Mr N H Hood v London Underground Ltd: 3201195/2019 and Others

EMPLOYMENT TRIBUNALS

Case No 3201195/2019

Between

Mr N H HoodClaimant

London Underground LtdRespondent

Before

Employment Judge J Jones

Members

Ms M Legg

Dr J Ukemenam

In person for claimant

Ms J Thomas (instructed by Counsel) for respondent

Date 18 February 2025

JUDGMENT

[1]The Claimant succeeds in one complaint of harassment.

[2]All other complaints of disability discrimination fail and are dismissed.

[3]The Claimant is entitled to a remedy for his successful complaint. The Tribunal will list a one-day remedy hearing and the parties will be notified of the date.

[4]The parties are to notify the Tribunal in writing by 19 March whether the remedy has been resolved between them or whether the remedy hearing is required.

REASONS

[1]The Tribunal will set out in this document the details of the hearing, the facts that it found from the evidence in the hearing and the reasons why it came to its decision. These reasons are split into different sections with headings so that it is clear and easy to understand. The Tribunal will set out the findings of fact and the relevant law and will give its decision on each of the matters in the list of issues. It is our intention to make clear how we came to our judgment in this Disability

[2]At paragraph 13 of its Response to the Claimant’s first claim the Respondent stated that ‘The Respondent does not admit that the Claimant is disabled for the purposes of the Equality Act 2010 (“EqA”). The Respondent seeks further and better particulars both of the Claimant’s alleged disability of his Dyslexia. In particular, the Respondent seeks further and better particulars of the effect that any such disability has on the Claimant’s ability to carry out day to day activities and how long the condition has lasted or is likely to last’. The Response to the Claim was submitted to the Tribunal on 11 June 2019.

[3]At a preliminary hearing conducted by EJ Massarella on 28 October 2019, the Claimant was ordered to produce his medical documents to the Respondent. By the time of the next preliminary hearing on 15 June 2020, the Respondent confirmed that they accepted that the Claimant is a disabled person for the purposes of the Equality Act 2010, which is noted at paragraph 20.3 of the Judge’s minutes of that hearing, as follows: ‘The Respondent accepts the Claimant had specific learning difficulties, including dyslexia, at all material times, and that this is capable of amounting to a ‘mental impairment’ as defined under s.6 EqA. The Respondent accepts that the Claimant was a disabled person at the material time and this amounts to a disability for the purposes of s.6 EqA. It does not accept that those individuals dealing with the Claimant as alleged had knowledge that the Claimant was disabled.’

[4]At the start of this final hearing, the Claimant applied for EJ Jones to recuse herself. The reason for this application was that he believed that he had not had a fair hearing at the preliminary hearing on 1 November. In support of his application for the recusal, he contended that EJ Jones showed bias against him when she refused to grant witness orders summoning the Respondent’s individual solicitors/caseworkers to court, to give evidence about what he alleged was their knowledge of his status as a disabled person well before he issued his first claim and the Respondent’s decision in the face of that knowledge to dispute that he was disabled, when responding to his claim. He also applied again for the Respondent’s individual solicitors to be summoned to court to give evidence on the issue of their knowledge of his disability status.

[5]The Claimant stated that prior to issuing this case, he had frequent communication with the Respondent’s solicitors and because of that, they were aware that he was a disabled person for the purposes of the Equality Act. He strongly believed that their decision to deny his disabled status in the Respondent’s response was unprofessional conduct that they should have to answer to the SRA (Solicitor’s Regulation Authority) for, and for which they should also be summoned to court.

[6]The Respondent resisted the Claimant’s applications.

[7]The Tribunal considered both of the Claimant’s applications. In relation to the witness summons, the Tribunal noted that the Claimant had not appealed the original decision made at a preliminary hearing on 1 November 2023, to refuse to grant witness summons for the Respondent’s individual solicitors. The Claimant was raising this at the start of the final hearing, on 12 March 2024. The time to apply for a reconsideration of that decision or to appeal it had passed.

[8]The Tribunal understood that the Claimant wished to have the decision looked at again and that this was in effect, an application for reconsideration. The Claimant also wanted the Judge to be changed. The Tribunal considered the Claimant’s application. It explained to the Claimant that these are legal proceedings and that the Respondent is entitled to see evidence before it concedes disability status for the purposes of the Equality Act 2010. The Tribunal explained to the Claimant that the concept of being a ‘disabled person’ under the Equality Act is different from knowledge of conditions or illnesses. The Respondent’s legal team may well have engaged with him before he issued proceedings, to assist him with adjustments that he needed at work or with other interactions with his managers. That is completely different to the status of being a ‘disabled’ person for the purposes of the Equality Act which has a specific definition.

[9]In this Tribunal’s judgment, the Respondent broke no law and did not act unprofessionally when it took the position that it could not concede that the Claimant was disabled within the definition in the Equality Act. A person can have health conditions that require support at work but that does not automatically make them a disabled person under the Act. There was no professional misconduct in requiring the Claimant to provide medical evidence to confirm his status as a disabled person, within the meaning of the Equality Act. The Judge explained this to the Claimant.

[10]In this case, the Claimant’s disabled status has been conceded by the Respondent since June 2020. This was therefore not a live matter or issue in the final hearing.

[11]Also, the Claimant did not say to the Tribunal that there was any other relevant evidence that the Respondent’s individual named solicitors could give that related to the matters contained in the list if issues before this Tribunal.

[12]For those reasons, the Tribunal refused the Claimant’s application for witness orders for the Respondent’s solicitors, once again.

[13]In addition, EJ Jones refused to recuse herself from this case as the Claimant had given no reason for recusal. The Claimant had not shown that there was any evidence of bias against him from the Judge or that there was a real risk of bias. The hearing on 1 November 2023 had been convened because the Claimant had failed to carry out procedural steps in preparation for this final hearing and the Respondent had applied for his claim to be struck out. EJ Jones conducted that hearing and after hearing the Respondent’s application and submissions from both parties, she refused the Respondent’s application for strike out and made orders to enable both parties to complete preparation for the hearing. The Judge also refused the Claimant’s application for witness orders, as discussed above.

[14]The Claimant did not point to anything in the orders produced from that hearing or from that hearing itself that would require the Tribunal to consider whether there was real bias or whether there could even be perceived bias from the Judge to the Claimant or his case. in this Tribunal’s judgment, the refusal of an application to grant a witness order, when the matter the witnesses will be asked to give evidence on is not an issue in the case, is not evidence of bias by the Judge.

[15]The Claimant did not protest at the Tribunal’s ruling and the hearing continued. Background to this case

[16]The Claimant has brought three claims in the employment tribunal. Those three claims contain complaints of disability discrimination namely: harassment related to disability, direct disability discrimination, failure to make reasonable adjustments, indirect disability discrimination, and victimisation. The Respondent resisted all of the Claimant’s claims.

[17]The Tribunal conducted 8 case management hearings in this case. There was an agreed list of issues and an agreed bundle of documents.

[18]This final hearing in this case had previously been listed for hearing on 15– 18 September 2020. Unfortunately, following the Presidential Guidance on the conduct of proceedings during the Coronavirus/COVID-19 pandemic, the hearing had to be cancelled.

[19]The hearing was next listed on 8 days in June and July 2022. That hearing was postponed following the Claimant’s application on 22 April 2021, which was supported by medical information.

Law

[20]The next listing of this case for the final hearing was two weeks in January 2022. That hearing was postponed because of the Claimant’s continuing ill-health. The next listing for this final hearing was 1 – 14 November 2023. Unfortunately, that listing also did not go ahead because the hearing bundle and witness statements were not ready.

[21]As stated above, the Tribunal conducted a preliminary hearing on 1 November to address applications from both parties and to make necessary case management orders. The Respondent’s application was to strike out the case and the Claimant’s application was for postponement of the hearing. The Tribunal refused the Respondent’s application. The hearing had already been postponed before the hearing on 1 November began. The Tribunal made orders to ensure that the case would be ready for hearing at the next listing. The final hearing was listed for 12 – 26 March.

[22]We began the final hearing on 12 March. On the morning of 14 March, the Claimant wrote to the Tribunal to inform us that he was unwell because of a flare up of his IBS. He stated that he was unable to attend court and that he had only slept for 3 hours the previous night. The Tribunal wrote to the Claimant to let him know that the hearing would be adjourned and that he should let us know by 4pm that day, if he was unable to attend on 15 March. The Claimant wrote to the Tribunal that afternoon to confirm that he was able to attend on the following day. The Claimant also renewed his application to the Tribunal for witness orders for the Respondent’s solicitors. That application was not granted. There were no new circumstances that would support a renewed application.

[23]On 22 March the Claimant contacted the Tribunal to say that he would be late due to being unwell. On 20 March the Tribunal adjourned at approximately 1.20pm, once the Claimant had finished giving evidence, so that he could go home and prepare his questions for the Respondent’s witnesses. The Respondent began its case on the following day, 21 March. On Friday 22 March, during a break, the Claimant became ill. He told the Tribunal that he was unable to continue. He stated that he could not think straight in order to be able to continue cross examination and that he feared that his claim would be struck out. The Tribunal reassured the Claimant that there was no application for strike out before us that day and that we were prepared to adjourn the hearing to allow him to rest on the weekend. The hearing would reconvene on Monday morning. We adjourned at 1.15pm.

[24]The hearing resumed on Tuesday 26 March. The Claimant had also sent in an email overnight alleging that Mr Smith had lied to the Tribunal in the evidence he gave on 22 March. When the Claimant attended the hearing, he was asked whether there was any application that he wished to pursue arising from his letter. He said that he wanted the Tribunal to consider that Mr Smith had been dishonest. He pursued an application that Mr Smith’s evidence was untrue and that something had to be done about it. The Tribunal told the Claimant that no decisions will be made on any aspect of his case before we hear all the evidence. He was advised that he would get an opportunity to make submissions about each witness’ evidence at the end of the hearing and tell us what he wants us to think about it but we cannot make a decision that a witness is a liar or telling the truth, until we hear all the evidence.

[25]By 26 March, the evidence had not completed so we adjourned part-heard to 13 June. The hearing was also listed for 14 June so that both of the Respondent’s remaining witnesses could complete their evidence and make their submissions.

[26]At 8am on the morning of 13 June, the Claimant wrote to the Tribunal to complain about the way in which the hearing had been conducted in March and about the decisions made by EJ Jones at the preliminary hearing on 1 November 2023. The letter did not contain any application. The Claimant explained that he thought that EJ Jones ought to recuse herself and set out various complaints that he intended to make to the Judicial Complaints Office.

[27]The Tribunal heard from Respondent’s Counsel in her application to continue with the hearing. She submitted that as there was no clear application in the letter and as the Claimant did not say that he was unable to attend the hearing, the Tribunal should proceed with the hearing and hear the evidence of its remaining witnesses, Mr Stewart and Ms Henderson, so that they could be released. They had both been in court every day since the hearing began on 12 March. They had also had serious allegations of discrimination hanging over them since the Claimant brought his claim in 2019.

[28]The Tribunal also considered the Claimant’s letter, written that morning. The Tribunal decided that there was no application in the letter and the Claimant had not written that he could not come in to court. By this time, it was midmorning and there had been no further communication from the Claimant.

[29]The Tribunal decided that it was in the interests of justice and in keeping with the overriding objective to go ahead with the hearing, given the age of the case and of some of the complaints within it, the fact that the witnesses have both attended court every day since March, and that the Claimant had not said that he was unable to attend the hearing today.

[30]There was some confusion within the Tribunal’s admin team as to whether that day’s hearing was going to be by CVP or in person and the notices sent to the parties had not been totally clear. After it made the decision to proceed, the Tribunal wrote to the Claimant later in the morning, to inform him of its decision to start hearing evidence at 2pm that day. It informed him that it would be in person, and that he should attend court by 2pm, to ask the witnesses questions and put his case to them. The hearing had been in person since 12 March.

[31]The Claimant did not attend the hearing, did not enquire of the Tribunal office what was the outcome or response to his letter and did not reply to the Tribunal’s letter in time for the hearing. The Tribunal proceeded with the hearing. Ms Henderson and Mr Stewart both gave sworn evidence that afternoon. The Claimant wrote to the Tribunal in the early hours of the morning of 14 June to say that he could not attend court on the afternoon of the previous day, as the Tribunal requested, because he only received the letter at 3am. The Claimant had clearly not checked his emails during the day to find out what the Tribunal had done about his letter or what was happening with the hearing of his case.

[32]On 14 June, the Tribunal wrote to both parties, notifying them of the opportunity to send written submissions or a closing statement to the Tribunal by 4pm on 28 June. The parties were informed that the Tribunal intended to meet on 9 July to consider all the evidence, the witness evidence, and the law and reach a decision on each of the issues in the list of issues. The parties were also told that this written judgment and reasons would be sent to them soon after.

[33]The Tribunal received written submissions from the Respondent. The Claimant was given the opportunity to submit a closing statement but was also told that he did have to produce one. The Tribunal did not receive a closing statement or any other correspondence from the Claimant.

[34]The Tribunal met in chambers on 10 July and 1 August 2024. The Tribunal apologises to the parties for the delay in the production of this judgment and full reasons. This was due to the complexity of the matters in this case, delay in the full Tribunal finding a time to meet in chambers and the judge’s ill-health in the summer and autumn of 2024.

Evidence

[35]At the hearing, the Tribunal had the following evidence: 1. A bundle of documents of 2929 pages. 2. Written witness statements from: The Claimant; Ross Dearman, Recruitment Consultant in the Respondent’s high volume recruitment team; Wojciech Podjaski, Trains Manager and the Claimant’s former line manager from 2017; Sara Henderson, Train Operations Manager, Mr Podjaski’s line manager; Mr Lee Stewart, Head of Line Operations at the time he heard the Claimant’s grievance; Mr Dale Smith, Head of Line Operations on the Central Line at the time he heard the Claimant’s appeal against his grievance appeal. 3. Recordings of meetings done by the Claimant. Adjustments during the hearing

[36]In accordance with the advice set out in the Equal Treatment Bench Book and following the Claimant’s requests, the Tribunal made the following adjustments before and during the hearing in March to enable the Claimant to present his

[37]Prior to the final hearing, at a case management hearing on 8 June 2022, EJ Elgot granted the Claimant’s application to be allowed to record the proceedings. It was also agreed that Ms Thomas, Counsel for the Respondent would set out in writing the questions she proposed to ask the Claimant during cross-examination so that he would not be taken by surprise in the hearing. This was done as Ms Thomas prepared a schedule of questions/subject areas that she wanted to ask of the Claimant in his live evidence. We referred to the list of questions during the hearing and Ms Thomas did ask them. She also asked supplementary questions which arose from the Claimant’s answers, keeping to the same area of the written questions. The Tribunal did not order the Claimant to give written answers to those question. The Claimant did do some work on those prior to the hearing, but we had live evidence from him in answer to the Respondent’s questions.

[38]At the start of the hearing on 12 March, Counsel for the Respondent set out the order of her witnesses so that the Claimant would know who he should be prepared to ask questions of next. A rough timetable was agreed so that the Clamant would know what to expect.

[39]The Claimant indicated to the Tribunal that he had a tendency to go off on a tangent and that he wanted the Judge to bring him back to the point of discussion, if necessary. The Tribunal indicated that it was prepared to do so and to give the Claimant sufficient time to think. The Claimant was encouraged to ask if he needed more time. Based on what the Claimant told the court, EJ Jones told the Claimant that if he loses his train of thought, we will work together to assist him. The Tribunal also informed him that it had looked at the Equal Treatment Bench Book and were prepared to make adjustments for him throughout the hearing and to work with him to complete the evidence during the listing.

[40]The Claimant was told that court hearing days usually run from 10am to 4pm and that there would usually be an hour lunch break each day, and shorter breaks at mid-morning and mid-afternoon. In addition, EJ Jones informed the Claimant that he could ask for a break, if he needed one. He was also told that he could ask for Counsel’s questions to be repeated, if necessary or to be broken down into two or more questions. The Claimant was reminded of the points set out at paragraph 4.5 of the minutes and orders from EJ Park’s case management hearing on 26 February.

[41]When he was being cross-examined, the Clamant was provided with a paper and pen so that he could make notes or jot down any points he wanted to come back to, once his cross-examination had finished.

[42]At the hearing, the Claimant used his personal device to record the hearing. He was also advised that the proceedings were being recorded by HMCTS.

[43]We discussed the list of issues which were contained in the bundle at pages 1407 – 1414. The Tribunal went through the list of issues with the Claimant at the start of the hearing, before he began his evidence. EJ Jones discussed each aspect of the list of issues with him and especially when he was asking questions of the Respondent’s witnesses as it was important to make sure that he kept to the issues on which the Tribunal would have to make decisions.

[44]In conducting the hearing, assessing the evidence and making its judgment in this case, the Tribunal was aware of the Claimant’s disabilities. In his witness statement, the Claimant quoted the following from the Equal Treatment Bench Book on his SpLDs. “People with SpLDs will be concerned about how their behaviour might be perceived: inconsistencies could imply untruthfulness. Failure to grasp the point of a question could come across as evasive. Lack of eye contact could be misinterpreted as being ‘shifty’ and an over-loud voice might be regarded as aggressive. The overriding worry is that a loss of credibility occurs when they do not ‘perform’ as expected. Communication skills are often poor in people with SpLDs. They may miss the point, go off on an tangent, appear garrulous and imprecise or find that words fail them altogether so that they are unable to proceed. Despite their efforts they may only respond to the last part of questions or may unintentionally mislead the court through incorrect word usage”.

[45]The first day, 12 August was a reading day. The Tribunal began hearing evidence at the start of the second day, with the Claimant giving his evidence.

[46]The Tribunal made the following findings of fact on the evidence in the case.

Findings of fact

[47]The Claimant began his employment with London Underground on 1 June 1996. The Claimant was employed as a train operator. The Claimant has Specific Learning Difficulties, dyslexia, depression and IBS/Diverticulitis. In the preliminary hearing on 15 June 2020, the Respondent confirmed that it accepted that the Claimant had Specific Learning Difficulties (SpLDs) and Dyslexia, at all material times and that these were capable of amounting to mental impairment as defined under section 6 Equality Act 2010. The Claimant’s request for information regarding his applications for new jobs

[48]In 2015, the Claimant applied for the role of Duty Train Staff Manager (DTSM). Also in 2015, he applied for the role of Train Operations Standards Manager (TOSM). The Claimant went through the Respondent’s recruitment process in relation to those roles.

[49]Following the first TOSM recruitment exercise there were some allegations of cheating, which were unrelated to the Claimant. This caused the Respondent to rerun the exercise on 17 May 2016.

[50]As part of his applications for the roles, the Claimant signed the Respondent’s Candidates Charter which set out that it was possible to receive feedback on request, within 8 weeks of receiving the assessment outcome. The Charter stated that it may not always possible to investigate concerns raised after that time.

[51]The Claimant applied again on the second run. It was the Claimant’s evidence that in 2016, at the time of his assessment, he started to think that something was ‘weird’.

[52]Two years after the recruitment exercise, on 9 August 2018, the Claimant made a subject access request to the Respondent, specifically for recruitment information regarding the DTSM and TOSM roles that he had applied for in 2015. He gave them the job numbers for those exercises. He also referred to the second exercise for the TOSM role in 2016 but did not provide the job number. The (Data Subject Access) DSAR Request was received by Mr Rob Dearman, one of the Respondent’s employed recruitment consultants.

[53]Mr Dearman delegated this to John Milewski, an employee of Capita, for him to address. The Respondent worked with Capita to conduct its recruitment. Capita was an outsourced, independent recruitment provider. The Respondent would usually pass all Freedom of Information (FOI) and DSAR (Data Subject Access Requests) relating to recruitment, to Capita for processing and response. John Milewski was the person at Capita who dealt with these matters. He would extract the requested data from the Respondent’s Taleo system, consider whether any redactions were necessary and send the response for Mr Ross Dearman’s approval before sending it out to the person who made the DSAR or FOI request. The Respondent’s Taleo system is their applicant tracking system. It tracks and notes all interactions with a candidate on each application, storing their application information and recording their progress through the recruitment process. Interview notes and scores can be uploaded and stored in Taleo. Any correspondence with a candidate is also stored on Taleo.

[54]On 14 August 2018, the Respondent sent a response to the Claimant’s work email, which the Claimant did not receive until much later. The Claimant’s work email was the email address the Respondent had for him on the Taleo system, from when the Claimant had submitted his job applications. On 14 September 2018, the Claimant chased the Respondent for a response to his written request as he did not know that a response had been sent to his work email address. The Respondent forwarded the 14 August response to him. In that response, the Claimant was informed that he could not have the contents of the assessment questions and his answers ‘as it is subject to certain statutory exemptions to the right of access to information’. He was told that, section 43 Freedom of Information Act 2000 states that information is exempt if its disclosure “would or would be likely to prejudice the commercial interests of any person including the public authority holding it.” The Claimant was told that if the assessment questions were disclosed to him this would mean that they would have to re-draft assessment papers and question banks for future recruitment exercises, which would increase the costs of running the business. The Respondent stated that this satisfied the public interest exemption to the duty to disclose. The Respondent also withheld the Claimant’s answers to the assessment questions because paragraph 25(1) of Schedule 2 of the Data Protection Act 2018 states that the right of access does not apply to ‘personal data consisting of information recorded by candidates during an exam’.

[55]When Mr Milewski wrote to the Claimant on 14 August, he told the Claimant that the Respondent had not been able to locate the paperwork relating to the 2nd time he attended the assessment in 2016 as they did not have the job number. Once the Claimant was able to confirm the date of the second assessment for the TOSM role, which was 17 May 2016, Mr Milewski was able to locate the paperwork related to that recruitment exercise in the Taleo system. After he obtained Mr Dearman’s approval for the redactions, Mr Milewski sent the information to the Claimant by email on 24 September.

[56]In relation to the DTSM role which the Claimant applied for in February 2015, he sent the Claimant the following information: - the Taleo records, the role play assessments, the scores from the assessment, a partially redacted record of the structured interview/assessment from 23 December 2015, and a written note of the feedback given to him at the time. The Claimant was provided with copies of similar paperwork in relation to his application for the TOSM role in November 2015.

[57]The Respondent provided the Claimant written feedback in relation to each of the posts he applied for. We also find that the Claimant was given feedback in relation to each of the jobs he applied for.

[58]The Claimant was very unhappy with the redactions that the Respondent made to the documents disclosed. The first pack had not been redacted but there were redactions to the second. Mr Dearman gave evidence to the Tribunal on the reasons for the redactions. It was his evidence that the redactions were done under section 43 of the Freedom of Information Act and Section 25(1) of the Data Protection Act 2018. The Respondent believed that the combination of those two bits of legislation meant that they could restrict disclosure of the assessment questions, the candidates’ answers, and the marking/scoring guidelines made during any assessment/exam process. The Respondent’s position was that it did this to protect the integrity of its recruitment exercises as it would usually wish to re-use test materials in future recruitment exercises.

[59]We had a copy of the Respondent’s Privacy and Data Protection Factsheet in the bundle. The Privacy and Data Protection Factsheet 11 – Requests to HRS for Recruitment Related Personal Information at page 228, stated that application forms, questions, answers, and examiner’s comments are all fine to disclose to the applicant if the assessment took place over 2 years ago. Mr Dearman’s evidence was that the Respondent did not usually follow that Factsheet but preferred instead to redact information from assessments notes because it needed the option to be able to reuse questions and other information for recruitment campaigns and assessments later.

[60]The Claimant was unhappy about the redactions and emailed the Respondent to say so. Unfortunately, the Claimant responded to the email address ‘TFL Recruitment’. When Mr Milewski responded to him on 23 September, he responded from an address which was “TfL Recruitment [mailto:tflrecruitment@invalidemail.com]. Also, at the end of the email, in the sign off section and footer, the following was written: “kind regards, John Milewski, Senior Candidate Care Specialist For and on behalf of: Ross Dearman, Recruitment Consultant. Operational High Volume Recruitment, HR Service, Transport for London 1st Floor 1R5, 14 Pier Walk, London SE10 0ES Recruitment Hotline 0333 0062939 (choose option 1) Email support@jobs.co.uk Web Links – Internal http:/source.tfl.jobs. External http:/www.tfl.gov.uk/jobs. TfL LinkedIn Graduate Facebook Please do not respond to this email directly as this mailbox is not regularly monitored. If you have any further enquiries, please either call or email support@tfljobs.co.uk”

[61]It is unlikely that the Claimant read the email all the way to the bottom or noticed that it told him not to reply directly to the email, as that is what he did. The Claimant is a person with dyslexia. It is also quite likely that the Claimant simply hit ‘reply’ on his keyboard to answer Mr Milewski’s email.

[62]Because it was sent to an email address that was not monitored, the Respondent did not pick up the Claimant’s email. Although the sign-off at the bottom of the letter said that it was not regularly monitored, the evidence was that it was not monitored at all. The Claimant wrote again to the same email address on 26 October and again on 2 November. None of these emails were received by Mr Milewski as they were all sent to the unmonitored TfL Recruitment email address. On 21 November 2018, the Claimant referred the matter to Sarah Henderson, his TOM (trains operation manager) as he wanted to make a complaint about the recruitment office’s failure to respond to him and about what he considered was manipulation of his scores for the second assessment to ensure that he failed. In his letter he alleged that Mr Milewski’s response seemed ‘very odd and even discriminatory’.

[63]Ms Henderson referred the matter to Mr Dearman. On 5 December 2018, Mr Milewski replied on Mr Dearman’s behalf, using the same email address that could not receive replies. In his letter he explained that the Respondent could not have replied to the Claimant’s letters because they had been sent to an inbox that was not monitored, which is why the Claimant was told in the first letter to telephone or reply to support@tfljobs.co.uk if he wanted to respond. The Respondent denied that the Claimant’s emails were ignored as they had never been received. He also repeated the Respondent’s position on the redactions. The Claimant was unhappy with this response and in January 2019, he made a complaint, which Ms Henderson advised him to refer to Amareet Kaur, Team Lead – Operational High-Volume Recruitment, HR Services. Ms Kaur was also Mr Dearman’s line manager.

[64]In his letter to Ms Henderson dated 4 January, which he forwarded to Ms Kaur, the Claimant stated that he was raising a grievance. He complained about the Respondent failing to pick up and answer the emails sent to the email address which stated that it was not regularly monitored. He then went on to complain about the recruitment process as follows:- “That said, these issues which I consider important and valid too, are a distraction from the real issue which is that I have now come to firmly believe that Tfl Recruitment prejudiced my application by deliberately down-marking it to ensure I did not advance in the process, and therefore, the real reason they do not wish to reveal my answers is that this will be very evident if a side-by-side comparison between my first and second tests are made. Therefore, I wish to lodge a complaint regarding the policies and practices the company has implemented regarding discrimination and me; what was the point of providing me the 'reasonable adjustments' of extra time, (as an aid to help counter my disabilities), to complete my assessment only to cancel that out afterwards by falsifying the results of my test? Is this not direct discrimination? It would at least have been more professional Tfl Recruitment had said at the outset they didn't want my kind progressing rather than putting me through the anguish of the tests only to manipulate my results afterwards. Repeated negative personal experiences have left me with little faith in the way the company deals with these issues nonetheless I would still like to know what are my best options internally to reach a resolution. That said, I have also contacted ACAS over this matter as an alternative route to resolution.”

[65]The footnote to the Claimant’s email stated the following, under his name and job title: “Disability awareness - not all disabilities are obvious or physically visible; mine are communications-based; if you feel my wording is too lengthy or are offended by something I've written, it's most likely my poor choice of wording, please let me know and I'll try rephrasing.”

[66]Ms Kaur investigated the Claimant’s complaint. She did not treat this as a grievance under the Respondent’s procedures but simply as a complaint. If she had treated it as a grievance, she would have met with the Claimant to get a full understanding of his complaint, but she did not do so. The Claimant had been expecting to hear from her with an invitation to meet so that he could go through the grievance with her. We had copies of email correspondence which Ms Kaur had with John Milewski, on behalf of recruitment, about the issues raised by the Claimant. We also saw an email in which she asked for access to the assessment packs. She conducted an investigation into his complaint.

[67]On 25 January 2019, Ms Kaur wrote a terse response to the Claimant to let him know the results of her investigation. She told the Claimant that the department had provided him with the correct contact details and so it was not their responsibility if he chose not to read their email in full before responding. She stated that if he chose not to read the full contact details provided in the email, then that was not the Respondent’s fault. She stated that the correct correspondence address had also been in the Candidates Charter, which he had signed when he completed the job applications. She explained that the Respondent used the Claimant’s contact detail on the Taleo system when they wrote to him, which is why their email went to his work email address. She stated that following her investigation, her decision was that there had been no discrimination or prejudice to the Claimant. Ms Kaur confirmed that the first recruitment pack the Claimant received had not been properly redacted and that she was taking that up with the relevant person. She confirmed the Respondent’s position that the second recruitment pack had indeed been properly redacted and that this was consistent with the redaction policy applied to all candidates. Ms Kaur repeated the Respondent’s position that the redactions were necessary because of the need to protect the integrity of test answers. However, they were able to disclose the assessor’s comments on the answers as this would not compromise the questions or give an indication of the correct answer.

[68]The Claimant was unhappy with the outcome of Ms Kaur’s investigation. He was offended that she stated that he had chosen not to read Mr Milewski’s email properly, given that he had dyslexia and a learning disability. He was upset about this. He felt that she should have known about his disability and read the footnote to his email and known that this was not a choice that he made.

[69]The Claimant also complained to us in the hearing that the Respondent had deliberately underscored his application. We had access to all the documentation for all the applications the Claimant made. The two TOSM recruitment exercises and that for the DTSM role.

[70]We can see that in the candidate personal information at page 601, the Claimant’s email address was noted as neil.hood@tfl.gov.uk. The job application process

[71]We can see that the Claimant’s scores were low on both TOSM assessments. The recruitment consisted of a CV/application form, an in-tray exercise and an interview. The Claimant did not progress to interview on either occasion. The in-tray exercise required applicants to rank a number of items in their email inbox in order of priority. The documents we have in the bundle suggest that the same set of items were used for the inbox exercise on both occasions. We note that because of his disabled status the Claimant had 25% extra time given to him to complete the in tray-exercise on both occasions.

[72]The Claimant’s scores were low on both occasions. In the December 2015 exercise, the Claimant scored 39 out of a possible 147. The marking table at pages 629 – 641 shows the number of unticked white boxes where the Claimant failed to identify some of the expected issues and actions. The comments in the box at the bottom of the scores gives the scorer the opportunity to provide brief comments to substantiate the scores given and was an opportunity for them to indicate if the candidate failed to complete or deal with the section. At 629, for example, the scorer stated in their handwritten note, as follows: - “you recognised some of the issues from this email though needed to provide details of the actions that you would take to show how these had been considered. For example, the prevention plan requested by your line manager.”

[73]At the bottom of page 631, the person marking the paper wrote ‘you noted that there was a public relations opportunity though missed the opportunity to show you would identify relevant staff and find out some of what was required.” These comments by the person marking the paper, which was anonymous, as far as we could see, could be summarised by stating that the Claimant’s answers and choices were severely lacking in detail and did not demonstrate his strategic thinking. Similar comments were written in relation to the other recruitment processes.

[74]The scores were then converted into an overall rating between 1 and 5 for each competency where 1 = poor standard and 5 = strong standard. Effective communication, as would be required of anyone in management, was assessed separately by reference to each candidate’s written communication skills against various criteria. The benchmark score in both assessments was a total of at least 16. In the first assessment the Claimant scored ‘2’s in all competencies except for Customer Focus, where he scored ‘3’. This added up to a total score of 11.

[75]On the second occasion, the Claimant scored 31 out of a possible 147 for the same exercise. It may be undesirable but is not impossible, as the Claimant submitted in the hearing, for him to score less on this second attempt of the In Tray exercise. The Claimant had scored all ‘2’ ratings for his competencies. He scored 10 overall. He did not progress to the next stage of the recruitment process. In this recruitment the Respondent did not find a suitable candidate, which meant that no one was recruited during this exercise.

[76]In presenting his case in court the Claimant did not point out to the Tribunal any of the answers to the questions he gave or any of the scoring where he considered that he should have scored higher or that he had been marked down. The Tribunal was careful during the Claimant’s evidence and while he was asking questions of Mr Dearman on this issue, as we did not hear evidence from the panel who scored the documents; and we are not in a position to say that the Claimant should have been invited for interview. However, the Claimant was given the opportunity to question Mr Dearman on this issue, since he was the witness who dealt with it.

[77]From what we could see on the documents produced, the Claimant provided very brief answers to the set questions. Application of the Attendance At Work Process

[78]The Respondent set out satisfactory attendance levels in its written procedure. There is also an attendance at work pack which sets out the various policies for managers who will be using them in managing employees. The policy stated that it was designed to deal specifically with unauthorised non-attendance to

[79]It stated that employees are expected to attend work regularly and on time in order to maintain high standards of service and safety. It acknowledged that non-attendance due to sickness may be unavoidable and that the Respondent did not require or wish any employees who are unfit for work to attend for duty. At the same time, the Respondent acknowledged that it has an obligation to consider the effects that employees’ non-attendance has on the services it provides to its customers and on other staff, which meant that it expected employees to take measures to keep non-attendance from work to a minimum.

[80]The policy stated that employees with unsatisfactory levels of attendance would be treated in a fair, consistent and equitable way. They would be given an opportunity to improve their attendance but that continued failure to meet the standards required may result in disciplinary action or termination of service on medical grounds.

[81]Failure to comply with contractual requirements could result in suspension of Company Sick Pay, disciplinary action or initiation of the write-off procedure.

[82]The Attendance at Work Procedure set out standards of satisfactory attendance at paragraph 4.2 on page 191 of the bundle. The standard is breached if in any 13-week period, the employee has two items of non-attendance. It would also be breached if, in any 26-week period, there are two or more items of nonattendance totalling five or more shifts/working days.

[83]An item of non-attendance could be a shift/working day of sickness absence including where there had been a certificate or self-assessment; a shift/working day of unauthorised absence or failure to attend work without authority.

[84]The policies in the attendance pack gave managers the power to address an employee’s non-attendance at work. How it was addressed was dependant on the cause of the employee’s non-attendance. Where there was an underlying medical condition that has a significant effect on an employee’s attendance, or there is a need for a managed rehabilitation the procedure was called the ‘fitness for work’ procedure (see paragraph 5.2). This would include advice from HR, conduct of a case conference, consideration of any reasonable adjustments that could assist with attendance or suitable alternative employment. This could apply whether the employee had long term periods of absence or recurring short term absences.

[85]Where that did not apply, the procedure stated that non-attendance could be dealt with as a conduct issue, under the Respondent’s discipline at work procedure. The pack gave managers’ guidelines in determining whether there is a conduct or a fitness to work issue. If the absence is addressed as a conduct matter the process would have involved following the procedure to arrange a local disciplinary interview to discuss all the sanctions, and then, depending on the circumstances, imposing an appropriate sanction. Disciplinary action would be taken to impress on the employee that they have not met the standards of attendance expected of the organisation and the Respondent’s expectation that they will do so in future.

[86]In June 2017 Wojciech Podjaski became the Claimant’s Trains Manager. As Trains Manager, Mr Podjaski’s role involved first line management of all the Train Operators based at the depot. He reported to the Train Operations Manager, Sara Henderson. As the Trains Manager, Mr Podjaski would be dealing with a range of people management issues such as managing attendance at work and dealing with disciplinary and grievance issues as well as effective and efficient deployment of Train Operators. Mr Podjaski was a disabled person as he had Type 1 Diabetes. He was also a Special Constable with the British Transport Police at the time.

[87]During their time working together, they had a good working relationship and Mr Podjaski referred the Claimant for staff recognition awards on two occasions. The Claimant had two items of non-attendance as follows: from 1 – 7 August 2018, and then from 30 – 31 December 2018. We had the record of these absences in the trial bundle. The Claimant’s self-certification for the August dates was recorded as ‘bowel/colon disturbance/inflammation’. At the Claimant’s back to work meeting on 8 August, his absence was recorded as being caused by ‘Diarrhoea, stomach cramps, bowel disturbances, suspected diverticulitis’. The December absence was recorded as being caused by the flu.

[88]These absences triggered the Respondent’s Absence Procedure system as requiring some management action. Before deciding what action to take, the Respondent required a TM (trains manager) to check the records to check the nature of the absences. The Respondent considered that the absences were not related to any underlying condition that it was aware of, and they were therefore going to be addressed as a conduct matter.

[89]As a result, the Claimant was invited to a local disciplinary meeting on 29 January 2019, to be conducted by Mr Podjaski. The Claimant was accompanied by his trade union representative, Mr Garey. They discussed the Claimant’s absences as Mr Podjaski made notes. His evidence was that he would usually do so to assist him as he is dyslexic. It was also his evidence that during the meeting, he turned his screen to face the Claimant and Mr Garey so that they could see what he was recording in writing, and he also read it out to them. Mr Podjaski did not make a verbatim note, but it is likely that he intended his notes to be a summary of the discussion. At the same time, the Claimant recorded this meeting on his phone. He did not tell Mr Podjaski that he was doing this. Mr Podjaski sent his notes to both the Claimant and his trade union representative,

[90]We had Mr Podjaski’s note in the trial bundle. We also listened to the Claimant’s recording and read the transcript in the bundle. The written record of the meeting does not state that the Claimant told Mr Podjaski at the meeting that he was feeling suicidal. Having listened to the recording, we can confirm that at no point in the meeting did the Claimant say to Mr Podjaski, ‘I am suicidal’. We also did not hear anything that resembled Mr Podjaski having a sharp intake of breath and he did not sound shocked or frightened.

[91]We find that in the meeting, the Claimant reported some of his personal history to Mr Podjaski. He told Mr Podjaski about the time he was taken off a training course, which led to him raising a successful grievance, which in turn led to him going back to the course and asking the training manager, Mr Bird, for reasonable adjustments. We know that this was in the past because the Claimant remarked to Mr Podjaski that Mr Bird might be retired by ‘now’, which we took to mean the time of this conversation. The Claimant told Mr Podjaski that Mr Bird told him that he could have a copy of the notes before class so that he was not ‘bamboozled’ by the language. He had asked for someone else’s notes, which was refused. It was then he apparently found out that he had been top of the class in the original class before being taken off it. Then the following exchange took place. This is recorded in the transcript as follows: - Claimant: “I do suffer depression. I’ve had a history and whatnot of like, but I was going lower and lower down…… …… …… And so I said, no, but this time I said no, you need to, because its part of the Equalities Act. I’ve been hauled over the coals now for over 12 months, and I’d even, I told Dave and I’ll tell you, I’d got suicidal, I was at the point I was so low, I’d been, I was like down to the council, like because I’d been assessed and they’d tried to put me onto their own counselling session.” Mr Podjaski: “Right, I’m sorry [Rob], I see this has gone into a serious topic here.” Claimant: “The whole thing is serious and it’s all connected because this is how I got my IBS, and the company is now…” Mr Podjaski: “I’m not dismissing it but you need to talk separately about this because (inaudible) suicide, okay.” Claimant: “No, we’re not, this is, this is, oh, no, no, but I’m not, don’t, we’re not going to go down that route, I’m not going into any detail about that, but I just want you to understand the severity it had, the impact on me. The IBS didn’t start without good reason. Is that clear?” Mr Podjaski: “Well I understand what you’re saying.” Mr Garey: “So basically, to summarise for you, as you’ve seen now, when Neil [wants to explain], he goes through a process and for Neil it’s important for people to understand what’s gone on previously. Neil’s IBS and diverticulitis is caused and aggravated by stress. What Neil’s talked about back when he was on the Northern and the Circle and he was going for train up were, was a particularly stressful time…….” Mr Podjaski: “I appreciate that, I appreciate that, but he decided to go into some serious sort of stressful, I’m not going to [inaudible] you tell me about suicidal thoughts and stuff like that. I feel that the tools I have in the LDI are not sufficient to provide you with [the due] care for this more serious stuff, so what I’m going to try to focus, with appreciation for the background context going back a few years, of when you developed this through a variety of stressors that you experienced on the job, I’m going to try and stick particularly close to those sickness items, yeah? And then if you want to discuss separately how you feel in relation to your stress or the mental condition then this is something that is best discussed with the TOM herself. Now I do appreciate what you’re saying, that you believe that the root cause of these stomach problems is the ongoing conditions that you developed while in the company…………”

[92]The Claimant made the point that it was not the application process that caused him to develop IBS but that he believed the treatment he received at work that was the cause. He also made the point that his IBS is constant.

[93]Having listened to the recording in the hearing, we find it likely that the transcript is accurate and the above is what was said in the LDI. Later in the meeting Mr Podjaski summarised what the Claimant told him as the cause of his diverticulitis. They had a discussion about why it had originally been recorded on his record as diarrhoea and the Claimant expressed his unhappiness about that.

[94]If he had told Mr Podjaski that he was suicidal in that moment, we find it highly likely that Mr Podjaski would have taken some action to make sure that he was safe to continue to drive trains. The Claimant was adamant in the hearing that Mr Podjaski was shocked or behaved as though shocked when he mentioned the word suicide and that he tried to hurry the conversation along. The transcript shows the opposite. Mr Podjaski stopped the discussion, noted that the Claimant had mentioned a serious issue and checked whether it was a live issue. It was then that both the Claimant and his union rep said that they were not going down that route and indicated that he believed that it was a precursor to the IBS, rather than a live issue. Mr Podjaski was clear to the Claimant that if he was feeling suicidal, he needed to consult with a senior manager. The purpose of the LDI was to address his sickness absence, which the Claimant confirmed was due to his diverticulitis.

[95]As a manager, Mr Podjaski has responsibilities to the Respondent and the public, as well as to the Claimant as his direct report. Having listened to the recording and the transcript, we find it unlikely that Mr Podjaski would have understood the Claimant to be saying that he was presently feeling suicidal. It was likely that he understood that the Claimant and Mr Garey were setting out the background to the IBS and diverticulitis, and his recent period of ill-health.

[96]The Claimant did not ask for his absence to be discounted or for the trigger warnings to be adjusted because of a disability. The Claimant did not bring any medical evidence with him to the meeting. Neither the Claimant nor his union rep asked for his case to be considered as a ‘fitness for work’ issue which would allow the manager to consider whether reasonable adjustments were needed. His evidence to the Tribunal was that despite this, everyone should have known about his disability because he put it in his signoff to his emails and because he had told managers at previous depots and given them supporting documents. When he looked at the Claimant’s file, Mr Podjaski did not find any documents relating to the Claimant having a disability. Ms Henderson did not find any documents to that effect when she looked later.

[97]The Claimant wanted his absence recorded as being for diverticulitis rather than as for diarrhoea, as it had been recorded.

[98]After a short adjournment, Mr Podjaski informed the Claimant and Mr Garey of his decision. He decided that although the Claimant told him that stress at work had led to the flareup of his diverticulitis, which was the cause of the first period of absence in August, there was no medical evidence to support this. He said that he appreciated that the process of applying for new jobs must have been stressful and advised the Claimant to seek help from HR with adjustments or anything else that could be arranged. As far as the absence in December for the flu, was concerned, Mr Podjaski stated that he had also not been given any medical evidence regarding this or any medical advice on how long it took the Claimant to recover. He concluded that there was no further discretion that the Respondent could apply here as the Respondent had already decided not to include dates in July when the Claimant was also off sick. He decided to give the Claimant a 26-week oral warning, from 1 January 2019 - 2 July 2019, in accordance with the Respondent’s absence policy.

[99]Mr Podjaski wrote to the Claimant on the same day to confirm what had been said in the meeting. He confirmed the sanction and informed the Claimant that he could appeal the sanction in writing, to the Trains Operating Manager, within 7 days.

[100]On the same day, the Claimant received the letter and submitted an appeal against the outcome of the local disciplinary interview (LDI), to Ms Henderson who was the relevant Trains Operating Manager. He stated that his appeal was on the grounds of ‘Leniency – No consideration of mitigating circumstances.”

[101]Mr Podjaski sent Ms Henderson copies of his notes and his outcome letter so that she could deal with the Claimant’s appeal.

[102]As the Train Operating Manager (TOM), it was Ms Henderson’s job to manage any attendance issues involving her Train Operating Team. She had been aware that Mr Podjaski was dealing with an LDI in relation to Mr Hood, but she did not know the details.

[103]Mr Hood and his union representative met with Ms Henderson on 8 March 2019, to pursue his appeal against the sanction imposed on him by Mr Podjaski. Ms Henderson incorporated the main points made in the appeal in her outcome letter. The Claimant recorded the meeting. At the time, he did not inform Ms Henderson that he was doing so.

[104]In the appeal meeting the Claimant’s case was that the Respondent knew about his diverticulitis as he had this condition for years, that it should be treated as a disability and the absence for this should have been discounted. Also, that his absence should have been managed as an underlying condition under paragraph 5.2 of the Attendance at Work (AAW) Procedure, as described above. That would have meant his absence being treated as a capability as opposed to a conduct matter. Ms Henderson’s issue was that the Respondent did not have medical evidence from the Claimant linking his absence to an underlying medical condition. Her evidence was that if the Respondent had been given evidence from as far back as 2014 that he had this condition and that he had absences that were related to it, as the Claimant claimed; there should have been many medical certificates relating to it in his staff file. She did not find this. She also did not find written records of the Claimant having raised this issue with managers beforehand. She found one fit note which related to an absence for IBS/diverticulitis in 2014. There were no previous instances of the AAW procedure ever being triggered before by the Claimant in relation to this condition and nothing more recent either. There was no record in his staff file of the Claimant having ever raised diverticulitis with his managers or the Respondent as a disability or having asked managers for adjustments because of it.

[105]The Claimant also did not bring a letter from his GP to the appeal hearing. He did not bring any other evidence to confirm that he had an underlying condition and how that affected him.

[106]Ms Henderson considered what the Claimant and his trade union representative said. She took HR advice and decided that as she did not have any evidence that the first absence related to an underlying condition, there were no grounds for her to overturn the warning and uphold his appeal. Ms Henderson decided that the oral warning would stand. She confirmed this in her letter dated 29 March 2019.

[107]Also in that letter, Ms Henderson stated that since the Claimant told her that he has an underlying condition that was diagnosed many years ago, if he was able to provide the Respondent with written diagnosis of his condition from his GP; it would be able to discuss possible next steps in providing him with support at

[108]The first claim was issued on 24 April 2019. The early conciliation took please between 1 March – 18 March 2019.

[109]In his letter dated 4 April 2019, the Claimant expressed his unhappiness with the outcome of his appeal. He felt that the Respondent was calling his integrity in question by not accepting his word that he had a disability, without a letter from his GP. He stated that the disability was IBS and not diverticulitis, which was simply a reaction to stress. He told the Respondent that he had now requested information from his GP and would provide them with it, once received.

[110]Ms Henderson responded on 15 April. She suggested that the next best step would be for him to be referred to Occupational Health (OH) so that the Respondent could get some advice on his condition and what support the Respondent could offer. Despite her reassurances that the Respondent was not questioning his integrity by asking for medical information about his health condition, the Claimant continued in correspondence with Ms Henderson to treat it as a personal affront.

[111]The Claimant’s evidence was that he first began the early conciliation process in December 2018 and obtained an early conciliation certificate on 4 February 2019 but did not issue an ET1 at that time. He commenced another period of early conciliation on 1 March 2019. That early conciliation certificate was issued on 18 March 2019 and his first ET1 claim form against the Respondent was issued on 24 April 2019. In that claim the Claimant brought complaints of disability discrimination related to the recruitment exercises that he had participated in 2018 and to how his complaints had been handled by the recruitment section and by HR.

[112]On 25 April, the Claimant sent some medical evidence from his GP to Ms Henderson. She felt that she needed guidance from OH on how to interpret the evidence, so she continued with the referral to OH. The Claimant did not sign the consent form for OH to write to his GP. Ms Henderson proceeded with the referral to OH with copies of the medical evidence the Claimant had given her.

[113]In June 2019, the Claimant told one of the` Trains Managers, Mr Suant, that he would be attending sessions with the East London Psychotherapy Service. He wanted the Respondent to give him the time off to do so. The Claimant had already told the Psychotherapy Service that he would need 28 days’ notice in order to be able to attend a group session. The Service had not given him any dates yet, so he was unable to provide the Respondent with the dates that he wanted off. Mr Suant responded to confirm that the Respondent would endeavour to accommodate his request as much as it could. He told the Claimant that he would pass his request on to Ms Henderson for her information. He told the Claimant ‘I’m sure we can come to a mutually agreeable arrangement for your needs just let us know as soon as you have more information.’ He also suggested that the Claimant may want to use some of his rest days to attend sessions as well. On, 5 June 2019, Ms Henderson emailed the Claimant to confirm her support. She stated that there were many ways that the Respondent could support him to go to these sessions such as changing his rest days, duties or using his annual leave. The Claimant was not happy that the Respondent did not agree that he would have leave to go to these sessions, without the need for him to use his annual leave or his rest days. The Claimant did not attend the sessions because he missed the first session, having forgotten about it.

[114]In his witness statement, paragraph 5 on page 16, the Claimant stated that the Respondent had, at different times, prevented him from getting any mental health assistance, when he needed it. He stated that when his GP referred him to NHS counselling after he became suicidal, management would not allow him to attend. There are no dates in this paragraph, so it is not clear what period of time is being referred to here. Mr Garey later placed the period that the Claimant was depressed/suicidal as being somewhere between 2007 – 2012. The emails about attending counselling referred to above are dated 2019. We did not have emails from the Claimant where he complained to the Respondent that he was not being allowed to attend counselling.

[115]There were additional emails from the Claimant in June 2019 where he asked to be able to take unassigned leave to attend counselling sessions.

[116]The Claimant was seen by OH on 2 July 2019. Although the Claimant stated in his witness statement that he did not know why he was being referred to OH, Ms Henderson told him in her letter dated 15 April that she was going to do this in order to get some advice on his condition and what support the Respondent should offer.

[117]The OH doctor confirmed in her report that the Claimant had diverticular disease and stated that it was in the nature of this condition for there to be flare-ups known as diverticulitis. She stated that in those flareups there’s likely to be severe gastrointestinal symptoms, which can vary from person to person and from episode to episode. The doctor confirmed that the Claimant had recently had a colonoscopy which showed that he still had the condition and that it had worsened. She also confirmed that it was condition that would be ongoing.

[118]The OH doctor stated that in her assessment, the Claimant was fit for work but that there may be acute flare-ups, during which the Claimant may require restrictions or time off.

[119]In her witness statement, Ms Henderson’s evidence was that if she had this report at the time of the LDI appeal she would have upheld the appeal and overturned the warning. At the time, there may have been notes from other managers or records of the Claimant mentioning his conditions, but she could not see any medical evidence on his file, which contained a diagnosis of diverticulitis.

[120]By the time the Respondent received the OH report, 22 weeks had passed since the warning had been imposed by Mr Podjaski. Ms Henderson focussed on making sure the Claimant’s future absences were managed in line with the OH advice. She decided not to disturb Mr Podjaski’s or her decision as she believed that they were fair, given the evidence they both had at the time. Ms Henderson’s evidence was that she intended to hold a Case Conference with the Claimant to explain how his absences for diverticulitis-related issues would be handled, now that the Respondent had the medical evidence. There was a delay in setting up this meeting, due to the fact that an HR advisor needed to be present, and there was some reorganisation going on within the Respondent’s HR department. Ms Henderson did not inform the Claimant of her intention to arrange a Case Conference or about the delay. She had also not informed Mr Podjaski that she had obtained an OH report on the Claimant.

[121]The Claimant was absent from work between 26 – 27 August 2019. On 28 August, Mr Podjaski conducted a return to work meeting with the Claimant. Mr Podjaski noted that the Claimant was suffering with ‘upset stomach and loose bowels’ but he quickly recovered. He explained that his symptoms were likely to be associated with his underlying condition. He referred to the OH report, which Mr Podjaski was not aware of and had not seen, as the situation was being managed by Ms Henderson. Mr Podjaski recorded that the agreed action was that the situation would be monitored, and medical advice followed. It is likely that he did this because of what the Claimant told him about the OH report.

[122]By email on 4 September, the Claimant wrote to Mr Podjaski. He attached a copy of the OH report. He was also concerned why Mr Podjaski had not been informed about the referral to OH, given that he was his line manager. The Claimant was confused as to why there had not been any follow-up with him after the OH report, such as to discuss any possible adjustments.

[123]After speaking to Ms Henderson, Mr Podjaski replied to the Claimant on 11 September to try to reassure him of the procedures being followed at management level. Mr Podjaski did not say that Ms Henderson did not yet have a copy of the OH report although it appears that this was how the Claimant understood him. Mr Podjaski told the Claimant that Ms Henderson was looking to set up a meeting to discuss the OH report and its implications. He told the Claimant that his email and its attachment would be placed with his return to work notes. He asked the Claimant for details of when he requested to discuss his health with management. He stated that if there was anything in writing, then he should let Mr Podjaksi have a copy. In his response, on 24 September, the Claimant took offence at this suggestion because he stated that his disabilities restricted him to raising matters verbally and only putting things in writing where absolutely necessary. He accused Mr Podjaski of taking a ‘cheap shot’ at him because of his Specific Learning Difficulties.

[124]The Claimant was upset by Mr Podjaski’s email dated 11 September and this is apparent from his responses, which he wrote in red under each of Mr Podjaski’s paragraphs. He complained about each point that Mr Podjaksi made in his letter and accused him of squirming when he was told that the Claimant was suicidal, of being insulting, disingenuous, and management of ‘coldly shirking its duty of care … if there isn’t an evidence trail of ‘things in writing’’. He also stated that he had told Mr Podjaski at the LDI that he had been suffering from depression to the point of suicide.

[125]In his witness statement, Mr Podjaski stated that he felt that the Claimant was accusing him of not taking his mental health seriously and shirking his managerial duty of care towards him.

[126]We find it likely that Mr Podjaski was shocked at these accusations in this letter. He had no recollection of the Claimant mentioning feeling suicidal during the LDI. He stated so in his response dated 3 October. He checked his notes and could find no reference to it. He also could not remember any mention of depression in the meeting. He recalled the Claimant talking about dyslexia and IBS but not depression and being suicidal. In his response he stated: ‘I honestly have no recollection of that ever being mentioned at any point during your LDI, and I double-checked my interview notes as well as the outcome letter but couldn’t find anything on the issue in neither of these documents.’ He reminded the Claimant of the Employee Assistance Helpline and stated that now that he was aware of the Claimant’s depression and suicidal thoughts, ‘my main concern is to provide a duty of care to you’. He asked the Claimant to let him know if there was anything he or any other members of the management team could do to support him.

[127]At the time there were 170 Train Operators at the depot and Mr Podjaski was first line manager to all of them. This meant that he was responsible for conducting all their LDIs, dealing with local disciplinary and grievance issues. It was unlikely that he would remember all the details of every meeting held with those who report to him.

[128]Mr Podjaski spoke to Ms Henderson who confirmed that she was also in correspondence with the Claimant.

[129]In her recent correspondence with the Claimant dated 30 September, Ms Henderson explained her intention to hold a case conference and explained why it had not yet happened due to the recent transformation within the Respondent’s HR department. She explained why she had not told him about this before now and reassured him that it was not personal to him and that it was affecting other depots apart from Leytonstone.

[130]The Claimant responded to Mr Podjaski on 6 October. The Claimant objected in the strongest terms to the contents of Mr Podjaksi’s email telling him ‘please don’t make this a bigger issues by digging yourself into a deeper hole, your email is just plain offensive and I’ll try to explain why’.

[131]In his email the Claimant also said ‘Nowadays, we’re awash with a new breed of fairly inexperienced but more highly ‘educated’ managers who refuse to accept when they mess up in their face to face interactions but then, even though there’s no prior written record, ‘cleverly’ put their denials in writing in order to create the false impression of a) having done the right thing in the first place AND b) having done it in the right way all along. It’s sickening.’

[132]Later in the email he stated that he was giving Mr Podjaski the opportunity to reflect on what he had written and to recant it, otherwise he would pursue the matter further.

[133]Ms Henderson had been copied into the email chain between the Claimant and Mr Podjaski. When she read this email she decided to intervene as she found the Claimant’s tone to his line manager to be concerning and wholly inappropriate. She advised Mr Podjaski not to engage further with the Claimant as the the written conversation was descending and a face to face discussion was required. It was the first time Ms Henderson became aware of a mental healh issue relating to the Claimant. She noted in her statement that Mr Podjaski was upset that the Claimant accused him of deliberately lying about the Claimant not having raised his mental health/suicidal thoughts in the LDI.

[134]Ms Henderson spoke to Mr Podjaski about whether he recollected the Claimant raising his mental health the LDI. Mr Podjaski did not and when he checked his notes, it was not recorded there. The Claimant had recorded the meeting but he did not mention to anyone that he had a recording. The Claimant told us that he did not remember that he had a recording of the meeting until some time later.

[135]Ms Henderson also spoke to Dave Garey, the Claimant’s trade union representative who had accompanied him to the LDI meeting. We did not have a statement from Mr Garey but we did have Ms Henderson’s evidence that he was vague in his recollections of what was said in the meeting but the impression she got from him was that it might have been mentioned by way of background, in terms of describing previous history and had not been mentioned in terms of asking for help now.

[136]The Claimant and Ms Henderson met for an informal meeting on 9 October 2019. This was an informal meeting and Ms Henderson decided not to take any notes. The Claimant recorded the meeting without telling her. Ms Henderson did not find that out until much later. It was her evidence that if he had told her that he needed to record the meeting as an adjustment because of his disabilities, she would have been content to allow him to do so. She was disappointed that he chose to do so without telling her first.

[137]Ms Henderson explained to the Claimant that she had finally managed to arrange for someone from HR to support her in a case conference with him. She explained to him what the case conference process was and reassured him that it was a different route to managing his absence arising from an underlying condition. She reassured him that his level of absence was not a big concern for the Respondent and that any absences for this condition would not trigger absence warnings. She also explained that the Respondent had not doubted what he was saying but that it needed medical evidence which it could use to inform its position on discounting any future absences from the usual process.

[138]Ms Henderson also spoke to the Claimant about his correspondence with Mr Podjaski. She told him that she considered that the emails he sent to Mr Podjaski were ‘a touch offensive’, unduly personal and unnecessarily attacking. The Claimant felt that the tone of the letters was justified because he believed that he told Mr Podjaski personal and sensitive information, and afterwards, Mr Podjaski claimed that he did not recall him doing so. Ms Henderson confirmed that she had spoken to Mr Garey who had been a bit vague about what was said at the meeting. He stated that it was likely that the Claimant had mentioned depression and suicide in the LDI meeting but that it was in reference to something that happened a long time ago, rather something that was going on at the time. The Claimant told her that he was going to put in a grievance about this as Mr Podjaski should have taken action at the time he disclosed sensitive information to him. Ms Henderson said that he could put in a grievance but she still felt that it was impossible for her to know what Mr Podjaski heard. The Claimant did not tell Ms Henderson that he had a recording of the meeting, which could provide evidence of what he said. His evidence was that by this time he had forgotten that he had the recording.

[139]Ms Henderson made it clear in this meeting that the important thing was to discuss what support the Respondent could offer him, now that it had the medical report. They talked about the Employee Assistance Line, which the Claimant had already tried. She referred to stress reduction workshops. She referred to the Claimant’s emails in June 2019, when the Claimant had been asking for time off to attend counselling sessions provided by the NHS. Ms Henderson confirmed that the Respondent would be prepared to provide support, for instance, by allowing him to make changes to his rest days, so that he could take up those sessions. The Claimant raised the issue of using his leave, which the Respondent was prepared to discuss, although it would not allow him to carry forward leave indefinitely.

[140]Ms Henderson wrote to the Claimant on 10 October inviting him to a case conference on 21 October. She explained that the purpose of the meeting was to discuss his underlying health condition and what reasonable adjustments the Respondent could make under the attendance policy to support him in the workplace. Grievance

[141]Following that meeting, the Claimant raised a grievance against Ms Henderson. The grievance, which is on page 1039, is headed as ‘Grievance re TOM Sara Henderson’. In the grievance, the Claimant recited his issues with TM Podjaski, which was mainly that he had not responded in what the Claimant considered an appropriate fashion when the Clamant told him that he had been depressed and suicidal. He described in detail the LDI, his correspondence with Mr Podjaski and the meetings he had with Ms Henderson. He wrote a list of 10 specific things that he believed Ms Henderson had done wrong and accused her of failing to offer him any support when he complained of suffering from depression and of being solely focused on exonerating Mr Podjaski. He stated that she had failed to respond appropriately to him sharing that he had been suicidal and suffering from depression and offered no support. He also stated “I am so disgusted by this heartlessness and overt underhandedness; considering all the heavy coverage in the media about the importance of Mental Health issues and TfL’s own stance on it, I have to ask, in what way is TOM Henderson representing TfL’s values?- What I also wish to emphasise, and have it now on record, is that the treatment I received in this company drove me to the point of wanting to take my own life, this is not a casual admission to make, and nor should it be treated in the casual way both the TM and the TOM have treated it.”

[142]He confirmed that he had not told Ms Henderson any details of when he felt suicidal but considered that it should not be required and stated that the Respondent should have taken it seriously. He went on to state “This has been a fraught time for me. The preservation of a person’s life should be of paramount importance especially when considered against the language they write in emails whilst under intense stress!”

[143]The grievance was received by Dale Smith, Head of Line Operations on the Central and Waterloo & City Lines. Mr Smith was an experienced manager, having dealt with many grievances before and managing and having direct responsibility for 2,600 operational staff across Stations and Trains. When Mr Smith received the grievance from the Claimant, he read it and then arranged for someone else to deal with it. We find that he made no decision about the grievance before passing it to Mr Lee Stewart, Head of Line Operations on the Metropolitan Line and a Band 4 Manager. Grievances were usually dealt with by Band 4 Managers. Mr Smith was a Band 5 manager, who would usually be dealing with any possible grievance appeal. If there was no grievance appeal or the grievance was upheld then he would not be required.

[144]Mr Smith also informed Ms Henderson that a grievance had been raised against her.

[145]The grievance hearing was conducted by Lee Stewart on 5 November 2019. Once again the Claimant recorded a meeting without telling the manager conducting it. There was a transcript in the bundle but it is agreed that it is not a complete record of the meeting as the Claimant’s recording cut out after about 40 minutes. The meeting went on for approximately 3 hours.

[146]Mr Stewart read the grievance before the meeting started and told the Claimant that this was his opportunity to add to the written grievance. The Claimant was accompanied by his trade union representative. This was not the same person who had accompanied him to the LDI meeting with MrPodjaski. At the start of the meeting, the Claimant told Mr Smith that he had Specific Learning Difficulties. Mr Stewart had not known the Claimant beforehand and had not been aware of his disability.

[147]The Claimant gave Mr Stewart a full history of his issues with the Respondent, including the LDI and his dealings with Mr Podjaski. He also complained about Ms Henderson. He described what he considered to be the woefully inadequate support he had received from the Respondent with regard to his mental health. He talked about not being allowed time off to attend counselling back in 2012 as well as other historical issues with the Respondent. Mr Stewart’s evidence was that he had trouble keeping the Claimant on point and that at several times during the hearing, he had to bring him back to the issue being discussed, in an effort to understand what exactly it was that he wanted him to investigate. When Mr Stewart directly asked the Claimant in the meeting, who the grievance was against, the Claimant’s answer as recorded on the transcript is not totally clear but it would appear that he told him that the grievance was initially going to be against Mr Podjaski but that he had decided against that, given that they had to continue working together. It was against Ms Henderson. By the end of the meeting, Mr Stewart believed that the Claimant’s focus in the grievance was on Ms Henderson. The Claimant spent some time in the hearing on the point of who his grievance was against. We find that the Claimant raised complaints about both Ms Henderson and Mr Podjaski in his grievance and Mr Stewart addressed all the points in his investigations and in his outcome letter.

[148]The Claimant confirmed that after the LDI, he had a case conference with Ms Henderson at which it had been confirmed that following receipt of the OH report, any absences relating to his IBS would be discounted. Mr Stewart understood that this was what the Claimant wanted. Mr Stewart concluded that this was a satisfactory outcome for him and that nothing more needed to be done as far as that was concerned. He therefore concentrated on the Claimant’s remaining complaints - about Mr Podjaski and what happened at the LDI, Ms Henderson and her response to the Claimant’s complaints about Mr Podjaski.

[149]After the meeting, Mr Stewart sent the Claimant and his trade union representative a copy of his notes. The Claimant made no corrections or comment on the notes. Mr Stewart met with Ms Henderson and Mr Podjaski, as part of his investigation of the grievance. The Claimant sent Mr Stewart copies of his email correspondence with Mr Podjaski, covering the period September – October 2019. This was the correspondence that Ms Henderson had objected to when she considered that the Claimant’s emails to his line manager had been in an inappropriate tone.

[150]Mr Podjaski was adamant in his meeting with Mr Stewart that he did not recall the Claimant saying that he was feeling suicidal in the LDI. He also had not noted it down in his brief notes of the hearing. He had since checked the Claimant’s staff file and there was nothing noted there either. We find that Mr Podjaski had no recollection of the Claimant telling him in the LDI that he was feeling depressed or suicidal. He was surprised that if he had missed this, the Claimant had taken 6 months to complain, when this would have been a serious ommission on his part. He had tried to respond to the Claimant’s concerns but his efforts had failed.

[151]Ms Henderson confirmed that she had intervened in the communication between the Claimant and Mr Podjaski because she felt that the Claimant’s tone had become inappropriate and very personal. She confirmed that she spoke to Mr Podjaski about his recollections of what happened in the meeting and also to Mr Garey, the Claimant’s trade union rep who attended the LDI with him. She said that Mr Garey had been vague in his recollections as he said that it was possible that the Claimant had referred to his past problems with depression/suicide but that it had not raised as anything recent. Mr Garey was unable to give any more details. She told Mr Stewart the details of what support was being given to the Claimant now in relation to his mental health. The Claimant had been offered the AXA Helpline but refused it he told her that he had already used it and found it to be lacking. She also confirmed that his duties had been amended to enable him to attend a mental health course outside of

[152]Mr Stewart told us in the hearing that the only thing he would change, having reflected on his conduct of the grievance, would be to interview Mr Garey himself, whereas at the time, he relied on what Ms Henderson told him. He did so because he understood the grievance to be focussed on Ms Henderson’s actions and what she did about the Claimant’s complaint about Mr Podjaski and he thought that what happened at the LDI was secondary to that.

[153]Mr Stewart wrote to the Claimant on 5 December to inform him of the outcome of the grievance. It was sent to the Claimant by email. He did not uphold the Claimant’s grievance. Mr Stewart structured his letter to respond to the 10 specific points that the Claimant had set out about Ms Henderson, in addition to all the other points. Given that some of those points also took in the complaints the Claimant made about Mr Podjaski, it was not completely illogical to structure the outcome letter in this way.

[154]One of the points to come out of Mr Stewart’s letter was that he said that the Claimant told him that he had a terrible memory. The Claimant was aggrieved about this statement and was adamant that he had not said this to Mr Stewart. Having looked at the transcript, there is no statement recorded from the Claimant about a terrible memory but he did say as follows: “Is there a better way of saying it and then I condense it ‘cause I, I’ve got specific learning difficulties so I’m a non-linear thinker and so there’s a lot of things going on at the same time so I have to whittle them all out and the trouble is when I go into a meeting with this, then they’ll all come back in because I can’t sensor in the way that I do when I write. And I think, no I’ve, I’ve said it as effectively as I think I could possibly make it.”

[155]Mr Stewart may have concluded that this was a reference to the Claimant not having good recall as he explained that there are a lot of things in his mind, usually at the same time, which he then needs to thin out in order to be able to put his thoughts forward in a meeting. We kept in mind that this was not a full transcript of the meeting.

[156]Mr Stewart referred in his letter to the Claimant’s trade union representative being ‘vague’. We find that this was not a reference to the trade union representative who accompanied the Claimant to the grievance meeting but was a reference to Mr Garey and what Ms Henderson told him.

[157]Mr Stewart’s conclusions on the grievance were not based solely on the statement that the Claimant had a terrible memory. He referred to it because he believed that it to be a relevant factor in deciding whose account of what happened at the LDI was more reliable. At the time of this investigation, no one – apart from the Claimant – was aware of the existence of the recording of the LDI, which would have helped to clear up any confusion about what had been said during the meeting. Everyone had to rely on their memory. Mr Podjaski had his notes, which were not verbatim. Another factor for Mr Stewart was that when the Claimant received the LDI outcome letter, neither him nor his trade union representative (Mr Garey), told Mr Podjaski that there was anything incorrect in it; which he would have expected given the strength of feeling about this. It was not raised by the Claimant until many months later, in September. Those were all factors that he took into account when making his decision on the grievance.

[158]Mr Stewart concluded that it was very unlikely that with all his training and experience that Mr Podjaksi would have ignored someone telling him during an LDI that they were having suicidal thoughts. As we now know from listening to the recording and reading the transcript, the Claimant did not tell Mr Podjaski in the meeting that he was having suicidal thoughts, at that moment. He referred to having had depression and suicidal thoughts in the past, which is very different. Mr Stewart did not conclude that the Claimant was lying, simply that there were different recollections of what was said. He did not dismiss what the Claimant said. His view of what happened at the LDI was that: “In my view the most likely scenario is that you mentioned depression whilst giving an overview of your medical history but this was taken as background information and not a cry for help.”

[159]He also concluded that Ms Henderson’s actions in halting the correspondence between the Claimant and Mr Podjaski was the right thing to do given the increasing accusatory and negative tone in the Claimant’s emails to his line manager. It was never appropriate to speak to a line manager in this way. He concluded that it was a good idea for Ms Henderson to ask the Claimant to a face to face meeting so that they could talk through any issues he continued to have with management. He found it reasonable for Ms Henderson to question the Claimant over his recollection of what happened at the LDI as part of her investigation as she had to compare his recollection with that of Mr Podjaksi so that she could decide on balance, what was likely to have happened. He concluded that there was no evidence that Ms Henderson was trying to cover up for Mr Podjaski or that she ignored what Mr Garey, the trade union representative, told her.

[160]By the time of the Tribunal hearing, Mr Stewart had listened to the recordings of the LDI and the meeting conducted by Ms Henderson on 9 October. He remained clear that nothing untoward happened in either meeting and he confirmed the outcome of the grievance investigation.

[161]Mr Stewart also believed that Ms Henderson had given the Claimant all the support that she was able to give to him. Mr Stewart reminded the Claimant that he could still take up the support available to him through the AXA Support Helpline.

[162]In his witness statement, Mr Stewart accepted that he had mis-recorded the point about the Claimant having a terrible memory as it was a more nuanced position, but after considering all the relevant points, he confirmed his decision on the grievance.

[163]The Claimant was advised of his right to appeal against the outcome of the grievance and that he had to submit any appeal in writing, to Dale Smith, within 7 days.

[164]On 15 December 2019, the Claimant wrote to Mr Smith to appeal against the grievance outcome. Since this was more than 7 days after the date the Claimant received Mr Stewart’s decision letter, Mr Smith concluded that the Claimant had appealed outside of the time frame. On 20 December 2019, Mr Smith wrote to the Claimant to tell him that the appeal had been received outside of the 7 day period set out in the ‘Individual Grievance Procedure’ but that he was happy to meet with him and would arrange a date to do so, in due course. Although it was not what was said, the Claimant took this to mean that Mr Smith was not going to hear his appeal and that the proposed meeting would be informal and outside of the procedure. The Claimant was not going to accept that so he raised this with his trade union representative, who wrote to Mr Smith to challenge what they thought he had decided. Mr Smith confirmed in writing that he had not refused to hear the Claimant’s appeal and that as the Claimant was then off sick, he would arrange a meeting to hear his appeal on his return. The Claimant was absent from work on 20 December and did not return to work until 6 January. The Claimant wrote to Mr Smith on 28 December to say that he was pleased that the formal appeal process would take place once he was well enough.

[165]The Claimant issued his second Employment Tribunal claim on 4 February 2020. The early conciliation period relevant to this claim was from 18 December 2019 to 1 February 2020.

[166]On 6 February 2020, the Claimant wrote to enquire after the progress of his appeal. The Claimant confirmed that he still wanted to proceed with it. Due to the Claimant’s impending leave, a date of 28 February was suggested but as the Claimant’s trade union representatives were not available on that day, it was proposed that the appeal happen on 5 March.

[167]The Claimant’s grievance appeal was heard on 6 March by Mr Dale Smith. The Claimant attended the hearing with Mr Garey, his trade union representative. The Claimant recorded the meeting without telling anyone present that he was doing so. In the hearing the Claimant stated that he did this as an adjustment, because of his disabilities, to assist him afterwards, in reviewing what had happened in the meeting. However, it was not clear why he failed to disclose to anyone in the meetings that he was recording them. There was no history as far as we were told, of him being refused adjustments in meetings and therefore no reason for him to assume that they would have refused to allow him to do this.

[168]At the start of the meeting the Claimant was asked to summarise his appeal. He began by informing Mr Smith about depression, Specfic Learning Difficulties and diverticulitis; and how they all affect him and his abilities at work. He then went over what had happened in the LDI meeting, his interactions with Mr Podjaksi and with Ms Henderson.

[169]After the meeting, Mr Smith sent the Claimant a copy of his notes and asked for his comments. Although the Claimant responded to say that he had not adequately captured the points raised, he did not provide notes of any additional points that Mr Smith had omitted. Mr Garey confirmed to Mr Smith that the notes had captured the essence of the meeting. The Claimant confirmed that he wanted the Respondent to consider his appeal letter as setting out his case on the appeal.

[170]At the start of the meeting, Mr Smith said ‘I know Sara is obviously not here anymore’. This was a reference to Ms Henderson. It is unlikely that the Claimant heard him as he did not respond to that point. In the appeal meeting the Claimant was aggrieved that Mr Podjaski was lying when he said that he had not mentioned his depression and suicidal thoughts in the LDI. He was also aggrieved that Mr Stewart had referred to him having a terrible memory and had, as he saw it, used that to undermine the credibility of what he said. Ms Henderson had covered up for Mr Podjaski by dismissing his recollection and what she had been told by Mr Garey. The Claimant wanted an acknowledgment from Ms Henderson, Mr Stewart and Mr Podjaski that he had been truthful and an acknowledgment of management wrongdoing.

[171]During the appeal hearing Mr Smith took the opportunity to speak to Mr Garey about what he recalled being said in the LDI. Mr Garey confirmed that he did recall depression/suicide being mentioned but that it had not been relevant to the LDI and instead, related to a period between 2007 and 2012. This was more detail than he gave Ms Henderson but not entirely different.

[172]On 23 March 2020 the UK went into a lockdown to stem the spread of the contagious Covid-19 virus. The Respondent had to continue to provide transport for essential workers throughout the pandemic. The Respondent had an agreement with all the relevant unions, to put all grievances on hold so that managers could focus on providing the much needed public transport service. The decision was communicated by the unions to drivers by notices on message boards as not all drivers had email access. We find it likely that the freeze on all internal procedures was in operation between March and May 2020.

[173]A few months later, Mr Smith continued his conduct of the grievance appeal. He did not speak to Ms Henderson as part of his investigation of the Claimant’s grievance appeal. Although Mr Smith could not remember the dates in the hearing, we find it likely that she was away from the business on a career break from 25 May 2020. Although she remained technically employed by the Respondent, she was to all intents and purposes not at work and not under the control of her employer during that time.

[174]As part of his investigation of the appeal, Mr Smith spoke to Mr Podjaski who was resolute in his belief that the Claimant had not raised with him in the LDI that he was suicidal or suffering from depression. He could not recall it. He questioned why the Claimant had not raised the alleged ommission at the time instead of waiting 6 months before doing so.

[175]When Mr Smith spoke to Mr Stewart he readily accepted that he may have misrepresented what the Claimant told him about his memory and he apologised.

[176]Mr Smith provided his outcome to the grievance in a letter to the Claimant dated 2 September 2020. He did not uphold the Claimant’s appeal. He told him that he had been unable to speak to Ms Henderson as she was not currently working for the Respondent at the time of the investigation. He confirmed that he had spoken to Mr Podjaski, Mr Garey and Mr Stewart.

[177]Mr Smith decided that because there were conflicting versions of what was said at the LDI he was unable to say for certain what exactly was said at the meeting. He believed that it was likely that something was said, as the Claimant and Mr Garey believed, but that it was most likely raised as some sort of background history, which Mr Podjaski had not focussed on as his job was to address the points relevant to the LDI. He was unable therefore to support the Claimant’s view that there was managerial wrongdoing that would warrant an apology.

[178]Mr Smith confirmed that he could not identify any managerial wrongdoing by Ms Henderson and therefore upheld Mr Stewart’s decision not to uphold the grievance. In coming to that decision, Mr Smith had looked at the email correspondence between the Claimant and Mr Podjaski in October 2019 and concluded that the Claimant had taken an unreasonable level of offence to Mr Podjaski’s recollection of events in the LDI. He presumed that Mr Podjaski was lying to cover up his in-action and made strong accusations in his emails to him. Although the Claimant seemed to believe that he was being accused of lying, Mr Smith concluded that neither Mr Podjaski nor Ms Henderson had accused him of being dishonest. There was no such accusation in the Tribunal hearing either.

[179]Mr Smith also passed on Mr Stewart’s apologies to the Claimant for two reasons. Firstly, in his outcome letter it is likely that he misunderstood that the Claimant’s trade union representative at the grievance meeting was different to the at the person who accompanied him to the LDI in January 2019. Secondly, he apologised for misrepresenting what the Claimant said in the meeting by referring to him saying that he had a terrible memory. Mr Stewart was happy for Mr Smith to set the record straight in the appeal outcome letter.

[180]Mr Smith apologised for the excessive time it took to conclude this appeal, which he explained was as a result of the COVID-19 pandemic which meant that certain individuals were unavailable and the Respondent’s internal HR processes having been frozen.

[181]At the end of the letter, Mr Smith informed the Claimant that this marked the end of the grievance process and that there was no further right to appeal.

[182]Lastly, Mr Smith acknowledged that the Claimant had a new TOM (Trains Operating Manager) and he hoped that the Claimant and the Respondent could put all this behind them. He said that he had discussed the Claimant’s case with the new TOM, Ms Crook, who was looking forward to meeting with the Claimant to discuss how best to support his needs into the future.

[183]The Claimant wrote to Mr Smith on 25 September disputing the points made in his letter.

[184]On 12 November 2020, the Claimant wrote to Mr Smith to let him know that he had found out that Ms Henderson had returned to work. He wrote again on 14 November. He wanted Mr Smith to re-open the grievance appeal and interview her. Mr Smith refused to do so. He replied to the Claimant on 16 November to confirm that he would not re-open the grievance. He explained that Mr Stewart had already interviewed Ms Henderson and that he had read the notes of that interview and took the contents into account as part of his investigation. He did not believe that anything further could be gleaned by interviewing Ms Henderson and declined to do so.

[185]The Claimant wrote to Mr Smith again on 20 November 2020. The Claimant’s third Employment Tribunal claim was issued on 16 February 2021. The early conciliation certificate confirmed that it took place between 2 December 2020 and 13 January 2021.

Law

[186]The Claimant brought three claims in the Employment Tribunal. The complaints in those claims are of harassment related to disability, victimisation, direct disability discrimination, indirect disability discrimination, failure to make reasonable adjustments and victimisation. Disability / knowledge of disability

[187]The Respondent accepts the Claimant had specific learning difficulties, including dyslexia, at all material times, and that this is capable of amounting to a ‘mental impairment’ as defined under s.6 Equality Act (“EqA”). Early in the litigation, the Respondent accepted that the Claimant was a disabled person at the material time and that this amounts to a disability for the purposes of s. 6 EqA. The Tribunal therefore does not have to address that issue.

[188]The Respondent does not accept that those individuals dealing with the Claimant as alleged had knowledge that the Claimant was disabled. The Tribunal must consider whether each person named in each allegation of disability discrimination had knowledge that the Claimant was disabled. This is considered below in the relevant sections of the judgment below. Time Limits

[189]The Claimant brings complaints of disability discrimination against the Respondent under the Equality Act 2010. The Respondent submitted that some of the complaints in these claims are out of time. When assessing whether we have the jurisdiction to consider complaints, we firstly have to consider the effect of the early conciliation process on the time limits. It may be that after that assessment, we consider that the complaints have been brought within the statutory time limits. All the Claimant’s complaints were subject to a three-month time limit, as set out in the EqA. Section 123(1) of the EqA 2010 states that proceedings on a complaint of within 120 should be brought after(a) the end of the period of 3 months starting with the date of the act to which the complaint relates; or

(b) such other period as the employment thinks just and equitable.

[190]This means that the Claimant had to bring his claims to the Tribunal within three months of the incident, omission or when he was subjected to indirect discrimination. Those time limits are affected by the application of the statutory ACAS Conciliation Scheme. The three-month time limit is paused during ACAS early conciliation: the period starting with the day after conciliation is initiated and ending with the day of the early conciliation certificate does not count (s.140B(3) EqA).

[191]Secondly, if the time limit would have expired during early conciliation or within a month of its end, then the time limit is extended so that it expires one month after early conciliation ends (s.140B(4) EqA).

[192]In applying section 123(1)(a), the Tribunal has to decide when the act or failure to act occurred so that it can decide whether it has been issued in time. When a claimant makes allegations about a series of acts/omissions, the Tribunal has to consider, and whether they a series of single one-off acts, or that they could be considered as part of a continuing act so that any earlier potentially out-oftime allegations are considered in time. The fact that the Claimant was pursuing internal resolution by way of a grievance is a factor which may be taken into account, although it is not determinative (Apelogun-Gabriels v London Borough of Lambeth

[2002] IRLR 116

[193]Firstly, the tribunal has to decide whether any of the discrimination complaints are out of time, taking into account the extensions following the ACAS conciliation process. If they are, we have to determine whether the allegations are part of a continuing act each of which could be described as a ‘one-off’. If the Tribunal decides that they are ‘one-offs’ then time would run from each separate allegation.

[194]The leading case on setting out principles that a tribunal must consider when analysing whether there was a continuing act or an act extending over a period, is the Court of Appeal case of Hendricks v Metropolitan Police Comr

[2003] IRLR 96

. This case made clear that the focus of inquiry must be on whether there was an ongoing situation or continuing state of affairs in which the Claimant was treated less favourably. In deciding whether a particular situation gives rise to an act extending over time it will also be appropriate to have regard to(a) the nature of the discriminatory conduct about which complaint is made, and

(b) the status or position of the person said to be responsible for it. The tribunal is also to be careful to distinguish between the ongoing effects of a oneoff discriminatory act as opposed to an act that extends over a period of time.

[195]The Respondent resists any application to have the Tribunal consider the Claimant’s allegations as a continuing act.

[196]If some of the allegations in a claim are out of time and not part of a continuing act, the Tribunal must consider whether to apply section 123(1)(b) and extend time on a just and equitable basis to enable the Claimant’s allegations to be considered.

[197]The Tribunal is mindful that time limits are to be exercised strictly in the employment tribunal and there is no presumption that a tribunal should exercise its discretion to extend time on the just and equitable ground unless it can justify failure to exercise a discretion. Instead, the onus is always on the claimant to convince the tribunal that it is just and equitable to extend time. It has been held that whether a claimant succeeds in persuading a tribunal to grant an extension in any particular case is not a question of either policy or law; it is a question of fact and judgment, to be answered in each individual case, by the tribunal at first instance, which is empowered to answer it.

[198]If the Tribunal decides that the late complaints are not brought in date by being part of a continuing act, the Tribunal may extend the three-month limitation period for discrimination claims under s.123(1)(b) EqA where it considers it just and equitable to do so. That is quite a broad discretion. In exercising it, the Tribunal should have regard to all the relevant circumstances. They will usually include: the reason for the delay; whether the Claimant was aware of her rights to claim and/or of the time limits; whether she acted promptly when she became aware of her rights; the conduct of the employer; the length of the extension sought; the extent to which the cogency of the evidence has been affected by the delay; and the balance of prejudice (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

[199]The limitation period in a claim for a failure to make reasonable adjustments was considered by the Court of Appeal in Hull City Council v Matuszowicz

[2009] ICR 1170

. For the purposes of claims where the employer was not deliberately failing to comply with the duty, and the omission was due to lack of diligence, it is to be treated as having decided upon the omission when, if it had been acting reasonably, it would have made the reasonable adjustments. The Court acknowledged that imposing an artificial date from which time starts to run is not entirely satisfactory, but pointed out that the uncertainty and even injustice that may be caused could, in appropriate cases be alleviated by the Tribunal’s discretion to extend the time limit where it is just and equitable to do so. Indirect Discrimination

[200]The law in relation to this complaint is the Equality Act 2010, Section 19, which states that:- “(1) A person(a) (A) discriminates against another

(b) (B) if A applied to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s If – (a) A applies, or would apply, it to persons with whom B does not share that characteristic, (b) it puts, or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

[201]Disability is listed as being one of the protected characteristics.

[202]The first stage is to establish whether there is a PCP. A PCP could include formal, or informal rules, policies, arrangements, criteria, practices, conditions, prerequisites, qualifications, provisions. The PCP must be neutral and apply to all in the relevant group, whether or not they have the protected characteristic.

[203]The Tribunal will need to decide what the correct PCP is. The Respondent accepts that it applied the first alleged PCP. It does not agree that the rest were PCPs or that they were applied. The Claimant relies on the following as PCPs: i. Issuing the Claimant with an oral warning for poor attendance; ii. Requiring the Claimant to take carried over leave at a specified time; iii. Actions of Dale Smith set out in issue 17(a) – (e), which repeats the allegations at issue 11(ii) – (vi).

[204]If the Tribunal is satisfied that the PCPs were or would have been applied as the Claimant contends, then the next step is to analyse whether there was a particular disadvantage for those with the relevant protected characteristic when compared to those who do not share the protected characteristic.

[205]Section 23(1) EqA states that, on a comparison, for the purposes of section 19, there must be no material difference between the circumstances relating to each

[206]In order to establish whether there is a group disadvantage the Tribunal will need to identify the pool for comparison. The Tribunal were referred by the Respondent to the case of Essop v Home Office UK Border Agency

[2017] ICR 640

, which the question of how to define the pool for comparison was discussed. In that case, Baroness Hale of the Supreme Court, in discussion the question of a pool for comparison, referred to the Statutory Code of Practice (2011), prepared by the Equality and Human Rights Commission under Section 14 of the Equality Act 2006, which states at paragraph 4.18. “‘4.18 In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively…..’ In most situations, there is likely to be only one appropriate pool, but there may be circumstances where there is more than one. If this is the case, the Employment Tribunal will decide which of the pools to consider. 4.19 Looking at the pool, a comparison must be made between the impact on the people without the relevant protected characteristic, and its impact on the people with the protected characteristic. This makes sense. It also matches the language of section 19(2)(b) which requires that ‘it’ – i.e. the PCP in question – puts or would put persons with whom B shares the characteristic at a particular disadvantage compared with persons with whom B does not share it. There is no warrant for including only some of the persons affected by the PCP for comparison purposes. In general, therefore, identifying the PCP will also identify the pool for comparison. 4.20 The way that the comparison is carried out will depend on the circumstances, including the protected characteristic concerned.”

[207]In summary, all the workers affected by the PCP in question, should be considered. Breach of the duty to make reasonable adjustments

[208]Section 20 Equality Act 2010 sets out the duty to make adjustments as follows: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply… (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts the disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”

[209]Section 21 deals with the consequences of a failure to comply with the duty: “(1) A failure to comply with the first, second or third requirements is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against B if he fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second and third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of another provision of this Act or otherwise.”

[210]Schedule 8 deals with the employer’s knowledge and sets out the following: “20(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know –(a) N/A to this case;

(b) … that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.”

[211]Did the Respondent fail to take such steps as were reasonable to have to take to avoid the substantial disadvantage; in particular, did they fail to consider/make the adjustments referred to by the Claimant in his case.

[212]The guidance for the step-by-step process to be followed by tribunals in assessing a claim under section 20 is set out in Environment Agency v Rowan

[2008] IRLR 20

, approved in Newham Sixth Form College v Sanders

[2014] EWCA Civ. 734

[213]In the case of Environment Agency v Rowan

[2008] IRLR 20

the EAT set out Guidance on how an employment tribunal should approach a complaint of a failure to make reasonable adjustments under what was then section 3A(2) of the DDA by failing to comply with the Section 4A duty. The tribunal must identify the following (amended since the equality Act 2010):-213.1 the provision, criteria or practice applied by or on behalf of an employer, or;

213.2 the physical feature of premises occupied by the employer;

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

213.4 the nature and extent of the substantial disadvantage suffered by the claimant.

[214]The EAT held that an employment tribunal cannot properly make findings of a failure to make reasonable adjustments without going through this process. Unless it has identified the four matters as set out above it cannot go on to judge if any proposed adjustment is reasonable.

[215]The tribunal has to be careful when identifying the ‘provision, criterion or practice’ as a failure to identify this correctly risks invalidating, for the purposes of the duty to make reasonable adjustments, any findings of substantial disadvantage by comparison to persons who are not disabled. A provision, criterion or practice could include such matters as the rules governing the holding of disciplinary or grievance hearings or the non-payment of allowances such as sick pay. In the case of HM Prison Service v Johnson

[2007] IRLR 951

Mr Justice Underhill in the EAT stated that a tribunal must identify with some particularity what ‘step’ it is that the employer is said to have failed to take in relation to the disabled employee. In that case the court held that the tribunal had failed to set out the specific step the employer had been required to take - suggesting that she should have been moved to a non-hostile environment’ or offered ‘other employment’ in a non-prison environment, without finding that suitable jobs were available - was insufficient.

[216]The term ‘provision, criterion or practice’ should be construed widely. However, it will usually connote something which has an element of repetition about it and occurs more than a one-off act: Nottingham City Transport Ltd v Harvey [2013] EqLR 4. It is not out of the question that it could encompass a one-off act but there is generally “some form of continuum in the sense that it is the way that things generally are or will be done.” Ishola v Transport for London

[2020] IRLR 368

at 38. Direct Disability Discrimination

[217]Section 13 of the Equality Act 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.

[218]In order for the Respondent to be liable for any unlawful direct discrimination, the Tribunal has to be satisfied that there has been less favourable treatment - in comparison to the treatment of an actual or hypothetical comparator; and that such treatment was done on the grounds of the Claimant’s protected characteristic, i.e. his disability.

[219]The Respondent submitted the case of Glasgow City v Zafar

[1998] ICR 120

as authority for the principle that when the Tribunal is undertaking the comparative exercise as set out above, the correct comparator is an individual with either no or some other disability.

[220]In section 212 of the EqA, it states that ‘detriment’ does not include conduct that amounts to harassment. it is therefore not possible for the allegations to be both harassment and direct discrimination. The Tribunal will address this in the judgment section below. Harassment

[221]The law on harassment is contained in section 26 Equality Act 2010: “A person(a) (A) harasses another

(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purposes or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B”.

[222]Section 26(4) states that in deciding whether conduct has the effect referred to in subsection (1)(b) set out above, each of the following must be taken into account:(a) The perception of B

(b) The other circumstances of the case

[223]The Tribunal was aware of the case of Land Registry v Grant

[2011] EWCA Civ. 769

in which Elias LJ focused on the words “intimidating, hostile, degrading, humiliating or offensive” and observed that: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caused by the concept of harassment”.

[224]In the case of Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

the EAT stated that the Tribunal has to consider each element of the test:(i) was there unwanted conduct,

(ii) did it have the purpose or effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating, or offensive environment, and (iv) was it related to the Claimant’s protected characteristic.

[225]The EAT also stated that conduct that is treated as violating a complainant’s dignity is not so merely because he thinks it does. It must be conduct which could reasonably be considered as having that effect. The Tribunal is obliged to take the complainant’s perspective into account in making that assessment but must also consider the relevance of the intention of the alleged harasser in determining whether the conduct could reasonably be considered to violate a complainant’s dignity.

[226]It is also important where the language used by the alleged harasser is relied upon, to assess the words used in the context in which the use occurred.

[227]The Respondents disputed that they had harassed the Claimant at all. Victimisation

[228]The first question for the tribunal is whether the Claimant did a protected act.

[229]Section 27(1) of the EqA 2010 states: “A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because: (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.”

[230]Section 27(2) defines protected act as follows: “(a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[231]In the claims brought by the Claimant, there are two protected acts he relies on. An express reference to the Equality Act is not required. In Durrani v London Borough of Ealing

UKEAT/0454/2012

, Langstaff P said: “I would accept that it is not necessary that the complaint referred to race using that very word. But there must be something sufficient about the complaint to show that it is a complaint to which at least potentially the Act applies. The Tribunal here thus expressly recognised that the word ‘discrimination’ was used not in the general sense familiar to Employment Tribunals of being subject to detrimental action upon the basis of a protected personal characteristic, but of being subject to detrimental action which was simply unfair… This case should not be taken as any general endorsement for the view that where an employee complains of ‘discrimination’ he has not yet said enough to bring himself within the scope of Section 27 of the Equality Act. All is likely to depend on the circumstances, which may make it plain that although he does not use the word ‘race’ or identify any other relevant protected characteristic, he has not made a complaint in respect of which he can be victimised. It may, and perhaps usually will, be a complaint made on such a ground. However, here, the tribunal was entitled to reach the decision it did, since the claimant on unchallenged evidence had been invited to say that he was alleging discrimination on the ground of race. Instead of accepting that invitation he had stated, in effect, that his complaint was rather of unfair treatment generally.”

[232]There is no discrimination when the reason for the unfavourable treatment is the disruptive way in which the complaints were made rather than the complaints themselves.

[233]Evidence, information or an allegation is not a protected act if it is made in bad faith, namely if the claimant has not ‘acted honestly’ or did it with an ulterior motive. The Respondent referred the Tribunal to the case of Kalu v University Hospitals Sussex NHS Foundation Trust

[2022] IRLR 129

. This was explored further in Saad v Southampton University Hospitals NHS Trust

2019 ICR 311

, EAT, in which HHJ Eady said at para 50: “...the focus should be on the question whether the employee was honest when they gave the evidence or information or made the allegation in issue. In answering that question, the ET will already have established that the evidence, information or allegation was false; that does not mean the employee acted in bad faith, although it may be a relevant consideration in determining that question (the more obviously false the allegation, the more an ET might be inclined to find that it was made without honest belief)…Motivation can be part of the relevant context in which the ET assesses bad faith, but the primary focus remains on the question of the employee’s honesty. Burden of Proof in discrimination cases

[234]In relation to the burden of proof in a disability case it was stated in Johnson above that it would be an error to regard the fact that a disabled person had been treated badly as dispositive of the question whether his disability (or something related to it) was, or was part of the reason for the treatment complained of. If it was not, then, however reprehensible the treatment, it was not discrimination.

[235]In assessing discrimination complaints tribunals would be expected to go through a staged process to determine whether the claim was proven in relation to the burden of proof. In the case of Project Management Institute v Latif

[2007] IRLR 579

Mr Justice Elias expressly approved guidance on the application of the burden of proof in reasonable adjustment cases as contained in the Disability Rights Commission Code of Practice. He stated that: “The key point is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of duty. There must be evidence of some apparently reasonable adjustment which could be made …… we do think it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not”.

[236]If the Tribunal concludes, following application of that process, and with the burden on the Claimant, that there were steps which it would have been reasonable for the employer to take in order to prevent the Claimant from suffering from the disadvantage in question; then the burden would shift to the Respondent to seek to show that the disadvantage would not have been eliminated or reduced by the proposed adjustment and/or that another reasonable adjustment had been made or the adjustment identified by the Claimant was not a reasonable one to make.

[237]The Tribunal was aware of the case of Fareham College Corporation v Walters

UKEAT/0396/08

in which the EAT held that (as was suggested in the Rowan list) it is not always necessary for the Tribunal in a reasonable adjustment claim to specify the identity of the non-disabled comparator.

[238]In relation to the complaint of indirect discrimination, in the case of Dobson v(1) North Cumbria Integrated Care NHS Foundation Trust

(2) Working families (intervening) UKEAT /0220/19 the EAT confirmed that whilst the burden of proof requirements under section 136 EqA as described above, apply to complaints of indirect discrimination, a prima facie case can be established by statistical evidence or by the fact that the particular disadvantage may be one in respect of which judicial notice may be taken. The court stated that judicial notice may be taken of (i) facts that are so notorious or so well established to the knowledge of the court that they may be accepted without further enquiry, and (ii) other matters that may be noticed after enquiry, such as after referring to works of reference or other reliable acceptable sources. The court must take judicial notice of matters directed by statute and of matters that have been so noticed by the well-established practice or precedents of the courts. Beyond that, the court has a discretion and may or may not take judicial notice of a relevant matter and may require it to be proved in evidence. The party seeking judicial notice of a fact has the burden of convincing the court that the matter is one capable of being accepted without further enquiry.

[239]If the Claimant satisfies all the above elements of the test, then the Tribunal must go on to consider whether the PCP is a proportionate means of achieving a legitimate aim. There can be no finding of indirect discrimination unless all 4 elements are met, as was emphasised in the case of Essop, referred to above.

[240]The Respondent correctly submitted that the test for justification is an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition (see Hampson v Department of Education and Science

[1989] ICR 179

[241]In considering proportionality the Tribunal will need to consider whether the PCP was an appropriate means of achieving a legitimate aim and reasonably necessary (see Chief Constable of West Yorkshire Police and anor v Homer

[2012] ICR 704

). The Respondent is not required to prove that there was no other way of achieving its objectives. In assessing proportionality, the Tribunal must assess the needs of the employer and the discriminatory effect on those who share the protected characteristic. Rule in Henderson v Henderson

[242]As submitted by the Respondent, the rule in Henderson v Henderson (1843) was formulated as follows: “where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”

[243]This case sets out a form of estoppel based on abuse of process, and involves the court striking a balance between a claimant's right to bring before the court 'genuine and legitimate claims with a defendant's right to be protected from being harassed by multiple proceedings where one should have sufficed.'

[244]In Johnson v Gore Wood

[2002] 2 AC 1

at 31, Lord Bingham set out what is regarded as the leading formulation of the principles to be applied when determining whether a claim (or defence) should be struck out as an abuse of process under the rule in Henderson v Henderson: ''The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all…………It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. … While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.'' (The Tribunal’s emphasis).

[245]The Tribunal should examine the party’s reason for not raising the issue earlier. It should also consider whether the party’s earliest opportunity to bring the claim was by way of amendment to extant proceedings. Applying the Law set out above to the Facts found by the Tribunal

[246]The Tribunal will go through the items in the list of issues beginning at page 1409 of the bundle of documents. The issues in all three claims were taken out of the claim forms and written down as a list of issues. The issues in all three claims are here, separated into those issues arising from each claim, so that it is easy to see which complaint was made in which employment tribunal claim.

[247]In the following section, we use the numbering used in the list of issues beginning at page 1409. We will first set out the issue and then apply the law to the facts and give our judgment on it.

[248]In issues 5 and 7, the Claimant relies on the same matters for his harassment and direct discrimination complaints. Section 212 Equality Act 2010 states that ‘detriment’ does not include conduct which amounts to harassment. Allegations numbers 1 - 4

[249]The Tribunal will give its judgment on the time issue in relation to each allegation set out in the list of issues. We will also address the question of whether there was a relevant continuing act and whether or not we will extend time on a just and equitable basis to allow us to make a judgment on a complaint that is issued outside of the statutory time limit.

[250]We will also address the issue of whether the individual being complained about in each issue had knowledge of the Claimant’s disability.

[251]Allegations in issue 5 are brought to the Tribunal as acts of harassment on the grounds of disability. Allegations 5(i), 5(ii) and 5(iii)

[252]The Claimant brought this claim on 24 April 2019, relying on early conciliation which took place between 1 March and 18 March 2019. Therefore, complaints that occurred before 2 December 2018, are potentially out of time. We considered whether these allegations related to others so that we could consider them to be part of a continuing act. The Claimant applied for these jobs in 2015 and 2016. He does not bring this complaint until 2019. The next complaint, which is about Ms Kaur’s handling of his complaint, is unrelated to whether he should have been appointed to the posts. We had not evidence that she was part of the appointment process and there is a gap in time between those complaints at 5(i) – 5(iii) and the one at 5(iv). It is therefore our judgment, that these allegations are out of time and not part of any continuing act.

[253]We considered whether to extend time on a just and equitable basis, to allow us to consider these complaints. We bore in mind that time limits are to be maintained. We considered that the Claimant had access to trade union representation and advice throughout the events covered by his three claims. He waited two years after he failed to be appointed to the jobs before he made the data subject access request. He also waited sometime after that before bringing these claims. The Claimant is a person with mental impairments, and this has been the case throughout the years covered by these claims. However, at the same time he was aware of the employment tribunal procedures, having engaged in early conciliation before. His evidence was that he thought something was wrong at the time of his assessment in 2016 and in 2018 but did not begin early conciliation for this claim until March 2019. It is our judgment, taking everything into account to decline to exercise our discretion to extend time to allow us to consider the complaints at 5(i), 5(ii) and 5(iii). They were brought to the Tribunal outside the statutory time limit, they are not part of a continuing act and we do not exercise our discretion to extend time. Those complaints are dismissed. Allegation 5(iv)

[254]This complaint relates to Ms Kaur’s written response on 25 January 2019 to the Claimant’s complaint. We considered it here as an allegation of harassment.

[255]The Tribunal considered that the Claimant had clearly indicated in his footnote that he was a person with a ‘communications-based’ disability. The Respondent submitted that this was not enough for her to know that he would suffer any particular difficulty in comprehending an instruction, but it is our judgment that it is likely that this was inherent in the remit of a describing it as a ‘communications-based’ disability. Ms Kaur was an HR professional and we would have expected her to make an enquiry if she was unsure. It is our judgment that Ms Kaur used a poor choice of words in her response to the Claimant when she stated that he ‘chose’ not to read the whole of Mr Milewski’s email.

[256]It is also true that this was the only interaction between Ms Kaur and the Claimant. He was not someone that she knew. However, he did present his disability status in his footnote. The Tribunal is aware that we must not cheapen the significance of the words harassment, intimidating and hostile etc.

[257]It is possible that Ms Kaur had not read the Claimant’s email all the way down to the footer in which he informed anyone reading his emails, that he has, what he referred to as a ‘communications-based’ disability, which included dyslexia. The Claimant’s footnote does not mention dyslexia specifically. It is our judgment that the Claimant had missed the information in the footer to Mr Milewski’s email and that this was related to his disabilities. Allegations 6 (i) – (iii)(b)

[258]It is our judgment that Ms Kaur did not intend to offend the Claimant when she wrote her response to his complaint, following her investigation. However, she was careless in making the comment that he had chosen not to read the footnote to Mr Milewski’s email; as the Claimant clearly referred to ‘mine’ in his footnote, in relation to disability. He was not making a general statement about disability but informing the reader of his email about himself. If Ms Kaur had not read the footnote, then she was doing exactly as she said he had. She failed to notice that he was disabled with a mental impairment. The footnote said that he was disabled and not simply that he had problems or issues in that regard. We had no evidence from Ms Kaur and no evidence in the hearing that she had an intention to create a hostile, intimidating or offensive environment for the Claimant. However, this comment was worded in a way that would likely cause offence to him as a person with a communications-based impairment, where he specifically said that he may not communicate in an ideal way which should indicate that the way that the Respondent usually communicates with candidates, may not be easy or straightforward for him. Ms Kaur stated that this was the Respondent’s standard contact procedures with applicants. But the Claimant as a disabled person pointed out to her in his footnote and in his email, that those procedures had caused him some issues. She responded in a way that caused him to be offended and was unnecessary. It is our judgment that the comment was not required. It is also our judgment that it caused him offence and in the circumstances, it was reasonable that it did so.

[259]It is our judgment that this complaint is in time. It is also our judgment that Ms Kaur’s response to the Claimant that it was his choice to not follow the procedures referred to in the footnote to Mr Milewski’s email and in the recruitment pack, was unwanted conduct, and was upsetting and offensive to the Claimant. it is also our judgment that it had the effect of creating a hostile environment for the Claimant and he was offended by it. It was reasonable for it to have that effect, given that he stated in the footnote in his letter, that he had a communications-based disability and was willing to change his way of communicating, if it would assist. The effect of saying to the Claimant that he had deliberately chosen not to read the footnote of Mr Milewski’s email and therefore bore all the responsibility for his email going astray was not cancelled out by the fact that she also stated that the Respondent would make it clear by email monitoring. We were not clear what the email monitoring would be and how this would address the point that the Claimant was making in his complaint. It is our judgment that Ms Kaur’s comment related to the Claimant’s disability.

[260]For those reasons, it is our judgment that the complaint of harassment at 5(iv) succeeds. Allegation 7 (i) – (iv)

[261]It is our judgment that the Mrs Kaur’s statement in the letter was not an act of direct discrimination. Applying the definition of ‘detriment’ at Section 212 Equality Act means that the act that we have decided was harassment cannot be considered here as an act of direct discrimination.

[262]The other allegations are out of time.

[263]The complaint of direct discrimination fails.

[264]In Claim 2 the Claimant makes complaint of a failure to make reasonable adjustments, harassment, direct discrimination and victimisation. Allegations 5, 6(i) an 8(i)

[265]We did not have any explanation from the Claimant as to why he failed to raise the issue of the decision to give him an oral warning for poor attendance, when he brought his first claim. The Claimant was given an oral warning on 29 January 2019. His complaint about this was not included in the first claim, issued on 24 April 2019. The second claim was not issued until 4 February 2020. Whether or not he had to undertake a further period of early conciliation, the claim was issued out of time, as it was issued 11 months after the oral warning was given and over 7 months out of time.

[266]We considered whether, the complaint at paragraph 5 could be part of a continuing act with the other complaints in Claim 2. It is our judgment that they are far apart in time, and they concern different individuals. The complaint at paragraph 5 is about Mr Podjaski’s actions. The complaints at paragraphs 6(i) and 8(i) are also about Mr Podjaksi and his alleged failure to act soon after the meeting on 29 January. It is likely that the suggestion here is that he failed to act in the following month or so.

[267]The remaining complaints at paragraphs 6(ii) – (iv), 8(ii) – (iv) and 10 all involve allegations against other people and not Mr Podjaski, and relate to events that occurred in October, November and December 2019; many months after the LDI. They are also not about a sanction given at an LDI but about the Claimant’s grievance and how this was addressed by the Respondent’s senior managers.

[268]Taking all that into consideration, it is this Tribunal’s judgment that the allegation at paragraphs 5, 6(i) and 8(i) are out of time and not part of any continuing act.

[269]The Tribunal considered whether to use our discretion to extend time to allow us to consider these allegations. We bear in mind that time limits are to be maintained and only extended if the party asking for this has persuaded the Tribunal that it is just and equitable to do so. In this case the Claimant has had the benefit of trade union representation throughout these disputes with the Respondent and he had already issued one claim in the Tribunal. He was aware of the time limits involved.

[270]In the circumstances, we do not use our discretion to extend time.

[271]The issues raised in complaints 5, 6(i) and 8(i) are out of time and cannot be considered by the Tribunal.

[272]In addition, it is this Tribunal’s judgment that there were no details of disabilities on the Claimant’s personnel file. Neither the Claimant nor his trade union representative asked Mr Podjaski to consider his sickness absence under the fitness to work part of the absence management procedure. Mr Podjaski did not recall the Claimant telling him during the LDI about him experiencing depression and suicidal feelings some years before because when they were asked in the meeting, the Claimant and his trade union representative clarified that it was not something that they wanted to go into and was not relevant to the Claimant’s recent absence. Allegations 6(ii) and 8(ii)

[273]We firstly consider this under the heading of harassment. If it is successful here, we cannot also consider the same allegation as an allegation of less favourable treatment under the heading of direct disability discrimination below. If it is unsuccessful as an allegation of harassment, we will consider whether it is direct disability discrimination as complained about in Allegation 8(ii).

[274]We accept Mr Podjaski’s evidence that he did not recall that the Claimant had told him in the LDI that he had suffered from depression and suicidal thoughts in the past or the present. He simply did not recall it. The Claimant suspected that this was untrue, and that Mr Podjaksi was lying. It is our judgment that Mr Podjaski and the Claimant had a good working relationship at the time of this meeting. He took notes of the important points made at the meeting and he turned the screen so that they could see as he did so. At no point did either the Claimant or his trade union rep say to Mr Podjaksi that he had failed to note down the serious depression and suicidal thoughts that had been shared with him and or did they ask him what action he was going to take about it. The Claimant refused to read the notes. The information appeared to be background. Mr Podjaski stopped the meeting to clarify that this was not something that he was expected to take action on, and both the Claimant and Mr Garey reassured him that it was background, with words to that effect. The Claimant did not ask for reasonable adjustments. There were no details on his personnel file of his disability, his IBS/diverticulitis. There was no evidence that Mr Podjaksi was knew that the Claimant would be put to a substantial disadvantage based on his sick record.

[275]In his email of 3 October, Mr Podjaski confirmed that he could not recall anything being said in the LDI about the Claimant suffering from depression and suicidal thoughts in the past. He had no note of any discussion of depression and suicidal thoughts. He had no independent recollection of it. It is the Tribunal’s judgment that Mr Podjaski was not acting in a way that was creating a hostile, intimidating or otherwise degrading environment by failing to recall that being said in the meeting. in our judgment, this was his honest recollection of the meeting.

[276]It is our judgment that it was not his intention to harass the Claimant by honestly failing to recollect what was said in the meeting. It is also our judgment, that it could not reasonably have that effect. The Claimant and Mr Garey downplayed the depression and suicidal thoughts in the meeting and confirmed that they did not want to go down that route but that they were only mentioning it to give context and the background to the development of the diverticulitis. Mr Podjaksi stopped the meeting and made sure that they did not want him to do anything about it and they confirmed that it was, in effect, context. He carried on with the meeting and focussed on the conditions that caused the Claimant not be at work in the period under consideration.

[277]In those circumstances, it is our judgment that the Claimant has failed to prove that facts from which we could conclude that this was harassment.

[278]Was it direct discrimination? In order for it to be so, Mr Podjaski would have had to deny that the Claimant spoke about his depression and suicidal thoughts at the LDI, because the Claimant was disabled. It is our judgment that he did not write the contents of the email of 3 October because the Claimant is disabled.

[279]It is our judgment that he wrote as he did in the email of 3 October because he honestly did not recall it being said in the meeting. from the transcript it is our judgment that Mr Podjaski dealt with the issue fairly at the time it was raised in the meeting. The transcript shows that he discussed it with Mr Garey and the Claimant, and they both stated that they did not want to go down that road at the moment. Before leaving the subject, he advised the Claimant that if he needed further support with those issues, he should refer to TOM Henderson. There was no objection to this suggestion from either the Claimant or Mr Garey. Mr Podjaski then went back to the reasons for the absence which triggered the LDI meeting. It is our judgment that Mr Podjaski took his responsibilities as a line manager seriously and that he would not have passed over the issue of a train driver declaring depression and suicidal thoughts. The recording and transcript show that he did not do so. He addressed it in the meeting and moved on to the purpose of the meeting, which was to deal with the reasons for the Claimant’s recent absences.

[280]The Claimant later reflected and after many months decided that Mr Podjaski’s failure to take action on his reference, in passing, to depression and suicidal thoughts, was less favourable treatment. Even if it was unwanted conduct, it is our judgment that it was not done on the grounds of the Claimant being a disabled person. It is our judgment that at the date of the LDI, Mr Podjaski was not aware that the Claimant was a disabled person.

[281]Mr Podjaski understood from his exchange in the LDI meeting, with the Claimant and Mr Garey that although this was a serious matter, it was not current. Also, he made clear to them that if the Claimant needed support with depression and suicidal thoughts, he should go to TOM Henderson for it. There was no objection to that suggestion in the meeting. Mr Garey and the Claimant agreed with it. Mr Podjaski then carried on the meeting. Mr Podjaski did not recall that exchange when he wrote to the email of 3 October 2019.

[282]It is our judgment that this allegation fails as an allegation of harassment. This allegation also fails as an allegation of direct disability discrimination as the Claimant has failed to prove facts from which the Tribunal could conclude that Mr Podjaski treated the Claimant less favourably than he would have treated someone else in the same situation with no or some other disability. It was not harassment, nor was it less favourable treatment on the grounds of disability.

[283]Allegations 6(ii) and 8(ii) fail and are dismissed. Allegations 8(iii) (as this is the next one in date order)

[284]This is an allegation of direct discrimination.

[285]It is our judgment that Ms Henderson looked into the Claimant’s version of events regarding the LDI and what the Claimant said occurred as part of his appeal against the outcome.

[286]She met with the Claimant in an informal meeting on 9 October, because of the inappropriate and offensive emails he had been sending to his manager. She intervened to stop it and heard the Claimant’s complaint about Mr Podjaski.

[287]In those circumstances, Ms Henderson did not refuse to look into the Claimant’s version of events. She heard the complaint. She told him that it was impossible to know what happened with any certainty, even if he was telling her his honest, heartfelt recollection, because she had not been there and there was no independent way of checking. She could not simply rely on his recollection since there were other people in the room who had different recollections.

[288]In this Tribunal’s judgment the Claimant has failed to establish facts from which the Tribunal could conclude that Ms Henderson treated him less favourably than she would have treated someone with no or some other disability. The way she conducted this meeting, and the outcome of the meeting were appropriate and likely to be how she would have conducted it with someone with no or some other disability.

[289]The allegation of direct discrimination at 8(iii) fails and is dismissed. Allegations 6(iii) harassment 8(iv) direct discrimination and 9(i)victimisation

[290]These allegations all relate to Mr Lee Stewart’s conduct of the Claimant’s grievance and whether he failed to uphold the grievance to cover up for Mr Podjaski and Ms Henderson.

[291]It is our judgment that Mr Lee Stewart did not uphold the Claimant’s grievance. In relation to the victimisation complaint, it is our judgment that the Claimant did a protected act in his grievance and in his statements in the grievance meeting. The Respondent accepts that the Claimant undertook a protected act.

[292]We find that these complaints were brought to the Tribunal in time as they relate to the outcome of the grievance, which was written on 9 December 2019 and were brought to the Tribunal in a claim dated 4 February 2020.

[293]The outcome of the grievance was not the outcome that the Claimant hoped for. That fact alone does not make the decision discriminatory. In coming to his decision, Mr Stewart took into account a number of factors, which came out of his investigation. He provided notes of the grievance hearing to the Claimant and his trade union representative and there was no corrections or alterations suggested by them.

[294]Mr Stewart gave the Claimant and his trade union representative the opportunity in the grievance hearing to expand on his written grievance and to explain the issues and the outcome he wished. Mr Steward conducted an investigation after the grievance hearing by speaking to Mr Podjaski and to Ms Henderson.

[295]The Claimant objected to the reference in the outcome letter to him having told Mr Stewart that he had a terrible memory. Mr Stewart accepted in the hearing and in his interview with Mr Smith as part of the grievance appeal, that what the Claimant said was more nuanced and he should have reflected that in the letter. It is our judgment that this was a genuine mistake and not an attempt to coverup for Ms Henderson or Mr Podjaski. Mr Stewart properly considered the Claimant’s grievance and was not able to uphold it. Also, in the outcome letter the reference to the trade union representative was to Mr Garey and not to the representative who attended the grievance hearing with the Claimant.

[296]It is our judgment that this was not harassment. Mr Stewart did not create a hostile, intimidating, offensive or degrading environment for the Claimant when he decided not to uphold the grievance and when he stated that the Claimant said that he had a terrible memory. He did not deliberately misrepresent what the Claimant said. He repeated it as he remembered it and when he was challenged on it, as part of the grievance appeal, he conceded that it was not exactly what had been said. We looked at the transcript and what had actually been said and it was not clear, but it was possible to interpret it the way that Mr Stewart did. It was also possible to interpret it in another way. He conceded that the Claimant had not used the words ‘terrible memory’ and it is our judgment that it was likely that he was summarising what he heard in the meeting. In his decision not to uphold the grievance and in his summary of what he thought the Claimant had said about his memory, Mr Stewart did not intend to harass the Claimant and it was not reasonable that it should be considered as harassment. His decision not to uphold the grievance was unrelated to the Claimant’s disability. The complaint of harassment fails.

[297]It is our judgment that Mr Stewart was not covering up for Ms Henderson or Mr Podjaski in his grievance outcome. It is our judgment that the Claimant has failed to prove facts from which we could infer that the decision not to uphold the grievance was because of the Claimant’s disability. The statement that the Claimant had told him that he had a terrible memory was one of many factors that Mr Stewart referred to in the letter to explain his decision. He immediately conceded, when Mr Smith spoke to him, that it was not an accurate reflection of what the Claimant said to him. He was clear though, that based on all the other factors, that he was sticking to his decision not to uphold the grievance. This was not based on the Claimant’s disability but on his investigation and what the Claimant told him in the grievance hearing. He had two versions of what was said in the LDI meeting, he chose to believe one version rather than the other. There was no judgment that the Claimant was not telling the truth as everyone was relying on their memory. Mr Garey recalled that something was said but he was not clear or certain in his recollection when he spoke to Ms Henderson. Mr Podjaski had no recollection of it being said. Mr Stewart had no evidence given to him that proved that Mr Podjaksi’s failure to remember was deliberate or contrived.

[298]The complaint of direct discrimination fails and is dismissed.

[299]The Claimant has also failed to prove the complaint of victimisation. There was no evidence that Mr Stewart did not uphold the grievance because the Claimant complained of discrimination in his grievance and in the meeting. Allegations 6(iv) harassment, 8(v) direct discrimination and 10(ii) victimisation

[300]The Tribunal will first consider whether there is a successful complaint of harassment here. If not, we will consider whether the Claimant has made a successful complaint of direct discrimination and of victimisation. These complaints all relate to a letter from Mr Dale Smith in which he told the Claimant that he had submitted his grievance appeal late but that he would meet with him anyway. These complaints were brought in time as the letter was written on 20 December 2019 and the claim was brought on 4 February 2020.

[301]Firstly, it is our judgment that this was not harassment. There was no attempt to dismiss the Claimant’s appeal and certainly no attempt to create a hostile, intimidating, oppressive or offensive environment for the Claimant. Mr Smith received the Claimant’s appeal and acknowledged it. There is no argument that 15 December is more than 7 days after 5 December, when the grievance outcome letter was emailed to the Claimant. The Claimant was at work at the time. He was not off sick. Even though the Claimant’s grievance appeal was submitted outside the 7 day timeframe, Mr Smith wrote to the Claimant to say that he would hear his appeal. He also pointed out that it had been submitted out of time.

[302]The appeal had indeed been submitted outside of the 7 calendar days set out in the grievance procedure. All Mr Smith did in his letter of 20 December was to mention that fact and then confirm that he would meet with the Claimant anyway. His appeal was not dismissed.

[303]Secondly, it is our judgment that this was also not direct discrimination as we had no evidence from which we could conclude that the contents of the letter dated 20 December was written because of the Claimant’s disability. There is no detriment to the Claimant here. Mr Smith never refused to hear the Claimant’s appeal. He simply pointed out that it had been submitted late. He still proposed to hear it. He made that clear to the Claimant’s trade union representative and he did hear go on to hear it.

[304]Thirdly, this also fails as an allegation of victimisation. The Claimant has failed to establish a case of victimisation in respect of the contents of Mr Smith’s letter of 20 December.

[305]It is our judgment that the complaints of harassment, direct discrimination and victimisation at 6(iv), 8(v) and 10(ii), fail and are dismissed.

[306]As with the other two claims the Tribunal will decide the time point in relation to each allegation, as set out at paragraphs 1, 2 and 3 on page 1412 of the bundle of documents, as we look at each of the allegations.

[307]We will look at allegation 11(i) because it is the earliest (by date) allegation in claim 3. Allegation 11(i) Harassment

[308]This claim was brought on 16 February 2021, in the Claimant’s third claim. As the Respondent also pointed out, it was also referred to in the 2nd Claim on page 31. It is this Tribunal’s judgment that even though this complaint is listed as coming from Claim 3, it was also in Claim 2, which was brought to the Tribunal on 4 February 2020. This complaint refers to a meeting that Ms Henderson had with the Claimant on 9 October 2019. The primary source of the Claimant’s claims and complaints are his claim forms, which were then distilled into the list of issues with the help of the Tribunal. We use our discretion to extend time to allow this complaint to be considered as it is out of time as, if the issue date is taken as 4 February 2020, it was brought more than three months after the date of the incident. It is therefore our judgment that we do have jurisdiction to consider this complaint of harassment.

[309]It is also our judgment that the Claimant has failed to establish that Ms Henderson colluded with Mr Podjaski or covered for him in the meeting of 9 October. We were not told what she was supposed to have covered up for him. Even though he later did not recall it, the transcript shows that in the LDI meeting, Mr Podjaski discussed the mention of suicidal thoughts and depression with the Claimant and Mr Garey. They both stated that it was not a road that they wanted to go down, at that time. In response, Mr Podjaski said, in that case, he would return to the subject of the LDI, which was the Claimant’s most recent absences. He also told them that if they wanted to follow up on the mental health issues, this was something they could take up with the TOM, Ms Henderson. The transcript and the recording confirm that the Claimant and Mr Garey agreed with that course of action. In those circumstances, there was nothing to be covered up. The Claimant has failed to prove that Mr Podjaski’s response in the LDI meeting was a discriminatory response that needed to be covered up.

[310]He has also failed to prove that Ms Henderson created a hostile, intimidatory, offensive or degrading environment for him at the meeting on 9 October. There was also no evidence of collusion.

[311]Ms Henderson, as Mr Podjaski’s line manager, saw that Claimant’s emails to him and told him that she would handle the situation and that he was not to respond to them. The Claimant was expressing his frustration and annoyance with his line manager in a way that she considered disrespectful and unnecessary. Mr Podjaksi was his line manager. She stepped in to ensure that the working relationship between them was not ruined. In the meeting, she was seeking to diffuse the situation and manage the communications issue between them in circumstances where she had not been at the LDI meeting from which the dispute arose.

[312]The Claimant wanted her to ignore the way that he had spoken to a manager and simply punish Mr Podjaski because he had not taken up an issue he had not been asked to take up. She did not do so. It is our judgment that Ms Henderson’s decision not to take action against Mr Podjaksi for failing to take up an issue he had not been asked to take up, was not harassment and was not related to the Claimant’s disability. It was because, as the transcript shows, both the Claimant and Mr Garey told Mr Podjaski that it was not something that they wanted to follow up with him and that they were content to take it up with TOM Henderson, if necessary. Their exact words are different but, in our judgment, that is the gist of what was said.

[313]It is our judgment that the complaint of harassment has failed and is Allegations 8(i) direct discrimination, 11(ii) harassment

[314]In this Tribunal’s judgment Mr Smith’s decision to wait until the Claimant was well and back to work before conducting his appeal was entirely proper and not less favourable treatment. There was no evidence that a person in the same situation would have had their appeal held any earlier.

[315]The Claimant submitted his appeal on 15 December. At the time he was off sick, and it was agreed that it would be arranged as soon as he was back to work. He contacted the Respondent on 6 February about his appeal. There was some delay in February due to the unavailability of his trade union representatives and the appeal hearing took place on 5 March. Mr Smith then had to conduct his investigation but in the interim, he sent the Claimant a copy of the notes of the appeal meeting. In March the Respondent’s senior staff were involved in the response to the national response to Coronavirus and keeping services running during the lockdown. All grievance processes were put on hold. This was not personal to the Claimant but applied to everyone.

[316]It is therefore our judgment that the time taken to address, consider and conclude the appeal was not on the grounds of the Claimant’s disability but a combination of factors not related to his disability.

[317]It was also not harassment because it was not done with the intention or the effect of creating a hostile, offensive, intimidating or threatening environment for the Claimant. These complaints of harassment and of direct discrimination fail and are Allegations 8(ii) direct discrimination and 11(iii) harassment

[318]We considered firstly whether this was harassment. Mr Smith did not divert attention from TOM Henderson to Mr Podjaski. He considered the Claimant’s grievance in full.

[319]Although he did not interview Ms Henderson himself, he did read and take into account the statements already taken by Mr Stewart. As this was an appeal, Mr Smith considered that his task was to look at any gaps in the process followed by Mr Stewart rather than to do the whole grievance process again.

[320]We do not agree with the Claimant that because Mr Smith refused to interview Ms Henderson on her return from her career break that meant that he had diverted attention from her to Mr Podjaski. The Claimant complained about both managers in his grievance and both Mr Stewart and Mr Smith addressed all his complaints, investigated them and gave their considered decisions.

[321]The Claimant did not agree with their decisions, but this in itself is not harassment. The Claimant has failed to show that it would be reasonable for the decision not to uphold his grievance to be considered harassment. In our judgment, it is also not less favourable treatment. The Claimant has failed to show that if a non-disabled person had brought this appeal, that Mr Smith would have dealt with it in the way he wished. It is highly likely that if it had to be considered during the national Coronavirus pandemic, it would have had the same delays, and the outcome would have been the same.

[322]These allegations of direct discrimination and harassment fail and are Allegations 8(iii) direct discrimination and 11(iv) harassment

[323]Dealing firstly with the complaint of direct discrimination. It is our judgment that the Claimant has failed to establish any facts from which the Tribunal could conclude that Mr Smith’s decision not to uphold the grievance appeal was because of the Claimant’s disability.

[324]It is our judgment that Mr Smith conducted an appeal hearing and conducted a proper investigation into the issues the Claimant raised. The Claimant has failed to prove that any flaws in the investigation was due to the Claimant’s disability. Mr Smith came to the conclusion that the Claimant’s complaint of managerial wrongdoing was not well founded, which was the same conclusion that Mr Stewart came to when he conducted his investigation. This decision was not reached because of the Claimant’s disability but was derived from the investigation.

[325]The decision not to uphold the Claimant’s grievance appeal was unwanted conduct in the sense that it was not what the Claimant wanted. However, it did not create a hostile, intimidating or offensive environment for him. At the end of his appeal outcome letter, Mr Stewart urges the Claimant to put this behind him and arranges for him to have different line management so that he could move ahead with his employers. The Respondent had already arranged for his IBS to be recorded as a disability on his file so that absences for this condition would in future, be discounted. The Respondent was prepared to look with him as to how they could allow him time off from work – by using off days, annual leave, swapping shifts etc – to allow him to attend counselling sessions. The Respondent was doing all it could to support the Claimant and get back to a good working relationship with him. Mr Smith’s actions and the outcome of the grievance appeal was not intended to harass the Claimant and it was not reasonable that it should have that effect. These complaints of direct discrimination or harassment fail and are dismissed. Allegations 8(iv) direct discrimination and 11(v) harassment

[326]Dealing firstly with the complaint of direct discrimination. The question here is not whether Mr Smith could have interviewed Ms Henderson but whether, in choosing not to interview her when she returned from her career break, he made that choice because of the Claimant’s disability.

[327]It is our judgment that she was not interviewed at the start of the investigation because she was about to start her career break. The pandemic and the national lockdown happened soon after. She returned to work after the appeal process had completed but Mr Smith refused to open it up again to speak to her. There was already a statement from her that had been given to Mr Stewart and there was email correspondence from her and the documents from the meeting on 9 October. He considered that he had sufficient information from these documents and did not need to re-open the investigation after her return from her break to interview her.

[328]It is our judgment that we did not have evidence from which we could conclude that Mr Smith timed matters to avoid interviewing Ms Henderson. Secondly, it is more likely than not that Mr Smith’s decision not to re-open the investigation later on that year, once he was told that she was back at work, was because he considered that there was no need to do so. He decided that he had sufficient information to make a decision on the Claimant’s appeal without interviewing her and re-opening the grievance.

[329]It is our judgment that Mr Smith’s decision not to interview Ms Henderson in circumstances where she had already been interviewed earlier in the process and where the bigger dispute as far as he could see, was what had been said in the LDI, was not because of the Claimant’s disability.

[330]It was also not related to the Claimant’s disability and was not intended to harass, intimidate, offend or threaten him. It is also our judgment that it would not be reasonable for it to have that effect. The complaint of direct discrimination and harassment fail and are dismissed. Allegations 8(v) and 11(vi)

[331]It is likely that this is a complaint about Mr Smith’s decision to appoint Mr Stewart to hear the first stage of the grievance rather than hearing it himself.

[332]As Mr Smith was a senior manager, it was appropriate for him to delegate conduct of the grievance to a manager who was junior to him, but who was also a senior manager within the Respondent. That meant that if the Claimant was unhappy with the grievance outcome and appealed, Mr Smith would be able to hear the appeal. This would mean that he had less hearings to deal with and could get on with other work.

[333]The Claimant did not raise this as a complaint at the time and it is not recorded in either Mr Stewart’s or Mr Smith’s hearings that he was unhappy with who was conducting the meetings.

[334]It is this Tribunal’s judgment that there was no less favourable treatment here. Both Mr Stewart and Mr Smith took the grievance seriously. Neither Mr Stewart nor Mr Smith considered that the Claimant had proved that there had been any managerial misconduct that warranted an apology. They considered the Claimant’s case, and they considered Mr Podjaski and Ms Henderson’s responses and the contemporaneous documents before coming to their decisions. The Claimant was unhappy about the outcome of the grievance process but that does not mean that it was less favourable treatment because of his disability. The outcome of the grievance process and the decision to delegate it to Mr Stewart in the first instance, were not less favourable treatment to the Claimant.

[335]It was not Mr Stewart’s intention to create a hostile, intimidating, offensive or otherwise degrading environment for the Claimant by delegating the grievance to another senior manager in circumstances where that person was still senior enough to make a decision following his investigation and where Mr Smith would conduct any appeal against the outcome, if there was one.

[336]The complaints of direct discrimination and harassment fail and are Allegations 13 – 16 Indirect discrimination

[337]The Respondent accepted that there is a PCP that leave has to be booked in advance.

[338]There was no evidence presented to us of a PCP of employees being required to take carried over leave at a specified time. The Claimant appeared to want to carry forward his leave indefinitely and that was not allowed.

[339]In the email correspondence in June 2019, the Claimant was asked to use some of his leave, re-arrange his rota, swap shifts and use brought forward leave in order to attend counselling appointments. That is not the same as the PCP he relies on here in this complaint.

[340]This complaint is also out of time as it relates to an issue discussed between the parties in June 2019. It was only brought to the Tribunal in the third claim, on 15 February 2021.

[341]It is also our judgment that the Respondent asked staff to use the various means suggested to the Claimant in Ms Henderson’s email of 5 June. Ms Henderson referred to changing/using rest days, swapping duties or using/breaking up annual leave. These would all be legitimate ways of supporting the Claimant as they would allow the Respondent to support him to be able to attend appointments and at the same time, meet its obligations to provide a timetabled passenger service and ensure that they have sufficient Train Operators available, to enable it to do so. To be able to do this, they need to have staff book their leave in advance. How much in advance would depend. We do not have real examples with the Claimant as we were not given evidence of any time he tried to book leave to attend counselling and the Respondent refused or told him that he did not have sufficient leave to be able to do so.

[342]It is our judgment that this complaint is out of time if it relates to the email exchange in June 2019. It is not part of a continuing act and we do not extend time to be able to consider it.

[343]Also, the Respondent did not apply the PCP referred to.

[344]Lastly, it is our judgment that there was no evidence that the practices of asking staff to re-arrange their rotas to be able to attend personal appointments, book leave in advance or of not allowing staff to carry forward leave indefinitely; placed the Claimant at any particular disadvantage.

[345]The Claimant was supposed to come back to the Respondent with the dates that he wanted off to attend counselling. We were not told of any time in which he did so. He failed to attend one counselling session because he forgot about it and not because of any restrictions placed on him by work. As far as the evidence we have, the matter was never raised again. The Claimant did not take time off from work to attend appointments related to his disability.

[346]Even if he did have difficulty doing so using the solutions offered by the Respondent, it is our judgment that the Respondent’s response was proportionate as if medical appointments are known at the time leave is booked, then those dates can be used. If possible, the Respondent also accommodate appointments by using rest days, which would save annual leave days for actual holidays.

[347]It is our judgment that the complaint of indirect disability discrimination fails and is dismissed. Allegation 17(a) – (e) Failure to make reasonable adjustments

[348]The 5 PCPs referred to here were not PCPs. These were all allegations already discussed as allegations of direct disability discrimination, victimisation and harassment above.

[349]As stated above in the Law section, a PCP must be neutral and apply to all in the relevant group, whether or not they have the protected characteristic. That means that a PCP is something that is applied to all employees, even those who are not disabled and those who have different disabilities to the Claimant. An example of such a PCP could be a requirement that all staff must arrive at the depot 10 minutes before their shift starts. A disabled worker could make a complaint that his disability makes it difficult for him to do so and that the Respondent should make adjustments to allow him to come in later or earlier and still be able to remain employed.

[350]In contrast, the matters that the Claimant relies on as PCPs in the list at paragraph 17 of the list of issues are things that happened only to him and were not common to all Train Operators. Dale Smith was only dealing with the Claimant’s appeal and these are complaints in how he did so.

[351]The Tribunal has already addressed these complaints in paragraphs 11(ii) to (iv) above and does not repeat those points here.

[352]The Claimant’s complaint of a failure to make reasonable adjustments fail and is dismissed. Judgment

[353]The Claimant has succeeded in one complaint. This is a complaint of harassment related to Ms Kaur’s response to his complaint in her letter dated 25 January 2019.

[354]All of the Claimant’s remaining complaints of disability discrimination in the form of harassment, victimisation, direct discrimination, indirect discrimination and a failure to make reasonable adjustments fail and are dismissed.

Remedy

[355]The Claimant is entitled to a remedy for his successful complaint.

[356]As this was a one-off incident, involving Ms Kaur, who was a senior member of staff with whom the Claimant did not have any further contact and who the evidence before us showed that she played no other part in his employment; we consider this to likely warrant a remedy in the first Vento band, at the lower end of the scale. We have not made a final judgment on this and will invite both parties to make submissions on this at the appropriate time.

[357]If the parties can resolve this between them then they must let the Tribunal know by 19 March 2025.

[358]The Tribunal will list a remedy hearing and notify the parties of the date. If the hearing is not required and the parties have resolved this by compromise, then they are to notify the Tribunal. If not, the issue will be addressed at the remedy hearing.

[1]The Claimant was successful in one complaint of harassment contrary to section 26 Equality Act 2020. Remedy – Injury to feelings: 1.1. The Respondent is ordered to pay the Claimant the sum of £2,500 as injury to feelings for his successful complaint. 1.2. Plus, Interest under Regulation 6(1)(a) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 at 8%. 1.3. Interest is calculated from 25 January 2019 – 9 March 2026 = 2600 days. 1.4. It is this Tribunal’s judgment to pay the Claimant the full amount of interest on his award. 1.5. The amount of interest due to the Claimant is therefore as follows: - 2600 days x 0.08 x 1/365 x £2,500 = £1,424.65 Total:

[2]The total amount due to the Claimant is £2,500 + £1,424.65 = £3,924.65.

[3]The Respondent is ordered to pay the Claimant the total net award of £3,924.65.

[1]This hearing was listed as a remedy hearing, following the Claimant’s success in one issue in his case, as set out in the written judgment and detailed reasons, promulgated to the parties on 18 February 2025. Recusal Application

[2]At the start of this morning’s hearing, the Claimant applied for EJ Jones to recuse herself from this hearing. The application was made on the following bases: -a. That during the liability hearing the Judge allowed three of the Respondent’s witnesses to perjure themselves on the witness stand and that even though the Claimant pointed out that they had committed perjury, the Judge allowed their evidence to stand, without interference. Also, that the Judge has to date, not referred them for criminal prosecution for contempt. These were Mr Smith, Mr Dearman and Mr Podjaski.

b. That the Judge was heavily biased towards the Respondent in the way she conducted the liability hearing.

c. That the Judge caused the Solicitors Regulation Authority (SRA) to stop its investigation into the actions of the Respondent’s solicitors, Ms Shaylor and Ms Spicer, because she stated in the written case management orders from the hearing on 1 November 2023, that it was okay for the Respondent not to concede disability status at the start of the case. The Claimant believes that the SRA referred to the Tribunal’s written case management orders as its reason for discontinuing or not starting an investigation into both solicitors’ conduct.

d. That Judge Jones threatened to strike out the Claimant’s claim if he pursued or made a complaint to the SRA about Ms Shaylor and Ms Spicer.

e. That given the Claimant’s complex PTSD, he did not want to sit in a room with the Respondent’s managers, who he described today as his tormentors, and EJ Jones forced him to do so during the liability

f. That Judge Jones allowed the Respondent to tamper with his evidence by not putting all his disclosures in the bundle, as ordered and when they eventually did put them in the bundle, they did not put the documents in the way that he had collated them but split them up around the bundle so that he could not find them, which prevented him from presenting his case. The Claimant submitted that the Tribunal had not yet heard his case.

[3]The Respondent submitted that the Claimant had not made out any grounds for recusal in his submission. Although the Claimant appeared to be dissatisfied with the liability judgment, dissatisfaction was not grounds for recusal. Also, that as this Tribunal had heard all the evidence in this case, it was appropriate and in keeping with the overriding objective for this Tribunal to make the decision on remedy. The Respondent also submitted that the Claimant made the same recusal application at the start of the liability hearing and that it was refused at that time and there were no additional grounds alleging bias that make it so that there should a different outcome on this occasion. Counsel submitted that this was really about the Tribunal’s decision not to grant the Claimant’s application for witness orders for the Respondent’s two solicitors and is unrelated to the outcome or conduct of the liability hearing.

[4]The Claimant was clear today that his application only related to EJ Jones. He considered that she was personally biased against him but that the lay members were not.

[5]The Tribunal adjourned the hearing to consider the Claimant’s application. Decision on the Recusal application

[6]The Tribunal considered the law on recusal of a judge. The basic principle is that a court hearing a case must be impartial and that justice should not only be done but should manifestly and undoubtedly be seen to be done. A judge may recuse herself from proceedings if she decides that it is not appropriate for her to hear a case listed to be heard before her. This can also happen when a party applies for her to do so. A judge must step down in circumstances where there appears to be bias or apparent bias. The test for determining apparent bias is this – whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the judge was biased. This test was set out most clearly, in the case of Porter v McGill

[2002] 2AC 357

. It must be applied having regard to all the circumstances of the case.

[7]Dealing with the points the Claimant made this morning in support of his application (some of which had previously been made and addressed at the start of the final hearing in March 2024); the Tribunal gave the following reasons for its decision on his application: -7.1 In respect of the Respondent’s solicitors – the Claimant says that because of Judge Jones’ order the Solicitor’s Regulation Authority (SRA) halted their investigation. This Tribunal has no authority or power over the SRA. Its decision to halt an investigation is within its remit and we do not know the reason for their decision not to conduct/continue an investigation or indeed a decision not to start one. The SRA is not connected to or influenced by this Tribunal. We have seen no documentation to confirm that the SRA was influenced about a serious matter such a complaint about the conduct of a solicitor, by the record of the case management hearing conducted by this Tribunal. At the time, Judge Jones did not have any evidence from the solicitors concerned and made no definitive statement about their conduct, since this was not the matter that was being considered. This is not a court that decides matters of professional conduct. This Tribunal only considered the application for witness orders. The Claimant wanted the Respondent’s solicitors to be summoned to court to give evidence on whether at the time that the Respondent stated that it could not confirm that the Claimant was disabled for the purposes of the Equality Act 2010, they personally knew that he was so disabled and the Respondent’s position was therefore a matter of their professional misconduct. This was not a matter that this Tribunal adjudicated on.

7.2 The Tribunal did not threaten the Claimant with having his claim struck out if he complained about Ms Shaylor and Ms Spicer to the SRA. The fact is that the Claimant told this Tribunal that he was already pursuing such a complaint. Even so, his claim in this Employment Tribunal was not struck out. EJ Jones does recall telling the Claimant in the November hearing that a complaint to the SRA is a serious matter which could have serious consequences for the solicitors concerned.

7.3 The Respondent conceded the Claimant’s status as a disabled person in June 2020, which was over a year after the first claim had been issued. The issue of disability status has not been a live issue in this case, since then. The Claimant’s status as a disabled person was not a live issue at the 1 November 2023 hearing.

7.4 In today’s application, the Claimant referred to the Respondent’s application for strike out of his claim on 1 November. EJ Jones reminded the Claimant that she refused that application and made orders to enable the case to proceed to a final hearing, which it did.

7.5 In relation to the liability hearing, the Claimant wanted the Tribunal to make a decision during the hearing that Mr Dearman, Mr Podjaski and particularly Mr Smith, had perjured themselves while giving evidence. This Tribunal recalls the Claimant wanting a decision on perjury while one of the Respondent’s witnesses was giving evidence. At the time the Tribunal advised the Claimant that it had to hear all the evidence and decide on issues of truthfulness, perjury and reliability, as well as on the issues in the case, at the end of the hearing. The Tribunal procedure is that at the end of the hearing we must weigh up all the evidence and consider all the documents referred to us, and then we can decide on the issues in the case, by applying the relevant law. This is the general framework within which the Tribunal has to work. The Claimant was unhappy about this at the time and from his submissions today, he clearly remains dissatisfied about it. Our discussion with the Claimant about Mr Smith’s evidence and the Claimant’s insistence that we make a decision there and then on perjury, was summarised at paragraph 24 of the judgment.

7.6 The Claimant also submitted today that he did not have an opportunity to put his case forward to the Tribunal. EJ Jones reminded the Claimant that he wrote a witness statement for the hearing, the purpose of which was to put his case forward. There were 8 preliminary hearings in this case during which the Claimant had the opportunity to clarify his case and the court orders. The Tribunal read the Claimant’s witness statement. The Claimant also gave live evidence in the liability hearing for more than one day in which he had the opportunity to explain his case – firstly, by giving answers to Ms Thomas’ questions, secondly, by the Tribunal giving him the opportunity to say anything else that he wanted to say during and at the end of his evidence, and lastly, by the discussions the Claimant had with the Judge when he asked the Respondent’s witnesses questions.

7.7 The Tribunal does not have a note of any application made by the Claimant during the hearing to have the Respondent’s witnesses excluded from the Tribunal room while he gave evidence or during the

7.8 The Tribunal worked within the framework operated by the Employment Tribunals and by Parliament and made various adjustments to enable the Claimant to put his case forward. We adjourned at various times to enable the Claimant to formulate questions for the Respondent’s witnesses, for example, at the end of his live evidence on 20 March, when we adjourned at 1pm and did not resume until the next day at 10am.

7.9 The written liability judgment detailed the steps and adjustments taken by this Tribunal to ensure that the Claimant, as a disabled person, had a fair hearing and to ensure that we followed the advice and suggestions set out in the Equal Treatment Bench Book.

7.10 It is clear to this Tribunal that despite our best efforts by making adjustments, assisting the Claimant, explaining procedure, and giving the Claimant additional time; he remains dissatisfied by the Tribunal process and judgment. However, the Tribunal notes that he did not submit any appeal to the EAT and did not apply for reconsideration of any part of the liability judgment.

[8]Taking all the above into consideration, it is this Tribunal’s judgment that the Claimant has not referred to any valid reason for this Tribunal or EJ Jones to recuse herself from conducting this remedy hearing. He has not made out a case of bias or apparent bias. The application for recusal is refused.

[10]This remedy hearing has arisen because the Claimant succeeded in one allegation in his case. We will now go on to consider the remedy due to the Claimant. After an adjournment, we conducted the remedy hearing. Remedy Hearing

[11]The Claimant submitted a Schedule of Loss in 2020. On this Tribunal’s orders, the Claimant submitted a revised Schedule of Loss in preparation for today’s hearing. The Respondent prepared a bundle of documents for today’s hearing. The Tribunal had sight of these documents during the hearing, and both parties had the opportunity to make submissions on them. Counsel for the Respondent also prepared outline written submissions which were sent to the Claimant before the start of the hearing. We adjourned to allow time for reading. We read the documents before making our decision on remedy.

[12]Paragraph 67 of the written reasons for the liability judgment confirmed that on 25 January 2019, Ms A Kaur, a manager within HR Services, who was also Mr Dearman’s manager wrote to the Claimant to confirm that she had completed an investigation into his complaint that the Respondent had failed to pick up and answer his emails sent to an email address which stated that it was not regularly monitored. The Claimant’s email to Ms Kaur, in which he made his complaint, contained a footnote where he explained that he had disabilities that were not physical and which were communication-based.

[13]In her response to the Claimant following her investigation, Ms Kaur told him that the recruitment department had given him the contact details and had told him that the email address was not monitored so it was not their responsibility if he chose not to read their email before responding. She told him that if he chose not to read the full contact details provided in the email, that was not the Respondent’s fault. The Claimant had complained of discrimination and her conclusion at the end of her investigation was that there had been no discrimination or prejudice to the Claimant.

[14]It was this Tribunal’s conclusion, which was set out at paragraphs 254 – 260 of the written reasons, that we did not have evidence that she had deliberately intended to offend the Claimant in her written decision on his complaint. However, the Claimant had clearly indicated in the footnote to his emails that he was a person with a communications-based disability. It was our judgment that this was enough to make Ms Kaur aware that he was likely to suffer difficulty in comprehension of the instruction that he should not hit reply to respond to this email from the recruitment team, because it came from an email address that was not monitored or not regularly monitored.

[15]It was also our judgment that as an HR professional and a manager, we would have expected Ms Kaur to check with the Claimant before making a statement that he ‘chose’ not to read the whole email, if her understanding of the Claimant’s communication was unclear. She either did not understand his complaint or failed to read the footnote to his email. This caused her to use a poor choice of words when she stated that the Claimant ‘chose’ not to read the whole of Mr Milewski’s email. It was this Tribunal’s judgment that the Claimant had missed the information in the footer of Mr Milewski’s email and that this was because of or related to his disabilities, which included dyslexia.

[16]It was also this Tribunal’s judgment that she had been careless in making the comment that the Claimant had chosen not to read the footnote to Mr Milewski’s footnote in his email. It was unlikely to have been a choice, given his disabilities, which he had clearly highlighted in his email to her.

[17]It was our judgment that this email from Ms Kaur constituted an act of harassment as set out in paragraph 259 of the liability judgment and that it caused the Claimant hurt feelings.

[18]The Respondent submitted that the amount of injury to feelings should be set at the sum of £1,500. The Claimant submitted that the Respondent should be ordered to pay him the top Vento band of £44,000 for injury to feelings.

[19]The Claimant submitted that he was entitled to the top band because his complaint had really been about all his interactions with HR and not just Ms Kaur’s response to his complaint. However, we find that issue 5(iv) in the list of issues specifically related to her response to his complaint, following her investigation. She had not taken part in any other matter in this case. Also, we did not have evidence that Ms Kaur was part of the HR team that dealt with any of the other issues in this case. Law The Tribunal considered the following law: -

[21]The law on discrimination remedy is set out in Section 124 of the Equality Act 2010. The remedies a tribunal can award in a successful discrimination complaint are as follows:(i) To give a declaration on the rights of the complainant and the respondent regarding matters to which the complaint relates;

(ii) An order for compensation to the complainant - which can include payments under the headings of injury to feelings, aggravated damages and for pain, suffering and loss of amenity (personal injury) and interest;

(iii) Make an appropriate recommendation – of steps that the employer must take within specified period to obviate or reduce the effect on the complainant or any other person of any matter to which the proceedings relate. Injury to Feelings

[22]The Court of Appeal has given guidance on the assessment of compensation for injury to feelings in the case of Vento v Chief Constable of West Yorkshire Police (No.2)

[2002] EWCA Civ 1871

. In that case, the Court set bands within which they held that most tribunals should be able to place their awards. Those bands have been amended through subsequent case law and more recently, in Presidential Guidance. The Guidance is updated annually so that awards for injury to feelings in exceptional cases for the year beginning April 2019 could be over £44,000. In cases of the most serious kind, the injury to feelings award would normally lie between £26,300 – £44,000. In the middle band, in less serious cases, the award would be between £8,800 - £26,300; while for less serious cases such as for one-off acts of discrimination or otherwise, the award would be between £900 - £8,800. We took this financial year because the letter from Ms Khan was part of the first claim which was issued on 24 April 2019.

[23]The case of Prison Service and ors v Johnson

[1997] ICR 275

was referred to us by the Respondent. The Claimant submitted that this case had been superceded by Vento. It is our judgment that the court in Vento confirmed the decision in Johnson and did not change it. In that case the EAT provided a summary of the principles in relation to injury to feelings, as follows: -

[24]Awards for injury to feelings are purely compensatory and should not be used as a means of punishing or deterring employers from a particular course of conduct. On the other hand, discriminators must take their victims as they find them; once liability is established, compensation should not be reduced because (for example) the victim was particularly sensitive. The wrongdoer takes the risk that the wronged may be very much affected by an act of harassment because of their character and psychological temperament. Awards should not be so low as to diminish respect for the policy of the legislation but should also not be so excessive that they might be regarded as untaxed riches. Tribunals should have regard to the fact that there is a need for the public to have respect for the levels of award made. Awards should not be inflated by feelings of indignation at the guilty party’s conduct. The issue is whether the discriminatory conduct caused the injury, not whether the injury was necessarily a foreseeable result of that conduct. (These principles were also stated in the cases of Essa v Laing

[2004] IRLR 313

and Olayemi v Athena Medical Centre

[2016] ICR 1074

, EAT).

[25]The EAT in Taylor v XLN Telecom Ltd

[2010] IRLR 49

held that the calculation of the remedy for discrimination is the same as in other torts, and that knowledge of the discriminator’s motives was not necessary for recovery of injury to feelings. The EAT nevertheless observed that the distress and humiliation suffered by a claimant will generally be greater where the discrimination has been overt, or the claimant appreciates at the time that the motivation was discrimination.

[26]The Claimant referred the Tribunal to two cases in his submissions Bailey v Pepsico

(2014) EAT 0020

13/1706 and Burrow v Wimborne

[2020] EWCA Civ 206

) but unfortunately, those could not be found in the law reports by Respondent’s Counsel or by the Judge. The Claimant could not find them during the hearing, and we were therefore unable to consider them.

[27]The Tribunal was aware that the matters compensated by an injury to feelings award encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (see Vento above) but that the Claimant’s updated schedule of loss was well beyond our findings and the issue on which the Claimant succeeded. Decision on

Remedy

[28]In determining how much to award for injury to feelings for this successful allegation, the Tribunal bore in mind that the Claimant brought over 35 allegations of discrimination spread across three claims. The Claimant succeeded in a stand-alone complaint which involved a member of the Respondent’s staff who, as far as we knew, had not been involved in any of the remaining issues in the case. The remainder of the Claimant’s complaints all failed and were dismissed.

[29]The Tribunal expressed a provisional opinion in paragraph 356 the liability judgment that the remedy for this successful complaint is likely to be within the lower end of the first Vento band, as amended. Following hearing the parties’ submissions today, we confirm that preliminary view. The Claimant was upset by Ms Kaur’s response to his complaint, and it had the effect of creating a hostile environment for him. He was also offended by it. It was our judgment that it was reasonable for it to have had that effect, given his clear statement in the footnote to his emails that he had a communicationsbased disability.

[30]However, as already stated, this was a one-off issue. Ms Kaur was a senior member of staff but was not involved in any other matter that we heard about. She played no other part in his employment. In those circumstances, the remedy due to the Claimant falls within the lower band of Vento. There was also no evidence that she intended to harass him, which means that this is not an appropriate case for an award of aggravated damages. There has not been a breach of the ACAS Code in relation to this successful complaint.

[31]The Respondent submitted that the complaint should attract an award of £1500. We considered that the amount should be higher given that we were told that Ms Kaur was a senior member of staff and because of the devastating affect her letter had on the Claimant. We award the Claimant the sum of £2,500 as injury to feelings for his remedy for his successful claim. We do not award the Claimant anything additional for personal injury as we did not have evidence of a causal link between the Claimant’s illhealth and Ms Kaur’s decision. Interest on discrimination

Remedy

[32]A tribunal has the power to award interest on awards made in discrimination cases both in respect of pecuniary and non-pecuniary losses. We refer to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. We must consider whether to award interest, without the need for any application by either party in the proceedings. The interest is calculated as simple interest which accrues daily. Since 1993 the rate has been 8%. For past pecuniary losses interest is awarded from the half-way point between the date of the discriminatory act and the date of calculation (Regulations 4 and 6(b)). For non-pecuniary losses interest is calculated across the entire period from the act complained of to the date of calculation (Regulations 4 and 6(a)). The tribunal retains discretion to make no award of interest if it deems that a serious injustice would be caused if it were to be awarded but in such a case it would need to set out its reasons for not doing so.

[33]The Respondent submitted that we should only award the Claimant interest for half of the period of time since Ms Kaur’s letter as there have been significant delays in bringing these complaints to final hearing, which were not the Respondent’s responsibility and because the Claimant has been largely unsuccessful in his complaints.

[34]The Tribunal reminded itself of the postponed hearings in this matter and the delays that occurred. These were mostly due to the Claimant’s ill-health. The Claimant produced medical certificates in support of his applications for the listed hearings to be postponed. The Claimant has suffered from illhealth prior to bringing this case and over the period of preparing for this case to come to trial. There was no evidence of deliberate delay or negligence by the Claimant in this matter coming to trial. We concur with the Respondent that this was not due to any fault of theirs either and note that that the initial postponement of the hearing was related to the Covid-19 pandemic and the requirement to social distance, which affected all hearings listed at that time.

[35]In the circumstances, the Tribunal will award the Claimant interest on his award for the full 2600 days, which began on 25 January 2019, when the email/letter was sent to him and ended on 9 March, the day of the remedy Remedy – Injury to feelings:

[36]The Claimant succeeded in a complaint of harassment related to disability.

[37]The Claimant is entitled to the following remedy: -

[38]The sum of £2,500 as injury to feelings for his successful complaint.

[39]Plus, Interest under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 at 8%.a. Regulation 6(1)(a) interest on injury to feelings. Interest calculated from 25 January 2019 – 9 March 2026 = 2600 days.

b. It is this Tribunal’s judgment to pay the Claimant the full amount of interest on his award.

c. The amount of interest due to the Claimant is therefore as follows: - 2600 days x 0.08 x 1/365 x £2,500 = £1,424.65.

[40]The total amount due to the Claimant is £2,500 + £1,424.652 = £3,924.65.

[41]The Respondent is ordered to pay the Claimant the total net award of £3,924.65. Approved by: