Mr L Stone v Regent Office Care Ltd T/a Samsic UK and JPC by Samsic and Others: 3202544/2021

EMPLOYMENT TRIBUNALS

Case No 3202544/2021

Between

Mr L StoneClaimant

Regent Office Care Ltd T/a Samsic UK and JPC by Samsic and OthersRespondent

Before

Employment Judge Park

Members

Mr J Webb

In person for claimant

Ms Y Montaz for respondent

Date 8 December 2025

JUDGMENT

[1]The claimant was unfairly dismissed by the first respondent. His claim for ordinary unfair dismissal succeeds.

[2]The following of the claimant’s claims for victimisation succeed: - In respect of the decision on 25 February 2021 to proceed with an SOSR dismissal. - Holding a return to work interview on 26 April 2021 when statements against the claimant were read out to him. - Dismiss the claimant on 30 July 2021.

[3]The following of the claimant’s claims for failure to make reasonable adjustments succeed: - Dealing with suspensions too slowly and fail to tell the claimant in a reasonable time what the outcome was. - The failure to allow the claimant to take someone with him to the mediation meetings on 3 and 4 March 2021. - The failure to allow the claimant to have a companion at the head office meeting on 26 April 2021.

[4]All the claimant’s other claims for automatic unfair dismissal due to whistleblowing, direct discrimination on the grounds of disability, failure to make reasonable adjustments, harassment related to disability, victimisation, whistleblowing detriment, breach of contract and holiday pay are not well founded and are dismissed.

[5]The case will be listed for a hearing to determine remedy for those claims which succeed.

REASONS

[1]The claimant’s claims were for: 1.1. detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996); 1.2. automatically unfair dismissal due to having made a protected disclosure (section Employment Rights Act 1996); 1.3. ordinary unfair dismissal under s.94 Employment Rights Act 1996; 1.4. direct disability discrimination under s.13 Equality Act 2010; 1.5. failure to make reasonable adjustments (section 20-21 Equality Act 2010); 1.6. harassment on the grounds of disability (section 26 Equality Act 2010); 1.7. victimisation (section 27 Equality Act 2010); 1.8. unlawful deductions from wages; 1.9. holiday pay; 1.10. breach of contract regarding sick pay; and 1.11. breach of right to be accompanied.

[2]The issues were finalised at a preliminary hearing held on 27 January 2023. The final list of issues is appended to this judgment.

[3]In the claimant’s written submissions he confirmed that he was not pursuing any claim for failure to make reasonable adjustments based on the practice the claimant said the respondent have of providing insufficient notice for investigation meetings (Issue 9.2.11 in the attached list). He also confirmed that he no longer alleged having done something that was a protected at on 9 February 2021. All other claims were pursued.

[4]For the purposes of the disability discrimination claim, the claimant says he was disabled at all relevant times because of anxiety and depression. The claimant accepts that the claimant was disabled due to anxiety and depression from November 2020 but says it only had knowledge of disability from March 2021. We had to determine whether the claimant was disabled at all material times or, if not, at what point in time the claimant was disabled. We have also had to determine when the respondent knew or ought reasonably to have had the relevant knowledge.

[5]The claimant pursued claims against the first respondent, who was his employer, and 5 named individuals. The parties did not make any submissions relating to the liability of any of the named individuals. Therefore, we have been unable to fully engage in this question in respect of the claims we have upheld. The parties will need to make relevant submissions on liability of named individual respondents at the remedy hearing. Procedure, documents and evidence heard

[11]The claimant represented himself. The respondents were represented.

[12]A bundle of documents had been prepared. The claimant also provided a supplementary bundle of documents. The claimant had provided some other documents which the respondent objected to including on the basis they were not relevant to the issues we needed to determine. These related to aspects of the claimant’s mental health and Ms Montaz said they may be upsetting to some witnesses. We did not need to make a decision at the outset of the hearing on the admissibility of those documents. We noted that they may be relevant to the question of disability. It would not be necessary for the respondents’ witnesses to be shown or asked about those documents, which should alleviate the respondents’ concerns.

[13]We were also provided with a recording of the investigation meeting the claimant attended in September 2020. We were able to listen to this recording.

[14]The claimant had prepared a witness statement and his mother also gave evidence on his behalf. They were both cross examined. All the named respondents had prepared statements and gave evidence. The respondents also call Sam Fletcher and Louis Monerville as witnesses. All the respondents’ witnesses were cross examined by the claimant.

[15]The claimant has anxiety and depression and has more recently been diagnosed with ADHD. Aspects of the case related to a time in his life that was clearly very difficult and traumatic in his life, which impacted on his participation in the hearing. Before the hearing the claimant had been reviewed by an intermediary who had provided a report. We were able to take into account the recommendations of the intermediary during the hearing. This included providing additional breaks and at times finishing early for the day when the claimant became overwhelmed when cross-examining certain witnesses.

[16]On the second day of the hearing the respondent’s representative had a personal emergency which necessitated adjourning in the afternoon. We were unable to reconvene until the fourth listed day, leaving the claimant’s evidence part-heard over the weekend. This impacted on the time available for the evidence and submissions. The parties were due to give submissions on the final day of the original hearing. The claimant did not feel able to do so in person. By agreement we ordered that the parties could make submissions in writing by 6 December 2024, which they both did.

[17]Unfortunately, the Tribunal panel were unable to reconvene in chambers for deliberation until June 2024. One of the members was due to be out of the country for some time immediately after the initial hearing concluded. It then took until June before all three members were available at the same time. To avoid further delay the parties were invited to a resumed hearing in June so that judgment could be given orally. The claimant wrote to the Tribunal to say that he would be unable to attend and he requested that judgment was reserved. Anonymity

[18]The underlying principle in the Employment Tribunal is that there is open justice so that hearings and judgments are public. In some circumstances the Tribunal can grant anonymity to participants. This can include situations when certain rights of individuals, such as the right to private and family life, are engaged and where in the circumstances it is proportionate to grant anonymity.

[19]There were aspects of this case where the Tribunal were of the view that such rights were engaged. The claimant has experienced periods of significant mental ill health and it has been necessary to refer in the judgment to particularly difficult and sensitive matters. The claimant’s personal relationships, including the break up of his marriage and subsequent relationship, form the background to parts of the case. This requires us to refer to other individuals’ personal relationships within our findings of fact.

[20]The Tribunal wrote to the parties to seek their views on whether any order should be made for anonymity under Rule 49 of the Employment Tribunal Procedure Rules 2024. The claimant made it clear to the Tribunal that he was not seeking anonymity and did not agree to anonymity. The respondents asked that if one was made that it should equally apply to the respondents, to avoid the risk of the claimant still being identifiable.

[21]Given the claimant’s strong objection to anonymity we have not made an order that would anonymise his identity or that of any of the named respondents. We have decided to anonymise some of the individuals referred to in the judgment who are not named respondents. This includes the claimant’s partner at the time of the relevant events and other individuals who are related to the claimant’s ex-wife. This is due to the fact that we have had to include some details of the claimant’s relationships with both women in our findings, by way of relevant background. Both women are not parties to the claim and their right to a private life should be protected.

Findings of Fact

[22]We have limited our findings of that to those that directly relate to the allegations that underlie the claimant’s various claims and other matters that are direct background and context. We also heard evidence on other background matters. Some of these remained contentious, and there were disputes of fact between the party. Our findings on these background matters are limited to what has been necessary in order to determine the issues in the case.

[23]We carefully considered all the evidence provided, both documentary and witness evidence. A lack of reference to any particular document or something that was said by a witness does not mean it was not considered.

[24]The evidence we considered was the documents and witness evidence, which was tested in cross-examination. The case itself involves many allegations of fact by the claimant. The claimant needs to prove on the balance of probabilities that alleged events or incidents occurred as he has alleged. This requires evidence, either contemporaneous documents or a clear account of what occurred in evidence.

[25]There were a number of matters which the claimant did not include a clear account in his witness evidence. The claimant then provided more detail on certain events in his written submissions. The accounts set out in the submissions are not evidence. Crucially, the respondent has not had an opportunity to cross-examine the claimant on anything additional he has set out in his written submissions. This means that little weight can be placed on additional information provided by the claimant at that stage of proceedings. Where relevant we have noted this situation in the findings of fact below. General background

[26]The first respondent is a company that provides cleaning services for corporate clients. The claimant started to work for the first respondent in 2011. He was initially employed as a vertical cleaner. In 2014 he was promoted to the role of Assistant Cleaning Manager where he was based at a site called Regent’s Place. This was a site owned by British Land, who were the first respondent’s client. The first respondent was responsible for various aspects of cleaning the site.

[27]The claimant was managed by Kenny Willis (the third respondent), who was the Contract Manager at the time. As well as being colleagues the claimant and Mr Willis were very good friends at times.

[28]In early 2019 the claimant’s relationship with his wife broke down. The claimant’s ex-wife’s brother, MC, also worked for the first respondent, along with MC’s wife. We understood that the claimant managed MC. At some point the claimant started a new relationship with GP. GP was also employed by the first respondent.

[29]Understandably this situation lead to some tensions in the workplace between the claimant and MC. The claimant says that MC became verbally abusive towards him and rumours were spread behind his back. MC is Polish and there were some other Polish employees. The claimant says that a number of other Polish employees also were part of this abuse.

[30]The claimant says that initially MC was making comments that related to the break-up of the claimant’s marriage, such as making sure the claimant got nothing from their house. The claimant says that the situation continued and MC swore at him in Polish. Beyond this the claimant’s evidence about what he alleges Mr Cwik did was limited. The claimant says generally this occurred from May 2019 onwards, but gave very little evidence about what actually occurred at particular times. We accepted that in around April, May and June 2019, it was likely that people may have been spreading rumours about the claimant. This was credible in light of what had happened in the claimant’s personal life, and it is likely that MC was probably angry towards the claimant. Beyond that we can make no definite findings about any conduct of MC. This is because we were not provided with sufficient evidence on any specific incidents or occurrences. Events during 2019

[31]During 2019 the claimant’s mental health began to deteriorate. There was no contemporaneous documentary evidence of this before 25 June 2019. In his evidence the claimant generally said that he had not been sleeping well and at some point started to have suicidal ideation. However, he did not give a clear account of this time. This was not surprising given that these events occurred 5 years earlier.

[32]In June 2019 a Contract Manager position became available at a different site. Sam Fletcher was Senior Operations Manager at the time. Sylwia De Sousa (the sixth respondent), the Head of Operations, contacted the claimant to inform him of this. The claimant then had some discussions with Mr Fletcher about the role.

[33]Ultimately the job was not formally offered to the claimant and he did not take up the role. The claimant says that he was offered the job by Mr Fletcher, but then he disclosed the mental health issues he was having and the offer was withdrawn. Mr Fletcher’s account is that the claimant was non-committal and had said he was having issues in his personal life. Mr Fletcher denies that the claimant mentioned having mental health issues, but just referred to his personal life.

[34]This incident took place over 5 years ago. It was not documented at the time. There were just couple of text messages that were loosely related to these events. We accept that there was a discussion about the job, and it may have been informally offered to the claimant. The claimant says he disclosed mental health issues and this triggered the withdrawal of the offer by Mr Fletcher. The claimant needs to prove on the balance of probabilities this occurred. We do not accept that it did. There was no contemporaneous evidence of the claimant having discussed any mental health issues with anyone at this time. The claimant was close to Mr Willis but he did not refer to anything that could be viewed as symptoms of poor mental health in any of their numerous text messages before this date. The claimant had not seen his GP, this only happened later and because his mother intervened. We find it unlikely the claimant would have said openly to a potential new manager he had ongoing mental health problems when the other evidence from the time indicate that he was not open about such matters with those with whom he had closer relationships. It is more likely he did mention the personal issues he was facing. He may have indicated this meant he may not be able to focus on the job and as a result he was non-committal about the role.

[35]As part of this claim the claimant says an incident occurred in July 2019 involving someone called Mike Myers. Mr Myers did not work for the first respondent, but worked at the same site for a different company. No clear account was provided by the claimant in his evidence about this incident. He provided more detailed accounts in his written submissions and in other documents that have been prepared as part of this case, but this was not evidence and was not tested.

[36]Some of the first respondent’s witnesses also provided evidence about this incident. What appears undisputed is an incident occurred and Mr Myers said something about the claimant. The claimant was not present but heard from someone else that a comment had been made. The matter was then dealt with by someone from British Land.

[37]At no point has the claimant provided any account of what he thinks Mr Myers said about him, other than it being vaguely threatening. We cannot make a definite finding of fact beyond an incident occurring and the claimant perceived this as threatening. The claimant has not proved on the balance of probabilities that any threat was actually made to him. The claimant’s mental health in 2019

[38]On 25 June 2019 the claimant’s mother became concerned about the claimant’s mental health. She intervened and contacted the GP. We heard evidence from the claimant’s mother. She did not explain what triggered her intervention but spoke in more general terms.

[39]The claimant was seen by his GP that day and he was prescribed antidepressants. The GP made a referral to the mental health team. The claimant told Mr Willis about this appointment, as there is a text that day showing Mr Willis asking the claimant how it went.

[40]The claimant was seen again by his GP on 2 July 2019 after work. On 15 July 2019 the claimant was seen by the mental health team. The appointment was at 2pm. A Whatsapp message from the day indicated that Mr Willis may have known about this, as he says ‘good luck’ when the claimant says he is going at 12.00pm. The claimant had a further telephone consultation with his GP during the morning of 15 August 2019.

[41]On 18 September 2019 the claimant had a telephone assessment by the mental health team. This was in the morning during working hours. The claimant says that this consultation lasted for over an hour and Mr Willis would not facilitate him using a meeting room. As a result, he had to take the call in the cleaning cupboard. The claimant had a further consultation lasting about an hour when at work on 25 September 2019.

[42]The claimant remained working most days throughout this time until October 2019. On a couple of occasions he overslept and he let Mr Willis know this via text message. He had a couple of days off work. In WhatsApp messages he just said he had headaches, felt bad, slept late or felt sick.

[43]The medical records from these months (June-September 2019) indicate the claimant’s mental health was poor. At times the records show the claimant experiencing suicidal ideation. The claimant was prescribed antidepressants and sleeping medication.

[44]The documents from the time indicate that Mr Willis clearly knew the claimant was having some appointments. The texts indicate he knew the claimant was leaving early for appointments and the texts indicate he had some knowledge that they related to the claimant’s mental health in some way. However, we do not accept that the claimant told Mr Willis in detail the state of his mental health at that time. We do not accept that he informed Mr Willis of the medication he was on or every appointment he had.

[45]The claimant and Mr Willis were close. Mr Willis confirmed this in evidence. He was sympathetic to the claimant’s personal difficulties as he had also been through the breakdown of a long term relationship, so they discussed such matters. Mr Willis understood that the claimant was struggling and having some difficulties with his mental health as a result, so was seeking medical support. We note Mr Willis also said in evidence that he noticed the claimant’s personality changing. He described him being aggressive and trying to catch people out, and having a negative outlook. Mr Willis also saw the claimant becoming unfocussed, but he attributed this to the claimant’s new relationship. From this we have concluded that Mr Willis made observations consistent with the claimant having some struggles with his mental health, and from June/July 2019 was aware of him seeking some support. However, that was the limit of his understanding about the claimant’s mental ill health at the time. The claimant’s mental health difficulties only minimally affected his work, with a couple of days off sick which were said to be for other reasons.

[46]The claimant complains that when he had telephone appointments he did not have a private space at work to take the calls. Mr Willis says that the claimant could book meeting rooms if he wished, in the same way that any other employee could book a meeting room. The claimant did not do so. The evidence we saw showed the claimant had appointments during the work day on 15 August 2019, 18 September 2019 and 25 September 2019. The claimant only provided evidence of difficulty taking the call on 18 September 2019, which was the longest appointment. There was no evidence to show any difficulties other days. Overall, we concluded that the claimant was able to take the calls without difficulty the majority of the time. We also accepted Mr Willis’ explanation that the claimant could have booked a private room had he wanted to do so. There was no evidence from the claimant indicating he was unable to do this. Events of October 2019

[47]According to the claimant he continued to be verbally abused by MC and others throughout this time. The three main perpetrators the claimant identified were MC, and two of MC’s colleagues, BV and MR. The claimant managed all three men. We accept that during 2019 there was probably some general animosity between the claimant and these three individuals. This is consistent with our previous finding that there had been difficulties earlier in the year with MC following the breakdown of the claimant’s marriage. We also heard from Mr Willis that the claimant did not get on well with everyone and could be critical of others.

[48]The claimant has alleged that BV, one of the group he identifies as being perpetrators, threatened him in October 2019. Due to the general animosity there appears to be we accept there may have been an incident that occurred. However, we do not accept that there was a physical threat. In his evidence the claimant did not provide a clear account of what he says Mr Vasquez did that was threatening, either verbally or physically. He has just alluded to an incident but without sufficient clarity for us to understand what he says happened. The claimant has not proved on the balance of probabilities that BV threatened him physically.

[49]The claimant also says that he was threatened by these three men during 2019 because of his mental ill health, as he says they knew about this. We do not accept that these three men would have been aware of the claimant’s mental ill-health during 2019. The claimant confided to some extent about how he was feeling with Mr Willis. Mr Willis was his manager and at that point they were close friends. However, the claimant only shared some limited information with Mr Willis. We do not find it credible that by September or October 2019 the claimant would have told others about his mental illhealth.

[50]On 17 October 2019 the claimant says that he made a first suicide attempt at work. He says that he went to the roof of the building between 11am and 1pm and contemplated jumping off. He also said that he had discussed his suicidal thoughts with Mr Willis earlier that morning. Mr Willis did not recall any such conversation on 17 October 2019. There was no contemporaneous evidence to support this conversation having happened. The claimant in his evidence refers to texts. The texts we saw between the claimant and Mr Willis for that day were minimal and gave no indication of any suicidal thoughts or actions by the claimant.

[51]In his witness evidence the claimant did provide a more detailed account of exactly what he says transpired and he describes telling Mr Willis about it after. We did not accept this was an accurate account of what occurred on 17 October 2019. The account the claimant gave in evidence was inconsistent with the contemporaneous documents. The texts that day between the claimant and Mr Willis are brief and innocuous. The following day the claimant was off work, but in his message to Mr Willis he just said had a headache and had trouble sleeping.

[52]The claimant returned to work on 21 October 2019 and the texts from that day do not say anything about the claimant’s mental health. On 22 October 2019 the claimant had a telephone appointment with the mental health team. The medical notes relating to this appointment do not include any indication that the claimant was in any crisis, or that he indicated to the person treating him anything had happened of significance only 5 days earlier.

[53]On 23 October 2019 the claimant says that he went to the roof again. While there he called Mr Willis. He came down, after which he spoke to Mr Willis. He said that he told Mr Willis what he had done, alluding to going to the roof with a view to jumping off. Mr Willis recalled the conversation with the claimant. However, he said that he understood that the claimant only had a thought about suicide. He said that he had not understood that the claimant had actually been on the roof.

[54]We preferred Mr Willis’ account in this respect. Mr Willis only recalled there being a single incident, and we accepted that the claimant did not inform him that he had been contemplating suicide on 17 October 2019. On 23 October 2019 we accepted that Mr Willis understood that the claimant had only indicated he had contemplated suicide, not that he had actually gone to the roof to try. We have reached this conclusion as we concluded it was more consistent with the contemporaneous documentary evidence, which were the multiple messages between the claimant and Mr Willis from this time in October 2019.

[55]According to the claimant he had gone to the roof around 8.00-9.00am on 23 October 2019. After he came down he spoke to Mr Willis and then he went home. It is not disputed by Mr Willis that a conversation happened and the claimant then went home.

[56]Later that day the claimant and Mr Willis were in contact by WhatsApp. At 10.45am Mr Willis sent a message to the claimant asking if the claimant was alright. The claimant says that things were getting worse and “causing more stress and sickness”. Mr Willis tells the claimant to take what time he needed and not to worry about work the next day. The following day the claimant and Mr Willis engaged in lengthy discussions by WhatsApp. Mr Willis sent a particularly long message which is supportive and encouraging the claimant to rest and take what time he needs.

[57]These messages over the two days indicates that Mr Willis’ understanding was that the claimant is having a bad time and is overwhelmed by his personal situation. Mr Willis refers to the claimant “going through a an extremely tough time and completely understand what you are going through. And it’s how we all would react, it’s completely normal”.

[58]These messages indicate that the claimant had communicated to Mr Willis that he was struggling and feeling low. Mr Willis’ messages are consistent with this type of situation. They do not read as being messages that would be sent to someone who had informed Mr Willis they were in crisis and at immediate risk of suicide or had actually contemplated or attempted suicide.

[59]The claimant went home on 23 October 2019. Mr Willis told him that he could go home, and may have told him that he should go home. Beyond that we cannot be certain about what exactly discussed. The claimant complains that he was not taken to hospital or no proactive steps were taken to ensure he got home safely. This is true, in that it is not disputed that the claimant left work and went home by himself. However, Mr Willis did send a message very shortly after the claimant left to check that he was alright.

[60]The claimant was absent for several days around that time. However, he also went into work on 25 October 2019 to do his girlfriend’s work because she was sick. The claimant’s messages to Mr Willis over these days confirm he was doing that work. He does not say he was unwell and he would be absent.

[61]During the evening of 28 October 2019 the claimant wrote to Mr Willis to say he would not be in the next day as he was going to the doctor. On 29 October 2019 the claimant’s GP signed him off work. This fit note was retrospective from 24 October 2019. It is only from then that that the claimant was consistently absent from work. The fit note says the claimant had anxiety and depression.

[62]On 31 October 2019 Mr Willis wrote to Ms De Souza and Andrew Safo-Poku (second respondent and HR Manager) asking if there was anything he needed to do “in these exceptional circumstances”. Ms De Souza responded to say that they just needed to wait for him to return and then offer support. The claimant’s return to work in early 2020 and allegations of failure to make reasonable adjustments

[63]The claimant remained signed off work with depression. He provided a medical certificate signing him off work until 15 January 2020 with depression. On 7 January 2020 Ms De Souza wrote to the claimant inviting him to a welfare meeting on 13 January 2020. The claimant responded to say that he would prefer a neutral venue closer to his home. Ms De Souza replied to the claimant saying that she would need to reschedule as she could not meet closer to his home on short notice.

[64]The claimant remained off work, providing a further sick note dated 20 January 2020 which signed him off work until 16 February 2020.

[65]The welfare meeting ultimately was not rescheduled. Ms De Souza accepts that the meeting was not arranged. In evidence Ms De Souza said that it should have been rescheduled but it was missed. We concluded that this was probably an oversight rather than deliberate. The claimant remained signed off work in January 2020 but he then returned to work in February 2020. The missed welfare meeting quickly became superfluous as the claimant returned to work.

[66]The claimant returned to work on 17 February 2020. He had a return to work meeting with Mr Willis. The claimant makes various complaints about this process, and what he says were failings by the respondents.

[67]The only meeting that occurred was the one between the claimant and Mr Willis. It is not disputed that no Occupational Health referral was made at that time and no specific risk assessment was undertaken.

[68]We were provided with the written record of the return to work meeting. This is a standard form. One of the questions to be completed was whether the claimant’s illness had been as a result of an occupational injury or disease. The form is completed to say ‘no’. The notes indicate that the claimant said that he was feeling better. The final section includes a number of questions. The following are all answered ‘no’:68.1 whether an Occupational Health referral was needed;

68.2 whether the absence was disability related; and

68.3 whether there was any reason to suspect a pattern of absence relative to particular tasks.

[69]There was a question on whether there was an underlying issue or welfare need. This question is not completed either way.

[70]Both the claimant and Mr Willis accept that roof access was discussed in this conversation. Mr Willis says that he asked whether it should be removed as he had a duty towards the claimant. He says the claimant reassured him that he was fine and Mr Willis took that on trust. The claimant broadly concurs with this account. He also says that he said “no, in case I still want to jump off”. We were unable to reach a definite conclusion about what was actually said in this meeting on this matter. The meeting itself took place many years ago. This aspect of the meeting was not documented the time. It is not referred to in any other documents from the time, such as Whatsapp messages. Both the claimant’s and Mr Willis’ accounts are not detailed. The most we can conclude is that roof access was mentioned briefly during the meeting, due to the claimant having mentioned it to Mr Willis before being signed off work.

[71]What we also note is that at the time the claimant and Mr Willis were not just a manager and employee, they were also good friends. Before the claimant’s absence they had discussed the difficulties he was having in his personal life. They had also spoken briefly on 23 October 2019, when the claimant had gone onto the roof, albeit we concluded this was a brief discussion and Mr Willis had not fully appreciated the seriousness of the claimant’s intentions at the time. We have concluded the issue of roof access was discussed briefly at the return to work meeting. Based on the contents of the return to work form we have concluded it was not significant, as it was not recorded in there. We also accepted Mr Willis’ explanation that he mentioned it due to his concerns about the claimant and to check there was nothing he needed to do.

[72]The claimant has asserted as part of this case that he asked for roof access to be removed. This is not supported by any documentary evidence from the time. Neither has the claimant in his witness evidence provided any examples of when he did this. The most we have been able to conclude is that roof access was briefly raised as an issue by Mr Willis and the claimant’s response indicated it was no longer a concern.

[73]After the claimant returned to work there was no evidence from the time of him having any difficulties at work due to his mental health. The claimant continued to work until September 2020, when he was suspended. He had no absences. There are no Whatsapp messages between him and Mr Willis from that period suggesting the claimant was having difficulties. He also did not see his GP for mental health related issues again until after he was suspended. Interactions with MC and others - 2020

[74]The claimant says that he continued to be subjected to verbal abuse by MC and others following his return to work. Other than the incident described below, the claimant has not provided any details within his evidence of anything that the three men said or did that he describes as being abuse.

[75]An incident occurred on 13 March 2020. The claimant says that he was informed by security that MC, BV and MR were trying to encourage others to target the claimant. The claimant contacted Mr Willis. He says he informed Mr Willis his life was in danger.

[76]The claimant has not set out in evidence what he understood had been said by the three men. We accept that something happened that concerned the claimant. He contacted Mr Willis and then he arranged a meeting with the three individuals the same day. That is not disputed. There is some dispute about whether Mr Willis encouraged this meeting or told the claimant not to do it. We are unsure about this, but ultimately it is not a matter we need to determine. We know a meeting did take place between the claimant and the three men.

[77]We were provided with a transcript of that meeting. The claimant started the meeting by saying he knew that some people were trying to get him sacked. The claimant told those individuals he was speaking to everyone he managed. From the evidence we have seen that did not appear to be the case and he only spoke with them. During this meeting the claimant also started to talk about his private life.

[78]On 16 March 2020 the three individuals raised a collective grievance against the claimant. They complain that the claimant had been following them round, not following proper procedures and getting them to do his girlfriend’s work. They also complain about the meeting he called them into on 13 March

[79]Shortly after that lockdown happened. The claimant continued to work throughout lockdown but many of the first respondent’s other employees were furloughed. We understood MC and MR were placed on furlough. As a result, the claimant had no interactions with them for several months. Their grievance was also not dealt with immediately.

[80]A grievance meeting for the three men was held on 8 July 2020. The three individuals met with Mr Safo-Poku and were accompanied by their trade union representative.

[81]The claimant says that in July 2020 he had a conversation with Mr Willis in which he made a protected disclosure about clients being overcharged and outside areas not being covered by staff. The claimant has provided no evidence in support of this. We have no documents from the time, such as any Whatsapp messages relating to such a conversation. In his witness evidence the claimant did not provide any account of the conversation. There is no account of any such conversation, let alone details of what he said. Mr Willis in his evidence says he did not recall any such conversation. In the absence of any evidence the claimant has not provided such a meeting or discussion occurred.

[82]The claimant also complains that in August 2020 he had to do a return to work meeting with an employee who had mental health problems. The context to this was furloughed employees were returning to the workplace. Mr Willis accepts that the claimant spoke with an employee who had some mental health issues. Beyond this we struggled to understand fully the claimant’s complaint in this respect because his evidence was unclear. He refers to a different employee in his evidence than he does in submissions. One is called Caterina and the other Hassan. It seems possible that the claimant carried out both meetings.

[83]It was undisputed that the claimant had to carry out some return to work interviews. Mr Willis was on leave and the claimant and a colleague were required to carry out the meeting in Mr Willis’ absence. Mr Willis informed the claimant and his colleague they should share them out between themselves. That much is not disputed. There was no difference in treatment between how the claimant and his colleague were treated. They both did the same thing. There is no evidence from the time that this was a problem for the claimant. September 2020

[84]On 11 September 2020 the claimant attended an informal meeting with Mr Safo-Poku and Ms De Souza. Unfortunately, we were not provided with any notes of this meeting. At this meeting the claimant was informed of the complaint that had been raised about him by MC, BV and MR. Mr Safo-Poku had spoken with the three men about their grievance but he did not interview the claimant as part of that grievance investigation to obtain the claimant’s account of events. No full explanation was provided by Mr Safo-Poku for why he did interview the claimant as part of the investigation. According to Mr Safo-Poku and Mr De Souza they wanted to find an informal solution. At the meeting on 11 September 2020 they asked the claimant to take part in mediation and provide a written apology.

[85]The claimant said that during this meeting he informed Mr Safo-Poku and Ms De Souza that the three men had been bullying him. Mr Safo-Poku and Ms De Souza deny the claimant said anything along these lines at the meeting. We accept that the claimant probably did say something about how he felt he had been treated by MC, BV and MR. The meeting on 13 March 2020 had been triggered by the claimant hearing rumours about things they were saying. This is documented in the minutes of the March meeting. It’s highly unlikely that the claimant would have said nothing about his perspective of what was happening. However, the meeting in September was an informal meeting and at that point the claimant had not raised any formal complaints. The claimant did not follow up the complaints immediately after either. The most we can conclude is the claimant probably said something about how he felt about MC and the other two men, but that it was likely just in passing and not a detailed complaint.

[86]On 17 September 2020 Mr Safo-Poku sent the claimant an email following up on arrangements for a mediation meeting and an apology from the claimant. Nothing further happened in relation to this immediately as other events that day superseded that process. The email is short and just dealing with the practicalities of what had been discussed in the meeting.

[87]Around the same time the claimant’s girlfriend, GP, had applied for a full-time role. The claimant believed that she would be offered the job, as he said Mr Willis had told him that she would. On 17 September 2020 GP was interviewed for the role by Mr Willis. Mr Willis decided to appoint a different candidate. According to Mr Willis he knew the claimant would be upset at the decision.

[88]Later that day the claimant and Mr Willis spoke. The conversation was heated. Mr Willis describes the claimant as exploding. In his witness evidence Mr Willis did not give a detailed account of what was said. However, he had written a note of the conversation at the time which he then sent to the first respondent’s HR department. One point Mr Willis recollected specifically is the claimant mentioning Mr Willis’ father, who had passed away the previous year. Mr Willis said that after his father was mentioned he switched off and did not take in the details of what else the claimant said.

[89]In his witness evidence the claimant provided his own account of this incident. The claimant’s account is similar to the summary in Mr Willis’ note from the time. The main thrust of the discussion was the claimant challenging Mr Willis about GP not being offered the job, and the process that had been followed. The claimant also makes reference to having spoken about Mr Willis’ father.

[90]The claimant says that during this discussion he made a protected disclosure. This he says related to the first respondent overcharging clients and outside areas not being covered by staff. In his witness evidence he said that he “mentioned I knew about his ‘fixing the waste figures’ and not telling the truth to BritishLand because of the money implications”. We accepted the claimant said something about these issues but it would have been brief and in passing. The claimant’s own account indicates that during this meeting he raised pretty much everything that was on his mind and bothering him at the time about Mr Willis and the first respondent. The claimant also mentioned this issue in the investigation meeting he attended with Mr Monderville on 22 September 2020. Mr Willis’ account is that the claimant effectively launched into a tirade attacking him. We also accept that Mr Willis did not take in every detail of what the claimant said due to the level of attack and the fact the claimant raised his father.

[91]The claimant also said he made protected acts as he mentioned his mental health and threats made by others towards him. In his own account of events the claimant says that he had been telling Mr Willis about the threats he said were being made, specifically referencing BV. In his account of events in his witness evidence the claimant does not link this to his mental health or absence due to his depression, he just refers to threats.

[92]After the meeting finished the claimant left work. The claimant says he asked to leave and Mr Willis said he could. Mr Willis says that the claimant just left without asking permission. We find that given what had happened in the heat of the moment the claimant probably did not ask if he could leave, but instead just went.

[93]Mr Willis reported what had happened to Ms De Souza and Mr Safo-Poku the same day. Later the same day Ms De Souza called the claimant and informed him that he was suspended pending an investigation into two allegations. The first was about inappropriate behaviour in relation to the meeting with Mr Willis earlier that day. The second allegation was that he had left site without authorisation.

[94]The claimant’s girlfriend was suspended the same day. The claimant and his girlfriend had left site at the same time. The girlfriend had actually finished her shift by that time, but an error had been made. The GP was interviewed by Louis Monerville, on 21 September 2020 and the situation was cleared up and she was reinstated. Suspension and investigation

[95]Louis Monerville, an Account Manager with the first respondent, was appointed to investigate the incidents on 17 September 2020. On 18 September 2020 Mr Monerville sent the claimant a letter inviting him to an investigation on 22 September 2020.

[96]The meeting was in person on 22 September 2020. We were provided with a recording of that meeting along with a transcript, so were able to get a good sense of what occurred.

[97]During the meeting Mr Monerville took the claimant through what had happened on 17 September 2020 and obtained the claimant’s account of events. The claimant referred to the incidents in October 2019 when he said he had considered jumping off the roof. Mr Monerville asked the claimant more about his mental health and the medication he was on and what they were for. To that extent the claimant’s mental health was discussed at the meeting.

[98]The claimant says that during this meeting Mr Monerville was aggressive, shouted at him and made attacks on the claimant’s mental health. Mr Monerville did ask the claimant some questions about his mental health. At times his questions were potentially a bit clumsy. However, it is also clear that the questions were being asked as part of an investigation to gain an understanding of what happened on 17 September. This included trying to gain an understanding of how the claimant’s state of mind may have been a factor. Having listened to the recording, we concluded that Mr Monerville did not attack the claimant’s mental health.

[99]During the meeting the claimant spoke about his mental health to Mr Monerville. Based on the evidence we saw we have concluded that before then the claimant had disclosed very little to anyone employed by the first respondent about his mental health. The claimant had been signed off work at the end of 2019 and before then had a few discussions with Mr Willis. The claimant then returned to work in February 2020 and worked without any further significant absences until his suspension. There was no evidence he had said anything to anyone else, other than Mr Willis. There was also no evidence from the time that the claimant discussed his mental health with Mr Willis after the return to work meeting in February 2020. Therefore, the meeting with Mr Monerville was effectively the first time the claimant had opened up about his mental health and events of Oct 2019 to anyone other than Mr Willis.

[100]In terms of the discussion itself, we heard the recording. At times the discussion did become slightly heated. At times the claimant was quite argumentative which lead to Mr Monerville and the claimant speaking over each other. However, we did not observe Mr Monerville having shouted or being aggressive.

[101]The claimant was sent notes of the meeting the following day. These were not verbatim and omitted certain parts of the discussion. We were provided with the transcript and the notes that were provided at the time and can see there were differences. In the official notes there was some reference to the claimant’s mental health but much of the detail has been left out. The account in the notes of the discussion about events of October 2019 is much briefer and does not reflect what the claimant said about how bad his state of mind was at that time. There was far less detail about the claimant’s treatment for his mental health at that time. Grievance

[102]The claimant first drafted his grievance on 18 September 2020. The first respondent witnesses said they did not receive it on that day. We concluded that the claimant drafted the grievance then but did not send it then.

[103]On 24 September 2020 the claimant did send a grievance to Mr Safo-Poku. In this the claimant complains about a number of matters that had occurred during 2019 and 2020. He expressly refers to the Equality Act 2010 and says he has been treated less favourably because of his mental health disability.

[104]On 24 September 2020 the claimant also raised a second grievance. This was about the events of 17 September 2020, being suspended and the subsequent investigation meeting on 22 September 2020.

[105]On 28 September 2020 the claimant raised a third grievance. This was almost identical to the first grievance.

[106]On 28 September 2020 Mr Safo-Poku wrote to the claimant to invite him to a grievance meeting.

[107]On 30 September 2020 the claimant raised a fourth grievance. This was about a historic complaints that he had been underpaid in respect of holiday pay in 2016.

[108]On 1 October 2020 the claimant attended a grievance investigation meeting with Mr Safo-Poku. We were provided with minutes of this meeting. At this meeting the claimant was able to explain his complaints in more detail. This covered a number of different issues, including much of what the claimant has complained about within this case.

[109]The claimant says he made a protected disclosure during this meeting about misleading waste reports to clients. In the claimant’s second grievance he describes himself as a whistleblower, so Mr Safo-Poku asked whether one point that was being discussed was the subject the claimant was whistleblowing about. The claimant responded that it was not. Later on during the discussion the notes indicate the claimant saying “I also mentioned about waste figures, but I was not happy to sign the figures and I told him I will only be honest”. This was in the context of the claimant providing his account of the conversation with Mr Willis on 17 September 2020. It is likely that the minutes of this meeting are not verbatim. Mr Safo-Poku sent the claimant minutes of the meeting. On 13 October 2020 the claimant sent Ms Safo Poku some detailed comments. In this email the claimant said “I mentioned to Kenny that had been forging the waste figures and I would never do this.”

[110]In the meeting the claimant raised that BV had threatened him physically. In the follow up email the claimant elaborated on this, stating “I mentioned I was threatened twice by Borja – by Sierra 6 and 350 reception and both times reported straight away to Kenny who said he was dealing”.

[111]Later in October 2020 the first respondent sent a letter for MC to the claimant’s address. The claimant says that MC came to his house to get the letter and confronted him. The claimant says that the MC taunted him and told him he was going to be dismissed. The claimant says that he reported this to the respondent and they failed to investigate this allegation that he had been threatened by MC. The claimant provided no evidence of having reported any incident to the respondent in October 2020. In his witness evidence he did not identify who he told, what he said or when. The claimant was in contact with Mr Safo-Poku at the time and raised 2 further grievances on 22 October 2020. There is nothing within any of the correspondence we saw that included an allegation of the claimant being threatened by MC in October 2020.

[112]On 22 October 2020 the claimant’s girlfriend raised a grievance. Part of this relates to the conduct of MC towards her in the workplace.

[113]On 22 October 2020 the claimant raised his fifth and sixth grievances. His fifth related to sick pay from 2018 when the claimant had injured his ankle when playing in a work-related football match. The sixth grievance related data protection matters connected to use of the claimant’s image in 2013 in corporate material. The claimant was concerned his picture was still viewable online, even though he had asked for it to be removed in 2015.

[114]On 4 December 2020 the claimant received an outcome to his grievances from Mr Safo-Poku. This letter refers to five grievances. The summary of what the grievances are indicates the respondent treated the third grievance as a duplicate.

[115]Mr Safo Poku noted that some grievances were historic so it was not possible to investigate all of those grievances. Mr Safo Poku also explained that some concerns related to the ongoing suspension and disciplinary investigation which was a separate process. However, he had considered the complaints about the investigation meeting with Mr Monerville.

[116]The majority of the grievance was not upheld. There were a couple of points that were partially upheld or the claimant’s point of view was acknowledged. Mr Safo-Poku noted that Mr Willis had accepted that on 17 February 2020 he had asked the claimant if his roof access should be removed and he apologised if the claimant thought it was said as a joke. Mr Safo-Poku also accepted that the welfare meeting had not been rearranged in January 2020, although he concluded this was due to the claimant being about to return to work so he would have a meeting with his manager in any event. Some of the complaints about holiday pay were upheld and the claimant was informed he would receive that in due course.

[117]The claimant specifically complains in this case that Mr Safo-Poku concluded that the claimant had not been threatened at work. Reading the outcome letter, this is not the conclusion Mr Safo-Poku reached. He had spoken to Mr Willis who said he could not recall the claimant reporting a threat by BV. Mr Safo-Poku concluded there was not enough evidence to reach a conclusion either way.

[118]On 8 December 2020 the claimant raised a seventh grievance. This was against Mr Safo-Poku and related to the grievance process. It was sent to John Conry Jr, the fourth respondent and the first respondent’s Managing Director.

[119]On 14 December 2020 the claimant was sent a letter inviting him to a disciplinary hearing on 18 December 2020. This related to the allegations about the claimant’s conduct on 17 September 2020.

[120]On 15 December 2020 the claimant raised an appeal against the grievance outcome. This was sent to Mr Conry. The letter was very lengthy and he appealed every finding made by Mr Safo-Poku. Within this letter the claimant expressly refers to discrimination.

[121]On 15 December 2020 Mr Conry forwarded the appeal to Mr Safo-Poku and Amalia Demain (the fifth respondent and an HR Manager). They were both in the HR department.

[122]The disciplinary hearing had been due to take place on 18 December 2020. On 15 December Sam Fletcher, who was the manger who was due to hear the disciplinary, wrote to the claimant postponing the hearing to a later date. This was due to an unconnected incident which meant resources needed to be diverted.

[123]A hearing for the grievance appeal and seventh grievance was initially arranged for 23 December 2020. This meeting was postponed.

[124]The hearing eventually went ahead on 7 January 2021. It was chaired by Donna Chadbourne. She was an external consultant. Mr Conry explained she was brought in because he had made allegations against a number of different individuals.

[125]The meeting was lengthy. We were provided with a transcript of this hearing, though we did not hear any evidence from Ms Chadbourne. The claimant’s own evidence of this hearing was limited, but he did not suggest that the transcript was unreliable.

[126]Ms Chadbourne started by asking the claimant about what he had described at the time as whistleblowing. The claimant was able to explain his concerns. Ms Chadbourne then said that she was happy with what he had said about that and would move on. The claimant did not indicate at the time that he had more to explain.

[127]Ms Chadbourne asked the claimant to provide more information about his allegations that he had been subjected to threats and rumours were being spread. The claimant provided details of individuals he said were witnesses. During this meeting the claimant provided some information about the relatively recent incidents when he said that MC had come to his house and threatened him. The threat referred to was about the claimant being dismissed.

[128]On reading the transcript of the meeting, we could see that the claimant seemed to switch rapidly between talking about events that occurred in the past, such as the incidents involving BV, and more recent events such as when he said MC came to his house and threatened his job. Reading with hindsight, based on the claim as presented, we can see that the claimant is referring to separate matters. At the time though it would not have been clear. During the meeting the claimant did not set out a clear account of what he says occurred in October 2020 that could be investigated as a new allegation.

[129]During the meeting Ms Chadbourne also asked the claimant about other aspects of his grievance and appeal of the earlier grievance outcome. This included the matters that he had previously raised about discrimination.

[130]At the end of the meeting Ms Chadbourne discusses what could happen next with the claimant. She asks the claimant if he would like more contact from the business, to which he said he would. Ms Chadbourne also raised the issue of mediation to move forward. The claimant was asked if he wanted to add anything and a few additional matters were discussed.

[131]On 19 January 2021 Ms Chadbourne sent the notes of the meeting to the claimant. She asked the claimant to provide her some documents that he had previously sent Mr Conry. She also asked for any recordings he may have made of other meetings.

[132]In late January 2021 the claimant sent a number of emails to Ms Chadbourne with further information. This included on 26 January 2021 additional information about some more recent matters. Ms Delmian was copied into this email and the claimant directed a comment to her about the police speaking to her about a situation involving his girlfriend and to arrange to speak to Mr Willis, BV and MC.

[133]On 27 January 2021 Ms Chadbourne wrote to the claimant to say that her remit was only to look into the matters he raised in his seventh grievance and grievance appeal. The claimant responds to this, clearly upset, saying that the first respondent had not investigated his claims even though he was still providing more evidence.

[134]On this we note that our understanding is that the claimant is referring to his complaints about being threatened by BV and MC. At this time the claimant repeated certain allegations, but they remain vague and unparticularised. We did not see any additional concrete evidence about these allegations that was provided by the claimant to the first respondent at this time.

[135]On 29 January 2021 Ms Chadbourne wrote to the claimant with the outcome of the seventh grievance against Mr Safo-Poku. The majority was not upheld. There were a couple of points that were partially upheld. In relation to the allegations of bullying by MC, BV and MR, she upheld the decision not to investigate allegations about events during 2019 because it was too long ago so would not be fair. In relation to his whistleblowing, Ms Chadbourne confirmed that the company was investigating the matters he had raised but this was a separate process.

[136]On 1 February 2021 Ms Chadbourne wrote to the claimant with the outcome of the appeal against the original grievance decision. This letter is very long and thorough, running to 32 pages in total. Ms Chadbourne went through everything she has considered in detail, referring to evidence that the claimant had provided. Some points are partially upheld, others not upheld at all. Overall, the conclusions are in line with the original grievance outcome.

[137]We noted the following three specific points in Ms Chadbourne’s decision:137.1 The claimant had provided 13 appendices which he said was evidence that Mr Willis knew he was being verbally abused by MC and others. Ms Chadbourne went through those individually and concluded none of them showed that Mr Willis was aware of anything that the claimant alleged had happened.

137.2 Ms Chadbourne had asked the claimant about his relationship with Mr Willis and whether he wanted mediation. The claimant said he did want mediation in order to go back to work. Ms Chadbourne recommends that mediation should happen, but just between the claimant and Mr Willis.

137.3 Ms Chadbourne recommended that the disciplinary officer looked carefully at the evidence that had been gathered and decide whether a disciplinary process should actually go ahead.

137.4 On the issue of sick pay, Ms Chadbourne stated that the company sometimes pays full pay to employees with physical ill-health but does not for mental ill-health conditions.

[138]On 5 February 2021 Sam Fletcher wrote to the claimant to inform him that the disciplinary investigation had been concluded and that no action was being taken. On 9 February 2021 Ms Demian emailed the claimant to confirm this. She also advised that following the grievance outcome mediation with Mr Willis was an option. Ms Demian informed the claimant he would remain on full pay until that has been arranged. Ms Demian also said the respondent was suggesting mediation with other individuals who were named in the grievance. The claimant was asked to confirm if he was happy to proceed with mediation by 12 February 2021.

[139]The claimant responded to Ms Demian to say that he was finding everything stressful. He asked for clarification about how he would return to the business and what support he would need. On 12 February 2021 Ms Demian sent an email to the claimant explaining what the mediation would entail. On 18 February 2021 Ms Demian asked the claimant to respond by 19 February 2021. She also advised that if he did not respond by then he may be viewed as AWOL. The claimant responded to say he would proceed with the mediation. Mediation March 2021

[140]On 23 February 2021 Mr Safo-Poku contacted Mr Willis and informs him that a mediation would be set up with him and the claimant. He asks for Mr Willis’ assistance setting that up mediation with MC, MV and another individual called Mariusz Jaworski, who was different to MR.

[141]On 25 February 2021 Mr Safo-Poku sent an update to Mr Conry about the situation. This set out the details of the mediation that had been planned for the first week of March. This email indicates that mediation will be with Mr Willis but also with Mr Safo-Poku, Ms De Souza, BV and Mr Jaworkski, but not Mr Cwik as he had declined. This is the first time that mediation between the claimant and others is clearly set out. However, we noted that mediation with MC, BV and MR had been proposed in September following their grievance, but this had never taken place. We have inferred that this was the reason they were included. However, the claimant had not been informed this was still proposed.

[142]We did not understand why the claimant was required to attend mediation with Mr Safo-Poku and Ms De Souza. There was no explanation of this decision in the documents or witness evidence. The claimant did not work with them on a day to day basis and therefore there was no clear reason why that was necessary in order for him to return to work in Regents Place or elsewhere. We also note the following:142.1 The decision to involve Mr Safo-Poku in the mediation was perplexing, given the limited scope of the grievance against him and the fact that the claimant would otherwise have very limited dealings with him when working. We also note that as a member of the HR team Mr Safo-Poku could be expected to have a level of resilience to criticism from unhappy employees.

142.2 While Ms De Souza was part of the claimant’s line management structure he had little day to day interaction with her. The grievances against Ms De Souza were not personal in any way either. They mainly relating to errors in payments over the years and some of these were upheld.

[143]At the end of this email Mr Safo-Poku said “Once these meeting has been held we will be able to proceed with SOSR process (Sam will be chairing this process with Amalia assisting) which should commence with the week starting 8 March 2021”. In evidence Mr Safo-Poku suggested that this should not be read as indicating that they were considering dismissal and it was about other potential internal processes. We did not accept Mr Safo-Poku’s explanation as credible. Taking the email on face value it was clear to us that the respondent was already considering dismissal as an option.

[144]Ms Demian wrote to the claimant on 25 February 2025 setting out the details of the mediation. This was the first time the claimant had been informed that mediation was not just with Mr Willis, but also with Mr Safo-Poku, Ms De Souza, BV and Mr Jaworski.

[145]The claimant entered into some correspondence with Ms Demian about the mediation. She informed him who would be there, and that she will be present. The claimant asked if the mediation could be in person, rather than online. At no point does he ask to be able to bring a companion.

[146]The first mediation meetings took place on 3 and 4 March 2021. On 3 March the claimant attended mediation with Mr Safo-Poku. Mr Fletcher chaired and Ms Demian was present. On 4 March 2021 the claimant attended mediation with Ms De Souza, again chaired by Mr Fletcher and with Ms Demian present. The claimant did not have a companion with him at either. We note that there was no evidence that he had requested one either, but neither did the respondent offer this as an option.

[147]The claimant complains that Mr Fletcher did not ensure the meetings were neutral, his mental health was attacked and he was put down and not listened to. We were provided with transcripts of both meetings so had a complete account of what occurred.

[148]Our findings about the mediation with Mr Safo-Poku are as follows:148.1 Nothing is said about the claimant’s mental health that could be viewed as negative or an ‘attack’. The claimant’s mental health is barely referred to during the meeting. The only discussion is with Mr Fletcher, who asks the claimant about how that will impact him returning to work, with the suggestion that support needs to be looked at.

148.2 To an extent the claimant indicated he did not fully accept Ms Chadbourne’s conclusions, but he also clearly indicates he is willing to put things behind him and move on. He says clearly that he understands that Mr Safo-Poku was upset. He is also focussed on the future. For example, he says “I’m not going to sit here and make a fuss about it. I’m just trying to go forward and improve the relationship.”

148.3 Mr Safo-Poku does not appear willing to put things behind him. He was very focussed on how he felt about the grievance. The claimant’s grievance against Ms Safo-Poku did not make serious allegations. The claimant labelled his complaint as victimisation and referred to the Equality Act 2010. However, the substance of the complaints mainly related to how the grievance had been handled on a practical level, such as not providing notes of meetings in a timely manner. However, the way that Mr Safo-Poku portrays the grievance during the mediation is at odds with that. For example, Mr Safo-Poku suggests that the allegations were so serious they could be career ending or could even be criminal.

148.4 Mr Safo-Poku appeared unwilling to engage and move forward. To that extent he was not listening to the claimant. He reiterated repeatedly how he felt about the grievance. There was nothing within what he said during the mediation that indicates Mr Safo-Poku was willing or able to understand the claimant’s position.

[149]The mediation with Ms De Souza took place on 4 March 2021. We have also seen the transcript of that mediation. We found nothing untoward about what occurred. Both the claimant and Ms De Souza were able to explain how they felt. Ms De Souza was clearly focussed on what would happen in the future. She expressed concern about trust and that this would need to be rebuilt. However, she clearly engaged with what the claimant said and indicated that she thinks it is possible to rebuild their relationship. The claimant’s mental health is barely referred to and nothing is said that could be described as an attack. Neither does Ms De Souza say anything that could be viewed as putting the claimant down. Overall, the transcript of this meeting reads as a productive, forward looking mediation.

[150]No other mediations took place. On 3 March 2021 Ms Demian wrote to the claimant to say that the mediation with BV, Mr Willis and Mr Jaworski would need to be rescheduled until the following week.

[151]The claimant was then signed off work for a month from 8 March 2021 with anxiety and recurrent depression.

[152]On 8 March 2021 the claimant wrote to Ms Demian to say he was not well enough for the mediations that had been rescheduled for that day. The claimant expressed his perspective about the mediation and said it felt like “another opportunity to attack/bully me making it very stressful and unfair on myself”. He does not mention his mental health in this email other than generally saying the process has been stressful.

[153]On 15 March 2021 Ms Demian writes to the claimant to confirm he will receive SSP. She also asked the claimant to provide some more information about how he felt about the mediation and why. Ms Demian asked whether he would like support from the respondent.

[154]On 8 April 2021 Ms Demian wrote to the claimant to ask if he was fit to continue with the mediation. The claimant responded to say that he was back to work, meaning that he was no longer signed off as unfit. On 12 April 2021 Ms Demian writes to the claimant asking whether he still wanted to attend a second mediation with Ms De Souza. She also asks him to respond to the queries she had sent on 15 March 2021.

[155]The claimant responded with a lengthy email going over a number of the events over the previous months, which he was still not happy about.

[156]On 16 April 2021 the claimant wrote again to Ms Demian. He asks if he is allowed to speak to others at Regent’s Place, given that the suspension was lifted in February. Ms Demian responded to this email. She asked if the claimant felt mediation had been unsuccessful and he did not wish to continue. She asked what other support the claimant needed to return to work. She concludes with a proposed return to work date of 26 April 2021. She does not respond to the claimant’s question about speaking to others at Regents Place.

[157]On 19 April 2021 Ms Demian chases up a response to that email and asks for a response by 12pm the next day. Ms Demian claimant writes to the claimant again on 22 April 2021 asking for a response. She says “I will take your silence on the matter that you no longer wish to discuss or continue the mediation”. She confirms he is expected back at work on 26 April 2021.

[158]Attached to the email was a letter from Mr Fletcher. This said that the claimant had been required to attend mediation with 5 individuals. The respondent said that the mediation was due to “relationship breakdown between parties due to allegations being raised by you throughout your investigation”. Mr Fletcher stated that the claimant had failed to make himself available for the mediation so they had decided he did not want to proceed. We note here that the claimant had not any point said that he did not wish to mediate. He had corresponded with Ms Demian setting out his concerns about what had occurred in the March mediations. Ms Demian did not properly respond to these concerns or offer any reassurances about what would happen at the next mediations.

[159]The claimant responded later that day, 22 April 2022. He challenged that the mediation had been described as a requirement, rather than optional. He set out various other concerns about the mediation process. The claimant also set out some suggestions of the support that could be provided to assist him back to work. This is in response to Ms Demian saying he will return to work on 26 April 2022. Meeting 26 April 2021

[160]In the preceding few days Ms Demian had been liaising with other individuals obtaining statements about the claimant. Ms Demian said in her evidence “she became aware that once the claimant’s colleagues knew that he would be returning to work soon they became alarmed and were not happy about it”. This is why she asked for statements. When asked about this in evidence she said she had been instructed to do this by Mr Safo-Poku.

[161]In oral evidence none of the respondent’s witnesses provided a full account of what happened and none of them would take responsibility for making the decision to obtain these statements. No one was able to explain how it was anyone became aware of possible difficulties with the claimant returning to work. There were some emails between Ms Demian and Mr Willis from 20 April 2021 which clearly indicated that this had already been discussed at that point. Mr Willis gave a statement and he also spoke with MR and BV, who provided statements. Mr Safo-Poku and Ms De Souza also provided statements. We noted in the evidence the statement by Mr Safo-Poku was anonymised but it was clearly by him as it referred to mediation. These were all made on 21 and 22 April 2021. The statements are universally negative, all saying the individuals are unwilling to work with the claimant.

[162]In the absence of a credible alternative explanation, we concluded that it was likely that this process is what was being referred to by Mr Safo-Poku in his earlier email referencing an SOSR process. It appears to have been a ‘plan B’ if mediation was not successful. Essentially, the respondent had already decided before the mediation happened that they would be taking statements from individuals the claimant worked with.

[163]On 23 April 2021 Ms Demian responds to the claimant’s email and informs him he was required to report to Head Office on 26 April 2021. Ms Demian said this was due to “the content of your email”. In fact, Ms Demian had already been gathering statements from others about the claimant in the days before she heard back from the claimant.

[164]The claimant attended the meeting on 26 April 2021. It was chaired by Sam Fletcher with Mr Demian also in attendance. The claimant was not accompanied and had not been told he could have anyone with him.

[165]At the meeting Mr Fletcher told the claimant they had received statements from colleagues expressing their concern about the claimant returning to work. Mr Fletcher read out the statements. He then informed the claimant there was a relationship breakdown so they would be removing him from Regent’s Place while that process was managed. Mr Fletcher says that they would be triggering a mobility clause in the claimant’s contract. We were provided with a script for the meeting which indicated that alternative roles would be considered. The minutes of the actual meeting do not include this. Mr Fletcher did not explain to the claimant what would happen next.

[166]Ms Demian sent the claimant an email later that day with the minutes and a letter attached. The letter we saw was dated 25 April 2022 and had details missing. The letter reiterates the same points as the notes of the meeting. There is no explanation of what process the first respondent intended to follow next. The letter states that the claimant will be required to attend another meeting but the date and time are left blank. There is a general warning at the end that the claimant’s employment may be terminated if they have no alternative employment that can be considered.

[167]The claimant was signed off work again from 29 April 2021. This was with depressive disorder. During May 2021 the claimant remains in contact with Ms Demian. This correspondence mainly relates to the claimant’s sick pay. The claimant only received SSP at this time.

[168]On 2 June 2021 the claimant wrote to Ms Demian to say he was fit to work. He asked why he was not allowed to contact friends or colleagues and asks whether this is fair.

[169]Ms Demian writes to the claimant on 4 June 2020 informing the claimant they would like to refer him to Occupational Health. The claimant responded on 7 June saying that an Occupational Health referral should have been made the previous year when he returned from his first period of absence. He confirmed he would attend the Occupational Health assessment. Ms Demian wrote again on 9 June 2020 to say that they had never prevented him from being in contact with colleagues with whom he also had personal relationships. Further grievance

[170]On 14 June 2021 the claimant raises a further grievance (Grievance 8). This is sent directly to Mr Conry. Some of this reiterates the complaints he had made previously that were addressed by Ms Chadbourne. He also complained about events since, including the mediation and meeting of 26 April 2021. At various points in the letter the claimant referred to the Equality Act 2010 and said he was being treated less favourably in relation to his mental health.

[171]This grievance was acknowledged by Mr Conry. Mr Conry copied in Mr SafoPoku and Ms Demian to the response, but the grievance was not attached.

[172]On 16 June 2021 the claimant emails Mr Conry asking for the details of his line manager. He said that he felt that the company was not following its own procedures so he wanted to escalate his grievance to them.

[173]On 17 June 2021 the claimant sent a further grievance to Ian Leeding, Mr Conry’s manager (Grievance 9). This is about how Mr Conry was handling the grievance including the fact that Mr Conry had copied Mr SafoPoku and Ms Demian into an email. He says this is victimisation.

[174]Mr Conry arranged a grievance meeting with the claimant. It was due to be held on 1 July 2021 but Mr Conry postponed it the day before.

[175]The claimant was reviewed by Occupational Health on 5 July 2021. Occupational Health said that the claimant was fit to return to work and to attend meetings. They did flag up that he would benefit from having someone accompany him to meetings. They confirmed that he was still suffering from depression and he would probably be disabled under the Equality Act 2010.

[176]According to Mr Conry, on 7 July 2021 he was contacted by British Land who said they had received a letter from the claimant via their whistleblowing policy. The claimant’s letter to British Land reiterated many of the same complaints he had raised since September 2020.

[177]The claimant attended a grievance meeting with Mr Conry on 14 July 2021. The claimant was accompanied at this meeting. At the beginning of the meeting Mr Conry made it clear that he was not going to revisit matters which had been dealt with by Ms Chadbourne.

[178]At the end of the meeting Mr Conry said that it “could be perceived as a breakdown between yourself and the company” and he asked the claimant if that could be fixed. The claimant said he was trying to fix it and that was why he raised a grievance. He said he wanted to be treated fairly.

[179]At no point during this meeting does Mr Conry say anything about the claimant’s letter to British Land that he had found out about the week before. Ms Demian wrote to the claimant on 15 July 2021 informing him they had been contacted by British Land. This was a short letter seeking consent to discuss him with British Land.

[180]On 16 July 2021 wrote to Mr Conry (Grievance 10). In this letter he set out more detail of the evidence he said he had provided in support of his complaints. Dismissal

[181]On 30 July 2021 Conry wrote to the claimant informing him that he was dismissed with immediate effect. The claimant was paid in lieu of 9 weeks’ notice.

[182]At this point there had been no further meeting between Mr Conry and the claimant. Mr Conry had not provided an outcome to the grievance by this point. This letter terminating the claimant’s employment effectively came ‘out of the blue’.

[183]In the letter Mr Conry refers to multiple issues. This includes the following:183.1 the claimant’s grievances and Mr Conry’s perception that he remained dissatisfied with the outcomes;

183.2 the claimant’s ill health, with Mr Conry suggesting that the first respondent had tried to seek clarity about this and the support he needed;

183.3 the mediation;

183.4 the Occupational Health report and concerns about the claimant returning to work with Mr Willis;

183.5 Mr Conry said they had considered redeployment but they could not identify an alternative role.

183.6 the claimant’s letter to British Land; and

183.7 in conclusion Mr Conry says there has been an irretrievable breakdown in the relationship.

[184]We were provided with no evidence of anyone within the first respondent actually looking to see if the claimant could be redeployed or if there were possible vacancies at sites other than Regents Place. In oral evidence none of the respondents’ witnesses who may have been involved in such a process could confirm they had done this. Mr Conry said that he thought Ms De Souza looked for other roles but she denied this. The claimant however provided evidence of a number of vacancies with the respondent that were being externally advertised in late July 2021. These were more junior roles, such as cleaning supervisor positions, but were never discussed with the claimant.

[185]We also note that at no point had the respondent undertaken any active process to discuss the claimant’s mental health with him and what support he may require. There were a few emails where Ms Demian asked about what support he may need, but these queries were limited to particular contexts. In April 2021, before the 26 April 2021 meeting, the claimant directly asked Ms Demian what the company proposed to facilitate his return to work including the support he may need. Instead of holding a meeting to discuss how to facilitate the claimant’s return the first respondent started what was is described as an SOSR process, informing him of the complaints by others on 26 April 2021.

[186]The claimant appealed against dismissal on 10 August 2021. In this he set out his position on what had been said in the dismissal letter. On 18 August 2021 Mr Conry responded to the claimant to say his appeal would not be considered because the dismissal was due to the fundamental breakdown in trust and confidence so the ACAS code of practice did not apply.

[187]On 27 August 2021 Mr Conry wrote to the claimant with the outcome to his grievance. Miscellaneous findings of fact

[188]Within the claimant’s case he pursues a number of claims that the respondent failed to make reasonable adjustments. Some of the relevant findings of fact are set out above. However, there are a number of claims which do not clearly fit into the chronology of events. These broadly relate to general day to day arrangements and working practice. These include claims about fixed work start times, tasks such as cleaning checks beside the road and provision of laptops.

[189]It is not clearly set out in his evidence when it was that the claimant says various PCPs applied nor when he was placed at a disadvantage. However, we note that the claimant was suspended on 17 September 2020 and did not return to work. Therefore, these allegations must relate to either the period of time before the claimant was signed off work in October 2019 or the period between February 2020 and September 2020.

[190]The claimant provided very little evidence about these matters. He has not clearly set out what the situation was or why this placed him at a disadvantage. There is also no contemporaneous documents that indicate that the claimant had any issues with start times, laptops, or undertaking cleaning checks.

[191]During oral evidence the claimant alluded to difficulties he felt at the time relating to his mental health linked to some of these issues. However, there was still no clear evidence on which we could make any findings about what happened. The claimant’s descriptions were general in nature, rather than any clear account of anything that had happened. There was also no evidence that he communicated these details to anyone, including Mr Willis.

The Law

[192]The Claims pursued by the Claimant are:192.1 detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996);

192.2 automatically unfair dismissal due to having made a protected disclosure (section Employment Rights Act 1996);

192.3 unfair dismissal – ordinary unfair dismissal (section 98 Employment Rights Act 1996);

192.4 direct disability discrimination (section 13 Equality Act 2010);

192.5 failure to make reasonable adjustments (section 20-21 Equality Act 2010);

192.6 harassment on the grounds of disability (section 27 Equality Act 2010);

192.7 victimisation (section 27 Equality Act 2010);

192.8 unlawful deduction of wages (section 13 Employment Rights Act 1996)/breach of contract;

192.9 holiday pay under the Working Time Regulations 1998; and

192.10 breach of the right to be accompanied (section 10 Employment Relations Act 1999). Disability

[193]Section 6 Equality Act 2010 provides: (1) A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

[194]The Guidance on matters to be taken into account in determining questions relating to the definition of disability states this at A3 in relation to the meaning of an impairment: “The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.”

[195]At A5 the Guidance gives examples of impairments and these include “mental health conditions with symptoms such as anxiety, low mood, panic attacks” and “mental illnesses such as depression”.

[196]In J v DLA Piper UK LLP

[2010] ICR 1052

EAT, Underhill P (as he then was) set out the following principles in relation to the definition of “impairment”: “The first point concerns the legitimacy in principle of the kind of distinction made by the tribunal, as summarised at para 33(3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness – or, if you prefer, a mental condition – which is conveniently referred to as “clinical depression” and is undoubtedly an impairment within the meaning of the act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or – if the jargon may be forgiven – “adverse life events”. We dare say that the value or validity of that distinction could be questioned at the level of deep theory, and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians…and which should in principle be recognised for the purposes of the Act. We accept it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most lay people, use such terms as “depression” (“clinical” or otherwise), “anxiety” and “stress”. 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), 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.”

[197]In Herry v Dudley Metropolitan Council

[2017] ICR 610

, HHJ Richardson, said this: “56 Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An employment tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an employment tribunal) are not of themselves mental impairments; they may simply reflect a person’s character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an employment tribunal with great care; so much any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction, but in the end the question whether there is a mental impairment is one for the employment tribunal to assess.”

[198]A “substantial” adverse effect is one that is “more than minor or trivial” (s. 212(1) EqA 2010). In determining whether an effect on normal day to day activities is substantial, a Tribunal should have regard to the time taken to carry out the activity (Guidance [B2]) and the way in which the activity is carried out (Guidance [B3]).

[199]“Normal day-to-day activities” are things that people do on a regular or daily basis (Guidance [D2]), such as shopping, reading, writing, having a conversation, using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities. They do not include activities which are only normal for a particular person or a small group of people (Guidance [D4]). They do not include highly specialised work activities which are not normal day-to-day activities for most people (Guidance [D8]).

[200]Schedule 1 to the Equality Act 2010 sets out further provisions relating to the determination of disability. Paragraph 2(1) of Schedule 1 provides that the effect of an impairment will be “long term” if:(a) it has lasted for at least 12 months;

(b) it is likely to last for at least 12 months; or

[201]The question of whether an impairment is “likely” (in the sense of “it could well happen”) to last for at least 12 months falls to be determined based only on evidence that was available, and on the circumstances prevailing at the relevant time. The Tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months; see McDougall v Richmond Adult Community College

[2008] ICR 431

at [23] – [24].

[202]Paragraph 2(2) of Schedule 1 provides that if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it is to be treated as continuing to have that effect if it is likely (again in the sense of “it could well happen”) to recur. The likelihood of recurrence is again to be judged based on evidence available and circumstances prevailing at the relevant time (McDougall at [26]). Protected disclosures

[203]Section 43A of the ERA states: “In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”

[204]Section 43B of the ERA states: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— […] (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […] (d) that the health or safety of any individual has been, is being or is likely to be endangered, […] (e) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

[205]To succeed with any whistleblowing claim a claimant must first show they have made a qualifying disclosure as defined above. This comprises the following elements:205.1 there must be a disclosure of information;

205.2 the individual genuinely believed the disclosure was in the public interest; and

205.3 in the reasonable belief of the individual that information showed one or more of the matters set out in section 43B.

[206]The Court of Appeal provided further guidance in Kilraine v London Borough of Wandsworth

[2018] ICR 1850

. It said: “30 the concept of ‘information’ as used in section 43B(1) is capable of covering statements which might also be characterized as allegations. [….] Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other […] 31. On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. […] 35 […] In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1) [...] 36 […] the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters […. ] this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[207]The Court of Appeal considered the ‘public interest’ test in Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

. The Court of Appeal identified the following principles: “27 […] The tribunal thus has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(b) whether, if so, that belief was reasonable 28 […] that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest […] All that matters is that the tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker [….] 29 […] the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. […] 30 […] while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it […] 31 […] the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest […].”

[208]In relation to the public interest, the Court of Appeal considered the situation where the breach was of the worker’s own contract. It said: “37. […] In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. […] The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case, […] the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.”

[209]Section 43(c) sets out that if a qualifying disclosure is made to an individual’s employer it will be a protected disclosure. Failure to make reasonable adjustments (section 20-21 Equality Act 2010)

[210]Section 20 of the Equality Act 2010 provides:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty imposes the following three requirements.

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

[211]Section 21 of the Equality Act 2010 provides that a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments, and further that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[212]The EAT in Environment Agency v Rowan

[2008] ICR 218

held that an employment tribunal considering a breach of the duty to make reasonable adjustments (under the then-current DDA 1995), must identify:(a) the provision, criterion or practice applied by or on behalf of the employer; or

(b) the physical feature of premises occupied by the employer;

(d) the nature and extent of the substantial disadvantage suffered by the claimant. This guidance continues to apply to claims brought under s. 20 – 21 Equality Act 2010.

[213]The Court of Appeal in Ishola v Transport for London

[2020] ICR 1204

has given detailed guidance as to the meaning of the phrase “provision, criterion or practice”: “35. The words "provision, criterion or practice" are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the Statutory Code of Practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words "act" or "decision" in addition or instead. As a matter of ordinary language, I find it difficult to see what the word "practice" adds to the words if all one-off decisions and acts necessarily qualify as PCPs…36. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. […..]. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. [….].

37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. […[ If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.

38. [….] It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. [….].”

[214]In considering whether the application of a PCP places a disabled person at a substantial disadvantage: “one must simply ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able bodied” Griffiths v Secretary of State for Work and Pensions

[2017] ICR 150

[215]In considering whether an employer has complied with the duty to make reasonable adjustments, the focus must be on the practical steps that can be taken to alleviate the substantial disadvantage suffered, rather than the process by which a decision is reached, or the information obtained in reaching that decision. See on this point Royal Bank of Scotland Plc v Ashton

[2011] ICR 632

, and in particular the quotation from Spence v Intype Libra Ltd at (reference to section 4A is to the predecessor Disability Discrimination Act 1995): “The nature of the reasonable steps envisaged in section 4A is that they will mitigate or prevent the disadvantages which a disabled person would otherwise suffer as a consequence of the application of some provision, criterion or practice … The duty is not an end in itself but is intended to shield the employee from the substantial disadvantage that would otherwise arise. The carrying out of an assessment or the obtaining of a medical report does not of itself mitigate or prevent or shield the employee from anything. It will make the employer better informed as to what steps, if any, will have that effect, but of itself it achieves nothing.”

[216]While it is not a breach of the duty to make reasonable adjustments to fail to undertake a consultation or assessment with the employee (Tarbuck v Sainsburys Supermarkets Ltd), it is best practice so to do. The provision of managerial support or an enhanced level of supervision may, in accordance with the Code of Practice, amount to reasonable adjustments (Watkins v HSBC Bank Plc

[2018] IRLR 1015

)

[217]The adjustment contended for need not remove entirely the disadvantage; the DDA says that the adjustment should 'prevent' the PCP having the effect of placing the disabled person at a substantial disadvantage. Leeds Teaching Hospital NHS Trust v Foster UK EAT /0552/10, [2011] EqLR 1075: when considering whether an adjustment is reasonable it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage— there does not have to be a 'good' or 'real' prospect of that occurring. Cumbria Probation Board v Collingwood

[2008] All ER (D) 04

(Sep) - 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'.

[218]The test of 'reasonableness', imports an objective standard and it is not necessarily met by an employer showing that he personally believed that the making of the adjustment would be too disruptive or costly. Lincolnshire Police v Weaver

[2008] All ER (D) 291

(Mar): it is proper to examine the question not only from the perspective of a claimant, but that a tribunal must also take into account 'wider implications' including 'operational objectives' of the employer.

[219]The EHRC Code includes examples of adjustments which may be reasonable:a. making adjustments to premises

b. allocating some of the disabled person's duties to another worker

c. transferring the worker to fill an existing vacancy

d. altering the worker's hours of working or training

e. assigning the worker to a different place of work or training or arranging home working

f. allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment

g. acquiring or modifying equipment

h. providing supervision or other support.

[220]In O’Hanlon v Revenue and Customs Commissioners

[2007] ICR 1359

, the Court of Appeal endorsed the EAT’s view that it will be a “rare case indeed” where paying higher or more sick pay to a disabled employee than would be payable to a non-disabled person would be a reasonable adjustment. Direct discrimination – section 13 Equality Act 2010

[221]Direct discrimination takes place where a person treats the claimant less favourably because of race than that person treats or would treat others. Under s23(1) Equality Act 2010, when a comparison is made, there must be no material difference between the circumstances relating to each case. Whether treatment is less favourable is a matter of fact for the Tribunal to determine. The test applied is objective, i.e. it is not just a matter of a claimant believing any treatment is less favourable.

[222]Decisions are frequently reached for more than one reason. Provided the protected characteristic or, in a victimisation claim, the protected act, had a significant influence on the outcome, discrimination is made out. (Nagarajan v London Regional Transport

[1999] IRLR 572

, HL)

[223]Section 136 of the Equality Act 2010 sets out the burden of proof. Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision.

[224]Accordingly, where a claimant establishes facts from which discrimination could be inferred then the burden of proving that the treatment was in no sense whatsoever unlawful passes to the respondent. Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

. Once the burden of proof has shifted, it is for the respondent to prove that they did not commit the act of discrimination. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. Since the facts necessary to prove an explanation would normally be in the possession of the respondents, a tribunal would normally expect cogent evidence to discharge that burden of proof.

[225]The Court of Appeal in Madarassy v Nomura International plc

[2007] EWCA Civ 33

;

[2007] IRLR 246

, a case brought under the then Sex Discrimination Act 1975, states: ‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’

[226]Inferences can only be drawn from established facts and cannot be drawn speculatively or on the basis of a gut reaction or ‘mere intuitive hunch’ (Chapman v Simon

[1994] IRLR 124

) or from ‘thin air’ (Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

). Discrimination also cannot be inferred only from unfair or unreasonable conduct (Glasgow City Council v Zafar

[1998] ICR 120

[227]This means that to succeed with her claim for direct discrimination the claimant must first show that she has been treated less favourably than others in the same circumstances. The claimant must also have shown facts from which we can infer that the reason for the less favourable treatment may have been due to the claimant’s disability. Only after this does the burden shift to the respondent who must show that there is a different nondiscriminatory reason for the treatment, that it is in no way due to the claimant’s disability. Failure to make reasonable adjustments – section 20-21 Equality Act 2010

[228]Section 20 of the Equality Act 2010 provides: (4) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (5) The duty imposes the following three requirements. (6) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage… The second and third requirements are not relevant for this case.

[229]Section 21 EqA 2010 provides that a failure to comply with the first requirement is a failure to comply with a duty to make reasonable adjustments, and further that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[230]The EAT in Environment Agency v Rowan

[2008] ICR 218

held that an employment tribunal considering a breach of the duty to make reasonable adjustments (under the then-current DDA 1995), must identify: (e) the provision, criterion or practice applied by or on behalf of the employer; or (f) the physical feature of premises occupied by the employer; (g) the identity of non-disabled comparator(s) (where appropriate); and (h) the nature and extent of the substantial disadvantage suffered by the claimant. This guidance continues to apply to claims brought under s. 20 – 21 EqA 2010 (see e.g. Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins

[2014] ICR 341

at [29] – [30], where the EAT also noted that it is necessary for the ET to identify the “step” or “steps” that the employer should have to take to avoid the disadvantage).

[231]The Court of Appeal in Ishola v Transport for London

[2020] ICR 1204

has given detailed guidance as to the meaning of the phrase “provision, criterion or practice”: “35. The words "provision, criterion or practice" are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the Statutory Code of Practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words "act" or "decision" in addition or instead. As a matter of ordinary language, I find it difficult to see what the word "practice" adds to the words if all one-off decisions and acts necessarily qualify as PCPs…36. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers (or adopting Mr Jones' approach, the effect or impact) but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course (as Mr Jones submits) that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.

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

38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010 , all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.”

[232]In considering whether the application of a PCP places a disabled person at a substantial disadvantage: “one must simply ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person. The fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able bodied” Griffiths v Secretary of State for Work and Pensions

[2017] ICR 150

[233]In considering whether an employer has complied with the duty to make reasonable adjustments, the focus must be on the practical steps that can be taken to alleviate the substantial disadvantage suffered, rather than the process by which a decision is reached, or the information obtained in reaching that decision. See on this point Royal Bank of Scotland Plc v Ashton

[2011] ICR 632

[234]Pool of comparators: has there been a substantial disadvantage to the disabled person in comparison to a non-disabled comparator? Archibald v Fife Council

[2004] UKHL 32

[2004] IRLR 651

[2004] ICR 954

: the proper comparators were the other employees of the council who were not disabled, were able to carry out the essential functions of their jobs and were, therefore, not liable to be dismissed.

[235]While it is not a breach of the duty to make reasonable adjustments to fail to undertake a consultation or assessment with the employee (Tarbuck v Sainsburys Supermarkets Ltd), it is best practice so to do. The provision of managerial support or an enhanced level of supervision may, in accordance with the Code of Practice, amount to reasonable adjustments (Watkins v HSBC Bank Plc

[2018] IRLR 1015

)

[236]The adjustment contended for need not remove entirely the disadvantage; the DDA says that the adjustment should 'prevent' the PCP having the effect of placing the disabled person at a substantial disadvantage. Leeds Teaching Hospital NHS Trust v Foster UK EAT /0552/10, [2011] EqLR 1075: when considering whether an adjustment is reasonable it is sufficient for a tribunal to find that there would be 'a prospect' of the adjustment removing the disadvantage— there does not have to be a 'good' or 'real' prospect of that occurring. Cumbria Probation Board v Collingwood

[2008] All ER (D) 04

(Sep) - 'it is not a requirement in a reasonable adjustment case that the claimant prove that the suggestion made will remove the substantial disadvantage'.

[237]The test of 'reasonableness', imports an objective standard and it is not necessarily met by an employer showing that he personally believed that the making of the adjustment would be too disruptive or costly. Lincolnshire Police v Weaver

[2008] All ER (D) 291

[238]The EHRC Code includes examples of adjustments which may be reasonable:a. making adjustments to premises

b. allocating some of the disabled person's duties to another worker

c. transferring the worker to fill an existing vacancy

d. altering the worker's hours of working or training

e. assigning the worker to a different place of work or training or arranging home working

f. allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment

g. acquiring or modifying equipment

h. providing supervision or other support. Harassment – Section 26 Equality Act 2010

[239]Under section 26 Equality Act 2010 (1) a person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[240]With a claim for harassment the claimant must prove on the balance of probabilities that the conduct he has complained of occurred.

[241]The test of whether the conduct amounted to harassment is part objective and part subjective. The Tribunal must take into account the claimant’s subjective perception but it is also required to look at that objectively to see if it was reasonable for the claimant to have considered his dignity to be violated or that it created an intimidating, hostile, degrading, humiliating or offensive environment.

[242]In Grant v HM Land Registry

[2011] EWCA Civ 769

the Court of Appeal said that: “Tribunals must not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive environment”. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

[243]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

the EAT stated: “Dignity is not necessarily violated by things said or done which are trivial and transitory, particularly if it should have been clear that any offence was unintended. While it is also 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.”

[244]Whether or not the conduct is related to a protected characteristic is a matter of fact for the Tribunal drawing on all the evidence before it. Victimisation – Section 27 Equality Act 2010

[245]Section 27 of the Equality Act 2010 provides as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information about proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[246]In a victimisation claim there is no need for a comparator. The Act requires the Tribunal to determine whether the claimant had been subject to a detriment because of doing a protected act. As Lord Nicholls said in Chief Constable of the West Yorkshire Police v Khan

[2001] IRLR 830

:- “The primary objective of the victimisation provisions ... is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory right or are intending to do so.”

[247]The Tribunal has to consider(1) the protected act being relied on;

(2) the detriment suffered;

(3) the reason for the detriment;

(4) any defence; and

(5) the burden of proof.

[248]To benefit from protection under the section the claimant must have done or intended to or be suspected of doing or intending to do one of the four kinds of protected acts set out in the section. The allegation relied on by the claimant must be made in good faith. It is not necessary for the claimant to show that he or she has a particular protected characteristic but the claimant must show that he or she has done a protected act. An act can be protected even if the individual does not expressly make reference to a breach of the Equality Act 2010. However, the facts that are asserted must be capable of being a breach of the Equality Act 2010.

[249]The question then to be asked by the tribunal is whether the claimant has been subjected to a detriment. The protected act must be the reason for the treatment which the claimant complains of, and the detriment must be because of the protected act. There must be a causative link between the protected act and the victimisation and accordingly the claimant must show that the respondent knew or suspected that the protected act had been carried out by the claimant, (South London Healthcare NHS Trust v AlRubeyi EAT0269/09).

[250]What this means is the claimant must first show that he has done something which is a protected act under the Equality Act 2010. Having established a protected act the claimant must show there has been a detriment. The issue for the Tribunal to determine is whether or not there is a causal connection between the act and detriment. Detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996);

[251]Section 47B of the Employment Rights Act 1996 says: “A worker has the right not to be subjected to any detriment by an act, or any deliberate failure to act, by his employer done on the ground that the workers made a protected disclosure.”

[252]Section 47B that if the worker is an employee then dismissal cannot be a detriment. The reason for this is that an employee can bring a claim for automatic unfair dismissal under section 103A Employment Rights Act 1996. A worker who is not an employee cannot bring an unfair dismissal claim so if their employment is terminated it can only be brought as a claim for a

[253]Detriment is not defined in the Employment Rights Act 1996. The caselaw on discrimination provides guidance on what is a detriment. Something will be a detriment if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. An unjustified sense of grievance cannot amount to a detriment. Shamoon v Chief Constable of the RUC

[2003] IRLR 285

[254]Section 48(2) provides that on a complaint to an Employment Tribunal “… it is for the employer to show the ground on which any act, or deliberate failure to act, was done”

[255]Care must be taken to establish the ‘reason why’ the employer acted as it did. The ‘reason why’ is the set of facts operating on the mind of the relevant decision-maker, it is not a ‘but for’ test. The correct test is whether 'the protected disclosure materially influences (in the sense of being more than a trivial influence on) the employer's treatment of the whistleblower’ (Fecitt v NHS Manchester

[2012] IRLR 64

at [45]).

[256]If an employment tribunal can find no evidence to indicate the ground on which a respondent subjected a claimant to a detriment, it does not follow that the claim succeeds by default. In Ibekwe v Sussex Partnership NHS Foundation Trust,

UKEAT/0072/14/MC

the EAT concluded that there were no grounds for interfering with the tribunal’s unequivocal finding that there was no evidence that an unexplained managerial failure to deal with an employee’s grievance was on the ground that the grievance contained a protected disclosure Automatically unfair dismissal due to having made a protected disclosure (section Employment Rights Act 1996);

[257]Section 103A of the Employment Rights Act 1996 provides that: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”

[258]The burden of proof lies with the respondent who mush show that the reason or principle reason, for dismissal was not the protected disclosure. The Tribunal must consider what lead the decision maker to act in the way they did (Kuzel v Roche Products Limited

[2008] EWCA Civ 380

). Unfair dismissal – ordinary unfair dismissal (section 98 Employment Rights Act 1996);

[259]The right not to be unfairly dismissed is conferred by Section 94 of the Employment Rights Act 1996. Where, as here, there is no dispute that an employee was dismissed, the question of whether any such dismissal was unfair turns upon the application of the test in Section 98 of the Employment Rights Act 1996. The material parts of that section are as follows: “98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3) ...

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[260]In cases of ordinary unfair dismissal, where the employee has at least 2 years’ service, the respondent carries burden of proof in showing the sole or principal reason for dismissal. Then there is a neutral burden on whether the dismissal for that reason was fair or unfair in all the circumstances (Boys and Girls Welfare Society v McDonald

[1996] IRLR 129

)

[261]In a suitable case the employer may rely upon the breakdown in trust and confidence between the employer and employee as some other substantial reason under section 98(1)(b) ERA (“SOSR”), even where the employee’s conduct has contributed towards that breakdown (Ezsias v North Glamorgan NHS Trust

[2011] IRLR 550

, EAT).

[262]Following Sainsbury’s Supermarket Ltd v Hitt

[2003] IRLR 23

and Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

, the Tribunal is not asked to consider what it might regard as fair, but what a reasonable employer might consider in same circumstances. The question is not whether the Tribunal would have come to the same decision itself. This is known as the “range of reasonable responses” test. That test recognises that two employers faced with the same circumstances may arrive at different decisions but both of those decisions might be reasonable.

[263]Ordinarily, a reasonable process is a requirement of a fair dismissal. Where there is a complete breakdown in working relations, an employer may be entitled to dismiss the employee without following a procedure, on the basis that a process would be futile. This will only apply in “exceptional” cases. In Gallacher v Abellio Scotrail Ltd EATS 0027/19, the EAT held that this was a rare case where the Tribunal was entitled to reach the conclusion that a dismissal procedure could be dispensed with because it was reasonably considered by the employer to be futile in the circumstances.

[264]The test is an objective one in that the Tribunal must ask whether an employer, acting reasonably, could have made the decision that it would have been futile to follow proper procedures. There is no requirement that the employer did in fact consider and make a deliberate choice to dispense with a procedure (Duffy v Yeomans and Partners Ltd

1995 ICR 1

, CA). Wages, holiday pay and breach of contract

[265]The law on unpaid wages is set out in section 13 Employment Rights Act 1996. An employer must not make any deduction from wages unless it is required by statute or the workers contract or there has been agreement to the deduction in writing.

[266]The key question will be identifying what the worker or employee was entitled to be paid at the relevant time under their contract of employment. If the employee has been paid less than they were entitled to be paid this will be a deduction. It will be unauthorised unless one of the allowed circumstances apply.

[267]The right to paid annual leave is set out in the Working Time Regulations 1998. An individual accrues a minimum amount of annual leave every year. On the termination of employment the employee is entitled to be paid a sum in lieu of annual leave that has been accrued that year but not taken. The key to determining whether the respondent has failed to pay the correct holiday pay will be ascertaining how much leave had been accrued and identifying how much of that leave had been taken and what remains outstanding on the termination of employment. Time Limits

[268]Under section 123 Equality Act 2010: “(1) […] a complaint within section 120 may not be brought after the end of –(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. […] (2) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (3) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something – (a) when P does an act inconsistent with doing it, or (b) of P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[269]Under section 48 Employment Rights Act 1996: “(3) An employment tribunal shall not consider a complaint under this section unless it is presented –(a) before the end of the period of three months beginning with the date of the at or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3) – (a) where an act extends over a period the ‘date of the act’ means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was it was decided on; and in the absence of evidence establishing the contrary, an employer … shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonable have been expected to do the failed act if it was to be done.”

[270]In Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

the Court of Appeal set out the meaning of ‘act extending over a period’ in the context of discrimination claims. The same test applies for detriment claims brought under the Employment Rights Act 1996. The test is whether there was an ongoing situation or continuing state of affairs, distinct from a succession of isolated or specific acts.

[271]In Arthur v London Easter Railway Ltd

[2007] IRLR 58

the Court of Appeal held that when relying on a series of similar acts, the claimant needs to show that the claim was presented in time for at least one of those acts. When ascertaining if there was as series of similar acts the Court of Appeal said: [31] ‘The provision can therefore cover a case where, as here the complainant alleges a number of acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period … there must be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them … the necessary connections were correctly identified by Judge Reid QC as(a) being part of a “series” and

(b) being acts which are “similar” to one another. … [35] It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged. I do not find “motive” a helpful departure from the legislative language according to which the determining factor is whether the act was done “on the ground” that the employee had made a protected disclosure. Depending on the facts I would not rule out the possibility of a series of apparently disparate acts being shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure’.

Discussion and conclusions

[272]The structure of this discussion and conclusions is based on the summary of issues set out at the start of this judgment. We first address preliminary matters that underlie a number of different claims. These are:272.1 disability;

272.2 whether the claimant did any protected acts under the Equality Act 2010; and

272.3 whether the claimant made any protected disclosures under the Employment Rights Act 1996.

[273]We have then addressed the specific claims chronologically as follows:273.1 claims about events up until October 2019 when the claimant was signed off work;

273.2 claims about specific events after the claimant’s return to work up until September 2020;

273.3 claims about general failures to make reasonable adjustments in 2019 und up until 17 September 2020;

273.4 claims about 17 September 2020, including the incident with Mr Willis and suspension;

273.5 claims about the suspension and investigation process;

273.6 claims about the grievances, the investigation and outcomes;

273.7 claims for failure to make reasonable adjustments during the period of time the claimant was suspended and remained off work;

273.8 claims about the mediation process;

273.9 claims about 26 April 2021; and

273.10 claims about the dismissal. Preliminary Matters Disability

Preliminary Matters

[274]The claimant says he is disabled by reason of depression and anxiety. The respondent accepts this is the case but only concedes that the claimant was disabled due to these conditions from November 2020 onwards. The respondent also says that they only had knowledge of this from March 2021.

[275]The medical evidence the claimant provided showed the following:275.1 The claimant was starting to suffer from depression in Spring and early Summer 2019. He went to his GP on 25 June 2019 but had no time off work.

275.2 The claimant was then signed off work with depression on 29 October 2019. He returned to work in February 2020. At that point the claimant informed Mr Willis in his return to work interview that he was fine.

275.3 We were provided with the claimant’s GP notes for the whole of 2020 and 2021. After returning to work in February 2020 the claimant did not contact his GP again until the end of July 2020. This was about cluster headaches. The notes show that the claimant was not stressed at that time.

275.4 The claimant did not raise concerns with his GP about his mental health again until 29 September 2020, after he was suspended.

[276]We concluded that the claimant’s depression in 2019 was such that it had a substantial adverse effect on his ability to carry out his normal day to day activities. It was sufficiently serious that he was signed off work for several months. However, it lasted at most for 8 months, from June 2019 until February 2020. The documentary evidence indicated that by February 2020 he had largely recovered. We concluded this was a single period of depression, that appears to have been a reaction to a particularly difficult period of time in the claimant’s personal life, which resolved. Therefore, at that time the ‘long-term’ requirement was not met.

[277]The medical evidence shows the claimant starting to suffer from depression again in September 2020 and he sought treatment. This was immediately after the incidents on 17 September 2020 and subsequent suspension. We concluded that from that point the claimant’s depression was long term. The relapse in September 2020 indicated that the claimant’s depression was likely to recur when he was faced with difficult life events. The claimant had already had one significant period of depression that lasted several months. In September 2020 he started to suffer from depression again and from that point on we have concluded it was likely he would do so again were he to experience other adverse life events.

[278]Our conclusion is that the claimant was disabled due to his depression from the middle of September 2020. This is slightly earlier than was conceded by the respondent.

[279]In terms of knowledge, the respondent says they were only aware of this from March 2020. This was when the claimant was signed off work again. Before this point the claimant had been on suspension, so was not required to work. Looking at the evidence from the time, we have concluded that they were clearly aware the claimant was suffering from depression again much sooner. The respondent knew the claimant had been signed off work for several months on an earlier occasion. The claimant told Mr Monerville in the meeting on 22 September 2020 he suffered from depression, including that he was taking medication. The claimant also expressly stated he had a “mental health disability” in several of his grievances that he raised in September 2020. The claimant was disabled at that point and had clearly communicated to the respondent that he considered himself to be disabled. As a result, the respondent had the requisite knowledge from 22 September Protected Acts under the Equality Act 2010

[280]The claimant says that he did 7 things which were protected acts under the Equality Act 2010.

[281]The first he says was on 17 September 2020 when he reported to his manager about his mental health and threats at work. This was the incident between the claimant and Mr Willis. We did not accept that the claimant said anything during this encounter that could be viewed as a complaint of discrimination or anything else that amounts to a protected act. The claimant’s own account of this incident includes nothing that could be interpreted as a complaint about disability discrimination. The claimant mentions that threats had been made but in his account of this discussion he did not link them to his depression.

[282]The second act was the grievance the claimant raised on 24 September 2020. It is titled “Treated unfairly due to my mental health disability” and within the grievance the claimant expressly refers to the Equality Act 2010 and direct disability discrimination. This grievance is a protected act, which is accepted by the respondent.

[283]The third act was on 15 December 2020 when the claimant wrote to John Conry. This communication was the claimant’s appeal. Within this the claimant mentions discrimination multiple times. It is a protected act, which is accepted by the respondent.

[284]The fourth act was on 7 January 2021 and was made to Donna Chadbourne. On 7 January 2021 the claimant attended the meeting with Ms Chadbourne. During this meeting the claimant’s allegations of discrimination were discussed and in doing so the claimant reasserted his complaints of discrimination. In doing so he did a protected act. This is accepted by the respondent.

[285]The fifth act was on 8 March 2021 when the claimant says he informed Ms Demain that he was being bullied about his mental health. In the email of 8 March 2021 the claimant complains about aspects of the mediation meeting and refers to being bullied. The claimant does not refer to discrimination or to the claimant’s underlying depression. We concluded this email was not a protected act. It is too general in nature to be understood as a complaint of

[286]The sixth acts were various emails to Ms Demain during April and June 2021. Again, these include some complaints, such as the claimant not being able to contact colleagues, but they are very general in nature. The claimant does not complain of discrimination or say anything else that could be interpreted as being complaints of discrimination. These emails are not protected acts.

[287]The seventh and final act was said to be the grievance dated 15 June 2021. The claimant did not raise a grievance on 15 June 2021, but he did raise one to Mr Conry on 14 June 2021 and another to Ian Leeding, that was dated 16 June 2021 and sent on 17 June 2021. Both of these include express complaints of discrimination and refer to the Equality Act 2010. These are protected acts, which is accepted by the respondent.

[288]In summary, the claimant did four protected acts. These were on 24 September 2020, 15 December 2020, 17 January 2021 and 14 and 16 June 2021. Qualifying Disclosures under the Employment Rights Act 1996

[289]The claimant says that he made three protected disclosures.

[290]The first was in July 2020 in a meeting with Mr Willis. The claimant said this was about overcharging clients and outside areas not being covered by staff. The claimant provided no evidence about this meeting. There are no documents that indicate any such meeting occurred. In his witness evidence the claimant provided no account of any such meeting. The claimant has not proved that he said anything about these matters to Mr Willis in July 2020.

[291]The second alleged disclosure occurred during the incident between the claimant and Mr Willis on 17 September 2020. The claimant says this was also about overcharging clients and outside areas not being covered by staff.

[292]We accepted that the claimant said something about waste figures on this occasion. However, the claimant did not set out clearly in his evidence what exactly he said on this matter. The evidence from both the claimant and Mr Willis give an overall picture of the claimant raising in quick succession everything that was bothering him at the time. From this we were not persuaded that what the claimant said about this issue in the meeting was sufficiently clear to amount to information being disclosed. We concluded it was more likely a brief reference to this issue in passing. This is not sufficient to be a protected disclosure.

[293]The claimant said he made a third disclosure on 1 October 2020 during the grievance meeting with Mr Safo-Poku. Notes were made of this meeting. The claimant sent his comments on the notes, including more detail of what he says was discussed, on 13 October 2020. We accepted that when the notes and email are read together they show that the claimant said during the meeting that Mr Willis had been forging the waste figures. An allegation of this type is imparting information. Forgery is clear wrongdoing. It could be criminal conduct and as a minimum it is likely to be a breach of the respondent’s legal obligations to third parties. We also accepted it was reasonable for the claimant to believe that this was in the public interest as it affected the interests of the first respondent’s clients. Therefore, we accepted that on 1 October 2020 the claimant made a protected disclosure. Time limits

[294]The claimant started Early Conciliation on 22 February 2021. This concluded on 17 March 2021. He submitted his first ET1 on 19 April 2021. This means that any claims arising out of events that occurred before 28 December 2020 will be out of time. The Tribunal only has jurisdiction to hear those claims if they form part of an act extending over a period of time that was ongoing on 28 December 2020 or the Tribunal decides it would be just and equitable to hear those claims.

[295]For those claims where time limits are an issue we have set out our conclusions within the discussions below. The Claims Events up until October 2019

The Claims

[296]The claims that arise out of this period of time are as follows:296.1 The claimant was subjected to verbal abuse by MC, MR and BV for the whole time and up until October 2020. In addition the claimant says that BV subjected him to physical and verbal abuse in September-October 2019. These allegations are all said to be harassment related to disability.

296.2 The claimant was subjected to verbal abuse by Mike Myers in July 2019, said to be harassment related to disability.

296.3 The contract manager position was withdrawn, said to be direct

296.4 The respondent failed to refer the claimant to Occupational Health,

[297]We have already concluded that the claimant was not disabled for the purposes of the Equality Act 2010 during this period of time. This in itself is potentially a reason for these claims to not succeed. The specific claims relating to this period of time are for direct discrimination and harassment. With these types of claim it is not a strict requirement for the individual to have the relevant protected characteristic. If a claimant does not have the protected characteristic relied on they will need to put forward arguments that support their claim for discrimination. For example, they may argue that they were perceived by the respondent to have the relevant protected characteristic. The claimant has not done so in this case.

[298]Because the claimant was not disabled at the relevant time these claims do not succeed. In the event that we had found the claimant was disabled at this time the claims would still not succeed for the following reasons.

[299]The claimant did not prove that he was subjected to verbal abuse by MC, MR or BV. Neither did he prove that he was subjected to verbal and physical abuse by BV in September and October 2019. The allegations the claimant made were very general in nature. The claimant did not provide any details of any specific incidents that occurred or when these happened. We accepted that it was likely that there was some tension between the claimant and the three men. Beyond this we were unable to make any clear findings of fact of what occurred. Without knowing the details of what it is the claimant said these three men did we cannot ascertain whether or not that conduct meets the definition of harassment.

[300]In addition to this, to the extent there was any unwanted conduct by these three men, there was no evidence that it was in any way related to the claimant’s depression. The underlying tension and difficulties were due to the background personal circumstances, relating to the claimant’s marriage breakdown and new relationship. Any tensions or unwanted conduct were unrelated to the claimant’s depression.

[301]We accepted that an incident occurred involving Mr Myers. This was broadly accepted by the respondent. However, we were unable to reach any clear conclusions on exactly what occurred because the claimant did not give a clear account of this incident. We also concluded that any incident that did occur was again related to the claimant’s personal life and there is no evidence it related to the claimant’s mental health. Therefore, the claimant has not proved there was unwanted conduct that could be viewed as harassment or that it was related to his depression.

[302]The claimant did not prove that the job offer was withdrawn in June 2019. Neither did he prove that he disclosed his mental health issues to Mr Fletcher. We concluded that a role was discussed but not formally offered to the claimant. We found it was more likely that the claimant just expressed some doubts about whether he could take on the role and was generally noncommittal and as a result the matter was not taken further.

[303]The claimant was not referred to Occupational Health in October 2019. At this point the claimant had started to see his GP about his depression and was undergoing treatment. He had not been signed off work or taken any time off.

[304]In submissions the claimant provided a description of what he said was a hypothetical comparator for this claim. This was not a comparator. Instead it was a description by the claimant of an ideal situation of how an employer could act when faced with an employee starting to experience mental health difficulties. An appropriate comparator would be an employee in the same position as the claimant without his disability. This could be someone who was suffering from a different physical health issue who had seen their GP but their work was unaffected and they had no time off. There was no evidence that the respondent would have referred that person to Occupational Health. The claimant was treated the same, in that the respondent was unlikely to refer any employee to Occupational Health who was having health issues but they had no sick days and their work was unaffected. October 2019 claims

[305]The claimant has brought several claims about the incidents toward the end of October 2019 that occurred immediately before the claimant was signed off work. These claims are as follows:305.1 Fail to take the claimant to hospital or take him home or ensure that he got home safely in October 2019 after the two roof incidents. The claimant also says the respondent failed on 25 and 26 October 2019 to protect him from a further incident involving the roof. These allegations are said to be direct discrimination.

305.2 Having a policy/practice of taking employees who have physical accidents at work to hospital or ensure they get home safely but not employees who have a mental health crisis. The claimant says the

305.3 Having a roof access procedure which did not cover mental health risks to employees. The claimant says that the respondent failed to make reasonable adjustments and should have adapted this process to remove his access. He also says the respondent should have notified property management of a risk and change the claimant’s duties to remove those duties involving the roof.

[306]Our key findings of fact about these incidents in October 2019 are as follows:306.1 We concluded there was only one incident, not two incidents.

306.2 We did not accept that the claimant discussed suicidal thoughts with Mr Willis on 17 October 2019. This was not consistent with the contemporaneous messages between them.

306.3 We accepted that Mr Willis did know that the claimant was having some struggles with his mental health and had sought some support from his GP in this respect. However, this knowledge was limited and he was not aware of how serious it had become before the claimant was signed off work.

306.4 We did not accept that that the claimant clearly stated on 23 October 2019 to Mr Willis that he had actually considered jumping from the roof. Mr Willis did not realise at the time how serious the situation could have been, or was felt to be by the claimant.

306.5 Mr Willis did send the claimant home by himself. However, he did contact the claimant relatively soon after to check that he was alright.

[307]In respect of the direct discrimination claims, the claimant has sought to compare himself to an employee who has a serious incident at work that was a physical injury rather than related to mental health. The claimant’s case is based on it being completely clear to Mr Willis, or any manager, that the claimant’s mental health was in such a bad state that he needed immediate medical treatment. Therefore, it would be appropriate to compare his treatment to an employee with a physical injury or ailment that is obvious and requires immediate medical treatment. However, we concluded that it was not obvious to Mr Willis that the claimant’s mental health was so poor or that he was in crisis. On the contrary we found that the claimant presented to Mr Willis as just feeling slightly unwell and he needed to go home. A more similar situation, so an appropriate hypothetical comparator, would be an employee with a bad headache who felt they may be coming down with the flu. That individual is not fit to stay at work, but capable of getting home by themselves.

[308]The claimant was not taken to hospital and Mr Willis did not take him home. Mr Willis did check on the claimant shortly after. This is how Mr Willis is likely to have acted towards a hypothetical comparator we have identified in the paragraph above. The claimant has not shown that a comparable employee without his disability would have been taken to hospital or taken home. Therefore, the claimant has not shown how he was treated on this occasion was less favourable.

[309]The claimant said that the respondent failed to protect him from a further incident while he was still signed off on 25 and 26 October 2019. This claim does not succeed. At this point the claimant had not been signed off work. He was not signed off work until 29 October 2019. The claimant had gone home and was not working, but he then chose to go in on 25 October 2019 to undertake his girlfriend’s work. When he contacted Mr Willis on those days he did not say he was still unwell. The claimant has not proved the allegation he relies on, because he was not signed off work on these days.

[310]The claims the claimant brings that there was a failure to make reasonable adjustments in October 2019 cannot succeed because the claimant was not disabled at this point. In the event he was disabled, we have also concluded that the respondent, and specifically Mr Willis, was not aware at the time that having access to the roof may pose a risk to the claimant. As such, the duty to make adjustments did not arise.

[311]In summary, the claims for disability discrimination relating to the period of time before the claimant was signed off work in October 2019 do not succeed.

[312]As a matter of completeness, we also concluded that these claims were all presented out of time. All these allegations relate to events before the end of October 2019. The claimant was then signed off work until February 2020. These incidents did not form part of a course of conduct extending over a period of time after the end of October 2019. They are distinct allegations about matters that occurred in 2019. The claimant did not pursue his claim until after his employment terminated, almost 2 years later. He did not raise any complaints about these matters until his grievances raised in September 2020, a year later.

[313]We note that the claimant was suffering from depression in 2019 and the beginning of 2020. It is understandable that he may not have pursued a claim at the time. However, we did not accept it would be just and equitable to extend time in respect of these claims up until April 2021, which was when the claimant submitted his first claim. There is little documentary evidence about the events the claimant complained about. The claims relied on witness evidence. This is inevitably harder if there is a delay in a claim being presented. The evidence the claimant put forward was insufficient for us to make clear findings of fact about a number of allegations, that remained general in nature. In these circumstances it would not be just and equitable to extend time, so this is a further reason these claims do not succeed. Events after the claimant’s return to work up until August 2020

[314]The claims the claimant brings about this period are as follows:314.1 Sylwia de Sousa suggested a welfare meeting but failed to arrange one. This is said to be both direct discrimination and harassment.

314.2 In the return to work meeting on 17 February 2020 Mr Willis told the claimant that he had not tried to jump off the roof and denied having knowledge of the claimant’s mental health problems. This is said to be direct discrimination. Mr Willis also commented about needing to stop roof access and not mentioning the ‘roof situation’. These comments are said to be harassment and direct discrimination.

314.3 On 17 February 2020 on the claimant’s return to work the respondent failed to complete a risk assessment, failed to complete the section on the return to work form as to whether there were underlying issues or welfare needs, failed to refer the claimant to Occupational Health. These are all said to be direct discrimination.

314.4 The respondent had a practice to not refer employees to Occupational Health for mental health problems in a timely manner once aware of a mental health problem. The claimant says the respondent should have referred the claimant to Occupational Health as a reasonable adjustment.

314.5 On 13 March 2020 Gerson de Silva warned the claimant that an attack was planned by MC, BV and MR. This is said to be harassment.

314.6 In August 2020 the claimant was asked to carry out a meeting with an employee who had mental health problems, knowing the claimant had similar problems.

[315]When the claimant was signed off work the respondent suggested a welfare meeting that ultimately did not take place. An initial meeting was arranged but then postponed because the claimant asked that the venue was changed. Ms de Sousa responded to say that it would need to be rescheduled to enable this, but then she failed to do so.

[316]The claimant first says this is harassment. We have concluded that this incident looked at objectively does not meet the definition of harassment. The failure to rearrange the meeting may have been unwelcome, it was a one off incident and relatively insignificant. There is no contemporaneous evidence that indicates that the claimant was concerned at the time. For example, he did not chase it up with Ms De Souza. Looked at objectively it cannot be said this oversight created the proscribed effect.

[317]In terms of the direct discrimination claim, not having a welfare check after being signed off for around 3 months could be less favourable treatment if other employees did have a welfare check after being signed off for a similar length of time. The claimant suggested that colleagues who were off for a similar length of time with a physical injury would have a welfare check.

[318]The question is whether the claimant has shown that a colleague with a physical injury in circumstances that are sufficiently similar would have had a welfare check. The claimant’s circumstances were not just the length of the absence. The claimant was offered a welfare check and it was postponed because of his request to rearrange the venue so it was nearer his home. An additional factor was the fact that the claimant then returned to work in February 2020, a month later, rather than remaining absent for a prolonged additional period.

[319]The claimant has asserted that an employee in these circumstances with physical ill-health would have had a welfare meeting. The claimant has not shown this is the case. It is not apparent that Ms De Sousa would have rearranged the meeting before the claimant’s return if the reason for the absence was physical ill-health rather than mental ill-health. On the contrary, we accepted Ms De Sousa’s explanation that it was an oversight. We concluded it was just as likely such an oversight would have been made in the hypothetical comparator’s case. Therefore, this claim for direct discrimination does not succeed.

[320]In respect of the return to work meeting on 17 February 2020, our key findings of fact were as follows:320.1 The return to work meeting included questions about whether an Occupational Health referral was required, whether the absence was disability related or if there was a pattern of absence. Mr Willis answered no to all of these on the form. He did not complete the section asking if there was an underlying issue or welfare need.

320.2 The record indicates that the claimant said in the meeting he was feeling better. The form also indicates the absence was not due to any occupational injury or disease.

320.3 Following this return to work interview no Occupational Health referral or risk assessment was undertaken. There is no evidence to indicate the claimant asked for or suggested these at the time.

320.4 There was a discussion about the roof access between the claimant and Mr Willis. We did not accept the claimant asked for this to be removed. We preferred Mr Willis’ account, that he raised it and the claimant indicated to him it was not a concern.

[321]Following the return to work meeting no Occupational Health referral was made. Neither was a risk assessment undertaken. The section on underlying needs on the form was not completed. The underlying factual allegations are all undisputed in this respect. The claimant says that these are all instances of direct discrimination.

[322]The claimant needs to show in relation to these issues he was treated less favourably than someone in circumstances that are the same who did not have his protected characteristic. In his submissions the claimant has identified a colleague who returned to work after a period of absence. The claimant says that when this collegue various assessments were carried out. The colleague referred to was not absent for any health related reason. We were provided with documentary evidence that indicated the colleague had been absent due to a disciplinary process and the paperwork completed on his return was an induction refresher. There was no Occupational Health referral and no ill-health return to work meeting. Neither does there appear to have been any risk assessment about the employee’s own needs. The comparator identified is not an appropriate comparator for the purposes of a direct discrimination claim because the circumstances are very different.

[323]An appropriate hypothetical comparator would be someone who had been signed off work for just under four months who on their return to work informed their manager they were better and that their absence was not due to any occupational injury. Also relevant would be the fact that before the claimant’s absence there had been no difficulties at work attributable to the claimant’s ill-health, such as previous absences or poor performance.

[324]There was no evidence provided from which we could conclude that someone with a similar period of absence for physical ill-health reasons who returned to work indicating they were fully fit again would have been referred to Occupational Health, a risk assessment undertaken or additional parts of the return to work form completed. On the contrary, the most likely explanation why these things happened was that the claimant indicated to Mr Willis that he was better and there were no ongoing issues. There was nothing that the claimant said at the time that indicated he needed a risk assessment undertaken or an Occupational Health referral. This was the reason for the lack of action, not the claimant’s depression. Therefore, the direct discrimination claims do not succeed.

[325]The claimant also says that in respect of the lack of Occupational Health referral, this is a failure to make reasonable adjustments. The claimant relies on a provision, criterion or practice of not referring employees to Occupational Health for mental health problems in a timely manner once the respondent was aware of a health problem. There was no evidence that the respondent had such a policy in place. The claimant was not referred to Occupational Health because in the return to work meeting he said he was better. Before his absence there had been no issues with his work that would have warranted a referral to Occupational Health.

[326]It is also well established that a referral to Occupational Health is not in itself a reasonable adjustment. An Occupational Health referral is a process to identify what adjustments can be made once a need for adjustments is identified. In the claimant’s case, in February 2020 he did not identify to Mr Willis during the return to work meeting any specific difficulties at work which would trigger such an enquiry. Therefore, the claim for failure to make reasonable adjustments does not succeed.

[327]In respect of the comments which are said to be harassment, the specific claims pursued have remained somewhat unclear within the list of issues. Within the direct discrimination claims the claimant refers to an incident on 7 January 2021 when he says Mr Willis told him that he had not tried to jump off the roof and denied having knowledge of the claimant’s mental health problems. The claimant did not see Mr Willis after 17 September 2020 so this must have been an earlier date. He also did not meet Mr Willis on 7 January 2020. The most likely occasion was on 17 February 2020. The claimant has included similar allegations as instances of harassment, but said that they occurred on 17 September 2020. On reading the claimant’s evidence of this incident it is clear he is referring back to the discussion on his return to work in February 2020.

[328]We have departed from the list of issues as strictly drafted and concluded that the allegations relate to the discussion during the return to work meeting that the claimant refers to in these claims for harassment and direct discrimination. For completeness, we note that if we were to consider these allegations strictly based on the dates in the list of issues they would not succeed because the claimant has not proved any such discussions took place on those dates.

[329]The specific allegation of harassment is that Mr Willis made comments about needing to stop the claimant’s roof access and not mentioning the roof situation. The direct discrimination claim is a similar allegation, but not identical. The claimant has alleged that Mr Willis told the claimant that in fact he had not tried to jump off the roof in October 2019 and denied having knowledge in 2019 of his mental health problems.

[330]It was accepted by Mr Willis that in the return to work meeting there had been some discussion about the claimant’s roof access and the incidents in October 2019. The claimant did not prove on the balance of probabilities that all the specific comments included within the list of issues were made. His account in his witness evidence only includes the question about stopping access.

[331]We have also concluded that the discussion we accept had happened does not meet the definition of harassment. Mr Willis mentioned roof access as a brief comment made in passing. The context is relevant. Conduct will only be harassment if looked at objectively it would be reasonable to find that it had the proscribed effect. The context here is a discussion between colleagues who were also friends and Mr Willis was concerned about the claimant. Looked at objectively this is not conduct that would have the proscribed effect. Therefore, the claim for harassment does not succeed.

[332]To the extent that the roof access was mentioned in the meeting, we do not find this amounted to direct discrimination. This was a discussion that was unique to the claimant’s own circumstances. There is no potential hypothetical comparator without the claimant’s disability who would have been treated differently.

[333]The next allegation of harassment relates to 13 March 2020 when the claimant says he was given a warning by Gerson de Silva that an attack was planned by MC, MR and BV. We know that something happened that day, because the claimant then arranged a meeting with the three men. We also accepted that the claimant perceived that these people had been targeting him at work and making threats towards him. In terms of events on 13 March 2020, the claimant has not clearly set out what it is that he was told by Gerson de Silva that he says was harassment. The allegation remains very general in nature. The transcript of the subsequent meeting does not make this any clearer. On this basis the claimant has not proved any specific conduct occurred that clearly could amount to harassment.

[334]To the extent that something happened that could be understood as unwanted conduct, the claimant also has not proved any facts that indicate it could relate to his depression. We have already concluded that any harassment or threats that occurred before the claimant’s absence was due to his personal life and unconnected with his depression. In March 2020 there is some evidence that there were other reasons why the three men may have targeted the claimant. This is their subsequent grievance against the claimant where they complained about how he managed them. Again this is wholly unrelated to the claimant’s depression. On this basis the harassment

[335]The claimant then complains about being asked to carry out a meeting with another employee who had mental health problems in August 2020. This is said to be direct discrimination. The claimant was required to undertake some return to work meetings in August 2020. This was when Mr Willis was absent. The claimant’s colleague was also asked to carry out the same meetings. They were left to share the work between them. The claimant and his colleague were both treated in the same way. The colleague is the claimant’s comparator. There is no less favourable treatment because they were treated the same. Therefore, the direct discrimination claim does not

[336]Finally these claims are also al out of time, as they occurred in the period of time before the claimant was suspended in September 2020. The latest any of the claims could have been started would be December 2020. The deadline for brining claims about the return to work process would have been earlier, 16 May 2020. The first Early Conciliation period started on 22 February 2021.

[337]With these allegations, we have also concluded they do not form part of a course of conduct that extended beyond September 2020. There was a clear break in events in September 2020 when the claimant was suspended. He did not return to work after that date so had no further dealings with Mr Willis. Neither did he have any further dealings with MC, BV and MR. We also concluded again that it would not be just and equitable to extend time in respect of these claims. Although the delay was shorter these claims faced the same difficulties, in that there was little documentary evidence and the witness evidence was insufficiently clear to enable us to make definite findings of fact. Reasonable adjustments claims – 2019 and 2020

[338]The claimant has also brought several claims for failure to make reasonable adjustments where the relevant time is not specified in the list of issues. They all relate to arrangements when the claimant was working. The claimant was suspended on 17 September 2020 and did not return to work. Therefore, these claims must relate to either the period before the claimant was signed off work in October 2019 or the period after he returned to work in February 2020 until he was suspended in September 2020.

[339]These claims are based on the following provisions, criteria and practices (PCPs):339.1 working in a shared office;

339.2 having fixed start times;

339.3 requiring daily external cleaning checks beside the road;

339.4 not providing new laptops when required; and

339.5 not providing employees with an appropriate separate room in which to take personal medical calls.

[340]To succeed with a claim for failure to make reasonable adjustments the individual must be disabled at the relevant time. The employer must also know that the individual is disabled, or could reasonably be expected to know that they are disabled. The employer must also know, or could reasonably be expected to know, that the relevant PCP placed the individual at a disadvantage.

[341]These claims for failure to make reasonable adjustments all relate to the period of time when the claimant was still working, i.e. before 17 September 2020. Whether they relate to the period of time before October 2019 or between February and September 2020 is to an extent immaterial. We have already concluded that at that time the claimant was not disabled for the purposes of the Equality Act 2010. Therefore, the respondent was not under any duty to make reasonable adjustments and the claims do not succeed.

[342]Even if the claimant were disabled at those times, the claims would still not succeed. In respect of these PCPs there is no evidence from either period of time that indicates that the respondent knew, or ought to have known, that these PCPs placed the claimant at any disadvantage. The claimant has not provided clear evidence of how he was at a disadvantage at the time due to these PCPs, which he says were in pace. Within his evidence certain points are alluded to but the claimant has not set out how the relevant PCPs placed him at a disadvantage or how Mr Willis, or anyone else, should have known this. The claimant provided more detailed explanations of this within his written submissions, but as noted above that is not evidence.

[343]The overall impression with these claims is that the claimant has identified retrospectively aspects of the working environment that he feels were difficult for him at the time when his mental health was deteriorating. Much of these relate to the underlying allegations the claimant makes that he was being subjected to harassment by MC, BV and MR. For example, the claimant complains now that working in a shared office made him more vulnerable to verbal abuse by others. He also complains that having to undertake external cleaning checks was difficult because he had suicidal thoughts and he feared he jump into the traffic. We accept the claimant’s recollection and feelings about that time are genuine. However, there is no evidence that Mr Willis or anyone else was aware that these aspects of the claimant’s working environment were difficult for him at the time.

[344]In summary these claims do not succeed because the respondent was not under any duty to make reasonable adjustments at the time. This is because at the relevant time the claimant was not disabled and the respondent was not aware of the disadvantages the claimant now says he faced.

[345]As with the previous claims, these claims are also out of time. Any difficulties the claimant faced in the workplace ceased in September 2020 when he was suspended. For the same reasons, we concluded it would not be just and equitable to extend time. These are also claims where the documentary evidence is limited and we were reliant on witness evidence. That evidence was insufficient for us to make the necessary findings of fact. Events of 11-17 September 2020

[346]In September 2020 the claimant was informed about the grievance that had been brought against him in March 2020. He brings the following claims about the events of 11 September 2020 and after:346.1 The respondent failed to respond and support the claimant with his complaint of bullying by MC, MR and BV by not investigating further, referring the claimant to Occupational Health and having a welfare meeting. This is said to be direct discrimination.

346.2 The respondent told the claimant that he was being investigated following allegations of bullying. This is said to be direct

346.3 Ms De Sousa and Mr Safo-Poku accused the claimant of threatening MC, MR and BV. This is said to be harassment.

346.4 On 17 September Mr Safo-Poku emailed the claimant requiring the claimant to apologise to MC, MR and BV and hold a mediation meeting. This is said to be harassment.

[347]These claims all relate to the meeting on 11 September 2020 the claimant had with Mr Safo-Poku and Ms De Sousa about the grievance raised against him by BV, MC and MR, and the follow up email.

[348]Our findings about this meeting were as follows:348.1 The claimant was told that there had been an investigation and he was told that the three men had raised allegations of bullying. This is because they had raised a formal grievance in March 2020.

348.2 During this meeting it was likely the claimant said something about them threatening him. He had not raised a formal complaint about this previously and did not do so at the time. Neither was there any evidence he had raised any complaints about them informally before then.

[349]The claimant says that he was treated less favourably than BV, MR and MC in that their allegations were investigated and his were not. He was told he was being investigated and they were not. This is true, in that there was an investigation into allegations made against the claimant but no investigation into BV, MR and MC. The investigation that had occurred before 11 September 2020 was one sided.

[350]To succeed with the claims for direct discrimination the claimant need to show that he had been treated less favourably than someone in the same circumstances without his disability. The claimant relies on BV, MR and MC as comparators, as their complaints were investigated. For the purposes of this claim, they are not appropriate comparators. The reason their allegations were investigated was the fact that BV, MR and MC had raised a formal grievance against the claimant. Having raised a grievance the respondent needed to deal with it in accordance with the relevant procedure. At this point the claimant had not raised any formal complaint about the three men. Therefore, there was no obligation on the respondent to investigate under any relevant grievance procedure.

[351]The claimant was not treated less favourably than BV, MR and MC because they raised a formal grievance and he had not. This is a complete explanation for any difference in treatment. There is no evidence that the claimant’s depression was a factor. Therefore, the direct discrimination claims do not

[352]The claimant also says that Mr Safo-Poku and Ms De Sousa accused him of threatening the three men and this was harassment. We accept that being faced with such an accusation would have been unwanted conduct. We have also noted that the claimant had not previously been informed of the grievance. The investigation did not involve interviewing the claimant and asking for his account of events. The claimant was in effect ambushed at the meeting and told of the outcome. This could amount to harassment. However, there is nothing about these events that are related to the claimant’s depression. The claimant’s depression was a background circumstance, but otherwise immaterial to these events. Therefore, this claim for harassment does not succeed because the unwanted conduct it is not related to any protected characteristic.

[353]After the meeting Mr Safo-Poku emailed the claimant following up on what had been said. The claimant had been instructed to attend mediation and write an apology. These instructions were unwanted conduct and in the circumstances again we have concluded that this could amount to harassment. This outcome was presented to the claimant effectively as a “fait accompli”. The claimant had not been informed of the grievance or involved in the investigation or ever asked for his account of events. It would be reasonable to view this action by the company as humiliating or creating an offensive environment. However, again this conduct is unrelated to the claimant’s depression. Therefore, this claim for harassment does not succeed because it is not related to any protected characteristic.

[354]These claims were also out of time. They did not form part of any continuing act. These events occurred between 11 and 17 September 2020. The mediation did not happen as the claimant was then suspended and did not return to work. The claimant was due to attend mediation with BV and MR in March 2021. This also did not happen and the claimant does not pursue any specific complaint about the instruction to mediate with them at the time.

[355]In respect of these claims we would have extended the time limit as it would have been just and equitable to do so. The claimant started to suffer from depression again in September 2020 and continued to do so. The period of time from September 2020 onwards was very difficult for the claimant with the disciplinary process and grievances which he was going through. It is understandable he did not pursue a claim specifically about these incidents earlier. Claims about the suspension on 17 September 2020 and investigation and disciplinary processes;

[356]An incident occurred between the claimant and Mr Willis on 17 September 2020. The claimant was subsequently suspended and a disciplinary investigation started. The claimant brings the following claims about those events:356.1 The claimant was suspended until 9 February 2021. The claimant says this was a whistleblowing detriment and victimisation. It is also

356.2 His partner, GP, was suspended. This is said to be a whistleblowing

356.3 The claimant also says that there was a practice of not considering alternatives to suspension and the respondent failed to make reasonable adjustments by considering alternatives.

356.4 On 22 September 2020 Louis Monerville held an aggressive meeting involving shouting and attacks on his mental health. This is said to be a whistleblowing detriment, direct discrimination and harassment.

356.5 On 23 September 2020 the respondent sent inaccurate investigation meeting minutes omitting references to the claimant’s mental health. This is said to be harassment.

356.6 On 14 December 2020 start a disciplinary process then not follow the correct procedures. This is said to be victimisation.

[357]When the claimant was suspended on 17 September 2020 he had not made any protected disclosures nor raised any grievances that were protected acts. Therefore, the decision to suspend could not be either a whistleblowing detriment or victimisation. The claimant’s partner, GP, was also suspended. Because this pre-dated any protected disclosures and acts that also could not be an act of victimisation or a whistleblowing detriment. Therefore, those claims do not succeed.

[358]The claimant also says the decision to suspend him for inappropriate behaviour was direct discrimination. To succeed with this claim the claimant needs some evidence from which we can infer that the respondent would not have suspended an employee without depression who had an altercation with his manager and then was alleged to have left without permission. The claimant has provided no evidence to demonstrate another employee would have been dealt with differently. Suspending an employee pending an investigation into potentially disciplinary matters is a common management decision. The claimant has provided no evidence from which we could infer he was treated less favourably than other employees or that his depression may have been a factor. Therefore, this claim does not succeed.

[359]The claimant says that the respondent also had a practice of not considering alternatives to suspension and the respondent failed to make reasonable adjustments. At the time the claimant was suspended we have found he was not disabled. His mental health deteriorated, which was a recurrence, and from later in September 2020 we concluded that he was disabled and the respondent had knowledge at that time, due to the discussions with Mr Monerville.

[360]Even though suspension is often described as a neutral act it is a situation which many people will find difficult and stressful. It is understandable that the claimant found it stressful. In the evidence from the time it is not apparent that the claimant found it more challenging than an employee without his disability. To the extent that the claimant was at a substantial disadvantage compared to other employees it is not clear what the claimant says could have been done. The claimant was suspended following an altercation with his line manager. Due to the nature of the allegations it would be reasonable to ensure that the claimant and Mr Willis remained apart. The claimant just says alternatives should have been considered, but he has not identified any practical alternatives. The respondent could not have considered alternatives if there were no realistic alternative options that could be implemented. Therefore, this claim also does not succeed.

[361]The claimant brings thee claims about what he says occurred in the meeting on 22 September 2022. By this point the claimant had not made a protected disclosure, so the claim that this was a detriment due to whistleblowing does not succeed.

[362]The claims for direct discrimination and harassment are both based on allegations that the meeting was aggressive, Mr Monerville shouted and made attacks on the claimant’s mental health. The claimant did not prove on the balance of probabilities that the meeting was as he alleges. We did not accept that Mr Monerville was aggressive. Neither did he attack the claimant’s mental health. We heard the recording of this meeting and concluded that the meeting did become heated, but this was not an attack. Both men spoke over each other at times. The claimant’s mental health was discussed briefly but it was not an attack. It was merely a few questions as part of an investigation into the events of 17 September 2020. The claimant has not proved the conduct he complains of occurred. Therefore, these claims do not succeed.

[363]The claimant was then sent minutes. Because we heard the recording and were provided with a transcript we could see that the minutes were an incomplete account of the meeting. Some of the things said by the claimant about his mental health were omitted. It is understandable that the claimant would feel that the severity of his mental ill-health may have been underplayed.

[364]This decision to omit information was unwanted conduct, the claimant was unhappy about it. That conduct relates to the claimant’s depression. The question for us to decide is whether it meets the definition of harassment. Did it violate the claimant’s dignity or create an environment that was intimidating, hostile, degrading or offensive. The claimant now says that it was, he felt frustrated and his difficulties were being minimised. His perception is relevant, but we also need to consider if looked at objectively it is reasonable to view Mr Monerville’s conduct in this respect as having that effect. This includes taking into account the surrounding circumstances. We have concluded that it does not meet the definition of harassment. This is a single incident and the discussion about the claimant’s mental health was a very small part of the meeting. The amount that was omitted from the meetings was limited and had little relevance to what was being investigated. Therefore, the claim for harassment does not succeed.

[365]The disciplinary process was then started in that the claimant was invited to a disciplinary meeting that was then postponed. The claimant has alleged that the respondent did not follow the correct processes and this was victimisation. By 14 December 2020, when this happened, the claimant had raised the first of his grievances that were protected acts.

[366]It was not clear what the claimant means by saying “incorrect processes”. There is no obligation to put on hold any disciplinary process just because a grievance has been raised. In any event, by the point the disciplinary hearing was first arranged the claimant’s first grievances had been heard, but he had then raised another grievance and appeal. By this point the disciplinary process had been going on for a while. There is no evidence that the disciplinary process was arranged because he raised a grievance. It would have happened in any event. Therefore, the claim for victimisation does not

[367]The specific incidents relied on in these claims all occurred before 28 December 2020 so these claims were potentially all out of time. However, these were all part of the suspension and disciplinary process which continued until February 2020. These specific incidents are part of a continuing act. Therefore, these claims are in time. If that were not the case, we would also have concluded that it would be just and equitable to extend time for the same reasons as set out above in respect of the claims relating to 11-17 September 2020. Claims about the grievances, the investigation and outcomes;

[368]The claimant raised a first grievance on 24 September 2020. He raised several further grievances, then appealed the outcome and raised another grievance. In total he raised seven grievances during 2020. Donna Chadbourne was appointed to handle the appeal and seventh grievance and this process continued into early 2020.

[369]The claimant brings the following claims relating to the grievance process:369.1 On 22 October 2020 the respondent refused to investigate the claimant’s allegation of a threat made by MC. This is said to be a whistleblowing detriment. The claimant also says that the respondent railed to investigate or report to the policy this threat and this was direct discrimination.

369.2 On 4 December 2020 the respondent concluded in the grievance outcome that the claimant had not been threatened at work. This is

369.3 In the meeting on 7 January 2020 Ms Chadbourne did not let the claimant explain his protected disclosures further. This is said to be a whistleblowing detriment.

369.4 On 7 January 2021 the respondent did not respond to evidence about the threat made by MC in October 2020. This is said to be harassment. The claimant also says that the respondent failed to follow up his repeated complaint made in the grievance appeal about the threat by MC and this was direct discrimination.

[370]The claimant did not prove on the balance of probabilities that he made clear allegations to any of the respondents that he had been threatened by MC in October 2020. He has alluded to this at points but he did not set it out clearly in any of the meetings or in any correspondence. No investigation was carried out by the first respondent, or any of the other respondents, because they were unaware that this incident had occurred so needed to be investigated. The claims for direct discrimination and whistleblowing detriment both do not succeed because the claimant has not proved the respondents refused to investigate.

[371]The claimant’s complaint about the grievance outcome is based on an inaccurate portrayal of Mr Safo-Poku’s conclusion about threats at work. Mr Safo-Poku concluded there was not sufficient evidence for him to reach a conclusion either way, largely due to the allegations being historic. Mr SafoPoku did not conclude the claimant had not been threatened, essentially his position was neutral. In any event, there is no evidence from which we could infer that the claimant’s depression may have been a factor in this conclusion. Therefore ,the direct discrimination claim does not succeed.

[372]We concluded that in the meeting on 7 January 2020 the claimant was able to explain his disclosures in more detail. Ms Chadbourne asked the claimant to explain this issue. She informed him she was happy with hat he had said. The claimant did not indicate he had more to say on this matter. After the meeting the claimant sent further information to Ms Chadbourne and had opportunity to expand on what he had said. The claimant has not proved that Ms Chadbourne did not let him explain his protected disclosures further. Therefore he has not shown he was subjected to the alleged detriment. This

[373]During that meeting we concluded that the claimant did refer to issues he had with MC but again he did not clearly set out an allegation that he had been threatened by MC in October 2020. The claimant sent further information after the meeting, but again it was not clear from this that the claimant was making an allegation of a specific threat that had been made in October 2020. Neither has he provided evidence that clearly needed to be responded to at the time. The claimant has not proved this unwanted conduct occurred. We also note that this alleged conduct is wholly unrelated to the claimant’s depression. Therefore, the claim for harassment does not succeed.

[374]Some of the specific incidents relied on in these claims all occurred before 28 December 2020 so these claims were potentially all out of time. However, these were all part of the grievance process and appeal which continued until 1 February 2020. These specific incidents are part of a continuing act. Therefore, these claims are in time. If that were not the case, we would also have concluded that it would be just and equitable to extend time for the same reasons as set out above in respect of the claims relating to 11-17 September Claims about alleged failure to make reasonable adjustments and other claims during the period of time the claimant was suspended and remained off work

[375]The claimant has brought various complaints about how he was treated generally when he was absent from work during the suspension and after. The claims are as follows:375.1 The claimant complained that the protracted period of suspension was direct discrimination.

375.2 The claimant says the respondent had a practice of dealing with suspensions too slowly and the respondent failed to make reasonable adjustments by telling him the outcome within a reasonable time.

375.3 The claimant says there was a practice of managers who are not the nominated manager in a suspension situation contacting a suspended employee that placed him at a disadvantage and the

375.4 The respondent did not contact the claimant at home despite him emailing to say he was not doing well at home. This is said to be victimisation.

375.5 The claimant says that the respondent had a practice of not contacting employees during a period when they are not at work due to a pending grievance. He says that it would have been a reasonable adjustment to stay in contact with him after the suspension was lifted pending his grievance outcome and the respondent failed to do this.

375.6 The claimant says that from September 2020 onwards the respondent failed to take steps to protect his mental health or support him from then until his employment terminated. He says this is a whistleblowing detriment and direct discrimination.

[376]The suspension was lengthy. It was only eventually lifted in February 2021 after all of the claimant’s grievances and appeal had been heard. There had been a disciplinary hearing listed in December which was postponed and then Mr Fletcher decided not to proceed. Given this, the outcome the suspension could have been lifted sooner. However, to succeed with a claim for direct discrimination the claimant will need to show the respondent would have lifted the suspension in the case of a non-disabled employee whose circumstances were otherwise the same. This would include the fact that the claimant had raised numerous grievances for which an external investigator was appointed. There was no evidence from which we could conclude this was likely the case or that the claimant’s depression may have been a factor in the length of the suspension. Therefore, the claim for direct discrimination does not succeed.

[377]The claimant also says that there was a practice of dealing with suspensions too slowly and it would have been a reasonable adjustment to tell him within a reasonable time the outcome. The suspension was dealt with slowly. In particular there was a delay in telling the claimant that the respondent had decided not to continue with a disciplinary hearing. Initially the claimant was invited to a disciplinary hearing in December, but this was postponed. Then he was informed on 5 February 2021 that no action was being taken. The claimant had no specific update on the disciplinary process and suspension between those two dates.

[378]To succeed with a claim the claimant must first show there was a practice of dealing with suspensions slowly. The evidence we had only related to the way that the claimant’s suspension was handled. This is not direct evidence of a wider practice. However, there was equally no evidence that this was exceptional or that the respondent generally dealt with such matters more promptly. We were satisfied that it was a practice.

[379]We were also satisfied that this placed the claimant at a disadvantage and the respondent would have been aware of this. The claimant raised multiple grievances and the second expressly related to the suspension. During the meetings and in his letters the claimant made it clear his mental health was suffering. During the meeting on 7 January 2021 with Ms Chadbourne the claimant complained about the disciplinary not being resolved. It would have been straightforward to tell the claimant sooner that no action was being taken or otherwise provide a clear update, such as expressly inform the claimant that a decision had been taken to postpone any decision on the disciplinary until the grievances were concluded. From the respondent’s evidence it was unclear why that was not done. On this basis, this claim for failure to make reasonable adjustments succeeds.

[380]In respect of the suspension the claimant also says there was a practice of managers who are not the nominated managers in a suspension situation contacting the employee who is suspended. The claimant says that this placed him at a disadvantage and the respondent should have limited those contacting him. We were unclear exactly what the claimant’s complaint was in this respect and it was not fully clarified in his submissions. During his suspension the claimant was in contact with a number of different people. In part this was due to there being various different ongoing procedures. He was not contacted by Mr Willis but he was in contact with Mr Safo-Poku and Ms Demain from HR. He was also in contact with Mr Monerville and Mr Fletcher in relation to the investigation and disciplinary process. The claimant has not spelt out in his evidence or submissions why this was difficult or disadvantageous for him other than alluding to needing to alleviate the stress he was facing. There is no evidence from the time indicating that dealing with different people was difficult, such as in his emails. The claimant has not shown that being contacted by different managers during the suspension placed him at any disadvantage. Therefore, this claim for failure to make reasonable adjustments does not succeed because there was no duty to make adjustments.

[381]The claimant complains that it was victimisation to not contact him at home during this period. When the claimant was first suspended he had not raised any grievances, but he did so shortly after. When the claimant was initially suspended he was contacted regularly by different people. This related to the investigation and grievance processes. Mr Safo-Poku was in contact with the claimant. After the claimant raised a grievance about Mr Safo-Poku there was a change and Ms Demian was in contact with the claimant. The claimant has not shown that there was no contact with him at home while suspended and after. There was regular contact throughout the time he was suspended. Therefore this claim does not succeed because the claimant has not shown he was subjected to this detriment.

[382]The claimant also says that the respondent had a practice of not contacting employees when not at work due to a grievance and the respondent should have made reasonable adjustments. We found that the respondent was in regular contact with the claimant. This was the case during the suspension, when the grievance was ongoing and the period after this. After the suspension was lifted Ms Demian was in regular contact with the claimant. At times she was chasing him up for a response because he did not reply. The claimant has not shown such a practice was applied. Therefore, there was no duty to make adjustments.

[383]With regard to alleged failure to take steps to protect his mental health from the time he was suspended until his employment terminated. The claimant says this was direct discrimination or a whistleblowing detriment. Based on our findings we have concluded that the respondent could have provided the claimant with more support in relation to his mental health. The claimant informed Mr Monerville of his depression in September 2020 and also referred to this in his grievances. In some of the emails to Ms Demain in 2021 the claimant also highlights how he is feeling and that he needs support. Looking at the overall picture, the respondent did not provide the claimant with much in the way of support for his mental health. He was not referred to Occupational Health until June 2021. As a general observation we are critical of how the first respondent in this respect and they could have done more to provide support to the claimant while he was going through multiple disciplinary and grievance processes.

[384]The specific claims that the claimant has brought in respect of these failures are for whilstleblowing detriment and direct discrimination. The claimant needs to show that in this respect he was treated worse than someone else in a comparable situation who did not have depression or some evidence from which we can conclude that the respondent acted this way because of his protected disclosure. There is no evidence of either.

[385]For the direct discrimination claim a hypothetical comparator would be someone else who was on suspension that became protracted because they raised various grievances who did not have depression. There was no evidence that the respondent would have provided more support to such a comparator. The overall picture we got was of an employer who was not proactive in providing support to employees and that would be the case irrespective. The claimant was not treated any worse or less favourably. Therefore the direct discrimination claim does not succeed. The whistleblowing claim does not succeed for broadly the same reason. The fact that the claimant made a protected disclosure was not a factor in how the respondent acted in this respect.

[386]These claims relate to a state of affairs over a period of time when the claimant was suspended and beyond. Some relate to the suspension which continued until February 2020. Others relate to the ongoing situation after the suspension was listed.

[387]The claims relating to events that postdate the suspension are all in time. The time limit for other claims about failures by the respondent run from when it would have been reasonable for the first respondent to make the adjustments sought or otherwise have done what the claimant says the respondent ought to do.

[388]The disciplinary hearing was initially due to be held in December 2020 but it was postponed on 15 December 2020. Any failures relating to the suspension being prolonged and the claimant not informed of the updates occurred after that. A reasonable time to have taken any action required of the respondent would have been around 2-3 weeks. Taking into account the Christmas break this would be around the first week of January 2021 when any failure occurred. This means that these claims are in time.

[389]If that were not the case, we would also have concluded that it would be just and equitable to extend time for the same reasons as set out above in respect of the claims relating to 11-17 September 2020. Claims about the mediation process;

[390]After the grievance process finished mediation was arranged. The claimant brings the following claims about that process and related events:390.1 On 25 February 2021 the respondent unjustifiably proceeded with a SOSR dismissal. This is said to be victimisation.

390.2 It was direct discrimination to proceed with an SOSR dismissal even after the suspension was dropped.

390.3 On 25 February 2021 Ms Demain said in an email that MJ and BV would be at the mediation meetings despite the claimant’s uninvestigated allegations. This is said to be harassment.

390.4 On 3 and 4 March 2021 the claimant’s mental health was attacked at the mediation meetings. This is said to be a whistleblowing

390.5 The claimant says that Ms Safo-Poku and Ms De Sousa put the claimant down and did not listen to him. This is said to be harassment.

390.6 The claimant says that the respondent failed to ensure those holding the mediation meetings were neutral. This is said to be direct

390.7 The claimant was not allowed to take someone with him to the mediation meetings. This is said to be a whistleblowing detriment and the respondent also says the practice of not allowing a companion at mediation was a provision, criterion or practice and the

[391]On 25 February 2021 Mr Safo-Poku did send an email referring to an SOSR process and we concluded that this showed the first respondent was already contemplating dismissing the claimant at that point. The respondent did not dismiss the claimant at that point, but it was the first stage in that process. We found Mr Safo-Poku’s explanation of the reference to SOSR in this email unconvincing. The obvious reading of the email is that the possibility of dismissal was on the table.

[392]This decision was taken immediately after the grievance and appeal had concluded. From this chronology it was straight forward for us to infer that this proposal was a result of the various grievances that the claimant had raised. A number of these were protected acts, complaining of discrimination. This means the burden of proof has shifted to the respondent to show that the proposed course of action was in no way connected to the grievances. The respondent did not do this. At this point the first respondent had decided not to proceed with the disciplinary process and the suspension was lifted. The claimant should have been able to return to work. The claimant had not said anything to suggest that was not possible. It was the respondent preventing his immediate return. The first respondent had suggested that mediation was needed first, but the email shows they were already considering dismissal. This all links the underlying situation, which was the claimant’s grievances. They were clearly a material factor in this decision. Therefore, this claim for victimisation succeeds.

[393]The claimant also says the decision to proceeded with an SOSR dismissal even after his suspension was dropped is direct discrimination. The first question for us to address is whether the claimant was treated less favourable than an appropriate comparator without the claimant’s protected characteristic of disability due to depression.

[394]The comparator the claimant relies on in his submissions is a colleague, Hassan Jamharouch. The claimant says that he was suspended and the company followed a fair procedure. We were provided with no detailed evidence about what occurred with Mr Jamharouch. The fact of having been suspended would not in itself be sufficient to establish someone as being a suitable comparator for a direct discrimination claim.

[395]A suitable comparator would be someone in the following circumstances but without depression that amounted to a disability:395.1 they had been suspended and subjected to a disciplinary investigation which was not pursued by the first respondent;

395.2 they had also raised multiple grievances; and

395.3 they had not been allowed to return to work once the suspension had been lifted and initial grievances concluded.

[396]At this point the claimant had raised grievances of disability discrimination and we concluded that the respondent knew he was disabled. At that point he had not been signed off work again with depression. The trigger for the decision to start managing the claimant out of the business was not the disability in itself, it was the fact the claimant had raised grievances about discrimination. The concerns of the respondent were about the grievances and the feelings of those who had been the subject matter of the grievances. It was also about those employees who had raised a grievance against the claimant the previous year. At this point the claimant’s depression was just a background factor to the grievances. We concluded the respondent was likely to treat others who raised grievances in the same way and who also had grievances raised against him. There was no evidence from which we could infer that a person in a similar situation who was not disabled would have been treated differently. On this basis the claimant has not shown that he was treated less favourably than someone without a disability. The burden of proof does not shift in respect of the direct discrimination claim and that

[397]On 25 February 2021 Ms Demain did inform the claimant that MR and BV would be at the mediation. The claimant had made some allegations against them but he had not previously been expressly told that they would be part of the mediation in 2021. However, mediation between them and the claimant had been planned in September 2020 that had not happened. We accepted that informing the claimant they would be involved at this point this was unwanted conduct. There was generally a lack of transparency in this mediation process, which could create an intimidating or hostile environment. There is no evidence though that indicates this conduct related to the claimant’s depression. As the unwanted conduct is not related to a protected characteristic the claim for harassment does not succeed.

[398]During the mediation meetings themselves, we did not accept that the claimant’s mental health was attacked. The claimant has not shown that he was subjected to this detriment. Therefore the claim that the claimant was subjected to such a detriment due to his protected disclosure does not

[399]The claimant says that both Ms De Sousa and Mr Safo-Poku put him down and did not listen and this was harassment. We did not accept that Ms De Sousa acted in this way. She engaged in the mediation and listened to the claimant. We found that Mr Safo-Poku’s did not listen properly to the claimant and he was not willing to move on. We found his engagement confrontational rather than conciliatory and he overstated the seriousness of the grievance that had been raised against him. The claimant has shown that the way that Mr Safo-Poku engaged in the mediation was unwanted conduct and in the circumstances, given that the purpose of the mediation was to repair relationships to enable the claimant to return to work, Mr Safo-Poku’s conduct could be viewed as creating an intimidating or hostile environment. However, again there is no evidence that this conduct related to the claimant’s depression. The claimant’s mental health was barely mentioned in the meeting, and only by Mr Fletcher. The unwanted conduct does not relate to a protected characteristic so the claim for harassment does not succeed.

[400]The meeting was chaired by Mr Fletcher. We agreed that Mr Fletcher was not a neutral person. He had already been involved in the disciplinary process, albeit that he had subsequently decided not to progress matters. Mr Fletcher’s prior involvement still meant that he could be perceived as not being neutral. However, the claimant says this is direct discrimination because of disability. While we are critical of Mr Fletcher’s involvement there was no evidence that indicated the first respondent may have handled this aspect of the mediation differently in respect of any other individual who was not disabled. It was poor practice, but not less favourable treatment so not direct discrimination.

[401]The claimant’s first complaint about not being allowed a companion is that this is a whistleblowing detriment. On the decision itself, there was no actual refusal to allow the claimant to have a companion. It was just not offered as an option, but neither did the claimant ask to have one with him at the mediation. With a whistleblowing claim a detriment must be an act or a deliberate failure to act. There was no evidence that there had been a deliberate decision by anyone arranging the mediation to not allow the claimant a companion. It was either just not part of the process or an oversight. As there was no deliberate decision it was not a detriment for the purposes of a whistleblowing claim. In addition, there is no evidence to suggest that the claimant’s protected disclosure was a factor.

[402]The claimant’s other complaint about the lack of companion at this meeting was that he had been placed at a disadvantage by the practice of not allowing companions in mediation meetings and the respondent failed to make reasonable adjustments by allowing him a companion. As noted above, we have concluded that there was no deliberate decision to refuse a companion in this case. The claimant did not have a companion because the process did not involve offering an employee the option of a companion at a mediation meeting. This is a practice, so is a PCP.

[403]We have concluded that by March 2021 the respondent were aware that the claimant was disabled due to his depression. He had made it clear in various meetings and his grievance that he was suffering from depression. He had also complained during these processes about feeling attacked about his mental health in the investigation meeting with Mr Monerville. He had also chosen to bring a companion along to the previous meeting with Ms Chadbourne. Before the mediation he indicated to Ms Demain in emails about having concerns about the mediation.

[404]Being in a mediation meeting without a companion would potentially be difficult for anyone in a similar situation as the claimant. The claimant has described how due to his mental health being alone in the mediation particularly affected him. We accepted that this was the case and we also accepted this should have been clear to the respondent, in light of what the claimant had been saying over the preceding months in his grievances and meetings. The respondent could reasonably be expected to know that due to the claimant’s mental health at the time being alone in the mediation would place him at a substantial disadvantage. Therefore, there was a duty to make reasonable adjustments. The adjustment that could have been made was straightforward. The respondent could have informed the claimant he was able to have someone with him, at least as moral support. This was an obvious thing to do and the respondent did not do so. In this respect, the respondent did fail to make reasonable adjustments and this claim succeeds. Claims about events after the mediation including 26 April 2021

[405]The mediation process did not continue. The claimant remained off work and at points was signed off work. He was then invited to a meeting on 26 April 2021. The claimant brings the following claims about this period:405.1 The claimant also says the statutory right to be accompanied applied and the respondent breached this duty.

405.2 The claimant says that there was a practice that employees were not allowed to have a meeting at the head office about their employment, irrespective of whether that meeting is a disciplinary or grievance hearing. He says it would have been a reasonable adjustment to allow him a companion and the respondent failed to make that adjustment.

405.3 The respondent held a meeting at which five employee statements were read to the claimant and he was sent home. The claimant says this was harassment and was victimisation.

405.4 The claimant says that the respondent had failed to ensure that a neutral person interviewed MR and BV rather than Mr Willis and this was victimisation.

405.5 During this time the claimant says the respondent failed to respond to requests by the claimant to be allowed to talk to people at work. This is said to be victimisation.

405.6 On 14 and 16 June 2021 the claimant raised a further grievance. The claimant says that Mr Conry then copied in the HR managers the claimant had complained about rather than refer the grievance to a 3rd HR manager who was not already involved. He says this is victimisation.

[406]The first two claims relate to the claimant not being accompanied at this meeting either. The statutory right to be accompanied is set out in section 10 of the Employment Relations Act 1999. This provides a right to be accompanied by another of the employer’s workers or an authorised trade union official. The right only applies to meetings which are disciplinary or grievance hearings. The meeting on 26 April 2021 was neither. The purpose was equivalent to a meeting where an employee is informed of a suspension or new investigation. There is no statutory right to be accompanied to such meetings. Therefore, this claim fails.

[407]The claimant also brings a claim that by not allowing him to be accompanied to this meeting there was a failure to make reasonable adjustments. The claimant says there was a PCP of not allowing employees to have a companion when attending head office meetings. This was clearly the case. The claimant was just instructed to attend a meeting and not informed he could have a companion. Given this was neither a disciplinary or grievance hearing there was no statutory right to be accompanied and the respondent did not offer the option of brining a companion.

[408]For the reasons set out above in respect of the mediation, we have concluded that not having a companion at a formal meeting would place the claimant at a substantial disadvantage. At this point the respondent also knew that the claimant had a period of time where he was also signed off work due to his mental health. He had been in contact with Ms Demain and expressed how hard he had found the mediation and said that there had been no support for him at that meeting. The respondent was aware that the claimant was likely to find the meeting on 26 April 2021 difficult. It would have been a straight forward adjustment to inform the claimant he could bring a companion. The respondent did not do this. On this basis this claim for failure to make reasonable adjustments succeeds.

[409]In terms of the meeting itself, the claimant complains that this was harassment related to disability and victimisation. The crux of both complaints is that at this meeting he was read statements made by others against him then sent home. At this meeting this is what happened. The claimant had been given no warning in advance that this was what the meeting was about. The claimant understood that it was start the process of him returning to work. What occurred in the meeting was in effect an ambush. It was cruel and unnecessary.

[410]In respect of the harassment claim, what occurred at the meeting was unwanted conduct. Anyone presented out of the blue with written statements by colleagues saying that five individuals which are critical and state that they cannot work with them is likely to feel humiliated or that the environment is hostile or intimidating. The conduct of this meeting meets the definition of harassment. However, the conduct does not relate to the claimant’s depression. It is about the events that occurred over the preceding months and the claimant’s depression just forms the background to this. Therefore as the conduct does not relate to the protected characteristic the harassment

[411]This meeting would be a detriment. It would clearly be detrimental to the claimant to be ambushed as he was and have the negative statements read out to him. It was also the start of a process to move the claimant from his role and potentially lead to his dismissal. The claimant was told he could not return to his normal place of work and sent home. He was not told what would happen next and was put in limbo.

[412]The claimant’s grievances were the background to this meeting. We have already concluded that in February 2021 Mr Safo-Poku proposed moving onto SOSR after the mediation. The April meeting was this process he was referring to. When the SOSR process was proposed in February 2021 the disciplinary process had concluded with no action taken. The other pertinent events were the claimant’s various grievances and appeals. The fact that the claimant had raised a number of grievances including protected acts is selfevidently part of the reason why this meeting was held. Some of the statements that were read out to the claimant refer to the claimant’s grievances. This is particularly the case with Mr Safo-Poku and Mr Willis, who expressly refer to the allegations and grievances the claimant made against them. It was particularly notable that Mr Safo-Poku appeared particularly affronted by the fact the claimant had accused him of discrimination. The contents of the statements, along with the sequence of events all inevitably lead us to conclude that the claimant’s protected acts were a significant factor in the respondent(s) decision to gather these statements and hold this meeting, with a view to possibly dismissing the claimant in due course. This victimisation claim succeeds.

[413]Before this meeting statements had been obtained from MR and BV. Mr Willis had obtained met with them to obtain these statements. The claimant says that Mr Willis was not neutral and the respondent’s failure to ensure a neutral person interviewed them was victimisation. The respondent accepted that Mr Willis had interviewed these individuals. Having Mr Willis interview the two men was clearly not an ideal situation, given that he was another person who had made a negative statement against the claimant.

[414]The question is whether this act or decision was due to the claimant having done any protected acts. Ms Demain asked Mr Willis to provide statements. He worked at the same site as MR and BV and had been involved in the wider situation. They had raise grievances against the claimant already, so they were already part of the background situation. While the decision to obtain the statements was due, at least in part, to the claimant’s grievances there was nothing from which we could conclude that the decision to ask Mr Willis to obtain them, rather than appoint someone new who, was due the grievance. Therefore, this victimisation claim does not succeed.

[415]During this time the claimant complains that Ms Demain did not respond to his requests to be able to speak to others in the workplace and this was victimisation. Ms Demain did ultimately respond to these queries. The claimant first asked this on 16 April 2021. Ms Demain did not respond at that point. The claimant was signed off work from 29 April 2021. He informed Ms Demian that he was fit again in the first week of June and asked about contacting others. Ms Demian emailed the claimant on 9 June 2021 saying that he was not prevented from contacting colleagues on personal matters but he could not in relation to work related matters. The claimant has not shown that Ms Demain did not respond. To the extent there was any delay, there is no evidence that it was due to his grievances. This claim for victimisation does not succeed.

[416]The claimant raised further grievances on 14 and 16 June 2021 to Mr Conry. He complains that Mr Conry copied in Mr Safo Poku and Ms Demian to emails about this and this was also victimisation. Mr Conry acknowledged the grievance to the claimant. He did copy Mr Safo-Poku and Ms Demian into the acknowledgment but did not include a copy of the grievance itself. Mr Safo-Poku and Ms Demian were both within the HR department. We accepted that the HR department would need to have known about the grievance. They were not sent the grievance itself. The claimant may have been unhappy about them being copied in but we do not consider that this routine administrative act amounts to a detriment. At this point the claimant’s confidence in the first respondent was clearly damaged. However, looking at all the circumstances we find this is the type of complaint that can be described as an unjustified sense of grievance. The act related to the grievance, but it was not detrimental or significant. Therefore, this victimisation claim does not succeed. Claims about the dismissal.

[417]On 30 July 2021 the claimant was dismissed. The claimant says:417.1 that the dismissal was automatically unfair based on his protected disclosures;

417.2 he also says it was ordinarily unfair; and

417.3 it was victimisation.

[418]We first considered the claims for automatic unfair dismissal and ordinary unfair dismissal. With both these claims the first question to decide is the respondent’s reason for dismissal.

[419]To succeed with the claim for automatic unfair dismissal the claimant must show that the sole of principal reason for dismissal was the protected disclosure he made. The respondent says it was a SOSR dismissal because there was a break down in trust and confidence with the claimant.

[420]On this point we accepted that the respondent dismissed the claimant because of a perceived break down in trust and confidence. This was due to cumulation of events from September 2020 onwards, including the multiple grievances the claimant raised. Within those grievances the claimant had made a protected disclosure, but this was only a small element of what had occurred. Looking at all that happened between September 2020 and July 2021, there was no evidence that indicated the first respondent, Mr Conry or anyone else was particularly concerned with the issues that the claimant raised as a protected disclosure. This was not the sole or principal reason for dismissal so the claim for automatic unfair dismissal does not succeed.

[421]In terms of the dismissal for SOSR, as put forward by the respondent, our key findings of fact are as follows:421.1 The claimant was suspended on 17 September 2020. There was an investigation into the incident that occurred that day. Initially the respondent proposed to hold a disciplinary hearing. In February 2021 Mr Fletcher decided not to proceed with the disciplinary process and the suspension was lifted.

421.2 During that time the claimant had raised seven grievances and an appeal. The appeal and final grievances were heard by Ms Chadbourne on 7 January 2021. She sent the outcomes of both processes to the claimant by 1 February 2021.

421.3 Even though the suspension had been lifted and grievance process concluded the respondent did not allow the claimant to return to work. Mediation was proposed, as recommended by Ms Chadbourne. Before this even took place Mr Safo-Poku, in the email dated 25 February 2021, had stated that the company would proceed with what was described as an SOSR process. We concluded that this was referring to an intention to start a process that may lead to the termination of the claimant’s employment. We have already concluded that was an act of victimisation.

421.4 The mediation process was handled poorly by the company. The first mediation sessions were with Mr Safo-Poku and Ms De Souza. There was no good reason to expect the claimant to mediate with Mr Safo-Poku. He did not work with him and was unlikely to have any direct dealings with him once the claimant returned to work. The claimant would have some dealings with Ms De Souza, but this would be limited and not on a day-to-day basis. The claimant was not able to have a companion with him in the meeting and we also found that Mr Fletcher was not a neutral person.

421.5 The person the claimant needed to mediate with was Mr Willis to facilitate his return to work. The claimant was also expected to mediate with MR and BV. This was imposed on the claimant, but given he was their manager and they had raised a grievance against him it was justifiable. Ultimately these mediations did not happen. Initially this was due to the claimant being signed of work. When he was fit to return the respondent did not arrange the further mediations. The respondent wrote to say the claimant had withdrawn from mediation. We concluded that was not the case. The claimant had concerns about the mediation which the respondent did not address.

421.6 At that point in April 2021 the respondent actively solicited statements from the claimant’s colleagues, with whom he had been due to mediate, stating they could no longer work with him. This was being done at the same time Ms Demian was asking the claimant about mediation continuing.

421.7 The claimant attended a meeting on 26 April 2021 where the statements were read out to him. As we have described above, the claimant was effectively ambushed. We have also concluded that this was an act of victimisation.

421.8 The respondent said that they were just removing the claimant from Regent’s place and were triggering the mobility clause in the claimant’s contract. The implication is that they would be seeking to find a role for the claimant at a different location. In the letter sent after the meeting Mr Fletcher states the claimant was at risk of dismissal for SOSR if there was no alternative employment. No other role was suggested to the claimant at the time. No further action was ever taken by the first respondent to find other roles for the claimant or discuss this with the claimant. The letter sent after the meeting indicates a meeting was going to be arranged. No such meeting was arranged.

421.9 The claimant was signed off work again shortly after. In early June 2021 he informed Ms Demian that he was fit to return. The claimant was referred to Occupational Health for the first time. No other steps were taken to facilitate a return to work.

421.10 At this point the claimant raised further grievances. He attended a grievance meeting with Mr Conry on 14 July 2021. He raised a further grievance on 16 July 2021. He also had written to the first respondent’s client.

421.11 Mr Conry did not provide an outcome to the grievance. On 30 July 2021 he wrote to the claimant dismissing him with immediate effect and pay in lieu of notice. This was a lengthy letter providing various reasons. The key reason given was that there had been an irretrievable breakdown in the relationship.

[422]By July 2021 we would accept that there had been a significant breakdown in the relationship between the claimant and the first respondent. What is notable from the above chronology is the following:422.1 In February 2021 the disciplinary process and original grievances and appeal were concluded. At that point the claimant should have been allowed to return to work. The first respondent, and some of the other respondents (Mr Safo-Poku and Mr Conry) decided that this would not happen and that the possibility of dismissing the claimant for SOSR was decided on. The email from 25 February 2023 is clear evidence of this decision having already been made.

422.2 From then on the first respondent made no meaningful attempt to resolve the situation and enable the claimant to return to work, either at Regent’s Place or elsewhere. The claimant was essentially left in limbo. Every intervention the respondents made exacerbated the situation, such as the meeting on 26 April 2021. The referral to Occupational Health in June 2021, which was the first referral despite the claimant’s evident poor mental health, was used as a further barrier to the claimant returning to work.

422.3 Mr Conry’s letter includes a number of assertions that were not supported by any evidence. He said that they had considered redeployment but there were no alternative roles. There was no evidence that anyone within the first respondent had done this, even though the claimant provided evidence of advertised vacancies he could have undertaken at different sites at the time. Mr Conry said that they had tried to seek clarify on the claimant’s ill-health. This had not happened, until the very late Occupational Health referral. No meeting had been arranged by the respondent to discuss this once it was received.

[423]We accepted that by July 2021 Mr Conry believed there was a breakdown in the working relationship. This was the primary reason for the decision to dismiss the claimant. We need to consider whether dismissal for that reason was reasonable in the circumstances. This includes consideration of the nature of the breakdown in the relationship, what had led to the breakdown and the extent of the breakdown. The procedure followed and alternatives that could be considered will also be factors.

[424]Considering the events that occurred from February 2021 until July 2021, we have concluded that ultimately it was the respondents’ actions that was the main driver in the breakdown in their relationship with the claimant. The possibility of dismissing the claimant was on the cards from early on and this was the mindset of various individuals involved from then on. The claimant was repeatedly trying to get back to work. Rather than engage with the claimant the first respondent took steps that further damaged the relationship. The individual relationships that were damaged were those between the claimant and his manager and those he managed. The claimant could have been transferred to a different site where he did not work with those individuals. Superficially the respondent suggested that this is what they were going to try and do. There was no evidence that anyone took any steps to facilitate this at any point. We concluded this was never a genuine proposal.

[425]We accepted that by July 2021 Mr Conry believed that the breakdown may have been irretrievable. This was because the first respondent had given up on trying to maintain its relationship with the claimant from February 2021 onwards. Instead, they started a process that inevitably was going to conclude with the claimant’s employment terminating.

[426]When it came to July 2021 no procedure was followed. By this point Mr Conry had not even provided an outcome to the grievance that was held 2 weeks earlier. He moved directly to dismissal. At no point had there been any meaningful discussion with the claimant about the situation and seek to find an alternative solution.

[427]The respondents seek to rely on Gallacher v Scotrail Ltd EATS 0027/19 as the reason for not following any procedure. This sometimes allows an employer to avoid a fair procedure when there is an irretrievable breakdown in the employment relationship. It only applies in exceptional cases where it would essentially be futile to do anything more. This is not one of those cases. The claimant did not clearly indicate that he had lost all trust in the respondent. He was consistently saying that he wanted to return to work. The respondent repeatedly failed to do anything that would enable any useful discussion to facilitate a return. This is despite initially saying in April that some form of redeployment process would be followed.

[428]It was not reasonable for Mr Conry to decide at that point that any further procedure was futile. The overall impression was that Mr Conry had just had enough. The reasoning he gave at the time in the dismissal letter underscores that conclusion. Mr Conry included a number of assertions in that letter that had the potential to justify the decision to dismiss. This includes the assertion that there were no other roles available and the first respondent had attempted to discuss the claimant’s health with him and he had not engaged. These assertions were just not supported by any evidence. They could not have been genuine conclusions of Mr Conry, but were fabricated to justify dismissal.

[429]In summary, the first respondent had already decided that termination of the claimant’s employment was ultimately what would happen as early as February 2021. The respondents’ involved in the decision making process closed their minds to alternatives. The suggestions made at various points after February, such as in the letter following the 26 April 2021, that a process would be followed were not genuine proposals.

[430]In conclusion the dismissal was not fair. It was both substantively and procedurally unfair.

[431]Based on the conclusions we have reached we have also concluded that the dismissal was an act of victimisation. We have already concluded that two of the key incidents that preceded the dismissal were victimisation. This is the email of 25 February 2021 and the meeting of 26 April 2021. The dismissal was a continuation of the course of action that had been triggered in February and progressed in April. As that process was already tainted by victimisation the conclusion of that process was also victimisation unless the respondent can show that the protected acts were in no way part of the decision to dismiss.

[432]Mr Conry’s dismissal letter expressly refers to the claimant’s grievances, which were protected acts. At the time of the dismissal the claimant’s last grievances remained outstanding, even though there had been a meeting. These facts are sufficient to draw inferences that the protected acts were a factor in the decision to dismiss the claimant. The respondent has not shown that the decision was in no way part of the decision. We would go so far to say that this would not be possible because the claimant’s multiple grievances are inextricably linked to the first respondents’ decision making processes from February 2021 onwards. Additional claims

[433]The claimant has brought the following additional claims that are distinct from the above chronology:433.1 He was not paid contractual sick pay for 24 October 2019 until14 February 2020, 8 March 2021 until 8 April 2021 and 29 April 2021 until 1 June 2021.

433.2 He was not paid for a day’s annual leave on 2 November 2020.

433.3 The claimant was not paid holiday pay that he had accrued while suspended.

[434]The claimant says that the complaint about sick pay is direct discrimination alongside being a breach of his contract of employment.

[435]The claims for holiday pay are pursued under the Working Time Regulations 1998 and as a claim for breach of contract.

[436]Under his contract of employment the claimant was only entitled to SSP. There was no entitlement to a higher rate of sick pay. The respondent did sometimes pay employees more than SSP. This was a matter of manager discretion. As there was no contractual right to more than SSP the claim for breach of contract does not succeed.

[437]The finding by Ms Chadbourne in the grievance appeal was that the first respondent sometimes paid company sick pay for absences due to physical ill health but not due to mental ill-health. This suggests that the respondent did exercise its discretion in a way that differentiated between different types of ill-health.

[438]The reason why the claimant was not paid company sick pay on the occasions he was listed was due to the nature of the ill-health. The decision to pay sick pay based on the type of ill-health can be distinguished from a decision not to pay company sick pay due to disability. For a direct discrimination claim the comparator would be someone absent due to mental ill-health who is not disabled. For this claim, the claimant is potentially also a comparator. He was not paid company sick pay in 2019 when he was absent due to depression but not disabled. When the claimant was subsequently signed off work he was treated in the same way, in respect of pay. Therefore the claim for direct discrimination does not succeed.

[439]In respect of the holiday pay claims, the claimant did not provide evidence to prove what he had accrued and what he says he was owed. On the termination of employment the claimant would have been entitled to be paid for annual leave he had accrued but not taken. This would include annual leave that he accrued while suspended and signed off work from 17 September 2020. We were not provided with the claimant’s final pay statement showing what he received on the termination of employment. Neither were we provided with a breakdown of what annual leave the claimant had taken. Therefore, we could not make any findings about what he was paid and if this was less than his entitlement. The claimant has not proved he was owed any sums in respect of holiday pay so these claims do not succeed. Remedy matters

[440]In respect of the claims that succeed a separate remedy hearing will be held. The parties did not include within their submissions anything on remedy, such whether there should be any reductions in respect of an unfair dismissal claim in accordance with Polkey or contributory fault. Therefore we have been unable to make any preliminary findings that otherwise may have been possible at this stage based on our findings of fact. The parties will need to address these issues at the remedy hearing.

[441]The claims were brought against the first respondent company and five named individual respondents. The claimant has succeeded with some claims for discrimination and victimisation. The parties did not make any submissions about liability of the named individuals. Therefore they will need to make these in respect of the successful discrimination and victimisation claims at the remedy hearing.

The Claims

[1]Under Part 12 of the Employment Tribunals Rules of Procedure 2024, the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a Judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied or revoked.

[2]An application for reconsideration shall be presented in writing within 14 days of the date upon Judgment is sent to the parties. The Judgment in this case was sent to the parties on 12 December 2025.

[3]On 23 December 2025 the claimant sent an email to the Employment Tribunal an application for reconsideration. The claimant had brought multiple claims against the respondents. The Tribunal upheld his claim for unfair dismissal, some of his victimisation claims and some of his claims that the respondent failed to make reasonable adjustments. The other claims did not succeed and were dismissed. This included all the claims the claimant had brought for unlawful detriment due to having made a protected disclosure. The claimant’s application for reconsideration is solely about the findings that he had not been subjected to a detriment due to whistleblowing in respect of one allegation.

[4]Under Rule 68, a Judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration of a Judgment is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration, but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.

[5]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the Judgement being varied or revoked. Essentially, this is a reviewing function in which the Employment Judge must consider whether there is a reasonable prospect of reconsideration in the interests of justice. There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because he or she disagrees with the decision.

[6]If the Employment Judge considers that there is no such reasonable prospect then the application shall be refused. Otherwise, the original decision shall be reconsidered at a subsequent reconsideration hearing. The Employment Judge’s role, therefore, upon the considering of the application upon the papers initially, is to operate as a filter to determine whether there is a reasonable prospect of the Judgment being varied or revoked were the matter to be the subject of reconsideration hearing.

[7]The Employment Appeal Tribunal has given guidance as to the nature of a request for reconsideration:a. Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted.

b. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule.

c. It is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.

d. Tribunals have a wide discretion whether or not to order reconsideration.

e. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.

[8]The claimant has asked that the Judgement is reconsidered because he says one specific decision in respect of a whistleblowing detriment was inconsistent with the Tribunal’s findings of fact and the Tribunal misapplied the law on the whistleblowing detriment claims. The specific decision challenged is set out in paragraphs 383 and 384 of the Judgement.

[9]My understanding of the claimant’s application is he is primarily asserting there was an error of law by the Tribunal. The correct process is to appeal to the Employment Appeal Tribunal. I understand that the claimant has already lodged an appeal.

[10]The application for reconsideration is primarily refused on the basis that it is not the correct process. To the extent that it is not argued to be an error of law, the application is refused on the basis that the claimant is seeking to relitigate matters that have already been considered by the Tribunal having heard the evidence and received written submissions from both parties.

[11]The claimant within his application has set out a summary of what he says the Tribunal concluded on various matters. He has then asserted that the Tribunal reached the wrong conclusion on the claims for whistleblowing detriment. The claimant says that based on the Tribunal’s findings of fact it automatically follows that his whistleblowing detriment claims should have succeeded.

[12]In support of the application the claimant has set out in his application a summary of what he says the Tribunal concluded on several points. In his application for reconsideration the Tribunal has summarised aspects of the Judgment as follows:a. He says: “the Tribunal accepted that the respondent failed to provide adequate support for the claimant’s mental health”.

b. He says the Tribunal accepted the “claimant’s grievances constituted protected acts”.

c. He says the Tribunal accepted “the claimant’s grievance informed the respondent’s decision making from February 2021 onwards”.

d. He says the Tribunal “accepted a causal relationship between protected acts and the respondent’s decision making”.

[13]This is not an entirely accurate summary of the Tribunal’s conclusions. The Tribunal upheld some of the claimant’s victimisation claims because there was evidence that certain of the respondent’s actions were materially influenced by the fact that the claimant had raised grievances about discrimination. It does not follow from this that the claimant’s claims for detriment due to having made a protected disclosure must also succeed. The relevant facts differ.

[14]The reconsideration application is limited to the decision set out in paragraphs 383 and 384. These include the Tribunal’ conclusions on 2 specific claims, whistleblowing and direct discrimination. The alleged detriment was that the respondent failed “to take steps to protect the claimant’s mental health or support him between 17 September 2020 when he was suspended and the date his employment terminated.”

[15]For the whistleblowing claim to have succeed, this must have been a deliberate failure to act and that deliberate failure must be due to the protected disclosure. In his reconsideration application the claimant refers to the grievances being protected acts. The wider grievances are not relevant for a whistleblowing claim. It is the protected disclosure. The only protected disclosure which the Tribunal accepted the claimant made was during the meeting on 1 October 2020 with Mr Safo-Poku. The subject matter of the protected disclosure was forgery, based on the manipulation of waste figures.

[16]In respect of the particular decisions, set out in paragraphs 383 and 384, the Tribunal had accepted “the respondent could have provided the claimant with more support in relation to his mental health.” This finding is not the same as a finding that there was a deliberate failure to “take steps to protect the claimant’s mental health”.

[17]The Tribunal also concluded that any failure was not due to the protected act. The claimant in his reconsideration application has referred to Fecitt v NHS Manchester

[2012] IRLR 64

. Paragraph 256 of the Judgment also refers to the decision in Ibekwe v Sussex Partnership NHS Foundation Trust

UKEAT/0072/14/MC

. A claim does not succeed by default just because there is a protected disclosure and a detriment. The Tribunal concluded that although the respondent’s support for the claimant’s mental health was not satisfactory, there was no evidence from which it could properly infer that the disclosures the claimant made on 1 October 2020 had any material influence on that failing.

[18]The claimant’s reconsideration application seeks to relegate this conclusion, but the claimant has not provided anything new that would make it in the interests of justice to revisit the Tribunal’s conclusions. It is reopening matters that have been decided.

[19]I am not satisfied that it is in the interests of justice to reconsider the Judgment. The claimant’s arguments are seeking to relitigate matters which have already been fully considered by the Tribunal following a fair hearing.

[20]If the claimant does consider that there has been an error of law it remains open to him to pursue his appeal to the Employment Appeal Tribunal.