and the disciplinary process that, if viewed through the lens of a different legal test might lead to other conclusions. Those procedural aspects are not relevant to the legal test before us unless, they go to undermine our view of the facts. They do not. The fundamental conclusion that we reach is that the process adopted, whatever criticisms there might be, did not displace the underlying fact that Mr Phynn genuinely reached the conclusion that he did about Mr Manley’s conduct. In other words, it was the reason that was operating on his mind. This is not a case where any criticism of the process adopted could undermine the genuineness of the operative reasons or be used to indicate any ulterior reason for the dismissal.6.23 This is a case where if there was a difference in treatment, which we have concluded there isn’t, we may well have been able to go straight to answer the reason why question without recourse to any analysis of the shifting burden, but it is good practice to approach all direct discrimination claims through the concept of a shifting burden. In doing so, the first question would be to consider whether there was anything from which we could have concluded that the disability played any material part in the decision to dismiss. We have to say we have been unable to see very much at all in the facts of this case which would support any inferences being drawn to justify reaching that prima facie conclusion. The high point in support of that seems to be that since acquiring the disability, or at least since the beginning of the health issues that became the disability, Mr Manley has been subjected to a series of disciplinary suspension over a relatively short period of time. Two of which were directly linked to decisions by Mr Phynn. In isolation, that would be something that we would look very carefully at to see whether that does in fact provide sufficient to draw the inferences required to shift the burden. We have done that in this case and on doing so even that falls away. It falls away because the facts of the matters very early in 2020, whilst they are not fully before us, leave us in a position where it seems it was open to the employer on proper, non-discriminatory grounds to take the steps that were taken at the time. In any event, that first matter arose at a time before there could have been any reasonable suspicion or sense that the question of disability was likely to be engaged.6.24 The second suspension, in July, was then positively set aside by Mr Phynn, specifically because of the support that was by then in being made available to Mr Manley. Far from it indicating a desire on Mr Phynn’s part to find a means, or a ‘rouse’ as it was put, to find a way to get Mr Manley out of his employment, our conclusions lie in completely the opposite direction. Whilst the advice to consider suspension for the conduct that was alleged against Mr Manley appears itself to have been proper in the circumstances, we find Mr Phynn stepped in to change that course specifically because of his knowledge of the Claimant. That supports the conclusion that Mr Phynn was supportive of the Claimant because of his disability, as opposed to suggesting that he was out to find a way to dismiss him. It is also worth observing that the means by which he diverted the formality of an investigation was to resolve issues informally which is very close to the essence of what is expected in the grievance process, although this was clearly a disciplinary allegation.6.25 Finally, so far as there are three disciplinary matters in relatively close succession, the reality is that there wouldn’t have been that third suspension had there not been a further act of misconduct by the claimant.6.26 From that we conclude that, even if there had remained something in the contention that the burden had shifted, we would then have to look to the wider context. As we have said, Mr Phynn had genuine concerns for and sought to support the Claimant. We have seen contemporaneous evidence of that empathy and support in the text messages. Those exchanges also importantly seem to go both ways in that they demonstrate how Mr Manley recognised, at the time at least, the support and help that Mr Phynn was giving him. It may be the case, although it is not necessarily for us to go too far in this direction, but it may be the case that it is only through the understandable process conducted at a later date of reflecting back on events which has led Mr Manley to view those exchanges in a different light to how he viewed them at the time. He told us how more recently he has had to reconcile in his own mind how it is he is now being dismissed from this employment. That is what leads Mr Manley to the later conclusion that Mr Phynn must have been constructing a foundation to dismiss him. We reject that. Our conclusion is that it is not made out on the evidence and we do not accept that as a fact.6.27 As a result, we do not see a basis on which the burden would have shifted. If the burden had shifted, we would then be required to turn to the Respondent for it to explain the reason why Mr Manley was dismissed. We are satisfied for the reasons we set out that were that to have arisen, it would have satisfied us for the reasons already given that it was in no way whatsoever because of the disability of depression.6.28 So, whether we simply identify the reason why, or we analyse the claim through the shifting burden, the direct discrimination claim relating to dismissal fails. We then turn back in time to the earlier matter of Mr Phynn discouraging or dissuading the Claimant from raising a formal grievance on 30 October. The Grievance Allegations6.29 The first point to note is the conclusion on the dismissal allegation means there is no later, in-time discriminatory act to which this earlier allegation could attach so as to form a continuing act. This act therefore stands or falls on its own and to engage jurisdiction it must be just and equitable to extend time for the presentation of this claim to 10 August 2021. Early Conciliation carries less relevance in this case. It remains a necessary step to overcome the bar on jurisdiction, but it has no effect to extend time limits. This means that the claim should have been presented by 29 January 2021 and was therefore about 6½ months out of time.6.30 So far as we have to assess justice and equity of extending time the Respondent points to the fact that the Claimant did have a Trade Union representative at this time, it points to the lengthy delay double the statutory time limit, it says the Claimant’s explanation is not a convincing reason and it notes how the Claimant was able to engage in the internal process and extrapolates there is no reason why could not have contacted ACAS and presented his ET1.6.31 For the Claimant’s part he says that he was labouring under a belief that he couldn’t bring a claim whilst he was still in employment whilst he was still in employment, that’s not an unreasonable mistake for somebody to have made but it certainly is a mistake and we accept that position despite doing so with some reflection and hesitation because we do recognise that Mr Manley had Trade Union support and indeed himself had attended some sort of introductory session to become a Trade Union rep over the Summer of 2020. The fact that there was some impact from Covid may have restricted some of the advice and discussions that he could have had although that seems to have been limited in view of what other advice and discussion did in fact take place. There is more force in the fact that he was pursuing and exhausting internal processes and appeal and indeed perhaps most more substantially his own state of mental health.6.32 So, balancing those limited factors in exercising our discretion of whether it is just and equitable to extend time we are still of a view the Claimant’s explanation is not the most persuasive reasoning why he didn’t present a claim but of course a Claimant doesn’t have to have a good reason before we can extend time. The quality of the reason for the delay is simply part of the factors to weigh in the just and equitable test. As we say, his ill health and his desire to seek to resolve matters internally carry more weight. Even with the 6½ months of delay, we still do not see any particular evidential prejudice to the respondent beyond the limitation defence itself and, again, as a matter of fact the parties have been able to adduce and fully argue their case on its merits. For those reasons we are satisfied that it is just and equitable to extend time in those circumstances even though it is 6½ months out of time.6.33 That takes us to the merits of the grievance matter and as we said at the outset this has to be considered as both a Section 13 and a Section 15 claim. The cause of action that brings the matter before us is under Section 39(2)(d) of subjecting the Claimant to any other detriment. For something to be a detriment, it has to satisfy only a relatively low threshold that is anything that a reasonable employee might consider puts them at a disadvantage as was set out in Shamoon v Chief Constable of the Royal Ulster Constabulary. An unjustified sense of grievance is not enough. This is an essential step in any claim of this nature that becomes before the Tribunal although we recognise it’s not one which usually occupies a great deal of time for the parties or the Tribunal, this is slightly different and this is a case where we do need to look closely at what happened and whether that actually does pass the threshold of being a detriment irrespective of how low that threshold might be.6.34 The starting point for that is what Mr Phynn actually did say or do within the broad allegation that he “inhibited or discouraged” the Claimant from raising a grievance. In fact, the allegation goes on to say, “and/or refused to accept a grievance from the Claimant on or about 30 October 2020”. We can say at the outset there is no evidence that the Claimant positively sought to raise a grievance or that Mr Phynn refused to accept him doing so and the allegation must fail on that much of the allegation but we do accept that the thought of a grievance was in Mr Phynn’s mind in dealing with Mr Manley. So, our focus remains very much on the concept of whether Mr Phynn inhibited or discouraged a grievance, as the case was put before us.6.35 The critical exchange going to this is recorded in two places. Firstly, the notes of the meeting on 30 October. We find these were completed by Mr Phynn soon after the conclusion of the meeting. In that he says: “Tom was clearly upset, I suggested that he took the rest of the day off, myself and Andy offered to take Tom home and could arrange getting his car sorted at a later date. Tom said that he was fine to drive so I asked how long it took to get home. Tom said half an hour so I asked that he text me so that I knew he was home safely. I