O Olenski v University of Essex Campus Services Ltd: 3201659/2020

EMPLOYMENT TRIBUNALS

Case No 3201659/2020

Between

Olaf OlenskiClaimant

University of Essex Campus Services LtdRespondent

Before

Employment Judge Burgher

Members

Mrs G Forrest

Mrs A Berry

In person for claimant

Ms R Thomas (instructed by Counsel) for respondent

Date 4 May 2022

JUDGMENT

[1]The Claimant’s claims that the Respondent unlawfully harassed the Claimant relating to disability are struck out on grounds of having no reasonable prospects of success.

[2]The Claimant’s claims that the Respondent discriminated against the Claimant arising from his disability fail and are dismissed.

[3]The Claimant’s claim that the Respondent failed to make reasonable adjustments in relation the timing of the grievance procedure succeeds.

[4]The Claimant’s claim that the Respondent failed to make reasonable adjustments in relation to the probationary termination succeeds.

[5]All of the Claimant’s other claims relating to failure to make reasonable adjustments fail and are dismissed.

[6]A remedy hearing is listed to take place on and 6 and 7 July 2022

REASONS

Findings of fact

[1]There were a number of preliminary matters that arose in this case.

[2]On the first day of the hearing there was a tube strike which meant that the Claimant had difficulty in attending Tribunal. Consequently, the Tribunal convened a telephone case management on the afternoon the first day where the following matters were discussed.

[3]The first matter was the absence of a witness statement from the Claimant. The Claimant stated that he did not know that he had to provide a witness statement, he did not have access to lawyers to be able provide a fully drafted witness statement and that there would be much more he would like to say if he was permitted to draft and submit a statement at this time. The Respondent countered that they did not have a witness statement from the Claimant, despite several requests, in order to deal with the case that it had to meet and if there was going to be a further witness statement it could have an effect on the timing and progress of the Tribunal hearing.

[4]The Tribunal considered the parties competing representations and concluded that it was in accordance with the overriding objective for the Claimant to be limited to the statements dated 17 December 2020 that he made in proceedings at pages 48 to 76 of the bundle. We considered that these statements outlined his concerns in a clear and structured way and specified the allegations he was making and why he was making them.

[5]We also concluded that the Respondent had sufficient notification and opportunity to engage with statements the Claimant had made at pages 48 to 76 of the bundle as they were.

[6]The Claimant maintained that was very unhappy about being limited in this way as there was much more he would have wished to say and we note his unhappiness and objections in this regard.

[7]The second matter related to the transcripts of meetings that the Claimant had attended when at the Respondent. The Claimant objected to the Respondent being able to rely on the transcripts at the hearing as they had not been provided to him when requested during his employment and shortly after his employment had been terminated. The Claimant had access to the recordings but stated that he did not have the mental capacity to listen to them all and create his own transcripts at the time. The Respondent stated that the transcripts were relevant evidence of meetings that had happened, and it would be appropriate for the Tribunal to consider them.

[8]The Tribunal decided to allow reference to the transcripts for the relevant context of the meetings only but we would not refer to the full transcripts of the meetings, only the relevant parts of the transcripts would assist the Tribunal in determining matters.

[9]The Tribunal did not have any direct contact with the parties on the second day. The Respondent attended the Tribunal and waited for the Claimant to attend. The Claimant did not attend the Tribunal on the second day of the hearing. Emails and contact to the Tribunal clerk on that day demonstrated that he was anxious and stressed in travelling to the Tribunal and there were difficulties with the aftermath of the tube strike. The Tribunal waiting for the Claimant and at 3pm the Respondent was informed by the Tribunal clerk that the hearing that the hearing would not proceed on the second day.

[10]The Tribunal spent the first day and the second day of the hearing reading through all the statements provided by the Claimant and the Respondent. The parties attended on the start of the third day. There was also a tube strike on this day and the Claimant attended. Harassment complaints

[11]The Tribunal considered the most appropriate way to case manage the matter bearing in mind the hearing time that had been lost. The Tribunal considered to be in accordance with the overriding objective to ensure that the matter could be dealt with dealt with fairly in time allotted The Tribunal expressed its observations on the Claimant's claims in relation his disability related harassment complaints, which related to matters with his then line management Ms Attwood, Ms Wastell and Mr Merrick. The Tribunal queried with the Claimant how his allegations against them amount to harassment related to disability for the purposes of establishing harassment complaint. In summary the Claimant stated that he was disabled and that things occurred as part of his work that created a hostile environment for him.

[12]Having considered the Claimant’s responses, the Respondent's representations and following detailed consideration of the content of the respective witness statements the Tribunal considered that it was in accordance with the overriding objective to strike out the Claimant's unlawful harassment complaints pursuant rule 37 of the 2013 ET rules on the basis that they have no reasonable prospect of success. In doing so we had full regard to the public policy militating against striking out fact sensitive discrimination and harassment complaints. We struck these claims out having reviewed the evidence in relation these matters and the legal requirements to establish the complaints. In summary, the Tribunal concluded that the Claimant had no reasonable prospect of successfully establishing that any of the allegations he made whilst working at Buffalo Joe’s and the teams conduct towards him or failure to act related to disability.

[13]We also observed that the allegations relating to working at Buffalo Joe’s and Zest took place over a defined period up to July 2019. The Claimant did not return to work at those locations but brought his claims in this regard on 22 June 2020 and on the face of it were prima facie out of time. We fully accept that the Claimant had significant mental health issues including a serious incident in August 2019. However, he was able to return to work November 2019 and no claim in respect of that period was presented to the Tribunal.

[14]When taking the draconian step to strike out the harassment complaints we also had regard to the overriding objective, in particular to seeking to ensure that the claims were determined without further delay that would arise and the need for finality for both the Claimant and the Respondent’s witnesses. Consequently, we concluded that it was appropriate to strike out the Claimant’s harassment disability related complaints and these are dismissed Hearing management

[15]In respect of the proceedings themselves the Claimant made it clear that he was on medication and it was clear to the Tribunal, especially during the afternoons that the Claimant’s concentration waned and he stated a number of times that he had brain fog affecting his concentration. The Tribunal adjusting proceedings to accommodate this when appropriate and enforced breaks every 40 minutes. Notwithstanding this the Claimant was still tired and highly anxious and the Tribunal finished early on most days to accommodate his depleting concentration and increasing anxiety levels.

[16]We record that that this matter was a very stressful process for all concerned, especially the Claimant given his health issues and we make no adverse findings against the Claimant in respect of the aggressive manifestations of his anxiety that arose from time to time during the hearing, following which the Claimant usually apologised.

[17]We are grateful for the perseverance of the Claimant and the patience of the Respondent’s representative in both assisting the Tribunal to ensuring that all the evidence and submissions could ultimately be heard in the time allotted.

Issues

[18]Following discussion and review by the Tribunal of the claims, a number of the Claimant’s claims were relabelled from discrimination arising from disability to reasonable adjustment complaints. In view of this and resolution of the preliminary matters the claims and witness statements the issues for determination were as follows: Disability

Findings of fact

[1]By email dated 2 February 2022 the Respondent conceded that the Claimant was disabled by reason of mental impairment of depression.

[2]The Respondent accepted that it had notice of the Claimant’s disability from 8 April 2019.

[3]Therefore, issues as to whether the Claimant have the protected characteristic of disability as defined in section 6 Equality Act 2010 ("EqA 2010") is no longer live.

[4]As an aside the Tribunal is critical of the time it took for the Respondent to concede disability in view of the claim being presented 22 June 2020 and the content of the Respondent’s occupational health reports dated 30 May 2019 and October 2019. UNLAWFUL HARASSMENT RELATED TO DISABILITY (s26 Equality Act 2010) (These claims were struck out)

[5]Did the Claimant receive the following unwanted conduct from the Respondent? The unwanted conduct relied on by the Claimant is:5.1 that his unit manager (Hoda Attwood) incited the Claimant's co-workers to make complaints about him. (The co-workers concerned are Ian Merrick, Gareth Roberts, Rebecca Wastell, Matynas Mikaluaskas and Stella Matsouka and the complaints were made in July 2019)

5.2 that Hoda Attwood used these reports from co-workers to place the Claimant on a Performance Improvement Plan in April 2019

5.3 that the Performance Improvement Plan was used (by Hoda Attwood (line manager), Tim Morris (Deputy Director UECS) and HR) as a way of furthering a campaign of harassment against the Claimant, to construct and pursue disciplinary action him on 12 July 2019

5.4 that Hoda Attwood copied the PIP to Tim Morris, Deputy Director of UECS, who distributed it to other parties and departments, including HR, without the Claimant's knowledge or authority, without adjusting it to reflect the Claimant's actual performance over time, giving the impression that the problems remained and that the Claimant had made no progress or improvement

5.5 that Hoda Attwood failed to act on complaints which the Claimant made to her about co-workers (prior to end of July 2019). These complaints were about:5.5.1 Martynas Mikalauskas (that he was behaving strangely around the till and in the office)

5.5.2 the Claimant's wallet being stolen

5.5.3 Stella Matsouka (causing the cross-contamination of food)

5.5.4 the restaurant being dirty and that Rebecca Wastell had been aggressive when the Claimant asked her to clean it

5.6 that Hoda Attwood incited co-workers (Rebecca Wastell; Stella Matsouka; Ian Merrick; Gareth Roberts) via end-of-shift and weekly email reports to make complaints about the Claimant in July 2019 which led to disciplinary allegations being made against the Claimant

5.7 that Darren Tyers ignored the Claimant's report of a fire and explosion risk made by the Claimant by email on 18 June 2019 and that there was an explosion 3 weeks later

5.8 that on 13 July 2019 Hoda Attwood shouted at the Claimant in front of coworkers and customers about putting apples on the counter

5.9 that the Claimant's requests to HR, by email in July 2019, for a transfer to another department of the Respondent was denied and that the Respondent transferred the Claimant to another unit instead

5.10 That the Claimant's PIP was cut and pasted to use as the basis of conduct potentially meriting disciplinary action

5.11 that Elisa Aylott refused, over the weekend of 27 and 28 July 2019, to allow the Claimant to attend a doctor's appointment on 29 July 2019 Was that unwanted conduct related to disability?

[7]Did any unwanted conduct related to disability have the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant or violating his dignity?

[8]Did any unwanted conduct related to disability have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant or violating his dignity and is it reasonable for such actions to be regarded as having that effect? DISCRIMINATION ARISING FROM DISABILITY (S15 Equality Act 2010)

[9]Did the Respondent treat the Claimant unfavourably because of something arising in consequence of the Claimant's disability?

[10]The alleged "something arising in consequence of" the Claimant's disability and the alleged unfavourable treatment received because of that are (the Claimant accepts that the matters in italics should be considered as part of his reasonable adjustment complaints as opposed to section 15 EqA complaints and the Tribunal, having invited submissions from the Respondent, considers them as such):10.1 that the Claimant needed additional time to recuperate after each shift worked and the Claimant was treated unfavourably by being rostered to work 6 continuous back to back shifts over a continuous period between February and July 2019

10.2 that the Claimant needed additional time to recuperate after each shift worked and the Claimant was treated unfavourably over a continuous period between February and July 2019 by not being rostered on a working pattern which allowed him two consecutive days off

10.3 that the Claimant needed not to be overburdened during shifts because he would tire more easily and was treated unfavourably in Easter 2019 by being rostered to work the entire Easter weekend in 2019 without other managers/supervisors being present

10.4 that the Claimant needed not to be overburdened during shifts because he would tire more easily and was treated unfavourably over the Easter weekend in 2019 by being required to work with insufficient staff to serve food

10.5 that the Claimant needed to avoid stressful changes to predictable work regimes and was treated unfavourably by Elisa Aylott changing the Claimant's shift without consultation in July 2019

10.6 requiring the Claimant to attend a lengthy formal meeting without breaks on 10 and 17 February 2020

10.7 that the Claimant was on sick leave in order to recuperate and was treated unfavourably by Respondent not seeking the Claimant's agreement that Daren Tyers would visit him in Harwich Medical Rehabilitation Unit while the Claimant was recuperating there, in August 2019, which the Claimant regards as a breach of his privacy

[11]At the material time or times, did the Respondent know, or should the Respondent reasonably have been expected to know, that the Claimant had the disability of depression (if such disability is established)

[12]If the Respondent did treat the Claimant unfavourably because of something rising in consequence of his disability, was that treatment objectively justified? The objective justification relied on by the Respondent is:12.1 In relation to paragraphs 10.1 to 10.4, the legitimate aim of ensuring sufficient and appropriate staffing to meet operational needs, having regards to the availability (including agreed leave) and working arrangements of relevant employees

12.2 In relation to paragraph 10.5, the legitimate aim of ensuring sufficient and appropriate staffing to meet operational needs, having regards to the availability (including agreed leave) and working arrangements of relevant employees, including in the context of the Claimant transferring to a different unit FAILURE TO MAKE REASONABLE ADJUSTMENTS (S21 Equality Act 2010)

[13]Did the Respondent apply a provision criterion or practice (a PCP) to the Claimant? Having regard to the reassignment of section 15 EqA to this head of claim (underlined) the PCPS relied on are:13.1 providing the Claimant with on the job training, from various colleagues, in his role as Catering Supervisor between February 2019 and July 2019

13.2 allocating the Claimant a shift pattern of 6 days' continuous working between February 2019 and July 2019 that the Claimant needed additional time to recuperate after each shift worked and the Claimant was treated unfavourably by being rostered to work 6 continuous back to back shifts over a continuous period between February and July 2019

13.3 that the Claimant needed additional time to recuperate after each shift worked and the Claimant was treated unfavourably over a continuous period between February and July 2019 by not being rostered on a working pattern which allowed him two consecutive days off

13.4 that the Claimant needed not to be overburdened during shifts because he would tire more easily and was treated unfavourably in Easter 2019 by being rostered to work the entire Easter weekend in 2019 without other managers/supervisors being present

13.5 that the Claimant needed not to be overburdened during shifts because he would tire more easily and was treated unfavourably over the Easter weekend in 2019 by being required to work with insufficient staff to serve food

13.6 calling the Claimant to a formal meeting without prior notice or opportunity to be accompanied by a representative on 12 July 2019

13.7 requiring the Claimant to attend a lengthy formal meeting without breaks on 10 and 17 February 2020

13.8 informing the Claimant in August 2019, in writing, that his probation was extended, without delaying the decision or speaking to him directly

13.9 progressing the disciplinary process against the Claimant before his grievance had been concluded. The grievance hearing was held on 12 February 2021; the disciplinary hearing was held on 10 February 2020 and 17 February 2020)

13.10 appointing managers within UECS to hear the Claimant's disciplinary and grievance cases. (These appointments were made In January 2020)

13.11 terminating the Claimant's employment without further extension of his probationary period, on 20 March 2020

13.12 requiring the Claimant to pass an interview in order to be redeployed to a Library Assistant role (December 2020)

13.13 requiring the Claimant to meet the essential criteria for an assistant Student Welfare role in order to be able to apply for it (January 2020).

[14]Did those PCPs place the Claimant at a substantial disadvantage in comparison with persons who were not disabled?

[15]At the material time or times, did the Respondent know, or should the Respondent reasonably have been expected to know, that the Claimant had the disability of depression (if such disability is established)

[16]At the material time or times, did the Respondent know, or should the Respondent reasonably have been expected to know, that the alleged PCPs placed the Claimant at a substantial disadvantage in comparison with persons who were not disabled?

[17]Did a failure on the part of the Respondent to implement one, some or all of the following steps amount to a failure to comply with the Respondent's duty to make reasonable adjustments to avoid the relevant disadvantage:17.1 providing the Claimant with a structured training course for his role as Catering Supervisor (rather than on the job training) to enable the Claimant to learn all the requirements of the role

17.2 providing additional support to the Claimant in areas where the Claimant was struggling or where Hoda Attwood considered that the Claimant was underperforming in his role as Catering Supervisor

17.3 allocating the Claimant a shift pattern which enabled the Claimant to recuperate before his next shift

17.4 avoiding calling the Claimant to a formal meeting on 13 July 2019 without prior notice and allowing him to be accompanied by a representative

17.5 offering the Claimant regular breaks in the formal meeting on 13 July 2019 to enable the Claimant to access medication

17.6 delaying any decision on the Claimant's probation until it could be communicated to the Claimant face-to face

17.7 pausing the disciplinary procedure pending the outcome of the Claimant's grievance

17.8 appointing a wholly independent person, not involved in the events concerned, to decide the Claimant's grievance and the disciplinary allegation against the Claimant

17.9 providing the Claimant with a mentor so that the Claimant could discuss the situation with that person to receive support and guidance

17.10 providing written documents in the form of Standard Operating Procedures to support learning in a structured and timely fashion

17.11 extending the Claimant's probationary period to allow the Claimant a better opportunity to prove himself while at work

17.12 appointing Claimant to the Library Assistant role

17.13 appointing the Claimant to a Student Welfare role TIME LIMITS

[18]Are any of the claims made by the Claimant brought outside the normal rime period for commencing proceedings in the employment Tribunal?

[19]If so, would it be just and equitable to consider any complaints presented out of time?

REMEDY

[20]If the Claimant's claims, or any of them, succeed, what compensation or other remedy should the Tribunal award? Evidence 19. The Claimant gave evidence on his own behalf, and as mentioned above he was limited to pages 49 to 76 of the hearing bundle 20. The Claimant’s partner, Mr Philip Berners, gave evidence in support of the Claimant. He was interposed during the Respondent’s evidence to accommodate his availability. Mr Berners is employed by the Respondent’s parent company the University of Essex

Evidence

[21]The Respondent called:21.1 Hoda Atwood Retail Assistant Operational Manager and Claimants immediate line manager at Buffalo Joe’s restaurant;

21.2 Chantal Mills, senior employee relations advisor;

21.3 Eliza Aylott, Head of catering services and Claimants line manager was working at Zest;

21.4 Ian Merrick, catering supervisor working at Buffalo Joe’s;

21.5 Rebecca Wastell, catering supervisor at Buffalo Joe’s;

21.6 Linda McCanna- Doyle, Deputy Director of Services and the grievance officer;

21.7 Darren Tyers, Retail Operations Manager and Hoda Attwood’s line manager;

21.8 Emma Wisher, Assistant director user engagement. She considered the Claimant’s application for the assistant - librarian role. She gave evidence by video as part of a hybrid hearing. There was a delay of over an hour on the 8th day due to technical difficulties to facilitate her Cloud Video Platform attendance;

21.9 Tim Morris, Deputy director of operations and disciplinary and dismissal officer;

21.10 Chris Oldham - Director of estates and dismissal appeal officer, The Claimant’s questions to Mr Oldham were curtailed despite the Claimant asserting he had many more questions in order to ensure that Mr Oldham, who was of marginal relevance could be completed on the day. The Tribunal considered that the Claimant had asked Mr Oldham the relevant questions of background and his involvement in the dismissal appeal.

21.11 Karen Braybrook - HR operations manager who assumed responsibility of HR in in June 2019;

[22]All witnesses subject to cross-examination questions from the Tribunal.

[23]The Tribunal was also referred to relevant pages in an agreed bundle consisting of over 1000 pages.

Facts

[24]The Respondent is a wholly owned subsidiary of the University of Essex. The Respondent employs up to 100 staff and provides services, including conference and food services on behalf of the University of Essex. It operates 10 food outlets across the university, including Buffaloes Jules and Zest and its offering includes restaurants, street huts and cafés. The Respondent has the following service departments:• Campus services

• Accommodation Essex

• Essex Sport

• Wivenhoe house Hotel

• Essex Food

• Event Essex

• Print Essex

• Wivenhoe Park Day nursery

• Everything Essex

[25]The Respondent shares it’s HR support with the University of Essex, who in turn employ about 3000 people.

[26]The Claimant is Polish and has had periods of employment in Poland and the United Kingdom. He has experience of customer service through working in call centres offices and catering establishments. The Claimant worked at Harrods in Knightsbridge where is duties included stock control, customer service engagement and cash handling. The Claimant stated and we accept that he received extensive and intensive structured training to undertake his role at Harrods.

[27]The Claimant is disabled by virtue of mental impairment of depression. He was diagnosed in 2016. Despite proceedings being presented on the 22 June 2020 and the content of the Respondent’s occupational health records dated 30 May 2019 and 23 October 2019, it was not until the 2 February 2022 that the Respondent conceded that the Claimant was disabled by virtue of the Equality Act 2010. The Respondent accepts that the Claimant informed Ms Atwood on the 8 April 2019 that he had depression.

[28]The Claimant commenced working for the responded as a catering supervisor on the 27 February 2019 having been interviewed by Ms Atwood and Mr Tyres. The job description for catering supervisor included, amongst other things organising the catering team the task schedules and information meetings and cash handling.

[29]The Claimant signed his contract of employment dated 27 February 2019. His contract has the following relevant clauses: 2 Probationary period Confirmation of employment is subject to satisfactory completion of a six month probationary period. This may be extended by a period of up to three months, subject to agreement of the Business unit manager in conjunction with Human Resources. An employee who has already satisfactorily completed probation period in a similar post within University of Essex Campus Services would not normally be expected to complete a further period of probation of employment. 3 Hours of work Your hours of work are as required to perform the duties of your role, for full-time employee this is normally 38 hours per week on a 5 days from 7 days shift pattern. Your manager will agree your normal work pattern with you. You may be expected to work outside your normal pattern on occasion as requested and as is reasonable by your line manager and the following consultation with you. 4 Location Your normal place of work will be Colchester campus. You may be required to work at either UECS premises whether on a temporary or permanent basis as the Company shall from time to time direct. 9 Employment policies of regulations Your employment will be subject workplace policies and procedures issued from time to time by the Company. There are no collective agreements applicable to your employment. Policies will be regularly updated and made available from human resources. 13 Equality and diversity The Company celebrates diversity, challenges inequality and is committed to sustaining an inclusive and diverse community that is open to all who have the potential to benefit from membership and which ensures equality of opportunity for all its members. We expect staff, students and visitors to be treated, and to treat each other, with dignity and respect and solely on the basis of merit, ability and potential regardless of age, disability, gender assignment, marriage and civil partnership, pregnancy maternity, race, religion or belief, sex, sexual orientation, social economic background, political beliefs and affiliations, family circumstances or other irrelevant distinction. The Company is committed to a program of action to ensure this policy is fully effective.

[30]There was an issue before the Tribunal as to what role the Claimant was applied for. We accept the Respondent’s evidence that the role was for Catering supervisor at a Buffalo Joe’s, which is one of the busiest restaurants within the Respondents catering facilities. The Claimant did not object to working in Buffalo Joe’s an appointment or express concerns about this at the outset.

[31]On appointment the Claimant was required to undertake online module as part of induction which resulted in an online assessment and a certificate of successful completion. The Claimant obtained certificates for safe food handling, food allergy and fire safety essentials.

[32]The Respondent has an induction and welcome pack for new staff which ordinarily it expects its employees to complete. There was a dispute before us as the extent to which the Claimant was trained in accordance with the requirements of the Respondent’s induction checklist. The Claimant expressed serious concerns about the quality, structure and assessment of the training that he was provided by Ms Attwood and the alleged mentors that were assigned to him who were said to be Ian Merrick and Rebecca Westall. The Claimant stated that he was simply shown what to do and not formally trained as had been his experience at Harrods.

[33]As far as mentors are concerned, the Claimant disputed that Ian Merrick and Rebecca Westall were his mentors. However, the induction checklist states that on the first day with when arrive on campus to be welcomed by your new manager in introduced to your induction mentor.

[34]The Tribunal accept that when the Claimant commenced employment he was introduced to Ms Attwood and Mr Merrick and Ms Westall as his fellow supervisors and mentors. They were the Claimant’s fellow supervisors who could initially show him what to do.

[35]We accept, and take as read, that the manuscript notes in the induction pack as accurately representing what was being discussed about the Claimants performance and needs for the period 27 February 2019 through to 18 April 2019.

[36]Having said, on the evidence, the Tribunal find that there were shortcomings in the training provided to mentors and supervisors, they seemingly had an organic approach towards the way in which staff work form trained about their duties and responsibilities and there was no formal support given to managers or supervisors in respect of how to be a mentor, provide encouragement and support or how to formulate performance improvement plans.

[37]On 8 April 2019 the Claimant had a meeting with Ms Attwood, Mr Merrick and Ms Westall. In that meeting Claimant stated that he had depression. He was asked if he would like to be referred occupational health but said it was not necessary at the moment as his depression was controlled by drugs that he has to take just before sleeping. He stated that he would keep the offer open should it be necessary later. The Claimant proceeded to highlight problems with the training given and an action plan was drawn up consisting of:37.1 further till training to be given to the Claimant;

37.2 Mr Merrick to draw up a more detailed procedures sheet to include such features entering data into the takings book preparing monies;

37.3 supervisors and managers observing the Claimant during 5pm cash ups when available; and

37.4 the Claimant to be given further training regarding turning on fryers in the morning.

[38]Between 19 April and 22 April 2019, the Claimant worked over the bank holiday weekend. The rota shows that the Claimant worked and two of the four days without another supervisor present and he was also required to work the late shift. The shift rota shows that for this period that there were adequate staff rostered but the Claimant asserts that some staff that did not turn up and this increased the pressure on him. It is significant that this was the first time the Claimant was required to close late for work on his own but by this stage he was supervisor for over 8 weeks. He had taken two consecutive days off the previous week on the 16 and 17 April and was rostered to take two days off the following week.

[39]Separately, but in this context, we find that the during week commencing 21 July 2019 the Claimant worked six consecutive days without a break. This was graduation week, which was an exceptionally busy period for the Respondent and as such all available staff were required to work. The Claimant had two consecutive days break after this

[40]On 23 April 2019 the Claimant was 18 April 2019 was issued with a performance improvement plan by his line manager Ms Attwood.

[41]The Claimant reacted adversely to the working in the April 2019 Easter weekend and felt stressed working in the environment, and his stress and anxiety was compounded by being issued with a performance improvement plan by Ms Atwood on 23 April 2019. He went absent without leave from 28 April 2019 for a period of two weeks when he was not on rota. The Claimant was reported missing for 5 days and was found by the Police in Harwich.

[42]The Claimant had a meeting with Ms Chantel Mills on 10 May 2019, he mentioned to Ms Mills that he suffered from depression, he had been on medication for 5 years, there was no structured training at Buffalo Joe’s, he was working 52 hours 7 days per week and all-night shifts and Ms Attwood was intimidating.

[43]The Claimant subsequently have a meeting with Ms Attwood, Mr Tyers and Ms Mills on 14 May where issues of training Claimant feeling intimidated by Ms Attwood and PIP were discussed. This meeting was constructive meeting and ended with the Claimant hugging Ms Attwood reflecting that he was content in respect of the proposed way forward.

[44]The Claimant was referred to occupational health. The occupational health practitioner reported on 30 May 2019 and expressed the view that the Claimant’s condition is covered by the Equality Act; that the Claimant was currently feeling well now that his recommenced prescribed medication doses have been restored following sudden cessation. One of the reasonable adjustments suggested was that the Claimant found it difficult to be assertive and say no to requests to undertake additional tasks and there was discussion about effective priority organisation and delegation and the Claimant was advised in some tools and techniques to manage. Whilst there were specific adjustments advised it was recommended that consideration be given as to how requests were worded to ensure that the Claimant was supported with prioritisation and felt empowered to discuss work demands, which may simply be by asking open questions.

[45]There was a meeting on 12 July 2019 that the Claimant attended with Mr Morris, Mr Tyers and Ms Attwood. The Respondent asserted that this was an informal meeting. However, we can readily accept from the Claimant's perspective how this would be seen as a formal meeting. The Claimant had no prior formal engagement with Mr Morris, who was a senior employee and was discussing work concerns. The invitation for the Claimant to attend this meeting we find was unreasonable. The Claimant should have been given proper notice to prepare for it, the content of the PIP also compounded the concerns the Claimant had. We note that this PIP explicitly refers to a complaint by Mr Roberts made on 11 June 2019 about the Claimant using foul language, the implication from this is that it would be dealt with by way of the PIP process not as it subsequently transpired as part of the disciplinary process. In any event at the meeting of 12 July 2019 was concluded with an instruction that Ms Attwood rewrite the PIP to have SMART objectives.

[46]On 14 July 2019, the Claimant wrote a grievance letter complaining about the behaviour of Ms Attwood towards him. The Claimant stated that Ms Attwood was instructing him incorrectly, presenting his failures to department managers with PIP documentation. He referred to Ms Attwood’s aggressive behaviour which was making staff leave and that she had behaved in an unacceptable manner to him. He concluded that Ms Attwood has chosen to sabotage his employment and that this is having an impact on his health and well-being. He stated that he wished for urgent and immediate action to be taken on this complaint or to transfer him to a different department.

[47]Following this, further complaints were levelled against the Claimant. From the context of these complaints we could easily perceive that there was an element of coordinated orchestration of the complaints in response to the Claimant’s grievance against Ms Attwood.

[48]On 19 July 2019 the Claimant was moved to work at Zest, a restaurant, where he would work 9.30 to 4.30 whilst his complaints were being investigated. Ms Aylott was to be his line manager.

[49]On 22 July 2019 Mr Morris informed Claimant of the number of complaints received about the Claimant's behaviour.

[50]The Claimant heard nothing further about his grievance against Ms Attwood although we find that this was being investigated by Ms Aylott questioning relevant employees.

[51]On 27 July 2019 Ms Aylott emailed the Claimant and stated that there would be a requirement to work at Canteen the following week from 8.30. This was different to what he believed was agreed, that he would be working at Zest between the 9:30 and 4.30. However, the Claimant did not object to his but stated the would rearrange time to accommodate other commitments he had already had. The Claimant subsequently discovered that he would be required to work on a same shift with Mr Roberts at the Canteen and was concerned given that Mr Roberts had made a complaint about him. However, Ms Aylott was not involved in assigning Mr Roberts to the rota as he was kitchen staff.

[52]By 31 July 2019, the Claimant still had not heard anything about the progress of his grievance. However, Ms Aylott handed the Claimant a letter that explained he would be subject to disciplinary investigation in relation to allegations against him.

[53]The Claimant felt overwhelmed by these events which led him to decide to end his life and he walked into the path of a lorry on the A12. The Claimant was hospitalised with serious injuries.

[54]On 6 August 2019 Mr Berners informed Ms Mills that the Claimant was safe. On 15 August 2019 Ms Mills, not knowing that the Claimant had attempted to end his life, sent the Claimant a letter to extend his probationary period. Ms Mills accepted that in hindsight had she known the extent of the Claimant’s situation she would not have sent this letter.

[55]On 2 September the Claimant was transferred to from the Colchester General Hospital to a rehabilitation unit in Harwich. On this day Mr Tyers went to the Mayflower Medical Centre to collect a prescription. He was with his daughter remained in the car whilst Mr Tyres quickly went to the medical centre. As he was enroute and he saw the Claimant at the entrance of the rehabilitation centre which shares the same entrance as the medical centre, Mr Tyers saw the Claimant sat outside and said a quick hello but that he had to hurry because his daughter was in the car and he had to take her to a dance club. The Claimant's version of events was that Mr Tyers saw him and he was clearly embarrassed and flustered. We find that this was a coincidental meeting this was not contrived or planned. We can accept from the Claimant's perception how it was unfeeling but Mr Tyer who not expected to see the Claimant and had to rush to take his daughter to dance class.

[56]The Claimant was discharged from hospital the end of September 2019. He was unable to drive or take the bus, he did not have movement in his arms and was expected regain for mobility following physiotherapy. It was anticipated that because of his injuries he may not be fit to return work until around mid-November 2019.

[57]The Claimant had a HR meeting on 22 October 2019. This was a long and difficult meeting, and the Claimant was clearly anxious. This manifested itself in aggressive behaviours. The Claimant clearly stated that he could not go back to work at Essex Foods. He made it clear that he tried to kill himself three months ago because the team had not listened to him and that he would like to move to a different department.

[58]The Claimant saw occupation health again on 22 October 2019 and a report was provided on 23 October 2019. It was recorded that the Claimant:58.1 reports that the attempt on his life came following the number of events at work including the nature of how a process improvement plan (PIP) was issued, which he states was incorrect and feels should not have been issued, being shouted at by his manager, being transferred to the canteen and being handed a complaint which had been raised about him. The Claimant stated that the pressure of these situations left him feeling unable to carry on and led to him deciding to take his life.

58.2 stated that he was fit to return to work as a supervisor, although does not wish to return to Essex Food due to concerns that his mental health will be further compromised.

58.3 was motivated to work and would welcome the opportunity for redeployment into an alternative role within the university and for early resolution of his grievance he raised in stock play stated that he has experience in other areas of work including gardening, events and customer call service/call centres.

58.4 has an underlying medical condition of depression and it is imperative that his grievances are resolved in a timely fashion to reduce the likelihood of further exacerbation of symptoms of depression.

58.5 was fit to undertake his role as a supervisor although he should refrain from returning to Essex Food until outstanding issues have been investigated and outcomes identified.

58.6 could undertake temporary redeployment or secondment. If this was not a practicable option then the Claimant should refrain from work due to risk of his mental health being adversely affected if he returns to his existing role within Essex Food.

[59]On 24 October 2019 Emma Kelly wrote to Ms Mills on the 24th of October introducing herself as an employment specialist working for NHS trust foundation trust she stated that her role was to work with mental health conditions Claimant and the employer to ensure that his current role is a sustainable as possible and her role was to be supported to both the Claimant and the Respondent. She stated that she could advise on his reasonable adjustments such as a phased return to work, redeployment assisting the Claimant with self-referral to access to work receiving assessment of his needs flexible working if applicable one-to-one sessions liaising and attending meetings with management team H on occupational health to work with the Claimant to create a workplace action plan that can be used to identify stressors and triggers consider Claimants well-being throughout the process into provide information and advice to the Respondent about mental health conditions. The Respondent was remiss in not seeking fuller input from Ms Kelly.

[60]On 1 November 2019 the Respondent sent the Claimant a letter stating that they had been able to secure time-limited and temporary solution for the Claimant to work as a housekeeper until the investigating outcome. The Claimant was asked to attend to work at the following Monday 4 November 2019 at 9am and undertake at least 24 hours a week work. This letter also referred to the Claimant’s probationary period being extended and that there would be another three months which would end on 28 February 2020.

[61]The Tribunal find this was an infelicitous letter. The reason given for the extension of probation was for the Claimant to meet the required standards but it was clear to all concerned that the Claimant would not be going back to work at Essex Food without this being seriously detrimental to his health. Given the breakdown in the relationship that had been acknowledged by Claimant and HR with Essex Foods at that time and the effect on the Claimant’s health, it was clear that there was no prospect of the Claimant being able to return to his substantive role from 23 October 2019.

[62]Further, in relation to the performance concerns that were raised in relation to the Claimant’s work at Essex Food, we find these were academic in the circumstances because it was clear from 23 October 2019 that the Claimant would not be able, due to his health, to return to Essex Foods as supervisor to demonstrate the standards required.

[63]The Respondent did seek temporary redeployment, leaving the parallel grievance and disciplinary processes. In respect of the housekeeping role the Claimant stated that was unable to do that role due to physical limitations and as such she remained on full pay whilst alternative roles were pupils identified.

[64]The Claimant expressed an interest in an assistant librarian role. He raised concerns that he was not simply assigned to the role as he was the housekeeping role. The Claimant was required to have an interview. Ms Wisher, Assistant director user engagement, expressed initial reservations about the Claimant's ability to do the job due to physicality and offering the role a temporary basis. However, we accept the evidence of Ms Wisher that her concerns overcome when she spoke to HR and accepted their advice in relation to this. However, Ms Wisher did not that accept the Claimant had reached at minimum competencies for the role when he was interviewed and unfortunately, as far as she was concerned the Claimant did not demonstrate that he met the essential criteria of:64.1 Experience of working in a customer orientated environment with a commitment to excellent customer service;

64.2 Excellent digital skills, including the ability to learn new systems;

64.3 Excellent communication skills;

64.4 Excellent team working skills;

64.5 A flexible and positive attitude with the ability to use our own initiative;

64.6 A commitment to continue service improvement and continue professional development;

64.7 commitment to equality diversity and inclusivity.

[65]Ms Wisher provided full reasons and factual basis for her views and whilst the Claimant disagrees we find that she genuinely held these views and observations following the interview and do not criticise her observations, she was able to see from the Claimant's performance.

[66]The Claimant gave evidence that he was independently approached in relation to a vacant role as an event at supervisor at the Wivenhoe House Hotel. However, he stated that he was awaiting the outcome of the Assistant Librarian interview before accepting the hotel role. He stated that the event supervisor role was at a higher level than the assistant librarian role and he was offered a trial shifts but declined them because he wanted the library role as he thought it would be less physically demanding. The Respondent's evidence in this regard was that they were not aware of the Wivenhoe House Hotel vacancy or offer of trial shifts. Their position was that that ordinarily its departments would inform HR of vacancies that they had which they would then notify employees. We find that the role at Wivenhoe House Hotel was not notified to the Respondent in accordance with usual practices and once the Claimant had declined the trial shifts any vacancy was subsequently filled.

[67]The Claimant expressed an interest in a Student Welfare role. He was informed that he would be given the job pack for the role in February 2020 but this was overtaken by events as there were concerns about future recruitment due to the Covid 19 pandemic and there was recruitment freeze which led to recruitment programs being paused.

[68]As mentioned above, the Claimant commenced his grievance on 14 July 2019. Ms Aylott held investigation meetings with other staff on 23 July 2019 and 24 July 2019. On 7 November 2019 the Claimant met with Ms Aylott and expressed concerns about why his grievance not been addressed. He sought to extend his grievance against Ms Aylott. The Claimant’s grievance was not progressed and on 15 January 2020 the Claimant provided details of his concerns against Ms Aylott in respect of preventing him attending an urgent Doctors appointment and changing the rota forcing him to work alongside and Mr Roberts.

[69]The grievance hearing took place with Ms McCanna-Doyle on 12 February 2020 and the Claimant was notified of the outcome of this grievance on 26 February 2020. His grievance was not upheld. The Claimant appealed against this and he was informed on 8 July 2020 that his appeal was unsuccessful.

[70]In respect of the disciplinary process, the Claimant was handed a letter of investigation letter on 30 July 2019 that he was going to be subject to disciplinary investigation. Disciplinary investigation meetings took place where the disciplinary investigation officer, Ms Newman, took statements from 12 employees between the period 5 August 2019 to 6 September 2019.

[71]The Claimant able to attend a disciplinary investigation meeting on 19 November 2019. This meeting lasted over three hours long and no break was provided. A disciplinary meeting was then held on 10 February 2020 which lasted 1.5 hours and a break was offered during the meeting. The disciplinary meeting was reconvened on17 February 2020 and lasted 20 minutes. The Claimant left the meeting early.

[72]By letter dated 21 February 2020 the Claimant was informed that the disciplinary allegations against him were made out and he was issued with a first written warning. The Claimant was informed that on the balance of probabilities Mr Morris concluded that the Claimant had conducted inappropriate behaviour and refused the following instructions. We observe that one of the allegations of inappropriate behaviour was the allegations of Mr Roberts made on 11 June 2019 which was part of the PIP. There was nothing in Mr Morris's letter that indicated that the Claimant's mental health issues had been considered whether as part of the allegations or by way of mitigation. The Claimant appealed against the disciplinary outcome and this was rejected on 3 June 2020.

[73]Mr Tyers wrote to the Claimant relation to arrange a probation extension meeting on 10 March 2020. The Claimant did not attend on 10 March and the meeting was arranged for 17 March 2020. The Claimant and did not attend on 17 March and despite being aware that the Claimant was to be due to be on leave on that day Mr Morris proceeded with the probation extension meeting in the Claimant's absence. It was decided the Claimant had failed to successfully complete his probationary period due to a combination of his poor performance and conduct which resulted in disciplinary action, and a belief that a further extension of this probation would not benefit. Therefore, the decision was taken to dismiss the Claimant with notice. The Claimant appealed against this decision to dismiss and Mr Oldham upheld the dismissal by letter dated 5 August 2020.

Law

[74]The following statutory provisions of the Equality Act 2010 (EqA) are relevant: 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 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) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts 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.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty.

(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.

(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to— (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it.

(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to— (a) a feature arising from the design or construction of a building, (b) a feature of an approach to, exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d) any other physical element or quality.

(11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.

(12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property.

(13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column. 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. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.

[75]Para 20(1) of Schedule 8 of the EqA requires the Respondent to have knowledge both of the disability and that the employee is likely to be placed at a disadvantage by the PCP. The Tribunal consider firstly whether the Respondent had knowledge of the disability and that it would place the Claimant at the disadvantage and if not whether it ought to have known both of the disability and the substantial disadvantage Secretary of State for Work and Pensions v Alam

[2010] ICR 665

[76]The matters we must identify in relation to a claim of discrimination on the grounds of failure to make reasonable adjustments was restated in Environment Agency v. Rowan

[2008] IRLR 20

namely:76.1 the provision, criterion or practice applied by or on behalf of an employer, or the physical feature of premises occupied by the employer;

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

76.3 the nature and extent of the substantial disadvantage suffered by the Claimant.

76.4 What reasonable steps could have been taken to avoid the disadvantage.

[77]The purpose of reasonable adjustments is to allow an employee to do their job or remain in employment.

[78]The ECHR Code of practice states at para 6.10 “The phrase [PCP] is not defined by the Act but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, or qualifications including one-off decisions and actions.”

[79]However, where the PCP relied upon is a practice the EAT has held that there must be some element of repetition about it and be applicable to both the disabled person and his or her non-disabled comparators Nottingham Transport Ltd v. Harvey. In Fox v. British Airways Plc, the EAT applying Harvey found that a one-off act of dismissal could not amount to a practice (or a provision or criterion).

[80]The question of what amounts to a PCP was also considered by the Court of Appeal in Ishola v Transport for London

[2020] EWCA Civ. 112

. Where Simler LJ observed: “37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.”

[81]In respect of time limits section 123 EqA states: “123 Time limits(1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment Tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment Tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[82]The Tribunal’s discretion to extend time is wide but emphasises that, as Auld LJ observed in Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

at [25]: “there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of the discretion is the exception rather than the rule”.

[83]Sedley LJ remarked in Chief Constable of Lincolnshire Police v Caston

[2010] IRLR 327

at [31] and [32] that there is “no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised” and that whether to grant an extension “is not a question of either policy or law” but “of fact and judgment, to be answered case by case by the Tribunal of first instance which is empowered to answer it”.

Conclusions

[84]Having considered the relevant facts and law our conclusions are as follows. Discrimination arising from disability (S15 Equality Act 2010) 10.5 that the Claimant needed to avoid stressful changes to predictable work regimes and was treated unfavourably by Elisa Aylott changing the Claimant's shift without consultation in July 2019

[85]The Claimant’s first allegation of disability arising discrimination arising from disability is as follows he needed to avoid stressful changes to predictable work resumes and was treated unfavourably by Ms Aylott change in the Claimant shift without consultation on in July 2019. When considering the evidence clear that the Claimant was moved to zest for a shift patterns 9:30 to 4:30 pm on a temporary basis whilst the Respondent investigated his complaint against Ms Attwood. This shift pattern continued. However, on 27 July 2019 Ms Aylott asked the Claimant to work in Canteen with a start time of 8:30. The Claimant wrote saying that he would like his rota to be adjusted as he had early commitments already and working in the Canteen was fine because it was a noon start. Miss Aylott responded that she could not change the rota for the Monday but would have a look if you could change it.

[86]When considering section 15 of the EqA, the treatment must be because of something arising in consequence of the disability. The shift pattern offered to the Claimant on the 19 July was not arising from his disability, it was to ensure that he could work whilst the investigation against Ms Attwood was undertaken. We therefore do not consider that the change to work in the Canteen arose in consequence of the Claimant’s disability. In any event, given the content of the email communication the Tribunal did not conclude that this was unfavourable treatment as there was communication between Ms Aylott and the Claimant trying to find a suitable compromise for the work that needed to be done. Therefore, the Claimant’s claim in this regard fails and is dismissed. 10.7 that the Claimant was on sick leave in order to recuperate and was treated unfavourably by Respondent not seeking the Claimant's agreement that Daren Tyers would visit him in Harwich Medical Rehabilitation Unit while the Claimant was recuperating there, in August 2019, which the Claimant regards as a breach of his privacy

[87]We have not found that Mr Tyres attendance and the medical centre in Harwich contrived. This was wholly coincidental therefore the Tribunal do not conclude this amounted to unfavourable treatment of rising from the Claimants disability. Reasonable Adjustments 13.1 providing the Claimant with on the job training, from various colleagues, in his role as Catering Supervisor between February 2019 and July 2019

[88]The Tribunal conclude that the Respondent did have a written process of induction training and mentor training between the period of February to 23 April 2019 and a PIP process thereafter. This amounted to a PCP.

[89]On the evidence before us we conclude that the way in which the Respondent trained the Claimant placed Claimant at a substantial disadvantage compared to someone without the Claimant’s disability. Employees without the Claimant’s mental impairment would have got up to speed in respect of matters, in particular cash handling, at a much quicker pace and greater understanding than the Claimant was able to manage in the period provided.

[90]The Respondent did not have knowledge of the Claimant’s disability up 8 April 2019 but knew thereafter as the Claimant told Ms Attwood that he was having difficulty and suffered from depression. From 8 April the Respondent put an action plan involving further training and a more detailed sheet. Supervisors and manager agreed to observe the Claimant and have 5pm catch ups when available and the Claimant was to be given further training on the fryer. By the 8 April the Claimant had been employed for over 5 weeks and still was not understanding some basic aspects of the role such as cashing up. The Claimant specified his mental health issues and the Tribunal considers that it would have been reasonable to have for him to have had a fresh start when he was not rostered but only shadowing the supervisors for time limit period in order to ensure that he understood the basics of the supervisor as well going forward.

[91]The Tribunal do not accept that detailed structured training would have been required as the role required on the job training and how to undertake the role. However, the Claimant specified his mental health issues and the Tribunal considers that it would have been a reasonable adjustment for the Claimant to have a fresh start when he was not rostered but only shadowing the supervisors for time limit period to ensure that he understood the basics of the supervisor as well going forward.

[92]This allegation refers to events in April 2019 and is considered further with time limits below. 13.2 allocating the Claimant a shift pattern of 6 days' continuous working between February 2019 and July 2019 that the Claimant needed additional time to recuperate after each shift worked and the Claimant was treated unfavourably by being rostered to work 6 continuous back to back shifts over a continuous period between February and July 2019

[93]The Tribunal do not conclude that the Claimant has established that the Respondent has a PCP of allocating a shift pattern of six days continuous working between February 2019 and July 2019. There was an occasion during graduation, week beginning 21 July 2019, when with the Claimant did work six consecutive days but this was an exception and not a normal practice.

[94]The Claimant’s claim in this regard fails and is dismissed. 13.3 that the Claimant needed additional time to recuperate after each shift worked and the Claimant was treated unfavourably over a continuous period between February and July 2019 by not being rostered on a working pattern which allowed him two consecutive days off

[95]The Claimant has not established that the Respondent had a PCP of requiring staff to be rostered without two consecutive days off. There was the occasion where the Claimant worked six consecutive days on week beginning 21 July 2019 but this was the exception not normal practice. Further, the Claimant had two consecutive days off prior this six days and two consecutive days off following.

[96]The Claimant’s claim in this regard fails and is dismissed. Alleged PCPs 4 and 5 13.4 that the Claimant needed not to be overburdened during shifts because he would tire more easily and was treated unfavourably in Easter 2019 by being rostered to work the entire Easter weekend in 2019 without other managers/supervisors being present 13.5 that the Claimant needed not to be overburdened during shifts because he would tire more easily and was treated unfavourably over the Easter weekend in 2019 by being required to work with insufficient staff to serve food

[97]The Claimant was rostered to do a shift without another supervisor and was required to undertake late shift on the Easter 2019. The Tribunal conclude that this system of rostering amounted to a PCP.

[98]The Tribunal conclude that the effect of the roster without another supervisor and working on late shift placed the Claimant at a substantial disadvantage when compared with someone without the Claimant’s disability, in that the extra pressure created a great anxiety and inability to cope with the required responsibilities.

[99]However, the Tribunal conclude that the Respondent did not know nor could be reasonably expected to know that the PCP was likely to place the Claimant at a substantial disadvantage when compared to someone without his disability. The Claimant expressed his concerns in relation to his depression in the meeting of the 8 April 2019 and stated that an occupational health referral was not necessary as it was being controlled by the pills. At this stage the Respondent had no reasonable basis to know that the Claimant would not be able to cope with the normal shift demands and pressures that were an ordinary part the supervisor’s role.

[100]The Claimant’s claim in this regard therefore fails and is dismissed. 13.6 calling the Claimant to a formal meeting without prior notice or opportunity to be accompanied by a representative on 12 July 2019

[101]The Claimant was called to what the Tribunal consider to be a formal meeting without notice on 12 July 2019. Whilst this was an extremely poor management decision the Claimant has not established that it amounted to a PCP. Formal meetings are usually notified in advance.

[102]The Claimant’s claim in this regard fails and is dismissed. 13.7 requiring the Claimant to attend a lengthy formal meeting without breaks on 10 and 17 February 2020

[103]The Claimant was required to attend a lengthy formal meeting on 19 November 2019. The Claimant complains that he was interrogated at this meeting for four hours without a break and this would have been a stressful meeting for anybody. Further, the Respondent knew of his mental health condition but still kept him for that length of time asking him to defend himself against allegations that he believed were false and made after his grievance was made.

[104]The meeting lasted, according to the transcript, for three hours and 11 minutes and there was no indication that the Claimant was offered a break nor that one was requested. Whilst this was not a specific issue in the list of issues it was clearly the mischief of the Claimant’s concern in this context. The matters were highly contested by him and the Claimant was not assisted by having matters addressed in such an intense and lengthy meeting. We accept that the circumstances required a break to be offered during this meeting and can understand how this increased the Claimant’s anxiety and his answers given which impacted on the effectiveness and propriety of that investigation meeting.

[105]We are very critical of how the meeting of 19 November 2019 was conducted. However, in view of how the meeting of 10 February 2020 was conducted, where a break as offered, we conclude that how 19 November 2019 was conducted amounted to an inappropriate one-off act of an impatient and ill-advised disciplinary investigator. As such it did not amount to a PCP.

[106]As far as the meetings referred to in the list of issues are concerned, namely 10 and 17 February 2020, they were unexceptional in that the Claimant was offered a break on 10 February 2022 and the 17 February 2020 meeting was only 20 minutes long.

[107]The Claimant’s claim in this regard therefore fails and is dismissed. 13.8 informing the Claimant in August 2019, in writing, that his probation was extended, without delaying the decision or speaking to him directly

[108]The Claimant has not established that the Respondent had a PCP of informing him in writing that his probation was extended without speaking directly. Further, the Respondent did not know the severity of the Claimant’s injuries at the time letter was sent the letter and it could not have reasonably expected to know that this would have had any adverse impact upon him.

[109]The Claimant’s claim in this regard therefore fails and is dismissed. 13.9 progressing the disciplinary process against the Claimant before his grievance had been concluded. The grievance hearing was held on 12 February 2020; the disciplinary hearing was held on 10 February 2020 and 17 February 2020)

[110]The Respondent progressed the Claimant’s disciplinary process before his grievance process had been concluded. The Tribunal conclude that this amounted to a PCP given the time that elapsed when both processes were ongoing.

[111]The Tribunal conclude that this PCP placed the Claimant at a substantial disadvantage when compared to people without his disability. The Respondent was aware from the occupational health report dated 23 October 2019 that it was imperative that his grievances were resolved in a timely fashion to reduce the likelihood of further exacerbation of symptoms of depression. The Respondent asserts that the grievance process was stalled due to the request for further information about the Claimant’s grievance being extended against Ms Aylott but there was no indication to the Tribunal of when this was chased before the Claimant provided further information on 15 January 2020. By this date the Claimants grievance still had not been progressed and no explanation as to what was happening between the 1st of November and the 14 January 2020 was provided relating to his grievance. However, the Claimant had an intense and lengthy disciplinary meeting on 19 November 2019 when resolution of his grievance was imperative. The Tribunal conclude that it was inappropriate, given the occupational health assessment, to progress the disciplinary issues against the Claimant whilst his grievances remained outstanding. The Tribunal is critical of the Respondent ought to have contacted Ms Kelly for her expertise and advice about the best way to proceed in the context of the Claimant’s mental health issues.

[112]Further, the outcome of grievance may have affected whether or not to subsequently proceed with disciplinary allegations and, depending on the outcome, may have impacted upon the disciplinary outcome. The Tribunal observes that the disciplinary outcome does not make any reference to the relevance or otherwise of the Claimant’s mental health condition in respect of the allegations against levelled against him or any potential mitigation this could have had. On the contrary Mr Morris concluded the disciplinary hearing in the Claimant’s absence believing the Claimant to being unreasonable in his approach.

[113]In these circumstances the Tribunal conclude that a reasonable adjustment would have been to consider and resolve the Claimant’s grievances before progressing to any disciplinary issues.

[114]The Claimant’s claim in this regard therefore succeeds. 13.10 appointing managers within UECS to hear the Claimant's disciplinary and grievance cases. (These appointments were made In January 2020)

[115]The Tribunal conclude that appointing managers within the Respondent, as opposed to the university, to deal with the Claimants disciplinary and grievance cases amounted to a PCP. However, we do not conclude that this process placed the Claimant at a substantial disadvantage due to his mental health issues and would not have concluded that it was a reasonable adjustment for the Respondent to change its usual processes to secure people outside of the company to undertake its processes.

[116]The Claimant’s claim in this regard fails and is dismissed. 13.11 terminating the Claimant's employment without further extension of his probationary period, on 20 March 2020

[117]The Tribunal conclude that the implementation of the probationary policy amounted to a PCP.

[118]This PCP placed the Claimant at a substantial disadvantage when compared to people without his disability because mental health was such that he would not have been able to return to the substantive role to be properly assessed.

[119]The Tribunal conclude that by 23 October 2019 it was clear to the Respondent, from what the Claimant and occupational health were representing, that a return to his substantive role was not viable. The Claimant had clearly expressed that he did not want to return to work at Essex Foods. This was underlined in his evidence before us. The Claimant expressed his immutable perception and deeply held suspicions that Mr Morris, Ms Aylott and Ms Attwood were working together colluding against him. The Tribunal conclude that Respondent could not have reasonably considered that, from 23 October 2019, the Claimant would return to his substantive role in order for a probation review to be properly considered.

[120]In the circumstances it was artificial for the Respondent to seek to progress its subsequent probationary review relating to the Claimant in respect of his substantive role.

[121]The Tribunal consider that a reasonable adjustment would have been to seek to redeploy the Claimant to a suitable available role within the Respondent, which itself could have been subject to a probationary period, instead of the artificial process of probation review for the substantive role. If there was no such role available, then the then the Claimant’s dismissal for that reason would have been appropriate.

[122]The Claimant’s claim in this regard therefore succeeds. 13.12 requiring the Claimant to pass an interview in order to be redeployed to a Library Assistant role (December 2020)

[123]The Tribunal conclude that the Respondent had a PCP for the Claimant to pass an interview to be appointed to the library assistant role. However, this PCP did not place the Claimant at a substantial disadvantage when compared to non-disabled people. Further, the Tribunal do not conclude that it would have been a reasonable adjustment to appoint the Claimant to a role that he did not demonstrate the competencies for.

[124]The Claimant’s claim in this regard fails and is dismissed. 13.13 requiring the Claimant to meet the essential criteria for an assistant Student Welfare role in order to be able to apply for it (January 2020).

[125]The Tribunal accept that having essential criteria for the Student Welfare role would amount to a PCP. However, on the evidence before us the Claimant met the criteria and was to be sent an employment pack. Therefore, the Claimant was not subject to a substantial disadvantage. We have found that the process in this regard was overtaken by events relating to the COVID – 19 pandemic recruitment freeze.

[126]The Claimant’s claim in this regard fails and is dismissed. Time limits

[127]In relation to time limit, the only relevant established claim where the time limit is in issue relates to the failure by Ms Attwood to make reasonable adjustments to train the Claimant in a pressure free environment for a limited period from 8 April 2019. We conclude that the Claimant’s employment at Buffalo Joe’s up to 19 June 2019 was separate and distinct from the acts relating to his grievance and subsequent probation termination.

[128]The Claimant contacted ACAS on 6 April 2020 and therefore any act before 7 January 2020 is prima facie out of time. The Claimant did not bring a timeous claim in respect of training that would have been a reasonable adjustment in April 2019. We fully acknowledge that the Claimant had serious mental health issues and was off work for periods between April and May 2019 and August through to October 2019. However, there was the period from April 2019 2 to July 2019 even the short period of mental health relapse where he could have brought a claim and from first of November 19 when he could afford Claimant did not. The Claimant was making job applications, attending interviews and meetings but did not bring a claim in this regard.

[129]The Claimant did not give any specific evidence why it was just and equitable to extend time and he has not persuaded us that in respect of the allegation in April 2019 that the Tribunal should extend time. That claim is out of time and is therefore dismissed.

[130]In respect of the other allegations the Claimant has established, these claims are in time and succeed.

Remedy

[131]A remedy hearing is listed to consider compensation for the Claimant's successful claims. This will consider an injury to feelings award, interest and what the prospects were for the Claimant in securing any available suitable alternative roles that may have been available from 28 February 2020 with the Respondent. REMEDY JUDGMENT The Respondent is ordered to pay the Claimant the sum of £30,523.17 in respect of his successful claims. Compensation Calculation table

[1]Details Date of birth of claimant 27/02/1971 Date started employment 27/02/2019 Effective Date of Termination 28/03/2020 Period of continuous service (years) 1 Age at Effective Date of Termination 49 Date new equivalent job started or expected to start 28/03/2021 Remedy hearing date 07/07/2022 Date by which employer should no longer be liable 28/03/2021 Net weekly pay at EDT (20% of £377.50) 75.43 Gross weekly pay at EDT 75.43 Gross annual pay at EDT 3,922.60

[2]Loss of earnings Total compensation (52 x £75.43) 3,922.60

[3]Adjustments to total compensatory award Plus interest (compensation award) @ 8% for 438 days 376.68 Compensatory award before adjustments 3,922.60 Total adjustments to the compensatory award 376.28 Compensatory award after adjustments 4,299.17

[4]Non financial losses Injury to feelings 22,000.00 Plus interest @ 8% for 876 days 4,224.00 Total non-financial award 26,224.00

[5]Summary totals Compensation award including statutory rights 4,299.17 Non-financial loss 26,224.00 Total 30,523.17

[1]The Tribunal upheld two of the Claimant’s complaints, namely:1.1 That the Respondent failed to make reasonable adjustments in relation to the timing of the grievance procedure;

1.2 The Respondent failed to make reasonable adjustments in relation to the probationary termination.

[2]Following judgment on liability, the Tribunal was required to consider the following issues for remedy:2.1 What sum, if any, was appropriate for loss of earnings. This was dependent on an assessment of whether the Claimant would have secured successful redeployment.

2.2 What was the sum for injury to feelings;

2.3 The calculation of interest on relevant sums. Evidence

[3]The Claimant gave evidence in respect of remedy and called Mr Philip Berners to give evidence in support.

[4]The Respondent called Ms Karen Braybrooke, University of Essex, Head of Operations, to give evidence on its behalf.

[5]The Tribunal was also referred to relevant pages in an agreed remedy hearing bundle consisting of 173 pages. Findings of fact

[6]The Tribunal reminded itself of relevant findings on liability. In particular:6.1 The Claimant reacted adversely to the working in the April 2019 Easter weekend and felt stressed working in the environment. We find that this undermines the Claimant’s assertion that he would have been able to work in a pressured environment going forward;

6.2 The Claimant had difficulty working unsupervised at Buffalo Joes. He was employed as a supervisor and was taking a significant period of time to get up to speed within the working environment.

6.3 Grievances and complaints were made by the Claimant against staff he worked with and complaints were made against him by staff in the short period worked at Buffalo Joes. We find that this supports an implication that the Claimant may have had difficulty sustaining effective working relationships;

6.4 On 31 July 2019, the Claimant felt overwhelmed by events which led him to decide to end his life and he walked into the path of a lorry on the A12. However, contrary to the Claimant’s evidence and assertions the Tribunal did not conclude that the Respondent was liable for this state of affairs.

6.5 The Claimant was unable to undertake the physical aspects of the housekeeper role offered to him on 1 November 2019 due to the injuries he had previously sustained.

6.6 It was inappropriate, given the occupational health assessment, in October 2019, to progress the disciplinary issues against the Claimant whilst his grievances remained outstanding.

6.7 Following interview, the Claimant was unable to demonstrate that he satisfied the essential criteria for the Grade 2 Assistant Librarian role. We accepted that Ms Wisher formed genuine reasoned conclusions for deciding this.

6.8 The Claimant was aware of, and able to apply, for any roles he was interested in. This was the case for the Wivenhoe House Hotel role.

6.9 Pursuing a probationary review for the Claimant’s substantive role was artificial, as it was clear from 23 October 2019 that the Claimant could not return to that role.

[7]The Claimant gave evidence that the Respondent devasted him and caused severe injury to feelings. He stated he had no self-esteem, he was heavily medicated as a result of events, felt like he had been punished for being depressed, it was like being lynched and he could not trust anyone, including co-workers and Human Resources.

[8]The Claimant stated that the Respondent’s failure to address his grievance with the seriousness it merited had a profound effect on his mental disability and being dismissed from employment increased his upset.

[9]In respect to redeployment, the Claimant was employed at salary band C (spinal column points 7 -10) for the Respondent. This is equivalent to grades 3 and 4 for the University of Essex (spinal column points 6 - 11, exceptionally grade 12).

[10]We accept the evidence given by Ms Braybrooke regarding the vacancies for the period January through to end of March 2020. There were 143 positions sent to the recruitment team during this period. However, there were 62 posts which were withdrawn or raised in error.

[11]The Claimant accepted that if he did not meet the essential criteria for posts it would not have been appropriate to redeploy him.

[12]Ms Braybrooke considered that there were only 12 posts that the Claimant may have had the skillset for. These were:12.1 Assessment Assistant (Grade 4 role) (x2)

12.2 Essex Abroad Assistant (Grade 4 role)

12.3 Student Administrative Assistant (Grade 4 role)

12.4 Student Administrator (Grade 4) (Edge School Hotel) (x2)

12.5 Student Administrator (Grade 4) (East 15 Acting School)

12.6 Student Administrative Assistant/Receptionist (Grade 3 role)

12.7 Kitchen Porter (Grade 2 role)

12.8 Early Years Educator (Day nursery) (x3)

[13]Ms Braybrooke stated the number of the posts were fixed term and required any employee to hit the ground running. Further due to the pandemic the fixed term posts were not recruited to.

[14]In addition to the above vacancies we considered that the Claimant may have been able to demonstrate the skill set for one of the 3 higher grade Band B posts for the Respondent. However, given the Claimant’s evident lack of trust of working for the Respondent’s management team, as opposed to the University of Essex, we conclude that these would not have been viable redeployment options.

[15]We accept Ms Braybrooke’s evidence that the vacancies were readily advertised and that the Claimant would have been able to express an interest in any vacancies if he wished to do so. The Claimant expressed an interest in the Assistant Librarian role and was able to discover a vacancy at Wivenhoe House Hotel.

[16]The Tribunal considered the Claimant’s CV. Ms Braybrooke had assessed this, alongside the feedback of the Claimant’s performance at interview for the Assistant Librarian as well as the Claimant’s work for the Respondent. It was her opinion that the Claimant would not have met the essential criteria necessary to be redeployed and/or that the Claimant would not have been able to undertake any of the vacancies.

[17]The Claimant observed that Ms Braybrooke’s assessment was irrelevant as it was undertaken after the event and no consideration was paid to this at the time. He contended that the Tribunal should disregard her evidence in this regard. There was some strength to the Claimant’s contention and we placed limited weight on Ms Braybrooke’s opinions. We formed our own assessment on the basis about findings previously made, the Claimant’s CV and his evidence before us, when in determining whether or not the Claimant would have demonstrated that he had met the essential criteria necessary to be considered for redeployment for the stated vacancies. Whilst the Claimant did not demonstrate that he met the essential criteria for a lower grade 2 role (the Assistant Librarian role) we considered that this could have been limited to a poor interview on that occasion which he could have addressed for future applications.

[18]The Claimant asserted that he would have been able to undertake all of the roles if offered to him. Having considered the evidence and our previous findings we conclude that the Claimant would not have been able to demonstrate the essential criteria for the following roles. In the context of her assessment of whether the Claimant would have being able to meet the essential criteria of the vacancies at the time.18.1 Assessment Assistant (Grade 4 role) (x2)

18.2 Essex Abroad Assistant (Grade 4 role)

18.3 Student Administrative Assistant (Grade 4 role)

18.4 Student Administrator (Grade 4) (Edge School Hotel) (x2)

18.5 Student Administrator (Grade 4) (East 15 Acting School)

[19]In respect of the grade 4 roles we are prepared to accept from the Claimant’s CV and his evidence before us that he would have been able to show that he had proven experience in Microsoft Office and competency in Word Excel and Outlook; that he had experience working independently within a team; and that he had relevant administrative experience. However having considered the job descriptions and job person specifications for these grade 4 roles, and given our previous findings we are unable to accept that the Claimant would have demonstrated that he met the essential criteria in respect of the following: Ability to work independently with minimal supervision, prioritising workload to manage a range of varied tasks and dealing effectively with multiple priorities and deadlines. Ability to work under pressure, maintaining a calm and friendly manner Excellent communication skills both written and oral, and ability to express yourself clearly in person and in writing; High level of written English The ability to work accurately with attention to detail what's dealing with competing areas of work . Proven ability to work independently as well as part of a team facilitating the smooth running of an office. Ability to work effectively to tight deadlines - Ability to manage and prioritise tasks, meet deadlines and manage workloads.

[20]These matters formed part of the essential criteria, to varying extents, for the different grade 4 roles. We therefore do not consider the Claimant would have been able to be meet the criteria to be redeployed to them.

[21]We take a different view, inferring from the Claimant's CV, that he may have met the essential criteria for the grade 3 position Student Administrative Assistant/Receptionist to be invited to interviewed for the post. This role had a gross annual salary of £19,613.00. The required interpersonal communication skills administrative organisational and IT skills and qualified to draft of correspondence and documentation.

[22]Assuming that the Claimant should have been invited to interview for this role we considered what would have been likely to happen. We conclude that given the Claimant’s lack of reflection about his performance at interview for the Assistant Librarian role (he still believes that he excelled at interview but the Tribunal concluded otherwise) we do not consider it likely that he would have been able to change his approach to demonstrate that had excellent interpersonal and communication skills and excellent administrative and organisational skills. We cannot conclude that he would not have done and conclude that there was a 20% chance of doing so. We use this percentage in assessing the Claimant’s compensation for loss of earnings.

[23]When considering the kitchen porter role, the Claimant gave evidence that even as at May 2022 he was unable to undertake physically demanding roles. He made it clear to us that even lifting his bag would have caused severe pain in his arm and we conclude that sustained manual duties would have adversely affected his ability to sleep and his underlying mental health. Therefore, we do not conclude that the manual nature of the kitchen porter role, even adjusted, would have been an appropriate role for the Claimant to be redeployed to.

[24]Finally, we do not consider that any of the available Early years educators roles would have been appropriate for the Claimant to be redeployed to, he had neither the qualifications nor experience of working with children to be properly considered for them.

[25]When considering mitigation and future loss of earnings the Claimant referred the Tribunal to his Universal Credit reports as evidence of the steps he was taking to secure alternative employment. He did not provide any details of job applications or rejections, nor any evidence of earnings during the interim period whether by way of pay slips or bank statements. The Claimant asserting that he was fit to work with adjustments following his dismissal and his stated that he would not have been able to receive Universal Credit if he was not actively seeking alternative work.

[26]In response to questions, the Claimant was able to remember three or four occasions where he earned sums of £700, £480 and £130 (x2). He has also applied to undertake a security officer course. He applied to undertake a university course but has apparently now deferred enrolment.

[27]The Claimant accepted that there were a large number of hospitality jobs vacancies in the prevailing employment market. We agree. In these circumstances we conclude that the Claimant ought to have reasonably secured alternative employment within 12 months of his dismissal and we limit his compensation this period of time. Law and Submissions

[28]Section 124 Equality Act 2010 states: Remedies: general(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).

(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation.

(3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate

[29]The Tribunal has the power to award to compensation to an employee for injury to feelings resulting from an act of discrimination by virtue of sections 124(5) and 119(4) of the Equality Act 2010. Injury to feelings

[30]The purpose of the injury to feelings award is to compensate the complainant for the injury, anger, upset and humiliation caused by the discrimination. It is compensatory not punitive.

[31]In determining the amount of the award, we followed the Vento v Chief Constable of West Yorkshire No2

[2003] ICR 318

guidelines (uplifted pursuant to Simmons v Castle

[2012] EWCA Civ 1288

) in respect of the level of awards in place at the time the claim was presented. The Vento guidelines as at April 2020 (following the updated Presidential Guidance) were:• a top band of between £27,000 to £45,000 to be applied only in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. Only in very exceptional cases should an award of compensation for injury to feelings exceed £42,900.

• a middle band of between £9,000 to £27,000: for serious cases that do not merit an award in the highest band, and

• a lower band of between £900 to £9,000: appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.

[32]When assessing the level of injury to feelings the guidance HM Prison Service v Johnson

[1997] IRLR 162

Smith J held: -(1) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award.

(2) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use Lord Bingham's phrase, be seen as the way to untaxed riches.

(3) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award; rather to the whole range of such awards.

(4) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings.

(5) Finally, tribunals should bear in mind Lord Bingham's reference to the need for public respect for the level of awards made.

[33]When more than one event contributes to the injury suffered by a claimant then, save where the injury in question can be said to be 'indivisible,' the extent of the Respondent's liability is limited to the contribution to the injury made by its discriminatory conduct, Olayemi v Athena Medical Centre

[2016] ICR 1074

. Following Olayemi, the approach we are guided to take in a case where there is more than one material cause for the injury is as follows:-a. Consider if the injury is truly indivisible. (Can a rational apportionment be made or not?)

b. If it is indivisible, the wrongdoer is responsible for all of it even if there are other causative acts contributing to the injury.

c. If it is divisible, the wrongdoer is responsible only for so much of it as can be apportioned on a rational basis.

d. If the other material cause simply creates a vulnerability to the injury, but does not actually cause an injury, the wrongdoer will be responsible for all of it whether it is divisible or indivisible but, the tribunal should then consider the chance that the injury would have been suffered in any event, even if the wrongdoer’s act had not happened.

[34]The Claimant contended that his injury to feelings band was in the exceptional bracket, above the top Vento band. He relied heavily on his belief that the Respondent’s actions contributed to his serious illness in July 2019 where he tried to end his life. However, we have not concluded that the Respondent was liable for any events at that time.

[35]We remind ourselves of the matters for which the Respondent was found to be liable and at the same time note that the Respondent must take the employee as they find them in this case the Claimant with significant pre existing mental

Issues

[36]The Tribunal concluded that it was inappropriate, given the occupational health assessment, to progress the disciplinary issues against the Claimant whilst his grievances remained outstanding. The Claimant has an underlying medical condition of anxiety and depression and it was stated to be imperative that his grievances be resolved in a timely fashion to reduce the likelihood of further exacerbation of symptoms of depression.

[37]Against this the Claimant was able to seek alternative work from November 2019 and engage with the disciplinary and grievance processes that were determined in February 2020. The Claimant was then dismissed for failing to successfully complete his probation and this created further upset to him as it believed that it created a negative and unfair blot on his working history.

[38]The Respondent accepts that an injury to feelings award is due and contends that the evidence points this falling at the low end of the middle band at £9000.

[39]When discounting matters relied on by the Claimant for injury to feelings that the Respondent was not liable for and reminding ourselves that the award is compensatory, not punitive, we considered that the appropriate award for injury to feelings falls in the middle to upper range of the middle band. The Claimant’s preexisting upset was exacerbated and continued by the timing of the grievance and subsequently losing his job for what he considered to be unfair reasons. He lost selfesteem and trust for others and this further affected his mental health.

[40]In these circumstances we assess the appropriate award for injury to feelings at £22,000. Interest is added to this sum. We conclude that the injury to feelings commenced on 13 February 2020 when the disciplinary process against the Claimant concluded before his grievance. The Claimant is entitled to interest at 8%pa on this sum. Loss of earnings

[41]The Tribunal then assessed what amount, if any, is appropriate for loss of earnings. There was no prospect of the Claimant returning to his substantive role. Having assessed available roles we have concluded that there was a 20% chance of the Claimant being able to successfully secure the grade 3 position Student Administrative Assistant/Receptionist role at an annual salary of £19,613.00. This equates to an annual loss of £3,922.60. All other vacancies were not appropriate.

[42]We have also concluded that the Claimant ought to have secured a similar, or higher annual salary within 12 months of his dismissal give the numerous job vacancies in the hospitality sector. We therefore limit his loss of earnings to this period.

[43]The calculation of the Claimant’s compensation is therefore set out in the table below.

Remedy

Issues

[2]Loss of earnings Total compensation (52 x £75.43) 3,922.60

Evidence

[4]Non financial losses Injury to feelings 22,000.00 Plus interest @ 8% for 876 days 4,224.00 Total non-financial award 26,224.00

[5]Summary totals Compensation award including statutory rights 4,299.17 Non-financial loss 26,224.00 Total 30,523.17 44. The Respondent is ordered to pay the Claimant the sum of £30,523.17 in respect of his successful claims. Case Number: 3201659/2020 EMPLOYMENT TRIBUNALS Claimant: Olaf Olenski Respondent: University of Essex Campus Services Ltd

[1]By letter dated 28 July 2022, the Claimant sought reconsideration of the Tribunal remedy judgment. The Tribunal apologises for the delay in responding to the Claimant’s correspondence which is due in part to the correspondence from the Claimant dated 16 October 2022 requesting a delay in proceedings due to incapacity. Subsequent correspondence that he sent to the Tribunal on 23 November 2022 was overlooked. This became apparent following the Claimant’s further email dated 20 December 2022. Regrettably, the Claimant did not copy either of these emails to the Respondent. Reconsideration of remedy judgment

[2]The Claimant’s application for reconsideration of the remedy judgment is refused. There is no reasonable prospect of the judgment being varied or revoked.

[3]The Claimant’s evidence and contentions were fully considered by the Tribunal during the remedy hearing and in forming conclusions. Paragraph 34 of the Remedy Judgment flowed directly from the liability judgment. The fact that the Claimant disagrees with the findings and conclusion does not form a proper basis for reconsideration.

[4]In respect of mitigation, and ability to seek alternative work, the Claimant’s evidence was similarly fully assessed as part of fact find and conclusions. The conclusions are set out on at paragraphs 41 and 42 of the Remedy Judgment. The Tribunal concluded that the Claimant ought to have been able to secure a role earning more than £3922.60 within 12 months of termination. Hospitality sector roles are not limited to roles requiring physical activity. Interpreter

[5]The Claimant alluded to being disadvantaged during the proceedings due to not having an interpreter. Such concerns were not mentioned or raised with the Tribunal during liability or remedy hearing. Indeed, the Tribunal took significant steps Case Number: 3201659/2020 to ensure the Claimant’s needs were accommodated to enable him to properly participate throughout the hearing. At no stage did he state that he needed an interpreter. Further, doing so would have been wholly contradictory to his positive case regarding his professed English language ability necessary when assessing suitable alternative work. Costs

Findings of fact

[6]Finally, it is not in accordance with the overriding objective to list a costs hearing. Having considered the Claimant’s implicit application for costs dated 12 July 2022, the Tribunal letter dated 29 July 2022 to the parties and the Respondent’s email dated 17 August 2022, it is concluded that there is no reasonable basis for the Claimant to claim costs pursuant to rule 76 of the ET rules. Simply defending allegations made does not amount to vexatious or unreasonable conduct.

[7]As such it is not in accordance with the overriding objective to list a costs hearing and the Claimant’s application for costs is refused.

[8]This concludes the Employment Tribunal’s involvement in the matter. Acting