Mr C Supiya v Department for Work and Pensions and others: 3206073/2021 and others

EMPLOYMENT TRIBUNALS

Case No 3206073/2021

Between

Mr C SupiyaClaimant

Department for Work and Pensions [First Respondent] Ms P Mulligan [Second Respondent] Mr M Lumsden [Third Respondent] Mr G Walia [Fourth Respondent] Ms G Lander [Fifth Respondent] Heard: East London Hearing Centre (remotely by video)Respondent

Before

Employment Judge S Shore

Members

Mrs S Dengate

Ms P Alford

In person for claimant

Ms K Loraine (instructed by Counsel) for respondent

Date 4 November 2024

JUDGMENT

[1]The Tribunal makes the following decisions regarding the claimant’s claims of harassment relating to disability: 1.1. The claim that in an email dated 17 June 2021 (after the investigatory meeting on 4 June 2021), Ms Lander bullied and harassed the claimant by mocking his vision disabilities and ignoring his request for documents to be provided in point 14 font, fails. 1 of 93 1.2. The claim that Ms Lander ignored the claimant’s disability that his PCS Representative advised her of at the meeting on 4 June 2021 and repeatedly flashed documents on the screen, fails. 1.3. The claim that Ms Lander advised the claimant in the email dated 17 June 2021 to go for IT training instead of simply providing documents in the requested format, fails. Direct Race Discrimination s.13 EQA

[2]The Tribunal makes the following decisions regarding the claimant’s claims of direct discrimination because of race: 2.1. The claim that, on 12 April 2021, the instigation of a disciplinary investigation into the claimant’s conduct was an act of direct race discrimination, fails. 2.2. The claim that on 4 June 2021, the manner in which the disciplinary investigation was conducted (in particular during the investigation interview of 4 June 2021, Gaye Lander shouting at the claimant, constantly interrupting Claimant, and speaking to him in a dismissive and condescending manner) was an act of direct race discrimination, fails. Harassment related to race s.26 EQA

[3]The Tribunal makes the following decisions regarding the claimant’s claims of harassment related to race: 3.1. On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing false allegations of poor performance by the claimant with a view to having poor performance proceedings instituted against the claimant and engineer his dismissal, fails. 3.2. On 8 April 2021, Ms Mulligan Googling the claimant’s name upon receipt facilitating his dismissal, fails. 3.3. Prejudging and concluding in referral letter dated 08 April 2021 that there had been a breach of the Civil Service Code and that she considered the claimant to have been dishonest, fails. 3.4. On 12 April 2021, Mr Lumsden referring the claimant’s conduct to Ms the claimant (and his dismissal), fails. 3.5. On 19 April 2021 continuing the disciplinary investigation against the 2 of 93 3.6. Prior to the investigatory interview on 4 June 2021, the first respondent, investigation was triggered by the claimant filing an Employment Tribunal claim on behalf of Mr Mahl, an ex-employee of the DWP and a member of the PCS union, for the purpose of ambushing the claimant with this information, fails. 3.7. Gaye Lander carrying out the investigatory interview contrary to DWP policies and procedures in that no reference was made to CSHR or PCS (in light of the claimant’s status as a TU representative), fails. 3.8. Ms Lander carrying out the investigatory interview in an aggressive, 3.9. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions 3.10. On 4 June 2021, at the fact-finding interview, Ms Lander allowed instructions from someone else. She was receiving ‘pings’ of messages at crucial points during the meeting and at one point said, ‘I have been asked to ask’, fails. 3.11. Following the investigation meeting on 4 June 2021, the first respondent 3.12. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 3.13. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms Victimisation s.26 EQA

[4]The Tribunal makes the following decision relating to the claimant’s claims of victimisation: 3 of 93 4.1. On 12 April 2021 Ms Walia, acting outside of her remit, manufacturing false allegations of poor performance by the claimant with a view to having instituted poor performance proceedings against the claimant and engineering his dismissal, fails. 4.2. On 8 April 2021, Ms Mulligan Googling the Claimant’s name upon receipt facilitating his dismissal when she already knew the claimant’s name from the ET Claims of Sue McFarlane-Hamilton where she had been named as a person against whom an allegation was made, fails. 4.3. Ms Mulligan in her referral letter dated 08 April 2021 considered the claimant had been dishonest to facilitate his dismissal, fails. 4.4. On 12 April 2021, Mr Lumsden referring the claimant’s conduct to Ms 4.5. On 19 April 2021 continuing the disciplinary investigation against the 4.6. Prior to the investigatory interview on 4 June 2021, the first respondent, 4.7. The first respondent carrying out the investigatory interview contrary to 4.8. Ms Lander carrying out the investigatory interview in an aggressive, condescending, dismissive, argumentative, and judgmental manner. Ms Lander shouted and spoke down to the claimant, speaking to him without allowing him to give full answers. It is also alleged that Ms Lander referred to aspects of the claimant’s private life which were irrelevant, fails. 4.9. On 4 June 2021, Ms Lander denied that the matter had been referred to CSHR in order to evade reference to the investigation being carried out by a Grade 7, fails. 4.10. In email correspondence June 2021, Mark Lumsden raised the issue of the Employment Tribunal cases brought on behalf of PCS members against the Department and which implicated both Patrice Mulligan and Mark Lumsden in discriminatory conduct, fails. 4 of 93 4.11. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions 4.12. On 4 June 2021, at the fact-finding interview, Ms Lander allowed 4.13. Following the investigation meeting on 4 June 2021, the first respondent 4.14. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 4.15. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms 4.16. Subjecting the claimant to a ‘sham’ investigation. The claimant states that

[5]In relation to each allegation, the claimant was not subjected to the detriments alleged because of one, or more, of the four protected acts that we found he made. Health and Safety Detriment s.44 ERA 1996

[6]The Tribunal makes the following findings in respect of the claimant’s claims that he was subjected to detriment on the ground that, having been designated by the first respondent to carry out activities in connection with preventing or reducing risks to health and safety at work, he carried out any such activities: 6.1. On 12 April 2021 Ms Walia, acting outside of his remit, manufacturing false allegations of poor performance by the claimant with a view to institute poor performance proceedings against the claimant and engineer his dismissal, fails. 6.2. On 8 April 2021, Ms Mulligan googling the claimant’s name upon receipt had been dishonest, fails. 5 of 93 6.3. On 12 April 2021, Mr Lumsden referring the claimant’s conduct to Ms 6.4. On 19 April 2021 continuing the disciplinary investigation against the 6.5. Prior to the investigatory interview on 4 June 2021, the first respondent, 6.6. The first respondent carrying out the investigatory interview contrary to PCS (in light of the claimant’s status as a TU rep), fails. 6.7. Ms Lander carrying out the investigatory interview in an aggressive, condescending, dismissive, argumentative, and judgmental manner. Ms Lander shouted and spoke down to the claimant, speaking to him without allowing him to give full answers, fails. 6.8. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions come back to him without providing the answers, fails. 6.9. On 4 June 2021, at the fact-finding interview, Ms Lander allowed 6.10. Following the investigation meeting on 4 June 2021, the first respondent 6.11. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 6.12. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms 6 of 93 6.13. Subjecting the claimant to a ‘sham’ investigation. The claimant states that 6.14. On 30 July 2021 concluding that there was a disciplinary case to answer in relation to the allegations against the claimant. The claimant was unable to apply for promotion whilst subject to the disciplinary investigation. The claim fails. Whistleblowing Detriment s.47B ERA 1996

[7]The Tribunal’s decision is that the claims are resolved as follows: 7.1. On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing false poor performance proceedings against the claimant and engineering his dismissal. Errors were being assigned to the wrong individuals. Errors within SharePoint being attributed to the claimant when during an investigation between the claimant and his manager none of those cases in fact belonged to him, fails. 7.2. On 8 April 2021, Ms Mulligan Googling the claimant’s name upon receipt hac been dishonest, fails. 7.3. On 12 April 2021, Mr Lumsden referring the claimant’s conduct to Ms 7.4. On 19 April 2021 continuing the disciplinary investigation against the 7.5. Prior to the investigatory interview on 4 June 2021, the first respondent, 7.6. The first respondent carrying out the investigatory interview contrary to 7.7. Ms Lander carrying out the investigatory interview in an aggressive, 7 of 93 7.8. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions 7.9. On 4 June 2021, at the fact-finding interview, Ms Lander allowed 7.10. Following the investigation meeting on 4 June 2021, the first respondent 7.11. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 7.12. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms 7.13. Subjecting the claimant to a ‘sham’ investigation. The claimant states that 7.14. On 30 July 2021 concluding that there was a disciplinary case to answer apply for promotion whilst subject to the disciplinary investigation para 34.9 ET1 (case no. 3206079/2021), fails. Trade Union Detriment s.146(1)(b) TULR(C)A 1992

[8]The Tribunal made the following decisions on the allegations that the claimant had been subjected to detriment because of his trade union activities: 8.1. On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing false poor performance proceedings against the Claimant and engineering his dismissal. Errors were being assigned to the wrong individuals. That refers to errors with SharePoint being attributed to the claimant when during an 8 of 93 investigation between the claimant and his manager none of those cases in fact belonged to him, fails. 8.2. On 8 April 2021, Ms Mulligan Googling the claimant’s name upon receipt had been dishonest, fails. 8.3. On 12 April 2021, Mr Lumsden referring the claimant’s conduct to Ms 8.4. On 19 April 2021 continuing the disciplinary investigation against the 8.5. Prior to the investigatory interview on 4 June 2021, the first respondent, 8.6. The first respondent carrying out the investigatory interview contrary to 8.7. Ms Lander carrying out the investigatory interview in an aggressive, 8.8. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions come back to him without providing the answers, fails. 8.9. On 4 June 2021, at the fact-finding interview, Ms Lander allowed 9 of 93 8.10. Following the investigation meeting on 4 June 2021, the first respondent 8.11. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 8.12. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms 8.13. Subjecting the claimant to a ‘sham’ investigation. The claimant states that 8.14. On 30 July 2021 concluding that there was a disciplinary case to answer apply for promotion whilst subject to the disciplinary investigation para 34.9 ET1 (case no. 3206079/2021), fails.

[9]The Tribunal does not need to go on to consider remedy because we have dismissed all the claimant’s claims.

REASONS

[1]The claimant has been employed by the first respondent, Department of Work and Pensions (“DWP”), a large government department, since 5 June 2017 and remained in its employment (at the date of the hearing) as a National Insurance Number Officer. The respondent concedes that the claimant is a disabled person because of diabetic retinopathy and glaucoma.

[2]The respondents acknowledge that at all material times, the claimant was a Trade Union Representative for the Public and Commercial Services Union (“PCS”), which included health and safety duties.

[3]The second respondent, Gurpreet Walia, is currently employed (at the date of the hearing) by the first respondent as a Regional Leader. Between approximately February 2020 and August 2020, Mr Walia worked on a project called Retro+ where his role was to provide data and analytics support.

[4]The third respondent, Patrice Mulligan, was employed by the first respondent as Senior Leader, North London (at the date of the hearing). Ms Mulligan managed the Walthamstow National Insurance Number Hub in 2018 when the claimant was employed there as a National Insurance Interviewing Officer. In that post, Ms 10 of 93 Mulligan was the person who was ultimately responsible for health and safety on the site.

[5]Ms Mulligan made decisions in a number of disciplinary proceedings. Ms Mulligan made a referral to the fourth respondent, Mark Lumsden, concerning potential disciplinary proceedings against the claimant on 9 April 2021.

[6]The fourth respondent, Mark Lumsden, was employed by the first respondent as Grade 7 Senior Operational Leader for its Counter Fraud and Compliance Department (at the date of the hearing). Mr Lumsden referred the disciplinary matter against the claimant to the Government Internal Audit Agency (“GIAA”).

[7]The fifth respondent, Gaye Lander, is an Investigator with the GIAA (at the date of the hearing) and investigated the referral from Mr Lumsden.

[8]The claimant presented five separate claims against the five respondents on 24 September 2021 (3206073/2021 against Ms Mulligan; 3206074/2021 against Mr Lumsden; 3206075/2021 against Mr Walia; 3206076/2021 against the DWP; and 3206077/2021 against Ms Lander). The claimant presented a sixth claim against the DWP (3206079/2021) on 25 September 2021.

[9]The claimant presented claims of:9.1 Harassment related to disability contrary to section 26 of the Equality Act 2010.

9.2 Direct discrimination because of race contrary to section 13 of the Equality Act 2010.

9.3 Harassment related to race contrary to section 26 of the Equality Act 2010.

9.4 Victimisation contrary to section 27 of the Equality Act 2010.

9.5 Being subjected to detriment on the ground that, having been designated by the first respondent to carry out activities in connection with preventing or reducing risks to health and safety at work, he carried out any such activities contrary to section 44 of the Employment Rights Act 1996.

9.6 Being subjected to detriment because he made protected disclosures contrary to section 47B of the Employment rights Act 1996.

9.7 Being subjected to detriment on grounds related to trade union membership or activities contrary to section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992).

[10]All respondents entered responses that were accepted by the Tribunal. By an order of EJ Gardiner dated 2 February 2022, the claimant was required to submit a Schedule of Loss by 23 February 2022; the parties were to agree a List of Issues by 15 March 2022 and the case was listed for a final hearing on 26-28 July 2023. 11 of 93

[11]There was a preliminary hearing on 27 April 2022 before EJ Russell [243-244] that was meant to determine the respondents’ application to dismiss the second to fifth respondents from the proceedings, finalise the List of Issues, and make case management orders for the final hearing. It was not possible to deal with any of those matters at the hearing, which was relisted for 26 October 2022 before EJ Brewer.

[12]At the hearing before EJ Brewer, case management orders were made [245-251], and the application to remove the second to fifth respondents was withdrawn. The final hearing was extended to seven days and case management orders relating to documents and witness statements etc. were made. The claimant was required to give further information about the disability he said brought him within the definition in section 6 of the Equality Act 2010.

[13]The six claims were consolidated on 31 October 2022 [252-253].

[14]On 13 January 2023, the respondents conceded that the claimant met the definition of disability because of diabetic retinopathy from 4 June 2021 (the date of an investigation interview) to 24 September 2021 (the date that the first 5 claims were presented). [254]

[15]The claimant had described the impairment as “diabetic retinotherapy”, so EJ Gardiner asked him to confirm the name of the impairment on 24 January 2023. The claimant replied on 31 January 2023 [255] and stated that the impairment relied upon was “diabetic retinotherapy (sic) and glaucoma”. We take judicial notice that there is no medical condition named diabetic retinotherapy, but there is a condition named diabetic retinopathy. Subsequent references will be to diabetic retinopathy.

[16]On 23 April 2023, the claimant applied to amend his claim. It is reproduced here: “The Amended Pleadings The foundation stone of these claims is found at para 11 of the Particulars of Claim dated 24/09/2021 (page 78) and para 26 (page 119) the Particulars of Claim dated 25/11/2021. They are also in the grievance Forms G1s Lumsden (page 451) and Mulligan (page 471); in addition to new acts committed since the lodging of the Originating Form ET1. E.g., “In the grievance Form G1 (Lumsden) reads “I have been subjected to harassment by the Investigating Officers in the way the Investigation has been conducted with serious intrusion into my private life and unlawful interference with my rights to freedom of thought, expression and association, none of which has any connection whatsoever to the Department and or is likely to put same into disrepute.” Reference is also made in the Respondent’s Ground of Resistance at paras 24.2- 25 & 31.3 at page 179. Particulars of a breach of the Claimant’s convention rights under Articles 6, 8 and10 of the Human Rights Act 1998 & (ECHRA 1998) facilitated by section 6 of same and the Bill of Rights Bill 2022. 12 of 93 On or around 8 April 2021, Patrice Mulligan functioning in the office of the Department for Work and Pensions unlawfully investigated the Claimant’s private life in breach of the convention right to a private life under Article 8 of the Human Rights Act 1998 & (ECHRA 1998) by: Googling his name, perusing his personal profile and making a Fraud Referral to Mark Lumsden; contrary to the Respondents Guidelines on Making Fraud Referrals; perusing his Face book account and duplicating the act at subsection (i) above; Unlawfully attempting to break into Claimant’s twitter account; Accessing a You Tube video and misrepresenting its contents to spice up a false terror alert when the video was anti-terror; and knowingly suggested that it amounted to a breach of the Respondent’s Standards of Behaviour when it did not; Mark Lumsden making a Fraud Referral of the matters cited at(i) – (iv) to GIAA. It is averred that all the above were in breach of the Respondent’s Guidelines for Making Fraud Referrals as amplified in the in the Security Awareness Training undertaken and this formed the basis which triggered the investigation against Claimant. It is averred that these Guidelines which are the foundation stone of natural justice were known or ought to have been known by Patrice Mulligan, Mark Lumsden, Gaye Lander, Cheri Upton, and the Grievance Investigators Florence Lea, David Innes and Angela Green. It is further averred that any evidence obtained as a consequence of the actions above was impermissible for the purpose of any disciplinary investigation. A breach of the convention right to freedom of expression pursuant to Article 10 of the Act: On the 8th April 2021 Patrice Mulligan referring the Claimant’s face book postings and the You Tube video as a breach of standards of behaviour or the civil service code which resulted in the Claimant being unlawfully investigated; On 9 April 2021, Mark Lumsden referring same to GIAA for investigation; On 6 June 2021, Gaye Lander asking Claimant questions about same; On 30 July 2021, Gaye Lander finding a disciplinary case to answer for same. It is averred that the postings were impartial and favoured neither political party and were nothing other than a fair characterisation of matters within the public domain and in no way brought the Department or the civil service into disrepute as the Claimant not only used a different name from the one known at work but also significantly never identified himself as either an employee of the Respondent or civil servant. Similarly, the You Tube video was nothing 13 of 93 more than an expert analysis of the growing threat of terrorism in Mozambique and advocated for a swift anti-terrorist resolution. A breach of the convention right to a fair trial/ hearing pursuant to Article 6 of the Human Rights Act 1998 & (ECHRA 1998) The Respondent failed to disclose before and during the investigation the trigger factor of the investigation was Patrice Mulligan alleged concerns during preparation of an Employment Tribunal claim for Mr Mahl, a PCS Trade Union member which Claimant had issued on his behalf; On 6 June 2021, Gaye Lander and Cheri Upton failed to comply with DWP procedures when considering action against a Trade Union Rep; Gaye Lander conducted the meeting in an aggressive manner i.e. repeatedly prevented Claimant from giving full responses to questions by constantly interrupting him despite this being drawn to her attention numerous times by Claimant and TU Rep Miss Robinson Smith Hunte. She also dismissed without investigation Claimant’s allegation of the complaint being motivated by victimisation and whistle blowing.; Gaye Lander wilfully disregarded DWP policies such as cited at para 10

(ii) above, DWP Social media policy in that no permission was required for participation in the You tube video; and On 3 May 2022, David Inness failed to uphold the Claimant’s grievances against the weight of the evidence; On 16 February 2023, Angela Green dismissed the Claimant’s appeal against the weight of the evidence; it’s worth noting that despite assurances to Claimant that she had not completed her investigations; the decision had been communicated to Claimant by the Respondent’s legal representatives in an undated letter 1 month before. The decision was premeditated not to compromise the ongoing Employment Tribunal proceedings.. To date, the Respondent has kept the Claimant in suspense in respect to the matters investigated by Gaye Lander; On 23 December 2022, Mr Sogie-Thomas- Oral conducted: a sham disciplinary investigation for an alleged breach of security without following DWP policies, failed to afford the Claimant an opportunity to file a mitigating defence of trade union activities and dismissing it outright without hearing it; 14 of 93 made false allegations about Claimant making negative comments about the Grade 7 Bindu, which were nowhere in the Notes of the meeting nor on the audio recording of the meeting; failed to extend the lifespan of the recording of the meeting, despite several data access requests pursuant to GDPR 2018 for the sole purpose of eradicating direct evidence of misconduct; made a finding of case proven at investigatory stage as opposed to at the decision making stage; failed to produce an investigation report; failed to afford Claimant an opportunity to attend the Disciplinary Hearing and made a decision to issue Claimant with a First Written Warning; a detriment; and. Its worth noting the First Written Warning is dated 17 January 2023 but it was sent undercover of an email dated 23/01/2023 which stated, “Today is Monday 23/01/2023. I have now concluded my investigation and final outcome”. It is averred that that decision was premeditated so as not to compromise the ongoing Employment Tribunal proceedings.” In the alternate victimisation. Threatened to investigate Claimant’s trade union activities post investigation. On 23 January 2023, Mr Sogie Oral Thomas subjected Claimant to a detriment by issuing him with a Formal Warning following a sham investigation as cited at para 3 (vi) above. Its worth noting that a grievance in related to this is ongoing and an appeal against the decision is pending.”

[17]The application was heard by EJ Beyzade on 20 and 26 June 2023. He refused the application in its entirety. The refusal is the subject of an appeal submitted to the Employment Appeal Tribunal (EAT) on 19 July 2023 (not in the bundle but produced by the claimant in support of his application for a postponement to this Tribunal on 19 July 2023).

[18]EJ Beyzade also refused an application by the claimant to postpone the final

[19]The claimant wrote to the Tribunal by email on 10 July 2023. He produced a Form Med 3 (Fit Note) in support dated 29 June 2023 that contained a diagnosis of “stress at work”. The Med 3 did not indicate if the claimant was fit to attend a Tribunal but did state that he was unfit to work until 15 July 2023. The claimant’s application read: “The Claimant is a litigant in person and currently not fit for work due to work related stress. He has been referred for psychological evaluation for suspected anxiety and depression which he has suffered before and is aggravating his long standing disabilities. He has in the last two weeks been sent 3 different versions of the trial bundle with over 200 new documents in addition to the ramifications 15 of 93 of the refusal of his Application for leave to amend the claims of which he is seeking legal advice. The Claimant is finding it difficult to sleep cannot concentrate and has been recommended to rest and as such is not in a fit state to prepare for trial. The Respondent has had notice of this when they were advised of the Claimant’s medical condition. Please find the attached medical certificate.”

[20]The respondents had pointed out the claimant’s failure to exchange witness statements as ordered by EJ Beyzade. REJ Burgher did not appear to have considered the claimant’s email to be an application for adjournment and reminded the parties that the Tribunal could consider striking out a claim or response on the basis of non-compliance with Tribunal orders as appropriate so the hearing could complete on the days listed.

[21]The claimant renewed his application for a postponement on 17 July 2023. The claimant produced a Form Med 3 dated 14 July 2023 that contained a diagnosis of “anxiety and depression, stress” in support of the application. The claimant wrote: “Further to my email to the Tribunal dated 10th July 2023, I am writing to advise you that my circumstances have not changed and infact have got worse. My previous Fit Note ran out on Saturday 15th July 2023. I was assessed by Waltham Forest Talking Therapies on Friday 14th July and again by my GP and have been diagnosed with a relapse of anxiety, stress and depression. As a consequence I am due to commence therapy sessions soon. My blood pressure has been fluctuating and my blood sugar has hit the roof. I am due for more blood tests tomorrow. I have also got floats in my right eye and I have been booked to be seen by Moorefield’s Eye Hospital. Consequently, I wish to make an Application to adjourn the Hearing commencing Wednesday 19th July 2023 until I am able to attend. I am not in a fit position to attend work let alone deal with an Employment Tribunal Hearing as a litigant in person. This with respect is not a situation of my making but one I find myself in. Please find attached the medical evidence I rely on for this Application. If any further medical evidence is required, I would be happy to request it and provide as my GP is fully aware of my intention to make this Application”.

[22]The application was refused by EJ Beyzade, by a letter dated 18 July 2023 that was not in the bundle, who noted that the claimant had not complied with the document “Presidential Guidance – Seeking a Postponement of a Hearing”. The claimant was advised that if he wished to make a further application, he would have to present supporting medical information in the format set out in the Presidential Guidance.

[23]It was also noted that the claimant had failed to exchange witness statements on 10 July 2023, as had been ordered by EJ Beyzade at the preliminary hearing on 20 and 26 June 2023.

[24]At 09:38 on 19 July 2023, the first morning of the hearing, the claimant sent the Tribunal the following email: 16 of 93 “URGENT On 26 June 2023 EJ Beyzade refused the Claimant’s Application for Leave to Amend the Claim. On 10th July the Claimant notified the Tribunal that he was ill and not able to prepare for trial and sent in a fit note. On 17th July 2023, the Claimant submitted an Application to adjourn the Hearing and provided a Fit Note. Upon returning from his medical appointment at 17: 30hrs yesterday, he saw an email attaching a decision from EJ Beyzade refusing the Application for adjournment. The Claimant has this morning lodged a Notice of Appeal to the Employment Appeal Tribunal appealing against both decisions. He once again lodges an Application to adjourn the Hearing pending determination of his Appeal to the Employment Appeal Tribunal. A new fit note is attached in support of and further medical evidence to follow. If this Application is minded to be refused please can you send me the joining instructions as I cannot find them.”

[25]The claimant attended the hearing on 19 July 2023 and confirmed that he wished to renew his application for a postponement of the final hearing. He had visited his GP on the afternoon of 18 July and had read the refusal of his postponement request on his return home at 6:30pm.

[26]The claimant’s renewed request for adjournment was based on two grounds:26.1 He had appealed to the EAT against EJ Beyzade’s refusal to grant leave to amend his claim on the morning of 19 July; and

26.2 He had obtained a further Form Med 3 from his GP dated 18 July 2023 (not in the bundle) certifying him unfit for work from 14 July 2023 to 18 August 2023. The Med 3 stated a diagnosis of : “Stress-related problem symptoms of anxiety and depression”. No further details were provided.

[27]Mr Supiya confirmed that he had not exchanged witness statements with the respondent. Ms Loraine stated that the respondent had not sent its witness statements to the claimant because he had not confirmed his willingness to exchange in return. Mr Supiya then confirmed that he had written all the witness statements, but that they were not in the state of completeness that he would have wanted them to be and repeated that his illness had hampered his preparation time. We were somewhat puzzled by this statement, given that Mr Supiya had indicated that he had submitted an appeal to the EAT that morning. We had seen the Notice and Grounds of Appeal. The latter consisted of 1350 words over 7 pages and was dated 19 July 2023. 17 of 93

[28]Mr Supiya said that he had not read the Presidential Guidance on postponement applications fully: he had “read part of it” and had not had time to obtain the additional medical information that the Guidance requires an applicant for a postponement to supply.

[29]He said he could obtain the further medical evidence required. He denied being an experienced Tribunal advocate, although it is part of the respondent’s case that the claimant represented several claimants in proceedings before the Employment Tribunal. We were referred to at least half a dozen claims in which the claimant had acted as representative.

[30]Ms Loraine opposed the application, which she submitted was made on exactly the same medical grounds as the one refused by EJ Beyzade on 18 July. The claimant had failed to provide the necessary medical information and had not complied with the order to exchange witness statements.

[31]Ms Loraine submitted that he allegations in the claim go back to 2021 and the factual matrix of the protected disclosure/protected acts goes back to 2018. The claimant was trying to persuade the Tribunal to grant a postponement in the hope that the EAT granted his appeal. The claimant stated that he had a set of witness statements and if he was to exchange, Ms Loraine would be in a position to start the evidence once she had read them.

[32]We retired to consider our decision. Decision on Postponement 19 July 2023

[33]Subject to the provisions of Rule 30A(2) and (3), the power to postpone, adjourn or stay cases gives the Tribunal a wide discretion. In Jacobs v Norsalta Ltd

[1977] ICR 189

, Phillips J set out the general principles upon which it is to be exercised: ''We accept, of course, that the power [to postpone and adjourn] must not be used arbitrarily or capriciously and must certainly not be used in order to defeat the general object of the legislation. But, subject to that, it seems to us that the [employment] tribunal has a complete discretion, so long as it exercises it judicially, to postpone or to adjourn any case provided there is good, reasonable ground for so doing.''

[34]When exercising the discretion whether or not to grant a postponement or adjournment, the duty of the tribunal is to have regard to the overall fairness to both parties. In O'Cathail v Transport for London

[2013] EWCA Civ 21

, Mummery LJ stated (at [45]): ''Overall fairness to both parties is always the overriding objective. The assessment of fairness must be made in the round. It is not necessarily predetermined by the situation of one of the parties, such as the potentially absent claimant who is denied an adjournment.'' 18 of 93

[35]Where a party is unable to attend a hearing through no fault of his own, the general principle is that a postponement or adjournment should be granted, subject to the tribunal being satisfied as to the genuineness of the reason for the inability to attend. In Teinaz v Wandsworth London Borough Council

[2002] EWCA Civ 1040

, Peter Gibson LJ stated (at para 21): ''A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under

Article 6 of the European Convention on Human Rights

demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the claimant for an adjournment to prove the need for such an adjournment.''

[36]As the Presidential Guidance stipulates, if the application is on the ground of illhealth, medical evidence will be required to be produced to show that the party is unable to attend. But, as the Court of Appeal recognised in Teinaz, problems can arise where applications for adjournments are based on medical certificates, and these will require practical solutions if justice is to be achieved. Where the tribunal has doubts as to whether the medical evidence is genuine or sufficient, it may, for example, direct that further evidence be provided promptly or it may invite the party seeking the adjournment to authorise the legal representative for the other side to have access to the doctor giving the advice in question.

[37]What we must not do, however, is draw adverse conclusions from the medical certificate where there is no evidence to justify them.

[38]Further guidance on the exercise of the discretion relating to applications to adjourn on the ground of ill-health was given by the Court of Appeal in Andreou v Lord Chancellor's Department

[2002] EWCA Civ 1192

. A medical certificate produced by the claimant in support of her application for an adjournment did not state that she would not be able to attend the hearing but simply said that she was suffering from anxiety and stress and should refrain from working for 13 weeks. The Tribunal adjourned the hearing for a week and, in the meantime, required the claimant to produce a further medical report giving details of the nature and prognosis of her illness, why she was not able to attend the hearing, and when she would be fit to attend and give evidence at a hearing lasting ten consecutive days. A new medical report was produced but it was essentially in the same terms as the original one and did not give the details ordered by the Tribunal. The Tribunal then gave notice to the claimant to show cause why her claim should not be struck out for failing to comply with the order. At the resumed hearing, no cause having been shown, the Tribunal refused to grant an adjournment and struck out her claim in its entirety.

[39]The Court of Appeal (overruling the EAT which had allowed the claimant's appeal) held that the Tribunal was entitled to make such an order. It held that the fact that certification of a person as being unfit to work does not automatically mean that the person is not able to attend the tribunal. Whether it does so is a matter for evidence. Unlike the course taken by the Tribunal in Teinaz, the 19 of 93 Tribunal in Andreou had adopted the sensible course of giving the claimant a further limited opportunity of making good the deficiencies in the first report. When the second report failed to answer the questions which the Tribunal had asked, the tribunal was entitled to conclude that it was not possible to infer that the nature of her illness was serious. The Tribunal's decision was therefore neither perverse nor plainly wrong and the EAT had been in error in allowing the appeal. Giving general guidance, Arden LJ observed that stress and anxiety are generic terms which are likely to cover a range of symptoms differing widely in their severity. She stated (at para 65): ''Where a party seeks an adjournment on the basis of stress or anxiety, he should expect to produce details of the symptoms, the causes, severity, and so on, or to explain why those details cannot be supplied to the tribunal. When a party applies for an adjournment he must bear in mind the need for complaints to employment tribunals in these sorts of matters to be heard promptly, the need to consider the interest of other parties to the proceedings and the need to avoid unnecessary waste of tribunal time and scarce resources.''

[40]We considered the requirements of Rule 2 and found that the claimant had not met the standard of evidence required in Andreou to show that he could not participate in the hearing or that a fair and just hearing was not possible provided that we made any adjustments that may be required to assist the claimant. We took into account the fact that some of the events in this case go back to 2018 and that a new hearing may not be possible until early 2025. A balance has to be struck between the rights of the claimant and the respondents. Four of the respondents are, like the claimant, individuals who have had to bear the stress of an Employment Tribunal hanging over them for some years. The application to postpone was refused on the day, but we accepted the claimant’s evidence that he had not seen EJ Beyzade’s refusal of his application dated 17 July until he returned home from his GP at 6:30pm on 18 July.

[41]We therefore decided that the guidance in Andreou required the claimant to be given the opportunity to provide the medical evidence which that case states is required. In making that decision, we were mindful of the fact that the claimant had been advised exactly what medical evidence was required in EJ Beyzade’s letter of 18 July. We noted that the case management order of EJ Brewer [250] had included a link to a www.judiciary.uk site that contained guidance about Tribunal procedures, including postponements.

[42]Mr Supiya said that he could see his GP on the evening of 19 July and was confident that a report could be supplied for 10:00am on 20 July. We therefore adjourned the hearing until 10:00am on 20 July and made case management orders that required the parties to exchange witness statements by 12:00pm on 19 July and for the claimant to provide a medical report dealing with the matters required by the authority of Andreou by 10:00am on 20 July.

[43]We confirmed the orders made in respect of the medical evidence in an email that was sent to the parties at 13:16pm on 19 July, which stated: 20 of 93 “I acknowledge receipt of the parties’ witness statements which were passed onto the Tribunal panel earlier this afternoon. Further to the hearing this morning, Employment Judge Shore has asked me to write to you to confirm the case management orders made as follows: The claimant’s application for postponement is refused on the evidence available today because the medical evidence only states that he is unable to attend work between 18 July 2023 and 18 August 2023. It does not comply with the Presidential Guidance – Seeking a Postponement of a Hearing. The claimant shall, by 10:00am on Thursday 20 July, produce to the Tribunal and the respondents a medical report relating to the condition of “Stress-related problem symptoms of anxiety and depression” cited in the Form Med 3 dated 18 July 2023. The report shall set out: 1. The date that the Stress-related problem symptoms of anxiety and depression was diagnosed. 2. The nature and prognosis of the Stress-related problem symptoms of anxiety and depression. 3. Whether the claimant is able to attend a 7-day Employment Tribunal Hearing. 4. What adjustments may be required. 5. If the claimant can attend, whether he will be able to give evidence and crossexamine the respondent’s witnesses. 6. If the claimant is currently unfit to attend, when will he be fit to attend? The Tribunal shall reconvene at 10:00am on Thursday 20 July 2023. If the application to postpone is refused, then the Tribunal shall hear the claimant’s evidence. He should ensure that his witnesses are available.”

[44]The Tribunal continued our reading for the remainder of the day, which included reading the witness statements that had been exchanged.

[45]At 8:49 on Thursday 20 July 2023, the claimant sent an email to the Tribunal and respondents that said: “My GP Practice has advised that they did not have resources to provide the Letter of support at such short Notice. They have a Special doctor whose role is to review the file and answer the questions. He is due in Surgery at 6pm today and he will be asked to compile the report. Please find additional documents which I had not realised were not in the Bundle until I read one of the Respondent’s Witness Statement.”

[46]We started the hearing on 20 July at 10:00am. We asked Mr Supiya to clarify what he had meant in his email. He confirmed that a doctor at his GP practice would review his medical records at 6:00pm on the evening of 20 July and he had been led to believe that a report would be with the Tribunal by the following morning.

[47]We considered the representations made by both partis and decided to adjourn until 10:00am on 21 July to await the medical report. 21 of 93

[48]We sent an email to the parties at 11:07am on 20 July as follows: “I have been asked to write to you by Employment Judge Shore following this morning's hearing. The case has been adjourned to 10:00am tomorrow morning following receipt of the claimant's email of today's date timed at 08:49am in which he advised the Tribunal that a doctor at his GP practice would review his file and answer the questions raised by the Tribunal on 19 July 2023 when the doctor attends the surgery at 6:00pm this evening. The claimant assured the Tribunal that a report would be sent to the Tribunal by tomorrow morning and that he would proceed with the hearing if no report was submitted. The Tribunal therefore made the following Order: By 9:45am on Friday 21 July 2023, the claimant shall file a report from his GP practice addressing and answering all the questions raised by the Tribunal on 19 July 2023, a copy of which is produced below: The claimant shall, by 10:00am on Thursday 20 July, produce to the Tribunal and the respondents medical report relating to the condition of “Stress-related problem symptoms of anxiety and depression” cited in the Form Med 3 dated 18 July 2023. The report shall set out: 1. The date that the Stress-related problem symptoms of anxiety and depression was diagnosed. 2. The nature and prognosis of the Stress-related problem symptoms of anxiety and depression. 3. Whether the claimant is able to attend a 7-day Employment Tribunal 4. What adjustments may be required. 5. If the claimant can attend, whether he will be able to give evidence and cross-examine the respondent’s witnesses. 6. If the claimant is currently unfit to attend, when will he be fit to attend. The case is adjourned to 10:00am on Friday 21 July 2023, when the claimant should be prepared for the possibility of his being required to give evidence. By 3:00pm on Thursday 20 July 2023, the respondent shall confirm whether it requires any of the claimant's witnesses (other than the claimant himself) to give evidence.”

[49]At 09:33am on 21 July, Mr Supiya submitted a letter dated 20 July 2023 from Dr Evan James of the claimant’s GP practice, which stated: 22 of 93 “I write as the General Medical Practitioner to the above named registered patient at the Practice who has given his informed consent for this letter to be written as supporting evidence relating to his current Tribunal hearing. Based on his medical history and notes available to us, I am able to provide the following information: Mr Supiya has been under our care since his registration with us on 10 July 2012. He attends both routine and scheduled appointments when applicable. He is known to suffer from Depressive disorder since July 2021 for which he has been given antidepressants in the past and has also been advised to attend and utilise community based counselling outlets or centres. He is currently being managed for Stress related problems since June 2023 for which he has been given medical certificates or sick notes. He states that he is currently attending Waltham Forest Talking Therapy sessions to help with his anxiety and Stress related problems at the moment. For the above reasons he states that he is unable to attend a 7 day Tribunal hearing sessions which might be the case until he finishes his 8-12 weeks Talking Therapy Sessions with the Waltham Forest Talking Therapy Team. Thank you for compassionate consideration of his request on mental health grounds.”

[50]The Tribunal received the report shortly after Mr Supiya submitted it. We met before the scheduled start time of the hearing to discuss the report and determine what our approach would be to hearing the claimant’s application to adjourn. We did not make our decision at that time.

[51]We heard Mr Supiya’s application for adjournment on the third morning, 21 July 2023. He confirmed that the doctor had seen the order of the Tribunal as to what the report should cover and relied on his previous applications and the new medical report. He submitted that Dr James had supported the application for an adjournment. Mr Supiya added that he had many medical issues and had insomnia issues.

[52]Ms Loraine opposed the application but said that she wished to be fair to the claimant. He is a litigant in person and had complied with the order to produce a medical report, but the report had not addressed the matters that the Tribunal had ordered be addressed; it had not answered the questions asked. Ms Loraine noted that the doctor had tried to be supportive but had simply not answered the key question as to whether the claimant was medically fit to participate in the

[53]We refused the application after making the following findings: 23 of 9353.1 The claimant had complied with the order to produce medical evidence.

53.2 The doctor who produced the report was aware of the questions that the Tribunal had asked the report to answer.

53.3 The fact that the doctor is not an employment lawyer and may not even have heard of the case of Andreou was not a relevant point because he was asked to answer medical questions, not legal questions.

53.4 The report was supportive of the claimant.

53.5 However, the report did not answer questions 3, 4 and 5 that we had asked from a medical perspective. The doctor had only repeated what the claimant had told him – “he states that he is unable to attend a 7 day Tribunal hearing sessions” – and had not given any medical opinion as to the accuracy of the claimant’s stated belief.

53.6 We therefore found that the clamant had been given the opportunity to provide medical evidence to support his application per Andreou but had not provided medical evidence that met the threshold required for us to determine that an adjournment as required. We are not refuting the diagnosis of the doctor. We have found that the effect of the medical conditions that are identified in the report (“Depressive disorder since July 2021 and stress-related problems since June 2023”) were not so severe that he is unable to attend a Tribunal hearing.

53.7 We were mindful of the potentially long delay in relisting this case. We were mindful of the potential effect of the delay on the claimant and the respondents. We were mindful of the overriding objective to produce a just and fair hearing. We were mindful of the tens of thousands of cases that are waiting to be heard and which would be further delayed if we adjourned this hearing and relisted it.

53.8 On balance, we found that the claimant had not shown that he could not participate in the hearing if we made adjustments to ameliorate the effect of his depressive disorder and stress. We facilitated this by taking frequent scheduled breaks and also granting further breaks as requested by Mr Supiya (and, on one occasion, by Ms Loraine).

53.9 Our perception was that the claimant was able to fully participate in the

Issues

[54]The List of Issues agreed by the parties at the preliminary hearing on 20 and 26 June 2023 are as follows: JURISDICTION – Race and Disability discrimination s. 123 Equality Act 2010 24 of 93 1 Are any of the Claimant's claims out of time: 1.1. Did they occur on or before 14 April 2021? 1.2. If so, do they form conduct extending over a period, the end of which occurred on or after 15 April 2021? 1.3. If not, would it be just and equitable to extend time to allow the claims to proceed? JURISDICTION - PIDA Detriment (‘Whistleblowing’) and Health and Safety Detriment S. 48 ERA 1996 2. Are any of the Claimant's claims out of time: 2.1. Did they occur on or before 14 April 2021? 2.2. If so, do they form part an act extending over a period, the last date of which occurred on or after 15 April 2021? 2.3. If not, was it not reasonably practicable for the Claim to be presented within 3 months of the date of the act to which the claim relates? 2.4. If it was not reasonably practicable to present the claim in time, was the claim presented within a further reasonable period? JURISDICTION – TULR(C)A 1992 Trade Union Detriment S. 147 3. Are any of the Claimant's claims out of time: 3.1. Did they occur on or before 14 April 2021? 3.2. If so, do they form part an act extending over a period, the last date of which occurred on or after 15 April 2021? 3.3. If not, was it not reasonably practicable for the Claim to be presented within 3 months of the date of the act to which the claim relates? 3.4. If it was not reasonably practicable to present the claim in time, was the claim presented within a further reasonable period? DISABILITY 4. What is the physical or mental impairment or impairments relied upon by the Claimant? 4.1. Diabetic retinotherapy; and 4.2. Glaucoma. 5. Was the Claimant, at all material times, a disabled person for the purposes of S.6 Equality Act 2010 (‘EqA’) due to any of the impairments at paragraph 4 above? In relation to each relied upon: 25 of 93 5.1. From what date did the Claimant suffer from the impairment? 5.2. Did the impairment have a more than trivial adverse effect on the Claimant’s ability to carry out normal day to day activities? 5.3. Would the impairments have had such an effect in the absence of treatment? 5.4. As of the relevant date in relation to each of the claims, had the impairment lasted for 12 months? If not, was it at that time, likely to last 12 months or likely to recur? The respondent concedes that the claimant had disabilities under section 6 of the Equality Act 2010 namely diabetic retinopathy and glaucoma at all material times relating to the claimant’s claims. 6. What is the conduct complained of by the Claimant? 6.1. On 17/06/2021 (after the investigatory meeting on 4 June 2021), Ms Lander bullied documents to be provided in point 14 font; see Para 15 DWP POC and the email from Gaye Lander to Claimant dated 17/06/2021. 6.2. Ignoring the disability advised by PCS Rep to Ms Lander at the meeting of 4 June 2021and repeatedly flashing documents on the screen; and 6.3. Advising the claimant in the email dated 17 June 2021 to go for IT training instead of simply providing documents in the requested format. 7. If so, was this unwanted treatment and was it related to the Claimant’s race disability? 8. If so, did the conduct have the purpose or reasonably have the effect of violating his dignity or creating an intimidating, degrading, humiliating or offensive environment for him? Direct Race Discrimination (s.13 EA) 9. The claimant describes his race as Black African. What is the less favourable treatment that the Claimant alleges? 9.1. On 12 April 2021, the instigation of a disciplinary investigation into the Claimant’s conduct; 9.2. On 4 June 2021, the manner in which the disciplinary investigation was conducted in particular during the investigation interview of 4 June 2021, Gaye Lander shouting at the Claimant, constantly interrupting Claimant, and speaking to him in a dismissive and condescending manner. 10. Did the Respondents subject the Claimant to the alleged treatment? 11. Was this less favourable treatment because of the Claimant’s race? Who is the appropriate comparator? Harassment related to race (s.26 EA) 26 of 93 12. Did the Respondent subject the Claimant to the following treatment? 12.1. On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing false allegations of poor performance by the Claimant with a view to having poor performance proceedings instituted against the Claimant and engineer his dismissal. Para 6(i) DWP POC 12.2. On 8 April 2021, Ms Mulligan googling the Claimant’s name upon receipt of an ET1 an investigation into the Claimant’s conduct and facilitating his dismissal. 12.3. Prejudging and concluding in referral letter dated 08 April 2021 that there had been a breach of the Civil Service Code and that she considered the Claimant to have been dishonest; Para 6(ii) DWP POC 12.4. On 12 April 2021, Mr Lumsden referring the Claimant’s conduct to Ms Lander and disciplinary investigation for gross misconduct against the Claimant (and his dismissal); Para 6(iii) DWP POC 12.5. On 19 April 2021 continuing the disciplinary investigation against the Claimant after receiving a whistleblowing complaint; Para 6(vi) DWP POC. 12.6. Prior to the investigatory interview on 4 June 2021, the First Respondent, Mr triggered by the Claimant filing an Employment Tribunal claim on behalf of Mr Mahl, an ex-employee of the DWP and a member of the PCS union, for the purpose of ambushing the Claimant with this information; Para 6(vii) and 7 DWP POC. This prejudiced Claimant. 12.7. Gaye Lander carrying out the investigatory interview contrary to DWP policies and procedures in that no reference was made to CSHR or PCS (in light of the Claimant’s status as a TU representative) Para 8 DWP POC. 12.8. Ms Lander carrying out the investigatory interview in an aggressive, condescending, 12.9. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions and 12.10. On 4 June 2021, at the fact-finding interview, Ms Lander allowed interference with the investigation in that she appeared to be taking instructions from someone else. She was receiving ‘pings’ of messages at crucial points during the meeting and at one point said ‘I have been asked to ask’; Para 11 & 14 DWP POC 27 of 93 12.11. Following the investigation meeting on 4 June 2021, the First Respondent edited out 12.12. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 12.13. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms Lander bullied 13. If so, was this unwanted treatment and was it related to the Claimant’s race? 14. If so, did the conduct have the purpose or reasonably have the effect of violating his dignity or of creating an intimidating, degrading, humiliating or offensive environment for him? Victimisation (s.26 EA) 15. Did the claimant do the following: 15.1. Issuing proceedings on behalf of Mr Mahl on 11 November 2020; 15.2. Issuing a ‘Health and Safety Report’ 14/09/2018; 15.3. Applying to amend the ET claim of Mrs McFarlane Hamilton on 18 January 2020; 15.4. Issuing a second ET claim on behalf of Mrs McFarlane Hamilton on 2 February 2020; 15.5. Issuing a third ET claim on behalf of Mrs McFarlane Hamilton on 18/03/2021? 16. If so, in relation to each, is it a protected act under s. 27(2) EqA 2010? The respondent concedes that 15(a) was a protected act. 17. Did the Respondent subject the Claimant to the following alleged detriments? 17.1. On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing false allegations of poor performance by the Claimant with a view to having instituted poor 6(i) DWP POC; 17.2. On 8 April 2021, Ms Mulligan googling the Claimant’s name upon receipt of an ET1 an investigation into the Claimant’s conduct and facilitating his dismissal when she already knew the claimant’s name from the ET Claims of Sue McFarlane Hamilton where she had been named as a person against whom an allegation was made; 17.3. Ms Mulligan in her referral letter dated 08 April 2021 considered the Claimant had been dishonest to facilitate his dismissal; Para 6(ii) DWP POC 28 of 93 17.4. On 12 April 2021, Mr Lumsden referring the Claimant’s conduct to Ms Lander and 17.5. On 19 April 2021 continuing the disciplinary investigation against the Claimant after 17.6. Prior to the investigatory interview on 4 June 2021, the First Respondent, Mr 17.7. The First respondent carrying out the investigatory interview contrary to DWP of the Claimant’s status as a TU representative) Para 8 DWP POC 17.8. Ms Lander carrying out the investigatory interview in an aggressive, condescending, 17.9. On 4 June 2021, Ms Lander denied that the matter had been referred to CSHR in order to evade reference to the investigation being carried out by a Grade 7. 17.10. In email correspondence June 2021, Mark Lumsden raised the issue of the Employment Tribunal cases brought on behalf of PCS members against the Department and which implicated both Patrice Mulligan and Mark Lumsden in discriminatory conduct. 17.11. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions and 17.12. On 4 June 2021, at the fact-finding interview, Ms Lander allowed interference with 17.13. Following the investigation meeting on 4 June 2021, the First Respondent edited out 17.14. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 29 of 93 17.15. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms Lander bullied 17.16. Subjecting the Claimant to a ‘sham’ investigation. The claimant states that the above 18. If so, and in relation to each allegation, was the Claimant subjected to the detriment because of one, or more, of the protected acts? Health and Safety Detriment S. 44 ERA 1996 19. Did the Claimant carry out the following alleged activities in connection with preventing or reducing risks to health and safety at work: 19.1. Issuing a ‘Health and Safety Report’ on 14 September 2018 alleging that fire extinguishers and fire exits were obstructed and stating that there were fire hazards in the communications room? 20. Did the respondents subject the claimant to the following detriments: 20.1. On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing false allegations of poor performance by the Claimant with a view to institute poor performance proceedings against the Claimant and engineer his dismissal Para 6(i) DWP POC; 20.2. On 8 April 2021, Ms Mulligan googling the Claimant’s name upon receipt of an ET1 including that she considered the Claimant had been dishonest; Para 6(ii) DWP POC 20.3. On 12 April 2021, Mr Lumsden referring the Claimant’s conduct to Ms Lander and 20.4. On 19 April 2021 continuing the disciplinary investigation against the Claimant after 20.5. Prior to the investigatory interview on 4 June 2021, the First Respondent, Mr 20.6. The First Respondent carrying out the investigatory interview contrary to DWP of the Claimant’s status as a TU rep) Para 8 DWP POC 20.7. Ms Lander carrying out the investigatory interview in an aggressive, condescending, 30 of 93 20.8. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions and 20.9. On 4 June 2021, at the fact-finding interview, Ms Lander allowed interference with 20.10. Following the investigation meeting on 4 June 2021, the First Respondent edited out 20.11. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 20.12. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms Lander bullied 20.13. Subjecting the Claimant to a ‘sham’ investigation. The claimant states that the above 20.14. On 30 July 2021 concluding that there was a disciplinary case to answer in relation subject to the disciplinary investigation para 34.9 ET1 (case no. 3206079-2021). 21. If so, and in relation to each allegation, was the Claimant subjected to the detriment on the ground that he carried out the activities listed at paragraph 19 above? Whistleblowing Detriment S. 47B ERA 1996 22. Did the Claimant make the following disclosures: 22.1. Issuing a ‘Health and Safety Report’ on 14 September 2018 alleging that fire extinguishers and fire exits were obstructed and stating that there were fire hazards in the communications room. The report was provided to Paul Faherty and Meena Karavadra around 14 September 2018; 22.2. Writing to Mrs Shaunessy on 19 April 2021 setting out: 22.2.1. alleged breaches of the Working Time Regulations in that he stated that members were booking appointments on Sundays and evenings. 31 of 93 22.2.2. Gill Gordon, a manager was instructing her team to rebook interviews for the following day where customers had not responded to the first call. This was against the 48-hour contractual notice period with customers. 22.2.3. E BIO test checks were porous in that they were carried out without mandatory document checks, and they did not adequately protect public funds. 22.2.4. Reintroduction of individual targets without consideration of reasonable adjustments for disability and leading to other workload/wellbeing issues impacting on health and safety. 22.2.5. Reported that there is now a very fine line between the job description of AOs and that of EOs given the fact that we are now making decisions on suspending and unsuspending. This is potential territory for equal pay claims. 22.3. The alleged breaches of the Working Time Regulations were repeated to Gaye Lander during the Investigation Meeting and on 9 July 2021 to Bozena Hillyer (paragraph 14 of POC). 23. If so, in relation to each, is it a qualifying disclosure under s.47B ERA 1996? 24. Did the Respondents subject the Claimant to the following alleged detriments: 24.1. On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing false 6(i) DWP POC. Errors were being assigned to the wrong individuals. That refers to errors with SharePoint being attributed to the claimant when during an investigation between the claimant and his manager none of those cases in fact belonged to him. 24.2. On 8 April 2021, Ms Mulligan googling the Claimant’s name upon receipt of an ET1 including that she considered the Claimant had been dishonest; Para 6(ii) DWP 24.3. On 12 April 2021, Mr Lumsden referring the Claimant’s conduct to Ms Lander and 24.4. On 19 April 2021 continuing the disciplinary investigation against the Claimant after 24.5. Prior to the investigatory interview on 4 June 2021, the First Respondent, Mr 32 of 93 24.6. The First Respondent carrying out the investigatory interview contrary to DWP of the Claimant’s status as a TU representative). 24.7. Ms Lander carrying out the investigatory interview in an aggressive, condescending, 24.8. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions and 24.9. On 4 June 2021, at the fact-finding interview, Ms Lander allowed interference with 24.10. Following the investigation meeting on 4 June 2021, the First Respondent edited out 24.11. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 24.12. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms Lander bullied 24.13. Subjecting the Claimant to a ‘sham’ investigation. The claimant states that the above 24.14. On 30 July 2021 concluding that there was a disciplinary case to answer in relation subject to the disciplinary investigation para 34.9 ET1 (case no. 3206079/2021). 25. If so, and in relation to each allegation, was the Claimant subjected to the detriment on the ground that he had made one, or more, of the protected disclosures? Trade Union Detriment S.146 (1)(b) TULR(C)A 1992 26. Did the Respondent subject the Claimant to the following alleged detriments? 26.1. On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing false 33 of 93 6(i) DWP POC. Errors were being assigned to the wrong individuals. That refers to errors with SharePoint being attributed to the claimant when during an investigation between the claimant and his manager none of those cases in fact belonged to him. 26.2. On 8 April 2021, Ms Mulligan googling the Claimant’s name upon receipt of an ET1 including that she considered the Claimant had been dishonest; Para 6(ii) DWP 26.3. On 12 April 2021, Mr Lumsden referring the Claimant’s conduct to Ms Lander and 26.4. On 19 April 2021 continuing the disciplinary investigation against the Claimant after 26.5. Prior to the investigatory interview on 4 June 2021, the First Respondent, Mr 26.6. The First respondent carrying out the investigatory interview contrary to DWP of the Claimant’s status as a TU representative). 26.7. Ms Lander carrying out the investigatory interview in an aggressive, condescending, 26.8. On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions and 26.9. On 4 June 2021, at the fact-finding interview, Ms Lander allowed interference with 26.10. Following the investigation meeting on 4 June 2021, the First Respondent edited out 34 of 93 26.11. On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without 26.12. On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms Lander bullied 26.13. Subjecting the Claimant to a ‘sham’ investigation. The claimant states that the above 26.14. On 30 July 2021 concluding that there was a disciplinary case to answer in relation subject to the disciplinary investigation para 34.9 ET1 (case no. 3206079-2021). 27. Did the Claimant’s representation of colleagues and ex-colleagues in their Employment Tribunal claims amount to activities of his trade union (PCS) and if so, were they activities carried out at an appropriate time? 28. If so, and in relation to each allegation, was the Claimant subjected to the detriment for the sole or main purpose of preventing or deterring the claimant from taking part in the activities of his trade union at an appropriate time, or of penalising him for doing so? Remedy 29. Should any award of financial compensation be made? If so in what amount? 30. Should an award of injury to feelings be made? If so in what amount? 31. Should any award for personal injury be made? 32. The claimant states in his ET1 Form that he is seeking an ACAS uplift due to the respondent’s failure to comply with the relevant ACAS Code of Practice. He has not provided any details of the alleged breach in his ET1 Form, and he has not provided any further particulars. If the claimant gives further particulars about the alleged breach, the Tribunal at the Final Hearing will determine whether it is appropriate to consider awarding any ACAS uplift in the circumstances. 33. Should any award of interest be made? If so in what amount? 34. The claimant confirmed he is not seeking any recommendations.

Remedy

[55]As we did not find in favour of the claimant on any of his claims, we do not need to determine remedy. Law

[56]The statutory law relating to the claimant’s claims of discrimination is contained in the Equality Act 2010 (EqA). The relevant sections of the EqA were sections 35 of 93 13 (direct discrimination); 26 (harassment), 27 (victimisation), 123 (time limits) and 136 (burden of proof). The relevant provisions are set out here: 13. Direct discrimination A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. The relevant protected characteristics are— (a) age; (b) disability;

(d) race

(e) religion or belief;

(f) sex;

(g) sexual orientation. 26. Prohibited conduct (Harassment) A person (A) harasses another (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether conduct has the effect referred to, each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 36 of 93 27. Victimisation A person (A) victimises another person (B) if A subjects B to a detriment because— 1. B does a protected act, or (b) A believes that B has done, or may do, a protected act. Each of the following is a protected act— 1. bringing proceedings under this Act; 2. giving evidence or information in connection with proceedings under this Act; 3. doing any other thing for the purposes of or in connection with this Act; (1) making an allegation (whether or not express) that A or another person has contravened this Act. 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. 123. Time limits (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. 37 of 93 (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. 136. Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (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. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) This section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to— (a) an employment tribunal… The statutory provisions relating to health and safety detriment cases are in section 44 of the Employment Rights Act 1996: 44 Health and safety cases. (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that— (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or member of a safety committee— (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, 38 of 93 (ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise), (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety… The statutory provisions relating to whistleblowing detriment cases are contained in sections 43B and 47B of the Employment Rights Act 1996: 43B Disclosures qualifying for protection. “(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. (2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs, or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. 39 of 93 (3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. (4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed while obtaining legal advice. (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).” 47B Protected disclosures. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. The statutory provisions relating to Trade Union detriment cases is set out at paragraphs 270 and 271 below. Housekeeping and Hearing

[57]We started the hearing at 10:00am on the first scheduled day, 19 July. We had started our reading of the bundle but had not been provided with any witness statements at that stage. We had seen the claimant’s application for adjournment timed at 09:38 on 19 July 2023 and, after he had confirmed that he wished to renew the application for a postponement, we heard the submissions of the parties and refused the application for the reasons set out above on that date but gave the claimant the opportunity of renewing the application once he had medical evidence in the form recommended in the case of Andreou.

[58]The parties produced a joint bundle of 1053 pages. If we refer to pages in the bundle, the page number(s) will be in square brackets (e.g. [43]).

[59]The events of 20 and 21 July regarding the application for adjournment are set out above, as are our actions in relation to the exchange of witness statements.

[60]Mr Supiya had submitted nine documents at 11:23am on 19 July that concerned his appeal to the EAT, his previous applications for adjournment and his previous Med 3 certificates. These were noted.

[61]Mr Supiya had submitted 5 documents with his email timed at 08:49 on 20 July:61.1 Investigation by Chido Supiya Final (Word document);

61.2 Standards of Behaviour Procedure (Word document);

61.3 Screenshot Investigation Report; 40 of 93

61.4 Screenshot Grievance Letter; and

61.5 Reporting the Dog Biting Incident of 22 July 2022 (Word document).

[62]It was agreed that the Investigation Report already appeared in the bundle starting at page 755. We were not sure of the relevance of the other documents, so decided to deal with them as and when they came up in evidence in order to save time and expense. We planned to deal with any dispute about whether a document should be admitted when it was referred to.

[63]With the benefit of hindsight, this may not have been the best way of dealing with one document in particular; the Standards of Behaviour Procedure, to which we will return. None of the documents were given page numbers at the time they were produced. As the Standards of Behaviour Procedure submitted by the claimant was the subject of considerable debate on the sixth day (27 July), it will be given page numbers 1054 to 1055 and is added to the hearing bundle.

[64]Ms Loraine advised the Tribunal that she had now had chance to read the statements of the claimant and his witnesses and would take instructions from the respondents’ solicitors as to whether they would require any of the claimant’s witnesses (other than the claimant himself) to give evidence. She was also going to consider whether the respondents needed to call all the witnesses who had tendered witness statements in the light of the claimant’s statements.

[65]Once we had made a final determination of the claimant’s application to adjourn on the third morning (21 July), we then returned to the question of case management. We advised the parties that Mrs Dengate had a personal matter to attend to on Friday 28 July and that we would not be sitting beyond 3:00pm on that day.

[66]We also advised the parties that EJ Shore had a personal matter to attend to that meant he would not be available on Tuesday 25 July. We would not be sitting on that day.

[67]Ms Loraine advised that having considered the claimant’s witness statements, the respondents would not require any of the claimant’s witness, other than the claimant himself, to give evidence, as she would not have any questions for them. Those witnesses had all tendered witness statements and were:67.1 Mehmet Rose, an Executive Officer with the first respondent;

67.2 Sadaquat Khan, a Fraud Investigation Officer with the first respondent;

67.3 Susan McFarlane Hamilton, a Criminal Investigator in the first respondent’s Counter Fraud and Compliance Department; and

67.4 Heidi Robinson-Smith-Hunte-Hunte, an employee of the first respondent who was currently on a career break. 41 of 93

[68]Ms Loraine also indicated that the respondents would not be calling two witnesses who had tendered witness statements:68.1 Angela Green, who is Deputy Director of the first respondent within its Change Delivery Function; and

68.2 David Innes, who is Debt Management Group Manager for the first respondent.

[69]We read and considered the witness statements of the claimant’s witnesses, which were unchallenged. We did not consider the statements of Ms Green or Mr Innes, as their evidence was withdrawn by the respondent.

[70]The significant change in the number of witnesses to be called meant that the indicative timetable set out in the case management order of EJ Beyzade following the hearing of 20 and 26 June 2023 was redundant. After speaking to the parties, we were confident that we would at least be able to complete the evidence in the time available to us, but that we were hopeful of being able to hear closing submissions and at least start our deliberations.

[71]There was some confusion over the status of Gaye Lander, the fifth respondent, as a witness. Mr Supiya said he had not received her witness statement. On investigation, he was shown to be right. A copy of Ms Lander’s witness statement was provided to the claimant and the Tribunal at 10:25am on 21 July. We took a break after we had dealt with case management issues to read the statement and allow the claimant to read it.

[72]Ms Loraine then raised an issue concerning an investigatory interview conducted remotely on the Teams platform on 4 June 2021 that involved the claimant, his trade union representative, Heidi Robinson-Smith-Hunte, Ms Lander, and her line manager, Ceri Upton. The meeting was recorded. A CD was made of the recoding and provided to the claimant. A transcript of the meeting was produced [471-499]

[73]The claimant alleges that the transcript omitted a comment by Ms Lander to the effect of “I have been asked to ask you…”, which he said was indicative of someone directing Ms Lander as to what questions to ask in the meeting.

[74]We decided that it was disproportionate to ask the Tribunal to listen to the whole of recording of a meeting that lasted approximately two and a half hours to find seven words, but that if the claimant identified where on the recoding the words were spoken, the respondents could provide a wav. or other audio file that we could listen to.

[75]Ms Loraine confirmed that the respondents had a copy of the recording, as did Mr Supiya. We ordered Mr Supiya to advise the respondents where on the recoding the words could be found by 10:00am on the morning of Monday 24 July (we were not scheduled to sit on that day) and for the respondents to produce a recording of the extract to the Tribunal by 10:00am on Tuesday 25 July (we were not sitting on that day either). 42 of 93

[76]On the morning of 24 July, Mr Supiya emailed the Tribunal and the respondents to advise that he had “attempted to locate the point in the recording but have been unable to do so as I am finding it difficult to concentrate and constantly trying to follow the recording is causing me headaches.”

[77]We did not find it proportionate to make any further investigation into the point.

[78]Mr Supiya then raised the subject of a 45-minute YouTube video of an interview that he had given about the security situation in Mozambique. The video was one of the two subjects of Ms Mulligan’s report about the claimant that launched Ms Lander’s investigation into the claimant. Mr Supiya submitted that the Tribunal had to look at the whole of the video to determine the reasonableness of the respondents’ actions.

[79]Ms Loraine submitted that it was the first respondent’s case that it relied on the screenshots of the video and the evidence of their witnesses on the point.

[80]We decided that the respondents could present their case in the manner they saw fit and that it was not proportionate for the Tribunal to watch the whole of the video.

[81]We then adjourned. On the resumption, we started the evidence. We and the claimant had received Ms Lander’s witness statement, but we asked Ms Loraine not to ask the claimant anything about it until after lunch, so he had opportunity to consider it again.

[82]The claimant gave evidence in person on affirmation and produced a witness statement dated 19 July 2023, which was unsigned and consisted of 80 paragraphs over 34 pages. The claimant ended his evidence at 4:35pm on the third day of the hearing.

[83]The claimant tendered evidence from the following witnesses, who the respondents chose not to cross-examine:83.1 Mehmet Rose, an Executive Officer with the first respondent;

83.2 Sadaquat Khan, a Fraud Investigation Officer with the first respondent;

83.3 Susan McFarlane Hamilton, a Criminal Investigator in the first respondent’s Counter Fraud and Compliance Department; and

83.4 Heidi Robinson-Smith-Hunte, an employee of the first respondent and PCS Representative who was then on a career break.

[84]The hearing restarted on 26 July 2023. Evidence was given in person on behalf of the respondents by:84.1 Gaye Lander, the fifth respondent. Her undated evidence in chief was a witness statement consisting of 14 paragraphs over 5 pages. 43 of 93

84.2 Gurpreet Walia, the fourth respondent. His undated evidence in chief was a witness statement consisting of 17 paragraphs over 6 pages.

84.3 Patrice Mulligan, the second respondent. Her undated witness statement consisted of 11 paragraphs over 5 pages.

84.4 Meena Karavadra, NINO Business Manager at the respondent’s Counter Fraud, Compliance and Debt Directorate. Her undated witness statement consisted of 17 paragraphs over 6 pages.

[85]On the sixth day, (July 27), evidence was given in person for the respondent by:85.1 Mark Lumsden, the fourth respondent. His undated witness statement consisted of 7 paragraphs over 4 pages.

85.2 Neil Green, Deputy Director GIAA Counter Fraud and Investigation. His undated witness statement consisted of 25 paragraphs over 7 pages.

[86]All the witnesses gave evidence on affirmation. The claimant was crossexamined by Ms Loraine in some detail. All the respondent’s witnesses were cross-examined by the claimant in some detail. The claimant was advised that if a witness was not challenged on evidence that related to an issue we had to determine, the Tribunal was likely to find the unchallenged evidence was credible.

[87]At the end of the sixth day, we discussed closing submissions with the parties. The claimant said that he would need two or three days to prepare his closing submissions, which we did not consider to be reasonable or proportionate. Ms Lorraine said she was ready to make oral submissions. It was obvious that we would have to make a reserved Judgment and Reasons, so agreed that we would start closing submissions at 12:00pm on the seventh day. We ended the sixth day at 4:30pm.

[88]On the seventh day, we started at 12:00pm and heard Ms Lorraine’s closing submissions until 12:35pm. We the heard the claimant’s closing submissions until 1:30pm. We advised the parties that we would start to consider our decision after lunch and would reserve it. The parties were released.

[89]We continued our deliberations on the seventh afternoon and met again on 31 July to complete our deliberations. Our decision was made on 31 July 2023.

[90]Note from Employment Judge Shore – It is entirely my responsibility that it has taken far too long to produce this Reserved Judgment and Reasons, for which I can only offer my sincere and profuse apologies to the parties, the representatives, and my colleagues. Before, during and following the hearing, I have had to deal with several personal matters that reduced the time I had available to complete what was a complicated decision in a complex case, whilst also fulfilling my obligations to ongoing hearings and family duties. 44 of 93 Findings of Fact Preliminary Comments

Findings of Fact

[91]All findings of fact were made on the balance of probabilities. If a matter was in dispute, we will set out the reasons why we decided to prefer one party’s case over the other. If there was no dispute over a matter, we will either record that with the finding or make no comment as to the reason that a particular finding was made. We have not dealt with every single matter that was raised in evidence or the documents. We have only dealt with matters that we found relevant to the issues we have had to determine. We have dealt with the case on the basis of the documents and evidence produced to us and the claim as set out in the List of Issues.

[92]The factual nexus of the individual elements of this case are closely interwoven. The claimant relies on the facts of incidents which are the basis of multiple heads of claim. That means that in dealing with the individual allegations within a particular head of claim on an individual basis, we must make findings that are also relevant to other claims. We have set out our findings of fact in the order in which the claims appear in the List of Issues. That has necessarily meant that we have relied on facts made in the claims at the top of the List of Issues in determining the claims that are based on the same facts further down the List. We have either cut and pasted the relevant facts or simply referred to the paragraph numbers of the Reasons where the relevant facts can be found. The claimant has made the same or very similar allegations of fact and detriment under his claims of direct race discrimination; harassment related to race; health and safety detriments; whistleblowing detriment; Trade Union activity detriment; and victimisation.

[93]There were not many disputes of facts in this case. The disputes about facts were more about the interpretation that we should put on the evidence about a document or event.

[94]It is rare for a witness to be entirely not credible or unreliable in their evidence. Similarly, it is unusual for a witness to be entirely credible. We have made no general findings that any witness was either entirely credible, or entirely not credible. Where we have made findings that one witness was more credible than another on a particular point, we will explain what we made the finding. Undisputed Facts

[95]We should record as a preliminary finding that a number of relevant facts were not disputed, not challenged, or actually agreed by the parties. These were:95.1 The first respondent is a large government department.

95.2 The claimant had been and remained employed (at the date of the hearing) since 5 June 2017. His job title at the date he presented his first five ET1s was Universal Credit Interventions Officer. He had previously had the job title National Insurance Interviewing Officer (NINO). The claimant’s ACAS 45 of 93 Certificate [10] and ET1’s [11] were in the name Chido Supiya. His Particulars of Claim were signed by Bobby Supiya [46]. It was agreed that the claimant used both names.

95.3 It was agreed that at all relevant times in respect of this case, the claimant met the definition of ‘disabled person’ because of diabetic retinopathy and glaucoma and that the first respondent had knowledge of the disability. The claimant does not make any claim of disability discrimination that requires a respondent to have knowledge.

95.4 The respondent accepted that the claimant was a trade union representative for the Public and Commercial Services Union (PCS) and his duties included health and safety responsibilities [179].

95.5 The claimant’s employment was subject to a number of procedures and policies:95.5.1 Accessibility Law dated 18 September 2023 [805-813];

95.5.2 Employee investigations – A Guide for Managers and Employees dated 21 August 2006 [814-832];

95.5.3 DWP Standards of Behaviour Advice dated 21 December 2020 [833-841];

95.5.4 DWP Political Activity dated 22 April 2013 [842—844];

95.5.5 DWP Discipline Policy dated 22 June 20026 [845-868];

95.5.6 DWP Briefing re: Disciplinary action for information security offences Guidance for PCS DWP Group Representatives dated 22 November 2018 [869-870];

95.5.7 DWP Social Media Policy dated 22 November 2021 [871-874];

95.5.8 DWP Acceptable Use Policy dated 24 April 2018 [875-883];

95.5.9 Information Management Policy dated 23 May 2005 [884-890];

95.5.10 Civil Service Code & Standards of Behaviour (undated) [891- 898]; and

95.5.11 The Civil Service Code (undated) [899-903].

95.6 It was the unchallenged evidence of the respondents (particularly Ms Lander) that the Government Internal Audit Agency (GIAA) for which she worked is a separate government body to the DWP (the first respondent). It was also unchallenged evidence that the GIAA conducts investigations on behalf of the DWP and other government departments. The GIAA would only investigate employees of the DWP, not its customers. 46 of 93

95.7 The claimant says he submitted a report to Paul Faherty and Meena Karavadra that was a protected disclosure on 14 September 2018. The report was alleged to contain information about health and safety matters; namely, that fire extinguishers and fire exits were obstructed and that there were fire hazards in the communications room. The claimant alleges detriments that happened between 8 April 2021 and 9 July 2021. The facts are disputed so we will come back to them under the “Disputed Facts” section.

95.8 The claimant represented claimants in Employment Tribunal proceedings against the first respondent. He represented some claimants as part of his trade union duties. The respondent asserts that he represented others outside his trade union duties. That is disputed and we will deal with it below as far as it affects the decisions we must make in this case. We were mindful that the disciplinary procedure was not completed at the time that the claimant’s claims were submitted and have tried to avoid making findings that prejudge the outcome of those disciplinary matters (if they proceeded to a final hearing).

95.9 The claimant represented Susan McFarlane-Hamilton in Employment Tribunal proceedings against the first respondent, in which the claimant was named in the Judgment and Reasons as “Mr B Supiya – Community Voluntary Advocate.” The case was about three ET1s submitted by Ms McFarlane-Hamilton on 17 May 2019; 2 February 2020; and 16 March 2020. The hearing was heard over ten days in March 2022.

95.10 The claimant represented Mr Rajwinder Mahl in Employment Tribunal proceedings against the first respondent that were heard and dismissed on 26 July 2022. In the Judgment, he was identified as “Mr R Supiya TU representative.” A PDF of the ET1 in that case was submitted during the proceedings. In paragraph 11, the claimant was identified as “Bobby Supiya” of “Community Voluntary Advocates” as Mr Mahl’s representative. The claimant also represented non-DWP employees and non-PSC claimants in Employment Tribunal proceedings.

95.11 The respondent had a project named “Retro+,” the purpose of which was identify and resolve issues with data accuracy and compliance with instructions. The fourth respondent, Gurpreet Walia, joined the 800- strong Retro+ team in February or March 2020 to lead on data integrity, accuracy, and reporting.

95.12 The Retro+ system operated on Microsoft SharePoint. There was also a spreadsheet of between 44,000 and 46,000 lines of date across 60 to 70 columns. In lay language, the spreadsheet did not communicate with SharePoint, so the operatives had to manually make the changes in SharePoint when anomalures in the data were detected on the spreadsheet.

95.13 Mr Walia used the word “anomalies”. The claimant says that they were called “errors”. The claimant joined the Retro+ team and alleges that on 47 of 93 12 April 2021 Mr Walia, acting outside of his remit, manufactured false poor performance proceedings against the claimant and engineering the claimant’s dismissal. The claimant alleges that “errors” were being assigned to the wrong individuals. Specifically, errors in the information recorded on SharePoint were attributed to the claimant. The claimant asserts that in an investigation, it was shown that none of the errors were his. This is a disputed allegation, so we will deal with it below.

95.14 The claimant attended an investigation meeting by remote video link on the Teams platform with Gaye Lander on 4 June 2021. He was supported by a PCS Representative, Heidi Robinson-Smith-Hunte at the meeting. Ms Lander was supported by her direct line manager, Ceri Upton. The transcript of the meeting [471-499] was agreed between the parties, save for the disagreement about the comment that the claimant attributes to Ms Lander which is dealt with below. Ms Lander produced a report that recommended disciplinary action be taken against the claimant. Points of Dispute General Points

[96]It was an unusual feature of this case that an employer’s policy and procedural documents were the cause of dispute. In this case, Mr Supiya took a very different view of the meaning and interpretation of the first respondent’s policies and procedures. We therefore find it appropriate to list the disputed documents above and make findings as to their meaning and/or interpretation below.

[97]We have not made findings of fact on much of what is alleged by the claimant in his lengthy witness statement because we did not find that many of the matters referred therein were relevant to the issues that we had to determine.

[98]The Tribunal must deal with matters in a proportionate way – we have to allocate time and resources to a question that is proportionate to its importance or value. This must be done through the lens of the List of Issues, which sets out the claims, and in a way that ensures that we only address matters that are relevant to the issues we must determine.

[99]We will therefore address the findings of fact in the order of the issues set out in the list of issues. It may be that some findings made in the earlier issues are relevant to later issues. The respondent has conceded that the claimant met the definition of disability at all relevant times because of diabetic retinopathy and glaucoma, so that is recorded as an agreed fact above.

[100]The allegations are (paragraph 4.1. to 4.3.) of the List of Issues:100.1 On 17/06/2021 (after the investigatory meeting on 4 June 2021), Ms 48 of 93 font; see Para 15 DWP POC and the email from Gaye Lander to Claimant dated 17/06/2021.

100.2 Ignoring the disability advised by PCS Rep to Ms Lander at the meeting of 4 June 2021 and repeatedly flashing documents on the screen; and

100.3 Advising the claimant in the email dated 17 June 2021 to go for IT training instead of simply providing documents in the requested format.

[101]We should note that we have only made findings of facts about the matters in the List of Issues. For example, we make no findings about the exchange of emails between Ms Lander and the claimant on 21 June 2021. The background of this suite of disability harassment complaints, which was not disputed in crossexamination by the claimant, is that on 9 April 2021, Patrice Mulligan, Operations Leader for North and South London - Counter Fraud, Compliance and Debt at the DWP, (the third respondent) emailed Mark Lumsden [388], Operations Leader for East and West London – Counter Fraud, Compliance and Debt at the DWP (the fourth respondent). In the email, Ms Mulligan stated that she had read an ET1 that had been issued against the DWP on 8 April 2021 as she had made the decision to dismiss the employee in the unfair dismissal case.

[102]As she read the ET1, she noted that the name of the claimant’s representative in the case was “…similar to one of our employees who used to be in my hierarchy.” She had Googled the name and found it was the same person. The Google search had bought up “…other information that I am extremely concerned and disturbed by.”: “The first is an official Employment Tribunals document which details a case that was heard on 16th September 2020 where Bobby Supiya had dialled in. It also states that a further hearing would be held on 2nd October 2020. I am not aware that the MOS has gained permission to carry out this additional role whether voluntary or not. As he is now representing an ex DWP employee in a voluntary capacity and not as an official TU representative consider this to be a conflict of interest and don’t believe permission would have been given, even if it had been sought. I’m also concerned as I now believe he is acting in other cases and wonder if this is being conducted in his own time or ours. The second incident has disturbed me as he is being interviewed in a youtube podcast entitled ‘Mozambique terrorists using Tanzania as a hiding base – Major Bobby Supiya’ and is claiming to be a political scientist and military analyst and confirmed that he is a Major. He is also providing political views as an expert in this field. Unfortunately our systems prevent the link below from being opened but can be viewed on any other device. Again, I don’t believe that permission has been sought, and if it had, it would have been declined. This shows that he is being dishonest in his claims and therefore brings the DWP into disrepute should anyone realise he actually works for us. 49 of 93 https://youtu.be/JT3Kz4i5BLY” [769]

[103]It is apparent from email correspondence [389] that Mr Lumsden spoke to Carolyn Hall, Policy Officer, Referral & Policy Team, Counter Fraud and Investigation, Government Internal Audit Agency (GIAA) by telephone, as a result of which call, Ms Hall sent Mr Lumsden a Referral Form by email on 9 April 2021 [389-390].

[104]Mr Lumsden sent Ms Hall an email [388] with a completed Referral Form [391- 393] related to the claimant on 9 April 2021. The form included the link to the YouTube video that Ms Mulligan referred to and attached the Tribunal claim details that Ms Mulligan had referenced – 2202047/2019 [345-346] in which the claimant represented the claimant in that case under the name “Mr Bobby Supiya volunteer advocate” at preliminary hearings on 16 September 202 and 2 October 2020.

[105]Ms Lander was assigned to investigate the allegations against the claimant contained in the Referral Form. She gave unchallenged evidence that she looked at the claimant’s Facebook page, which was in the name “Bobby Supiya” and was open to the public. She took screenshots of some of the pages [428-460]. Ms Lander denied attempting to log into the claimant’s Twitter account [259].

[106]Ms Lander sent pictures of the claimant that were posted on his Facebook account to Mr Lumsden and asked him to do an identity check. Mr Lumsden confirmed that the pictures were of the claimant [407-408]. Ms Lander reviewed the claimant’s training records [414-421] that showed the claimant had undertaken the DWP Security and Resilience Training Course in 2017, 2018, and 2019. It was unchallenged evidence that the Security Code Checklist included the following: “You must use moderate, respectful and professional language when communicating externally or internally so as to… protect your own and the Department’s reputation for integrity and impartiality”’; and “You must comply with relevant Departmental policies and standards both inside and outside of work including the Acceptable Use policy, the Information Management Policy, and the Social Media policy… These are important in order to… maintain the reputation of the Department and the Civil Service.”

[107]Ms Lander gave unchallenged evidence that she also reviewed the Standards of Behaviour Advice [833-841], the Acceptable Use Policy [875-883]. The Information Management Policy [844-890] and the Employee Investigations a Guide for Managers and Employees document [814-832].

[108]Ms Lander arranged a meeting with the claimant on 4 June 2021 by MS Teams after three previous dates were rejected by the claimant. A transcript of the interview was produced [471-499]. The claimant was represented by his Trade Union Representative, Heidi Robinson-Smith-Hunte. 50 of 93

[109]The claimant alleges that the transcript omitted a comment by Ms Lander to the effect of “I have been asked to ask you…”, which he says is indicative of someone directing Ms Lander as to what questions to ask in the meeting. Ms RobinsonSmith-Hunte made many complaints about the process of the meeting in her witness statement (paragraphs 18-45) but did not recall that Ms Lander said the words alleged.

[110]Ms Robinson-Smith-Hunte did not allege that Ms Lander had ignored his visual disability that she had advised Ms Lander about. Ms Robinson-Smith-Hunte did not allege that Ms Lander had “…repeatedly flashed documents on the screen.” We note that the claimant told Ms Lander in an email dated 4 June 2021 [465] that Ms Robinson-Smith-Hunte would not take notes of the meeting and relied on Dragon (voice recognition) software. If the words alleged had been spoken by Ms Lander, we would have expected Ms Robinson-Smith-Hunte’s software to have captured them.

[111]Despite the claimant having the transcript of the meeting and a CD recording to compare it against, he was unable to find the alleged comment. We find that the claimant has not met the standard of proof to show facts from which the Tribunal could conclude that Ms Lander said words to the effect of “I have been asked to ask you…” We find that the burden of proof does not switch to the respondent.

[112]Further, had she said the words, we would not have implied that there was something untoward about Ms Lander being advised by her supervisor, who was in attendance, prompting her to ask questions.

[113]We find that the claimant has not met the standard of proof to show facts from which the Tribunal could conclude that Ms Lander was being directed as to what questions to ask in the meeting. The burden of proof does not switch to the respondent.

[114]We find that the question of the claimant’s visual impairment was raised by the claimant in the 4 June 2021 email [465] to Ms Lander referred to above in which he stated that if there were any documents to view, they would have to be “…clearly legible as I have sight difficulties.”

[115]The matter of the claimant’s visual impairment was raised in the meeting after Ms Lander sent the claimant and his representative electronic copies of the documents she wished to refer to when asking questions about the claimant’s online activity and his representation of DWP employees in Employment Tribunals. It first appears at the thirteenth page of the notes [483]. Ms Lander told the claimant she had sent him the documents. He asked the claimant if he needed a break to read the documents. The claimant said he couldn’t see. Ms RobinsonSmith-Hunte asked for more time to look at the documents, which was granted [484].

[116]We find that the record of the meeting shows that the claimant was shown documents that were shared on the screen. Ms Robinson-Smith-Hunte made no complaint on the claimant’s behalf about the manner in which the documents were shown. Given the context and combative tone of both sides in the entire 51 of 93 meeting, we are certain that the claimant and/or Ms Robinson-Smith-Hunte would have taken any opportunity to find fault with the process.

[117]We find that the claimant has not shown facts from which the Tribunal could conclude that the respondents ignored the claimant’s disability advised by Ms Robinson-Smith-Hunte in the meeting on 4 June 2021 or that Ms Lander repeatedly flashed documents at the claimant in the meeting. The burden of proof does not transfer to the respondents. Ms Robinson-Smith-Hunte complained that Ms Lander asked the claimant if his line manager was aware of his disability, but that is not a complaint of harassment in these proceedings.

[118]On 17 June 2021 at 12:24pm, Ms Lander emailed Ms Robinson-Smith-Hunte about the meeting on 4 June 2021 [501]. The first respondent had prepared a CD of the 4 June meeting and Ms Lander wanted to make arrangements for a copy to be delivered to, or picked up by, the claimant, who was on sick leave.

[119]Ms Robinson Smith replied at 14:15pm and advised Ms Lander that the claimant had a problem with how the typed copy of the minutes had been sent to him. He asked for the minutes to be sent in size 14 font or larger.

[120]Ms Lander replied at 14:58pm on 17 June 2021. The second paragraph of her email stated: “Whilst I am happy to change the font on the transcript – I am bemused as to why? The size of any document can be increased on screen up to 200%. The transcript has not been sent in hard copy format, so I do find this a little pedantic.”

[121]The above paragraph is the origin of the claimant’s first claim of harassment related to disability.

[122]There was a debate in the hearing about what the claimant could have done with the Word document sent to him. The claimant’s position was that the size of a Word document could not be increased and that he would not be able to read the document unless it was sent in font 14. We take judicial knowledge of the facts that:122.1 Every Word document can be increased in size by up to 200%;

122.2 As the document had been sent electronically, the claimant could have increased the font size himself.

122.3 The ability to increase font size and the size of Word documents is a basic function of the Word software.

[123]We find that the claimant used font size 11 to send his own emails.

[124]We find that the claimant’s position on this point was illustrative of his conduct during the process undertaken by the respondents and his approach to this 52 of 93 Tribunal claim: he was unnecessarily argumentative and obstructive and occasionally would not accept the most obvious points that were put to him.

[125]We find that the claimant has not met the standard of proof to show facts from which the Tribunal could conclude that Ms Lander bullied and harassed him by mocking his visual disabilities and ignoring his request for documents to be provided in point 14 font. The burden of proof does not switch to the respondents.

[126]If the burden had switched, we would have found that after taking into account the perception of the claimant; the other circumstances of the case; and whether it is reasonable for the conduct to have the effect complained of, the respondent would have been able to show that it did not harass the claimant because of something related to disability. We find the claimant manufactured a claim where no claim existed. Direct Race Discrimination (s.13 EA)

[127]The allegations of direct race discrimination (paragraphs 7.1. and 7.2. of the List of Issues) under section 13 of the Equality Act 2010 were:127.1 On 12 April 2021, the instigation of a disciplinary investigation into the Claimant’s conduct; and

127.2 On 4 June 2021, the manner in which the disciplinary investigation was conducted in particular during the investigation interview of 4 June 2021, Gaye Lander shouting at the Claimant, constantly interrupting Claimant, and speaking to him in a dismissive and condescending manner.

[128]We find that the background to the first claim is the same as that set out in paragraphs [94 to 100] above.

[129]The claimant’s evidence in chief about direct race discrimination is slight. His witness statement has headings that indicate what the following paragraphs will cover. The only mention of section 13 of the Equality Act 2010 or direct discrimination in a heading is before the section from paragraphs 7 to 10 of the witness statement, which is headed “TULCRA;SECTION 44 & SECTION 13 EQA 2010 Legacy matters”.

[130]Paragraph 9 of the claimant’s statement makes allegations of direct race discrimination that followed his appointment as an accredited TU Health and Safety Representative in January 2018. The claimant only used the word “race” in his witness statement once, in paragraph 72. It related to his grievance being about “race/bullying and harassment/victimisation related to being a TU representative and whistle blowing.”

[131]The final paragraph of the claimant’s witness statement alleges that “…I have been discriminated against, harassed and victimised as a black union representative for fulfilling my [union role].”

[132]The claimant’s evidence in chief contained 25 long paragraphs about the meeting with Ms Lander on 4 June 2021. He does not allege race discrimination in any of 53 of 93 them. We find that the contemporaneous record of the meeting is nearly verbatim; it includes words used in common speech as pauses whilst the speaker is thinking, such as “erm”. We find that the transcript does not disclose Gaye Lander shouting at the claimant, constantly interrupting claimant, or speaking to him in a dismissive and condescending manner. Obviously, a transcript cannot inform us as to whether Ms Lander shouted at the claimant, but we find that if she had done, the claimant or Ms Robinson-Smith-Hunte would have immediately objected because they objected frequently in the meeting when they felt that matters were not being dealt with properly.

[133]The claimant objected to being interrupted by Ms Lander (for example page 493), but Ms Lander also complains of the claimant interrupting her (for example page 494)

[134]In the absence of any evidence in chief explaining why the claimant believed he had been directly discriminated against because of his race, we find that the claimant has not shown facts from which we could conclude in the absence of any explanation that the respondent had discriminated against the claimant because of his race. The burden of proof does not switch to the respondents. Harassment related to race (s.26 EA)

[135]The allegations of direct race discrimination (paragraphs 7.1. and 7.2. of the List of Issues) under section 13 of the Equality Act 2010 were:135.1 On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing having poor performance proceedings instituted against the Claimant and engineer his dismissal. Para 6(i) DWP POC

135.2 On 8 April 2021, Ms Mulligan googling the Claimant’s name upon receipt of an ET1 for Raj Mahl and passing the information on to Mr Lumsden with a view to causing an investigation into the Claimant’s conduct and facilitating his dismissal.

135.3 Prejudging and concluding in referral letter dated 08 April 2021 that there had been a breach of the Civil Service Code and that she considered the Claimant to have been dishonest; Para 6(ii) DWP POC

135.4 On 12 April 2021, Mr Lumsden referring the Claimant’s conduct to Ms against the Claimant (and his dismissal); Para 6(iii) DWP POC

135.5 On 19 April 2021 continuing the disciplinary investigation against the

135.6 Prior to the investigatory interview on 4 June 2021, the First Respondent, Mr Lumsden and Ms Upton not disclosing to the Claimant 54 of 93 that the investigation was triggered by the Claimant filing an Employment Tribunal claim on behalf of Mr Mahl, an ex-employee of the DWP and a member of the PCS union, for the purpose of ambushing the Claimant with this information; Para 6(vii) and 7 DWP POC. This prejudiced Claimant.

135.7 Gaye Lander carrying out the investigatory interview contrary to DWP policies and procedures in that no reference was made to CSHR or PCS (in light of the Claimant’s status as a TU representative) Para 8 DWP

135.8 Ms Lander carrying out the investigatory interview in an aggressive, shouted and spoke down to the claimant, speaking to him without allowing him to give full answers. It is also alleged that Ms Lander

135.9 On 4 June 2021, at the fact-finding interview, Ms Lander drew POC

135.10 On 4 June 2021, at the fact-finding interview, Ms Lander allowed instructions from someone else. She was receiving ‘pings’ of messages at crucial points during the meeting and at one point said ‘I have been asked to ask’; Para 11 & 14 DWP POC

135.11 Following the investigation meeting on 4 June 2021, the First Respondent edited out the comment ‘I have been asked to ask’ from the transcript of the meeting to mislead the Claimant; Para 14 DWP POC

135.12 On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without investigation, the Claimant’s allegation that the disciplinary investigation was motivated by victimisation and whistleblowing; Para 12 DWP POC

135.13 On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms 14 font; Para 15 DWP POC

[136]We have already made findings of fact about some of the matters above, but we will deal with the thirteen allegations in numerical order. 55 of 93 Allegation 1 - April 2021 Mr Walia (second respondent)

[137]Gurpreet Walia was employed by the first respondent as the Senior Business Manager for the London Counter Fraud, Compliance, and Debt department (CFCD) at the time that the complaint concerning him was made. His evidence about the project that he and the claimant were involved in, and its chronology was not disputed.

[138]From around February or March 202 until August 2021, Mr Walia was redeployed to work on a DWP project called Retro+ that had stated in January 2020. Retro+ had gone live before pre-testing had been carried out. The result was that anomalies appeared in the data produced by the system. This was not disputed.

[139]Mr Walia’s role was to look at data integrity, accuracy and reporting arising from operative error or unclear instructions provided to employees. He identified the anomalies and liaised with line mangers to resolve the problems. Mr Walia had met the claimant previously through the claimant’s role as a Trade Union official.

[140]Phase 1 of the operation involved operatives contacting DWP customers and obtaining and/or confirming of relevant information then amending the relevant data set. The claimant was engaged in Phase 1.

[141]Mr Walia reviewed the data that had been manually entered into the DWP’s SharePoint system by operatives. The data was extracted from SharePoint and deposited into an Excel spreadsheet. The spreadsheet was then reviewed to detect anomalies or errors in the data. The anomalies would then be investigated further and corrected.

[142]Mr Walia’s unchallenged evidence was that the spreadsheet did not contain live data (changes to the spreadsheet did not change the data on SharePoint) and had approximately 44,000 to 46,000 lines of data across 60 to 70 columns. Mr Walia was not challenged in his evidence that he would send all line managers in each phase a copy of the local spreadsheet identifying the anomalies to be investigated. He would ask each line manager in this email to work with the operatives under their line management to consider what needed to be amended in SharePoint in the specific circumstances and action them. During Phase 1, the phase involving the claimant, Mr Walia would send an email to approximately 30 to 50 team leaders regarding anomalies to be further investigated. Approximately 200 to 400 operatives would be involved in the anomaly investigation process.

[143]We found Mr Walia’s evidence that his reports to managers were not identifying poor performance or errors made by operatives such as the claimant to be credible. We make that finding because:143.1 Mr Walia’s unchallenged explanation of the process was logically and internally consistent;

143.2 Mr Walia’s answers to cross-examination questions were consistent with his oral evidence; 56 of 93

143.3 We found Mr Walia’s evidence that he had no conversations about the data entries of individual operatives to be credible and unchallenged;

143.4 We found Mr Walia’s evidence that the focus of the work was on identifying anomalies in the data, not allocating blame to operatives who may have inputted that data was credible;

143.5 The claimant was never warned about any errors he had made;

143.6 Mr Walia was not challenged on his evidence that the anomalies were not a performance metric for operatives;

143.7 The claimant was never told he was responsible for errors in the Excel data;

143.8 The claimant was never subjected to any form of disciplinary investigation or sanction related to the data that he had inputted; and

143.9 The claimant was not dismissed.

[144]The claimant raised several grievances. One dated 9 July 2021 concerned Mr Walia [525-529]. The grievance stated: “Following receipt receipt (sic) from Treasury Solicitors of several Employment Tribunal claims in which Gurpreet Walia is implicated in harassment, race discrimination and victimisation allegations; he subjected me to a detriment by manufacturing false allegations of poor performance by me which had either nothing to do with me or were no longer in my remit with a view to institute poor performance proceedings to engineer my dismissal from the Department and with the hope that I will discontinue acting for the Claimants.”

[145]The first thing to note is that the grievance contains more detail than the five claims made against Mr Walia in the List of Issues. We have addressed the claim as expressed in the List of Issues. All the claims against Mr Walia were based on the same allegation: On 12 April 2021, Mr Walia acting outside of his remit, manufacturing false allegations of poor performance by the Claimant with a view to instituting poor performance proceedings against the Claimant and engineering his dismissal.

[146]The claimant’s allegation was summarised in paragraph 26 of his witness statement: “On or around 12 April, I started having problems with my line manager over alleged errors on Share point. When these were produced to me I contacted my line manager and started to go through them page 391-394. By the time we came to case No 6, either the cases once belonged to me and were allocated to other officers or had never been mine. I protested given the earlier conversations which bordered on allegations of poor performance and became suspicious given the other problems I had had with share point which were over and above the common problems with 57 of 93 the system which were over and above the general issues at page 394. I asked who had raised these issues and I was told Gurpreet Walia. I had never had direct dealings with him other than know that he was a named Respondent in the Employment Tribunal matters I was dealing with for Mrs McFarlane Hamilton. I did suspect that this might be something to do with that and given the other burning issues that members had complained about Retro Plus which had led me to write to Meena Karavadra at 398, on 19 April 2021, I wrote to Pam Shaughnessy blowing the whistle on certain malpractices which I believed were potentially unlawful but was against the spirit of ministerial directives.”

[147]We find that, at its highest, the claimant’s evidence in chief made no allegation of harassment related to race against the second respondent. His grievance contained no allegation that Mr Walia had harassed the claimant by unwanted conduct related to race. The claimant did not provide evidence that tended to show harassment. He did not switch the burden of proof.

[148]That would be the end of the matter if the claimant had not made four other claims arising out of the same facts against Mr Walia. We have therefore gone on to address the factual nexus of the claim.

[149]Following our findings above about the purpose of Mr Walia’s work and the actions taken as a result of it, we find that the claimant did not present evidence that met the standard of proof required that showed that Mr Walia manufactured false allegations of poor performance with a view to having poor performance proceedings instituted against the claimant and engineer his dismissal. The claimant and his Trade Union Representative attended an investigation meeting into his grievances on 7 December 2021 at which notes were taken [575-583]. In the meeting, it was alleged that on 14 April 2021, Mr Walia had: “…raised 17 errors against Chido’s work. When Chido went through these errors with Gurpreet after about 4 or 5 none of them involved Chido so he ended the conversation. He received no explanation or apology as to how the errors had been incorrectly attributed to him. Chido stated that these errors had been raised 2 days after Patrice had sent the investigation referral to Mark Lumsden. Chido feels this timing is significant and that it should also be noted that Gurpreet Walia is named as a respondent in the Macfarlane-Hamilton case and had good reason to ‘try and institute grounds for poor performance’ in an attempt to engineer Chido’s dismissal.”

[150]We have made a finding of fact above that Ms Mulligan had sent the referral to Mr Lumsden on 9 April 2021. We find it highly unlikely that whilst reporting to between 30 and 50 team leaders, Mr Walia would fabricate allegations against the claimant on 14 April 2021 because Ms Mulligan had referred an ET1 to Mr Lumsden on 9 April 2021. The ET1 referred to by Ms Mulligan in her email to Mr Lumsden on 9 April 2021 was case number 2202047/2019. That case number did not relate to a claim against the DWP so it could not have included Mr Walia as a respondent. Even if Mr Walia had been an actor in the case, we find it highly 58 of 93 unlikely that Ms Mulligan or Mr Lumsden would have told Mr Walia that the claimant participated in a case in which Mr Walia was an actor.

[151]Mr Walia acknowledged that at the time he was redeployed to Retro+, a DWP employee, Mrs Susan McFarlane-Hamilton brought a claim against the DWP in case number 2301914/2019 in which he was required as a witness. The case was heard in 2022.

[152]We find Mr Walia’s evidence that he was no longer line managed by Mr Lumsden during the Tetro+ project to be credible and unchallenged.

[153]We find that Mr Walia’s evidence that he was unaware of the claimant’s Health and Safety Representative activities was credible and unchallenged. Allegation 2 - April 2021 Ms Mulligan (third respondent)

[154]We find that this claim is misconceived. We make this finding because:154.1 The unchallenged evidence of Ms Mulligan was that she was the dismissing officer in the case brought by Mr Rajwinder Mahl under case number 2301047/2021. She said that on 7 April 2021, she received the case papers in Mr Mahl’s case from Suzanne Wells, the allocated HR consultant on the case, and noticed that his representative was “Bobby Supiya, Litigation Friend”.

154.2 Ms Mulligan noticed the name and thought it may be the claimant. She Googled “Bobby Supiya” and found that he represented people in Employment Tribunals against external employers, not only those who were, or had been, employees of the DWP [345-346]. Ms Mulligan’s evidence was that she was concerned that the claimant could have been involved in secondary employment that could have been in breach of his contract and the first respondent’s policies. This evidence was unchallenged.

154.3 Ms Mulligan also found a video of the claimant on YouTube titled “Mozambique terrorists using Tanzania as a hiding base – Major Bobby Supiya” [769] in which the claimant claimed to be a political scientist, a military analyst, and stated that he was an army Major. At the end of the video, he stated that he was a lawyer. Ms Mulligan considered that the video could compromise the claimant’s position as a civil servant, as it was dishonest (the claimant was not a lawyer) and could bring the DWP not disrepute. This evidence was unchallenged.

154.4 It was Ms Mulligan’s unchallenged evidence that as Ms Wells was the HR Consultant on the Mahl case, she raised what she had found out about the claimant representing other parties in non-DWP cases and his YouTube video with her by telephone on 9 April 2021. Ms Hall replied [379-385] and advised Ms Mulligan to raise the matter with a Grade 7 manager in the claimant’s management chain. Ms Mulligan was no longer in the claimant’s management chain. 59 of 93

154.5 That advice led Ms Mulligan to contact Mark Lumsden (a Grade 7 manager in the claimant’s management chain) on 9 April 2021, which we have dealt with above.

154.6 We therefore find that Ms Mulligan Googled “Bobby Supiya” on receipt of Mr Mahl’s Employment Tribunal papers as she had a genuine belief that the claimant may have committed a breach of his terms of employment by representing claimants in Employment Tribunals outside his Trade Union duties. We find no fault in Ms Mulligan’s actions.

154.7 We find that Ms Mulligan checked the position with Ms Wells, an HR Consultant, and followed her advice by sending the matter to Mr Lumsden to deal with as we have set out in our findings above. It cannot be disputed that Ms Mulligan’s actions caused an investigation into the claimant’s conduct. However, we cannot find that the referral was made to facilitate the claimant’s dismissal. We find that the claimant has not shown facts from which we could conclude in the absence of any explanation that the actions of Ms Mulligan as detailed above were acts of harassment related to race. Allegation 3 – 8 April 2021 Ms Mulligan (third respondent)

[155]We have made a finding of fact above that Ms Mulligan had sent the referral to Mr Lumsden on 9 April 2021. The factual claim of the claimant is therefore not made out as the date in the List of Issues is incorrect. No referral letter was written on 8 April 2021.

[156]However, we will address the claim as if the List of Issues concerned the referral letter of 9 April 2021 [388]. We find that the referral email from Ms Mulligan sets out the allegations concisely and consistently with the correspondence between herself and Ms Wells. We do not find that the claimant has shown facts from which we could conclude in the absence of any explanation that Ms Mulligan had harassed the claimant for something related to his race. The burden of proof does not switch. If the burden had switched, we would have found that Ms Mulligan’s actions were not related to race. She did not prejudice the outcome of the investigation. Allegation 4 – 12 April 2021 – Mr Lumsden (fourth respondent)

[157]There is no dispute that Mr Lumsden referred the claimant’s conduct to DWP Internal Investigations, but the referral was to Carolyn Hall by an email dated 9 April 2021 [389] to which the referral was attached [391-393]. The factual nexus of the claim as set out in the List of Issues is therefore incorrect.

[158]However, we will address the claim as if the List of Issues had referred to a referral to Ms Hall on 9 April 2021 as it is in the interests of justice to do so. As the referral quotes the allegations direct from Ms Mulligan’s email to Mr Lumsden, we repeat or finding that Ms Mulligan had set out the allegations concisely and consistently with the correspondence between herself and Ms Wells. We do not find that the claimant has shown facts from which we could conclude in the 60 of 93 absence of any explanation that Mr Lumsden had harassed the claimant for something related to his race. The burden of proof does not switch. If the burden had switched, we would have found that Mr Lumsden’s actions were not related to race. The outcome of any disciplinary action was outside Mr Lumsden’s control, so the question of dismissal was not his.

[159]We found Mr Lumsden’s evidence that he would have made a referral to GIAA in any situation whereby any employee had potentially breached the civil service code in allegedly having a secondary occupation; and making comments in a similar nature to that set out in the Video, if he had obtained HR advice to this effect, to be credible and consistent with the documents.

[160]As Mr Lumsden suspected that serious disciplinary offences had been committed by the claimant, the most likely explanation for referring the matter to GIAA was that belief. Allegation 5 – 19 April 2021 - DWP

[161]The claimant’s evidence in chief did not refer to this allegation at all. The claimant sent a communication dated 19 October 2021 to Pan Shaughnessy, Regional Leader – London, CFCD [1038-1039] about the Retro+ project. The claimant asserts that the letter was “a whistleblowing complaint.” He has provided no evidence as to how the communication meets the definition of a qualifying disclosure under section 43B of the Employment Rights Act 1996. We find that the communication is not a qualifying disclosure.

[162]It therefore follows that the continuation of the disciplinary investigation was not in the face of a whistleblowing complaint. If we had found that the communication was a qualifying disclosure, we would have not found that the continuation of the disciplinary investigation was a detriment that was because of the disclosure. We find that the nature and substance of the disciplinary allegations against the claimant were legitimate and that the continuation of the disciplinary procedure, even if there had been one was reasonable. Allegation 6 – Prior to 4 June 2021 DWP and Mr Lumsden

[163]We find this allegation to be based on a factual inaccuracy on the part of the claimant. Following our findings above, we repeat that the disciplinary investigation was triggered by Ms Mulligan’s discovery of the Employment Tribunal papers in case number 2202047/2019. The case of Mr Mahl was not discussed at the meeting on 4 June 2021 [472-500]. The only ET documents sent to the claimant before the meeting were those in relation to 2202047/2019 and 3200569/2019 [302], 3200730/2016 [303], 2301914/2019 [304-314]. Mr Mahl’s case was not one of them.

[164]We find that there was nothing with which the respondents could have ‘ambushed’ the claimant with. Mr Lumsden and the claimant knew that he represented Mr Mahl in his Trade Union capacity. The first respondent had no issue with the claimant representing members of his Trade Union in claims against the DWP in accordance with his duties as a Trade Union Representative. 61 of 93 We cannot see how the claimant could have been prejudiced by not being sent the Mahl papers, which he must already have seen. We have already found above that the investigation was not triggered by the Mahl case.

[165]We find that the claimant has not shown facts from we could conclude in the absence of an explanation that the respondent harassed him in this allegation. The burden of proof does not switch. If the burden had switched, we would have found that after taking into account the perception of the claimant; the other circumstances of the case; and whether it is reasonable for the conduct to have the effect complained of, the respondent would have been able to show that it did not harass the claimant because of something related to race. Allegation 7 – DWP and Ms Lander

[166]Ms Lander accepted in her witness statement (paragraph 13.4) that the claimant’s Trade Union and the Civil Service HR Department were not notified when the claimant was made the subject of disciplinary action. Ms Lander stated that she was not aware that the notification was a requirement of the DWP’s internal policy.

[167]We find that the claimant has shown facts from which we could conclude that he was harassed for something related to race.

[168]However, we do not find that the claimant was harassed for something related to race for the following reasons: 168.1 We find that that after considering the perception of the claimant; the other circumstances of the case; and whether it is reasonable for the conduct to have the effect complained of, it was not reasonable for the conduct to have had the effect complained of. We make that finding because:168.1.1 The claimant is a PCS Trade Union Representative and was conversant with the DWP policies around disciplinary proceedings and the requirements for investigators undertaking investigations into Trade Union Officials to notify the PSC Union and Civil Service HR;

168.1.2 This claim does not concern any subsequent disciplinary proceedings so the claimant we find that the error had no detrimental effect on the claimant;

168.1.3 The claimant was represented by Ms Robinson-Smith-Hunte, a PCS Trade Union Representative who had the same knowledge of procedures as the claimant;

168.1.4 There was extensive correspondence between the claimant and Ms Robinson-Smith-Hunte before the meeting;

168.1.5 The claimant’s Trade Union was therefore aware of the disciplinary investigation; 62 of 93

168.1.6 The claimant and Ms Robinson-Smith-Hunte told Ms Lander at the meeting on 4 June that they had done investigations into “…your organisation on a standard internet search.”; but

168.1.7 No mention of the requirement to notify the Trade Union and Civil Service was made to Ms Lander before the meeting. She was ambushed during the meeting instead [477];

168.1.8 Ms Lander accepted what she was told by the claimant and Ms Robinson-Smith-Hunte and said they would be noted. She proposed to continue with the interview. Ms Robinson-SmithHunte’s response was [477]: “For the purposes of the recording, we do want to note that we have serious issues and concerns regarding your independence and objectivity at the point, and I think we need to erm, make that erm, something that er, needs, needs to be identified at this stage, but erm … … with Mr Supiya’s erm, erm, er, er, authority, we can continue.”

168.1.9 We find that the claimant was well aware of the error that Ms Lander had fallen into before the meeting started and he and his representative did nothing to advise her of the error or give her any opportunity to fix things before the hearing. It is therefore our finding that it was not reasonable for the claimant to allege that his dignity had been violated or that Ms Lander or any other respondent had created an intimidating, hostile, degrading, humiliating or offensive environment for him. Allegation 8 – Ms Lander

[169]We refer to our previous findings in respect of the claimant’s allegations about Ms Lander’s conduct towards him in the meeting on 4 June 2021 and repeat that we find that the claimant has not shown facts form which we could conclude in the absence of an explanation that Ms Lander behaved as alleged. The burden of proof did not switch to the respondents. We found Ms Lander’s evidence on the matter (paragraph 15.3 of her witness statement) was credible and consistent with the documents. Allegation 9 – 4 June 2021 – Ms Lander

[170]We find that this claim is misconceived. We find that Ms Lander conducted an investigatory meeting with the claimant at which potential disciplinary matters were put to him. We find that the claimant was given opportunity to answer the matters that were put to him.

[171]We find that the claimant and his representative were obstructive and pedantic in the way that they conducted themselves in the meeting. An example of this is that Ms Lander was not able to start to ask even the most basic questions of the claimant (such as his background information) until page 8 of the notes of the 63 of 93 hearing [478] because of the obfuscation of the claimant and his representative. The claimant and his representative made some valid points about process, but their number was far exceeded by the number we consider to be no more than being argumentative for the sake of it.

[172]We find that it is the task of an investigating officer to draw conclusions about the things they are told in an investigatory meeting, so Ms Lander cannot be criticized for doing that. We find that the claimant has not shown facts from which we could conclude in the absence of an explanation that Ms Lander threatened to refer matters to a decision maker when matters of procedure were raised by the claimant. The burden of proof did not switch to the respondents. It is not clear whether the words in brackets in the List of Issues is a complaint of harassment or a commentary, “(when the claimant raised questions about the allegation, and he was simply told that they would come back to him without providing the answers).” If it was a complaint, we find that the claimant did not shown facts form which we could conclude in the absence of an explanation that the respondents behaved as alleged. The burden of proof did not switch to the respondents. Allegation 10 – 4 June 2021 Ms Lander

[173]We find that the claimant’s witness statement did not mention this allegation. Ms Lander dealt with it in her witness evidence (paragraph 15.5), which we found to be credible. It was internally consistent, logically consistent and the witness’ oral evidence was consistent with her written evidence.

[174]We find that the meeting took place on MS Teams. We take judicial notice that such meetings are often punctuated by notifications from the devices of the participants that indicate that messages had been received. We find that Ms Lander’s line manager was on the hearing and that she sent Ms Lander pointers and guidance to her questioning because Mr Lander’s evidence admitted as much and was not challenged. We see nothing wrong in that. We do not see how that could be a matter of harassment related to race.

[175]We find that the claimant has not shown facts from which we could conclude in the absence of an explanation that Ms Lander threatened to refer matters to a decision maker when matters of procedure were raised by the claimant. The burden of proof did not switch to the respondents. Allegation 11 – Post 4 June 2021 Ms Lander

[176]We have already determined that the claimant has not shown facts from which we could conclude that Ms Lander removed the words “I have been asked to ask…” from the transcript of the meeting. We have found that the transcript [470- 499] is accurate. The burden of proof was not switched. We refer the parties to paragraphs 102 to 104 above. Allegation 12 – 4 June 2021 Ms Lander

[177]We find that the premise of this allegation is misconceived. We make that finding because the meeting on 4 June 2021 was an investigation into alleged 64 of 93 disciplinary matters. We find that the first 25 pages of the minutes of the meeting [470-495] contain no allegation that the investigation was motivated by victimisation or whistleblowing.

[178]From page 496, the claimant makes the following allegations:178.1 Mark Lumsden is a manger to “…named parties who are respondents effectively…” in the claims that the claimant was representing PCS members in so had an interest in “dislodging” the claimant from his role as Tribunal representative;

178.2 This was “an act of victimisation against a Trade Union Representative contrary to section 146 of the Trade Union and Labour Relations Act 1992”;

178.3 It was also “contrary to Section 44 of the Employment Rights Act 1998”;

178.4 The claimant was being victimised for these activities in relation to “what is perceived whistleblowing actions.”

[179]The claimant sought an adjournment of the investigation so that he could seek legal advice [496]. Ms Lander’s response was that the investigation would continue, and the decision maker would take on board all the comments that the claimant had made and decide on the evidence provided. Ms Lander said that investigators did not get involved with grievances against other staff.

[180]The claimant then challenged Ms Lander [496] by stating that she had said it did not matter to her whether the [disciplinary] action was because of victimisation of him as a Trade Union Representative. Ms Lander rebutted that suggestion and repeated that the decision maker would make the decision [496].

[181]Ms Robinson-Smith-Hunte then suggested that the complaint was vexatious. Ms Lander repeated that she would send the evidence she had collated to the decision maker. The discussion then returned to matters of process.

[182]We find that Ms Lander pointed out [472, 496, and 497] that her role was restricted to fact-finding only.

[183]We find that Ms Lander did not reject the claimant’s (or Ms Robinson-SmithHunte’s) allegations without investigation. She made no decision about the weight that should be attached to the allegations and the impact they would have on the outcome of the process. She was clear in advising the claimant that that was a matter for the decision maker. The factual basis of the allegation is therefore not made out on the balance of probabilities.

[184]We find that the claimant has not shown facts from which we could conclude in the absence of an explanation that Ms Lander rejected, without investigation, the claimant’s allegation that the disciplinary investigation was motivated by victimisation and whistleblowing as there was no duty on her to investigate the allegations made by the claimant. The burden of proof did not switch to the respondents. 65 of 93 Allegation 13 – 21 July 2021 Ms Lander

[185]We have already determined that the claimant has not shown facts from which we could conclude that Ms Lander bullied and harassed the claimant by mocking his vision disabilities, ignoring his request for documents to be provided in point 14 font as an act of harassment related to disability. We repeat our findings on the facts of the disability harassment claim. The burden of proof was not switched in the race harassment. We refer the parties to paragraphs 107-119 above. Victimisation (s.26 EqA)

[186]The protected acts contended for (paragraphs 13.1. to 13.5. of the List of Issues) and allegations of victimisation (paragraphs 15.1. and 15.16. of the List of Issues) under section 13 of the Equality Act 2010 were: 186.1 Did the claimant do the following:186.1.1 Issuing proceedings on behalf of Mr Mahl on 11 November 2020;

186.1.2 Issuing a ‘Health and Safety Report’ 14/09/2018;

186.1.3 Applying to amend the ET claim of Mrs McFarlane Hamilton on 18 January 2020;

186.1.4 Issuing a second ET claim on behalf of Mrs McFarlane Hamilton on 2 February 2020;

186.1.5 Issuing a third ET claim on behalf of Mrs McFarlane Hamilton on 18/03/2021?

[187]Did the Respondent subject the Claimant to the following alleged detriments?187.1 On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing having instituted poor performance proceedings against the Claimant and engineering his dismissal Para 6(i) DWP POC;

187.2 On 8 April 2021, Ms Mulligan Googling the Claimant’s name upon receipt of an ET1 for Raj Mahl and passing the information on to Mr Lumsden with a view to causing an investigation into the Claimant’s conduct and facilitating his dismissal when she already knew the claimant’s name from the ET Claims of Sue McFarlane Hamilton where she had been named as a person against whom an allegation was made;

187.3 Ms Mulligan in her referral letter dated 08 April 2021 considered the Claimant had been dishonest to facilitate his dismissal; Para 6(ii) DWP POC

187.4 On 12 April 2021, Mr Lumsden referring the Claimant’s conduct to Ms 66 of 93 against the Claimant and his dismissal; Para 6(iii) DWP POC

187.5 On 19 April 2021 continuing the disciplinary investigation against the POC

187.6 Prior to the investigatory interview on 4 June 2021, the First Respondent, for the purpose of ambushing the Claimant with this information; Para 6(vii) and 7 DWP POC

187.7 The First respondent carrying out the investigatory interview contrary to DWP policies and procedures in that no reference was made to CSHR and PCS (in light of the Claimant’s status as a TU representative) Para 8 DWP POC

187.8 Ms Lander carrying out the investigatory interview in an aggressive, shouted and spoke down to the claimant, speaking to him without dignity and respect and she constantly interrupted the Claimant not allowing him to give full answers. It is also alleged that Ms Lander referred to aspects of the claimant’s private life which were irrelevant.

187.9 On 4 June 2021, Ms Lander denied that the matter had been referred to CSHR in order to evade reference to the investigation being carried out by a Grade 7.

187.10 In email correspondence June 2021, Mark Lumsden raised the issue of the Employment Tribunal cases brought on behalf of PCS members against the Department and which implicated both Patrice Mulligan and Mark Lumsden in discriminatory conduct.

187.11 On 4 June 2021, at the fact-finding interview, Ms Lander drew POC

187.12 On 4 June 2021, at the fact-finding interview, Ms Lander allowed instructions from someone else, was receiving ‘pings’ of messages during the meeting and at one point said ‘I have been asked to ask’; Para 11 & 14 DWP POC 67 of 93

187.13 Following the investigation meeting on 4 June 2021, the First Respondent edited out the comment ‘I have been asked to ask’ from the transcript of the meeting to mislead the Claimant; Para 14 DWP POC

187.14 On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without was motivated by victimisation and whistleblowing; Para 12 DWP POC

187.15 On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms font; Para 15 DWP POC

187.16 Subjecting the Claimant to a ‘sham’ investigation. The claimant states that the above matters rendered the investigation a ‘sham’.

[188]We will address the five protected acts contended for in the numerical order in which they appear in the List of Issues above and will then address the detriments that the claimant alleges he was subjected to in the order that they appear in the List of Issues. Some of the detriments have already been the subject of findings of fact earlier in these Reasons. Protected Act 1 – 11 November 2020

[189]We were provided with the Particulars of Claim for the Employment Tribunal proceedings presented by Mr Mahl on 11 November 2020 in the bundle [347- 358]. We were provided with a copy of the ET1 (and Grounds of Resistance) on 27 July 2023.The claimant was listed as Mr Mahl’s representative on the ET1 under the name “Bobby Supiya”. The name of his organisation was stated to be “Community Voluntary Advocates”. The foot of the Particulars of Claim [358] is signed “Bobby Supiya (Claimant’s Litigation Friend).”

[190]Mr Mahl made several claims of disability and race discrimination. We find that the claimant was the author of the ET1 and Particulars of Claim and that this, together with the submission of the documents was a protected act under section 27(2)(c) of the Equality Act 2010. The respondents conceded that it was a protected act. Protected Act 2 – 14 September 2018

[191]The agreed background to the alleged protected act was that the claimant was working as a National Insurance Number (NiNo) Interviewing Officer for the DWP at its Walthamstow NiNo Hub from June 2017. Ms Mulligan managed the NiNo Hub until November 2018. Ms Mulligan was aware that the claimant was a Trade Union Representative. The claimant became an Accredited PCS Health and Safety Representative in January 2018.

[192]The claimant made no reference to submitting a Health and Safety Report dated 14 September 2018 in his witness statement. Paragraphs 12 to 19 set out the events of mid-2018 to 31 August 2018 but was silent about the alleged Report. 68 of 93

[193]The claimant was asked about the Health and Safety Report in crossexamination. He took us to a document in the bundle [756-762]. The Report covered the period 6 August 2018 to 10 August 2018.

[194]In cross-examination, the claimant agreed that the Report was undated. When asked if he had any proof that he had sent the report to anyone on 14 September 2018, the claimant replied that he had said in his evidence that he produced the Report on his computer at home. He printed it out and handed it in in person.

[195]It was put to the claimant that none of the respondent’s witnesses had ever seen the Report and that he had given it to none of them. The claimant rejected the question and said that the document was in the bundle. He said he had given two copies to Paul Faherty, his Line Manager, one copy was for Mr Faherty, the other copy was for Meena Karavadra, NINO Business Manager at the NINO Business Hub. The claimant did not dispute that neither Mr Faherty of Ms Karavadra made any decisions that are relevant to his case before this Tribunal.

[196]The claimant said that Ms Mulligan was SCO of the Department and that she “…was fully aware of everything in the report. She was in charge of the building.” When Ms Loraine suggested the answer was the claimant’s assumption, he replied that he had direct knowledge of the issues brought up and he was interviewed by Ms Mulligan about matters that are in the Report.

[197]Ms Mulligan’s evidence was that she was “…unclear as to the health and safety report dated 14 September 2018, despite what is alleged by Mr Supiya in his claim.” In answer to cross-examination questions, Ms Mulligan said she was not aware of the report [756-762] until it appeared in the [hearing] bundle. She had read the Report and did not agree with its contents. Ms Mulligan accepted that she was not in a position to dispute some of the facts stated but could categorically state that some of the alleged events did not happen. She disputed the whole of the Report because none of the matters in the Report were ever brought to her attention.

[198]Ms Mulligan accepted that the Report went into great detail but she was not aware of the details set out. She was unable to go into the minutiae of a fire risk assessment that happened five years ago. Ms Mulligan did not know when the Report was written up, where it went or who received it how it was meant to get there.

[199]Ms Karavadra’s evidence in chief concerning the Report was at paragraph 11 of her witness statement: “I have not seen a “Health and Safety Report” dated 14 September 2018 as Chido has alleged to have issued, or sent to me, regarding fire extinguishers and fire exits being obstructed, and that there were fire hazards in the communication room. There is also no such letter in the hearing bundle. I recall that around that time, we had a discussed this issue in few meetings regarding his concerns during the time that work was being carried out in the building and I would have addressed these 69 of 93 concerns. As far as I was concerned, the matter regarding the obstructions in question had been resolved at that point.”

[200]In answer to cross-examination questions, Ms Karavadra said that the first time she had seen the Report [756-762] was in the bundle for the hearing. She did not recall seeing before then. The witness denied that the Report was flagged up to her in the investigation of the grievance of 9 July 2021. The claimant did not take the witness to any document that illustrated the point made in his question.

[201]Ms Karavadra confirmed that she had now read the report and was familiar with some of the issues mentioned within it. The claimant continued to ask questions about the content of the Report until we assured him that the question for the Tribunal was whether the Report had been given to Mr Faherty or Ms Karavadra, not what it contained. It was obvious to the Tribunal that if the Report had been given to the respondents, it was a qualifying disclosure.

[202]We find that the claimant has not shown on the balance of probabilities that he gave the report [756-762] to Mr Faherty on 14 September 2018. We make that finding for the following reasons:202.1 We found the claimant’s evidence in chief on the issue to be vague and internally inconsistent;

202.2 We found the evidence of Ms Mulligan and Ms Karavadra to be internally consistent and credible. Both were clear in their evidence that neither had been the Report until it appeared in the bundle for this hearing;

202.3 We find that it is unlikely that the claimant produced the Report [756-762] on 14 September 2018 because it is not dated and appears to have been created for the purposes of this claim;

202.4 We find that Ms Karavadra emailed the claimant at 14:55pm on 14 September 2018 but made no mention of receiving his Report;

202.5 Further, the claimant did not reply to Ms Karavadra’s email to either ask her if she had received the Report or send her a copy by email;

202.6 The claimant did not produce any evidence that he sent a chasing email to Mr Faherty or Ms Karavadra about their lack of action on the report;

202.7 If Mr Faherty had been given two copies of the Report, we find it highly unlikely that he would not have passed one copy to Ms Karavadra. As we noted above, the Report, if genuine, disclosed serious breaches of health and safety. Ms Karavadra’s denial of receipt was credible; and

202.8 We find it unlikely that the claimant, who sent a flurry of emails about health and safety matters to managers at Walthamstow in summer 2018 [260-289] would not have sent the Report to managers by email. 70 of 93

[203]The practical consequence of our finding is negligible because no acts of detriment alleged occurred between 14 September 2028 and the first protected act that we have accepted. Protected Act 3 – 18 January 2020

[204]The bundle contained an application to amend Ms McFarlane-Hamilton’s claim number 2301914/2019 dated 18 January 2020 [318-332] that was prepared by “Bobby Supiya (Community Voluntary Advocate)”. The document was dated 00/04/202 (sic) as document number 44 in the bundle index. It was not disputed that the application sought to add multiple claims of discrimination to Ms McFarlane-Hamilton’s claim.

[205]We find that the claimant was the author of the application to amend and that this, together with the submission of the application was a protected act under section 27(2)(c) of the Equality Act 2010. Protected Act 4 - 2 February 2020

[206]We find that it was not disputed that the claimant issued an ET1 for Ms McFarlane-Hamilton on 20 February 2020. The Particulars of Claim were in the bundle [304-313] and were signed by “Bobby Supiya (Claimant’s Litigation Friend)” [314]. The Particulars of Claim made multiple allegations of breaches of the Equality Act 2010.

[207]We find that the claimant was the author of the Particulars of Claim and that this, together with the submission of the ET1 was a protected act under section 27(2)(c) of the Equality Act 2010. Protected Act 5 – 18 March 2021

[208]We find that it was not disputed that the claimant issued an ET1 for Ms McFarlane-Hamilton on 16 February 2021 under case number 3200826/2021. The Particulars of Claim were in the bundle [361-377] and were signed by “Bobby Supiya” [377]. The Particulars of Claim made multiple allegations of breaches of the Equality Act 2010.

[209]We find that the claimant was the author of the Particulars of Claim and that this, together with the submission of the ET1 was a protected act under section 27(2)(c) of the Equality Act 2010. Detriments Detriment 1 -12 April 2021 Mr Walia

[210]We have already found that the factual allegation that “Mr Walia, acting outside of his remit, manufacturing false allegations of poor performance by the Claimant with a view to having instituted poor performance proceedings against the Claimant and engineering his dismissal” fell short of the standard of proof required. so, this allegation fails for the same reasons as set out above. 71 of 93 Detriment 2 – 8 April 2021 Ms Mulligan

[211]We have dealt with a similar factual allegation above, but this allegation was slightly differently worded at the start “Ms Mulligan Googling the claimant’s name upon receipt of an ET1 for Raj Mahl and passing the information on to Mr Lumsden with a view to causing an investigation into the Claimant’s conduct and facilitating his dismissal” This claim added “…when she already knew the claimant’s name from the ET Claims of Sue McFarlane Hamilton where she had been named as a person against whom an allegation was made.”

[212]We find that the background to the detriment is the same as that set out in paragraphs [94 to 100] above. We found that after Ms Mulligan had reported the matter to Mr Lumsden, he sent Ms Hall an email [388] with a completed Referral Form [391-393] related to the claimant on 9 April 2021. The form included the link to the YouTube video that Ms Mulligan referred to and attached the Tribunal claim details that Ms Mulligan had referenced – 2202047/2019 [345-346] in which the claimant represented the claimant in that case (Ms Kennedy) under the name “Mr Bobby Supiya volunteer advocate” at preliminary hearings on 16 September 2020 and 2 October 2020. Claim 2202047/2019 was the claim of Ms Kennedy v Premier Christian Communications, not Mr Mahl’s claim.

[213]We repeat our findings in respect of the first part of the allegation in paragraph 147 above in which we concluded that: “147.6. We therefore find that Ms Mulligan Googled “Bobby Supiya” on receipt of Mr Mahl’s Employment Tribunal papers as she had a genuine belief that the claimant may have committed a breach of his terms of employment by representing claimants in Employment Tribunals outside his Trade Union duties. We find no fault in Ms Mulligan’s actions. 147.7. We find that Ms Mulligan checked the position with Ms Wells, an HR Consultant, and followed her advice by sending the matter to Mr Lumsden to deal with as we have set out in our findings above. It cannot be disputed that Ms Mulligan’s actions caused an investigation into the claimant’s conduct. However, we cannot find that the referral was made to facilitate the claimant’s dismissal…”

[214]As to the additional allegation added to the complaint in the victimisation complaint, the claimant cross-examined Ms Mulligan about her evidence concerning her knowledge of various ET1s that had been presented. The claimant started at paragraph 3 of Ms Mulligan’s witness statement, in which she had said that she was aware that Ms McFarlane-Hamilton had brought at least one Employment Tribunal claim against the DWP because she was named in some of the documents relating to the case [318 – 332, 378], but she did not know the detail of the specific claim(s). Due to Covid, certain documents were received late and she never received the full bundle. As Ms Mulligan was not called as a witness in the case, she was not aware that the claimant was representing Ms McFarlane-Hamilton at the time, and only became aware in or around April 2021. 72 of 93

[215]As the Judgment and Reasons in Ms McFarlane’s claim numbers: 2301914/2019, 2308181/2020, and 3200826/2021 is a public document of record, we considered it. Following a hearing from 14 March to 25 March 2022, the Judgment with reasons stated that the DWP (the sole respondent) had called 13 witnesses. All were named. Ms Mulligan was not among them. The Reasons went on to state that one witness was stood down after the claimant had withdrawn some claims. Mr Supiya, who was representing the claimant said he did not need to crossexamine two other witnesses.

[216]Ms Mulligan’s evidence in cross-examination confirmed the findings we made in paragraph 147 above. She noted the name “Bobby Supiya (Claimant’s Litigation Friend)” on the Particulars of Claim of Mr Mahl’s case [347-358]. She read the name “Supiya” but did not recognise the term “Litigation Friend”. Ms Mulligan thought the term “…didn’t look right for [the claimant] to represent [Ms McFarlaneHamilton] as a Litigation Friend.” It did not suggest that the claimant was representing as a Trade Union Representative. The witness’ oral evidence was consistent with her written evidence.

[217]We found Ms Mulligan’s evidence to be credible. It was internally logical and consistent and was consistent with the documents. We find that Ms Mulligan did not know the claimant as “Bobby Supiya” at work. We make that finding because Ms Mulligan’s evidence was credible and the claimant himself said at paragraph 38 of his witness statement that, “…no one at work knows me as Bobby Supiya.”

[218]We find Ms Mulligan’s evidence that she was not aware who was representing Ms McFarlane-Hamilton to be credible. We find that the claimant did not show facts that could have shown without explanation that the allegation was credible. The burden of proof did not switch. The claim fails.

[219]If the burden of proof had switched, we would not have found that the reason for those of Ms Mulligan’s actions that we found that had happened were because of any of the claimant’s four protected acts. Detriment 3 – Ms Mulligan

[220]The first point to note is that Ms Mulligan’s referral letter was sent on 9 April 2021 [388]. We will consider the claim as if the correct date had been used as it is in the interests of justice to do so in all the circumstances.

[221]It cannot be disputed that Ms Mulligan stated in her email dated 9 April 2021 to Mr Lumsden that: “This shows that he is being dishonest in his claims and therefore brings the DWP into disrepute should anyone realise he actually works for us.”

[222]We find do not find, however, that the above statement shows facts from which we could conclude in the absence of any other explanation that Ms Mulligan breached section 26 of the Equality Act 2010. We find that there is no contextual evidence that suggests that Ms Mulligan acted in breach of the Equality Act 2010 other than the claimant’s assertion. The burden of proof does not shift to the 73 of 93 respondent. If it had, we would not have found that the reason Ms Mulligan expressed the opinion was not because of the claimant’s four protected acts. Detriment 4 – 12 April 2021 Mr Lumsden

[223]We have dealt with the facts of this allegation in paragraphs 150 to 153 above. We repeat those findings. There is no dispute that Mr Lumsden referred the claimant’s conduct to DWP Internal Investigations, but the referral was to Carolyn Hall by an email dated 9 April 2021 [389] to which the referral was attached [391- 393]. The factual nexus of the claim as set out in the List of Issues is therefore incorrect.

[224]However, we will address the claim as if the List of Issues had referred to a referral to Ms Hall on 9 April 2021 as it is in the interests of justice to do so. As the referral quotes the allegations direct from Ms Mulligan’s email to Mr Lumsden, we repeat or finding that Ms Mulligan had set out the allegations concisely and consistently with the correspondence between herself and Ms Wells. We do not find that the claimant has shown facts from which we could conclude in the absence of any explanation that Mr Lumsden had victimised the claimant because of any of his four protected acts. The burden of proof does not switch. If the burden had switched, we would have found that Mr Lumsden’s actions were not related to the protected acts. The outcome of any disciplinary action was outside his control, so the question of dismissal was not his.

[225]We found Mr Lumsden’s evidence that he would have made a referral to GIAA in any situation whereby any employee had potentially breached the civil service code by allegedly having a secondary occupation; and making comments in a similar nature to that set out in the Video, if he had obtained HR advice to this effect, to be credible and consistent with the documents.

[226]As Mr Lumsden suspected that serious disciplinary offences had been committed by the claimant, the most likely explanation for referring the matter to GIAA was that belief. Detriment 5 – 19 April 2021 - DWP

[227]We have already made findings as to the factual nexus of this claim in paragraphs 154 and 155 above. We repeat those findings. The claimant’s evidence in chief did not refer to this allegation at all. There was no evidence presented to this Tribunal that the first respondent took any decision to continue the disciplinary process on that date.

[228]The claimant has not shown facts from which the Tribunal could conclude in the absence of any other explanation that he was victimised. The claim fails. Detriment 6 – Prior to 4 June 2021 – DWP and Mr Lumsden

[229]We have already made findings as to the factual nexus of this claim in paragraphs 156-158 above. We repeat our findings that the allegation was based on a factual inaccuracy. 74 of 93

[230]We repeat that the disciplinary investigation was triggered by Ms Mulligan’s discovery of the Employment Tribunal papers in case number 2202047/2019 (Ms Kennedy). The case of Mr Mahl was not discussed at the meeting on 4 June 2021 [472-500]. The only ET documents sent to the claimant before the meeting were those in relation to 2202047/2019 and 3200569/2019 [302], 3200730/2016 [303], 2301914/2019 [304-314]. Mr Mahl’s case was not one of them.

[231]We find that there was nothing which the respondents did to ‘ambush’ the claimant. Mr Lumsden and the claimant knew that the claimant represented Mr Mahl in his Trade Union capacity. The first respondent had no issue with the claimant representing members of his Trade Union in claims against the DWP. We cannot see how the claimant could have been prejudiced by not being sent the Mahl papers. We have already found above that the investigation was not triggered by the Mahl case.

[232]We find that the claimant has not shown facts from we could conclude in the absence of an explanation that the respondents victimised him in this allegation. The burden of proof does not switch. If the burden had switched, we would have found that the respondent would have been able to show that it did not victimise the claimant because of any of his four protected acts. Detriment 7 – DWP and Ms Lander

[233]We have already dealt with the factual nexus of this claim in paragraphs 159 to 161 above. We repeat our findings.

[234]Ms Lander accepted in her witness statement (paragraph 13.4) that the claimant’s Trade Union and the Civil Service HR Department was not notified when the claimant was made the subject of disciplinary action. Ms Lander stated that she was not aware that the notification was a requirement of the DWP’s internal policy.

[235]We find that the claimant has shown facts from which we could conclude that he was victimised.

[236]However, we do not find that the claimant was victimised for the following reasons:236.1 The claimant is a PCS Trade Union Representative and was conversant with the DWP policies around disciplinary proceedings and the requirements for investigators undertaking investigations into Trade Union Officials to notify the PSC Union and Civil Service HR;

236.2 This claim does not concern any subsequent disciplinary proceedings so the claimant we find that the error had no detrimental effect on the claimant;

236.3 The claimant was represented by Ms Robinson-Smith-Hunte, a PCS Trade Union Representative who had the same knowledge of procedures as the claimant; 75 of 93

236.4 There was extensive correspondence between the claimant and Ms Robinson-Smith-Hunte before the meeting;

236.5 The claimant’s union was aware of the disciplinary process before the investigation meeting;

236.6 The claimant and Ms Robinson-Smith-Hunte told Ms Lander at the meeting on 4 June that thy had done investigations into “…your organisation on a standard internet search.”; but

236.7 No mention of the requirement to notify the Trade Union and Civil Service was made to Ms Lander before the meeting. She was ambushed during the meeting instead [477];

236.8 Ms Lander accepted what she was told by the claimant and Ms RobinsonSmith-Hunte and said they would be noted. She proposed to continue with the interview. Ms Robinson-Smith-Hunte’s response was [477]: “For the purposes of the recording, we do want to note that we have serious issues and concerns regarding your independence and objectivity at the point, and I think we need to erm, make that erm, something that er, needs, needs to be identified at this stage, but erm … … with Mr Supiya’s erm, erm, er, er, authority, we can continue.”

236.9 We find that the claimant was well aware of the error that Ms Lander had fallen into error before the meeting started and he and his representative did nothing to advise her of the error or give her any opportunity to fix things before the hearing. It is therefore our finding that the claimant has not shown that he was subjected to any detriment. Detriment 8 – 4 June 2021 Ms Lander

[237]We have already made findings of fact in respect of this allegation at paragraph 162. We found that Ms Landed did not act as alleged. Detriment 9 – 4 June 2021 Ms Lander

[238]This claim is not based on facts alleged elsewhere in the terms of the claim as set out in the List of Issues: “On 4 June 2021, Ms Lander denied that the matter had been referred to CSHR in order to evade reference to the investigation being carried out by a Grade 7”.

[239]The claimant’s only reference to a Grade 7 in his witness statement was at paragraph 25: “Mark Lumsden who should have known better absent any ulterior motive joined in the victimisation by making a referral not to a Grade 7 as suggested by CSHR page 383 but to contact at GIAA. The case hardly 76 of 93 fitted the Referral Matrix page 760. In short it was spruced up to clear the threshold. The Referral email is at 385 and the Referral at 388-390.”

[240]There is no claim that matches the facts in paragraph 25 of the claimant’s witness statement.

[241]We note that on 9 April 2021 [381] Suzanne Wells advised Ms Mulligan that due to the seriousness of the allegations against the claimant , it would be in line with Policy intent to pass the information to at least a Grade 7 within the claimant’s line management chain.

[242]We also note that on the same day (9 April 2021) but later in the day [385], Ms Wells repeated her advice to Mr Lumsden that it would be in line with Policy intent for this to be investigated by a Grade 7 rather than the claimant’s Line Manager. Ms Wells also advised Mr Lumsden to contact Counter Fraud and Investigation Service as per paragraph 27 of the GME – How to refer a case for investigation. This was unchallenged.

[243]Ms Wells emailed Mr Lumsden on 9 April 2021 [386] to confirm the advice given about the level of the investigator.

[244]In the grievance investigation meeting on 7 December 2021 [575-583] the claimant complained that CSHR recommended that the investigation should be conducted by a Grade 7 and that the investigating officers were not of that Grade. He alleged that Mr Lumsden commissioned Ms Lander and Ceri Upton directly because they were connected to CFCD and that would secure Mr Lumsden his favoured outcome.

[245]Ms Mulligan’s unchallenged evidence at paragraph 10 of her witness statement was that Ms Wells advised her that she should pass her information on to a Grade 7 manager in the claimants management chain. As such, she passed it to Mr Lumsden, as we have seen above. Mr Lumsden’s unchallenged evidence in paragraph 1 of his witness statement was that he was a Grade 7 Manager in the CFCD. In paragraph 2 of his witness statement, Mr Lumsden’s unchallenged evidence was that the claimant was in his line management chain.

[246]Mr Lumsden’s written evidence was that the potential consequences of the claimant having a secondary unauthorised occupation and the video were each sufficient to refer the matters to GIAA on HR advice.

[247]The claimant questioned Mr Lumsden about this matter. Mr Lumsden said he could refer to GIAA because the allegations were serious enough to do so on HR advice. He rejected the suggestion that Gaye Lander was his contact at GIAA who “…would act on your instructions and make ant findings.” as “Totally incorrect.” Mr Lumsden added that he had never come across Ms Lander before the investigation into the claimant. He had followed the advice of HR.

[248]We find that the claimant never challenged the idea that the respondent’s policies allowed a referral of a disciplinary matter to the GIAA rather than being dealt with by the CSHR (see our quote from paragraph 25 of his witness statement). 77 of 93

[249]We find that paragraph 25 of his witness statement is an acknowledgment that Mr Lumsden could refer to the GIAA but should not have done so because his case did not fit the Referral Matrix. We disagree with the claimant about the suitability of his case for referral to the GIAA. Ms Lumsden’s unchallenged evidence was that the GIAA tend to be referred allegations of misconduct that may amount to serious or gross misconduct.

[250]We find that the allegations faced by the claimant were of potentially serious or gross misconduct as defined in the respondent’s policies. We find that the claimant has not shown facts from which we could conclude that Mr Lumsden’s decision to refer the case to GIAA instead of a Grade 7 DWP officer was an act of victimisation because his allegation is entirely speculative and unsupported by evidence other than his own suppositions.

[251]If the burden had passed, we would not have found that Mr Lumsden made the referral because of the claimant’s four protected acts as we found his evidence in chief to be internally consistent and his oral evidence to be consistent with his written evidence and the documents.

[252]Turning to the actual complaint about Ms Lander in the meeting on 4 June 2021, we start with the finding that the DWP’s policies require managers who suspect serious breaches of the disciplinary code to refer to CSHR for advice.

[253]We find that the exchange between the claimant and Ms Lander started half way down page 477 (the record of the minutes) and ended at the top of page 488. The question for us to answer is whether Ms Lander denied that “the matter” (which must be the disciplinary allegations made against the claimant) had been referred to CSHR in order to evade reference to the investigation being carried out by a Grade 7. We find that the questions supposes that either the claimant or Ms Robinson-Smith-Hunte had suggested to Ms Lander that the claimant’s disciplinary matter had been referred to CSHR in order to avoid reference to the investigation being carried out by a Grade 7.

[254]We find that in the meeting, at the foot of page 477, the claimant stated, “In accordance with DWP policy, this matter should have been referred to CSHR, do you accept or dent that?” We have found above that both Ms Mulligan and Mr Lumsden referred the matter to CSHR. We find that in the meeting, Ms Lander neither confirmed nor denied the subject of the question put to her.

[255]We therefore find that the claimant has not made out the factual basis of the claim as set out in the List of Issues which switches the burden of proof. The claim is groundless. Detriment 10 – June 2021 Mr Lumsden

[256]We have not dealt with this matter earlier in these Reasons. The claimant made no reference to the allegation in his witness statement. The claimant asked Mr Lumsden no questions about the allegation. The claimant provided no page references for the alleged email correspondence in June 2021. We therefore find 78 of 93 that the claimant has not shown any facts from which we could conclude that the respondents had breached the Equality Act 2010. The claim is misconceived. Detriment 11 – 4 June 2021 Ms Lander

[257]We have made findings of fact concerning the factual nexus of this allegation above at paragraphs 163 to 165. We repeat those findings.

[258]We find that this claim is misconceived. We find that Ms Lander conducted an investigatory meeting with the claimant at which potential disciplinary matters were put to him. We find that the claimant was given opportunity to answer the matters that were put to him.

[259]We find that the claimant and his representative were obstructive and pedantic in the way that they conducted themselves in the meeting and that Ms Lander did not threaten to refer matters to a decision maker when matters of procedure were raised by the claimant (see our findings at paragraph 164 and 165 above). Detriment 12 – 4 June 2021 Ms Lander

[260]We have made findings about the factual nexus of this allegation in paragraphs 166 to 168 above. We repeat our factual findings which we summarise as:260.1 The claimant did not cover the allegation in his witness statement; and

260.2 Ms Lander dealt with the matter in her witness statement in a way that we found credible.

[261]We find that the claimant did not show facts that switched the burden of proof. Detriment 13 – following the meeting on 4 June 2021 Ms Lander

[262]We have already determined that the claimant has not shown facts from which we could conclude that Ms Lander removed the words “I have been asked to ask…” from the transcript of the meeting. We have found that the transcript [470- 499] is accurate. The burden of proof was not switched. We refer the parties to paragraphs 102 to 104 and 169 above. Detriment 14 – 4 June 2021 Ms Leader

[263]We have made findings of fact about the factual nexus of this allegation in paragraphs 170 to 177 above. We repeat the findings of fact made above but, for the sake of brevity only reproduce paragraph 176: “176. We find that Ms Lander did not reject the claimant’s (or Ms Robinson-Smith-Hunte’s) allegations without investigation. She made no decision about the weight that should be attached to the allegations and the impact they would have on the outcome of the process. She was clear in advising the claimant that that was a matter for the decision maker. The factual basis of the allegation is therefore not made out on the balance of probabilities.” 79 of 93 Detriment 15 – 21 July 2021 Ms Lander

[264]We have already made findings of fact concerning the factual nexus of this claim at paragraphs 107 to 119 and 178 above. For the sake of brevity, we will only set out our conclusions on this claim which arise from our findings of fact on the matter.

[265]We find that the claimant has not met the standard of proof to show facts from which the Tribunal could conclude that the respondents victimised by mocking his visual disabilities and ignoring his request for documents to be provided in point 14 font. The burden of proof does not switch to the respondents.

[266]If the burden had switched, we would have found that the respondent had shown that it did not victimise the claimant because of the four protected acts he did. Detriment 16 – undated DWP

[267]We have not made any previous findings as to whether the DWP investigation into the claimant was a sham.

[268]We find that the claimant has not shown facts from which we could find in the absence of any other explanation that the respondents subjected him to a sham investigation. We make that finding because:268.1 We find that the evidence and documents that were produced in this hearing demonstrated that the claimant may have committed two (later expanded to three) serious acts of misconduct which were in breach of the DWP’s disciplinary policy and rules;

268.2 We find that the claimant’s denials of guilt were based on two main limbs:268.2.1 The alleged breaches of procedure by the first, third, fourth, and fifth respondents; and

268.2.2 Disputes about the meaning and interpretation of various DWP policies.

268.3 We find that the claimant did not deny appearing as an advocate in Employment Tribunal proceedings for claimants who were not current or former employees of the DWP;

268.4 We find that the claimant did not deny appearing as an advocate in Employment Tribunal proceedings for claimants who were current or former employees of the DWP but did not describe himself as a Trade Union Representative in those proceedings;

268.5 We find that the claimant did not deny using derogatory terms about the UK Government and its ministers in Facebook posts; 80 of 93

268.6 We find that the claimant did not deny appearing in the YouTube video titled ‘ Mozambique terrorists using Tanzania as a hiding base – Major Bobby Supiya’; and

268.7 We therefore find that there was enough in the claimant’s admissions to justify an investigation. The investigation was not a sham, as we have found that the claimant’s claims relating to the investigation fail.

[269]We find that all the claimant’s claims of victimisation fail. Health and Safety Detriments s44 ERA 1996

[270]The alleged activity carried out by the claimant in connection with preventing or reducing risks to health and safety under section 44 of the Employment Rights Act 1996 contended for (paragraph 17.1. of the List of Issues) was: 270.1 Issuing a ‘Health and Safety Report’ on 14 September 2018 alleging that fire extinguishers and fire exits were obstructed and stating that there were fire hazards in the communications room?

[271]The alleged detriments (paragraphs 18.1. to 18.14. of the List of Issues) under section 44 of the Employment Rights Act 1996 were:271.1 On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing institute poor performance proceedings against the Claimant and engineer his dismissal Para 6(i) DWP POC;

271.2 On 8 April 2021, Ms Mulligan googling the Claimant’s name upon receipt of an ET1 for Raj Mahl and passing the information on to Mr Lumsden with a view to causing an investigation into the Claimant’s conduct and had been dishonest; Para 6(ii) DWP POC

271.3 On 12 April 2021, Mr Lumsden referring the Claimant’s conduct to Ms against the Claimant and his dismissal; Para 6(iii) DWP POC

271.4 On 19 April 2021 continuing the disciplinary investigation against the POC

271.5 Prior to the investigatory interview on 4 June 2021, the First Respondent, for the purpose of ambushing the Claimant with this information; Para 6(vii) and 7 DWP POC 81 of 93

271.6 The First Respondent carrying out the investigatory interview contrary to DWP policies and procedures in that no reference was made to CSHR and PCS (in light of the Claimant’s status as a TU rep) Para 8 DWP POC

271.7 Ms Lander carrying out the investigatory interview in an aggressive, shouted and spoke down to the claimant, speaking to him without dignity and respect and she constantly interrupted the Claimant not allowing him to give full answers. It is also alleged that Ms Lander referred to aspects of the claimant’s private life which were irrelevant.

271.8 On 4 June 2021, at the fact-finding interview, Ms Lander drew POC

271.9 On 4 June 2021, at the fact-finding interview, Ms Lander allowed instructions from someone else, was receiving ‘pings’ of messages during the meeting and at one point said ‘I have been asked to ask’; Para 11 & 14 DWP POC

271.10 Following the investigation meeting on 4 June 2021, the First Respondent edited out the comment ‘I have been asked to ask’ from the transcript of the meeting to mislead the Claimant; Para 14 DWP POC

271.11 On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without was motivated by victimisation and whistleblowing; Para 12 DWP POC

271.12 On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms font; Para 15 DWP POC

271.13 Subjecting the Claimant to a ‘sham’ investigation. The claimant states that the above matters rendered the investigation a ‘sham’.

271.14 On 30 July 2021 concluding that there was a disciplinary case to answer apply for promotion whilst subject to the disciplinary investigation para 34.9 ET1 (case no. 3206079-2021).

[272]As we have found at paragraphs 184 to 195 above that the claimant did not issue a ‘Health and Safety Report’ on 14 September 2018, then we cannot, as a matter 82 of 93 of logic, find that he was subjected to detriments for doing something that we have found he did not do. All the claims are dismissed. Whistleblowing Detriment s.47B ERA 1996

[273]As we have found at paragraphs 184 to 195 above that the claimant did not issue a ‘Health and Safety Report’ on 14 September 2018, then we cannot, as a matter of logic, find that he made a protected disclosure. Without a protected disclosure, the claimant cannot allege that he was subjected to detriments because of something he did not do. All the claims are dismissed. Trade Union Detriment s.146(1)(b) TULR(C)A 1992

[274]The List of Issues (paragraph 25) asks if the claimant’s representation of colleagues and ex-colleagues in the Employment Tribunal claims amount to activities of his Trade Union (PCS) and if so, were they activities carried out at an appropriate time?

[275]The List of Issues (paragraph 26) goes on to ask, in relation to each allegation, was the claimant subjected to the detriment for the sole of main purpose of preventing or deterring the claimant from taking part in the activities of his trade union at an appropriate time or penalising him for doing so?

[276]The detriments contended for were set out in paragraphs 24.1 to 24.14 of the List of Issues:276.1 On 12 April 2021 Mr Walia, acting outside of his remit, manufacturing false performance proceedings against the Claimant and engineering his dismissal Para 6(i) DWP POC. Errors were being assigned to the wrong individuals. That refers to errors with SharePoint being attributed to the claimant when during an investigation between the claimant and his manager none of those cases in fact belonged to him.

276.2 On 8 April 2021, Ms Mulligan googling the Claimant’s name upon receipt of an ET1 for Raj Mahl and passing the information on to Mr Lumsden with a view to causing an investigation into the Claimant’s conduct and facilitating his dismissal and including that she considered the Claimant had been dishonest; Para 6(ii) DWP POC.

276.3 On 12 April 2021, Mr Lumsden referring the Claimant’s conduct to Ms Lander and Ceri Upton at the Government Internal Audit Agency with a view to prompting a disciplinary investigation for gross misconduct against the Claimant and his dismissal; Para 6(iii) DWP POC.

276.4 On 19 April 2021 continuing the disciplinary investigation against the Claimant after receiving a whistleblowing complaint; Para 6(vi) DWP POC.

276.5 Prior to the investigatory interview on 4 June 2021, the First Respondent, Mr triggered by the Claimant’s filing an ET claim on behalf of Mr Mahl, an ex83 of 93 employee of the DWP and a member of the PCS union, for the purpose of ambushing the Claimant with this information; Para 6(vii) and 7 DWP POC.

276.6 The First respondent carrying out the investigatory interview contrary to DWP policies and procedures in that no reference was made to CSHR and PCS (in light of the Claimant’s status as a TU representative).

276.7 Ms Lander carrying out the investigatory interview in an aggressive, condescending, dismissive, argumentative, and judgmental manner Para’s 9, 11 and 12 DWP POC. The claimant asserts that Ms Lander shouted and spoke down to the claimant, speaking to him without dignity and respect and she constantly interrupted the Claimant not allowing him to give full answers. It is also alleged that Ms Lander referred to aspects of the claimant’s private life which were irrelevant.

276.8 On 4 June 2021, at the fact-finding interview, Ms Lander drew conclusions and raised by the Claimant (when the claimant raised questions about the allegation, and he was simply told that they would come back to him without providing the answers); Para 10 DWP POC.

276.9 On 4 June 2021, at the fact-finding interview, Ms Lander allowed interference with the investigation in that she appeared to be taking instructions from someone else, was receiving ‘pings’ of messages during the meeting and at one point said ‘I have been asked to ask’; Para 11 & 14 DWP POC.

276.10 Following the investigation meeting on 4 June 2021, the First Respondent edited out the comment ‘I have been asked to ask’ from the transcript of the meeting to mislead the Claimant; Para 14 DWP POC.

276.11 On 4 June 2021, at the fact-finding interview, Ms Lander rejected, without motivated by victimisation and whistleblowing; Para 12 DWP POC.

276.12 On 21 July 2021 after the investigatory meeting on 4 June 2021, Ms Lander bullied and harassed the Claimant by mocking his vision disabilities, ignoring his request for documents to be provided in point 14 font; Para 15 DWP POC.

276.13 Subjecting the Claimant to a ‘sham’ investigation. The claimant states that the above matters rendered the investigation a ‘sham’.

276.14 On 30 July 2021 concluding that there was a disciplinary case to answer in relation to the allegations against the Claimant as set out at paragraph 34.8 ET1 (case no. 3206079-2021). The Claimant says he was unable to apply for promotion whilst subject to the disciplinary investigation para 34.9 ET1 (case no. 3206079-2021).

Law

[277]The parts of section 146 of TULRCA 1992 that are relevant to this case are: 84 of 93 “146 [Detriment] on grounds related to union membership or activities(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of— … (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so,…

(2) In subsection (1) “an appropriate time” means— (a) a time outside the worker's working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services; and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work…

[278]Time limits are set out in section 147 of TULRCA 1992: 147 Time limit for proceedings. (1) An employment tribunal shall not consider a complaint under section 146 unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures (or both) the last of them, or (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable. (2)For the purposes of subsection (1)— (a) where an act extends over a period, the reference to the date of the act is a reference to the last day of that period; (b) a failure to act shall be treated as done when it was decided on. (3) For the purposes of subsection (2), in the absence of evidence establishing the contrary an employer shall be taken to decide on a failure to act— 85 of 93 (a) when he does an act inconsistent with doing the failed act, or (b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. (4) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (1)(a).

[279]Case law on s.146 indicates that 'subjecting' a person to detriment simply means causing him a detriment whether by act or omission (Abertawe Bro Morgannwg University Health Board v Ferguson

[2013] ICR 1108

, EAT), and 'detriment' means no more than 'disadvantage', subject to the ‘de minimis’ principle (a Latin phrase meaning that something is too small to be important or to be taken into consideration) (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

, HL.)

[280]It must be shown that the employer has subjected a worker to some detriment and also to demonstrate that the employer's purpose in so doing was improper. A reason for an action is its cause and will come before the action. A purpose of an action is the aim that lies behind the action. The effect is what the action is designed to achieve.

[281]In the case of Serco Ltd v Dahou

UKEAT/0027/14/JOJ

, The Honourable Mrs Justice Simler, as she then was, said this in paragraphs 46 to 48: “46. So far as concerns the proscribed purpose of preventing, deterring or penalising the “taking part in the activities of an independent union at an appropriate time, or for proposing to do so” (s.146 (1)(b)):(a) An employer contravenes this sub-section only if the sole or main purpose of the employer in detrimentally treating the employee as he did, was to prevent, deter or penalise the employee on the proscribed basis. The focus is on employer’s purpose; in other words the object the employer desires or seeks to achieve: Dept of Transport v Gallacher

[1994] ICR 967

(CA).

(b) ‘Activities’ is not defined but the statute requires it to be ‘activities of a union’ and not merely the activities of a person who happens to be a trade unionist.

(c) It has been interpreted widely to include routine union activities carried out at an appropriate time e.g. participating in ballots, attending meetings, arranging or participating in gatherings, and planning for such action or activities. But the activities must take place “at an appropriate time”. This is defined by s.146 (2) to mean either in the employee’s own time or with the employer’s consent, or agreement, during the employer’s time. Own time includes meal breaks and times immediately before and after work (even if the employee is on the employer’s premises at these times). Where an employer refuses consent for the employee to take part in activities of his 86 of 93 union during working hours, no question can arise that activities carried out during working hours are at an appropriate time.

(d) Industrial action will rarely (if ever) take place at an appropriate time given the requirement of consent to activities during working time and so will rarely constitute an activity within this sub-section. On the other hand planning and organising industrial action may be done at an appropriate time, and if so, it will be protected: see Britool v Roberts

[1993] IRLR 481

. This is a question of fact; but the statutory requirements must be fulfilled. 47. Section 148 makes specific provision with regard to the burden of proof: "(1) On a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act." 48. The Employment Tribunal referred to Yewdall v SSWP

UKEAT/0071/05/TM

in relation to the burden of proof. In that case, at paragraphs 23 and 24 the EAT said: “We nevertheless find that, although clearly this is not necessarily a binding way for a tribunal to approach this statute, a very sensible way to do so would be to follow this structure which, in effect, follows the route of the Act as we see it to be: (i) have there been acts or deliberate failures to act by an employer? On this, of course, the employee has and retains the onus; (ii) have those acts or deliberate failures to act caused detriment to the employee? (iii) are those acts in time? (iv) in relation to those acts so proved which are in time, where detriment has been caused, the question of what the purpose is then arises. We are satisfied that Mr Russell was right to concede - and, in any event, this is our judgment - that there must be establishment by a Claimant at this stage of a prima facie case that the acts or deliberate failures to act which are found to be in time were committed with the purpose of preventing or deterring or penalising i.e. the illegitimate purpose prohibited by s146 (1) (b). This gives the same mechanism to sections 146 and 148 of TULR(C)A as is provided, for example, by section 63A of the Sex Discrimination Act 1975 [now section 136 of the Equality Act 2010], where the onus of proof only passes to the employer after the establishment of a prima facie case of unfavourable treatment on discriminatory grounds by the employee which requires to be explained. Once it requires it to be explained, then the burden passes to the employer. Plainly that, in our judgment, is correct in this case. Otherwise the employer will have the burden of giving some explanation in 87 of 93 a case where it is not clear what it is he has to explain. It must be clear, and we agree with Mr Russell's concession and with Mr Powell's submission, that there is a case made out at the prima facie stage that the acts complained of, with the resultant detriment, were on the case for the Claimant for the purpose of preventing or deterring or penalising in respect of trade union activities. Once that prima facie case is established, then the burden passes to the employer under s148.” Allegation 1 – 12 April 2021 Mr Walia (second respondent)

[282]We have made findings of fact regarding the factual nexus of this claim under the heads of harassment relating to race, victimisation, health and safety detriments, and whistleblowing detriments. We repeat our findings of fact at paragraphs 130 to 146. The onus is on the claimant to show that the respondents did acts or failed to act per Yewdall (see above). Applying the findings of fact made previously in relation to the factual allegation, we find that that the claimant failed to discharge the burden of proof in him to show there had been acts or deliberate failures to act by the respondents. This claim falls at the first hurdle. Allegation 2 – 8 April 2021 Ms Mulligan (third respondent)

[283]We have made findings of fact regarding the factual nexus of this claim under the heads of harassment relating to race, victimisation, health and safety detriments, and whistleblowing detriments. We repeat our findings at paragraphs 94 to 100 and 147 above. The onus is on the claimant to show that the respondent did acts or failed to act per Yewdall (see above). Applying the findings of fact made previously in relation to the factual allegation, we find that that the claimant failed to discharge the burden of proof in him to show there had been acts or deliberate failures to act by the respondents. This claim falls at the first hurdle. Allegation 3 – 12 April 2021 – Mr Lumsden (fourth respondent)

[284]We have made findings of fact regarding the factual nexus of this claim under the heads of harassment relating to race, victimisation, health and safety detriments, and whistleblowing detriments. We repeat our findings of fact in paragraphs 150 to 153 above. We specifically repeat our finding that we found Mr Lumsden’s evidence that he would have made a referral to GIAA in any situation whereby any employee had potentially breached the civil service code by allegedly having a secondary occupation; and making comments in a similar nature to that set out in the Video, if he had obtained HR advice to this effect, to be credible and consistent with the documents.

[285]We find that the claimant produced no evidence, other than his own supposition, (which was contained in the pleadings but not in his evidence in chief), that connected Mr Lumsden’s referral to the claimant’s Trade Union activities. We found Mr Lumsden’s oral evidence, given in answer to a question from the claimant, that he did not know that the claimant was a PCS member was not challenged. That evidence was given in relation to the point the claimant attempted to make about Ms Mulligan, Ms Lander and Mr Lumsden not applying 88 of 93 a procedure that applied to Trade Union Representatives, but the evidence is very relevant to this claim.

[286]The onus is on the claimant to show that the respondents did acts or failed to act per Yewdall (see above) as it is with all the allegations, so we shall apply the principle to the remaining allegations below. Applying the findings of fact made previously in relation to the factual allegation, we find that that the claimant failed to discharge the burden of proof in him to show there had been acts or deliberate failures to act by the respondents. This claim falls at the first hurdle. Allegation 4 – 19 April 2021 Respondents

[287]We have made findings of fact regarding the factual nexus of this claim under the heads of harassment relating to race, victimisation, health and safety detriments, and whistleblowing detriments. We repeat our finding at paragraph 154 above that the claimant’s evidence in chief did not refer to this allegation at all.

[288]We find that the claimant produced no evidence, other than his own supposition, (which was contained in the pleadings but not in his evidence in chief) that connected the continuation of the disciplinary process to the claimant’s Trade Union activities. We found at paragraph 154 and 155 above that the claimant did not make a qualifying disclosure on 19 October 2021.

[289]The onus is on the claimant to show that the respondents did acts or failed to act per Yewdall (see above). Applying the findings of fact made previously in relation to the factual allegation, we find that that the claimant failed to discharge the burden of proof in him to show there had been acts or deliberate failures to act by the respondents. This claim falls at the first hurdle. Allegation 5 – Prior to 4 June 2021 – Mr Lumsden

[290]We have already made findings as to the factual nexus of this claim at paragraphs 156 to 157 above. We found that the factual allegation was incorrect: the investigation was not triggered by the claimant filing an ET1 in the Mahl case. There was nothing to ambush the claimant with. The claim is misconceived. The claimant has not succeeded in switching the burden of proof. The claim fails. Allegation 6 4 June 2021 DWP

[291]This claim is defeated by the facts. As we have found above, the claim only arose because Ms Lander did not know that the claimant was a Trade Union representative. The claimant and his representative had not told her before the hearing. It is therefore impossible for Ms Lander to have consciously conducted the meeting on 4 June 2021 contrary to DWP policies and procedures in that no reference was made to CSHR and PCS (in light of the Claimant’s status as a TU representative) as a detriment because of the claimant’s Trade Union activities if she was not aware of such status.

[292]Further, we find that the claimant suffered no detriment. The claim fails. 89 of 93 Allegation 7 – 4 June 2021 Ms Lander

[293]We have already addressed the factual nexus of this claim and made findings that are relevant to this head of claim at paragraphs 159 to 161 above. Essentially, we found that the claimant had not shown facts from which we could conclude that Ms Lander had behaved as alleged in the meeting on 4 June 2021. The claim fails. Allegation 8 – 4 June 2021 Ms Lander

[294]We have made findings of fact in respect of the factual nexus of this claim in paragraphs 163 to 165 above. We repeat out findings that the claimant did not switch the burden of proof to the respondents. The claim fails. Allegation 9 – 4 June 2021 – Ms Lander

[295]We have made findings of facts that are relevant to the issues in this allegation at paragraphs 166 to 168 above. We repeat our findings that the claimant did not switch the burden of proof to the respondents. The claim fails. Allegation 10 – post 4 June 2021 – Ms Lander

[296]We have made findings of fact that are relevant to the issues in this allegation at paragraphs 102 to 104 above. We have found as a fact that Ms Lander did not make the comment alleged. The claimant did not switch the burden of proof. The claim fails. Allegation 11 – 4 June 2021 Ms Lander

[297]We have made findings of fact that are relevant to the issues in this allegation at paragraphs 170 to 177 above. We repeat our finding that the claimant did not show facts from which we could conclude without explanation that Ms Lander acted as alleged. The claim fails. Allegation 12 – 21 July 2021 Ms Lander

[298]We have made findings of fact that are relevant to the facts in this allegation at paragraphs 107 to 119 above. We did not find that the claimant showed facts from which we could conclude that the allegation of bullying and harassment were made out. The claimant did not switch the burden of proof. The claim fails. Allegation 13 - undated DWP

[299]We have made findings of fact that are relevant to the issues in this allegation as paragraphs 260 to 262 above. We repeat out conclusion that the claimant had not shown facts from which we could find in the absence of an explanation that the investigation was a sham. The claim fails. Allegation 14 - 30 July 2021 90 of 93

[300]This is the only allegation which is factually unique in this head of claim. We make the following findings of fact:300.1 It cannot be disputed that Ms Lander produced an Investigation Report dated 30 July 2021 into the allegations made against the claimant [546- 556].

300.2 It cannot be disputed that Ms Lander found that:300.2.1 On the balance of probabilities, the claimant had a disciplinary case to answer [550];

300.2.2 She stated that the evidence supported the proposition that the claimant had breached the DWP Standards of Behaviour Policy which included:300.2.2.1 Mutual trust is the foundation of the employment contract between the Department and all its employees;

300.2.2.2 The Department’s reputation depends on the quality of service provided and the way in which employees conduct themselves all Civil Servants must follow the Civil Service Code (sic);

300.2.2.3 The Civil Service code is the framework upon which the Department’s Standards of Behaviour are built and sets out the fundamental standards expected from employees at work and in their private life, which may impact on their work; and

300.2.2.4 There are clear expectations on employees to act with honesty, integrity, objectivity, and impartiality at all times.

300.3 Ms Lander found that the claimant’s conduct both within and outside the workplace had brought the DWP, its ministers or the government into disrepute into disrepute by:300.3.1 Attending Employment Tribunals acting as a voluntary advocate or consultant in his private capacity without the knowledge of his manager;

300.3.2 Appearing on the YouTube video; and

300.3.3 His Facebook profile containing political posts that may be considered inappropriate and which, therefore, breached the DWP’s social media policy.

300.4 We find that claimant’s argument that his right to free speech meant that he could say anything he liked on YouTube or Facebook was, simply, 91 of 93 wrong. The claimant has the right to free speech under

Article 10 ECHR

but it is a qualified right and must be balanced with his obligations under his contract of employment.

300.5 We find that the claimant’s assertion that what he did in his private life was none of the DWP’s business is clearly wrong. The DWP’s policies say as much.

300.6 We make no finding of facts as to the claimant’s guilt in respect of the matters that proceeded against him.

300.7 We find that Ms Lander concluded that there was a disciplinary case to answer on 30 July 2021, so the first leg of the Yewdall test is met;

300.8 We find that the act has caused the claimant detriment and that the claim is in time, so the second and third legs of the Yewdall test are met.

300.9 That leaves us with the fourth leg on the Yewdall test: the question of whether the claimant has established at this stage of a prima facie case that the act or was committed with the purpose of preventing or deterring or penalising him (i.e. the illegitimate purpose prohibited by s146(1)(b)). We find that he has not because:300.9.1 We find that the claimant represented ex-colleagues in claims against the DWP outside his duties as a Trade Union Representative of the PCS. We make that finding because of the titles that the claimant gave himself in cases such as Mahl, where the PCS Union were not supporting the claimants in those cases. We find that such cases could only have been undertaken outside working hours as defined by s.146;

300.9.2 We find that the claimant represented non-DWP claimants in claims against other employees as the papers for those cases clearly demonstrate. We find that such cases could only have been undertaken outside working hours as defined by s.146 ;

300.9.3 We find that the claimant’s appearance on YouTube was not undertaken in working hours and could not possibly be described as being in furtherance of his trade union activities; and

300.9.4 The same is true of his political posts on Facebook.

300.10 We find that the claimant has not shown a prima facie case that shows facts that without explanation could be acts of detriment contrary to section 146(1)(b). The claim fails at that point.

300.11 If we had found that the claimant had switched the burden of proof, we would not have found that the decision to proceed with the disciplinary process on 31 July 2021 was unlawful under s.146(1)(b) because we found Ms Lander’s evidence on her motivation to make the 92 of 93 recommendation to be based on the claimant’s alleged acts, not his Trade Union activities to be consistent and credible.

Summary

[301]As we have not found in favour on any of his claims, we do not need to list a remedy hearing.

[302]This is a most unfortunate case. The claimant has made over 80 discreet claims against the respondent. He has gone back to events in 2018 that he did not complain about at the time in an attempt to build a case that encompasses race and disability discrimination, whistleblowing, health and safety detriments, and trade union detriments.

[303]On our findings, the reality of the situation is that the claimant did things that he has admitted doing that it was not unreasonable for the respondents who had the authority to make decisions about the disciplinary process to make the decisions they did. The claimant may not be guilty of the disciplinary offences, but none of the respondents acted in the unlawful ways alleged.