Mr A Rossberg v Queen Mary University of London: 3201364/2023
EMPLOYMENT TRIBUNALS
Case No 3201364/2023
Between
Mr A RossbergClaimantQueen Mary University of LondonRespondent
Before
Employment Judge G. King
Members
Mrs M. LeggMr M. RoweIn person for claimantMiss R. Thomas - counsel for respondentDate 3 October 2025
JUDGMENT
[1]The Claimant’s claim of direct discrimination because of disability (section 13 Equality Act 2010) is not well founded and is dismissed.[2]The Claimant’s claim of indirect discrimination because of disability (section 19 Equality Act 2010) is not well founded and is dismissed.[3]The Claimant’s claim of discrimination arising from disability (section 15 Equality Act 2010) is not well founded and is dismissed.[4]The Claimant’s claim of failure to make reasonable adjustments (section 20 Equality Act 2010) is not well founded and is dismissed.[5]The Claimant’s claim of whistleblowing detriment is not well founded and is dismissed.
REASONS
[1]By a Claim Form dated 24 July 2023, the Claimant brought claims relating to protected disclosures over a lengthy period of time up to 19 May 2023, direct race discrimination relating to his nationality, harassment due to race and victimisation based on his race pursuant to ss.26 and 27 Equality Act 2010, direct disability discrimination pursuant to ss.6 and 13 of the Equality Act 2010, failure to make reasonable adjustments contrary to ss.20 and 21 Equality Act 2010, and breach of contract.[2]The claim was subsequently amended to add a claim for discrimination arising from disability pursuant to s.15 and indirect disability discrimination arising from s.19 off the Equality Act 2010.[3]The Claimant’s claims for direct race discrimination, harassment due to race, victimisation and breach of contract were dismissed upon withdrawal on 13 November 2023.[4]There is no dispute that the Claimant was a disabled person within the meaning of the Equality Act at the material time.[5]The Tribunal was assisted by a 1201-page bundle prepared in advance of the hearing as the main bundle. Pages from this bundle are noted in square brackets, e.g. [1]. There was also an agreed chronology.[6]The Tribunal heard live witness evidence from the Claimant and from Professor B. Khoruzhenko, Dr P Lloyd and Professor P. Pickersgill on behalf of the Respondent. There was also a signed statement from Ms A. Acheampong on behalf of the Respondent. She was unwell and was unable to attend the Tribunal to give evidence. Her statement was therefore not sworn evidence nor was it tested in cross-examination, so the Tribunal placed less weight on it.[7]The Tribunal heard considerable evidence regarding the background of this case. The Tribunal made findings of fact, and findings on how the law applies to those facts, only in relation to the matters that the Tribunal had to decide, as per the List of Issues, as set out below.[8]References to witness statements are designated as witness initial followed by paragraph number, e.g. [AR 1] for the Claimant’s witness statement, paragraph one.[9]Both parties provided written submissions at the end of the evidence (after time had been allowed for the preparation of these) and both parties made oral submissions in support of their written submissions. Both parties were afforded an opportunity to reply if they so wished.
The Issues
[10]The agreed issues in the case are: 1. Jurisdiction1.1 For each complaint, was the claim form submitted more than 3 months less a day after the conduct complained of (allowing for any extension pursuant to ACAS early conciliation?)?1.2 If so, did that conduct form part of conduct extending over a period (Equality Act claims) or a series of similar acts or failures to act (whistleblowing detriment claims) which ended within 3 months less a day of the claim form being submitted?1.3 If no to the above:1.3.1 Would it be just and equitable to extend the time limit (Equality Act claims)?1.3.2 Was it not reasonably practicable for the Claimant to bring the claim in time, and if so, was it brought within such further period as was reasonable (whistleblowing claims)? Disability Discrimination 2. Section 13 Equality Act 2010: direct discrimination because of disability2.1 The Respondent concedes that:2.1.1 the Claimant was disabled within the meaning of section 6 of the Equality Act 2010 by reason of type 1 diabetes; and2.1.2 that they were aware of the Claimant’s disability at the relevant time.2.2 Did the Respondent do the following as alleged:2.2.1 The Head of School’s statement on the Claimant’s application for promotion made in the 2023 promotions round, including a recommendation not to promote him, sent to the Claimant on 2 May 2023.2.2.2 The decision of the Faculty Promotion Panel not to promote the Claimant, communicated to him on 20 July 2023.2.3 If so, did the Respondent treat the Claimant less favourably than it treated or would treat others (comparators) in not materially different circumstances? The Claimant relies on the following comparators: 2.3.1 He relies on a hypothetical comparator and on other non–disabled applicants for promotion in the 2023 promotion round.2.4 If so, was any less favourable treatment because of disability? 3. S.19 Equality Act 2010: Indirect disability discrimination3.1 Did the Respondent apply a PCP to the Claimant when considering the Claimant’s application for promotion in the 2023 promotions cycle, namely by requiring under the Academic Promotions Guidelines 2023 the inclusion of an Equality, Diversity, & Inclusion representative on the Faculty Promotions Panel but failing to specify in the Guidelines the membership of the EDI team, allowing for ambiguity in the background of the EDI representative who sits on each Panel?3.2 Did or would that PCP put persons with the Claimant’s disability, and specifically the Claimant, at a particular disadvantage, when compared to persons without his disability in respect of achieving a promotion? The Claimant says that the person on his Faculty Promotion Panel was Darren Hunwicks, HR EDI Officer, a member of HR who was tasked with managing Equality, Diversity & Inclusion matters who ultimately reports to the Director of HR. This representative is not a member of academic staff and has little incentive to forcefully and effectively flag cases of disability discrimination by the Faculty Promotion Panel either during or after the panel meeting. As a result, safeguards to protect disabled academic staff from discrimination in this process are insufficient and such discrimination can occur unchecked. This indirectly places disabled applicants at a particular disadvantage compared to applicants who are not disabled.3.3 If so, was the PCP a proportionate means of achieving a legitimate aim? 4. S.15 Equality Act 2010: Discrimination arising from disability4.1 Did the Respondent treat the Claimant unfavourably because of something arising in consequence of their disability?4.2 The Claimant relies on the following as “something arising”: 4.2.1 As a consequence of the Claimant’s ongoing need to attend to and treat his diabetes the Claimant had fewer achievements in his work with the Respondent than he would otherwise have had. He had an insulin pump that helps regulate his body’s blood sugar levels, which needs ongoing maintenance. He has episodes of high and low blood sugar levels. He needs time to treat his diabetes and has poor sleep on occasions. But for this, he would have made more successful grant applications; produced more research papers; and spent more time engaging with the school administration in relation to citizenship.4.3 The unfavourable treatment relied upon is: 4.3.1 Not being promoted.4.4 If so, was the unfavourable treatment a proportionate means of The Respondent relies on the following legitimate aims:4.4.1 effectively managing the seniority and promotion of academic staff to ensure the requisite skill, experience and technical capability required across the Respondent’s organization to ensure its ongoing obligations to students are fulfilled and its operations run smoothly;4.4.2 ensuring that the Respondent operates a fair and consistent promotions policy. 5. S.20 Equality Act 2010: Failure to make reasonable adjustments5.1 The Claimant alleges that the Respondent failed to comply with a duty to make reasonable adjustments to the promotions process in 2023.5.2 Did the Respondent apply the following PCP? This proved to be a difficult issue for the Claimant to explain this part of his claim. In essence, what the Claimant alleges is that, as part of his January 2023 application, he made specific written submissions concerning his diabetes. He says it was a requirement that the panel takes this information into account. He asserts that in practice the panel failed to take this information into account sufficiently or at all.5.3 In respect of the alleged PCP, if proved, did that PCP put the Claimant at a substantial disadvantage in comparison with persons who are not disabled? 5.3.1 The Claimant’s application was refused.5.4 If so, did the Respondents know or could they reasonably have been expected to know the Claimant was likely to be placed at that disadvantage in comparison with persons who are not disabled in relation to employment by the Respondent?5.5 If the Respondent had actual or constructive knowledge of disadvantage, did the Respondent fail to take such steps as it was reasonable to have to take to avoid the disadvantage caused by the PCP? The Claimant says the Respondent should reasonably have: 5.5.1 Taken the impact of his disability into consideration, the panel should have lowered the threshold for successful applications for professorship. 6. Whistleblowing detriment6.1 What did the Claimant communicate, when, how and to whom?6.1.1 On 17 December 2021, the Claimant stated to Professor Wang that he was concerned that his application for promotion would not be dealt with fairly and that this would be a breach of the grievance resolution policy.6.1.2 On 16 June 2022, the Claimant appealed against his refusal of promotion in 2022. In summary he was alleging failures to follow the promotion policy. For example, not giving reasons for the refusal of his application.6.1.3 On 15 September 2022, he stated at the appeals panel hearing that the head of school made false and misleading statements about him.6.1.4 On 12 December 2022, the Claimant wrote to Professor Bailey to explain that the Appeals Committee didn’t follow the promotion guidelines.6.1.5 On 20 February 2023, the Claimant wrote to Professor Bailey raising concerns about the promotion process, and on 19 May 2023 chased a response to this message, highlighting wider issues.6.2 Was this a disclosure of information?6.3 Did the information tend to show, in the Claimant’s reasonable belief, one or more of the following; 6.3.1 They are all examples of failing to comply with a legal obligation under s.43B(1)(b) ERA 1996. The Claimant relies on the promotion guidelines and grievance procedure which all form part of his terms and conditions of employment.6.4 Did the Claimant reasonably believe that this disclosure was made in the public interest?6.5 Did the Respondent subject the Claimant to a detriment because he had made any protected disclosure? The Claimant alleges that the Respondent:6.5.1 In an investigation report dated 7 March 2023 and again when resending this report on 24 May 2023 in response to the message from 19 May 2023, did not or not adequately resolve the issues raised in this disclosure.6.5.2 Stopped his grievance alleging bullying against Professor Richard Pickersgill on 13 April 2023 and the issues raised remained unresolved.6.5.3 Did not respond to his appeal dated 17 April 2023 against the decision to stop the grievance.6.5.4 Made the criteria to evaluate his application for promotion in 2023 more stringent compared to those used for his application in 2022, despite the Claimant having submitted in 2023 a Personal Circumstances Statement regarding his diabetes.6.5.5 Delayed the Faculty Promotion Panel decision to 24 July 2023. (confirmed during the hearing as being no longer pursued)6.5.6 Refused his application for promotion. 7. Remedy7.1 What financial loss has the Claimant sustained in consequence of the treatment complained of?7.2 Has the Claimant taken reasonable steps to mitigate his loss?7.3 Should any award for injury to feelings/personal injury be made to the Claimant?7.4 If the Tribunal finds that the Claimant is entitled to any compensation in respect of the above grounds, would it be fair and equitable to award the Claimant compensation?7.5 Should the award for compensation be reduced or uplifted for any reason, including:7.5.1 By reason of the Claimant’s own actions;7.5.2 For an unreasonable failure by the Claimant or the Respondent to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.[11]It was agreed that this hearing would be concerned with liability only. A separate remedy hearing would be held if the Claimant’s was successful in relation to any of his claims. Agreed Factual Chronology[12]The Claimant’s employment commenced on 24 August 2015 [17].[13]On 17 May 2020, the Claimant raised a grievance against Dr Bray [621]. On 17 September 2021, the Claimant emailed Professor Wang with a message titled “Question about promotion process”, which is identified as the first alleged disclosure [671].[14]On 31 January 2022, the Claimant applied for promotion to Professor [703]. On 1 May 2022, the Claimant submitted a response to the Head of School Statement [729]. On 30 May 2022, the Claimant was informed that he had been unsuccessful in his promotion application [741].[15]On 16 June 2022, the Claimant met with Professor Wang [746] and also appealed the decision of the Faculty Promotion Panel, which is identified as the second alleged disclosure [741][751].[16]On 15 July 2022, the Claimant raised a grievance against Professor Pickersgill [753]. On 11 August 2022, Professor Pickersgill provided a response to the appeal [770]. On 7 September 2022, Professor Wang provided his response to the Claimant’s appeal [783].[17]On 13 September 2022, the Respondent asked the Claimant to agree that Professor Khoruzhenko would be asked to sit as an academic representative on the promotion appeal panel and to act as the investigating officer for the grievance. The Claimant agreed [797].[18]On 15 September 2022, the Academic Promotions Appeal Hearing took place, which is identified as the third alleged disclosure [800]. The outcome of the appeal was communicated to the Claimant on 17 October 2022 [827].[19]On 26 October 2022, the Claimant provided additional evidence in support of his grievance [837], and on 27 October 2022, a grievance investigation meeting was held with the Claimant [845] (see also the Claimant’s amended notes at p865).[20]On 6 November 2022, the Claimant requested a meeting with Professor Grant in relation to the appeal outcome [895]. On 17 November 2022, a grievance investigation meeting was held with Professor Pickersgill [854], followed by a reconvened meeting on 22 November 2022 [874]. On 29 November 2022, a grievance investigation meeting was held with Dr Bray [889].[21]On 12 December 2022, the Claimant raised concerns about Professor Grant with Professor Bailey, which is identified as the fourth alleged disclosure [902]. On 13 December 2022, Professor Khoruzhenko provided an update on the grievance investigation [900].[22]On 16 January 2023, the Claimant sought to raise a grievance against Professor Grant in relation to his conduct of the appeal [904]. On 20 January 2023, HR provided a further update on the progress of Professor Khoruzhenko’s investigation report [914]. On the same day, Ms Chantal Cross, Employee Relations Manager, confirmed that the Academic Promotions Appeal process had been exhausted [920].[23]On 31 January 2023, the Claimant applied for promotion in the 2023 round [968] and submitted a personal circumstances form [1009] (Form 925).[24]On 20 February 2023, the Claimant wrote again to Professor Bailey, which is identified as the fifth alleged disclosure [949]. On 24 February 2023, Professor Knight shared the investigation report with the Claimant [951] (Report at 927).[25]On 7 March 2023, Dr Lloyd sent the Claimant her independent review of the handling of the 2022 promotion application [956]. On 17 March 2023, the Respondent sent a copy of the appeal minutes as advised by Dr Lloyd [961]. On 20 March 2023, Professor Pickersgill provided a Head of School statement [989].[26]On 13 April 2023, Professor Knight confirmed that the grievance hearing would not take place as the report found no case to answer [996]. On 5 May 2023, the Claimant appealed the grievance outcome [999].[27]On 12 May 2023, the Claimant was provided with feedback from the Personal Circumstances Panel [1008].[28]On 16 May 2023, the Claimant commenced early conciliation [45], and on 27 June 2023, the early conciliation certificate was issued [45].[29]On 6 July 2023, the Academic Promotions Panel met [1022]. On 20 July 2023, a Teams meeting took place between the Claimant and Professor Pickersgill, during which feedback was provided on the Claimant’s unsuccessful application [1031].[30]On 24 July 2023, Professor Pickersgill emailed the Claimant following the oral feedback [1047], and on the same day, the Claimant was formally notified of the promotion outcome [1049]. Also on 24 July 2023, the Claimant presented his claim to the Tribunal [14].
Relevant Law
[31]The law relevant to the issues before the Tribunal is set out below. Time Limits – claims under the Equality Act 2010[32]Section 123 of the Equality Act 2010 provides that no complaint may be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the Employment Tribunal thinks just and equitable. For the purposes of this section conduct extending over a period is to be treated as done at the end of that period and failure to do something is to be treated as occurring when the person in question decided on it.[33]An act will be regarded as extending over a period if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant. The concepts of ‘policy, rule, practice, scheme or regime' should not be applied too literally, particularly in the context of an alleged continuing act consisting of numerous incidents occurring over a lengthy period, Hendricks v Metropolitan Police Comr. [2003] IRLR 96, CA at paras 51-52. Where there are numerous allegations of discriminatory acts or omissions, the complainant must prove that: a) the incidents are linked to each other, and b) that they are evidence of a 'continuing discriminatory state of affairs'.[34]The focus should be on the substance of the complaints to determine whether there was an ongoing situation or continuing state of affairs as distinct from a succession of unconnected or isolated specific acts.[35]If the claim is presented outside the primary limitation period (that is, after the relevant three months), the Tribunal may still have jurisdiction if, in all the circumstances, it is just and equitable to extend time. This is essentially an exercise in assessing the balance of prejudice between the parties, using the following principles: a) The Claimant bears the burden of persuading the Tribunal that it is just and equitable to extend time. There is no presumption that time will be extended but nor is there any magic to that phrase and it should not be applied too vigorously as an additional threshold or barrier. b) The Tribunal takes into account anything which it Judges to be relevant and may form a fairly rough idea of whether the claim appears weak or strong. It is generally more onerous for a Respondent to be put to defending a late, weak claim and less prejudicial for a Claimant to be deprived of such a claim; c) This is the exercise of a wide, general discretion and may include the date from which a Claimant first became aware of the right to present a complaint. The existence of other, timeously presented claims will be relevant because it will mean, on the one hand, that the Claimant is not entirely unable to assert his rights and, on the other, that the very facts upon which he seeks to rely may already fall to be determined. Consideration here is likely to include whether it is possible to have a fair trial of the issues. This will involve an assessment of two types of prejudice as referred to in the authorities. The first is the general prejudice that inherently follows from being required to respond to a claim which is presented out of time (the prejudice of meeting the claim). The second is the effect upon the evidence of the delay (sometimes referred to as forensic prejudice). d) There is no requirement to go through all the matters listed in section 33(3) Limitation Act 1980, provided no significant factor has been left out of account, British Coal Corporation v Keeble (length and reason for delay, effect on cogency of evidence, cooperation, steps taken once knew of the possibility of action).[36]The best approach for a Tribunal considering the exercise of its discretion to extend time is to assess all the factors in the particular case. These will include the public interest in the enforcement of time limits and the undesirability in principle of investigating stale issues, Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23. Time Limits – claims under s.47B Employment Rights Act 1996[37]Section 48 of the Employment Rights Act 1996 states: S. 48 Complaints to Employment Tribunals. … (1A) A worker may present a complaint to an Employment Tribunal that he has been subjected to a detriment in contravention of section 47B. … (3) An Employment Tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[38]The time limit for presentation of complaints of detrimental treatment on ‘whistle-blowing’ is that which applies to almost all rights under the 1996 Act. The claim form must be presented within the period of three months (extended, where applicable by any period of Early Conciliation) beginning with the date of the act or failure to act to which the complaint relates unless the complainant shows that it was ‘not reasonably practicable’ to present within that period. In that event, the Tribunal may substitute ‘such further period as [it] considers reasonable’ (see s.48(3)). Where there is a series of similar acts or failures to act, the three-month period runs from the last of them (s.48(3)(a)). Where an act extends over a period, time runs from the last day of the period(s.48(4)(a)).[39]The Claimant notified ACAS of his prospective claim on 16 May 2023. He was issued with a certificate on 27 June 2023. This meant that the claim had been presented within the statutory time limit for any detrimental act or failure done on or after 17 February 2023. For any act or failure done before that date, the issues were: a) Was the act part of an act extending over a period which ended on or after 17 February 2023? b) Was the act (or failure) part of a series of similar acts (or failures) which included an act (or failure) done on or after 17 February 2023? c) If not, was it reasonably practicable for the Claimant to present his claim within the statutory time limit for that act (or failure)? Was the claim presented within such further period as the Tribunal considers reasonable?[40]The ‘not reasonably practicable’ formulation sets a high standard. The wording has been equated to ‘not reasonably feasible’ (see Palmer v Southend-on-Sea BC [1984] ICR 372 CA). Direct Discrimination[41]Section 13 of the Equality Act 2010 provides: S. 13. (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.[42]In considering claims of direct discrimination, the Tribunal will focus on the ‘reasons why’ the Respondent had acted (or failed to act) as it did. That is because, other than in cases of obvious discrimination, the Tribunals will want to consider the mental processes of the alleged discriminator(s): Nagarajan v London Regional Transport [1999] ICR 877.[43]The Tribunal further explained to the Claimant that in order to succeed in any complaints of direct discrimination, a Claimant must do more than simply establish that her or she has a protected characteristic and was treated unfavourably: Madarassy v Nomura International plc [2007] IRLR 246. There must be facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Claimant was discriminated against. This reflects the statutory burden of proof in section 136 of the Equality Act 2010, but also long-established legal guidance, including by the Court of Appeal in Igen v Wong [2005] ICR 931. It has been referred to as something “more”, though equally it has been said that it need not be a great deal more: Sedley LJ in Deman v Commission for Equality and Human Rights [2010] EWCA Civ 1279. A Claimant is not required to adduce positive evidence that a difference in treatment was on the protected ground in order to establish a prima facie case.[44]The grounds of any treatment often have to be deduced, or inferred, from the surrounding circumstances and in order to justify an inference one must first make findings of primary fact from which the inference could properly be drawn.[45]This is generally done by a Claimant placing before the Tribunal evidential material from which an inference can be drawn that he or she was treated less favourably than he or she would have been treated if they had not been a particular race, gender, religion etc: Shamoon v RUC [2003] ICR337. ‘Comparators’, provide evidential material. But ultimately, they are no more than tools which may or may not justify an inference of discrimination on the relevant protected ground, in this case race. The usefulness of any comparator will, in any particular case, depend upon the extent to which the comparator’s circumstances are the same as the Claimant’s. The more significant the difference or differences the less cogent will be the case for drawing an inference.[46]In the absence of an actual comparator whose treatment can be contrasted with the Claimant’s, the Tribunal can have regard to how the employer would have treated a hypothetical comparator. Otherwise, some other material must be identified that is capable of supporting the requisite inference of discrimination. This may include a relevant statutory code of practice. Discriminatory comments made by the alleged discriminator about the Claimant might, in some cases, also suffice.[47]Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in some case suffice. Discrimination may be inferred if there is no explanation for unreasonable / unfair treatment. This is not an inference from unreasonable / unfair treatment itself but from the absence of any explanation for it.[48]It is only once a prima facie case is established that the burden of proof moves to the Respondent to prove that it has not committed any act of unlawful discrimination, so that the absence of an adequate explanation of the differential treatment becomes relevant: Madarassy v Nomura [2007] EWCA Civ 33.[49]In the Tribunal’s deliberation regarding the Claimant’s direct discrimination complaints, the Tribunal is ultimately concerned with the reasons why each of the alleged perpetrators acted as they did in relation to the Claimant. Indirect Discrimination[50]The relevant parts of section 19 of the Equality Act 2010 state: S. 19(1) A person (A) discriminates against another (B) if A applies 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 the 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, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim[51]Indirect discrimination occurs when an employer applies a provision, criterion, or practice (PCP) to an employee which is discriminatory in relation to a protected characteristic possessed by that employee. Such discrimination can only occur where the PCP is one that the employer applies, or would apply, to people who do not share the protected characteristic - i.e. the PCP must be of neutral application.[52]The key question here relates to whether the PCP identified has been applied “to a relevant protected characteristic of B” if the Claimant is to be regarded as 'B' on the present facts, given it is undisputed that the Claimant is not disabled.[53]The relevant provisions concerning time limits are well known and found within s.123 of the Equality Act 2010. The claim must be brought within three months of “the act complained of”. If it has not, there is a “just and equitable” basis for extending the time limit. That allows for broad-based discretion.[54]This is a case where the nature of a “continuing act” under s.123(3)(a) of the 2010 Actis in issue. The provision defines a continuing act as "conduct extending over a period is to be treated as done at the end of the period". The renowned House of Lords judgment in Barclays Bank v Kapur [1991] ICR 208 distinguishes between a “continuing act” and an act with “continuing consequences”. This principle can notoriously be challenging to apply in practice.[55]For an indirect discrimination claim to succeed each the four elements of s.19(2) of the Equality Act 2010 must be met, namely: a) there must be a PCP which the employer applies or would apply to employees who do not share the protected characteristic of the Claimant; b) that PCP must put people who share the Claimant's protected characteristic at a particular disadvantage when compared with those who do not share that characteristic; c) the Claimant must experience that particular disadvantage; d) and then, the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim.[56]In Dziedziak v Future Electronics Ltd EAT 0271/11, a claim of indirect sex brought by a woman Mr Justice Langstaff, the then President of EAT, stated: “In this case the matters that would have to be established before there could be any reversal of the burden of proof would be, first, that there was a provision, criterion or practice, secondly, that it disadvantaged women generally, and thirdly, that what was a disadvantage to the general created a particular disadvantage to the individual who was claiming. Only then would the employer be required to justify the provision, criterion, or practice, and in that sense the provision as regards the burden of proof makes sense; that is, a burden is on the employer to provide both explanation and justification”.[57]Since a Claimant bears the burden of proof in respect of the first three conditions in S.19(2), the Claimant must identify the PCP capable of supporting his case.[58]The PCP must be a neutral one that disproportionately disadvantaged some of those to whom it applied when compared with others to whom it applied. For example, Taiwo v Olaigbe and anor EAT 0254/12 where the EAT held that “the mistreatment of migrant workers” did not amount to a valid PCP. The suggested PCP would apply only to migrant workers, so was not on its face a neutral criterion that disproportionately disadvantaged some of those to whom it applied when compared with others to whom it applied. The Claimant in this case faces a similar burden in that he must establish that the alleged PCP disproportionately disadvantages disabled members of university staff when compared with others to whom it applied. Discrimination Arising from Disability[59]Section 15 of the Equality Act 2010 states that: S. 15 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[60]The way in which a Tribunal should approach section 15 claims was set out by Simler J (then President) in the case of Pnaiser v NHS England [2016] IRLR 170 as follows: -(a) The Tribunal should first identify whether there was unfavourable treatment and by whom.(b) The Tribunal must then determine what caused the impugned treatment, or what was the reason for it. The focus is on reason in the mind of the alleged discriminator at this point; (the subjective test)(c) the causal link between the “something” that causes unfavourable 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. It must have at least a significant or more than trivial influence on the unfavourable treatment, and so amount to an effective reason or cause of it; (objective test)(d) Motive is irrelevant;(e) The causal link between the “something” that causes unfavourable treatment and the disability may include more than one link. The more links in the chain of causation, the harder it will be to establish the necessary connection. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator;(f) The knowledge required is of the disability only, and does not extend to knowledge of the ‘something’ that led to the unfavourable treatment;(g) It does not matter in which order these are considered by the Tribunal.[61]What is unfavourable treatment? For discrimination arising from disability to occur, a disabled person must have been treated “unfavourably” or put at a disadvantage. The definition of discrimination arising does not involve any comparison with a non-disabled person; it requires unfavourable treatment, not less favourable treatment. (See also Griffiths v Secretary of State for Work & Pensions [2015] EWCA Civ 1265). Persons may be said to be treated unfavourably if they are not in as good a position as others generally would be.[62]In the case of IPC Media Ltd Millar [2012] IRLR 707 it was held that the Employment Tribunal has to consider whether the proscribed factor operated on the mind of the alleged discriminator – whether consciously or unconsciously – to a significant extent. The Tribunal would need to identify the person whose mind is in issue and who, in an appropriate case – becomes A above.[63]Sales LJ in City of York Council v Grosset [2018] IRLR 746 CA, also restates the steps that the Tribunal has to take in making this assessment. The Court held that: “on a proper construction, section 15(1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) “something”? and(ii) did that “something” arise in consequence of B’s disability. The first issue involves an examination of A’s state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A’s attitude to the relevant “something” and the second, objective matter, whether there is a causal link between B’s disability and the relevant something.”[64]The second test in Grosset sets out the objective question as to the actual causal link between the disability and the ‘something’ arising and that there can be no causal link if there is no something that actually arises. It would not be restrictive to require there to be an actual “something” arising in consequence of his disability, from which to conduct the above assessment.[65]Unfavourable treatment will not amount to discrimination arising from disability if the employer can show that the treatment is a “proportionate means of achieving a legitimate aim”. It is an objective test and the burden of proof is on the employer. The Respondent must produce evidence to support their assertion that the treatment was justified and not rely on mere generalisation. In Chief Constable of West Yorkshire Police v Homer [2012] ICR 704, Baroness Hale JSC gave guidance on objective justification, noting that in order for a measure, or treatment to be proportionate it “has to be both an appropriate means of achieving a legitimate aim and (reasonably) necessary in order to do so”. Treatment which is appropriate to achieve the aim but goes further than is reasonably necessary in order to do so may be disproportionate.[66]The Tribunal should not simply review the employer’s reasons applying a margin of discretion, but must carry out a “critical evaluation” and determine for itself whether, objectively, the means used are proportionate to any legitimate aim, balancing the detriment to the Claimant against the legitimate aim and considering whether that aim could have been achieved by less detrimental means (Allonby v Accrington and Rossendale College and others [2001] ICR 1189). The Tribunal should make its own objective assessment of the relevant facts and circumstances, having regard to the employer’s reasonable business needs, business considerations and working practices. Failure to make reasonable adjustments[67]Sections 20 and 21 provide the law on reasonable adjustments. Section 23 is concerned with comparators. S.20 Duty to make adjustments(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; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)... (3) The first requirement isa 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. S.21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. S.23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13 ... there must be no material difference between the circumstances relating to each case. (2) The circumstances relating to a case include a person's abilities if— a. on a comparison for the purposes of section 13, the protected characteristic is disability;[68]A failure to make reasonable adjustment involves considering: a) the provision, criteria or practice applied by or on behalf of an employer; b) the identity of non-disabled comparators (where appropriate); and c) the nature and extent of the substantial disadvantage suffered by the Claimant. (See Environment Agency v Rowan [2008] IRLR 20, [2008] ICR 218)[69]In Newham Sixth Form College v Sanders [2014] EWCA Civ 734 is was confirmed that “'the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot ... make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP”.[70]A ‘provision, criterion or practice’ is a concept which is not to be approached in too restrictive a manner; as HHJ Eady QC stated in Carrera v United First Partners Research UKEAT/0266/15 (7 April 2016, unreported), “the protective nature of the legislation meant a liberal, rather than an overly technical approach should be adopted'. In this case the ET were found to have correctly identified the PCP as 'a requirement for a consistent attendance at work”.[71]The Tribunal will need to consider a pool of comparators; has there been a substantial disadvantage to the disabled person in comparison to a nondisabled comparator? Archibald v Fife Council [2004] UKHL 32, [2004] IRLR 651, [2004] ICR 954: the proper comparators were the other employees of the council who were not disabled, were able to carry out the essential functions of their jobs and were, therefore, not liable to be dismissed.[72]While it is not a breach of the duty to make reasonable adjustments to fail to undertake a consultation or assessment with the employee (Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664), it is best practice so to do. The provision of managerial support or an enhanced level of supervision may, in accordance with the Code of Practice, amount to reasonable adjustments (Watkins v HSBC Bank Plc [2018] IRLR 1015)[73]The adjustment contended for need not remove entirely the disadvantage; the adjustment should 'prevent' the PCP having the effect of placing the disabled person at a substantial disadvantage Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10, [2011] EqLR 1075: when considering whether an adjustment is reasonable it is sufficient for a Tribunal to find that there would be ‘a prospect’ of the adjustment removing the disadvantage—there does not have to be a ‘good’ or ‘real’ prospect of that occurring. Cumbria Probation Board v Collingwood [2008] All ER (D) 04 (Sep) – “it is not a requirement in a reasonable adjustment case that the Claimant prove that the suggestion made will remove the substantial disadvantage”.[74]The test of 'reasonableness', imports an objective standard and it is not necessarily met by an employer showing that he or she personally believed that the making of the adjustment would be too disruptive or costly. In Lincolnshire Police v Weaver [2008] All ER (D) 291 (Mar) it was held that it is proper to examine the question not only from the perspective of a Claimant, but that a Tribunal must also take into account “wider implications” including “operational objectives” of the employer.[75]Regarding employer's knowledge, Gallop v Newport City Council [2013] EWCA Civ 1583, [2014] IRLR 211 confirms that a reasonable employer must consider whether an employee is disabled, and form their own judgment. The question of whether an employer could reasonably be expected to know of a person's disability is a question of fact for the Tribunal (Jennings v Barts and The London NHS Trust UKEAT/0056/12, [2013] EqLR 326).[76]When considering whether a Respondent to a claim “could reasonably be expected to know” of a disability, it is best practice to use the statutory words rather than a shorthand such as “constructive knowledge” as this might imply an erroneous test (Donelien v Liberata UK Ltd UKEAT/0297/14). The burden, given the way the statute is expressed, is on the employer to show it was unreasonable to have the required knowledge.[77]The EHRC Code gives examples of adjustments which may be reasonable, which include: a) making adjustments to premises; b) allocating some of the disabled person's duties to another worker; c) transferring the worker to fill an existing vacancy; d) altering the worker's hours of working or training; e) assigning the worker to a different place of work or training or arranging home working; f) allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment; g) acquiring or modifying equipment h) providing supervision or other support Protected Disclosures[78]By the Employment Rights Act 1996 (‘the 1996 Act’), s.43B, it is stipulated (so far as relevant) that: (1) In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is in the public interest and tends to show one or more of the following – … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;… … (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[79]Qualifying disclosures are protected if made in accordance with ss.43C to 43H (see s43A). By s43C, it is provided that: (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure – (a) to his employer …[80]The requirement for a disclosure of ‘information’ was considered by Slade J sitting in the EAT in Cavendish Munro Professional Risk Management Ltd v Geduld [2010] ICR 325. She equated ‘information’ with ‘facts’, observing that mere ‘allegations’ did not fall within the statutory protection. This analysis was qualified in Kilraine v London Borough of Wandsworth [2018] ICR 1850 CA, in which it was pointed out that the legislation posited no rigid dichotomy between facts and allegations and that ‘information’ may comprise both: a disclosure which makes an allegation will be protected provided that it has sufficient factual content and specificity.[81]By the 1996 Act, s.47B(1) and (1A) a worker has the right not to suffer a detriment done by his or her employer or another worker of the employer in the course of employment or by an agent of the employer with the employer’s authority, ‘on the ground that’ he or she has made a protected disclosure.[82]A ‘detriment’ arises in the employment law context where, by reason of the act(s) complained of, a reasonable worker would or might take the view that he or she has been disadvantaged in the workplace. A threat by an employer (or its worker or agent) to take action which would constitute a ‘detriment’ is itself a detriment for the purposes of section 47B of the ERA 1996, provided that the threatened worker was reasonable in regarding it as being to his disadvantage (per Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11).[83]An unjustified sense of grievance cannot amount to a detriment (see Shamoon).[84]It must be a detriment to which the employee or worker has been subjected in the ‘employment field’ (Tiplady v City of Bradford Metropolitan District Council [2019] EWCA Civ 2180).[85]It is for the Claimant to prove, on the balance of probabilities, that he or she made protected disclosures and that she suffered detrimental treatment form the Respondent.[86]By the 1996 Act, s48(1A) the Tribunal has jurisdiction to consider a complaint under s47B.[87]The 1996 Act, s48(2) provides, materially, that on a complaint under subsection (1A) it is for the employer to show the ground on which any act, or failure to act, was done.[88]In Osipov v International Petroleum Ltd UKEAT/0058/17/DA Simler P, sitting in the EAT, stated (judgment, para 115): “Counsel submits and I agree that the proper approach to inference drawing and the burden of proof in a s47B ERA case can be summarised as follows:(a) the burden of proof lies on a Claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made.(b) By virtue of s48(2) ERA 1996, the employer (or other Respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them …(c) However, as with inferences drawn in any discrimination case, inferences drawn by Tribunals in protected disclosure cases must be justified by the facts as found.”[89]In a claim of detriment pursuant to s47B the burden lies with the Claimant to show that:a. There has been a protected disclosure or disclosuresb. That they have suffered a detrimentc. That the Respondent has subjected them to that detriment[90]If those matters are satisfied then the burden shifts to the Respondent however this does not mean that unless the Respondent can show a positive reason why any action (or inaction) was taken then a complaint will succeed by default (Mrs J Ibekwe v Sussex Partnership NHS Foundation Trust UKEAT/0072/14/MC applying Kuzel v Roche Products Ltd [2008] ICR 799[91]The test of causation is whether the protected disclosure materially (in the sense of more than trivially) influenced the employer’s treatment of the whistleblower (per Fecitt and ors v NHS Manchester (Public Concern at Work intervening) [2011] EWCA Civ 1190).[92]The burden of proof in this regard is on the Respondent. Section 48(2) of the ERA 1996 means that once all the other necessary elements of a claim have been proved on the balance of probabilities by the Claimant — i.e. that there was a protected disclosure, that there was a detriment and the Respondent subjected the Claimant to that detriment — the burden shifts to the Respondent to prove that the Claimant was not subjected to the detriment on the ground or grounds that he or she had made the protected disclosures. Findings and Deliberation[93]Applying the law to the relevant facts, the Tribunal makes the following findings in relation to the List of Issues. This issue of time limits is dealt with at the end of this Judgment. Protected Disclosures[94]The main thrust of the Claimant’s case was his allegations of whistleblowing detriment, and so this was considered first. In relation to the Claimant’s alleged disclosures, where these disclosures of ‘information’?[95]The Claimant’s email to Professor Wen Wang on 17 December 2021 [671] is his first alleged disclosure. The email says that the Claimant has “substantial reasons... to believe that our Head of School (SBBS) would not handle my application for promotion fairly”. The Claimant argues “this specific communication primarily conveyed a concern and an offer to provide further reasons”. An offer to provide more information is not a disclosure of information. The Claimant further says “the concern is backed up by the evidence listed in paragraphs 81 and 82 of the Claimant's Witness Statement. My later communications moved far beyond general concerns to provide concrete, verifiable information about specific failures and breaches”. This does not assist him, as the alleged disclosure did not convey that information contained in [AR 81 – 82]. If later communications did provide more information, that is not sufficient to ‘resurrect’ the Claimant’s first alleged disclosure. The Tribunal is satisfied that this is not a disclosure of information for the purposes of s.43B ERA 1996.[96]The Claimant’s second alleged disclosure is his appeal in respect of the refusal of his 2022 promotion application [751 – 752]. It is a two-page document in which he cites “violation of the Guidelines” and gives examples of where he says this has happened. He further explains that he believes that the Head of School of SSBS is the person who is acting in violation of Guidelines. The Claimant’s third alleged disclosure is what he said during the hearing of this appeal, which was heard on 15 September 2022. The minutes of the Appeal Hearing are at [962 – 966], and the Claimant’s own notes for the arguments that he presented to the Appeal Panel are at [801 – 807]. These repeat and expand on the points in his appeal document [751 – 751]. The Tribunal is satisfied that these alleged disclosures are disclosures of information for the purposes of s.43B ERA 1996.[97]The fourth alleged disclosure is that on 12 December 2022, the Claimant wrote to Professor Bailey to explain that the Appeals Committee didn’t follow the promotion guidelines [895 / 902]. The Tribunal has read the emails of 12 and 14 December together as the disclosure. This is because the List of Issues records that “On 12 December 2022, the Claimant wrote to Professor Bailey to explain that the Appeals Committee didn’t follow the promotion guidelines”. The explanation is in the email of 14 December, not 12 December, but this is in response to a direct request for more information from Professor Bailey on 12 December. The Tribunal is satisfied that these alleged disclosures are disclosures of information for the purposes of s.43B ERA 1996.[98]The fifth (and arguably, sixth) alleged disclosure is that on 20 February 2023, the Claimant wrote to Professor Bailey raising concerns about the promotion process, and on 19 May 2023 chased a response to this message, highlighting wider issues. [949 and 1011]. The email of 20 February 2023 contains details of what the Claimant says the breaches of the policy were, and the Tribunal is satisfied that this amounts to a disclosure of information for the purposes of s.43B ERA 1996. The email of 19 May is in the form of a prompt or ‘chaser’. It contains the words “I am wondering if you had a chance to look at my protected disclosure below” and forwards the email of 20 February again. The words “protected disclosure” are in the form of a hyperlink to an article from 2 February 2022, entitled “Employers Warned Not To Ignore ‘Whistleblower’ Concerns” [700 – 702]. There is no explanation as to why this link is included. Did the Claimant hold a reasonable belief that the disclosure tended to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject? (s.43B ERA 1996)[99]There are two separate requirements that need to be found here for the Claimant claims to pass this hurdle. The first is that the Claimant held a genuine belief that the disclosure tended to show a relevant failure in one of the five respects (or deliberate concealment of that wrongdoing); and secondly, that belief must be a reasonable belief. Reasonableness involves applying an objective standard to the personal circumstances of the discloser. The reasonableness test might differ depending on whether the discloser was a lay person or an expert (Korashi v Abertawe Bro Morgannwg Local Health Board 2012 IRLR 3, EAT). The definition is concerned with what the worker believed at the time when they made the disclosure, not what they may have come to believe later on (Dodd v UK Direct Solutions Limited at para 55 [2022] EAT 44 (18.3.22)).[100]The legal obligation on which the Claimant relies is a breach of his contract of employment. Breach of an employment contract may amount to a breach of a legal obligation, as per Parkins v Sodexo [2002] IRLR 109.[101]There can be reasonable belief if the information is wrong, however, the determination of the factual accuracy of the allegations may be in important factor in determining whether there is a reasonable belief; Darnton v University of Surrey [2003] ICR 615.[102]The Claimant’s case is that the Respondent breached the HR Code of Practice on Grievance [156 – 183] and the Academic Promotion Guidelines, and that both of these are incorporated into his contract of employment. The Claimant’s contract of employment is at [198 – 201]. The contract of employment says: “This offer of employment, on the terms and conditions set out in this document and the attached Terms & Conditions, is made on the behalf of Queen Mary University of London” [200].[103]The Tribunal is satisfied that the Terms & Conditions are part of the Claimant’s contract of employment.[104]The attached Terms & Conditions are at [185 – 197]. At Clause 1 c), the Terms & Conditions states: “The Council may add to or otherwise amend these conditions of employment, and the procedural documents referred to therein, only after agreement with the local branch of the University and College Union (UCU) for Academic Staff, and with the British Medical Association/British Dental Association (BMA/BDA) for Clinical Academic Staff” [185].[105]The Claimant relies on the wording “and the procedural documents referred to therein” and argues that this incorporates all of the policy documents referred to in the Terms & Conditions into his contract of employment.[106]At Clause 5 b) of the Terms & Conditions it states: “The College will also consider promotion to higher grades annually. The procedures for this process are set out in the relevant Academic Promotion Guidance Notes as issued from time to time. Any award will normally take effect on 1st August following the recommendation” [187].[107]At Clause 22 a) of the Terms & Conditions it states: “If you wish to raise a grievance, the HR Code of Practice on Grievance makes provision for you to raise the matter informally with your manager, or if the complaint is about the manager, with their manager. The Code also makes provision for you to raise a matter, formally, in writing with your Head of School/Director of Institute, or if the complaint is about them with the appropriate vice-principal (or an equivalent senior member of staff)” [192].[108]The Claimant’s case is that the wording at 5 b) above refers to the Academic Promotion Guidelines (there being no documents entitled ‘Academic Promotion Guidance Notes’; the Respondent does not dispute this point). Clause 22 a) and refers to the HR Code of Practice on Grievance. The Claimant’s case that paragraph 1 c) above means that both of these policies are incorporated into his contract of employment. He therefore argues that any breach of these policies is therefore a breach of his contract of employment and therefore a failure to comply with the legal obligation, for the purposes of his whistleblowing claim.[109]The Tribunal accept the Claimant’s sincerity in his conviction, which is evidence throughout his appeals and grievances with the Respondent and from the effort that he is put into the Tribunal proceedings. The Tribunal is satisfied that the Claimant genuinely held a belief these policies form part of his contract of employment, and therefore any breach of these policies was a breach of his employment contract. He therefore genuinely believed that his disclosures tended to show that there had been a failure by the Respondent to comply with a legal obligation.[110]The Tribunal then had to assess whether this was a reasonable belief. The question for the Tribunal is not “are these policies incorporated into the Claimant’s contract of employment?” but “was it reasonable for the Claimant to believe that they were so?”.[111]The Respondent’s case is that although Clause 5 of the contract refers to Academic Promotion Guidelines, these policies are not contractual. The Respondent says they are consistently referred to as guidance or guidelines; they are not identified as being contractual nature. They are reissued annually without apparent consultation or agreement with the Unions and are not rigidly adhered to. These policies are merely guidance. The Respondent further submits that the HR Code of Practice on Grievance is not apt for corporation and referred the Tribunal to Alexander and ors v. Standard Telephones and Cables (No.2) 1991 IRLR 286.[112]The Tribunal noted that the preamble to the Terms & Conditions states that these terms and conditions have been: “Revised to align with changes following the review of Governance Revisions agreed with UCU and effective from 1st September 2010 and updated 6th October 2014” [185].[113]None of the Academic Promotion Guidelines (2019/20 [281 – 308], 2021 [317 – 334], 2022 [390 – 409], 2023 [410 – 428] or 2024 [468 – 487] nor the HR Code of Practice on Grievance [156 – 183] have any such preamble that confirms that the policies have been agreed fallowing consultation with any Trade Union. This would suggest that the policies are something that can change from time to time without the need for the involvement of the relevant Trade Unions and therefore do not fall under Clause 1 c) of the Terms & Conditions. This, however, appears to be at odds with the wording “and the procedural documents referred to therein” contained in Clause 1 c) of the Terms & Conditions.[114]The Tribunal’s finding is that the Terms & Conditions are not sufficiently clear as to what is incorporated into the contract of employment and what is not. It is certainly possible for someone reading the Terms & Conditions to conclude that “procedural documents” includes the Academic Promotion Guidelines and the HR Code of Practice on Grievance, and these form part of the contract of employment, even if it is not actually the case. This was the belief of the Claimant and the Tribunal concludes that this belief was a reasonable one, given the ambiguity in the Terms & Conditions. Did the Claimant hold a reasonable belief that his disclosure was made in the public interest? (s.43B ERA 1996)[115]The Tribunal notes that the Claimant never raised any issues under the Respondent’s whistleblowing policy [1175 – 1184]. The Claimant accepted in cross examination that he had read the HR Code of Practice on Grievance prior to raising his grievances. In “The aim of the Code of Practice” [158] it specifically states: “However, this Code of Practice cannot be used to raise matters: 1) … 2) … 3) … 4) for which the College has a separate and specific procedure, for example, complaints by or about students, academic misconduct such as plagiarism, “whistleblowing”, etc” This is accompanied by a footnote which states: “The College has a separate “whistleblowing” procedure to enable confidential reporting of any serious concerns - even if these do not affect the employee personally”.[116]This information is plainly displayed at the beginning of policy. Its meaning is clear and obvious, and the Tribunal finds it would have been saved the Claimant, who is a highly educated individual. The Tribunal therefore concludes that the Claimant wish to bring a grievance about personal circumstances that affected him as an individual. If the Claimant had genuinely wish to “blow the whistle” about the Respondent’s policies, he could have used the “whistleblowing” procedure which is clearly identified at the beginning of the HR Code of Practice on Grievance.[117]The Tribunal rejects the Claimant’s arguments made in his submissions that he had to make the claim all about him in order to have “standing”. He gave an analogy of a young person wishing to make a legal challenge in relation to climate change, as this affects all people, and future persons. The Tribunal rejects this argument and finds that this is not an appropriate analogy. The Claimant did not need to have “standing” in order to raise whistleblowing concerns. The legislation in relation to Protected Disclosures, and indeed the Respondent’s own whistleblowing procedure allows for claims to be made that protect others. The Respondent procedure specifically states that serious concerns can be raised “even if these do not affect the employee personally” [158].[118]The Claimant was cross-examined about his appeal in relation to his 2022 promotion application [751 – 752], which is his second alleged protected disclosure, where he said “Given the substantial financial implications that even a delay of promotion by a single year can have over the course of an employee’s career, violation of the Guidelines can become a substantial breach of the contract” [752]. His witness statement in relation to this says “This evidences my understanding that I was disclosing breaches of legal obligations” [AR 116]. The question in cross-examination was “did you consider that you are blowing the whistle when you wrote your appeal?” to which the Claimant answered: “I didn’t know what whistleblowing was”.[119]The Claimant confirmed he had received some legal advice at this point, but it was only for one hour and was not concerned with whistleblowing. He further confirmed that at the time of the grievance he was still unaware of whistleblowing. The Tribunal was therefore satisfied that the Claimant was not aware of what whistleblowing was at the time of his appeal in relation to the 2022 promotion application. This is further supported by subsequent answers he gave during cross examination in relation to his fourth alleged protected disclosure [902 / 895]. It was put to him that his ‘disclosure’ amounted to concerns with the promotion process and the appeal process, to which he agreed. It was then put to him that the fourth alleged protected disclosure all related to his employment and his promotion. He agreed with this and said that that was all the information he had available to him. He was specifically asked if he was aware of whistleblowing by then. His answer was: “No. I became aware when I wrote to Professor Grant several weeks later. I say ‘Protected Disclosure’ in the email. I put in a link to an Employment Tribunal decision about whistleblowing”.[120]It was put the Claimant that he was not thinking of the public interest at the time, to which he answered: “I was” and in support of this he referred the Tribunal to document 155 of the bundle.[121]Document 155 is at [945]. It is a screenshot of the draft of the Claimant’s email to Professor Bailey which was sent on 20 February 2023. The screenshot is dated 14 February 2023. The finalised email is at [949] and is the Claimant’s fifth alleged protected disclosure. The Tribunal read both the draft and the finalised email and the words “protected disclosure” do not feature in either. These documents therefore cannot be the email that the Claimant was referring to.[122]The Tribunal accepts that the words “protected disclosure” are not required in order for a protected disclosure to be one. The Tribunal, however, specifically considered any email containing the words “protected disclosure” and enclosing a link to an ET decision because, on the Claimant’s own evidence, it is only on or around the time of writing it that the Claimant said he became aware of the concept of whistleblowing.[123]As the draft email at [945] and the finalised email at [949] did not contain these words, the Tribunal had to consider which email the Claimant was referring to. The Tribunal’s conclusion that the Claimant is referring to his email of 19 May2023 [1011]. This is not an email to Professor Grant but is an email about Professor Grant sent to Professor Bailey. The Tribunal’s view is that the Claimant made an error when he said the email was to Professor Grant rather than about him. It does contain the words “protected disclosure”. These words are blue and underlined and suggestive of a hyperlink. The index to the agreed bundle, states that documents 176 [1010 – 1015] are “Emails between Claimant, Colin Bailey and Louise Lester about outstanding response to Claimant’s message from 20 Feb 2023, with a link to Document 86 and Document 161 attached in final message (continuing Document 157)”. Document 86 [700 – 702] is “Web Page: ‘Employers Warned Not To Ignore ‘Whistleblower’ Concerns’”.[124]The Tribunal is therefore satisfied that the email of 19 May 2023 [1011] is the one that the Claimant referred to in cross examination as the one being written at around the time he became aware of whistleblowing as a concept.[125]As per Chesterton Global Limited v Nurmohamed [2018] ICR 731. The Claimant must prove that they had an actual belief at the time of making the disclosure was in the public interest and that the belief must have been reasonable. The Tribunal applied the main principles Chesterton Global Limited v Nurmohamed, as summarised by HHJ Tayler in Dobbie v Paula Felton/Felton Solicitors [2021] IRLR 679.[126]The Claimant was therefore not aware of the concept of whistleblowing when he made his first, second, third, fourth and fifth alleged protected disclosures. In the absence of such knowledge, the Tribunal finds that he did not have a genuine belief that these disclosures were in the public interest, and if he had such a belief, it would not have been a reasonable one. As the Claimant was unaware of the concept of whistleblowing, his disclosures cannot have been made with the public interest in mind. The Tribunal finds that he was pursuing a grievance against the Respondent in relation to his own personal interests.[127]The Tribunal finds that the Claimant was not considering the public interest of what he was saying until he had begun Early Conciliation with ACAS on 16 May 2023 [45], at which point he then attempted to frame his complaints in a wider, whistleblowing context.[128]At this stage the Claimant had spoken to ACAS and would be aware of what claims he could bring in the Employment Tribunal. Specifically, he would be aware that the Employment Tribunal was not a forum for him to simply continue his grievance and/or appeal in relation to his promotion application and the processes in relation to this. He would have been aware that the Employment Tribunal only had jurisdiction to hear certain types of claims, such as whistleblowing or discrimination claims.[129]The Tribunal is further satisfied that the Claimant’s email of 19 May 2023 was him attempting to re-label his earlier email (of 20 February 2023; the alleged fifth disclosure [949]) as a protected disclosure. He made no new allegations in his email of 19 May. The email uses the words “protected disclosure” but does not alter or add to the previous email. The Tribunal is satisfied that the Claimant was using this term in an attempt to make the Respondent reconsider (and ultimately uphold) his grievance. The Tribunal does not accept that the Claimant had any genuine belief that his alleged fifth disclosure was in the public interest.[130]Although disputes about an employment contract can give rise to a whistleblowing claim (Parkin v Sodexo [2002] IRLR 109), Parkin was reversed by the amended wording to Section 43B introduced by Section 17 of the Enterprise and Regulatory Reform Act 2013. As per Dobbie v Paula Felton/Felton Solicitors, the essential distinction when considering the public interest is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest. The broad statutory intention of introducing the public interest requirement into s.43B ERA 1996 was that “workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers” (Chesterton Global Limited v Nurmohamed).[131]The Tribunal concludes that the Claimant’s alleged protected disclosures were not in the public interest, and so the claim of whistleblowing detriment fails at this hurdle.[132]If, however, the Tribunal is wrong on the point that the Claimant did not hold a genuine belief that he was acting in the public interest when he sent the email [949] after the he became aware of what whistleblowing was, then the Tribunal has gone on to consider the alleged detriments that postdate this. The Tribunal has not considered any of the alleged detriments that predate 19 May 2023, as the Tribunal is satisfied, for the reasons given above, that the Claimant could not have had a genuine belief that he was acting in the public interest when he did not know what whistleblowing was. Was the Claimant subject to detriment (after 19 May 2023) on the grounds that he had made a protected disclosure?[133]One of the alleged detriments relates to the Claimant’s grievance against Professor Pickersgill [753 – 768]. This is in the List of Issues as: 6.5.3 Did not respond to his appeal dated 17 April 2023 against the decision to stop the grievance.[134]The grievance was investigated by Professor Khuoruzhenko [927 – 942]. The grievance manager was Professor Knight. Although the Tribunal is only considering detriments that postdate 19 May 2023, it is necessary to look back at what happened in relation to this grievance.[135]The grievance involved 11 points, which are briefly summarised as: 1) Misrepresenting his role in limiting student eligibility for BIO600/BMD600 projects. 2) Ending his role as convenor of BIO600/BMD600 without providing reasons. 3) Making unfounded accusations in the Head of School Statement on 2020 promotion application. 4) Failing to hold the post-panel discussion detailing reasons for not promoting in 2020. 5) Improperly and unfairly handling a grievance against the DTL. 6) Preventing Dr Rossberg’s membership in QMUL’s Assessment Offence Panel. 7) Preventing Dr Rossberg’s membership in the School’s Research Strategy Group. 8) Delaying arrangements to free time for funded research. 9) Threatening to undermine Dr Rossberg’s 2022 promotion application 10) Undermined Dr Rossberg’s 2022 promotion application. 11) Failed to hold the post-panel discussion and detailing reasons for not promoting in 2022.[136]The Claimant accepted in cross examination, in relation to the above points; 1) related to June 2019, 2) related to July 2019, 3) and 4) related to his promotion application in 2020, 5) related to his grievance against Dr Bray in 2020, 6) also related to 2020, 7) related to 2021 and 8) related to the end of 2021 or the beginning of 2022. Points 9) 10) and 11) related to is 2022 promotion application.[137]On 24 February 23, Professor Knight sent an email to the Claimant, attaching the investigation report and inviting the Claimant to a Grievance Hearing where a panel would hear the case [951]. The Claimant and Professor Knight met informally on 1 March 2023 to discuss if there could be any informal resolution to the grievance. This is confirmed by the e-mail sent the following day at [994].[138]On 13 April 2023, Professor Knight sent a letter by e-mail to the Claimant [996 – 997]. In his letter, Professor Knight informed the Claimant that “Further to our meeting, and my email dated 24 March 2023, I have now been advised by HR that the Grievance panel hearing will not take place as the investigation into your grievance found no case to answer” [996].[139]The Claimant appealed this decision by way of a grievance appeal form dated 5 May 2023 [999 – 1002]. The Claimant accepted in cross examination that his appeal form was sent outside of the 10 working days allowed for in the Grievance Resolution Policy and Procedure [386].[140]The Claimant’s appeal was based on a failure Respondent to follow procedure. In his appeal form, he states: “In the QMUL Grievance Resolution Policy and Procedure 2.0 (dated January 2021), under which this grievance was submitted, Section 9.2.15 states that “Following completion of the investigation, the investigation manager will write a report of their findings.” This has happened. As a next step, in Section 9.2.16, the grievance procedure states that “The investigation report will be reviewed by the senior manager who commissioned the investigation and a grievance hearing will be arranged to consider the investigation findings and to make a decision on remedial action if required.” There is no option not to proceed from Section 9.2.15 to Section 9.2.16.” [1000].[141]The Claimant’s appeal was therefore on the grounds that, regardless of the findings of the investigation report, he should have been afforded the opportunity to respond to this report at a grievance hearing. This also was Professor Knight’s initial view, as he says in his email to the Claimant on 24 February 2023: “In accordance with Queen Mary’s Grievance Resolution Policy you are fully entitled to proceed to the next stage of the procedure which would be a Grievance Hearing where the case would be heard by an independent panel” [951].[142]The Tribunal does not need to make a finding on this point, but it appears likely that the Claimant was correct when he argued that the grievance procedure afforded him the right to be heard at a grievance hearing regardless of the contents of the investigation report. It is also likely, in view of the Tribunal, that had a Grievance Hearing gone ahead, the outcome would have been the same and the grievance would not have been upheld. The evidence of Professor Khoruzhenko, which the Tribunal found to be thoughtful and careful, was that it was “likely” and “logical” that the decision maker (Professor Knight) would follow the recommendation of the report that there was no case to answer.[143]The Tribunal found it was important to look at the timeline and consider what other events were going on parallel to this grievance. The Claimant appealed against his 2022 unsuccessful promotion application on 16 June 2022 [741, 751 – 752]. He raised a grievance against Professor Pickersgill [753] on 15 July 2022. The Academic Promotions Appeal Hearing took place on 15 September 2022. The Claimant was informed of the outcome of his appeal, which was not successful, on 17 October 2023 [827 – 828]. On 6 November 2022, the Claimant requested a meeting with Professor Grant in relation to the Academic Promotions Appeal outcome [895].21. On 12 December 2022, the Claimant raised concerns about Professor Grant with Professor Bailey, which is identified as the fourth alleged disclosure [902].22. On 16 January 2023, the Claimant sought to raise a grievance against Professor Grant in relation to his conduct of the Academic Promotions Appeal [904].[144]Professor Khoruzhenko’s investigation report into the grievance against Professor Pickersgill was not completed until 13 February 2023.[145]The Claimant wrote to Professor Bailey again on 20 February 2023 [949], setting out 10 concerns he had with the Academic Promotions process and subsequent appeal. As a result of this, Dr Lloyd “was appointed to undertake an independent review into Dr Rossberg’s concerns regarding the handling of his 2022 Academic Promotions Application” [PL 6]. Her report was shared with the Claimant on 7 March 2023. On 13 April 2023, Professor Knight confirmed that the grievance panel would not take place as the report found no case to answer [996]. Claimant’s appeal against this decision was submitted on 5 May 2023 [999 – 1002].[146]What the above shows is that by May 2023 there had been two separate grievances, one promotions appeal process that had been exhausted, an additional independent review into the promotions and appeals process, and an appeal in relation to a grievance. It is easy to see how the Respondent could conflate these grievances and appeals, as there was a lot of similarity in the themes expressed in each.[147]The Respondent was required to convene an appeal hearing in relation to the decision not to proceed with the grievance against Professor Pickersgill “as soon as practicable from the date of receipt of the appeal letter and normally within 20 working days” as per the Grievance Resolution Policy and Procedure [386].[148]The Claimant’s email of 19 May 2023 [1011] was sent within the 20-day period. If it is capable of being a protected disclosure, the question for the Tribunal is “did the Respondent subject the Claimant to a detriment on the grounds that he had made a protected disclosure?”.[149]Professor Bailey replied to the Claimant on 21 May 2023, simply saying “Could I ask you to discuss this with HR please?” [1011]. Professor Bailey copies in Ms Lester (HR Director). Ms Lester sent an email to the Claimant on 24 May 2023 in which she said: “Dr Philippa Lloyd was requested to conduct an independent review of concerns you have raised about the handling of your 2022 academic promotions application and subsequent promotions appeal – this was an exceptional action to provide assurance on your case following the conclusion of the academic promotions appeal process” [1010].[150]She goes on to say: “The points you have raised have now been considered a number of times, and have had a response. Dr Lloyds’ review sought to provide assurance and to conclude with constructive actions. There is no further route of appeal” [1010].[151]The Tribunal finds that it is not correct to say that the Respondent “Did not respond to his appeal dated 17 April 2023 against the decision to stop the grievance” [List of Issues 6.5.3]. The Tribunal is satisfied that this email was intended to cover all the Claimant’s grievances and appeals that he had brought. The Tribunal is satisfied that Ms Lester had missed the point that the grievance against Professor Pickersgill contained other (historical) allegations other than those relating to the 2022 promotions process, and that the Claimant’s appeal was in relation to a complaint that the Respondent had not followed its own grievance procedure. The Tribunal is satisfied that Ms Lester considered, mistakenly, that all matters related to the Claimant’s 2022 promotion application. The Tribunal finds that she considered, correctly, that all avenues of appeal in relation to this had been exhausted and the matter could go no further. The Tribunal is satisfied that this was her thought process when she said no further action would be taken (including in relation to the appeal of the grievance against Professor Pickersgill).[152]The Tribunal is satisfied that the Claimant’s appeal dated 17 April 2023 was responded to. The decision not to progress it may not have been the correct one, but it was not made on the grounds that the Claimant had made a protected disclosure. It was made on the grounds that Ms Lester believed the appeal related to the Claimant’s 2022 promotion application and all avenues of appeal in relation that have been exhausted. The Tribunal is satisfied that the alleged protected disclosure played no part whatsoever in the thought process of the decision maker (Fecitt v NHS Manchester [2012] ICR 372, CA.). Any claim of protected disclosure detriment in relation this appeal therefore fails.[153]The next potential detriments are: 6.5.4 Made the criteria to evaluate his application for promotion in 2023 more stringent compared to those used for his application in 2022, despite the Claimant having submitted in 2023 a Personal Circumstances Statement regarding his diabetes. and: 6.5.6 Refused his application for promotion.[154]The Tribunal considered these two potential detriments together, as there was some overlap been them.[155]The Academic Promotions Panel met on 6 July 2023 [1022]. As this postdates 19 May 2023, the Tribunal considered, if the Claimant’s email of 19 May 2023 is a protected disclosure, whether the above alleged detriment happened on the grounds that the Claimant made the protected disclosure.[156]The Tribunal finds that the Claimant adopted an unreasonable stance on how the Respondent’s promotion application process had operated in both 2022 and 2023. One of the fundamental points in the Claimant’s case is in relation to an email sent by Professor Richard Pickergill to the Claimant on 26 Jan 2022 writing “I know I will be asked at the promotion and elsewhere meeting “how is Axel Supporting the school right now?”. I can offer AI in the biosciences, which you wish to pass on, but otherwise continuing leadership in citizenship? [695].[157]The Claimant argues that by saying this, Professor Pickersgill was “implying that at the Faculty Promotion Panel he could offer the development of MSc AI in the Biosciences but otherwise would not have anything to say about “continuing leadership in citizenship”.” [AR 97].[158]The Claimant further argues that: “Professor Richard Pickergill effectively predicted in his response that the Academic Promotion Guide-lines 2022 will be violated because deliberations by the Faculty Promotion Panel will not based exclusively on the written material provided to the Panel (para 60), thus opening these deliberations up to biases and misrepresentations over which applicants have no control. In particular, he predicted that he will be asked to provide inadmissible evidence to the Panel and that he will provide it” [AR 98.1].[159]The Tribunal is satisfied that Professor Pickersgill’s email in no way confirms that the Academic Promotion Guidelines will be violated or ignored. The Academic Promotions Panel (also referred to in this judgment as the Faculty Panel) consisted of Wen Wang (Vice-Principal (S&E), Chair), Teresa AlonsoRasgado (Dean for Global Engagement), Martin Knight (Dean for Research), Tony Michael (Dean for Education), Richard Pickersgill (Head of SBBS), Alex Clark (Head of Maths), Steve Uhlig (Head of EECS), Hazel Screen (Head of SEMS), Adrian Bevan (Head of SPCS), Darren Hunwicks (Equality, Diversity and Inclusion Officer), Adetola Adetunji (Faculty Strategic HR Partner (S&E)), Katia Bejar (Reward & Benefits Administrator, Notes taker).[160]Each of the academic members would need take a view on whether the criteria for promotion had been met. It is entirely possible, even highly likely, that there would be differences of opinion across the nine members, and some level of discussion would have to take place. The Tribunal is satisfied this is what Professor Pickersgill was referring to when he said he would be “asked at the promotion and elsewhere meeting “how is Axel Supporting the school right now?”.” [695]. The Tribunal finds it was something that he was likely to be asked, and he was trying to support the Claimant by discussing what could be put forward. This is not a breach of the Academic Promotion Guidelines.[161]What the Claimant did not accept that the time, and still would not accept during the course of this hearing, is that it is possible for people to have a difference of opinion on whether the candidates applying for promotion have met the required standard.[162]For example, one of the areas in which the Claimant application was found by the faculty panel to be weak was in the area of ‘citizenship’. In autumn 2017, the Claimant was nominated as SBCS Plagiarism Officer to oversee issues of plagiarism and collusion in student coursework. He stepped down from this role on 11 March 2022 [937]. This role would have contributed to his ‘citizenship’ category for promotion, and therefore his application was weakened when he relinquished this role.[163]The Claimant's witness statement [AR 113.12] refers to his meeting with Professor Wang on 16 June 2022. This was a meeting that the Claimant covertly recorded without the knowledge of Professor Wang. The transcript is in the bundle at [746]. In his witness statement, the Claimant states: “At the meeting Prof. Wen Wang further confirmed that on research there’s no question in his mind or in the Faculty Promotion Panel’s mind, or in the University’s mind that my research is very active, and is leading in researching income in publications and also on PhD supervision. On research, he confirmed, “you are there” (1:11). Later he added “You have achieved as a professorial level the hardest thing. Many people will fail. They have to... They come up with all kinds of excuses why they cannot publish in top journals, why they cannot get a research grant? You don’t. You have done that.” (20:22)” [AR 113.12].[164]The Claimant further argues that the criteria applied teaching were more stringent in the 2023 patient process. He argues that in his feedback from 2022 Professor Wang did not mention the fact that MSc AI in the Biosciences had not started yet as an issue.[165]The Tribunal does note, however, that Professor Wang did say (in 2022) “On the concerns side is that some members of the school panel felt that you could have offered to contribute to the delivery, for example, which we are talking about, the AI in biosciences” [746].[166]The Tribunal is satisfied that delivering the MSc AI in the Biosciences would have contributed to the Claimant contributions in ‘citizenship’ and aided his promotion application. This program had not been delivered at the time of his 2022 or 2023 application, and so the Tribunal finds that it is reasonable that the Claimant was not promoted due to his application lacking in this area. There was no change in the criteria and the criteria were not made more stringent.[167]Even if the promotion criteria were more stringent, which the Tribunal does not accept, it is hard to see how this was influenced by any alleged protected disclosure. Professor Pickersgill was asked by the Tribunal whether he was aware of the alleged disclosures of the Claimant’s emails to Professor Bailey of 12 December 2022 and 20 February 2023 (and the ‘chaser’ email of 19 May 2023). He said that he was not, and his evidence was credible on this point.[168]In the Claimant written submissions, he wrote: “Finally, Professor Pickersgill, in his final years as Head of School, met the Principal Professor Colin Bailey at least monthly (Professor Pickersgill’s, Day 5). Despite having worked in this role under Professor Bailey for over seven years they had a reasonable working relation at best (Day 5). Indeed, body language in a public video recording an interaction between Professor Pickersgill and Professor Bailey (Document 236, separate file) suggests a steep power relation between the two. It is plausible and more likely than not that Professor Bailey commented directly or indirectly in one of the meetings with Professor Pickersgill on my strongly-worded 6.1.4 and 6.1.5 [Claimant’s emails to Professor Bailey of 12 December 2022 and 20 February 2023 and the ‘chaser’ email of 19 May 2023] disclosures and so materially influenced the decision making of Professor Pickersgill regarding my 2023 application for promotion”.[169]The Tribunal was not shown this separate file of a public video and so cannot comment on it. In any event, the arguments put forward here are fantastical. Even if the Tribunal had seen the video, it is unclear how the Tribunal would be expected to conclude that body language suggested a “steep power relation between the two”. It is not clear what a “steep power relation between the two” actually means.[170]Professor Pickersgill’s evidence was that he has “reasonable working relationship” with the principal, Professor Bailey. Professor Pickersgill confirmed he does not report to Professor Bailey and interacted with him “only infrequently”.[171]The Claimant seems to be suggesting that there is some sort of fractious relationship between Professor Pickersgill and Professor Bailey. The Tribunal makes no conclusions on this, but it is unclear how this suggestion of a fractious relationship assists the Claimant’s case. If Professor Pickersgill and Professor Bailey have such relationship (and the Tribunal made no findings whether this is the case or not) then it seems it would make it less likely that the two would collude together and that Professor Bailey would share details of the Claimant’s alleged protected disclosures with Professor Pickersgill. If, again as suggested by the Claimant, such relationship exists, it also makes it less likely that Professor Pickersgill would wish to assist Professor Bailey in doing the Claimant a disservice in retaliation for any alleged protected disclosure.[172]Even if the Claimant’s version as set out above was correct (which, for the avoidance of doubt, the Tribunal does not accept) it is implausible that Professor Pickersgill alone would be able to refuse the Claimant application for promotion. As noted above, there are eight other academic members of staff on the Faculty Panel, who all have an equal input when assessing applications for promotion. The Claimant’s case is that in 2023 his achievements were of the standard to allow for his promotion to professor. If that were so, then his case must logically be that Professor Pickersgill somehow persuaded the majority of the other Faculty Panel members not to grant the Claimant’s promotion despite it being (on the Claimant’s case) of the required standard. It is simply not credible that Professor Pickersgill would be able to exert such influence.[173]An alternative would be that the Claimant’s case is that the majority of the Faculty Panel would have been materially influenced by the alleged protected disclosure to Professor Bailey (who was not a member of the Faculty Panel) for them to have refused the Claimant application for promotion. There has been no evidence put forward to suggest that any of the other Faculty Panel members were aware of the alleged protected disclosures.[174]The Tribunal is satisfied that the criteria for promotion in 2023 did not change and did not become more stringent. Even if the Tribunal is wrong on this point, the Tribunal is satisfied that any such changes were not and could not have been materially influenced by the Claimant’s alleged protected disclosures. Indirect Discrimination (s.19 Equality Act 2010)[175]The Claimant relies on a PCP of “Requiring under the Academic Promotions Guidelines the inclusion of an Equality, Diversity and Inclusion representative on the Faculty Promotions Panel but failing to specify in the Guidelines the membership of the EDI team allowing for ambiguity in the background of the EDI representative who sists on the panel” (as per the List of Issues above). He argues that this PCP put his and other persons with his disability at a particular disadvantage, and that this PCP was not a proportionate means of[176]The Academic Promotion Guidelines 2023 [410] provide for the inclusion of an Equality, Diversity & Inclusion (EDI) representative on the Faculty Promotions Panel. The wording is: “… each panel will include an Equality, Diversity & Inclusion representative (either the Faculty Academic Lead for EDI or one of the University’s Equality, Diversity & Inclusion team)…” [421].[177]The Tribunal accepts that this is a change from the 2022 Guidelines [390], which specified an academic EDI Lead. The wording is: “The Faculty Academic Lead for Equality, Diversity & Inclusion will attend as an observer to the process” [402].[178]The 2023 guidance was updated following Dr Lloyd’s review of the Claimant’s 2022 promotion application process, on her recommendation.[179]In his written submissions, the Claimant argues that the role of the EDI representative is one which “is clearly an active role that requires engaged advocacy” and the “safeguard provided by this role is objectively weakened when the representative is drawn from HR”.[180]The Tribunal is satisfied that the Claimant’s Indirect Discrimination claim is fundamentally flawed in law. The PCP relied upon is one of requiring the inclusion of an EDI representative (and it is agreed there was one present - Darren Hunwicks, HR EDI officer); but failing to specify the membership of the EDI team; allowing for ambiguity in the background of the EDI representative.[181]The Claimant is now basing his argument on the inclusion of an HR Officer as the EDI representative, as opposed to an EDI representative from an academic background, and says that this puts him and others with his disability at a particular disadvantage. The argument relied on in the List of Issues was that it was the ambiguity in the policy that placed the Claimant and others with his disability at a particular disadvantage, not that the EDI representative was an HR officer. The Claimant’s argument is therefore flawed at this point.[182]The Tribunal have nonetheless gone on to consider the Claimant’s case as he now puts it, and finds that the Indirect Discrimination claim still fails as a matter of law. The Claimant is incorrect when he says that it is the role of the EDI representative to “advocate” for applicants with EDI issues. The Academic Promotion Guidelines 2023 clearly states that: “The role of the Equality, Diversity & Inclusion observer does not include involvement in the decision-making process” [422].[183]Professor Pickersgill also gave convincing and credible evidence on this point. He said the EDI representative was not there to advocate for applicants but had the remit to provide observations and statistics in relation to EDI issues.[184]Given that the EDI representative does not advocate for applicants who fall within the EDI remit, it would make no difference to the Claimant if the EDI representative was an academic or an HR officer.[185]If, however, the Claimant was correct in saying that the EDI representative was an advocate for applicants who were considered to fall within the EDI sphere, there is no evidence to say that an HR officer would be any less effective and advocate than an academic EDI representative. The Claimant’s written submissions say “An HR EDI Officer may consequently have less incentive or perceived independence to forcefully and effectively flag cases of disability discrimination” and “An academic EDI lead possesses an intrinsic understanding of the specific academic context, expectations, and subtle biases prevalent within academic judgments that an HR professional, no matter how skilled in general HR or equality matters, might not”. His case is put no higher than “may” and “might not”. This is pure supposition on the Claimant’s part and there is no evidence to support this.[186]In relation to all of the above, there is an even wider point on which the Claimant’s case is fundamentally flawed. The Claimant has failed to specify why this puts him and people who share his disability as a group disadvantage. If, as per the Claimant’s case, an HR officer is going to be a poorer advocate than an academic EDI representative in relation to EDI issues, then it follows that the HR representative would be a poorer advocate for all EDI issues, such as gender, race, and anything else that fell within the EDI remit. The Claimant has not, and in the view of the Tribunal, cannot show why this puts people with his disability at a particular disadvantage, or even why it puts disabled applicants in general at a particular disadvantage. If his argument is correct on the advocacy point (which the Tribunal finds it is not), it would apply equally to all applicants who fell within the EDI sphere. There is no group disadvantage.[187]The Claimant’s claim in respect of Indirect Discrimination therefore fails. Failure to Make Reasonable Adjustments (ss.20 and 21 Equality Act 2010) Did the Respondent apply the following PCP?[188]The List of Issues, following the preliminary hearing on 19 November 2023, recorded “In essence, what the Claimant alleges is that, as part of his January 2023 application, he made specific written submissions concerning his diabetes. He says it was a requirement that the panel takes this information into account. He asserts that in practice the panel failed to take this information into account sufficiently or at all”.[189]The Claimant’s written submissions now say that the PCP he is relying on is: “The PCP is the Respondent's practice of assessing academic promotion applications against its standard performance criteria and expectations, particularly quantitative output requirements for research, teaching, and citizenship.”[190]This is a change in how his case has been put and not one that the Respondent could have been aware of until the Claimant’s written submissions. There is some overlap between what was said at the preliminary hearing and recorded in the List of Issues, and what the Claimant’s case now is. The Respondent did adduce evidence about the 2023 promotion application process that the Claimant went through and was able to explain its version of events. The Tribunal have considered this head of claim based on how the Claimant now puts his case as the Tribunal is satisfied there was no prejudice to the Respondent in doing so. In respect of the alleged PCP, if proved, did that PCP put the Claimant at a substantial disadvantage in comparison with persons who are not disabled?[191]The Tribunal took some time to understand the Respondent’s approach to how disability is considered in promotion applications, as it is not a straightforward nor immediately obvious process. Having spent the time reviewing the evidence, the Tribunal is satisfied that there is such a process in place.[192]The Academic Promotion Guidelines 2023 state that: “The University recognises that some individuals may have specific personal circumstances that may have affected or continue to affect their ability to contribute, whether by reduction in the volume or range of activities that they were/are able to undertake, or in other ways” [418].[193]Underneath is a list of circumstances that may be taken into account. It is a non-exhaustive list. It includes “disability, injury or ill-health (permanent or temporary)”.[194]The Academic Promotion Guidelines 2023 then go on to state that: “The Personal Circumstances Panel will assess the impact on their normal work activities as a result of the circumstances involved. A summary of the impact will be provided to the Promotion Panel by Human Resources. No details of the specific personal circumstances will be provided to the Promotion Panel” [289].[195]The Tribunal is satisfied that this is what happens as a matter of practice, and this practice was applied to the Claimant’s Personal Circumstances form. The Claimant’s personal circumstances form was considered by the panel and the level of impact was assessed as “moderate to significant” [1064].[196]The Academic Promotion Guidelines 2023 sets out what the next step in the process is, as: “The Promotion Panel will take the impact into consideration when deciding the effect this may have had on their contribution, with the aim of calibrating their usual expectations of what should have been achieved during that period. The standards and quality of the contribution expected for promotion will still need to be present” [289].[197]This is supported by the Academic Promotions Personal Circumstances Panel Feedback form, which states: “Therefore, the expectation is that the Promotion Panel calibrates their expectations on the quantity of contribution for that period of time, in the same way that the quantity would be calibrated on a pro rata basis for someone on a fractional (part-time) contract” [1064].[198]The Tribunal is satisfied that this is what happened. The Tribunal found that Professor Pickersgill was a convincing witness, and his evidence was credible and believable. The Tribunal accept his evidence that the Faculty Panel were aware of the level of impact in relation to the Claimant. The Tribunal further accepts Professor Pickersgill’s evidence that the level of impact was taken into account when deciding the Claimant’s promotion application. This is also supported by the notes from the Faculty Panel meeting [1022] where it says “The Panel was aware that Dr Rossberg had declared Personal Circumstances and had submitted an Applicant Response Form” [1024]. Professor Pickersgill said that the Claimant’s “personal circumstances were taken into account by both the School and Faculty Panels”. Professor Pickersgill also explained that, in order for promotion to professor, “clear demonstration of leadership and citizenship is needed”. He explained that “there is no formula for adjusting the quality of leadership” and “the panel does need to see some leadership, even having taken into account the level of impact of the disability”. The Tribunal finds that this is credible evidence, and in line with the Academic Promotion Guidelines 2023.[199]The evidence of Professor Pickersgill is that there is no formula that can be applied when the Faculty Panel is considering an application for promotion. It is an holistic assessment, taking into account all of the evidence available to the panel. With regards to the Claimant having personal circumstances which amounted to a moderate to severe level of impact, Professor Pickersgill explained that “regarding leadership, for example, the panel might have expected fewer examples” but that the panel at least “did need to see one that meets the standard required”. The Tribunal found this explanation convincing and accepts it.[200]In which case, even on the Claimant’s revised PCP, the reasonable adjustment claim fails as the Claimant has not established that the Respondent applies a PCP of “assessing academic promotion applications against its standard performance criteria and expectations, particularly quantitative output requirements”. The quality that must be demonstrated in order to achieve promotion does not vary, but the Respondent can and does reduce the quantitative requirements depending on the level of impact of an applicant’s personal circumstances.[201]The Claimant’s claim in respect of failure to make reasonable adjustments therefore fails. Discrimination arising from Disability[202]As per the List of Issues, The unfavourable treatment relied upon is: 4.3.1 Not being promoted.[203]It is unclear from the List of Issues as to whether this relates to the Claimant’s 2022 application for promotion or his 2023 application, however, paragraph 4 [89] of the case management order dated 13 November 2023 (following the hearing on 9 November 2023) [88 – 91] confirms that “the Claimant confirmed that the main focus of his case would revolve around the last promotion application on or around January 2023 and that the earlier promotion applications would be referred to as background evidence only” [89].[204]The Claimant’s case as that the “something” that arises from his disability (diabetes) is that he has an ongoing need to treat his diabetes. He had an insulin pump that helps regulate his body’s blood sugar levels, which needs ongoing maintenance. He has episodes of high and low blood sugar levels. He needs time to treat his diabetes and has poor sleep on occasions. This was not disputed by the Respondent as being “something arising from” the Claimant’s disability, and the Tribunal is satisfied that a need to treat his diabetes does arise from the Claimant’s disability.[205]As a consequence of the Claimant’s ongoing need to attend to and treat his diabetes, the Claimant’s case is that he had fewer achievements in his work with the Respondent than he would otherwise have had. He says, understandably, that he needs time to treat his diabetes. He further says he has poor sleep on occasions. His case is that, but for this, he would have made more successful grant applications; produced more research papers; and spent more time engaging with the school administration in relation to citizenship. This is the second ‘link’ in the ‘chain’ of “something arising from” the Claimant’s disability.[206]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”. That expression ‘arising in consequence of’ could describe a range of causal links. The causal link between the something that causes unfavourable 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. The more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.[207]The Tribunal is not satisfied that the Claimant has proved the second link to the required standard. Whilst the Tribunal accept that the Claimant must spend some time in treating his diabetes, his evidence and this is inconsistent. In his witness statement [AR 265.1] he says that treating his diabetes takes up 30% of his time. In support of this he refers to a letter from King’s College Hospital NHS Foundation Trust, dated 15 January 2024 [1114]. The Tribunal notes that this letter is dated over a year after the events that Tribunal is concerned with. The letter contains the line “People living with diabetes describe this as a job that amounts to roughly 30% full time equivalent” [1116] but this is a general comment and is not made specifically in relation to the Claimant. In his Personal Circumstances forms (for 2023 at [925] and for 2024 at [1135]) the Claimant puts the amount of time he needs to treat his diabetes at 20%.[208]Moreover, regardless of the actual time required, the Claimant did not produce any evidence that showed that he had fewer successful grant applications than others, or produced fewer research papers, or that his time spent engaging with the school administration in relation to citizenship was less than others without his disability. Section ‘C’ contained detailed explanations of how the Claimant managed his diabetes but did not provide any information on how this related to successful grant applications, research papers or engagement with school administration.[209]More importantly, the Tribunal finds that the Claimant’s s.15 claim is entirely undermined by his whistleblowing claim. The basis of his whistleblowing claim is that his application for promotion in 2023 was the standard that meant he should be promoted, and it is his case that his promotion was prevented due to him making protected disclosures. He is further evidence was that his application in 2022 demonstrated that he was of a standard where promotion should have been granted, and it was due to an abuse of process and/or negative bias by Professor Pickersgill that meant he was not promoted. The Claimant’s own case is that he was not unsuccessful because he lacked evidence in any of the necessary areas.[210]If the Claimant’s evidence is that he was already demonstrating the required standard for promotion in both 2022 and 2023, it is hard to see how he squares this with the claim that “something arising” from his disability led to him not being at the required standard. His evidence is contradictory, and his claims are logical opposites of each other.[211]In any event, the Tribunal has considered the evidence of Professor Pickersgill and repeats its findings made above when considering the Claimant’s reasonable adjustments claim, in relation to the Claimant personal circumstances.[212]The Tribunal is satisfied that the Faculty Panel were aware of the level of impact in relation to the Claimant and this was taken into account when deciding the Claimant’s promotion application. The Tribunal repeats its findings that it accepts Professor Pickersgill’s evidence when he said “regarding leadership, for example, the panel might have expected fewer examples” but that the panel at least “did need to see one that meets the standard required”.[213]The Claimant was not successful in his 2023 promotion application notwithstanding that the Panel expressly took into account his personal circumstances and the impact those circumstances had on his application. The Tribunal is satisfied that the Respondent’s decision not to promote the Claimant was not because of something arising from his disability. His claim under s.15 Equality Act therefore fails. Direct Discrimination[214]It is not disputed that the Claimant was, at all material times, disabled within the meaning of section 6 of the Equality Act 2010 by reason of type 1 diabetes.[215]There are two allegations of less favourable treatment within the List of Issues:2.2.1 The Head of School’s statement on the Claimant’s application for promotion made in the 2023 promotions round, including a recommendation not to promote him, sent to the Claimant on 2 May 2023.2.2.2 The decision of the Faculty Promotion Panel not to promote the Claimant, communicated to him on 20 July 2023.[216]It is agreed between the parties that both of these things did happen. The questions the Tribunal need to answer are therefore: If so, did the Respondent treat the Claimant less favourably than it treated or would treat others (comparators) in not materially different circumstances? If so, was any less favourable treatment because of disability?[217]The Claimant relies on the following comparators, according to the List of Issues: 2.3.1 He relies on a hypothetical comparator and on other non–disabled applicants for promotion in the 2023 promotion round.[218]In the Claimant’s written submissions, he relied on a “Hypothetical Comparator (Myself in 2022)” [Claimant’s written submissions, p.34]. Clearly this cannot work as a matter of law. The Claimant is a real person, and therefore not a hypothetical comparator. He was disabled for the purposes of the equality act in 2022 as well as in 2023, so the comparison when looking at whether this was disability discrimination does not work. His written submissions concentrated on the Respondent allegedly applying a “more stringent criteria” [Claimant’s written submissions, p.34], which the Tribunal has found not to have been the case. In any event, that is not the issue that the Tribunal was asked to decide.[219]The Claimant also relies on an actual comparator; whose name has understandably been redacted from the bundle but is referred to as SEMS Academic A. SEMS Academic A was promoted to professor in the 2023 round of promotions.[220]The faculty panel’s recommendation to promote SEMS Academic A is noted in the notes from the S&E Academic Promotions Panel Meeting on 6 July 2023 [1022], which says “The Panel also noted that Dr A had achieved some small grants since last promotion and had recently achieved Faraday funding which is a first for the School” [1025]. The Claimant’s case is that the “Faraday funding” lasted for only one year; other than this, SEMS Academic A’s grant income was relatively small [1066]. The Claimant argues that there was a Personal Circumstances form submitted in relation to him, but there was not for SEMS Academic A. He therefore concludes that SEMS Academic A was not disabled and was promoted, whereas the Claimant was disabled and is promotion was reviewed.[221]There are some problems with this argument. There is nothing to say that SEMS Academic A was not a disabled member of staff, although the absence of a Personal Circumstances form submitted by him would suggest that he was not. This is, however, not conclusive, as the Claimant was a disabled person in the 2022 round of academic promotions but chose not to submit a Personal Circumstances form.[222]In any event, it is difficult to say that there was no material difference between the Claimant circumstances and those of SEMS Academic A. The Tribunal has accepted the evidence of Prof Pickersgill and Prof Khuoruzhenko, even in cross examination, that the assessment for promotion to professor is an holistic one. Prof Pickersgill explained, as a general explanation of the process, that it is possible that a candidate could be outstanding in one area and therefore the panel might accept a lesser standard in another area.[223]As noted elsewhere in this Judgment, the Academic Promotions Panel (also referred to in this judgment as the Faculty Panel) consisted of Wen Wang (Vice-Principal (S&E), Chair), Teresa Alonso-Rasgado (Dean for Global Engagement), Martin Knight (Dean for Research), Tony Michael (Dean for Education), Richard Pickersgill (Head of SBBS), Alex Clark (Head of Maths), Steve Uhlig (Head of EECS), Hazel Screen (Head of SEMS), Adrian Bevan (Head of SPCS), Darren Hunwicks (Equality, Diversity and Inclusion Officer), Adetola Adetunji (Faculty Strategic HR Partner (S&E)), Katia Bejar (Reward & Benefits Administrator, Notes taker). That is a total of nine academic members, plus the EDI Officer, HR Partner, and notetaker.[224]It is unclear from the Claimant’s case who the alleged discriminators are. He accepted this in cross examination, where he said “I don’t know who discriminated against me, I just know that I was [discriminated against]”.[225]For the Claimant’s direct disability claim to pass the first hurdle and shift the burden of proof to the Respondent, he would need to show facts from which the Tribunal could conclude, in the absence of any other explanation, that all nine academic members of the Faculty Panel, with the guidance of the EDI Officer, the HR Partner and in the presence of the HR notetaker, chose to discriminate against him because of his disability. The Claimant has not shown any such facts, and the premise is one that stretches credulity.[226]Another possibility, which the Claimant seems to initially alleged but has since moved away from, is that a discriminatory decision not to promote him was instigated by Professor Pickersgill.[227]It is noteworthy that none of the Claimant’s alleged protected disclosures raise issues regarding disability discrimination. They concentrate entirely on failure to follow the correct process and breach of guidelines. If the Claimant had genuinely believed he had been discriminated against, it seems highly unlikely that he would not have raised this when he was raising his other complaints. This causes the Tribunal to further doubt the veracity of this claim.[228]In relation to the decision of the school, the School Panel met on 20 March 2023 to consider whether it would make a recommendation to the faculty panel that the Claimant should be promoted. As part of this process, the school panel, chaired by Professor Pickersgill, produced the Head of School Statement [989]. While his name is appended to the bottom of it, it is a joint decision of the School Panel.[229]Professor Pickersgill explained in his witness statement that, as a School Panel in 2022 (the previous year): “the School Panel was split regarding whether to support Dr Rossberg’s application” [RP 16]. He explained that “It was the view of the School Panel that Dr Rossberg did not engage sufficiently with educational delivery and there had been some mixed feedback regarding his teaching, including a student complaint. The Panel felt that the citizenship and inclusion narratives around collegiality within the University were also relatively weak for the level of promotion sought”.[230]The Tribunal is satisfied that the School Panel ultimately decided to support the Claimant application promotion but it was a split decision. The School Panel felt that some areas of the Claimant’s application were weak. This was a view that the panel were entitled to take, having reviewed all the evidence and made up their own minds about it.[231]In the 2023 application process, the Tribunal is satisfied that the School Panel found the Claimant’s application to again be weak in some areas. Professor Pickersgill said: “I recall that when the School Panel reviewed Dr Rossberg’s promotion application we considered that there had been some progress in education but that he had not fully met the School Panel’s expectations in education nor in citizenship and inclusion. In education there was progress in developing the PGT “AI in the Biosciences” but the programme had yet to demonstrate success in terms of student recruitment and educational delivery. There was also progress in collegiality around his role as the Centre Lead for Biodiversity and Sustainability but external funding had yet to be delivered” [RP 31].[232]The Tribunal found this evidence both believable and credible. There are no facts from which the Tribunal could conclude that discrimination had occurred. As with the Faculty Panel, the Claimant is not even able to say with any certainty who the alleged discriminators are. The burden of proof therefore does not shift to the Respondent. Even if it had, the Respondent’s explanation is credible. The Claimant application for promotion was not supported because it simply was not good enough, not for any reason relating to disability. Time Limits[233]The Claimant’s claims having failed on their merits, it is not necessary for the Tribunal to consider the time limit issued arising from Section 123(3) of the Equality Act 2010 (Fuller V London Borough of Redbridge [2013] UKEAT 0084 13 1207).
Conclusion
[234]Due to the findings above, all of the Claimant’s claims are not well founded and are dismissed.[235]During this hearing, the Claimant failed to put large elements of his case to the Respondent’s witnesses. His questioning of Professor Pickersgill concentrated for a large part on Professor Pickersgill’s relationship and frequency of meetings with the president and principal of the Respondent. The Claimant also asked questions about the financial pressures on the University and wanted to question Professor Pickersgill in detail about the results of the 2022 staff survey [779], which appears to show some dissatisfaction with the senior leadership at the Respondent, before the Tribunal questioned what relevance this had to the issues before the Tribunal and the Claimant discontinued this line of questioning. He did not ask any further questions of Professor Pickersgill after this, and it fell to the Tribunal to put the Claimant’s case to the Respondent’s witness in a neutral manner.[236]It became clear to the Tribunal during the course of this hearing that what the Claimant really wanted was to continue his grievance and appeal against his 2022 promotion in relation to his argument that the Respondent had not followed the guidelines and on the basis of perceived bias from Professor Pickersgill against him. This is clearly not a matter that the Employment Tribunal has any jurisdiction over, and so it appears the Claimant has tried to ‘shoehorn’ the continuation of his grievance and appeal into whistleblowing and disability discrimination claims, none of which were convincing or believable. Approved by: