Mr H AlpsenClaimantHaringey GP Group LtdRespondent
Before
Employment Judge Quill; Ms A Brosnan; Mr W DykesIn person for claimantMr Y Mahmood (instructed by solicitor) for respondentDate 14 April 2025
JUDGMENT
(1) All of the complaints have failed.(2) The claim form did include complaints of discriminatory dismissal, as well as the complaint of unfair dismissal.(3) The Claimant did have an impairment that met the definition of “disability”, as defined by the Equality Act 2010 (“EQA”), at all relevant times.(4) The Claimant was not dismissed by the Respondent. There was no “constructive dismissal”. That is, the circumstances of termination did not meet the definition of dismissal as set out in section 95(1)(c) of the Employment Rights Act 1996 (“ERA”) or in section 39(7)(b) EQA.(5) The complaint of unfair dismissal fails and is dismissed.(6) All complaints of harassment related to race fail and are dismissed.(7) All complaints of discrimination because of race fail and are dismissed.(8) All complaint of disability discrimination fail and are dismissed. Page 1 of 68(9) As set out in the reasons below, for some of complaints we decided that (i) they were not connected to termination of employment and (ii) they were out of time and (iii) it was not just and equitable to extend time.(10) The time limit for complaints connected to termination of employment expired on 1 January 2024. Thus those complaints were one day out of time unless we decided that an extension of time was appropriate. Given the lateness of the disclosure of copies of correspondence from solicitors, and given the fact that the complaints failed on the merits, it was not proportionate for us to make final decisions on whether time should be extended.
REASONS
[1]Judgment and reasons were given orally on Day 4 of the hearing. The Claimant made an oral request for written reasons, and these are those reasons.[2]The Claimant is a former employee of the Respondent. He alleged constructive dismissal and also harassment related to race, discrimination because of race, and disability discrimination. The Claims and The Issues[3]A preliminary hearing had taken place on 8 May 2024. Excluding sections 3 and 8 which dealt with remedy, the list of issues produced at that hearing was as follows. 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 22 August 2023 may not have been brought in time.1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time? Page 2 of 681.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2. Unfair dismissal 2.1 Was the Claimant dismissed?2.1.1 Did the Respondent do the following things: The Claimant relies on the conduct at 5.2.4 to 5.2.15 below2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and2.1.2.2 whether it had reasonable and proper cause for doing so.2.1.3 Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.2.1.4 Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.[4]Disability 4.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:4.1.1 Did they have a physical or mental impairment: Claimant to provide details, see paragraph 11 under Orders above.4.1.2 Did it have a substantial adverse effect on their ability to carry out day-to-day activities?4.1.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?4.1.4 Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures?4.1.5 Were the effects of the impairment long-term? The Tribunal will decide:4.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?4.1.5.2 if not, were they likely to recur?[5]Direct race discrimination (Equality Act 2010 section 13)5.1 The Claimant is of Turkish/ Kurdish ethnicity and he compares his treatment to white employees.5.2 Did the Respondent do the following things:5.2.1 In or around 2021, Harry Albert stating to the Claimant “could you believe [Jana Lloyd’s coat]’s gone missing, but there’s cameras everywhere so we will find who did it? Page 3 of 685.2.2 In or around February 2023, Elaine Greer making a comment regarding the Claimant being a “magpie” and making jokes about the Claimant being a thief?”5.2.3 Richard Sennett, Gursharan Rai, and Seema mocking the Claimant’s accent at various times during the Claimant’s employment?5.2.4 The Respondent making career progression more difficult for the Claimant?5.2.5 The Respondent not offering the Claimant roles without him needing to apply around the end of 2022?5.2.6 Not offering the Claimant the same training opportunities as other members of staff?5.2.7 Preventing the Claimant from attending training by sending last minute tasks at various times during his employment?5.2.8 Verbally passing the Claimant’s probation in or around mid-2023 and then revoking it in or around mid-2023?5.2.9 Not offering the Claimant line manager support during his employment?5.2.10 Between January 2023 and August 2023, being disciplined by the Director of Operations after raising concerns about them?5.2.11 On 21 August 2023, being denied wellbeing support?5.2.12 In or around 2021 and 2022 expecting the Claimant to train new employees?5.2.13 Not promoting, supporting, or training the Claimant in the same way as other members of staff?5.2.14 In or around mid-2022, Jalak Shukla telling the Claimant to “not watch how others were treated”?5.2.15 Taking disciplinary action against the Claimant?5.3 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. The Claimant has named the following people as comparators: Charlotte Chapman Scott Campbell Giacomo Harper5.4 If so, was it because of race?5.5 Did the Respondent’s treatment amount to a detriment?[6]Discrimination arising from disability (Equality Act 2010 section 15)6.1 Did the Respondent treat the Claimant unfavourably by:6.1.1 Not considering his well being on his return to work in August 2023 after sickness absence.6.1.2 Using the wellbeing meeting to aggressively raise issues that occurred during his sickness absence.6.2 Did the following things arise in consequence of the Claimant’s disability: Page 4 of 68 6.2.1 The Claimant’s sickness absence in August 2023?6.3 Was the unfavourable treatment because of any of those things?6.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 6.4.1 Respondent to provide information6.5 The Tribunal will decide in particular:6.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;6.5.2 could something less discriminatory have been done instead;[7]Harassment related to race? (Equality Act 2010 section 26)7.1 Did the Respondent do the following things: The Claimant relies on the conduct referred to at 5.2.1 to 5.2.3 above in the alternative to relying on the same conduct for direct discrimination (the effect of section 212 of the Equality Act 2010 means that a tribunal cannot find that the same conduct was both harassment and direct discrimination).7.2 Was that unwanted conduct?7.3 Did it relate to race?7.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?7.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 4. When we discussed that list of issues with the parties on Day 1, the Respondent mentioned that it did not expressly specify that the Tribunal would make a decision about whether the unfair dismissal claim was in time or not. The Respondent wished to argue that it was out of time, and we agreed that that issue – since it was a jurisdictional point - needed to be determined, and so we would add it to the list of issues. 5. As ordered by the Tribunal, and as mentioned at paragraph 4.1.1 of the list of issues, the Claimant had provided an impact statement [Bundle 144] and, in it, he had cross-referenced medical evidence that he had also supplied. On Day 1, we sought clarification of which specific impairment(s) he was alleging were disabilities. In the light of his responses, we decided that we would proceed on the basis that the Claimant was alleging that, whether individually or cumulatively, any combination of mixed anxiety and depressive disorder, depression, panic attacks, insomnia, low mood, stress, and/or anxiety was a mental impairment which met the definition of disability. 6. The only allegations of disability discrimination related to the last day of employment, 21 August 2023. [It was common ground that the Claimant sent an Page 5 of 68 email at 12.03pm on 21 August, and that the Respondent’s Michael Fox read it, and replied to it, the same day - page 337 of bundle – and that, therefore, the Claimant’s employment ended on 21 August 2023.] 7. On Day 1, we informed the parties that we noted that “dismissal” was not included either in paragraph 5 or paragraph 6 of the list of issues. We highlighted to them the guidance in Moustache v Chelsea And Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185 and Z v Y [2024] EAT 63. We stated that we would hear each side’s submissions about whether there were any discriminatory dismissal complaints during the parties’ closing submissions after the evidence. The Hearing and The Evidence[8]This was scheduled as a 4 day hearing. Between them, the parties had produced 12 witness statements from 11 different witnesses. There had been no notification from either party that 4 days was not sufficient.[9]Between them, the parties were only planning to call 8 of those 11 witnesses to give oral evidence.[10]We stated that if we were going to conclude the hearing within the 4 scheduled dates, then we would have to fix, and be strict about, a timetable for the evidence.[11]There was a suggested timetable from the preliminary hearing. We stated that, given the number of witness statements was significantly larger than must have been anticipated when the hearing was scheduled, we would not be able to start the evidence at 12pm on Day 1. (Indeed, as it turned out, the preliminary discussions were not finished until 12pm).[12]The Respondent was not initially content with the timetable proposed by panel. We did not think that the Respondent’s counter-proposal was fair to the Claimant, given the number of witnesses that the Claimant had to cross-examine. We therefore set about trying to find out if there were some additional days, in the not to distant future, that were mutually satisfactory. There were not. We therefore proposed that we would postpone and re-list the hearing for a longer duration. The Claimant was very strongly opposed to that course of action, and very strongly in favour of the hearing going ahead as per the panel’s suggested timetable. We therefore said that we would have to make a formal decision, as a panel, to decide between going ahead as per our timetable, or else postponing. We invited the Respondent's representative to make formal submissions based on its argument that our proposed timetable would not allow it enough time to cross-examine the Claimant. The Respondent decided that, rather than apply to have the hearing postponed, it would accept the Tribunal’s timetable. Page 6 of 68[13]There was bundle of 454 pages, to which an additional 6 pages were added.[14]The witness statements from the Claimant were:14.1 The Claimant14.2 Scott Campell14.3 Mark Banks[15]The witness statements from the Respondent were:15.1 Cassie Williams (two statements)15.2 Harry Albert15.3 Elaine Greer15.4 Gursharan Rai15.5 Richard Sennett15.6 Seema Pattni15.7 Jalak Shukla15.8 Michael Fox[16]We received a documented explanation from the Respondent as to the reasons that Dr Pattni was not called to give oral evidence. The Claimant’s explanation for Mr Campbell’s and Mr Banks’ non-attendance was that they did not wish to attend. Other than those three, all the other witnesses gave evidence on oath and answered questions. Ms Greer and Mr Albert gave evidence by video. Everyone else attended the hearing centre.
The Findings of Fact
[17]We make the following findings of fact on the balance of probabilities having considered all of the evidence presented during the hearing.[18]The Claimant became employed by the Respondent from 1 April 2020[19]Prior to that the Claimant had been an employee of an organisation named Bridge. Bridge and the Respondent had operated a shared service and the Claimant had been under the control of the Respondent while employed by Bridge since around June 2019. Page 7 of 68[20]At the start of his employment, the Claimant was a bilingual care navigator. His starting salary used was £26,000 per year. This was a fixed term contract for 12 months. The contract continued after the end of the 12 months.[21]With effect from 1 July 2021, the Claimant was given a another written contract for the same role. It was expressed to be for a fixed term which was due to expire on 31 March 2022. He received a pay increase to £28,560 per year from 1 July 2021.[22]The next new written contract commenced 1 April 2022. This was in the role of senior bilingual care navigator in the diabetes service. This was not a fixed term contract. The remuneration, despite the change in job title, remained at £28,560 per annum. [Bundle 62 and 63].[23]It is common ground between the parties that the change of job title - the addition of the word “senior” - was first discussed several months earlier between the Claimant and his then line manager, Mark Banks.[24]The Respondent alleges that this means that he had actually been in the senior role from October 2021 onwards. The Claimant is not sure about that, and points out that when he asked whether he should change his email signature. Mr Banks said that he would need to discuss that with other people.[25]The Respondent has failed to prove that the change to “senior” officially commenced any sooner than 1 April 2022.[26]In any event, as we have said, whether it was October 2021 or April 2022, there was no change to the pay (the increase in July 2021 having been prior to the change in job title).[27]The Claimant did not have to go through any application or selection process to become senior; rather, regardless of whether it happened in October 2021 or in April 2022, the change in title was agreed between the Claimant and the Respondent on the basis that his job had evolved, and the job title senior bilingual care navigator was suitable and appropriate. It designated that he was of greater seniority than someone whose job title was simply “care navigator”. Employment History of the Claimant’s comparators[28]One of the Claimant's colleagues at the time, was Scott Campbell. He is one of the alleged comparators. He produced a witness statement on the Claimant’s behalf (the fact that he, Mr Campbell, refers to himself as the claimant is clearly an error, and we are satisfied that he knew that it was Mr Alpsen who had brought the claim) but has not given oral evidence. Page 8 of 68[29]He provided a very brief witness statement. Within it, he mentions that he started as administrator in April 2021.[30]He refers to being promoted from that job to care navigator and administrator, then promoted again to integrated service manager. He says that each time that was without having to do interviews. He refers in his statement to also being senior integrated service manager.[31]The Respondent had produced a timeline [Bundle 389]. The Respondent’s witnesses have stated the document is accurate, and we accept it is largely accurate. The Claimant does not specifically dispute the accuracy, albeit not all the matters were within his knowledge at the time.[32]Based on that document, and the exit notes [Bundle 454-460], our finding is that Scott Campbell was senior integrated service manager from May 2023 on an interim basis (rather than as a permanent appointment to that role).[33]Mr Campbell’s exit interview notes include his comments on a wide range of topics. It is apparent from his exit interview that he applied to be permanent senior integrated service manager and was not successful.[34]Having started in a more junior role than the Claimant's (in April 2021) in around July 2021, Mr Campbell was asked to line manage a new employee and he received a salary increase as a result. His new salary (£25,500) was still lower than the Claimant’s starting salary (£26,000).[35]In around September 2021, as per [Bundle 451], the Claimant's line manager, Mark Banks and his then line manager Sarah Baron produced a proposal which the Respondent adopted.[36]The proposal document acknowledged that Mr Campbell had somebody reporting to him and that was in the role of senior administrator which was for 0.4 of his time, whereas for 0.6 of his time he was acting as a care navigator.[37]The proposal was that for 0.6 of the time, he would continue to carry out the duties of care navigator. For the remaining 0.4, he should be treated as service manager. This was again or without Mr Campbell having to apply for any posts.[38]Having started on a salary of £20,000, his salary had increased in July 2021 to £25,500, and increased again in October 2021 to £30,200. So, in October 2021, his salary overtook that of the Claimant.[39]Later, Mr Campell’s appointment to integrated service manager was in April 2022 at a salary of £35,000. From May 2023, until the end of his employment in around August 2023, he was on a salary of £39,900 as Interim Senior Service Manager. Page 9 of 68[40]Another of the Claimant's comparators is Giacomo Harper. He is the stepson of the CEO. He started work of the Respondent as administrator on a salary of £23,400 in March 2021. He became Covid service manager in June 2021 and his salary increased to £25,500 (so, to an amount that was less than the Claimant’s salary).[41]A post of integrated service manager was advertised in August 2021. The Claimant's line manager, Mr Banks drew the advertisement to the Claimant’s attention. The CEO, Ms Williams, had asked him to do so and he did it.[42]The Claimant did not apply for the post. Mr Harper did apply and he was appointed to it. His salary was £35,000 from September 2021.[43]A further integrated service manager post became available and was advertised in around March 20, 22, with closing date 28 April 2022. This was discussed between the Claimant and Mr Banks in a one-to-one meeting on 25 March 2022. [Bundle 221 and 222].[44]The Claimant did apply for this post and he was appointed to it and he commenced in that role with effect from 18 July 2022. The contract is [Bundle 65]. His salary in that role was £35,000.[45]So each of the Claimant, Mr Campbell and Mr Harper got the same salary, of £35,000, from their respective start dates as Integrated Service Manager. They had different start dates in that role.[46]The Claimant's other comparator is Charlotte Chapman.[47]She also started as an administrator on a starting salary of £18,000 in 2019. In around July 2020, she was appointed as a care navigator, but on a lower salary than the Claimant's. She was on £25,000.[48]Regardless of why the Claimant believes Ms Chapman was ever appointed to a more senior role and/or why he believes that there might have been a discussion about her managing the Claimant, our finding is that she was never promoted beyond care navigator before she left the Respondent's employment. She never managed the Claimant, and never received a higher salary than the Claimant (or even the same salary as the Claimant). Missing Coat[49]The list of issues refers to an alleged incident regarding a missing coat, and state the incident is alleged to have occurred in 2021.[50]In his witness statement, the Claimant refers to the incident as happening in autumn of 2019 and in closing submissions, the Claimant confirmed that he is Page 10 of 68 confident that the incident was prior to Covid. We accept that the Claimant’s recollection, tied in to the start of Covid, is sufficient for us to decide, on the balance of probabilities, that the missing coat incident was 2019. For what it is worth, that means that it happened while the Claimant was not yet an employee of the Respondent. Further, it means that the Respondent decided to appoint him later than this incident.[51]It is common ground that a coat went missing. Ms Williams recalls it too.[52]The Claimant's recollection is that he was called to a meeting with Mr Albert and Jana Lloyd (the coat’s owner) to discuss the fact that Ms Lloyd’s coat was missing.[53]Mr Albert does not recall that meeting. We accept that the Claimant's has more reason to remember the incident and that the meeting did take place. Mr Albert does not deny that the meeting took place but rather simply does not recall it. It does not adversely affect our assessment of Mr Albert’s credibility that he referred to “2021” in his witness statement. We are satisfied that he was simply basing the date off the fact that he had been told that that was the date which the Claimant was alleging. The Claimant does not allege that he was expressly accused of taking the coat, but he infers from the fact that the meeting took place that there was a suspicion that he had taken it. Further, he believes that the tone and words that were used implied that he was under suspicion.[54]The Claimant's argues that he was the only person questioned about the missing coat. Our decision is that the Claimant was not in a position to know who else – if anyone - was spoken to.[55]This 2019 incident was a self-contained incident that occurred more than four years before the claim form was presented. The Claimant made no complaints about it at the time. We accept that Mr Albert is telling the truth when he states that he genuinely does not recall it.[56]During cross-examination, Ms Williams stated that she does remember the coat going missing. We accept that she is doing her best to recall accurately and that it is her genuine recollection that she believes that Ms Lloyd was upset and spoke to numerous people about the missing coat. The Claimant’s accent / alleged mocking or mimicking[57]The Claimant alleges that his accent was mocked and he names three people as having done so.[58]As per the list of issues, at paragraph 5.1, the Claimant states that he is of Turkish Kurdish ethnicity and he compares his treatment to that given to white employees. Page 11 of 68[59]He regards his accent as a London accent and an urban accent. We accept that it the Claimant’s genuine belief that his accent is associated with people of his ethnicity.[60]The Claimant was born, and grew up, and went to school, in the UK. He believes that he learned Turkish as a first language. However, he also learned English at approximately the same time, or, at least at a very young age.[61]In paragraph 13 of his witness statement, the Claimant refers to a particular alleged incident. As he confirmed during his oral evidence, the allegation in that paragraph is not that Dr Sennett made fun of his accent but rather that somebody else did and Dr Sennett laughed. According to the Claimant, this was a in a particular meeting at the end of 2022. Dr Sennett disputes that this happened. There is no other evidence before us, other than what each of them testified to. The Claimant does not allege that he made any oral or written complaint at the time. The alleged date is around two years prior to the claim form. The Claimant has not proven that, during that meeting. Dr Sennett mocked the Claimant’s accent. On the contrary, based on all the evidence presented to us, our finding on the balance of probabilities is that Dr Sennett did not mock the Claimant's accent or make fun of it during the incident described by the Claimant in paragraph 13 of his statement.[62]Even on the Claimant's own case the alleged remark by the colleague was to say “we surely can't put it like that to the commissioners”. This remark is alleged to have been by Mr Harper, who is not one of the alleged discriminators named in the list of issues. On the Claimant’s own case that alleged remark was at least partly about the actual words that the Claimant has used. On the evidence, the Claimant has not proven that the alleged remark (by Mr Harper) was about the Claimant’s accent, or even partially influenced by it.[63]In paragraph 15 of his witness statement, the Claimant refers to all three of the clinical leads: Dr Sennett, Dr Rai and Dr Pattni.[64]In the written statement, he says “This is not really a complaint about these individuals, more so to …”. This is a sentiment that he echoed during crossexamination of each of Dr Sennett and Dr Rai. (Dr Pattni did not attend to give oral evidence.) Indeed, he wanted to put it to Dr Rai that the Respondent had misrepresented to her that he was alleging that she had mocked his accent at various times. The Tribunal did not allow that question because(i) it infringed on litigation privilege and(ii) the list of issues specified “at various times”.[65]No specific dates or details of the alleged incidents when Dr Sennett, Dr Rai and and/or Dr Pattni mocked the Claimant’s accent are supplied either in claim form, the list of issues or witness statement. Page 12 of 68[66]Dr Rai attended and gave evidence. The Claimant put it to her that there was a specific incident outside a lift, during a discussion about “SOP” and “SLA” when she allegedly repeated things that the Claimant had said in a manner which mocked his accent. The Claimant put it to her that she had done this in an endearing way.[67]He also put it to that he agreed with what she had said in paragraph 7 of her witness statement that they had had a good working relationship.[68]We find that Dr Rai was telling the truth that she has no recollection of the alleged conversation outside the lift. We accept Dr Rai's denial that she ever mocked the Claimant's accent. Our finding is that Dr Rai had never mocked the Claimant’s accent and never seen anyone else mock the Claimant’s accent.[69]The Claimant challenged Dr Sennett in relation to paragraph 3 of his witness statement which stated: “The Claimant has alleged that throughout his time of working at the Respondent I had mocked his accent at various times”. The Claimant suggested to the witness that this was not correct, and that he, the Claimant, had only alleged that there was one incident. The panel pointed out the wording of item 5.2.3 of the list of issues, and stated that if the Claimant’s opinion was that wording was not correct, he needed to inform the Tribunal and the Respondent that he thought the wording should be changed. There was no such application.[70]Other than the alleged incident described in paragraph 13 of the Claimant’s witness statement, the Claimant put no incidents of alleged mocking of accent to Dr Sennett.[71]Our finding is that there were no occasions on which Dr Sennett mocked the Claimant’s accent.[72]We have not heard from Dr Pattni, although she did provide a written statement and provided an acceptable reason for not been able to attend to give evidence in the tribunal on oath.[73]We accept that, as per her statement, she stopped performing work for the Respondent in June 2022 and that, prior to then, from January 2022 onwards, she been working from home.[74]Although her denials are in the form of a non-sworn statement, her denials have to be set against the fact that the Claimant's written statement gives no specific examples of any particular occasion when she is alleged to have mocked his accent.[75]We have rejected the allegations that Dr Sennett or Dr Rai mocked the Claimant’s accent. Thus, if Dr Pattni hypothetically did so, there was no Page 13 of 68 continuing act which continued after the last occasion on which she, Dr Pattni, hypothetically did so.[76]The Claimant provided no evidence and no argument that Dr Pattni mocked his accent while she was working from home. It is true, that he provided no details of any specific occasion at all, but that does not cause us to infer that his assertion is that she mocked his accent while she was working from home.[77]In the ET1, though not in his witness statement, the Claimant alleged he made contemporaneous challenges about the clinical leads mocking the Claimant’s accent. Our finding is that he did not do so. He provided no details and no evidence of such challenges.[78]The Claimant’s account of what Dt Pattni allegedly did is too vague for us to make a finding that, on any particular occasion, there were particular words uttered by her, or in a particular manner.[79]During the Claimant's employment, he had several line managers. He often met the line managers for one-to-one meetings.[80]In the meeting of 17 August 2020, with Mr Albert there was a discussion of the training the Claimant had undertaken during the previous year. Some or all of this training may have been with his previous employer. Several items are mentioned. The Claimant stated that he was keen to undertake further training.[81]In October 2020, the Claimant undertook homelessness training.[82]One of the Claimant's witnesses is Mark Banks. We have had taken his evidence into account in the form of a written statement. He has not attended to give evidence on oath.[83]He line managed the Claimant for part of his time working for the Respondent He left the Respondent on 30 September 2022.[84]In around May 2021, Mr Banks made a proposal to the Respondent that three people he managed, namely (Harry Albert, the Claimant, and Josh Cobson) that would do a Level III apprenticeship course. The course was due to last for 18 months. They would require half a day a week during work time to complete coursework. Every 4 to 6 weeks, they would require a period of four hours with their trainer. The proposal was that the course would start very soon afterwards.[85]Michael Fox, the chief operating officer rejected the proposal on the basis it had not gone through proper approval processes. The course was rejected for all three of the employees. It was not just rejected for the Claimant. Neither of the other two employees had Turkish or Kurdish ethnic origins. Page 14 of 68[86]On 26 April 2021, the Claimant's then line manager, Harry Albert, conducted an appraisal. [Bundle 204].[87]In October 2021, the Claimant had a one-to-one meeting with his then line manager Mark Banks.[88]Within that meeting, the Claimant expressed frustration that he had not been promoted to project manager and also expressed the view that other people who had started after him were overtaking his career progression.[89]According to the meeting notes, Mr Banks provided his responses to the Claimant's comments. The Claimant did not allege, at the time, that his treatment was because of race.[90]Mr Banks’ responses included a discussion about the Level III course which had been rejected. He noted that the Claimant had started doing some free modules. The notes say that the title “senior care navigator” will be discussed. It was noted that the Claimant did not wish to make a formal grievance. He was offered the opportunity to speak to the director of operations informally if he wished to do so.[91]The Respondent invites us to interpret [Bundle 214] as showing that Mr Banks did follow up after the meeting and that it should be treated as evidence that the Claimant was promoted to senior care navigator with effect from 8 October 2021. The Claimant and Mr Banks were the people who were party to the discussion and neither of them has given evidence that that's how the document should be interpreted (although the date of 8 October 2021 is not inconsistent with paragraph 13 of the Claimant’s witness statement). The Respondent has not provided any contemporaneous documentary evidence to that effect. Furthermore:91.1 when the Respondent produced “Timelines of Role Changes” [Bundle 389] for this litigation, it stated the Claimant became “senior” in April 202291.2 when Ms Williams signed her witness statement on 9 December 2024, paragraph 23 stated that the Claimant’s title changed in April 2022 We therefore infer that, having checked its records, the Respondent had no formal record of a change in the Claimant’s job title in October 2021.[92]At the Claimant's one-to-one meeting on 4 November 2021, the Claimant again referred to the apprenticeship course and this was again answered by Mr Banks. Training was discussed and it was suggested that the Claimant research potential courses that he could do for care navigator and/or project management, as well as completing the modules already in earlier meetings. Page 15 of 68[93]In December 2021, the Claimant was still going through the free training modules. There was a discussion about the fact that the Claimant was going to apply to do a Level IV project management course. The application, which (as for all such training) had to be submitted to the senior management team, had not yet been completed by the Claimant.[94]In February 2022, there was a further meeting with Mr Banks. The application for training had been submitted to SMT. Other courses (suicide and safeguarding) were discussed as being available for the Claimant. The Claimant was responsible for line managing another individual, and he received as support with that from Mr Banks. At the February meeting, additional line manager responsibilities were confirmed. It was confirmed that a permanent contract would be issued, but a pay increase would not necessarily be forthcoming.[95]In March 2022, the Claimant was told by Mr Banks that any pay review for the Claimant would be part of the general organisations pay review and the decisions would be made in around May and backdated to April.[96]As mentioned above, the March one-to-one meeting included encouragement for the Claimant to apply for the integrated service manager role and the Claimant subsequently did apply for it.[97]In March 2022 [Bundle 223], project management training became available and Jalak Shukla, the director of operations, suggested that the Claimant was one of the people who should undertake it.[98]In his May 2022 one-to-one meeting with Mr Banks, the Claimant discussed the fact that he was disappointed not to have been appointed as manager for the diabetes service. Mr Banks repeated that there was a vacancy for integrated service manager and the Claimant could apply for that. As far as Mr Banks was concerned, the Claimant would not be slotted into a role as diabetes manager.[99]The Claimant expressed frustration that - from his point of view - other people had had promotions and he had not and also promotions without having to go through any formal application process. He did not allege that this was because of race. Mr Banks responded during the meeting.[100]In May 2022, the Claimant was put forward for some social welfare advice training. [Bundle 228][101]On 22 August 2022, the Claimant was one of several employees invited to undertake Excel training. [Bundle 242].[102]The Claimant had his last meeting with Mark Banks on 20 September 2022. [Bundle 244]. Page 16 of 68102.1 Amongst other things, the Claimant said that his line manager had helped him to settle into the new role well, although he did refer to also still trying to understand his wider responsibilities.102.2 Mr Banks said that the Claimant had settled in well to the new role which had started around two months earlier.102.3 A detailed list of six objectives was suggested by Mr Banks. The document stated – as also confirmed by Mr Banks witness statement - that Mr Banks saw no reason why the Claimant would not complete his probationary period. (From context, it is clear that this is intended to mean that the Claimant would complete the probationary period and be confirmed in post.)[103]Both the Claimant and Mr Banks were aware that the Claimant's contract for Integrated Service Manager [Bundle 65] referred to a three-month probationary period. The contract stated that103.1 During the probationary period, the employee's performance and suitability for continued employment would be monitored.103.2 At the end of the probationary period, the employee would be informed in writing if they had successfully completed.103.3 The probation period could be extended by a further three months. So in other words, up to a maximum of six months in total.[104]Three months after the start of the Claimant's new role was around 18 October 2022 or thereabouts. It is common ground that immediately before and immediately after 18 October 2022, the Claimant did not get any notification either saying the probation period had been passed, or that it was extended, or that it had been failed.[105]The contract refers to notice periods and therefore had the employer been following the contract, then if they had purported to terminate either the Claimant's employment, or his new role, then they would have been obliged to give notice of that to the Claimant.[106]The first one-to-one meeting that the Claimant had following Mr Banks's departure was with the director of operations on 21 October 2022. [Bundle 247]106.1 Seven items were listed as objectives. Item 4 contained an implied criticism in that it was stated that it was something that should have been actioned already.106.2 In terms of the personal development plan, it was mentioned that the Claimant would be provided with ‘new to management’ training in the future. Page 17 of 68 In the document it says this will be done by March 2022, if not sooner, but presumably March 2023 was the intended deadline.[107]The Claimant had said that he did not think the director of operations was the best person to provide him with one-to-one support. She agreed. She arranged that Elaine Greer would provide that support to the Claimant on an interim basis.[108]Ms Greer work for the Respondent from 19 October 2022 to 31 March 2023. She was an interim in the role of “Workforce Integration Lead”. One of her tasks was to assist with the line management of the Claimant.[109]The first meeting was on 16 November 2022. The meeting note [Bundle 249] is very brief]. However, we do not infer that the meeting itself was very brief. The items mentioned in the documents clearly took some time to go through. Amongst other things, the Claimant and Ms Greer reviewed the notes from the 21 October 2022 meeting between the Claimant and Ms Shukla.[110]At the meeting on Wednesday 16 November, they agreed to meet two days later on the Friday and they did so. [Bundle 250]. They then had a further meeting on Wednesday 30 November [Bundle 251].[111]They met again the following Monday, 5 December 2022 with Dr Rai also in attendance.[112]They then met again on 8 December.112.1 The Claimant asked that Ms Greer would use the one-to-one template that had previously been used by Mr Banks and Ms Shukla for one-to-one meetings.112.2 The Claimant expressed some dissatisfaction with the induction that he had had in the interim service manager role and also the volume of work. Ms Greer suggested that the Claimant could consider if there were any specific issues that he wanted to raise with senior management.112.3 The Claimant said that he not had an appraisal since 2019. (We interpose to add that, if true, that would mean he had not had one for the entirety of his time with Mr Banks, but in any event, the most recent one in the bundle was from April 2021with Mr Albert).112.4 Ms Greer pointed out that the one-to-one from 21 October had contained a list of objectives and had also had some blank spaces for the Claimant to complete with his goals. Page 18 of 68112.5 In the meeting there was a discussion about the Claimant's probation. The Claimant indicated to Ms Greer, that as far as he was concerned, he had already passed it. This was the Claimant’s genuine opinion.112.6 The Claimant agreed that he would complete the one-to-one form which the director of operations had supplied to him after the 21 October meeting.[113]Ms Shukla’s account is that she would have discussed probation during the 21 October meeting but the meeting was cut short. For this reason, she had stated to Ms Greer that the Claimant had not yet passed his probation.[114]As a result of the discussions with Ms Greer, the Claimant formed the opinion that the director of operations had made the decision at that he should not be deemed to have passed his probation.[115]On around 15 December 2022, the Claimant spoke to the interim head of HR Clayton Glenn. This meeting is alluded to in Mr Fox's email to the Claimant on 16 December 2022 [Bundle 262] and also in the notes of the meeting between Mr Fox and Mr Glenn on [Bundle 367].[116]Mr Fox offered the Claimant a discussion.116.1 After sending the invitation, but before the meeting with the Claimant, Mr Glenn and Mr Fox exchanged emails about gathering further information from Ms Greer and from Ms Shukla. [Bundle 368].116.2 There was also a discussion about potentially needing to raise issues about the Claimant's behaviour.116.3 It took place around 3pm on Monday 19 December 2022. Following the discussion, Mr Fox sent the email at [Bundle 260] on 21 December.116.4 Following the meeting, but before sending his email to the Claimant and Mr Fox sent an email to HR (Clayton Glenn and Yaseen Pandor) which was copied into Ms Williams, the chief executive officer. [Bundle 370]. In it, he referred to the fact that the director of operations’ view was that she had highlighted some issues to the Claimant in the 21 October meeting but then the meeting had been interrupted. Mr Fox asked for HR advice.116.5 The HR advice was supplied the same evening and the advice was that it would be “untidy” to not confirm that the Claimant had successfully passed probation. This took account of the fact that five months had elapsed since the Claimant started in the role. It suggested that if there were performance issues and then they should be dealt with by the capability process. Mr Glenn also said he had spoken to Ms Shukla and that she felt “supported if frustrated”. Page 19 of 68[117]In the lengthy email of 21 December, at 8:19am, Mr Fox made a number of points to the Claimant.117.1 He supplied details of the grievance process and noted that the Claimant had indicated that he did not wish to go down the formal grievance route Mr Fox made clear that the Claimant could change his mind about that if he wished to do so.117.2 He said he had asked Ms Greer to sit closer to the Claimant's so that she was able to provide support on the days that they were not having scheduled one-to-one meetings.117.3 In terms of the Claimant wishing to have clarity over how he could dispute probation being extended, Mr Fox said he would reply later in the week.[118]The Claimant sent a reply to that email later the same day. His reply is on [Bundle 259]. Although that version includes Mr Fox's later replies to the Claimant, it is easy to see what the Claimant wrote because that is in black and Mr Fox’s later replied are in red.[119]In December 2022, neither in the meetings nor in the emails, did the Claimant allege that he believed that any of the treatment that he was complaining about was because of race.[120]On 22 December, Mr Fox confirmed that the Claimant was deemed to have passed his probation. Mr Fox stated that he recognised of the lack of clarity over the communications around the probation. He stated that he was regarding the probation as complete on - in his words – “a technicality”.[121]Mr Fox repeated that it had already been arranged that he and Ms Shukla and the Claimant would meet the following day, Friday 23 December to discuss the concerns that the Claimant had raised as summarised in his email. HR was copied in on the email. The Claimant replied and to thank Mr Fox and to say he really appreciated that Mr Fox had taken the time to hear him out, and that the Claimant looked forward to his further developments within the organisation.[122]As promised in the email, a formal letter, dated 22 December 2022, confirmed the Respondent's position that the Claimant was deemed to have passed his probation. [Bundle 264]. The letter said that future discussions about performance and his role and would be dealt with by Ms Greer. The letter was been copied to HR (Yaseen Pandor, HR Lead), Ms Shukla and Ms Greer.[123]The three way meeting (Shukla/Fox/Claimant) went ahead on 23 December. After it, Mr Fox sent the email at [Bundle 266]. Page 20 of 68123.1 Amongst other things, it was noted that Ms Shukla had apologised to the Claimant because the 21 October meeting had been interrupted.123.2 The email encouraged the Claimant to raise any concerns with his line manager in the first instance, but if he felt unable to do so, to raise them his line manager’ line manager or with HR.[124]The Claimant had a further one-to-one meeting on 20 January 2023 with Ms Greer. [Bundle 267].[125]The first example of Ms Greer using the form which the Claimant had requested that she use appears to be on [Bundle 268], which is the meeting of 13 February. He rated his line manager's performance 4 out of 5 with 5 being the highest.[126]There was a further meeting on 16 February 2023. [Bundle 269]. There was a discussion about the Claimant's standards of behaviour which Ms Greer asked him to reflect on. This was because of an interaction between the Claimant and a member of HR staff, and also because Ms Greer noted that the Claimant had spoken loudly to her during the meeting.[127]The Claimant and Ms Greer met again online on 24 February 2023. Ms Greer wrote in the notes that she ended the meeting because the Claimant had started to speak loudly and could not be interrupted.[128]Ms Greer had a meeting with the then head of HR, Yaseen Pandor and Marian Salek, head of service on 8 March 2023. Marian Salek was Ms Greer’s line manager. It was agreed that Ms Greer would speak to the Claimant informally about the matter.[129]They did meet on 9 March 2023. [Bundle 273]. The Claimant was invited to reflect on the language he used, and his relationships with staff, and to follow the correct processes and to be professional.[130]They met again on 16 March discussed various issues, including a new member of staff due to start on 5 April. [Bundle 275][131]On 23 March 2023 [Bundle 278], the Claimant and Ms Greer had a meeting which was also attended by Marian Salek. The meeting was held because of a remark which the Claimant had made which Ms Greer did not think was appropriate and regarded it as a political matter.[132]The notes record the Claimant's opinion was that HR ought to have been present. It is correct that the Claimant had been told HR would attend.[133]The version of the disciplinary policy which applied with effect from 2 March 2023 is in the bundle and commences at [Bundle 107]. Page 21 of 68133.1 We have read the entirety of the policy, but our finding of fact is that, as stated by Ms Greer and as is clear from the document itself the status of the meeting was one covered in section 11 of that document which has the heading “informal approach (outside of formal procedure)”.133.2 In the first bullet point, it states that minor disciplinary breaches should only be dealt with through the formal stages of the procedure if the misconduct continues. It states that, whenever possible, an informal approach should be the first step.133.3 The fourth bullet point says that, when managers are addressing minor conduct issues with employees, an informal meeting should take place.133.4 The fifth bullet point says that managers should talk to the individual in person in private as soon as possible.133.5 The tenth bullet point states that, there is no right to be accompanied by a representative or workplace colleague to the informal meeting with the line manager. However, in exceptional circumstances it may be mutually agreed.[134]Our finding is that there was no breach of the policy in connection with the meeting on 23 March 2023. There was no requirement to have HR present at the meeting.[135]The Respondent accepts that the Claimant had been told in advance of the meeting that the plan had been for the head of HR to be present. The Claimant was told on the day that Yaseen Pandor had not been able to make it to the meeting. This was also confirmed in the outcome letter [Bundle 279] which was sent the same day (23 March 2023).135.1 One of the issues raised was the Claimant's behaviour in meetings whereby Ms Greer felt she had to terminate the meetings. The other issue was the comment that Ms Greer is described as a political comment.135.2 The meeting notes and the outcome letter confirmed (and in the Tribunal hearing the Claimant accepts it is correct) that he had apologised.135.3 As mentioned in the meeting notes and confirmed in the letter, the Claimant was informed that he had if he had any issues with Ms Greer, then he should deal with those formally either via Marian Salek and/or via HR.[136]Ms Greer sent an email on 30 March 2023 [Bundle 281] which was a handover to Marian Salek, who was going to be conducting the line management meetings with the Claimant from that point forwards given Ms Greer's departure. It was copied to the Claimant. Page 22 of 68[137]There was discussion about what has been referred to during this hearing as a personal development plan / PDP, but which throughout Ms Greer's correspondence at the time was referred to as a PIP. The document was attached for the benefit of each of Ms Salek and the Claimant. Ms Greer expressed the view that two of this four sections had been closed off and that other matters had been highlighted in blue were still outstanding. It had been agreed to extend the completion date until the end of April because of the Claimant's sickness absence and annual leave during the relevant period.[138]During Ms Greer's employment, the Claimant did not formally raise any complaints about Ms Greer with HR or with Ms Salek about any issue.[139]One of the issues in this case is that the Claimant alleges that Ms Greer referred to him as a magpie. She accepts that she did use that word.139.1 The Claimant says that it was several times and that he asked her to stop.139.2 She says that it was only once and that he did not ask her to stop.139.3 On Ms Greer’s account, some time after she had made the comment (which was once, according to her), the Claimant asked her to explain what she had meant by it and she did so.139.4 Ms Greer says that the explanation she gave at the time is one that she stands by.139.5 She says that the magpie comment was simply because the Claimant had collected a number of items on his desk. On her account, the one and only time that the comment was made was shortly after she had changed desks so as to sit close to the Claimant. We know from Mr Fox’s email to the Claimant that this was some time around late December 2022 or early January 2023.139.6 She denies that she stated that the Claimant was a “thief”, even as a joke. Her account is that the “magpie” comment did not imply that he was a thief and simply referred to collecting items and keeping them, not to any suggestion that the Claimant had dishonestly collected or retained any item.[140]We accept from the totality of the evidence that Ms Greer's account is accurate. She did use the word magpie only once. She did not use the word thief. It was not her intention to imply that the Claimant had stolen any of the items on the desk and she was merely referring to the fact that he had collected them. Her intention was to be jovial and to suggest that the Claimant had collected a number of items and made his desk perhaps seem like a “home”, in comparison to her own desk which was bare. Page 23 of 68[141]Since Ms Greer's time working the Respondent ended around 31 March (and it does not matter whether she was a direct employee or a contractor or supplied via an intermediary) and since no one other than Ms Greer is alleged to have been involved in the comments about magpie or thief, the incident in question was not part of a continuing act. That would have been the case in any event, but it is especially true given that the Claimant was told that he could raise any matters about Ms Greer formally if he wished to do so, but he chose not to.[142]On 6 April 2023, the Claimant sent and email to Ms Salek about the director of operations, Jalak Shukla. It read: I’m so sorry to have to bother you with this. I need this recorded and I need protection. I just came out of the lift and bumped into Jalak. I put my hand on my chest (a gesture I always do, especially to give way and or greet someone) lightly bowed and backed away saying ‘oh hey’. She carried on walking to the opposite door to me and with her back to me sarcastically said ‘im sorry I bumped into you’ in a funny voice, implying that that is what I should have said. I don’t know what is going on, but this is too much now. This is exactly why I have been needing senior HR support for however long. I will not be able to not say something the next time she does something like this. It is already crushing me that I have not confronted this sort of behaviour previously.[143]Ms Salek responded the same day provided him with a copy of the grievance policy.143.1 The existence of a policy had already been flagged up to the Claimant in December 2022 by Mr Fox. We infer that what Ms Salek sent was the new one, dated 2 March 2023.143.2 Ms Salek mentioned that the head of HR, Yaseen Pandor, was back in the office the following Tuesday, 11 April. She reminded the Claimant that he had already been told that he could speak to HR if he wished to do so.143.3 She provided links to, and details of “Freedom to Speak Up Guardians” and also to the employee assistance programme.143.4 She told him that she he could raise an informal grievance by speaking at her or alternatively he could raise a formal grievance in writing by submitting it to Mr Fox (as Ms Shukla’s line manager) or to the head of HR.[144]On 11 April, the Claimant did write to the head of HR forwarding on the email trail and stating there is a lot more context, and that he needed HR's assistance.[145]On 11 April, Ms Shukla sent an email and the subject line was “LTC meeting 27.3.22”. [Bundle 284]. Notes were attached. It is clear that the date is an error Page 24 of 68 and the subject line and the file name of the notes was intended to refer to 27 March 2023 (not 2022) meeting.[146]In writing to Marian Salek and Yaseen Pandor on 12 April, the Claimant alleged that he had been told the meeting had been cancelled, but it had gone ahead in his absence.[147]We have not seen a document that confirms that the Claimant was told that the meeting was cancelled. The return to work notes on [Bundle 287] refer to his having been off sick between 24 March and 29 March. Ms Greer's handover notes imply that the Claimant returned to work on 30 March. Therefore it does not appear to us that the Claimant was misled about the meeting. In any event, he did receive the notes from Ms Shukla on 11 April (so about two weeks after it occurred) and at the same time that she circulated them to others.[148]On 18 April [Bundle 373], Mr Fox sent an email which was copied to HR. It was mentioned that Ms Salek would be absent between 19 April and 5 May and he also referred to a belief that the Claimant's relationship was breaking down, asserting that it was without any substantiated grievances with which to investigate or respond.[149]On 19 April, Ms Salek sent an email to Mr Fox and Ms Shukla which she had been asked to put together by Ms Shukla. We accept that this document while being hearsay is an accurate reflection of what Ms Salek remembered while the matters were fresh in her mind. She gave details of her involvement with the Claimant since taking over his line management on Ms Greer's departure.149.1 Within that email which was not copied to the Claimant at the time she uses a phrase - which was repeated in later documents which were copied to the Claimant - that she was not impartial.149.2 Our finding of fact is that neither Ms Salek nor Ms Greer nor anybody else was asked by Ms Shukla (or by Mr Fox, or by anybody else) to treat the Claimant harshly. It is not the case that Ms Salek meant that she could not be impartial because Ms Shukla would not allow that to happen.149.3 The context of Ms Salek’s comments makes it very clear what she meant. In the context of telling the Claimant (as she told him several times) that he could raise a matter informally with her if wished to do so, she also told him that he could raise it formally with HR. She told him that if he wanted a matter to be investigated formally by an impartial individual with no previous involvement then the process would be for him to raise it with HR.[150]Ms Salek's meeting with the Claimant and Ms Shukla on 16 May 2023 is documented on [Bundle 292-293] and her 24 May 2023 email [Bundle 294]. Page 25 of 68150.1 The Claimant made various points suggesting referring back to the suggestion that he had failed probation and referring to the fact that he thought Ms Greer had spoken to not like a naughty schoolchild and that he felt Ms Shukla had something against him.150.2 He referred to the fact that the deep dive meeting in March 2023 had gone ahead without him.150.3 Our finding is that the incident, as per the list of issues, in which the Claimant alleges he was told by Ms Shukla not to discuss other employees and to focus on himself is a reference to comments made in this meeting. The reference to “mid-2022” in the list of issues is not accurate, and it should be “mid-2023” or “May 2023”. In any event, and for avoidance of doubt, Ms Shukla did not say anything that matched that description in or around “mid2022”.150.4 Ms Shukla does not accept that the exact words, as per the list of issues, were those that were used. She accepts, and we find it is correct, that she said that the Claimant should focus on himself, and also that she pointed out that some of the matters that the Claimant was raising were from quite a long time earlier, and some were from before she was the director of operations.150.5 There was no suggestion in the meeting that the Claimant was alleging that he was being discriminated against because of race.[151]After the meeting, in the evening of 16 May, the Claimant sent an email [Bundle 298] to Yaseen Pandor and to Ms Salek, not copied to Ms Shukla. He says that he wasn't listening to and that he was threatened with disciplinary action. He did not allege in the email he did not allege that the treatment he referred to was because of race.[152]Yaseen Pandor replied inviting the Claimant to have a conversation where necessary, but asking to wait the written outcome from Ms Salek first.[153]After the Claimant’s 16 May meeting with Ms Salek, but before her email about it, Mr Fox sent an email to the Claimant in response to the Claimant’s 12 May email to him. The Claimant’s email suggested that other colleagues were taking credit for his ideas. He named the colleagues, and described what he alleged. The allegations were not about Ms Shukla or Ms Greer or Ms Salek. In his 17 May reply, Mr Fox wrote: The language you have used below creates a concern for me about your wellbeing. As an organisation the physical and mental wellbeing of all our staff is important to us and I want to ensure you are aware of our independent and confidential service that may help in this area – please see [web address for employee assistance programme]. I am sure your line manager or HR would be very happy to support Page 26 of 68 any other wellbeing conversations if you would find that helpful and I will make Marian aware that I have expressed this concern. Regarding the other concerns you have raised, please could I ask that you pick this up with Marian as your line manager or HR if you do not feel able to. I am not the most appropriate person to do this. If there are particular concerns you don’t feel are being sufficiently progressed then we have clear HR processes you can follow for this, available [web address]. Whilst I won’t pre-empt any outcome of investigating any concerns you raise, I would also say that where I am witness to any deliberate bullying or harassment by staff (which you seem to imply below around alleged preferential treatment) then we would take this very seriously and investigate with those persons involved. It’s therefore important we can follow our HR processes to investigate and resolve any such concerns in a fair way.[154]The Claimant's 17 May email at 18:32 [Bundle 297] was sent to Yaseen Pandor and Ms Salek. It mentions various things that he had alluded to in this litigation.154.1 He refers to the apology that the Claimant says he received from Claudia and Scott, which is something he had first mentioned in his December 2022 emails. In other words, the alleged “apology” was in December 2022, and so the subject matter of the apology (that Claudia and Scott had been offered training that was not offered to the Claimant) was no later than December 2022.154.2 He also claims that that Mark Banks had admitted that there was something “personal” against the Claimant, and, in context, the suggestion was that Mr Banks was suggesting that Ms Shukla held something against him. Since Mr Banks left around 30 September 2022, it would have had to have been said before then. We find that Mr Banks did not say that to the Claimant, and he did not think it. Our finding is that such a belief would be contrary to the express assertions in his witness statement (or, at the least, would mean that the express assertions in the witness statement were extremely misleading). In the statement, he said: “I do not remember raising any concerns that would suggest his probationary period being extended or him failing his probationary period. During my 1-2-1s with the Director of Operations any concerns relating to the service managers were discussed. I have no recollection of being informed that Baran would not be passing his probationary period in his role as a Federation Service Manager.”154.3 In the 17 May email, the Claimant asserted that Ms Greer had told him something similar. That would have had to be on or before 31 March 2023. Ms Greer has given evidence and we accept her denial that she said this to the Claimant.[155]In any event, the 17 May email makes clear is that these beliefs and opinions were all matters in the Claimant's knowledge as of 17 May 2023. Page 27 of 68[156]Ms Salek’s email of 24 May was intended as a response to the things which the Claimant had raised in his subsequent emails to her after the meeting, as well as during the meeting itself. Under the heading ‘next steps’ on [Bundle 295], Ms Salek set out a range of actions that she intended to take. She repeated again, as had been previously mentioned, that the Claimant could raise an informal grievance with her or a formal grievance in writing to Michael Fox or to HR.[157]The email also repeated the information about “Freedom to Speak up Guardians” and the employee assistance programme.[158]As per [Bundle 304], on 23 May 2023, Ms Shukla received an email which she forwarded to Ms Salek on 30 May. It was from a primary care nurse lead and it referred to various issues. Although the Claimant is not named in Ms Shukla's email, in context is clear that Ms Shukla was suggesting that Ms Salek needed to raise these matters with the Claimant. The email she does not say that they should be raised with him as disciplinary issues and our finding is that(i) Ms Shukla was not necessarily expecting that they would be dealt with a disciplinary issues but that(ii) in any event, Ms Shukla was leaving it to Ms Salek to decide on exactly how she would tackle the matter with the Claimant.[159]On 9 June 2023, the Claimant and Ms Salek had an appraisal meeting. The Claimant said his work life balance was well-balanced. He said he really appreciated Ms Salek’s efforts. They planned to have regular one-to-one is thereafter.[160]On around 22 June 2023, Ms Salek conducted the return to work meeting that is shown on [Bundle 310]. This was about an absence from 19 to 20 June 2023.160.1 It stated that the Claimant had had 9.5 days absence in the previous 12 months, made up of 6 episodes.160.2 It gave the reason as “Stomach pains/issues due to anxiety”160.3 It said that the Claimant believed that there was an ongoing condition namely “ongoing anxiety concern”.[161]At 2:01pm on 14 July and the Claimant sent an email to Ms Shukla with the subject line “Apologies”. It stated that he accidentally sat in a puddle about 10 minutes earlier and he needed to go home and get changed and then come back. Ms Shukla responded at 2:15pm to say that he was missing an important finance update.[162]The Claimant did not return to work that day, which was a Friday.[163]The following Monday, the Claimant emailed Ms Salek [Bundle 313] to say that he was not well and might come in for half a day later. He did not do so. Page 28 of 68[164]The following day he emailed Ms Salek at 12:53pm to say that he could not come in that day either but hoped to be back the following day. This email was copied to Ms Shukla.[165]Ms Shukla replied to say that Ms Salek was not present and that the Claimant needed to phone the HR office number in accordance with policy.[166]The Claimant did return to work after that absence.[167]The following week on Wednesday, 26 July, just after 9am, the Claimant emailed Ms Salek to say he would need to work from home the following day. On the following day, 27 July, at 8am, he emailed Ms Shukla that he would not be able to work from home that day, but he hoped to come into the office by midday.[168]She responded shortly after 9am to say that that was okay and they should speak when he got there. At 12:54pm, he emailed her to say that the work that was taking place at his premises still was not completed and it he would not be able to get to work that day. Ms Shukla responded to say that it was unauthorised leave and that the Claimant would be invited to a meeting the next day to discuss it. She copied her email to Yaseen Pandor and Marian Ms Salek.[169]Ms Shukla’s email was 13.32. In the meantime, at 12:38pm the Claimant had sent an email with the subject line “concerns” to chief executive officer (Ms Williams) and the chief operations officer (Mr Fox). [Bundle 319]. It commenced: “I have tried every route except for an official grievance”.[170]Again, the email did not assert that any of his treatment been because of race. It repeated various matters that had been raised previously: the issue from May 2022 that he discussed with Mr Banks about potentially becoming a service manager; the alleged lack of management support since Mr Banks left; what Mark, Elaine, Claudia and Scott had allegedly said to him (repeating the gist of what he had said in May – which we addressed above).[171]Our finding of fact is that it is not true that any of Mark Banks or Elaine Greer or Claudia Rees or Scott Campbell, left because of the way the Claimant had been treated.[172]Ms Williams replied within the hour to say to the Claimant that if he wished to raise a formal grievance, then his correspondence would be treated as such. But that if he did not wish to raise a formal grievance, then he needed to follow appropriate processes for raising concerns. She asked him to respond to her to specify. Our finding is that she made clear to the Claimant that(i) it would be treated as grievance if he replied to say that that is what he wanted and(ii) it would not be treated as a grievance otherwise. Page 29 of 68[173]As per [Bundle 325], on 28 July, the Claimant sent an email to Ms Shukla to say that he was signing himself off sick as he was not well enough to face the office. He said he was not going to telephone as it would cause him more distress.[174]On Monday 31 July, he sent a similar email, this time addressing it to Ms Salek as well as to Ms Shukla. Ms Salek responded to say she was now back in the office and invited the Claimant to telephone her.[175]On 28 July at 11:09am [Bundle 323], Ms Shukla sent an email which was after she knew the Claimant was off sick. She did not send it to the Claimant.[176]A colleague forwarded the email to him and the Claimant wrote at 11:27am stating Is it not worth cc'ing me into this? This is exactly what I've been complaining about since I got my manager's role.[177]Ms Shukla replied stating, accurately, that the email had been an invitation to a meeting that was taking place that day. She said in the email, and we find it to be true, that the reason that she had not copied in the Claimant was that he was off sick and therefore she was not requiring him to attend the meeting. She wrote: If you are off sick today then you do not need to worry about work priorities. Focus on getting better. We need to progress the service as we had agreed last week on a go live date at a meeting that you attended.. Please do not contact your team when you are not working. If you feel well enough to work today then you are more than welcome to come in and join us for the priorities we need to progress for next week.[178]Our finding is that she was sincere in what she wrote, including the comment that the Claimant could attend the meeting if he felt well enough to do so, but that he was under no pressure to do so.[179]The Claimant remained off sick and the last day of sickness absence was 20 August 2023.[180]The Claimant supplied a fit note, obtained on 4 August, which covered the period 27 July to 13 August. [Bundle 321]. He supplied a further sicknote, obtained on 11 August, [Bundle 327] to cover the period 11 August to 20 August.[181]The Claimant returned to work on 21 Augst 2023. The Claimant's line manager, Ms Salek, and her line manager, Ms Shukla, were both on leave that day. Mr Fox decided that he would conduct the return to work meeting on behalf of the Respondent. Page 30 of 68[182]Mr Fox did not send an email invitation but rather approached the Claimant at the Claimant’s desk and invited him to the meeting.[183]The return to work notes start at [Bundle 330].183.1 Mr Fox expressed the view that he the Claimant was expected to contact the Respondent during his absence prior to 9am on each day. He noted that the Claimant had expressed the opinion that it was legitimate not to telephone, and that he considered that this was in accordance with Handbook. Mr Fox said that he would be asking Ms Salek about this. (During the tribunal hearing, the Claimant stated that, at least in the earlier version of the handbook, it was expressly stated that when employees were off sick, they should not do anything which might exacerbate their illness and the Claimant put contacting the employer by telephone to report the absence into that category.)183.2 The notes record under “next steps” that Ms Salek was due back a couple of days later (on Wednesday 23 August) and she would meet the Claimant and to update him.183.3 The Claimant was reminded again and that he could look at the grievance policy and raise any matter by that method. He was again reminded of the Freedom to Speak Up Guardian as well.183.4 He was told that if any of the people reporting to him raised any grievances, then he should make sure that they were aware of the correct process.[184]Following the meeting, at 10:39am [Bundle 329], Mr Fox sent an email to the Claimant, attaching the notes and copying in and Ms Salek to ask her to meet the Claimant on the Wednesday.[185]About half an hour later, Mr Fox sent an updated return to work form and we infer that that is the one in the bundle because it refers to 27.5 days sickness absence which is the figure showing on [Bundle 331]. So, as of 11.08am, at the latest, the Claimant had received the document which included details of the concerns which he had expressed at the meeting, and of what the Respondent intended to do to address them.[186]In between these two emails and Mr Fox also sent the email that is shown on [Bundle 328]. This was at 10:43am so was five minutes after the first email about the return to work meeting.186.1 It is common ground between the Claimant and Mr Fox during their meeting earlier on in the day, having first discussed the Claimant sickness absence and his return from it, Mr Fox had then stated that there had been concerns Page 31 of 68 raised about the Claimant and that there was going to be a formal investigation meeting.186.2 The 10.43am email attached a copy of the document that is shown at [Bundle 332]. That is a letter which listed five matters and said that there would be an investigation meeting the following week on Tuesday 29 August. It stated that Mr Fox was going to conduct the meeting and the head of HR, Yaseen Pandor, was going to be in attendance as a note taker.186.3 The letter made clear that one of the outcomes of the meeting might be that there would be a formal disciplinary procedure and that another outcome might be that there were no grounds for a formal disciplinary procedure.186.4 It included I understand that you will want to know what is going to happen as soon as possible, and I will endeavour to let you know as quickly as I can. It may be that our discussions in the meeting will enable me to at least give you some idea of whether I need to carry out any further investigations before getting back to you.[187]The letter attached the documents showing on [Bundle 334] through to [Bundle 336] which were some of the things that were going to be discussed.187.1 One of the issues was going to be the Claimant's absence on 14 July which was said to be unauthorised absence from team meeting.187.2 Another was absence between 27 July and 2 August, and alleged failure to contact the Respondent about it until 3 August.187.3 Another was allegedly giving instructions to colleagues while off sick.187.4 The other two items were appendix 1 and appendix 2 of the letter which were described as complaints about the Claimant, each from the same person, dated 26 July and 10 August respectively.[188]Mr Fox did not suggest to the Claimant – either in the meeting on the morning of 21 August 2023, or at any other time - that the Claimant might wish to resign.[189]On the contrary, what Mr Fox said to the Claimant was true. Mr Fox genuinely intended that Ms Salek would meet the Claimant two days later (the Wednesday) to discuss work matters, and he genuinely intended that his investigation meeting with the Claimant would go ahead the week after (on 29 August, so 7 days after the invitation letter).[190]The Claimant, of his own accord, approached the head of HR to discuss a departure. In particular, the Claimant asked if he would be able to leave immediately, but be paid in lieu of notice. Yaseen Pandor said that might be Page 32 of 68 acceptable but it would be up to Mr Fox. With the Claimant’s agreement, Yaseen Pandor, the head of HR and the Claimant approached Mr Fox and they had a three-way discussion.[191]During the discussion, Mr Fox asked the Claimant if he was sure that this was what he wanted to do (that is, leave with immediate effect, and be paid in lieu). The Claimant told Mr Fox and Yaseen Pandor that he was sure. On that basis, Mr Fox agreed in principle and asked the Claimant to put the request in writing.[192]At 12:03pm, the Claimant did put it in writing [Bundle 337]. The request accurately summarised the discussion that had taken place. It said: As discussed, I would like to hand in my resignation. I understand that this is on the basis that I will be paid for my notice period of two months. And that my last working day will be today.[193]Immediately, Mr Fox replied to confirm – on behalf of the Respondent – that the resignation without notice was accepted and that the Claimant would be paid two months pay.[194]As per [Bundle 6], on 23 August 2023 ACAS early conciliation started and the early conciliation certificate was issued on 4 October 2023.[195]As per [Bundle 7], the claim form was received by the tribunal on 2 January 2024.[196]The same page also includes a physical date stamp with the date 1 January 2024. However, our finding of fact is that the date of 2 January is correct and represents the date the form was actually submitted and that the date stamp is a clerical error. The Claimant accepts that the form was submitted on 2 January. He relies on the fact that he took advice from two sources as the reason for that.[197]An organisation named YESS (or Your Employment Settlement Service) had obtained the certificate for the Claimant. By email dated 4 October 2023, they forwarded it to him and said he would need it to present a claim. They were not planning to present the claim form on his behalf. They did not tell him the time limit deadline in the email, but when he spoke to them they stated that it would be one month from the end of early conciliation, so 4 November 2023.[198]Around 27 October 2023, the Claimant spoke to an organisation named Altra Law (described in their email signature as “The Not-For Profit Law Firm). The same day, he received an email from a trainee solicitor with a costs estimate for submission of the tribunal claim by 4 November.[199]The Claimant did not reply to the email until the following Monday, 30 October, and that was just a holding reply. On 31 October, he said he would like to go ahead and asked for “next steps”. Page 33 of 68[200]The same day, Altra Law asked for the ACAS early conciliation certificate so that the deadline to submit the claims could be calculated. On 1 November, the Claimant was asked for a chronology and other documents; it was pointed out that they were needed urgently so that Altra Law would have enough time to prepare the claims prior to limitation.[201]The Claimant replied at 11.36am on 1 November with a query about whether it would be cheaper if they simply advised him about the claim, but he submitted it himself.[202]At 11.48am, Altra Law said they did not think it would be cheaper, and confirmed the specific amount that they would charge for submitting the claim, and reminded him of the need for documents.[203]At 11.51am, the Claimant agreed to that. At 4.06pm, he said he was still working on the documents and was finding it stressful. At 5.11pm, Altra Law answered the Claimant’s query about payment details and wrote: Thank you for sending through your ACAS Certificate. I have had the opportunity to look over this and thankfully we have until 2nd January 2024 to submit your claims to the Employment Tribunal. Generally, you have to submit a claim within 3 months of your termination date which would give us until 20th November 2023, however you are also able to benefit from an extension for the time to account for the length of time you engaged in conciliation which would take us to 2nd January 2024. Please take some time and be assured that you do not have to rush to get the timeline to us immediately, I appreciate this is a stressful process.[204]The Claimant responded immediately to query that on the basis that YESS had told him “multiple times” that the deadline was 4 November.[205]At 9.34am the following day (2 November 2023), a trainee solicitor replied to say that the earlier advice about 2 January was correct and implied that the advice from YESS was incorrect. Amongst other things, the reply stated: Many solicitors who do not deal with litigated Tribunal claims will not make full use of what are known as the stop the clock provisions which essentially pause the time limit for the period that you were engaging in Early Conciliation. This is because the rules differ depending on the circumstances of the case and can be quite complex. … We will of course aim to submit your claims at the earliest opportunity, however I just wanted to give you some comfort that there is no immediate rush before the end of this week.[206]The Claimant replied again on 2 November to say that YESS had also commented and YESS had said that they agreed with Altra's calculations, if taken from the date of dismissal, but also referred to the fact that the Claimant was potentially intending to bring claims relating to issues prior to dismissal. Page 34 of 68[207]By 17 November 2023, Altra Law was still chasing the Claimant for payment, and for the timeline of events, and also documents to do regulatory checks. The Claimant said he would do it “before the end of the week”. They chased him again on 6 December 2023. On 11 December, they chased again, and that email included: Once we have these, we will be able to continue drafting your claims in time for the deadline on 2nd January.[208]That is the last email provided to us by the Claimant. The Claimant provided these documents during the course of closing submissions, and so the Respondent did not have the opportunity to question him about them.[209]Based on the documents, our finding is that the Claimant chose not to make any payments to Altra Law but rather decided to submit the claim form himself.[210]We accept that when he did so, on 2 January 2024, he was doing so in reliance on the assurance from a firm of solicitors, that presenting the claim on 2 January 2024 would be in time. We also accept that YESS had also told him that, in relation to complaints about dismissal, they agreed with Altra’s calculations.[211]In actual fact, for a termination date of 21 August 2023, the period of three months less one day ends on 20 November 2023.[212]The day after early conciliation started was 24 August 2023. The period from 24 August 2023 to 4 October 2023 (inclusive) is 42 days.[213]Adding 42 days to 20 November 2023 gives a date of 1 January 2024. The Law Equality Act 2010 (“EQA”)
The Law
[214]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(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.[215]It is a two stage approach. Page 35 of 68215.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the Claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.215.2 If the Claimant succeeds at the first stage then that means the burden of proof is shifted to the Respondent and the claim is to be upheld unless the Respondent proves the contravention did not occur.[216]In Efobi v Royal Mail [2021] UKSC 33, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong [2005] EWCA Civ 142 and Madarassy v Nomura International [2007] EWCA Civ 33.[217]As per paragraph 57 of Madarassy, “could decide” in section 136(2) EQA is equivalent to: a reasonable tribunal could properly decide from all the evidence before it.[218]The burden of proof does not shift simply because, for example, the Claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different) and/or that there was unwanted conduct and/or that there was a protected act. Those things only indicate the possibility of discrimination or harassment or victimisation. They are not sufficient in themselves to shift the burden of proof; something more is needed.[219]It does not necessarily have to be a great deal more: Denman v Commission for Equality and Human Rights 2010 EWCA Civ 1279. For example - depending on the facts of the case - an evasive or untruthful answer from a Respondent or an important witness, could be the “something more” that is required. In some circumstances, it may simply be the context of the act itself. In SRA v Mitchell EAT 0497/12, the EAT upheld a tribunal’s decision that the burden of proof shifted based on a finding that the employer had given a false explanation for the less favourable treatment. That being said, it is important for us to remind ourselves that the mere fact alone that a Tribunal rejects the employer’s Page 36 of 68 explanation for some particular act or omission does not mean that the burden of proof necessarily shifts, see for example Raj v Capita Business Services EAT 0074/19.[220]Recent EAT cases have re-emphasised the importance of actually adhering to the two stage approach set out in section 136. We have taken note of the comments in Field v Steve Pye and Co (KL) Limited and ors [2022] EAT 68 and of the fact that several subsequent EAT decisions have cited those comments with approval.[221]As per Essex County Council v Jarrett [2015] UKEAT 0045/15/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof has shifted in relation to each one.221.1 That does not mean that we must ignore the rest of the evidence when considering one particular allegation.221.2 The opposite is true. When there are multiple allegations, and/or a lot of facts found as part of the background information, a Tribunal has to stand back and consider all of the evidence in the round to consider whether any inference of discrimination should be drawn: see Qureshi v Victoria University of Manchester. There must be no failure to consider ‘the bigger picture’, as it was described in Humby v Barts Health NHS Trust [2024] EAT 17.221.3 We assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. Definition of Direct Discrimination – section 13 EQA[222]Direct discrimination is defined in s.13 EQA. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[223]There are two questions: whether the Respondent has treated the Claimant less favourably than it treated others (“the less favourable treatment question”) and whether the Respondent has done so because of the protected characteristic (“the reason why question”).[224]For the less favourable treatment question, the comparison between the treatment of the Claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. Paragraphs 54 to 65 of Martin v The Board Of Governors Of St Francis Xavier 6th Form College [2024] EAT 22 provide a recent and clear summary of the types Page 37 of 68 of arguments about comparators (and the proper role of section 23 EQA) that might be presented to us, and we have taken it into account.[225]When considering the “reason why question” for the treatment we have found to have occurred, we must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the Respondent’s various acts, omissions and decisions.[226]The mere fact alone that a Respondent, or a particular individual, has behaved unreasonably and/or treated the Claimant badly or unfairly will not, in itself, be sufficient to cause the burden of proof to shift. For one thing, there may also need to be consideration of whether the “bad” treatment is comparable to the way in which others were treated. However:226.1 The greater the difference between the Claimant’s treatment and that of another employee in similar circumstances, the more likely it is that the Tribunal will decide that an inference of discrimination could be drawn. Likewise, the more closely the circumstances of the Claimant and the alleged comparator match, and/or the greater the number of comparators who have had “better” treatment, the more likely it is that the burden of proof will shift.226.2 The more unreasonable the treatment, the more likely it is that the Tribunal will decide that it calls for an explanation and the more likely that the Tribunal might decide that it is possible to infer that a hypothetical comparator would have been treated differently.226.3 Where the Respondent offers an explanation for the Claimant’s treatment (and/or the differences between the Claimant’s treatment the alleged comparator’s treatment), then the burden of proof might shift where the Tribunal decides that the explanation is dishonest, and/or if different explanations have been put forward which are contradictory to each other. However, it is not sufficient that some of the information that they received before taking their decision came from someone who was motivated by the protected characteristic.[227]For the less favourable treatment question, the comparison between the treatment of the Claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. Harassment – section 26 EQA[228]Harassment is defined in s.26 of the Act. (1) A person (A) harasses another (B) if— Page 38 of 68 (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[229]It needs to be established on the balance of probabilities that the Claimant has been subjected to unwanted conduct which had the prohibited purpose or effect. However, to succeed in a claim of harassment, it is not sufficient for a Claimant to prove that the conduct was unwanted or that it had the purpose or effect described in s.26(1)(b). The conduct also has to be related to the particular characteristic.[230]Section 136 EQA applies and so the Claimant does not necessarily need to prove on the balance of probabilities that the conduct was related to the protected characteristic. If the tribunal finds facts from which it could conclude that the conduct was related to the protected characteristic then the burden of proof shifts.[231]The use of the word “or” in s26(b) (twice) is important. It means that there are 4 alternative routes by which a claimant can show there was harassment. These are not mutually exclusive, but the Claimant only needs to the Tribunal to decide that (at least) one of them matches the facts:231.1 That the purpose of the unwanted conduct was to violate their dignity.231.2 That the purpose of the unwanted conduct was to create an environment described by section 26(1)(b)(ii)231.3 That the effect of the unwanted conduct was that it violated their dignity.231.4 That the effect of the unwanted conduct was that it created an environment described by section 26(1)(b)(ii)[232]“Violating dignity” could potentially refer to a one off event, regardless of whether an “environment” was created by it. Whereas the word “environment” refers to a state of affairs. Such an environment may be created by a one-off incident, but only if the effects of the incident last long enough to come within that part of the definition. Where the unwanted conduct occurs on different occasions, then “an Page 39 of 68 intimidating, hostile, degrading, humiliating or offensive environment” might have been created even if no single incident violated the Claimant’s dignity.[233]“Purpose” and “effect” are two different things, and must be considered separately. Where it was the wrongdoer’s “purpose” to do the things listed in s26(b), then the complaint can succeed even if the conduct did not successfully have that effect. Correspondingly, where the conduct does have the effect described in s26(b), then the complaint can succeed even if the Respondent (or the person whose conduct it was) did not have the intention of causing that effect.[234]In Land Registry v Grant [2011] EWCA Civ 769, the Court of Appel said that when considering the effect of the unwanted conduct, and when analysing s.26(4), it is important not to cheapen the words used in s.26(1). Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The Claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the Claimant to a “humiliating environment” when he heard of it some months later is a distortion of language which brings discrimination law into disrepute.[235]When dealing with a series of alleged incidents of harassment (and the same principle applies to discrimination as well), it is important not to carve up the allegations and only consider them one by one. Considering the allegations one by one on their own merits is an important part of the analysis but it is important to also stand back and have regard to the entirety of the conduct which is found to have occurred (see Qureshi v Victoria University of Manchester EAT/484/95). This is particularly important when considering the purpose of the conduct, and whether it would be reasonable to regard the conduct as having the prohibited effect, as well as when analysing whether there are facts from which we could decide that the conduct was related to the protected characteristic. Discrimination arising from disability – s15 EQA[236]Discrimination arising from disability is defined in s.15 EQA. 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. Page 40 of 68[237]The elements that must be made out in order for the Claimant to succeed are that: there must be unfavourable treatment; there must be something that arises in consequence of the Claimant’s disability; the unfavourable treatment must be because of, in other words caused by, the something that arises in consequence of the disability. Furthermore, the alleged discriminator must also be unable to show either that the unfavourable treatment was a proportionate means of achieving a legitimate aim or, alternatively, that it did not know and could not reasonably have been expected to know that the Claimant had the disability.[238]The word ”unfavourably” in s.15 is not separately defined in the legislation but should be interpreted consistently with case law and the EHRC Code of Practice. Dismissal, for example, can amount to unfavourable treatment but so can treatment which is much less disadvantageous to an employee than dismissal.[239]Pnaiser v NHS England [2015] UKEAT 0137/15 makes clear that, if there was unfavourable treatment, the Tribunal must decide by whom. The Tribunal must then decide what caused that person or persons to subject the Claimant to the treatment in question. That includes making decisions about the conscious and unconscious thought processes of the alleged discriminator. There may be more than one reason or cause for the treatment and the “something arising in consequence of disability“ need not be the main or sole reason for the unfavourable treatment but must have a significant (ie more than trivial) influence so as to amount to an effective reason for or cause of it. Having made decisions about what caused the alleged discriminator to act as they did, the tribunal will then have to determine whether the reason or cause is “something arising in consequence of” the Claimant’s disability.[240]In Risby v London Borough of Waltham Forest EAT 0318/15, the EAT made clear that an indirect connection between the Claimant’s unfavourable treatment and the “something” that arises in consequence of the disability can be sufficient. The EAT decided that the employment tribunal had been wrong to reject the section 15 claim on the basis that an incident in which the employee lost his temper was unrelated to his disability. On the facts, an effective cause of the loss of temper had been the employer’s decision to hold an event at a venue that was inaccessible to him because of his disability, that loss of temper led to his dismissal, and there was therefore a sufficient connection between the unfavourable treatment (his dismissal) and his disability for the purposes of section 15[241]When considering what the Respondent knew or could have reasonably been expected to know, the relevant time is the time at which the alleged unfavourable treatment occurred. Thus, where there are different allegations, then the Respondent’s knowledge has to be assessed at the time of each alleged act or omission. For that reason, for example, what the Respondent knew (or could have been expected to know) at the time of a dismissal might be different than Page 41 of 68 what it knew (or could have been expected to know) at the time of an appeal hearing.[242]The complaint will not succeed if the Respondent is able to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim. The aim relied upon should be legal, should not be discriminatory in itself, and must represent a real objective consideration. Business needs and economic efficiency may be legitimate aims, but simply demonstrating that one course of action was less costly than another is not likely to be sufficient.[243]In relation to proportionality, the Respondent is not obliged to go as far as proving that the discriminatory course of action was the only possible way of achieving the legitimate aim. However, if there are less discriminatory measures which could have been taken to achieve the same objective then that might imply that the treatment was not proportionate.[244]It is necessary for there to be a balancing exercise which takes into account the importance of the Respondent achieving its legitimate aim in comparison weighed against to the discriminatory effect of the treatment. Regardless of whether the Respondent carried out that balancing exercise at the time (and it is not necessary for the Respondent to prove that it did), the tribunal carries out its own balancing exercise - based on the evidence presented at the hearing – in order to decide if the section 15(1)(b) defence succeeds.[245]Each case will turn on its own facts, and the Tribunal must take into account everything which is relevant, based on the evidence presented by the parties. The approach to the balancing exercise discussed by the Court of Appeal in Hardys & Hansons Plc v Lax [2005] EWCA Civ 84, a case dealing with section 19 EQA, is appropriate when considering section 15 EQA as well (albeit section 19 is considering the discriminatory effect of a PCP, whereas section 15 requires analysis of the specific relevant treatment of the Claimant).[246]Section 136 EQA applies to alleged contraventions of section 15 EQA. Constructive Dismissal[247]Section 95(1)(c) ERA and section 39(7)(b) EQA refer to something colloquially known as “constructive dismissal”. In order to prove constructive dismissal the employee must prove:247.1 that the employer has committed a serious breach of contract and247.2 that the employee resigned because of that breach (or at least partly because of that breach; it does not necessarily have to be the only reason) and Page 42 of 68247.3 that the employee must also prove they has not waived the breach by affirming the contract.247.4 In London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493, the court, at paragraph 14, stated that: The following basic propositions of law can be derived from the authorities: 1 The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761 2 It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1998] AC 20, 34H–35D (Lord Nicholls) and 45C– 46E (Lord Steyn). I shall refer to this as “the implied term of trust and confidence”. 3 Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added). 4 The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively , it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer” (emphasis added). 5 A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at paragraph [480] of Harvey on Industrial Relations and Employment Law: “[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship.”[248]The implied term that the employer “shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee” is one which the employee can allege was breached by a single incident or by the cumulative effect of different treatment. Page 43 of 68[249]“Last straw” arguments do not do away with the need for the employee to establish that there has actually been a fundamental breach of contract by some point. “Last straw” arguments are significant when considering whether the employee resigned because of the fundamental breach; in particular, where some of the conduct relied on as being a fundamental breach was significantly earlier, and the Claimant did not resign promptly, but argues that a “last straw” caused them to resign.[250]The last straw might be relatively insignificant, but it must not be utterly trivial. An entirely innocuous act on the part of the employer cannot be a “last straw” even if the employee genuinely but mistakenly interprets the act as hurtful.[251]In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, the Court of Appeal clarified the analysis in Omilaju and added to it. It reiterated that the last straw doctrine is only relevant to cases where the repudiation relied on by the employee takes the form of a cumulative breach and that the last straw doctrine does not have any application to a case where the alleged repudiation consists of a one-off serious breach of contract.[252]In Kaur, the Court of Appeal made clear that - in a last straw case - the fact that the employee might have affirmed a contract after some of the earlier conduct does not mean that it is not possible for the Claimant to rely on that earlier conduct as part of a cumulative breach argument. In paragraph 55 of its decision it summarised the correct approach. 1 What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? 2 Has he or she affirmed the contract since that act? 3 If not, was that act (or omission) by itself a repudiatory breach of contract? 4 If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation ...) 5 Did the employee resign in response (or partly in response) to that breach?[253]Where the answer at point (4) is “no” (for example the act that triggered the resignation was entirely innocuous), it is necessary to go back and see whether there was any earlier breach of contract that has not been affirmed, and which was a cause of the resignation. See Williams v Governing Body of Alderman Davies Church in Wales Primary School EAT 0108/19.[254]In considering whether a contract has been affirmed after a breach, it is necessary to have regard to the entirety of the circumstances. A gap in time between the act relied on and the resignation is a significant factor but it is by no means the only factor; in other words, a delay is not necessarily fatal to the Page 44 of 68 employee’s argument for constructive dismissal. The reasons for the delay would be relevant as would consideration of what had happened in the intervening period, such as was the employee working and receiving pay amongst other things.[255]Where an employee succeeds in the argument that there was a constructive dismissal, then the dismissal “reason” is the employer’s reason for the conduct which caused the employee to treat themselves as dismissed.[256]Depending on the nature of the conduct in question, it is potentially open to an employer to argue that the dismissal was for a potentially fair reason and was, in all the circumstances, a fair dismissal. Section 98 of the Employment Rights Act 1996 (“ERA”) deals with fairness.[257]In considering discriminatory dismissal arguments, we must take care not to conflate tests for whether a dismissal was a breach of the Equality Act with tests for whether the dismissal was unfair contrary to the Employment Rights Act.[258]Not every tortious act amounts to a repudiatory breach of contract. Even if a tribunal finds that an employee suffered an act discrimination and that they resigned in response to that incident of discrimination, it would be an error of law to decide that such conclusions must mean that a decision that there was a constructive dismissal automatically follows. Amnesty International v Ahmed 2009 ICR 1450, EAT.[259]In this case, the repudiatory breach relied upon is that there was an alleged breach of the term requiring trust and confidence (and, as discussed above, any breach of that term will be a repudiatory breach). If the Tribunal decides that that term was breached, and that the Claimant resigned in response to that breach, and it has also decided that some (or all) of the conduct that caused that breach amounted to discrimination, then it follows that the (constructive) dismissal was a contravention of section 39(2)(c) EQA.[260]The ACAS Code of Practice on Disciplinary and Grievance Procedures must be taken into account by the Employment Tribunal if it is relevant to a question arising during the proceedings (see section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992). Time Limit calculation issues[261]When a statute specifies that the time limit (properly calculated) expires on a particular day, then a claimant has until the end of that day to submit a claim. So, for example, if the deadline is 1 January, then a claim presented at 11:59:59pm on 1 January would be in time. However, one second later, midnight, is the start of the next day, 2 January. Page 45 of 68[262]When the time for presenting a claim expires on a Saturday, Sunday or bank holiday, there is no extension of time until the next working day. Potentially a claim submitted physically by use of a letter box when the office is closed can be treated as presented on the day it was placed in the letter box. In any event, a claim form submitted electronically can be submitted at any time of day and on any day of the year. (Where there is alleged to have been any issue about the on-line submission portal being unavailable, that can be considered; as with any other argument, evidence would potentially be required.)[263]Section 207B of ERA and 140B EQA are worded similarly, and each describes how time limits are affected by early conciliation. In summary:263.1 Where early conciliation commences after the time limit has expired, then the time limit is not extended.263.2 Where early conciliation commences before the time limit expires, then the Claimant will have at least a calendar month from then end of the conciliation (“Day B”) to present the claim.263.3 In some cases, they might have longer than one month from Day B. The period from the day after conciliation starts until Day B is ignored when calculating the time limit. Time Limits for ERA claims[264]Section 111 ERA states, in part (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (2A) … section 207B (extension of time limits to facilitate[265]When a Claimant argues that it was not reasonably practicable to present the claim within the time limit, there are questions of fact for the tribunal to decide. In other words, whether it was, in fact, reasonably practicable or not. The onus of proving it was not is on the Claimant. When doing so, the phrase “not reasonably practicable” should be given a liberal interpretation in favour of the Claimant. Page 46 of 68[266]If the tribunal is satisfied that it was not reasonably practicable to present the claim within the time limit, then it is necessary to consider whether the period between the expiry of the time limit and the eventual presentation of the claim was reasonable in the circumstances. This does not necessarily mean that the Claimant has to act as fast as would be reasonably practicable.[267]In Porter v Bandridge Ltd 1978 ICR 943, CA, the Court of Appeal held that the correct test is not whether the Claimant knew of his rights but whether he ought to have known of them.[268]Similarly, when a Claimant is ignorant about (or makes a mistake about) a fact which is relevant to the calculation of time limit, the question is whether that ignorance (or that mistake) is reasonable.[269]The assessment of reasonableness has to take into account that a potential Claimant ought to be aware of the importance of not missing a time limit. Put another way, even if it is true that the Claimant did not know the true facts, then that does not necessarily mean that it was not reasonably practicable to issue the claim in time. The Claimant must also show that the ignorance was reasonable and that he could not reasonably have been expected to have discovered the true situation during the limitation period. Furthermore, ignorance of the true facts must be the actual reason for failing to issue the claim sooner.[270]Fault on the part of the Claimant’s adviser may be a relevant factor when determining whether it was reasonably practicable for the Claimant to present the claim within the prescribed time limit. It is important to consider all the circumstances and the type of adviser involved. A mistake made by a solicitor or barrister acting for the Claimant is likely to deemed to be a mistake made by the Claimant. As per Wall’s Meat Co Ltd v Khan 1979 ICR 52, CA, ignorance or a mistaken belief will not be reasonable if it arises either from the fault of the Claimant or from the fault of his solicitors in not giving him such information as they should reasonably have given him.[271]In Northamptonshire County Council v Entwhistle 2010 IRLR 740, EAT, Underhill P noted that there could be some circumstances where – despite having used solicitors to advise him on the matter – a Claimant might show that it had not been reasonably practicable to issue the claim on time In other words, there might be cases where the adviser’s failure to give the correct advice was itself reasonable, such as where the employee and his or her solicitor had both been misled by the employer on some factual matter, such as the date of dismissal.[272]The Entwhistle case, reiterated that the “Dedman principle” still applied.[273]In Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, the court of appeal stated (using the language of the time): Page 47 of 68 ‘If a man engages skilled advisers to act for him — and they mistake the time limit and present [the claim] too late — he is out. His remedy is against them.’[274]That is the proposition commonly referred to as the “Dedman principle”, and which is still binding on the Tribunal, subject, of course subject to the fact that the wording of the legislation is paramount.[275]In both Ashcroft v Haberdashers’ Aske’s Boys’ School 2008 ICR 613, and Remploy Ltd v Brain EAT 0465/10, the EAT asserted that the ‘Dedman principle’ does not distinguish between the scenario where the Claimant instructs the solicitors to lodge the claim form, and the solicitors then miss the deadline, and the scenario where the Claimant lodges the claim form, and misses the deadline, but because of reliance on the solicitors advice about the date of the deadline.[276]As per Z v Y [2024] EAT 6, where a claim form includes an allegation that a dismissal is discriminatory, as well as unfair, then it is an error of law not to deal with that claim, even if it has not been included in the list of issues. Put another way, if a claim that has been presented has been withdrawn, then it does not have to be the subject of a decision at the final hearing; but the mere fact alone that a complaint has been omitted from the list of issues does not mean that it has been withdrawn.[277]As part of the analysis, it was mentioned that In McLeary v One Housing Group Ltd UKEAT/0124/18, in which it was found that the particulars of claim ought properly to have been treated as including a complaint of discriminatory dismissal, and in which HHJ Auerbach observed: “89. … where it is clear from a claim form and/or particulars of claim, that a lay Claimant is saying, factually, I was subjected to discrimination in my employment and this drove me to resign, it is both proper, and incumbent on the Tribunal, to seek clarification of whether such a claim is intended.”[278]It also analysed, especially at paragraph 45, the issues that might need to be pleaded in order to show that there was an allegation of discriminatory constructive dismissal, especially in the context that some, but not all, the conduct complained of was allegedly discriminatory.[279]The principles laid out in Z v Y have not been over-ruled by the court of appeal decision in Moustache.[280]On the contrary, at para 47, the court of appeal not only distinguished Z v Y, but effectively approved it and stated that it was in accordance with paragraphs 38 to 39 of Moustache.[281]In other words, (as per Moustache) if discriminatory dismissal is not pleaded, then it is not up to the Tribunal to suggest that it ought to be in the list of issues, Page 48 of 68 but (as per Z v Y), if it is pleaded, then the Tribunal at final hearing is responsible for adding it to the list of issues even if omitted previously. Time Limits for EQA complaints[282]In EQA, time limits are covered in s123, which states (in part): (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. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it[283]In applying Section 123(3)(a) of EA 2010, the tribunal must have regard to the guidance in Commissioner of Police of the Metropolis v Hendricks ([2002] EWCA Civ 1686; [2003] ICR 530); Lyfar v Brighton and Hove University Hospitals Trust [2006] EWCA Civ 1548. Applying that guidance, the Court of Appeal has noted that in considering whether separate incidents form part of an act extending over a period, one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents: Aziz v FDA 2010 EWCA Civ 304. The tribunal must consider all relevant circumstances and decide whether there was an act extending over a period or else there was a succession of unconnected or isolated specific acts. If it is the latter, time runs from the date when each specific act was committed.[284]There is a crucial distinction between – on the one hand – an invariable rule which will inevitably result in a discriminatory outcome each time and – on the other hand – a discretionary decision made under a policy, in which the discretionary decision may sometimes result in an employee getting the desired outcome, and sometimes not. In the latter case, the discretionary decision causes the time to run (for a complaint based on that decision), regardless of arguments about whether the policy itself is discriminatory.[285]In considering whether it is just and equitable to extend time the Tribunal should have regard to the fact that the time limits are relatively short. That being said, Page 49 of 68 time limits are there for a reason and the default position is to enforce them unless there is a good reason to extend. That does not meant that the lack of a good reason for presenting the claim in time is fatal. On the contrary, the lack of a good reason for presenting the claim in time is just one of the factors which a tribunal can take into account, and it might possibly be outweighed by other factors.[286]The Tribunal has a broad discretion to extend time when there is a good reason for so doing. Parliament has chosen to give the Employment Tribunal the widest possible discretion. Unlike, say, the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it is wrong to interpret it as if it contains such a list. A tribunal can consider the list of factors specified in s 33(3) of the Limitation Act 1980, but if it does so, should only treat those as a guide, and not as something which restricts its discretion.[287]The factors that may helpfully be considered include, but are not limited to:287.1 the length of, and the reasons for, the delay on the part of the Claimant;287.2 the extent to which, because of the delay, the evidence is likely to be less cogent than if the action had been brought within the time limit specified in Section 123;287.3 the conduct of the Respondent after the cause of action arose, including the extent (if any) to which it responded to requests for information or documents[288]In particular, it will usually be important for the Tribunal to pay attention to (and, where necessary, make specific findings about) “whether the delay has prejudiced the Respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh)”: Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640. Analysis and conclusions Disability[289]We will first discuss and make our decisions, in relation to section 4 of the list of issues, which deals with disability.[290]As mentioned in the findings of fact, we have an impact statement, some GP records, and various return to work meeting notes.[291]As per [Bundle 272], return to work notes of 24 February 2023:291.1 There was a two day absence for “stomach upset”. Page 50 of 68291.2 The only other sickness absence in the previous 6 months was a half day in September 2022.291.3 The question about “regular pattern of absence” was answered “no”.291.4 The question about “Is there anything within the work place that could be or can be identified as making the illness worse?” was answered by the Claimant stating that some of his colleagues came into work when they had cold symptoms.291.5 He said that he sometimes did have stomach issues in the morning and had been to the GP. Ms Greer suggested that he might wish to go back to the GP about it.[292]As mentioned in the findings of fact, Ms Greer’s handover note mentioned an absence in March, and that the Claimant, although he had returned to work, did not wish to do the return to work meeting straight away. [Bundle 287 to 288] shows Ms Salek’s discussion with the Claimant about that absence. She signed the document on 10 May, and he signed it on 30 May.292.1 This document mentioned that there had been absence on 29 April 2022. (So it seemed to be attempting to refer to all absences in the preceding 12 months, not just 6).292.2 It addressed the absence from Friday 24 March to Tuesday 29 March (so 3 working days).292.3 The question about “regular pattern of absence” was answered “Sickness absence related to stress at work”.292.4 The question about “Is there anything within the work place that could be or can be identified as making the illness worse?” was answered by the Claimant stating “Sickness absence usually related to stomach pain/issues or back pain, which is triggered by stress at work”.292.5 This was one of the occasions on which Ms Salek informed the Claimant of Employee Assistance Programme and Freedom to Speak Up Guardians.292.6 The need to phone in was mentioned, as well as the possibility of working from home when appropriate. 293. [Bundle 302] is return to work interview dated 30 May 2023. It gives the reason for a one day absence on 19 May 2023 as “Stomach issues – induced by workplace related anxiety”. We accept that what Ms Salek wrote under “next steps” is what was actually discussed and the Claimant signed the document Page 51 of 68 (electronically). The Claimant did not wish to use the Employee Assistance Programme. He told Ms Salek that he was already in touch with HR.[294]On [Bundle 310-311] are return to work notes which are unsigned by the Claimant. There was absence for two days, 19 and 20 June 2023. Absence in previous 12 months was noted as 9.5 days, 6 episodes. It was stated “yes” to regular pattern of absence, and “yes” to workplace contributing to concerns and “yes” to “long-term condition”, described as “ongoing anxiety concerns”.[295]In the findings of fact, we mentioned that there were two fit notes, which between them covered the period from 27 July 2023 to 20 August 2023. Each stated that the Claimant was not fit to work because of “stress at work”.[296]The earliest references to stress at work in the GP notes are from 14 May 2021 [Bundle 158] and from 22 September 2021 [Bundle 157].[297]The 14 May entry says that the Claimant is “fine when not at work”, but stressed as soon as he gets to work. It states that the job is stressful, and that particular trigger point was an argument with an unnamed colleague who was due to depart shortly. Some medication (propranolol) was suggested.[298]The September 2021 entry comments that the propranolol had helped, but the Claimant had felt better after a few weeks. He referred to struggling to sleep and to intermittent stress at work. He was prescribed medication to help with sleep.[299]On 31 January 2022 [Bundle 155], there was a further discussion. The Claimant felt anxious about going to work, and had an issue with a manager. The Claimant stated that he did not think propranolol had helped. No new medication was prescribed and no fit note was issued. The Claimant was told he could selfcertify.[300]The next entry is about 18 months later, on 1 August 2023. The Claimant refers to there having been 1 year history of symptoms, being - stress at work and low mood and poor sleep pattern. He also said he was having negative thoughts and had stopped enjoying activities. Sleeping medication was discussed. The notes include: Mentions has been "managed out" at work -mentions bullying by a senior colleague, also mentions another senior colleagues has made false allegations against him; facing disciplinary procedures at work. Works as a service manage for GP federation[301]No fit note was issued on 1 August, and the Claimant was told to self-certify. There are notes from 4 August 2023, which we accept are an accurate summary of what was discussed that day, and the fit note was issued. Page 52 of 68[302]As per the findings of fact, a return to work note was produced on 21 August 2023, and emailed to the Claimant. In it, it was stated that there had been 27.5 days absence, 7 episodes, in the previous 12 months. It was stated that the absence was related to a long-term condition (in the Claimant’s opinion) being “ongoing related to work stress”. 4.1.1 Did the Claimant have a physical or mental impairment[303]We are satisfied that, from no later than 14 May 2021, the Claimant had a mental impairment. We take into account that typical human reactions to a life event (even extreme reactions) are not the same thing as an impairment. However, on balance of probabilities, what the Claimant labels as “work stress” was, in fact, evidence of an underlying condition. 4.1.2 Did it have a substantial adverse effect on their ability to carry out day-to- day activities?[304]Yes, though intermittently rather than constantly.[305]When the effects exhibited themselves, they included sleeping difficulties, and difficulties getting up in the morning, and getting ready for work. 4.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? 4.1.4 Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures?[306]He did have medical treatment. In relation to propranolol, the GP notes (which are based on information from the Claimant) are inconsistent as to whether it helped or not. In September 2021, the Claimant reported that it had helped, and in January 2022, he said it had not. The September 2021 report is closer in time to May 2021; further, the Claimant reported that his symptoms had improved, even if he did not believe that there was a connection between the improvement and propranolol, it does not follow that he is correct.[307]In any event, he did have sleeping medication as well. Furthermore, even with the combined effects of all the medication, the symptoms did recur. 4.1.5 Were the effects of the impairment long-term? The Tribunal will decide:4.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?4.1.5.2 if not, were they likely to recur? Page 53 of 68[308]The relevant date for the disability discrimination allegations is 21 August 2023. Although the Claimant had not constantly had the symptoms from 14 May 2021, by no later than 21 August 2023, the substantial effects on day to day activities had been recurring intermittently for a period which exceeded one year.[309]The date by which they were likely to recur beyond May 2022, was probably, at the latest, 31 January 2022.[310]As of 21 August 2023, the Claimant had an impairment which satisfied all elements of the definition of disability as per the Equality Act 2010. Furthermore, it was a current disability, not a past disability. Although his symptoms had subsided sufficiently for him to return to work that day, they were likely to recur again in the future. Harassment related to race / Direct discrimination because of race[311]The Claimant relies on paragraphs 5.2.1, 5.2.2 and 5.2.3 as harassment, and, in the alternative, direct discrimination.[312]If the incident is found to amount to harassment, then we do not make any decision on whether it also met the definition of direct discrimination. (The definition of “detriment” in section 212 EQA effectively ousts the jurisdiction of section 39 EQA where we have found that the act/omission contravened section 40 EQA).[313]However, if the incident is not found to amount to harassment related to race, then we do go on to address whether it was direct discrimination because of race. 5.2.1 In or around 2021, Harry Albert stating to the Claimant “could you believe [Jana Lloyd’s coat]’s gone missing, but there’s cameras everywhere so we will find who did it?[314]As stated in the findings of fact, Harry Albert did speak to the Claimant about the missing coat. We decided this did occur because the Claimant remembers it happening; we decided that it did not reflect on Mr Albert’s credibility that he does not recall it.[315]As stated in the findings of fact, contrary to what is stated in the list of issues, this was actually pre-Covid and was around autumn 2019 rather than in 2021.[316]Mr Albert had done his best to recall the incident, and he simply does not recall it. It was a very long time ago.[317]On the Claimant's own account, he did not complain at the time about being invited to a meeting to discuss the coat, or being spoken to by Mr Albert about the coat. Although the lack of an internal complaint would not prevent a complain to the Tribunal succeeding, in the absence of a prompt complaint, it was not Page 54 of 68 possible for the Respondent to investigate while matters were fresh in people’s memories. It was not possible to ask how many people working in the shared service at the time (this was before the Claimant became an employee of the Respondent) were asked about the coat.[318]It was not possible to speak to Jana Lloyd and Harry Albert at the time to ask them what questions they recalled putting to the Claimant, and why, and what, if anything, they asked of anyone else.[319]The claim was presented slightly more than 4 years after the incident in question. The list of issues only refers to Harry Albert as saying anything to the Claimant about the coat. In any event, neither Harry Albert nor Jana Lloyd are mentioned as part of any other allegations. Mr Albert ceased working for the Respondent in August 2021, so more than 3 years before the claim was presented.[320]Our decision is that, in relation to paragraph 5.2.1 of the list of issues, there was no act which continued after the end of 2019.[321]The Respondent has been substantially prejudiced by the effects of the delay on its ability to defend itself against the accusation that the Claimant was singled out for any reason, and to explain what motivated Mr Albert.[322]It is not just and equitable to extend time. 5.2.2 In or around February 2023, Elaine Greer making a comment regarding the Claimant being a “magpie” and making jokes about the Claimant being a thief?”[323]In relation to jokes about the Claimant being a thief, that fails on facts as it did not happen.[324]As per the findings of fact, Ms Greer did refer to the Claimant as a “magpie”. We found that Ms Greer used the word magpie on just one occasion. We found that, later, the Claimant asked her what she meant by that, and she explained that she had said it because he had numerous items on his desk.[325]We found that she had no conscious intention of implying that the Claimant was a thief.[326]Since the magpie comment occurred around late December 2022, or early January 2023, it was around a year prior to the claim form. Ms Greer had no involvement in anything after 31 March 2023.[327]The magpie comment is not a continuing act and our decision is that it is not just and equitable to extend time for it. Amongst other things, when the Claimant was given the informal warning in March 2023, he was expressly told that if he wished to make any allegations about any remarks that Ms Greer had made to him, then Page 55 of 68 he could do so. He did not do so during his employment, which lasted for almost 5 more months after her departure; while we accept that he had some sickness absence in that time, the majority of the time he was in work.[328]For completeness we add the following.[329]Ms Greer’s remark was not made with the purpose(a) violating Claimant's dignity or(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Even on the Claimant’s own account, it was intended jovially when she said it.[330]Further, it would not be reasonable to treat the comment as having either such effect. It would be cheapening the words of section 26(1)(b) to decide that it was reasonable to have such an effect. In particular, the Claimant asked for an explanation, and was given one.[331]Furthermore, there are no facts from which we could conclude that the comment was related to race, or because of race.[332]The complaints of harassment and direct discrimination would have failed on their merits had they been in time. 5.2.3 Richard Sennett, Gursharan Rai, and Seema [Pattni] mocking the Claimant’s accent at various times during the Claimant’s employment?[333]As per the findings of fact, it is not true that Dr Sennett or Dr Rai did anything within the description in paragraph 5.2.3.[334]Neither of them mocked the Claimant's accent or the words that he used by mimicking him or otherwise.[335]We also decided that the Claimant has failed to prove that Dr Sennett laughed when somebody else mocked the Claimant's accent or made comments about Bosnia.[336]In her statement, Dr Pattni asserted: I have no idea why the Claimant has made this allegation against me as I have never mocked the Claimant’s accent. I am from an ethnic minority, I have experienced racism before, and I would never subject anyone to the same.[337]She did not attend the tribunal hearing. We make no adverse inferences due to her lack of attendance because Respondent provided a satisfactory explanation[338]As against her hearsay denial, the Claimant’s assertion was: … [Drs Rai and Pattni] had also made fun of my accent and pronunciation. This is not really a complaint about these individuals, more so to highlight the atmosphere Page 56 of 68 in which I had to operate in. These acts of mimicry/mocking came at the end of me gaining their confidence and trust. Why was I not trusted to carry out my role/be in command of my role from the start? Why was it surprising that I was in command of my role, and that I was trustworthy? (unconscious bias training?)[339]As discussed in the findings of fact, with Dr Rai, the Claimant wanted to suggest that she had been misled by the Respondent about the allegations. Even on the face of the statement, it is less an assertion that, from the time they knew him, they mocked his accent and is more an assertion that, once they trusted him they mocked his accent, and they ought to have trusted him sooner.[340]That being said, the Claimant has had the opportunity to cross-examine Dr Rai, and to put to her the one alleged incident of mocking. (We found that it did not happen.) He has not had a similar opportunity in the case of Dr Pattni.[341]Given that Dr Pattni was working from home from January 2022 onwards, and that the Claimant has not mentioned any occasion on which he spoke to her from then (let alone when she mocked his accent), the Claimant has failed to prove that time should run from any later than January 2022.[342]In any event, she went on planned leave in June 2022, and did not return to work for the Respondent after that leave.[343]Our decision is that if it were hypothetically true that she ever mocked his accent, the incident or incidents must have been no later than January 2022. That was 18 months before the end of the Claimant's employment and two years before he presented his claim form. Dr Pattni does not feature in any of the other allegations (and is not mentioned in his statement other than in paragraph 15).[344]It would have been particularly important to bring the Claimant promptly in relation to Dr Pattni given that:344.1 She subsequently left the Respondent's employment.344.2 But also because the Claimant has an English accent / a London accent. The Claimant's argument that the particular type of London accent which he has is an accent which is associated with people of his ethnicity is a subtle argument.344.3 If there were to be any investigation of that matter, then it is something that would have had to happen promptly while the specific alleged incidents were still fresh in people's memories.344.4 There was no contemporaneous complaint by the Claimant and in his written statement and his oral evidence is not provided any details of any specific alleged incidents. Page 57 of 68344.5 The Respondent is significantly disadvantaged at having to seek to respond to such an extremely vague allegation.[345]In relation to Dr Pattni, there was no continuing act, and the allegation is long out of time. Given the prejudice to the Respondent, we do not extend time. Direct discrimination[346]Allegations 5.2.4 to 5.2.15 are not alleged to be harassment in the alternative.[347]We will address 5.2.4, 5.2.5, and 5.2.6, together as part of 5.2.13. 5.2.7 Preventing the Claimant from attending training by sending last minute tasks at various times during his employment?[348]This fails on the facts as the Claimant had not demonstrated that there was any occasion on which this happened. It follows that he has also failed to prove that the allegation is in time.[349]The Claimant has not proven on the facts that there were occasions when he was given last-minute work to do, and/or instructions which contradicted earlier instructions such that for time reasons he been prevented by his managers, including the director of operations at from attending any particular training course. Furthermore, he is not proven that there were any occasions when he asked for more assistance with his work or for somebody to do some of his work for him so that he could attend a training course.[350]For completeness, we add that there are no facts from which we could conclude that any decisions to allocate any tasks to the Claimant were related to race or because of race. 5.2.8 Verbally passing the Claimant’s probation in or around mid-2023 and then revoking it in or around mid-2023?[351]The dates stated are incorrect. As per the findings of fact, the Claimant started in the post in July 2022, and the initial 3 month probation period would have been until mid-October 2022. As a result of discussions with Ms Greer in early December 2022, the Claimant came to the realisation that Ms Shukla’s opinion was that the probation period was on-going.[352]In December 2022, more than a year before the claim form was presented, the Claimant was told that he had passed probation.[353]We will return below to the analysis of this allegation, as the arguments about whether it was part of a continuing act, and about whether the burden of proof should shift will be discussed after we have commented on some of the other complaints. Page 58 of 68 5.2.9 Not offering the Claimant line manager support during his employment?[354]This fails on the facts. It is not true that the Claimant was not given line manager support.[355]We have itemised various meetings between the Claimant and his then line manager during his employment.[356]For completeness, it is also our decision that in terms of the content of meetings with his line manager and the number of meetings he had with them, there are no facts from which we could decide that anything because of race or related to race. 5.2.10 Between January 2023 and August 2023, being disciplined by the Director of Operations after raising concerns about them?[357]As we pointed out during the hearing, this is an allegation of race discrimination. We said we would not treat it as any other type of complaint unless there was an application to amend the claim. There was no such application.[358]Paragraph 21 of the Claimant’s statement refers to complaining, in December 2022, about being told that he had not passed probation, and cross-references [Bundle 366 to 371]. Although he also refers to earlier complaints about Ms Shukla, he is not specific. His assertions that he complained about an alleged failure on her part in connection with his line management or supervision do not match the chronology, given that Mr Banks left on 30 September 2022, and Ms Shukla conducted a meeting with the Claimant in October 2022, and it was agreed that Ms Greer would line manage the Claimant.[359]We have discussed in the findings of fact that the Claimant was not disciplined. So, in that sense, the allegation fails on the facts.[360]Throughout the entirety of the Claimant's period of employment - based on evidence available to us - there was an no disciplinary or conduct issue that got beyond the stage of:360.1 an informal discussion, which is what took place in March 2023 between the Claimant and Ms Greer or360.2 being invited to an investigation meeting, which could potentially lead to a disciplinary meeting, which is what happened on 21 August.[361]Ms Greer’s actions in having the meeting, and issuing the letter, on 23 March were not at the instigation of Ms Shukla. They were because Ms Greer decided that they were appropriate, for the reasons stated in the findings of fact. There are no facts from which we could conclude that what Ms Greer did was either because of race, or related to race. Page 59 of 68[362]To the extent that that allegation is that between January and August (even though there was no disciplinary action), the Claimant was repeatedly threatened with disciplinary action by the director of operations, or by people acting on behalf of the director of operations, the allegation is not factually accurate.[363]There are two particular matters (relating to 14 July and 27 July) that Ms Shukla had raised, and which were potentially going to lead to disciplinary action. However, in the first instance, there was to be an investigation meeting conducted by Mr Fox. Mr Fox is more senior than Ms Shukla and was not acting on her behalf or in accordance with any instructions which she had given to him. Furthermore, it is factually accurate that the Claimant was not at work on those days, and we have discussed what the Claimant said were his reasons, and what Ms Shukla asked him at the time, in the findings of fact.[364]There are no facts from which we could conclude that Ms Shukla would have treated a hypothetical comparator any differently in her decision to draw the matter to Mr Fox’s attention, and there are no facts from which we could conclude that Mr Fox would have treated a hypothetical comparator any differently in his decision to arrange a meeting. 5.2.11 On 21 August 2023, being denied wellbeing support?[365]This is not true. The Claimant was offered wellbeing support on 21 August 2023, as he had been on other occasions. He was also told that Ms Salek would meet him on 23 August 2023; she was absent from work on 21 August 2023, and could not meet him any earlier than 23 August.[366]This fails on the facts.[367]For completeness, there are no facts from which we could conclude that Mr Fox would have treated a hypothetical comparator any differently in connection with the Claimant’s return to work on 21 August. A hypothetical comparator would be someone of a different race whose sickness absence was similar, and whose line manager was on leave for a couple more days. 5.2.12 In or around 2021 and 2022 expecting the Claimant to train new employees?[368]It is factually correct that the Claimant was expected to train new employees. On the Claimant's own account, he was happy to do this.[369]Although it is true that, in principle, giving an employee extra duties could be a detriment, it is unclear specifically why, on the particular facts of this case, the Claimant alleges that this was a detriment. However, we are content to assume that it was the Claimant’s perception that this was a disadvantage to him; there Page 60 of 68 are no facts from which we could conclude that requiring the Claimant to train new staff was in any way connected to race. 5.2.14 In or around mid-2022, Jalak Shukla telling the Claimant to “not watch how others were treated”?[370]As stated in the findings of fact, we have inferred that this was in the meeting on 16 May 2023. The Claimant does not mention it in his witness statement, and Ms Shukla mentioned the quote from the list of issues in paragraph 30 of her statement, in the context of denying the specific words.[371]We accept that the specific words stated in paragraph 5.2.14 were not uttered, and that the context of the remarks which Ms Shukla actually did make were as set out in the findings of fact.[372]Even apart from time limit issues, this complaint fails because there are no facts which we could conclude that what Ms Shukla actually did say was related to race or because of race. 5.2.15 Taking disciplinary action against the Claimant?[373]We refer to our comments about paragraph 5.2.10 of the list of issues. It is not true that, on 21 August 2023 (or any other date), the Respondent took disciplinary action against the Claimant.[374]We have already said why the 23 March 2023 letter and the 21 August 2023 letter were not discrimination because of race. 5.2.13 Not promoting, supporting, or training the Claimant in the same way as other members of staff? 5.2.4 The Respondent making career progression more difficult for the Claimant? 5.2.5 The Respondent not offering the Claimant roles without him needing to apply around the end of 2022? 5.2.6 Not offering the Claimant the same training opportunities as other members of staff?[375]Some of the analysis for these paragraphs also overlaps with that for paragraph 5.2.8.[376]We take into account what we have said when addressing paragraphs 5.2.7 and 5.2.9, even though we will not repeat everything that we said there.[377]In the meeting with director of operations in October 2022, under the category “PDP” [Bundle 247], Ms Shukla mentioned that the Claimant would be provided with new to management training in the future. It was the Claimant’s own Page 61 of 68 suggestion, not Ms Shukla’s, that the Claimant needed more support and that the director of operations was not best suited. It was agreed between them that Ms Greer would do it.[378]It is factually accurate that the Claimant was not promoted to Integrated Service manager without an interview process.[379]It is factually accurate that Scott Campbell did get a promotion to that role (for part of his working hours) without an interview. As we said in the findings of fact, giving Scott Campbell that job title for part of the week wa a decision which the Respondent made (in around October 2021) because Ms Baron and Mr Banks recommended it in September 2021.[380]There was a difference in treatment, but also a difference in circumstances. Mr Campbell was in a different service to the Claimant. He was also doing split roles already (before he was promoted in one of those roles).[381]Later, in around April 2022, there was also a difference in circumstances in that Mr Campbell was already a part-time Integrated Service Manager (as well as part-time care coordinator) when he changed to being full-time Integrated Service Manager.[382]At around this same time, September 2021, there was a significant difference between the Claimant’s circumstances and those of Giacomo Harper. Mr Harper was appointed to Integrated Service Manager and the Claimant was not appointed to Integrated Service Manager. However, Mr Harper applied for the vacant position, and the Claimant did not.[383]The Claimant was promoted in July 2022, to integrated service manager.[384]Mr Campbell did start as Interim Senior Service Manager in May 2023. However, as his exit interview notes make clear, having applied to be permanent in that role, he was unsuccessful.[385]So, breaking it down:385.1 The Claimant was not treated less favourably than Charlotte Chapman.385.2 When Mr Campbell became (in part) Integrated Service Manager, in around October 2021, there was a material difference in circumstances, between the Claimant and Mr Campbell. Mr Campbell’s promotion to that role (for some of the week) is not such that he is an “actual comparator” for the fact that the Claimant was not promoted (in around October 2021) to Integrated Service Manager. Page 62 of 68385.3 When Giacomo Harper became an Integrated Service Manager, in around September 2021, there was a material difference in circumstances, between the Claimant and Giacomo Harper. Mr Harper’s promotion to that role is not such that he is an “actual comparator” for the fact that the Claimant was not promoted (in around September 2021) to Integrated Service Manager.385.4 When Mr Campbell became full-time Integrated Service Manager, in around October 2021, there was a material difference in circumstances, between the Claimant and Mr Campbell. Mr Campbell’s move to being full-time in that role is not such that he is an “actual comparator” for the fact that the Claimant was not promoted (in around April 2022) to Integrated Service Manager.385.5 Ms Chapman is not an actual comparator for the Claimant’s having to formally apply for Integrated Service Manager because she was not appointed as Integrated Service Manager.385.6 Giacomo Harper is not an actual comparator for the Claimant’s having to formally apply to be Integrated Service Manager because he was appointed as Integrated Service Manager following a formal application.385.7 Mr Campbell is not an actual comparator for the Claimant’s having to formally apply to be Integrated Service Manager for the same reasons he is not an actual comparator for dates of appointment. That is, his circumstances were different, leading to part-time appointment in October 2021, and conversion from part-time to full-time the following April.[386]Although the Claimant has not shown that any of those three are actual comparators, we can consider the way in which they were treated when deciding whether the Claimant has been treated less favourably than a hypothetical comparator.[387]The hypothetical comparator would have to be someone of a similar level of qualifications and experience to the Claimant, who joined the Respondent at a similar time, and in the same job, but who was a different race.[388]There are no facts from which we could conclude that a hypothetical comparator would have been promoted more quickly than the Claimant, or given greater assistance with promotion opportunities than the Claimant, or not had to formally apply for permanent jobs.[389]In terms of training that the Claimant alleges was not offered to him, he has been clear that this is a reference to Scott Campbell and Claudia Rees telling him that they had had training that he had not. The Claimant has not specified the exact course or topic. However, we accept that Ms Williams is correct to infer (as per paragraph 42 of her statement) that this must be a reference to a session on HealthIntent. Page 63 of 68[390]Ms Shukla does not address this matter in her written statement. However, in oral evidence, when asked, she stated that (as per Ms Williams’ statement) the fact that Ms Rees had to go on the course, and that others had the option of doing it if they chose, was discussed at an Integrated Service Meeting. We accept that that is true (and Mr Campbell has not attended to be cross-examined on the assertion that he was offered training that was not offered to the Claimant, and nor does he specify the method by which he was offered training).[391]Given that the Respondent has failed to provide any dates of the meeting, or any minutes of it, we cannot be sure that the Claimant was present. He might have been, or he might not. However, he has not persuaded us that he specifically asked to go on the HealthIntent course after he had a discussion with Mr Campbell or Ms Rees about training which they had had (or before).[392]There are no facts from which we could conclude that the Claimant’s race influenced (whether consciously or unconsciously) any decisions which Ms Shukla took about the HealthIntent course. If he was present at the meeting when it was offered, then that speaks for itself. If he was not present, then(a) we are entirely satisfied that she did not deliberately wait for a meeting at which the Claimant was absent in order to raise it and(b) there are no facts from which we could conclude that she would have taken additional steps to inform a hypothetical comparator, who had missed the meeting, about this training opportunity.[393]Further, if this was a one-off incident, it would be out of time as it was something that happened in 2022 (or earlier) and which the Claimant knew about by no later than December 2022 (when he mentioned it to Mr Fox).[394]In terms of assertions that the Respondent or any of its employees deliberately tried to make it more difficult for the Claimant to be promoted, or to receive training, we reject that assertion. The evidence does not demonstrate that.[395]There are no facts from which we could conclude that Ms Shukla’s actions, from October 2022 to December 2022, in connection with the Claimant’s probation, were influenced by race. There is a lack of clarity in the Claimant’s assertions about whether she was motivated (by his race) to treat him badly throughout, or whether she only became motivated (by his race) to treat him badly after he (allegedly) complained about her. The specific complaints about her that are referred to are complaints about her purporting to extend his probation, and so the distinction does not really matter for this particular allegation. The matter of the Claimant’s probation was not handled particularly well after Mr Banks left; the Respondent’s own HR department thought that, and advised Mr Fox accordingly. However, the evidence provides no support for the Claimant’s bare assertion, that Ms Shukla would have behaved differently to someone who was Page 64 of 68 not of Turkish/ Kurdish ethnicity (but whose circumstances otherwise matched the Claimant’s).[396]All of the allegations of race discrimination within paragraphs 5.2.4, 5.2.5, 5.2.6, 5.2.8 and 5.2.13 fail on the merits, regardless of whether they are in time or not.[397]Since the Claimant was promoted to Integrated Service Manager in July 2022, the allegations that he was not promoted sooner (or without having to apply) are out of time. This was not part of a continuing act.[398]The allegation of delays in confirming that he had passed promotion, and of purporting to say that he had not passed it, are out of time. This was not part of a continuing act.[399]The allegation of not being sent on the HealthIntent training at the same time as Scott and Claudia is also out of time. Discrimination arising from disability[400]As we have said above, the Claimant was a disabled person as of 21 August[401]In terms of paragraph 6.2 of the list of issues, we accept that the Claimant’s absence from 1 August 2023 to 20 August 2023 was something arising in consequence of his disability. (The same applies from the start of that absence, which was on 27 July 2023). 6.1.1 Not considering his well being on his return to work in August 2023 after sickness absence[402]This fails on the facts. It is not true that the Respondent failed to consider his well being. Mr Fox met him and produced details of points that were genuinely relevant to the Claimant’s well being, and put them in a return to work document which was emailed to the Claimant. The contents of the document matched what had been discussed orally. The Claimant was to meet his manager two days later. She was on leave and therefore could not meet him the same day. 6.1.2 Using the wellbeing meeting to aggressively raise issues that occurred during his sickness absence.[403]Our decision is that the Claimant was not treated “aggressively”. Rather, he was alerted to a matter that he needed to be aware of, namely that allegations had been made, and there would be an investigation interview. It was appropriate and reasonable to mention those things orally prior to sending the letter which formally invited the Claimant to the meeting. Page 65 of 68[404]However, in any event, there are no facts from which we could conclude that Mr Fox was motivated (either consciously or unconsciously) by the Claimant’s sickness absence to either:404.1 Decide that there would be an investigation meeting, and/or404.2 Inform the Claimant of the decision to hold an investigation meeting.[405]Thus there was no disability discrimination within the definition in section 15 EQA. Unfair dismissal[406]The complaint is set out in section 2 of the list of issues. The Claimant relies on the (alleged) conduct at paragraphs 5.2.4 to 5.2.15 of the list of issues as breaching the implied term of trust and confidence. The Tribunal will need to decide:2.1.2.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and2.1.2.2 whether it had reasonable and proper cause for doing so.[407]All of the matters raised by paragraphs 5.2.4 to 5.2.15 of the list of issues have been addressed in the findings of fact and in the analysis of the EQA complaints.[408]Our decision is that the specific reason for the Claimant’s resignation was that he was informed, by Mr Fox, that there would be an investigation meeting the following week.[409]Our decision is that there was nothing wrong with the Respondent inviting the Claimant to that interview. The Respondent acted in accordance with its policy, and the matters raised were sufficiently serious as to require formal investigation.[410]We are satisfied that Mr Fox had not pre-judged matters. Further, this was not a sham set of reasons being used to try to disguise some other reason for criticising the Claimant. Mr Fox genuinely intended to explore the matters with the Claimant and to only reach a decision about what would happen next after he had spoken to the Claimant (and made other enquiries where necessary).[411]To the extent that the Claimant had proper explanations for any of the matters raised (whether to say any accusation was completely untrue, or to say that any accusation was accurate, but there was a good reason) he was being offered the chance to give those explanations at the meeting, and also the chance to have a week to prepare what he wanted to say, and/or what he wanted to Mr Fox to consider. Page 66 of 68[412]In summary, the Respondent did have reasonable and proper cause to call the Claimant to a meeting. However, we also consider that calling an employee to a genuine investigation meeting, in accordance with a proper procedure, is not something calculated or likely to destroy or seriously damage the relationship of trust and confidence.[413]The actual invitation to the meeting was not a fundamental breach of contract.[414]We have also considered whether there was any earlier fundamental breach of contract, and whether (if so) the invitation to the meeting was a “last straw”.414.1 We do not accept that the Claimant was denied managerial support.414.2 We do not accept that the Respondent ignored the Claimant's wellbeing414.3 We do not accept that he had fewer training opportunities than colleagues414.4 We do not accept that the fact that Scott Campell, in a different service, achieved promotion to Integrated Service Manager before the Claimant did amounted to a fundamental breach of the Claimant’s contract. This would be true in any event, but is especially true given that the Claimant knew that there was an opportunity (the one for which Giacomo Harper successfully applied) and chose not to apply. Furthermore, we do not think that this was part of the Claimant’s reason for resigning.[415]Taking all the alleged conduct cumulatively, are satisfied that there was no fundamental breach.[416]For those reasons, the Claimant was not “constructively dismissed”. That is, the termination of his employment was a resignation by the Claimant which did not fall within section 95(1)(c) ERA or section 39(7)(b) EQA. Time Limits for complaints specifically about dismissal / events of 21 August 2023[417]Any complaints specifically about dismissal and/or about the events of 21 August 2023 are one day out of time. The time limit expired on 1 January 2024 and the claim was presented on 2 January 2024.[418]Furthermore, in relation to any earlier acts/omissions, even if there was an act which continued until 21 August 2023, those complaints were one day out of time.[419]We have already said why, for some specific complaints of contravention of EQA, they were not part of a continuing act, and it was not just and equitable to extend time. Page 67 of 68[420]For the other complaints, we take account of the fact that the Respondent did not have the opportunity to cross-examine the Claimant about the documentary evidence relied on (advice from lawyers) because it was disclosed so late.[421]Since we have dismissed the claims on the merits in any event, we do not think that it would be proportionate to make decisions on the time limit points too, and, in particular, it would not be proportionate to have further evidence about it. Outcome and next steps[422]Thus, all the complaints have been unsuccessful and the claim is at an end. Approved by: