Mr A Harper v PH Water Technologies Ltd (T/a PH Water and Air Technologies Ltd): 3300204/2024

EMPLOYMENT TRIBUNALS

Case No 3300204/2024

Between

Mr A HarperClaimant

PH Water Technologies Ltd (T/a PH Water and Air Technologies Ltd)Respondent

Before

Employment Judge Shastri-Hurst, Mrs C Anderson

In person for claimant

Ms J Hale (instructed by solicitor) for respondent

Date 19 January 2026

JUDGMENT

[1]The claim of direct religion or belief discrimination is not well founded and fails.

[2]The claim of harassment in relation to religion or belief is not well founded and fails.

[3]The claim of protected disclosure detriments is not well founded and fails.

[4]The claim of health and safety detriment is dismissed on withdrawal.

[5]The claim of automatic unfair dismissal is not well founded and fails.

REASONS

[1]The claimant was employed by the respondent, an environmental solutions company, as a lead engineer in the pre-commissioning team from 7 August 2023 until 8 November 2023. Early conciliation started on 12 December 2023 and ended on 5 January 2024. The claim form was presented on 5 January 2024.

[2]By way of that claim form, the claimant sought to bring claims of unfair dismissal and religion or belief discrimination. A preliminary hearing took place on 21 August 2024, at which a list of issues was produced: that list appears at page 44 to 49 of the bundle. It was clarified during that preliminary hearing that the claimant’s claims were as follows: 2.1. direct discrimination on the grounds of spiritual belief; 2.2. harassment relating to spiritual belief; 2.3. public interest disclosure detriments; 2.4. health and safety detriments; 2.5. automatic unfair dismissal (protected interest disclosure and health and safety).

[3]At the commencement of the hearing, the Tribunal was presented with a hearing bundle of 1447 pages, as well as a short additional bundle containing the following documents: 3.1. “Claimant evidence itemisation list” dated 17 April 2025; 3.2. “Documentation pack version - claimant evidence documentation (requested documentation pack version for Ms Hale)” dated 17 April 2025; 3.3. “Claimant evidence documentation” dated 10 March 2025; 3.4. “Witness statement version – claimant evidence documentation (requested witness statement version for Ms Hale)” dated 10 March 2025; 3.5. Statement of evidence of Mr Zak Spencer (“ZS”); General Manager at the material time, now Operations Manager.

[4]A note on the main bundle. The claimant's understanding appeared to be that the Tribunal would read the bundle from page 1 to page 1447. We explained on the first morning of the hearing that this is not how the Tribunal works: we would simply never have time to read all the documents within any hearing bundle we get for a final hearing. We explained that we focus on the evidence in the witness statements and the documents that are referred to in those statements. We explained that parties can highlight documents in the bundle to us by raising them in answers to questions (during cross-examination or in our questions), or by asking questions of witnesses relating to specific page numbers.

[5]Having had a discussion with the parties, and having explained to the claimant the difference between a witness statement and submissions, it was understood by all that the claimant wished to rely upon the document entitled “witness statement version - claimant evidence documentation (requested witness statement version for Ms Hale)” as being his witness statement for the purposes of this hearing. That document is 36 pages long.

[6]We therefore had the claimant’s witness statement in support of his case, and the statement of Mr Zak Spencer (Operations Manager, Appeal Officer, “ZS”) in support of the respondent’s case. Both individuals were cross-examined and asked questions by the Tribunal during the course of the evidence.

[7]There is one fairly unusual aspect to this case. The main alleged perpetrator of the alleged detriments/less favourable treatment/unwanted conduct, is Lawrence Paul (“LP”), the claimant’s line manager and dismissing officer. He is not a witness to this hearing, and has not provided a witness statement. We understand that he is no longer employed by the respondent. However, this does leave the Tribunal in a position in which, when required to examine the mind-set of the respondent and the reason why it (or its employees) did certain things, we are in the position of having a gap in the evidence. The only witness we have for the respondent is ZS, and the claimant clarified to us during the course of the hearing that he does not allege that ZS acted unlawfully in any of his actions. As such, we have no evidence from the alleged perpetrator(s) in this matter.

[8]At the commencement of the hearing, the respondent provided us with a chronology, cast list and suggested reading list.

[9]During the course of this hearing, various further documentation has been produced to the Tribunal or produced by us. We have labelled those documents Appendices 1 to 6, as follows: 9.1. Appendix 1: the claimant’s witness statement with page numbers. It was initially apparent that the claimant’s witness statement contained references to pages but not the page numbers themselves. Ms Hale helpfully added bundle page numbers to the claimant’s witness statement in order to assist with our cross-referencing; 9.2. Appendix 2: a version of the claimant’s termination letter dated 8 November 2023. During the course of the claimant’s cross-examination, the claimant mentioned a different version of the termination letter than we had seen in the bundle at page 84. On the fourth morning of the hearing, the claimant produced a copy of the termination letter he had originally received: that document now appears at Appendix 2 as does its cover email which demonstrates that it was sent to the claimant by LP on 9 November 2023, and copying in ZS; 9.3. Appendix 3: an email chain between the claimant and Miss Philippa Clarke. Miss Clark (now Mrs Wilson) was an HR adviser for the respondent and was present during the claimant’s appeal. During his evidence, the claimant suggested that he had sent various WhatsApp messages to Miss Clark via email as evidence of bullying behaviour. He produced, on the morning of Day Four, a copy of those emails. 9.4. Appendix 4: the claimant’s response to ZS’s witness statement, dated 9 October 2025. This was presented to us on the morning of Day Two; 9.5. Appendix 5: the claimant’s document cross-referencing the WhatsApp messages within the bundle to the relevant issue number within the list of issues and any of the pages of the daily reports he had produced. This was “homework” that the Tribunal asked him to undertake on the afternoon and evening of Day One, in order that we would be clear as to the particulars of the factual allegations being made in this case. 9.6. Appendix 6: a table the Tribunal produced to set out by issue number the factual allegations forming the basis of less favourable treatment/unwanted conduct/detriments cross-referenced to the page numbers in the bundle given by the claimant on Day Two (Appendix 5). Issues

[10]We took some time on the first morning going through the List of Issues created at a preliminary hearing heard by Employment Judge McCooey on 21 August 2024. In short, the claimant complains of seven factual matters (paragraph 2.1.1 - 2.1.7 of the List of Issues, copied below) and says that those seven things are either acts of discrimination/harassment on the grounds of his protected belief, or are acts that occurred because of his blowing the whistle or raising health and safety concerns.

[11]We talked through the specific detail of his seven factual complaints, as some were not particularised (for example, with dates and alleged perpetrators). The claimant told us that the relevant information would be found in the 444 WhatsApp messages over the 111 pages at [1189-1299]. We explained that we needed to at least understand which of the messages were said to demonstrate the seven factual allegations and, if any of the messages were said to be disclosures, then we needed to understand which those messages were as well.

[12]The Tribunal gave the claimant “homework” on Day 1, to annotate [1189-1299] by putting next to every relevant screenshot of WhatsApp messages the issue number (for example, 2.1.3) to which that individual message was said to be relevant. On those pages, the claimant had labelled each message with an “Issue” number. To avoid confusion with issue numbers within the bundle, we will use the terminology of “Text” number. For example, on [1189] one can find Texts 1 to 4.

[13]At the beginning of the hearing, the respondent clarified some points in the List of Issues for the Tribunal: 13.1. The respondent conceded that the claimant’s spirituality is a protected belief under the Equality Act 2010 (“EqA”); 13.2. The respondent denied that the use of emojis as a sign off (issue 2.2.2) is a manifestation of that spirituality; 13.3. The respondent denied it had knowledge of the claimant’s spirituality during his employment.

[14]Furthermore, in our initial discussions regarding the issues, the respondent’s representative raised that she understood the claimant to be withdrawing one of his claims, namely the health and safety claim under s44 ERA. The claimant agreed, and explained that his complaint was not one regarding detriments due to raising health and safety matters. He said he had not raised that s44 ERA claim at the preliminary hearing. The respondent and the Tribunal understood this to mean that the claimant did not seek to pursue that head of claim, and had never intended to bring such a claim. The claimant confirmed that his understanding was that he was dismissed because he “refused to do multiple things, or because I asked for things I needed constantly”. Looking at what was set out in the List of Issues as protected disclosures (see paragraph 4.1.1 of the List of Issues below), it was recorded that the same disclosures were relied upon under s44 ERA. We considered that the alleged disclosures fall much more readily under the whistleblowing legislation, rather than the health and safety legislation, and that the claimant lost nothing by withdrawing his health and safety complaint. We were content therefore to accept the claimant’s withdrawal of the health and safety claim under s44 ERA. The List of Issues

[15]The list of issues as recorded at the preliminary hearing is as follows (with the removal of the s44 ERA claim): 1. Time limits 1.1. Given the date the claim form was presented and the dates of early conciliation, some of the complaints may be out of time. 1.2. Were the (whistleblowing) complaints made within the time limit in section 48 ERA. The Tribunal will decide: 1.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of? 1.2.2. If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one? 1.2.3. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 1.2.4. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 2. Direct religious or belief discrimination (EqA section 13) 2.1. The religious or philosophical belief described by the claimant is spirituality, which he defines as the belief that all people are from the same source and are connected to a Higher Power. Others may describe it as New Age spirituality. [As set out above, the respondent now accepts that this is a protected belief]. 2.2. Did the respondent do the following things: 2.2.1. Did LP and other colleagues mock the claimant in a WhatsApp group chat on 23 October 2023 between 21.42 to 22.16pm. “Mocking” is said to include messages such as, “wtf Adam still at it, too old for all this surely” and “what the fuck is going on here”. A video of the claimant’s music is said to have prompted this, which the claimant says is music about his spiritual beliefs; 2.2.2. Did LP, and other colleagues, mock the claimant for using emojis to sign off emails and other communications. The claimant will say this was a manifestation of his spiritual beliefs, meaning “love, light and protection”; 2.2.3. Fail to respond to the claimant’s queries about chemicals and tools in the work WhatsApp group chat, dismissing them with jokes or otherwise; 2.2.4. Fail to supply necessary equipment to the claimant for some jobs when asked for; 2.2.5. Required the claimant to work as a sole person on jobs that required more than one person; 2.2.6. Required the claimant to go to a work site and sign a risk assessment that was incorrect (which he refused to do); 2.2.7. Dismiss the claimant. 2.3. 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. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. 2.4. If so, was it because of his religious or philosophical beliefs? 3. Harassment related to religious or philosophical belief (Equality Act 2010 section 26) 3.1. Did the respondent do the following things: 3.1.1. As outlined above 3.2. If so, was that unwanted conduct? 3.3. Did it relate to religious or philosophical belief? 3.4. 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? 3.5. 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. Protected disclosures 4.1. Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide: 4.1.1. What did the claimant say or write? When? To whom? The claimant says they made disclosures on these occasions:(a) That he would not complete risk assessments that were inaccurate, for example, stating each 11 steps had been carried out when only a few of these had been completed on a job;

(b) That certain water treatment jobs did not comply with best practice as captured by the BSRISA Board;

(c) On 23.08.23 the claimant sent LP and his colleagues a video and voice note raising concerns that a chemical provided to treat water was reacting unusually; they sent jokes back and did not treat the concern the concern seriously;

(d) The claimant told LP he needed more extension leads to use equipment on a different part of the job site;

(e) On 19.09.23 the claimant was encouraged by LP and Graham Stevens to stop work on a job before it was completed so that equipment could be removed to another site. The claimant said he would not do this and that he would not generate paperwork to confirm it was completed to the standards set out in RAMMS;

(f) Regarding an incident at a children’s hospital, the claimant told LP in writing and via a report that a pipe had not been properly isolated for disinfection and that the legally required Doble Check Valve was missing. He was nonetheless told to create a certification saying the job was complete. 4.1.2. Did they disclose information? 4.1.3. Did they believe the disclosure of information was made in the public interest? 4.1.4. Was that belief reasonable? 4.1.5. Did they believe it tended to show that: 4.1.5.1. a criminal offence had been, was being or was likely to be committed; 4.1.5.2. a person had failed, was failing or was likely to fail to comply with any legal obligation; 4.1.5.3. a miscarriage of justice had occurred, was occurring or was likely to occur; 4.1.5.4. the health or safety of any individual had been, was being or was likely to be endangered; 4.1.5.5. the environment had been, was being or was likely to be damaged; 4.1.5.6. information tending to show any of these things had been, was being or was likely to be deliberately concealed. 4.1.6. Was that belief reasonable? 4.2. If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer. 5. Detriment (Employment Rights Act 1996 section 48) 5.1. Did the respondent do the following things; 5.1.1. As above 5.2. By doing so, did it subject the claimant to detriment? 5.3. If so, was it done on the ground that they made a protected disclosure/other prohibited reason? 6. Detriment (Employment Rights Act 1996 section 44(c) - Health and Safety Cases 6.1. [removed given withdrawal] 7. Automatic unfair dismissal 7.1. Was the reason or principal reason for dismissal that the claimant made a protected disclosure etc? 7.2. If so, the claimant will be regarded as unfairly dismissed. 8. Remedy for discrimination 8.1. Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend? 8.2. What financial losses has the discrimination caused the claimant? 8.3. Has the respondent proven that the claimant failed to take reasonable steps to replace any lost earnings, such as by failing to take reasonable steps to find another job? 8.4. For what period of loss should the claimant be compensated? 8.5. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 8.6. Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? 8.7. Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 8.8. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 8.9. Did the respondent or the claimant unreasonably fail to comply with it by [specify breach]? 8.10. If so is it just and equitable to increase or decrease any award payable to the claimant? 8.11. By what proportion, up to 25%? 8.12. Should interest be awarded? How much? 9. Remedy for protected disclosure detriment 9.1. What financial losses has the detrimental treatment caused the claimant? 9.2. Has the respondent proven that the claimant failed to take reasonable steps to replace their lost earnings, such as by failing to take reasonable steps to find another job? 9.3. For what period of loss should the claimant be compensated? 9.4. What injury to feelings has the detrimental treatment caused the claimant and how much compensation should be awarded for that? 9.5. Has the detrimental treatment caused the claimant personal injury and how much compensation should be awarded for that? 9.6. Is it just and equitable to award the claimant other compensation? 9.7. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 9.8. Did the respondent or the claimant unreasonably fail to comply with it? 9.9. If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? 9.10. Did the claimant cause or contribute to the detrimental treatment by their own actions and if so would it be just and equitable to reduce the claimant’s compensation? By what proportion? 9.11. Was the protected disclosure made in good faith? 9.12. If not, is it just and equitable to reduce the claimant’s compensation? By what proportion, up to 25%?

Findings of fact

[16]The respondent provides total environmental solutions in the UK, and employs around 68 people.

[17]On 7 August 2023, the claimant commenced working for the respondent as a Water Treatment Engineer. His line manager was Lawrence Paul (“LP”), PreCommissioning-Manager (“Pre-Comm Manager”).

[18]On 8 August 2023, the claimant was added to the “Engineers Chat!” WhatsApp group by LP – see page 6 of the claimant’s witness statement. This group was created by LP on 1 February 2022: the members of the group were the claimant’s colleagues and fellow engineers, with LP as their line manager. The claimant’s evidence is that this WhatsApp group was LP’s preferred way of dayto-day communication. It is the respondent’s case and ZS’s evidence that this was not an approved or official method of communication, and that there was an application (“app”) that was to be used as the official way to communicate and record work and so on. That app was called “JobLogic”.

[19]We accept both the claimant’s evidence and that of ZS: they are not mutually exclusive. We find that LP’s preferred mode of communication was the WhatsApp group. Just looking at the volume of messages in that group that we have in the bundle, the timings of messages being during the working day, and the majority of messages being work related, it is clear that this was an accepted way of communicating between LP and his direct reports. We also find that this was not an official method of communication that was endorsed by the respondent. However, we do not accept the leap that the respondent seems to be asking us to make, that because WhatsApp was not an official form of communication, anything that happened in that WhatsApp group is outside the course of employment, and therefore the respondent is not vicariously liable. As we have said, looking at the majority of the communications in that group, it is work-related, it is not a social group to organise social events for example, or a group designed for communication only on non-work related matters. We therefore reject any such assertion. Method Statements and “RAMS”

[20]There was much detail in the evidence about two types of documents, Method Statements and RAMS.

[21]ZS explained to us that a method statement is a “control document” that all parties sign up to at the beginning of a job. It sets out the methodology of the job and works to be undertaken: in ZS’s words, “it is how we originally want to complete the works”.

[22]RAMS stands for Risk Assessment Method Statement. This is a risk assessment that is undertaken each day by the engineer(s) assigned to the job on any given day. The RAMS for each day should be captured on JobLogic, and can change from day to day, depending on the engineer’s risk assessment on the day in question. Daily Reports

[23]Within the bundle, we have voluminous Daily Reports, for example at [222] there is a Daily Report for work done on 8 August 2023. These reports were produced by the claimant for each day he was employed by the respondent, at his own instigation. He was taught how to produce documents like this many years ago and has retained this as his standard practice, regardless of whether he is employed, sub-contracted or self-employed. One further idiosyncrasy is that the reports are written with the “royal we” noun: in other words, the reports record “we” did X, Y, Z, when in fact they refer solely to what the claimant had done on any given day.

[24]Each day, the claimant would produce a Daily Report as he went through his day, and then would send it to the Engineers Chat! Group and also upload it to the respondent’s recognised system of “JobLogic” at the end of his shift. These Daily Reports varied between being a few pages long to being 40 or 50 plus pages in length.

[25]The respondent does not recognise the Daily Reports as their official documents. ZS’s evidence is that he did not look at the claimant’s Daily Reports, despite the narrative of the Daily Reports being uploaded into the notes section of JobLogic. In fact, ZS told the claimant during his evidence that the Daily Reports were “irrelevant”. We find that no such official feedback was ever given to the claimant, and no-one ever told him to cease providing the Daily Reports.

[26]We note that no other engineers appeared to upload any similar reports either onto the WhatsApp group or JobLogic. We find that it was a practice unique to the claimant. WhatsApp emojis

[27]Part of the claimant’s case is that he uses a specific combination of emojis to sign off messages. These emojis he says are a manifestation of his protected spiritual belief.

[28]The relevant emojis are set out at page 5 of the claimant’s witness statement, and are said by him to symbolise the following: 28.1. 100 = 100%; 28.2. Praying hands together = gratitude; 28.3. Pink heart with sparkles = love 28.4. Three twinkling stars = light 28.5. Greek blue eye = protection.

[29]In his evidence regarding these symbols, the exchange was as follows: Ms Hale: The five emojis you sign off with, can you explain to me how a lay person like me would understand that they meant you were a New Age Spiritualist? Claimant: Potentially you wouldn’t. It would depend on your own personal belief. If a Christian signed off with a cross and bible, most people would understand. If you were spiritual, you may understand those [five emojis], but there is a potential that a lay person wouldn’t understand. Ms Hale: These are just your choices of emojis? Claimant: They are commonly used within the spiritual community. Ms Hale: you say [in statement] “anyone who follows mainstream religious practices”. So these are not unique [to the claimant’s spirituality]? Note, the full quote in the claimant’s witness statement is: “Anyone who holds spiritual beliefs of any kind, be they through my ancient belief structure ...or those who follow main stream religious practices will understand and align with all of those values on a daily basis regardless of where they believe those things come from. ...” Claimant: I meant gratitude, love, light and protection would be recognised. For example, a Christian; part of their religion is to be grateful. Not everyone who has the same belief structure as me would use them, but if you do share my beliefs, a lot of people do use those emojis.”

[30]We will return to the question of whether the use of these emojis is a manifestation of his protected belief later in our Judgment. At this stage, we consider others’ knowledge and understanding of those emojis. We find that the meaning of the five emojis is nebulous, depending on the intent of the sender, and the understanding of the recipient. This finding is supported by the claimant’s acceptance that a lay person may not understand those particular emojis to be connected to his protected belief. Furthermore, the Tribunal asked the claimant, in relation to his colleague “Mitch” being rude about his use of emojis, whether it was possible that Mitch just thought that the claimant was odd for using those emojis, without understanding that they were connected to the claimant’s protected belief. The claimant accepted that it was possible, saying “only he [Mitch] would know”.

[31]We consider that the claimant’s colleagues, on the balance of probabilities, reasonably did not understand his use of emojis to be related to any specific spirituality, including the claimant’s protected belief. Others’ knowledge of the claimant’s protected belief

[32]The claimant’s oral evidence to us was that his colleagues knew about his protected belief due to the fact they “had had conversations”. The claimant told us that the world of water treatment is a small one, with many sub-contractors. This means that people often come across one another several times during the course of their careers. In this case, the claimant told us he had worked with some of his colleagues at the respondent before, over a period of 15 years. However, in the claimant’s witness statement, the only individual he references as working with him before is LP. In his oral evidence, he expanded this to say that he had also worked with Adam Hughes previously. In oral evidence, and for the first time, the claimant said: “Everyone in the team that I worked alongside when I wasn’t by myself or was in my group, and anyone who looks at my music or social media, they would be aware of my spiritual beliefs”.

[33]We notice the use of the conditional perfect tense here: that they “would have been” aware, not that they were in fact aware.

[34]The claimant also told us (and it was part of his case) that a lot of his work was lone working, as opposed to pair work. We were not given the impression from anyone’s evidence that the engineers had lengthy conversations, or socialised, had lunch together or such. We consider therefore that there were limited occasions during the working day when engineers would have detailed conversations around their belief systems. Furthermore, the claimant has not given us any specific examples of such conversations, despite being asked more than once how his colleagues would have known about his protected belief.

[35]The claimant told us that individuals treated him differently because of his “spirituality and [his] happy go lucky nature”. He also told us that: “Since becoming spiritual, I have become very calm and peaceful, and people don’t like that, so they try to rile me and cause problems. People don’t like to see people happy if they are not happy. I didn’t used to seem to experience these problems and issues on an ongoing basis before I became a peaceful person, and that is only since I have become spiritual”.

[36]We accept that the claimant gave to his colleagues the impression of being upbeat and at peace with himself and his surroundings. We find that this marked him out as different amongst his colleagues. However, we are not satisfied that they connected his general contented demeanour with a particular spiritual framework or ethos. We are also not satisfied that the claimant explained his protected belief, or the causal link between his calm nature and that belief, to his colleagues in any detail sufficiently specific to provide them with knowledge of his protected spiritual belief.

[37]We find that his colleagues were not aware of the claimant’s protected belief. Issue 2.2.1 - 23 October 2023 – did LP and other colleagues mock the claimant in a WhatsApp group chat

[38]The claimant identified messages at Texts 85-91 on [1210-1211] as being the relevant messages.

[39]On 23 October 2023, just prior to the first message of relevance to this allegation, LP added his personal mobile number (“Lozzle”) to the Engineers Chat! Group, as well as “Mitch" (an engineer colleague of the claimant) - [93]. From Lozzle’s number, a video was then forwarded, which we understand is a video of the claimant rapping. The claimant’s artist name is Man Like Dice, some of the lyrics of the particular song in the video are set out in the claimant’s witness statement at page 7: “I’m full of universal love Peaceful like a dove It fits just like a glove Been blessed with gifts from up above”.

[40]The claimant says that these verses reflect his spiritual beliefs.

[41]The message exchange that follows is as set out below – it bears repetition in full: Lozzle: Man like dice ya know hahahaha WTF adam u still at it well too old for all that surely Mitch: [laughing/crying emoji x 2] wtf is going on here.. man like dice ya na [praying hands/blue greek eye/shooting star/pink sparkling heart emojis] Aaron: Vanilla dice Aaron: Mate what you on Lawrence [LP work phone]: [sends video of an older gentleman performing from YouTube, entitled “Pete & Bas – Gangster Sh**”] Lawrence: Wants to be like these guys old boy rap Lawrence [replying to “Vanilla dice”]: Killed me my ribs hurting Aaron: [smiley face emoji] Lozzle: Dice dice baby dun dun dun Aaron: Stop. Flush a system. Make shit rap and hope they listen Mitch: [blue greek eye/shooting star/pink sparkling heart/praying hands] is that the right order it goes mc dice the emoji malarkey Lozzle: [6 x laughin/crying emoji] too much now let’s leave it hahahaha Mitch [replying to Aaron’s “stop. Flush a system” message]: [3 x laughing/crying emoji].

[42]The conversation then moves on to someone and something else.

[43]We consider that the above exchange is unpleasant and clearly is poking fun at the claimant. In other words, we are satisfied that LP and colleagues were mocking the claimant as alleged at Issue 2.2.1. The question for us then becomes “why?”.

[44]On reading the first few messages, we find that the main reason for making fun of the claimant was his age; that his colleagues considered him too old to be making the type of music within his video. Taking the messages at face value, and with a particular mind to the messages sent by LP (and the second video LP sent), the claimant’s age is what primarily gives rise to the mockery.

[45]However, there are two messages that we consider make fun of the claimant for his use of his particular pattern of emojis: that being the messages from Mitch: “[4 emojis] is that the right order it goes mc dice the emoji malarky”; and, “[laughing/crying emoji x 2] wtf is going on here.. man like dice ya na [praying hands/blue greek eye/shooting star/pink sparkling heart emojis]”.

[46]We find that Mitch was mocking the claimant for his use of emojis in these messages. In terms of the reason behind this mockery, we have found that the claimant’s colleagues did not know that his use of emojis was connected to his protected belief and further that they did not know of that protected belief. As such, the claimant’s protected belief cannot be the reason for Mitch’s conduct. We have no evidence from Mitch as to why he sent those messages. Further messages from Mitch are discussed in relation to Issue 2.2.2 below, and so we will continue our findings as to Mitch’s reasoning within our findings on that Issue.

[47]The respondent made the point in the claimant’s cross-examination that he did not, during this conversation, or at any other time, raise a complaint about this message exchange, or say to anyone that he was offended or upset by it. Issue 2.2.2 - did LP and other colleagues mock the claimant for using emojis to sign off emails and other communications

[48]The claimant identified Texts 85, 86, 88, 89 and 322 at pages [1210-1211] and [1269] as being the relevant messages.

[49]We accept that the two messages from Mitch on [1210/1211] (Text 85 and 89) mock the claimant for his use of emojis. These particular messages are dealt with under Issue 2.2.1 above.

[50]The other message that we find to be mocking of the claimant’s use of emojis is at [1269] Text 322 (5 September 2023): “Talk too must shit, don’t big boy me, that’s for the ladies only and stop putting them stupid love heart and prey [sic] sign emojis after every message man like dice”.

[51]This is in response to the claimant texting to say: “Check the reports big boy, i issue them daily...”

[52]These three messages from Mitch we find are mocking of the claimant, and so factually uphold the allegation.

[53]We return to the question of why Mitch mocked the claimant, as above at paragraph 46. We note that the first message in time is the “stop putting them stupid love heart...” message. We find from his tone and vocabulary within that message that Mitch considered the claimant’s use of the emojis to be inappropriate in a group of male engineers, and that he considered the claimant to be less manly/masculine than the others by using them.

[54]The claimant identified the relevant Daily Report as being that at [1086]. There is nothing in that report that evidences the claimant being mocked for using a pattern of emojis. We assume that the claimant has referenced this Report as it was produced on 5 September 2023, which was the date of Mitch’s message at [1269] cited above. Issue 2.2.3 - Fail to respond to the claimant’s queries about chemicals and tools in the work WhatsApp group chat, dismissing them with jokes or otherwise

[55]The claimant identified the following as being the relevant messages: 55.1. [1200] Text 47, 48 – on 27 October 2023, the query from which this chain stems is at Text 54 [1202]. Reading the whole chain, we find that there was a response to the query, and that the claimant’s query was not dismissed or joked about. He was provided with assistance on this matter. 55.2. [1250] Text 245 – on 18 September, the claimant asked LP whether there was “any news on the FE 10 drop I asked for last week mate?” at 1419hrs. The reply from LP appears at Text 244 [1249] in which he says “Nothing yet mate” at 1822hrs. The claimant replies the following day saying “no worries mate”. We do not accept that this is a failure to respond or a dismissal of the claimant’s query. 55.3. [1272/1723/1274/1275] Text 336, 337, 339, 344, 345 – reading back over the chain, the claimant at Text 337 appears to be fairly angry or frustrated about dosing rate information. LP’s response at 1642hrs we find to be measured and professional, and says he will provide the dosage rate the claimant was seeking. It appears that the claimant believed that LP had sent the wrong dosage rate (Text 339), however, LP’s responses appear to continue to be professional during this conversation. We therefore dismiss this allegation on its facts. 55.4. [1280/1281] Text 366/367/368/369 - this starts with the claimant sending a query and several photos at 1553hrs on 23 August 2023 “What’s this cleaner all about? It bubbles up like a bio dispersant? [Laughing emoji]”. LP replies with a 6 second voice-note: we have had no evidence about the content of this voice-note, but then there is a jokey exchange, concluding with the claimant sending a funny video at 1636hrs. In this exchange, the claimant uses the same laughing emoji in his initial query as Mitch then uses in the later exchange. We find that this was a jovial exchange, and are not satisfied that the claimant’s initial query was dismissed or not responded to.

[56]The claimant identified the relevant Daily Reports as being those at [787] (27 October 2023), [1130] (18 September 2023), [433] (31 August 2023) and [370] (23 August 2023). None of these Daily Reports in their contents demonstrate that the respondent’s engineers had failed to respond to the claimant’s queries.

[57]In conclusion, we reject the allegation at Issue 2.2.3 on its facts. Issue 2.2.4 - Fail to supply necessary equipment to the claimant for some jobs when asked for

[58]The claimant identified the following Texts as being the relevant messages. 58.1. [1200/1201] Text 47, 50 – this chain starts at Text 54, and is a repeat of the messages we have discussed above paragraph 55.1, that being a need for the claimant to have N2 chemicals. We accept that this demonstrates the claimant asking James Bekkers for chemicals, to which James Bekkers replies at Text 50 “aint got any [spare] mate”. We therefore find that there was a failure to supply equipment to the claimant on this day (27 October 2023). 58.2. [1200] Text 48 – the claimant here appears to be saying that he has not been provided with “a tower”. LP’s response at 0947hrs at Text 47 is to suggest Sandeep helps the claimant. The reference to the tower appears to be secondary here, and not a specific request for another tower. 58.3. [1203] Text 57 – on 26 October 2023, the claimant asks “Who’s got the reel extension lead?”. “Adam” replies within minutes to explain where the lead is, and the claimant responds with thanks. There is no failure to provide equipment here; we find that the lead was on site. 58.4. [1226/1227] Text 149/150/151/152/153 - this chain from 12 October 2023 starts at Text 157. In the conversation, the claimant states “we got no disinfection spray here apparently so I’ll need to go and get some from somewhere before we can sample”. The claimant did then go and buy some disinfectant spray which was approved by LP. Although the claimant goes on to say “Yeah just need to source a spray bottle or syringe”, we do not find that the claimant requested any equipment here. He identified a lack of disinfectant and then sourced his own. 58.5. [1229] Text 161 – on 9 October 2023, the claimant sent a message at 0717hrs stating “...That’s why I’ve been asking for FE10 for several weeks and asked multiple times for extension leads”. LP did not respond to this message. We accept that this is a request that was not responded to on 9 October 2023. However, we note that the next set of messages discussed at [1231/1232] predate this exchange, and answer the question about the availability of FE10. We therefore find that there was not a failure to provide FE10, as it was available at the office. 58.6. [1231/1232] Text 172/173 – on 5 October 2023, the claimant sent a message stating “Lawrence any sign of some FE10 drops yet mate? Been waiting a couple of weeks or more now for some...”. LP replies “At the office mate there’s loads. I ordered everyone some weeks ago and they have been there I am not based at the office so cannot help getting them for you I’ll see if the guy who brings chem can bring some for you”. We find therefore that the correct equipment was provided at the office. 58.7. [1235] Text 187 – on 3 October, the claimant sent a message, the full version being at Text 188: “...Also I am working on my own with no extension leads again so can only reach about half the units anyways”. LP replies to state “ok”, which we understand to mean that it is acceptable for the claimant just to reach half the units. The claimant then replies “no worries mate”. There is no request for equipment here, it is a statement of the equipment and help he is lacking and how he suggests working around this. LP accepts his proposal. The claimant did not ask for any more equipment here. 58.8. [1238] Text 198 – on 27 September 2023, the claimant indicated that a sump pump was not working (0945hrs), but at Text 197 at the top, 9 minutes later the claimant says “no worries I’ve sorted it”. There is no failure to provide equipment following a request here. 58.9. [1238] Text 197 – the claimant on 28 September 2023 asked for an update on 110v leads. LP replied “James will come down and help [or do] on his own mate”. This lack of lead was therefore dealt with. 58.10. [1244/1245/1246/1248] Text 221-224/225-228/229-232/240 – all these messages relate to 19 September 2023. The main issue on this day was that the claimant was instructed to remove equipment (B/E wing filter rig, see [1139]) from the Great Ormond Street Hospital site as it was needed at another site, Queens Street. The claimant had difficulties as there was a power cut on site and so was telling LP that this could not be done. The conversation becomes a bit tense, for example, LP says at 1257hrs “Adam it needs to come off site today one way or another...”. The only reference in this exchange to a lack of equipment is from a lengthy message at Text 227, in which the claimant says “It's a flushing company. Where is the equipment?!? Its a joke mate. ...”. Cross-referencing the Daily Report for 19 September, the claimant recorded there - [1139]: “We’re finding the lack of equipment and resources available for a multi-million pound turn over company is frankly shocking. If you’re going to take on more jobs then more equipment needs to be purchased to cover the work”. We accept that the claimant was complaining about lack of equipment generally here. He, however, did not ask for any particular equipment to be provided on 19 September. 58.11. [1250] Text 245/247/248 - this conversation is dated 15 September 2023. The only request for equipment we can see in this chain is at Text 247 “once it is ready its defo going to need a proper 110v injection pump and not a hand pump as it serves multiple outlets all over the whole floor on all 4 circuits”. LP does not reply on this topic, however we find that there was no need for a response as this was the claimant raising something needed in the future as opposed to a failure to provide equipment to him at the time. 58.12. [1260/1261] Text 288/289 - the conversation on 12 September 2023 started on Text 291. The claimant’s request for equipment is at Text 289 “I’m getting low on FE 10 mate. How do we order more here? Direct from the office or is it through you or another way all together?”. This is not responded to, so the claimant chases again in Text 288 “What was the crack with the FE10 mate?” at 1431hrs. This is repeated at Text 286 at 1439 “Got FE issues on L6”. Therefore, we find that there was a shortage of FE10 and no reply was received on that day. 58.13. [1274/1275] Text 341/342/348 - this chain starts on Text 348, and in this conversation the claimant refers to doing pair work on his own (Text 347). Again, there is no request for equipment in this exchange, there are statements from the claimant about lack of extension leads, and also a lack of lock tire and PTFE at site, but he does not actively request anything. LP’s response is “thanks” at Text 340. 58.14. [1279] Text 364 – 24 August 2023 – the conversation starts on Text 365. The claimant at Text 364 states that he did not have enough cleaner on site to fully dose. There is no apparent response from LP regarding cleaner that day. We find that there was a shortage of cleaner fluid on site on this day and no response to the claimant’s request. 58.15. [1284] Text 381-384 – this is a conversation on 22 August 2023. There is no complaint about lack of equipment in these messages. 58.16. [1286] Text 391/392 - this is 18 August 2023. The claimant sent a video with a series of follow up messages with inventory for a test kit he had received, setting out that it is in poor condition. There are no responses to him on this day. That is not a failure to provide equipment following a request from the claimant. 58.17. [1290] Text 405 – the claimant requests more equipment in a message at 1053hrs. LP replied saying that he would get more equipment but it may take some time. There is therefore not a failure to provide equipment following a request, albeit there may have been some delay in the provision.

[59]In summary, we accept that there were times when the claimant was short on equipment or chemicals. These occasions were not as frequent as the claimant suggested. We have specifically found that there were failures to provide equipment/chemicals following a request from the claimant on the following dates: 59.1. 24 August 2023; 59.2. 12 September 2023; 59.3. 27 October 2023.

[60]The relevant Daily Reports were identified as those at pages: 60.1. [787] - 27 October 2023 – this supports that FE10 and N2 was still needed on site; 60.2. [804] - 26 October 2023 - this supports that FE10 and N2 was still needed on site; 60.3. [693] - 12 October 2023 – nothing relevant to Issue 2.2.4 here; 60.4. [677] - 6 October 2023 – nothing relevant to Issue 2.2.4 here; 60.5. [654] - 5 October 2023 – references no extension leads, but that some were acquired for use; 60.6. [617] - 3 October 2023 – references no extension leads, but that did not stop the work; 60.7. [581] - 28 September 2023 – references no extension leads, so the claimant “did what [he] could” without them; 60.8. [1138] - 19 September 2023 – there is a general complaint about lack of equipment and resource, but nothing specific; 60.9. [1130] - 18 September 2023 – nothing relevant to Issue 2.2.4 here; 60.10. [1125] - 15 September 2023 – nothing relevant to Issue 2.2.4 here; 60.11. [468] - 12 September 2023 – nothing relevant to Issue 2.2.4 here; 60.12. [433] - 31 August 2023 – there is reference to a lack of equipment, but this was because it was in other colleagues' vans, not because it had not been supplied; 60.13. [393] - 24 August 2023 – this explains that there was a lack of chemical on site, but that there was some at the office. The problem was that there was no-one who could pick it up; 60.14. [360] - 22 August 2023 – nothing relevant to Issue 2.2.4 here; 60.15. [335] - 18 August 2023 – nothing relevant to Issue 2.2.4 here; 60.16. [315] - 17 August 2023 – nothing relevant to Issue 2.2.4 here.

[61]The question for us then becomes why these failures occurred. From the evidence we have heard and seen, part of the problem at least was that the claimant did not have a driving licence and was unable therefore to have a work van and store/transport equipment/chemicals himself. This meant that, when he was lacking some equipment or ran out of chemical whilst on site, he was reliant on others to bring him some more. This appears certainly to have been the problem on 24 August 2023, for example. We shall return to the matter of why failures occurred in our conclusions. Issue 2.2.5 - Required the claimant to work as a sole person on jobs that required more than one person

[62]In terms of this allegation, we understand that the claimant says that there was certain work that was “pair work”. We have had no further definition or explanation in the evidence as to what exactly this means. Although the claimant put it to ZS that some work was pair work as an “industry standard”, we have not been taken to any evidence regarding what that industry standard comprises, or whether it is informal or formal. Further, we are not clear as to what specific tasks are said by the claimant to be strictly pair work.

[63]The claimant identified the following as being the relevant messages: 63.1. [1209] Text 82/83 - 24 October 2023 – these messages do not prove that the claimant was required to perform pair work. In fact, the claimant went on to say that there was someone else on site, but he was not sure what work there would be for that individual. 63.2. [1213] Text 100 – 19 October 2023 – this is just a statement that the claimant is alone on site. It does not prove that he was required to do pair work alone. 63.3. [1218] Text 119/120 - these texts again do not demonstrate that the claimant was required to perform pair work alone. We note that LP’s response at Text 119 at 0809hrs demonstrates that there were other engineers on site, if on different levels. 63.4. [1220/1221] Text 125/128/132 - this is an exchange on 16 October 2023, in which the claimant is told what work to do by LP. He responds on Text 130 “By myself so either have to carry on till someone else comes here....” . At Text 126, the claimant asks which of two jobs LP wants him to do, as he cannot do both at the same time. LP tells him which one to complete. These texts again do not demonstrate that he was required to perform pair work alone. 63.5. [1235] Text 187 – this exchange on 3 October 2023 starts on 189, and the claimant reports “...Also I’m working on my own with no extension leads again so can only reach about half the units anyways”. LP’s response is “ok”. This text again does not demonstrate that he was required to perform pair work alone 63.6. [1244/1245/1246/1248] Text 221-224/225-228/229-232/233- 234/240 – we have looked at these in paragraph 58.10 above regarding 19 September 2023. There is no evidence in this exchange that demonstrates that the claimant was required to do pair work alone. 63.7. [1250] Text 247/248 - 15 September 2023 – there is nothing in these messages that demonstrates that the claimant was required to do pair work alone. There is in fact no reference to the claimant being a lone worker on this date. 63.8. [1251] Text 250/251 - 14 September 2023 – there is nothing in these messages that demonstrates that the claimant was being required to do pair work alone. There is in fact no reference to the claimant being a lone worker on this date. 63.9. [1255] Text 266 – 13 September 2023 – there is nothing in these messages that demonstrates that the claimant was being required to do pair work alone. 63.10. [1263] Text 298 – the claimant’s message at 0820hrs is in fact about him having to leave another engineer alone on their first day. There is nothing in these messages that demonstrates that the claimant was being required to do pair work alone. 63.11. [1264] Text 302 – there is nothing in these messages that demonstrates that the claimant was being required to do pair work alone. There is in fact no reference to the claimant being a lone worker on this date. 63.12. [1275/1276] Text 347/348/349/351/352 - on Text 349 the claimant on 30 August 2023 says “We’ve got 2 floors available for back flush now so could do with some man power” at 1060hrs. LP’s response is “It doesn’t exist crack on mate next week be 2 of [ya]”. Then the following day the claimant states at 0857hrs “...I’m here by myself doing pair work as it is”. The next response from LP is a voice-note at Text 345 at 0901hrs, but we have no evidence as to the content of that voice-note. This is the only occasion we have seen on which the claimant uses the term “pair work”. We are not clear whether the work to which the claimant is referring is work that is strictly pair work, or whether it would simply be more efficient with two or more people. In any event, there is nothing in this text exchange that demonstrates the claimant being forced to undertake work for which two people is mandatory. 63.13. [1297] Text 435 – 9 August 2023 – the claimant sent a message at 1155hrs regarding another individual being left on his own (James Bekkers). There is nothing in this text about the claimant being required to do pair work alone. 63.14. [1299] Text 442 – on 8 August 2023, the claimant was told by LP that “Mitch should be there he did have a heavy trip so I wouldn't bank on it lol ...”. There is nothing in these messages that demonstrate that the claimant was being required to do pair work alone.

[64]We therefore reject Issue 2.2.5 on its facts.

[65]The claimant identified the relevant Daily Reports as being the following: 65.1. [851] - 23 October 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.2. [888] - 19 October 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.3. [757] - 17 October 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.4. [730] - 16 October 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.5. [704] - 13 October 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.6. [617] - 3 October 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.7. [1138] - 19 September 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.8. [1125] - 15 September 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.9. [535] - 14 September 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.10. [511] - 13 September 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.11. [1117] - 11 September 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.12. [1112] - 8 September 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.13. [433] - 31 August 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.14. [418] - 30 August 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.15. [239] - 10 August 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone; 65.16. [222] - 8 August 2023 – there is nothing in here regarding the respondent requiring the claimant to do pair work alone.

[66]It is fair to say that, on the odd occasion in the above Daily Reports, there is reference to the claimant being the only person on site. However, this is not the same as proving that the respondent was requiring the claimant to do work that was “pair-work”.

[67]In conclusion, there were times when the claimant was working alone, whether that be alone on site, or alone on a level with others on different levels on the same site. However, we are not satisfied that there is any good evidence that the claimant was instructed to perform “pair work” on his own. Furthermore, we are not satisfied that there was any work for which it was mandatory to have two people, as the term “pair-work” has been suggested to mean by the claimant.

[68]We therefore dismiss this allegation on its facts. Issue 2.2.6 - Required the claimant to go to a work site and sign a risk assessment that was incorrect (which he refused to do)

[69]The claimant identified the following as being the relevant messages: 69.1. [1211] Text 92 – 23 October 2023 – there is nothing in this text that references a risk assessment. 69.2. [1239] Text 204 – 26 September 2023 - there is nothing in this text that references a risk assessment. 69.3. [1240] Text 207/208/209/210 - this is an exchange on 25 September 2023 – the claimant told us that his reference to a “blag job” meant “its not going to be done in alignment with how it is supposed to be done”. However, the claimant did not explain what the standards were for how the job was “supposed to be done”; i.e. by reference to any industry standards, risk assessment or method statement. We are satisfied that the claimant was not comfortable in undertaking the assigned work on this day, but we are not satisfied that he was required to sign a risk assessment that was incorrect. 69.4. [1241/1242] Text 212/213/214/215/216 - this is 21 September 2023, in which the claimant says in response to being assigned to 36 Queen Street “Not really feeling that job tbh mate. Like I said, I don't want to be involved in or associated with any blag up jobs” (at 1724hrs). This is the job for which equipment was to be removed from GOSH and installed at Queen Street on 19 September 2023. At Text 215, the claimant specifically says “On top of that the RAMS didn’t accurately reflect the work there”. The evidence does not suggest that the claimant was required to sign a RAMS that was not accurate, neither that he was forced to undertake work when he objected to the work that he refers to as a blag job. We accept he is clearly stating his opposition to this work, but we find that no-one is pushing back at him and demanding he does the work under an incorrect RAMS. 69.5. [1244/1245/1246/1248] Text 221-224, 225-228, 229-232, 233-234, 240 – 19 September 2023 – again, we have covered these texts above at paragraphs 58.10 and 63.6. However, under this allegation, we consider the texts afresh. We accept that the claimant was not happy about doing the work of removing equipment from GOSH to place it at Queen Street. Looking at the Daily Report for this day, the claimant stated at [1139] that he would not be generating any paperwork and that no paperwork should bear his name. However, there is no evidence that he was required to do paperwork such as a risk assessment against his will. We have seen that LP did instruct the claimant at Text 228 “Adam it needs to come off site today one way or another...”. We note also Text [236] from the claimant at 1047hrs, which is cut off with the expanding instruction “read more”. The expanded text is at [1143], and states “We also need the correct RAMS issued as currently they take about conventional flushing and chemical cleans and back flushing and not standard filtration". The claimant’s evidence to us was that this confusion in the RAMS was rectified in the long-term. We accept that the claimant was required to remove equipment from GOSH to Queen Street, when he understood that was inappropriate. We also accept that he was given RAMS for a different scope of work. 69.6. [1267/1268] Text 316/317 - these are messages from 5 September 2023, in which the claimant says (at Text 317) “we need the RAMS for GOSH please mate. Only got RAMS for vent here”. LP replies “He has had them I’ll get resent again”. Then the claimant follows up with a photo of the RAMS at Text 316, saying he was “a bit confused”. This exchange does not suggest that the claimant was required to do work and sign a risk assessment that was incorrect.

[70]In terms of the relevant Daily Reports, these were identified as follows: 70.1. [851] - 23 October 2023 – nothing here mentions being forced to sign an incorrect risk assessment; 70.2. [559] - 26 September 2023 – nothing here mentions being forced to sign an incorrect risk assessment; 70.3. [1138] - 19 September 2023 – this records the claimant’s reluctance to perform the work he had called a “blag job”. However, nothing here mentions being forced to sign an incorrect risk assessment; 70.4. [1086] - 5 September 2023 – this records that the incorrect RAMS was present on this date, but also records that “spoke to [LP] regarding correct RAMS and he will rectify tonight ready for the morning”. There is therefore nothing here that mentions being forced to sign an incorrect risk assessment.

[71]In conclusion, we find that on 19 September, the claimant was required to do work he was not happy about and considered to be a “blag job”. However we are not satisfied that he was ever required to attend work and sign a risk assessment that was incorrect. Therefore, this allegation fails on its facts. Issue 2.2.7 - Dismiss the claimant

[72]The claimant identified the relevant Texts as those at Texts 1, 2 and 3 on [1189]. The relevant Daily Report is that at [906]. These documents simply record the fact of dismissal.

[73]On 8 November 2023, LP held a probation meeting with the claimant. The outcome of this meeting was that LP decided to dismiss the claimant. The respondent’s case is that the claimant did not “reach the required standards” of his probationary period. Within the Amended Grounds of Resistance, the respondent avers that other colleagues complained about the claimant – [68] paragraph 12. He was dismissed with immediate effect, with pay in lieu of notice and holiday pay that was accrued but untaken.

[74]The Tribunal puts on records that, if we were dealing with a case of unfair dismissal under s98 of the Employment Rights Act 1996, we would have found that the dismissal process was woefully inadequate: 74.1. The dismissal letter is at [84]. However, it transpired during evidence that this was not the copy the claimant had been sent on 9 November. The claimant produced for us the email to him copying in ZS (the appeal chair), attaching the original dismissal letter. That version was extremely poorly drafted, evidently leaving in square bracketed options that should have been deleted. This letter did not make it clear to the claimant why he had been dismissed and contained references to a lack of reference and driving licence, which were not in fact anything to do with his dismissal. The respondent had placed in the bundle another version of this letter, at [84]. This letter still contains errors and square bracketed comments that are irrelevant; 74.2. The evidence that ZS relied upon in his appeal decision was gathered after the decision to dismiss had been made. This evidence comprised of 3 “statements” at [87] to [89]. At the time of the dismissal meeting, the claimant was not given any detail about alleged complaints from colleagues. These statements are a backward proof, and were obtained in response to LP requesting them from the three individuals – [86]. The claimant was not presented with those statements (or indeed any evidence) at the dismissal meeting; 74.3. We do not have any evidence from LP regarding his decision to dismiss. Without a witness statement from a dismissing officer, we would usually rely on the dismissal letter itself as evidence of the reason for dismissal. However, as we have said, this is woefully inadequate. All it tells us is that the claimant was found to have failed the “required standards” which are not defined, other than reference to “working within the team and basic tasks taking too long”. These are allegations, not facts upon which to base a dismissal; 74.4. In terms of evidence from ZS at appeal stage, ZS told us that he only read the 3 statements, and did a spot check of JobLogic. This is what he said initially, however as his evidence went on, it transpired in fact he had not read anything on JobLogic in any detail, and relied heavily on the 3 statements. From the claimant’s appeal, it was clear that the claimant disagreed with his colleagues’ characterisation of his work. When asked what ZS did to satisfy himself that the allegations in the three statements were factually correct, he simply replied “We have to trust those we employ – we trusted your work ethic ... I didn't reach out to get details from the [three] individual's”. The Tribunal returned to this trust issue and asked why, if the respondent trusts its workers, he decided to trust the three individuals over the claimant. ZS answered “I didn’t get factual evidence that the claimant was doing work on time etc”. We find that this is to reverse the burden of proof; that ZS was looking for the claimant to disprove the unproven allegations within the three individuals’ statements; 74.5. The claimant in his appeal raised that he was being bullied in the WhatsApp group - [90]. ZS said “can we see that?”. Although the claimant sent some of the relevant WhatsApp exchanges to the respondent, these did not make their way to ZS. ZS’s evidence on this initially was that if the claimant was being bullied it would make no difference to his decision (in his witness statement). However, he did concede latterly that, if individuals were bullying the claimant, this may undermine the three statements ZS had relied upon and so may have affected his decision making; 74.6. During the appeal, ZS raised whether the claimant may have been in breach of the company social media policy. This was not something that was explored, but appears to have taken some focus off the appeal itself, suggesting that ZS would do an investigation; 74.7. The appeal notes are 2.5 pages long, and the meeting lasted 1 hour and 20 minutes. We therefore do not consider that these can be full notes of the meeting, and are not satisfied that this captured everything discussed; 74.8. The appeal letter was sent to the claimant on 13 December 2023 - [1411]. This is roughly a month after the appeal meeting. The letter is cursory and does not set out any investigation or any rationale for the decision. We note also that there is reference to investigating the bullying allegation internally, and yet ZS still made the decision on the appeal without taking that into consideration. The wording of the letter also suggested that some documentation on bullying had been received: if no such evidence of bullying had been received, we find it more likely than not that such evidence would have been chased in this letter; 74.9. There is no good explanation for the delay in sending the appeal letter, given that ZS’s evidence was that it would have taken him no more than a day to come to his decision on the appeal.

[75]We find ZS’s appeal process to have been a wholesale failure to attempt to abide by anything resembling a fair process. We strongly urge the respondent to review their internal processes. Just because an employee has under two years' service, and therefore there is no litigation risk of an unfair dismissal claim, this does not mean that employees can be treated with such a lack of courtesy and respect, and with a lack of regard to due process.

[76]Having placed our dissatisfaction with the respondent’s process on record, we turn to consider the reason for the claimant’s dismissal. The respondent’s position is that the claimant failed his probation on capability grounds. In the dismissal letter in the bundle at [84], it provides the following: 76.1. The respondent had “serious concerns about your capability in respect of your job”; 76.2. Specifically, “working within a team” and “basic tasks taking too long”; 76.3. As to the claimant’s performance, he was told he had “failed to meet the required standards”.

[77]In terms of a probation process, ZS was asked questions by the Tribunal about that process. We were told that there was a formal probation process which required the regular holding of 1-2-1 meetings, albeit there is no definitive timings of those 1-2-1s. ZS gave evidence that at the 1.5 month stage, he would expect an engineer to be sitting down with his manager to explore performance. The same should then occur again at the 3- and 6-month stage. ZS told us that it was “good practice” for there to be a written record of these meetings: if all was going well, then he could understand why there would be no notes. However, he told us that, if there were performance concerns, he would expect those to be documented. It transpired on further questioning that ZS had not asked LP about the probation process he had undertaken with the claimant, and had not asked for any notes of probation meetings.

[78]We are satisfied that no such probationary process took place for the claimant. There is not one piece of evidence to suggest anything to the contrary.

[79]From ZS’s evidence, we understood that the engineers and senior management got irritated by the claimant’s Daily Reports. ZS’s evidence was that these Daily Reports were not required, nor indeed were they wanted, by the respondent. All that the respondent required was that engineers completed the detail required on JobLogic. We have however seen nothing to suggest that the claimant was told to stop submitting his Daily Reports.

[80]It is for the respondent to prove the reason for dismissal. Given that the decision-maker did not give evidence, it is difficult for the respondent to meet that burden of proof. We will return to this in our conclusions Appeal

[81]The claimant appealed the decision to dismiss him. That appeal was heard by ZS. The appeal was unsuccessful. We have set out our findings as to the appeal process and disciplinary process above, and do not seek to repeat ourselves here.

The claim

[82]The claimant completed the ACAS early conciliation process between 12 December 2023 and 5 January 2024, and presented his claim form on 5 January 2024. This means that any act complained of that occurred before 13 September 2023 is, on the face of it, outside the three-month primary time limit for bringing a claim. Issue 4.1 - did the claimant make one or more qualifying disclosures?

[83]The claimant as part of his “homework” on Day 1 was asked to identify any messages or documents that he says contained any of his qualifying disclosures.

[84]He identified the following: 84.1. [1235] Text 187 84.2. [1238] Text 197 84.3. [1242] Text 213/214/215/216 84.4. [1244] Text 221-224 84.5. [1245] Text 225-228 84.6. [1267] Text 316 84.7. [1280] Text 366/367/368 84.8. [1281] Text 369

[85]He also identified the following Daily Reports: 85.1. [617] - 3 October 2023 85.2. [581] - 28 September 2023 85.3. [1138] - 19 September 2023 85.4. [1086] - 5 September 2023 85.5. [370] - 23 August 2023 85.6. [787] - 27 October 2023

[86]The Tribunal therefore looked at each written document to see whether any could be disclosures as set out in the list of issues, namely: 86.1. Issue 4.1.1a - did the claimant disclose that he would not complete risk assessments that were inaccurate, for example, stating each 11 steps had been carried out when only a few of these had been completed on a job? 86.2. Issue 4.1.1b - did the claimant disclose that certain water treatment jobs did not comply with best practice as captured by the BSRISA Board? 86.3. Issue 4.1.1c - did the claimant, on 23 August 2025, send LP and his colleagues a video and voice note raising concerns that a chemical provided to treat water was reacting unusually? 86.4. Issue 4.1.1d - did the claimant tell LP he needed more extension leads to use equipment on a different part of the job site? 86.5. Issue 4.1.1e - on 19 September 2023, was the claimant encouraged by LP and Graham Stevens to stop work on a job before it was completed so that equipment could be removed to another site. The claimant said he would not do this and that he would not generate paperwork to confirm it was completed to the standards set out in RAMS. 86.6. Issue 4.1.1f - regarding an incident at a children’s hospital (Great Ormond Street Hospital “GOSH”), the claimant told LP in writing and via a report that a pipe had not been properly isolated for disinfection and that the legally required Doble Check Valve was missing. He was nonetheless told to create a certification saying the job was complete.

[87]Our findings on the Texts and Daily Reports are below. Texts Potentially relevant parts of text Relevant to an issue [1235] 187 States “no extension leads again” 4.1.1d (complete message at 188) [1238] 197 A question about extension leads: “any update” This is not a disclosure, but a question [1242] “There’s no way to take flow rates, 213/214/215 (all it’s filled with raw water for god are part of the knows how long and half of it is an same one old existing system. On top of that WhatsApp the RAMS didn’t accurately reflect message at the work there.” 1919hrs on 21 September) “They aren’t the kind of flushes I want to be involved in or have my name associated with” “GOSH was blagged as we wasn’t afforded the time to actually complete it and do the work. This one isn't even set up to do it properly to specs.” [1242] 216 (21 “I don’t want to be involved in or September) associated with any blag up jobs” [1244] 221-224 “[LP] got a slight issue at GOSH (19 September) mate.” “Everyone’s gone home, ...I’m trying to sort it now but currently no one here to drive the hoist” “It’s sorted...it’s too late to get into the other site though...will drop it there in the morning” [1245] 225-228 “I’m not doing that with neat Issue 4.1.1e (19 September) chemical in the housing mate...it’s not my fault there is no power” “...I’ve come back here to strip a rig off of a system that was only started yesterday because they don’t own another filter housing?! It’s a flushing company. Where is the equipment?!” [1267] 316 (5 “[LP] got some RAMS now mate September) but a bit confused as we are filtering and this is talking about biowash and cleaner.” [1280/1281] “What’s this cleaner all about? It Issue 4.1.1c 366/367/368/369 bubbles up like a bio dispersant?” (23 August) Daily reports [617] - 3 October “We still had no extension Issue 4.1.1d leads...we can no longer reach most of the other units without extension leads...” [581] - 28 “...we lost some time this morning Issue 4.1.1d September 2023 attempting to find/source basic equipment such as 110v extension leads” [1138] - 19 “...please note we will not be Issue 4.1.1.a/e September 2023 generating any paperwork for the works on B/E wing as it’s far from finished and please ensure any paperwork that is generated for this scope of work does not bare the name A. Harper in any way, shape or form.” “We’re finding the lack of equipment and resources available for a multi million pound turn over company is frankly shocking. If you’re going to take on more jobs then more equipment needs to be purchased to cover the work.” [1086] - 5 “...but need equipment delivered to September 2023 enable the other circuit to be flushed...” “...we found they were RAMS for conventional flushing and not for filtration so we are still unable to start...spoke to [LP] regarding correct RAMS and he will rectify tonight ready for the morning” [370] - 23 August Nothing in here regarding the allegation at Issue 4.1.1c on this date [787] - 27 October Nothing in here regarding any Issues under Issue 4.1.1

[88]As such, there were occasions on which the claimant said something along the lines of the points set out at Issue 4.1.1: 88.1. [1138] - Daily Report 19 September 2023 – Issue 4.1.1a/e; 88.2. [1280/1281] - Texts 366/367/368/369 (23 August) - Issue 4.1.1c; 88.3. [1235] - Texts 187 (3 October 2023) (complete message at 188) - Issue 4.1.1d; 88.4. [617] - Daily Report 3 October 2023 – Issue 4.1.1d; 88.5. [581] - Daily Report 28 September 2023 – Issue 4.1.1d; 88.6. [1245] - Texts 225-228 (19 September) - Issue 4.1.1e.

[89]We need to therefore consider whether the statements made on those occasions fulfil the criteria for a qualifying disclosure at Issues 4.1.2 - 4.1.6.

[90]First, taking the 19 September 2023 Daily Report and also the 19 September WhatsApp messages at [1245].

[91]The information disclosed within the Daily Report is as follows: “The B/E wing system only started flushing yesterday, no flow rates have been carried out and the inhibitor levels are low. We attempted to dose more inhibitor at least but found that the site power was off until 3pm as EBS were switching from temps over to permanent power. We were requested to strip the rig off any way. With the above in mind, please note we will not be generating any paperwork for the works on B/W wing as it’s far from finished and please ensure any paperwork that is generated for this scope of works does not bare the name A/Harper in any way, shape or form. We proceeded as requested and stripped out the rig on B/E wing and loaded it onto Jack’s van at around 16:30. ...”.

[92]Looking at Issue 4.1.1a/e, this is not information that says the equivalent of “I will not complete inaccurate risk assessments” (under Issue 4.1.1a). In terms of Issue 4.1.1e, the claimant did not suggest in the above that he would not do the removal of equipment requested (in fact, the Daily Report confirms he did do as was requested and remove the equipment). The wording of the Daily Report does however state that the claimant will not generate paperwork to confirm it was completed to the standards set out in the RAMS; his comment in the Daily Report says he will not complete any paperwork.

[93]In terms of the WhatsApp messages, the main tenor of the messages is that the claimant will do the requisite work in removing the equipment, but that any consequences are not his problem. There is in fact in the texts no reference to paperwork.

[94]Stating in the Daily Report that he will not complete any paperwork we find is not sufficient to enable us to find that the claimant believed that statement tended to show that there had been a failure in legal obligation, or that there was a risk to health and safety (or indeed any of the other four categories of disclosures in s43B ERA). We find that the claimant conveyed that he refused to do paperwork as the job was not going to be done as well as it should have been. In the texts he conveyed that the job was poor due to poor organisation and planning. This is not the same as believing that you are conveying a warning about a failure in legal obligation or a risk to health and safety. As such, we find that these were not qualifying disclosures.

[95]Second, the 23 August WhatsApp messages. It is said (Issue 4.1.1c) that these messages show the claimant raising concerns that a chemical was reacting unusually. All that the texts show is raising some surprise at the chemical’s reaction, and then making a joke of it. We do not accept that the WhatsApp messages sent disclose any information or concerns about a chemical reaction. Again, we are not satisfied that the claimant believed that he was disclosing information that tended to show a risk to health and safety (or any of the other five categories of disclosures in s43B ERA). As such, we are not satisfied that this is a protected disclosure.

[96]We can take the next three together as they all relate to Issue 4.1.1d: 96.1. The 3 October 2023 message; 96.2. The 3 October 2023 Daily Report; 96.3. The 28 September 2023 Daily Report.

[97]These communications do all contain a statement that the claimant does not have the necessary extension leads, as under Issue 4.1.1d. However, we are not satisfied that such a statement can reasonably have been believed to convey a failure in legal obligation (or any of the other five categories of disclosures in s43B ERA). We are not satisfied that these are protected disclosures.

[98]Overall therefore, we find that the claimant made no qualifying disclosures, and as such no protected disclosures. His whistleblowing claim therefore fails at this stage, but we will return to it in our conclusions. Legal framework – discrimination on the grounds of religion or belief Religion and religious belief

[99]The protection provided under s10 of the Equality Act (“EqA”) stems from the freedom of religion set out in

Article 9(1) of the European Convention on Human Rights

(“ECHR”): “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”.

[100]

Article 9(2) of ECHR

puts some limitation on the right to manifest one’s belief: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

[101]Turning to the meaning of “religion”, this has been taken to have a broad interpretation, and Tribunals have been encouraged to avoid being too theistic in their approach to the definition of religion. Having said that, the Equality and Human Right’s Commission’s (“EHRC”) Code of Practice on Employment (January 2011) states at paragraph 2.54 that: “a religion need not be mainstream or well known to gain protection as a religion. However, it must have a clear structure and belief system”,

[102]Domestic law has to be interpreted to be in harmony with the ECHR, as such this guidance is relevant in domestic proceedings. It is now recognised that the definition extends beyond the more well-known religions and can include humanism and paganism. Section 10 of the EqA provides protection for both religion and religious belief. Religious belief has a wider scope that religion. Para 2.56 of the EHRC Code states religious belief: “...goes beyond beliefs about and adherence to a religion or its central articles of faith and may vary from person to person without the same religion”

[103]Further guidance on the interpretation of religion or belief was handed down from the House of Lords in the case of R (Williamson and ors) v Secretary of State for Education and Employment 2005 2 AC 246, HL. Lord Nicholls at paragraph 22 held that the ECtHR had “rightly noted that”: “...in principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the state of the legitimacy of religious beliefs or of the manner in which these are expressed”.

[104]However, Lord Nicholls qualified this by setting out some “threshold requirements” for a belief to be protected at paragraph 23: “The belief must be consistent with basic standards of human dignity or integrity. ... the belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. ...it must be a belief on a fundamental problem. ... The belief must also be coherent in the sense of being intelligible and capable of being understood”. A manifestation of belief

[105]The European Court of Human Rights in the case of Eweida and ors v United Kingdom

[2013] IRLR 231

held that the right encompassed within Article 9 also covered the right to manifest one’s religion or belief, provided that the act of manifestation had a sufficiently close link to one’s religion or belief – see paragraph 82: “Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a “manifestation” of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of art.9(1). In order to count as a “manifestation” within the meaning of art.9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question”. Direct discrimination

[106]Employees are protected from discrimination by s39 EqA: “(2) An employer(a) (A) must not discriminate against an employee of A’s

(b) (B) - … (d) by subjecting B to any other detriment.”

[107]Direct discrimination is set out in s13 EqA: “(1) a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[108]There are two parts of direct discrimination:(a) the less favourable treatment and

(b) the reason for that treatment. Sometimes, however, it is difficult to separate these two issues so neatly. The Tribunal can decide what the reason for any treatment was first: if the reason is the protected characteristic, then it is likely that the claim will succeed – Shamoon v Constable of the Royal Ulster Constabulary

[2003] UKHL 11

. “Because of”: reason for less favourable treatment

[109]In terms of the required link between the claimant’s race and the less favourable treatment he alleges, the two must be “inextricably linked” - Jyske Finands A/S v Ligebehandlingsnaevnet acting on behalf of Huskic: ECLI:EU:C:2017:278.

[110]The correct approach is to determine whether the protected characteristic, here belief, had a “significant influence” on the treatment – Nagarajan v London Regional Transport

[1999] IRLR 572

. The ultimate question to ask is “what was the reason why the alleged perpetrator acted as they did? What, consciously or unconsciously, was the reason?” - Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

. This is a question of fact for the Tribunal to determine and is a different question to the question of motivation, which is irrelevant. The Tribunal can draw inferences from the behaviour of the alleged perpetrator as well as taking surrounding circumstances into account.

[111]If there is more than one reason for the treatment complained of, the question is whether the protected characteristic was an effective cause of the treatment – O’Neill v Governors of ST Thomas More Roman Catholic Voluntary Aided Upper School

[1996] IRLR 372

. Burden of proof under the Equality Act 2010

[112]The burden of proof for discrimination claims is set out in s136 EqA: “(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”.

[113]In Laing v Manchester City Council and anor

[2006] ICR 1519

, Mr Justice Elias held that: “the onus lies on the employee to show potentially less favourably treatment from which an inference of discrimination could properly be drawn”.

[114]This requires the Tribunal to consider all the material facts without considering the respondent’s explanation at this stage. However, this does not mean that evidence from the respondent undermining the claimant’s case can be ignored at stage one – Efobi v Royal Mail Group Ltd

2021 ICR 1263

. It is not enough for the claimant to show that there has been a difference in treatment between him and a comparator, there must be “something more”. In Madarassy v Nomura International plc

2007 ICR 867

, Lord Justice Mummery held: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.

[115]In terms of comparators, the definition is at s23 EqA: “(1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case”.

[116]In Virgin Active Ltd v Hughes

2023 EAT 130

, it was highlighted by the Employment Appeal Tribunal that the consideration of whether there are material differences in the circumstances of an actual comparator compared to those of the claimant needs to take place before applying the shift in the burden of proof. Regarding a hypothetical comparator, the claimant must show that the comparator would have been treated more favourably. This requires the Tribunal to be able to draw inferences of likely treatment of a hypothetical comparator from the evidence before it.

[117]It is only if the initial burden of proof is reached that the burden shifts to the respondent to prove to the Tribunal that the conduct in question was in no sense whatsoever based on the protected characteristic – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

2005 ICR 931

. Harassment

[118]The definition of harassment is set out at s26 EqA: “(1) A person(a) (A) harasses another

(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) Violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, mediating 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;

[119]It is for the individual to set the parameters as to what they find acceptable, and what is unwanted: “it is for each person to define their own levels of acceptable” – Reed v Stedman

[1999] IRLR 299

, and more recently Smith v Ideal Shopping Direct Ltd

UKEAT/0590/12

. Purpose or effect

[120]S26 makes it clear that it is sufficient for the unwanted conduct to have the effect set out in s26(1)(b): it is not necessary for that to be the purpose of the alleged perpetrator. For example, harassment may still be made out where there is teasing, also called banter, without any malicious intent.

[121]In terms of effect, the alleged perpetrator’s motive is again irrelevant. The test is both subjective and objective. First, it is necessary to consider what the effect of the conduct was from the claimant’s perspective (subjective element). If it is found that the claimant did suffer the necessary effect set out in s26(1)(b), the next stage is to consider whether it was reasonable for the claimant to feel that way.

[122]Furthermore, it is not necessary for the conduct to be aimed directly at the claimant. A claim can succeed if it was reasonable for the claimant to feel that their environment had been made intimidating, hostile, degrading, humiliating or offensive, whether or not any language or conduct is specifically aimed at them. Related to the protected characteristic

[123]The causal link required for harassment is much broader than that for direct discrimination. The requirement is that the conduct must be related to the protected characteristic, in this case belief. There is no protection from general bullying within the EqA; harassment will not be proven where someone is picked on or singled out, unless that treatment is related to a protected characteristic.

[124]There is limited guidance from the appellate courts as to what is meant by “related to”. Some guidance has been given by the Court of Appeal in the case of UNITE the Union v Nailard

[2018] EWCA Civ 1203

. The facts of this case were that the respondent had failed to deal with the claimant’s sexual harassment complaint. The Employment Tribunal found that, because the failure related to a grievance regarding harassment, that was sufficient to find that the failure was itself an act of sexual harassment. The Court of Appeal found the tribunal had got it wrong. The Tribunal had not made findings as to the thought processes of the individuals who failed to deal with the grievance; therefore, it could not be found that the failure itself was an act of sexual harassment. A finding would have to be made that those who failed to deal with the grievance were guilty of sexual harassment. The Tribunal had, in effect, used the “but for” test; in other words, they found liability on the basis that, but for the grievance, there would have been no failure. This is not the correct legal test under section 26.

[125]In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, HHJ Auerbach reminded the Tribunal that the claimant’s perception that conduct is related to a protected characteristic is relevant, albeit not determinative, of the issue. The Tribunal must: “articulate distinctly, and with sufficient clarity, what feature or features of the evidence or facts found have led it to the conclusion that the conduct is related to the characteristic as alleged”.

[126]It therefore follows that a claimant’s understanding and a respondent’s intention are not strictly relevant to the issue of causation. The context in which the alleged harassment occurs is a key factor in determining whether the conduct was related to the relevant protected characteristic – Warby v Wunda Group plc EAT 0434/11. Interplay between s13 and s26 EqA

[127]A claimant is entitled to bring claims under s13 and s26 EqA in the alternative, however the Tribunal cannot uphold both claims. This is due to the wording of s212 EqA: “Detriment does not, ..., include conduct which amounts to harassment”.

[128]Given that discrimination is defined under s39(2)(d) as referring to “any other detriment”, it follows that discrimination and harassment are mutually exclusive. Furthermore, in light of the way in which s212 is phrased, it is understood that the Tribunal will consider a claim under s13 EqA first. If that claim succeeds, the Tribunal will not then go on to consider the harassment claim. If however, the direct discrimination claim fails, then the Tribunal then continue to determine the harassment claim under s26. Legal framework – protected disclosures under s43B ERA

[129]S43B ERA provides: (1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

[130]There are therefore six “gateways” that can be used in making a qualifying disclosure. The two relevant here are the failing in legal obligation and the endangering of health and safety.

[131]The EAT held in Kealy v Westfield Community Development Association

[2023] EAT 96

that: “There are two essential terms to consider in deciding whether there has been a protected disclosure. There must first be a “qualifying disclosure”

[132]The term “qualifying disclosure” concerns the nature of the disclosure that is made. The qualifying disclosure must become a “protected disclosure”.

[133]As to whether there has been a “qualifying disclosure”, HHJ Auerbach provided guidance in Williams v Michelle Brown Am

UKEAT/0044/19

. There are five steps that need to be satisfied in order to find that a qualifying disclosure exists: 133.1. Disclosure of information; 133.2. The worker must have a belief in that the disclosure is in the public interest; 133.3. If the worker has that belief, the belief must be reasonable; 133.4. The worker must believe that the disclosure tends to show one of the matters in s43B(1)(a)-(f) ERA; 133.5. If the worker has that belief, the belief must be reasonable. Disclosure of information

[134]A practical example of the difference between a disclosure of information, and an allegation, was set out in Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] ICR 325

. Placed in the context of a hospital ward, a disclosure of information would be “yesterday, sharps were left lying around”, whereas an allegation would be “you are not complying with health and safety requirements”. However, the disclosure should not simply be categorised into “disclosure of information” or “allegation”. The key point is that a bare allegation, such as the example above, cannot amount to a disclosure of information. It is however possible for an allegation to contain sufficient information to be capable of tending to show a failure (or likely failure) to comply with a legal obligation (for example) – Kilraine v London Borough of Wandsworth

2018 ICR 1850

CA. There must be sufficient facts within a disclosure to be capable, in the reasonable belief of the employee, of tending to show on of the factors in s43B(1)(a)-(f) ERA.

[135]The EAT has now also clarified that communication of an expression of opinion is capable of constituting a disclosure of information – McDermott v Sellafield Ltd and ors

2023 EAT 60

[136]An enquiry, or request for information, as opposed to the supply of information, will not amount to a disclosure of information – Blitz v Vectone Group Holdings Ltd EAT 0253/10, Parsons v Airplus International Ltd EAT 0111/17. Reasonable belief

[137]The requirement that a disclosure tended to show, in the reasonable belief of an employee, on of the matters in s43B(1)(a)-(f) is both an objective and subjective test. It requires a tribunal to determine whether the Claimant held the requisite belief and whether, if so, that belief was reasonable – Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

2018 ICR 731

[138]As put in Soh v Imperial College of Science, Technology and Medicine EAT 0350/14, there is a difference between “I believe X is true” and “I believe that this information tends to show that X is true”. It is the latter, not the former, that is required here.

[139]Regarding the requirement that the claimant had a reasonable belief that the disclosure was made in the public interest, it is important to bear in mind the purpose of making this addition to the legislation. Government added the need for reasonable belief that a disclosure is made in the public interest to avoid protection being received by employees raising private employment disputes (the effect of Parkins v Sodexho Ltd

[2002] IRLR 109

[140]This is a relatively low threshold. A list of factors for consideration as to whether it is reasonable to regard a disclosure as being in the public interest was provided by the Court of Appeal in Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

[2018] ICR 731

: 140.1. The numbers in the group whose interests the disclosure serves; 140.2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed; 140.3. The nature of the wrongdoing disclosed; and, 140.4. The identity of the alleged wrongdoer. Breach of legal obligation – s43B(1)(b)

[141]The term “breach of legal obligation” has a fairly wide remit. It covers legal obligations set out in statute, secondary legislation and those deriving from common law. However, it will not encompass breach of internal policies, guidance or best practice, or breach of any moral codes – Eiger Securities LLP v Korshunova

[2017] IRLR 115

. There is no need for a claimant to give precise detail about the legal obligation in question, however there must be more than just a belief that something is wrong – Eiger Securities LLP v Korshunova

[2017] ICR 561

[142]If on the facts the identity of the legal obligation in the original disclosure is obvious, then a claimant need do little to specify the obligation further – Bolton School v Evans

[2006] IRLR 500

. It will suffice that the employer understood from the disclosures that the claimant was suggesting that there was potential legal liability.

[143]If, however, the legal obligation at play is not obvious, it will be necessary for a claimant to provide some detail so that the Tribunal is satisfied that the concern is not simply about guidelines or morals, but is in fact a legal concern.

[144]Furthermore, more detail may be required at the stage of the Tribunal proceedings. The claimant, by that stage, will be expected to be able to set out what the infringer legal obligation was – Arjomand-Sissan v East Sussex Healthcare NHS Trust

UKEAT/0122/17

. Endangering of health and safety – s43B(1)(d)

[145]Under this gateway of s43B ERA, there is no obligation to identify a breach of health and safety requirements. It is sufficient that someone’s health and safety is in fact, or is likely to be, endangered. This gateway is therefore wider than that at s43B(1)(b) ERA. Legal framework – dismissal under s103A ERA

[146]S103A ERA provides that: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.

[147]A claim under s103A ERA will only succeed when a tribunal is satisfied that the principal reason for dismissal was a protected disclosure. “Principal” reason has been held to be the reason operating on the decision maker’s mind at the time of dismissal, in other words, the primary reason – Abernethy v Mott, Hay and Anderson

[1974] ICR 323

. This is a question of fact, which requires the Tribunal to answer the question “what consciously or unconsciously was the decision-maker’s reason for dismissing?”. It is not enough for the protected disclosure to be a secondary, or indirect, reason for dismissal.

[148]When a claimant relies upon several disclosures, the question for the Tribunal is whether, taken as a whole, the disclosures were the principal reason for dismissal – El-Megrisi v Azad University (IR) in Oxford EAT 0448/08. Legal framework – detriments under s47B ERA

[149]S47B(1) ERA provides that: A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[150]A detriment has been held to exist “if a reasonable worker would or might take the view that [the action of the employer] was in all the circumstances to his detriment” – Ministry of Defence v Jeremiah

[1980] ICR 13

. In other words, if the claimant has suffered a disadvantage compared to other employees (whether real or hypothetical), they will have suffered a detriment. Despite this, there is no strict need for a comparator in cases of detriment.

[151]The causative test under a detriment claim is less strict than that for automatic unfair dismissal, in that a protected disclosure need only materially influence the decision-maker. This means that the protected disclosure must be more than a trivial influence – Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

[2012] ICR 372

. Legal framework – whistleblowing burden of proof

[152]The burden of proof in a whistleblowing claim requires that the claimant prove on the balance of probabilities that: 152.1. He made a protected disclosure; 152.2. He suffered a detriment; 152.3. The respondent was the one who subjected him to that detriment.

[153]Once those matters are found to have been proven, the burden is then on the respondent to demonstrate that the claimant was not subjected to any detriment because of any protected act – s48(2) ERA 1996.

[154]If the Tribunal cannot be satisfied on the evidence as to the reason for a detriment, this does not mean that the claimant wins by default – Ibekwe v Sussex Partnership NHS Foundation Trust EAT 0072/14. The EAT in Ibekwe followed the logic set out by the Court of Appeal in Kuzel v Roche Products Ltd

[2008] ICR 799

: in a scenario in which the Tribunal rejects the reason proffered by the respondent, it does not follow that the Tribunal then must accept the reason put forward by the claimant. The Tribunal is entitled to conclude that the reason for the dismissal (in Kuzel) was one that neither party suggested. Applying this logic in Ibekwe, the EAT held that there was no basis on which it could interfere with the Tribunal’s finding that there was no evidence that the detriment was because of a protected disclosure.

[155]The Tribunal is able to draw inferences from the evidence it has heard and seen in order to determine the reason for any detriment that has occurred, as is the case for discrimination claims.

[156]The position on burden of proof was set out by the EAT in International Petroleum Ltd and ors v Osipov and ors EAT 0058/17, paragraph 115:(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she was subjected is a protected disclosure that he or she made.

(b) By virtue of s48(2) ERA 1996, the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so, inferences may be drawn against them: see London Borough of Harrow v Knight [2003 IRLR 140, EAT] at paragraph 20.

(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found. Conclusions Direct religious or belief discrimination Belief and manifestation

Conclusions

[157]It is accepted by the respondent, and by the Tribunal, that the claimant’s spirituality is a protected belief.

[158]We have set out our findings as to the claimant's use of emojis, as well as findings regarding his colleagues’ understanding of the same – at paragraph 27-31 above.

[159]We conclude that the use of emojis by the claimant is not a manifestation of his protected belief. We are not satisfied that there is a sufficiently close or direct nexus between the use of the emojis and the claimant’s protected belief. Causation

[160]In terms of the acts set out at paragraph 2.2 of the List of Issues, we have upheld the following on the facts: 160.1. Issue2.2.1 and

2.2.2 - mocking the claimant in WhatsApp messages on 23 October 2023; 160.2. Issue 2.2.4 - failing to supply necessary equipment when it was asked for, regarding three individual occasions (24 August, 12 September and 27 October 2023); 160.3. Issue 2.2.7 - the claimant was dismissed.

[161]The burden of proof lies initially with the claimant to demonstrate some evidence from which the Tribunal could infer that these acts were discriminatory.

[162]The problem that the claimant has is that we have found that no-one at the respondent was aware of the claimant’s protected belief – see paragraphs 32 to 37 above. As such, that belief cannot be the reason for any of the respondent’s conduct towards the claimant.

[163]Furthermore, we have found that the claimant’s use of certain emojis was also not understood by his colleagues to be a manifestation of any protected belief – see paragraphs 30 to 31 above. In fact, we have gone further to find that the use of certain emojis is not a manifestation of the claimant’s protected belief.

[164]Again, therefore, none of the respondent’s conduct can be because of a manifestation of his belief or because of the belief itself.

[165]As such, we reject the claim of direct religious or philosophical belief discrimination. Harassment related to religious or philosophical belief

[166]As above, and in relation to Issue 3.1, we have upheld the following allegations on their facts: 166.1. Issue2.2.1 and

2.2.2 - mocking the claimant in WhatsApp messages on 23 October 2023; 166.2. Issue 2.2.4 - failing to supply necessary equipment when it was asked for, regarding three individual occasions (24 August, 12 September and 27 October 2023); 166.3. Issue 2.2.7 - the claimant was dismissed.

[167]For a harassment claim, it is not necessary for the alleged perpetrator to know that the claimant has the particular protected characteristic. It is however necessary for there to be some connection between the protected characteristic and the unwanted conduct.

[168]Although, in relation to Issue 2.2.1 and 2.2.2, we have found that “Mitch’s” mocking of the claimant was connected to his use of certain emojis, we have found that those emojis are not a manifestation of the claimant’s protected belief.

[169]In relation to the other unwanted conduct under Issue 2.2.4 and 2.2.7, there is simply no good evidence before us to enable us to draw an inference that the respondent’s actions were discriminatory. We are unable to satisfy the requirement set out by HHJ Auerbach, in that we are not able to “articulate distinctly, and with sufficient clarity, what feature or features of the evidence or facts found have led it to the conclusion that the conduct is related to the characteristic as alleged”.

[170]Therefore, the claim for harassment is rejected. Protected disclosures

[171]We have set out our findings on qualifying disclosures at paragraphs 90 to 98 above. We have found that the claimant made no protected disclosures. Detriments

[172]Again, factually, we have upheld three of the factual allegations said to be detriments: 172.1. Issue2.2.1 and

2.2.2 - mocking the claimant in WhatsApp messages on 23 October 2023; 172.2. Issue 2.2.4 - failing to supply necessary equipment when it was asked for, regarding three individual occasions (24 August, 12 September and 27 October 2023); 172.3. Issue 2.2.7 - the claimant was dismissed.

[173]The question at this stage is whether those detriments were because of any protected disclosures. Given we have found that no protected disclosures were made, it follows that protected disclosures cannot have been the reason for any of those three detriments.

[174]In the event that we are wrong as to the presence of protected disclosures, we consider whether there is any evidence to suggest that the detriments were because of the things that the claimant alleged were protected disclosures.

[175]As we have set out above under the legal framework, the burden of proof regarding the reason for the detriments rests with the respondent. Given that the perpetrators of the detriments, namely Mitch (for the 23 October messages) and LP (for the other matters) did not give evidence at the hearing we are not satisfied that the respondent has proven a reason for the detriments that is not whistleblowing. However, as per Ibekwe, this does not mean that the claimant wins by default.

[176]We are also not satisfied that there is any evidence on the face of what we have heard and seen during the final hearing, to allow us to safely find that any alleged protected disclosures were the reason for the three detriments. There is no good evidence from which we could draw an inference of the same.

[177]We therefore turn to consider the reasons as we find them to be for the three detriments.

[178]We have already found that the reason for the mocking messages on 23 October 2023 was Mitch’s view that the claimant’s use of emojis was not appropriate in a group of male engineers and that Mitch considered the claimant to be less manly for using them (paragraph 53 above).

[179]In terms of any failures to provide equipment, the specific dates on which we have found there was a failure to supply the same following a request relate to requests for N2, FE10 and cleaning chemicals. As we have set out above, on some occasions, the reason for the failure to provide chemicals when the claimant requested the same was the fact that he did not have his own work van or driving licence. Therefore, if he did not have the chemicals with him, he would have to rely on others to bring it to him – see paragraph 61 above. If other people were unable to attend site to provide same, there was a technical failure to meet his request. This was certainly the case on 24 August 2023.

[180]Regarding the final detriment of dismissal, we repeat that we have not had oral evidence from the dismissing officer. We have however had evidence from the appeal officer, ZS, who refused the claimant’s appeal and upheld the dismissal.

[181]From the (limited) evidence around the original decision to dismiss, and the evidence of ZS, we are satisfied that the reason for dismissal was that the claimant had a different work mode and communication style from the rest of the engineers under LP’s supervision. Certainly, from ZS’s perspective, we were told that the claimant was spending time completing his Daily Reports, which were, to the respondent, “irrelevant”. The claimant also did not use JobLogic as is intended. We note that the claimant appears never to have been informed that his use of JobLogic and his Daily Reports was an issue, but that was very clearly the impression that ZS gave us on his evidence, for example he said: “It wasn’t legislation standards, not the guidelines we work towards, it was more around [the claimant] highlighting and doing his own daily reports. LP communicated to me that the reports took so long for him to complete rather than focusing on the job in hand. I concur that not every job goes to plan and we have to document that. but that is not something that the business can control. We have to communicate that to the customers and change that”; And, “The feedback LP gave me was that [the claimant] wasn’t willing to work with others, he takes too long on tasks and the Daily Reports are not required. The time spent putting information into the chat was not relevant to his [the claimant’s] job. LP wanted him to just get on with the job, to communicate with the others on site and get on with them – that was LP’s frustration to me”.

[182]We therefore find that the reason for the claimant’s dismissal was his different working practices and ways of communicating with his colleagues, in terms of his use of his Daily Reports.

[183]To summarise, the claimant’s whistleblowing claim is dismissed. Approved by: