Mr I Ndu v Coventry University London Campus: 3200531/2017

EMPLOYMENT TRIBUNALS

Case No 3200531/2017

Between

Mr I NduClaimant

Coventry University London CampusRespondent

Before

Employment Judge O’Brien

Date 17 April 2019

JUDGMENT

[1]The claimant’s complaint of constructive unfair dismissal fails and is dismissed.

[2]The claimant’s complaint of unfair dismissal on the grounds of protected disclosure fails and is dismissed.

[3]The claimant’s complaint of detriment on the grounds of protected disclosure fails and is dismissed.

[4]The Claimant’s complaint of a failure to make reasonable adjustments under section 21 of the Equality Act 2010 fails and is dismissed.

REASONS

[1]On 13 May 2017, the claimant presented complaints of constructive unfair dismissal, detriment and/or dismissal on the grounds of protected disclosure, and failures to make reasonable adjustments. The respondent resists the claims.

ISSUES

[2]The parties had been unable to agree a list of issues in advance of the hearing. Mr Dickinson was prepared today to acquiesce to the claimant’s amendments to her side’s proposed draft; however, in deliberation the tribunal found that list not to be workable as formulated. The tribunal has, therefore, identified the following issues to be determined, using the parties’ statements of case and the further information provided by the claimant on the first day of the hearing in response to the respondent’s request dated 10 August 2017: Constructive unfair dismissal2.1 Whether the respondent committed a fundamental breach of contract. The claimant relies on the implied term of trust and confidence and on an implied term that the respondent shall not act in a way such as to endanger the claimant’s health and safety, and relies on the matters set out in paragraphs 1 to 11 of his statement of claim as alleged breaches of those terms.

2.2 Whether the claimant resigned in response to that breach.

2.3 Whether the claimant acted in such a way so as to be taken to have affirmed the contract. Public interest disclosure dismissal

2.4 The claimant relies on his email of 21 March 2016.2.4.1 Whether that email disclosed information.

2.4.2 Whether the claimant actually believed that the information tended to show that a criminal offence had been committed.

2.4.3 Whether the claimant believed that the disclosure was in the public interest.

2.4.4 Whether these beliefs were reasonable.

2.4.5 Whether the disclosure had been made in good faith (relevant only to remedy).

2.5 Whether the behaviour of the respondent alleged by the claimant after 21 March 2016 was because he made the protected disclosure.

2.6 If so, whether that behaviour was sufficiently serious as to cause or contribute to a fundamental breach of contract.

2.7 If not, whether it was nevertheless a detriment. Failure to make reasonable adjustments

2.8 The claimant relies on asthma as a disability for the purposes of the Equality Act 2010.2.8.1 Whether the claimant’s asthma had a substantial adverse effect on his ability to carry out normal day-to-day activities at the material time.

2.8.2 Whether those effects were long term.

2.9 The claimant relies on the following provisions, criteria or practices (PCP’s):2.9.1 Being notified of significant changes by email without being forewarned by telephone or in-person.

2.9.2 being subjected to the respondent’s disciplinary procedure

2.10 Whether the respondent apply any of those PCPs to the claimant.

2.11 Whether the PCP put the claimant a substantial disadvantage compared to nondisabled employees. The claimant says that he suffered an adverse impact on his health.

2.12 Whether the respondent was aware of the claimant’s disability and/or the substantial disadvantage.

2.13 Whether the respondent failed to make adjustments to avoid the disadvantage. The claimant asserts that the respondent should have forewarned him by telephone or in person of any significant change, the claimant asserts that the respondent should not have subjected him to disciplinary proceedings. Remedy

2.14 If the claimant succeeds in all or part of his claim, to what remedy is he entitled. Matters of remedy to be decided at a separate hearing if necessary.

EVIDENCE

[3]Over the course of this hearing, the Tribunal took evidence on the basis of written witness statements. The claimant gave oral evidence on his own behalf and relied on the evidence of Usha Mistry and Jude Dunkwu. On behalf of the respondent we heard oral evidence from: Dr Andreas Nabor; Dr Peter Ye; Ms Stephanie Edwards; and Ms Joanne Oguzie.

[4]The Tribunal was also provided with a joint bundle comprising approximately 1,000 pages. A number of applications were made by the claimant for disclosure of additional documents. Whilst a small number of documents were voluntarily produced by the respondent, the majority of the documents sought by the claimant were unnecessary to determine the issues as decided above and the applications were refused.

[5]The parties each made oral submissions, which we took into account when determining the issues before us.

FINDINGS OF FACT

[6]In order to determine the issues as agreed between the parties, the tribunal made following findings of fact, resolving any disputes on the balance of probabilities.

[7]The respondent is a higher education organisation based in London providing amongst other things course modules in accounting and finance. It is a subsidiary of Coventry University with a very limited on-site human resource function. It is described as a “lean organisation”, which we took to mean, and except, that it operated without any spare staffing capacity in any of its functions.

[8]The claimant is a highly intelligent individual, educated to Masters level and with professional qualifications in accounting.

[9]The claimant was employed by the respondent on 15 April 2013, initially as a lecturer on a fixed-term, part-time basis. In his equal opportunities monitoring form signed and dated on 9 April 2013, the claimant indicated that he did not consider himself to have a disability. The form specifically gave asthma as an example of a disability under the Equality Act 2010. This, we find, was indicative of the claimant’s reluctance (until very late in his employment, as discussed below) to disclose his asthma or any of its adverse effects.

[10]On 15 September 2014, the claimant became a permanent member of staff as a lead teaching fellow at 80% FTE. He was told in the offer letter that there was no need for him to complete a further probationary period. By January 2015, the claimant felt that he was routinely working in excess of these hours and requested a 100% contract. On 22 January 2015, he was written to confirming a temporary variation of his contract to 100% FTE for the period 26 January to 19 April 2015, and that the variation in his hours would be reviewed near to the end of the term.

[11]The claimant asserts that this was contrary to an express agreement for an immediate permanent change to 100% FTE made between him, Kenny Tang and Andreas Nabor in January 2015. However, it is clear from the email exchanges between the claimant and Peter Ye that the change to his hours was not agreed to be permanent until around March 2015.

[12]This permanent change was confirmed in a letter dated 23 March 2015, although there was some delay in the claimant receiving that letter, which was emailed him on 15 April 2015. In the interim, the claimant was told verbally that his 100% FTE contract had been made permanent and that he would be allocated teaching hours accordingly. Nevertheless, the claimant refused to work more than 10 timetabled hours per week until he received the letter, and described Peter Ye’s instructions to the contrary as “further bullying and intimidating [him] at work”. We entirely disagree with that description; it was ordinary and lawful management of the claimant.

[13]Peter Ye had joined the respondent in January 2015 as a principal lecturer and took over from Kenny Tang as the claimant’s line manager in September 2015. Peter Ye holds a PhD from the University of Hertfordshire.

[14]Throughout the material time, Andreas Nabor remained the Head of Accounting, Finance and Energy, the Department within which the claimant was employed.

[15]The claimant was absent from work because of sickness on 2 June 2015. The claimant claims that this was for respiratory problems; however, the respondent’s sickness records (which were not suggested by the claimant in his oral evidence to be inaccurate) record the reason as being headache and migraine [793]. We find that this was the reason given by the claimant at the time.

[16]On 7 May 2015, Peter Ye told the claimant to send him his personal annual review (PAR) appraisal form. The claimant replied saying he was busy but would try to send it, reflecting their recent discussions, during the following week. Peter Ye emailed again on 27 July 2015 asking the claimant to send the PAR that day and to attend a PAR meeting the following day. The claimant replied complaining that he had been given too short notice and so Peter Ye delayed the meeting by a further day. That prompted a further response from the claimant, saying: “Thank you for your email message. However, I find your tone to autocratic, undemocratic, intimidating and aggressive. I have decided to defer my PAR meeting indefinitely until CULC can assure me beyond reasonable doubt and I am totally confident that there are satisfactory procedures in place that I will have an objective and fair PAR appraisal.”

[17]We disagree entirely with that description of Peter Ye’s email. The claimant, we note, copied that response to Kenny Tang, Andreas Nabor, Philip Roberts, Stephanie Edwards and Joanne Oguzie (in other words to the entirety of Peter Ye’s line management and to human resources).

[18]Albert De Jonge was an experienced retired academic who was recruited by the respondent to lecture from May 2015. In his interview, Albert De Jonge had indicated that he did not want too heavy a workload. He was therefore allocated to teach with the claimant on module 313LON, for which the claimant was module leader. During his short period time with the respondent, Albert De Jong complained to PTE on a number of occasions about the claimant’s quality of lecturing.

[19]Albert De Jonge was absent through sickness on 9 June 2015 and Peter Ye asked the claimant to cover. Each accuses the other of shouting in that discussion and denying that they themselves shouted. Throughout his evidence the claimant had a tendency to exaggerate and we observed in him no appreciation of the effect his behaviour has on others. Peter Ye also complained to Kenny Tang by email about the claimant’s behaviour at the time, whereas the claimant only made the allegation much later and not in his email of 23 July 2015 in which he referred to covering for Albert De Jonge. For those reasons, we prefer the evidence of Peter Ye and find that it was the claimant and not Peter Ye who shouted.

[20]The claimant’s email of 23 July 2015 prompted a response from Albert De Jonge, in which he detailed his own complaints against the claimant and intimated 2 grievances against him for harassment and bullying, and defamation of character. As it was, Albert De Jonge left the respondent three days later. He had intimated that it was the claimant’s behaviour which had made him ill.

[21]At this time, the claimant wanted to be consulted before being paired up again. Peter Ye and Andreas Nabor each understood this to mean that the claimant wanted to work alone.

[22]It was the practice of the Department that module leadership and portfolios were changed occasionally, not just for the claimant. For instance, in the case of module M040, Peter Ye gave the lecturing hours to Albert De Jonge in order to keep the claimant’s total teaching hours within limits.

[23]On 28 July 2015, the claimant made allegations to Andreas Nabor of long-term bullying by Kenny Tang and Peter Ye. The allegations were made at a meeting between the individuals and repeated in an email that night. Andreas Nabor initiated an informal investigation but took no further because the claimant did not want to raise a formal grievance. Andreas Nabor did not consider that Peter Ye’s emails were hostile, and we agree.

[24]The claimant repeated his allegations of bullying by Peter Ye and Kenny Tang by email on 1 September 2015, in the context of his refusing to meet with either of them to discuss his PAR. Andreas Nabor met with the claimant on 2 September 2015 at which the claimant informed him of an historic alcohol problem and Andreas Nabor offered confidential counselling. Andreas Nabor nevertheless insisted that the claimant except Peter Ye’s invitation to a PAR meeting. This meeting went ahead on 7 September 2015.

[25]On 30 September 2015, Andreas Nabor supported the claimant’s application for an HEA senior fellowship.

[26]On 11 November 2015. Peter Ye emailed the claimant asking for him to provide a departmental profile for use on the respondent’s website and to arrange a probationary review. The claimant responded, informing Peter Ye correctly that he was not required to undertake any probationary review. Peter Ye indicated that he would check with HR but unfortunately spoke to an inexperienced member of the department who misinformed him that the claimant was required to undergo a probationary review.

[27]The claimant responded to this and other matters raised by Peter Ye indicating that he had sought the advice of a lawyer and was prepared to go to an employment tribunal. The claimant copied this email to Andreas Nabor, Stephanie Edwards and Joanne Oguzie, as did Peter Ye in his subsequent response. Joanne Oguzie intervened by email on 16 November 2015, confirming that the claimant was not required to undergo a probationary review. The claimant asserted in his email correspondence that he considered Peter Ye to have bullied him. We find no evidence of such bullying in the emails or otherwise.

[28]On 11 December 2015, Peter Ye emailed the claimant notifying him of his teaching workload for January 2016. In particular, it said, “As per your request, I have only allocated on [sic] module to you” and invited the claimant to let him know if he had any questions. The claimant replied, “thanks Peter.” The claimant asserts that he never made such a request and did not read the entirety of this email. We are unable to accept that that was the case; the terms of this concise email are clear. In short, we find that the claimant had asked Peter Ye to be allocated to one module making up all of his teaching timetable and that Peter Ye accommodated that request.

[29]We are satisfied that at this time relations between the claimant, Peter Ye and Andreas Nabor were positive.

[30]An open day was due to take place at the respondent on 23 March 2016. Attending this open day was a duty shared between colleagues which did not fall only to module or program leaders. The claimant had not recently covered any such event and Peter Ye nominated him to participate along with Naima Parvin and Adrian Euler. The claimant was reluctant to do and after some email discussion, in which the Peter Ye challenged the claimant to explain himself if there was a reason why he could not perform the duty, the claimant took issue with the tone of Peter Ye’s email and said: “I am sorry but I do not like the tone of your last message. There was no prior discussion with me regarding this out of courtesy which I think is very important for communication and personal relationship and to avoid misunderstanding and friction. I am sorry but I will very respectfully decline this invitation and regret any inconvenience this may cause.”

[31]We find nothing wrong with the tone of Peter Ye’s communications; this was a perfectly reasonable management written instruction and the claimant was given the opportunity to give reasons why he would be unable to comply. The fact was that the claimant did not wish to comply. It was only after the claimant was told that it was a duty and not an invitation that the claimant referred to pressure of work. Although the claimant may have been teaching 14 hours a week and organising a visit to the United States of America, it is was not unreasonable to expect the claimant to participate in the open day.

[32]The claimant complained in emails in March 2016 about teaching allocation, describing it as “poor governance and systematic abuse.” Andreas Nabor responded to the effect that Peter Ye, in allocating modules, was simply doing what he was paid to do. We agree.

[33]The claimant began to include Joanne Oguzie in this exchange of emails, using hyperbole and alleging constructive dismissal. On any reasonable view, this was an inaccurate description of what we find to have been proper exercise of management. The claimant confirmed on 11 March 2016 that he wanted his complaint to be treated as a formal grievance.

[34]On 21 March 2016, the claimant emailed Joanne Oguzie, Stephanie Edwards, Andreas Nabor, and Philip Roberts, alleging “systemic and rampant abuse of power and authority” and accusing Peter Ye and Alid Kambwili of using the allocation of workload as “an instrument of torture and abuse on their fellow staff”. He indicated in the email that he believed those two gentlemen to be “imposters”. The claimant said that he had visited the University of Hertfordshire but had found no record of Peter Ye’s thesis. He had also checked with ACCA to find that Alid Kambwili had only been a member since 2015. He alleged that both had therefore acted fraudulently when applying for employment with the respondent.

[35]Joanne Oguzie responded to the claimant’s allegations against Peter Ye and Alid Kambwili on 22 March 2016. She noted that they were very serious and confirmed that she had verified Peter Ye’s PhD with the University of Hertfordshire. She concluded: “I must ask you to consider your motivation for continuing to raise concerns about Peter and Alid, the escalation could be perceived as malicious and I am sure that is not what you intend”. We find that that was an appropriate response in the circumstances.

[36]The claimant told us that he was frightened thereafter to raise concerns because he had been threatened. However, we note that he made further allegations of potential misconduct against Peter Ye and Dr Roberts on 15 April 2060, citing a rumour that Peter Ye was “untouchable” having previously worked with Dr Roberts prior to coming to the respondent. We reject, therefore, any suggestion that the claimant felt threatened by Joanne Oguzie or that he felt constrained thereafter from raising any genuine concerns.

[37]The respondent held a grievance meeting with the claimant on 23 March 2016. In attendance was the claimant, Joe Oguzie and James Whitton. The claimant alleged that the pressure from Peter Ye was impacting on his teaching and his health but, in the latter regard, did not give specifics.

[38]At this time, the claimant was declining again to participate in the PAR process. He was told by Andreas Nabor on 13 April 2016 that he should continue with the PAR process notwithstanding the outstanding grievance. The claimant indicated that he would be happy and willing to have a PAR review with Andreas Nabor; however, Joanne Oguzie decided on 15 April 2016 that the PAR process would be suspended until the outcome of the grievance was known.

[39]Joanne Oguzie referred the claimant to occupational health on 15 April 2016; however, the claimant declined to attend. The claimant explained to us that he considered her referral to be intrusive and had understood that his GP could provide a report instead. However, no report was obtained at that time by the claimant from his GP.

[40]The claimant was given the outcome of his grievance on 5 May 2016. Three out of the four allegations were not upheld. However, his complaint about a lack of transparency and communication around workload allocation was upheld. It was recommended that the claimant and Peter Ye undertake mediation to improve their working relationship and to identify appropriate communication method. It was also proposed that Joanne Oguzie would work with Andreas Nabor to develop a plan for improving the workload allocation process. As it was, these arrangements were not put in place because the grievance appeal and disciplinary process were not concluded until October 2016.

[41]The claimant submitted his grievance appeal on 18 May 2016, the meeting for which was held on 16 June 2016 and the outcome distributed on 26 June 2016. His grounds of appeal were rejected. The claimant claims that it was at the grievance appeal meeting that he first mentioned that he had asthma. However, it is only on 22 July 2016 the claimant indicated in an email that he considered himself to be disabled. Until that point, none of the respondent’s witnesses had ever seen or understood the claimant to be suffering any adverse effects from asthma.

[42]On 6 June 2016, Andreas Nabor asked the claimant to undertake a competitor analysis, comparing the respondent’s BA in International Finance and Accounting with the programs of selected competitors. Initially, the claimant thanked Andreas Nabor and agreed to undertake the task. It was only after Peter Ye corresponded with the claimant about this task that the claimant emailed Andreas Nabor on 8 June 2016 saying that “I have finally decided that it is in my personal interest not to do this work until all the pertinent issues I have raised regarding my grievance satisfactory looked into and fully resolved. I am very sorry for any inconvenience caused.”

[43]This was for Andreas Nabor the last straw and an act of what he described in an email later on 8 June of “disruptive behaviour and insubordination”. He commissioned a disciplinary investigation into: insubordination by failing to comply with management instructions; failure to comply with campus policy by refusing to attend a PAR meeting; and making a malicious allegation in respect of Peter Ye and Dr Roberts. We agree that there were reasonable grounds to commence this investigation.

[44]The claimant attended Accident and Emergency at the Royal Free Hospital at 1:26am on 18 June. He reported worsening of asthma symptoms due to stress. He had a respiration rate of 25 with 90% saturation on air. This improved with nebulisers to 20 and 95% respectively. He was observed with a mild wheeze which resolved whilst in A&E. The claimant was not admitted but returned home after a short period at hospital. The claimant’s description of this episode as “hospitalisation is, we consider, a gross exaggeration. Nevertheless, the claimant’s ability to breath freely had been substantially impinged. Moreover, it appears likely from the claimant’s medical evidence that this was a recurrence of earlier temporary breathing difficulties and also that the claimant would have suffered more difficulties but for his use of a nebuliser.

[45]The claimant was interviewed in respect of the disciplinary allegations on 23 June 2016 by Stephanie Edwards and Joanne Oguzie. He claimed at the meeting that stress triggered his asthma. At the end of the meeting, Joanne Oguzie urged the claimant to attend occupational health.

[46]The investigating team recommended that two of the three allegations proceed to a disciplinary hearing, but not in respect of the allegedly malicious allegation. At this point, the claimant provided no evidence of the effect on him of his asthma and the team’s decision was entirely reasonable.

[47]On 5 July 2016, those involved in teaching the BA IFA were asked to review their respective modules. The claimant was therefore asked by Dave Briggs to review 310LON. The claimant responded that the module was now the responsibility of Silvie Lee and Naima Parvin. Peter Ye intervened to assert that the claimant was the last module leader and that it was important to have his input. Whether or not Peter Ye was in possession of the correct facts, the matter was quickly resolved even on the claimant’s own case by 19 July 2016.

[48]An occupational health report dated 20 July 2016 records the claimant telling the OH manager that the academic dean, Jo Cullinane, had addressed his concerns around communication and transparency of work allocation which had helped to improve his mental well-being, and that he was positive about recent communications with his employer. No adjustments were identified in that report. The report was provided to Joanne Oguzie, who advised the claimant that management would need to be involved in any adjustments. The claimant agreed to his condition being discussed with Andreas Nabor, who was provided with a copy of the report.

[49]The claimant’s disciplinary hearing was eventually fixed for 15 September 2016. However, on 14 September Jo Cullinane contacted the claimant’s union representative to inform her that there would no longer be a disciplinary hearing but instead a meeting to discuss an action plan. The decision was taken by Jo Cullinane without consulting HR and was the subject of a subsequent “conversation” (which we take to mean a strong expression of disapproval on the part of HR) between Jo Cullinane and Joanne Oguzie. Both Stephanie Edwards and Joanne Oguzie disapproved of the development.

[50]The claimant requested in September 2016, to reduce his hours to 80% with effect from 1 February 2017. However, the respondent was unable to accommodate the request because of staff shortages.

[51]The claimant was notified on 13 October 2016 that his line management was to change from Peter Ye to Alid Kambwili by way of email addressed to all those affected by the change.

[52]The claimant resigned by email on 14 October 2016 addressed to Peter Ye. In the concluding paragraph of that email, which was part of an exchange of emails about a holiday request, the claimant said: “As a separate issue, I would like to seize this opportunity to tender my resignation of my position as senior lecturer at Coventry University London campus with immediate effect commencing today and serve my three month notice with 14 January 2017 as my last day.”

[53]The claimant then forwarded that email to Jo Cullinane and Andreas Nabor, with copies to Joanne Oguzie and Stephanie Edwards, saying: “As you can see below in my email message to Dr Peter Ye who is my current line manager, I have tendered my resignation of my position as senior lecturer at Coventry University London campus with immediate effect commencing today and to serve my three month notice with 14 January 2017 as my last day. Thank you for the opportunity to work with CUA as this has been a rewarding experience.”

[54]The next day, the claimant sought to withdraw his resignation saying: “I’m not sure who to address this letter to whether to management or HR. As a result, I have decided to address this to all parties. Please accept my apologies for any inconvenience caused. “As my letter and notice of resignation has not yet been accepted by Coventry University London campus, I am writing to withdraw my letter of resignation with immediate effect as that was written in a state of panic and distress that was greatly amplified by my stress induced asthma disability condition and the fact that we are still in the process of normalising relations and establishing trust again after my complaint, grievances, grievance appeals, HR investigatory meetings and the disciplinary charges against me which were eventually dropped. I regret any inconvenience caused by the letter the resignation I emailed to you.”

[55]He did go on to raise a number of “salient issues” which he wished to be addressed by the recipients.

[56]The respondent did not permit the claimant to withdraw his resignation. The claimant submitted a grievance on 25 November 2016, in which the desired outcomes included line management being changed back to Dr Peter Ye, the claimant’s reinstatement, adjustments in respect of his “stress-induced asthma disability condition”, and a preference to have his hours reduced to 80%. Joanne Oguzie responded in a lengthy letter on 1 December 2016, in short asserting that the grievance raised no new grounds and that no further decision would be taken. THE LAW Disability and Reasonable Adjustments

THE LAW

[57]Section 6 of the Equality Act 2010 (EA) defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. An effect of an impairment is long-term if it has lasted for or is likely to last for at least 12 months or is likely to last the rest of the affected person’s life. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is treated as continuing to have an effect if the effect is likely to recur. The effect of medication is to be disregarded when assessing the effects of an impairment.

[58]Pursuant to s20 EA, where, in particular, a provision, criterion or practice of the employer and/or a physical feature of the workplace, places a disabled person at a substantial disadvantage in comparison with persons who are not disabled then the employer is under a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. However, an employer does not contravene the duty to make reasonable adjustments if he did not know and could not reasonably have known that the employee was disabled and about the substantial disadvantage.

[59]Consideration of whether the duty arises will require asking the following (applying Environment Agency v Rowan

[2008] IRLR 20

(modified to apply to the EA):59.1 whether there is a provision, criterion or practice applied by or on behalf of an employer; or

59.2 whether there was a physical feature of premises occupied by the employer; or

59.3 whether there was a need for an auxiliary aid;

59.4 the identity of the non-disabled comparators (where appropriate); and

59.5 the nature and extent of the substantial disadvantage in relation to a relevant matter suffered by the employee. Burden of Proof

[60]Pursuant to s136 EA, if there are facts from which the Tribunal could decide in the absence of any other explanation that a person contravened the provision of the Act, the Tribunal must hold that the contravention occurred unless the employer can show to the contrary. The key question is why the treatment complained of occurred. A Tribunal must be alert to the fact that individuals will rarely admit to discriminatory behaviour event to themselves and draw whatever inferences are appropriate from secondary findings of fact (Igen Ltd v Wong

[2005] IRLR 258

). However, as observed in the case of Madarassy v Nomura International plc

[2007] IRLR 246

, it is not sufficient to show merely a difference in treatment and a difference in characteristic; there must be ‘something more’ to indicate a connection between the two.

[61]Regarding reasonable adjustments, the Tribunal must find the existence of a PCP and/or workplace feature, the consequential substantial disadvantage and facts from which a breach of the attendant duty could be found, before the burden of proof passes to the employer (see Project Management Institute v Latif

[2007] IRLR 579

). Constructive Dismissal

[62]Pursuant to s94 of the Employment Rights Act 1996 (ERA), an employee is entitled not to be unfairly dismissed by his employer. An employee is dismissed by his employer amongst other things if he terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct (s95(1)(c) ERA).

[63]To establish such a constructive dismissal, the employee must prove that the employer was in fundamental breach of contract, that he resigned in response to such a breach, and that he did not act prior to resignation in such a way as to affirm the contract (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

[64]In Malik v BCCI

[1997] IRLR 462

, the House of Lords confirmed that a term is implied into every employment contract that the employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The test is objective.

[65]A breach of the implied term of mutual trust and confidence is always such a fundamental breach (Woods v WM Car Services (Peterborough) Ltd

[1981] IRLR 347

[66]It is an implied term of any employment contract that the employer would provide and monitor for his employees, so far as is practicable, a working environment which is reasonably suitable for the performance by them of their work (Waltons and Morse v Dorrington

[1997] IRLR 488

[67]The repudiatory breach or breaches in question need not be the sole cause of the employee’s resignation provided they are an effective cause. Accordingly, if an employee leaves both in order to commence new employment and in response to a repudiatory breach, the existence of the concurrent reasons will not prevent a constructive dismissal arising (Jones v F Sirl & Son (Furnishers) Ltd

[1997] IRLR 493

[68]The breach will be an effective cause if the employee resigned in response, at least in part, to the fundamental breach by the employer (Nottinghamshire County Council v Meikle

[2004] IRLR 703

[69]At common law, an employee accepting a fundamental breach must resign without notice or otherwise will be taken to have affirmed the contract for the period of employment covered by the notice. Section 95(1)(c) ERA varies the common law contractual principles discussed above for the purposes of a statutory claim of unfair dismissal by giving an employee the right to resign on notice without being treated as having affirmed the contract. That said, post-resignation affirmation is capable of being considered under s95(1)(c) ERA (Cockram v Air Products plc

[2014] IRLR 672

). In that case, an employee who had given 7 months’ notice when the contract only required 3 months was taken to have affirmed the contract.

[70]Conduct which has been affirmed cannot be revived by a later last straw; the employee must show repudiatory conduct which entirely post-dates the earlier affirmation (Vairea v Reed Business Information UK Ltd [2017] ICR D9,

UKEAT/0177/15/BA

). Protected Disclosures

[71]Section 43A ERA(‘Meaning of 'protected disclosure’) provides: ‘In this Act a 'protected disclosure' means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any sections 43C to 43H.’

[72]Section 43B ERA (‘Disclosures qualifying for protection’) provides: ‘(1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, …’ 73 ‘Reasonable belief’ is to be considered in the personal circumstances of the individual concerned; therefore, where they have special skill or professional knowledge of the matters being disclosed the bar of reasonableness may be raised (Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

[74]Section 43C ERA (‘Disclosure to employer or other responsible person’) provides: ‘(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure– (a) to his employer,...’ Protection from Detriment

[75]Section 47B ERA provides: ‘(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (2) ... this section does not apply where –(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of Part X). …’

[76]A detriment will be established if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary (Northern Ireland)

[2003] IRLR 285

). Moreover, any protection afforded in the field of employment from unlawful detriment must necessarily be limited to detriments that have arisen in that field (para 34 of Shamoon).

[77]Section 48(2) ERA provides: ‘(2) On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.’

[78]Therefore, it is for the employee to prove on the balance of probabilities that she has made a protected disclosure and that she has suffered a detriment; if so, the employer then has to prove that the act in question was no more than trivially influenced by the protected disclosure (NHS Manchester v Fecitt

[2012] ICR 372

). Automatically Unfair Dismissal

[79]Section 103A ERA provides: ‘An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.’ CONCLUSIONS Constructive Dismissal

CONCLUSIONS

[80]The claimant relies on 11 allegations as constituting a fundamental breakdown of trust and confidence and/or a failure to protect his health and safety. Those allegations are set out in paragraphs numbered 1 to 11 in his grounds of claim. Allegation 1 - unnecessary delay to the claimant’s full-time contract.

[81]The claimant was not promised a permanent 100% contract in January 2015 but rather in March 2015. Whilst there was a short delay in providing him with the letter of confirmation, he had been reassured of the position orally. Moreover, the change was verified in writing in good time, and did not objectively materially affect trust and confidence or damage the claimant’s health and safety. In any event, by continuing to work under the vary contract after written confirmation been received, the claimant affirmed the new contract. Allegation 2 - hostility and miscommunication by management.

[82]We were taken to little if any evidence of communications between the claimant and Kenny Tang, and certainly saw no evidence of hostility and miscommunication from Kenny Tang. We examined a great deal of the communication between the claimant and Peter Ye and found it to be entirely appropriate. These communications could not objectively contribute to a fundamental breach of contract. Allegation 3 - targeting through de-skilling.

[83]The claimant was treated in no way differently to his colleagues regarding modules. The claimant was treated entirely reasonably. He took no objection when programmed to teach only one module. It could not reasonably be said that the claimant was being de-skilled, and the respondent’s actions in this regard could not objectively contribute to a fundamental breach of contract. Allegation 4 - being hounded by Andreas Nabor to undertake a project

[84]Andreas Nabor gave the claimant a reasonable management instruction to complete a competitor analysis. The claimant’s reaction was unreasonable and Andreas Nabor’s response was entirely appropriate. The respondent’s behaviour in this regard could not objectively contribute to a fundamental breach of contract. Allegation 5 - being targeted by Peter Ye in respect of the BA IFA

[85]The tasking by Peter Ye of the claimant to participate in the review of 310LON was at worst a misunderstanding, although it appears to have been a reasonable management instruction in any event. In any event, the matter was resolved quickly and objectively had no effect on the claimant’s trust and confidence or health and safety. Allegation 6 - being falsely accused of not wanting to work with colleagues.

[86]The suggestion that the claimant did not want to work with others was again, at worst, a misunderstanding and one that was not entirely unreasonable in the context of what the claimant was saying at the time. Again, the respondent’s actions could not objectively have had any material effect on trust and confidence or health and safety. Allegation 7 - being targeted in respect of module leadership and teaching responsibilities.

[87]All of the respondent’s decision in respect of the claimant’s timetable were on any analysis an exercise of reasonable management and objectively innocuous. Moreover, there is no evidence that he was treated any differently to his colleagues. Allegation 8 - unjustified disciplinary charges.

[88]The disciplinary charges brought by Andreas Nabor against the claimant were entirely justified. Andreas Nabor was entitled as a manager to conclude that enough was enough in respect of the claimant’s attitude to reasonable management instructions. There were reasonable grounds to commence an investigation into the charges in question. The charges were investigated fairly and did not ultimately lead to any sanction against the claimant (albeit that HR remained of the opinion that a disciplinary hearing should have taken place). Allegation 9 - manipulation of the claimant’s workload by Peter Ye and Alid Kambwili, which intensified after 21 March 2016.

[89]We find no evidence of any “manipulation” of the claimant’s workload, as opposed to reasonable management of the claimant in line with business and operational needs. There was no discernible change in the claimant’s treatment by his colleagues after his email of 21 March 2016. Allegation 10 - refusal to reduce the claimant hours to 80%.

[90]The respondent was a “lean organisation”, with no flexibility in its staffing levels. Even the claimant excepts in his grounds of claim that, at the time the claimant sought to reduce his hours to 80%, the respondent was unable to allow his request because of staff shortages. We find that the refusal was for genuine business and operational needs. Allegation 11 - making changes to the claimant’s management and duties without adequate warning.

[91]Whilst Andreas Nabor accepted in evidence that perhaps he could have notified the claimant individually of the changes in question, his failure to do so was, in our judgement, entirely innocuous.

[92]In summary, to the extent that we have found above that any of the alleged acts occurred, they objectively did not amount (either individually or cumulatively) to a material breach of trust and confidence or health and safety. Therefore, whilst we accept that the claimant probably did resign in response to those matters he has listed in his grounds of complaint, they did not constitute a fundamental breach of contract and so the claimant was not constructively dismissed. Public interest disclosure

[93]We accept that the claimant email of 21 March 2016 disclosed information which the claimant genuinely believed tended to show that Peter Ye and Alid Kambwili had acted fraudulently in their application for employment with the respondent and which he genuinely believed it was in the public interest to disclose. These were, we find, reasonable beliefs. We also consider that the disclosure was made in bad faith; the motivation for making those disclosures was to gain an advantage over and/or to exact revenge against those individuals. However, that would be a matter which went only to remedy if necessary.

[94]As it is, there was absolutely no detrimental treatment of the claimant as a result of his sending that email to the respondent. Instead, the respondent properly investigated his concerns and satisfied itself that they were ultimately groundless. We are satisfied that that was, as far as anybody in the respondent organisation was concerned, the end of it. Reasonable adjustments

[95]Throughout his employment with the respondent, the claimant had asthma, which we accept was a physical impairment.

[96]He was taken to the emergency department of Queen Elizabeth Hospital by ambulance on 26 August 2012, having suffered an asthma attack after running out of his inhaler. His peak flow was recorded at 250 and saturations at 97%. Having been prescribed a salbutamol inhaler, prednisolone and amoxicillin, the claimant was discharged with peak flows of 600.

[97]The claimant attended the emergency department of the Royal Free Hospital on 18 June 2016 in circumstances as described above.

[98]On each of these occasions we find that the effect on the claimant of his asthma was such that he had significant difficulty breathing and experienced associated restrictions on physical activities such as to amount to a significant adverse effect on the claimant’s abilities to carry out normal day-to-day activities.

[99]We accept, on the strength of the report by Dr Makker dated 19 October 2017 amongst other things, that these adverse effects would be present regularly if not continuously if the claimant did not routinely use his inhaler. In any event, it appears likely to us that the asthma attack in 2012 was likely at some point to recur. It follows that the significant adverse effects suffered by the claimant were long-term as defined by the Equality Act 2010.

[100]Hence, we accept that the claimant was disabled throughout his employment with the respondent. However, the respondent was not aware nor could it reasonably have become aware of the claimant’s disability until 20 July 2016. To that point, the claimant had resolved to keep the effects of his asthma private.

[101]We are not satisfied that, in the circumstances as found above, there was any PCP applied to the claimant of failing to communicate with him individually. However, even if there was, we do not accept that it put the claimant to any substantial disadvantage compared to an employee not having asthma. Even if the claimant did in fact suffer any substantial comparative disadvantage, we do not accept that the respondent was or could reasonably have been aware of it.

[102]It is not in dispute that the respondent applied its disciplinary policy to the claimant between 8 June and 14 September 2016. However, again we do not accept that the claimant was thereby placed at any substantial comparative disadvantage or that the respondent knew or could reasonably have known that he might be. In any event, we reject the suggestion that it would have been a reasonable adjustment not to investigate and address the charges in question, which arose from a manifest and inexcusable failure on the part of the claimant to comply with reasonable management instructions.

CONCLUSIONS

[1]The judgment of the Tribunal sent to the parties on 2 May 2018 is confirmed. The claimant’s application for costs is refused.

CONCLUSIONS

[2]The claim was dismissed in its entirety after a 6-day hearing and a further day deliberating in Chambers by a reasoned judgment sent to the parties on 2 May 2018.

[3]On 15 May 2018, the claimant applied in writing for the Tribunal to reconsider its judgment on the grounds, summarised in his opening paragraph as errors in the proceedings, errors of fact and conflicting evidence [sic] in the findings of the Tribunal. Amongst those matters alleged to be errors in proceedings was the Tribunal’s decision to substitute its own list of issues to be decided in place of the list of issues he understood had been agreed between the parties.

[4]It was solely on that ground that I notified the parties on 26 June 2018 of my provisional decision to grant the application. I indicated, however, that I expected the claimant to address in writing (and/or orally if a reconsideration hearing is listed) how the Tribunal’s own list of issues failed to incorporate in its entirety the claimant’s pleaded case and how his evidence and submissions would have differed had he been made expressly aware of the list of issues that the Tribunal intended to use. I refused permission on all other grounds because I was satisfied that they gave rise to no reasonable prospect that the judgment would be varied or revoked. I ordered that the respondent notify the Tribunal by 13 July 2018, with reasons, if it did not think that the judgment should be reconsidered, and both parties to indicate by that date whether the application could be determined without a hearing.

[5]As it was, the Respondent replied on 11 July 2018, submitting that the surviving ground had no merit but agreeing that an oral hearing was necessary to identify which of the claimant’s complaints he says had not been determined by the Tribunal and how the Tribunal’s approach had made a material difference in the outcome of the case. The claimant replied on 13 July 2018, also submitting that an oral hearing was necessary, so that he could set out orally ‘how the Tribunal’s substitution of its own list of issues failed to incorporate in its entirety the Claimant’s pleaded case and how his evidence and submissions would have differed had he been made expressly aware of the list of issues that the Tribunal intended to use.’ He also asked me to reconsider what he described as my ‘provisional view’ his other grounds gave rise to no reasonable prospect that the judgment would be varied or revoked.

[6]In the circumstances, I directed that an oral hearing be listed to consider the single ground which I had provisionally considered had reasonable prospects of success. As to the other grounds, I was satisfied that indeed they gave rise to no reasonable prospect that the judgment would be varied or revoked. To the extent that that had not been readily apparent already, I made the position clear at the beginning of the oral hearing.

[7]On 4 September 2018, the claimant applied for additional documents to be relied upon at the reconsideration hearing. These comprised: the respondent’s updated on-line profile for Alid Kambwili; and excerpts from the respondent’s audited accounts. I indicated on 12 September 2018 my doubts that either of the documents attached to the Claimant’s application dated 4 September 2018 would assist the Tribunal in deciding whether to confirm, vary or revoke its judgment. Nevertheless, not wishing to prejudge any submission the Claimant might make in respect of the webpage I gave him permission to rely on that document. However, the Respondent’s published accounts were manifestly irrelevant to any issue in the case, and permission to rely on that document was refused.

[8]The claimant then requested on 24 September 2018 permission to rely on further documents regarding Mr Kambwili. That application was dealt with at the beginning of the oral hearing and, the respondent raising no objection, permission was given for the Appellant to rely on the documents, which related to Mr Kambwili’s ACCA membership certificate.

[9]I did, however, bear in mind that we would have to apply the principles in Ladd v Marshall

[1954] 3 All ER 745

if the Appellant ultimately sought to rely on these documents as new evidence upon which the Tribunal ought to vary or revoke its judgment. As it was, no relevance was ever shown of these documents to the one permitted ground for reconsideration.

[10]The matter was initially listed for one day, which appeared to me to be more than sufficient to deal fairly and proportionately with the matter. The claimant, however, requested on 13 August 2018 that two days were allocated. The respondent did not object and so I directed on 31 August 2018 that the hearing be extended by one day, that day to be reserved for deliberation in Chambers and the handing down of judgment if time allowed. As it was, despite active case management, the parties’ presentation of their cases continued well into the second day and so this decision was necessarily reserved.

[11]In addition to the additional documentation relied upon by the Claimant as mentioned above, placed before the Tribunal were the original trial bundle of approximately 1,000 pages and further bundles from both claimant and respondent prepared for the reconsideration hearing. We took into account all of the material to which we were referred whether or not expressly mentioned in this judgment. The respondent prepared brief written submissions and the claimant lengthy written submissions in response. Again, we took the parties’ cases as developed, both orally in writing, before us into account whether or not explicitly referred to below. RELEVANT RULES AND LAW Reconsideration

[12]The provisions of the Employment Tribunals Rules of Procedure 2013 relevant to reconsideration of judgments are as follows: 71 Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72 Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.

(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. 73 Reconsideration by the Tribunal on its own initiative Where the Tribunal proposes to reconsider a decision on its own initiative, it shall inform the parties of the reasons why the decision is being reconsidered and the decision shall be reconsidered in accordance with rule 72(2) (as if an application had been made and not refused). The Ambit of the Employment Tribunal

[13]It is the function of the Tribunal to decide a dispute between the parties on the basis of their pleaded cases. As Langstaff P said in Chandhok v Tirkey

UKEAT/0190/14/KN

at paragraphs 16-18: ’16. The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a' Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1. ‘17. I readily accept that Tribunals should provide straightforward, accessible and readily understandable fora in which disputes can be resolved speedily, effectively and with a minimum of complication. They were not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before Employment Tribunals does not mean that those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute. ‘18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.’

[14]It is not necessary to resolve every disputed fact, only those necessary to decide the claimant’s complaints.

[15]The use of lists of issues was considered by Mummery LJ at paragraph 31 of Parekh v London Borough of Brent

[2012] EWCA Civ 1630

: ‘A list of issues is a useful case management tool developed by the tribunal to bring some semblance of order, structure and clarity to proceedings in which the requirements of formal pleadings are minimal. The list is usually the agreed outcome of discussions between the parties or their representatives and the employment judge. If the list of issues is agreed, then that will, as a general rule, limit the issues at the substantive hearing to those in the list: see Land Rover v. Short Appeal No.

UKEAT/0496/10/RN

(6 October 2011) at [30] to [33]. As the ET that conducts the hearing is bound to ensure that the case is clearly and efficiently presented, it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence: see Price v. Surrey CC Appeal No

UKEAT/0450/10/SM

(27 October 2011) at [23]. As was recognised in Hart v. English Heritage

[2006] ICR 555

at [31]- [35] case management decisions are not final decisions. They can therefore be revisited and reconsidered, for example if there is a material change of circumstances. The power to do that may not be often exercised, but it is a necessary power in the interests of effectiveness. It also avoids endless appeals, with potential additional costs and delays.’ THE PLEADED CASE AND THE LIST OF ISSUES

[16]The claimant’s ET1 indicated complaints of unfair dismissal and disability discrimination. Attached to the ET1 was a 4-page document entitled ‘Constructive Dismissal Case and Claim’. It gave ‘instances of targeting amounting to constructive dismissal’ in 11 numbered paragraphs before going on to describe how that treatment made him feel, in particular ‘aggravating [his] known disability health condition’ (asthma) and drove him to resign. One of those paragraphs alleged mistreatment of the claimant because he ‘acted as a whistleblower’; therefore, his claim clearly alleged protected disclosure detriment/dismissal.

[17]At a preliminary hearing before Employment Judge Pritchard on 21 August 2017, the disability discrimination claim was identified as a complaint of failure to make reasonable adjustments. Judge Pritchard found the claimant’s assertion at that hearing that complaining about stress was a further protected disclosure had not been specifically pleaded and was too vague to be the subject of an amendment even if such an application was pursued. In the event, no application was made before Judge Pritchard or us.

[18]On 10 November 2017, the respondent requested further particulars of the complaints of constructive dismissal and protected interest disclosure complaints. In an email dated 5 December 2017, the Claimant refused to provide further details. However, he did give his responses of the first day of the final hearing, and they can be found at paragraphs 2.1 to 2.7 of our judgment, within the list of issues we ourselves identified. We further clarified his reasonable adjustments claim, and his responses were faithfully recorded in paragraphs 2.8 to 2.13.

[19]The respondent drafted a list of issues dated 15 August 2017 for the claimant’s consideration. His amendment to that draft is dated 12 September 2017. It is fair to observe that the language he used is less neutral than that used in the respondent’s draft and that the claimant often conflated a number of issues into one. The ‘factual issues’ are significantly more detailed than the pleaded case but in any event often comprised compound questions and/or assertions.

[20]It was apparent to us, as we recorded in our judgment, that Ms Dickenson acquiesced to the claimant’s list rather than embracing it as an agreed document. We did not press the point at the time but realised in deliberations that the claimant’s draft was unworkable. We considered it most expeditious to formulate our own list of issues from the pleaded cases as disclosed from the claim, the response, the reply to the request for further particulars, and the claimant’s clarification to us of his claims.

[21]We were satisfied at the time that our list fully encompassed the pleaded claim and raised no matters about which the claimant had not had an opportunity to adduce evidence, challenge the respondent or make submissions to us. However, in light of the present application, we were eager at the reconsideration hearing to hear and consider the claimant’s views on the matter.

[22]Nevertheless, despite giving the claimant an opportunity to submit written arguments in advance and extending the oral hearing into the second day so that the claimant could fully present his case and respond to the Respondent’s arguments, he was unable to identify any aspect of his pleaded claim which was not dealt with by our list of issues and was unable to identify anything he would have done differently at the hearing had we made him aware of the list of issues we intended to adopt, save that he would have objected and, if overruled, would have taken more time and emphasised his own case more orally and in writing. Even then, the claimant alleged that he had only been given 10 minutes in the final hearing to make closing submissions, whereas he had in fact taken 30 minutes and could have had more time; he had not been guillotined by us. Neither had the claimant been dissuaded for making written submissions to speak to in closing. The claimant did not suggest that he would have applied to amend his case.

[23]In short, we are entirely satisfied that our own list of issues captures entirely the pleaded case, and that it was appropriate to substitute that list in order to deal efficiently with the case. The claimant has told us nothing which would have persuaded us to use his draft had we spend time deciding the matter at the hearing. We are further satisfied that, had we notified the parties at the beginning of the final hearing that we had substituted that list for the draft proposed by the claimant, the case would have been presented no differently by either party. In the circumstances, no material unfairness arose, no material issue was undecided, and our judgment was unaffected by our approach to the list of issues. Consequently, we confirm our original judgment.

[24]In any event, we considered what difference it would have made to our findings had we used the claimant’s draft list of issues.

[25]The claimant spent most of the hearing in effect making submissions on those issues. However, he gave no credible explanation for why he could not and did not make those submissions at the original hearing. Frankly, he was disingenuous about the amount of time he was given to close his case. The claimant’s submissions amounted to mere disagreement with our decision and an attempt to reargue the entire case. It would not have been in the interests of justice to vary or revoke our judgment on the basis of those submissions even if they had merit.

[26]As it was, Ms Hodgetts made concise yet comprehensive submissions to the effect that the issues relied upon by the claimant had been clearly addressed in our judgment or necessarily would be decided against him, given our findings of fact.

[27]We agree entirely with her overarching submission, and by and large with her individual submissions in respect of each of the claimant’s draft issues.

[28]To illustrate the proposition that the bulk of the claimant’s issues had in fact been decided in our judgment, in respect of the claimant’s issues under the heading ‘Constructive Unfair Dismissal’:28.1 Issue 1 (‘Was the claimant forced to leave his job against his will because of the respondent's relentless conduct of constantly making unreasonable changes to how the claimant works that adversely affected the health and aggravated the disability of the claimant?’), as explained in the application and claimant’s submissions, is subsumed in allegations 3, 7 and 11 of the particulars of claim and the complaint of failure to make reasonable adjustments particularised at the beginning of the original hearing and is therefore addressed in paragraphs 83, 87, 91 92 and 100-102 of our judgment.

28.2 Issues 2 (‘Was the claimant forced to leave his job against his will because of the respondent's relentless conduct of constantly letting other employees bully and harass the claimant that adversely affected the health and aggravated the disability of the claimant?’) and 7 (‘Was the claimant forced to leave his job against his will because the because of the repeated failure of the respondent to provide a safe and healthy environment for the claimant to work?’) as similarly explained in the application and claimant’s submissions, comprise no specific allegations beyond allegations 1 to 11 of the particulars of claim and his reasonable adjustments claim and is therefore addressed entirely in paragraphs 81-92 and 100-102 of our judgment.

28.3 Issue 3 (‘Was the claimant forced to leave his job against his will because of the respondent's constant targeting of the claimant in response to the claimant exposing wrongdoing and defending fellow employees' rights in the workplace?’) goes further than the pleaded protected disclosure, which was limited to his email of 21 March 2016, and no permission had been sought or given to rely on further protected disclosures. The consequences of the pleaded disclosure and the alleged increase in bullying are subsumed in allegations 6-11 and are addressed in paragraphs 86-94 of our judgment.

28.4 Issues 4 (‘Was the claimant forced to leave his job against his will because of the respondent's relentless conduct of failing to recognise and discriminate against his disability that adversely affected the health and aggravated the disability of the claimant?’), and 5 (‘Was the claimant forced to leave his job against his will because the because of the respondent's relentless conduct of failing to make the required reasonable work adjustments that adversely affected the health and aggravated the disability of the claimant?’) are subsumed in his complaint of failure to make reasonable adjustments particularised at the beginning of the original hearing and is therefore addressed in paragraphs 100-102 of our judgment.

28.5 Issue 6 (‘Was the claimant forced to leave his job against his will because the because of the respondent’s relentless conduct of constantly failing to adhere to good communication practice as requested by the respondent?) is subsumed in allegation 11 and is addressed in paragraphs 91-92 of our judgment.

[29]Similarly dealt with in our judgment are the following of the claimant’s draft issues, for the reasons given by Ms Hodgetts in her written submissions:29.1 Issues 1, 3 and 4 under the heading ‘Disability’.

29.2 All of the issues under the heading ‘Reasonable Adjustments’.

29.3 Issues 1, 3 and 4 under the heading ‘Protected Disclosure Detriment’. Indeed, we accepted that the claimant genuinely and reasonably believed that it was in the public interest to make his disclosure by email on 21 March 2016.

29.4 All of the issues under the heading ‘Unfair treatment after whistleblowing by the claimant’.

29.5 All of the issues under the heading ‘Factual Issues’ save for 8-14, 16-17, 20, and 42.

[30]As for the proposition that the rest of the claimant’s issues would necessarily have been decided against him, given the Tribunal’s findings of fact, we give by way of example the following draft issues under the heading ‘Disability’:30.1 Issue 2 (‘Why did the Respondent not implement the required work adjustments when the Claimant specifically informed Respondent that the condition was having a substantial, adverse effect on the Claimant's ability to carry out day-to-day activities?’) is explained in the application as relating to adjustments being required to his teaching of M040. This goes beyond the case as pleaded and clarified both before Judge Pritchard and at the outset of our hearing. Nevertheless, our findings on PCP, disadvantage and knowledge of disadvantage at paragraphs 100 and 101 of our judgment are fatal to this issue.

30.2 Issue 5 (‘Why was there undue protracted and prolongment of the dealing and resolution of the grievances filed by the Claimant which only worsened his health condition and aggravated his disability?’) again concerns an unpleaded PCP: delay in the grievance procedure. Nevertheless, given our finding that the claimant confirmed on 11 March 2016 that he wanted his complaint to be treated as a formal grievance (paragraph 33) and that he received the outcome on 5 May 2016 (paragraph 40), with Easter and the May Bank Holiday intervening, we would have found this to have been sufficiently prompt and rejected any complaint of delay. and under the heading ‘Protected Disclosure Detriment’:

30.3 Issue 2 (‘Did the Claimant reasonably believe that the disclosure was made in the public interest to assert a protected employment right to health and safety?’) goes beyond the pleaded case without permission having been sought or granted to amend. In any event, our findings at paragraphs 81-92 about the respondent’s alleged mistreatment of the claimant and 94 about the respondent’s response to the claimant’s disclosure would be fatal to this allegation.

[31]Issues 8 to 14 under the heading ‘Factual Issues’ concern alleged failures on the respondent’s part to investigate complaints by the claimant. None of these alleged failures were pleaded as causing or contributing to a fundamental breach of contract by the respondent. The allegations about what was said to Usha Mistry were unsubstantiated, and we would not have simply taken the claimant’s unsupported evidence; we found him not to be an entirely reliable witness (see for instance paragraph 19). In any event, we considered the email in which those complaints were made at paragraph 23 of our judgment and found that Andreas Nabor had initiated an informal investigation but took it no further because the claimant did not want to raise a formal grievance. Had we been required to, we would have found that the respondent did not thereby act in a way which could contribute to a breach of contract or from which it could be inferred that the pleaded case had been made out.

[32]Issues 16 and 17 again were not pleaded as causing or contributing to a fundamental breach of contract by the respondent. Indeed, issue 16 concerns the treatment of others. The claimant did not at that time wish to make a formal grievance (paragraph 23). As it is, the claimant did not resign until a considerable period of time afterwards, having had a formal grievance meeting on 23 March 2016 at which he could have raised any matter still playing on his mind. We found in any event no evidence that the claimant had been bullied (paragraph 27). Again, we would if necessary have found that the respondent did not act in a way which could contribute to a breach of contract or from which it could be inferred that the pleaded case had been made out.

[33]Issue 20 yet again was not part of the claimant’s pleaded case. It alleges a failure on the part of the respondent to provide the claimant with sufficient resources. As is clear from our findings of fact, we found no evidence of inappropriate management of the claimant (in particular, see paragraphs 12, 17, 19, 23, 27, 29, 31, 32, 33, 35, 43, 46, 47 and 50). Indeed, we found in paragraph 31 that the claimant only complained about pressure of work after Peter Ye had told him that attending the open day of 23 March 2016 was a duty, with which the claimant did not wish to comply. Therefore, we would if necessary have found that the respondent did not act in a way which could contribute to a breach of contract or from which it could be inferred that the pleaded case had been made out. The respondent’s lack of knowledge would have been fatal to any complaint that the allegation was one of a failure to make reasonable adjustments, although we would again observe that it was not part of the claim which was clarified with the agreement of the parties at the outset of our hearing, assisted by Judge Pritchard’s note of the hearing before him.

[34]Paragraph 42 alleges a deterioration in the claimant’s health and the adoption of coping mechanisms both while and after working for the respondent, as a result of alleged bullying by the respondent. We did not find any bullying of the claimant or other behaviour which might have caused or contributed to a fundamental breach of contract by the respondent. We also found that the respondent lacked knowledge of disability until 20 July 2016 or substantial disadvantage at any material time. Therefore, findings in respect of the claimant’s health and behaviour as alleged would have been immaterial. We did in any event accept that the claimant attended Accident and Emergency at the Royal Free Hospital on 18 June 2016.

[35]In his application, the claimant asserts that a further issue (issue 43) was agreed at the outset of the hearing. We disagree and note that it concerns unpleaded matters. Evidence was in any event heard about Andreas Nabor being provided with a copy of the claimant’s occupational health report, and found at paragraph 48 that the claimant agreed for his health situation to be discussed with Andreas Nabor. We found no evidence of opportunism on his or any other individual’s part.

[36]In conclusion, we are satisfied that, even if we had adopted the claimant’s draft list of issues and even if we had had the benefit of the submissions he made before and at the reconsideration hearing, our decision on his complaints would have been the same, and we would have confirmed our judgment.

[37]In the course of submissions, it was, however, agreed that the Tribunal had made two immaterial errors which we would correct.37.1 First, we had mistakenly found in paragraph 22 that Peter Ye had given the lecturing hours for module M040 to Albert de Jong, whereas the hours had in fact been given to Alid Kambwili. The error was immaterial; the material finding was that the hours had been given to someone else in order to keep the claimant’s total teaching hours within limits, and that this had been the practice of the Department that module leadership and portfolios were changed occasionally, not just for the claimant.

37.2 Second, we had recorded at paragraph 41 that the claimant had indicated that he considered himself disabled in an email on 22 July 2016, whereas it was agreed that the email had in fact been sent on 22 June 2016. This was a typographical error which again had no material bearing on our conclusions. We had accepted that the claimant told Joanne Oguzie on 23 June that stress triggered his asthma and that she had urged him to attend occupational health. However, we concluded that the respondent only had actual or constructive knowledge that the claimant was disabled on 20 July 2016 when occupational health wrote its report, because the claimant until then had resolved to keep the effects of his asthma private.

[38]Consequentially, I shall issue a certificate of correction and corrected judgment. APPLICATION FOR COSTS

[39]At the end of the reconsideration hearing, the claimant intimated an application for costs. In short, his grounds were that the respondent had concealed evidence and misled the tribunal, had behaved prejudicially, and had ruined the claimant’s reputation (thus causing damage to his academic career and potential political career). He alleged that the respondent had committed perjury and obstructed the course of justice.

[40]The Tribunal did not accept that the respondent was guilty of any of the claimant’s accusations. Instead, the respondent had quite properly responded to and resisted an application for reconsideration and had behaved proportionately and reasonably in doing so. Similarly, we were satisfied that the respondent had behaved reasonably in defending the claim and in its conduct of the case. In each case, of course, the respondent had been the successful party.

[41]In conclusion, the claimant has established no proper grounds to make any order for costs and the Tribunal refuses to do so. 10 January 2019

[1]By emails dated 27 January and 4 February 2019, the Claimant submitted correspondence in respect of a judgment dated 10 January 2019 on reconsideration of a judgment sent to the parties on 2 May 2018.

[2]Neither correspondence included an explicit application for further reconsideration. However, both seek to criticise management of the hearing, the findings of the Tribunal on reconsideration and the Tribunal’s refusal of the claimant’s oral application for costs. I have decided on some reflection and in the circumstances to treat the correspondence as together constituting an application for reconsideration of the judgment on reconsideration.

[3]Unfortunately, the applications make no attempt to explain clearly why reconsideration would be necessary in the interests of justice, but mainly comprise disagreement with the Tribunal’s findings and attempts to reargue the case. The Claimant has no reasonable prospect of persuading the Tribunal that it would be in the interests of justice to vary or revoke its judgment on those grounds.

[4]The application does additionally suggest that the Tribunal was biased against the claimant and failed to make allowances for his health and status as a litigant-inperson. This is a gross misrepresentation of the way in which the claimant was treated. Instead, he was treated fairly and with courtesy, but repeatedly refused to follow reasonable directions, wasting much of the generous time given for the reconsideration hearing. Again, I find that the Claimant has no reasonable prospect of persuading the Tribunal that it would be in the interests of justice to vary or revoke its judgment on that ground. Case Number: 3200531/2017

[5]The application also asserts that the behaviour of the respondent and its witnesses formed proper grounds for the claimant’s application for costs. However, the Tribunal was entirely satisfied, for the reasons given in the judgment on reconsideration, that no order should be made in the claimant’s favour and disagreed with the claimant’s description of the respondent’s behaviour. The present application adds nothing to the claimant’s application for costs but instead merely repeats the allegations rejected by the Tribunal. Once again, I find that the Claimant has no reasonable prospect of persuading the Tribunal that it would be in the interests of justice to vary or revoke its judgment on that ground.

[6]The application is therefore refused on the grounds that there are no reasonable prospects of the judgment being varied or revoked.