also asked that he text me on Saturday and Sunday to make sure he was okay. I suggested that Tom take the following week off to take stock and have a bit of breather he has had plenty of leave to take so that was agreed as a positive course of action. I told Tom that I would speak to Nathan, Jason and Adam of next week.”6.36 That is the contemporary account of what was said and we accept its basic accuracy. We note it doesn’t actually mention any concept of a grievance at all or the idea of taking time off instead of raising a grievance. That account is consistent with the account given by Mr Thomas who was also present at the meeting and he couldn’t recall any mention of grievances. If matters ended there, that may have been the basis on which this allegation was dismissed. However, to his credit Mr Phynn accepted within the course of these proceedings that he explained to Mr Manley :- that he advised him to take some time off and avoid the grievance route out of concern for his mental health situation as he felt that going through a grievance process at the same time as having another open grievance going on would be detrimental to Mr Manley’s mental health.6.37 That was an answer he gave to a question. It is not said to be recounting of the words actually spoken but, on the basis that’s what Mr Phynn accepts was at least the gist of what was said, we accept that that must have been the thrust of what was said.6.38 We find that faced with the crisis situation that was then unfolding, Mr Phynn would not have taken any different approach with anyone else who was otherwise displaying the same sort of emotional distress and with the same background, even if that person did not have the claimant’s disability. We also think it important to put some qualifications and context to that exchange. As we have said, we are satisfied that the Claimant did not raise the intention to lodge a grievance in the course of that meeting albeit he was, we think, complaining about the relationship with the protagonists. Mr Phynn merely anticipated that might be a natural course. Mr Phynn did not refuse to accept or process a grievance and we note that Mr Manley did not in fact raise a grievance at any time afterwards. Had Mr Manley said, actually I do want to make this formal then we find that Mr Phynn would not have refused to deal with it and would have been of the view that he could not refuse to do so, even if he had wanted to.6.39 Further, we don’t find that anything that Mr Phynn said in the course of that exchange influenced Mr Manley’s understanding of the process and method of raising a grievance. It is clear that he was aware of his right to do so and, more importantly, how to go about it as he had recently done so, indeed he had done so without reference to Mr Phynn, bypassing him in the process going straight to Mr Phynn’s Manager.6.40 Finally, even after the time off to reflect on the events that had happened, the Claimant was still free to progress the matter formerly on his return. It is also important to note that at the time both Mr Phynn and Mr Manley were in agreement with the way forward. We also note Mr Manley had the support of his Trade Union still at this time and nothing about Mr Phynn’s approach appears to have caused anyone any concern at the time.6.41 We have alluded to Mr Thomas’s evidence already, the lack of recollection of anything to do with grievances is limited partly because of the passage of time and partly because he genuinely couldn’t recall the grievances being discussed. However, what he was clear about, and quite firmly so, was the sort of emotional feel in the room at the time and how this course of action was exactly the sort of thing that he would expect to be done for the right reasons in that sort of situation. Indeed, it seems that that was Mr Manley’s view as well because out of the concern for his wellbeing.6.42 In that regard we go back to the contemporaneous text messages showing how Mr Phynn was concerned that he be kept informed. We note this all occurred on a Friday before a weekend, and it was Mr Phynn contacting the Claimant to say that he had not heard from him later that day so asked: - “are you home?, can you let me know you are okay please.”6.43 And Mr Manley responds, saying: - “I have just got home many thanks for listening today I do feel quite embarrassed getting so emotional and about the whole situation but today I just couldn’t take anymore. As I said the concerns we raised with regards to mainly Jason but also Nathan, Mick and Adam I am confident Jason is the instigator in all of this and is trying to turn everyone against me, play tricks and spread rumours. Just want it all to stop and be able to come and do my job that I love. I want to be able to feel happy and not feel the daily anxiety of what they are doing ???? Once again I apologise for our conversation on Wednesday I guess it was the start of this building up I am deeply upset by what Nathan said to you it isn’t true and I find it highly coincidental that Adam used the exact same words today. Sorry for the long message, once again, thanks for your support.”6.44 It is clear that Mr Manley did have concerns about the actions of his colleagues which explains why Mr Phynn may have considered a grievance was a possibility but we find his actions were not an attempt to dissuade, only to deal with the immediate crisis. He then followed up with Mr Manley about clocking out and exchanges further supported messages, encouraging him to relax, and asking him to send a text on Saturday and Sunday to make sure he was okay. Mr Phynn agreed to speak to everyone the next week. All that we find to be consistent with his note that he intended at that point to speak with the others involved. To that end, one could say he was informally exploring the facts of what might have been any grievance. That is an important point in the sequence of events because what had happened so far was that Mr Phynn only really had what he had been told by Mr Manley and the obvious surrounding circumstances of the ambulance arriving that morning. It is only later that things came to light which took the matter in the different course, a course that became the disciplinary investigation.6.45 So, the first question is whether what Mr Phynn did was a detriment. We have to say viewing it objectively as we have to, that we can’t see that this level of empathic support can amount to a detriment. Had Mr Phynn expressed himself in more definite or emphatic terms, for example if he had been more restrictive than advisory or if he had responded to a positive request to raise a grievance, for example, saying I would not consider a grievance because of your mental health then we are not in any doubt that was likely to pass the relatively low threshold of being a detriment but that’s not the case. But what happened here is no more than a supportive measure to deal with the crisis of the moment. It did not preclude a later grievance, indeed it amounted to a manager beginning to look into an employee’s informal concerns, which is exactly what a grievance should do. Perhaps a good measure of whether a claimant has been subjected to a grievance is the view of the claimant at the time. As things stood on that day, we do not accept that Mr Manley regarded himself as being subjected to anything other than the positive and supportive response from Mr Phynn.6.46 So, if there is no detriment there cannot be a claim under Section 13. However, we have given that some further alternative analysis if that is not the correct approach. If there was a detriment, we are satisfied that the reason why the Claimant was advised to take time off and not raise a grievance was because of how he was presenting in the moment. That is something which may or may not arise in consequence of his disability of depression but on a strict analysis is not the disability of depression itself, nor for that matter is it the wider alleged impairments of stress or anxiety.6.47 The second alternative analysis if we are wrong about that conclusion is that the Section 13 would have been made out, but we would have to ask ourselves what was the loss and the damage that flowed from that? Neither party has addressed us on remedy matters albeit as far as we can see it was before us but, in any event, we cannot see any financial loss flowed from the conduct of Mr Phynn on 30 October and the surrounding evidence and the supportive reaction from Mr Manley suggests there could not be any evidence of injury to feelings, still less personal injury.6.48 We then turn to the second basis on which this grievance allegation is put. That is under Section 15. Having found there is no detriment it takes us into that area of conceptual analysis whether there is any difference between a detriment to establish less favourable treatment, and a detriment to establish unfavourable treatment. The EHRC Guidance which we touched on already goes some way to explain what a detriment is. We have revisited a case we were directed to of Williams and Trustees of Swansea University Pension and Others in The Supreme Court. We think Mr Keith was right to say it’s probably not on point in answering the question that I posed as to whether there was a distinction between detriment and unfavourable treatment, but it is helpful because of its central focus on the analysis of when something truly is a detriment, whether you call that detriment or unfavourable treatment. Adopting the approach taken in that case having identified the relevant treatment that is Mr Phynn’s actions and advise on 30 October where he prioritised taking a week out rather than the potentially adverse effects of a grievance, we take the view that there is nothing intrinsically unfavourable or disadvantageous about that and that no reasonable employee would regard themselves as having been put at a disadvantage by those circumstances. If there is no unfavourable treatment, again, the claim must fail.6.49 Once again, we have some alternative analysis if we are wrong about any unfavourable treatment and go on to the reason why and whether that was because of something arising in consequence.6.50 First, there is the contention as to whether the Claimant was very emotionally upset immediately before his conversation with Mr Phynn? We are satisfied he was. Does that arise in consequence of his disability of depression? We are satisfied on the balance of probabilities it did. The conclusion is supported by the evidence of the ‘PAMS Assist’ concern at the time and whatever detail was said in the exchanges, we know the thrust of it but the detail of it was enough to call for an ambulance. There are references in those exchanges to suicidal intentions. It sits consistently against the general background. There is evidence of his presentation on the day generally and it is sufficiently wrapped up with the disability for us to conclude on the balance of probability of the necessary causal connection that the treatment was because of the emotional state of the claimant and the emotional state of the claimant arose in consequence of the disability of depression.6.51 Pausing there have we also considered if there was any distinction to be drawn between depression, as the mental impairment of the disability on the one hand, and stress and anxiety, as alternative and distinct impairments on the other. Our conclusions are firstly that stress is not, in itself, an impairment nor will it ever usually be an impairment. It is an environmental factor which can manifest in the body’s response and sometimes adversely so. It is only at that point that the presence and consequences of stress may manifest in other impairments. However, a person who is otherwise disabled by virtue of a mental impairment such as depression is, we conclude on the balance of probability, more likely than not to experience the adverse effects of stress sooner at a lower threshold and potentially more gravely than somebody without those mental health disabilities. So far as anxiety might be a separate impairment, we consider that is slightly different to stress because it is something that could amount to an impairment in its own right. It is certainly a clinical diagnosis available under the DSM IV. In this case it has been referred to by Occupational Health and the General Practitioners in the fit notes. In itself, it is not something we regard as being sufficiently distinct for it to be able to be taken out of the equation when dealing with the diagnosis of depression. In taking that approach we remind ourselves that it is not necessary to have a recognised and clinically diagnosed illness or condition to be disabled under the Equality Act, nor is the label that a clinician puts on an individual’s impairment at any one moment in time determinative. What we are concerned with is whether there is a physical or mental impairment which there has been found to be in this case. Adding or removing the clinical label of anxiety neither adds nor removes from the presentation of this individual human being and the adverse effects he encountered. We are not able to separate those two matters from the definition of disability we do have.6.52 Turning back to section 15, even if the treatment was because of something arising in consequence of the disability, that still isn’t the end of the matter because we have to consider the justification defence advanced. Is this in furtherance of the aim relied on. That is said to be resolving the grievances informally. We are satisfied that is a legitimate aim. It is an aim which is written in the policy, it is consistent with the ACAS Code and factually we are satisfied that was Mr Phynn’s intention because we can see that expressed contemporaneously.6.53 Of course, that is not enough, and the approach taken in the treatment itself must then be proportionate to achieve that aim. We have had regard to the various elements of what is required to be proportionate and concluded that it was a proportionate means of achieving that aim. Mr Phynn’s conduct did not exclude grievances, it simply prioritised the week off in the crisis that had then unfolded. It is not improper to describe it as a wholly humane response, with the best intentions, not that intentions are necessarily determinative in discrimination sense, but it stands in contradiction to the situation where, for example, Mr Manley or a hypothetical person had requested a grievance and that request was refused. Mr Phynn’s actions need to be seen in context, the context in respect of which the instinctive response of all three persons present was that this was the correct and positive way forward to support Mr Manley. Mr Phynn did look into the events, informally, thus furthering the informal route albeit it was overtaken by the evidence of what Mr Manley himself had done. Mr Manley was never precluded at a later date from raising a grievance or raising the grievance points within his disciplinary process.6.54 So, if after all of those alternative analyses, matters got as far as making out a prima facie section 15 claim, we would have dismissed it in any event on the basis that the respondent could justify the actions as being a proportionate means of achieving a legitimate aim.6.55 For completeness we should add we have rejected there being an alternative, if I can put it in those terms, because there is a second ‘arising from’ matter advanced. That being a perception by Mr Phynn that the Claimant was mentally unstable at the time, we reject that as a fact. Principally the surrounding circumstances by the time the treatment happened, the ambulance had been which obviously raises the stakes of a serious situation, but it had departed without the Claimant being taken to hospital. There were other indicators concerning his ability to drive himself home which satisfied everybody, including the Claimant, and it seems that the question of mental instability was not something that anybody was perceiving, as opposed to emotional distress.6.56 So, for that reason if that was the aspect of the claim that we were required to determine that would fail at that stage which would mean we didn’t need to consider justification. But for the same reasons as we have given, if that analysis is wrong those very same justifications would in any event succeed.6.57 For all those reasons the claims fail and are dismissed.