Mr M Carruthers v Transport for London and E Norman: 3201728/2023

EMPLOYMENT TRIBUNALS

Case No 3201728/2023

Between

Mr. M.CarruthersClaimant

1) Transport for London 2) Emma NormanRespondent

Before

District Judge Ross

Mr. O. Lawrence (instructed by Counsel) for claimant

Ms. K. Minto (instructed by Counsel) for respondent

Date 23 July 2025

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

[1]Each of the following complaints of discrimination are not wellfounded and are dismissed: 1.1. Breach of the duty to make reasonable adjustments for disability; 1.2. Indirect disability discrimination; 1.3. unfavourable treatment because of something arising in consequence of disability; 1.4. harassment related to disability; 1.5. victimisation.

[2]The Claim is dismissed. 1 of 52

REASONS

[1]The Claimant was employed as a Project Manager by the First Respondent between 28 November 2022 and 9 August 2023. The Second Respondent was his line manager until 26 May 2023.

[2]By a Claim presented on 22 September 2023, the Claimant brought complaints of disability discrimination under sections 15, 19, 20 -21, 26 and 27 Equality Act 2010 (“EQA”). This followed periods of Early Conciliation between 12 July and 23 August 2023 and on 22 September 2023.

The Hearing

[3]At a Preliminary Hearing on 18 December 2023, Employment Judge Crosfill had made detailed case management orders in the presence of the parties. The parties agreed that 5 days was adequate to determine liability and, if required, remedy.

[4]Regrettably, by the start of the hearing, the parties had not complied with certain case management directions in respect of preparation for the final hearing. There was no essential reading list, despite the bundle being 1309 pages long (plus additions added during the hearing), and there was no timetable for the hearing. There were over 100 pages of witness statement evidence.

[5]The Tribunal explained that it would use the first morning to read the witness statements, plus any relevant documents referred to in them.

[6]The Tribunal invited the parties to attempt to narrow the issues during the adjournment. Judge Crosfill had suggested this at the Preliminary Hearing but it appeared that this had also not been acted upon, because the list of issues was not proportionate in length to a hearing listed for 5 days.

[7]Counsel produced a chronology with a list of reading attached during the adjournment, received on the afternoon of the first day, and the parties did narrow the issues slightly before the evidence commenced. Reasonable adjustments

[8]Before starting the Claimant’s evidence, reasonable adjustments were considered so that he could give his best evidence. The Claimant requested a 5 minute break after each 45 minutes of oral evidence by him to allow him to recover. The Tribunal made this adjustment, and adjourned the case after each 45 minutes of his evidence, usually for longer than 5 minutes. Complaints and Issues 2 of 52

[9]The complaints rested on events during the Claimant’s probationary period and his dismissal. The complaints were set out in a detailed List of Issues, which included: 9.1. unfavourable treatment for something arising in consequence of his disability, under section 15 EQA; 9.2. breach of the duty to make reasonable adjustments, under sections 20-21 EQA; 9.3. indirect disability discrimination, section 19 EQA; 9.4. harassment related to disability, section 26 EQA; 9.5. victimisation, section 27 EQA.

[10]After the adjournment, before starting the evidence, Counsel indicated that a revised list of issues had been agreed, with the Claimant withdrawing certain complaints. A copy was emailed later in the day.

[11]The Tribunal explained that in the first instance, it would decide liability only during the days allocated to this hearing, due to the number of remaining issues and the amount of evidence.

[12]After the close of the evidence, prior to submissions, Counsel indicated that the issues had been further trimmed. A re-amended list of issues was emailed to the Tribunal on 26 June 2025.

[13]The remaining complaints for determination are identified fully in the reamended list of issues attached to these Reasons at Appendix A.

Evidence

[14]There was a file of documents prepared by the First Respondent. The Tribunal found that this was unnecessarily long and contained documents of limited if any relevance. Some additions were made to the file during the hearing.

[15]The Tribunal read the following witness statements and heard oral evidence from those witnesses: 15.1. The Claimant; 15.2. Emma Norman Senior Project Manager; 15.3. Jonathan Cooper (Programme Delivery Manager); 15.4. Andrew Hashemi (Programme Delivery Manager); 15.5. Catherine Latham (Head of Programme) In addition, the Tribunal read a statement from Anna Kwiatkowska (Human Resources Business Partner), who did not attend the hearing. The Claimant did not wish to cross-examine either Ms. Latham or Ms. Kwiatkowska. 3 of 52

Findings of Fact

[16]The Claimant was recruited as a Project Manager (“PM”) for the Four Lines Modernisation (“4LM”) Programme, within the “Railway Configuration State” team. He was subject to 6 month probation period.

[17]The 4LM Programme is directed to modernising the four oldest underground lines, including planning and implementing replacements, new technology and new infrastructure such as track and signalling. It is a multibillion pound programme.

[18]Previously, the Claimant had been Scheme Project Manager within Network Rail, which we inferred was similar to an Assistant PM position in TFL.

[19]Ms. Norman was the Claimant’s line manager when he was recruited. She was responsible for delivery of signalling upgrades across certain areas of the Metropolitan and District Lines. Her line manager was Jonathan Cooper.

[20]The PMs in 4LM lead a matrix delivery team of different disciplines, for the specific Signalling Migration Areas they are responsible for.

[21]The Claimant’s role was to lead an internal matrix team and to manage the delivery of Signalling System Upgrade for specific areas of the District and Metropolitan lines. The role required leadership, and involved control of time and control of costs. In that sense, some of the basic tasks, such as control of time and cost, were the same or similar to the Scheme Project Manager role he had held previously. The project on which he worked also had some interface with Network Rail assets.

[22]In the role, the Claimant worked with both internal and external stakeholders. The role involved site visits, every few months, because part of the role involved management of safety and environmental aspects. Ms. Norman’s statement (paras 14 – 18) gave a detailed account of PM duties and the Claimant’s role in particular. The Tribunal accepted both her written and oral evidence about the scope of his role, which was corroborated by the evidence of Mr. Cooper and the Job Specification (added to the bundle on the second day).

[23]The Claimant was recruited as a PM, not as a trainee or as someone who required TFL to provide him more experience in an Assistant PM role before he could perform the PM role. The 4ML team were seeking someone with Network Rail experience, who would have transferrable knowledge. The TFL Pathway process in terms of framework was built on the Network Rail Group process. The forms used by TFL came from the Pathway system, with information (such as terms of reference for meetings) on a Sharepoint site, with the aim of allow PMs and others to be able to move around the business and get up to speed as quickly as possible.

[24]As PM, the Claimant could manage his own diary and had a relatively high degree of flexibility in respect of timings and exact working hours. He could re-arrange meetings that he was responsible for setting up, or send his 4 of 52 apologies if he could not attend other meetings. Policies of TFL

[25]The First Respondent had a written “Attendance at Work Policy and Procedure”, which applied to all employees. The Procedure contained a series of triggers for action and stages. For example, 2 or more days of sickness absence in a 13 week period was considered unsatisfactory: see p.147.

[26]Also, the First Respondent had a Probation Policy, to which the witnesses referred.

[27]The Tribunal found that Ms Norman was a relatively inexperienced manager who commenced in the SPM role three weeks before the Claimant commenced in his role. She had managed one or more starter employees but never had to refer to the Probation Policy before.

[28]The Claimant’s case was that there was a requirement for all employees to perform to a certain standard. The Tribunal found that there was such a requirement, which was to perform with reasonable competence in respect of tasks within the job specification for the role for which they were employed.

[29]Insofar as the Claimant alleged the existence of certain other PCPs, identified at issue 6.1, the Tribunal accepted the evidence of the Respondent’s witnesses and found as a fact that they did not exist, for reasons set out below. Disability

[30]It is not disputed that, at the relevant times, the Claimant had the following impairments for the purpose of the definition of disability within s.6 EQA:  fibromyalgia (chronic fatigue syndrome), bronchiectasis, and asthma, as well as a history of pneumonia which has permanently scarred his lungs,  Long COVID;  Meniere’s disease.

[31]By the agreed list of issues, the Respondents admitted that the Claimant was a disabled person because of the cumulative substantial long-term adverse effect of the impairments of fibromyalgia, bronchiectasis, asthma and history of pneumonia with permanent lung scarring. Actual or constructive knowledge of these impairments was not admitted.

[32]The Respondents admitted that the Claimant was a disabled person because he had Long Covid and because he had Meniere’s disease, each of which had a long-term, substantial adverse effect on his abilities. It was also admitted that the Respondents had knowledge of both of these impairments at the relevant times.

[33]It was not admitted that the Claimant was a disabled person due to 5 of 52 stress, anxiety or depression or that the Respondent had the required knowledge of these conditions at the relevant time.

[34]The Claimant had completed an impact statement (at p.100ff) dated 28 February 2024. He was not cross-examined on this statement. Knowledge of fibromyalgia, bronchiectasis, asthma, and history of pneumonia

[35]Ms Norman sent a welcome email to the Claimant on 22 November 2022, explaining the usual working arrangements were 2-3 days in the office and the rest from home. She invited him to the office and had a meeting with the Claimant on the first day of his role.

[36]The Claimant responded with an email at p.164, which included “I have some health issues at the moment which I was planning to discuss with you in person on Monday ...”.

[37]The Claimant’s evidence was that at his first meeting with Ms. Norman on 28 November 2022, he informed her that he had all of the above impairments and vertigo attacks, as well as Long Covid.

[38]Ms. Norman accepted that she had received this email and that they had discussed Long Covid at their first meeting on 28 November. However, she stated that he only mentioned Long Covid at that meeting, and she had no recollection of him referring to any impairment apart from Long Covid.

[39]At that meeting, the Claimant explained that he had Long Covid, and said that he got tired, so he would only be able to attend the office for a maximum of 2-3 days per week. Ms Norman responded this was fine and it was agreed to monitor how he was and to adjust arrangements if required.

[40]There were no notes of this meeting, which was an informal introduction on a day on which the Claimant was meeting his manager for the first time and other members of the team.

[41]On balance, the Tribunal preferred the evidence of Ms. Norman about what was discussed at this meeting, for several reasons.

[42]The Tribunal found Ms. Norman was a reliable witness on this issue, with a good recollection of events which was corroborated by the contemporaneous documents. Her evidence was that she did not find out about his bronchiectasis and asthma until after he had been absent with Covid19 between 16 and 18 January 2023, when he mentioned these at the first return to work meeting on 19 January 2023 (see p.167-168 note of interview). In oral evidence, Ms Norman accepted that the reference in that document to bronchitis should have been a reference to bronchiectasis. She disputed that fibromyalgia was mentioned; because had it been, she would have recorded it. The Tribunal accepted this evidence as being more likely than that of the Claimant.

[43]In contrast to Ms. Norman’s evidence, the Claimant’s evidence was not consistent with the documentary evidence. For example, his Grounds of Claim at paragraph 7 state that on 28 November 2022, he told Ms. Norman of his Long 6 of 52 Covid and fibromyalgia. There is no mention of him informing her of the other conditions alleged in his witness statement.

[44]Furthermore, his impact statement at paragraph 60 states that he first contracted Covid 19 in March 2022 (although it then refers at paragraph 61 to the effects of it from 28 November 2021, which is inconsistent with his earlier evidence). At paragraph 66, he states that he saw a consultant respiratory physician at the Asthma Clinic at Guys Hospital on 18 November 2022, and he was referred to the Long Covid Clinic because of profound fatigue, exhaustion and breathlessness. Therefore, the Tribunal found that the reference in his email to “some health issues at the moment” was more likely to be a reference to Long Covid and its symptoms than any of the other impairments listed.

[45]The Tribunal found that if the Claimant mentioned all the impairments referred to in his witness statement at the meeting on 28 November 2022, they would have been recorded, at the latest, in the Return to Work interview record on 19 January 2023, or in the first Occupational Health referral made by Ms Norman. Stress, anxiety and depression

[46]The impact statement, at paragraph 97, states that the Claimant had stress and anxiety from 23 June 2023, and depression from 24 July 2023. The Claimant was suffering from stress, anxiety and depression at the date of that statement. His evidence was that he expected that it would continue until the main cause of his anxiety, which was work-related matters relating to the Respondents, had been relieved.

[47]In addition, the Claimant’s witness statement gave some further evidence of the adverse effect of the impairments listed in it. In respect of stress and anxiety, at paragraph 111 to 113, the Claimant gave details of the adverse effects produced, including that he had extreme anxiety and depressive thoughts. He had panic attacks between 23 June 2023 and around July 2024. He was not challenged in cross-examination on any of his evidence about the effects of his impairments. The Tribunal found that the effects of the stress and anxiety were adverse and more than minor or trivial over that 12-13 month period. 1. The first referral to Occupational Health & reasonable adjustments

[48]On her return to work in January 2023, Mr. Cooper explained to Ms Norman that the Claimant found coming into the office tiring due to Long Covid and that this was affecting his work.

[49]At a one-to-one meeting in January 2023, the Claimant confirmed to Ms Norman that he was finding coming into the office tiring. Ms Norman accepted this the Claimant, agreed that he could work from home for 4 days per week, and made a referral to Occupational Health.

[50]The Claimant was assessed by an Occupational Health doctor on 7 February 2023. Also on that date, Ms Norman met the Claimant and a Safety 7 of 52 Health and Environment (“SHE”) Business Partner, Ms. Huntley, in order to carry out a Workplace Risk Assessment (p177). the Claimant explained what had been discussed and recommended in his Occupational Health appointment and these were used to form the framework of the risk assessment.

[51]On 8 February, TFL’s management tool (“SAP”) flagged to Ms Norman that the Claimant’s sickness absence had hit a trigger in the Attendance at Work Procedure (p.140). Ms Norman took no action despite the prompt because he had had only two further days of absence.

[52]The Occupational Health advice was received by Ms Norman on 9 February: see p.173-175. The advice deals solely with the adverse effects of Long Covid. It makes no mention of his other impairments referred to above. The recommendations by Occupational Health are set out at paragraph 41 of Ms Norman’s statement and included that TFL should continue to accommodate him working remotely from home 4 days per week.

[53]The Claimant’s case was that only lip service was paid to the adjustments proposed, and that they were made on paper only. Ms Norman’s evidence was that the adjustments were made. On this dispute, the Tribunal preferred Ms Norman’s evidence for several reasons. Firstly, there was no complaint by the Claimant at the time that any of these adjustments were not put in place. Secondly, the Occupational Health advice stated that the Claimant was managing with the adjustments in place, which supported Ms Norman’s evidence that adjustments were made for the Claimant. Thirdly, Ms Norman had the benefit of advice from Employee Relations; it was unlikely that this would have been to ignore the Occupational Health advice.

[54]The Tribunal found that the Claimant’s evidence was unreliable on the issue as to whether reasonable adjustments were made. For example, although site visits were part of his duties, the Occupational Health advice was that it was not advisable for him to attend site; and an adjustment was made so that he was excused from them. However, he argued in cross-examination that he was still asked to go. However, the contemporaneous emails (such as p185- 186) showed that he could carry out his safety engagement duties by telephone. There is some evidence that he was invited to some meetings on site as part of an invitation sent to all of Ms Norman’s team, but not that he was directed to attend. For example, the invitation to a meeting on site on 6 June 2023 was part of a special initiative (“LEGO”); and he was not required to attend in person.

[55]In cross-examination, the Claimant said that it did not “feel” that he was excused from site visits; and in answer to a question from Judge Ross stated that being unable to go on site visits was one reason he was dismissed. The Tribunal found that there was no evidence to support this allegation; and that his evidence indicated that his perception of events was not in fact what had happened.

[56]The Claimant also alleged that some meetings were arranged at or after 4.30pm; but the Tribunal considered that there was no reason why he could not attend such meetings by Teams from home, because, ultimately, he had control of his diary. 8 of 52 Occupational Health advice, Workplace risk assessment and adjustments

[57]As a result of his sickness absence from 16-18 January 2023, Ms Norman referred the Claimant to Occupational Health for advice on how best to support this employee with symptoms of Long Covid and on any adjustments that may be needed: see paragraph 1 of the Occupational Health report.

[58]The Tribunal preferred Ms Norman’s evidence on when the Claimant’s attendance in the office was adjusted. Ms Norman had agreed with the Claimant in January 2023, when he returned from the Covid 19 absence, that he could work four days at home and one day in the office. This is evidenced by the note of his consultation on 7 February with Occupational Health: see p.173.

[59]A Workplace Risk Assessment was carried out on 7 February 2023 at a meeting with the Claimant, Ms Norman and an SHE Business Partner. The adjustments suggested to be made to the Claimant’s working arrangements, discussed with the Occupational Health doctor earlier that day, were relayed and incorporated into the WRA.

[60]The report from Occupational Health was received by Ms Norman on 9 February. It found that the Claimant was fit to work with adjustments, likely to be temporary but requiring review in line with his recovery from symptoms of Long Covid. The adjustments proposed were as follows:a. Remote working 4 days per week, with 1 day in the office;

b. To be excused from site visits;

c. On the days when the Claimant attends the office, it would be helpful for him to have flexibility with his finish times, so he could leave before rush hour, to get a seat on the train;

d. To facilitate regular breaks throughout the day;

e. To space out meetings where possible;

f. Regular meetings with management “to continue to offer support”

[61]The opinion part of the Occupational Health report makes no mention of adjustments being recommended for any other impairment.

[62]The Workplace Risk Assessment was kept under review. It was amended in May 2023 and recorded that the Claimant had been diagnosed with Menieres Disease and that he had vertigo attacks. Further adjustments and steps to assist him were recorded.

[63]Although the Claimant’s evidence was that the adjustments required were never implemented, but were made only on paper, the Tribunal preferred all the detailed evidence of Ms. Norman that the recommended adjustments were implemented. In particular, the Tribunal accepted her evidence in paragraphs 41 – 49 of her witness statement, showing all the steps taken by way of adjustments to the Claimant’s role. The documentary evidence corroborated her account. In contrast, there was no documentary evidence to support the Claimant’s claim in this respect. 9 of 52

[64]Moreover, the Tribunal found that the Claimant could manage his own diary. He could arrange this so that he could leave the office early, or arrange meetings at times which were suitable for him to attend; where it was not possible to attend, there was no compulsion for him to attend. The Claimant’s Performance during his Probation Period

[65]The expectation for a PM within TFL is that they can work independently with limited direction. This is necessary because they need to lead their matrix team and move the project forward.

[66]Fairly early on in his probation period, Ms Norman became concerned that the Claimant was not performing to the standard required in his role as PM. Ms Norman had weekly one- to-one meetings with the Claimant, in which she provided informal coaching and feedback, and raised areas for improvement. Ms Norman understood that the Claimant was new to the role and to TFL, and that, at first, she would need to guide him quite heavily and sit in on meetings that he was leading. However, it became clear to Ms Norman over the first few months in his role that the Claimant was not able to take the required independent and autonomous lead on his projects. In particular, the Tribunal found the following examples of this were proved by Ms Norman’s evidence.

[67]Ms Norman was concerned that the Claimant was not taking the lead in managing risk at risk review meetings. He arranged internal meetings every 4 weeks, but Ms Norman found that he stayed quiet on the call and relied on Ms Norman or others to give updates or raise risks and opportunities. Ms Norman accepted that the Claimant may listen for the first month, but 3 – 4 months into his probation, he should have been leading the team, and that he relied on her contribution at these meetings to decide the next steps.

[68]The Claimant appeared to lack understanding of how to manage commercial issues and protect TFL’s interests when dealing with contractors. Ms Norman found that she had to sit in to ensure next steps were set, to protect costs and overall progress.

[69]The Claimant did not take a proactive lead in readiness planning meetings, prior to a system test closure on 4-5 February 2023. He did not give the meetings direction and had not prepared well.

[70]On 7 February, the Claimant was due to present a 4 weekly end of period update to PDM and other stakeholders (known as a “PPR”). Due to a vertigo episode, the Claimant was advised by Ms Norman to take the rest of 7 February 2023 off. Ms Norman then sought to prepare and deliver the update for him. However, she found the quality of the updates in the slides were poor and there were no details about the actions or how things were being progressed. She considered it was obvious that more detail was required; and she considered monthly reporting was a standard action for a PM wherever they worked. Ms Norman’s evidence was corroborated by documents; for example, at p.509, there are detailed slides prepared by other PMs. Moreover, in crossexamination, the Claimant admitted that there should have been more detail in 10 of 52 his slides concerning the issues, risk and decisions, because the contracts concerned very large sums of money; and he accepted that there was a Sharepoint site that he could access remotely to see other examples. Although the Claimant stated that this was the first one he had done at TFL and had had no guidance, the Tribunal preferred the evidence of Ms Norman that it was a task that any PM should have known, and that the Claimant was in a position to look at previous examples both presented by Ms Norman and other PMs. We accepted the oral evidence of Ms Norman that PPR meetings were standard across Network Rail and the industry.

[71]The Claimant appeared unable to know how to do at least some basic tasks for a PM, such as failing to take adequate notes of meetings, which identify roles, actions and the time for compliance: see, for example, p.215.

[72]The Claimant did not appreciate that his duties included communication with contractors. For example, in terms of access for Thales, he failed to provide contact details for 13 March 2023 in respect of access, despite having two weeks to do so, meaning work could not be done on that date. In crossexamination, he said that he had not realised that it was his responsibility nor the importance of failing to provide contact details. He also stated that this was not critical, before accepting that it had cost TFL £600. This lack of communication was not a one-off event, and his response tended to demonstrate that the Claimant did not accept responsibility for his failings.

[73]From 26 December 2022 until 16 January 2023, Ms. Norman was on annual leave. In her absence, Ms Norman arranged for the Claimant to be supported by another SPM. When she returned to work, both the SPM and Mr. Cooper raised concerns with her verbally that the Claimant was not being proactive or driving forward the planning for the system test closure. The documentary evidence tends to support Ms Norman’s account of events: see, for example, p.166 email 4 January 2023 from the SPM, which is intended to support the Claimant to take the correct steps.

[74]The Claimant disputed in oral and written evidence that his performance was a concern. For example, he stated that he could not understand how TFL did a safety letter after only some weeks in the role. However, the Tribunal would have expected someone in a PM role to have a good idea of how to do such work, and to be proactive in finding out the precise form if necessary. For example, there were other PMs and, from the evidence of Ms Norman and Mr. Cooper, there were bound to have been previous examples available to him. There was, for instance, a Sharepoint site.

[75]At one-to-one meetings with the Claimant in January and February 2023, Ms Norman stated that she raised both his health concerns and his work performance. Her evidence was that he accepted that he was not picking up the role quickly. The Claimant’s evidence disputed that his performance was ever raised at these meetings, but he did accept that Ms Norman had provided feedback about where things were going well or not well. The Tribunal preferred the evidence of Ms Norman that performance was raised at those meetings, although not by use of the express words “performance” or “concerns about performance”. The Tribunal found that the Claimant lacked the awareness that 11 of 52 Ms Norman was raising performance concerns and that a more experienced manager was likely to have been more direct and explicit with him during these meetings.

[76]Ms Norman did provide coaching and support for the Claimant. For example, she arranged a one-to-one session so that a member of the Commercial team could run through the Thales contract with him and provide him with support for estimating activity. March 2023 and the second Occupational Health referral

[77]The Claimant had a further vertigo attack on 1 March. Ms Norman held a RTW meeting on 2 March 2023, and referred the Claimant to Occupational Health for advice given the vertigo attacks. The referral to Occupational Health (p182) corroborated Ms Norman’s evidence that she wanted advice in order to see if any steps could be taken to prevent future sickness absence. The Tribunal was satisfied that Ms Norman was entitled to ask this question; after all, she was the Claimant’s manager and wanted to manage his sickness absence properly, which required her to consider steps which might reduce his absence.

[78]On 6 March 2023, the Claimant and Ms Norman were sent a copy of the Workplace Risk Assessment. the Claimant indicated, in answer to a question, that he was happy with the adjustments shown, and he added in his vertigo. Again, this evidence corroborates the evidence of Ms Norman that the adjustments were made and the Claimant was content with them at the time.

[79]The Claimant had the second consultation with Occupational Health on 24 March 2023. The advice is at p.220 -223. This makes it clear that the Claimant did not complain about the earlier advice not being followed; and makes it clear that the Claimant accepted that the proposed adjustments were made. In respect of the Meniere’s disease, the advice was that the attacks were unpredictable in nature and treatment may reduce or prevent the attacks. The Occupational Health advice proposed two further adjustments: flexibility to attend medical appointments; and that the effect of this condition should be taken into account when considering his sickness absence levels, and that allowing a certain degree of absence or reduced productivity may be considered a reasonable adjustment (and how much absence could be tolerated was a matter for management and HR to determine, taking into account the Equality Act and business needs).

[80]The Tribunal found that the proposed adjustments were accepted by Ms Norman and TFL; there was no evidence that they were disputed or not observed. Ms Norman discussed the recommendations with the Claimant; it was agreed that the risk assessment remained valid. Moreover, following receipt of this advice, Ms Norman added the Claimant to the list of employees who could call TFL for an unscheduled taxi for health reasons. There would have been no need to make this adjustment unless Ms Norman had accepted the Occupational Health advice about the potential for unpredictable future vertigo attacks and accepted that further absences may well happen. 12 of 52

[81]Separate to the Occupational Health referral, on 15 March 2023, the Claimant had a medical appointment for an endoscopy. He booked himself out 1130 until 1500 in his Outlook appointment sent to Ms Norman, who asked him if he would be alright to return to work. He said that he would. She asked him to book into SAP, the online management tool.

[82]Ms Norman accepted the Claimant was entitled to paid time off for medical appointments, in line with clause 1.8 of the procedure. In evidence, she also accepted that she may have clicked her approval on the SAP system for Special Leave, but because she had understood he was due back at work at 1500 from the Outlook appointment. However, the Claimant was not back online after 1500 as she expected.

[83]Ms Norman’s evidence was that she asked the Claimant to make up the extra time (2 hours), which he agreed to do. Ms Norman alleged that he made a verbal apology.

[84]The Tribunal accepted Ms Norman’s evidence about this incident, which we found to be more reliable than that of the Claimant. The screenshots relied upon by the Claimant do not record the verbal apology; but this is not surprising. The Claimant dealt with this incident very shortly in his witness statement, in contrast to the detail provided by Ms Norman; and Ms Norman demonstrated throughout the evidence that she was generally reliable in recalling and noting events. In this case, on accepting the Claimant’s account that he had been too unwell to return to work, she changed how this leave was recorded to “medical leave”.

[85]The Tribunal found this incident provided no evidence that there was a PCP that there was a requirement not to take any special leave or sick leave during probationary period. On the contrary, the evidence of Ms Norman together with the Attendance at Work policy and the other evidence provided overwhelming evidence that there was no such PCP. Ms Norman had specifically permitted him time off to attend the appointment; her complaint had been that he did not attend when he told her that he would. The Claimant accepted in cross-examination that Ms Norman had expected him to return to work on that day.

[86]The Tribunal preferred the evidence of Ms Norman that the Claimant did not have a higher workload than other PMs in the team. This was because there was no reason for either Respondent to have done this, all PMs were likely to have same or very similar workload, and a specific PM role had been recruited for. The Tribunal accepted Ms Norman’s evidence that not all SMAs carried the same workload and other PMs had other duties; and the Claimant was not managing the CID workstream, albeit that there was an interface with this work. The Tribunal found it unlikely that the Claimant was in any position to assess who had more work, given that he worked mainly remotely. In any event, the Claimant suffered no detriment because Ms Norman acted when the Claimant informed her that he was struggling with the level of work, by allowing him to hand over some work to another PM. Decision to extend probation period 13 of 52

[87]On 2 March 2023, Ms Norman sought advice from Ms. Paul of Employee Relations, about managing the Claimant’s sickness absence. Ms Norman explained to Ms. Paul that the absence of 5 days was not significant at that stage; but Ms. Paul considered that it was and also asked how the Claimant was performing. Ms. Paul advised that Ms Norman’s performance concerns and absence levels needed to be flagged in a formal Probation Review Meeting.

[88]The Probation policy was contained in the file of documents. At p.393, there are guidelines for managing probation. Paragraph 6.2 of the policy permits management to extend the probation period. In addition, the probation review process permits the manager to consider performance, conduct and attendance: see paragraph 5.

[89]On 21 March 2023, Ms Norman emailed the Claimant for a copy of his contract of employment, because she had to check his Probation end date and she was unable to access it on SAP.

[90]Ms Norman had previously asked Employee Relations (on 16 March). Employee Relations had provided no response and Ms Norman was unable to download a copy. As a manager who wanted to get on with tasks, whom we found liked to be on top of her duties, she could not follow the probation process without it, which is why she asked the Claimant.

[91]The Tribunal considered that this was a step which was reasonable for Ms Norman to take, given she had been unable to get a copy. There was no underlying motivation for this request. The Claimant reacted badly, asking if Ms Norman was trying to cancel his contract, to which Ms Norman responded that this was not the case, but that probation reviews needed to be scheduled in. She explained the probation review process, and that a first probation review would be held and that the potential outcomes at the end of the period were pass, fail or extension if there were remaining concerns.

[92]There was a dispute of fact about what was said at this meeting, on about 22 March 2023. The Tribunal preferred the evidence of Ms Norman. We found that her evidence was measured and convincing about this incident. Ms Norman did not state that his probation period would be extended solely due to the Claimant’s sickness absence. However, we found that, quite properly, Ms Norman raised that his recent absences were flagging on the SAP system as something that had to be managed, and that Employee Relations advice was that it was reasonable to raise it at a probation review.

[93]Ms Norman had not, at this point, received the second Occupational Health advice (which was that the Meniere’s/vertigo was likely to amount to a disability). She did not schedule a probation review immediately because she wanted to await the second Occupational Health advice, which is what Ms. Paul of Employee Relations had advised.

[94]All employees had an end of year performance review, referred to as “My Journey”. It was an online system, with sections relating to “performance review” and to “Readiness”. This was completed in a meeting with the Claimant 14 of 52 on 23 March 2023. The My Journey review ends with one of four ratings: see p.422. Mr. Hashemi sent p.422 to the Claimant on the 13 June 2023.

[95]The review completed by Ms Norman recorded that the Claimant was “Achieving”. The Claimant relied on this as evidence that there was no significant problem with his performance in his role, and that Ms Norman did not have concerns about his performance.

[96]The Tribunal did not agree with the Claimant’s conclusion for several reasons.

[97]First, the Tribunal preferred Ms Norman’s account of that meeting, and that she explained to the Claimant that his performance was between “Being Supported” (the second lowest rating) and “Achieving”. Corroboration for her evidence can be inferred from the last paragraph on p.313; the inference is that he is not in fact achieving in his role at that stage, but she is giving him an “achieving rating” with the positive hope that he will later achieve. Ms Norman explained to him that he had had a quite significant level of support to reach objectives.

[98]Secondly, Ms Norman went on to award him “achieving” because she displayed a positive outlook generally in her role and management, evidenced by such things as the correspondence sent to him on 24 November 2022 (p.164 - offering to discuss any support required for him or his health), the adjustments implemented for him, and steps taken to coach him. Her positive approach can also be seen in positive comments in this review, about the Claimant reaching objectives, even though he had had considerable support to do so.

[99]Thirdly, it is notable that the review and the Readiness document (completed on or about 23 March 2023) provide significant corroboration for Ms Norman’s case that the Claimant’s performance was not at the level required for a PM. For example, the “overall comments” section recorded that the Claimant still needed support in some areas and that he needed to become more independent in his role: see p313-314. Furthermore, in the Readiness review at the summary section, p.434, although expressed in a non-judgmental way, Ms Norman records: “Having taken the step up from an APM equivalent to a PM position, Michael's focus needs to be strengthening his skills across the core PM processes and responsibilities including: team leadership programme management cost management risk opportunity management health safety management Pathway project management methodology”

[100]These areas were the same areas that Ms Norman had raised with the Claimant in ongoing one-to-one meetings, and the same improvement areas identified by her later in his performance review. The Tribunal accepted Ms Norman’s evidence that her concerns about his performance grew over time, which we found to be likely, where an employee is not performing in key areas. 15 of 52

[101]Fourthly, in terms of the traffic light rating system, the Claimant was given an “Achieving” rating, which was only two out of four “lights” on the rating system. The Tribunal inferred from all the evidence, and from the fact that this was a new system in 2023, that this was a fairly standard rating for probationary employees, who would only be a few months into their role. For example, Ms Norman explained in evidence that she kept in mind his length of service in giving this rating.

[102]Fifthly, the Tribunal found that Ms Norman had been taken aback by the Claimant’s response to her request for his contract. This was likely to have played on her mind at the point of this review, which was held only 2 days later, and she was likely not to have wanted to upset or offend the Claimant by rating him as “Being Supported”.

[103]Ms Norman did not orally inform the Claimant to reduce his disability related absence at this meeting. The Tribunal preferred her account of events, referred to at paragraph 99 of her statement. The Claimant interpreted the last sentence of the Overall Comments section by Emma Norman (p.314) as a direction or an expectation that he should reduce his disability-related sickness absence. The Tribunal preferred Ms Norman’s interpretation of what that sentence meant, which accorded with our reading of it; it meant that Occupational Health advice had proposed adjustments that were put in place; and the aim of those adjustments was to support the Claimant and to reduce the number of absences. The Tribunal concluded that this could not amount to any detriment; on the contrary, it was recording reasonable and supportive management by Ms Norman. The interpretation put on this sentence by the Claimant tended to show that he had a reduced ability to be objective when interpreting documents retrospectively, because of his strongly held perception that the performance management he was later subject to was unwarranted.

[104]The Claimant’s comments in the My Journey review process led to the conclusion that he was confident about his performance, which he stated in cross-examination. However, he appeared to lack an appreciation of the degree to which he had not fulfilled the requirements of the role. He lacked insight into the gulf between how he performed in respect of certain key duties and the level that he should have been performing at as a PM in his role.

[105]In the view of the Tribunal, it was unhelpful for both the Claimant and TFL for there to be two parallel processes: the My Journey review and the Probation Review, which are different processes and have different purposes. As Mr. Cooper explained, the My Journey objectives were objectives of the business, which did not encompass all aspects of the PM role, in which a PM needed to perform on scope, in time and within budget. There was a qualitative difference between the two processes.

[106]Having considered Ms. Latham’s evidence (in which she stated that she might have raised performance concerns formally at an earlier point), the Tribunal found that a more experienced or less positive manager than Ms Norman was likely to have been more direct or formal by indicating to the Claimant prior to the My Journey review, in one-to-one meetings or at an earlier 16 of 52 probation review, that his performance was short of what was acceptable to pass his probation period and that improvement was required.

[107]In response to the Claimant’s case that, if there were serious performance concerns, they would have been raised sooner than week 20 of his probation (and the policy provided for a probation review meeting after 12 weeks), the Tribunal accepted the evidence of Ms Norman that her concerns about his performance increased over time, but also that it was unfortunate that she did not follow the guidelines in the policy to hold a probation review meeting at or about 12 weeks into the probation. This omission was not deliberate; it was likely that it was caused by her inexperience as a manager.

[108]Insofar as the Claimant’s evidence was that he had no idea that his performance was concerning his managers when he was invited to a Probation Review, this was likely to be result of his lack of insight and an inability to take on board and act on the constructive feedback that he had received.

[109]The Tribunal found that, as a result of his lack of insight and awareness, the Claimant had been too sensitive to feedback and unable to accept what he perceived as unfair assessment of his work or that he needed to learn or develop competencies.

[110]Both before and after the My Journey Review, colleagues raised concerns about his performance with Ms Norman.

[111]At or around the time of the My Journey Review, or between that and the probation review meeting, concerns were raised by the Principal Project Engineer, Mr. Kirk (who worked alongside the PM). Mr. Kirk called Ms Norman. His concerns about the Claimant were of lack of leadership and about the workstream, which was not progressing as required. Although this was disputed by the Claimant, the Tribunal preferred the direct evidence of Ms Norman, who explained that she raised with the Claimant in a one-to-one that he needed to improve how to run a meeting, but did not refer to Mr. Kirk.

[112]In addition, after the My Journey review, the SHE Manager, Ms. Huntley, objected that the Claimant was not agreeing various SHE documents necessary, leaving her to take this forward, as well as giving her the task of producing a Stakeholder Management Plan, which was within the PM’s remit. Ms Norman raised in a one-to-one that the Claimant should not ask the SHE manager to do this task.

[113]On top of this, complaints were received from the Project Controls Manager, about lack of detail and justification of a costs estimate, and the Testing and Commissioning team leader had concerns that the Claimant was not taking ownership of readiness and planning for the next system testing closure.

[114]Furthermore, Ms Norman herself had concerns about his performance. In particular, he had prepared a Change Notice and asked her to present this to stakeholders because he was on leave. Ms Norman had supported him to prepare these on previous occasions, but she found his Change Notice was not 17 of 52 completed to a standard that she could present; parts of the form were empty and budget holders had not approved funds requested (email of 6 April 2023 refers p.224). In cross-examination, the Claimant explained that he did not realise that he had to put in justification of the costs estimate and that this was his first time he had done such a Notice; but this tends to corroborate the evidence of Ms Norman rather than support the Claimant’s case, not least because he had been supported by Ms Norman to produce two such Notices prior to this and the Claimant accepted that he may have done a draft one before and had seen examples on Sharepoint.

[115]Ms Norman also had direct knowledge that the Claimant had not progressed a Project Execution Plan relating to Mantles Wood Crossing. At first, this was not critical; but it became so, because all delivery arrangements for the project were required (such as budgets, contractors, milestones etc), and the Claimant did not progress this task. The Tribunal accepted that this was a core document for a PM to produce.

[116]On 27 March 2023, Ms Norman received the second Occupational Health report (p.220ff) following the Claimant’s vertigo attacks and diagnosis of Menieres Disease. The contents of the report are outlined in the witness statements of Ms Norman and the Claimant. Occupational Health advised that it was likely to be a reasonable adjustment to tolerate a certain degree of increased absence as a result of this underlying condition, depending on what can reasonably be tolerated by the business.

[117]Ms Norman accepted the Occupational Health advice that a reasonable adjustment would be to tolerate a higher than usual amount of absence, due to the likely future vertigo attacks, evidenced by her email on 31 March 2023. The Tribunal did not find that this email was performative, designed to conceal the fact that sickness absence was to be used to terminate the Claimant’s employment.

[118]On 12 April, Ms Norman met Employee Relations again and discussed her concerns about the Claimant’s performance. Employee Relations advised her to address them formally in a Probation Review Meeting.

[119]As a result, in a Teams meeting on 14 April, Ms Norman explained that she would arrange a performance review meeting for when she returned from leave. She explained that she had received feedback from others of areas where he was required to improve. Ms Norman accepted in evidence that this was likely to have been the first time that he had been told that his performance was below the standard required for a PM and let him know that he was at risk of failing his probation. The Tribunal drew no inference that this was because of his sickness absence, in view of the weight of the evidence that this arose from genuine performance concerns.

[120]This Teams meeting took place for purely practical reasons, and not to prevent the Claimant asking questions of Ms Norman when she was going on leave. Ms Norman had been waiting for Employee Relations to advise her. In any event, the Tribunal found that the Claimant could have asked Employee Relations or Mr. Cooper if he needed information during Ms Norman’s absence. 18 of 52

[121]The Claimant was unhappy when told the information in the Teams Meeting. He considered that, although he had received feedback to improve in certain areas, this did not matter, because the term “performance concerns" or similar had not been used. This demonstrated to the Tribunal that the Claimant had a lack of insight into his performance in key parts of the PM role, not least because Ms Norman had raised matters consistently at one-to-one meetings.

[122]On or about 17 April 2023, the Claimant went to see Mr. Cooper in his office about his unhappiness at the probation review meeting. He followed this with a Teams call. The Tribunal preferred the evidence of Mr. Cooper about this date; the Claimant alleged that the probation review was really about his sickness absence. Mr. Cooper explained the probation process should be followed and that TFL probation guidance stated that probation should be reviewed by considering performance, conduct and attendance. At that stage, Mr. Cooper wanted to allow Ms Norman to manage the process to a conclusion, and did not want to get involved. He had spoken to Human Resources already (Ms. Januska) and had been advised that the probation process should be followed, which he hoped would resolve any misunderstanding by the Claimant.

[123]The Claimant interpreted Mr. Cooper’s responses as being dismissive and perceived that he had been told that if he had too many absences, the business would look at whether he was suitable for the role. Again, the Tribunal found that these were retrospective and subjective recollections of conversations. The Tribunal accepted Mr. Cooper’s oral evidence, which was that he had said that if there was a hypothetical employee, with a lot of absence, it was reasonable for this to be considered on the probation review.

[124]By letter sent on 21 April 2023, Ms Norman informed the Claimant that the probation review meeting would be on 25 April.

[125]On 24 April 2023, the Claimant emailed to Ms. Kwiatkowska, a Human Resources Business Partner. TFL has a Human Resources function and an Employee Relations department; Human Resources generally provide more strategic advice to senior management on policy and strategy. In that email, the Claimant stated that he was surprised that he had been invited to a probation review meeting where performance concerns would be discussed, and these were raised because of his disability related absences. Again, the surprise that he expressed in this email demonstrated a lack of insight into, and awareness of, areas where he was not performing to the standard required of a PM. Moreover, there was no evidence that Ms. Kwiatkowska had direct or any contact with Ms Norman in respect of encouraging her to use the probation review process nor Mr. Hashemi (who decided to extend the probation period and performance manage the Claimant), nor Mr. Cooper (who made the decision to dismiss). There was no evidence from which an inference could be drawn that the email to her had led to the act of victimisation relied upon (dismissal); she had only forwarded the email to Employee Relations for their information and then replied to the Claimant and later provided him with a copy of the grievance procedure. In any event, given the facts found by the Tribunal in this set of Reasons, the performance management of the Claimant and the decision to dismiss were warranted given his performance from 28 November 19 of 52 2022. The email of 24 April 2023 did not cause the detriments alleged at Paragraph 4.3 of the List of Issues.

[126]The first probation meeting took place on 25 April 2023. The notes are at p.249-251. Ms Norman went through 5 key areas where she had concerns about his performance, explained at paragraphs 123 – 129 in her witness statement. Ms Norman explained that although his attendance levels had been a concern, it had improved and was not an area of concern, and that adjustments had been put in place. At the meeting, the Claimant accepted adjustments had been made and were working well.

[127]In evidence, the Claimant alleged that Ms Norman had been told by Human Resources to change her approach and focus on performance, and that an email from Human Resources supported this. The Tribunal preferred Ms Norman’s oral evidence that she had been advised by Employee Relations only to take into account performance concerns, because the number of absences had reduced over time and Occupational Health had provided advice on the Claimant’s symptoms of Meniere’s Disease.

[128]Prior to the probation review, Ms Norman had drafted a development plan for discussion, to try to discuss and agree the objectives with the Claimant. Ms Norman aimed to set objectives that were realistic and achievable. The Claimant alleged that these were more minor concerns, but the Tribunal accepted the evidence of Ms Norman, who was unshaken when crossexamined about the plan.

[129]At the review meeting, the Claimant stated that he felt that he was being treated differently because of his health, and that he was there to listen and take notes. He remained silent for most of the review and Ms Norman decided that no constructive discussion about the draft development plan could take place at the meeting. She explained that he could take it away and she would follow up the objectives at one-to-one meetings and schedule a follow-up probation review on 15 May 2023. (the Claimant’s probation period was due to end on 28 May 2023).

[130]The Claimant asked what were the possible outcomes at the end of the probationary period. Ms Norman explained that her goal was for him to achieve stated goals and to pass the probationary period; and she explained also that extension of the probation period and dismissal were possible outcomes.

[131]Ms Norman sent the Claimant a copy of the notes of the meeting and the development plan with the outcome letter of 25 April 2025, which confirmed the date of the next probation review meeting.

[132]In fact, no follow up probation review meeting took place on 15 May 2023 because investigations were taking place in respect of the grievance. As explained by Mr. Cooper in his probation review letter to the Claimant of 26 May 2023, there was an overlap between the issues dealt with in the grievance and the probation review process. Grievance against Ms Norman 20 of 52

[133]On 2 May 2023, the Claimant made a grievance against Ms Norman (pp 267-269). Ms Norman was directed to step away from management of the Claimant.

[134]Mr. Cooper investigated the grievance, interviewing the Claimant and Ms Norman. the Claimant agreed his grievance could be summarised in two parts: first, Ms Norman had been prejudiced against his disability and unreasonably questioned his performance; second, Ms Norman had not followed the probation procedure, reducing the time for improvement to only 12 days, putting him in an unfair position. As an outcome, the Claimant wanted a change of manager and a decision he had passed his probation.

[135]The grievance outcome was provided on 16 May 2023; in short, the grievance was not upheld (see outcome letter at p.295, and p300-301), although Mr. Cooper directed that there would be a change of manager, with Mr. Hashemi appointed to work with the Claimant on the probation process. Mr. Cooper explained in this letter that it may be necessary to extend the probation period to ensure that there was sufficient time for Mr. Hashemi to assess the Claimant’s performance and if necessary allow time for improvements.

[136]The Claimant appealed this decision. The grievance appeal was heard by Ms. Latham on 12 June 2023. The appeal was not upheld.

[137]Mr. Cooper’s decision to extend the probation period was for the reasons that he gave, which, in summary, were performance concerns set out by Ms Norman and other managers and observed by Mr. Cooper himself. This included that he wanted the Claimant to have sufficient further time for a fair review. The decision was not connected to the grievance nor to the email of 24 April 2023. Further probation review meetings

[138]As part of the grievance outcome, Mr. Hashemi was asked to take over managing the probation review process. We found that he was a relatively independent manager: he was in a more senior position to Ms Norman, at same level as Mr. Cooper, working in a different part of the 4LM team and outside the line management structure in which the Claimant and Ms Norman sat. Also, Mr. Hashemi had a lot of relevant experience having worked in TFL project management for many years, and he had direct knowledge of what was required and expected of a PM at TFL.

[139]Mr. Hashemi’s evidence was that he intended to review the Claimant’s performance level and support him as appropriate to make improvements to enable him to pass his probation. The Claimant’s case was that he was being subjected to performance improvement measures and unreasonable objectives because of his disability-related absence earlier in 2023.

[140]Mr. Hashemi prepared a timeline of his involvement with the Claimant, at pp452-453, the contents of which were not challenged in cross-examination. We found that this was an accurate account of events. 21 of 52

[141]On 30 May 2023, Mr. Hashemi met Mr. Cooper to consider a development plan, adopting the first draft by Ms Norman. The draft by Ms Norman had been in accordance with the TFL template; but the aim now was to set the Claimant specific objectives which were more specific and measurable against the PM competencies, so that his performance could be objectively assessed. In the circumstances, the Tribunal found that there was nothing unreasonable or unusual about that approach; indeed, this was an appropriate step for a manager to take on the facts in this case.

[142]On 31 May 2023, Mr. Hashemi met with the Claimant to introduce himself, explain the process, and answer any questions.

[143]The evidence of Mr. Hashemi at paragraph 8 of his witness statement of the steps taken to update the draft development plan were not challenged in cross-examination. Care went into the preparation of the plan, and advice was taken from Employee Relations about managing the probation review process; Employee Relations advised (see email at p.338), amongst other things, to take into account the Claimant’s job specification in managing the probation extension period. The advice was taken. In short, there was nothing to suggest that the plan was other than a genuine attempt to help the Claimant to pass his probation. In cross-examination, Mr. Hashemi explained that the plan was almost “spoon feeding” the Claimant to help him to succeed.

[144]The Tribunal found that the development plan produced (p.382-386) was fair and that the objectives were reasonable and achievable, given the job specification and the competencies necessary in the role of PM at TFL. The Claimant’s complaint in cross-examination appeared to be based on an argument that this was the first time these were seen in writing by him, although he did not dispute that they were within his job specification.

[145]On 8 June 2023, the updated development plan was sent to the Claimant. On 9 June, he emailed his concerns to Mr. Cooper. The Claimant was informed that the objectives and timeframes could be discussed at the meeting later that day, and that reasonable changes would be made.

[146]Mr. Hashemi met the Claimant on 9 June to review the plan. Each objective was discussed and Mr. Hashemi ensured that the Claimant knew the competency or skill being measured. The Tribunal accepted Mr. Hashemi’s evidence about this meeting. Mr. Hashemi’s evidence was not challenged in cross-examination and it was corroborated by the documents and the lack of any email or other correspondence from the Claimant which complained about the meeting.

[147]The Claimant had no objections in the meeting to the plan, save that he requested date changes for two objectives, due to annual leave. These were agreed. In respect of the other objectives, at the time, he did not make any complaint. He was familiar with each workstream because he was working on all the activities detailed in the development plan.

[148]In his oral evidence, the Claimant raised complaints about the plan, 22 of 52 which were not raised at the time. He complained that the objectives were “SMART” and that TFL did not require objectives to be SMART, and that some timescales had been unreasonable.

[149]Again, the Tribunal found that his perception of events at this hearing was not a true reflection of what had occurred. We found that the objectives which were on the plan after this meeting were reasonable in the circumstances; they were part of his regular duties, within his job specification, and they were not special or difficult tasks. The use of time-scales within which he was due to do tasks showed that his performance would be more closely monitored, but this was not a detriment to him and it was a reasonable management step and consistent with Mr. Hashemi’s stated intention of helping him to improve.

[150]At the meeting, Mr. Hashemi provided guidance as to his expectations and the types of evidence that he required the Claimant to provide.

[151]After the meeting, Mr. Hashemi emailed the Claimant with the updated development plan (p401-405), the weekly probation review meeting series, and two documents to add further clarification: PPM Role Families and “Our Competencies”.

[152]Mr. Hashemi had a further probation review meeting with the Claimant on Tuesday 13 June 2023. The Claimant accepted in cross-examination that this was because Mr. Hashemi wanted to keep momentum going and because the Claimant was due to go on annual leave.

[153]The plan was reviewed and the Claimant had provided updates for each item. The evidence of Mr. Hashemi was that the updates provided minimal information. The Tribunal accepted this evidence, because it was corroborated by entries saying “no progress”. In cross-examination, the Claimant accepted that the plan contained “business as usual” duties, and that he should have known what to do.

[154]Mr. Hashemi provided the Claimant with some specific actions for three of his objectives. Mr. Hashemi considered that the advice and direction that he was providing related to quite basic things that a PM should know and that the Claimant should already be doing. He found that the Claimant lacked awareness of how proactive he needed to be but also that he could have demonstrated more effort in working to the required objectives. Although the Claimant’s case was that Mr. Hashemi had treated the Claimant harshly, by allowing in effect only two working days to fill out the plan, the Tribunal preferred the evidence of Mr. Hashemi that it should have taken the Claimant only a very short time to provide detailed information in the plan.

[155]Mr. Hashemi raised with the Claimant that failing to meet the required performance level could result in termination of employment. In the circumstances, the Tribunal found that this a reasonable and fair thing for Mr. Hashemi to do. It did not mean that Mr. Hashemi had given up on the Claimant making the necessary improvements; in fact, Mr. Hashemi felt that the Claimant should have had sufficient understanding of what was required of him by that 23 of 52 stage. In cross-examination, Mr. Hashemi stated that he knew of no other case where three members of a senior leadership team were helping a PM to pass their probation. The Tribunal accepted that evidence.

[156]The Claimant explained to Mr. Hashemi that it had been a relatively short time since the last meeting, and he had been concentrating on his grievance appeal, which had affected his performance. The Claimant became upset and explained that he was struggling with work and the current situation. Mr. Hashemi was concerned and offered the Claimant the opportunity to meet PMs in his team, as a way of getting support and guidance.

[157]The Claimant sent an updated development plan to Mr. Hashemi around 6pm on the same day. Although the Claimant had added actions proposed by Mr. Hashemi, the plan did not show much detail of progress made. Three of the seven objectives showed no progress at all. Four of the objectives did record some progress in high level updates, but not with the level of detail that was required, in that the Claimant had not evidenced the steps he had carried out. For example, the Claimant did not include any links or emails to show the progress. Mr. Hashemi considered that providing the detailed required would have taken the Claimant only a matter of minutes, and that the Claimant appeared to be focussed on his grievance appeal, not his job, despite the gravity of the possible outcome.

[158]In addition to the meetings, Mr. Hashemi had sent the Claimant documents to help him reach the objectives, including guidance notes, competencies, scoring criteria and the description of the level he was currently performing at. The Tribunal found that the Claimant knew from these meetings and assistance that he had to provide evidence that progress was being made to the objectives and also the type of evidence required.

[159]There was due to be a further probation review meeting on 23 June 2023. On that date the Claimant sent to Mr. Hashemi a further version of the plan. It did include more detail; but it did not provide evidence to support the bullet points made. Mr. Hashemi did not consider that this showed significant progress had been made. The Claimant’s case was that it did show such progress. The Tribunal preferred Mr. Hashemi’s evidence, which was direct and detailed, giving explanations which used his experience. The plan indicated some progress had been made, if it was taken on its face; but there was no evidence to support what was stated.

[160]Mr. Hashemi genuinely found that the Claimant was not working at PM level, but at an Assistant PM level. Although he had worked with the Claimant for a very limited period of time, he had had three meetings with him and there had been various versions of the plan produced, and Mr. Hashemi was able to review what he had done against clear objectives.

[161]On 23 June, the Claimant commenced a period of sickness absence due to the anxiety that he was experiencing. The Claimant explained in his oral evidence that he considered the criticisms of his performance to be unjust and he could not accept them. The Claimant alleged that the objectives changed every time he met them. The Tribunal did not accept the Claimant’s perception. 24 of 52 The Tribunal were satisfied on the evidence of Ms Norman, Mr. Cooper and Mr. Hashemi that the objectives remained largely the same and they were all “business as usual” objectives. The stress felt by the Claimant was caused by what he perceived to be adverse treatment by managers. The reaction of the Claimant to the probation review process showed that he lacked the insight that he needed to improve to continue in the role.

[162]On 24 June 2023, having taken advice, Mr. Cooper informed the Claimant that it would be appropriate to pause the probation. This was not done as a sanction, but rather to give the Claimant the opportunity to perform at the expected level. Dismissal

[163]After 23 June, the Claimant did not return to work before the decision to dismiss was made. He provided successive fit notes (pp 878-882).

[164]Mr. Cooper kept in touch with the Claimant every week by telephone. However, the Claimant did not indicate whether or when he was likely to return to work. The Claimant told him that his sickness absence was related to and likely to continue so long as the probation review process was ongoing.

[165]After the Claimant had been absent for 4 weeks, Mr. Cooper decided to proceed with a probation review meeting and a decision on his continued employment. By a letter dated 20 July 2023 (p.470), the Claimant was invited to a probation review meeting on 9 August 2023. Mr. Cooper telephoned the Claimant in advance to let him know that a letter was on its way; the Claimant told him that he had been signed off sick for a further 2 weeks.

[166]Mr. Cooper made the decision to terminate the probation period and dismiss the Claimant on about 20 July 2023, evidenced by the words used in that letter, specifically at p.467, where it is stated that his probation has been unsuccessful. Mr. Cooper had decided that the Claimant could not remain in employment by that date, despite the suggestion in the letter that the Claimant could make submissions at the probation review meeting which would be taken into account.

[167]The fact that the review meeting was scheduled in the letter and that the letter stated that, if the Claimant did not meet an acceptable standard of performance, his employment may be terminated, were statements that may have been part of a template, and which were retained to suggest that the process would allow the Claimant a hearing prior to any decision to dismiss.

[168]In respect of knowledge of the mental impairments relied upon, the Tribunal found that Mr. Cooper could not have known, on 20 July 2023, that the stress and anxiety, and their adverse effect, could well last 12 months in total. This was because there was no medical evidence put before him to suggest this; the fit notes were only for 2 weeks at a time, and provided no evidence that these conditions would last longer. The stress felt by the Claimant was likely to have appeared to Mr. Cooper to be a reaction to the Claimant’s belief that he was being treated unfairly by managers. The Tribunal found as a fact that the 25 of 52 stress felt by the Claimant was likely to be a reaction to perceived unfair treatment. Furthermore, there was no evidence that Mr. Cooper was told of the earlier episode of depression and anxiety between November 2015 and 2017 referred to in the impact statement.

[169]The Claimant did not allege that he was a disabled person due to depression when the decision to dismiss was taken on 20 July 2023, so Mr. Cooper could not have had knowledge that the Claimant was a disabled person arising from that impairment.

[170]In any event, Mr. Cooper was not in any position to know that the depression and any adverse effect of it could well last 12 months; it was only referred to in two fit notes (on 24 July and 2 August 2023), both of which postdate the decision to dismiss the Claimant, and again with no reference to prognosis.

[171]Having carefully considered the evidence and the submissions, the Tribunal drew no inference that Mr. Cooper had decided to dismiss the Claimant because he had brought a grievance against Ms Norman, despite the fact that the grievance was referred to in the letter of 20 July 2023. The reference to the grievance was merely part of the context setting in that letter.

[172]Having made the decision to dismiss, Mr. Cooper then went ahead with the probation review meeting because he considered that it was necessary to move matters to a conclusion as quickly as possible, in a situation where the Claimant was absent from work and where he had told Mr. Cooper that his absence arising from stress and anxiety was related to the probation review process. Mr. Cooper reasonably believed that he would not attend work so long as the review of his performance and probation was required.

[173]Mr. Cooper made the decision to dismiss the Claimant for the following reasons.

[174]Mr. Cooper knew that there were concerns about the performance of the Claimant in the PM role from relatively early on in his probation: see paragraph 13 of his witness statement.

[175]On 25 April 2023, the Claimant’s probation period had been extended because he was not working to the standard required of a PM within TFL.

[176]Mr. Cooper believed that the Claimant had 7 core areas for development, set out at p.467. These were “business as usual” objectives for a PM; there was nothing special or difficult about them. Mr. Cooper believed that the Claimant had even failed to undertake simple tasks, such as setting up meetings.

[177]A further probation meeting took place on 13 June 2023, in which Mr. Hashemi had revised the development plan and proposed a number of actions in areas requiring development. At that meeting, the Claimant had stated that he had been unable to focus on his PM role and the development plan objectives because he had been focussed on his grievance appeal. Mr. Cooper 26 of 52 concluded that this was evidence that the Claimant could not manage several issues concurrently, which a PM was required to do. Mr. Cooper considered that although the evidence from Mr. Hashemi was that he had tried to work with the Claimant to support him, the Claimant had not been proactive and had not been able to achieve some fairly basic objectives. For example, Mr. Hashemi had had to tell the Claimant to telephone someone to make progress on one objective. The expectation was that the Claimant would take the steps of a PM, not avoid engaging with what was required.

[178]The Claimant was signed off with stress and anxiety from 23 June 2023. As a result, the Claimant had not been able to demonstrate he had made any progress towards meeting the objectives set for him in June 2023 by Mr. Hashemi.

[179]Mr. Cooper considered that the Claimant would not return to work unless he was told that he had passed his probation. Mr. Cooper had noted the link between the provision of sick notes after work-related events, in the form of invitations to a further probation review meeting, which the Claimant considered to be adverse for him. This is consistent with what the Claimant told Mr. Cooper after he was absent with stress and anxiety, and with the Claimant’s own evidence that the main contributor was work matters relating to the Respondents. Mr. Cooper believed, given the circumstances, that the Claimant was not someone who could listen to criticism about performance and learn from it.

[180]The Tribunal found as a fact that the Claimant’s sickness absences prior to April 2023 were not any part of the reason for dismissal. As noted by Mr. Cooper, TFL expected and tolerated a level of unexpected absence; and in this case, the reason for the absences had been found to relate to recognised impairments, and the Occupational Health advice had been to disregard disabilty-related absence arising from the Menieres/vertigo. As explained above, Ms Norman did refer the Claimant to Occupational Health as soon as impairments were raised with her, did put in place reasonable adjustments for the Claimant, and did follow the Occupational Health advice; this was not consistent with a manager or employer who did not tolerate or expect a level of sickness absence.

[181]The Claimant alleged that Mr. Cooper did not accept that he was a disabled person, because Mr. Cooper’s grievance decision note at p.484 referred to his “alleged disability”. The Tribunal accepted Mr. Cooper’s explanation, which was that he had received legal advice to include the word “alleged”.

[182]The Respondents’ evidence about the performance of the Claimant as PM was not fabricated. The Tribunal found as a fact that it was not used as an excuse to dismiss the Claimant in his extended probation period.

[183]The Tribunal also found that no part of Mr. Cooper’s decision to dismiss the Claimant was because he had brought a grievance and complained about disability discrimination. Mr. Cooper was not cross-examined about this issue. 27 of 52 Submissions

[184]Counsel prepared written submissions prior to the morning of Friday 27 June. These were exchanged and supplemented by oral submissions. It is neither necessary nor proportionate to repeat those submissions nor to address them all, given our findings of fact on key issues. It is sufficient for the Tribunal to record that each and every submission was taken into account.

Conclusions

[185]Applying the law set out in Appendix B to the findings of fact made, the Tribunal reached the following conclusions on the issues remaining for determination. Given the findings of fact made, the Tribunal did not need to apply the burden of proof provisions within section 136 EQA. Issue 1: Disability

[186]The Tribunal repeats paragraphs 30-33 within the findings of fact.

[187]In respect of issues 1.1 and 1.2, the Claimant’s stress and anxiety cumulatively amounted to a mental impairment which had a more than minor adverse effect on the Claimant’s ability to carry out day to day activities from or about 23 June 2023. This effect lasted more than 12 months, until about July 2024.

[188]In respect of the Claimant’s depression, on his own evidence, this did not arise until 24 July 2023 after the decision to dismiss had been made. Therefore, the Claimant could not have been disabled as a result of depression at the relevant time. Issue 1.3 to 1.5: required knowledge of disability

[189]There is no evidence that the Respondents could have known of the Claimant’s anxiety or depression, nor that either impairment was likely to mean that the Claimant was disabled, when the decision was made to extend the probation period and when holding meetings to support the Claimant during his extended probation period. Symptoms of anxiety are not relied upon by the Claimant as having a substantial adverse effect until 23 June 2023.

[190]In respect of knowledge, the Respondents did not know, nor could they reasonably be expected to know, when the decision to dismiss was made that the Claimant’s stress and anxiety was likely to last more than 12 months from 23 June 2023. In particular, the Tribunal repeats the findings of fact at paragraph 168.

[191]In respect of the Claimant’s depression, on his own evidence, this impairment did not arise until 24 July 2023 after the decision to dismiss had been made. 28 of 52

[192]In respect of issues 1.4 to 1.5, the Respondents did not know and could not have been expected to know that the Claimant had bronchiectasis and asthma until the return to work meeting held by Ms Norman on 19 January 2023.

[193]In respect of fibromyalgia and the history of pneumonia and lung scarring, the Respondents did not know that the Claimant had these impairments at any time during his employment. He did not mention them in his first meeting with Ms Norman, nor at any other time to Ms Norman or any other manager. Issue 2: Section 15 EQA Issue 2.1

[194]The Tribunal concluded that, in the circumstances, on the facts found above, it was not unfavourable treatment for the probation period to be extended. The alternative was a decision that the Claimant had not passed his probation, which would have made dismissal inevitable. Ms. Norman was a relatively inexperienced manager; she sought to take into account the steps within the Probation procedure, having reasonably sought advice from Employee Relations.

[195]The findings of fact show that the decision to extend the probation period was not something arising from sickness absence or special leave. The decision was made solely due to concerns about the Claimant’s performance and to give him the opportunity for pass his probation. The Tribunal repeats the relevant findings of fact, particularly those at paragraphs 66 - 76, 106-119, and 137.

[196]The Claimant was subject to steps designed to improve his performance. However, the Tribunal concluded that this was not unfavourable treatment; the steps were taken in an attempt to help the Claimant pass his probation period.

[197]The Tribunal found the Respondent had proved that the objectives set in the development plans were reasonable. They were part of “business as usual” duties, which were fundamental to the PM role. Mr. Hashemi merely made the original draft development plan prepared by Ms Norman more precise. As he stated, his amendments were basically setting out exactly what the Claimant was required to do in order to achieve the objectives.

[198]The Respondent accepted and the Tribunal concluded that the dismissal of the Claimant was unfavourable treatment. Issue 2.2

[199]The findings of fact show that the decision to extend the probation period was not caused in any way by the Claimant’s sickness absence or special leave, arising from Long Covid or Menieres Disease. It was because the Claimant was not performing as required in the PM role. The Tribunal repeats the relevant 29 of 52 findings of fact above.

[200]The decision to dismiss the Claimant was not caused in any way by the Claimant’s sickness absence or special leave, arising from Long Covid and/or the symptoms of Menieres Disease.

[201]In respect of the absence arising from anxiety or depression, considering Pnaiser, the Tribunal concluded that one cause of the dismissal was the sickness absence from 23 June 2023. However, the other causes were that it was because the Claimant was not performing as required in the PM role, which had led to his probation period being extended; and then the Claimant’s absence from 23 June had meant that he could not demonstrate progress towards the objectives set for him in the development plan. In short, he was unable to show that he could pass his probation. Issue 2.3 & 2.4: Legitimate aim & proportionality

[202]The First Respondent had a legitimate aim in making the decision to dismiss. It dealt with multi-billion pound programmes, with projects involving millions of pounds. The First Respondent needed a competent PM in the post held by the Claimant, to provide leadership to the multi-disciplinary team, to take ownership of the responsibilities involved in the role, and to reach objectives on time. The Tribunal found that TFL’s need was for a competent PM, not a trainee or assistant PM.

[203]In terms of whether dismissal was a proportionate means of achieving the legitimate aim proved, the Tribunal concluded that it was. With his background at Network Rail, the Claimant should have been an ideal candidate as a PM at TFL; but he lacked some fundamental competencies for the PM role and he did not show that he could be trained to the standard required, because he lacked insight and awareness into his performance in the PM role. This meant that the Claimant was unable to accept criticism of his performance and, as a result, he was unable to work towards meeting the standards required.

[204]The Tribunal concluded that it was essential for the First Respondent to have a full complement of PMs to progress each part of the programme. The findings of fact demonstrated a lack of pro-activity and leadership of the project by the Claimant. Given the Claimant’s performance failings and his stressrelated sickness absence arising from the decision to extend his probation period and the performance management steps (which were designed to give him a chance to pass the probation), the Tribunal found that the First Respondent had proved that it had no alternative to dismissal. TFL had had to bring matters to a head, so that it could continue to deliver the project for which the Claimant had been engaged. Issue 2.5

[205]In respect of knowledge, the Tribunal repeats its conclusions at issues 1.3 to 1.5 above. In short, neither Respondent had the required knowledge at 30 of 52 any relevant time. In particular, at the date of the decision to dismiss, the Respondents had no knowledge at all that the Claimant had depression. Also, when the decision to dismiss was made, the Respondents did not have the relevant knowledge that he was disabled due to stress and anxiety; Mr. Cooper could not reasonably have been expected to know that the Claimant was a disabled person arising from stress and anxiety when the decision to dismiss was taken. Issue 3: was there a breach of the duty to make reasonable adjustments? Issue 3.1: what PCPs were applied to the Claimant?

[206]Mr. Lawrence referred to Ahmed v Dept of Work & Pensions [2022] EAT at 107. The Tribunal reminded itself that it should follow a liberal approach and widely construe the statutory words “provision, criterion or practice”. Taking a real world, broad, view of the PCP alleged at issue 3.1(a), the Tribunal concluded that there was a policy or requirement for all employees to attend work and/or there was a requirement to maintain a certain, satisfactory, level of attendance at work. (“PCP 1”). This approach also accords with the guidance at Chapter 6 of the statutory Code of Practice and the guidance in Carrera v United First Partners Research.

[207]The written Attendance at Work policy was also a PCP (“PCP 2”). It contained provision for levels of absence to trigger management steps.

[208]There was a PCP requiring all employees to perform to a certain standard of competence (“PCP 3”).

[209]Given the findings of fact, the Tribunal were satisfied that there was no policy, practice or criterion that employees should not take any sick leave or special leave during the probationary period. Moreover, the implication from paragraph 5 of the probation review guidelines for managers was that sickness absence or special leave could be taken; because at a probation review, performance, conduct and attendance should all be considered.

[210]There was no PCP as set out in issue 1.3(d). There is no evidence that any such PCP existed. There was no prohibition or limit on sickness absence during the initial 6 months probationary period. Given the sickness absence and special leave that the Claimant had in the initial probationary period, the strong inference from the lack of any sanction or detriment being applied to the Claimant, and from the degree of support provided by Ms Norman in the form of adjustments and referrals to Occupational Health, is that no such PCP existed.

[211]There was no PCP in respect of limiting special leave to 4.5 hours during the six month probation period. Although a one-off decision could amount to a PCP, or be evidence of the existence of a PCP, paragraphs 80-85 of the findings of fact proved that no such PCP existed.

[212]There was no PCP as alleged in issue 3.1(e). The relevant PCP was the 31 of 52 requirement to attend work or to maintain a satisfactory attendance at work. This was accompanied by the written PCP, the “Attendance at Work” policy. Issue 3.2: Was the Claimant placed at any substantial disadvantage?

[213]PCP 1 and PCP 2 placed the Claimant at a more than minor or trivial disadvantage, particularly because his Menieres Disease meant that he was likely to have periods of absence due to vertigo. PCP 2 put the Claimant at a disadvantage in that he was likely to reach the trigger levels more than nondisabled employees.

[214]PCP 3 did not place the Claimant at a more than minor or trivial disadvantage when compared with a non-disabled person. Issue 3.3: Knowledge?

[215]The Tribunal has set out its conclusions on whether the Respondents had the requisite knowledge above. The Respondents knew that PCP 1 and PCP 2 put the Claimant at a more than minor disadvantage; the second Occupational Health report identified that the Claimant was likely to be a disabled person due to Menieres and that the Claimant may have a higher degree of absence than other employees. Issue 3.4: Was there any failure to implement adjustments?

[216]There was no breach of the duty to make reasonable adjustments for the following reasons.

[217]The second Occupational Health report made the recommendations set out at paragraph 79 of the findings of fact. The Respondents followed that advice as set out in paragraph 80 of the findings of fact.

[218]The Claimant’s case was that the adjustments suggested were only made on paper, but no practical steps were taken. The Tribunal found no evidence to support this allegation. The Respondents took no action about the sickness absence of the Claimant which occurred during the first few months of his probation period, save for referring him to Occupational Health; and then the Respondents acted on Occupational Health advice received. The Tribunal found as a fact the absences prior to April 2023 played no part in the decision to dismiss: see paragraphs 173-180.

[219]The reasonable adjustments proposed by Occupational Health and accepted by the Respondents permitted TFL, at the point of the decision to dismiss, to take into account the Claimant’s sickness absence during his extended probation period. This period of sickness absence commenced on 23 June 2023; and by 20 July 2023, the Claimant could not indicate when he would return to work and the absence was likely to continue as long as the probation review process continued: in particular, see paragraphs 179-180 of the findings of fact. The Occupational Health advice was that how much absence could be tolerated was a question for management and Human Resources to determine, 32 of 52 factoring in business needs; and Mr. Cooper decided that the Claimant’s ongoing absence in the circumstances could not continue.

[220]Moreover, this lengthy, unbroken, absence for stress and anxiety was different from the Menieres related absence, which the evidence suggested would likely be episodic, and only a few days at a time. It was not a reasonable adjustment to disregard the much longer period of unbroken absence which was linked to the probation review process, and which was likely to continue as long as the probation review process did.

[221]It was not a reasonable adjustment to wait for the Claimant’s return from sick leave related to stress and anxiety, before inviting him to a probation review meeting. Mr. Cooper decided that he must bring matters to a head as soon as possible, because it was necessary to do so, for the needs of the business; and Mr. Cooper reasonably understood, from speaking to the Claimant, that the Claimant would not attend work so long as the probation review process, and the performance management, continued. Furthermore, this proposed adjustment would not avoid or alleviate the disadvantage to the Claimant produced by PCP 1 and PCP 2.

[222]It was not a reasonable adjustment to move the probation review meeting to a date when the Claimant was not on sick leave, for the reasons set out above. In any event, this would not have any effect on the disadvantage relied upon.

[223]No other reasonable adjustment could have been made for the Claimant. Issue 4: Victimisation: section 27 EQA

[224]The acts referred to at issue 4.1(c) and 4.1(d) were protected acts.

[225]The First Respondent’s decision to dismiss had nothing to do with these protected acts: see the findings of fact, paragraphs 171 and 183. Issue 5: Harassment: section 26 EQA

[226]The Tribunal concluded that the Respondents did not engage in the unwanted conduct alleged on 22 March 2023: see paragraphs 92-104. We accepted the evidence of Ms Norman.

[227]The end of year performance review took place on 23 March. The Tribunal made the findings of fact set out about this, including those at paragraph 103. The Tribunal accepted the evidence of Ms Norman about the correct reading of the words used in the performance review, which we found to be the natural meaning of those words.

[228]In any event, the Tribunal concluded that, even if the words set out at paragraph 99 of Ms Norman’s witness statement were unwanted, it was not reasonable for them to have the proscribed effect. The interpretation put on this sentence by the Claimant tended to show that he had a reduced ability to be objective when interpreting documents; he felt so strongly that the performance 33 of 52 management he was subject to was unfair, he could not read those words objectively.

[229]Mr. Cooper, rather than Mr. Hashemi, in his grievance note response (in blue), at p.484 referred to the Claimant’s “alleged disability”. The word “alleged” was inserted as a result of legal advice received. The purpose of using that word was to protect the interests of TFL, as Mr. Cooper had been advised to do.

[230]The Tribunal considered that it was not reasonable for it to have the effect on the Claimant that he described in his evidence. It should have been apparent that the use of the phrase “alleged disability” was not intended to cause offence. It was in a set of notes responding to the Claimant’s points in dispute, and it should have been apparent to the Claimant that a Programme Manager would need to take legal advice to protect the interests of TFL when responding, given the very clear allegations of disability discrimination being made. The Tribunal found that the Claimant was so sure that he had been treated unfairly, by the time he received Mr. Cooper’s notes in blue, that he could not be objective when he interpreted them. He was hyper-sensitive to the words used, and he perceived them to show Mr. Cooper doubted that he had a disability. Issue 6: Indirect Discrimination: section 19 EQA

[231]The Tribunal has set out above its conclusions on the PCPs alleged in respect of the complaint of failure to make reasonable adjustments.

[232]The Tribunal found that the Claimant had failed to prove that the alleged PCPs identified at issue 6.1 were PCPs that were applied to the Claimant or to people without the Claimant’s disabilities. Paragraphs 209-212 above are repeated.

Summary

[233]Each complaint of disability discrimination and victimisation is not upheld. The Claim must be dismissed. 34 of 52 District Judge Ross (sitting as an Employment Judge) Dated: 23rd July 2025 APPENDIX A REVISED AGREED LIST OF ISSUES

Summary

[1]Disability: section 6 Equality Act 2010: The Claimant relies on the following disabilities: a) fibromyalgia (chronic fatigue syndrome), bronchiectasis, and asthma, as well as a history of pneumonia which has permanently scarred his lungs, which individually or in the alternative cumulatively amount to disabilities; b) Long COVID; c) Meniere’s disease; 35 of 52 d) stress and anxiety and depression which individually or in the alternative cumulatively amount to disabilities. The Respondents: a) accept that fibromyalgia, bronchiectasis, asthma and history of pneumonia with permanent lung scarring cumulatively amount to a disability. However, the Respondent reserves its position in respect of knowledge of these conditions at the relevant times. The Respondent does not accept that these conditions individually satisfy the definition of disability; b) accept that the Claimant’s Long COVID-19 and Meniere’s disease individually amount to a disability and that they had knowledge of these conditions at the relevant time; and c) do not accept that the Claimant was disabled due to stress, anxiety or depression or that they had knowledge of these conditions at the relevant time.1.1 Was the Claimant’s stress and anxiety and depression, either individually or in the alternative cumulatively, a mental impairment?

1.2 Did the Claimant’s stress and anxiety and depression, either individually or in the alternative cumulatively, have a substantial and long term adverse effect on the Claimant’s ability to carry out normal day-to-day activities? “substantial” means “more than minor or trivial” (section 212, Equality Act 2010). “likely” to last 12 months or more means “could well happen”.

1.3 When, if at all, did the Respondents know, or when ought they reasonably to have known the Claimant was disabled? The Respondents reserve their position on knowledge of fibromyalgia, bronchiectasis, asthma and history of pneumonia with permanent lung scarring at the relevant times. The Respondents do not accept that they had knowledge of stress, anxiety or depression at the relevant time. In particular:

1.4 Did the Respondents know, or could the Respondents reasonably have been expected to know, that the Claimant had the impairments of fibromyalgia, bronchiectasis, asthma and history of pneumonia with permanent lung scarring, and/or stress, anxiety or depression?

1.5 Did the Respondents know, or could the Respondents reasonably have been expected to know, that the impairments in 1.1 had an adverse effect on his ability to carry out normal day to day activities, and that these effects were substantial?

1.6 Did the Respondents know, or could the Respondents reasonably have been expected to know, that the effect of the Claimant’s impairment on his ability to carry out normal day to day activities had lasted for a period of at least 12 months or was likely to do so?

[2]Discrimination arising in consequence from disability (Sections 15 and 39, Equality Act 2010): 36 of 522.1 Has the Claimant been treated unfavourably by one or both Respondents? The Claimant relies on the following treatment: a) The Claimant’s probation period being extended. b) Subjecting the Claimant to performance improvement measures and setting unreasonable objectives. c) The Claimant’s dismissal on 22 August 2023.

2.2 Was the treatment because of something arising in consequence of one or more of the Claimant’s disabilities? The Claimant says that in consequence of his disabilities, he had time off sick and on special leave.

2.3 Did the Respondents have a legitimate aim for the treatment?

2.4 Was the treatment a proportionate means of achieving any legitimate aim?

2.5 Did the Respondents have knowledge of the disabilities?

[3]Failure to make reasonable adjustments (section 20 and 21, Equality Act 2010):3.1 Did the First Respondent apply to the Claimant a provision, criterion, or practice (PCP)? The Claimant relies on the following PCPs: a) The requirement for all employees to maintain a certain level of attendance and/or not have absences exceeding its Absence Management Policy / Sickness Absence Procedure; and / or b) The requirement for all employees to perform to a certain standard; and / or c) The requirement not to take any sick leave and / or special leave during the probationary period; and / or d) The requirement to take less than 6 days’ sick leave and / or 4.5 hours’ special leave in the initial 6 months probationary period; and / or e) The requirement not to, in the extended probation period (months 7, 8 and 9 in the 9 month probationary period) take any sick leave and / or be signed off for 10 weeks’ or more.

3.2 Was the Claimant put to a substantial disadvantage by the PCPs in relation to a relevant matter in comparison with persons who are not disabled? “substantial” means more than minor or trivial (section 212(1), Equality Act 2010).

3.3 Did the Respondents know, or could they be reasonably expected to know, that the Claimant had one or more disabilities and was likely to be placed at a substantial disadvantage by the PCP, compared with people who are not disabled (paragraph 20, schedule 8, Equality Act 2010)?

3.4 Did the Respondents fail to implement the following adjustments for the Claimant: e) to expect absence or further absences and to allow a certain degree of increased absence, or reduced productivity (91e GOC); 37 of 52 f) to wait for the Claimant’s return from sick leave related to stress and anxiety before inviting him to a probation review meeting (92 GOC); g) to move the probation review meeting to a date when the Claimant was not on sick leave (93 GOC);

3.5 Was it reasonable for the Respondents to implement any or all of these adjustments? More specifically, did the Respondent take such steps as it was reasonable to have to take to avoid the disadvantage caused by the PCPs?

[4]Victimisation (section 27, Equality Act 2010):4.1 Did the Claimant do a protected act? The Claimant relies on the following protected acts: c) On 24 April 2023 the Claimant emailed Anna Kwiatkowska (HR Business Partner) explaining his belief that he was being discriminated against because of his disabilities, and subsequently emailed Ms. Kwiatkowska explaining that her response did not address any of his disability discrimination concerns and requesting a copy of the First Respondent’s grievance procedure (98c GOC). d) On 2 May 2023 the Claimant raised a grievance by email to Mr. Cooper raising concerns that the Second Respondent had discriminated against him (98d GOC).

4.2 If not, did the Respondents believe that the Claimant may do a protected act?

4.3 Did one or both Respondents subject the Claimant to a detriment? The Claimant relies on the following detrimental acts: j) The First Respondent’s decision to dismiss the Claimant (99j GOC).

4.4 If so, did one or more Respondents subject the Claimant to that detriment:4.4.1 because he did one or more protected acts; or

4.4.2 because they believed that the Claimant had done or may do a protected act?

[5]Harassment related to disability (section 26, Equality Act 2010):5.1 Did one or both Respondents engage in unwanted conduct? The Claimant relies on the following conduct: b) On 22 March 2023 the Second Respondent told the Claimant that she may need to extend his probation period due to the amount of absences he had taken, all of which related to his disabilities (103b GOC). c) On 23 March 2023 the Second Respondent asked the Claimant to reduce his disability related sickness absence, which the Second Respondent referred to as “unexpected absences” (103c GOC). h) Mr. Cooper (and not Mr. Hashimi) referred to the Claimant as having an “alleged disability” (103g GOC). 38 of 52

5.2 Did that conduct relate to disability?

5.3 Did the conduct have the purpose or effect of violating the Claimant’s dignity?

5.4 Did the conduct have the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? In the context of “effect”, taking into account the Claimant’s perception, the other circumstances of the case, and whether it was reasonable for the conduct to have that effect (section 26(4) Equality Act 2010).

[6]Indirect disability discrimination (Section 19, Equality Act 2010):6.1 Did one or both Respondents apply to the Claimant a provision, criterion, or practice (PCP)? The Claimant relies on the following PCPs: a) The requirement not to take any sick leave and / or special leave during the probationary period; and / or b) The requirement to take less than 6 days’ sick leave and / or 4.5 hours’ special leave in the initial 6 months probationary period; and / or c) The requirement not to, in the extended probation period (months 7, 8 and 9 in the 9 month probationary period) take any sick leave and / or be signed off for 10 weeks or more.

6.2 Did one or both Respondents apply, or would they apply, that PCP to people who do not have the Claimant’s disability?

6.3 Did the PCP put, or would it put, those with the Claimant’s disability at a particular disadvantage when compared to other persons?

6.4 Did the PCP put, or would it put, the Claimant at that disadvantage?

6.5 Did the Respondents have a legitimate aim?

6.6 If so, was the PCP a proportionate means of achieving that legitimate aim?

[7]Remedy: 7.1 If successful what remedy/remedies should the Tribunal award the Claimant? a) A declaration of discrimination arising from disability, failure to make reasonable adjustments, indirect disability discrimination, victimisation, and harassment? b) Compensation for financial losses flowing from the acts of discrimination? Has the Claimant taken reasonable steps to mitigate his loss? c) Injury to feelings? d) Aggravated damages (if appropriate)? 39 of 52 e) An uplift of up to 25% for unreasonable failure (if any) to follow the ACAS Code of Practice on disciplinary and grievance procedures (the Code) under section 207A Trade Union and Labour Relations (Consolidation) Act 1992. The Claimant relies on the following breaches of the Code: I. The Respondents failed to try to resolve the Claimant’s grievance informally. In particular: i. On 17 April 2023 the Claimant raised concerns with the Second Respondent’s Line Manager, Jonathan Cooper (Programme Delivery Manager), that the Second Respondent was discriminating against him because of his disabilities. The Claimant explained that the Second Respondent had asked him to reduce his disability related sickness absence. Unfortunately, Mr. Cooper only exacerbated the Claimant’s concerns, confirming that if the Claimant had too many absences the business would need to look at whether he is suitable for his role. ii. On 18 April 2023 the Claimant message Mr. Cooper on Microsoft Teams to ask for details to contact Human Resources. Mr. Cooper told him these were not needed because the Claimant’s concerns were an “employee issue” and not a matter for Human Resources at the time. iii. Subsequently on 18 April 2023, the Claimant messaged Gosia Januszko (HR Business Partner) on Microsoft Teams, explaining that he was concerned that he was being discriminated against because of his disabilities by the Second Respondent. Ms. Januszko simply informed the Claimant that she did not know how she could help without any context. iv. When the Claimant contacted Ms. Januszko again on 21 April 2023, concerned about the letter he had received from the Second Respondent alleging that he was underperforming, Ms. Januszko instructed the Claimant to speak to the Second Respondent. v. On 24 April 2023 the Claimant emailed Anna Kwiatkowska (HR Business Partner) explaining his belief that he was being discriminated against because of his disabilities. Ms. Kwiatkowska replied to the email instructing the Claimant that he would need to attend the 1st probation review meeting the Second Respondent had invited him to. The Claimant responded to Ms. Kwiatkowska explaining that her response did not address any of his disability discrimination concerns and requested a copy of the First Respondent’s grievance procedure. vi. On 26 April 2023 Ms. Kwiatkowska wrote to the Claimant informing him that she understood he was disputing the meeting on grounds of disability discrimination and as she had explained the meeting is part of the First Respondent’s standard procedure, she believed that she had addressed the Claimant’s concerns. Ms. Kwiatkowska provided the Claimant with a link to access the First Respondent’s grievance policy. 40 of 52 vii. On 2 May 2023 the Second Respondent emailed the Claimant attaching a formal letter dated 25 April 2023. The letter described purported performance concerns. In the email the Second Respondent asked the Claimant to review and sign and return the letter. viii. The Claimant was compelled to raise a formal grievance on 2 May 2023. II. The Claimant’s grievance appeal was not heard without unreasonable delay. The Claimant informed the First Respondent of his intention to appeal against the outcome of his grievance on 18 May 2023. On 30 May 2023, the First Respondent chased the Claimant, stating that if his points of appeal against his grievance outcome were not received by the end of the day, his grievance would be considered closed. The Claimant provided his detailed grievance appeal the same day, on 30 May 2023. Despite the pressure the Claimant was subjected to, the Respondents failed to hold an investigation meeting until 12 June 2023. III. The Respondents failed to communicate the outcome of the Claimant’s grievance appeal in writing without unreasonable delay. Notwithstanding the pressure the Claimant was placed under to provide the detail of his grievance appeal detailed above, the First Respondent did not provide the Claimant with the outcome of his grievance appeal until 28 June 2023. IV. Disciplinary situations include “poor performance” (paragraph 1 of the Code). Accordingly, in relation to purported performance concerns about the Claimant, the Respondents failed to deal with their purported concerns informally in the first instance, or promptly. In particular: i. The Claimant received a meeting invitation from the Second Respondent via email on 14 April 2023 which alleged that his performance had not been adequate for his role. That meeting was a formal meeting to extend the Claimant’s probation period. No prior performance concerns had been raised with the Claimant, even when the Second Respondent had met with the Claimant earlier in the day on 14 April 2023. ii. The formal meeting did not take place promptly or without unreasonable delay, as the meting did not take place until 25 April 2023. iii. The Claimant was not given the opportunity to set out his case and answer allegations that had been made. At the meeting on 25 April 2023, the Claimant was presented with specific performance concerns for the first time, so had no prior opportunity to prepare any answer to them. iv. The Claimant’s concerns that the Second Respondent was discriminating against him were not investigated before the 41 of 52 probation review meeting took place on 25 April 2023. On 24 April 2023, Anna Kwiatkowska (HR Business Partner) emailed the Claimant instructing him that he would need to attend the 1st review meeting. v. The Respondents failed to act consistently. The Claimant’s probation review meeting took place 5 months into his 6 month probation period. The First Respondent’s probation guidance states that in most cases there should be a review meeting after approximately 12 weeks and a second one at approximately 20 weeks. vi. The Claimant was not provided with an opportunity to appeal his dismissal, his appeal was not heard without unreasonable delay (or at all), his appeal was not dealt with impartially (or at all), the Claimant was not given the right to be accompanied because there was never an appeal hearing, and the Claimant was not informed of the results of his appeal hearing as soon as possible (or at all). The Claimant appealed against his dismissal on 14 September 2023. The First Respondent acknowledged his appeal letter on 26 September 2023, stating that they would “be in touch with further details of the appeal meeting”. However, there was never any further communication concerning the Claimant’s appeal against dismissal. f) Interest on any award; and g) Financial penalty (subject to a maximum £20,000) under section 12A Employment Tribunals Act 1996. APPENDIX B SUMMARY OF THE RELEVANT LAW Section 6 and Sch 1 EQA: definition of disability Mental or Physical Impairment

Summary

[1]In considering what amounts to an 'impairment', its effect, not cause is what is of importance: see “Guidance on matters to be taken into account in determining questions relating to the definition of disability” at A8: “it is not necessary to consider how an impairment is caused, even if the cause 42 of 52 is a consequence of a condition which is excluded. … what is important to consider is the effect of an impairment not its cause.”

[2]The EAT in J v DLA Piper [2010] ICR considered the Tribunal’s distinction between clinical depression, a mental impairment, and a reaction to adverse circumstances at work, which is not a mental impairment. The EAT stated that this is not a helpful distinction, because the borderline between the two is often blurred, and leads to a circularity of argument: what amounts to clinical depression may well be a severe adverse reaction. The EAT continued at paragraph 42, as follows: “Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para 40(2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was indeed suffering “clinical depression” rather than simply a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally long-lived.”

[3]The above passage was followed by the EAT in Herry v Dudley Metropolitan Council

[2017] ICR 610

. The EAT in Herry at paragraph 55, in response to paragraph 42 of J v DLA Piper, noted as follows: “We would add one comment to it, directed in particular to diagnoses of “stress”. In adding this comment we do not underestimate the extent to which work related issues can result in real mental impairment for many individuals, especially those who are susceptible to anxiety and depression.” Substantial

[4]A substantial effect is one which is more than minor or trivial: see Guidance, Para B1 and s.212 EA 2010. Long Term

[5]Schedule 1 para 2(1) of the EA 2010 provides a definition of “long term”: “The effect of an impairment is a long-term effect if:(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

[6]“Likely” in this context means “could well happen”: see paragraph C3 of the Guidance.

[7]Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of long-term: see Guidance C4.

[8]In determining whether the adverse effect of a person’s impairment was “likely to recur”, a Tribunal should not have regard to subsequent events, but determine the question on the basis of the evidence available at the time of the act alleged to 43 of 52 constitute discrimination: McDougall v Richmond Adult Community College

[2008] ICR 431

, paragraph 24. Knowledge in disability discrimination claims – the legal principles.

[9]The Respondents have made more limited concessions in respect of their knowledge of the Claimant’s disability. The Tribunal needed to ascertain whether, if the Claimant was a disabled person arising from his stress and anxiety and/or depression, the Respondents had the necessary knowledge at all material times.

[10]The Claimant has brought complaints under Section 15 and 20 and 21 of the Equality Act 2010. Section 15(2) provides a defence where the employer did not know or could not reasonably be expected to know that the employee had a disability. Slightly more is required before an employer is required to make reasonable adjustments. Schedule 8 paragraph 20 of the Equality Act 2010 requires the employer to have known or ought reasonably to have known of the disability and that the disabled person is placed at a substantial disadvantage.

[11]In Gallop v Newport City Council

2014 IRLR 211

, CA the Court of Appeal held that it will be sufficient to establish knowledge of disability if the employer knew or ought to have known the facts which when analysed satisfy the statutory definition of disability. That requires knowledge of an impairment but not necessarily a diagnosis. Knowledge that that impairment has a substantial effect on ordinary day to day activities and knowledge of the facts that establish the long-term condition.

[12]The Statutory Code of Practice deals with the question of knowledge in the context of a claim under Section 15 of the Equality Act 2010 in the following paragraphs: 5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.

[27]Under a heading ‘When can an employer be assumed to know about disability’ are the following paragraphs: ‘5.17 If an employer’s agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability. 5.18 Therefore, where information about disabled people may come through different channels, employers need to ensure that there is a means – suitably confidential and subject to the disabled person’s consent – for bringing that information together to make it easier for the employer to fulfil their duties under the Act.’

[28]Paragraph 6.19 of the Statutory Code of Practice gives the similar guidance 44 of 52 about the steps it would be reasonable for an employer to take to ascertain whether an employee had a disability for the purposes of making a reasonable adjustment: 6.19 For disabled workers already in employment, an employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.

[29]The wording of both Section 15(2) and Schedule 8 paragraph 20 places the burden of proof on the Respondent to show that they did not have the requisite knowledge.

[30]Provided that the employer had actual or constructive knowledge of the facts constituting the employee's disability, it did not need to know that, as a matter of law, the consequences of such facts were that the employee was a "disabled person" as defined in the Act: Gallop and Donelian v Liberata UK Ltd

[2018] IRLR 535

. Sections 20 – 21 EQA: Breach of the duty to make reasonable adjustments

[31]Given the carefully drawn statutory duty to make reasonable adjustments, it is helpful to consider the relevant statutory provisions at the outset. These are contained within sections 20 and 21 EQA.

[32]A statutory Code of Practice on Employment has been published by the Equality and Human Rights Commission 2011 (“The Code”). Courts are obliged to take it into consideration whenever relevant. Chapter 6 is concerned with the duty to make reasonable adjustments, and emphasises that the duty is one requiring an employer to take positive steps to ensure disabled people can progress in employment. The Code includes:a. The phrase “provision, criterion or practice” (which is not defined in the EA 2010) should be construed widely so as to include any formal or informal policies, rules, practices, arrangements including one-off decisions and actions.

b. Paragraphs 6.23 to 6.29 of the Code give guidance as to what is meant by “reasonable steps”.

c. Paragraph 6.28 identifies some of the factors which might be taken into account when deciding whether a step is reasonable. They include the size of the employer; the practicability of the proposed step; the cost of making the adjustment; the extent of the employer's resources; and whether the steps would be effective in preventing the substantive disadvantage.

[33]In Carrera v United First Partners Research, the Employment Appeal Tribunal held that a PCP did not require an element of compulsion; an expectation or assumption placed upon an employee may suffice. HHJ Eady gave the following guidance at paragraph 31-37:a. The identification of the PCP was an important aspect of the Tribunal's task; the starting point for its determination of a claim of disability discrimination by way of a failure to make reasonable adjustments.

b. It is important to be clear as to how the PCP is to be described in any particular case. 45 of 52

c. The protective nature of the legislation meant a liberal rather than an overly technical approach should be adopted to the meaning of “provision criterion or practice”.

d. The Tribunal had taken an unduly narrow view of the Claimant's identification of the PCP, and that it should, instead, have adopted a real world view of what a requirement was in the context of the case.

[34]The Employment Tribunal considering a claim that an employer has discriminated against an employee by failing to comply with the duty to make reasonable adjustments must identify:a. the relevant provision, criterion or practice made by the employer; and/or

b. the relevant physical features of the premises occupied by the employer and/or the auxiliary aid required;

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

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

[35]Substantial disadvantage is such disadvantage as is more than minor or trivial.

[36]In Archibald v Fife, the House of Lords held what steps are reasonable depends on the circumstances of the particular case, which the employment tribunal must establish (paragraph 43).

[37]In applying Archibald v Fife, in Chief Constable of South Yorkshire v Jelic

[2010] IRLR 744

, the EAT held that the test of reasonableness was an objective one, for Employment Tribunals to decide. The EAT also emphasized that each case turned on its own facts.

[38]This Tribunal reminded itself that even where the duty is engaged, not all adjustments will be reasonable even where they overcome the disadvantage.

[39]The Tribunal considered Griffiths v Secretary of State for Work and Pensions

[2016] IRLR 216

. The following is a fair summary of it for our purposes in this case:a. The nature of the comparison exercise under section 20 required the tribunal to ask: does the PCP put the disabled person at a substantial disadvantage compared with a non-disabled person? The fact that they were treated equally and might both be subject to the same disadvantage when absent for the same period of time did not eliminate the disadvantage if the PCP bit harder on the disabled, or a category of them, than it did on the able-bodied. The Tribunal and the EAT had erred in holding that the s.20 duty had not been engaged because the policy applied equally to everyone (see paragraphs 46-48, 58, 63 of judgment).

b. There was no reason artificially to narrow the concept of what constituted a "step" within the meaning of s.20(3). The only question was whether it was reasonable for it to be taken. Although the proposed steps would have been, if taken, capable in principle of ameliorating the disadvantage resulting from the operation of the policy, the steps required to avoid or alleviate such disadvantages were not likely to be steps which a reasonable employer could be expected to take. 46 of 52

c. It may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness. Harassment: section 26 EQA

[40]Paragraph 7.9 of the Code states that “related to” in section 26(1)(a) should be given “a broad meaning in that the conduct does not have to be because of the protected characteristic”.

[41]The Code continues that “related to” includes a situation where the conduct is related to the worker’s own protected characteristic, or where there is any connection with a protected characteristic.

[42]In respect of the proper application of section 26(1)(b) and (4), which deal with the proscribed consequences of the unwanted conduct, we considered Dhaliwal v Richmond Pharmacology

[2009] IRLR 336

. Although that was a case decided before the Equality Act 2010, the provisions in issue were at section 3A Race Relations Act 1976, and were similar to those in section 26. We find it helpful to set out the following extracts of the judgment of Underhill J(P): “14 Secondly, it is important to note the formal breakdown of “element (2)” into two alternative bases of liability – “purpose” and “effect”. That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not been shown to have done so). It might be thought that successful claims of the latter kind will be rare, since in a case where the respondent has intended to bring about the proscribed consequences, and his conduct has had a sufficient impact on the claimant for her to bring proceedings, it would be prima facie surprising if the tribunal were not to find that those consequences had occurred. For that reason we suspect that in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent's purpose (though that does not necessarily exclude consideration of the respondent's mental processes because of “element (3)” as discussed below). 15 Thirdly, although the proviso in subsection (2) is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. … The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a “subjective” element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or 47 of 52 perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. See also our observations at para 22 below. … 22 On that basis we cannot accept Mr Majumdar's submission that Dr Lorch's remark could not reasonably have been perceived as a violation of the claimant's dignity. We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase...”

[43]Paragraph 15 above is authority for the proposition that the criterion in section 26(4) EA were overall objective criterion. The Tribunal found that, applying Dhaliwal and the reasoning of Underhill J, this was a correct interpretation of the law.

[44]The Tribunal considered Paragraph 22 of Dhaliwal, and Paragraph 13 of Grant v HM Land Registry

[2011] IRLR 751

[45]We directed ourselves that not every unwanted comment or act related to a protected characteristic may violate a person’s dignity or create an offensive atmosphere. We considered that, at least as a matter of practice rather than law, more than in other areas of discrimination law, context is everything in cases where harassment is alleged. Put shortly, the context in which words are used or acts occur is relevant to their effect. Discrimination arising from disability: section 15 EQA

[46]In Williams v Trustees of Swansea University Pension and Insurance Scheme

[2019] ICR 230

, the Supreme Court explained the relatively low threshold for what amounts to unfavourable treatment: “27...... in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or 48 of 52 “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which [Counsel] draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.....” Causation

[47]The Equality and Human Rights Commission’s Code of Practice on Employment states that the consequence of a disability “includes anything which is the result, effect or outcome of a disabled person’s disability”: see para 5.9.

[48]There are two parts to the causation test: a) There must be “something arising” in consequence of the Claimant’s disability; and b) The unfavourable treatment must be because of that “something arising.”

[49]In Pnaiser v NHS England and anor

[2016] IRLR 170

EAT, Simler J (as she then was) summarised the proper approach to determining section 15 EqA claims in paragraph 31. The summary included the following:(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.

(b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

[50]As noted in Pnaiser, the causal link between the “something” that causes unfavourable treatment and the disability may include more than one link: see Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

, at para 65. Simler P concluded that the tribunal had applied too strict a causation test (paragraph 66): “The critical question was whether on the objective facts, her refusal to return arose in ‘consequence of’ (rather than being caused by) her disability. This is a looser connection that might involve more than one link in the chain of consequences.” 49 of 52

[51]In City of York Council v Grosset

[2018] ICR 1492

, Sales LJ noted that in respect of the two questions posed by section 15(1):a. The first question involves examination of the employer’s state of mind (did A treat B less favourably because of an identified “something”);

b. the second question of whether the “something” for section 15 purposes arises in consequence of the employee’s disability is an objective matter. (paragraphs 37-38).

[52]In Dunn v Secretary of State for Justice

[2019] IRLR 1998

, the Court held (per Underhill LJ): 18. “Because of”. It is a condition of liability for disability discrimination both under section 13 and under section 15 that the complainant should have been treated in the manner complained because of either (under section 13) his or her disability or (under section 15) the “something” which arises in consequence of that disability. That will typically, though not invariably, involve establishing (with the benefit of section 136 if required) that the disability, or the relevant related factor, operated on the mind of the putative discriminator, as part of his or her conscious or unconscious “mental processes”. “ Burden of proof

[53]As with other types of discrimination complaints, a claimant bringing a complaint of section 15 discrimination bears an initial burden of proof. The claimant must prove facts from which the tribunal could decide that an unlawful act of discrimination has taken place.

[54]This means that the claimant has to show:  That he was disabled at relevant times;  That he has been subjected to unfavourable treatment;  A link between the disability and the “something” that is said to be the ground for the unfavourable treatment;  Evidence from which the tribunal could infer that the “something” was an effective reason or cause of the unfavourable treatment.

[55]If the claimant proves facts from which the tribunal could conclude that there was section 15 discrimination, the burden shifts, in accordance with section 136 EA, to the respondent to prove a non-discriminatory explanation, or to justify the treatment under section 15(1)(b).

[56]Simler P stated in Pnaiser that: “Although it can be helpful in some cases for Tribunals to go through the two stages suggested in Igen v Wong, as the authorities demonstrate, it is not necessarily an error of law not to do so, and in many cases, moving straight to the second stage is sensible”. Disability as background or context 50 of 52

[57]There is a distinction to be drawn between disability as background or context and something arising in consequence of disability being an operative cause of the treatment complained of. Where disability provides only the background or context in which the treatment complained about occurs, but the respondent identifies a genuine non-discriminatory reason for the treatment, the necessary causative link between the unfavourable treatment and the disability will be missing. We recognise that it is important to distinguish between the context and the causal link: see Basildon and Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

, at paragraph 34. Justification defence: Proportionality

[58]Section 15(2)(b) requires the putative discriminator A to show that “the treatment” of B is a proportionate means of achieving a legitimate aim. The focus is therefore upon “the treatment”; and the starting point therefore must be that the tribunal should apply s.15(2)(b) by identifying the act or omission which constitutes unfavourable treatment and asking whether that act or omission is a proportionate means of achieving a legitimate aim: Buchanan v Commissioner of Police for the Metropolis

[2016] IRLR 918

[59]The correct test for assessing whether treatment is proportionate was explained (looking at section 15 EA in the housing context) in the Supreme Court in Akerman Livingstone v Aster Communities

[2015] AC 1399

at paragraph 28 (per Baroness Hale):a. Is the objective sufficiently important to justify limiting a fundamental right?

b. Is the measure rationally connected to the objective?

c. Are the means chosen no more than is necessary to accomplish the objective?

d. Are the disadvantages caused disproportionate to the aims pursued? Put in context, the fourth stage asks: does the treatment strike a fair balance between the employer’s needs to accomplish its objective and the disadvantages thereby caused to the Claimant as a disabled person?

[60]Baroness Hale sat in both the above case and in Homer v Chief Constable of West Yorkshire Police

[2012] IRLR 601

, in which essentially the same key principles were set out. At paragraph 25, Baroness Hale explains:“To some extent the answer depends upon whether there were non-discriminatory alternatives available”

[61]The judgment of the Court of Appeal in Hardys & Hansons plc v Lax

[2005] IRLR 726

[2005] ICR 1565

, concerned an appeal relating to a complaint of indirect discrimination on the grounds of sex. The Court held that it is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. The Court emphasised that there is no room to introduce into the test of objective justification the 'range of reasonable responses' which is available to an employer in cases of unfair dismissal. 51 of 52 Indirect discrimination: section 19 EQA

[62]In contrast to section 15, section 19 EQA does not include a requirement of knowledge.

[63]The requirement to justify a PCP should not be seen as placing an unreasonable burden upon respondents. Nor should it be seen as casting some sort of shadow or stigma upon them. There is no shame in it. There may well be very good reasons for the PCP in question - such as fitness levels in fire-fighters or policemen: see Essop at paragraph 29. Discrimination by victimisation: section 27 EQA

[64]The detriment must be “because of” the protected act, but this is not a “but for” test: see Bailey v Chief Constable of Greater Manchester

[2017] EWCA Civ. 425

. Although motivation is not required, the necessary link in the mind of the discriminator between the doing of the acts and the less favourable treatment must be shown to exist: see R (E) v Governing Body of JFS [2009] 1 AER 319, approving Nagarajan v London Regional Transport

[1999] IRLR 572

on this point.

[65]If the tribunal is satisfied that the protected act is one of the effective reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. Burden of proof in discrimination cases

[66]The Tribunal reminded itself of the reversal of the burden of proof provisions within section 136(2) EA 2010, as explained in Igen v Wong

[2005] EWCA Civ. 142

and Madarassy v Nomura

[2007] ICR 867

and approved in Hewage (below).

[67]Although the Tribunal took into account the burden of proof provisions within section 136 EQA, it is important not to make too much of the role of those provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they do not apply where, as in this case, the Tribunal is in a position to make positive findings on the evidence one way or the other: Hewage v Grampian Health Board

[2013] UKSC 37

. 52 of 52