Mr K Spencer v B Williamson and others: 2602934/2022 and 2602937/2022

EMPLOYMENT TRIBUNALS

Case No 2602934/2022, 2602937/2022

Between

Mr K SpencerClaimant

B Williamson and othersRespondent

Before

Employment Judge Broughton

In person for claimant

Date 3 July 2024

REASONS

Introduction

[1]The claimant was employed by the respondent from 20 June 2022 to 18 August 2022, a short period of approximately 2 months, as a Support Manager.

[2]He filed his claim with the Tribunal on 9 December 2022 (case number 2602934/2022) against the Brian Williamson and Storefeeder (R1 and R2) following ACAS early conciliation from 10 October to 21 November 2022. The claim form identified claims of age, race and disability discrimination as well as claims for notice pay, holiday pay and other payments. The claimant was not represented and prepared the claim form himself.

[3]The claimant filed a second claim on 10 December 2022 (case number 2602937/2022) against Ian Dade (R3) following early ACAS conciliation from 14 September to 26 October 2022. It identified the same claims of discrimination but no claim for holiday or notice pay.

[4]Neither of the claims provided details of the claims of discrimination.

[5]The respondents submitted a collective defence to the claims, refuting the allegations in full. Its position is that the claimant was given notice to terminate his employment on 1 of 15 18 August 2022 and placed on garden leave until 30 September 2022 although he was only entitled under his contract and the Employment Rights Act 1996 (ERA) to 1 weeks’ notice. It therefore denied any entitlement to notice pay. The respondent asserts that the claimant had a 6 month probationary period and he was dismissed within it because of issues with his performance and conduct.

[6]The claims were consolidated by an Employment Legal Officer on 22 December 2022.

[7]The claims are listed for a final hearing on 29 and 30 April and 1 May 2024.

[8]The claimant filed further particulars of his claim under cover of an email dated 27 January 202. It referred to his wrongful dismissal claim being essentially based on a failure by the respondent to comply with its disciplinary procedure or ACAS guidance, when dismissing him. In terms of the discrimination claim, he referred to the treatment he received for supporting an employee with a disability (dyslexia) .

[9]Case management orders were attached with the Notice of Claim letter dated 16 December 2022 and included that the claimant must provide details of the remedy he is seeking and evidence in support of that by 27 January 2023. The claimant sought an extension of time to submit his medical records and this was granted to 10 February 2023 by an order dated 26 January 2023. Preliminary hearing – 9 March 2023

[10]A preliminary hearing for case management took place on 9 March 2023 before Employment Judge Wilson.

[11]Following that hearing the claims for wrongful dismissal against R1 and R2 were dismissed upon withdrawal along with the claims for notice pay, holiday pay, other payments and the claim for age discrimination.

[12]Employment Judge Wilson noted that the claimant was seeking to advance additional complaints of victimisation and less favourable treatment in relation to race discrimination which are not set to in his claim form and listed the case for an open preliminary hearing. However, Ms Akers of counsel for the claimant had only been recently instructed and she was unable to clarify the basis for any victimisation claim or further complaints of less favourable treatment and orders were made for an application to be filed by 30 March 2023 to amend the claim (if that application was to be pursued).

[13]The respondent had also requested an open preliminary hearing to consider whether any of the claims should be struck out on the grounds they are scandalous, vexatious or have no reasonable prospects of success pursuant to Rule 37.

[14]Employment Judge Wilson set out in her order, the complaints of direct race and associative disability discrimination (paragraph 3.2)

[15]The claimant requested written reasons from Employment Judge Wilson for the orders and judgments she made, on 4 July 2023 (by a letter he sent to the EAT) and these were provided on 27 July 2023. Race discrimination – dismissed on withdrawal

[16]The claimant submitted an application to amend on 29 March 2023 and an application to withdraw his claim of race discrimination on 29 March 2023 . The race discrimination 2 of 15 claims were dismissed by Employment Judge McTigue in a judgment dated 1 August 2023.

[17]The application to amend was brief and referred to the claimant wanting to include a claim under section 27 EqA for victimisation .He alleged that he made a protected act on 24 August 2022 and was the subject of a detriment, namely that he was placed on garden leave; “I request leave to amend my claim because discussed with HR to have an informal meeting with Brian Williamson on 22nd August 2022 regarding the Probation review and my dismissal on the 18th August 2022 however I made the decision to raise a formal grievance on the 24th August and as a direct result of this was placed on Gardening Leave and as no HR was present during the dismissal I was never informed, neither was I accompanied, this wasn’t for misconduct and it was unreasonable and unfair.” Preliminary Hearing 15 December 2023 by Cloud Video Platform (CVP)

[18]The case came before me to determine the application to amend and the respondent’s application to strike out the claims.

[19]The respondent submitted its grounds for its application to strike out on 13 April 2023 attaching a copy of the case of Vaughan v Modality Partnership [2021] ICR.

[20]The respondent had prepared a bundle for today’s hearing which the claimant had a copy of and reference hereafter to page numbers are to pages in that bundle. Clarifying the claims and issues

[21]It was agreed in discussion with the parties, at the outset to this hearing, that the outstanding claims were:21.1 Disability: direct discrimination against all 3 Respondents

21.2 Wrongful dismissal against R2 Withdrawal of wrongful dismissal claim against the Second Respondent

[22]The claimant however then informed me that as far as he was concerned he had also withdrawn the wrongful dismissal claim against R2. The claimant explained that he accepted that he had been paid his full notice pay. He confirmed that he understood that I would be dismissing the claim on withdrawal which meant that he could not then change his mind and seek to reintroduce it.

[23]The only remaining claim, it was agreed, was therefore the section 13 disability discrimination claim against all 3 Respondents.

[24]We went through the section 13 EqA claims identified in the case management order of Judge Wilson.

[25]The claimant agreed that paragraph 40.1.5 in Employment Judge Wilson’s order was a duplication of paragraph 40.1.4.

[26]Paragraphs 40.1.2,40.1.6 and 40.1.7 are related to race and thus no longer live claims.

[27]The claimant further clarified the complaint in relation to the probationary review (paragraph 40.1.4 & 40.1.5): 3 of 15 Probationary Meeting: para 40.1.4 – 40.1.5

[28]The claimant’s position is that Ian Dade carried out the probationary review and afterwards Mr Dade went to discuss it with Mr Brian Williamson. About 30 minutes later. Mr Williamson called the claimant into a meeting and asked him how he thought the review had gone, the claimant reported that he felt it had gone well (the claimant had not yet seen what Mr Dade had written in the review document). He was then told by Mr Williamson that he did not feel it had gone well and the claimant was told he was being dismissed The claimant complains not only about Mr Dade but also the conduct of Mr Williamson.

[29]Counsel for the respondent complains that the complaints at paragraph 40.1.2 – 40.1.7 are not pleaded in the claim form (but accepts the act of dismissal is). However, when taken to box 8.2 in the claim form dated 10 December 2022 (case number 2602937/2022), which is the claim against Ian Dade, counsel accepted that this refers to the probationary review meeting. However, while counsel was prepared to accept the complaint about the probationary review meeting itself was pleaded, he pointed out that para 40.1.4 also complained about the probation period. Counsel stated that the respondent would not object to the complaint against R3 if it is limited to the review meeting only ( i.e. not the whole probationary period).

[30]The claimant was then asked to clarify his complaints, and he explained them to be as follows:• That the claimant had a member in his team called (putative disabled employee: ‘PDE’) who has dyslexia and who the claimant alleges was being bullied for not doing tasks correctly. PDE agreed that the claimant could mention his condition to the team.

• The claimant spoke to HR who said he needed an email from the PDE confirming his agreement to disclosing his condition to them. The claimant then spoke to Ian Dade who informed the claimant that he did not know the PDE has dyslexia.

• The claimant denies that he was told at the probationary review that he was too attentive to the PDE and alienating the team however, this was recorded by Ian Dade in his notes of the review meeting. The claimant was only aware of this criticism/concerns, when he obtained a copy of his probationary view documents from HR via a subject access request. He was ‘shocked’ to read the comments. Not invited to management meetings: para 40.1.3

[31]In terms of the complaint at paragraph 40.1.3 (not invited to management meetings) the claimant confirmed that this was background information only and not a complaint of discrimination. Remaining claims

[32]It was confirmed that the remaining live claims are therefore as follows (section 13 disability discrimination claims): Para 40.1.1 : the act of dismissal 4 of 15 Para 40.4.4 & 40.1.5: what happened at the review meeting on 18 August 2022, what was written by Ian Dade and the conduct of Mr Williamson in dismissing and the unfair process which he is alleged to have carried out. Comments in the probation review documents

[33]We then looked at the probation review document (page 167 – 168). The claimant confirmed that the comments he believes to be discriminatory are as follows: (page 166): “You seem to be showering [PDE] with attention, time procedure, etc but not Laura and matt. This has given them the view that they are not important as they are being given the same time or training that [PDE] is. Whilst I appreciate [PDE] needs, you do seem to be overly attentive and jumping up to help him with everything which I would imagine could be a bit dauting for [PDE]. He does not seem to get any time on his own to try and resolve or investigate you being around him. You also seem to stand over him while he is on the phone which I imagine can be quite daunting . It is like you are trying to listen in on him. I would not like Brain over my shoulder while I was trying to concentrate on a call. You will need to concentrate time on all the staff equally and leave [PDE] to try and progress on his own. He will learn from mistakes as he has shown that with the issue around telling the customer that the middleware was off. General … I have also been surprised on a couple of occasions that you appear to have asked Andrea something after I have given you the answer or action. Example was informing the team about PDE’s dyslexia. We chatted and I gave you the solution, so imagine my surprise later when Andrea informed me that you had organised a further meeting with her and Iain to discuss the same thing.”

[34]Based on the above being the remaining live claims, counsel for the respondent confirmed that he had no objection and no longer seeks to argue that the claimant is required to apply to amend, considering that these claims are ‘close enough’ to the pleadings.

[35]I consider that the above amounts to further particulars of the claim and do not require a formal amendment application. In any event, it would not give rise to a significant amendment, merely clarifying the factual basis for the complaints and would not engage considerations therefore of time limits. The respondent pleads no prejudice and in the circumstances it would be in the interests of justice and the overing objective to allow them.. Amendment Application

[36]We then turned to the amendment application to include a complaint of victimisation.

[37]The claimant on being taken to his application of the 19 March 2023 then informed me that he was not pursuing it and in fact he thought he had withdrawn all his claims 5 of 15 before this hearing, including the disability discrimination claims which we had been discussing all morning.

[38]The claimant explained that he had sent an email on 3 July to the EAT asking for written reasons from Employment Judge Wilson and had wrongly understood that today’s hearing was to discuss his EAT application.

[39]I explained to the claimant that the disability discrimination claims had not been dismissed by Employment Judge Wilson, which he did not appear to have appreciated.

[40]The claimant stated that he had been suffering with depression at the time of the previous preliminary hearing.

[41]The claimant eventually confirmed that he did want to pursue the section 13 EqA claims. Automatic Unfair Dismissal

[42]The claimant then referred to an amendment application he had made to include a claim for automatic unfair dismissal (page 136 of today’s agreed bundle). The application was asking the EAT to accept it as an amendment to the appeal.

[43]What seems to have happened is that the claimant had applied to the EAT by mistake to amend his tribunal claim. He had sent the application to the Tribunal but as it referred to an appeal he had been told that he needed to send it to the EAT.

[44]The claimant explained that he wanted to add a claim under section 104 ERA on the grounds that his dismissal was automatically unfair because his statutory rights had been breached.

[45]The statutory rights he alleges were breached were the respondent’s ‘own HR policy and the ACAS policy’.

[46]The claimant explained that he had complained to the respondent that his rights had been breached when he had written to the Tribunal on 25 May 2023. I read out and explained to him the provisions of section 104 ERA and in particular (causation) the need for the allegation of a breach to have been the reason for the dismissal and thus the allegation of a breach of statutory rights must necessarily predate the act of dismissal.

[47]There was no merit in his claim as he explained it at today’s hearing. It was agreed that he needed consider his position further and that he may want to take some advice.

[48]The claimant did not pursue that amendment today. Victimisation

[49]The claimant confirmed that he wanted to pursue the amendment to add a victimisation claim .

[50]The alleged protected act is he explained, a grievance he made on of 24 August 2023. The respondent denies any written grievance was filed. The claimant had not produced a copy of it today. The claimant complains that as soon as he put in the grievance, he was put on garden leave . (He was told on 18 August he had been dismissed; 6 of 15 therefore, the act of dismissal cannot itself have been anything to do with the grievance).

[51]When asked whether the grievance he filed includes any complaint/allegation about discrimination or makes any reference to the EqA, the claimant was unsure, informing me that he could not recall but “I think so.” He was not able to say what he had said in the grievance.

[52]In terms of why he believed being placed on garden leave gave rise to a detriment, the claimant informed me that he could not apply for another job while he was still employed by the respondent.

[53]The claimant on being asked to clarify the victimisation claim, became increasingly agitated, complaining that he did not feel able to answer further questions because he had come prepared today only to only deal with the application to the EAT to add an automatic unfair dismissal claim. I decided to adjourn the hearing early for lunch to allow the claimant time to decompress and consider after lunch whether we could make further progress with that application today.

[54]After lunch the claimant was calmer and apologised for his outburst before lunch however, I remained concerned that was not able to properly deal with this amendment application today. I decided a fair hearing in relation to this application was not possible and decided to give the claimant time to reflect on whether he wanted to pursue it. Counsel for the respondent requested that a further preliminary hearing be listed to determine any application the claimant may wish to pursue, given the proximity of the final hearing, to avoid further delay in determining the final issues.

[55]Separate orders have been made and recorded in a separate case management order Strike out Deposit Order - application.

[56]The claimant was given an opportunity to give oral evidence about his means and did so under oath and was cross examined briefly.

[57]He confirmed that his income is £2519 per month net. His partner earns £28,000 per annum. His main outgoings are:• Car finance (HP) : £812 month

• Rent £600 month- the claimant contributes £300.

• Household bills and credit cards: £600 month

• Clothes: £50 month

• Council tax £145 month

[58]He estimates that he has after bills and credit card debt payments and finance, circa £400 month for petrol, car tax and insurance. Submissions – respondent

[59]The respondent pursues an application for a deposit order only, mindful of the weight of authority which makes striking out a fact sensitive discrimination claim difficult.

[60]The respondent submits that the claimant will need to establish that PDE is disabled, he has that burden and must lead evidence on it. 7 of 15

[61]If his case is taken at the highest, his case is that not everything Mr. Dade set out in his notes for the probationary meeting were discussed with him, that Mr Dade spoke with Mr. Williamson and he was dismissed.

[62]The respondent submits that the dismissal letter dated 25 August 2022 (p.169) provides an explanation for dismissal and recounts various matters and does not appear to include anything about the claimant’s management of PDE. The claimant will need to show that he was dismissed because of something not raised in that letter.

[63]It is submitted that the managers concerns were not about PDE having a disability but the claimant not spending enough time with the rest of the team.

[64]Counsels argues that the claimant has little or no chance of shifting the burden of proof.

[65]It is submitted that it remains unclear whether the claimant is alleging that Mr. Dade did not mention anything which is set out in the probationary review notes which he objects to, or not all of it, but either way, it is appropriate for a manager to record his concerns and there is no indication his concern was about PDE’s disability but because 2 other members of staff were not getting enough time with the claimant.

[66]Even if the burden of proof is shifted, the dismissal letter is a 'powerful’ piece of evidence about why the respondent acted as it did.

[67]Counsel argues for a deposit order of £1000 for each claim. Claimant’s submissions

[68]The claimant submits that he brought this case to the Tribunal purely on what was written in the probationary review documents. There were no emails from the team complaining that the claimant was spending too much time with PDE.

[69]The claimant decided PDE needed more support and this was ‘ frowned’ upon by Mr Dade.

[70]He did not see the offending notes until he made a subject access request and submits what was written was ‘lies’. These matters were not put to him because Mr. Dade knew he could challenge them. He colluded with Mr. Williamson with whom Mr Dade had been friends for 20 years. Deposit Orders – Rule 39 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (Rules)

[71]Rule 39 provides as follows: “(1)Where at a Preliminary Hearing (under Rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.” 8 of 15

[72]A Tribunal may make a Deposit Order where a claim or part of it has little reasonable prospect of succeeding. However, this is not a mandatory requirement and whether to make such an Order, even where there is little reasonable prospect of success, remains at the discretion of the Tribunal to determine whether or not such should be made. Case law

[73]The EAT in Hasan v Tesco Stores Ltd

UKEAT/0098/16

held that when considering whether to strike out a claim, a tribunal must(a) consider whether any of the grounds set out in rule 37(1)(a) to (e) have been established (first stage); and

(b) having identified any established ground(s), the Tribunal must then decide whether to exercise its discretion to strike out, given the permissive nature of the rule (second stage).

[74]Claims or complaints where there are material issues of fact which can only be determined by an Employment Tribunal will rarely, if ever be, apt to be struck out on the basis of having no reasonable prospect of success before the evidence has had the opportunity to be ventilated and tested. As a general principle, therefore discrimination cases should not be struck out except in the very clearest circumstances. In Anyanwu v South Bank Students' Union

[2001] IRLR 305

[75]There is guidance from Mrs Justice Simler (President) Ms A Hemdan v Ms Ishmail and Mr H Al-Megraby:

UKEAT/0021/16/DM

and in particular paragraph 12 of the judgment.: 12. …The test, therefore, is less rigorous in that sense, but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence…

[76]When deciding whether to make a deposit order, a broad assessment of the merits is all that is required; it is not necessary for the judge to engage in detailed analysis: Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare)

2019 ICR 687

, EAT.

[77]However, tribunals should be wary of making an assessment of the strength of a party’s case from a review of the documentary evidence where key facts are in dispute, especially in discrimination cases.

[78]Hemdan v Ishmail and anor

2017 ICR 486

, EAT: a mini trial of the facts should be avoided because that would defeat the object of the exercise. Disability Discrimination

[79]Section 13 EqA provides that (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Burden Of Proof

[80]Section .136 EqA provides that, once there are facts from which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof ‘shifts’ to the respondent to prove a non-discriminatory explanation.

Lord Justice Mummery in Madarassy v Nomura International plc 2007 ICR 867, CA, stated:

[81]‘The bare facts of a difference in status and a difference in treatment only indicate 9 of 15 a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’

[82]In Denman v Commission for Equality and Human Rights and ors

2010 EWCA Civ 1279

, CA, Lord Justice Sedley accepted the approach in Madarassy v Nomura International plc but stated that ‘the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by nonresponse, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.’

[83]In Madarassy the Court of Appeal observed that ‘the absence of an adequate explanation… is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant.’

[84]The Supreme Court in Efobi v Royal Mail Group Ltd

2021 ICR 1263

, SC observed that ‘Whether the employer has in fact offered an explanation and, if so, what that explanation is must… be left out of account. It follows that… no adverse inference can be drawn at the first stage from the fact that the employer has not provided an explanation.’

[85]However, An untruthful explanation may shift the burden: P2CG Ltd v Davis EAT 0188/20: in this case the EAT found that a director had amended an email to embellish the company’s concerns about the claimant’s performance. The tribunal’s finding in relation to the email was significant because it formed the basis for the inference that the director had made the alteration because he knew that the claimant’s disability was a factor in the dismissal decision. The EAT held that a dismissal could be on legitimate performance grounds, yet still be materially tainted by discrimination.

[86]Veolia Environmental Services UK v Gumbs EAT 0487/12 the EAT held that when considering whether a prima facie case of direct discrimination had been made out the employment tribunal had been entitled to take into account the fact that the employer had given inconsistent explanations for its conduct while excluding the substance and quality of those explanations at the first stage. His Honour Judge Hand QC: ‘The statutory provisions as to the reversal of the burden of proof and the jurisprudence which has grown up around them exclude actual consideration of the substance of the explanation,…. We can see no basis for excluding from consideration the fact that there have been a number of differing and inconsistent reasons advanced for particular behaviour.,,It is the fact of the inconsistency that is being included, not the explanations themselves.’ ‘Less favourable treatment’

[87]EHRC Employment Code: ‘The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated or would have treated another person’ (para 3.5).

[88]The test is as objective one but the claimant’s perception of the effect of treatment is likely to significantly influence the tribunal’s conclusion as to whether, objectively, that treatment was less favourable.

[89]Where the difference in treatment as trivial, it may be disregarded under the ‘de minimis’ principle: Peake v Automotive Products Ltd

1977 ICR 968

, CA and Ministry of Defence v Jeremiah

1980 ICR 13

, CA.

[90]The ‘less favourable treatment issue cannot be resolved without, at the same time, 10 of 15 deciding the reason why issue. The two issues are intertwined’ :’Lord Nicholls commented in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL. A tribunal may therefore in appropriate cases, rather than go through and address each part of the statutory definition, ask the single question was the claimant, because of a prohibited characteristic, treated less favourably? ‘Comparator’

[91]In Watt (formerly Carter) and ors v Ahsan

2008 ICR 82

, HL Lord Hoffmann considered the difficulties of identifying a statutory comparator: ‘ in most cases ‘it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator..’

[92]Citibank NA and ors v Kirk

2022 EAT 103

,: even where an employer can show that someone with the protected characteristic was treated more favourably than the claimant, this would not necessarily defeat a claim where there is other evidence of discriminatory conduct. ‘Because of protected characteristic’

[93]Section 13 EqA refers to treatment because of ‘a’ protected characteristic and therefore extends to cases where the claimant does not possess the relevant protected characteristic but is nonetheless less favourably treated ‘because of’ that characteristic :Showboat Entertainment Centre Ltd v Owens

1984 ICR 65

, EAT.

[94]The wording of section.13 EqA also means that those who associate with a person who has a protected characteristic are covered.

[95]The protected characteristic must be the reason for the claimant’s less favourable treatment: Gould v St John’s Downshire Hill

2021 ICR 1

, EAT, Mr Justice Linden: ‘The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… [and] the influence of the protected characteristic may be conscious or subconscious.’ Tribunal stress

[96]Nagarajan v London Regional Transport

1999 ICR 877

, HL held that if racial grounds… had a significant influence on the outcome, discrimination is made out’. Tribunal stress.

[97]EHRC Employment Code notes that ‘the [protected] characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause’ ( para 3.11).

[98]An employer may be able to show that it was genuinely unaware of the protected characteristic.

[99]Unreasonable behaviour does not mean that there has been discrimination, but it may be evidence supporting that inference if there is nothing else to explain the behaviour: Anya v University of Oxford and anor

2001 ICR 847

, CA and Messeri v Royal Hospital for Neuro-Disability ET Case No.2301983/20.

[100]The reasonableness of an employer’s treatment may also be taken into account: Nelson v Newry and Mourne District Council

2009 IRLR 548

, NICA 11 of 15

[101]Lord Browne-Wilkinson, commented that ‘the “but for” test is not a rule of law but a rule of convenience depending on the circumstances of the case’.

[102]The Supreme Court in R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and ors

2010 IRLR 136

, SC: Lord Phillips: “…where the reason for the less favourable treatment is not immediately apparent, it is necessary to explore the mental processes, conscious or subconscious, of the alleged discriminator to discover what facts operated on his or her mind. Therefore, direct discrimination can arise where a decision is taken on a ground that is inherently discriminatory, or where it is taken for a reason that is subjectively discriminatory.

[103]Mr Justice Linden in Gould v St John’s Downshire Hill

2021 ICR 1

, EAT observed that : “….there may be cases where the “but for” test is satisfied, but for the protected characteristic or step the act complained of would not have happened, and/or where the protected characteristic or step forms a very important part of the context for the treatment complained of, but nevertheless the claim fails because, on the evidence, the protected characteristic or step itself did not materially impact on the thinking of the decision maker and therefore was not a subjective reason for the treatment”

[104]The fact that a protected characteristic is a part of the circumstances in which the treatment complained of occurred (and therefore but for that characteristics the circumstances or background context may not have arisen), does not necessarily mean that it formed part of the ground, or reason, for that treatment e.g. the fact a woman is discriminated against because of a breakdown in her relationship with her male boss, the fact she is a woman means the events would not have happened, but the act complained is because of the breakdown in their relationship, not because the complainant is a woman ( the ‘but for’ text would be satisfied but not the reason why test)..

[105]The focus must be on why the employer acted as it did which involves considering the subjective motivations (conscious or subconscious) to determine whether the less favourable treatment was in any way influenced by the protected characteristic relied on. Usually the reasons will have to be deduced, or inferred, from the surrounding circumstances’: Lord Nicholls put it in Nagarajan v London Regional Transport

1999 ICR 877

, HL

[106]Page v NHS Trust Development Authority

2021 ICR 941

, CA: distinction in this type of case was between holding the belief in question and manifesting it reasonably on the one hand and proselytising it in such a way that objection could justifiably be taken on the other.

[107]It is not defence to show that the employer had a good reason for the discriminatory conduct. The EHRC Employment Code: the motive or intention behind the treatment complained of is irrelevant (see para 3.14). Discrimination by association

[108]In Coleman v Attridge Law and anor

2008 ICR 1128

, ECJ, it was held that the EU Equal Treatment Framework Directive (No.2000/78) protects those who, although not themselves disabled, nevertheless suffer direct discrimination or harassment owing to their association with a disabled person.

[109]The EHRC Employment Code suggests that discrimination by association could occur where an individual has campaigned to help someone with a particular protected characteristic or refused to act in a way that would disadvantage a person or people 12 of 15 who have (or whom the employer believes to have) a protected characteristic.

[110]The question for the tribunal to determine is whether the protected characteristic of the other person was an effective cause of the treatment of the claimant ? Conclusions and Analysis

[111]When determining whether to make a deposit order, a tribunal is not restricted to a consideration of purely legal issues; it is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case.

[112]I am required to take the claimant’s case at its highest and not conduct a mini trial or detailed analysis of the case, the requirement is for a broad assessment.

[113]It is not in dispute that the claimant was dismissed. The respondent accepts that the claimant was given notice of termination on the same day as the probationary review meeting. There was no disciplinary process carried out in accordance with the respondent’s normal disciplinary process and the respondent asserts ( para 11 of the grounds of resistance) that this was because its policy is non contractual.

[114]The claimant does not identify an actual comparator.

[115]It is not it appears in dispute, (and the notes Mr Dade prepared for the probationary review would support this), that the claimant was criticised for spending too much time supporting a particular colleague (PDE) because it is alleged, this resulted in the claimant not providing sufficient support to the rest of his team.

[116]The claimant’s position is that the alleged disabled employee who has dyslexia, required additional support. Disability is not conceded by the respondent and while there is an obvious difficultly in how the claimant may establish the fact of his disability if the PDE is not going to give evidence, the claimant’s case is that he will be able to show from the respondent’s own HR records, that the respondent at the relevant time knew and accepted that this individual was disabled.

[117]The respondent argues that the claimant cannot establish a prima facie case and points in part, to the absence of a comparator and the explanation put forward by the respondent at the time of dismissal. The respondent set out its alleged reasons for dismissal in a letter which identified a number of concerns with the claimant’s performance and conduct. In terms of the support the claimant gave to the putative disabled colleague, the letter and probationary notes are critical of it. However the respondent argues that it was not his support for this colleague which was a concern but the lack of support for other team members and that the concerns had nothing to with the colleague’s disability. 118. ‘But for’ the disability, the treatment would not have occurred because without the disability the need for the support would not have arisen, however this is a case where the but for test may be satisfied but that is not the relevant question. The question is whether the disability itself materially impacted on the thinking of the decision makers and was a subjective reason for the treatment: Mr Justice Linden in Gould v St John’s Downshire Hill

2021 ICR 1

, EAT

[119]In determining whether the protected characteristic was an underlying reason for, as opposed to the immediate cause of the less favourable treatment, the tribunal at the final hearing may need to look beyond the superficial answer to the question of why the employer treated the employee less favourably.

[120]The letter suggests that there was a view that the claimant was providing too much 13 of 15 support to the putative disabled colleague to the detriment of the rest of the team: “We discussed with you how you have failed to show support to your whole team…”

[121]Whether the reason for the support ( i.e. the fact of the disability) was a factor and the approach may have been different if the reason for the additional support came about because of something else, for example because the individual was a poor performer (whether subconscious or not), can only really be tested in evidence.

[122]Mr Dade’s comments in the probationary review notes are very critical of the support the claimant had given to the putative disabled colleague. He is critical not only about the impact on other colleagues but on the colleague himself. He refers to the claimant allegedly standing over him listen to him taking calls and not having time on his own to resolve matters without the claimant being present (p.166). The language in Mr Dade’s notes is not wholly consistent with the tone of the dismissal letter, in that Mr Dade’s note is much stronger in terms of his views about the assistance provided to this particular colleague; “Presence Perception: This is the big one for me. The attached document explains more. You seem to have possibly alienated some of the team with your actions…” Tribunal stress

[123]The claimant denies that the team felt alienated and disputes that complaints were made by them. His case is that such an assertion was a ‘lie’.

[124]The respondent has not provided contemporaneous documents to evidence that such concerns or complaints were raised by the team or indeed by the putative disabled colleague.

[125]Whether there were such genuine concerns expressed to support the strength of this criticism by Mr Dade, is a matter of factual dispute. Taking the claimant’s case at its highest, if it is shown that no such criticism or concerns or feelings of alienation were voiced by the team (or the PDE), this may be taken into account when determining whether the claimant has established a prima facie case, on the grounds that the bare explanation behind the treatment of itself is inconsistent with the views expressed by the team and/ or if it is shown to be untruthful: P2CG Ltd v Davis EAT 0188/20 and Veolia Environmental Services UK v Gumbs EAT 0487/12.

[126]The claimant’s case is that untruthful things were said in the review notes made by Mr Dade and further, that it was unreasonable not to discuss those alleged concerns with him in the review meeting and unreasonable not to hold a proper process involving HR to give him a chance to respond to the criticisms before dismissing. Should the Tribunal find the respondent behaved in a manner which was unreasonable, this may provide evidence supporting an inference of discrimination, if there is nothing else to explain the behaviour: Anya v University of Oxford and anor

2001 ICR 847

, CA and Messeri v Royal Hospital for Neuro-Disability ET Case No.2301983/20. Taking the claimant’s case at its highest (in the absence of any documents from the respondent’s which would appear to contradict his allegations), his team had no concerns to support the allegations made by Mr Dade about the impact of his support for the PDE, concerns which were at least a significant influence on the decision to dismiss.

[127]There may well have been other concerns with the claimant’s performance or conduct however, the issue is whether the alleged disability had a significant influence on the decision to dismiss, not whether it was the only or even the main cause’ or even whether there remained legitimate grounds to dismiss: ECHR Code para 3.11 and Nagarajan v London Regional Transport

1999 ICR 877

. 14 of 15

[128]The contemporaneous documentation provided during this hearing is not inconsistent with the claimant’s account. There are fundamental underlying factual disputes. The claimant’s case is that, behind the documentation, there were dishonest allegations being made. The respondent did not give him a chance to refute them and without HR involvement, carried out a speedy dismissal, acts which, in the absence of an acceptable explanation, the tribunal may infer that the protected characteristic of the colleague the claimant was giving additional support to (i.e. his disability/ an ongoing impairment), was a significant influence on the way the claimant was treated.

[129]Discrimination cases should, as a general rule, be decided only after hearing the evidence and I consider that this case provides no exception: Anyanwu and anor v South Bank Student Union and anor (Commission for Racial Equality intervening)

2001 ICR 391

, HL.

[130]In the circumstances of this case, I am not satisfied that while there are a number of evidential hurdles the claimant must meet, it cannot be said at this stage, taking his case at its highest, that there is ‘little reasonable prospect of success’. The application for a deposit order is refused.

[1]The claimant was employed by the second respondent, a company that provides software for ecommerce companies which integrates warehousing, couriers, and stock, as a Support Manager from 20 June 2022 until 30 September 2022. Early conciliation started in respect of the claim against the first and second respondents on 10 October 2022. The first respondent is the Managing Director of the second respondent and was the officer who dismissed the claimant. An ACAS EC certificate was issued on 21 November 2022.

[2]Early conciliation started against the third respondent, who was the claimant’s line manager and who conducted a probation review on 18 August 2022, on 14 September 2022. An ACAS EC certificate was issued on 26 October 2022.

[3]The claims were presented in two claim forms. The ET1 against the first and second respondents was presented on 9 December 2022. The ET1 against the third respondent was presented on 10 December 2022.

[4]As set out in our separate Judgment and Reasons, the claimant’s four remaining allegations that he had been associatively discriminated against because of the protected of characteristic of disability were dismissed after a three-day hearing. After we delivered our Judgment and reasons, Mr Wyeth advised us that he was instructed to make an application for a costs order against the claimant.

The Law

[5]The starting point is Rules 74 to 78 of the Employment Tribunals Rules of Procedure 2013: Definitions 74.—(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression “wasted costs”) shall be read as references to expenses. (2) “Legally represented” means having the assistance of a person (including where that person is the receiving party’s employee) who—(a) has a right of audience in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates’ courts;

(b) is an advocate or solicitor in Scotland; or

(c) is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland. (3) “Represented by a lay representative” means having the assistance of a person who does not satisfy any of the criteria in paragraph (2) and who charges for representation in the proceedings. Costs orders and preparation time orders 75.—(1) A costs order is an order that a party (“the paying party”) make a payment to— (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; (b) the receiving party in respect of a Tribunal fee paid by the receiving party; or (c) another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at the Tribunal. (2) A preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing. (3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make. When a costs order or a preparation time order may or shall be made 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success; or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. (3) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing; and (b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment. (4) A Tribunal may make a costs order of the kind described in rule 75(1)(b) where a party has paid a Tribunal fee in respect of a claim, employer’s contract claim or application and that claim, counterclaim or application is decided in whole, or in part, in favour of that party. (5) A Tribunal may make a costs order of the kind described in rule 75(1)(c) on the application of a party or the witness in question, or on its own initiative, where a witness has attended or has been ordered to attend to give oral evidence at a hearing. Procedure 77. A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. The amount of a costs order 78.—(1) A costs order may— (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles; or, in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993(b), or by an Employment Judge applying the same principles; (c) order the paying party to pay the receiving party a specified amount as reimbursement of all or part of a Tribunal fee paid by the receiving party;

(d) order the paying party to pay another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses (of the kind described in rule 75(1)(c)); or

(e) if the paying party and the receiving party agree as to the amount payable, be made in that amount. (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative shall be no higher than the rate under rule 79(2). (3) For the avoidance of doubt, the amount of a costs order under subparagraphs (b) to (e) of paragraph (1) may exceed £20,000.

[6]Unlike in the civil courts, the winner of tribunal litigation does not routinely receive an order that the loser pays their legal fees. Costs awards awards in employment tribunal proceedings are the exception rather than the rule (see Gee v Shell UK Ltd

[2002] EWCA Civ 1479

, and many other cases).

[7]A costs order can only be made in favour of a party that has been legally represented or represented by a non-legal representative who charges for representation in the proceedings. That party (referred to in the Rules as the receiving party) can seek payment from the other party (referred to in the Rules as the paying party) of some or all the actual costs incurred. The Application

[8]We decided to hear the costs application as the facts of the case were still fresh in our minds. Paragraph 8 of Guidance note 7 of the Presidential Guidance on General Case Management suggests that where costs are claimed during a hearing, it is usually preferable to determine the matter and make any order there and then to avoid wasted costs. We considered the claimant’s position as a litigant in person but felt that he had been given notice of the potential application on 24 March 2024 and should have been prepared to deal with the application if he lost. The clamant made no objection to us dealing with the application at the end of the substantive hearing.

[9]The respondents’ application was based on a letter they had sent to the claimant on 24 March 2024 which put him on notice that should he continue to pursue his claims for Wrongful Discrimination (sic), Direct Race Discrimination, and Associative Disability Discrimination, the respondents would make an application for a costs order against him under Rule 76. Rule 76 was then set out in the letter.

[10]The basis of the costs warning was that the claimant’s claims had no reasonable prospect of success and he had acted vexatiously and unreasonably in bringing his claims for the following reasons set out in the letter of 24 March 2024: “1) you claim that you have been wrongfully dismissed and raised at the Preliminary Hearing on the 9 March 2023 a number of examples to support this claim namely:a. HR policy not followed;

b. Should have seen probationary review and approved it first;

c. Probation should have been conducted with HR through SAGE portal;

d. Matters raised at probationary review should have been raised by MD;

e. Should not have been dismissed without his line manager or HR being present. Wrongful dismissal is purely a contractual claim, for the avoidance of doubt, you have been given more notice than you were contractually entitled to and have been paid more than what you were contractually entitled to. Therefore, there is no breach of your contract. 2) You claim less favourable treatment on the grounds of associative disability discrimination and state that your evidence of this is: a. That the company had not helped [EA] prior to your appointment. b. That you were told other staff were not getting support from you c. That you were excluded from management meetings 3) You claim that you were also treated less favourably because of your race and explained to the Judge at the Preliminary Hearing. a. how you were blamed for not undertaking tasks correctly; b. that a customer was unhappy with how you dealt with a matter; c. that you were reprimanded on the complaint and not your team below you; d. that you did not have the relevant training. The other points you raise are not relevant or related to a claim for wrongful dismissal, as such it stands to reason that you not only have no reasonable prospects of success in taking this claim forward but it simply shows that your actions of raising such a claim is simply to cause disruption and detriment to our client in a vexatious manner. The Company has always been aware of [EA]’s condition as he advised us of it at the start of his employment and during his interview meeting. At all times we have allowed [EA] to dictate as to what support and help he requires and [EA] has always been happy with that approach and at no time advised us of anything different. In speaking with [EA], he has advised us that he simply told you of his condition because he felt as his Manager you should know, but it was not for any specific treatment or support from you, in fact we are aware when [EA] offered to show his dyslexia report to you, you declined to see or even need it. The comments made to you at the probation meeting were facts, for which there is evidence to support. As such they were not discriminatory, and any Manager would have been told the same had those comments been made about them. In respect of the meetings you, confirmed that you did attend meetings for Managers. However, the meetings you claim you did not attend, brings together one individual from each area to represent that area and provide status reports. As such Ian Dade would attend under normal circumstances and only if he was unable to, would you then attend in his absence. For the June and July meeting, Ian was in attendance and as such you were not required to attend or be invited which is not discriminatory and again clearly shows how your claim has no reasonable prospects of success. For the avoidance of doubt, you were employed as a Manager, your role was to support and supervise those below you. You are aware that the team was not wrong in how they dealt with the customer’s issue. The customer did not believe the members of the support team and it was escalated so that you as the Manager could re-explain what had already been said. The fact you delayed in communicating to the client, even when you were given the answer and still did it incorrectly was the issue. This was why it was addressed with you, and given your role and your failure to address something which you advised us you had the skills and knowledge to deal with, (which was why you were employed in the first place), it was reasonable to address this concern with you. During your interview you stated that dealing with complaints was your speciality and that you have had a lot of years’ experience dealing with customer complaints and specifically in your interview you impressed us by stating that “it all comes down to communication, communication, communication”. Yet you failed to do this even after you were provided with assistance from your line manager. Therefore, to address this with you is both right and proper within the company processes and as such is not discriminatory because anyone else in the same Manager role would have been treated the same way. In summary, your claims are not only fabricated but they hold no weight or substance and as such it would be our reasonable belief that the Tribunal will look to either strike out your claims entirely or will place a Deposit Order on your claims, which simply means that because the Tribunal believes that your claims have little to no reasonable prospects of success you will be required to pay a financial deposit (for which the minimum could be £100) for each claim you are raising if you wish to bring them forward to a Final Hearing. It is on this basis that the Respondent is offering you the opportunity to withdraw your claims now before any further action is required from either party. For the avoidance of doubt, should you not withdraw your claim by 30 March 2023, and the Respondent is required to incur further costs in taking forward the matter for the Preliminary Hearing, we will ensure that our application for costs will also be heard by the Tribunal at the Preliminary Hearing should your claims be struck out. A Costs Order may include fees (including legal fees), charges, disbursements or expenses that have been incurred by or on behalf of our client, including expenses that any witnesses incur in connection with attendance at the Tribunal. There is no limit on the amount of the Costs Order that may be made against you if our application is successful, and the additional cost that will be incurred by our clients in preparing for and attending a Tribunal Hearing will be significant. Given the above, we recommend that you obtain independent legal advice in respect of the merits of your claim as soon as possible, if you have not already done so. Despite the costs already incurred in these proceedings, our clients are prepared not to pursue a Costs Order against you if you withdraw your claims in full by 30 March 2023. If you decide to continue with your claims and are unsuccessful, (which we believe will be the case) we reserve the right to refer the Tribunal to this letter and any related correspondence in support of our client's application for costs.”

[11]Mr Wyeth spoke briefly to the costs warning letter and repeated the respondents’ position that the claimant’s claims had no reasonable prospects of success and that he had acted vexatiously and disruptively. The allegations of vexatious and disruptive conduct related to the claimant changing his claim on numerous occasions and his conduct during the hearing that we had referenced when giving our oral Judgment and Reasons.

[12]Mr Wyeth submitted that the respondents had incurred significant costs since 24 March 2024 but limited their application to his brief fee and refresher fees, which were £8,500 plus VAT. As the second respondent is registered for VAT, the sum sought from the claimant was ex-VAT.

[13]We gave the claimant the opportunity to make representations on the application. He said that he presumed he had a case. He had no way of telling what would happen in the future. He had to represent himself. He had a right to bring a claim. He felt that what the respondents did was wrong – the fact that the respondents are claiming costs was nonsensical.

[14]At a preliminary hearing to consider whether a deposit order should be made before EJ Broughton on 15 December 2023, the claimant said that the Judge felt that he “had enough” and allowed him to continue his claim. He alleged that some of the things said by Mr Wyeth were lies. Emails proved that he did not make a holiday pay claim because he wrote to the second respondent to say that he was not making such a claim.

[15]He had not been employed for two years so could not claim unfair dismissal but he could claim discrimination, which is what he had done.

[16]We took details of his financial circumstances from the claimant as we were minded to reserve our decision. He produced few documents, so we had to take the claimant at his word. He had given EJ Broughton details of his income and outgoings at the preliminary hearing on 15 December 2023 (paragraph 57 [153]) and confirmed that his figures were the same. He was earning £2,519 net per month. His main outgoings were:16.1 Rent £700 per month;

16.2 Car finance £812 per month;

16.3 Household bills and credit cards £600 per month;

16.4 Clothes £50 per month; and

16.5 Council tax £145 per month. This totalled £2,307 per month.

[17]As it was late in the day, we did not feel that it would be possible to make our decision and create a Judgment and Reasons that could be delivered to the parties in the time available. We therefore reserved our Judgment.

[18]In making our decision, we were mindful of the guidance given in the case of AQ Ltd v Holden

[2012] IRLR 648

EAT, in which Judge Richardson responded to a submission that the Employment Tribunal that had made the decision on costs had given too much weight to the fact that the claimant was unrepresented by stating: ''A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals; and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As [counsel for the claimant] submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional adviser. Tribunals must bear this in mind when assessing the threshold tests in [rule 76(1)(a)]. Further, even if the threshold tests for an order of costs are met, the tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice.''

[19]The claimant in this case was unrepresented throughout, so we were mindful of Judge Richardson’s words. However, there were a number of findings that we made in the substantive hearing that led us to a finding that the claimant’s claims referenced in the respondents’ costs warning letter of 24 March 2024 had no reasonable prospect of success and that he had conducted the claim unreasonably and vexatiously:19.1 The claimant is an obviously bright person who was paid a good salary to do a responsible job for the second respondent. He is IT literate.

19.2 The claimant issued two separate claims. The first against the first and second respondent and the second against the third respondent. There was a significant gap between the ACAS conciliation against the first and second respondents and the third respondent. We find this is indicative of the claimant seeking to bolster a claim by adding a third respondent late in the day. He knew exactly what he later alleged the third respondent to have done when he started early conciliation against the other two respondents but did not see fit to include him at that stage.

19.3 The claimant initially pursued claims for direct age, race, and disability discrimination, holiday pay and other payments. He also made a claim for wrongful dismissal and a failure to follow the ACAS Code of Conduct. If he did enough research to know what the ACAS Code was, he could and should have done enough research to have realised that a claim for breach of contract was limited to his notice pay and that the ACAS Code only applies to disciplinary dismissals and grievances and that the uplift available only applies to unfair dismissal claims, and failures to follow the Code when a grievance is brought in discrimination claims. He should also have been aware that he had not only been paid his notice entitlement of one week in full, but that the respondent had enhanced his notice entitlement as a gesture of goodwill. The claims of wrongful dismissal, holiday pay and other payments were withdrawn at the preliminary hearing before EJ Wilson on 9 March 2023. The claimant then requested written reasons for the Judgment that dismissed the withdrawn claims. This was produced on 6 July 2023 [136-142]. We find the claimant’s conduct to have been unreasonable and vexatious.

19.4 The claimant issued race and age discrimination claims, only to withdraw both. We note his comment in the costs hearing that he knew he could not claim unfair dismissal as he did not have two years’ service so brought discrimination claims instead. We find he brought the age and race discrimination claims as an alternative without having any evidence that he had been subjected to either form of discrimination. We find the claimant’s conduct in taking that course to have been unreasonable and vexatious.

19.5 The claimant then doubled down on the discrimination claims by indicating at the preliminary hearing before EJ Wilson on 9 March 2023 that he intended to apply to amend his claim to add a complaint of victimisation and add further instances of direct race discrimination. We find the claimant’s conduct to have been unreasonable and vexatious.

19.6 On 29 March 2023, the claimant withdrew his claims of race discrimination [111-112]. A Judgment dismissing the direct race discrimination claim dated 1 August 2023 [146] was sent to the parties on 25 October 2023.

19.7 The claimant’s valuation of his claim was vastly exaggerated. He included a claim for defamation, which the Tribunal has no jurisdiction to hear and added heads of damage for aggravated damages. He put the value of his claim at £500,000, which we find to be unsustainable and unreasonable of itself. The case management order of EJ Wilson dated 30 March 2023 included a link to judiciary.uk that contained assistance in case management and compensation for injury to feelings [103]. We find the claimant’s conduct to have been unreasonable and vexatious.

19.8 The claimant did enough research to make a claim of associative disability discrimination but did not present any evidence that EA was disabled other than his own assertion. We find that there was no possibility of the associative disability discrimination claim succeeding because of the way that the claimant had prepared his claim. We note that he told EJ Broughton at the preliminary hearing on 15 December 2023 that he had no intention of calling any medical evidence or calling EA to give evidence on the issue of whether EA was a disabled person [162-169]. We note EJ Broughton’s comments (paragraph 18 [164] and paragraph 27 [165]): “I explained what the claimant must prove and suggested he may want to take some advice on the disability issue.” “The respondent does not concede that [EA] is disabled and the claimant puts his case on the basis that [EA] was disabled and the respondents knew this, therefore the burden of proof is on the claimant to establish that [EA] had a disability(as defined by section 6 EqA) at the relevant time (i.e., at the date the alleged discrimination took place). Without [EA] giving evidence about his condition and its effects, it may not be possible establish the fact of his disability. The claimant however explained that he does not intend to call [EA] to give evidence and is adamant that once he has relevant disclosure from the respondent, it will be clear that [EA] had a disability at the relevant time and this was known to the respondent. The claimant may wish to take some further advice on this element of his claim.” We find that the claimant was given a clear explanation of what the evidential burden was on him and the matters he had to prove. The way that he presented his case before us clearly indicate that he made no effort to act upon what EJ Broughton had told him. We find that conduct to be

19.9 At the hearing on 15 December 2023, the claimant also intimated an intention to bring a claim of automatic unfair dismissal for the reason that he had asserted a statutory right under section 104 of the Employment Rights Act 1996. He was given 14 days to make any application to amend his claim, which had to include details of the claims of victimisation and automatic unfair dismissal. The claimant was given until 14 February 29024 to set out the details of any application to amend his claim.

19.10 On 15 December 2023, EJ Broughton also heard the respondents’ application for a deposit order. There was some confusion because it appeared that the clamant had sent an appeal to the EAT for permission to amend his claim [136-142]. At the deposit order hearing , the claimant set out his application to amend his claim to include a claim under section 104 of the Employment Rights Act 1996 for automatic unfair dismissal. EJ Broughton told him that “There was no merit in his claim as he explained it at today’s hearing.” He was given time to consider that application (paragraph 47 [152]).

19.11 At the same hearing, the claimant became agitated when he was asked about his victimisation claim. EJ Broughton decided it to give the claimant time to consider his position on that matter (paragraph 54 [153]).

19.12 EJ Broughton gave a thorough and carefully considered decision on the deposit order application (paragraphs 59 to131 [153-161]. Her decision was that whilst there were a number of evidential hurdles the claimant had to meet, it could not be said that the claims had little reasonable prospect (paragraph 130 [161]). We disagree with the claimant’s suggestion that EJ Broughton had given his clams the green light. We make that finding because it appears to us that the sole reason that the claim was allowed to proceed was a comment made by the third respondent at the claimant’s probation review at which it was suggested that the claimant may have alienated some of his team by his actions that he says were in support of EA. In the event, we found that the claimant had not shown that EA was a disabled person, so that point was never going to be tested.

19.13 On 5 February 2024, the EAT responded to the claimant’s appeal [170-172] and determined that the grounds of appeal did not seek to challenge any of the matters that were dealt with by EJ Wilson.

19.14 On 10 February 2024, the claimant made an application for specific disclosure of documents that referred to a document at page 177 of the bundle. The respondent replied on 13 February 2024 [181-182] with an extract from the Presidential Guidance on case management that deals with disclosure. There then followed an exchange between the claimant and the respondent about disclosure of documents.

19.15 On 11 March 2024, the respondents wrote to the Tribunal [189] to note that the claimant had not sought to make amendments to his claim by the deadline of 14 February 2024 set by EJ Broughton and requested that a preliminary hearing listed for 22 March 2024 be vacated. The claimant asserted that he had made the application to amend in an email dated 11 March 2024 [190] and asked the Tribunal to “…please see an email that was sent to you previously…”, which unfortunately missed the point of the order made by EJ Broughton that required him to provide the further information about the proposed amendments as he had given the Tribunal no information about the application to add an automatic unfair dismissal claim and little information about the victimisation claim (including failing to identify the protected act relied upon). We find the claimant’s conduct to have been

19.16 The Tribunal kept the preliminary hearing in the list as EJ Broughton had listed other matters to be determined at the hearing [191] but amended the date of the hearing to 6 April 2024. I heard the preliminary hearing on 6 April 2024 and made a restricted reporting order (RRO) in respect of EA [370-375]. The claimant attended the hearing and Mr Wyeth represented the respondent. My Case management order set out the history of the case and noted that the claimant had been ordered to apply to amend his claim by 14 February 2024 and had not done so.

19.17 We made allowances for the fact that the claimant was nervous but some of his behaviours were unacceptable. The claimant would not have had to be a lawyer to realise that his behaviours were unacceptable. These included:19.17.1 Muttering to himself about the fairness of the hearing but refusing to explain what he meant by the comments when asked by the Tribunal;

19.17.2 Repeatedly calling Mr Wyeth a liar and refusing to withdraw the comment;

19.17.3 Angrily refusing to accept that he had made a claim for holiday pay in his ET1 when it was plainly on the document;

19.17.4 Describing his cross-examination as “ferocious” when it was anything but; and

19.17.5 Accusing me of shouting at him (this was withdrawn by the claimant).

19.18 The claimant tried to excuse his conduct by describing it as examples of his passionate nature. We find the claimant’s conduct to have been unreasonable and vexatious.

19.19 The claimant gave himself a mountain to climb by submitting a witness statement that consisted of nine paragraphs. We find that he had been warned by EJ Michael Butler what may happen if he refused to give any evidence. It would have been open to the respondents to only ask the claimant crossexamination questions about the witness statement produced. The witness statement made no mention of any evidence to support the assertion that EA was a disabled person. We find the claimant’s conduct to have been

[20]We found the claimant to have an unshakeable self-perception of the events in this case. When he was challenged, the claimant became annoyed and defensive. His excuses for the alleged behaviours that we have found to be the real reason that the second respondent dismissed the claimant were not credible or consistent. Reasonable prospect of success

[21]For the reasons set out above, we find that the claimant’s claim of associative disability discrimination had no reasonable prospect of success. We were mindful that it is not enough for the claimant to assert that the claim was genuinely brought. We also must determine whether it was properly pursued. We find that it was not because of the reasons set out above. The main reason for the failure of the associative disability discrimination claim was the claimant’s failure to bring evidence that EA was a disabled person. When EJ Broughton had explained the burden of proof on him and the evidence he would need to produce, we find that no reasonable litigant in person would have pursued the claim with the evidence that this claimant had mustered.

[22]The respondents’ costs warning letter accurately spelled out the weaknesses in the claimant’s case in a way that mirrors our finings in the substantive final hearing.

[23]We are mindful that even though we have found the claimant’s claim had no prospect of success, we still have a discretion to make a costs order. We considered that the respondent applied for a deposit order but declined to apply for a strike out. However, the bar for strike out in a discrimination claim is high, so we have no criticism of the respondent on that point. Vexatious in the bringing or the conduct of the proceedings

[24]We find, for the reasons set out in paragraphs 19.2-19.8, 19.15, and 19.17-19.19 above, that the claimant was vexatious in the bringing and the conduct of the proceedings. We make this finding after considering the definition of vexatious conduct described by Sir Hugh Griffiths in A-G v Barker [2000] 2 FCR 1, : ''“Vexatious” is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.''

[25]The claimant made multiple claims that were withdrawn, made multiple applications to amend that were either withdrawn or not pursued, exaggerated the value of his claim and, by his own admission, made claims that were in substitution for an unfair dismissal claim that he could not make because he did not have two years’ service. Unreasonable conduct of the proceedings

[26]We find, for the reasons set out above, that the claimant’s conduct of these proceedings was unreasonable. Discretion

[27]We were mindful of the established law that costs do not follow the event and that they are the exception, not the rule in the Employment Tribunal. However, when looking at the totality of the claimant’s conduct in bringing and pursuing this claim, we find that a costs order is justified. Amount of costs

[28]The respondents restricted their application to counsel’s fees. We are sure that the costs incurred by the respondent since the cost warning letter far exceeds counsel’s fees. We find that it is just and equitable for the claimant to pay the whole of the fees of the respondent’s counsel: £8,500. We find that the sum claimed is reasonable for the work done by Mr Wyeth. We find that the claimant is able to pay the costs, even if payment is in instalments.

[1]The claimant was employed by the second respondent, a company that provides software for ecommerce companies which integrates warehousing, couriers, and stock, as a Support Manager from 20 June 2022 until 30 September 2022. Early Conciliation started in respect of the claim against the first and second respondents on 10 October 2022. The first respondent is the Managing Director of the second respondent and was the officer who dismissed the claimant. An ACAS EC certificate was issued on 21 November 2022.

[4]The claimant’s employment was ended following a probationary review on 18 August 2022 by the third respondent and a subsequent meeting with the first respondent on the same day. The claimant initially pursued a claim for wrongful dismissal stating the respondent failed to follow the ACAS Code of Conduct and its own dismissal procedures, race discrimination, age discrimination, and disability discrimination for his association with a colleague who is the subject of a Restricted Reporting Order and who is referred to in these proceedings as “EA.” The claimant asserts that EA met the definition of disability in section 6 of the Equality Act 2010 because of dyslexia. The claimant also claimed unauthorised deduction of pay, holiday pay and ‘other payments’ in paragraph 8 of his ET1 [12].

[5]The claimant claimed compensation for injury to feelings; aggravated damages and defamation of character, the latter of which the Tribunal has no jurisdiction to deal with. In paragraphs 8.2 and 9.2 of this ET1 [13 and 14], the claimant valued his injury to feelings at £49,300 and aggravated injury to feelings at £500,000.

[6]The Tribunal issued a Notice of Claim letter in respect of the claim against the first and second respondents to the parties on 16 December 2022 [31-34] that required the first and second respondents to present a response by 13 January 2023 and set up this final hearing, the dates for which have never altered. The Notice of Claim also made case management orders as follows:6.1 The claimant was to send the respondents a document setting out what remedy he was seeking by 27 January 2023;

6.2 The parties were to exchange lists of documents that they intended to rely on at the final hearing by 14 April 2023;

6.3 The respondent was to prepare a file (also referred to as a bundle) of the documents to be used at the final hearing and send a copy to the claimant by 26 May 2003; and

6.4 The parties were to exchange witness statements by 4 August 2023.

[7]By a separate letter of 16 December 2022 [35-36], the Tribunal set up a preliminary hearing by telephone for 9 March 2023.

[8]A further Notice of Hearing was sent to the parties on 22 December 2022 [37-40] which kept the original final hearing dates and made the same case management orders as the previous orders, save that the dates of compliance were all a few days later than the first Notice. Both claims were consolidated by the Tribunal on 22 December 2022 [43-45].

[9]All three respondents submitted their ET3 [47-65] and Grounds of Resistance [66- 76] on 13 January 2023. The respondents disputed the claims, stating the claimant's contract of employment contained a 6-month probationary period and that, within the probationary period, the claimant's notice period was one week. The respondents’ case was that on 18 August 2022, following a 3-month probation review by the third respondent, the first respondent gave the claimant notice to terminate his employment due to his capability and conduct on the same day. However, the third respondent placed the claimant on garden leave until 30 September 2022 to allow him time to find alternative employment.

[10]The respondents asserted that the claimant’s claim form lacked detail.

[11]On 26 January 2023, the claimant sent an email to the Tribunal that was copied to the respondent requesting an extension of the deadline of 27 January 2023 for the submission of a Schedule of Loss [77]. After an exchange of correspondence, an extension was granted on 26 January 2023 to 10 February 2023 by EJ Broughton for the claimant to produce medical records but required the claimant to submit a Schedule of Loss by the original date: 27 January 2023 [81].

[12]The claimant submitted an email on 27 January 2023 [83] with a copy of his probation review and a statement of the remedies he was seeking from the Tribunal [84-85]. The list of remedies contained a lot of narrative but little detail of the compensation sought and how the claimant had calculated the figures he had included.

[13]The preliminary hearing on 9 March 2023 was heard by Employment Judge Wilson, who produced a case management order dated 30 March 2023 [100-110]. The claimant was represented by counsel at the hearing who, we were told, appeared on a pro bono basis.

[14]As the claimant asked for written reasons for the Judgment in the case and made representations about what EJ Wilson said about the strength of his case at the preliminary hearing on 9 March 2023 in response to the respondents’ application for costs, we have revisited the case management order in preparing these written reasons.

[15]EJ Wilson maintained the final hearing dates of 29 April to 1 May 2024 but set out a timetable that envisaged the Tribunal reading for 2 hours and the claimant’s evidence taking 3 hours on the first day. The second day was timetabled to hear the respondents’ evidence for 4 hours and closing submissions for 1 hour. The third day was set aside for the Tribunal to make and deliver its decision on liability and then to deal with remedy, if required. The claimant raised no adjustments as being necessary for the hearing but was advised to clarify if he needed any adjustments for the following preliminary hearing.

[16]The respondents requested that the case be listed for a public preliminary hearing to consider whether any of the claimant’s claims should be struck out under Rule 37 or made the subject of a Deposit Order under Rule 39 of the Employment Tribunals Rules of Procedure 2013 (paragraph 7 [101]).

[17]The claimant indicated an intention to apply to amend his claim to advance new complaints of victimisation (under section 26 of the Equality Act 2010) and additional instances of race discrimination (paragraph 8 [101]). EJ Wilson ordered the claimant to set out the details of the additional allegations of race discrimination and the new allegations of victimisation by 30 March 2023 [101]. EJ Wilson also indicated that a one-day public preliminary hearing would be listed for the first available date after 1 May 2023 to determine the claimant’s applications.

[18]The claimant was ordered to submit a breakdown of “…the precise claim for loss of earnings and any other financial losses he claims setting out how he calculates the claim as the schedule served lacks clarity regarding the sums being claimed.” by 14 April 2023.

[19]At the hearing of 9 March 2023, at which he was represented by counsel, the claimant withdrew his claim for wrongful dismissal (breach of contract) against the first and third respondents (paragraph 38(a) and (b) [105]. He also withdrew his claims for notice pay, holiday pay and ‘other payments’ (paragraph 38(c) [105]). EJ Wilson noted that the claimant had not had time to speak to his barrister about the breach of contract (wrongful dismissal) claim against the second respondent and gave him 14 days to decide whether to withdraw that claim.

[20]The claimant withdrew his age discrimination claim (paragraph 39 [105]).

[21]On 29 March 2023, the claimant withdrew his claims of race discrimination [111-112]. A Judgment dismissing the direct race discrimination claim dated 1 August 2023 [146] was sent to the parties on 25 October 2023.

[22]EJ Wilson prepared a Judgment dated 12 May 2023 [134-135] dismissing the claimant’s claims of wrongful dismissal against the first and third respondents; the claimant’s claims of notice pay, holiday pay and other payments against the second respondent and the claimant’s claim of age discrimination. The claimant asked for written reasons for the Judgment dismissing the claims set out above that were withdrawn. EJ Wilson produced the written reasons on 18 July 2023 [document not in the bundle] following an application to the EAT by the claimant. The EAT’s response dated 6 July 2023 was at pages136 to 142 of the bundle and includes a copy of the claimant’s notice of appeal in which he stated that he was not aware of the argument of automatic unfair dismissal under section 104 of the Employment Rights Act 1996.

[23]The claimant applied to amend his claim on 28 April 2023 [114] in an email dated 29 April 2023 [113]. The application was to add a victimisation claim. The substance of the application was: “My victimisation claim is that I raised a protected act on the 24th August 2022, and I was subjected to a detriment in that I was placed on Gardening Leave even though I had only been with the company less than 3 months. I request leave to amend my claim because I discussed with HR to have an informal meeting with Brian Williamson on the 22nd August 2022 regarding the Probation review and my dismissal on the 18th August 2022 however I made the decision to raise a formal grievance on the 24th August 2022 and as a direct result of this was placed on Gardening Leave and as no HR was present during the dismissal I was never informed, neither was I accompanied, this wasn’t for misconduct and it was unreasonable and unfair.”

[24]We note that the facts alleged by the claimant could not have succeeded as a victimisation claim because the protected act post-dated the detriment alleged.

[25]The public preliminary hearing was listed for 28 November 2023 [143-144] to deal with the claimant’s application to amend. The hearing was postponed to 15 December 2023 when it took place before EJ Broughton who prepared a Judgment and Reasons in the application to amend and the respondent’s application for a deposit order [147-161] dated 14 January 2024 that was sent to the parties on 31 January 2024. EJ Broughton also produced case management orders [162-169] dated 12 January 2024 that were also sent to the parties on 31 January 2024.

[26]EJ Broughton’s Judgment dismissed the wrongful dismissal claim against the second respondent on withdrawal by the claimant and refused the respondent’s application for deposit orders. The reasons went carefully through the narrative of the claimant’s claims which were all allegations of direct disability discrimination against the three respondents which EJ Broughton summed up [150-151] as:26.1 The act of dismissal; and

26.2 What happened in the review meeting on 18 August 2022; what was written by Ian Dade; and the conduct of Mr Williamson in dismissing and the unfair process that he is alleged to have carried out.

[27]EJ Broughton clarified the claimant’s position regarding the automatic unfair dismissal he had alleged in his appeal to the EAT. It seems the claimant mistakenly thought that he had to appeal to the EAT in order to amend his claim. EJ Broughton noted at paragraphs 48 [152] that the claimant did not seek to pursue that application at the hearing on 15 December 2023.

[28]The application to amend to include victimisation was not dealt with because EJ Broughton found that the claimant was unable to deal with the matter on the day (paragraph 54 [153]). In her case management order at paragraph 9 [163], EJ Broughton made the following order: “9. Should the claimant want to pursue the application of the 19 March 2023 to include a complaint under section 27 EqA of victimisation and/or an application to add a claim of automatic unfair dismissal under section 104 ERA, the claimant must set out in writing within 14 days from the date these orders are sent out to the parties (attaching a copy of the alleged written grievance document), the following information: Victimisation:9.1.1 The date the alleged grievance was made and confirm whether it was in writing or made verbally.

9.1.2 If verbal, the name of the person the grievance was made to and the specific words used.

9.1.3 The date of the alleged detriment the claimant was subjected to because he raised this grievance and what the detrimental treatment was.

9.1.4 Confirm whether the claimant wants to provide oral evidence on the issue of time limits (i.e., evidence about the reasons why he did not present the claim of victimisation within the period of 3 months from the act complained of), should it be determined that the amendment gives rise to a substantial amendment engaging the issue of time limits/jurisdiction. Automatic Unfair Dismissal

9.1.5 The date the claimant alleged that the respondent had breached his statutory rights, whether this was verbal or in writing and to whom this allegation was made; and

9.1.6 What was the allegation.”

[29]The claimant gave details of his means (paragraph 57 [153]) but EJ Broughton declined to make the deposit order. We will return to her reasons when considering the costs application by the respondent.

[30]In her case management order, EJ Broughton set out the List of Issues in the claims of direct disability discrimination that remained and required the respondent to send the claimant a copy within seven days. The List of Issues is the list that we used at this hearing without the Issues relating to time limit points. The List of Issues sent by the respondent to the claimant [73-175] was not used.

[31]On 5 February 2024, the EAT responded to the claimant’s appeal [170-172] and determined that the grounds of appeal did not seek to challenge any of the matters that were dealt with by EJ Wilson.

[32]On 10 February 2024, the claimant made an application for specific disclosure of documents [177] that referred to a document at page 177 of the bundle. The respondent replied on 13 February 2024 [181-182] with an extract from the Presidential Guidance on case management that deals with disclosure. There then followed an exchange between the claimant and the respondent about disclosure of documents.

[33]On 11 March 2024, the respondents wrote to the Tribunal [189] to note that the claimant had not sought to make amendments to his claim by the deadline of 14 February 2024 set by EJ Broughton and requested that a preliminary hearing listed for 22 March 2024 be vacated. The claimant asserted that he had made the application to amend in an email dated 11 March 2024 [190] and asked the Tribunal to “…please see an email that was sent to you previously…”, which unfortunately missed the point of the order made by EJ Broughton that required him to provide the further information about the proposed amendments as he had given the Tribunal no information about the application to add an automatic unfair dismissal claim and little information about the victimisation claim (including failing to identify the protected act relied upon.)

[34]The Tribunal kept the preliminary hearing in the list as EJ Broughton had listed other matters to be determined at the hearing [191] but amended the date of the hearing to 6 April 2024. I heard the preliminary hearing on 6 April 2024 and made a restricted reporting order (RRO) in respect of EA [370-375]. The claimant attended the hearing and Mr Wyeth represented the respondent. My Case management order set out the history of the case and noted that the claimant had been ordered to apply to amend his claim by 14 February 2024 and had not done so.

[35]Both parties indicated that they were ready for the final hearing and that their witness statements were prepared. My case management order set out the overriding objective that I went through with the claimant at the hearing and links to a number of websites that could help the claimant prepare for the final hearing.

[36]Witness statement exchange was set to take place on 5 April 2024 (paragraph 32 [166]). It did not happen on that date. The only document that we can see on the Tribunal’s digital file or the bundle that relates to the exchange of witness statements is a letter dated 19 April 2024 [376-377] in which Employment Judge Michael Butler refused the respondents’ application for an unless order in the following terms: “Employment Judge Michael Butler has considered the Respondent's application for an unless order but has refused it. The reason for the refusal is that the Claimant has made it clear that he does not intend to give evidence at the hearing. The Claimant should be aware that this will mean the Tribunal will not be able to consider the full details of his claim nor will the Respondent be able to ask him questions on his evidence. This may make it very difficult for the Tribunal to be able to prefer his evidence over that of the Respondent. It is noted that the order to exchange witness statements by 5 April was made by Employment Judge Rachel Broughton on 15 December 2023 so the Claimant has had enough time to take advice or seek help in preparing his statement. Ultimately, whether the Claimant produces a witness statement is a matter for him but a failure to do so may seriously prejudice his case. If he changes his mind, he should submit his statement to the Respondent as soon as possible.” Issues

[37]The issues went through several changes as the claimant’s claims evolved. It was agreed by the Tribunal and the parties on the first day of the final hearing that the List of Issues contained in EJ Broughton’s case management order dated 12 January 2024 which was produced following a preliminary hearing on 15 December 2023 [167-168] was accurate, save for the inclusion of time limit points. On the first day of this hearing, Mr Wyeth confirmed that the respondents were not arguing that any of the claimant’s claims were out of time and/or that the Tribunal had no jurisdiction to deal with them. The List was therefore agreed as follows: 1. Disability 1.1 Did EA have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:1.1.1 Did he have a mental impairment: dyslexia?

1.1.2 Did it have a substantial adverse effect on his ability to carry out dayto-day activities?

1.1.3 If not, did EA have medical treatment, including medication, or take other measures to treat or correct the impairment?

1.1.4 Would the impairment have had a substantial adverse effect on his ability to carry out day-to-day activities without the treatment or other measures?

1.1.5 Were the effects of the impairment long-term? The Tribunal will decide:1.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

1.1.5.2 if not, were they likely to recur? 2. Direct disability discrimination by association (Equality Act 2010 section 13)

2.1 Did the respondent do the following things:2.1.1 Dismiss the claimant.

2.1.2 Not share comments/alleged concerns with the claimant about his alleged failure to support his team because of time spent supporting “EA” which were recorded by Mr Dade in his notes for the 18 August 2022 probationary review meeting. Make comments in the notes which were not correct/accurate and rely on those to dismiss the claimant. Was Mr Williamson complicit in this conduct and followed an unfair process, denying the claimant the chance to respond to the allegations.

2.2 Was that less favourable treatment?

2.3 If so, was it because of EA’s disability?

2.4 Did the respondent’s treatment amount to a detriment? 3. Remedy for discrimination or victimisation

3.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

3.2 What financial losses has the discrimination caused the claimant?

3.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

3.4 If not, for what period of loss should the claimant be compensated?

3.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

3.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

3.7 Is there a chance that the claimant's employment would have ended in any event? Should their compensation be reduced as a result?

3.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.9 Did the respondent or the claimant unreasonably fail to comply with it?

3.10 If so, is it just and equitable to increase or decrease any award payable to the claimant?

3.11 By what proportion, up to 25%?

3.12 Should interest be awarded? How much?

The Law

[38]The statutory law related to the claimant’s claims of discrimination is contained in the Equality Act 2010. The relevant sections are section 13 (direct discrimination); and section 136 (burden of proof). The relevant provisions are set out here: 13. Direct discrimination A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. The relevant protected characteristics are— (a) … (b) disability; (g) …. 136. Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (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. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) This section does not apply to proceedings for an offence under this Act…

[39]We were also referred to the following cases by Mr Wyeth:9.1 Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL;

9.2 Gould v St John’s Downshire Hill

[2021] ICR 1

EAT

9.3 Bahl v Law Society

[2003] IRLR 640

; and

9.4 Chief Constable of Norfolk Constabulary v Coffey

[2019] EWCA Civ 1061

[40]Mr Spencer referred us to the cases that EJ Broughton had referred to in her Judgment and reasons in the deposit application. He did not name any of them. Many were not relevant, as they dealt with principles that a Tribunal has to bear in mind when making a decision on whether to make a deposit order but we have considered the ones that were relevant to the decision we had to make. Housekeeping and conduct of the hearing

[41]The hearing was scheduled to start at 10:00am on 29 April but the morning had been set aside for the Tribunal to read the documents.

[42]The hearing was scheduled for three days to include remedy. At the outset, we indicated that we would deal with liability and then deal with remedy if any of the claimant’s claims were successful.

[43]At the preliminary hearing on 9 March 2023, EJ Wilson set a timetable that envisaged 2 hours reading for the Tribunal on the first day followed by the claimant’s evidence for the rest of the first day. EJ Broughton had extended the reading time to 3 hours and had set a start time of 2:00pm for the substantive hearing (paragraph 4 [162]). The second day was timetabled to cover the respondents’ evidence and closing submissions. The third day was timetabled for the Tribunal to make its decision and deliver a Judgment. If the claimant were successful, the Tribunal would then deal with remedy.

[44]We completed our reading on the first morning and began the substantive hearing at 2:00pm on the first afternoon. We discussed the arrangements for the hearing with the parties. The parties produced an agreed bundle of 377 pages. If we refer to pages in the bundle, we will note the relevant page numbers in square brackets (e.g. [323]).

[45]We confirmed that the parties had the 377 page bundle. Mr Spencer said he had the 337 page bundle but had also brought his own documents. The documents were not in a file, not paginated, and he had not brought any copies. He did not know whether the documents he had brought were in the agreed bundle, as he had not read the agreed bundle. It was not proportionate to go through each of Mr Spencer’s documents to check whether they were in the bundle. As the hearing progressed, Mr Spencer made references to documents in his bundle. Every document that he said was in his bundle was in the 377 page bundle. Mr Spencer made no reference to any document that was not in the 377 page bundle.

[46]The Tribunal’s file had indicated that the claimant did not intend to give evidence but we had a witness statement from him. The statement we had was different to the statement that the respondents had: it had an additional paragraph. Mr Wyeth said that the respondents did not object to the revised statement.

[47]We reminded the claimant at the start of the case that when he was cross-examining the respondent’s witnesses, he should remember that if he did not challenge a point of evidence in their witness statements, we would probably find that the evidence was credible. We reminded him of the overriding objective.

[48]The claimant’s evidence finished at the end of the first day. On the second day, the respondents’ witnesses gave evidence. We finished in time to hear closing submissions, but although Mr Wyeth was ready and we offered the claimant time to prepare, he said he could not be ready until the third morning.

[49]We heard Mr Wyeth’s oral submissions on the afternoon of the second day and heard Mr Spencer’s submissions at the start of the third day. We then retired to make our decision. We asked the parties to return at 3:00pm when we delivered our unanimous decision. The claimant asked for the reasons to be put in writing. These reasons are longer than the oral reasons that we gave on the day.

[50]The respondent applied for costs. We heard the application. The decision was reserved and will be sent to the parties as soon as possible.

Findings of fact

[51]All findings of fact were made on the balance of probabilities. If a matter was in dispute, we have set out the reasons why we have decided to prefer one party’s case over the other. If there is no dispute over a matter, we leave the record of the finding of a no comment as to the reason the finding was made. We have not dealt with every single matter that was raised in evidence or on the documents. We have only dealt with matters that we found relevant to the issues that we had to determine. No application was made by either side to adjourn this hearing to complete disclosure, to obtain more documents or call more evidence, so we have dealt with the case based on the documents and evidence produced to us and the claim as set out in the list of issues.

[52]Much of the factual nexus of this case was not in dispute. The dispute was about the interpretation of what happened. Undisputed facts

[53]We should record as a preliminary finding that there are several relevant facts not disputed, not challenged, or that were agreed by the parties. We therefore record them as formal findings of fact. These were:-53.1 The claimant was employed by the second respondent, a company that provides software for ecommerce companies that integrates warehousing, couriers, and stock, as a Support Manager from 20 June 2022 until 30 September 2022. Early conciliation started in respect of the claim against the first and second respondents on 10 October 2022.

53.2 The first respondent is the Managing Director of the second respondent and was the officer who dismissed the claimant. An ACAS EC certificate was issued on 21 November 2022 in respect of the claimant’s claims against the first and second respondents.

53.3 Early conciliation started against the third respondent, who was the claimant’s line manager and who conducted a probation review on 18 August 2022, on 14 September 2022 and an ACAS EC certificate was issued on 26 October 2022.

53.4 The claims were presented in two claim forms. The ET1 against the first and second respondents was presented on 9 December 2022. The ET1 against the third respondent was presented on 10 December 2022. Both claims were consolidated by the Tribunal on 22 December 2022.

53.5 As the second respondent’s business is the provision of software, it provides a support service for its customers. The support service has three tiers: 1st Line, which deals with first enquiries; more complex matters are escalated to the 2nd Line; and developers who deal with the most complex problems with software. In some documents, the developers were referred to as the 3rd Line.

53.6 Incoming customer calls for assistance were referred to as “tickets.”

53.7 The claimant was interviewed for the post with the second respondent by Andrea James and Ian Dade, the third respondent, on 17 May 2022 [248- 255]. It was agreed that Brian Williamson, the first respondent, joined the interview briefly. It was not disputed that the interview lasted three hours.

53.8 The respondents’ unanimous evidence was that the claimant was very suitable for the role. It was agreed that the software operated by the second respondent was complex. Mr Dade suggested that he did not understand it fully despite having been with the company for many years. It was the agreed evidence of the parties that the claimant was not expected to provide technical support to the 1st and 2nd Lines. His task was to manage and support the teams, keeping on top of the incoming tickets and keeping customers satisfied.

53.9 At paragraph 7 of the interview notes [253] the claimant was asked to the how he would handle a dissatisfied customer. The claimant’s response was: “Listen/communication Think about a solution/or come back to them Understanding Offer help Always respond even when you don’t have a solution”

53.10 The claimant was provided with a contract of employment dated 24 May 2022 [257-270] by the second respondent. Clause 5 of that contract stated: “The first six months of your employment will be a probationary period and your employment may be terminated during this period at any time on one week’s notice.”

53.11 The claimant was provided with a document [271-272] that set out the purpose of his role and his key responsibilities under the headings – Personnel Management; Customer Management; and Ticket Management.

53.12 As part of the Customer Management responsibilities [271], the claimant was required to handle “…escalations where customers want a higher point of contact, complaints etc.”

53.13 As part of Personnel Management, the claimant was required to “Complete monthly progress/goal meetings with team members which form part of the annual PDP meetings.”

53.14 The complete job description [271-272] read: “Job Title: Support Manager Job Purpose: The role of the Support Manager is to be the first contact point for the Support team when tickets are escalated. They will be responsible for managing the team, keeping ticket numbers to a reasonable level, and customer satisfaction high. Additionally answering calls and using the ticketing system will be a crucial part of the role. As well as developing and maintaining knowledge bases. Key Responsibilities: ❖ Personnel Management

• 1-1 meetings - Complete monthly progress / goal meetings with team members which forms part of the annual PDP meetings

• Productivity Reviews and Statistic Management - Looking at individual team members statistic for phone calls and ticket activity

• Development Rota - Managing the rota for 2nd line support members and ensuring continued cover

• On Call Rota - Managing the on-call rota for applicable staff

• Managing Absences - Point of call for absence reporting and following our attendance standards

• Holiday Request Approval - Managing holiday requests, ensuring coverage is available and approving/rejecting as necessary

• Training - Deliver the essential training to employees both new and existing, whilst highlighting development and training opportunities ❖ Customer Management

• Mid-Tier Account Management - Dealing with mid-tier clients who have Support needs, identifying training needs and having regular update calls

• 2nd Line Escalations - Handling escalations where customers want a higher point of contact, complaints etc.

• Subscription Increase enquires - Managing customer requests for add on features, including price increases and overseeing the execution of adding the new feature

• Statistical Analysis - Providing in depth statistics, as requested to show current situations and projected areas for improvement

• User Voice Analysis - Keep track of User Voice suggestions, reply to these, and raise feature requests as required

• Knowledgebase Management - Recognising the need for new KB articles through ticket analysis and making sure current articles are up to date and factually correct ❖ Ticket Management

• Managing 1st line efficiency - Ensuring all tickets have replies and have been escalated correctly

• Managing 2nd line escalations and resolution times - Monitoring 2nd line activity and providing the statistics to show activity, close times etc. to ensure correct staffing levels

• Escalating tickets to 3rd line - Ensure efficient information is present on all escalated ticket requests for development work

• Targets - Meeting the support targets of the organisation through effective planning

• KPIs - Report monthly KPIs results to Senior Management, for example customer satisfaction and ticket levels Key Requirements:

• Experience in team / support team management including personnel tasks

• Proactive approach to problem solving and developing

• Ability to manage conflicting priorities and excellent organisational skills

• Professional telephone manner and confident participating in meetings

• Strong relationship building and influencing skills

• Able to develop knowledge sources which are readily available to self and other employees through various resources

• Proficient knowledge of Microsoft Office software

• Ability to work and thrive in a fast-paced environment whilst learning key functions”

53.15 The claimant started work with the second respondent on 20 June 2022 and went through an onboarding process that included two weeks’ training on the software used by the respondent. It was the agreed evidence of the parties that the claimant could not possibly have acquired enough knowledge to understand the software in that time. The respondents’ case is that he did not have to have that level of knowledge. We shall return to that point as it is not agreed. Tokyo Laundry

53.16 Tokyo Laundry is a customer of the second respondent. On 15 July 2022, it contacted the second respondent. The ticket was initially taken by a member of the claimant’s team, Aimee, who emailed the claimant at 9:53am [304] and asked him to take the ticket (which had been escalated) as it was Friday and she was not in the office the following week.

53.17 The claimant replied at 10:00am [304] and said he would take the ticket and work with another member of the team, Hardeep, to resolve it. At 1:40pm the same day, the claimant emailed Aimee and advised her that it looked like “they” have got this ticket in hand.

53.18 On 19 July 2022, the customer updated the ticket (i.e., chased a response from Aimee by email [275]). A colleague of Aimee responded on 19 July to advise the customer that Aimee was on holiday, was not due to return until the following week, and suggested the customer wait until her return [275].The customer replied the same day [275], rejected the idea of waiting for Aimee’s return, and stressed the urgency of the situation.

53.19 The customer’s Management Accountant emailed later on 19 July and was obviously very annoyed – the email was partly in capital letters and partly in underlined bold type. The Management Accountant sent a text to Mr Williamson who tasked Mr Dade with resolving the issue [text not produced].

53.20 Mr Dade replied to the customer and resolved the issue on 21 July [276]. He told the customer that Aimee should not have gone on holiday without passing the ticket to a colleague. Aimee was copied in. Aimee messaged Mr Dade on 25 July [321] to express her frustration that the claimant had not looked after the ticket because she had “…specifically asked him to take the ticket since he [the claimant] was in the chat with Brian and Jimmy about it.” 1-2-1 Meetings

53.21 On 10 August 2022, Mr Dade noticed that the claimant was not recording his 1-2-1 meetings with staff on the second respondent’s Sage HR software and messaged the claimant to remind him. The claimant acknowledged that he knew how to log the 1-2-1 meetings but did not know that they needed to be logged every time he undertook a meeting. He said he would make a note [305]. Mr Dade asked the claimant to go back and create a log for each meeting he had with Hardeep and Aimee in July. Mr Dade’s unchallenged evidence was that the 1-2-1’s were still not updated by 18 August 2022. Crafty Capers

53.22 Crafty Capers is a customer of the respondent. On 26 July 2022, the customer produced a ticket that was picked up by Aimee. Aimee messaged the claimant and notified him that the ticket was a complaint and needed to be escalated to give the customer some reassurance [281]. She asked the claimant to pick it up.

53.23 On 27 July 2022, Aimee messaged Andrea James to ask how long was reasonable to wait for the claimant to respond before she chased him [282]. Mrs James’s response was that she would have expected something.

53.24 The claimant responded to Aimee within minutes of her message on 27 July 2022 to say he would pick the ticket up [281]. On 28 July 2022, Aimee messaged the claimant to ask if he had chance to look at the ticket. The claimant replied as follows: “Hi Aimee I was going to speak to Ian about it as Jared had already approached this but they are still not happy. I could write a generic response but I would prefer that Ian is consulted on it. He’s only just got back from Ireland so I will collar him tomorrow.”

53.25 On 2 August 2022, Aimee messaged the claimant to ask if he had spoken to Ian because the ticket had “…been sat for two weeks without a response.”

53.26 The claimant replied within a few minutes and wrote, “No I didn’t Ian was a bit busy yesterday and he’s off today back in on Wednesday, I’ve updated the ticket and I will collar Ian tomorrow.”

53.27 The outcome of this matter is disputed, so we shall return to it below. Staff Dissatisfaction

53.28 In July and August 2022, two members of the claimant’s direct reports, Hardeep [298] and Aimee [218] expressed complaints about the claimant’s management. In a meeting with Mrs James on 11 August 2022, Hardeep said that the claimant was the reason for his decision to leave. Another member of staff, Jared, indicated that he was thinking of leaving for the same reason [298 and 311]. Evri – 12 August 2022

53.29 On Friday 12 August Evri, a large customer of the second respondent, had a software failure at 15:50pm. The claimant did not respond to the ticket and left work at 16:52pm when the ticket was not resolved. This is disputed, so we will deal with it below. ETSY - 17 August 2022

53.30 On 17 August 2022, ETSY, a large customer of the second respondent, had a major software failure. The ticket was logged but whilst his team was dealing with the issue, the claimant was playing pool with EA. The claimant says he was providing support to EA and checking he was OK. We will return to this as it is disputed.

53.31 It was not disputed that, on 16 August 2022, Mr Dade and Mrs James met Mr Wilkinson to discuss the concerns they had about the claimant. Mr Dade had booked the claimant’s probation review for 18 August 2022. After the pool playing incident on 17 August, Mr Williamson’s evidence was that the claimant had visited him looking worried and anxious and had made a comment about his own performance. This evidence is disputed, so we will deal with that below.

53.32 Following his meeting with the claimant on 17 August 2022, Mr Williamson met Mrs James and Mr Dade to get their side of the story.

53.33 Mr Dade prepared notes for the probation review meeting with the claimant [322-323]. These were not shared with the claimant before the meeting.

53.34 What was said at the meeting on 18 August is disputed so we will deal with it below. After the meeting, it was Mr Dade’s undisputed evidence that he wrote up his notes of the meeting and posted them on the second respondent’s Sage HR software [324-325].

53.35 Mr Dade then discussed the review with Mr Williamson.

53.36 Mr Williamson then called the claimant in for a meeting at which the probation review was discussed. At the end of the meeting Mr Williamson dismissed the claimant. The claimant was advised that he would be placed on garden leave and was given notice to expire on 30 September 2022, which we find to be the effective date of termination. The claimant was only entitled to one week’s notice under his contract.

53.37 Mr Williamson wrote to the claimant on 25 August 2022 [334-355] confirming the dismissal.

53.38 The claimant entered into correspondence with Mrs James about an appeal/grievance but never pursued either once he was informed that there was no-one senior to Mr Williamson who would hear the appeal. Spending too much time with EA

53.39 A member of the claimant’s team, Aimee, said that the claimant was spending too much time with EA [315] in an exchange with Ms James on 3 August 2022. The claimant disputed the allegation. New Starter Training Plan

53.40 On 23 July 2022, a new starter, Darron, was recruited for the Support Team to start on 8 August 2022. The claimant did not dispute that it was his job to prepare Darron’s onboarding procedure. The claimant discussed the respondent’s existing training plan with Dan, Sales and Development Manager and said he was going to redraft it. He had not completed this by 8 August 2022, so Dan had to revert to the old plan for Darron’s onboarding. Staff Leave

53.41 On 29 July 2022, a large customer of the second respondent experienced software problems that began early that morning. The claimant allowed a member of staff to take annual leave at short notice without following the second respondent’s procedure. By giving the staff member leave, the team had no one covering 1st Line support with the result that the customer did not receive the support it believed it was entitled to under its contract with the second respondent . The claimant did not dispute this when it was put to him in cross-examination. Support Procedures Document

53.42 The claimant was tasked to create a new business proposal for support procedures but never completed the support procedures document in a form that was acceptable to the second respondent. The claimant disputes this. EA’s Performance Review

53.43 It was agreed that the claimant’s role included doing EA’s Probation Review. It was not disputed by the claimant that Mr Dade had to chase him do EA’s performance review and Mr Dade ended up having to do it himself (para 28 of Mr Dade’s W/S).

53.44 The claimant did not accept the advice given to him by Mr Dade on the issue of disclosing EA’s dyslexia to the team. The claimant disputes this.

53.45 The claimant’s sole remaining claim is one of associative direct discrimination because of the disability of EA. The issue of whether EA was a disabled person under the definition contained in section 6 of the Equality Act 2010 is in dispute, so it is dealt with below. Points of dispute Disability

[54]In addition to the agreed facts, we make the following findings in respect of the claim of direct associative disability discrimination.54.1 We find that the claimant has not shown on the balance of probabilities that at the time with which this claim is concerned, EA was a disabled person as defined by section 6 of the Equality Act 2010. We make that finding because:54.1.1 The burden is on the claimant to show that EA was a disabled person.

54.1.2 We find that EA has dyslexia. It is a lifelong condition. The respondents and EA himself agreed this.

54.1.3 The claimant produced no medical evidence whatsoever concerning EA’s dyslexia.

54.1.4 The claimant asserted that because EA had a letter from the Dyslexia Association that stated he is dyslexic, that is proof that EA was a disabled person. The claimant’s opinion is simply wrong. The letter was never produced. If it had been produced, it could not be proof that EA met the definition of disability in section 6 of the Equality Act 2010 unless it specifically addressed the part of the test concerned with the effect of the disability on EA’s ability to carry out normal day to day activities.

54.1.5 The claimant did not call EA to give evidence.

54.1.6 The claimant provided no evidence of the effect that dyslexia had on EA’s ability to carry out normal day-to day activities. Whilst we can give it little weight, EA’s statement dated 30 January 2023 [359-363] gives no indication whatsoever that he regards himself as a disabled person or that he required reasonable adjustments to be made for him during his employment with the respondent. The height of the evidence of EA’s condition was that “…at times I have difficulty remembering patterns or sequences of information.” [359].

54.1.7 The respondent was aware of EA’s dyslexia from the date of his interview on 22 April 2022 [245- 247] and discussed his dyslexia with the interviewers. The notes [246] state: “Aware of dyslexia. Keep notes. One note to record tasks.”

54.2 We find that there is nothing in the interview that suggests EA needed reasonable adjustments. The fact that the claimant took a contrary view is not determinative of the question of disability.

54.3 In the Court of Appeal case of Chief Constable of Norfolk Constabulary v Coffey

[2019] EWCA Civ 1061

, Underhill LJ held: ''It appears that a case of perception discrimination under the 2010 Act has not previously been before this Court… As a matter of ordinary language the phrase “because of [a protected characteristic]” is wide enough to cover the case where A acts on the basis that B has that characteristic, whether they do or not.''.

54.4 We find that the key question we must answer is whether Mr Dade or Mr Williamson, who were the decision makers on the probation review and dismissal perceived EA to be a disabled person. Both gave unchallenged evidence that they did not perceive EA to be a disabled person.

54.5 We also find that Ms James, who gave evidence, did not perceive EA to be a disabled person as defined in section 6. We find that the only person working at the second respondent at the relevant time who perceived EA to be a disabled person under section 6 was the claimant.

54.6 The claimant’s evidence was that he made reasonable adjustments for EA by designing documents to help him. There is no evidence of these documents and EA does not mention them in his statement.

54.7 We apply the test in Shamoon and find this is a case in which we do not have to apply a two-stage test but can apply the “reason why” test – what was the reason why the claimant was treated in the way he complains about. We find that the only influence that EA had on the decision was tiny. The complaints from staff about the claimant spending too much time with EA to the detriment of their development was a very minor matter when compared with the customer care issues and lack of presence on 17 August 2022. We are somewhat surprised that the claimant was not dismissed for the pool playing incident on 17 August 2022 on its own.

54.8 As we have found that EA has not been shown to be a disabled person or that anyone other than the claimant perceived him to be a disabled person, the claimant’s claim fails at that point.

54.9 Had we found that EA was a disabled person, we would have gone on to make the finding that there was no associative connection between the claimant and EA. All the respondent’s reasons for dismissing the claimant are set out above. The claimant spending too much time with EA is the only one that could possibly be associative. EJ Broughton’s comments on that aspect of the claim in the deposit order hearing was (paragraph 122 [160]): “Mr Dade's comments in the probationary review notes are very critical of the support the claimant had given to the putative disabled colleague. He is critical not only about the impact on other colleagues but on the colleague himself. He refers to the claimant allegedly standing over him listen to him taking calls and not having time on his own to resolve matters without the claimant being present (p.166). The language in Mr Dade’s notes is not wholly consistent with the tone of the dismissal letter, in that Mr Dade’s note is much stronger in terms of his views about the assistance provided to this particular colleague; “Presence Perception: This is the big one for me. The attached document explains more. You seem to have possibly alienated some of the team with your actions...””

54.10 EJ Broughton states in paragraph 121, however, that whether the reason for the support was disability and the approach may have been different because of something else could only be tested in evidence. We have tested the evidence and find that the respondents’ approach had nothing to do with disability: firstly, because EA was not a disabled person; and secondly, because the evidence shows that the claimant’s performance was weak across much of his work. Fairness

54.11 The claimant has asked us to look at the general fairness of the dismissal and whilst we are under no obligation to do so we shall address it, albeit briefly as it would not be proportionate or save time and cost to do otherwise.

54.12 We must start our consideration by finding that the claimant appeared to be qualified to do the job he was appointed to by the respondent. We find that the evidence shows that he did not have the skills to do the job.

54.13 We find that the alleged lack of training given to the claimant was not a relevant factor. We find that the claimant did not need to know the respondent’s software in any great depth. He was managing the tickets that came in and had expert technical advice available to him through the developers. All he had to do was to keep customers informed and happy; organise the staff; and monitor the progress of tickets. There were several occasions when he failed to do this. Tokyo Laundry

54.14 We find that the claimant failed to take ownership of or demonstrate leadership in the handling of this ticket. We find that the claimant’s evidence by way of answers to cross-examination was a series of implausible excuses that sought to pass blame to others. Crafty Capers

54.15 We find that the claimant was responsible for managing the escalation of this complaint and his attempt to justify himself by saying that he had asked Jared is disingenuous. The claimant admitted in messages with Mr Dade [309] that Mr Dade had told him what to say and that he did not understand it or take notes. He did not get back to Mr Dade to confirm what he should say or send Mr Dade a draft response for approval. We would have expected the claimant to have done all these things given his level of experience and what he had said in his interview about handling customer complaints. If he had done what he said he would do in his interview, the matter would not have ended as it did. 17 August

54.16 We find that the claimant went to see Mr Williamson on 17 August 2022 after the pool playing incident and said that if he were not a good fit for the role, he would like to know sooner than later. We find this to be a moment of honest reflection. We prefer Mr Williamsons’ version of events because it is in his witness statement and his oral evidence was consistent with the documents and his statement. The claimant made no mention of the incident in his witness statement and his answer when challenged that he had said the words alleged was that he could not remember. 18 August

54.17 We find that Mr Dade had no reason to share his notes with the claimant before the probation meeting because it was not a disciplinary meeting. We find that Mr Dade did not know that the claimant was about to be dismissed by Mr Williamson. We find nothing unfair or discriminatory about Mr Dade not noting the claimant’s comments on his notes of the meeting. The claimant made no notes himself. He did not put his own notes of the meeting on Sage.

54.18 We find that Mr Williamson had no intention of dismissing the claimant at the meeting on 18 August. We made that finding because we found his written and oral evidence consistent and credible. The claimant was given the opportunity to show reflection about his shortcomings and failed to do so, as he has before us.

54.19 We find that there is no connection between Mr Williamson’s decision to dismiss the claimant and EA’s dyslexia. Colleagues

54.20 We find the claimant’s management was the reason that Hardeep and Jared indicated that they wanted to leave and why Aimee made the complaints that she did. The Claimant’s Health

54.21 The claimant made numerous references in the hearing to his anxiety and depression. He referred to these conditions when explaining why he had failed to comply with case management orders. The only medical record that the claimant produced about his health was a two page patient summary that noted that he had consulted his GP on 17 September 2022 [366-377] with anxiety. The note says that the claimant had taken medication for anxiety 10 years previously but did not want medication in September 2022. He had self-referred himself for counselling. The claimant never suggested that he met the definition of disability under section 6 and there was nothing in his witness statement or documents that would have supported such a conclusion. The Claimant Representing Himself

54.22 This Tribunal is aware of the difficulties that claimants and respondents who represent themselves have in bringing claims and responses to the Employment Tribunal. We were mindful of this in this case and gave the claimant time when he asked for it and made it clear that he could ask questions on procedure and the law, which he did.

54.23 We made allowances for the fact that the claimant was nervous but some of his behaviours were unacceptable. The claimant would not have had to be a lawyer to realise that his behaviours were unacceptable. These included:54.23.1 Muttering to himself about the fairness of the hearing but refusing to explain what he meant by the comments when asked by the Tribunal;

54.23.2 Repeatedly calling Mr Wyeth a liar and refusing to withdraw the comment;

54.23.3 Angrily refusing to accept that he had made a claim for holiday pay in his ET1 when it was plainly on the documents;

54.23.4 Describing his cross-examination as “ferocious” when it was anything but; and

54.23.5 Accusing me of shouting at him (this was withdrawn).

54.24 The claimant tried to excuse his conduct by describing it as examples of his passionate nature. Summary

[55]The claimant gave himself a mountain to climb by submitting a witness statement that consisted of nine paragraphs. We find that he had been warned by EJ Michael Butler what may happen if he refused to give any evidence. It would have been open to the respondents to only ask the claimant cross-examination questions about the witness statement produced. The witness statement made no mention of any evidence to support the assertion that EA was a disabled person.

[56]We find the claimant to have an unshakeable self-perception of the events in this case. When he was challenged, the claimant became annoyed and defensive. His excuses for the alleged behaviours that we have found to be the real reason that the second respondent dismissed the claimant were not credible or consistent. The claimant’s immediate reaction to this Judgment and Reasons was to announce that he would appeal, which is his right, of course.