Mr A Ikeji v Office of Rail and Road and others: 3204202/2022 and 3201367/2022
EMPLOYMENT TRIBUNALS
Case No 3204202/2022, 3201367/2022
Between
Mr A IkejiClaimantOffice of Rail and Road and othersRespondent
Before
Employment Judge RussellMr P O’Callaghan (instructed by Counsel) for claimantMr G Menzies (instructed by Counsel) for respondentDate 17 April 2024
JUDGMENT
(1) The Claimant’s application for interim relief fails and is dismissed.(2) The Respondents’ application to strike out the claims fails and is dismissed.
REASONS
LIST OF ISSUES
[1]By a claim form presented on 15 July 2022, the Claimant brings a complaint of unfair dismissal because of a protected disclosure and made an application for interim relief. The effective date of termination was 12 July 2022 and so the application was presented in time.[2]The Claimant was employed by the Respondent from 5 January 2022 as a Trainee Inspector. From early in the employment, a number of disputes arose. The first was whether the Claimant should have been appointed to the Trainee Inspector position at Transport for London rather than the allocated role at Network Rail southern region. There then arose a dispute about the Claimant’s training needs assessment. I do not need to go into any further detail for the purposes of deciding this application.[3]The Claimant and his line manager, Mr Wilson, met on 3 March 2022 and discussed, amongst other things, the Claimant’s desire to work part-time. It is clear from contemporaneous emails sent by the Claimant and Mr Wilson that the latter’s reaction was not favourable. Whilst the Claimant had not made a formal application, Mr Wilson said that if he did, the likely response would be no and that he would oppose it.[4]The Claimant was very unhappy about Mr Wilson’s stance and raised a grievance on 8 March 2022. That grievance makes no complaint of race discrimination, harassment or victimisation. The Claimant and Mr Wilson were both interviewed as part of the grievance investigation and the Claimant subsequently provided further information which did allege victimisation, harassment and discrimination. An investigation report was sent to the Claimant on 31 March 2022. It concluded that the Claimant had not been treated unfairly but made recommendations to improve communication and address the outstanding training issues.[5]The Claimant disagreed with the conclusions of the investigation report and sent a significant amount of additional information by email dated 12 April 2022. This was the same day as the grievance hearing.[6]By 28 April 2022, the Claimant’s position was that there were a number of unresolved issues which he considered breaches of his contract and he did not regard the duties proposed by his new line manager, Matthew Farrell, as appropriate due to his health condition and the outstanding breaches of contract which he required to be resolved. The alleged breaches of contract related to training, flexible working and his allocation to the Network Rail post.[7]The Claimant had been absent from work due to stress since 25 March 2022. On 4 May 2022, an Occupational Health report recommended that, so far as operationally feasible, the Claimant return to work on a phased basis, with flexible working in the office and/or remotely, regular breaks and further communication. The only amended to working duties suggested that the Claimant should do no live track visits.[8]The grievance outcome, sent on 6 May 2022, partially upheld the Claimant’s complaints about poor communication by Mr Wilson and the delay in the deduction of the training needs assessment but did not conclude that Mr Wilson had breached any policy in respect of the request for part time working. The complaints of discrimination and victimisation were also rejected.[9]On 10 May 2022, the Claimant and Mr Farrell had a meeting in which the Claimant made clear that he was unhappy with the grievance outcome and remained firmly of the view that there had been breaches of his contract of employment. He made very clear that he was not prepared to remain in his existing team but was prepared to consider redeployment. In an email sent the same day, the Claimant concluded: ‘if I have to be granted unpaid leave until the situation is resolved, I would consider that seriously to protect my health and well-being. I am also willing to consider a business move to any of the other directorate in ORR that seems possible’. Mr Farrell replied the following day confirming that the Claimant could be put onto unpaid leave from 11 May 2022 until conclusion of the grievance appeal process. The Claimant then replied that he did not agree to be put on unpaid leave and, from the content of the email, made clear that the only acceptable solution was redeployment. On the evidence of the emails, it is clear that the Claimant had decided to stay away from work and to refuse to perform the duties of his existing role because of what he perceived to be breaches of contract and unlawful treatment. I make no finding of fact as to whether or not the Claimant’s belief that his contract had been breached was well-founded.[10]This is the background to the grievance appeal meeting that took place on 17 May 2022. In advance, the Claimant provided considerable detail of his complaints in answers to a questionnaire dated 13 May 2022. That information formed the basis of the discussion in grievance appeal hearing. The Claimant’s request to record the appeal meeting had been refused. Ms Rosolia would take handwritten notes for the Respondent and a copy would be provided to the Claimant. At the start of the appeal meeting, the Claimant referred again to recording the meeting but when told that it was not the Respondent’s policy to record, replied “I can do nothing to compel you.” The Claimant covertly recorded the meeting.[11]On 20 May 2022, Ms Rosolia sent a copy of her notes to the Claimant for comments. The Claimant replied with an amended copy of the notes, produced by reference to the covert recording. Copies of Ms Rosolia’s notes and the Claimant’s notes are both included in the bundle today. The Claimant’s version shows the parts with which he disagrees as crossed out and his version of what was said is shown in red. For the purposes of this application I have assumed that all of the entries in red are an accurate transcript from the recording. In a series of emails that followed, the Claimant made clear that he regarded the Respondent’s version of the notes as materially inaccurate, going so far as to describe them as misleading and unacceptable.[12]During the course of today’s hearing, I asked Mr O’Callaghan to identify the material differences between the two versions of the notes which the Claimant relies upon to support his view that there has been an attempt to cover-up wrongdoing or fraud. I adjourned the hearing for an hour and 20 minutes to give Mr O’Callaghan some time privately with the Claimant to identify relevant differences. He was unable to provide any specific examples.[13]The Claimant’s appeal against the grievance was not upheld.[14]On 24 May 2022, the Claimant sent an email to Ms Elizabeth Thornhill, General Counsel for the Respondent, copied to Mr Prosser, with the subject: “Whistle-blowing complaint under PIDA 1998”. In this email, the Claimant stated: ‘My concerns are in the public interest and relate to the deliberate actions and statements made by two senior officials in the Office of Rail and Road who have conspired to conceal breaches to the Equality Act 2010. They have also breached the employer’s statutory duty to ensure the health, safety and welfare of employees like me, at work, and they have refused to rectify the untruthful and harmful account of formal internal proceedings, which they published yesterday (23/05/2022). The senior officers in question are: 1. Vinita Hill - Director of Corporate Operations 2. Victoria Rosolia - Associate Director of Human Resources.’[15]The Claimant attached to the email the Respondent’s version of the notes of the appeal hearing, his own version of the notes, the correspondence between Ms Hill, Ms Rosolia and the Claimant in the period immediately after the hearing dealing with the alleged inaccuracies, a copy of the appeal hearing outcome letter and the CSC complaint and acknowledgement. He went on to state in his email: ‘You will see from the protected disclosures that the senior officers presented untruths and had taken deliberate steps to conceal several unlawful acts of other employees, in a comprehensive example of abuse of power, gaslighting and coercive control in the workplace which must not be condoned in the civil service.’[16]The Claimant did not provide in his email any specific example of an untruth or a deliberate step to conceal unlawful acts of others. I had careful regard to the contents both of the email itself and the attachments to it when deciding whether or not the Claimant had a pretty good chance of showing that he had disclosed information tending to show a relevant breach.[17]Dealing first with the two versions of the notes of the appeal hearing, there are no obvious material differences. It is inevitable when comparing a summary note taken during a meeting with the greater detail of a transcript of a recording that the latter will be lengthier. That is the case here, the Claimant’s version records at greater length some of the questions and answers than the Respondent’s more summary notes. However, I consider that the summary is accurate and that there is no material difference of substance. The Respondent’s summary notes record that the Claimant’s assertion in the meeting that lodging his grievance was a protected act and that he suffered a detriment since he raised his grievance. I considered the longer passages in red when deciding if the differences in the notes were material. By way of example, when Ms Hill tries better to understand the Claimant’s complaints and asks for clarification about the meeting on 3 March 2022:• The Respondent’s summary note records that the Claimant stopped her, asserted that since he raised his grievance there had been gaslighting from a number of people, delays from HR which were detrimental. He had experienced a lot of stress, there had been a lack of support and there was no suggestion of the alternative role.• The more full note answer produced by the Claimant includes a greater number of context words but the substance of the complaint in his answer is the same. Since he lodged his formal grievance, he had gaslighting from a number of colleagues, referring to a section in his questionnaire about gaslighting. He goes on to say that the delays from HR since he lodged his grievance have been detrimental. Some of detriments were linked to a particular protected act (paragraph 1d in his questionnaire). He has experienced a lot of stress, his health has deteriorated since lodging the grievance that is a linked detriment. The lack of support is a detriment, there has been no suggestion whatsoever of an alternative role or employment option is also a detriment linked to the protected act.[18]It is clear from just that one example that where there may be differences in the number of words used and the precise framing of the response, the substance of the question and answer is the same. The summary notes record the Claimant’s case that he had made a protected act and suffered detriment as a result. They also record the Claimant’s case that his initial appointment to the Southern team was an act of discrimination by comparison to the other appointee who is white and that he was discriminated against because several inspectors were allowed to work part time whereas he received a less favourable response from Mr Wilson. The Respondent was not on a reasonable reading seeking to cover up or hide the Claimant’s allegations of breaches of the Equality Act 2010.[19]The Claimant’s probationary period was due to end on 4 July 2022. Mr Farrell conducted a probationary assessment of the Claimant’s employment on 1 July 2022. The Claimant was still off work and he declined to attend the meeting for a discussion to form the basis of his assessment. In his contemporaneous note, Mr Farrell sets out a number of matters of concern about the Claimant’s conduct, namely his refusal to undertake work from 11 May 2022 to date, his refusal to participate in the recommendations set out in the grievance decision, poor timekeeping but with an acknowledge that the Claimant’s performance is acceptable. There is no reference to the grievance appeal hearing or the disputed notes of that hearing nor is there anything to suggest that Mr Farrell knew about or was influenced by the Claimant’s email to Ms Thornhill or that he believed that the Claimant had made a protected disclosure.[20]The probationary review meeting took place on 12 July 2022. The Claimant again did not attend. The decision maker was Mr Alshaker. There is nothing in the minutes of the meeting which refer to the Claimant’s grievance, the appeal hearing, the dispute about the accuracy of the notes or any alleged protected disclosure. I consider it material that the Claimant’s pleaded case does not allege that Mr Alshaker was aware of his protected disclosure (or believed him to have made a protected disclosure), but concentrates on Mr Farrell. In response to this potential weakness in the Claimant’s case on causation, Mr O’Callaghan today said that the Claimant’s case was that Mr Alshaker did have knowledge of the protected disclosure because he had been appointed by Ms Rosolia, the note taker at the appeal hearing. This misses the point that the protected disclosure relied upon is the email to Ms Thornhill and Mr Prosser and the appeal meeting which gave rise to the alleged disclosure. Furthermore, there is no evidence to support the Claimant’s case as first articulated today. The Claimant was informed by letter dated 13 July 2022 that he was being dismissed with five weeks’ pay in lieu of notice.[21]Finally, today the Claimant made an application to amend his claim to plead that the sole or principal reason for dismissal was his assertion of the statutory right to pay after 11 May 2022. Before giving Judgment on this interim relief application, I determined the issues in each of the claims now presented to the Tribunal. Due to a lack of time the decisions on the amendment application and the Respondent’s applications for strike out and/or deposit orders was reserved.
Law
[22]Sections 128 and 129 of the Employment Rights Act 1996 provides that interim relief is available as a remedy where the Tribunal is satisfied that it is likely that at the final hearing, the Claimant will show that the sole or principal reason for dismissal is a protected disclosure. The burden of proof is on the Claimant to show that he is likely to succeed in a claim under s.103A Employment Rights Act 1996.[23]The meaning of the word “likely” has been considered in several cases. In Taplin v C Shippam Ltd [1978] ICR 1068, the EAT held that it must be shown that the claimant has a “pretty good chance” of succeeding, meaning something more than merely on the balance of probabilities. That approach to the word “likely” has been followed in several subsequent decisions, such as Dandpat v The University of Bath and Anor UKEAT/0408/09 and Ministry of Justice v Sarfraz [2011] IRLR 562.[24]In Al Qasimi v Robinson [2021] EWCA Civ 862, the Court of Appeal endorsed the “settled practice in this area of law” established by Taplin and the subsequent EAT decisions. The Court of Appeal acknowledged the common ground of the parties that the “likely” test is a relatively high threshold which takes into account the serious consequences for the employer if an interim order is made. Indeed, in the earlier EAT Judgment in Al Qasimi, Eady J made it clear that where interim relief is sought in a whistleblowing case, the Claimant must show that it is likely that the claim will succeed on each of its constituent parts, ie that it is likely that the Tribunal will find(1) that there was a disclosure to the employer;(2) reasonable belief that it tended to show one of the prescribed matters and that it was in the public interest;(3) that it was the sole or principal cause of dismissal.[25]By operation of rule 95 of the Employment Tribunal Rules of Procedure, when deciding an interim relief application the Tribunal will not ordinarily hear oral evidence. What is required of the Tribunal is broad and summary assessment on the material available of whether the claim has a pretty good chance of success. It is not a final judgment and no findings of fact are made at this stage.
Conclusions
[26]Having considered the documents put before me and the helpful submission of Counsel, I am not satisfied that the Claimant has a pretty good chance of showing that he disclosed information tending to show a breach of legal obligation or health and safety in his email to Ms Thornhill. The content of the email itself is a bare allegation of untruths and alleged concealment, without examples given. Even having regard to the attachments, particularly the two different versions of the notes, I do not consider that the Claimant has a pretty good chance of showing that there is any information tending to show an attempt to conceal a breach of the Equality Act. Having looked at the summary notes, it is clear that the Equality Act claims are included and the Claimant does not have a pretty good chance of showing that he reasonably believed that there was a disclosure of a proscribed matter. Furthermore, it is clear from reading the attached documents that even on the Claimant’s full version of the appeal hearing notes, his complaint is all about his own individual circumstances. He does not have a pretty good chance of showing a reasonable belief objectively considered that any disclosure was in the public interest.[27]It is material that the Claimant now seeks to argue (if given leave to amend) that the reason for his dismissal was an assertion of his statutory right to pay after 11 May 2022. In deciding the unfair dismissal, the Tribunal will have to make a finding as to the sole or principal reason for dismissal (unlike discrimination where the protected characteristic need only be a material cause). As it stands today, therefore, the Claimant’s case is that there were two sole or principal reasons – protected disclosure and/or assertion of a statutory right. In forming my broad brush assessment, I consider this seriously undermines the credibility of his case and the likelihood of success at final hearing.[28]Overall, my view is that the s.103A claim does not have a pretty good chance of success and is not likely to succeed. The application for interim relief is refused. Respondent’s application to Strike out[29]An Employment Judge has power to strike out a claim on the ground it has no reasonable prospect of success under Employment Tribunal Rules of Procedure 2013 rule[37]The power to strike out a claim on the ground that it has no reasonable prospect of success may be exercised only in rare circumstances. 30 It may be seen that the test for strike out imposes a very high threshold due to its draconian nature: there must be no reasonable prospect of success. This requires the Tribunal to consider whether on a careful consideration of all available material it can properly conclude that the claim has no reasonable prospects of success. It is not a matter of whether the Claimant’s claim is likely to fail nor of asking whether it is possible that the claim will fail. It is not a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is a high test. 31 As summarised in Ukegheson v Haringey Borough Council [2015] ICR 1285: Tribunals should be cautious in exercising the power to strike out, particularly in discrimination claims where there is a public interest in them being heard and because they are likely to be fact sensitive. A hearing to consider strike out should not be a minitrial. The Claimant’s case should be taken at its highest unless conclusively disproved by (or totally and inexplicably inconsistent with) undisputed contemporaneous documents, Ahir v British Airways [2017] EWCA Civ 1392.. 32 As was made clear in Cox v Adecco [2021] ICR 1307 EAT, before considering strike out, the Tribunal should make reasonable efforts to identify the claims and the issues to be decided having regard to the pleadings and any core documents that set out the Claimant’s case. However, litigants in person should focus on their core case rather than trying to argue every conceivable point. The more prolix and convoluted the claim, the less likely a litigant can criticise the Tribunal for failing to get to grips with it. The Tribunal can only be expected to take reasonable steps to identify claims and issues. 33 As set out above, a large part of the hearing was spent identifying the issues in the claims as no draft List of Issues had been produced by either party. It would not have been appropriate to determine the application to strike out without first knowing what the claims are. I refer to the List of Issues set out in the separate Case Management Summary for today’s hearing. 34 The Claimant’s case is that there was direct race discrimination in the failure to allocate him to the Transport for London vacancy, Mr Wilson deleted interview notes, did not properly consider the Claimant’s development plan requirements and told the Claimant that he would block a part time working request. The Claimant compares himself with the other successful candidate (white) and other trainee inspectors (white). The harassment claims relies on unwanted conduct surrounding initial role allocation, development plan and Mr Wilson’s comments about part time working but also includes comments in Mr Wilson’s email of 7 March 2022, a 21 March 2022 training needs assessment conducted in his absence, suspension without pay from 11 May 2022 and ultimately the recommendation for dismissal. The Claimant’s case in short is that a hypothetical white trainee inspector would not have been treated the same way (no legal comparator is required for a harassment claim so this is for evidential/inference purposes only). There are five protected acts for the victimisation claims – orally to Mr Wilson on 5 January and 7 January 2022; 23 February and 28 February 2022 feedback about discriminatory comments made at a training course; 3 March 2022 orally to Mr Wilson about the comments at the training course; 8 March 2022 grievance and 4 April 2022 first ET1 form. There are six detriments alleged – failure to appoint him to the TfL role, Mr Wilson saying that he would block part time working, threats from Mr Wilson to the Claimant’s employment in emails sent on 4 March and 7 March 2022, failure to pay from 10 May 2022, dismissal on 12 July 2022 and 29 July 2022 a complaint made by the Respondent to the police about a potential threat. The breach of contract and unauthorised deductions claims rely on the express term as to pay and contractual benefits (regarding failure to pay the Claimant from 10 May 2022). 35 The automatic unfair dismissal claim relies on the single email and attachments to Ms Thornhill and Mr Prosser on 24 May 2022. There is no whistle blowing detriment claim. The Claimant says that at the material time he was disabled by reason of the mental impairment of chronic anxiety and/or the physical impairment of essential hypertension. He alleges that he was treated unfavourably when sent home on 10 May 2022 without being offered a safe way of working, imposed unpaid leave without notice or consent, 11 May 2022 being accused of being absent without leave by Ms Rosolia, failure to apply the disciplinary process and unfair processes about grievance and pay. The “something” is said to be the Claimant’s inability to undertake his normal duties due to his physical and mental impairments. 36 The application to amend pursued by Mr O’Callaghan was to include assertion of the statutory right to pay as the principal or sole reason for dismissal, rendering it automatically unfair. Also, to include a claim of failure to make reasonable adjustments of amended duties but instead requiring the Claimant to perform the full duties of the role to which he was appointed. There was some dispute about the amount paid by way of notice but this should be capable of resolution between the parties as it seemed to turn on gross or net figures. 37 Having identified the claims as above, I considered whether or not they can be said to have no reasonable prospects of success. I reminded myself of the high threshold to be applied, the fact that the Claimant’s case must be taken at its highest and that discrimination (and protected disclosure claims) are fact sensitive. Whilst the Respondent asserts that no other Trainee Inspectors work part time, the Claimant says that other inspectors were permitted to do so. Even if not trainees, and therefore not statutory comparators, they are evidential comparators from which inferences could be drawn. In the circumstances, I do not conclude that there are no reasonable prospects of success for the claims surrounding part time working.[38]On the allocation to the Network Rail rather than TFL vacancy, the job advertisement states that the TfL role covered London’s railway operators and the Network Rail role covered Kent, Sussex and Wessex. In his application form the Claimant gave his preferred choice of location as London and his further preference as Southern Region. At interview, the Claimant expressed a preference to join TfL. He was the highest scoring candidate. In the circumstances, I do not conclude that there are no reasonable prospects of success for the claims surrounding initial role allocation.[39]It is not in dispute that there was a delay in completing the development plan and training needs assessment, this is one of the recommendations which came out of the grievance investigation report and decisions. Evidence is required to make findings as to the treatment of the other trainee inspectors and the reasons for the delay. I do not conclude that these claims have no reasonable prospects of success.[40]As for the claims relating to pay from 11 May 2022, the Claimant’s own email on 10 May 2022 made clear that he was not prepared to continue to work in his current team, the options he proposed were redeployment and possible unpaid leave. When Mr Farrell accepted the unpaid leave offer, the Claimant sought to resile and suggested that there were budgetary contingencies for such situations, in other words that he be paid. There is, however, a factual dispute as to whether the Claimant had offered unpaid leave in the meeting on 10 May 2022 and his email said only that he would consider unpaid leave. In the circumstances, taking the Claimant’s case at its highest, I do not conclude that his claims of discrimination, harassment, victimisation, breach of contract or unauthorised deduction from wages relating to pay can be said to have no reasonable prospects of success.[41]As for the protected disclosure/automatic unfair dismissal claims, whilst on the limited evidence before me today it seems that such claims are weak, I am not prepared to conclude that they have no reasonable prospects of success. Evidence is required from the decision makers as to their reasons for dismissal and even though I could not discern a disclosure of information for the purposes of the interim relief application, I have made no finding of fact and it may be that the Claimant will at the final hearing be able to point to relevant parts of the email or attachments which meet the statutory requirements.[42]Finally, the Claimant’s case is that he was unable to work in his normal job due to his disabilities. Evidence is required as to whether the Claimant is disabled within s.6 Equality Act 2010 and, if he is, whether this caused him to be unable to work. If so, then it is reasonable that he can show that the failure to pay from 10 May 2022 was unfavourable treatment because of something arising in consequence of disability. Of course, the decision may well be objectively justified but, again, these are all matters requiring evidence and proper consideration at a final hearing.[43]In addition to strike out on the merits, the Respondents applied to strike out the claims due to the Claimant’s conduct.[44]The decision about whether to strike out for conduct is a two-stage process. The Tribunal must first identify the conduct in question and decide whether it meets the required threshold. Only if it does, should the Tribunal consider whether or not to exercise its discretion to strike out. This inevitably involves consideration of whether a fair trial is still possible and whether less draconian sanctions would be appropriate. As made clear in Bolch v Chipman [2004] IRLR 140, EAT, there are four matters to be addressed: 1. There must be a conclusion by the tribunal not simply that a party has behaved scandalously, unreasonably or vexatiously but that the proceedings have been conducted by or on his behalf in such a manner. Such a finding must be supported by appropriate reasons. Such conduct is not confined to matters taking place within the Tribunal hearing but may include threats as to possible consequences if the proceedings are not withdrawn. 2. Even if such conduct is found to exist, the tribunal must reach a conclusion as to whether a fair trial is still possible. 3. Even if a fair trial is not considered possible, the tribunal must still examine what remedy is appropriate, which is proportionate to its conclusion. It may be possible to impose a lesser penalty than one which debars a party entirely. 4. If the tribunal decides to make a striking out order, it must consider the consequences of the debarring order.[45]As made clear in Emuemukoro v Croma Vigilant (Scotland) Limited EA-2020- 000006-JOJ, it is not necessary to show that a fair trial is not possible at all, merely that as a result of a party’s conduct, a fair trial was not possible in the trial window. A fair trial is one conducted without undue expenditure of time or money and with proper regard to the demands of other cases awaiting hearing. The fairness question must be considered with regard to notions of fairness generally and the overriding objective.[46]The Respondents’ case is that the Claimant has brought previous unsuccessful claims against other employers. His claim against MTR (Crossrail) Limited was dismissed with a costs order against him in August 2018. He brought claims against Morden College in the County Court and the Employment Tribunal in November 2020 which also included allegations of racial harassment, victimisation, whistle blowing and breach of contract. The outcome of those claims is not known.[47]The Respondents also rely on the Claimant’s conduct in these proceedings, namely his threats of defamation proceedings against Ms Rosolia upon receipt of the ET3 to his first claim, complaints to the Civil Service Commission, use of intemperate language and obstructive behaviour in connection with the return of property and attempt to agree a list of issues and, on 21 September 2022, a statement that he had no objection to press coverage of open hearings. The Respondents submit that the claims are arbitrary, weak, lacking particulars and accompanied by tactics which include obstruction and unwarranted personal attacks. This cannot be ascribed to lack of knowledge given the Claimant’s previous experience of Employment Tribunal litigation.[48]In response, the Claimant submits that the proceedings against former employers are of very limited assistance. There is a general denial of scandalous, unreasonable or vexatious conduct.[49]Applying the two stage Bolch approach, I considered first whether the Claimant’s conduct meets the required threshold. I can derive little assistance from the proceedings against Morden College as it is not known whether the claims have (or will) succeed. It cannot be unreasonable, vexatious or scandalous to bring successful claims for discrimination. As for the MTR proceedings, I was provided only with a copy of the Judgment refusing the Claimant’s application for reconsideration. Even if the Claimant has not disclosed a copy of the Judgment, this is a matter of public record and the Respondents could (and should) have taken steps to produce a copy. It follows that I do not know why the Claimant lost or the conduct which led to the costs order, although I accept from the Reconsideration Judgment that it refers to his ability to make sound judgments about his prospects of success.[50]The Claimant’s conduct of these proceedings, whilst no doubt intemperate and not of the standard one might expect of an experienced litigator, falls far short of the high threshold required to strike out. If the Claimant continues to be obstructive and in breach of the parties duty to cooperate to assist the Tribunal, the Respondents can apply for appropriate sanctions such as Unless Orders, strike out or even that the Claimant be limited in the way in which he can adduce documents or statements. All are more proportionate sanctions which will enable there to be a fair trial without undue cost and delay. The final hearing is listed for two days in February 2023, this is clearly too short a time estimate and I have ordered that there instead be a further Preliminary Hearing and the final hearing be relisted for five days before the end of 2023 if possible. Given the pressure on Tribunal resources in this region, that is not a particularly lengthy delay for claims presented in April and July 2022. Other than the costs of today’s hearing, there is no evidence before me that the Claimant’s conduct has incurred significant additional costs. For these reasons, I also reject the application to strike out the claims by reason of conduct.[51]In the circumstances, the application to strike out the claims is dismissed in its entirety.
Conclusions
[1]Until his dismissal in July 2022, the Claimant was employed by the First Respondent as a Trainee Inspector. The decision to end his employment was taken at a Probation Review Meeting held on 12 July 2022. By that point, he had been employed for just over six months.[2]In these two conjoined sets of proceedings the Claimant raises various complaints about the way he was treated throughout his employment and about the decision to dismiss him. The complaints requiring the Tribunal’s determination were clarified at the start of the hearing when the Tribunal discussed and finalised the list of issues. This involved granting the Claimant’s application to add an additional basis for arguing that he was automatically unfairly dismissed.[3]In the first claim, the only additional named Respondent apart from the Office for Rail and Road was Mr D Wilson. In the second claim, the additional named Respondents were Mr I Prosser, Mr M Farrell and Ms V Rosolia. For convenience, in these reasons, the Tribunal refers to Mr Prosser as the Third Respondent, to Mr Farrell as the Fourth Respondent and to Ms Rosolia as the Fifth Respondent.[4]The Claimant represented himself. The Respondents were represented by Mr Menzies of Counsel. Witness evidence was provided by the Claimant and by the following witnesses on behalf of the Respondents: Victoria Rosolia, Errol Galloway, Lee Collins, Catherine Hui, Paul Appleton, Donald Wilson, Matthew Farrell, Vinita Hill and Feras Alshaker. The documentary evidence was contained in two lever arch files extending to 1616 pages at the start of the hearing. By the conclusion of the hearing, further documents had been added in the appropriate point in the chronological sequence or at the back of the second bundle.[5]Both parties had prepared their own chronologies. These were not agreed documents. In addition, the Respondents had prepared a cast list of relevant individuals.[6]At the start of the hearing, the Claimant applied for permission to record the proceedings to assist him in presenting his case. This application was refused for reasons given orally at the time. The Tribunal decided that the Claimant would have an effective opportunity to present his case because the Tribunal would provide him with adequate breaks during the evidence and would permit him to note down answers and matters to which he wished to return in presenting his case.[7]The evidence was concluded on the morning of the sixth day. Mr Menzies provided written closing submissions, which he amplified orally. The Claimant also provided written closing submissions and answered clarificatory questions from the Tribunal. There was insufficient time remaining for the Tribunal to deliberate on all matters and announce its decision and reasons orally. As a result, the Judgment and Reasons were reserved and sent out in writing.[8]We refer to the Claimant in these Reasons as Mr Ikeji and to the First Respondent in these Reasons as ORR.
Findings of fact
[9]In the middle of 2021, ORR advertised that it was seeking to appoint to two full time posts of HM Trainee Inspector of Railways [671]. The job location was described as London with a base at 25 Cabot Square, Canary Wharf [672]. The job description described one role with the TfL team and the second role with the Network Rail Southern Region team. The application deadline was 16 August 2021. Mr Ikeji completed the online application form. On the application form, under the section Preferences, he completed the further location preferences as ‘Southern Region’ [689]. This was a free text box into which he had written those two words.[10]All applications were anonymised before a shortlisting decision was taken. Seven of the applicants were shortlisted for an in-person assessment by a panel of three. Chairing the panel was Donald Wilson. Also present on the panel was Catherine Hui and Dominic Long. Mr Wilson had received training in diversity and inclusion. The purpose of the interview was to select the strongest candidates based on merit. It was not to decide which candidate would be assigned to which vacancy.[11]The same process applied to each of the seven shortlisted candidates. They were given an assessment and were asked competency-based interview questions. Each candidate was scored against ten separate criteria, with the panel members each scoring the candidates’ answers during the interview by allocating a number between 1 and 7. After each interview they discussed their scores and agreed a single score against each competency for each candidate. Because the assessment took place face to face, it would have been obvious to the selection panel that Mr Ikeji was a black man.[12]As a result of this exercise, the Claimant scored highest with 49 marks, one mark ahead of Emily Gelder. A third candidate Fu Lee was awarded 47 marks and was initially regarded as the reserve candidate. This is because the panel were under the impression that ORR were seeking to appoint 2 trainee inspectors. Some weeks later, Fu Lee was also appointed when ORR decided to make three appointments.[13]There was an opportunity for the candidates to ask questions and to indicate any particular preferences about how they saw the role. The Tribunal does not accept that Mr Ikeji specifically expressed a preference for the TfL role.[14]Any notes taken by panel members during interviews were sent to HR and were then destroyed following the conclusion of the interview process. This was ORR’s standard procedure. It was done based on ORR’s understanding of best practice in accordance with data protection legislation.[15]The panel submitted their scoresheet to HR together with comments for each of the candidates. The comment for the Claimant read “This candidate is an excellent communicator who gave strong examples to demonstrate his ability against each of the criteria explored. He demonstrated a clear interest in the job, had done his preparation, and asked some good questions relevant to the role. He showed a positive approach to his own and others’ development”. The comment against Ms Gelder was as follows: “This was a strong all round performance held together with a clear and engaging communication style. Examples from work experience were strong, including those cited from earlier work in a law firm. The panel felt that the candidate could be a very good ORR representative with duty holders”.[16]It is likely that Mr Wilson, as the Chair of the Panel, would have telephoned Mr Ikeji and Ms Gelder to inform them of their success. Written offer letters would have followed prepared by HR. The Claimant signed and dated his acceptance of the employment contract offered on 26 October 2021. The role was described as a Full-Time role, namely 37 hours per week over 5 days each week. His place of work was described as Office of Road and Rail, 25 Cabot Square, London E14 4QZ. The offer letter recorded his start date as 5 January 2022 [701]. His notice period was described as follows: “The amount of notice of termination of your employment you are entitled to receive is 5 weeks.”.[17]There was no reference in the Offer document to ORR having any entitlement to make a Payment In Lieu of Notice (“PILON”), in the event that employment was terminated.[18]The document listed the following against “Paid leave and benefits” – “You are entitled to the following benefits during your employment … Flexible Working”.[19]The document did say “Full details of ORR terms and conditions can be read in the ‘summary of terms and conditions of service document”. Neither this summary document nor the full terms and conditions have been included in the documents in the bundle. As a result, it is unclear whether there was a PILON clause in Mr Ikeji’s contract of employment, or whether the Probation Policy (or any other policies) were incorporated as part of his contractual terms. The Probation Policy records the following under the heading “Notice and Compensation”: “If you are to be dismissed, you will be given a minimum of 5 weeks notice in accordance with Section 11.1.2.d of the Civil Service Management Code. Compensation in lieu of notice will be decided on the individual merits of each case. ORR reserves the right to require people to stay away from the office during their notice period (this is known as gardening leave).”[20]Under the ORR’s Flexible Working policy, an application for a changed in the contractual terms to part time work could only be made after 26 weeks employment.[21]Mr Ikeji also signed what was described as a Training Contract on the same day. This stated at paragraph 2 that the employee was being trained in “the Post Graduate Diploma in Occupational Safety and Health (where not already held) and Railway technical knowledge and skills as identified by the competence manager and/or by the line manager in a training needs analysis, to be provided within 2 months of the employee starting in the Trainee Inspector role. The final paragraph of the training contract said that “any changes to this training contract must be agreed in writing by both parties”.[22]When the paperwork was provided to and signed by the Claimant, there had been no decision as to the specific role to which the Claimant would be assigned. There were two roles to fill – one working with Donald Wilson on the mainline infrastructure and one working with Catherine Hui working on TfL infrastructure. This included the Elizabeth Line.[23]The decision as to where both of the successful candidates should be deployed was taken by Paul Appleton. He had no particularly strong views on which of the candidates should be deployed to which role. He had not been on the interview panel and did not know either of them. He had not seen either of the candidates application forms and therefore any preferences expressed when applying. Whilst containing different elements, the two roles were regarded as of equivalent standing.[24]At around the time he was making the decision, Mr Appleton happened to be in the office on the same day as Catherine Hui. He asked her if she had a preference as to which of the two successful candidates should join her team. Her preference that Ms Gelder should join her team. She felt that Ms Hui’s recent experience with TfL and particularly with the duty holder for the Elizabeth Line. At that point, the Elizabeth Line had yet to open and was one of her priorities. He did ask Mr Wilson for his views as he was not in the office on that day and Mr Appleton needed to make a decision.[25]Influenced by Ms Hui’s view, Mr Appleton decided that Ms Gelder should be assigned to the TfL work and that Mr Ikeji should work on mainline infrastructure with Mr Wilson.[26]Before starting Mr Ikeji underwent a medical. No problems were noted. As Mr Ikeji described it during his grievance meeting on 12 April 2022, “I had a medical and was fine”.[27]Mr Ikeji was told of the allocation decision by Mr Wilson on his first day in the office on 5 January 2022. Mr Wilson himself was not party to the decision, despite chairing the interview panel.[28]On 5 January 2022, Mr Ikeji’s first day at work, he arrived at 9.30am, although he had been asked to start at 9am. When he was told he had been allocated to work on the NR Southern Region Team rather than the TfL team, he asked if he could work on the TfL team. Mr Wilson told him that the allocation decision was one that had been made at a more senior management level based on business needs. He was issued with a warrant card. The date on the warrant card was 16 October 2015. Mr Ikeji queried why this date had been included. Mr Ikeji did not suggest that the allocation decision amounted to discrimination, either expressly or by implication from any words used.[29]Mr Ikeji also queried his training contract. Mr Wilson agreed to speak to Mr Galloway and Mr Williams to discuss the issues that Mr Ikeju was raising.[30]Mr Wilson emailed them the following day asking if there was a written down process describing Mr Ikeji’s training journey. Both responded, clarifying the basis on which training was provided. There was general agreement that the wording in the training contract needed to be tweaked to reflect when the in-house diploma would start.[31]Mr Fu Lee also started as a trainee inspector on 5 January 2022, working in Patrick Talbot’s Freight team [727].[32]On 7 January 2022, Mr Ikeji raised concerns about his training contract and his posting to the Southern Team with Mr Wilson. Mr Wilson tried to reassure him about his allocation to the team. He did not detect any immediate anger or upset regarding the allocation decision. Mr Ikeji did not make any allegation that allocating him to the Southern Region team amounted to discrimination, either by using the word ‘discrimination’ or otherwise suggesting that there had been unfavourable treatment.[33]On 17 January 2022, Mr Ikeji spoke with Mr Wilson again. He continued to raise his concerns about being allocated to the NR team rather than the TfL team. He asked if he would be able to swap with Ms Gelder. Mr Wilson said he would investigate whether this was possible. He emailed Tom Wake and Ian Skinner and copied the email to Catherine Hui, who headed up the TfL team to which Ms Gelder had been assigned. His email was worded as follows: “Hi Tom and Ian, I wasn’t party to the decision about who went where … What was the allocation decision based on please? Is it too late and are we bothered? I can work with either option, but would like to have a willing recruit, of course. I guess Emily’s thoughts might have to be checked if we were to make a change. From memory Emily is currently an LUL employee. Adrian was a driver before moving into operations management job in LUL. For the last seven years he’s been working for a London housing association. Your thoughts/directions please” [736][34]This email is significant in a number of respects. Firstly, it confirms and the Tribunal so finds, that Mr Wilson was not party to the decision to allocate Mr Ikeji to the NR team. Secondly, it confirms that he was willing to countenance a swap if this was possible so as to enable Mr Ikeji to move to the TfL team. Thirdly, he recognised that this was potentially a decision for more senior managers to take and was willing to accept their direction.[35]The Tribunal does not criticise Mr Wilson for failing to provide a more detailed summary of Mr Ikeji’s previous experience. As Mr Wilson said in cross examination, this was a very brief statement. It was always open to Mr Wake and Mr Williams to seek further information about the different skills and experiences of Mr Ikeji and Ms Gelder. He was not seeking to influence Mr Wake or Mr Williams to decide that a sway was not appropriate.[36]Mr Skinner responded the same day. He said he could not recall the decision making process that was followed. He said that Ms Hui was happy with the allocation as it looked sensible taking account of the skills, experience, and priorities of the TfL team. He appeared willing to consider making a change, although said that Ms Gelder’s thoughts would need to be considered.[37]That evening, Mr Wilson emailed Matt Raine, who was covering for Ms Hui, who was on sick leave at the time. His email noted that “there could be a swap if all parties wanted it”, although he wrote that it would be worth asking Ms Gelder if she had a preference. He added “Adrian appears to be making a strong start, by the way” [740].[38]Mr Wilson also updated Mr Ikeji on the steps that were being taken to consider the wording of the training contract. He said that Mr Galloway would be providing updated wording to HR and he expected that Mr Ikeji would receive an amended version. He told him that he had queried the date on Mr Ikeji’s warrant and he had asked for another one to be issued with the correct date. He also told him that he had raised Mr Ikeji’s preference for the TfL team with senior managers. He ended his email: “don’t hold your breath. If nothing changes you’ll be fine in Southern Team” [741].[39]On 19 January 2022, Matt Raine emailed Ms Gelder telling her she had been allocated to the TfL team. He asked her to confirm “whether you have a strong preference for either team or are you happy to join the TfL team” [742]. She responded the same day saying that she was “definitely happy to be joining the TfL team” [743]. This response was forwarded to Mr Wake and Mr Skinner. The latter forwarded this onto Mr Wilson.[40]On 20 January 2022, Mr Wilson conducted a performance review induction meeting with Mr Ikeji. They discussed his performance objectives [719]. The notes entered onto ORR’s system contained this positive assessment: “It’s early days, but Adrian seems to be quick off the mark in getting to grips with ORR systems and getting his early mandatory training done. Adrian has also completed his online PTS assessment in preparation for his two-day course at the end of this month” [725]. The Tribunal rejects Mr Ikeji’s recollection that Mr Wilson told him he could see no reason why his training could not be completed in 12-18 months, given his industry specific experience and qualifications. The evidence of Mr Collins and Mr Galloway, which the Tribunal accepts, was that it would be too difficult to complete the training in less than two years as the classroom elements take at least two years to finish. Only one trainee had previously completed their training programme within 23 months. That trainee had previous regulatory inspector experience, which Mr Ikeji did not have.[41]Mr Ikeji asked about templates for recording progress with training, including a Training Needs Analysis. On 21 January 2022, Mr Wilson emailed Mr Galloway to follow up on Mr Ikeji’s questions about forthcoming training. He asked him to point him to the current PPCF templates, RTP and technical and to advise whether we have a template ‘development plan’ or ‘training needs assessment’. He said: “Adrian is itching to get going and I predict he will have me on my toes.” [746][42]Mr Galloway responded on 28 January 2022 [747]. He suggested that Mr Wilson should complete the Training Needs Assessment based on the competence requirements described in the regulatory and technical Professional Practice Competency Frameworks. He said that Mr Ikeji would be receiving a briefing on the training programme during the following week.[43]Mr Wilson emailed Mr Ikeji to suggest that training was discussed later that week [748]. The Tribunal accepts that there was a meeting around this time where Mr Wilson went through the training forms in more detail. However at that point he did not draft a Training Needs Analysis form. This was not part of that particular discussion.[44]Mr Wilson did not complete a specific Training Needs Assessment for Mr Ikeji until March 2022, at a point when he was already absent on sick leave. This was a draft document which was to be discussed with Mr Ikeji and amended in the light of the discussion. Because that discussion never took place, given Mr Ikeji’s sickness absence, it was never finalised.[45]Ms Gelder was not due to start her role until the end of January 2022. She and Mr Ikeji were joining a larger group of trainee inspectors about 8-10 in size. They had been recruited a few months early in a larger intake but had yet to start their classroom based learning. From early February onwards, they attended particular training courses organised by the ORR and certified as appropriate training by NEBOSH. This bespoke training course replaced previous training courses for trainee inspectors which were delivered by external providers.[46]The cohort of trainee inspectors attended a Traction and Rolling stock course on 2 February 2022; an introduction to track course in Leicester on 8 February 2022 and a two day long Technical Induction course in Birmingham on 14 and 15 February 2022 led by Peter Darling. This was followed by another two-day course on 16 and 17 February 2022 on “Introduction to Regulation”, led by Keith Atkinson.[47]Mr Ikeji was five minutes late for the training session on 2 February 2022 and 10-15 minutes late for the two training sessions on 8 and 14 February 2022.[48]On 11 February 2022, Mr Ikeji emailed to raise what he described as a “health concern” [750]. He said he had benign neutropenia, which made him susceptible to viral infections and was linked to adverse health consequences. He said that attending daily meetings with colleagues had made him “quite anxious about the risk to my health from exposure to air-borne viruses and Covid-19 in class”. The email did not make any reference to hypertension or to any mental health condition. Its focus was on his concerns about his physical health. On 14 February 2022, Mr Wilson replied that he had raised this health concern with Mr Galloway and Mr Collins. He said that planning would continue to take into account Covid precautions.[49]The training session in Birmingham on 14 and 15 February 2022 was conducted by Peter Darling. At the end of the Technical Induction course on 14-15 February, Mr Ikeji spoke to Lee Collins raising concerns about the language used by Mr Darling. He and the other trainee inspectors were asked for their written feedback. Mr Ikeji provided his written feedback on 28 February 2022 [755]. He was asked if he had any additional comments to make about the events. He wrote the following: “There were a number of inappropriate and offensive statements made by the presenter, which may reflect unconscious bias against protected characteristics of colleagues (or worse). This was an unfortunate distraction throughout” [755][50]No other concerns regarding inappropriate language were raised by any of the other 8-10 delegates. Given Mr Ikeji’s complaint, Mr Collins arranged a one-to-one meeting with Mr Darling over Teams to discuss whether he had made a derogatory comment. The outcome of the subsequent investigation was that ORR found there was no evidence to suggest that Mr Darling had made any derogatory comments.[51]During another course in February 2022, Mr Ikeji spoke to Keith Atkinson, who was providing the training. In the course of this discussion, Mr Atkinson said that Mr Ikeji may encounter discrimination in his role from some within the rail industry, but not from within ORR. He said it was a regrettable fact.[52]He also asked Keith Atkinson about part time work. He was interested in part-time working because he had ongoing business commitments and also had childcare responsibilities. Mr Atkinson said that he was semi-retired and was working on a part-time basis. During the conversation, Mr McDermott’s name was mentioned as another inspector who was working on a part time basis. Mr McDermott had worked for ORR full-time for over 20 years and wished to reduce his working hours as he approached retirement. Mr Atkinson told Mr Ikeji that he should speak to his line manager but he thought that part-time working would be unlikely to be granted.[53]Prompted by Mr Ikeji’s question, Mr Atkinson mentioned to Mr Tom Wake that Mr Ikeji had expressed an interest in part time working. Mr Wake was Mr Wilson’s line manager. He told Mr Wilson of Mr Ikeji’s interest in working part time. As a result, Mr Wilson decided he should arrange a meeting with Mr Ikeji to discuss this issue, as well as his concerns about Mr Ikeji’s punctuality and his behaviour towards colleagues. This was arranged to take place on 3 March 2022.[54]On 1 March 2022, Mr Ikeji attended a Train despatch procedures course in Reading. Mr Ijeki arrived over an hour late. Mr Wilson received reports from those attending that Mr Ikeji had upset a couple of colleagues.[55]On 3 March 2022, Mr Wilson met with Mr Ikeji to discuss his current concerns. These were his lateness and conduct at the training session in Reading on 1 March 2022, his apparent expression of interest in part time working, and an emerging pattern of lateness [761]. This was a normal management meeting where Mr Wilson was properly raising issues of concern with one of the trainee inspectors he was managing. The issues raised were appropriate. The way in which those issues were discussed was also appropriate. The Tribunal rejects Mr Ikeji’s allegation that Mr Wilson behaved in a way that involved making false, humiliating and unwanted comments about part time working. The best evidence about what was said and the way it was raised is contained in the subsequent email exchange between Mr Ikeji and Mr Wilson.[56]Following the meeting, Mr Ikeji emailed Mr Wilson saying that he “really appreciated the feedback you shared with me today and the time you set aside to hear from me” [761]. In that email he went on to say this about part time working [762]: “I fully understand the point you made about the considerable investment made to develop inspectors and the expectation of long service. I must reassure you of my commitment to ORR … Please be assured that I have not made any application to work part-time …if the clarification you gave me today about part-time requests is the policy ie when you said I could apply to go part-time at anytime and it would be declined, then I will have to ask now whether I am required to offer my resignation before further training costs are incurred as I do not want to mislead anyone. My care responsibilities also mean that I am likely to apply to work part-time (two or three days per week) as early as next year.”[57]Mr Ikeji did not complain about the way that Mr Wilson had conducted that meeting, as he now does in these proceedings.[58]On 4 March 2022, Mr Wilson responded to Mr Ikeji’s email by writing the following [763-4]: “I too thought it was a useful catch up and I am grateful for the training progress you are making and your statement of commitment to the job. No toes were trodden on by your forwarding level crossing order progress notes to Adam – your enthusiasm is good to see. On the part time issue, I accept that the conversation with others seems to have been misinterpreted and that concerns reaching me have not been matched by any actual request by you to me. ‘News’ sometimes travels this way in organisations. Reading on, however, I am a little taken aback by the announcement that you are likely to ask to go part time as early as next year. As to part-time policy, staff can ask for alternative working patterns and ORR will consider such requests. My response yesterday was intended as my expectation of the answer you would be likely to receive if you made an early request to go part-time. The reasons for this, as I see it, are:• The post was recently advertised and filled on a full-time basis. There is plenty of work to do – it is a full-time job.• Southern Team and the wider RSD need to field inspector resources as fully as budgets allow. Your going to part-time would be an unattractive proposition as it would invitably reduce the team’s output. Such a request would not sit well with ORR’s business need.• Part-time staff are likely to experience the same volume of email, training and administration as their full-time colleagues. This can mean that the proportion of time spent on active inspection work is likely to be lower for part-time staff. Again this is not an attractive business proposition for the team. If you cannot commit to full-time working, with regret, I think it is sensible for you and ORR to ‘consider positions’ sooner rather than later. We need to make a decision on this. On other matters, we spoke about timekeeping. I have accounts from others of you being a little bit late for training events on four occasions. I have also made a couple of personal observations of you being a bit late or cutting it too fine. We spoke. Always aim to arrive in good time and use the most suitable form of transport. The train will often be the safest and most reliable means of travel. Do continue to take care in your interactions with colleagues, some of whom are a little emotionally fragile at the moment (Be assured I took on board what you said and I am not saying that anyone did ‘anything wrong’). The training in Reading on Tuesday wasn’t what you’d hoped for but, nevertheless, in such situations be sure to arrive on time, stay the course and, where necessary, ‘go with the flow’ a little bit, even if things are entirely to your taste. Be assured that I have confidence in your abilities, as does Kate Dixon, who said she thought you’ll make a very good inspector.”[59]The Tribunal considers that this was a pastorally sensitive and appropriate email for a line manager to send to a subordinate following the topics discussed at the meeting on 3 March 2022.[60]Mr Wilson’s oral evidence was that he thought that he and Mr Ikeji had a respectful and courteous relationship up until early March 2022 when things seemed to be turned on their head. This was his reflection on the email exchanges that took place over the following days.[61]On the same day, 3 March 2022, Mr Ikeji had sent an email an administrator asking them to update a team tracker recording Level Crossing Orders at sites in Sussex. Mr Wilson formed the view that some of the suggested updates were incorrect. He told the administrator that he would update the tracker. He wrote: “It’s all a bit too much for the tracker and the comments might not be based on a full understanding” [759]. Mr Wilson spoke to Mr Ikeji telling him that the amendments were welcome but they were not entirely accurate.[62]In his email to Mr Wilson on 4 March 2022, Mr Ikeji said that he did not mean to tread on Mr Wilson’s toes by preparing the Level Crossing tracker updates. On that topic, Mr Wilson responded “No toes were trodden on by you forwarding level crossing order progress notes to Adam – your enthusiasm is good to see”. At no point had Mr Wilson said words to the effect that he should be “careful not to go around acting like you run things after two minutes”. Those words are not recorded in the contemporaneous emails sent after the meeting which comment on discussions during the meeting; in the Details of Claim attached to the Claim Form issued on 4 April 2022 or in the notes of the grievance hearing on 12 April 2022. Such a remark from Mr Wilson during the meeting would be at odds with the way this Level Crossing tracker issue was addressed in the subsequent exchange of emails.[63]Mr Ikeji responded on 5 March 2022 on the part time work issue. He said “I think I understand the part time policy and expectations you have outlined, and I agree that a decision is best made sooner rather than later to mitigate any undesirable impact on the organisation. Please let me know the regretful options you are considering”. He added that due to his private care demands and his health susceptibility he was “unable to give a further guarantee abut my availability in 2023” [766]. He ended his email by saying that the number of work trips out of London over the last 4 weeks was challenging and he was a bit embarrassed by the travel issue you raised, in all honesty. The particular source of his embarrassment was not explored in evidence.[64]On 7 March 2022 Mr Wilson emailed Mr Ikeji addressing the part time work issue. He said that “the team needs a full timer and the Band A and I will oppose an application to go part-time”. “The Band A” referred to his line manager Mr Wake. He said it didn’t feel like Mr Ikeji had been wholly honest with him, given “what you really want ins a part-time job”. He referred to the extent of the time and energy invested in developing trainees [767].[65]On 8 March 2022, Mr Ikeji emailed Mr Wilson with the subject line: Grievance. The wording of the grievance was as follows: “Morning Don I am saddened to hear you suggest that I have not been wholly honest with you. I categorically reject that assertion, with all due respect, because I have been completely open and honest with you (and ORR) from the first day we met on 18 October 2021. I note the express decision “to oppose an application to go part-time” at anytime and the new subject of your email “RE: Adrian Ikeji part-time request”, despite the fact that I have not make any application for flexible working and the training framework is still being fleshed out at the present time by Kate Dixon. In fact, there are no dates confirmed for legal training in 2023 and the enrolment period within which all training must be completed by Trainee Inspectors is 5 years. It is unclear what you expect me to do now, but I am aggrieved by the decisions and policy being applied to me, because they are unreasonable, unfair and draconian. I fear that I am being treated this way because of the feedback I shared with you and Lee Collins about my experience, in good faith. I have done everything required of me to date and I have put in a considerable amount of discretionary effort in my work, under challenging circumstances within the team. This email should be treated as a formal grievance, and I have copied in Ms Victoria Rosolia in line with the requirements of my contract of employment. I will continue working as normal until I am instructed not to do so or to follow other lawful guidance” [769][66]The reference to feedback was a reference to Mr Ikeji’s complaints raised about the way that Peter Darling had spoken during the training course on 14 and 15 February 2022.[67]On 15 March 2022, Jo Napper in HR wrote to Mr Ikeji to confirm the next steps in relation to the grievance. He said that Gareth Clancy, Head of Access and Licencing would be the independent investigator. Whilst he aimed to complete his investigation within 10 working days, this timescale might be extended if more time was required. Once the report had been submitted, there would then be a grievance meeting chaired by Mr Richard Coates, Deputy Director RPP.[68]On 15 March 2022, Mr Ikeji sent an email to Mr Clancy clarifying the central issues in his grievance. He said that to deny him the opportunity to work on a part time basis because of his parental and care responsibilities as a single parent could be direct discrimination. It also alleged that there had been disregard for equality legislation by Mr Wilson and that he had witnessed discriminatory language at a training course in Leicester. This email ended by saying he was not comfortable working in Mr Wilson’s team. It did not ask for redeployment to a different role, either within ORR or within the Civil Service as a whole, as he subsequently suggested should be the outcome [1093].[69]Mr Clancy met with Mr Ikeji on 16 March 2022 and sent him a detailed email recording his notes of their meeting on the same day. Mr Ikeji replied saying that Mr Clancy had omitted his references to victimisation, breach of contract and Mr Wilson’s unwanted and unacceptable behaviour towards him in breach of the civil service code. Mr Clancy then spoke to relevant witnesses including Mr Galloway and Mr Wilson.[70]On 21 March 2022, Mr Ikeji emailed Mr Wilson to raise particular concerns about his health. He said that he had been unable to sleep for the past couple of days and was experiencing high blood pressure, headaches and anxiety “as a result of the uncertainty, threat, gaslighting and ongoing dispute at work”. He added that the gaslighting and stonewalling in an email from Mr Galloway “may have worsened my anxiety, and the situation is damaging my health”. He said that “as a health precaution and to prevent further deterioration, I feel unable to work within your team until these matters are resolved one way or the other, and I have copied Mr Napper for guidance” [826].[71]Mr Wilson forwarded this to his line manager, Mr Wake saying “Tom, I think this is getting out of hand. I need your help on this please”. Mr Wake told Mr Wilson to remind Mr Ikeji that a doctors’ fit note was required for absences of 8 days or more [829]. He copied in Jo Napper in HR asking them to support Mr Wilson and noting that he himself may need to take the lead on this. Mr Wilson emailed Mr Ikeji asking him to obtain a doctors’ fit note if absent for more than 8 days.[72]On 22 March 2022, Jo Napper emailed Donald Wilson and Tom Wake, copying the email to Matt Farrell. He wrote “May I suggest we keep declarable email comms to the minimum? Happy to chat as needed on this” [833].[73]Mr Napper wrote to Mr Ikeji the same day. He said that normal line management arrangements should continue until the grievance had been concluded. He proposed that the references to threat and gaslighting should be included in the current grievance [835]. On 25 March 2022, Mr Ikeji sent across his statement of fitness to work [839]. This signed him off with hypertension and lasted for two weeks, from 25 March 2022 until 10 April 2022.[74]On 29 March 2022, Mr Wake emailed Mr Wilson asking when Mr Ikeji’s probationary period was up [845]. Mr Wilson responded it was “6 months after his 5th January joining date, I guess. Probationary status doesn’t actually mean much, Jo [Napper] advises”. There is a dispute as to what was intended by Jo Napper’s comment. Whilst the Tribunal has not heard evidence from Mr Napper, Mr Wilson took this as a signal that ordinary due process should be followed even for those in their probationary period.[75]On 30 March 2022, Mr Ikeji chased for an update regarding his formal grievance [849]. Three minutes later Mr Napper responded to say that Mr Clancy’s report was about to be finalised and a grievance hearing would follow in the next few days [851]. Further emails scheduled the grievance meeting for 12 April 2022. Mr Ikeji’s response was “That’s fine. Thank you”. Mr Ikeji was sent the investigation report on 31 March 2022. For some reason it was not received. He had received it by 7 April 2022.[76]On 4 April 2022, Mr Ikeji issued his first employment tribunal claim against ORR and Donald Wilson alleging breach of contract, victimisation, direct race discrimination and racial harassment. He did not allege he had suffered disability discrimination. To the question: “Do you have a disability?” He answered “No”.[77]On 8 April 2022, Mr Ikeji sent a further fit note to Mr Wilson. This was expressed to last from 25 March 2022 to 1 May 2022. Again, the reason given was hypertension [875]. The covering email said that “I continue to experience palpitations and hypertension and await a 24 hour ECG referral. Daily BP monitoring continues”. The covering letter made no reference to anxiety as a distinct mental health condition.[78]Mr Wilson had no further direct involvement with Mr Ikeji after that point.[79]On the morning of the grievance meeting, 12 April 2022, Mr Ikeji emailed Richard Coates to complain about Mr Clancy’s investigation report. He said that his complaint had not been fully investigated [876]. The email ended: “For all the reasons above and the breakdown of trust, and the negative impact all this is having on my health, I cannot work with Donald Wilson or in his Network Rail Team. I would like to be redeployed internally or externally as soon as possible, to protect me from the unlawful treatment and practices, and the detriments I am experiencing. I would also seriously consider a suitable alternative part-time role or job share opportunity in London” [878][80]At around this time, Mr Matthew Farrell became Mr Ikeji’s point of contact. Mr Ikeji emailed him the same sick note sent to Mr Wilson on 8 April 2022. He said “unfortunately my health has still not improved” [892].[81]On 14 April 2022, Mr Ikeji asked Mr Farrell that he be referred to Occupational Health so “I may be supported back to safe work within or outside ORR, as soon as possible”. He went on “The humiliation and trauma I have experienced working with Donald Wilson makes it highly improbable that I will return to work in his team, and if my skills and experience cannot be redeployed elsewhere, I would benefit from the clarity and find a way to live better with the decision” [900]. At that point, he had been absent from work on sick leave for just over three weeks.[82]Mr Farrell responded saying he had already asked Jo Napper to set in motion an Occupational Health referral. He said that “on the matter of the outcome of the hearing, I note what you say, but I would prefer to wait on the outcome of that, if I could just say that I know there has been a hearing, but I don’t know any details and actually would prefer not to at this stage” [902].[83]On 27 April 2022, Mr Farrell emailed Mr Ikeji to say he had offered to support him going forwards, by Mr Ikeji directly reporting to him. He described this as “a bit of a unique situation” but said that “at least we get the chance to work together closely”. He added “My approach is very much one of supporting people and I am not going to micro-manage – so that that end can I leave it to you please to set something up in our diaries to have a half day together somewhere (maybe not in the London office) to set out what your workplan will be for the foreseeable future … we will need to do a return to work meeting anyway” [963].[84]Mr Ikeji responded positively to this first email from Mr Farrell. He said he was available to attend a “return to work interview with you, at your earliest convenience, to complete the risk assessment, so that I can assist you with some suitable work you propose … please let me know when and where the RTW interview will take place”.[85]Despite this enthusiasm for a return to work meeting, he referred in the same email to his symptoms persisting and his occupational health appointment being scheduled for 4 May 2022. The email opened by saying “Thank you for the email. In light of this, I understand that I do not have to send another Fit Note from my GP, unless when I am required to by ORR”. Mr Farrell had not said anything about Fit Notes in his email to which Mr Ikeji was responding. He also said he was available to attend a return to wok interview and would complete a stress risk assessment.[86]In his reply, Mr Farrell clarified the position relating to Fit Notes. He said that all the time that he was off due to ill health he would need to have a current fit note. He said that as the current one runs out next week, “if you don’t think you are fit, please can you secure that continuation”. He queried whether Mr Ikeji was saying that he was currently fit to return now. If so, he would diarise a meeting. He said this about work: “In term of work … my priority really for you, and to see you ease back in, is look at stuff to support you in getting as much of your technical ppcf completed. I believe you have some joint visits booked with Cheryl .. keep going with these too” [966][87]Mr Ikeji answered that email with the following wording “I humbly suggest that your proposal is unreasonable and may worsen the current problems”. He did not explain why this proposal was unreasonable. The Tribunal infers from the totality of the email correspondence that he regarded this as unreasonable because it envisaged him returning to his substantive role. He was seeking an alternative role. That is why the next sentence reads “As you have no alternative work available for me at the moment, I have to wait for the outcome of the grievance process” [967].[88]Mr Farrell reiterated that if Mr Ikeji deemed that he was not fit to undertake the activities that he proposed beyond the date of the current fit note “please can you secure a further fit note from your GP so that we can continue paying you sick pay – particularly as we don’t know exactly when the grievance outcome will be available … the occupational health assessment and then the risk assessment will be helpful to inform me what is reasonable in terms of work activities” [969].[89]Mr Ikeji reacted against this reminder to provide a further fit note, saying in an email sent at 21:37 on 28 April 2022: “The proposal you make is unreasonable in light of my grievance, and it would be inappropriate for me to restate my position here. For the avoidance of doubt, I am aware that my employer has the power to make deductions from my pay and can penalise me in other ways. However you should not be threatening me in this way”. He went on to say that Mr Farrell had not offered him any alternative work “and it is clear that you may be assisted by the guidance you receive from Occupational Health and Mr Coates” [971].[90]Mr Farrell formed the impression that Mr Ikeji was saying he was fit to return to work, either now or after the occupational health assessment [972].[91]The significance of Mr Farrell’s repeated references to the need for a further Fit Note if Mr Ikeji was still unfit for work was that the current sick note was about to expire. Mr Ikeji would be expected to return to work on Monday 2 May unless a further Fit Note had been provided covering the period from that date onwards. In practice that would have required a Fit Note to be obtained from his GP on Thursday 28 or Friday 29 April 2022.[92]Mr Ikeji contends that he did obtain a Fit Note on 28 April 2022 and provided it on that day or the following day to cover the period until 12 May 2022. However, there is no covering email in the bundle of documents apparently attaching such a Fit Note. The obvious email to have included such an attachment would have been Mr Ikeji’s email on 28 April 2022 at 21:37, responding to Mr Farrell’s latest request that he supply a further Fit Note. If, as Mr Ikeji claims, he had indeed obtained a sick note earlier that day and decided to submit it, the Tribunal would have expected him to provide that Fit Note by return. When he subsequently challenged the decision to refuse to pay him from 12 May 2022 onwards in a later grievance, he did not suggest that he had a valid sick note for this period. The Tribunal finds that Mr Ikeji did not provide any sick note on 28 April or subsequently. This is why no covering email attaching a sick note was obtained during the course of disclosure. However, the Tribunal finds that Mr Ikeji did obtain a sick note on that date, signing him off until 12 May 2022. His symptoms had improved sufficiently by that point so that whilst he had persuaded his GP to sign him off work for another fortnight, he felt able to return to work – at least to the extent that he considered was appropriate.[93]The Tribunal finds that Mr Ikeji returned to work on 29 April 2022 on an agreed phased return plan with Mr Farrell as his new line manager. This was the evidence of Ms Rosolia, which we accept. It is also consistent with what Mr Ikeji told occupational health during his assessment on 4 May 2022 [978].[94]Although his sickness absence had by that point stopped, it is clear to the Tribunal that by this stage Mr Ikeji had decided that he would not return to his existing role where he would be working for Network Rail Southern Region on a full-time basis. He was not satisfied to be allocated an alternative line manager. He was hoping that he might be offered an alternative role either in the light of occupational health advice or by way of resolution to his grievance. He reiterated this in an email on 28 April 2022 when he said that “I am available to return to safe work away from the stressful environment … please understand that the nature of the work is crucial here, not only because of the impact on my health but also because of the breaches to my contract, which have not been remedied yet” [973].[95]Given the stance that Mr Ikeji was adopting in the email exchanges, Mr Farrell’s suggestion on 28 April 2022 was that Mr Ikeji should be put on special leave from the date he confirms he is fit for work until his grievance is concluded [974]. This was a favourable suggestion in that, if granted, it would have enabled Mr Ikeji to continue receiving pay even though he was not working. This was not thought to be appropriate by HR, given that special leave was granted for bereavement or other special circumstances, rather than waiting for the outcome to a grievance.[96]On 4 May 2022, Mr Farrell had a telephone discussion with Mr Ikeji. Unbeknown to Mr Farrell, Mr Ikeji covertly recorded this conversation and subsequently produced a transcript of the telephone call.[97]During the meeting, Mr Farrell suggested that Mr Ikeji do a stress risk assessment. He replied that this should await the outcome of the grievance, which was the reason for the stress. Mr Farrell agreed with this approach. Mr Ikeji referred to the time that the grievance process had taken. Even though there was no grievance outcome at that point, Mr Ikeji said that there would be an appeal. He referred to breaches of his contract and said that the only reason he had not resigned is that Mr Coates was looking into things and he should hold fire until he got the outcome. Mr Ikeji was keen to discuss redeployment [986]. He said that when he was recruited he had the option of working on the TfL team and it was that which attracted him to apply. As he was assigned to a completely different team, “all my experience and knowledge and training counts for absolutely nothing”. He said he could not continue on the trainee inspector programme if it was not fit for purpose.[98]Mr Ikeji said that he was uncomfortable about being paid and not really working. This confirms that his pay had restarted from 29 April 2022 even though he had not in practice started any work. He said he would be happy to go to down to working 2 or 3 days per week. Mr Farrell said that for the time being his return to work had to be on a phased return basis building up to full-time work. He said that life had to go back to normal regardless of temporary arrangements with whatever adjustments are necessary as part of the stress assessment. Mr Farrell said that he expected staff to engage with legal refresher training that was scheduled to take place on 10 and 11 May 2022. Mr Ikeji’s response was “That’s fine … It’s something I definitely want to do. I’ll certainly come in for that”.[99]Mr Ikeji said that he had a medical certificate taking him to mid-May but he was available to do some productive work [992]. Based on this reference, the Tribunal accepts that Mr Ikeji had indeed obtained a third sick note by that point but, for whatever reason, he had not submitted it to ORR. Towards the end of the meeting, Mr Ikeji expressed his appreciation for what had been discussed in the meeting. He said “Thanks Matt, I appreciate your time”.[100]Later that day, Mr Ikeji had a telephone consultation with Helena Margerison, the Occupational Health Nurse asked to review his sickness absence. She produced a report on the same day [978] and this was emailed to Mr Ikeji on 5 May 2022.[101]The occupational health report noted that although he was awaiting a cardiology assessment, “he is keen to be in work as this supports routine, structure and purpose”. Ms Margerison recorded that “symptoms appear manageable and not impacting his function”. She said that the issues in this case are not primarily medical. She recommended an “open discussion between Adrian and management to discuss the issues within the workplace”. She regarded him as fit for his substantive role, with adjustments. The recommended adjustments were a phased return to work over a period of two weeks; short catch up with management; a mixture of remote and in office working; a timely resolution to his grievance; and avoiding visits to the railway on live tracks. She suggested that the HSE Stress Risk Assessment tool should be used. She said that further occupational health intervention was unlikely to be helpful.[102]The outcome of this Occupational Health report was that Mr Ikeji was fit for work, although there should be some supportive interventions to enable him to carry out his role. Whilst she acknowledged he had described ongoing symptoms of anxiety, disrupted sleep and worry, no other treatment was in place or was suggested. In particular there is no reference in the report of Mr Ikeji undergoing any cognitive behaviour therapy, whether from professionals or taking any particular steps on a self-help basis.[103]Mr Napper’s HR advice to Mr Farrell, which he copied to Mr Ikeji and Victoria Rosolia was that the management advice from occupational health should be reviewed at a meeting with him to discuss which of the above were occupationally feasible, and what support could be given [1044].[104]On 6 May 2022, Richard Coates sent Mr Ikeji his decision with respect to the grievance. He also sent the minutes of the grievance meeting [1051]. He clarified that he was considering Donald Wilson’s behaviour, victimisation, discrimination, breach of contract and a failure to fully investigate his grievance. Mr Coates’s report partially upheld Mr Ikeji’s grievance – in relation to the failure to carry out a training needs assessment within two months of the start date; the change in the title of the qualification; and certain aspects of Donald Wilson’s behaviours. However, he did not consider that there had been any discrimination or victimisation from Keith Atkinson, Peter Darling or Donald Wilson. He did not consider that there was any evidence he was assigned to the Network Rail Southern Region team based on his ethnicity.[105]Mr Coates made eleven recommendations for further actions to be taken forward to address some of the concerns in the grievance, and six wider improvements to ORR processes. Of most relevance to the issues in dispute in this case, he recommended that Donald Wilson should recognise the poorly chosen language in his email of 7 March 2022 and the ill considered change of subject heading, and express his regret to Mr Ikeji, as well as refreshing his knowledge of ORR values. He suggested that ORR should facilitate a meeting between Mr Ikeji and Donald Wilson, Tom Wake, Kate Dixon and Errol Galloway to repair and improve working relationships. He recommended that the HR team confirm that he was entitled to make a request for flexible working after 26 weeks continuous employment either under ORR’s Working Hours Policy or an equivalent statutory request. He also recommended that the change in the title of the diploma that HM Trainee Inspectors would receive should be agreed with trainees in writing as soon as possible, and that his training needs analysis should be completed and discussed as soon as possible.[106]This was a detailed document – the grievance outcome was seven pages long and the grievance annex ran to thirty-seven pages. It made a number of findings in Mr Ikeji’s favour. In his detailed recommendations, he made no reference to redeployment. The focus was on restoring Mr Ikeji to his trainee Inspector role.[107]Mr Ikeji was not satisfied with this grievance outcome. He chose to appeal, lodging his appeal on 9 May 2022. After he recorded various concerns about the process that had been followed, he criticised the outcome for not making it clear how the breaches would be remedied in a fair and timely way. He added it was unclear what the redeployment or business move process was, within ORR or the Civil Service. This the first time he had suggested that this should be an outcome to his grievance.[108]He also withdrew from the legal refresher training due to take place on 10 and 11 May 2022. As he was now receiving his normal pay and was not on sick leave, he had been booked onto this course to further his training.[109]On 10 May 2022, there was a meeting between Mr Farrell and Mr Ikeji [1119]. The Tribunal accepts that the file note at [1119] is an accurate record of what was said at this meeting. The file note was typed by Mr Farrell shortly after the meeting had concluded, although it was updated the following day to confirm Mr Farrell’s follow up action.[110]In the meeting, Mr Ikeji said that he was not prepared to go on any training courses. He said that he believed that if he attended the legal refresher training course then he had accepted the breaches of contract noted in the grievance outcome report. This indicates that he was contemplating resigning and claiming constructive dismissal but was concerned that by attending the refresher training it might be argued he had affirmed the continued existence of the employment contract. He said that he was prepared to go on unpaid leave until the outcome of the appeal. He mentioned bringing a claim at an employment tribunal. He said that there was no point in talking about different roles. He was not prepared to do the workplace stress assessment or the training needs analysis. He did not indicate that he was signed off sick or was about to obtain another Fit Note for a further period of absence.[111]The same day, Mr Ikeji emailed his recollection of what was said in the meeting. He recorded that he came to the meeting that day under the impression that they might talk about suitable alternative roles or work outside the stressful work area. He added that he was still waiting to consider redeployment to a suitable alternative role outside the Railway Safety Directorate. So far as unpaid leave was concerned, his email broadly confirms what was recorded by Mr Farrell, namely that he would consider taking unpaid leave until the situation was resolved [1123]. The email repeated referred to breaches of his employment contract. It made no express or implied allegation of discrimination.[112]Mr Ikeji was sent home from work on 10 May 2022, but was paid for that day. At 09:36 on 11 May 2022, Ms Rosolia emailed to remind him that he was employed as a trainee inspector and needed to undertake activities associated with this role rather than with another role. She wrote that should be feel unable to undertake the role he could request unpaid leave until the grievance appeal was resolved “alternatively if you feel this is impacting your health then you are able to self-certify as sick”. She added that unfortunately ORR could not continue to pay him full pay if he did not engage with the requirements of the role. In his response, Mr Ikeji said that he could not comment further on the decision to deduct his pay [1144]. Ms Rosolia responded that he could self-certify as sick but if he did not want ORR to consider a period of unpaid leave or annual leave, ORR would need to record his current absence from work as unauthorised leave which would be unpaid [1147].[113]Mr Ikeji’s grievance appeal was acknowledged on 11 May 2022 by Ms Rosolia. She said that the grievance appeal meeting would take place on 17 May 2022 and would be chaired by Vinita Hill [1157]. She sent a series of questions which she asked Mr Ikeji to answer in advance of the grievance appeal hearing.[114]In his response, also on 11 May 2022, Mr Ikeji said that “your decision to stop my pay is arising out of my long-term medical condition and may also be discriminatory” [1160]. This was the first time he had alleged he was the victim of disability discrimination.[115]On 12 May 2022, Mr Ikeji lodged a formal complaint about the way he had been treated with the Civil Service Commission. The complaint was about the initial role allocation decision and about what he labelled a “deliberate untruth” told by his current line manager Mr Farrell in “an attempt to coerce me to accept unpaid leave”. He said that he did not feel safe working within the Railway Safety Directorate at ORR because of the shocking conduct of Mr Wilson and Mr Farrell. He ended the complaint by saying that he “wished to be redeployed on a business move to a suitable alternative role within a different department in the civil service as soon as possible, before I am forced to resign” [1164]. That complaint was subsequently dismissed.[116]On 12 May 2022, Steve Williams, HR officer, wrote to Mr Ikeji advising him that he had moved to half pay on 20 April 2022, given that his sick pay entitlement was one month at full pay and one month at half pay [1175]. In response, Mr Ikeji wrote that his calculations were incorrect. He said the HR Business Partner should be able to confirm “was available to return to safe work from 14 April 2022” [1177]. This was an attempt to persuade HR that he should have been entitled to full pay throughout the period since 20 April 2022. It also confirms that he did not send a third sick note to ORR on 28 April 2022 for the following fortnight.[117]It further confirms that he had not posted a fourth Fit Note to ORR for a two-month period from 12 May 2022 onwards as he claimed in his oral evidence. The likelihood is that he did not go to his GP at that point to be signed off sick. His first two sick certificates were emailed to ORR. Had he obtained a fourth certificate covering this period he would have emailed it, rather than posted it. Even if he chose to post it, he would have kept a copy. That he has no copy and that ORR cannot find a copy indicates that such a certificate was never provided.[118]By contrast, his stance at that point was that he was fit for what he regarded as “safe work”, although the implication was that he did not regard his trainee Inspector role as “safe work”. No fourth Fit Note was included in the bundle. Instead, there was a composite Fit Note spanning the period from 21 March 2022 to 12 July 2022, which had been prepared several months later. The Tribunal does not accept this is evidence that he was actually signed off on sick leave for two months on or around 12 May 2022. The absence of a contemporaneous sick note is consistent with his symptoms having improved by May 2022 and with that improvement being sustained until the end of his employment.[119]The grievance appeal meeting held on 17 May 2022 took place on Teams. From the outset of the meeting, Mr Ikeji was covertly recording what was discussed. Early in the conversation he asked if Ms Rosolia had the facility to record to meeting on Teams. He was told that whilst there was the facility, these meetings were not recorded. At one point in the meeting, Ms Hill asked what work he had been offered that was unsafe. Mr Ikeji said that anything to do with my current employment contract under the training program is unsafe. He claimed that all of the recommendations from occupational health had been ignored. He also claimed that because he was the top scored in interview he was “pretty much guaranteed my preference” of role. Ms Hill asked him if anybody actually said that to him. He did not suggest this had been said. Rather he said that this is not uncommon with civil service appointments. Towards the end of the appeal meeting, Mr Ikeji confirmed he had already instructed solicitors to assist him with his dispute about not being paid.[120]The grievance appeal outcome was sent to Mr Ikeji on 23 May 2022, together with typed notes from the grievance appeal meeting. The outcome was to reject his appeal.[121]Mr Ikeji argues that there were significant differences between his transcript of the appeal meeting and the notes prepared by ORR. Inevitably there were differences given that the ORR notes were taken contemporaneously but were not a transcript. Having carefully considered each of the suggested significant differences, the Tribunal does not consider that any of the differences were significant. Ms Rosolia was doing her best to provide an accurate record of the meeting and was not in any way attempting to misrepresent what was discussed during the course of the meeting.[122]On 24 May 2022, Mr Ikeji emailed Elizabeth Thornhill and Ian Prosser with the subject “Whistleblowing complaint under PIDA 1998”. Ms Thornhill was General Counsel and Ian Prosser was Director of Railway Safety. He wrote that his disclosure related to the “deliberate actions and statements made by two senior officials at [ORR] who have conspired to conceal breaches to the Equality Act 2010. They have also breached the employer’s statutory duty to ensure the health, safety and welfare of employees like me, at work, and they have refused to rectify the untruthful and harmful account of formal internal proceedings, which they published yesterday”. The two senior officials were Vinita Hill and Victoria Rosolia and the document published the previous day was the grievance appeal outcome.[123]Later he wrote in the same email “the senior officers presented untruths and had taken deliberate steps to conceal several unlawful acts of other employees, in a comprehensive example of abuse of power” [1331]. This email together with its attachments is alleged to be a protected disclosure, namely a disclosure which disclosed information he reasonably believed tended to show a relevant breach of a legal obligation and/or health and safety. The attachments were described as follows:a. A. Review of minutes from meeting on 17 May 2022 (the grievance appeal meeting)b. B. Email correspondence between Vinita Hill and Victoria Rosolia, and the complainant (From 17/05/2022 to 23/05/2022)c. C. Hearing outcome letter 23/05/2022d. D. CSC complaint and acknowledgement 12/05/2022e. E. 23 05 2022 Minutes – HR Fabricated version (this was the version sent with the grievance appeal outcome)[124]The whistleblowing complaint was discussed with Mr Ikeji at a meeting on 7 June 2022 conducted by Ian Prosser [1358]. It is not alleged in the agreed list of issues that the discussion at this meeting constitutes a further protected disclosure.[125]The outcome to the whistleblowing complaint was sent to Mr Ikeji on 10 June 2022. Mr Prosser concluded that there was a reasonable explanation for the differences between the typed notes and the transcripts from the two grievance appeal meetings. He rejected the other matters raised by Mr Ikeji.[126]On 17 June 2022, Mr Ikeji made a formal complaint regarding the whistleblowing policy to the Civil Service Commission. He said that his whistleblowing complaint had been mishandled by Mr Prosser in a deliberate cover up. He also criticised the accuracy of the notes of the grievance appeal hearing, referred to these notes as fraudulent. He said that Ian Prosser, Victoria Rosolia and Vinita Hill were all dishonest and in breach of the Civil Service Code and were deliberately concealing racial discrimination and victimisation at ORR [1383].[127]On 20 June 2022, Mr Ikeji lodged a formal grievance in relation to the deduction of his pay. This was sent to Mr Napper with a copy to Elizabeth Thornhill [1385]. He claimed that deductions had been made without his agreement, from as far back at 21 April 2022. This was when he went onto half sick pay.[128]The complaint made to the Civil Service Commission was acknowledged on 29 June 2022.[129]There followed an exchange of emails between Mr Ikeji and Mr Napper on the issue of the deductions from his pay. On 30 June 2022, Mr Ikeji wrote to Mr Napper saying that he would not waste any more of his time discussing this matter with him. He said that Mr Napper’s “dishonesty is clear for all to see and you may be made accountable for the role you have played, by others. You are not above the law”.[130]Mr Farrell arranged to have a meeting with Mr Ikeji on 1 July 2022 as Mr Ikeji’s probation period was about to expire. Little notice was provided to Mr Ikeji of the date of this meeting. Mr Ikeji spoke to Mr Farrell on the telephone about this proposed meeting. He said that he would not be attending as he had the opportunity to take part in cab pass training at Waterloo. Mr Farrell said that this was voluntary and could be rearranged and a meeting to discuss the forthcoming probation review meeting was a higher priority. Mr Ikeji replied that he was not prepared to co-operate with the probation review process until he was paid for the time when he was not working. Mr Farrell asked him if he would complete the Training Needs Analysis document. Mr Ikeji said he was not prepared to complete it. The phone cut off at that point and there were no further verbal communications between the two of them.[131]Mr Farrell prepared a three-page long report to be considered at the probation review meeting. He did not speak to Mr Wilson. Mr Farrell’s report contained three sections, headed Conduct, Timekeeping and Work Performance. Under Conduct he noted that Mr Ikeji had declined to undertake any work associated with the role he was recruited to perform. He said he had explained that he was only able to offer him work associated with his substantive role. He noted the grievance outcome. He also noted that at the meeting on 10 May 2022, Mr Ikeji had said that he was not prepared to agree to the recommendations made by Mr Coates. This was because he did not believe that Mr Wilson’s apology would be sincere. He concluded that Mr Ikeji’s conduct was unacceptable and not in line with the collaborative values we aim for in ORR. He recorded that as a result of the missed training events he would be set back by one year in achieving his regulatory diploma. Under Timekeeping, he noted his absence since 11 May 2022, his prior sick leave from 21 March 2022 to 28 April 2022 and had been late for various training sessions on particular dates. Under Work Performance he noted that the work he had delivered up until 11 May 2022 had been acceptable. This report made no reference to Mr Ikeji having expressed an interest in working on a part time basis; to an ongoing dispute about the failure to pay him from 11 May 2022 onwards; or to any whistleblowing complaint. Mr Ikeji has not shown that the contents of this three-page report were inaccurate as he alleges.[132]On 5 July 2012, Mr Napper invited Mr Ikeji to probation review meeting on 12 July 2022. It was conducted by Feras Alshaker, Director Railway Planning and Performance. Mr Ikeji did not attend. Mr Alshaker considered the probation review report prepared by Mr Farrell on 1 July 2022 and countersigned by Paul Appleton. Although the date of the countersignature is recorded as 04/04/22, this was clearly a typographical error. It is likely to have been countersigned on 4 July 2022, which is the date of Mr Appleton’s covering email.[133]Mr Alshaker was not aware that Mr Ikeji had previously raised a complaint which he considered amounted whistleblowing complaint. Nor was he aware that Mr Ikeji had complained about allegedly discriminatory comments made by any trainers whilst attending training courses. He did know that Mr Ikeji had previously lodged a grievance about working for Mr Don Wilson (as this was referenced in the most general terms in the probation report) but did not otherwise know the details of the grievance. He did not know that Mr Ikeji had lodged a grievance about his lack of pay from 11 May 2022 onwards. This is because whilst Mr Napper in HR had told him that there were other background matters which were ongoing, he had not provided him with the details. As a result, he did not know that Mr Ikeji was asserting a right to be paid from 11 May 2022 onwards.[134]Mr Alshaker wrote to Mr Ikeji on 13 July 2022 stating he had decided to endorse the review findings. He said Mr Ikeji would receive five weeks pay in lieu of notice. It stated that his employment ended on 12 July 2022. The letter asked that all property that belonged to ORR currently in his possession was returned to Steve Williams in HR. The letter stated that this would include warrant card, security pass, keys, laptop and mobile phone. It stated that HR would arrange a courier to collect these. If he chose to appeal against the dismissal then this should be addressed to Ms Rosolia within ten working days [1442].[135]On 13 July 2022 [1444] Mr Ikeji emailed to appeal against his dismissal. His email ended “Treat this matter seriously and respond promptly, before I am forced to take the necessary legal action to protect my statutory and contractual rights” [1445]. The appeal was conducted by Kate Staples, a Consultant. She prepared a tenpage letter dated 23 August 2022 in which she dismissed his appeal.[136]On 15 July 2022, Mr Ikeji issued his second Employment Tribunal claim. This time he named the Respondents as ORR, Ian Prosser, Matthew Farrell and Victoria Rosolia. This was a claim for disability discrimination, holiday pay and arrears of pay. Again, he ticked the box stating that he did not have a disability [86].[137]Several emails were sent to Mr Ikeji chasing for the return of ORR property- the letter from Mr Alshaker on 13 July 2022; a further letter on 14 July 2022; and an email attaching a letter on headed notepaper on 20 July 2022 [1458]. The letter warned him that “if you fail to comply with this request, we will need to refer this matter to the police”. Mr Ikeji’s stance was that “the employment relationship continues until the lawful determination of the ongoing internal and external disputes” [1460]. A fourth request was made on 21 July 2022 giving him 48 hours to respond. It ended “in the event of continued unreasonable behaviour, any further actions will be taken without further notice to you” [1462].[138]On 29 July 2022, acting on behalf of ORR, Ms Rosolia contacted the police to report that property had been stolen. The report was worded as follows: “Adrian Ikeji is a former employee of Office of Rail and Road. His probation period was terminated and he was asked to return his equipment that was issued at the start of his employment. This includes a laptop, mobile phone, PPE equipment and an HM Inspector of Railways Warrant Card. There is a risk that Adrian may use this warrant card and impersonate a HM Inspector, this is because he is disputing his dismissal. We have written to Adrian on 13, 14, 20 and 21 July requesting the return of equipment which he refuses to do and therefore we view this matter as theft”[139]Mr Ikeji was contacted by the police on 31 July 2022. He was told to return the company property the following morning to ORR’s Cabot Square offices [1483]. He apparently did so following the Police involvement and no further action was taken either by the Police or by ORR.[140]Back on 20 June 2022, Mr Ikeji had lodged a grievance about not receiving pay from 11 May 2022 onwards. This was investigated by Tess Sanford who reported on 14 July 2022. There was a grievance hearing chaired by Martin Jones on 19 July 2022 and a grievance outcome letter dismissing his grievance on 29 July 2022. He then appealed against this outcome on the same day. There was a grievance appeal hearing on 19 August 2022 conducted by Russell Grossman. Mr Grossman’s grievance appeal outcome dismissed the appeal in a three-page long letter sent to him on 25 August 2022.[141]On 13 July 2022, Mr Ikeji appealed against his dismissal decision [1444]. There was an appeal meeting on 9 August 2022 conducted by Kate Staples. Ms Staples published her appeal outcome on 23 August 2022 dismissing Mr Ikeji’s appeal.[142]In terms of his notice pay, he was paid £4610.21 gross by way of Payment In Lieu of Notice in August 2022, which after deductions amounted to the net sum of £2964.68 [1665]. This appears (according to another payslip also dated August 2022) to have been paid as an advance. Mr Ikeji contends that this has undercompensated him for the full extent of his contractual entitlement to financial payments during his five week notice period.[143]On 26 January 2023, ORR was asked to provide Westminster City Council with a reference as Mr Ikeji had applied to that local authority for a particular role. The reference supplied was dated 3 February 2023 and was a bare reference [1583]. It identified his name, the dates of his employment, the position he held and his employment status. The dates of employment were given as 5 January 2022 to 12 July 2023. His employment status was described as “Full Time, Permanent”. It did not explain why he had been dismissed. The reference went on to set out ORR’s standard practice, namely “Please note that we do not provide an opinion as to the character of an employee. This reference is given in good faith and without any legal responsibility”.[144]On 23 February 2023, Westminster City Council wrote to Mr Ikeji withdrawing their job offer. The reason given is that there were disparities between the reference and the job application. This disparity related to the date on which his employment at ORR ended. In his application on 29 November 2022 made to Westminster City Council he had given his current employer as ORR from “January 2022 to present”. In subsequent Employment Tribunal proceedings against City of Westminster in relation to the withdrawal of the job offer, a panel chaired by Employment Judge Elliott found that the job offer was withdrawn as a result of discrepancies on the application form. This included as to the date on which his employment with ORR ended. The ET held that Mr Ikeji knew or ought reasonably to have known that in maintaining to Westminster City Council that he remained in ORR’s employment that was untruthful. They noted that in the current proceedings Mr Ikeji had maintained that he had been dismissed with effect from 12 July 2022. Issues to be decided[145]The issues to be decided by the Tribunal are set out in the List of Issues which is an Appendix to these Reasons. Legal principles Burden of proof for Equality Act 2010 claims[146]Section 136(2) and (3) of the Equality Act 2010 (“EqA 2010”) is worded as follows: (2) If there are facts from which the Court could decide in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred; (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[147]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong [2005] ICR 931. This guidance has subsequently been approved by the Court of Appeal in Madarassay v Nomura International plc [2007] ICR 867 and by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 (at paras 25- 32). In Efobi v Royal Mail Group Limited [2021] ICR at paragraph 26, Lord Leggatt made it clear that Section 136 EqA 2010 had not made any substantive change to the previous law.[148]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of any other explanation, that the treatment was at least in part the result of his protected characteristic. At the first stage, when considering what inferences can be drawn from the primary facts, the Tribunal must ignore any explanation for those facts given by the Respondent and assume that there is no explanation for them. It can however take into account evidence adduced by the Respondent insofar as it is relevant in deciding whether the burden of proof has moved to the Respondent.[149]The initial burden of proof is on the Claimant. In order for the burden of proof to shift from each Claimant to the Respondent on a particular allegation, it is well established that it is insufficient for the Claimant merely to show a difference in status and detriment treatment (see Madarassay at paragraph 54). In Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865, Elias J at paragraph 15 said that the mere fact that an unsuccessful candidate was a black woman and successful candidates were white men would be insufficient to be capable of leading to an inference of discrimination in the absence of a satisfactory non-discriminatory explanation. To shift the burden of proof a claimant must also prove something more. That is, in the present case the Claimant must prove facts from which the Tribunal could infer that there is a connection between the protected characteristic of race and the detrimental treatment, in the absence of a non-discriminatory explanation.[150]If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristic formed no part of the reasoning for the impugned decision. If the Tribunal accepts that the reason given for the treatment is genuine, then unless there is evidence to warrant a finding of unconscious discrimination, such that the Tribunal is really finding that the alleged discriminator has concealed the true reason even from himself, there will be no basis to infer unlawful discrimination at all.[151]In Hewage v Grampian Health Board [2012] ICR 1054, in a passage endorsed by Lord Leggatt in Efobi at paragraph 38, Lord Hope reminded that it was important not to make too much of the role of the burden of proof provisions: “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other” (paragraph 32).[152]The Tribunal has also born in mind the nuanced approach to the burden of proof explained by His Honour Judge James Tayler in Field v Steve Pye & Co [2022] IRLR 948 at paragraphs 33 to 46. At paragraph 46, he said that where a claimant contends that there is evidence that should result in a shift in the burden of proof they should state concisely what that evidence is in closing submissions, particularly where represented. Direct discrimination[153]Section 13 of the Equality Act 2010 is worded as follows: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[154]The Claimant seeks to compare himself against identified individuals who do not share his ethnicity, or to how a hypothetical comparator would have been treated. Such a comparator, whether actual or hypothetical must in all other respects be in a comparable position to the Claimants apart from their ethnicity.[155]As with other strands of discrimination, victimisation or detrimental treatment, the focus is on the mental processes of the person that took the impugned decisions. In a direct discrimination claim, the Tribunal should consider whether that person was influenced consciously or unconsciously to a significant (i.e. a non-trivial) extent by the Claimant’s ethnicity. The decision makers’ motives are irrelevant.[156]Paragraphs 3.4 and 3.5 of the Equality and Human Rights Commission’s Code of Practice on Employment (the EHRC Code) states: “If the employer’s treatment of the worker puts the worker at a clear disadvantage compared to other workers, then it is more likely that the treatment will be less favourable … The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated – or would have treated another person”.[157]The less favourable treatment needs to be because of the relevant protected characteristic. It does not need to be the sole reason. As was said by Lord Nicholls in Nagarajan v London Regional Transport [1999] ICR 877, at 886E-F: “If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out”. Significant means more than trivial.[158]Unreasonable treatment is not, on its own, a basis for making an inference of unlawful discrimination. An employer does not need to prove that he behaves equally unreasonable to everybody.[159]In JP Morgan Ltd v Chweidan [2012] ICR 268 the Court of Appeal considered whether it was necessary for the Tribunal to carry out a two-stage approach in each case. This is what Elias LJ said at paragraph 5: “In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the claimant would have been treated less favourably than that comparator. The tribunal can short circuit that step by focusing on the reason for the treatment”.[160]In D’Silva v NATFHE [2008] IRLR 412, the claimant had sought to argue that the Tribunal had failed to construct the hypothetical comparator correctly before considering how such a hypothetical comparator would have been treated. Underhill J commented (at paragraph 30): “It might reasonably have been hoped that the Frankensteinian figure of the badly-constructed hypothetical comparator would have been clumping his way rather less often into discrimination appeals since the observations of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (see in particular paragraph 11 at p.289) and the decision of this tribunal, chaired by Elias J, in Law Society v Bahl [2003] IRLR 640, at paragraphs 103–115 (pp.652–654).”[161]The passages quoted by Underhill J from Shamoon and Bahl emphasise that it is not necessary to construct a hypothetical comparator in order to test whether there is less favourable treatment. It is not possible to state whether the chosen comparator would have been differently treated independently of knowing why the alleged victim was treated in the way in which he or she was. Employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Harassment[162]Section 26 of the Equality Act 2010 is worded as follows : (1) A person (A) harasses another (B) ifa. 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 (1)(b), each of the following must be taken into accounta. The perception of B; b. The other circumstances of the case c. Whether it is reasonable for the conduct to have that effect.[163]In relation to a claim for harassment under Section 26, it is open to a Tribunal to find that conduct was unwanted even if a claimant chooses to stay in employment and even if a claimant chooses not to object whether formally or informally (Munchkins Restaurant Ltd v Karmazyn and others EAT 0359/09). The EHRC Code states as follows: 7.7. Unwanted conduct covers a range of behaviour, including spoken or written words or imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour. 7.8 The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not meant that express objection has to be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.[164]When considering whether a comment was “related to” a protected characteristic under Section 26 Equality Act 2010, this covers a wider category of conduct than conduct “because of a protected characteristic” under Section 13 Equality Act 2010. A broader enquiry is required involving a more intense focus on the context of the offending words or behaviour (Bakkali v Greater Manchester Buses (South) Limited t/a Stage Coach Manchester [2018] UKEAT/0176/17).[165]In order to assess the “purpose” of the alleged conduct, the Tribunal must consider the alleged harasser’s motive or intention. When considering the “effect” of the alleged conduct, the Tribunal needs to analyse the three specific factors set out in Section 26(4)(a) to (c). This has both a subjective and an objective aspect. As to the former, the claimant must have felt or perceived his dignity to have been violated or an adverse environment to have been created. As to the latter, if the claimant had experienced those feelings or perceptions, the Tribunal must consider if it was reasonable for him to do so. If a claimant is unreasonably prone to take offence, there will have been no harassment within the meaning of the section (Richmond Pharmacology v Dhaliwal [2009] IRLR 336 at paragraph 15).[166]In assessing whether the conduct met the required threshold by producing the proscribed consequences, Tribunals should not place too much weight on the timing of any objection (Weeks v Newham College of Further Education UKEAT/0630/11). Whether it was reasonable for a claimant to regard treatment as amounting to treatment that violates his dignity or has an intimidating, hostile, degrading, humiliating or offensive environment is a matter for factual assessment of the Tribunal having regard to all the relevant circumstances, including the context (Richmond Pharmacology v Dhaliwal [2009] IRLR 336). In that case the EAT said at paragraph 22: “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct … it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase”.[167]In speaking of the statutory language in Section 26(1), Elias LJ in Land Registry v Grant [2011] ICR 1390 said (at paragraph 47): “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment”. Victimisation[168]Section 27 of the Equality Act 2010 is worded as follows:(1) A person 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 in connection with 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(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.[169]Protected acts include bringing proceedings under the Equality Act 2010 (section 27(2)(a)) and making an allegation (whether or not express) that A or another person has contravened the Equality Act 2010 (section 27(2)(d)).[170]In Beneviste v Kingston University [2007] (UKEAT/0393/05) the EAT (HHJ Richardson) discussed at paragraph 29 the minimum requirements for a communication to satisfy the requirements of Section 27(2)(d), by reference to helpful examples: “There is no need for the allegation to refer to the legislation, or to allege a contravention, but the gravamen of the allegation must be such that, if the allegation were proved, the alleged act would be a contravention of the legislation. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development" her statement is not protected. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development because I am a woman" or "because you are favouring the men in the department over the women", her statement would be protected even if there was no reference to the 1975 Act [Sex Discrimination Act 1975] or to a contravention of it.”[171]Merely making reference to a criticism, grievance or complaint without suggesting that the criticism, grievance or complaint was in some sense an allegation of discrimination is insufficient.[172]A complaint that a person is being “discriminated against” may or may not fall within the scope of Section 27 depending on an analysis of complaint in its context. It depends whether the word “discriminated” is a reference to unfair treatment generally, rather than specifically because of race (Durrani v London Borough of Ealing [2013] UKEAT/0454/12). It is relevant to consider whether a claimant was articulate and well-educated and knew the appropriate language to use to allege race discrimination.[173]A detriment will only exist if a reasonable worker would also take the view that the treatment was to his detriment: Ministry of Defence v Jeremiah [1980] ICR 13 at paragraph 31. An unjustified sense of grievance does not amount to a detriment.[174]In order to succeed with a claim of victimisation, there must be a sufficient causal connection between a protected act and the alleged detriment. It is enough if the protected act had a significant influence on the outcome.[175]If the alleged detriment is a failure to investigate a complaint of discrimination or harassment, there must be a causative link between the fact of the employee making the EqA complaint and the failure to investigate it. It is insufficient for the protected act to be a “but for” cause. Langstaff J commented as follows at paragraphs 21-23 in A v Chief Constable of West Midlands Police (UKEAT/0313/14/JOJ (21.4.15): “But omissions to act must be carefully scrutinised in this regard. The purpose of the victimisation provision is protective. It is not intended to confer a privilege upon the person within the hypothetical bubble I have postulated, for instance by enabling them to require a particular outcome of a grievance or, where there has been a complaint, a particular speed with which that particular complaint will be resolved. It cannot in itself create a duty to act nor an expectation of action where that does not otherwise exist. It follows that in some cases – and I emphasise that the context will be highly significant – a failure to investigate a complaint will not of itself amount to victimisation. Indeed there is a central problem with any careful analysis and application of section 27 to facts broadly such as the present. That is that, where the protected act is a complaint, to suggest that the detriment is not to apply a complaints procedure properly because a complaint has been made, it might be thought, asks a lot and is highly unlikely. The complaints procedure itself is plainly embarked on because there has been a complaint: to then argue that where it has not been embarked on with sufficient care, enthusiasm or speed those defects are also because of the complaint itself would require the more careful of evidential bases… It might be different in some circumstances. An example might be if the particular nature of the complaint meant that it would not be discussed or dealt with in a way in which other complaints of a different nature would. For instance, if a particular employer found the prospect of dealing with a complaint of sexual harassment embarrassing to the extent that it took no action on such a complaint when otherwise it would have a duty to do so, or there was a well-established expectation that the complaint would be dealt with, it is in my view possible that a Tribunal might conclude that the omission to act, if it caused the victim of the alleged harassment a detriment in terms of the particular effects of her disappointed expectations, could conceivably come within the scope of victimisation.”[176]Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust [2019] IRLR 1022 is an example of a case where a Tribunal found that the failure to investigate the claimant’s grievances was materially influenced by the content of the grievances (which had alleged race discrimination) and was therefore an act of victimisation. This conclusion was upheld by the Court of Appeal.[177]It is open to an employer to allege that the reason for the treatment was not the protected act but some feature of it which could “properly be treated as separable” (Martin v Devonshires Solicitors [2011] ICR 352 (Underhill P)).[178]In order for the burden of proof to shift from a claimant to the respondent, the claimant must establish more than that the claimant has suffered a detriment and has done a protected act. There must be some factual basis for potentially inferring that the protected act has influenced the detrimental treatment. Disability[179]The statutory definition of disability in Section 6 of the Equality Act 2010 is as follows: “A physical or mental impairment which has a substantial and long-term adverse effect on the Claimant’s ability to carry out normal day to day activities.”[180]The Tribunal must assess whether this definition is satisfied as at the date of the alleged discrimination, by reference to the evidence as to that point in time. The Tribunal is to deduce the extent of the impairment caused by the underlying condition, where possible, if the Claimant was not taking medication.[181]An impairment is long-term if it has lasted or is likely to last for at least 12 months. The phrase ‘likely to last’ means ‘could well’ last. An impairment is substantial if it is more than trivial. The focus is on what the Claimant cannot do, rather than on what he can do.[182]The Tribunal must have regard to the Secretary of State’s Guidance on matters to be taken into account in determining questions relating to the definition of disability. Of relevance to the present case: “C2. The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. C4. In assessing the likelihood of an effect lasting 12 months, account should be taken of the circumstances at the time the alleged discrimination takes place. Anything that occurs after that time will not be relevant in assessing this likelihood. Account should also be taken of the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example general state of health or age).”[183]It is for the Claimant to prove, on the balance of probabilities, that he satisfies the definition of disability. Knowledge of disability[184]The statutory provision prohibiting discrimination arising from disability in Section 15(1) Equality Act 2010 does not apply if the person alleged to have committed this discrimination shows they did not know and could not reasonably have been expected to know that the claimant has a disability.[185]An employer is not subject to a duty to make reasonable adjustments if it does not know and could not reasonably be expected to know that the claimant has a disability and is likely to be placed at a substantial disadvantage (Equality Act 2010, Schedule 8, paragraph 20).[186]As a result, actual or constructive knowledge is relevant to both causes of action. The required knowledge for actual or constructive knowledge are of the facts constituting the employee’s disability, namely the following three elements: “(a) a physical or mental impairment, which has (b) a substantial and longterm adverse effect on (c) his ability to carry out normal day to day duties”[187]Provided the employer has actual or constructive knowledge of the facts constituting the employee’s disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a ‘disabled person’ (Gallup v Newport County Council [2014] IRLR 211 at paragraph 36).[188]The EHRC Code provides as follow: Paragraph 5.14 “Employers should consider whether a worker has a disability even where one has not been formally disclosed”. Paragraph 5.15 “employers must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially”.[189]Where a Respondent has failed to make enquiries, the Tribunal must go on to decide what the employer might reasonably have been expected to know had it made such an inquiry. This includes assessing whether the claimant would have suppressed information about symptoms even if reasonable enquiries had been made (A Limited v Z [2020] ICR 199).[190]Information known by Occupational Health about a disability will be attributable to an employer if the Occupational Health adviser was acting as the employer’s agent. The decision as to whether or not an employee is disabled, so as to trigger the duty of reasonable adjustment, is one for the employer to make. It is not a decision that can be delegated to an Occupational Health advisor. Contemporaneous medical opinion as to the likelihood of an employee’s impairment continuing is likely to be of the very greatest value (Donelien v Liberata UK Ltd UKEAT/0297/14/JOJ at paragraph 31). Discrimination arising from disability[191]Section 15 Equality Act 2010 is worded as follows:(1) A person (A) discriminates against a disabled person (B) ifa. A treats B unfavourably because of something arising in consequence of B’s disability; and b. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[192]The first issue for the Tribunal to assess is whether the Claimant’s treatment was influenced to any significant extent by any consequences of the disability. This requires a focus on the reasoning in the mind of the person making the decision. The Tribunal needs to consider the conscious or unconscious thought processes of the alleged discriminator, keeping in mind that their actual motive in acting as they did is irrelevant. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it (Pnaiser v NHS England [2016] IRLR 70 at paragraph 31).[193]The second issue, namely whether the reason/cause is “something arising in consequence of B’s disability” was explained in as follows Pnaiser at paragraph 31: “the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. […] This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.”[194]In York City Council v Grosset [2018] ICR 1492, the Court of Appeal considered the extent of knowledge that was required under Section 15. In short, there is none beyond actual or constructive knowledge of the disability itself. If there is a causal link between the consequences of the disability and the unfavourable treatment, it is not necessary that the alleged discriminator knew of that connection (see paragraph 39).[195]If the unfavourable treatment was influenced by any consequences of the disability, then it is for the Respondent to show, under Section 15(1)(b) on the balance of probabilities that the decision was justified. That requires that the Tribunal form its own assessment of whether the unfavourable treatment was a proportionate means of achieving a legitimate aim. This is a different analysis from the range of reasonable responses approach required when considering an unfair dismissal claim.[196]So far as legitimate aim is concerned, the EHRC Code provides that it “should be legal, should not be discriminatory in itself, and must represent a real, objective consideration. Reasonable business needs and economic efficiency may be legitimate aims, but solely aiming to reduce costs is not [4.28 & 4.29].[197]In assessing proportionality, the Tribunal must assess whether on a fair and detailed analysis of the working practices and business considerations involved, the decision was reasonably necessary in order to achieve the legitimate aim (Hardys & Hansons Plc v Lax [2005] ICR 1565).[198]There must be an assessment of “the balance between the discriminatory effect of the measure [or treatment] and the legitimate aim” (Harvey, Industrial Relations and Employment Law paragraph 338.03). Failure to make reasonable adjustments[199]Section 20(3) Equality Act 2010 provides: “… 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”[200]Section 21 Equality Act 2010 provides:(1) A failure to comply with [this] requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”[201]The Tribunal must assess whether the Respondent applied a provision, criterion or practice which placed the Claimant at a substantial disadvantage in comparison to those employees not sharing his disability. If so, the duty to make reasonable adjustments is engaged. The Tribunal must then consider whether a reasonable adjustment might have eliminated or reduced that disadvantage.[202]Paragraph 6.10 of the EHRC Code provides: “The phrase [PCP] is not defined by the Act but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, or qualifications including one-off decisions and actions …”[203]In Ishola v Transport for London [2020] IRLR 372 Simler LJ discussed the extent to which the words ‘provision criterion or practice’ could apply to one off acts. She said “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 … the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply” (paragraph 36).[204]She added (at paragraph 38): “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.”[205]The substantial disadvantage must be “in comparison with persons who are not disabled”. This requires a comparative exercise. However, there is “no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s circumstances … rather the matter ought to be measured by comparison with what the position would be if the disabled person did not have a disability” (Sheikholeslami v University of Edinburgh [2018] IRLR 1090 at paragraphs 48 and 49).[206]Paragraph 20 of Schedule 8 to the Equality Act 2010 is worded as follows: An employer is not subject to a duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know … that the employee has a disability and is likely to be placed at a disadvantage.[207]In Secretary of State for Work and Pensions v Alam [2010] IRLR 283 (EAT) at paragraph 17, Lady Smith stated that the Tribunal ought to ask itself two questions:a. First, did R know both that C was disabled and that his disability was liable to disadvantage C substantially by reason of the impugned PCP?b. Second, and if the answer to the first question is “no”, ought R to have known both that C was disabled and that his disability was liable to disadvantage C substantially by reason of that PCP?[208]In Newham Sixth Form College v Saunders [2014] EWCA Civ 734 at paragraph 14, Laws LJ said as follows: ''the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP.'”[209]The burden of proof is on the claimant to establish the existence of the provision, criterion or practice and to show that it placed him at a substantial disadvantage - see Project Management Institute v Latif [2007] IRLR 579 at paragraph 45. In other words, to establish that the duty to make reasonable adjustments has been engaged.[210]Thereafter the onus remains on the claimant to identify the potential reasonable adjustments with a sufficient degree of specificity to enable the Respondent to address them evidentially and the Tribunal to consider the reasonableness of providing them. The claimant must establish not only that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. At that point where the claimant has identified one or more potential reasonable adjustments, the burden of proof is reversed. The Respondent must then show, on the balance of probabilities, that the adjustment could not reasonably have been achieved – Latif at paragraphs 53-54.[211]The reasonableness of the steps to be taken to avoid the disadvantage is to be determined on an objective basis: Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 at paragraph 73.[212]Further guidance as to the considerations that are relevant in assessing reasonableness is provided in paragraph 6.28 of the EHRC Code. These are “whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer’s financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work) and; the type and size of the employer”. Examples are also given in paragraph 6.33.[213]The reasonable adjustments duty is “primarily concerned with enabling the disabled person to remain in or return to work with the employer”. As a result, it would be a “very rare case indeed” where merely giving higher sick pay beyond the end of the contractual entitlement (and therefore than would be payable to a non-disabled person) would be considered necessary as a reasonable adjustment” (O’Hanlon v Commissioners for HR Revenue & Customs [2007] IRLR 404 at paragraph 67). Law on time limits under the Equality Act 2010[214]Section 123 of the Equality Act 2010 is worded as follows:(1) …proceedings on a complaint brought 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; orb. Such other period as the employment tribunal thinks just and equitable(2) ….(3) For the purposes of this section _ a. Conduct extending over a period is to be treated as done at the end of the period; b. Failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something: a. When P does an act inconsistent with doing it, or b. If P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it[215]Under Section 123 of the Equality Act 2010, proceedings on a complaint may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates. An act “occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory” (Mensah v Royal College of Midwives [1995] EAT/124/94). The act is complete for the purpose of the time limitation when the decision is taken rather than when it is communicated. Therefore, time does not start from when the employee acquires knowledge of the act or deliberate failure to act (Virdi v Commissioner of Police of the Metropolis) [2007] IRLR 24).[216]A failure to make a reasonable adjustment is not a continuing act and is instead an omission. Time runs from when the person is taken to have decided on a failure to do something, as explained in subsections (a) and (b) of Section 123(4) Equality Act 2010 above (Kingston Upon Hull v Matuszowicz [2009] IRLR 288 (CA). The principles set out in the authorities were summarised as follows by HHJ Beard in Fernandes v Department of Work and Pensions [2023] IRLR 967 at paragraph 16:a. The duty to make an adjustment, under the statutory scheme, arises as soon as there is a substantial disadvantage to the disabled employee from a PCP (presuming the knowledge requirements are met) and failure to make the adjustment is a breach of the duty once it becomes reasonable for the employer to have to make the adjustment.b. Where the employer is under a duty to make an adjustment, however, limitation may not begin to run from the date of breach but at a later notional date. As is the case where the employer is under a duty to make an adjustment and omits to do so there will be a notional date where time begins to run whether the same omission continues or not.c. That notional date will accrue if the employer does an act inconsistent with complying with the duty.d. If the employer does not act inconsistently with the duty the notional date will accrue at a stage where it would be reasonable for the employee to conclude that the employer will not comply, based on the facts known to the employee.[217]Conduct extending over a period is to be treated as done at the end of the period (Section 123(3) Equality Act 2010). There is conduct extending over a period if there is a continuing discriminatory state of affairs as opposed to a succession of unconnected or isolated specific acts. If so, then the three-month time period for bringing a claim only runs from the date on which the state of affairs ends (Metropolitan Police Commissioner v Hendricks [2003] ICR 530). However, if any of the constituent acts is found not to be an act of discrimination, then it cannot be part of a continuing act (South West Ambulance NHS Foundation Trust v King [2020] IRLR 168).[218]The three-month time for bringing Tribunal proceedings is paused during Early Conciliation such that the period starting with the day after Early Conciliation is initiated and ending with the day of the early conciliation certificate does not count (Section 140B(3), Equality Act 2010). If the time limit would have expired during Early Conciliation or within a month of its end, then the time limit is extended so that it expires one month after Early Conciliation ends (Section 140B(4), Equality Act 2010).[219]If the claim has been brought outside the primary limitation period, then the Tribunal has jurisdiction to consider the claim if it was brought within such other period as the Tribunal considers just and equitable. The Tribunal has a wide discretion and the EAT has a limited basis on which it can interfere. This is the proper principle to derive from Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434, CA, as explained by HHJ Tayler in Jones v Secretary of State for Health and Social Care EAT 23.1.24 at paragraphs 27-38).[220]Factors which are almost always relevant to an exercise of the discretion are the length of and the reasons for the delay, and whether the delay has prejudiced the Respondent (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 at paragraph 19). However: There is no … requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard (Abertawe at paragraph 25)[221]It is not necessary for a Tribunal to consider the checklist of factors set out in Section 33 of the Limitation Act 1980, given that that Section is worded differently from Section 123 of the Equality Act 2010, so long as it does not leave a significant factor out of account.[222]It will frequently be fair to hold Claimants bound by time limits which they could, had they taken reasonable steps, have discovered. If the delay in issuing proceedings has been caused by the fault of an adviser, this is a potentially relevant factor that potentially excuse a failure to issue proceedings in time, or a delay in issuing proceedings thereafter (Hunwicks v Royal Mail Group plc EAT 0003/07; 20 March 2007 per Underhill J at paragraphs 9 and 13). However, to be a relevant factor, the bad advice must have been the reason for the delay.[223]Awaiting the outcome of an internal grievance procedure before making a complaint is just one matter to be taken into account by a tribunal considering the late presentation of a discrimination claim (Apelogun-Gabriels v Lambeth London Borough Council [2002] ICR 713, CA per Peter Gibson LJ at p719).[224]Where it is asserted that the claimant’s medical condition is the reason for the delay in issuing proceedings, the Tribunal is not bound to accept untested medical evidence as a sufficient basis for concluding that a claimant had difficulty in taking the necessary steps to issue proceedings. It is appropriate to evaluate that medical evidence in the light of other evidence as to what the claimant was capable of doing during the limitation period. This may include evidence of seeking legal advice or of writing coherent letters on this or unrelated matters (Chouafi v London United Busways Limited [2006] EWCA Civ 689). The question is whether it is just and equitable to extend time in the light of the claimant’s medical difficulties, which are one relevant factor to be considered - even if they were not such as actually to prevent the claimant commencing proceedings (Watkins v HSBC Bank plc [2018] IRLR 1015 at paragraph 50).[225]When balancing the prejudice to each party as a result of granting or refusing to grant an extension of time, the Tribunal may have regard to the following factors:a. The obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence;b. The forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents and losing touch with witnesses;c. The prejudice to the claimant in not being awarded a remedy for an otherwise legally sound complaint if the Tribunal holds the complaint to be time barred.[226]If there is no forensic prejudice to the Respondent that is (a) not decisive in favour of an extension and (b), depending on the ET’s assessment of the facts, may well not be relevant at all. It will very much depend on the way in which the ET sees the facts (Miller v Ministry of Justice (UKEAT/0003/15/LA) (15.3.16). Automatically unfair dismissal - protected disclosure[227]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.[228]A protected disclosure is defined in Section 43A as “a qualifying disclosure (as defined by Section 43B) which is made by a worker in accordance with any of sections 43C to 43H”. Qualifying disclosures[229]Section 43B is in the following terms: (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— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[230]Only those disclosures that meet the statutory requirements set out in Section 43B qualify for protection. The starting point is that the disclosure must be a “disclosure of information” made by the worker bringing the claim. That disclosure must have two features. Both are based on the belief of the worker, but that belief must be a reasonable belief.[231]The first is that at the time of making the disclosure the worker reasonably believes the disclosure tends to show a ‘relevant failure’ in one of five specified respects; or deliberate concealment of that failure. The second is that at the time of making the disclosure, the worker reasonably believes the disclosure is made in the public interest. (1) Disclosure of information[232]In Kilraine v London Borough of Wandsworth [2018] ICR 1850 the Court of Appeal rejected the view that allegations could not amount to a disclosure of information. Sales LJ noted that allegations could amount to disclosures of information depending on their content and on the surrounding context. By itself, an allegation made by an NHS employee that “You are not complying with health and safety requirements” would be so devoid of specific factual content that it would not fit within the statutory language – such a statement does not disclose information tending to show health and safety is being endangered. If such a statement was made whilst pointing to sharps lying discarded on the ward floor, then this context would give the disclosure sufficient factual content to amount to a qualifying disclosure.[233]Sales LJ set out the following test for determining whether the information threshold had been met so as to potentially amount to a qualifying disclosure: the disclosure has to have “sufficient factual content and specificity such as is capable of tending to show” one of the five wrongdoings or deliberate concealment of the same. It is a matter “for the evaluative judgment of the tribunal in the light of all the facts of the case” (paras 35-36).[234]Protected disclosures will commonly be made in grievances, particularly where there is no formal whistleblowing policy. However, section 43B does not limit the manner of the disclosure. Verbal disclosures can be qualifying disclosures - although verbal disclosures may be disputed, and a claimant will have to prove that the disclosure was made as alleged. Qualifying disclosures can also be made having regard to a series of communications viewed as a whole, even where the recipients of those communications are different. The disclosure can still be a qualifying disclosure if the recipient is already aware of the information – Section 43L(3).[235]However, the Tribunal will need to assess whether, given the factual context, it is appropriate to analyse a particular communication in isolation or in connection with others. In Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540 (EAT), Slade J (at paragraph 22) said that “an earlier communication can be read together with a later one as embedded in it, rendering the later communication a protected disclosure, even if taken on their own they would not fall within Section 43B(1)(d)”. Whether or not it is correct to do so is a question of fact.[236]In Kilraine, one of the alleged protected disclosures was made using these words: “There have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented”. In itself, this lacked sufficient factual content and specificity. The oblique reference to other documented instances did not incorporate other documents by reference. In Simpson v Cantor Fitzgerald Europe [2021] ICR 695, the Court of Appeal upheld the ET’s decision not to aggregate 37 communications to different recipients in order to assess whether there was a protected disclosure. Whether communications are read together is a question of fact for the Tribunal. (2) Reasonable belief disclosure tends to show wrongdoing[237]There are two separate requirements here –(a) a genuine belief that the disclosure tends to show a relevant failure in one of the five respects (or deliberate concealment of that wrongdoing); and(b) that belief must be a reasonable belief. Reasonableness involves applying an objective standard to the personal circumstances of the discloser. The reasonableness test might differ depending on whether the discloser was a lay person or an expert. For example, a consultant surgeon would generally be expected to check medical records before it would be reasonable for them to believe their disclosure tended to show medical malpractice. A lay observer may reasonably believe the same disclosed information indicated wrongdoing without first making such checks (Korashi v Abertawe Bro Morgannwg Local Health Board [2012] IRLR 3, EAT). The definition is concerned with what the worker believed at the time when they made the disclosure, not what they may have come to believe later on (Dodd v UK Direct Solutions Limited at paragraph 55 [2022] EAT 44 (18.3.22)).[238]If the disclosure has a sufficient degree of factual content and specificity, then that belief is likely to be regarded as a reasonable belief (Kilraine at paragraph 36). The belief has to be that the information in the disclosure tends to show the required wrongdoing, not just a belief that there is wrongdoing (Soh v Imperial College of Science, Technology and Medicine EAT 0350/14). The disclosure may still be a protected disclosure even if the information does not stand up to scrutiny. A belief may be a reasonable belief even if it is wrong: Babula v Waltham Forest College [2007] ICR 1026. Unlike disclosures made to a regulator (see below), where a disclosure is made to the claimant’s employer there is no additional requirement that the claimant must have had a reasonable belief that the information disclosed, and any allegation contained in it, were substantially true. Therefore, the Tribunal will not usually need to determine whether the employee believed that the disclosed information was correct or not. That said, in many cases, the determination of the factual accuracy of the disclosure will be an important tool in determining whether the worker held the reasonable belief that the disclosure tended to show a relevant failure (Darnton v University of Surrey [2003] IRLR 133).[239]In relation to each of the five prescribed types of relevant failure - there is a potential past, present or future dimension. For instance, in relation to breach of a legal obligation, the reasonable belief must be that the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation. So far as future wrongdoing is concerned the phrase “is likely to” has been interpreted as meaning more than a mere possibility. In Kraus v Penna [2004] IRLR 260 the EAT held that to be a qualifying disclosure, the information disclosed should tend to show, in the claimant’s reasonable belief, that failure to comply with a legal obligation was “probable or more probable than not”. Although Kraus v Penna has been overruled by the Court of Appeal on a different issue, it remains good law on this point.[240]Breach of a legal obligation (Section 43B(1)(b)): Any legal obligation potentially suffices, including breach of an employment contract: Parkins v Sodexo [2002] IRLR 109]. ET cases have held that a wide range of legal obligations are relevant, in addition to the employment contract itself:a. Breach of an equal opportunities policy;b. Pressurising parking attendants to meet targets, such that they falsified entries in a log book – this was breach of the obligation to fairly administer provisions of road traffic legislation;c. Pressure to include false lines of business so as to artificially inflate the accounts;d. A complaint that hospital staff were unable to take proper rest breaks.[241]A belief that particular conduct amounts to discrimination would be “breach of a legal obligation”.[242]Unless the legal obligation is obvious, Tribunals should consider the particular wrong that the claimant alleges they believe has been breached. However, there are no sub-rules requiring that the worker should expressly accuse the employer of acting in breach of a legal obligation, still less identify a particular legal obligation in the disclosure. Such additional requirements go beyond the statutory wording and are inconsistent with the purpose of the legislation. However, what the worker said about the legal obligation, and whether the matter is obvious are relevant evidential matters in deciding what they believed and the reasonableness of what they believed. If the nature of the worker’s concern is stated – e.g. they say that they consider that the report information shows a breach of a legal obligation - “it will be harder to dispute that they held this belief and that the professed belief that the disclosure tended to show the specified matter was reasonable” (Twist DX Limited v Armes and others at paragraph 87).[243]In Eiger Securities LLP v Korshunova [2017] ICR 561, the claimant complained to her line manager that it was wrong for him to trade from her computer without identifying that he was the person trading rather than her; and told him what her clients thought of this behaviour. The EAT remitted the case to the ET to consider whether the claimant believed that there was a legal as opposed to a moral obligation that had been broken. Merely believing that conduct ‘was wrong’ could be a belief that the employer had breached a moral or lesser obligation, which would be insufficient.[244]In Kilraine v London Borough of Wandsworth [2018] ICR 1850, the disclosure in issue related to an occasion when the worker had raised a child safeguarding issue and claimed to have received an inadequate response. The ET held that this did not tend to show breach of a legal obligation, and this was upheld in the Court of Appeal. As the Court of Appeal noted, nothing in the Particulars of Claim or the witness statement indicated that the claimant had a particular legal obligation in mind. It was only later that her representative suggested a potential breach of the Children Act 2004 and the Education Act 2002.[245]Endangerment of health and safety (Section 43B(1)(d)): The nature of the health and safety danger needs to be specified, but this can be done in general terms. So in Fincham v HM Prison Service 0925/01 the EAT held that a statement: ‘I feel under constant pressure and stress awaiting the next incident’ was sufficiently detailed to identify the danger to health and safety – it inferred that the claimant’s own health was at risk. Disclosures which in the reasonable belief of the worker tend to show that the health or safety of any individual has been, is being or is likely to be endangered will generally be reasonably believed to be in the public interest (see below). (3) Reasonable belief that disclosure is made in the public interest[246]There must be a reasonable belief on the part of the worker that the disclosure was in the public interest. This requirement has two components – first a subjective belief, at the time, that that the disclosure was in the public interest; and secondly, that the belief was a reasonable one. (a) Genuine belief[247]This component may not be apparent to a litigant in person or even to some professional representatives. As a result, it may be incumbent on a Tribunal to ask a litigant who does not address the issue in their witness statement, whether they believed that they were acting in the public interest. If the answer is yes, then they could be asked for an explanation, which could be the subject of cross-examination as to whether it was a belief only formed at a later stage: see Ibrahim v HCA International plc [2020] IRLR 224 at paragraph 25. In the present case, it was clear from the way they had worded their grievances that each of the Claimants were aware they needed to show a genuine belief that the information being disclosed was made in the public interest. Furthermore, this issue was raised with them in cross-examination. As a result, the Tribunal did not ask each claimant in relation to each alleged qualifying disclosure whether the disclosure was believed to be in the public interest. (b) Reasonable belief[248]Secondly, that belief must be a reasonable one. What amounts to a reasonable belief that disclosure was in the public interest was considered by the Court of Appeal in Chesterton Global Limited v Nurmohamed [2018] ICR 731. Mr Nurmohamed was the manager of the Chelsea branch of Chestertons Estate Agents. He and other managers were remunerated in part based on the extent to which their sales enhanced the businesses profits. He believed his employers had been adjusting the business’ accounts so as to depress the profits and so deprive managers of bonuses. He shared his view in three meetings, stating he believed that the bonus payable to 100 managers was affected. The Tribunal found he reasonably believed this was in the public interest. That decision was upheld by the EAT and the Court of Appeal.[249]The Court of Appeal considered that a disclosure could be in the public interest even if the motivation for the disclosure was to advance the worker’s own interests. Motive was irrelevant. What was required was that the worker reasonably believed disclosure was in the public interest in additional to his own personal interest. So long as workers genuinely believed that disclosures were in the public interest when making the disclosure, they could justify the reasonableness of the public interest element by reference to factors that they did not have in mind at the time.[250]Underhill LJ, giving the leading judgment, refused to define “public interest” in a mechanistic way, based merely on whether it impacted anyone other than the claimant or whether it impacted those beyond the workforce. Rather a Tribunal would need to consider all the circumstances, although the following fourfold classification of relevant factors was potentially a “useful tool”:(a) The numbers in the group whose interests the disclosure served – although numbers by themselves would often be an insufficient basis for establishing public interest.(b) The nature and the extent of the interests affected – the more important the interest and the more serious the effect, the more likely that public interest is engaged.(c) The nature of the wrongdoing – disclosure about deliberate wrongdoing is more likely to be regarded as in the public interest than inadvertent wrongdoing.(d) The identity of the wrongdoer – the larger or more prominent the wrongdoer, the more likely that disclosure would be in the public interest.[251]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 claimant’s subjective belief was objectively reasonable (Chesterton at paragraphs 28-29). Applying these factors to Mr Nurmohamed’s disclosure, the factors indicated he did reasonably believe it was in the public interest – he believed it potentially affected 100 managers; he believed that profits were being depressed by £2m - £3m; he believed that it was being done deliberately; and the wrongdoer was a very substantial and prominent business in the London property market.[252]Underhill LJ said that Tribunals should be cautious about concluding that the public interest requirement is satisfied in the context of a private workplace dispute merely from the numbers of others who share the same interest. In practice, the larger the number of individuals affected by a breach of the contract of employment, the more likely it is that other features of the situation will engage the public interest. Reason for dismissal[253]The reason for a dismissal connotes the factor or factors operating on the mind of the decision-maker which cause them to dismiss, or which motivates them to do so: The Co-operative Group v Baddeley [2017] EWCA Civ 658 at paragraph 41. Unless the employee has less than two years continuous service, the burden of proof is on the employer to show that the reason for the dismissal is a potentially fair one. Where an employee has less than two years continuous service, the burden of proving on the balance of probabilities that the principal reason for the dismissal is a protected disclosure rests with the claimant. Automatically unfair disclosure – assertion of a statutory right[254]Section 104 Employment Rights Act 1996 provides:(1) 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… (b)Alleged that the employer had infringed a right of his which is a relevant statutory right.(2) It is immaterial for the purposes of subsection (1)- (a) Whether or not the employee has the right, or (b) Whether or not the right has been infringed(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.[255]The wording of the statutory section makes it clear that relevant statutory rights include any rights conferred by the Employment Rights Act 1996 for which there is a remedy in the Employment Tribunal. These include the right not to suffer an unauthorised deduction from wages (Section 13) and the statutory right to request contract variation (Section 80F). Unauthorised deductions from wages[256]Section 13 Employment Rights Act 1996 provides: (1) An employer shall not make a deduction from wages of a worker employed by him unlessa. The deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision in the worker’s contract; or b. The worker has previously signified in writing his agreement or consent to the making of the deduction.[257]An employee has a duty to comply with their employer’s reasonable requirements, whether they took the form of instructions or management decisions, as long as they fell within the scope of the employment contract. If there is nothing in the contract of employment or in the employment relationship which entitles an employee to set the terms on which they would return to work, then failure to return to work as directed amounts to a situation of “no work, no pay” (Luke v Stoke-onTrent City Council [2007] ICR 1678).[258]It is a breach of contract to summarily dismiss an employee without providing the contractually required period of notice unless the employee is in fundamental breach of contract or unless there is a specific clause permitting the employer to make an equivalent payment in lieu of notice (a PILON clause): Abrahams v Performing Right Society Limited [2005] ICR 1028. Conclusions Direct discrimination because of race
Conclusions
[259]The Tribunal first considers whether it has found any facts from which the Tribunal could decide, in the absence of any other explanation, that the relevant decision makers at ORR in relation to the alleged discriminatory acts have contravened the prohibition against discrimination in the Equality Act 2010. In other words, are there facts from which an inference of race discrimination could be drawn? If there are, then the burden of proof switches to the Respondent to show that Mr Ikeji’s race formed no part of the reason for the relevant treatment.[260]The Tribunal does not consider it has found any such facts. Mr Ikeji relies upon the fact that he was the highest scoring candidate at interview, and yet was not allocated his preference for the TfL role. This does not provide any grounds for drawing an inference of discriminatory treatment, given the Tribunal’s other relevant factual findings – at no point in the application process had ORR indicated that the top performing candidate would be allocated their preferred role; Mr Ikeji had not expressed a particular preference during the application process for the TfL role; and had indicated a willingness to be considered for the Southern Region role on his application form. Failure to allocate him to the Transport for London role upon appointment[261]This failure was not influenced by Mr Ikeji’s race. Rather it was the result of Mr Appleton’s decision following his conversation with Catherine Hui. Ms Hui had a preference for Ms Gelder because she had more recent experience working with TfL and had worked with one of the clients involved in finalising the implementation of the Elizabeth Line.[262]There had been no promise or any expectation that the top scoring candidate would be entitled to choose which of the two roles they wanted. This had not been said in the paperwork advertising the position, during the interview, or in any communication with Mr Ikeji before his start date.[263]In any event, Mr Gelder was not an actual comparator in that her circumstances were materially different. She had more recent experience working with TfL. Conducted a performance review induction meeting on 20 January 2022 without consideration for the Claimant’s development requirements, commitments and preferences[264]In relation to this allegation Ms Gelder is said to be an actual comparator. By 20 January 2022, Ms Gelder had not yet started work. There is no evidence as to whether she had an equivalent performance review induction meeting and if she did, what was discussed at that meeting. The alleged comparison does not assist Mr Ikeji in establishing unfavourable treatment.[265]Mr Wilson had clearly considered Mr Ikeji’s preferences when they were expressed to him on Mr Ikeji’s first day. He had explored whether there was any scope for Mr Ikeji to swap roles with Ms Gelder. There is no basis for concluding that he did not consider her development requirements or commitments. In any event, there is no basis for inferring that his stance towards Mr Ikeji was influenced by Mr Ikeji’s race. He had chaired the panel that had conducted a face-to-face interview with him and the other candidates. Despite clearing knowing that Mr Ikeji was black he and his colleagues on the panel scored Mr Ikeji highest of the candidates interviewed. 3 March 2022, Mr Wilson told the Claimant that he would block his part time work request[266]The Tribunal’s factual findings as to what was said by Mr Wilson in the meeting are recorded above. He did not say he would block any part time work request. Rather he set out his expectation of the negative answer Mr Ikeji would be likely to receive if he made an early request to go part-time. He explained the reasons for this in the meeting on 3 March 2022 and reiterated those reasons in his email of 4 March 2022. The Tribunal accept that those reasons were the entirety of the reasons for his stance on part-time working. His stance was not influenced to any extent by Mr Ikeji’s race.[267]In any event, Keith Atkinson and Ian McDermott were not comparable employees. They were not engaged in the training process to become qualified inspectors at the start of their careers. Rather they were experienced inspectors who had worked on a full time basis for many years and were reaching the end of their careers. Harassment related to race Mr Wilson feigned ignorance of the Claimant’s preferences for the Transport for London vacancy and breached the Civil Service Code in respect of fair appointment according to merit, based on location and preferences.[268]Mr Wilson was not told in advance of Mr Ikeji’s first day at work that Mr Ikeji had a preference for the Transport for London vacancy. Such a preference was not clear from the application form and did not arise during the discussion at interview. As a result, his ignorance was not feigned but genuine. In any event, the deployment decision was taken by Mr Appleton rather than by Mr Wilson.[269]Therefore, there was no harassment related to race by Mr Wilson in this respect. 20 January 2022, Mr Wilson conducted a performance review induction meeting without consideration of the Claimant’s development plan requirements, commitments and preferences.[270]In the light of the Tribunal’s factual findings, Mr Wilson’s treatment of Mr Ijeki during the meeting did not have the effect proscribed by Section 26(1) EqA. Furthermore, the treatment was not related to race for the reasons given in relation to the identical allegation of direct race discrimination. 3 March 2022 Mr Wilson told the Claimant that(1) he would block his part time work request(2) he accused him of being late to a meeting(3) he accused him of sharing a level crossing order with the team administrator, saying the Claimant should be careful not to go around acting like he runs things after two minutes.[271]The factual allegation relating to “blocking his part time work request” is dealt with above in relation to the equivalent allegation of direct race discrimination.[272]During the meeting, Mr Wilson did discuss Mr Ikeji’s lateness to a training session in Reading on 1 March 2022. He discussed this because Mr Ikeji had been late to the training session; and this had happened on several previous occasions. It was entirely appropriate for him to do so as his line manager. Had he failed to address this issue with Mr Ikeji he would have been failing in his line management responsibilities. His decision to broach this subject had nothing to do with Mr Ikeji’s race.[273]Mr Wilson also discussed Mr Ikeji’s decision to update the Level Crossing tracker and send this to the administrator. He did not accuse him of any wrongdoing in this respect, nor did he say that Mr Ikeji should be careful not to go around acting like he runs things after two minutes, as Mr Ikeji alleges. Therefore, this allegation fails as being factually incorrect. 7 March 2022, in an email, Mr Wilson said that the Claimant “had not been entirely honest with me”[274]This allegation is factually correct. Mr Wilson wrote this because this was genuinely how he felt about how Mr Ikeji had dealt with this issue – he had applied for a fulltime role, not mentioned during the interview that he would like to carry out the role on a part-time basis within a year or so of starting, and then first mentioned his interest in part-time working in discussions with other managers so that Mr Wilson learnt about it second-hand, rather than directly from Mr Ikeji in line management discussions. In those circumstances, Mr Wilson’s feeling about how Mr Ikeji had treated him on this issue was a reasonable one. It was also reasonable for Mr Wilson to share his feeling with one of his direct reports. This conduct did not violate Mr Ikeji’s dignity or create an intimidating, hostile, degrading or offensive environment for him, having regard to his perception and whether it was reasonable for the conduct to have that effect. In any event, the conduct was not related to Mr Ikeji’s race. Mr Wilson would have written the same emailed comment if the issue of part time working had been broached in this way by a white employee. 21 March 2022, Mr Wilson fabricated a training needs assessment for the Claimant without his input and whilst he was on sick.[275]The training needs assessment document was drafted around 21 March 2022, which was on or shortly after the date on which Mr Ikeji went on sick leave. It was a draft document intended to be discussed with him before it was finalised. Mr Wilson ought to have done this within the first two months ie by 5 March 2022. It was not fabricated by Mr Wilson and, because it was never finalised, it never became operational.[276]There is no factual basis on which to draw any inference that the timing of the training needs assessment or the contents of the document were influenced by Mr Ikeji’s race. From 11 May 2022, suspending the Claimant from work without pay[277]Mr Ikeji was not suspended from work. Rather, he had not self-certified as sick and had not requested to take annual leave or unpaid leave. As a result, his absence was recorded as unauthorised absence which was not paid. This was clearly explained by Ms Rosolia in the email exchange on 11 May 2022. The allegation fails as being factually incorrect. 1 July 2022, Mr Wilson and Mr Farrell deliberately produced inaccurate records to support a recommendation that the Claimant be dismissed[278]Mr Ikeji has not shown, either in his witness statement or in his oral evidence, any respect in which the probation assessment form supporting document [1422] was inaccurate, still less that this was done deliberately. This allegation fails as being factually incorrect. Victimisation - Protected acts Orally to Mr Wilson on 5 January 2022 and 7 January 2022 about the allocation of role[279]The complaints made orally to Mr Wilson on 5 January 2022 or 7 January 2022 about the allocation of role were not protected acts. Whilst he stated he was unhappy to be allocated the Network Rail Southern Region role because he wanted to be allocated to the TfL role, on neither occasion did Mr Ikeji allege that amounted to race discrimination or was unfavourable treatment because of any protected characteristic. 23 February 2022 and 28 February 2022 in training course feedback about discriminatory comments made by Mr Atkinson and Mr Darling[280]Mr Ikeji did allege that discriminatory comments had been made by Mr Darling when he provided feedback orally on 23 February 2022 and in writing on 28 February 2022. These were protected acts.[281]He did not make any allegation about the way that Mr Atkinson had spoken to him during a training course – either on 23 February 2022 or on 28 February 2022. Therefore, these alleged protected acts are rejected. 3 March 2022 orally to Mr Wilson, about the discriminatory comments made by Mr Atkinson[282]There was no reference during the meeting held with Mr Wilson on 3 March 2022 to any discriminatory comments made by Mr Atkinson. Therefore, this alleged protected act is rejected. 8 March 2022, grievance and supporting documents sent on 15, 16 and 23 March 2022[283]Mr Ikeji’s grievance on 8 March 2022 is admitted to be a protected act. In it, he effectively alleged he was being victimised, because of the feedback he had provided about Mr Darling in that he said: “I am being treated this way because of the feedback I shared with you and Lee Collins about my experience, in good faith”. His email of 15 March 2022 also amounts to a protected act in alleging breaches of equalities legislation.[284]The 16 March 2022 email makes no allegations of discrimination. There is no email from Mr Ikeji of 23 March 2022, as confirmed by the absence of any such reference in Mr Ikeji’s Chronology. First employment tribunal claim[285]This is obviously a protected act. 10 May 2022 email sent by Mr Ikeji to Mr Farrell[286]This email repeatedly referred to breaches of contract. It made no allegations of discrimination, whether expressly or by implication. As a result, it is not a protected act. 15 July 2022 second employment tribunal claim[287]This is obviously a protected act. 24 May 2022 – whistleblowing grievance sent to Ms Thornhill and Mr Prosser[288]This is admitted to a protected act. Mr Ikeji was alleging that two senior ORR employees had conspired to hide breaches of the Equality Act 2010. Detrimental treatment because of protected acts Failed to agree to appoint Mr Ikeji to the Transport for London role (20 January 2022)[289]This is an allegation made against Mr Wilson. It is correct that he did not appoint Mr Ikeji to the Transport for London role on 20 January 2022. It was not within his gift to do so. There was no vacancy because the role had already been allocated to Ms Gelder, albeit she had not yet started. The original decision was taken by Mr Appleton, who is more senior than Mr Wilson. It would have been for Mr Appleton rather than Mr Wilson to reverse his original decision. Mr Appleton was never asked to do this.[290]It is clear from the Tribunal’s factual findings that Mr Wilson had no objection to Mr Ikeji swapping with Ms Gelder if Ms Gelder was willing to do so. However, she had indicated she wanted to remain in the Transport for London team.[291]In any event, by 20 January 2022, there had been no protected acts. As a result, the “failure to agree to appoint Mr Ikeji to the Transport for London role” cannot have been because of a protected act. 7 March 2022 – Mr Wilson said that he would block the Claimant’s request to work part time[292]That is not a fair characterisation of Mr Wilson’s stance on the issue of part time working. His email of 7 March 2022 saying he would oppose a part time application needs to be viewed in the light of the whole chain of email correspondence on the same issue, and in particular his measured and detailed response in his email on 4 March 2022. In the 7 March 2022 email, he was transparently sharing with Mr Ikeji what his stance would be on any application to continue his present trainee role on a part-time basis, namely that he would oppose such an application, for the detailed reasons provided in his email of 4 March 2022. However, it would be for others to decide that application.[293]His email was entirely based on his view of the demands of the role of trainee inspector given ongoing training courses spread throughout the week and on the needs of the business. It was not in any way influenced by any of the previous communications said to be a protected act. 4 March and 7 March 2022 Mr Wilson sent emails about the Claimant’s probation period which threatened his employment.[294]Mr Wilson did say in his email of 4 March 2022 that “if you cannot commit to fulltime working, with regret, I think it is sensible for you and ORR to ‘consider positions’ sooner rather than later” [764]. In the same email he said: “Be assured that I have confidence in your abilities, as does Kate Dixon, who said she thought you’ll make a very good inspector”. Read as a whole, this email did not threaten his employment. Rather it indicated his view that a lack of commitment to full-time work was incompatible with the nature of the role. This was entirely prompted by the nature of the role rather than by any previous protected act.[295]He made the same point giving the same reason in his email of 7 March 2022, when he said that the role was advertised and filled on a full-time basis, and that the team needed a full-timer. Whilst he said he would oppose an application to go part time and regarded Mr Ikeji’s current intention as a problem, he said he would “indeed raise all of this with HR”. As a result, he was not threatening Mr Ikeji’s current full-time employment but was signalling that HR would need to be involved in any discussion about changing his existing full-time role. Again, his stance was entirely prompted by the nature of the role rather than by any previous protected act. From 10 May 2022, failing to pay the Claimant[296]It is correct that Mr Ikeji was not paid from 10 May 2022. However, this was entirely because he had not supplied a current Fit Note signing him off sick from that date and he was not ready willing and able to return to his substantive role under the line management of Mr Matthew Farrell with appropriate reasonable adjustments. As a result, it was not in any way influenced by any previous protected acts. 12 July 2022, dismissed the Claimant[297]Mr Ikeji was dismissed as the outcome of the probation review meeting conducted by Mr Alshaker on 12 July 2022. Mr Alshaker was aware Mr Ikeji had lodged a grievance but was not aware of the contents of the grievance. In any event, his decision that Mr Ikeji should be dismissed was taken for the reasons set out in the two-page letter dated 13 July 2022 notifying him of his dismissal with immediate effect. In so deciding, he was relying on Mr Farrell’s probation review findings. Those in turn had not been influenced by the contents of any protected acts, but by Mr Farrell’s view of Mr Ikeji’s performance as documented under the three headings, “Conduct”, “Timekeeping” and “Work Performance”. 29 July 2022, complained to the police that the Claimant had committed theft of its property[298]Ms Rosolia did complain to the police that Mr Ikeji had committed theft of its property. This complaint was prompted by Mr Ikeji’s ongoing failure to return the items belonging to ORR which had been requested on several occasions starting with the dismissal letter of 13 July 2022. It had nothing to do with any previous protected acts. 3 February 2023, supplied a reference to prospective employer, the City of Westminster by giving negative and inaccurate information about his employment[299]The reference provided to City of Westminster was factually accurate. It recorded his name, the length of his employment, the position he held and his employment status as a full-time permanent member of staff. The format was the same as ORR would have provided for any departing employee regardless of the reason for their departure and regardless of whether they had previously done any protected acts. It was not in any way influenced by any previous protected acts. Automatic Unfair Dismissal[300]The Tribunal needs to determine the reason or where there is more than one reason the principal reason for Mr Ikeji’s dismissal. The Tribunal accepts the evidence of Mr Alshaker that the only reason for dismissing Mr Ikeji was that he endorsed the findings in the probation review report written by Mr Farrell. This noted that there were concerns about his conduct and his time keeping.[301]Mr Alshaker did not know about Mr Ijeki’s whistleblowing complaint. As a result, even if it was a qualifying and therefore a disclosure, it could not have influenced his reasoning for dismissing Mr Ikeji. By way of completeness, the Tribunal does not find that the email to Ms Thornhill and Mr Prosser on 24 May 2022 [1331] was a qualifying disclosure. This is because Mr Ikeji did not have a reasonable belief that the matters he was disclosing were in the public interest. The disclosures in the email and attachments only concerned his own treatment, rather than the treatment of other employees. His reference to the need “to ensure the health, safety and welfare of employees like me” does not make any belief he had that it was of potential significance a reasonable belief that this was in the public interest.[302]In so finding there was no reasonable belief that disclosure was in the public interest, we have considered the factors suggested by the Court of Appeal in the case of Nurmohammed v Chestertons. In particular we have considered the number of people potentially impacted (one), the gravity of effect (the outcome of a grievance appeal), whether it was deliberate or inadvertent (there was no plausible basis for concluding that any errors were deliberate) and the prominence of wrongdoing (Office of Rail and Road is a public authority and Ms Hill and Ms Rosolia were senior employees). Weighing these factors, it is clear that the necessary public interest element was not satisfied.[303]Having so found this was not a qualifying disclosure on that basis and given that this whistleblowing complaint did not influence Mr Alshaker in any event, it is not proportionate to further analyse whether the alleged qualifying disclosure satisfies other elements of the necessary requirements to amount to a qualifying disclosure.[304]Mr Farrell’s written probation assessment on which Mr Alshaker’s decision was based made no reference to Mr Ikeji’s assertion that he should have been paid from 11 May 2022 onwards. It did not refer to Mr Ikeji’s subsequent grievance about the failure to continue his full pay from that date. The Tribunal has found that Mr Alshaker did not know that Mr Ikeji had asserted a right to be paid. As a result, to the extent that this amounted to the assertion of a statutory right, this could not have formed any part of Mr Alshaker’s dismissal decision. As already stated, the only reason was because of the factors set out in Mr Farrell’s report.[305]Finally, Mr Ikeji had not made any application to work on a part time basis. At that point he did not have a statutory right to do so, because he had not been employed for at least 26 weeks. Mr Ikeji does not allege he believed he had a statutory right to request a contractual change to his weekly hours. In any event, there was no reference in the probation report to Mr Ikeji’s interest in working on a part time basis. Mr Alshaker did not know Mr Ikeji had indicated an interest in part time work. The reason for the dismissal was not because Mr Ikeji had asserted a statutory right to request part time work, but because of the factors set out in Mr Farrell’s report. Disability status[306]The Tribunal starts by considering whether Mr Ikeji’s anxiety amounts to a disability.[307]First it is necessary to decide when symptoms started. The first reference to anxiety as a separate condition is in Mr Ikeji’s email to Mr Wilson dated 21 March 2022 where he complained that the treatment he was experiencing at work had worsened his anxiety. In terms of specific symptoms, he said that he had been unable to sleep for the last couple of days. That was at the start of his period of sickness absence, albeit that the reason given on the Fit Note was “hypertension”. Up until that point, Mr Ikeji had been able to carry out all his duties at work. Although Mr Ikeji had made a previous reference, on 11 February 2022, to being anxious, that was in the context of his concern that his “benign neutropenia” was putting him at risk of contracting Covid-19. The focus of that email was on his physical health rather than his mental health.[308]It is telling that Mr Ikeji’s disability impact statement says he had been struggling to cope with his day-to-day activities “since March 2022” [331]. By way of example, he said “such as sleeping, reading, cooking, shopping, caring and financial responsibilities”. The Tribunal dates the start of this struggle to the point when he was unable to sleep. This would be around 19 March 2022. At that point the symptoms from his anxiety amounted to an impairment, which had a substantial (ie more than trivial) effect on normal day to day activities.[309]Next it is necessary to decide on the gravity of those symptoms. The Tribunal accepts that the anxiety symptoms continued to amount to an impairment which continued to have a substantial impact on normal day to day activities throughout the period covered by the first two sick notes. The Tribunal is aware that some GPs choose to document physical symptoms rather than mental health symptoms as the reason for absence where both are present. It is clear that Mr Ikeji still had some symptoms of anxiety by the time he was examined by occupational health on 4 May 2022. She recommended that Mr Ikeji seek out various forms of help with stress and symptoms caused by stress.[310]However, the Tribunal does not accept that the level of his anxiety symptoms from 21 March 2022 onwards was as severe as he suggests in his disability impact statement. Having observed the way in which he has given evidence, the Tribunal considers that he has a tendency to embellish matters in an attempt to make points more compelling. That is the case with his descriptions of his symptoms and how they were addressed at the time. For instance, he sought to suggest he had private cognitive behaviour therapy in February 2022 when this was not required at that point (given the absence of significant symptoms) and was not provided (on his own admission, under questioning). Mr Ikeji did not consult his GP until 25 March 2022. There is no evidence that his GP made an entry recording anxiety in his medical records at that point. There is no evidence that his GP prescribed any medication or suggested any form of treatment until September 2022, well after the end of his employment.[311]The Tribunal rejects Mr Ikeji’s contention that he had been diagnosed by his GP with chronic anxiety in March 2022. Had he been so diagnosed, this would also have been noted on the medical certificate.[312]Whilst Mr Ikeji says in his disability impact statement that he benefited from “some private cognitive behavioural treatment and stress reduction techniques” since February 2022 (at paragraph 6) [331], he accepted in evidence this was self-help rather than professional treatment and he did not pay for it. To the extent that he did use self-help techniques, this is likely to have occurred after the occupational health report following assessment on 4 May 2022. The report does not record he had already tried self-help techniques, although various helpful websites are suggested. It is likely that any self-help would have been tried as a result of the occupational health advice given, rather than several weeks before it started.[313]Therefore, the Tribunal accepts that Mr Ikeji had some level of anxiety from 25 March 2022 until the date of his dismissal on 13 July 2022 prompted by his workplace concerns. However, the low level of that anxiety is reinforced by the occupational health nurse’s view that the issues in this case were not primarily medical; that he was fit for his substantive role with reasonable adjustments which would be required over the following two weeks. The occupational health nurse anticipated that the symptoms were likely to resolve with appropriate resolution of his workplace issues.[314]Mr Ikeji did not request any treatment for anxiety until he returned to his GP in September 2022. That was the point when he told his GP that anxiety he had experienced in 2013 had restarted. This indicates that until September 2022 any symptoms were at a sufficiently low level that they did not warrant him even mentioning them to his GP as having continued throughout the preceding months when he reattended in September 2022. Although at a low level, the impairment was at just a sufficiently intrusive level that it had a substantial adverse effect on normal day to day activities. The occupational health advice in early May 2022 was that he should avoid working with live railway lines and there should be other adjustments to his normal working duties, and additional management support provided.[315]The most difficult question for the Tribunal to determine is whether this low-level anxiety, not warranting that Mr Ikeji be signed off work from 12 May 2022 onwards or undergo any treatment (whether through medication or talking therapy), was likely to last for twelve months at any point before the date of dismissal. On that issue there is no medical evidence. The onus is on Mr Ikeji to show on the balance of probability that he meets the statutory definition of disability, including that the condition was likely to last for 12 months.[316]In answering that question, it is impermissible for the Tribunal to look at events subsequent to the date of the alleged discrimination to see whether symptoms of anxiety and any resulting substantial impairment has in fact lasted for 12 months.[317]Given the low level of his symptoms of anxiety during the less than four-month period from 19 March 2022 until 13 July 2022 (particularly from 12 May 2022 onwards), the optimistic occupational health advice given on 4 May 2022, the absence of any consultations with his GP for anxiety help during the period from 12 May 2022 to 13 July 2022 and the absence of any specific expert evidence to support the Claimant’s position as to the potential extended prognosis at this point, Mr Ikeji has not established that there was ever a point during this period of his employment with ORR where the anxiety symptoms were likely to last for at least 12 months, in the sense that this “could well happen” or was a real possibility.[318]Although Mr Ikeji had previously had anxiety in 2013, the Tribunal does not find that the further episode of anxiety in early 2022 was part of a recurring underlying condition, so as to thereby satisfy the legal requirements of a long-term condition. There is no specific evidence relied upon by Mr Ikeji to make that submission.[319]As a result, looking solely at the anxiety, the Tribunal does not find that this satisfied the legal test for disability.[320]So far as the symptoms of hypertension are concerned, there is no reference in the medical records to this being a particular problem before early 2022. It was not noted as a problem in his pre-employment medical. Mr Ikeji did not mention high blood pressure in his health disclosure email on 11 February 2022. This health issue started around the same time as he experienced difficulty sleeping on 19 March 2022. The Tribunal accepts that his high blood pressure was diagnosed by his GP on 25 March 2022 and led to him being signed off work until 12 May 2022 (although he chose not to submit his third Fit Note). However, at no point was he was prescribed medication to treat his high blood pressure. There is no medical evidence establishing the specific symptoms that were the direct result of his hypertension.[321]Based on the three Fit Notes, Mr Ikeji was unable to work as a result of hypertension from 21 March 2022 until 12 May 2022. Therefore, during this period, the hypertension had a substantial adverse effect on normal day to day activities.[322]When Mr Ikeji was seen by occupational health on 4 May 2022, there was limited reference to hypertension itself as a current physical problem. Mr Ikeji has not established that the cardiology investigations that were carried out on 23 May 2022 and were followed up subsequently were linked to his hypertension. The Tribunal does not accept that the hypertension symptoms themselves amounted to an impairment which had a substantial impact on normal day to day activities from 12 May 2022 onwards until the point when he was dismissed.[323]In any event, the Tribunal does not consider that the impairment resulting from the hypertension was a long-term condition. Each medical certificate signed him off with hypertension for a short period of time, thereby anticipating that he may be potentially fit to return to work at the end of the period covered by the certificate. There is no expert evidence indicating that if a person has been signed off work with hypertension for a period of seven weeks (ie from 21 March to 12 May) that any subsequent symptoms flowing from the hypertension could well last for 12 months. No such inference can be drawn from the other evidence before the tribunal.[324]It is not permissible for the Tribunal to have regard to subsequent medical evidence in order to determine whether the condition has in fact lasted for 12 months. The Tribunal must address the question of whether the hypertension is likely to have (ie could well have) a substantial impact on normal day to day activities for more than 12 months as at the date of the alleged discriminatory acts, rather than with the benefit of hindsight.[325]Even taking the anxiety and hypertension conditions together, at no point during his employment did the resulting symptoms amount to an impairment with a substantial impact on normal day to day activities that could well have lasted for more than 12 months.[326]Therefore, Mr Ikeji was not a disabled person at any point during his employment with ORR. In case the Tribunal’s assessment is incorrect, it goes on to consider the allegations of disability discrimination on the assumption that Mr Ikeji has established he was disabled. Disability discrimination: Discrimination arising from disability Sending him home without offering a safe way of working[327]Mr Ikeji was sent home on 10 May 2022 because he was refusing to carry out any aspect of his contractual role. Specifically, he was unwilling to participate in a twoday legal refresher course he had previously indicated he would be able to complete. ORR was willing to make the adjustments recommended in the Occupational Health report. Mr Ikeji was not willing to work with these changes, even though the Occupational Health advice was that this would be safe. As a result, the decision to send him home was not because of something arising out of his disability. Imposing unpaid leave without notice on the Claimant’s consent[328]There was no need for Mr Ikeji to consent to unpaid leave before this could be imposed. His absence was an unauthorised absence in circumstances where he was fit to work in his substantive role with adjustments. The decision to stop paying him was taken, as explained by Ms Rosolia, because he was not ready willing and able to carry out his existing duties to the extent that occupational health indicated was possible. He had not provided an ongoing Fit Note to contradict the advice from Occupational Health. The decision to stop his pay was not because of something arising in consequence of his disability. 11 May 2022, Ms Rosolia accused the Claimant of being absent without leave[329]Mr Ikeji was absent without leave. He had not provided any medical justification for not returning to work. Again this ‘accusation’ was not something arising from disability. Rather it arose from his failure to return to work in accordance with the Occupational Health advice. Has the Respondent shown that it did not know and could not reasonably have been expected to know that the Claimant was unable to undertake his normal duties?[330]The Tribunal does not find there was a medical reason why Mr Ikeji could not have returned to work on 10 May 2022, with the recommended adjustments. Even if there was, then ORR did not know this, nor ought they to have known this. Mr Ikeji had chosen not to provide any further Fit Notes extending beyond 1 May 2022 and had returned to work from 29 April 2022, returning to full pay at that point. ORR were entitled to assume he was medically fit to return to work to the extent reported in the Occupational Health report. Disability discrimination: Failure to make reasonable adjustments Did the Respondent apply a provision, criterion or practice of requiring employees to undertake the full duties of their substantive role?[331]ORR did have expect employees to undertake the full duties of their substantive role. This is an entirely normal expectation for all employees. Did that put the Claimant at a substantial disadvantage in comparison to non-disabled persons?[332]The Occupational Health report recommended that Mr Ikeji was fit to return to work with adjustments. The Tribunal infers that the reference to adjustments, at least on a temporary basis, was because he was at a substantial disadvantage in comparison to non-disabled persons (on the assumption that he satisfied the definition of having a disability) in carrying out the full range of his duties. Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at a substantial disadvantage?[333]ORR did know the position as to the extent of Mr Ikeji’s disadvantage because it received the occupational health report on 5 May 2022. Should the Claimant have been given ‘amended duties’ as a reasonable adjustment?[334]ORR would have been prepared to allow Mr Ikeji to return to work in his substantive role, granting him the adjustments recommended in the Occupational Health report. These were a phased return to work for a period of two weeks; short catch ups with management (catch up meetings with Mr Farrell took place on 4 and 10 May 2022); and a mixture of remote and in office working. In addition, ORR had already changed his line manager from Mr Wilson to Mr Farrell. They would have been prepared to grant him regular breaks. They also finalised his grievance on 6 May 2022 and concluded his appeal within a further 17 days. This was entirely reasonable as a timescale, given the complexity of the matters raised. They would have been prepared to excuse him the need to visit the railway on live tracks, which was another Occupational Health recommendation.[335]It was clear that Mr Ikeji was not prepared to return to his existing role and his existing duties, even if they were amended in the manner recommended by Occupational Health. Rather, he wanted to be redeployed to a suitable alternative role working outside his current work area, not just offered amended duties. As he stated in his email of 10 May 2022 10:45, he wanted to work in any of the other directorates in ORR, outside the Railway Safety Directorate. He had not identified any particular vacancy to which he should be moved. Insofar as he is arguing that a role should have been created for him, the Tribunal does not consider that this would have been a reasonable adjustment. It was not warranted by the Occupational Health advice.[336]Therefore, the failure to make reasonable adjustments claim fails. Unauthorised deductions/Breaches of Contract[337]There was no unauthorised deduction from Mr Ikeji’s wages from 11 May 2022 onwards. He had not self-certified that he was not well enough to work, nor had he provided a valid sick certificate. He did not post a Fit Note covering the two- month period from 13 May 2022 to 12 July 2020 as he now contends. He had not asked to take a period of annual leave. He had no contractual entitlement to special leave. As a result, under the terms of his employment contract, he had no entitlement to pay. He was not ready willing and able to do the role he had been engaged to perform.[338]ORR has not established on the balance of probabilities that there was a clause in Mr Ikeji’s contract entitling ORR to make a payment in lieu of notice (PILON). It has not produced a copy of those contractual terms. Mere reference to a discretion to do so in the Probation Policy is insufficient to persuade the Tribunal that this was a contractual term.[339]As a result, it was a breach of the terms of his employment contract to dismiss him with immediate effect and purport to pay him the sums to which he was entitled to receive during his notice period. He ought to have been given five weeks’ notice of dismissal, once it had been decided by way of probationary view outcome that he should be dismissed. ORR has not argued that Mr Ikeji was in fundamental breach of his employment contract, thereby entitling it to dismiss him summarily.[340]The claim for wrongful dismissal therefore succeeds. There is a dispute as to whether the sum paid fully compensated Mr Ikeji for the sums to which he was contractually entitled during the notice period, including his entitlement to pension contributions. At the outset of the Final Hearing, it was agreed with the parties that evidence on any issue of remedy would be deferred until after a decision has been made on liability.[341]That remedy dispute will need to be resolved at a further hearing, together with any other matters arising from the outcome of this Judgment.[342]With the agreement of the parties, this further hearing has been listed to take place on 29 May 2024 with a time estimate of one day. Time limits[343]The only complaint that the Respondent says falls outside the statutory time limits is the complaint that there was a failure to make reasonable adjustments in relation to the failure to provide Mr Ikeji with ‘amended duties’ from 10 May 2022 onwards.[344]Although this allegation relates to events around two months before the second claim was issued, the allegation was first raised in an amendment application made on 4 October 2022 [149] granted by Employment Judge Russell on 29 December 2022. She granted the amendment application subject to the Respondent being able to rely on the time limitation issues as part of their case.[345]Taking into account the one-day pause resulting from early conciliation in relation to the second claim, this complaint falls outside the statutory three-month limitation period by just under eight weeks. As a result, Mr Ikeji must show that it would be just and equitable to extend time by that period to allow this complaint to be determined on its merits. The Tribunal considers that it would. The allegation relates to the same factual matrix that is already before the Tribunal. No prejudice is caused to the Respondents. Had there been merit in this allegation, it would not have failed on jurisdictional grounds. Employment Judge Gardiner Dated: 17 April 2024 LIST OF ISSUES Time limits
Legal principles
[1]Were the complaints presented within the prescribed time limits, having regard to ACAS early conciliation? This may require consideration of whether there was a continuing course of conduct.[2]If presented out of time, would it be just and equitable to extend time? Direct discrimination because of race[3]Did the Respondent subject the Claimant to the following treatment?a. Failure to allocate him to the Transport for London role upon appointment. The comparator is Ms Emily Golder, white.b.20 January 2022, Mr Wilson conducted a performance review induction meeting without consideration for the Claimant’s development plan requirements, commitments and preferences. Comparators: Ms Golder, hypothetical.c.3 March 2022, Mr Wilson told the Clamant that he would block his part time work request. Comparators: hypothetical, other inspectors (Keith Atkinson, Ian MacDermott ‘amongst other know to the first respondent’[4]Was that treatment less favourable than received by a comparator or hypothetical comparator?[5]If so, was this because of the Claimant’s race? Harassment related to race[6]Did the Respondent engage in conduct as follows:a. Mr Wilson feigned ignorance of the Claimant’s preference for the Transport for London vacancy and breached the Civil Service Code in respect of fair appointment according to merit, based on location and preferences;b.20 January 2022, Mr Wilson conducted a performance review induction meeting without consideration for the Claimant’s development plan requirements, commitments and preferences and failed to give him a decision on his informal grievance about his preference for Transport for London;c.3 March 2022, Mr Wilson told the Clamant that he would block his part time work request. He accused the Claimant of being late to a meeting and for sharing a level crossing order with the team administrator, saying that the Claimant should be careful not to go around acting like he runs things after two minutes;d.7 March 2022, in an email, Mr Wilson said that the Claimant had “not been entirely honest with me”.e.21 March 2022, Mr Wilson fabricated a Training Needs Assessment for the Claimant, without his input and whilst he was off sick;f. From 11 May 2022, suspending the Claimant from work without pay;g.1 July 2022, Mr Wilson and Mr Farrell deliberately produced inaccurate records to support a recommendation that the Claimant be dismissed. If so, was it unwanted?[8]If so, was it related to race? The Claimant feels he was treated differently to the way that a hypothetical white comparator would have been treated and will rely on this to infer that the conduct was related to race.[9]If so, did the conduct have the purpose or (taking into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect), the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? Victimisation[10]Did the Claimant do a protected act as follows?a. Orally to Mr Wilson on 5 January 2022 and 7 January 2022 about the allocation of role;b.23 February 2022 and 28 February 2022, in training course feedback about discriminatory comments made by Mr Atkinson and Mr Darling;c.3 March 2022, orally to Mr Wilson, about the discriminatory comments made by Mr Atkinson;d.8 March 2022, grievance and supporting documents sent on 15, 16 and 23 March 2022;e.4 April 2022, first Employment Tribunal claim.f.10 May 2022, email sent by the Claimant to Mr Farrellg.15 July 2022, the second Employment Tribunal claim.h.24 May 2022, the whistleblowing grievance sent to Ms Thornhill and Mr Prosser.[11]Did the Respondent subject the Claimant to any detriments as follows:a.20 January 2022, failed to agree to appoint the Claimant to the Transport for London role;b.7 March 2022, Mr Wilson said that he would block the Claimant’s request to work part time;c.4 March 2022 and 7 March 2022, Mr Wilson sent emails about the Claimant’s probation period which threatened his employment;d. From 10 May 2022, failed to pay the Claimant;e.12 July 2022, dismissed the Claimant;f.29 July 2022, complained to the police that the Claimant had committed theft of its property.g.3 February 2023 supplied a reference to a prospective employer, the City of Westminster, by giving negative and inaccurate information about his employment and that the Claimant remains unemployed as a direct consequence.[12]If so, was it because of a protected act? Automatic unfair dismissal[13]Did the Claimant disclose information which he reasonably believed tended to show a relevant breach of a legal obligation and/or health and safety in his email to Ms Thornhill and Mr Prosser, including its attachments.[14]If so, did the Claimant have a reasonable belief that it was in the public interest?[15]Was the sole or principal reason for dismissal the fact that he had made a protected disclosure?[16]Was the sole or principal reason for dismissal the fact that the Claimant had asserted a statutory right to pay from 11 May 2022?[17]Was the sole or principal reason for dismissal the fact that the Claimant had asserted a statutory right to request flexible working? Was the Claimant a disabled person in accordance with the Equality Act 2010 (“EQA”) at all relevant times because of the mental impairment of chronic anxiety and/or the physical impairment of essential hypertension? Unfavourable treatment because of something arising in consequence of disability[18]Did the Respondent treat the Claimant unfavourably in the following way?a. Sending him home on 10 May without offering a safe way of working;b. Imposing unpaid leave without notice or the Claimant’s consent;c.11 May 2022, Ms Rosolia accused the Claimant of being absent without leave.[19]If so was it because of something arising in consequence of disability? The Claimant says that the “something” was the Claimant’s inability to undertake his normal duties.[20]If so, has the Respondent shown that the unfavourable treatment was a proportionate means of achieving a legitimate aim.[21]Alternatively, has the Respondent shown that it did not know, and could not reasonably have been expected to know, that the Claimant had the disability? Reasonable adjustments[22]Did the Respondent not know and could it not reasonably have been expected to know that the Claimant was a disabled person?[23]Did the Respondent apply a provision, criterion or practice (PCP) of requiring employees to undertake the full duties of their substantive role?[24]If so, did any such PCP put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that he could not do so due to his health?[25]If so, did the Respondent know or could it reasonably have been expected to know the Claimant was likely to be placed at any such disadvantage?[26]If so, were there steps that were not taken that could have been taken by the Respondent to avoid such disadvantage? The Claimant says that he should have been given amended duties. Unauthorised deductions/Breach of Contract[27]Was the Claimant contractually entitled to be paid wages from 11 May 2022? The Claimant relies on the express term of the contract relating to pay and contractual benefits. If so, to what such should have been paid?[29]Was the First Respondent entitled to dismiss without notice? If so, was the amount he received correct?[1]The Tribunal has had to consider and decide two applications for costs – one from the Claimant and one from the Respondent. As the Claimant’s application was the first in time, the Tribunal considers that application first. Claimant’s costs application[2]The Claimant makes an application for a wasted costs order or for a preparation time order. This was first made orally to the Tribunal during the Final Hearing. At that point, the Tribunal told the Claimant that his application would be considered at the conclusion of the case.[3]The basis of the Claimant’s application is that the Respondent unreasonably objected to his inclusion of certain documents in the bundle which was being prepared for the Final Hearing. As a result, he claims he had to prepare his own bundle which was time consuming and costly. He seeks an order that the Respondent (preparation time order) or its legal representatives (wasted costs) should reimburse him for his time and his expenditure.[4]Employment Judge Russell had set out various directions about the preparation of the trial bundle for the Final Hearing. She directed that by 25 July 2023, the First Respondent was to provide the Claimant with a clear, indexed and paginated draft copy of the bundle “containing all the relevant documents which any party wishes to be included”.[5]She directed that by 6 September 2023, the Claimant should notify the First Respondent of any further relevant documents to be included on his behalf. She added that if there was any dispute as to the admissibility of a document, the parties should include them in the bundle, behind a separate divider but sequentially numbered from the main bundle. The party seeking to include the document was responsible for providing sufficient copies for the Tribunal. Admissibility would be decided at the Final Hearing.[6]Employment Judge Russell was recognising the potential for there to be disputes about the admissibility of certain documents. She was providing a mechanism whereby such disputes would be resolved. As we read her Order, she was directing that relevant documents were to be included by the Respondent (our emphasis). If there was a dispute about the relevance of documents (such that one party reasonably maintained that potential documents were not to be included because they were irrelevant), then the cost of including the additional documents in a supplementary bundle should be borne by the party seeking their inclusion.[7]As a result, the starting point for the subject matter of the Claimant’s application is that the further disputed documents he wanted included should be included at his own expense, rather than the Respondent’s expense. If, however, he can show that these documents were clearly and obviously relevant, such that it was unreasonable for the Respondent to object to their inclusion, there is a potential basis for making a preparation time order against the Respondent for unreasonably putting the Claimant to unnecessary expense and inconvenience.[8]The Claimant’s position is that the Respondent’s refusal to include his documents was unreasonable; and that as a result of the Respondent’s unreasonable stance the final hearing bundle was not completed by 4 October 2023 as directed. Even by 21 March 2024 the bundle was not complete. As a result of the Respondent being five and a half months late in including these documents, the Claimant had to produce his own supplementary bundle. He says that this took him 40 additional hours and cost £500 in copying charges. He has not produced a breakdown of how the figure of 40 hours has been arrived at; nor has he produced any receipts evidencing £500 in copying charges.[9]The Respondent’s position is that there was only one document that it initially decided not to include in the Tribunal bundle. This was the statement of Victoria Rosolia produced for separate proceedings addressing separate issues. At the Final Hearing, the Claimant chose not to cross examine her on the document and it was not specifically relied upon by the Claimant in any event. In the course of the argument at this costs hearing, the Respondent’s counsel took the Tribunal through the chronology of correspondence between the parties about the contents of the bundle for the Final Hearing. At points in this correspondence, it appears that the Claimant accused the Respondent’s solicitor of corruption and of perverting the course of justice. It is not necessary for the Tribunal to set out the detailed chronology.[10]The Tribunal accepts that on 13 November 2023, following a series of intemperate exchanges between the Claimant and the Respondent’s solicitor, the Claimant took the initiative to prepare his own supplementary bundle containing 13 items, including the statement of Victoria Rosolia. It comprised 30 pages. With some slight modifications, the Claimant continued to insist that the additional pages should be included in evidence. The Claimant’s witness statement was then prepared and statements were exchanged in accordance with the Tribunal’s timetable at a point where there was no single agreed bundle of evidence.[11]It appears that in March 2024, the Respondent decided to consolidate the various additional bundles on which the Claimant was relying with the original bundle prepared by the Respondent so as to include the further documents requested by the Claimant. It prepared a further composite bundle of documents. It revised the original page numbers indicating in a revised index the original and new page numbers. This meant that cross references to page numbers in the bundle in the Claimant’s witness statement were now inaccurate. However, in addition to updating the cross references in its own witness statements, the Respondent chose to update the cross references in the Claimant’s witness statements so that they now corresponded to the composite bundle of documents.[12]The Tribunal has the jurisdiction to decide whether to make a preparation time order where it considers that a party or that party’s representative has acted unreasonably in the way the proceedings have been conducted (Rule 76(1)(a) ET Rules 2013). In that event, it must go on to decide whether to exercise the discretion in the particular circumstances.[13]The Tribunal may consider whether to make a wasted costs order where the Respondent’s solicitor has acted unreasonably, improperly or negligently.[14]The Tribunal does not consider that it would be appropriate to make a wasted costs order against the Respondent’s solicitor. The Claimant has not established that the Respondent’s solicitor has acted unreasonably improperly or negligently. It would not be just to require the Respondent’s representative to show cause why it should not compensate the Claimant. Further, it would not be appropriate to make a preparation time order. The Respondent’s conduct in relation to the preparation of a Final Hearing bundle does not amount to unreasonable conduct, for the following reasons:a. There is inevitable expense and inconvenience on both sides in preparing for a Final Hearing, particularly where the factual and legal issues were as complicated as they were in the present case.b. Here, Employment Judge Russell’s order did not require that the Respondent agree to include every document in the Final Hearing bundle which the Claimant asserted to be relevant. Her order anticipated that documents that the Claimant maintained were relevant but which the Respondent reasonably considered to be irrelevant could be included, but at the Claimant’s expense and inconvenience.c. The burden is on the Claimant to show that the stance adopted by the Respondent in correspondence about documents was an unreasonable one. He has failed to do so. It appears that the Respondent’s objection to the inclusion of certain documents was reasonable - they concerned other litigation, rather than the current litigation, or otherwise reasonably appeared to be irrelevant. In any event, the Respondent did subsequently accept they should be included and updated the Claimant’s cross references in his witness statement to reflect the new pagination.[15]Rather it appears that it was the Claimant who was using intemperate language in speaking about the Respondent’s solicitor in the course of the correspondence. The reasonableness of the other party to litigation is a factor to consider when deciding whether to exercise any discretion to make a costs order in their favour, even if the Tribunal’s jurisdiction to do so has been engaged.[16]It is unfortunate that there appears to have been a breakdown in co-operation between the parties over the issue of the preparation of a trial bundle with the result that the Claimant chose not only to produce his own bundle but also to make copies of that bundle months before a paper copy was required for the Tribunal Panel conducting the Final Hearing. He did not check with the Respondent before incurring the time and expense of doing so. That decision resulting from the breakdown in cooperation may have put the Claimant to additional expense and inconvenience. However, that decision appears to have been significantly impacted by the intemperate language and therefore unreasonable attitude adopted by the Claimant during the course of the correspondence.[17]For all these reasons, the Claimant’s preparation time order and wasted costs order applications are refused. The Respondent’s costs applications[18]The First Respondent has made a lengthy written application for costs, spanning 14 pages. The costs application is not limited to the costs of contesting any particular issue, or from any particular point in time. Rather the Respondent is seeking the entirety of its costs, as set out in its Schedule of Costs. These total £108,591.50 plus VAT. Whilst a breakdown has been provided by fee earner, no breakdown has been provided based on the dates when the work was carried out.[19]If the Tribunal has jurisdiction to make a costs order and decides to exercise its discretion to do so, it may order costs in a specified amount, not exceeding £20,000, or may order a detailed assessment (Rule 78(1)(a) ET Rules 2013). The Respondent’s application makes clear that “the sum claimed is in excess of £20,000” and as a result, “the Respondents seek detailed assessment by the Tribunal of the sum claimed”.[20]The Respondent advances several distinct bases for its argument that the Claimant should be subject to a costs order:a. Firstly, the Respondent notes that a deposit order was made in relation to the complaints of unauthorised deduction of wages and of unfair dismissal. It argues that these complaints were decided against the Claimant for substantially the reasons given in the deposit order. Therefore, by reason of Rule 39(5)(a), the Claimant should be deemed to have acted unreasonably in pursuing those specific allegations or arguments for the purpose of Rule 76, unless the contrary is shown.b. Secondly, the Respondent points to the intemperate language that the Claimant has chosen to use in correspondence with the Respondent’s solicitor, which the Respondent characterises as vexatious, abusive or otherwise unreasonable conduct.c. Thirdly, the Respondent notes the number of iterations of this case in terms of the length of the list of issues and the seriousness of the issues. It argues that the allegations have “multiplied like topsy the longer the case has gone on”.d. Fourthly, the Respondent argues that the Tribunal found that the Claimant was lying in the way that he gave his evidence.e. Fifthly, the Respondent points to the Claimant’s failure on the remaining issues. It argues that it was unreasonable for the Claimant to pursue those other issues. Deposit order[21]The consequences of losing on a complaint which is subject to a deposit order are detailed within Rules 39(5) and 39(6) of the Employment Tribunal Rules 2013: “(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order-(a) The paying party shall be treated as having acted unreasonably in pursuing the specific allegation or argument for the purposes of rule 76, unless the contrary is shown; and(b) The deposit shall be paid to the other party (or, if there is more than one, to the other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph 5(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”[22]The Tribunal made a deposit order in relation to two of the Claimant’s complaints - the unauthorised deduction of wages and the unfair dismissal complaint. The Tribunal’s reasons given for each were as follows: Unfair dismissal – “I have carefully considered the information relied upon by the Claimant as amounting to a protected disclosure (namely his email of 24 May 2022 and its attachments). I am satisfied that the Claimant has little reasonable prospect of showing that he disclosed information in these documents. Even if he does, then I conclude that when considered objectively by references to the circumstances of the Claimant, he has little reasonable prospect of successfully showing either that he reasonably believed that such information was in the public interest or that it tended to show a relevant breach.” Unauthorised deduction of wages – “[the Claimant’s case was] that, in short, the Claimant was willing and able to return to work if reasonable adjustments were made, the Respondent refused to do so therefore the Claimant was unable to return to work and was not paid. Whilst the lost pay may be a remedy for a successful failure to make reasonable adjustments, the contractual entitlement to pay is conditional upon performance of the contracted job. In the circumstances, I am satisfied that the Claimant has little reasonable prospect of establishing a contractual right to pay as a matter of law.”[23]The reason why the Claimant lost his automatic unfair dismissal claim was for the same reason as identified by Employment Judge Russell. The Tribunal did not accept that any of the alleged protected disclosures amounted in law to protected disclosures. The reason why the Claimant lost his claim for unauthorised deduction of wages was again for the same reason as identified by Employment Judge Russell. The Claimant was not willing to carry out his contracted duties and this was why he was not paid.[24]In accordance with Rule 39(5), the Claimant should be treated as having acted unreasonably in pursuing this allegation unless the contrary is shown. The Claimant alleges that he has shown the contrary. He points to documents that were disclosed after the deposit order was made and paid, which he says vindicated his decision to proceed with these allegations. He points to the following documents:(a) The disclosure of an email dated 22 March 2022 from Jo Napper (HR Business Partner) to Donald Wilson and Tom Wake stating “May I suggest that we keep declarable email comms to the minimum? Happy to chat as needed on this” [833].(b) An email exchange between Tom Wake and Donald Wilson in early March 2022 with the subject Adrian Ikeji, started by Donald Wilson writing as follows on 4 March: “I think we need a chat next week Tom! If he’s serious, and he’s not the type to joke, I see little point in training him up just for him to leave. I don’t want a part-timer or load of pointless PPCF form filling! Yesterday I hauled him in over his lateness habit and other matters. He is in a probationary period. Have a good weekend” [777] The response to this from Tom Wake on 7 March 2022 was as follows: “Morning Don Have you spoken to HR? I think you need to find out what his contract says and what grounds there might be for dismissal/failure of probation. Likewise did he sign a training contract and how enforceable is that? Happy to speak today” [778][25]The Claimant also says that the evidence on which he wanted to rely at the Final Hearing could not be tested because the Respondent chose not to call the HR Business Partner.[26]We find that the Claimant has not shown to the contrary by referring to these particular documents. They do not provide evidence countering the points identified by EJ Russell which formed the basis of her deposit order.[27]Where Tribunal finds that a party has acted unreasonably in bringing a particular allegation, “the Tribunal may make a costs order or a preparation time order and shall consider whether to do so” (Rule 76(1)). This section requires the Tribunal to consider whether to exercise its discretion to make a costs order where it finds that there has been unreasonable conduct.[28]The Tribunal considers it would be appropriate to exercise its discretion to make a costs order in relation to the issues on which a deposit order was made. The Claimant has not pointed to any persuasive factors tending against exercising the discretion to make a costs order.[29]The next issue is to identify the proportion of the total costs incurred by the Respondent that were wholly or mainly attributable to the two complaints that were the subject of the deposit orders. The Respondents argue that the Tribunal should take a broad-brush approach estimating the proportion of the total issues covered by the complaints subject to the deposit order.[30]The Tribunal considers that the appropriate approach to take to the costs attributable to the two issues the subject of the deposit order is to ask to what extent the Respondent’s costs have been increased as a result of the Respondent having to deal with those two issues on their merits rather than them being withdrawn by the Claimant following the outcome of the deposit application. The onus ought to be on the Respondent to indicate at least in broad terms the additional costs that have been incurred in arguing those two issues from 1 June 2023 onwards. If there is doubt as to what those costs have been, then the Claimant should be given the benefit of the doubt. With the quantification issue so framed, the Tribunal estimates this to be no more than £1,000. Intemperate language - Vexatious, abusive and unreasonable behaviour in correspondence[31]The manner in which the Claimant conducted himself in correspondence is clearly abusive. By way of example, on 30 March 2023, the Claimant wrote to Respondent “stop this charade and send me a copy of the updated bundle containing the documents forthwith”. On 13 August 2023, he accused the Respondent of improper conduct and deliberately concealing documents. He also accused the Respondent of misleading Employment Judge Russell and acting in bad faith. On 19 August 2023, he accused the Respondents of perverting the course of justice. On 6 October 2023, he claimed that the Respondent had not complied with Tribunal orders. The latter in itself was not vexatious, abusive or unreasonable. What was abusive was to accuse them of impropriety and corruption without providing any plausible evidence that this had taken place. On 17 October 2023, he accused the Respondent of deleting documents to cover up their acts in the hope of prejudicing the determination of the dispute. On 26 October 2023 he made a further reference to perverting the course of justice. On 27 October 2023 he said: “Your bogus assertion that there has been no delay is ill advised, but consistent with your reprehensible conduct and psychological abuse”.[32]The Tribunal has reviewed the entirety of the email correspondence in which these remarks were made. There is no legitimate basis whatsoever for repeatedly and consistently communicating in those terms. It does amount to vexatious abusive and unreasonable conduct. It is a sufficient basis for engaging the Tribunal’s jurisdiction to make a costs order.[33]This correspondence appears to have continued for a period of over seven months between 30 March 2023 and 4 November 2023. The Tribunal infers that this intemperate language would have increased the costs of reviewing the correspondence as well as discussing it with the Respondent’s witnesses and then responding where appropriate. Whilst no figures have been provided by the Respondent and giving the Claimant the benefit of the doubt on matters of quantification, the Tribunal takes the view that this additional work would have been at least a further 20 hours over this period of time. Given the solicitors hourly rate, this would have been an increase of about £4000 plus VAT.[34]Relevant to whether to exercise the Tribunal’s discretion to make a costs order is the impact that the Claimant’s abusive correspondence had on particular individuals. Ms Rosolia states (and the Tribunal accepts) that the Claimant’s communications and tone were having a substantial impact on her mental health and well-being.[35]The Tribunal finds that it should exercise its discretion to make a costs order for the Claimant’s vexatious abusive and unreasonable conduct. Number of iterations of the case[36]Whilst the Claimant has added to the list of issues at various points by way of issuing a further claim or making an application for an amendment, the Tribunal does not consider that this is unreasonable conduct. It is always open to any litigant to make an amendment application or to issue further proceedings if further events occur which are alleged to amount to discrimination. Here an Employment Judge was persuaded to grant the Claimant’s amendment application because on the face of it, the allegations merited resolution at the Final Hearing. The mere making of amendment applications did not amount to unreasonable conduct. Bringing a complaint against Mr Prosser[37]The basis of this application for costs is that it was unreasonable conduct to include Mr Prosser as a named Respondent. He, as Employment Judge Russell found, had only been included as a named Respondent because he was one of two recipients of an alleged protected disclosure. He was not otherwise criticised in the second claim. The Respondent took no issue about Mr Prosser’s inclusion in the original Response. In the weeks leading up to the hearing before Employment Judge Russell on 4 April 2023, the Claimant sought to add a complaint specifically against Mr Prosser. This was resisted and was ultimately refused by Employment Judge Russell. In the meantime, the Respondent had focused on the absence of any original complaint against Mr Prosser for the first time and had asked for him to be removed as a Respondent.[38]The Tribunal has decided that it was not unreasonable conduct for a litigant in person to include Mr Prosser’s name as a named Respondent, even though there was no specific original allegation against him. The Claimant did have a complaint about how Mr Prosser had treated him, but this proposed complaint was not added by way of amendment. At that point, the Respondent applied for him to be removed as a Respondent and that application was granted. A key purpose in holding any Preliminary Hearing is to specifically identify the complaints which are to be determined at the Final Hearing. That is what was done at this particular Preliminary Hearing. Merely because the Claimant had made a mistake in his original second claim in including Mr Prosser does not render it unreasonable for Mr Prosser to have been named as a Respondent.[39]Even if it had been unreasonable, it would not have been appropriate to exercise the Tribunal’s discretion to make a costs order in this regard. The Respondent has not identified particular additional costs which have been prompted by that mistake. Claimant found to be lying[40]The Tribunal does not agree with the Respondent’s characterisation of the way that the Claimant gave his evidence. Specifically, we do not find that he deliberately lied to the Tribunal as the Respondent alleges. Rather he has persuaded himself in various respects that events occurred in a manner which is different from what the Tribunal has found. The most striking example is at paragraph 310 where we found that his self-help solutions discovered on the internet could not reasonably be described as private cognitive behavioural therapy. This was an embellishment of the fact that he was engaged in self-help therapy rather than a lie about having therapy when no therapy had taken place. We therefore do not consider that this potential basis for a costs order has been made out. Lack of merit in remaining claims[41]The Respondent sought a deposit order in relation to each of the complaints which were determined at the Final Hearing. Employment Judge Russell decided not to make a deposit order in relation to direct race discrimination issues 3.1, 3.3 and 3.4; on all the harassment issues and on the victimisation issues.[42]However, on Thursday 21 March 2024, only two full working days before the start of the Final Hearing, the Respondent sent a cost warning letter to the Claimant. The letter warned that it would be seeking a costs order in relation to the claims that were not the subject of a deposit order [206]. It explained that the basis was that these claims were claims that the Claimant ought reasonably to have known never had reasonable prospects of success. It added: “The common theme among these allegations is that our client has had a fair and legitimate reason for acting as it did, which can be supported by documentary and witness evidence, whilst you will have to demonstrate not only that all this evidence is effectively false, but also that your race was the motivating factor behind these allegations”.[43]The Respondent also explained why the various disability discrimination claims would fail. Entirely unrealistically, the letter concluded by suggesting that “if you have not [taken legal advice] already, we would respectfully encourage you to take advice ahead of the final hearing and consider whether you wish to continue advancing these claims”.[44]Even if a reputable law firm had been contacted the following day, the Tribunal considers it most unlikely that they would have been able and willing to review the evidence and provide a considered advice on merits before the start of the Final Hearing two working days later. In any event, the Respondent was not making any settlement offer on a commercial basis to save itself the costs of the Final Hearing. There was therefore no offer of substance for legal advice to consider. In any event, at that point, the Tribunal infers that the Claimant would have been fully engaged in preparing for the Final Hearing. He cannot be reasonably criticised for failing to take up their suggestion of seeking legal advice at that point; or failing to engage with the substance of the costs warning letter.[45]The Claimant had previously engaged lawyers to assist him with earlier stages of the litigation. No detailed analysis has been provided by the Respondents about the extent of their involvement. However, it appears that the Claimant has been a litigant in person at least since the point when witness statements were exchanged. As a result, he did not retain lawyers at a point when a sufficiently clear picture of the evidential landscape and the resulting prospects of success might have been apparent.[46]At no point did the costs warning letter promise the Claimant that if he withdrew the complaints in their entirety, the Respondents would not seek to recover their costs incurred to date – either in relation to the complaints that were subject to the deposit order, or the entirety of the claims. There was therefore no concession offered in the costs warning letter as an incentive for him to drop the Tribunal claim.[47]The Tribunal is left with the clear impression that this letter was written as a litigation tactic to support a costs argument once liability had been decided, rather than in a genuine attempt to bring the litigation to an end.[48]No good reason has been given for why this letter was not sent far earlier if it was genuinely intended to save costs and bring the litigation to a speedy conclusion. Reference to the Respondent’s intention to seek costs in the Respondent’s Response is not the same as a detailed costs warning letter. Therefore, the Tribunal does not accept that the Claimant has behaved unreasonably in failing to respond to the costs warning letter by withdrawing all his complaints at that stage.[49]The Respondents’ application to be awarded the costs of defending the entirety of the complaints is not necessarily dependent on the unreasonableness of the Claimant’s response to the costs warning letter. However, the fact that no relevant costs warning letter was sent before that very late stage is an important consideration (Rogers v Dorothy Barley School UKEAT/0012/12 (14 March 2012)). So is the outcome of the deposit order application. Given that the Respondent failed in its attempt to obtain a deposit order in relation to the remainder of the issues, the Claimant (as a litigant in person from mid-2023 onwards) could be forgiven for thinking that there was at least sufficient merit in the remainder of his claims to avoid a costs sanction.[50]The Tribunal’s standard approach is not to make a costs order against a party in relation to an issue merely because the party has lost on that issue. There must be some particular feature which indicates that pursuing the claim or part of the claim was unreasonable. The Tribunal has carefully reviewed the specific paragraphs of the Judgment referred to in paragraph 14 of the Respondent’s written costs application. It would be disproportionate to address each costs in turn. Most of the points made reflect the fact that the Tribunal preferred the evidence of the Respondent’s witnesses to that of the Claimant. Amount of Respondent’s costs incurred[51]The letter ended “Our client’s costs to date are £45,663.49 and they will incur approximately £15,000 in costs for the remainder of this case. Our client intends to seek the full value of these costs from you and you are encouraged to strongly consider whether you wish to pursue these claims further” [209].[52]Notwithstanding the figure given in this letter, by 23 May 2024, the Claimant’s total costs were £108,591.50 plus VAT. Mr Menzies, counsel for the Respondent, has not explained the discrepancy between the future costs of £15,000 envisaged in the letter of 21 March 2024 and the additional sum of almost £63,000 plus VAT set out in the Respondent’s Costs Schedule. It is not clear to what extent they relate to his own fees as counsel. It is unlikely his fees would account for the majority of this sum, given that by that point his brief fee would have been incurred, two working days before the first day of a seven-day Final Hearing. The anticipated further costs would ordinarily relate to counsel’s daily refreshers for attending the six subsequent hearing days, together with any work necessary arising from the Judgment and attending to the issue of remedy (in the event that the Claimant succeeded to any extent, which the Respondent must have assumed he would not have done, given the tenor of the letter).[53]The reasonableness of the Respondents’ costs is primarily a matter for detailed assessment. However, this stark discrepancy based on the Claimant’s own figures, is a reason to be sceptical as to whether the Respondents’ costs are indeed as high as the Schedule of Costs suggests. The exercise of the Tribunal’s discretion to make a costs order[54]In summary the factual features here which are relevant to whether the Tribunal should exercise its discretion to make a costs order are:a. The Claimant has succeeded in his claim for wrongful dismissal, albeit that he has only received nominal damages.b. The Claimant has lost on two complaints where the Tribunal has made a deposit order and has not shown he has acted reasonably in continuing to pursue those complaints.c. The Claimant has repeatedly acted abusively in correspondence and in the way he has conducted himself towards the Respondent’s witnesses.d. The Tribunal has found that the Claimant has a tendency to embellish matters in an attempt to make points more compelling (paragraph 310) but not that he has lied.e. The total costs said to have been incurred by the Respondents as detailed in its Schedule is not consistent with the sum set out in its costs warning letter. The Claimant’s means[55]Rule 84 provides as follows: “In deciding whether to make a costs, preparation time or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or where a wasted costs order is made, the representatives’) ability to pay”[56]As part of its costs application, the Respondent applied to the Tribunal for a specific disclosure application in relation to documents disclosing the extent of the Claimant’s assets. The Claimant had refused to provide this when requested in correspondence. The Tribunal had not determined the Respondent’s application before the start of the hearing. The Respondent indicated that it was content to proceed with its costs application, notwithstanding the Claimant’s failure to provide documents confirming the accurate and up to date position. It did not seek an adjournment to a future date after the Respondent’s specific disclosure application had been resolved.[57]The only evidence before the Tribunal as to the Claimant’s means was that provided in answer to the Tribunal’s questions and under cross examination by the Respondent’s counsel. In summary:a. The Claimant stated that he had not received any regular income from employment since the date of his dismissal in July 2022. He said he did one’s day’s work as a polling clerk on 2 May 2024 for which he received a payment of £300.b. He receives £700 a month in rental income from his lodger, which helps him significantly with the mortgage costs.c. He states he is not entitled to benefits given the level of his savings and the equity in his properties.d. He stated that he had around £20,000 to £30,000 in equity in his current residential property.e. His family owned four properties with a total value of around £280,000. He said that the mortgage covered about 75% of the property, leaving a total sum of around £70,000 in equity.[58]So far as his monthly expenditure was concerned, he told the Tribunal that he lived frugally. His child lived abroad. He tended to walk or use public transport. He did not have a car.[59]He was cross examined about his income, equity and savings as well as about his expenditure. He said that the company received about £29,000 in rent from the four properties every year. The fixed assets of the company he accepted were just over £580,000. The company had received an unsecured loan from the Claimant of £165,000 during the year ending August 2023. He was evasive about where he had obtained such funds, other than by saying that he had been working for 25 years and this had accrued over time.[60]So far as his pension plan was concerned, he said that various previous pension plans had been transferred into a single pension plan with Legal & General. He was unable to provide any information as to the amount currently in his pension fund. He explained that he was previously able to afford to be represented by counsel at earlier hearings because he had legal expenses insurance (through his home insurance) which had lapsed. He had crowd funded his legal representation in other cases with funds provided by family members.[61]Despite not providing any documents as to his finances, the Claimant’s position is that he has very limited means and would not be able to afford a costs order. The Respondent’s position is that he has (through his company) declared assets of £580,000 which pays him an annual income of almost £30,000. In addition, he has monthly rent paid by his current lodger.[62]Whilst it has not proved possible for the Tribunal to reach a clear view as to the full extent of his income and his assets, we are persuaded that he does have the financial means to satisfy the level of costs order that we have decided to make in this case. Whilst our order does not provide a period for payment, it is always open to agree a specific period over which this costs order should be discharged. The amount of a costs order[63]The Tribunal is given a broad discretion to determine the amount of any costs order where the sum to be paid does not exceed £20,000, taking into account the Claimant’s means. In Yerrakalva v Barnsley MBC [2012] ICR 420, Mummery LJ said: “41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had … The main thrust of the passages cited above from my judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections [such as ‘nature’; ‘gravity’ and ‘effect’] and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.”[64]In Sud v Ealing LBC [2013] ICR D39, the Court of Appeal held that when making a decision as to costs, a tribunal needed to consider whether the claimant’s conduct of the proceedings was unreasonable and, if so, it was necessary to identify the particular unreasonable conduct, along with its effect. This process did not entail a detailed or minute assessment. Instead, the tribunal should adopt a broad-brush approach, against the background of all the relevant circumstances.[65]In circumstances where the Respondent has not been as helpful as it might have been in providing a breakdown of its costs in relation to each of the different cost bases it has advanced, the Tribunal must do the best it can to decide on a fair figure to reflect the matters that influence the outcome.[66]The Tribunal concludes that a fair figure for costs is £1000 plus VAT in relation to the consequences of failing on the issues covered by the deposit order and £4000 plus VAT on vexatious conduct in the way he conducted the correspondence for a period of months. This is a cumulative sum of £5000 plus VAT, which is a total of £6,000.[1]The first ground on which the Claimant seeks to challenge the Tribunal’s decisions is that the Tribunal “overlook[ed] germane and pivotal documentary evidence before it, that supports my application”, thereby wrongly concluding that he had acted vexatiously and abusively in his correspondence with the Respondent’s solicitors. He argues that the Tribunal was wrong to suggest that he did not rely on Victoria Rosolia’s statement during the Final Hearing. He says that paragraph 170 of his witness statement mentions this statement and shows why it is relevant.[2]Far from explaining the relevance, this paragraph in the Claimant’s witness statement makes it clear that Ms Rosolia’s witness statement relates to a different dispute in another employment tribunal claim which is still live. The reconsideration application does not show why there is any error in the statement in the Tribunal’s reasons he specifically challenges, namely that “the Claimant chose not to cross examine her on the document and it was not specifically relied upon by the Claimant in any event”. The Claimant has no real prospect of establishing that the original costs decision should be varied or revoked on this basis.[3]The Claimant contends that the Tribunal completely overlooked the Respondent’s failure to comply with paragraph 5.3 of Employment Judge Russell’s order. That was Case Numbers: 3201367/2022 & 3204202/2022 the part of her order specifying the deadline for producing a bundle of documents. This issue was reviewed at paragraphs 8 and 10 of the Cost Reasons. The Tribunal clearly had in mind that the Claimant chose to prepare his own bundle as a result. It was not overlooked.[4]Further, the Tribunal did read the entire correspondence bundle so as to gauge whether the Claimant’s contributions to that correspondence should be found to be vexatious and abusive; and to fully understand the issues being raised in correspondence. As a result, the Tribunal did not overlook the Claimant’s communications with the Tribunal.[5]Sufficient reasons have been given to enable the Claimant to know why his applications for a preparation time order or a wasted costs order was unsuccessful. This was explained at paragraphs 2 to 17 of the Written Reasons. It is the Respondent’s costs application that is discussed at paragraph 18 onwards. The italicised and underlined text relates to an aspect of the Tribunal’s consideration of the Respondent’s costs application, not the Claimant’s applications. The Tribunal’s characterisation of the Respondent’s costs warning letter on 21 March 2024 as a litigation tactic did not require it to reach the same conclusion in relation to the preparation of a consolidated bundle on 24 March 2024. The Tribunal dealt with the consolidation bundle in paragraph 11 of the Costs Reasons.[6]Even if the Tribunal was incorrect to state that the Respondent updated themselves the cross references to new pagination in the consolidated bundle – as the Claimant asserts, and on which these Reconsideration Reasons do not comment – this does not indicate that there is a real prospect that the Tribunal’s costs conclusions will be varied or revoked.[7]The remainder of the matters raised by the Claimant under point 2 do not indicate that there is a real prospect that the Tribunal’s costs conclusions will be varied or revoked.[8]So far as the Claimant’s third point is concerned, about his ability to pay, the Tribunal had to assess this as best it could in circumstances where the Claimant had deliberately chosen not to provide the Tribunal with detailed information about his current financial means. This is discussed in paragraphs 55 to 62 of the Costs Reasons. It is not for the Tribunal to provide a timescale for paying such a costs order in instalments, particularly where he had not applied for this himself.[9]For these Reasons, the Claimant’s application that the Tribunal should reconsider its costs judgment is dismissed.[1]The Hearing that took place on 29 May 2024 was listed to determine the Remedy that should be awarded to the Claimant for succeeding with his complaint of wrongful dismissal. Oral reasons were given following submissions by both parties. The Claimant requested written reasons for the Tribunal’s decision.[2]In its liability decision, the Tribunal decided that Claimant’s claim for unauthorised deduction of wages was unsuccessful. There is therefore no remedy to be awarded for unauthorised deduction of wages.
Legal principles
[3]Whilst both are contractual claims, the key distinction between these two claims is important. A claim for unauthorised deduction from wages presupposes that the contract of employment remains in existence during the period over which wages are claimed. This is because there is no liability to pay wages once the contract has been ended. By contrast, a claim for wrongful dismissal is a claim for damages for the wages that would have been paid from the point at which the Claimant is notified that they are being dismissed. It is limited to the period of notice pay. This is because the “least burdensome” rule applies, as explained in Cockburn v Alexander (1848) 6 CB 791: “the question upon a breach of the contract is, what is the condition in which the plaintiffs would be if the defendant had performed the contract. Generally speaking, where there are several ways in which the contract might be performed, that mode is adopted which is the least profitable to the plaintiff, and the least burthensome to the defendant.”[4]The principle was confirmed as applying to employment contracts by the Supreme Court in Geys v Societe Generale [2013] ICR 117. At paragraph 64, Lord Wilson JSC referred to the: “application of the “least burdensome” principle, namely that damages should reflect only the losses sustained by the employer’s decision to repudiate the contract unlawfully rather than by his having hypothetically proceeded, in the manner least profitable to the plaintiff, and the least burthensome to the defendant, to terminate the contract lawfully: see Cockburn v Alexander (1848) 6 CB 791, 814 (Maule J), and McGregor on Damages, 18th ed (2009), para 8-093. So, where under the terms of the contract it had been open to the wrongfully repudiating employer to have taken a course which would have terminated the contract quickly as well as lawfully, the damages will be small.”[5]If an employee is given their contractual notice and their employment continues until the end of the notice period, then a failure to pay the sum to which they are entitled during the remainder of their employment (albeit serving out their notice) is a claim for unauthorised deduction of wages. That is not the present case. If (as here) an employee is not given their contractual notice but their employment is terminated before the end of the notice period, then (unless the employee is in fundamental breach of contract entitling the employer to summarily dismiss the employee, or there is a PILON (payment in lieu of notice) clause), the dismissal is a wrongful dismissal. A wrongful dismissal claim is not a claim for unauthorised deduction of wages. Rather, the employee is entitled to receive, by way of damages for breach of contract, the net pay that they would have received during their notice period had they been given their full contractual notice. Claimant’s position at this Remedy Hearing[6]The Claimant seeks to rely on the Supreme Court decision in Geys v Societe Generale [2013] ICR 117 to argue that he never accepted the Respondent’s repudiatory breach of contract in terminating the contract without giving the required contractual notice; and therefore his employment contract never ended. He argues that there is a lacuna in the Tribunal’s findings in its liability decision in that it does not identify a point at which the employment contract ended.[7]Because his employment contract continued, he argues he is entitled to receive as damages a sum equivalent to the pay he would have received from July 2022 until the date on which the Tribunal’s liability decision was sent to the parties, namely 1 May 2024. He argues that this should be compensated at his normal rate of pay, or at least at the rate of statutory sick pay. Respondent’s position at this Remedy Hearing[8]The Respondent’s position is that the contract ended with notification from the employer that he was being dismissed with immediate effect. His remedy is limited to the pay he would have received during his five-week notice period from that date. As he was not ready willing and able to work during the weeks leading up to his dismissal, he would not have been ready willing and able to work during the period of five weeks after he had been given five weeks’ notice of dismissal. Therefore, he would not have been paid during that period and therefore is only entitled to nominal damages because he has suffered no loss.[9]The question for the Tribunal to decide on the wrongful dismissal complaint is when would the Claimant’s contract have ended had it been terminated lawfully, applying the least burdensome rule? It would have been terminated five weeks after the date on which purported notice of termination was given, in accordance with the contractual notice period. The damages to which the Claimant is entitled, by way of breach of contract for wrongful dismissal, are limited to the pay that the Claimant would have received during that five week notice period.[10]Therefore, on the sole issue before the Tribunal Panel at this Remedy Hearing, so far as the wrongful dismissal claim is concerned, it is unnecessary for the Tribunal to decide when the employment contract in fact ended. Furthermore, it would be wrong to do so at this Remedy Hearing, when it was not an issue before the Tribunal for the Tribunal to determine.[11]The wrongful dismissal claim was introduced by way of amendment granted by Employment Judge Russell on 5 April 2023. It was expressed in the following way: “A claim of wrongful dismissal which was raised in the Claimant’s email dated 4 October 2022 but which was not dealt with at the previous hearing. The Claimant’s case is that the contract does not permit termination with pay in lieu of notice and that the amount of pay in lieu of notice was incorrect as he should have been paid gross without deductions for tax and national insurance.”[12]The Claimant’s email dated 4 October 2022 merely stated that he wanted to amend his claim to include a claim for wrongful dismissal under section 86 of the ERA.[13]The date on which the employment contract ended was not identified as a particular issue to be decided at the time, or in the Claimant’s List of Issues or in the Respondent’s List of Issues. No Schedule of Loss was provided by the Claimant claiming a sum for wrongful dismissal beyond the notice period, still less identifying the start and end dates for such a wrongful dismissal claim. The Claimant’s written closing submissions contained the following at paragraph 46, under the heading “The claim of wrongful dismissal”: “I submit that the contractual pay for 5 weeks is £4614.40 NET, which produces a shortfall of £1,649.72 NET owed to me, even if re-engagement is ordered, regardless of what Rosolia goes on to say or do next”[14]It is true that the Closing Submissions went on to say (at paragraph 47): “Nevertheless, it is clear from my appeal [p1444] that it was my wish for the contract to continue and I did not accept the repudiation by the Respondents at any point; the contract was affirmed by me”. This statement in the Claimant’s written closing submissions cannot expand the issues that the Tribunal was otherwise required to determine. Furthermore, he did not refer to the case of Geys v Societe General in his written or oral closing submissions.[15]In any event, if the contract did continue, the Claimant would potentially be entitled to further wages and if these wages were not paid, he would be entitled to complain by way of unauthorised deduction of wages. He would not be entitled to additional damages for wrongful dismissal by way of breach of contract over and above what was received during the notice period.[16]Therefore the wrongful dismissal claim is limited to recovering the pay he would have received had he been given five weeks’ notice of dismissal in the probation review outcome letter received on 13 July 2022. This is not necessarily the same as his contractual pay. As Mr Menzies has argued, if an employee has exhausted their entitlement to contractual sick pay by the time they are given notice and would have remained on sick leave during their notice period, they are not entitled to their contractual pay (Budd v Scotts Co UK [2003] IRLR 145). In the same way, if an employee would not have been ready willing and able to work during their notice pay, they would not be entitled to receive their contractual pay, just as they would not have been paid for similar periods before the date of dismissal.[17]Here the Tribunal has found that Mr Ikeji was not ready willing and able to work in the weeks leading up to his dismissal. Had he been told on 13 July 2022 that his employment would end in five weeks’ time we do not consider that he would have decided to work. He had a pending grievance about the decision to withhold his pay, with a grievance hearing on 19 July 2022 and a grievance outcome letter on 29 July 2022. He then appealed against that outcome on the same day. A grievance appeal hearing was held on 19 August 2022, effectively at the end of his five week notice period. We do not consider that he would have returned to work at any point before his appeal against the decision to withhold his pay had been determined. Therefore, had he been given the correct contractual notice on 13 July 2022, he would not have been ready, willing and able to work at any point during his subsequent five week notice period. He therefore would not have been entitled to any pay or pension and is therefore not entitled to any damages to compensate him for financial loss during his notice period.[18]Furthermore, he was not entitled to statutory sick pay during this period because, as we have already found, he had not communicated to the Respondent that he was still sick and had not evidenced any ongoing sickness with an appropriate fit note. Had he been given contractual notice, we do not find that he would have evidenced ongoing sickness at any point during the five-week period from 13 July 2022.[19]Therefore, the Claimant has suffered no loss and is entitled only to nominal damages for wrongful dismissal. In fact, he received a lump sum of £2964.68 net on 15 August 2012, purportedly as payment in lieu of notice. As a result, he has in fact been overcompensated. REMEDY JUDGMENT The judgment of the Tribunal is that:- The Claimant’s application made under Rule 71 of the Employment Tribunal Rules of Procedure 2013 (the then applicable rules of procedure) for reconsideration of the Remedy Judgment is refused. The Tribunal’s Remedy Judgment is confirmed.
LIST OF ISSUES
LIST OF ISSUES
LIST OF ISSUES
[1]The Tribunal conducted a Remedy Hearing on 29 May 2024.[2]The Claimant’s position at that Remedy Hearing was summarised in paragraph 6 of the Remedy Reasons as follows: “The Claimant seeks to rely on the Supreme Court decision in Geys v Societe Generale [2013] ICR 117 to argue that he never accepted the Respondent’s repudiatory breach of contract in terminating the contract without giving the required contractual notice; and therefore his employment contract never ended. He argues that there is a lacuna in the Tribunal’s findings in its liability decision in that it does not identify a point at which the employment contract ended.”
Legal principles
[3]At the end of the Remedy Hearing, the Tribunal announced its Judgment and gave oral Reasons. The judgment was that the Claimant was entitled to only nominal damages by way of remedy for wrongful dismissal. The Claimant requested written reasons. Although these were finalised the following day, due to an administrative oversight, they were not sent to the parties until 22 November 2024. In the meantime, on 31 May 2024, without waiting for the written reasons, the Claimant applied for reconsideration of the Judgment in a two-page long email. In summary the Claimant’s position was as follows: “the elective theory should have applied and I did not accept the wrongful repudiation or act in any way to accept it, until 1 May 2024. Damages under the contract should be awarded by the Tribunal to me as calculated in my position statement at paragraphs 7 to 8”[4]I decided that there was a reasonable prospect of the original remedy decision being varied or revoked and therefore sent a notice to the parties setting a time limit for a response to the application and listing the application for an in-person hearing.[5]In that notice sent to the parties, I identified the following four issues which arose for decision:a. A. Was it open to the Tribunal, given the complaints pursued by the Claimant (as set out in the pleaded case and itemised in the List of Issues), the statements made in the witness statements and schedules of loss, and the arguments raised by both parties in closing submissions (at the liability and at the remedy hearings), to make a specific finding as to the date on which the Claimant’s employment ended other than 13 July 2022, the date of the Respondent’s notification of summary dismissal?b. B. Is the Claimant legally entitled to ask the Tribunal to reconsider its approach to the date of the termination of his employment on an application for reconsideration of the Tribunal’s remedy judgment, not its liability judgment?c. C. If the answer to the first two points is yes, on the evidence before the Tribunal and in accordance with the legal principles set out in Gunton v Richmond-Upon-Thames London Borough Council [1980] ICR 755 and Geys v Societe Generale London Branch [2012] UKSC 63, by what mechanism and on what date did the Claimant’s employment end?d. D. If the Claimant’s employment ended later than 13 July 2022, what effect, if any, does this have on the remedy that the Claimant is entitled to recover for wrongful dismissal (which is the only remedy decision to which this reconsideration application can directed). This may require consideration of whether a later termination date can affect the damages that are due for wrongful dismissal, and whether the Claimant would have been ready willing and able to work during a later period of notice.[6]At the start of this hearing, the parties agreed that these four issues adequately summarised the points that needed to be addressed given the way in which the Claimant’s reconsideration application was framed. Issue A[7]We do not consider it was open to the Tribunal to make a specific finding as to the date on which the Claimant’s employment ended other than 12 July 2022. We reach this conclusion for two reasons. Firstly, there has already been a judicial finding that the effective date of termination was 12 July 2022. This was set out in the decision of Employment Judge Russell following the interim relief hearing on 24 October 2022. She stated, in paragraph 1, that the effective date of termination was 12 July 2022 and so the application was presented in time. This Judgment and Reasons were sent to the parties on 4 January 2023. Indeed, the Tribunal would have had no jurisdiction to determine an application for interim relief unless the Claim Form had been presented “before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date)” (Section 128(2) Employment Rights Act 1996). Therefore, it was a necessary precondition to the determination of the interim relief application that the Claimant had already been dismissed on a date before 15 July 2022, the date on which the interim relief application was presented.[8]Secondly, the way that the Claimant had put his case during the liability stage of the final hearing was consistent only with his employment having ended on 12 July 2022:a. In his ET1 Claim Form, whilst he had ticked to say that his employment was still continuing, he had answered “12 July 2022” to the question “If your employment has not ended, are you in a period of notice and if so, when will that end?” [81]b. On 1 August 2022 at 4:57pm, the Claimant wrote an email to the Tribunal stating “My claim form (and email to the Tribunal dated 15 July 2022) both include reference to the Unfair Dismissal which took place on 12 July 2022 … the first respondent unilaterally and unequivocally ended the employment on 12 July 2022” [103].c. In the list of issues prepared by the Claimant on 16 August 2022 at paragraph 11.6, he referred to the date of the wrongful termination of his employment as 12 July 2012 [116]d. In his witness statement at paragraph 141, he stated that on 13 July 2022 he appealed the dismissal decision. He added that the date of termination should have been recorded by the Respondents as the end of the notice period, which is 16 August 2022 [WS/31]. This amounts to an assertion that he had been dismissed by 13 July 2022 and that the termination date should have been five weeks later, had he received his contractual notice. The wording of the appeal letter dated 13 July 2022 [1444] implies that he had been dismissed and was seeking to overturn the dismissal by way of appeal. It cannot be read as refusing to accept a repudiatory breach by the Respondent in purporting to terminate the agreement without notice and therefore as an assertion that the contract remains live.e. In cross examination, he was asked about page 94 of the bundle where in his Statement of Remedy he stated that “Employment dates 5/01/22 – to be confirmed (dismissal date of 12/07/22 is proposed by the First Respondent). He had not himself positively asserted an alternative end date for his employment. The Tribunal’s record is that he was asked in cross examination for his own end date of employment and answered 12 July 2022.f. In his written closing submissions at the liability hearing, the Claimant included the following paragraph: “The issue in law is whether my wages were “properly payable” under my contract of employment and as per s13(3) of the Employment Rights Act 1996 (ERA 1996) between the period of 10 May 2022 and the date of dismissal on 13 July 2022 or 12 July 2022 or any other date put forward by the Respondents” It is notable that the Claimant was not positively asserting that the date of his dismissal was a later date than 12 or 13 July 2022. He appeared to be accepting the date as put forward by the Respondents. Issue B[9]This issue is whether the Claimant’s argument that his employment did not end on 12 July 2022 is properly an application to reconsider a conclusion reached in the remedy judgment – or whether this issue had already been decided in the liability judgment.[10]But for the Tribunal’s conclusion in relation to Issue A, we consider it would have been open to the Claimant to ask the Tribunal to reconsider the approach that it took to the date on which the contract ended in this application. This was an issue which was argued by the parties during the course of the remedy hearing. Issue C[11]This issue does not arise for decision, given the Tribunal’s answer on Issue A. The Tribunal has not answered “Yes” to the question asked by Issue A. However, had we needed to consider and determine this issue, we would have concluded that the Claimant’s act of lodging an appeal against his dismissal amounted to an acceptance that he had been dismissed on 12 July 2022 and his contract had come to an end, coupled with an attempt to reverse that decision through the appeal process. In his appeal email on 13 July 2022, he did not state that he was not accepting the Respondent breach and therefore regarded his employment as still continuing. In any event, the act of applying to the Tribunal for interim relief on 15 June 2022 was a further act by the Claimant in which he accepted that his employment had ended. The Tribunal only had jurisdiction to order interim relief if his employment had ended.[12]Therefore, applying the elective theory, his contract had ended on 13 July 2022 by his decision to lodge his appeal or alternatively on 15 July 2022 by applying for interim relief, even if it had not ended on 12 July 2022. Issue D[13]Again, this issue does not arise for decision, given the answer to issue A. However, and in any event, there is a further and fatal reason why the Claimant cannot successfully contend that a later termination date would have increased the damages due for wrongful dismissal.[14]A claim for wrongful dismissal is a claim for breach of contract. The Tribunal’s jurisdiction to make an award for breach of contract is conferred by statutory instrument, specifically the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. Article 3 is worded as follows: 3. Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—(a) the claim is one to which [Section 3(2) Employment Tribunals Act 1996] applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;(b) the claim is not one to which article 5 applies; and(c) the claim arises or is outstanding on the termination of the employee’s employment.[15]If, as the Claimant argues, his employment contract had not ended by the date on which he issued these proceedings, then the claim did not arise nor was it outstanding on the termination of his employment. Therefore, if the Claimant is correct that his employment continued from 13 June 2022 onwards, the Tribunal has no jurisdiction to consider a claim for wrongful dismissal.[16]If we are wrong in relation to the termination date and the Claimant’s employment continued after 13 June 2022, his potential remedy would have been by way of a claim for unauthorised deduction of wages under Section 23 Employment Rights Act 1996. The Claimant’s claim for unauthorised deduction from wages was considered and rejected at paragraph 337 of the Liability Judgment sent to the parties on 1 May 2024. Our decision on that point is not being challenged in this reconsideration application, which relates to the Remedy Judgment decision on wrongful dismissal. In any event, an application for reconsideration must be sent to the Tribunal within 14 days of the date on which the written record, or other written communication of the original decision was sent to the parties (Rule 71 of the then applicable Employment Tribunal Rules of Procedure 2013). This application was made on 31 May 2024 and is therefore substantially out of time.[17]For these reasons, the Claimant’s reconsideration application is refused. Approved by: