Mr U Majeed v MTR Corporation (Crossrail) Ltd T/a MTR Elizabeth Line: 3201353/2023

EMPLOYMENT TRIBUNALS

Case No 3201353/2023

Between

Mr U MajeedClaimant

MTR Corporation (Crossrail) Limited t/a MTR Elizabeth LineRespondent

Before

Employment Judge Townley

Members

Mr Havard

Mr Webb

Mr S Bhatti (instructed by Solicitor) for claimant

Mr R Hignett (instructed by Counsel) for respondent

Date 31 October 2025

JUDGMENT

[1]After hearing from the parties, it is the unanimous decision of the tribunal that the Claimant’s claims for unfair dismissal, direct race discrimination, and discrimination arising from disability are not well founded and are dismissed.

[2]The Claimant’s application to amend his claim by adding claims of harassment and victimisation was dismissed on 3 June 2025. The Claimant’s application for a reconsideration of this decision was dismissed on 11 June 2025.

[3]The Claimant’s claim for holiday pay was dismissed upon withdrawal on 11 June 2025.

REASONS

[1]By claim, presented on 22 July 2023, after an ACAS early conciliation period between 6 and 19 July 2023 the Claimant has brought claims for unfair dismissal, direct race discrimination (relating to his pre-dismissal investigation and dismissal), discrimination arising from disability (arising from his dismissal only), and holiday pay. There were other heads of claim mentioned by EJ Emery at a preliminary hearing on 27 November 2023, when the judge noted that the claims and issues were incomplete and ordered that the Claimant provide, by 12 January 2024, further and better particulars in relation to direct disability discrimination, discrimination arising from disability (other than dismissal), indirect discrimination, reasonable adjustment discrimination, religious discrimination and any other claims arising from disability. Thereafter the parties were to seek to agree a list of issues. On 6 March 2024 the Respondent wrote to the tribunal indicating that it had not heard from the Claimant. On 8 March 2024 the Claimant provided a document entitled ‘Particulars of Claim’ dated 2 March 2024. The document made no reference to indirect discrimination or reasonable adjustment discrimination, but referred to two new claims of harassment (unparticularised but referring to comments alleged to have been made to the Claimant by Andy Pizer and Kirit Varsani in December 2022) and victimisation (relating to the Claimant’s suspension on 17 January 2023 and that he had otherwise been ‘targeted’ because he had raised a grievance). EJ Lewis made a further order on 13 March 2024 that the Claimant provide further particulars of any discrimination claims that he wished to pursue by 5 April 2024 and that the Respondent serve amended grounds of resistance by 19 April 2024 (the Respondent served the same on 14 April 2024). In the event, no application to amend was made by the Claimant in respect of any of the new claims and no further and better particulars were provided as ordered in relation to these allegations of harassment and victimisation. A list of issues had not been formally agreed between the parties for the full merits hearing but the Respondent had compiled a draft list of issues, with the caveat that any addition of the harassment and victimisation claims was not agreed absent any successful application by the Claimant to amend. This was sent to Mr Bhatti, whom the Claimant had instructed to appear on his behalf in the interim, on 29 May 2025.

[2]The Claimant had been unrepresented at the preliminary hearing in November 2023. He had at some time thereafter instructed Mr Bhatti to represent him at the full merits hearing. The first correspondence from Mr Bhatti to the tribunal was an application, dated 27 May 2025, that the full hearing be converted in its entirety to CVP due to the Claimant’s medical conditions and also due to childcare/caring and work commitments of ‘other witnesses’ (unspecified). The Respondent had not been copied into this application. Regional Employment Judge Burgher ordered, on 29 May 2025, that the Claimant should provide medical evidence in support of his application and copy the Respondent into any correspondence to the tribunal. A further application was submitted by Mr Bhatti on behalf of the Claimant on 2 June enclosing a ‘FIT note’, dated 29 May 2025, indicating that he was ‘unfit for work’ from 29 May until 5 June 2025 due to neck pain, headache and dizziness. Due to the timing of the application, it was referred to the tribunal hearing the full merits hearing starting the following day.

The hearing

[3]The hearing took place at the East London Employment Tribunal between 3 - 6 and 11 June, 14 July and 3 August 2025 before Judge Townley, Mr Havard and Mr Webb. Evidence was between 4 and 6 June. Closing submissions were made on 11 June. The panel reconvened for deliberation on 14 July and 4 August 2025. Due to the hearing having overrun its original time estimate, for reasons detailed below, it was necessary to reserve this judgment. The solicitors for the Respondent provided the tribunal with a bundle consisting of 333 pages of documents plus witness statements. As previously noted, the Claimant was represented by Mr Bhatti, a solicitor, and Mr Hignett, of Counsel, represented the Respondent.

[4]At the hearing the Claimant gave evidence on his own behalf. Mrs S Pervaiz Usman Bhatti (the Claimant’s wife) and Mr M Banka (a former employee of the Respondent) gave evidence for the Claimant. Mr K Varsani (Group Station Manager, Eastern Section), Mr M Frost (Group Station Manager, Western Section), Mr A Pizer (Station Manager and the Claimant’s line manager), Mr J Harris (Station Manager) and Mr J Cox (Head of Customer Operations). The Claimant and all the witnesses for both parties gave their evidence under affirmation. The CVP application

[5]For the reasons noted at paragraph 2 above, it was not possible for the application to be considered by an employment judge prior to the full merits hearing. On day 1 of the hearing the Claimant attended, along with Mrs Pervaiz Usman Bhatti, in person. It was clarified that Mr Bhatti’s application was for the Claimant, Mrs Pervaiz Usman Bhatti, and Mr Banka to give evidence remotely via CVP. The Respondent objected to the application in respect of the Claimant and Mrs Pervaiz Usman Bhatti due to(i) the unexplained delay in making the application;

(ii) the fact that credibility was a central issue in the case, and

(iii) the failure of the Claimant to produce medical evidence about why he could not attend in person/other evidence as to why the witnesses could not attend in person. When questioned by the tribunal about the Claimant’s ability to attend in person, Mr Bhatti said that the Claimant would be able to attend the tribunal to give evidence ‘for 1 – 2 hours, that is what he is capable of’. No further details were given about Mrs Pervaiz Usman Bhatti’s childcare obligations and why these would prevent her attendance in person. The tribunal refused the application in respect of the Claimant and Mrs Pervaiz Usman Bhatti and required that they give evidence in person. Unfortunately, the Claimant and Mrs Pervaiz Usman Bhatti were unable to start given their evidence on the afternoon of day one as envisaged by the hearing timetable. This was due to delay caused by Mr Bhatti’s conduct of the hearing for the remainder of day 1 which is detailed below. The Claimant and Mrs Pervaiz Usman Bhatti returned and gave their evidence in person on day two. Mr Hignett limited his cross-examination of the Claimant so as not to exceed two hours (Mr Bhatti having identified this as the maximum amount of time that the Claimant would be able to give evidence for in person). Thereafter the tribunal facilitated the attendance of the Claimant and Mrs Pervaiz Usman Bhatti by CVP and Mr Banka was permitted to give his evidence by CVP. The tribunal also delayed its start time on day 4 to permit the Claimant to take part in religious activities. The tribunal also noted that the Claimant unfortunately has considerable impairments and that, following the Presidential Guidance (Presidential Guidance: Vulnerable Parties and Witnesses in Employment Tribunal Proceedings (dated 22 April 2020)), he was offered breaks at regular intervals when giving his evidence and informed that the cross-examination could be stopped at any time if he indicated that he was feeling unwell. Other applications and issues during the hearing

[6]At the preliminary hearing EJ Emery had listed the case for 5 days. The hearing timetable allowed two days for preliminary matters/reading and evidence, with three hours on day 3 for submissions, with the remainder for deliberation and judgment. In the event, the hearing did not conclude until late morning of day 5, meaning that the tribunal had only two hours to start its deliberation, necessitating that the case be listed for two further days not previously scheduled to permit further deliberation. The parties were excused attendance on 14 July and 4 August 2025. With the exception of a delay caused on day 2 by an evacuation of the tribunal building due to a fire alarm (for which the tribunal apologised to the Claimant who was giving his evidence at the time), the failure to complete the hearing within the allotted time was due to Mr Bhatti’s conduct during the hearing. Aside from causing delay, there were also concerns about other aspects of Mr Bhatti’s conduct during the hearing. In the interests of fairness to both the Claimant and the Respondent, we consider it necessary to briefly detail these issues as they occurred on a day-to-day basis: The application to amend to include claims of victimisation and harassment6.1 Day 1: The vast majority of the day was spent dealing with Mr Bhatti’s applications in respect of the claims of harassment and victimisation that lay outside the ET1. No further and better particulars were provided in relation to these and this resulted in an opaque and convoluted application to amend (in fact, that this was the nature of his application, had to be pointed out to Mr Bhatti by the tribunal). After some considerable period of time and confusion caused by the nature and structure of Mr Bhatti’s arguments, it became apparent that he had not prepared any submissions in support of his own arguments but was throughout referring to the Respondent’s Amended Grounds of Resistance within which the Respondent had speculated upon the details of the Claimant’s new claims in the absence of further and better particulars. Given that no further and better particulars in relation to the harassment and victimisation claims was provided, either in writing or in oral argument, the tribunal refused the application to amend. The tribunal also considered that the balance of inconvenience, in allowing the amendments, would fall upon the Respondent due to the delay and timing of the applications and also because they still remained unparticularised by the Claimant despite orders having been made on two occasions that further and better particulars be provided. Mr Bhatti had also used a document that had been supplied by the Respondent as his basis for his application, having failed to produce any further information before the tribunal about the nature and extent of the late claims either in writing or otherwise.

6.2 Day 2:

(i) Mr Bhatti made an unsubstantiated allegation that the Respondent had fabricated a document in the bundle (Local Standing Orders, bundle, p 318). He did not withdraw the allegation after the Respondent produced its predecessor which had been agreed by the union;

(ii) Mr Hignett raised an issue about whether Mr Bhatti was a relative of Mrs Pervaiz Usman Bhatti due to her name and also due to the fact that he (Mr Hignett) had become aware that her name appeared on Mr Bhatti’s phone alongside a reference to ‘sister’ in Urdu. Mr Bhatti submitted that this was irrelevant and the tribunal agreed. However, on day 4, due to the issue being raised in discussions by a member of the panel, the tribunal, in the interests of fairness, afforded Mrs Pervaiz Usman Bhatti the opportunity to answer a question about whether she was related to Mr Bhatti under affirmation. At this stage she had been released from her affirmation after having given her evidence. Mrs Pervaiz Usman Bhatti declined to be recalled. The tribunal accepted her decision and reiterated that it had only sought to afford her the opportunity to answer an allegation that had been made which related directly to her as a matter of fairness, should she wish to reply to the allegation, and that it was not a matter of relevance to the issues that had to be decided in the case.

6.3 Day 3: (i) In cross-examination of Mr Varsani, Mr Bhatti made an unfounded suggestion that Mr Varsani had only responded compassionately towards the Claimant’s hospitalisation during the COVID 19 pandemic to ensure that the Claimant did not bring a negligence case. No evidence was adduced that the Claimant had either brought or threatened to bring a negligence claim against the Respondent; (ii) Mr Bhatti failed to put the allegations of race discrimination to either Mr Frost or Mr Cox (List of Issues, 14 and 15);

(iii) Mr Bhatti failed to put to either Mr Frost or Mr Cox, the Claimant’s alternative case that he was dismissed due to complications caused by his health problems (Claimant’s witness statement, paragraph 47), and

(iv) Mr Bhatti suggested to Mr Varsani that he was conniving with Mr Harris and Mr Pizer without citing any evidence in support of the same allegation. On day 4 Mr Bhatti suggested to Mr Pizer that he was colluding with Mr Varsani and Mr Harris, however he failed to put that allegation to Mr Harris.

6.4 Day 4: (i) One hour, 20 minutes were spent dealing with an application by Mr Bhatti in relation to documents that he had sent to the tribunal at 9:38 pm on the previous evening which he said were relevant to the cross-examination of either Mr Harris or Mr Pizer. It turned out that the documents were already within the bundle and the tribunal permitted Mr Bhatti to rely on them. However, Mr Bhatti then failed to cross-examine either Mr Harris or Mr Pizer on these documents.

6.5 Day 5: Mr Bhatti arrived 40 minutes late. While he explained that he had taken the wrong turning when driving to the tribunal, he then spent a further one hour and 45 minutes making an application that the tribunal reconsider its decision not to allow the application to amend on day 1 (to add claims of harassment and victimisation. This wasted almost a half day of the tribunal’s time because Mr Bhatti had failed to supply any further information or particulars that had been required by the tribunal but had previously been lacking in his unsuccessful application to amend. Submissions

[7]Both parties made written and oral submissions on 11 June 2025 which have been carefully considered by the Tribunal. However, Mr Bhatti made submissions in relation to a number of issues that were not before, or argued before, the tribunal, including referring to the allegations of harassment, victimisation (that were the subject of his unsuccessful application to amend) and a failure to make reasonable adjustments (which had never been pursued by the Claimant) (Claimant’s Closing submissions para 2.1). He also sought to argue that the Respondent’s alleged failures to address the Claimant’s grievance appeal and other matters potentially amounted to constructive dismissal (Claimant’s closing submissions para 3.4), a claim which had never been pursued before the tribunal given that the Claimant had been dismissed for gross misconduct. Mr Bhatti raised the issue of the alleged ‘tracking’1 of the Claimant’s phone by the Respondent as amounting to a breach of data protection (Claimant’s closing arguments, para 5.7) without addressing whether or 1 ‘Tracking’ is a word used by the Claimant. It is not accepted by the tribunal. In this respect the tribunal has made a finding of fact that the Claimant’s Outlook App on his mobile phone was authenticating from an IP address in Pakistan. See Findings of Fact, paras 18 and 21. how alleged breaches in relation to data protection could be relevant in the context of the claims before the tribunal.

Findings of fact

[1]The Claimant was employed as a customer sales experience assistant with the Respondent from 30 May 2014 until his dismissal on the ground of gross misconduct on 25 April 2023. The Respondent is a rail operator of the Elizabeth Line, formerly known as Crossrail. It provides rail services on behalf of Transport for London and currently employs 1500 staff.

[2]The claims are made against the background of the Claimant’s summary dismissal for gross misconduct following events that transpired after he travelled to Pakistan in December 2022 where a family wedding was taking place.

[3]Unfortunately, the Claimant contracted COVID 19 in March 2020 when he was working at a temporary ticket office in Ilford. He required ventilation for three weeks and thereafter spent another three weeks in intensive care. The Claimant was discharged from hospital on 13 May 2020 and remained bed-ridden for a further six months. He returned to work for the Respondent in November 2020. The Claimant also has had diabetes for many yeas, which is not well controlled. The Respondent does not dispute that this impairment is a disability for the purposes of the Equality Act 2010.

[4]Prior to the Claimant’s return to work following his contracting COVID 19, he attended occupational health referrals on 4 and 16 September, and 2 November 2020. The 16 September referral recommended a phased return to work of a slow nature. The Respondent permitted the Claimant to work for 2 – 3 hours per day (Bundle, p 216). On 2 November the recommendation was that the Claimant’s hours were not increased and it was noted that his exercise capacity had not increased and that he experienced breathlessness on very minor exertion (Bundle, p 218). In December 2020 the Claimant was ‘furloughed’. An occupational health report dated 30 March 2021 indicated that he was not yet fit to return to work (Bundle, p 222). In April 2021 the Claimant resumed worked by way of a phased return, working for five hours per day initially. A further occupational health report in July 2021 (Bundle, p 226) again suggested the Claimant work no more than five hours per day. The Claimant continued to work on this pattern of reduced hours until his employment with the Respondent was terminated.

[5]An occupational health report dated 11 April 2022 (Bundle, p 230) recommended that the Claimant continued to work reduced hours and restricted duties. The report states (Bundle, p 231): ‘1. Reduced hours – maximum of 5 hours per shift – as Dr Harmanns suggested in 2021 consider fixed shifts and reduce commutes if these can be accommodated. 2. Avoid heavy manual handling, prolonged standing and repeated stair climbing. 3. Consider protected time for outpatients/clinic review.’

[6]When the Claimant had returned to work, Mrs Pervaiz Usman Bhatti was dropping and picking him up from the stations where he worked. The evidence of the booking of the flights to Pakistan

[7]In his evidence, the Claimant said that on 17 November 2022, his family (Mrs Pervaiz Usman Bhatti and their four children) booked tickets to fly to Pakistan on 24 December 2022 to attend a family wedding.

[8]The Claimant made an informal request to the Rostering Team for annual leave around the period from 24 December 2022 but was informed that none was available.

[9]The Claimant provided an email to the tribunal (Bundle, p 137) sent to Mrs Pervaiz Usman Bhatti from ‘Jacob at Budget Air’, subject line ‘Booking confirmation: Flight to Lagos’. The email goes on to list Mrs Pervaiz Usman Bhatti and her four children as flying from London to Bahrain and from Bahrain to Lahore on Thursday 22 December 2022.

[10]In her oral testimony, Mrs Pervaiz Usman Bhatti said that she got her ‘money back’ from this booking and, on 1 December 2022, rebooked a flight for her and her children. The tribunal was presented with no contemporary documentary evidence, such as e-tickets or any other type of tickets or records, in relation to any such booking. A letter (attached to Mrs Pervaiz Usman Bhatti’s witness statement), dated 19 May 2025, from an Umer Farooq, Director of ‘Mango Fly’, on that company’s headed note paper states that an initial booking was made on 1 December to fly to Pakistan on 24 December 2022 with Mango Fly for ‘Mrs Sadia Pervaiz’ and her four children. It goes on to say that on 23 December 2022 the Claimant was added to the original group itinerary as an additional passenger. Other than that letter, written in 2025, no contemporary documentation relating to the booking of the flights was presented to the tribunal by the Claimant. Therefore, in the absence of any evidence, the tribunal was unable to make a finding as to when the Claimant and his family’s flights to Pakistan were actually booked.

[11]The Claimant and his family flew to Pakistan on 24 December 2022. The evidence in relation to the Claimant’s decision to fly to Pakistan

[12]According to the Claimant and his wife he took the decision to join his family in Pakistan because he could not be left alone at night due to his breathing difficulties/risk of choking. Initially, he had decided to ‘tough it out’ but as the time for the family to leave came closer the Claimant realised that he would not be able to cope on his own. The Claimant said in his evidence that on 22 December 2022 he felt sick at work and by the time he got home his back was hurting so much that he did not want to be home alone, so he decided that he would fly to Pakistan with his family to have a steroid injection. He said that he called his general practitioner on 23 December 2022 and we accept that the GP told him to self-certify for the first week and take naproxen and keep moving (see paragraph 53.5 below).

[13]The Claimant obtained a retrospectively dated FIT note, dated 20 January 2023, stating that he had been unfit for work from 28 December 2022 to 15 January 2023 due to ‘chronic lower back pain’.

[14]The Claimant’s work rota was produced weekly for the week ahead. He was on the rota to work for four days, namely 27, 28, 29 and 31 December 2022. On the next rota for the first week in January 2023, the Claimant was marked as sick.

[15]On 26 December 2022 the Claimant sent an email to the ‘Customer Experience Controller East’ stating: ‘Hi good evening control/eastern managers just want to let you know me usman majeed ticket office staff at east side is sick and having a severe back pain so I am afraid will not be able to come to my shift to tomorrow 27/12/22 at Romford ticket office starting 15:20, will not be available till further notice. Hopefully will let you know as soon as I feel any better. Thanks for your cooperation.’

[16]In reply, on the same date, Mr Varsani wrote: ‘Hello Usman, Sorry to hear you are unwell. Can you please call control as per the process to notify me of your sickness’

[17]Mr Varsani knows the Claimant’s brother professionally and he had previously told Mr Varsani that all the family were in Pakistan for a family wedding. This caused Mr Varsani to become suspicious and he asked the Respondent’s IT department if they could tell from where the Claimant’s email had originated.

[18]The IT infrastructure manager (a Mr A Fearnley) sent an email to Mr Pizer on 28 December 2022 stating: ‘Unfortunately the necessary client IP address is not present in the email headers, We can, however, see that his Outlook Mobile has been authenticating from IP addresses in Pakistan since 25/12/22 up to now (28/12/22).’

[19]On 29 December 2022 Mr Varsani had a phone conversation with the Claimant. Mr Varsani’s summary of the discussion (Bundle, p 109) states: ‘Initial interaction – 26 December 2022: Usman Majeed (UM) notified Eastern Station Mangers via email (26/12/22 that he is unable to attend ticket office shift the next day (27/12/22) due to having a bad back. KV [Kirit Varsani] informed UM via email that he needs to follow process and call MRT Control to notify of absences. UM calls through his sickness a few hours later. 29 December 2022: -Due to Andy Pizer (AP) being on A/L and KV being 1st line On Call, KV attempted to make a welfare call to UM. -UM mobile number was not connecting throughout the morning despite a number of attempts by KV. -KV sent a WhatsApp message to UM at 11:11 requesting UM to call back when he can -UM calls KC at 11:24 via WhatsApp call -UM explains he is suffering from back problems and is resting. He has been taking Co-Codamol tablets to manage his pain. He is awaiting an appointment to see his GP. -KV asks UM if he is resting at home. UM states he is staying at his uncle’s house outside of London. -KV asks in which town or city he is staying for any welfare visits that maybe undertaken. -UM queries why KV is asking and refuses to disclose. UM states he would need to ask his uncle’s permission. -KV asks UM if the rest of his family is with him, UM states No they are in Pakistan attending a family wedding. -KV asks UM are you in Pakistan with them, after brief pause UM confirms he is in Pakistan. -KV asks UM when did he fly out, UM refuses to answer. -KV asks when UM is expecting to come back to London, UM states in January. -KV informs UM that he will continue this conversation on UM return back to UK and he will be marked as AWOL.’

[20]The Claimant says that he saw a doctor in Pakistan on 26, 29 and 30 December 2022. However, there is no evidence that any consultations took place on those dates from any doctor. There is a doctor’s letter dated in 2 January 2023 from Consultant Doctor Gulzar Majeed. It states ‘My patient is suffering from back pain (severe). Pain is radiating to both legs. He is taking medicine orally and IV as well. He is unable to walk. Kindly allow him rest for satisfactory recovery’.

[21]The Claimant’s Outlook Mobile App continued to authenticate from an IP address in Pakistan on 11 and 12 January 2023 (email from IT Helpdesk to Mr Pizer dated 12 January 2023, Bundle, p 112).

[22]On 16 January 2023, the Claimant returned to work. A ‘Q and A’ with the Claimant was conducted by Mr Pizer ‘at 1205 hrs’ on that day. A statement from Mr Pizer about the contents of that interaction is contained in the bundle at pp 113- 114. The Claimant refused to answer a number of Mr Pizer’s questions and refused to supply his flight details: ‘You called in sick on 27 December, where were you when you sent the email? I don’t feel that I can answer that question – due to previous experience How were sending your email ipad/your personal phone? From my personal phone, I found it easier to use my personal phone rather than the company ipad Where you in the country during the sickness? No Where were you? Pakistan Do you remember where you were? I don’t want to answer Why did you go to Pakistan? Because I felt unsafe at Romford by myself, as I was alone. What dates were you in Pakistan? No comment Why were you in Pakistan? I need family to look after me and make sure I take my medication Who looks after you in Pakistan? Family, family means family So you had no […] here in the UK? No When did you fly out to Pakistan? I’m not able to answer any of these questions Did you not find it difficult on the plane for 11 hours in severe pain? Yes, but the consequences are more than that, or staying alone Do you fly business or economy? No comment Usman commented that these questions were irrelevant Can you provide me your flight details to Pakistan? No I won’t supply any flight details Finishes 1300 hrs’

[23]On 17 January 2023, Mr Pizer met with the Claimant at around 330 pm and informed him that he was being suspended and would need to return company property. His work tablet and other items of work property were taken from him and he was escorted out of the office in the presence of other staff. At 4.16 pm the Claimant raised a grievance about the ‘Q and A’ with Mr Pizer in an email to Human Resources (sent from a personal email address). He also asked that the matter be investigated by another manager as he did not ‘expect a fair trial from Andy Pizer’ (bundle, p 58).

[24]On 18 January 2022, Mr Harris wrote to the Claimant informing him that he was suspended as a precautionary measure pending the completion of an investigation into allegations of gross misconduct and the outcome of any disciplinary hearing that might ensue from that. Mr Harris confirmed that he was also going to be investigating the grievance that the Claimant had raised against Mr Pizer. In relation to the allegation of gross misconduct, Mr Harris stated: ‘The allegation of gross misconduct is: 1. That you knowingly planned to call in sick to work on 27 December 2022 as you were abroad in Pakistan and had not scheduled leave in advance. The nature of the allegation relates to breaches of the company’s disciplinary policy: 8.1.2 Examples of gross misconduct: Fraud It also relates to a breach of the company’s managing attendance policy: Any investigatory process which leads to a belief that the claim is dishonest will be dealt with through the Disciplinary Policy Gross misconduct is defined by MTR Elizabeth Line as those acts which are so serious in their nature that they destroy the mutual relationship of trust and confidence between the employee and the employer and make any further working relationship impossible The suspension is not a disciplinary sanction and you are not presumed to be guilty because you have been suspended. The suspension will continue until you are notified otherwise’

[25]On 27 January 2023, Mr Harris conducted the investigation meeting with the Claimant in the presence of his union representative and a note-taker (the note taker’s minutes are contained in the bundle, p 93). Mr Harris’ undated investigation report is contained in the bundle (p 104). The investigation meeting about the Claimant’s grievance against Mr Pizer immediately followed on from that meeting.

[26]On 28 February 2023, Mr Harris wrote to the Claimant informing him that his grievance against Mr Pizer had not been upheld and advised him of his right to appeal (bundle, p 73).

[27]On 6 March 2023, the Claimant sent an email to the Human Resources Business Partner, a Ms Blant, indicating that he wanted to appeal against the decision of Mr Harris in relation to his grievance (bundle, pp 74 – 75). Ms Blant replied by email on the same day asking the Claimant to set out his grounds of appeal. The only reply to that request from the Claimant appears to be an email in which he says ‘Additional grounds or main point being missed in previous grievance meeting was that Andy was on annual leave during all my sickness still he was trying to chase me personally why?’ (bundle, p 148).

[28]Mr Harris made findings following the investigatory meeting. His report states (bundle, pp 108 – 109): ‘Findings Knowingly planned to call in sick to work on 27 December 2022 as he was abroad in Pakistan and had not scheduled annual leave in advance. … Usman admitted to flying to Pakistan on 24 December but he told me that he had not pre-planned going to Pakistan and had always intended to attend work on 27 December, He tells me that his back pain was long term and he was expected to work on 27 December, but then was not back on the rota until 16 January 2023. He told me that because he knew he was going to be too unwell to work on 27 December, he would fly to Pakistan to see a doctor over there to help with his back pain. He said that his family were already flying over was not relevant, and he had not intended to travel until after he already knew he wouldn’t be able to attend work. … In summary: -Usman has not provided sufficient evidence to me that he first scheduled a flight last minute -He has not sufficiently explained why he was not honest about his whereabouts when discussing with Kirit [Varsani] as part of the welfare call -I don’t believe its reasonable for him to fly long haul to Pakistan when his back pain is so bad he isn’t able to attend work -He has not sufficiently explained to me why he cannot access medical advice and pain medication in this country if his back pain was so bad -He confirmed a family wedding was being attended by the rest of his family at the same time as his reported medical emergency’.

[29]On 14 March 2023, Mr Frost wrote to the Claimant inviting him to a disciplinary hearing on 27 March 2023. This meeting had to be re-scheduled due to the Claimant having been admitted for surgery. The Claimant’s disciplinary hearing took place on 25 April 2023.

[30]At that meeting the Claimant was asked why he flew out to Pakistan on 24 December. The notes indicate (bundle, p 178): ‘UM – family was frightened, my mental and physical condition and not to go through this alone, to get treatment there quickly, waiting times here are so long, I’ve suffered a should [sic] injury and it taken me years, this pain gave me panic attacks so I decided to go with MF- did you attend the wedding UM- no its not about the wedding, that’s what I said to John Harris MF – is that a no didn’t attend UM – its not relevant I don’t know why asking’.

[31]At the end of the meeting Mr Frost informed the Claimant that he had taken the decision to summarily dismiss the Claimant for gross misconduct (Bundle, p 179).

[32]By letter, dated 28 April 2023 to the Claimant, Mr Frost confirmed the outcome of the disciplinary hearing (bundle, pp 182 – 184). In reaching his decision to dismiss the Claimant, Mr Frost said that he had considered whether a lesser sanction, such as demotion, was appropriate. He explained that it was not as even the least senior roles in the organisation required the Respondent to be able to trust that policies and procedures were being followed and that its staff are where they say they are at all times. In reaching his conclusion, Mr Frost also indicated that he had considered the Claimant’s grounds of mitigation, including that the Claimant was a disabled member of staff (bundle, p 182): ‘You are a disabled member of staff The company have put in several adjustments for you over the years you have worked with us: you have a reduced week … and we have implemented all recommendations from OH to support your ability to remain employed with us. The only issue I have consider [sic] at the hearing is whether or not the allegation against you is a legitimate one and correct procedure followed for allowing you to give your version of events … I put in adjustments to support you …’

[33]On 5 May 2023 the Claimant, by email, appealed against the disciplinary sanction of dismissal. Mr Cox wrote the Claimant inviting him to an appeal meeting on 17 May 2023 (bundle, p 186). The appeal hearing with Mr Cox took place on 26 June 2023.

[34]By emailed letter, dated 4 July, Mr Cox informed the Claimant that he had upheld Mr Frost’s decision to dismiss him (bundle, pp 208 – 209). Mr Cox said that after considering all the relevant facts and circumstances, he regretted that the Claimant’s appeal had been unsuccessful. In particular, Mr Cox stated (bundle, p 209): ‘It is important to acknowledge that you do have complex health concerns, and it was discovered that you sought medical attention whilst you were away. Whilst we understand the personal nature of your health concerns, as an employee, it is crucial to maintain open and honest communication. Your failure to disclose this information not only breached our policies but also demonstrated a lack of accountability and disregard for the organisation as a whole. Moreover, it is essential to address the issue of trust in light of the events that transpired. The failure to disclose your whereabouts, coupled with a hesitancy to provide a valid reason, has led to a significant breakdown of trust between you and the company. Trust is a fundamental aspect of any working relationship, and where there is a breakdown, it becomes challenging for the business to have confidence that behaviours will change in the future.’

[35]On 14 July 2023, the Claimant emailed Human Resources asking about his grievance appeal. This was not progressed by Human Resources because the Claimant had never supplied his grounds of appeal when he had been asked to do so (Bundle, p 148). The Law to be applied Unfair dismissal (conduct)

[36]The law to be applied in cases of dismissal where the principal reason is cited by the employer to be serious misconduct by an employee is set out in section 98 of the Employment Rights Act 1996: ‘(1) In determining …whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – … (b)relates to the conduct of the employee. … (4) [Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and (b) shall be determined in accordance with the equity and substantial merits of the case.’ When coming to its decision an Employment Tribunal must consider the three-limb test as set out in British Home Stores v Burchell

[1980] ICR 303

, namely: (i) whether the employer genuinely believed that the employee had been guilty of misconduct when it dismissed them; (ii) If so, were there reasonable grounds for the belief; and (iii) Did the employer carry out as much investigation into the matter as was reasonable in all the circumstances before dismissing the employee? An Employment Tribunal must not substitute its own view for that of the employer (London Ambulance Service NHS Trust v Small

[2009] IRLR 563

). The correct test is not whether a reasonable employer would have dismissed the employee as opposed to imposing a lesser penalty, but whether the dismissal fell within the reasonable range of responses of a reasonable employer in the circumstances. In Thames Water Utilities Ltd v Newbound

[2015] IRLR 734

at para 74, Bean LJ stated that the band of reasonable responses – ‘is not infinitely wide. It is important not to overlook s 98(4)(b) of the 1996 Act, which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in decided to dismiss “in accordance with equity and the substantial merits of the case”. This provision, originally contained in s 24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal, Parliament did not intend the tribunal’s consideration of a case of this kind to be a matter of procedural box ticking.’ The band of reasonable responses test applied not only in determining whether it was procedurally or substantively fair or unfair to dismiss an employee but also in determining whether investigations carried out by the employer were reasonable in all the circumstances. In Shrestha v Genisis Housing Association Limited

[2015] IRLR 399

at para 23, it was stated that: ‘The investigation should be looked at as a whole when assessing the question of reasonableness. As part of the process of investigation, the employer must of course consider any defences advanced by the employee, but whether and to what extent it is necessary to carry out specific inquiry into them in order to meet the Burchell test will depend on the circumstances as a whole.’ The basic rule is that it is for the employer to show the reason for a dismissal. In Queen Elizabeth Hospital NHS Trust v Ogunlana UK

EAT/0372/06

, the EAT set out the position as follows: ‘(i) it is for the employer to show a genuine belief in the misconduct alleged, and that that belief was the reason for dismissal (ii) having established that potentially fair reason for dismissal, it is for the tribunal to determine, the burden of proof being neutral, whether the employer carried out a reasonable investigation and had reasonable grounds for that belief. In answering those questions, the tribunal must apply the range of reasonable responses approach. It must not substitute its view as to whether a reasonable investigation was carried out or whether there were reasonable grounds for that belief, for that of the respondent employer; (iii)A similar approach must be taken to questions of procedural unfairness …; (iv) Finally, the question is whether dismissal fell within the range of reasonable responses open to the employer.’ Disability

[37]Disability is defined in section 6 of the Equality Act 2010: ‘(1) A person (P) has a disability if –(a) P has a physical or mental impairment, and

(b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.’ The Act states that, in deciding whether a person is disabled, a long-term effect of an impairment is one: -which has lasted at least 12 months; or -where the total period for which it lasts, from the time of the first onset, is likely to be at least 12 months, or -which is likely to last for the rest of the life of the person affected. The EAT laid down guidance in relation to how an Employment Tribunal should evaluate and decide the issue of disability in Goodwin v Patent Office

[1999] ICR 202

indicating the tribunal must take a purposive approach when interpreting the legislation taking care to assess each of the four key conditions of the legislation (namely, ‘physical or mental impairment’; ‘adverse affect on ability to carry out day-to-day activities’; ‘substantial’, and ‘long term’) separately. The EAT in Cruickshank v VAW Motorcast Ltd

[2002] IRLR 24

held that the point at which to examine a disability was at the date of the discriminatory act. The burden of proving disability lies on the claimant (Royal Bank of Scotland plc v Morris UK

EAT/0436/10

at para 55). The question of whether an employer could reasonably be expected to know of a person’s disability is a question of fact for the employment tribunal (Jennings v Barts and the London NHS Trust UK

EAT/0056/12

). The question of when an employer can be said to have actual or constructive knowledge was considered in Gallop v Newport City Council [2013] Civ 1583. The Court of Appeal held that the employer must have actual or constructive knowledge of all the elements of the definition of a disabled person, namely that (i) the claimant has an impairment, (ii) which is long-term, (iii) which affects day-today activities, and (iv) whose effect is substantial. Direct Race discrimination

[38]Section 13(1) of the Equality Act 2010 provides: ‘(1) A person(a) (A) discriminates against

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others … The critical factor is the thought processes of the person making the allegedly discriminatory decision must be motivated by the presence of the characteristic in question (CLFIS (UK) Ltd v Reynolds

[2015] ICR 1010

). Discrimination arising from disability

[39]Section 15 of the Equality Act 2010 provides: ‘(1) A person(a) (A) discriminates against a disabled person

(b) (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know that B had a disability.’ The EAT laid down guidance on how an employment tribunal should approach complaints about discrimination arising from disability in Pnaiser v NHS England

[2016] IRLR 170

at para 31. (a)A employment tribunal must first identify whether there was unfavorable treatment and by whom – it must ask whether A treated B unfavorably in the respects relied upon by B. No question of comparison arises. (b)The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as in a direct discrimination case. Again just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s 15 case. The ‘something’ that causes the unfavorable treatment need not be the main or sole reason, but must have at least been a significant (or more than trivial) influence on the unfavorable treatment, and so amount to an effective reason for or cause of it. (c)Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or they did is simply irrelevant (Nagarajan v London Regional Transport

[1999] IRLR 572

). A discriminatory motive is empathetically not (and never has been) a core consideration before any prima facie case of discrimination arises … (d)The tribunal must determine whether the reason/cause (Or, if more than one), a reason or cause, is ‘something arising in consequence of B’s disability. The expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of s 15 of the Act … the statutory purpose which appears from the wording of s 15, namely, to provide protection in cases where the consequence or effects of a disability lead to unfavorable treatment, and the ability of a justification defence, the causal link between this something that causes unfavorable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability … (f)This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. It does not matter precisely in what order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the Claimant in the unfavorable way alleged in order to answer the question whether it was because of ‘something arising as a consequence of the claimant’s disability’. Alternatively, it might ask whether the disability has a particular consequence for the claimant that leads to ‘something’ that caused the unfavorable treatment (Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2015]

UKEAT/0387/14

/2907).

[40]In relation to the burden of proof relevant to claims under the Equality Act, section 136 provides that: ‘136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.’

[41]In Mrs A Field v Steve Pye & Co (KL) Limited and others

[2022] EAT 68

, HHJ James Tayler gave the following guidance relating to the burden of proof in case alleging breaches of the EqA (at paras [36] – [38]): 42. …The revised Barton guidance. As this is the first time that the Barton guidance has been considered by this court, it may be helpful for us to set it out again in the form in which we approve it ... We repeat the warning that the guidance is only that and is not a substitute for the statutory language. Annex(1) Pursuant to section 63A of the 1975 Act, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of section 41 or section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as “such facts”.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word “could” in section 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act.

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act … In some cases there may be no evidence to suggest the possibility of discrimination, in which case the burden of proof may have nothing to add. However, if there is evidence that discrimination may have occurred it cannot be ignored.’

Conclusions

[43]The conclusions refer to the final list of issues dated 3 June 2025 and this judgment cross-refers each allegation to that list of issues for the ease of reference. Jurisdiction - Time limits – the Equality Act claims (Issues 1 and 2) Equality Act 2010, section 123

[44]The claim form was presented on 22 July 2023, after an ACAS early conciliation period between 6 and 19 July 2023. Therefore for the purposes of s 123 of the Equality Act 2010, any complaint about something that happened before 19 April 2023 may not have been brought within time. Given that the Claimant was dismissed on 25 April 2023, the Respondent has conceded that any of the Claimant’s complaints about his dismissal are in time. Therefore, the claim under s 15 of the Equality Act, which relates to the Claimant’s dismissal is in time. This leaves the direct race discrimination s 13 of the Equality Act) against Mr Pizer and Mr Varsani in relation to the way they conducted the investigation into his location. Given that the investigation took place on 28 December 2022 and 12 January 2023, this complaint is, on the face of it, out of time by some four months. Therefore, the onus is on the claimant to show why it would be just and equitable to extend time.

[45]The Respondent argues that the Claimant has offered no explanation in his witness statement or in his oral evidence for the delay and has led no facts which are capable of supporting a just and equitable extension. Therefore the tribunal has no jurisdiction to hear the claim. While the tribunal accepts the Respondent’s argument that no evidence was led on the Claimant’s behalf on this issue, the tribunal nevertheless finds that it is just and equitable to extend time in the circumstances of this case. While the last alleged discriminatory act complained of dates from 12 January 2023 (which relates to the investigation which eventually led to the Claimant’s dismissal), the Claimant was dismissed on 25 April 2023. The tribunal does not consider that it was reasonable for the Claimant to have contacted ACAS prior to the date of his dismissal and it is therefore prepared to extend time in respect of the complaint under s 13 of the Equality Act and it will allow that claim to be argued before the tribunal. Disability (Issues 7 – 12)

[46]The Respondent having conceded that the Claimant was disabled by reason of his diabetes, it falls to the tribunal to decide whether the Claimant was disabled by reason of any of the following at the material time:46.1 Chronic back pain

46.2 Long Covid

46.3 Posterior glottic stenosis

46.4 Lung condition effecting breathing at night

46.5 Anxiety and depression

[47]The Respondent submits that as the discrimination claim is limited to one complaint of s 15 discrimination (issues 16 – 20) where the ‘something arising from disability’ relates to treatment for back pain (issue 17) it is only necessary to consider whether the claimant was suffering from a back pain disability at the time of the alleged discrimination (December 2022 – March 2023). While we agree with the Respondent’s argument that we must consider whether there was a disability only during the period December 2022 – March 2023, we do not agree that we should limit our enquiry in relation to disability in relation to back pain alone due to the complex nature of the Claimant’s medical history.

[48]In assessing each alleged impairment we have considered the following:48.1 Did C have the impairment?

48.2 Did the condition have a substantial adverse effect on their ability to carry out day-to-day activities?

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

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

48.5 Were the effects of the impairment long-term? Posterior glottic stenosis; Lung condition affecting breathing at night and Anxiety and Depression Posterior glottic stenosis

[49]There is a reference to the Claimant’s glottic stenosis in a hospital letter to his GP referring him for further management of his glottic stenosis (2 August 2022, bundle p 265) and a reference within the Occupational Health report dated 11 April 2022. It states (Bundle, p 230): ‘As you are aware Mr Majeed was in intensive care in 2020 with COVID. His vocal cord was damaged during that stay and he is awaiting further investigation at Charing Cross Hospital in relation to this. He has been told that this is the reason for his shortness of breath on relatively mild exertion (walking or climbing a few steps). This also impacts on his sleep. He tells me the speech and language therapists have advised that he should avoid talking where possible and certainly for long hours at work. He is to forward me this report.’

[50]While the report of 11 April 2022 indicates that the Claimant’s vocal cords were damaged, there is no evidence from which it can be concluded that that impairment had a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities between December 2022 and March 2023 (Bundle, pp 155, 236, 242, 243, 244, 245, 249, 255) . All other references to the condition are contained in documentation on various dates between 21 February 2023 and 23 December 2023. On the basis of the evidence provided, we do not find that the Claimant was disabled by reason of this Lung condition affecting breathing at night

[51]While there is reference to ‘poor sleep’ within occupational health reports on 30 March 2021 and 11 April 2022 (bundle, pp 222 and 230), there is no medical evidence of the Claimant suffering from ‘a lung condition affecting breathing at night’ during the period December 2022 and March 2023 and we are unable to conclude that he had that impairment. We therefore do not find that the Claimant was disabled by reason of this impairment during the period December 2022 – March 2023 for the purposes of the Equality Act. Anxiety and depression

[52]While the Claimant self-reports that he was taking mood supporting medication (occupational health report dated 6 July 2021, bundle p 227) and it is mentioned that he was being treated for depression (hospital letter to GP, dated 14 July 2021, bundle p 259), there is no medical evidence from which we are able to conclude that anxiety and depression substantially adversely effected the Claimant’s ability to carry out day-to-day activities. We do not find that the Claimant was disabled by reason of these impairments during the period December 2022 – March 2023 for the Chronic back pain and Long Covid Chronic back pain

[53]The medical evidence in relation to the Claimant’s chronic back pain is as follows: 53.1: Diagnosis of severe stenosis of L4/L5 and nerve entrapment (26 October 2020) (Bundle, p 260). 53.2: Occupational health report stating that the Claimant was suffering from back pain radiating down both legs and making it difficult to sit for long periods. There was discussion with his neurosurgeon regarding surgery and being referred to pain clinic for injections (dated 6 July 2021) (Bundle, pp 226 – 227). 53.3: Notes of a past diagnosis of chronic lumbar back pain (12 July 2021) (Bundle, p 259). 53.4: Occupational health report notes Claimant continues to experience lower back pain (11 April 2022) (Bundle, p 231). 53.5: Claimant consulted GP by telephone asking for a FIT note in relation to a flare up of his back pain the previous day. The GP declined to issue a FIT note and advised the Claimant to self-certify and recommended a course of Naproxen and that the Claimant stay active (23 December 2022). This document was not provided by the Claimant to the Respondent at the time and was presented as late evidence at the hearing. 53.6: Note from doctor in Pakistan saying that Claimant was suffering from back pain radiating down both legs (2 January 2023) (see paragraph 20, above) (Bundle, p 257). 53.7: The Claimant was retrospectively assessed by his GP on his return to the UK from Pakistan and was certified as not being fit for work due to chronic back pain (Bundle, p 256) (see paragraph 13, above) 53.8 Claimant was signed off sick from work for two weeks with chronic lower back pain (11 August 2023) (Bundle, p 250).

[54]There is medical evidence that the Claimant had back pain from July 2021 until April 2022. Then there is a gap until he suffered from a ‘flare up’ on 22 December 2022. His back pain is also mentioned in medical evidence in 2023. While there are gaps in the medical evidence and the Claimant was working during the eight months preceding the ‘flare up’ in December 2022, we consider that he was coping during this time by using painkillers. We also accept that he had difficulty sitting and standing for long periods and needed assistance to get dressed (Bundle, p 231). The Respondent had also placed the Claimant on reduced hours and duties on his return to work in November 2021 which continued until the termination of his employment. We find that the condition was recurring, that it had a substantial adverse effect on his ability to carry out day-to-day activities at least without treatment (painkillers) and that it was long-term (dating back to at least July 2021). Therefore we find that the Claimant was disabled by reason of this Long Covid

[55]The medical evidence in relation to the Claimant’s Long Covid, manifesting in breathlessness and fatigue, is contained in the following documentation: 55.1: Diagnosed with Covid 19 on 1 April 2020 (Occupational Health Report, 16 September 2020) (Bundle, p 214). 55.2: Covid breathlessness on minor exertion (Occupational Health Report, 2 November 2020) (Bundle, p 218). 55.3: Slow recovery from Long Covid (Occupational Health Report, 30 March 2021) (Bundle, p 222). 55.4: Long covid and increased fatigue on standing (Occupational Health Report, 6 July 2021) (Bundle, p 226). 55.5: Continued fatigue – probably long covid (Occupational Health Report, 11 April 2022) (Bundle, p 230).

[56]There is evidence that the Claimant had the symptoms of long covid in all the occupational health reports dated from 1 April 2020 – 11 April 2022. Therefore the Claimant was suffering from the condition at the material time. It had a substantial adverse effect on his ability to carry out day-to-day activities (shortness of breath on minimal exertion and fatigue) and that it was long-term (dating back to his diagnosis on 1 April 2020). The Claimant had been placed on restricted duties at work (as noted in paragraph 54 above). Therefore we find that the Claimant was disabled by reason of this Respondent’s knowledge of the claimant’s disabilities (Issue 13)

[57]We consider that the Respondent had knowledge of the Claimant’s disabilities, chronic back pain and long covid, from at least 11 April 2022 when the Respondent would have been aware of the impairments, that they were long-term, adversely affecting the Claimant’s day-to-day activities, and the effect was substantial. The report of Dr Charlston (dated 11 April 2022) states (Bundle, p 231): ‘… Mr Majeed continues to experience low back pain. He has had physiotherapy but declined an operation at this time noting his memories of hospitalisation with COVID in 2020. Mr Majeed continues to experience fatigue that probably reflects long covid, chronic pain and disturbed sleep. He manages 5 hours a day but is exhausted by this and at present would be unlikely to cope with long hours. Mr Majeed is under specialist care for his throat, back , shoulders, eyes, diabetes and COVID. He is on multiple medications, Whilst his symptoms have improved overall he still remains significantly impacted and his sleep remains disturbed… Do any temporary or permanent restrictions apply and for how long? 1. Reduced hours – maximum of 5 hours per shift – as Dr Hermanns suggested in 2021 consider fixed shifts and reduce commutes if these can be accommodated. 2. Avoid heavy lifting and manual handling, prolonged standing and repeated stair climbing. 3. Consider protected time for outpatients/clinic review.’ Direct race discrimination (Issues 14 – 15)

[58]The Claimant’s allegations of direct race discrimination against Mr Pizer and Mr Varsani (conduct of the investigation into the Claimant’s location) and Mr Frost (the Claimant’s dismissal) are not made out on the evidence. Mr Bhatti did not put the allegation that Mr Frost dismissed the Claimant because of his race during his cross-examination of Mr Frost (and he also failed to put the allegation to Mr Cox who was the decision maker on the Claimant’s appeal against his dismissal). There is therefore no evidence to support a finding of discrimination in relation to Issue 14(b). In respect of the investigation, we find that it was started because of Mr Varsani’s suspicion that the Claimant was not in the country (because he was aware that a family wedding was taking place in Pakistan at the time due to a conversation that he had had with the Claimant’s brother) and a suspicion that the Claimant was using his sick leave as a disguise for the trip. There was no evidence before the tribunal from which we could conclude that the alleged ‘tracking’ of the Claimant’s mobile phone device and the subsequent investigation was motivated by the Claimant’s race on either the part of Mr Pizer or Mr Varsani. We also consider that an employee in similar circumstances, who was suspected to have been using sick leave in this way, who was not of Pakistani origin, would have been treated in the same manner. Discrimination arising from disability (Issues 16 - 20)

[59]The Respondent accepts that it treated the Claimant unfavourably by dismissing him (issue 16).

[60]When considering whether the Claimant’s trip and stay in Pakistan arose as a consequence of his disability (because it related to treatment for his back pain), we note that both the Claimant and Mrs Pervaiz Usman Bhatti said in their evidence that it was because of concerns about leaving the Claimant alone at night due to his breathing difficulties/risk of choking and that the Claimant’s wife, as his primary carer, had not wanted him to be left alone at night while the family were in Pakistan. The Claimant also says that he went to Pakistan because he was frightened to be left alone in Romford in the Q and A with Mr Pizer on the day he returned to work (Bundle, pp 113 – 114). On the Claimant’s evidence, his back pain did not flare up until 22 December 2022. While both he and his wife also said that he went to Pakistan to have a steroid injection (as it would have taken months to get an injection in the UK due to NHS waiting times), there was no evidence before the tribunal that the Claimant had ever sought a steroid injection on the NHS or that he had a steroid injection in Pakistan. In his oral evidence the Claimant said that he sought medical attention in Pakistan on 26, 28 and 29 December 2022. There is no corroborative evidence of this. The letter from Consultant Doctor Gulzar Majeed makes no reference to any such consultations (the letter is dated ‘2/1/23’). It also does not mention that the Claimant had been given a steroid injection (the letter states ‘My patient is suffering from back pain (severe). Pain is radiating to both legs. He is taking medicine orally and IV as well …). We therefore find that the primary reason for his trip to Pakistan was not related to treatment for back pain (or long covid). It follows that the reason for the Claimant’s trip to Pakistan and stay there did not arise in consequence of his disability (Issue 17).

[61]If we are wrong in that conclusion (Issue 17), and the Claimant had gone to Pakistan for treatment for his back pain (or long covid), we do not consider that he was dismissed because he had done so (Issue 18). It is clear from the documentation in relation to the investigation that the reason was due to the fact that the Respondent considered that the Claimant had planned his absence from work and then sought to conceal it from the Respondent (Bundle, p 104 and paragraph 28, above). The Claimant’s email of 29 December 2022 (Bundle, p 108) did not mention that he had travelled to Pakistan and he had also initially said to Mr Varsani during their conversation on the same day that he was staying at his uncle's house ‘outside London’ and that ‘his family were attending a wedding in Pakistan’. The Claimant also failed to cooperate with the Respondent in its disciplinary process, in that he failed to provide clear evidence (such as e-tickets or paper tickets) of the details of his flight or evidence of when his flight was first booked. He also failed to answer questions about the reasons for his trip to Pakistan during the Q and A with Mr Pizer (Bundle, pp 113 – 114) and during the disciplinary hearing with Mr Frost (Bundle, p 178).

[62]Given our findings on Issues 17 and 18, we do not need to consider whether the treatment was a proportionate means of achieving a legitimate aim. However, if we were wrong in our findings in relation to issues 17 and 18, we nevertheless find that the treatment would have been proportionate and reasonably necessary to achieve a legitimate aim unrelated to discrimination, namely the Respondent’s maintaining discipline and the trustworthiness of its workforce (Bundle, p 209 and paragraph 34 above). (Issues 19 and 20). Unfair dismissal (Issues 3 – 6)

[63]We find that the Respondent’s principal reason for dismissing the Claimant was as a result of his gross misconduct. The gross misconduct as found by the Respondent was that the Claimant attempted to use sick leave to cover for his absence from work when he was in Pakistan from 24 December 2022 – 13 January 2023. He had not arranged annual leave in advance and sought to use sick leave to justify his absence (paragraph 34 above) and had then refused to fully cooperate with the investigatory process by refusing to provide evidence of his flight bookings. No contemporary evidence of the bookings was ever provided despite the Claimant saying at the investigation meeting that he would do so. The evidence that was provided to the tribunal in relation to the flights comprised of a document dated 19 May 2025 and another that referred in its subject line to ‘Flights to Lagos’. In all the circumstances, the tribunal accepts that such conduct falls within ‘Fraud or dishonesty’ as set out in the Respondent’s definition of gross misconduct (see Findings of Fact, para 24). Mr Bhatti’s suggestion in his closing submission that the Claimant’s absence was disability related leave under the Respondent’s policies (the policy is set out at p 302, bundle) is rejected. This suggestion was not canvassed with any of the Respondent’s witnesses and had never been raised by the Claimant during the investigatory process or as part of his pleaded case. Furthermore, under the Respondent’s leave policy at para 14.1 (Bundle, p 303) it is an employee’s responsibility is to ‘only be absent from work where this has previously been authorised by management). Whether or not the Claimant’s leave was disability related, he still failed to gain prior permission from his manager. We find that the Respondent had a genuine and reasonably held belief that the Claimant had committed the misconduct relied upon and that it had reasonable grounds for its belief, taking into account the Claimant’s behaviours as noted above in relation to his failure to follow the absence reporting process by phoning in, his attempts to mislead Mr Varsani about his whereabouts during the call on 29 December 2022, and his failure to cooperate fully with the investigation. (Issue 3).

[64]In all the circumstances, having regard to the Respondent’s size and administrative resources, we consider that it acted reasonably in treating that as a sufficient reason to dismiss the Claimant (issue 4). For the reasons noted at paragraph 63 we find that the Respondent had reasonable grounds for its belief. We find that Mr Harris’ investigation was reasonable and fair. The allegation and parameters of the investigation were both clearly set out. In terms of procedure, while it would have been preferable of Mr Harris had not also been responsible for investigating the Claimant’s grievance, there was no requirement within the ACAS guidance (ACAS Code of Practice on disciplinary and grievance procedures (dated 15 March 2015)) and related Code of Practice that different investigators are required for grievance and disciplinary proceedings. We also consider that it would have been more likely than not that the outcome of the Claimant’s grievance would have been the same even if it had been investigated by a different investigating officer. We find that there was no failure on the Respondent’s part to process the Claimant’s grievance appeal because the Claimant had not provided the information about his grounds for appealing it (Findings of act, para 27). While we consider that the decision to dismiss the Claimant was harsh, we consider that it fell within the range of reasonable responses in all the circumstances. The Respondent had considered whether a lesser sanction (namely, written warning and demotion) would be appropriate as an alternative to dismissal and had set out its grounds as to why it did not consider these lesser alternatives to be appropriate in the circumstances. We consider that the Respondent’s decision, as set out below, was reasonable (Bundle, p 183): ‘…I do not doubt you understand the responsibility for you within our absence policy … You did not take responsibility for your actions and continued to assert your actions were appropriate in the circumstances and ultimately, it was this that did not give me any confidence, if you remained employed albeit with a final warning, you would do anything differently in future. I considered whether demotion to another position would be appropriate, however, even the lease senior roles in our organisation require us to be able to trust that policies and procedures were being followed and our staff are where they say they are at all times. Therefore, action short of dismissal is not an appropriate outcome.’

[65]Given our findings on issue 4, issues 5 and 6 (regarding any contribution on the part of the claimant to his dismissal in the event that it was unfair) do not fall to be considered. Approved by: