Mr R Wickham v The Commissioners for HM Revenue and Customs and Ms J Rockett: 3300755/2022
EMPLOYMENT TRIBUNALS
Case No 3300755/2022
Between
Mr R WickhamClaimantThe Commissioners for HM Revenue and Customs and Ms J RockettRespondent
Before
Employment Judge MooreIn person for claimantMr McClean (instructed by Counsel) for respondentDate 12 March 2025
JUDGMENT
The unanimous decision of the Tribunal is as follows:[1]The Claimant’s claim for direct disability discrimination is not well founded and is dismissed.[2]The Claimant’s claim for failure to make reasonable adjustments is well founded and succeeds.[3]The Claimant’s complaints of disability related harassment are well founded and succeed.[4]The Claimant’s complaints of victimisation are well founded and succeed.
REASONS
[1]The ET1 was presented on 31 January 2022. Early conciliation against the first Respondent took place between 30 and 31 December 2021 and on 30 December 2021 for the second Respondent. There were three preliminary hearings for case management on 1 July 2022, 31 January 2023 and 25 April 2023. The final hearing was listed on 23 – 27 January 2023 and 20 – 24 March 2023 both of which were postponed due to slippage in the compliance with case management orders. At the preliminary hearing on 31 January 2023 Judge Brace documented she had fully explained to the Claimant the different types of disability discrimination save for discrimination arising from disability and recorded a draft list of issues as she had understood the claimant’s complaints to be. The Claimant was ordered to provide further information.[2]A further preliminary hearing took place on 25 April 2023 also before Judge Brace. The Respondents conceded the Claimant was a disabled person by reason of depression between the period 25 January 2021 and 5 September 2022 only. Judge Brace determined that the original claim contained no discernible claim for direct discrimination and the Claimant would require permission to amend the claim to bring such a complaint. The Respondents were directed to indicate whether the claims as clarified amounted to an amendment and if they consented or whether a hearing would be required to consider the amendment. A draft list of issues was updated recording the complaints. The Respondents were directed to file amended grounds of response addressing the complaints as clarified in the list of issues which they did on 28 June 2023. The Respondents also confirmed on 2 June 2023 that they did not oppose an amendment as the facts were the same as the harassment claim.[3]The application to amend to add a claim of direct discrimination was subsequently granted by Judge Jenkins on 9 October 2023. List of issues[4]The list of issues attached to Judge Brace’s order was discussed on the first day of the final hearing on 19 February 2024 and agreed. It is annexed to the judgment below. It was confirmed by Mr McLean on the first morning that the Respondents accepted the Claimant was disabled by reason of depression (not anxiety) between 25 January 2021 and 17 April 2023 but not the period before as there was a lack of medical records between November 2018 and January 2021. The final hearing and explanation for the number of postponements[5]Unfortunately this claim was beset with a number of issues beyond the parties or Tribunal’s control that led to a number of occasions where the hearing went part heard and had to be postponed and relisted. A timetable of the final hearing dates and witness running order is set out below. Date Venue Timetable 19.2.24 By video AM – preliminary matters PM – Claimant’s evidence 20.2.24 By video Claimant’s evidence continues. 21.2.24 By video AM - Claimant’s evidence’s concludes PM – Ms Rockett starts evidence 22.2.24 By video Ms Rockett continues later becomes unwell and hearing is adjourned 23.2.24 Cardiff and by video Martin Piddock evidence (by video) Case management order issued 17.4.24 – 6 days Cardiff Postponed as Judge unwell 29.7.24 Cardiff Postponed as Claimant unwell 30.7.24 Cardiff Claimant remains unwell postponed case management order issued 28.8.24 Cardiff Tribunal member unwell remaining days of 29.8.24 and 30.8.24 postponed, case management order issued 10 and 11 October Cardiff Ms Rockett evidence 2024 restarts and concludes Mr L Timmins evidence 9.12.24 Cardiff Ms V Barty evidence Mr A Barnett evidence 10.12.24 Cardiff Mr A Barnett evidence Claimant sworn back in (relativity evidence) 20.1.25 CVP Submissions Tribunal deliberation 21.1.25 and 22.2.25 Chambers Tribunal deliberation Issues arising during the hearing and a written record of case management decisions made Reasonable adjustments[6]The Claimant’s reasonable adjustments had been discussed and agreed. These were regular breaks, time to process and answer questions and permission to organise his bundle by use of tabs/ colour coordinated tabs and highlighting to enable him to locate documents. The hearing was switched from CVP to in person from 23 February 2024 as there were connection issues that meant it was not always clear that one person had finished speaking. Respondents’ application to admit new documents on 16 February 2024 and admission of supplementary statement of Ms Rockett dated 20 February 2024[7]On 16 February 2024 at 17.06pm the Respondents sent the Claimant an excel spreadsheet which we shall call the “Anexsys log”. This was said to be a spreadsheet detailing audit log entries of the dates and times the Claimant had accessed a system called Anexsys. There was no application to the Tribunal to admit this document which was disclosed long outside the date for disclosure window.[8]The Claimant sent the Respondents email onto the Tribunal with covering comments objecting to the document being admitted as evidence.[9]This was discussed at the outset of the hearing on 19 February 2024 and the Respondents were asked to make a formal oral application to admit the document as no written application had been made.[10]Mr McLean told the Tribunal that the reason the document had not been disclosed previously was because the Respondents had been unaware of the Ms Ali report until January 2024 when compiling their witness statements which led to the Respondents performing research for relevant rebuttal evidence which is why it was disclosed at this late stage. It was submitted that had the Respondents been aware of the Ms Ali report and been put on notice of it sooner they would have performed searches earlier and obtained the information. It was submitted that it was crucial to the issue as to whether the second Respondent genuinely believed there was a reasonable basis to doubt the veracity of what the Claimant was telling her.[11]Judge Moore queried this explanation with Mr McLean as Ms Ali is employed by the first Respondent and her report appeared to be their document. It appeared that the first Respondent was seeking to admit new evidence to challenge a report authored by one of their own employees. It was clarified by Mr McLean that the Tribunal were being asked to treat the reports of Ms Ali and Mr Lees as hostile and this was why the late disclosure needed to be admitted.[12]The Claimant did not oppose the admittance of the Anexsys log and it was therefore admitted subject to the Respondents filing a further witness statement to explain the data that was presented in the report. This led to the supplementary witness statement for Ms Rockett being filed on 20 February 20241.[13]The Claimant was subsequently given permission to submit a supplementary statement addressing the Anexys documents and Ms Rockett’s supplementary witness statement. Issue concerning the bundle on 21 February 2024 and 22 February 2024[14]At the outset of the hearing it was clarified with the parties that the bundle we were dealing with ran to 1519 pages and everyone agreed. At 15.45 on 21 February 2024, part way through Ms Rockett’s cross examination it transpired that the Claimant’s bundle ended at 1454 pages. The first Respondent was directed to provide a written explanation setting out what had happened in respect of the bundle before the following day.[15]On 22 February 2024 the Respondents’ solicitors confirmed that on 16 February 2024 they had been provided with updated disclosure and therefore added a “TAB E” Appendices to the bundle. These documents had not previously been disclosed or agreed as part of the final bundle and should not simply have been added without telling the Claimant nor seeking permission from the Tribunal. This was the bundle provided to the Tribunal that day and used by everyone except the Claimant unbeknown to everyone until 21 February 2024.[16]The Respondent’s solicitors said that due to a genuine oversight the Claimant was not provided with a copy of this bundle until 9.38am on 19 February 2024. However the Claimant had not received this email.[17]The Claimant was provided with additional time to consider the TAB E documents. 21 February 2024 Claimant’s application to admit documents to rebut the Respondents document admitted on 19 February 2024 and 22 February 2024 Claimant’s application to admit Laura Whyte review, Ms Rockett’s response to the Claimant’s grievance against her a document titled “trial review” 1 When Ms Rockett was sworn in she resiled from paragraph 10.[18]On 21 February 2024 the Claimant made an application to admit documents to rebut the Respondent’s Anexsys log that had been admitted on 19 February 2024. This incorporated a zip file containing emails, excel and word documents. On 22 February he also applied to admit the above described documents. Both applications were discussed on 22 February 2024. The Respondent objected to the documents being admitted on the basis many of the zip file documents were duplicate and somewhat surprisingly had a “flavour of ambush”. Judge Moore asked Mr McLean if he stood by this submission given what had happened with the bundle and that the Claimant was responding to late disclosure of documents by the Respondents. Mr McLean accepted that the Respondents “were not on the high grounds regards fairness” but the Claimant had been sent the bundle on Monday 19 February. It was pointed out to Mr McLean that this was 20 minutes before the hearing was due to start. Mr McLean stood by this submission on the basis the Claimant should have been aware of the case at the point of witness statement exchange and the Claimant was submitting evidence in a drip feed manner nature and a line needed to be drawn. This was not a reasonable or fair criticism of the Claimant given the Respondent’s conduct in respect of the bundle and that they had sought to add documents. It was only fair that the Claimant be permitted to add documents to address that late disclosure. Ali and Lees reports[19]On 19 February 2024 the Tribunal raised a matter with Mr McLean regarding the above reports. Ms Ali from the first Respondent’s Equalities Department had heard the Claimant’s appeal against his written warning and authored a “Lessons Learned” report in May 2022. Mr Lees, a compliance officer had very recently published his report outcome into the Claimant’s grievance against Ms Rockett. Ms Rockett’s witness statement, signed on 9 February 2024 stated she had seen both reports for the first time on 24 January 2024 and contained very serious counter allegations against both individuals indicating she would in turn be raising formal complaints against them.[20]Given that GLD and Mr Mclean were instructed by both Respondents the Tribunal directed the first Respondent to confirm in writing whether they also shared the position of the second Respondent regarding these reports. If they did not, the Respondents were asked to consider whether they were conflicted in having the same legal team. This was also important as until now the Claimant had understood, quite reasonably that his written warning had been overturned and his grievance partially upheld by the first Respondent via the officers they had appointed to investigate and report on those matters.[21]On 20 February 2024 the first Respondent confirmed their position as follows: The Tribunal raised an important concern shortly before adjourning yesterday, and the Judge has asked HMRC to expressly confirm its position, specifically whether(i) it stands by the decisions of Tahmina Ali and John Lees, or(ii) whether it adopts the position taken by Judith Rockett, who challenges those findings. Having urgently sought clarification from the First Respondent we are instructed to confirm the position as follows: The Department’s position throughout has been and remains to deny the claims. Both Respondents deny unlawful discrimination against the Claimant – the decision in relation to the Claimant’s TAP was based on objective grounds relating to his performance in the training processes and a failure to attain the necessary levels of achievement, not as a result of any failure to implement reasonable adjustments to support his alleged disability. The Respondents both contend that there was no contravention of the Equality Act 2010. The Department is not bound by the opinion of any individual employees (namely Ms Ali and Mr Lees), who in any event are not legally trained, did not have all the evidence that is now before this Tribunal, and who are now alleged to have exceeded whatever authority was delegated to them. The Department makes no concessions, and respectfully submits that it is not obliged to do so. The Department and Judith Rockett are aligned in arguing that the Employment Tribunal should make its own findings rather than simply rely on the documentary decisions of Tahmina Ali and John Lees. The Department now needs to critically evaluate the pertinent concerns that the individual respondent has levied against the internal handling of these processes and until such time as these concerns are fully considered and determined, the Ali/Lees decisions must not be regarded as “closed” and unimpeachable. In this regard, the First Respondent confirms for the purposes of the continued defence of these proceedings it stands with and adopts the challenge made by the Second Respondent. Ms Rockett’s approach to Judge Moore whilst on oath on 22 February 2024[22]Ms Rockett was giving her evidence on 22 February 2024. Feelings had been running high and both Ms Rockett and the Claimant had to be reminded on a number of occasions to not talk over each other and let each other finish the questions and answers. In the afternoon the Tribunal were informed that Ms Rockett had become unwell and the hearing was adjourned until the following day. Ms Rockett then sent an email to the Tribunal which was not copied to the Claimant or her representatives for the urgent attention of Judge Moore. Ms Rockett explained she was feeling vulnerable and upset. She expressed concern for Ms Ali in that she might learn that Ms Rockett had raised a concern against her as the Respondents had asked for the document to be admitted and sought its removal. Judge Moore directed the email be sent to the Claimant and the Respondents representatives and it was discussed on 23 February 2024. It was agreed that Judge Moore would write to the parties are explain that no-one is permitted to directly approach the Judge in the middle of giving evidence. 29 July 2024 Order made releasing Ms Rockett from her oath[23]On 29 July 2024 the Respondents disclosed a different version of page 590 in the bundle (the differing version had been disclosed as part of disclosure but was not in the bundle). Mr McLean was given permission to take instructions from Ms Rockett in respect of this issue only as she had authored the two versions. Transcripts[24]On 13 August 2024 Judge Moore ordered transcripts to be prepared of the hearing on 19, 20, 21, 22, 23 February 2024 as a reasonable adjustment for the Claimant and in the interests of justice given the repeated postponements and a six month gap in between the evidence. 28 August 2024 orders[25]The Claimant’s supplementary witness statement was admitted in evidence to enable the Claimant to address Ms Rockett’s supplementary statement and the admitted documents on 19 and 22 February 2024.[26]The Respondents made an application to admit a report authored by Mr Kapranos which was an internal review of Ms Ali and Mr Rees report. This was refused and reasons were provided in a record of the case management hearing dated 28 August 2024. Further orders[27]On 10 October 2024 the Claimant’s application to record the hearing was refused.[28]On 9 December 2024 the Claimant’s application to admit new documents concerning the first Respondent’s probation procedures was refused.
Findings of Fact
[29]We have made the following findings of fact. Where facts were in dispute we have made the findings on the balance of probabilities. We acknowledge this is a very long judgment. There were multiple complaints against two Respondents with a significant amount of evidence contained in documents and this has resulted in a very lengthy judgment. Application and health declarations pre employment[30]In the summer of 2018 the Claimant applied to the first Respondent for the role of Criminal Investigator within the Fraud Investigation Service (“FIS”). The responsibilities of the role involved gathering evidence, preparing cases for court, attending court to give evidence as well as obtaining orders and warrants and carrying out arrest searches and interviews under caution. Staff joining FIS as a Criminal Investigator were required to complete a 12 month training assessment period (“TAP”). During this period the individual would be mentored by a Practical Training Officer (“PTO”). The job application information provided that the individual would be continuously assessed to the suitability to carry out the investigation duties and failure at any stage would result in removal from investigative duties and the consequent allowances. At any time during the TAP the decision could be made on the continuing suitability for the role. It provided that if the individual was not assessed as suitable at that point or at any time to continue in the probation period they would be returned to an alternative post or withdrawn from training.[31]At the time of the Claimant’s application in 2018 he was employed as a Prison Officer within HM Prison and Probation Service. He had been in this role since 2015.[32]In the Claimant’s application form, in answer to the question whether he thought he met the criteria for a guaranteed interview scheme which was linked to him having a disability defined by the Equality Act, he answered no and also that he did not require reasonable adjustments during the selection stage. The reason was at that time he did not consider himself to be a disabled person as 12 months had not elapsed between an incident that had led to a period of depression (see below) and the time of completing the form.[33]As part of the recruitment service, the Claimant was required to complete a health declaration. In the first section the Claimant answered no to the question “do you have any condition which might affect your ability to work or attend work” but went on to declare he had taken medication in the last 5 years. Under section 3(b), which asked whether he had had warning or advice regarding sickness record from any current or previous employer within the last 5 years he stated as follows: “in a short period of time I ruptured my right ulna collateral ligament during a restraint. I later received a deep puncture wound to my right forearm causing neuropraxia this was during a restraint. I then broke my scaphoid during a later restraint. I am still in the process of gaining sick leave excusal for these, but until these are complete my record indicates a number of sick days and a warning for them this will be rescinded once completed. I am back to full health and no lasting issues.”[34]Under Section 8, which asked have you ever had depression or stress related illness, the Claimant said yes and stated the following “13 April 2018 to 15 May 2018. I was attacked at work and bitten and also received a puncture wound to my forearm that left me without feeling and limited mobility in my hand. The person that attacked me had Hep B and HIV I got a quantity of his blood in my wound. I had little in the way of support so went to the doctor who stated that I had anxiety as a result of the attack. I was prescribed Citalopram and completed the minimal period required. I no longer take this medication.”[35]As a result of that declaration the Claimant had a meeting with Occupational Health on 14 January 2019. A document was completed by the Occupational Health provider; “Fitness Certificate for New Role”. The clinician certified the Claimant fit for the new role having been told by the Claimant at the appointment that he declared he had lingering issues with his mental health and that he was managing the situation holistically by socialising spending time with his family and attending the gym every day.[36]The bundle did not contain the Claimant’s medical records. We had sight of his impact statement. This confirmed and we accepted the Claimant’s account that he had been significantly impacted by the prisoner attack enduring months of uncertainty after the incident as to whether he would develop HIV or hepatitis. His GP noted he had developed PTSD symptoms, depression and anxiety and had a breakdown which required treatment by Citalopram. He subsequently received help from the Well Being Service who guided the Claimant through a more long term treatment of his mental health through a more holistic approach such as exercise, eating a healthy diet and socialising with friends and family. This led to him coming off the Citalopram under supervision from his GP.[37]The Claimant’s mental health history was not communicated to his managers. We do not know what the first Respondent’s policy or practice was about this other than it was later observed by a HR professional it should have been. Terms and Conditions of Employment[38]In a letter dated 26 March 2019 the Claimant was offered the role of Criminal Investigator/Officer. Enclosed with the offer letter was Terms of Employment setting out the main terms and conditions and referencing the policies on which the employment was based. The employment was subject to a probation period of 12 months starting from the day that he took up duty.[39]Under “Performance, attendance and skills” it stated: You are required to take part in HMRC’s Performance Management system. 15.2 Maintaining an acceptable standard of performance and attendance is a requirement for your continuing employment. You will be given support and encouragement to help you achieve and maintain the required standards for the job. 15.3 If, despite best efforts at support and encouragement, you are unable to meet the required standard of performance and/or attendance, your manager will take action under HMRC’s procedures for managing poor performance/and or managing poor attendance which may result in downgrading or dismissal. 15.4 The managing poor performance and attendance procedures apply to everyone in HMRC.[40]The Claimant commenced his employment on 8 April 2019. On 16 April 2019 there was another assessment from the Occupational Health Department. Under a section described as presenting symptoms/current problems it stated as follows: a. Mental health – anxiety after assault – March 2018 – dealing with an offender; was restraining him – stabbed him in the arm and bit him; exposed to HepB and HIV had to go through testing returned as negative resulted in anxiety was off work due to stab wound – due to nerve damage – settled no ongoing issues – full use of both arms: Can carry lift. Relevant policies[41]The Performance and Development Policy provided: If a dip in performance has been identified and help and support has been put in place but performance still remains below expectations for the role, for a sustained period, then Managing Poor Performance procedures must be followed. The poor performance procedures apply to everyone in HMRC with the exception of probationers. The procedure for probationers is in the Probation guidance. Please refer to the Managing Poor Performance guidance for more information.[42]Under “Fairness” the policy states: Some employees may have health issues or disabilities which may impact on their ability to carry out certain tasks. Workplace adjustments need to be considered that remove barriers - for example, a deaf colleague may use British Sign Language so an interpreter could be needed to make meetings accessible. If an employee has had a significant amount of absence (that is, sick absence, maternity leave, etc), then goals should be jointly reviewed and discussed upon return from work. Upholding Standards of Conduct[43]This is the first Respondent’s disciplinary policy. Formal Approach B sets out the role of a Decision Manager as follows: Independent consideration is an important part of ensuring our standards of conduct are upheld and that potential breaches of conduct are considered fairly. A Decision Manager will be appointed from the HMRC Decision Manager pool and will be responsible for ensuring this procedure is followed and that appropriate action is taken. The Decision Manager will: -decide the scope and timescale for any necessary information gathering or investigation, working with Expert Advice Service if needed; -arrange an independent investigator to gather the information; ensure the investigation progresses quickly and is reasonable and proportionate, addressing the potential breaches identified; -keep those involved informed of progress. Expert Advice Service will advise on the appropriate procedure depending on the situation. In gross misconduct cases Internal Governance will usually undertake the investigation and an Expert Advice Service colleague will support the Decision Manager and Investigator. The investigation will be reasonable, proportionate and fair. The scope and timing of the investigation will depend on the seriousness and complexity of the potential breach of standards and should be completed in a timely fashion to support swift resolution and to minimise the impact on those involved. The aim will be to quickly establish the key facts and give those involved the opportunity to explain what happened. Function of Criminal Investigation Team[44]The Claimant was in a role where he worked towards becoming an authorised officer. This means that once qualified, the officers are authorised to use powers granted by the Police and Criminal Evidence Act (PACE) and undertake relevant law enforcement duties in the course of their employment. The role carries significant responsibility requiring the individual to appear in Court and make and be held accountable for decisions and activities within the Criminal Justice System. Only those appropriately trained and who pass their training can become authorised officers. The criminal investigation training programme is deemed to be a suitable standard to meet the PACE legal obligations and is accredited appropriately. The training programme is as follows: Induction 1 to 2 weeks, guided learning units 4 weeks, 4 stages of classroom based courses for 6 to 7 weeks and then 12 months on the job training. The on the job training is the training period referenced as the TAP. The trainees are required to gather evidence and it is recorded in a practical training workbook (“PTW”). There are 16 units within the PTW and each unit details the assessment requirements the training must meet to achieve the standards. There are also a number of roles and responsibilities of the trainee in the PTW which include the trainee committing to their own development by demonstrating appropriate attitudes and behaviours in the behaviours matrix and seeking out their own opportunities to gather evidence. Evidence was gathered in various forms including trainee assessment forms (“TAFS”) where another experienced officer will observe the trainee and provide feedback also product evidence examples of court orders etc. and other forms of evidence which can be discussions quizzes and worksheets. The forms have guidelines to allow students to offer input on feedback. The Claimant’s Practical Training Officer was Ms Barty and this was the first time she had acted as a PTO. We had no evidence about any other student on the programme at the same time of the Claimant except some oral testimony given under cross examination. Ms Rockett told the Tribunal there had been 18 other students across different areas of the county at the time of the Claimant’s training programme. Ms Barty had failed one student who had mental health issues. Ms Walker had failed one student.[45]The TAP evidence was retained in the PTW which was usually kept in the office and used by the Deciding Officer (“the DO”) who was responsible for making the final assessment. The PTW was a normally an electronic workbook accessible electronically. Ms Rockett did not want the Claimant’s PTW to be an electronic document and gave instructions it would need to be in paper format. This led to some difficulties during the pandemic which we will return to below. Requirements of the Training programme TAP failure[46]The bundle contained a flowchart which was not headed but described in the index as “Process overview v2 CFA to deal with TAP failure”. This contained a flowchart which provided in summary as follows: -Regular performance discussions with PTO/line manager - any concerns addressed at earliest possible stage -End of 12 month TAP (or earlier if, if applicable) - has jobholder met standards? -If yes – TAP completed. If No: -External candidate – dismiss due to not meeting conditions of appointment and there is a right to appeal using the probation appeal -Internal (and not a promotion) - *Redeploy jobholder to a role not requiring level 1 training, at current grade, due to not meeting conditions of appointment and -job holder will have the right to grieve against the decision noting the grievance Events during early period of training[47]The Claimant was due to attend training in Scotland with a flight booked from Cardiff to Glasgow on 12 May 2019. He was required to arrive at the airport 30 minutes before his departure which was booked at 12.50. On this date a light aircraft crashed onto the A40 north of Cardiff and resulted in traffic standstill and chaos for a number of hours which meant that the Claimant missed his flight. He was able to book a later flight arriving in at Glasgow later that evening. In 2021 this incident was cited as an example of negative behaviour. In regard to the residential training apart from one exercise the Claimant received the highest grade in every area relating to behaviours. The Claimant scored highly at the end of the training in July 2019 scoring mostly level 1’s which is competent apart from two 2’s and two 3’s which specified that significant further development was needed this was in respect of his performance whilst doing a role play where he was a witness. The trainer regarded the Claimant as becoming argumentative in the witness box and being described as becoming very defensive upon receiving critique and rationalising his actions consistently. The action required was that the Claimant needed to learn how to accept feedback about his performance from experienced officers.[48]Following the completion of the course in the summer of 2019 the Claimant gained his attained authorisation to obtain authorised officer status. He commenced his TAP on 29 July 2019. At this time the Claimant was managing his mental health holistically as outlined above including attending the gym for fitness and mental wellbeing every day.[49]In October 2019, the Claimant was part of a team that was tasked to execute a Bench Warrant for someone who had absconded from Court. Due to the circumstances of that situation with the arrest not going to plan (unrelated to any actions of the Claimant), he was unable to attend Operational Safety Training (“OST”) and Ms Rockett informed the trainer he was unable to attend. Upon his return to office he immediately booked himself on the next available course in early 2020 but was subsequently able to attend sooner due to swapping with anther student. The Claimant was later criticised for the manner in which he booked the training as according to Ms Rockett, the Claimant should have checked with another individual rather than look on the system as to when the next course would be available.[50]This had a knock on effect as on 2 December 2019 the Claimant had been assigned the role of Arresting Officer but he needed the OST training in order to undertake this role. He immediately informed the appropriate person that he was still awaiting the training course as the previous one had been cancelled due to operational demand. In 2021 this incident was cited as an example of negative behaviour. Quarterly Review Meetings, Deciding Officer, PTO and student duties[51]A Deciding Officer (“DO”) was required to undertake quality assurance checks throughout the TAP period. The quality assurance sampling record provided that the Deciding Officer, (who would be responsible for deciding if the individual had passed the training) was required to consider the needs of individual students before deciding what internal quality assessments (“IQA”) checks were required and how frequently they should occur. The mandatory minimum was specified as being quarterly. The DO was also required to ensure the student was being adequately guided and supported by the PTO Assessor and that all records were up to date.[52]The PTO Assessor duties were in summary to support and guide the student in all aspects of completing the TAP including in conjunction with their line manager provision of opportunity to gather sufficient evidence to pass the units, review quality of TAFS, take remedial action where necessary and review performance including attitude and behaviours with the line manager as appropriate. They were also supposed to inform the CFA of any relevant issues affecting the student’s development and / or ability to complete the TAP. This was to be done via professional discussion interviews with proper records kept.[53]The student also has roles and responsibilities including committing to their development by demonstrating appropriate attitudes and behaviours, seek out opportunities to gather evidence of competence, keep their PTW up to date and ensure evidence is properly referenced.[54]In the months before the pandemic, Ms Barty conducted monthly one to one meetings with the Claimant and tended to follow these up with emails about what he had to do next with his PTW.[55]Ms Rockett conducted the following IQA checks in respect of the Claimant, 10 December 2019 (this was described as a combined quarterly 1 and 2 review), 19 February 2020 (this was described as a Q3 review) and 27 October 2020 Q3 and Q4.[56]Ms Rockett’s review of the Claimant’s PTW in February 2020 noted numerous areas of concern that there was insufficient evidence to demonstrate he was moving towards successfully passing his TAP. In respect of concerns regarding his attitude and behaviours the examples given were the failure to maintain OST training (see above) as well as having been late to a course and attending by train rather than car share with colleagues. The Claimant had been spoken to about this by his then line manager Mr Waldin.[57]No units were signed off at this point. Following this Ms Barty met with the Claimant on 5 March 2020 and agreed follow up action points. Events from March 2020[58]In March 2020 the United Kingdom entered into the first lockdown due to the COVID-19 pandemic. The Claimant’s usual support mechanisms for managing his mental health were curtailed and in April 2020 a close friend committed suicide.[59]The one to one meetings with Ms Barty were suspended. On 14 April 2020 Ms Barty informed the Claimant that each TAF student would have extension to their training period based on individual merits. Opportunities for students to gain the required experience and evidence to complete their TAP training were severely if not completely curtailed. October 2020 review of the TAP[60]As outlined above this was the third review of the Claimant’s PTW conducted by Ms Rockett as the DO. She concluded there were still gaps in evidence for the units. On 2 November 2020 she emailed her review to the Claimant, Ms Barty and Mr Waldin and arranged for the Claimant to be assigned to operational tasks to enable him to gather evidence. It was stressed to the Claimant that he needed to drive his TAP progress with support from Ms Barty and Mr Waldin. Further advice was provided thereafter on what he needed to do in advance of a final review planned for 12 January 2021.[61]On 2 November 2020 Ms Barty emailed the Claimant to set out next steps and sent chasing emails over this period as the Claimant was not responsive. One to one meetings took place in November and December 2020. On 5 January 2021 Ms Rockett emailed the Claimant to request documents to conduct the final assessment on his PTW.[62]In December 2020 Mr Barnett assessed a search warrant application prepared by the Claimant. He advised that it was factually correct and contained everything it should, acknowledging he had worked hard but he believed it was too long winded. Mr Barnett amended sections that he said were too long and says the Claimant took the feedback positivity. The Claimant was marked as competent in all areas. Ms Rockett subsequently criticised the application describing it as “scant to say the least” and instructed him to rewrite the application incorporating far more detail.[63]The January 2021 review did not take place. The team had been informed that due to rising Covid cases only operational deployments for high priority critical work would be authorised. Ms Rockett emailed the Claimant and Ms Barty advising she would not be attending the office to review the PTW. In that email Ms Rockett stated, “I appreciate you will have been working to get your folder up to date and are keen to get your PTW finalised, but as we are under no pressure to get students signed off, I don’t feel I can justify my attendance”.[64]On 12 February 2021 Ms Barty raised concerns with Mr Barnett and Ms Rockett about the Claimant not completing his folder or the tasks that she was asking him to undertake. She told them both that the Claimant had asked for his relativity work to be reallocated but as he needed to do this for the disclosure unit she had said it had to be reassigned back to him. On 17 February 2021 Mr Barnett emailed HR about the TAP period and asked for advice about what an acceptable timeframe would be for extending the TAP period.[65]The HR advisor advised Mr Barnett as follows: I wouldn’t worry about the sign off time at the moment; there is a blanket extension to all and we will be in touch once lockdown comes to some sort of end to discuss when the new dates are. I expect there will be enough time to fully assess the trainee once we have agreed new deadlines. What happened to date I feel is good evidence to show how they haven’t met the standard and as long as they are informed of this and told where they need to work on you can continue providing these tasks. Once we get some freedom more exposure to live tasks will either improve or underpin the lack of standards putting you in a position to make a well informed and backed up decision.”[66]Ms Barty drafted a review of the Claimant on 14 March 2021 which was sent to Mr Barnett. In summary she concluded that the Claimant was struggling with time management, meeting deadlines and not being pro active enough and she recommended he needed a development plan where he could work alongside his manager with a list of outstanding tasks with timescales. On 16 March 2021 Mr Barnett completed a review of the Claimant’s TAP (TAF and TAP appear to be used interchangeably by the first Respondent). He emailed the Claimant Ms Barty’s 14 March review and stated: It seems that your operational deployments, apart from some of the issues surrounding arrests, have been mainly successful and you have received good feedback. It appears that you’re letting yourself down on the day to day duties of an investigator. This largely relates to time and task management, being proactive, especially during lockdown, and taking responsibility for your development and acting on all forms of feedback.2[67]Mr Barnett assigned the Claimant three tasks to complete with a deadline of 30 June 2021. These were to do another arrest ( and obtain 1’s), obtain additional witness statements and do “some work” surrounding case management and disclosure. He said the Claimant should see the additional three months as a bonus and if he was conducting a final review he would have reservations in passing him. Mr Barnett did not tell the Claimant that 30 June 2021 was a deadline for ensuring he had his PTW completed nor did he say that there would be a final review at that point. We find that the Claimant would not have understood from the content of that 2 These were the behaviours Mr Barnett said were letting the Claimant down. email that 30 June 2021 was a critical deadline which could result in failure thereafter with no further input.[68]Mr Barnett had not told the Claimant he was undertaking this review and it is evident from the Claimant’s response that he was surprised by the content. He sought to rebut a number of matters with a lengthy reply on the same day. It was clear from his reply he felt in a dilemma that if he challenged Mr Barnett’s comments he was concerned he would be perpetuating the claim he was not accepting responsibility for his actions and blaming others. Nonetheless he sent a long reply challenging some of the issues. He noted he had handed in his folder in January 2021 for assessment but had not received any feedback until Mr Barnett’s email of 16 March 2021 and asked why he had not received feedback prior to this. The Claimant was later criticised as another example of not accepting feedback.[69]He also told Mr Barnett that he had accessed relativity and started his allocation but with other work it had fallen down his list and then he found he had been locked out and had requested a new password from Andrea Bass. This had not been forthcoming as Ms Bass had at that time been on long term sick and accepted he had not chased this up. Later that day the Claimant emailed Anexys to request a password reset and logged into the system to check his new password was working. Relativity[70]Relativity is an electronic disclosure tool developed by a company called Anexys. Unit 2 of the TAP required the trainee to be competent in the area of disclosure. Due to the pandemic the usual procedures for demonstrating knowledge were curtailed. It was therefore suggested in the summer of 2020 that the Claimant be trained in using Relativity to which the Claimant responded positively to albeit caveating that it would be something he could “pick up and put down” in between other work. The Anexys logs the Respondent applied to admit on 20 February 2024 showed the Claimant first accessed the system on 7 August 2020.[71]On 18 March 2021 the Claimant informed Ms Barty that he had reset his password for relativity and was pencilled in with Ms Bass for a refresher and she was going to get back with a date in the very near future. This was acknowledged by Ms Barty the same day.[72]On 23 March 2021 the Claimant had his refresher training with Ms Bass and as part of this had to log into the Relativity software. Later that day, as evidenced by the first Respondent’s Anexys data he accessed it for 206 minutes completing further entries unaided. Disclosure of mental health issues[73]On 18 March 2021 the Claimant and Mr Barnett had a telephone conversation. Mr Barnett made a note of their discussion. It recorded that that the Claimant did not agree with all the feedback, but he agreed with the development plan. Mr Barnett noted that at the end of the call the Claimant said that he had suffered from mental health problems and he was “close to being diagnosed with PTSD or something similar.” He told Mr Barnett this was difficult for him to discuss and he did not want everyone to know. It is common ground and the Claimant agrees that prior to this date he had not informed anyone in his management team about his mental health issues. Mr Barnett acknowledged that it was an important issue and that management needed to be aware of it and outlined details of support that could be offered. He also acknowledged that the Claimant’s mental health issues may be a cause for his office work taking a backward step. The Claimant agreed to Mr Barnett informing the management chain of the situation.[74]On 19 March 2022 they spoke again and Mr Barnett arranged for the Claimant to have a change in Line Manager to Mr Timmins as his previous Line Manager Mr Waldin had been involved in a demanding operational matter and had only held one meeting with the Claimant since the Claimant started his employment. The Claimant informed Mr Barnett about what had happened to him when he was bitten by the prisoner and had a period of time where he did not know whether he was going to be left with lasting injuries and other personal matters. The Claimant told Mr Barnett that he had had a breakdown before joining the Respondent and had declared this upon joining.[75]Mr Barnett subsequently emailed Mr Timmins, Mr Waldin and Ms Rockett on 19 March 2021 and told them he had spoken to the Claimant who had “opened up a little bit about his issues”. It was not clear from this email whether Mr Barnett fully disclosed the Claimant’s mental health issues at that stage. Meeting on 23 March 2021[76]Thereafter Mr Timmins became the Claimant’s Line Manager and met with him on 23 March 2021. The Claimant told Mr Timmins about the assault and mentioned disciplinary action which he felt had affected his career progression. He said he had suffered with low mood since then and other personal matters as well as the pandemic and restrictions were hindering his recovery. He said he had sought help from his GP and been prescribed medication and was on a waiting list for therapy. Mr Timmins signposted the Claimant to various avenues of support within the first Respondent.[77]The next steps agreed were that the Claimant would complete a wellness plan and Ms Barty to put together a framework to assist the Claimant in needing to know what he needed to do to pass his TAP including what needs to be done, how it will be achieved and by when. This was described as a “collaborative effort between Richard Vanessa and myself” and would include pointers on additional training where required and not rely solely on completion of TAF’s. Mr Timmins said he would be involved in meetings to discuss progress at key milestones.[78]The Claimant completed the wellness plan and sent it to Mr Timmins on 26 March 2021. He described situations that could affect his mental health as follows: Nothing specific. The best way to describe it, is an almost full coffee cup. There is room to add a little bit extra [stress], but too much and it overflows. This can be several consecutive small issues or a single large issue. Day to day stressful issues are not a problem, more the accumulation of them.[79]He repeated what he had told Mr Barnett about wanting to keep his mental health issues private: “I am a proud person and do not seek special treatment. I get embarrassed and awkward when I'm in such positions. I am also a private person and being treated or given support that is different from others, would draw attention to my situation. “Normality” is probably the best course of action”[80]On 29 March 2021 the Claimant was assessed as competent in disclosure by Claire Webb.[81]On 30 March 2021 Ms Barty sent the Claimant an email advising she would bring his folder to the office the following day and had added post it notes where gaps were in each unit. This shows that the Claimant had not had access to his folder since January 2021 it being in Ms Barty’s possession since that time. Meeting on 31 March 2021[82]On 31 March 2021 the Claimant and Mr Timmins met again to discuss the wellness plan. The Claimant told Mr Timmins he believed there was an indirect link or impact on his work due to the medication he was taking which interrupted sleep at times and left him feeling tired which may have led to mistakes with written work. It was agreed he did not need any specific support from manager or restrictions or adaptations to duties save last minute leave helped him manage his condition and take a break when needed. Mr Timmins concluded that as the Claimant was medicated he would refer him to Occupational health. Under “Changes in activity” the Claimant said he had been “dipping in and out admin jobs and combining these with the heavier element of the role to be beneficial, especially highlighting relativity.” The Claimant agreed to the contents of the notes by email dated 10 April 2021. He told Mr Timmins in the same email he had been prescribed 100mg of Sertraline, had had 4 visits to the doctor and been referred for an assessment with the GP stating symptoms were similar to PTSD.[83]On 8 April 2021 Mr Barnett sent a very critical email to Mr Waldin copied to Ms Barty that the Claimant had not adhered to a deadline for a warrant and caused him to be checking it late into the evening. Mr Waldin told Mr Barnett the following day this had been Mr Waldin’s fault the warrant was late as he wanted to check it before it was sent and the Claimant could not have foreseen a change in intel. The Claimant subsequently cancelled some leave in order to be able to complete the warrant. Mr Barnett was asked about this when giving evidence. He maintained that the delay was the Claimant’s fault as he had had months previously to have the warrant completed.[84]On 13 April 2021 Ms Barty told the Claimant she would aim to meet him once a week for half an hour to discuss the outstanding tasks and identify gaps in order for him to complete his training. Occupational health report[85]The report was dated 21 April 2021. This provided as follows: Current position. “Mr Wickham told me he began to struggle with his mental health approximately 3 years ago after being seriously attacked at work in his previous role as a prison officer. He explained he was being treated for anxiety and depression at present however his GP suggested he may also have symptoms of PTSD. He reported a recent decline in his mood since the national lockdown which has affected the opportunities available to him as part of his apprenticeship programme within his current role and required him to work from home which he has been isolating at times. He described feeling low in mood and constantly fatigued which he attributed to sleeping difficulties, this has a knock-on effect on his concentration and he explained that he is often forgetful or easily distracted these symptoms have an impact on his ability to efficiently manage his workload at times. Mr Wickham sought the advice of his GP and is taking appropriately prescribed medication with some effect he is continuing to be reviewed regularly by his GP.[86]Under management questions the following question had been posed; “is Richard’s role having an adverse impact on his mental health if so can this be alleviated by any adjustment to his current role or duties?”. The advice was as follows “Mr Wickham told me he is worried about his performance at work and finds he is very self-critical which affects his overall mental wellbeing. A reduced workload where possible in the short term may be beneficial in order to allow him some breathing space to focus on fewer tasks and focus on completing these to a high standard this may help to rebuild confidence within the role. In response to the question whether his condition adversely affected his performance between July 2019 and the date he was medicated the advisor stated as follows, “Mr Wickham’s condition has undoubtedly (our emphasis) had an impact on his performance however it is not really possible to quantify this”. In response to the question about side effects of medication Mr Timmins was informed that side effects of the medication can include fatigue, brain fog, reduced concentration and difficulty sleeping and were likely to have had an impact on the performance at work in the short term but side effects tend to resolve or improve after the first 8 weeks.[87]The recommendations of the clinician were: a) The completion of a stress management plan to look at aspects of the role or working environment that have an impact on the overall wellbeing and look at support available to negate them; b) A reduced workload where possible in the short term which the clinician felt may be beneficial in order to allow the Claimant some breathing space to focus on fewer tasks and focus on completing these to a high standard which may help the Claimant rebuild confidence within the role. It was suggested that undertaking approximately 75 – 80% of his usual workload would be beneficial.[88]The first Respondent was advised that his current symptoms were likely to meet the requirements of the disability provision in the Equality Act due to the longevity of the condition and the requirement for medication to manage his symptoms.[89]The adjustments Mr Timmins had agreed with the Claimant at the meeting on 31 March 2021 were prior to the receipt of the Occupational Health Report. 7 May 2021 meeting[90]Following the receipt of the Occupational Health Report on 21 April 2021 a meeting was arranged on 7 May 2021 between Mr Timmins and the claimant. The meeting notes record as follows: In summary, in the view of the OH advisor Richard is currently fit for work with the adjustments in place that we agreed in our previous meeting. Side effects relating to Richards medication (difficulty sleeping and an associated lack of concentration) are likely to have had some effect on Richards recent performance – however these should ease within 8 weeks of commencing the course of medication and we are now at that point. Richard is concerned about his level of performance, and he is self-critical in nature. In addition, Richard states that he does have concern over what his peers think of him (and his performance) and this has some negative effect on his mental health and wellbeing. There is also likely to have been some impact on Richards performance prior to him commencing his course of medication, attributable to the condition itself. This is unquantifiable. In the view of OH, a reduced workload allowing Richard to focus on quality over quantity (suggested reduction to 75-80%) would help Richard become more confident in the role.[91]Mr Timmins acknowledged that the team had undergone quite an intensive operational period and the demand on the team would “naturally begin to recede lightly”. Mr Timmins considered that as the Claimant had autonomy and could agree longer deadlines this would “naturally achieve a manageable workload without the need for formal action” and that he would keep this under constant review. The note referenced a deadline for completion of the PTW as 31st3 June 2021 as “realistic” and he could not ignore that “others have completed it within less than the usual one year time frame” but he also acknowledged that it was right that some allowance was made in recognition to the extra well being challenges the Claimant had faced and said he would alert the DO to this. It was agreed that a meeting would be arranged in early June to review wellbeing position, check adjustments in place remain appropriate and progress towards PTW. The Claimant gave Mr Timmins permission to share the report with Mr Barnett and Ms Rockett. Therefore at this stage the Claimant had been informed that 31 (sic) June 2021 was a deadline for completion of his PTW.[92]Following this meeting none of the actions that had been agreed in the previous meetings were implemented. The stress management plan was not completed. The tasks set by Mr Barnett (see above) were not adjusted. Ms Barty and Mr Timmins did not put together the framework that had been agreed on 23 March 2021. The weekly half hour meetings Ms Barty had said would take place also did not take place although there were one or two meetings planned later in June 2021 (see below). Mr Timmins’ evidence was that he believed he had implemented the adjustments and a reduction in workload was not necessary as the Claimant did not have a great deal on at the time, there were not loads of tasks that needed to be done immediately and it was possible with little difficulty to achieve the appropriate balance by proactive planning and making appropriate arrangements on deadlines. However this did not match what was said on 7 May 2021 that the team had undergone an intense period of operational activity.[93]Mr Timmins also believed that the Claimant could have asked for any time or critical tasks to be reassigned and did not do so. The problem with this approach was that Mr Timmins had been told by Occupational Health that the Claimant needed help to manage his workload.[94]On 11 May 2021 Mr Barnett, Ms Rockett, Mr Waldin, Mr Timmins and Ms Barty met to discuss concerns about the Claimant’s TAP. Ms Rockett prepared a note of the discussion on 13 May 2021. Concerns were noted, there were key areas where the Claimant had not shown consistency and there were units outstanding and that he was resistant to accepting negative 3 (sic) feedback. The Claimant was criticised for his response to Mr Barnett on 18 March 2021 and that they were getting close to a 2 year period of TAP. It was acknowledged that COVID had caused disruption to all trainees. It was acknowledged that it was specifically not unfair to draw comparison with other students who had successfully completed their TAP within the same period.[95]It was also stated that if the TAP was allowed to “drift endlessly” this would give the Claimant an “unfair advantage” in respect of the amount of time he had been given when compared to others who had failed and he had only 4 months left of the 12 month TAP training period when the first lockdown happened. It was acknowledged there was still no end date for TAP extensions.[96]The note states that the Claimant’s “excuses for why tasks haven’t been completed did not tally”. An example was given of his inability to complete disclosure work using relativity work was as he was on a drive to focus his PTW folder. This succinctly demonstrates that at that time none of the managers believed the Claimant was undertaking relativity work. There were a number of references to the Claimant’s time needed to complete tasks, lack of time management and commitment to meet deadlines and lack of taking advice on board.[97]Ms Rockett said she did not want to give the Claimant false hope and it would be good to have a conversation about alternative roles. She acknowledged he had done some good work which “pointed to a suitability and investigation services role in the hub” and talked about “getting the ball rolling” if the Claimant was interested in pursuing that.[98]There was no mention or acknowledgement anywhere in the note that the managers had considered whether the Claimant’s mental health issues might be affecting his performance given they were on notice as such from the occupational health report. The Claimant had consented to the occupational health report being shared with Ms Rockett and Mr Barnett. Ms Rockett told the Tribunal she had read the report but in her opinion the report did not provide any information on why the Claimant failed to follow basic instructions, seek guidance or accept and act on feedback or why “he was incapable of achieving what was required of him.”[99]On 13 May 2021 Mr Timmins sent an email to Ms Rockett attaching his meeting notes from 23 and 31 March 2021 with the Claimant. He informed Ms Rockett that the Claimant indicated wellbeing issues as some mitigation for his performance. He stated that in his view whilst he did accept the concerns and gave them credit he still felt the additional time the Claimant had to complete his PTW restored him to a position where he had had an equal opportunity to complete his TAP.[100]Ms Rockett replied later that day and confirmed she had not seen the management notes before. She stated: “I don’t agree Richard hasn’t had sufficient time to complete his PTW I will of course take his medical situation into account however having refreshed my memory on this final report from training I was reminded that the issues we have discussed this week in relation to non-acceptance of feedback was an area of concern highlighted by the trainers and is still an area that Richard still fails to grasp.”[101]Mr Timmins and made reference to “the behaviours.” He agreed to discuss further with Ms Barty and then sit down with the Claimant. There was no record of any further meeting with the Claimant until 27 July 2021.[102]The Claimant’s mental health further declined in June 2021 and he asked for short notice leave of one week. On 9 June 2021 Mr Timmins refused unless his PTW folder was up to date but subsequently agreed a day to be taken for the Queen’s birthday. The ability to take last minute leave where the Claimant was feeling overwhelmed had been part of the agreed reasonable adjustments subject to the needs of the business.[103]A meeting with Ms Barty on 10 June 2021 was cancelled at the last minute with the Claimant stating he was unwell.[104]On 17 June 2021 Mr Timmins emailed Mr Barnett a draft PDC agenda which was for discussion with the Claimant at his next meeting with Mr Timmins. It stated that the planned PDC meeting for 11 June 2021 had been cancelled as the Claimant was unable to attend the office due to illness. Mr Timmins went through progress against the TAP units and concluded: Whilst unique, others have faced challenges brought on by CV-19 and impact on opportunities but are significantly further ahead and In a significantly shorter period of time. Since meeting with Richard on 31/03, I have not seen a substantive improvement in performance and in this period it has receded further. It is for me as his line manager to consider when performance standards reach an unacceptable and unsustainable level. They are now at that level and must improve forthwith. For context, this is the point I would be considering action short of formal poor performance and instigating a PIP. However, this, In practice, is being carried out by his PTW and, to ensure no actions come as a surprise, should this not reflect a satisfactory performance standard, I may consider whether it is appropriate to instigate, either a PIP or HMRC's formal poor performance processes.[105]In relation to relativity Mr Timmins said under the adjustment section “relativity reported to break up day” and later stated: Relativity. Richard advised he was completing relativity work at our meeting of 31/03/21. I am advised that his initial batch was reallocated after completing only 80, owing to capacity. In his later batch he has completed only 23?[106]On 21 June 2021 the Claimant was signed off for 9 days with depression and then a further 21 days on 30 June 2021.[107]On 23 June 2021 there was an email to Ms Rockett and Mr Timmins from Ms Barty enclosing a final TAP report. She referenced the three tasks that had been set by Mr Barnett in March : a) arrest and custody – Ms Barty said the Claimant was “scored competent in all areas”; b) writing witness statements – Ms Barty said the Claimant had been marked as competent in this task but the deadline had been 30 April 2021 and to date the statement had not been returned to the case manager with the witness due to give evidence on 1 July 2021. c) presenting information / orders to court – Ms Barty said the Claimant needed significant development for making court applications and managing own workload.[108]In relation to Relativity Ms Barty stated as follows: An example of this is the relativity work that had been allocated to team members. Richard did not complete his allocation due to issues accessing the system and emailed the DO who was on long term sick. 4 It would have been more beneficial if he had spoken to his line manager or the case manager explaining these difficulties rather than sit on this piece of work for a significant amount of time. The Relativity task is one where crucial evidence would have been provided for completion of Unit one ‐Case Management and Unit 2 ‐ Disclosure. I am led to believe that Richard is now completing the Relativity work however, he is not meeting the required standard for completion.[109]Ms Barty told the Tribunal that when she undertook the 14 March review she was unaware of the Claimant’s mental health issues but by the time of the 23 June 2021 review she was aware. She also told the Tribunal that she did not take into account his mental health issues as she had only heard about them a few months before. It is unclear who told Ms Barty and when. The Claimant put to Ms Barty his main symptoms of depression could have corresponded with the criticisms made in the 23 June review such as lack of enthusiasm, no sense of urgency, difficulties prioritizing tasks and she agreed saying the role was very fast paced and decisions needed to be 4 See above this was in reference to Ms Bass being off sick when the Claimant emailed her to request his password be reset made quickly. She thought the Claimant would be more suited to an analytical role as his skill set would be better suited there. Meeting on 27 July 2021[110]On 27 July 2021 Mr Timmins met with the Claimant upon his return from sick leave on or around 21 July 2021. A review of the reasonable adjustments in place was recorded. The draft PDC that had been emailed to Mr Barnett on 17 June 2021 was updated to reflect the discussions. Under the adjustment section the comment on relativity had expanded to say: “Richard has used relativity to break up the day and some of the ‘heavier’ tasks which has allowed an improved focus overall. Richard still feels this is useful and he should continue to break up the day as necessary – in line with business priorities”[111]Mr Timmins criticised the Claimant regarding a witness statement he had been tasked with uplifting in April 2021. It was recorded this was still not returned as signed and the witness had complained the Claimant had not got back to him. It was an important statement due for a trial. The Claimant had sent the first draft witness statement in April 2021. There was then an unexplained gap to June 2021 where we can see the Claimant sent further drafts and then a final draft for signature on 17 June 2021. This was not a case for which the Claimant had conduct but he was obtaining the statement for his PTW. The Claimant says he repeatedly referred the witness back to the case manager. On 21 June 2021 the Claimant went on sick leave and the witness left a message for the Claimant on 25 June 2021 then complained when the Claimant did not get back to him.[112]The other relevant comments were as follows: “Since Richard moved to my line management span in late March 2021, he has been involved in disclosure work through the eDiscovery platform and relativity, in support of He was involved in this work prior to his move to me. He advises (and we agreed) that he would also dip in and out of this, following completion of his wellness plan, to break up the ‘heavier’ work. I have since been advised that of the first batch, he completed 80 and the second 23, before they were reallocated owing to capacity/completion issues. For context, other Officers can clear this level of work within a couple of days. Richard explains that he has had password re‐set issues and required additional training, which set him back. I have spoken to the DO about this, and I am content these issues do not explain or mitigate against the low workrate. This is below what I was led to believe was being completed ad falls far short of what is expected. Richard will look at his workload, speak to those who oversee his work and timetable this appropriately.”[113]At the end of this meeting, the Claimant was told by Mr Timmins that if he did not improve, he would consider whether it was appropriate to instigate either a PIP or HMRC poor performance processes.[114]There remains unexplained gap in the evidence from the Respondents as to why a PIP or the first Respondent’s poor performance process was not implemented. It clearly applied to the Claimant’s situation (he had passed his probation with no issues) as per the policy and Mr Timmins’ said at the meeting this would be the next step. 3 August 2021 review[115]On 3 August 2021 Ms Rockett completed a final TAP report for the Claimant and concluded he had not met the required standards to pass and so had failed the Criminal justice training programme. There was no mention of the Claimant’s recent absence form work due to depression and there had been no referral back to occupational health. She sent this to Mr Barnett who commented “No problem. Both warrants5 were late and caused timing issues. He cant balance a workload, doesn’t complete work on time and then finds excuses when he’s pulled up on it and / or errors are found”.[116]On 3 August 2021 at 9.42am Ms Rockett sent the Claimant an email stating she had sent him an invitation the previous Wednesday to attend a Teams meeting to discuss his final PTW review that afternoon and she had not had a response. The Claimant replied that he had accepted it and the meeting took place at 3.00pm. The meeting took place on Teams. The Claimant was not given the right to be accompanied and he was not prewarned that the outcome of the meeting would be that he had failed his TAP and would be therefore not continuing in his role.[117]We saw a note of the meeting in the bundle drafted by Ms Rockett on 4 August 2021. After introductions Ms Rockett informed the Claimant he had not reached the required standard and had failed his TAP. In response the Claimant stated he had not been firing on all cylinders and the issues had spanned from his time in the Prison Service so he had been in this state of mind since joining HMRC and throughout the training period. Ms Rockett’s note stated that she expressed surprise as she had not been aware of any issues early on but was aware he had been on sick leave recently. This does not accord with the earlier email in May 2021 in which Ms Rockett indicated she would take his medical situation into account nor does it accord with the advice in the Occupational health report which Mr Rockett said she had read. There was no evidence that Ms Rockett had 5 One of the warrants was the one Mr Waldin had told Mr Barnett it was his fault it was late see paragraph 83. taken the Claimant’s mental health into account at any stage whilst reaching the decision to fail his TAP.[118]The note then records that the Claimant became “very irate” and started to raise his voice and use foul language. He said he had given everything to the job and that as soon as he voiced his mental health issues he was considered a problem and that this (failing his TAP) was being used as an excuse to get rid of him. Ms Rockett told the Claimant his mental health issues and his recent period of sick leave had not influenced the decision in any way and had “only been raised recently however feedback on issues with his performance had been flagged earlier on in training.” The note records that after some discussion that the Claimant was “becoming more aggressive” swearing and raising of voice and Ms Rockett had to ask him to stop swearing and to tone it down so they could continue in a calmer manner The Claimant initially apologised for the bad language but Ms Rockett recorded that “ his emotions clearly had the better of him and the bad language continued throughout the meeting.” The note then says that the Claimant made reference to feelings of contemplating suicide and he struggled to get out of bed and function every day. Ms Rockett in response commented “whether that was the right time for him to have commenced on a new career path knowing the pressures it would bring and scrutiny of his performance would be under during training.” She asked the Claimant if he had ever raised his mental health issues with anyone at all within his management structure or with colleagues and the Claimant said he was a proud man and found it difficult to voice issues, his line manager treated it as a joke to which Ms Rockett disagreed. The Claimant told Ms Rockett that when on medication he was unable to focus and had a foggy head. Ms Rockett asked if any of this had been raised prior to deployment and he confirmed that it had not and she expressed concern that the Claimant would put himself, colleagues and members of the public at risk if he was unable to function properly in an important role. The note ended with Ms Rockett informing the Claimant the next step would be to support him in finding an alternative role within HMRC as there was a lot to have been discussed and the Claimant was clearly upset she recommended he speak to his line manager when he felt better so the next steps could be dealt with more calmly.[119]So as far as Ms Rockett’s note confirms on 4 August 2021 at that stage she was seeking to redeploy the Claimant. Thereafter Ms Rockett did not take any steps to check on the Claimant’s welfare other than to ask Mr Timmins to undertake a welfare call. Mr Timmins sent the Claimant an email later that day with the number for PAM Assist which is a counselling helpline and said he was here if he was needed.[120]The Claimant alleges that Ms Rockett told him at this meeting he had been “terrible” throughout his training. Ms Rockett’s note of the meeting says she told him he had not reached the required standards but do not mention the words “terrible” and the Claimant subsequently agreed the note apart from a number of amendments. There was no evidence to support the allegation anywhere in the contemporaneous documents either in the Claimant’s subsequent appeal against the failing of the TAP or his grievance. We find that Mr Rockett did not use this terminology. Protected Act[121]Thereafter on 4 August 2021 there were a number of messages sent on Teams from the Claimant to Mr Barnett regarding Ms Rockett’s decision. Mr Barnett contacted the Claimant on the telephone and wrote a note of that call. In the Teams message the Claimant had told Mr Barnett as follows: To be honest, regardless what i say or do, i know that my position at OC is untenable. I have been an outsider from the start. However, I’m not accepting the decision and looking to seek legal advice in the interim. I declared my mental health on entry. I was assessed and deemed fit for this particular role. It is a disability as defined by the Equality Act 2010. I have received 2 "Quarterly" Reviews from my DO and had no input this year from her. I've never had an SPDR since being here. Yet i was failing so badly that I have lost my role? That is not acceptable. however, this is probably just me being argumentative again... I was taken from my training to complete SEISS call centre, and impacted by COVID 19 pandemic. If i was failing so badly, why was i allowed to drift so far without input?[122]Mr Barnett then spoke to the Claimant and relayed what had been said in a note of the call to Ms Rockett and Mr Timmins in an email on 4 August 2021 at 15.58pm. The Claimant had acknowledged he had not been 100% and he had sometimes been operating at 20% but the rest of the effort revolves around getting out of bed in the morning and trying to function. He felt he had put in a large amount of effort but this may not have been reflecting in his work. The Claimant told Mr Barnett he had declared his mental health issues and his breakdown on his initial application and had had an assessment in relation to this as well as a wrist injury and thought it would have been cascaded to management when he joined. Mr Barnett said he believed nothing had been cascaded in relation to this and nobody in management knew about these issues until he broached them with Mr Barnett in March 2021.[123]The Claimant listed his recent mental health assessments and accompanying implications listing consequences of disengagement, time management, attention to detail and it would take him longer to perform tasks. Mr Barnett mentioned training for relativity had been in spring 2020 and everyone on the team was allocated work and that the Claimant had not completed any of it and it was eventually taken off him and passed to another officer. Mr Barnett records that the Claimant tried to mitigate this fact by stating he was not getting out of the work but he had too much responsibility at the time. Mr Barnett told him that this was discussed in March and asked him what he had done on relativity since that date and he answered nothing. Mr Barnett told him this is a prime example of why he had failed [the TAP].[124]The Claimant informed Mr Barnett that his mental health was a disability and he felt his employers were failing him. The note also records that the Claimant had become very angry and was using bad language and shouting yet confirmed Mr Timmins had helped him no end since he had become his manager. Relativity was revisited again and Mr Barnett felt he had plenty of time to undertake the task and the Claimant had not done anything on relativity. Mr Barnett said that Mr Timmins had spoken to the Claimant about this and the Claimant had stated he was doing it in the background. The Claimant denied saying this and said he had never spoken to Mr Timmins about relativity and he had never said he was working on it. He stated that most of the conversations he had had with Mr Timmins had related to his mental health and not his actual work and progress. The following is set out verbatim as it is part of the words relied upon as the protected act of 4 August 2021: “RW said that he felt he has been treated unfairly and that he was going to appeal. He also said that he would go to citizens advice and maybe seek legal advice. RW assured AB that he would not take this ‘lying down’. RW reiterated that his failings during his TAP are due to his disability and FIS were failing him because of this. RW also said that he will speak to HR and OH.[125]Mr Barnett told the Claimant there were options to keep him within HMRC as an officer and he would be supported in the process. The Claimant is then recorded as apologising for bad language and said he had been frustrated. “Digging the Dirt allegations”[126]Following this interaction the following things happened. None of the email interactions between the managers and Ms Rockett expressed any concern about the Claimant’s bad language or any view that there should be disciplinary proceedings. Mr Timmins commented that he had hoped the Claimant might have “settled down” after having slept on it. 4 August 2021[127]At 19.24 Ms Rockett sent the Claimant her final report and summary of the meeting set out above and asked him to check the summary and check if there was anything he wished to add. She told the Claimant that they needed to look at next steps in finding him a new role and he had the right to appeal. On 5 August 2021 Ms Rockett also informed the Criminal Investigation Foundation Training Academy that the Claimant had failed to meet the required standards and asked for guidance on the Claimant’s desire to appeal. She was informed by the CFA that the relevant documents in respect of TAP failure were in a DO only access file along with the process overview to follow. That process overview was in the bundle (see paragraph 46) but the process was not. Ms Rockett’s witness statement says she was surprised to learn of the flowchart contents and was concerned she may have misled him that he would be redeployed. 5 August 2021[128]There was a meeting between Mr Barnett, Ms Rockett, Mr Timmins and Ms Barty. Mr Barnett sent an email later confirming action points. Ms Barty was charged with completing the Claimant’s PTW as the Claimant would be appealing and was asked to contact the Claimant to see if he had any more evidence to include. It must therefore follow that Ms Rockett undertook her review of an incomplete PTW.[129]The email went on to say: “VB & LT ‐ In view of Richards appeal it may be worth Vanessa and Lee making a folder of meeting notes, emails etc. that relate to the issues of failure. A timeline may also assist of issues, missed appointments etc. JR – Form to be sent to CFA today informing them of his failure. LT – Contact HR to establish if RW declared his mental health issues on his original application and if he had a referral made and an assessment. RW claimed all of this yesterday. LT – Contact HR in relation to re‐deployment pool or make tentative enquiries with other CCG/HMRC teams to establish vacant officer posts.[130]It was agreed to put the Claimant on special paid leave from 16 August 2021 (the Claimant was returning from annual leave at that point) although the reasons for this decision were not recorded. There was no reference to removing the Claimant from systems save that Mr Barnett asked if the Claimant could be removed from the NCU list and Centaur (this Tribunal does not know what these are). Something must have been actioned in this regard as there was an email from Service Request System to the Claimant on 6 August 2021 advising he had been removed from certain user roles. 6 August 2021[131]Ms Rockett emailed Mr Barnett and Mr Timmins stating she was not aware that for external candidates continued employment with the first Respondent was dependent on successful completion of their TAP. She referenced the CFA Deciding Officer Flowchart (see above). Ms Rockett had not been aware that by failing the Claimant’s TAP his employment would be terminated if he was an external candidate (and she did not know at the time she failed him of his candidate status). She advised they needed to check the application forms used when the Claimant had applied to determine the position and noted therefore that despite him passing his probation he may have to be dismissed.[132]Also on 6 August 2021 the Claimant made a subject access request (“SAR”).[133]On 9 August 2021 Mr Barnett told Ms Barty to ensure she asked the Claimant if there was any outstanding work as they knew he was going to appeal and it was only fair he should have all the information in the folder. Ms Barty was in physical possession of the PTW folder at that time and replied she was reluctant to ask the Claimant for further information given his current mindset. There was no evidence such a request was made.[134]Between 6 – 9 August 2021 there were numerous internal emails from Mr Barnett and Ms Rockett (who also tasked Ms Noone’s PA) trying to find out whether the Claimant’s joining documents had said he had to pass TAP to remain employed. On 9 August 2021 Ms Rockett was sent a number of personal documents pertaining to the Claimant’s application. Ms Rockett forwarded those documents to Mr Barnett and Mr Timmins and from the content of her covering email she had plainly recognised the potential issue over his status acknowledging that the Claimant’s record is marked as an internal candidate but he had not provided “evidence”. She observed they needed to be sure of his employment status pre joining HMRC as she thought the Claimant might “try to claim he was employed by another government department”: We need to be sure of Richards employment status pre-joining HMRC – I think he was a private security guide in a shop?! We also still could do with sight of his application if he continues to claim he flagged mental health and OH issues.[135]On 10 August 2021 Ms Barty also must have been aware about the enquiries into the Claimant’s career history as she had retrieved an email from the Claimant dated 12 February 2021 where he had outlined his career history and sent it to Ms Rockett. This showed that the Claimant had worked in the prison service at the time he had applied for the role with the first Respondent. Appeal against TAP failure 11 August 2021[136]On 11 August 2021 the Claimant emailed Ms Rockett with an appeal regarding the decision to fail his TAP. This is a lengthy document but in summary the grounds were: a) Ms Rockett had acted outside the FIS handbook process as she should not have acted in both roles as the Deciding Officer (“the DO”) and the Assistant Director (“AD”); b) There had not been the required number of quarterly reviews; c) He had challenged feedback inconsistency and timings rather than having feedback itself; d) The TAP did not have an end date; e) Due to COVID there had not been enough opportunities to gather the required evidence; f) His mental health issues had caused him a disadvantage when compared to peers and he had highlighted to Mr Barnett that he was significantly struggling with his mental health referring to depression anxiety and suspected PTSD. He then listed symptoms of his depression and anxiety; g) The deadline of 30 June 2021 had not been adjusted after the OH report recommendations; and they had stated his condition could meet the criteria of a disability but no allowances had been made; h) He challenged Ms Rockett’s comments under “Integrity” relaying two conversations that he says provided explanation and expressed concern that Ms Rockett could not recall two conversations (the test route conversation); i) With regards to relativity the Claimant conceded he had not used it to its fullest extent but has used it and given an account already; j) He had commenced a period of sick leave on 21 June 2021 due to a rapid deterioration in his mental health, a disability, which should be mitigation as to why he had not contacted a witness who left a message during his sick leave; k) He described the decision to fail his TAP as a “bombshell”.[137]Ms Rockett replied to the Claimant on 12 August 2021 and advised his appeal would be based on an independent review of his TAP by someone appointed by the CFA. It remains unexplained why this did not happen and instead a review was conducted by Ms Walker who was appointed by Ms Rockett (see below).[138]Later, at 16.45pm on 12 August 2021 Ms Rockett was sent a copy of the Claimant’s application form, scanned ID documents and panel notes for her review by Mr Carne-Jones a FIS Assurance Manager. Separately she was sent a copy of his application form by another individual called Ms Perry. Ms Rockett sent both emails onto Mr Barnett and Mr Timmins just after 9am on 13 August[139]Also on 12 August 2021 the Claimant received a response from the SAR team who sent him a copy of his health declaration form. Ms Rockett’s grievance against the claimant[140]On 13 August 2021 @ 10.49am Ms Rockett sent an email to Mr Barnett and Mr Timmins attaching a document titled “Word summary of standard of conduct concerns form”. In the covering email she stated: Both, I have thought long and hard about taking this step – much of the night actually as I couldn’t sleep because of it! I have taken the decision to lodge a formal concern against Richard. Attached is a word doc of the content included in the form. I will send this to Tracey to take forward to action.[141]It transpired during the hearing that there were two versions of this document. The version in the bundle at page 590 (“bundle version”) differed from the version that had been disclosed to the Claimant during disclosure (disclosure version”). This came about during cross examination of Ms Rockett. The Respondents were ordered to provide the version that had been disclosed to the Claimant and Mr McLean was given permission to speak to Ms Rockett about the differing versions before resuming evidence. Ms Rockett initially told the Tribunal that the version in the bundle must have been a draft as it contained references to having obtained clarification on certain matters. When she was re-examined she told the Tribunal that the one in the bundle was the final version.[142]We consider the documents to be of importance as they contain evidence of Ms Rockett’s mindset as the time she raised the grievance which is one of the detriments relied upon for the Claimant’s victimisation claim so have taken care to set out our findings. We find there were different versions as Ms Rockett drafted it and then updated it over a number of days, also sending it to multiple recipients. The relevant differences are as follows (where there are very minor differences we do not consider to be relevant to the issues we have not repeated these):[143]I am raising this concern in respect of Richard Wickham, a member of my staff who is an officer in the Cardiff team. I believe Richard has demonstrated behaviours that do not uphold our standards of conduct by making false accusations and lying about aspects surrounding his application form to discredit HMRC, FIS and his management. His behaviour shows a lack of integrity and a willingness to lie in order to deflect blame and cast doubt on other officers integrity, in particular on mine.[144]I am raising this concern in respect of Richard Wickham, a member of my staff who is an officer in the Cardiff Organised Crime team. I believe Richard has demonstrated behaviours that do not uphold our standards of conduct by making false accusations and lying to his managers in relation to aspects of his training. Richard has also alleged that he declared a disability (mental health) on his application form and that he has received no support from HMRC, FIS and his management since he joined. A copy of his application was obtained6 and shows no disability declared. He has recently been advised by me that he has failed his Trainee Assessment Period (TAP); during the meeting he was aggressive, rude and swore at me. These behaviours do not meet HMRC Standards of Conduct.[145]Richard’s behaviour has been of concern throughout his training. He demonstrates a lack of integrity and a willingness to lie in order to 6 We know this was sent to Ms Rockett on 12 August 2021 see above deflect blame and cast doubt on other officer’s integrity. In particular, he has sought to lie about alleged conversations with me which simply didn’t take place.[146]On Tuesday 3rd August 2021 I held a Teams meeting with Richard to advise of my decision to fail him. During the meeting Richard became extremely aggressive, shouting and swearing at me; I had to ask him to calm down on a number of occasions. Richard accused me of using his recent declaration of suffering mental health issues as a reason for getting rid of him but this is not the case at all. Richard became very upset which caused me concern so I spoke to his line manager Lee Timmins immediately after my meeting to ask him to touch base with Richard to ensure he was ok. I had been extremely shocked by Richards behaviour during the meeting but as it was on Teams, I did not feel in any way threatened by it; I put this done to the understandable disappoint of failing his TAP albeit this should not have been a surprise to him.[147]As above but with the following paragraph added: *We are still seeking to ascertain Richard’s assertion that he declared his mental health issues when applying for the FIS role. We have not found any evidence of it to date.”[148]Following their meeting, Alex and I discussed Richards assertion that he flagged up mental health issues in his application. Lee Timmins has advised that Richard maintains this was disclosed to HMRC, that he had undergone an OH referral as a result of the mental health issues and a wrist injury that he had declared. This raised concerns as neither of us had been aware of this at all until Richard had raised it. During the meetings on 3rd and 4th August Richard was asked why he hadn’t flagged this up himself when he started but he said it wasn’t his place to do it; HMRC should have made us aware and that it wasn’t his problem.[149]As above but with the following paragraph added: Richard maintains that he did not have to flag this up with anyone but that we should have known about it. Richard’s immediate line management chain are still seeking to confirm whether any of this is true.[150]Richard claims he underwent a rigorous OH assessment with HMRC which should have been shared with us; he says it’s of no relevance and not his problem if this hasn’t been shared with us. As a result of this allegation, I have obtained a copy of Richards application form which does not declare any disability. We have no record of any OH referral taking place on taking up appointment with us. I met with Richard prior to him joining and this issue was not raised then either.[151]When Richard made his manger aware of his mental health issues in March 2021, an OH referral was made and steps put in place to support him. This is the only OH referral we can show Richard has undergone with HMRC and we believe his assertion of a previous one having take place is a lie.[152]As above with the following paragraphs added: Since it was raised by him, he has received excellent support from his line manager and SO.[153]The bundle version did not contain the following which was in the disclosure version: Throughout the 2 years he has been in TAP, he has had regular meetings with his PTO to discuss feedback, so he’s had plenty of opportunities to address evidence-gathering gaps and to improve his behaviours.[154]Both versions referenced the Claimant’s allegation that he believed if he had raised his mental health issues with anyone, he would have been made fun of / ridiculed. Ms Rockett was upset by this allegation describing it as a “completely untrue and a grave injustice against colleagues” referencing a previous suicide within the team and how since then the team had been extremely proactive and supporting people with mental health issues.[155]In both versions Ms Rockett stated that she believed the Claimant did not uphold HMRC values, displayed a lack of integrity and sought to tarnish the reputation of others in order to deflect from his own poor behaviours. “He takes no responsibility for his own actions. Richard has not only made false accusations against me but also against HMRC who he claims has failed him.”[156]In both versions Ms Rockett says she has been advised “today” that the normal course for failed students to be dismissed is not appropriate and stressed the information came after her decision to raise the formal concern and did not influence that decision.[157]Mr Barnett’s witness statement contained the following evidence: I am aware that the Claimant alleges that it was claimed he was lying about his mental health (see page 1179 of the Bundle). At no point did I engage with anyone to discuss the possibility of the Claimant lying about his mental health conditions. I did not receive any emails stating that the Claimant had been lying about his mental health nor did I hear any suggestion that anyone thought he was lying. I did not receive any communication from Judith Rockett that suggested that the Claimant had lied.[158]Mr Barnett was asked about this evidence under cross examination. He told the Tribunal that “we had never discussed you lying”. He was asked therefore why he charged Mr Timmins on 5 August 2021 to contact HR to obtain information about whether the Claimant had declared his mental health on his application and had a referral and assessment. He told the Tribunal he did not know why it had taken so long to go and look for it and it was not over the Claimant seeking advice. It was put to him how he could maintain the above given that Ms Rockett records she had discussed the Claimant’s assertions about mental health with him and had sent him a copy of her grievance on 13 August 2021. On either version (bundle or disclosure) Ms Rockett accuses the Claimant of lying in several places. Mr Barnett said he “didn’t recall seeing that”.[159]We find this evidence to be wholly inconsistent with the documents that were before us. Ms Rockett had discussed with Mr Barnett and Mr Timmins initial suspicions that the Claimant was not being truthful about declaring his mental health on joining the first Respondent and they all then actively became involved in seeking information as to whether this was the case. We also find it inconceivable that Mr Barnett could not have understood or been aware that the Ms Rockett was calling the Claimant a liar about this issue having been copied in on the grievance where she calls him a liar / alleges dishonestly multiple times on either version.[160]Still on 13 August 2021 Ms Rockett then emails Tracey Noone (Ms Rockett’s line manager) at 11.01 attaching what now appears to be the word document passed into a formal “Raising a formal concern form” and stating: I have thought long and hard about taking the course of action I have decided upon in respect of Richard Wickham but feel I am left with no choice as he has made personal attacks against me, against HMRC and FIS which are wholly unacceptable. Please see a formal concern form which I have to send to you as my line manager. Could you copy Lee and Alex into any response as we are trying to continue supporting Richard despite the issues. Thanks and I’m sorry I have had to trouble you with this.[161]At 13.16 Ms Rockett then also sends the standard of concerns form to Ms Barty.[162]As to the reason Ms Rockett decided to lodge a grievance against the Claimant, her witness statement stated: After consideration of Richards response to Alex on 4 August (512) and his formal response sent by email on the 11 August, I took the decision to raise a formal concern against Richard which was lodged on 13 August 2021 (585- 587). and I was aggrieved by Richard’s comments in respect of my conduct during his TAP. I was appalled that Richard could make comments that were simply untrue; this was unfair. Given my experience of Richard and the content of the responses, I did not consider an informal discussion with him would be appropriate. It was clear that he sought to lay blame solely at my feet. I therefore took the decision to raise a formal concern which I emailed to my line manager on 13 August (588).[163]Ms Rockett gave further evidence as to why she decided to raise the formal concern in her supplementary witness statement admitted to address the relativity (Anexys) documents the Respondents were permitted to admit on 19 February 2024. She said that one of the points she raised was she was concerned that the Claimant had not been telling the truth to his management about disclosure work (relativity) he claimed to be doing “throughout his TAP”. Specifically she cited that the Claimant had claimed to Mr Timmins on 31 March 2021 that he was doing relativity work dipping in and out of admin tasks. Ms Rockett considered this was neither a truthful nor accurate statement. Ms Rockett was not aware of the Anexys data at that time. She reached that based on what Mr Barnett told her on 4 August 2021: On Wednesday 4th August 2021, I spoke to Alex Barnett, Richards SO. Alex had had a lengthy call with Richard that day in relation to failing his TAP. During this meeting, Alex raised the issue of noncompletion of Disclosure work on the e‐platform Relativity. Richard had previously discussed this work with Lee Timmins as part of their regular management meetings. Richard had told Lee that having the opportunity to break up different aspects of his work and the variety of it was helping his mental health; Relativity in particular was one of the areas of work Richard claimed he was completing. At that point, Richard had actually completed no work at all on Relativity so was challenged by Alex and agreed he had done nothing. Richard denies ever having spoken to Lee Timmins about Relativity and has never claimed to have been working on it. Notes of meetings between Lee and Richard confirm Richards assertion is not true.[164]The Claimant had discussed relativity with Mr Timmins on 31 March 2021 and 27 July 2021. On 31 March 2021 he cannot have been untruthful with Mr Timmins that he had undertaken some relativity work as a week before this meeting he had refresher training with Ms Bass on 23 March 2021 and accessed it later that day unaided, as can be seen by the first Respondent’s Anexys data (see paragraph 72).[165]Following this date there were no further conversations with Mr Timmins until 27 July 2021 about relativity. Mr Timmins notes that it had been agreed the Claimant would dip in and out following the last meeting but was of the view that the password issue did not explain the “low work rate” of what he was led to believe would be completed. In that conversation, the Claimant does not assert he had been doing any further work since the March 2021 conversation. We agree with the Claimant that Mr Timmins had therefore made an assumption the Claimant would be undertaking further relativity work but this is very different from the Claimant being said to have lied that he was doing such work.[166]None of the internal emails that followed the Claimant’s TAP failure between 4 August 2021 and 13 August 2021 mention concerns of dishonesty regarding relativity. Mr Barnett’s email of 4 August 2021 references the Claimant denying he had told Mr Timmins he was doing relativity work. There are no emails from Ms Rockett to Mr Timmins querying the position about relativity. Ms Rockett’s bundle version of her complaint does not mention this at all; all of the lying allegations are in relation to allegedly lying on his application form about his mental health. There is a mention of lying to managers in aspects of training in the disclosure version but the significant focus of the allegations of lying is in respect of the Claimant’s mental health and what he had declared on entry. Second appeal against the TAP failure 16 August 2021[167]On 16 August 2021 @ 12.43 pm the Claimant emailed Ms Rockett, copied to Ms Barty, Mr Timmins and Mr Barnett, a document titled “summary of meeting with RW 030821”. This was the document the Tribunal understands the Claimant to be referring to as having to work on in his own time as he was on annual leave at that point. The Claimant must have received his subject access request response by this date as he tells them he has results that show he clearly declared his mental health on application for the role and was reviewed by Occupational health and cleared for the role. He denied being irate during 3 August 2021 TAP failure meeting but agreed he had been emotional. He also agreed he sworn on several occasions but that swearing was an “accepted vernacular in the workplace” and when asked to refrain he did so, albeit accepting he returned to swearing later. He stated his PTW failures were all attributable to his mental health and then: After recently being assessed by Occupational Health, they reported that my mental health could be defined as a disability under the Equality Act 2010. A copy of this report was issued to the management. Therefore, I stand by my point that I am being removed from the department due to my disability. Something that I openly declared on my application.[168]At 17.32 Mr Timmins emailed the Claimant to advise that he was being placed on unpaid7 special leave between 17/8/21 and 20/8/21 and he was then due to be on annual leave. The reason provided was “to support his well being and allow him some headspace.” He was instructed to remain contactable and check emails once per day to respond to any HR queries during this period. He was informed that Mr Timmins needed to collect all of his kit listing a long list of items including his ID card, body armour , uniform, notebooks and any official items. He also asked the Claimant to send his original application and any supporting OH stuff that he wished to.[169]Mr Timmins witness statement says the reason the Claimant’s access to systems was removed was that he was “made aware by HR of some dishonesty matters and was provided with a broad outline of the allegations and as part of these involved dishonestly he took steps to ensure the Claimant was allocated non law enforcement work as it was no longer procedurally or operationally appropriate for him to remain involved in that work as a witness of truth”. This is not what happened at all as it implies HR were the protagonists in deciding there had been dishonestly allegations which was not the case. Mr Timmins was not “made aware by HR” of the allegations. Mr Timmins was already aware as he had been told by Ms Rockett when she copied him into her grievance on 13 August 2021 and as we find below, drove the decision to commission an investigation into dishonesty allegations into the Claimant.[170]It is unclear when the Claimant attended the office to hand in his kit. The Claimant says he told Mr Timmins he would feel embarrassed for this to take place in the office yet he was made to do so, in full view of the office. Mr Timmins said that he arranged for a time for this to be done discreetly and he “did not recall others being around” at the time he returned his equipment. Mr Timmins said no meeting rooms were available due to Covid and HMRC policy on closed spaces. We find therefore that the handover of the kit must have taken place in the open office.[171]On 17 August 2021 Ms Rockett sent an email to HR copied to Mr Barnett which stated as follows: “John Whiting has suggested I contact you regarding what to do about a student who has been advised he has failed his TAP and wishes to appeal against the decision. This has been a difficult and challenging case in that the main reason the officer has failed is due to poor behaviours; there are however some important units where he has still not achieved box 1’s. I was given to understand that an appeal can only be based on a review of the 7 It is unclear if this is a typo as there would appear to be no basis to place the Claimant on unpaid leave evidence to agree/disagree with the Deciding Officer’s decision; could you advise whether this is the case please. The officer in question wishes to appeal saying he should be allowed more time however he has now been in TAP for over 2 years as he only had 4 months left at the start of the COVID pandemic. His behaviours over the last few weeks have been extremely poor so I have also now raised a concern about him. In order for any appeal to be properly assessed, I feel we should include notes of management meetings etc. as these are pertinent to the decision that has been reached.”[172]Ms Rockett sent Ms Noone a further email on 17 August 2021 at 11:39 with a document attached titled “Richard Wickham”. That attachment was not in the bundle but it must have been a version of Ms Rockett’s complaint against the Claimant she first raised on 13 August 2021 as she informed Ms Noone that she had “amended typos and updated it in respect of ongoing enquiries into his mental health declaration”. For these reasons we find that the disclosure version was the final version although nothing particularly turns on this. She goes on to add: “I’m sorry to burden you with this as I’m sure you could do without it but I really feel that Richard is not suitable in any area of HMRC and will be a concern for any team who had to take him were he put into the redeployment pool. Since my discussion, Lee has arranged for his access to caf’s etc. to be removed because he was concerned Richard may seek to jeopardise others work – I know this seems an extreme measure but such is the concern about his behaviour.”[173]On 17 August 2021 Ms Noone who is the Deputy Head of Region (Operational) acknowledged Ms Rockett’s formal concern against the Claimant and stated that Ms Rockett should have no further contact with the Claimant to alleviate any further stress. Internal HR advice[174]Around this time, Mr Timmins had been exchanging emails with HR. Initially he spoke to Mr Woffenden in HR concerning the Claimant. This had started on 4 August 2021 when Mr Timmins submitted a query to what looks like to be the generic email for HR support within the Respondents Expert Advice Service (“EAS”). In the first email Mr Timmins informed HR that the Claimant had failed his TAP, he was exploring redeployment options, the Claimant had not taken this well, asserted he declared mental health issues on his appointment, was medically assessed as part of the recruitment process where it was found his mental health could be considered a disability. Mr Timmins told HR that the Claimant believed he has not been treated in line with the Equality Act during his TAP and links this to his reason for the failure. He explained he had no management records to support this and asks for advice as to whether or not any medical assessment or declaration occurred. This was passed to Mr Woffenden who replied on 5 August 2021. He concurred with the view that sight of the Claimant’s personnel records was essential in determining whether his assertion that the department was made aware of significant mental impairments during the recruitment stage. He commented that such information should have found its way to the Line Manager but “unfortunately experience tells us that does not always happen.”[175]Mr Woffenden told Mr Timmins that if it transpired that HMRC was aware of a condition that was likely to meet the definition of a disability in law “some remedial action may now be necessary to ensure that the department has met its legal obligations under the Equality Act.” Mr Timmins replied on 6 August 2021. He then disclosed that “purely by way of background” the Claimant did raise concerns over mental health and wellbeing about 3 months ago and he had referred him to Occupational Health and applied reasonable adjustments. Mr Timmins said that one of the recommendations was reducing the workload to 80% while the newly introduced medication was bedding in. Mr Timmins told Mr Woffenden that this was agreed with the Claimant in that he would build into agreed deadlines additional time to review his work and correct any inaccuracies. This was in fact not quite correct because there had been no reduction in the workload only that the Claimant would build in longer deadlines in order to complete the workload. Mr Timmins told Mr Woffenden that the Claimant had said he was considering taking legal advice, he then goes on to say as follows: “He has been very volatile in his response to this decision, responding with aggression and bad language to managers and very quickly changing to being upset and then back to being irate. As a result of this, and to protect criminal investigation material, we have taken the decision to restrict access to sensitive information as sets in the first instance while the action is ongoing.” He asked Mr Woffenden to review the original job advertisement and any other relating material to see what the position was.[176]Mr Woffenden replied later that day. He advised Mr Timmins against placing the Claimant on a period of paid special leave wherever possible as it was always preferable to have a jobholder undertaking meaningful work if something suitable could be found pending further action.[177]On 10 August 2021 Mr Timmins contacted another HR individual Ms Ross who he had been advised to contact about the Claimant’s candidate status. In a later email he stated: “I see your concern, the DO followed the internal process map for external failures, which does seem to lead to dismissal – but it’s almost as if there is no supporting HR guidance or template forms to go behind it. He has not taken the news particularly well, and his behaviours towards managers and volatility has led to us restricting his access to investigation material and information assets in the first instance whilst matters are ongoing. “[178]Whilst chronologically out of order it is convenient to deal with a later email here. On 14 September 2021 Mr Timmins told Ms Ross in a further email that: “We find ourselves in a position where he is not an authorised Officer, which limits the work we are able to give him. This is minimal at present, and very quickly diminishing”[179]On 13 August 2021, Mr Timmins contacted Mr Woffenden again. He refers to his Grade 78 having been able to retrieve a copy of the documentation issued to the Claimant during the recruitment process and the application he submitted. Mr Timmins speculated that the Claimant had not declared any health issues on application and that it looked increasingly likely that no health concerns were raised upon entry subject to Mr Woffenden’s review of the personnel files. Mr Woffenden replied advising exercising caution. He told Mr Timmins it was important to have sight of pertinent personnel documentation so that they could establish definitively the position as it could have been in respect of a health declaration or referral during a recruitment exercise. This was probably because it is unlikely that the first Respondent’s application forms (as opposed to later health questionnaires) asked any questions about health a fact that Mr Woffenden was likely aware of and Mr Timmins was plainly ignorant of. Mr Timmins was asked under cross examination if he knew if a disability had to be declared in an application form and he said he did not know.[180]On 18 August 2021, Mr Timmins emailed Mr Barnett with the subject of the email being “Richard Wickham suggested next steps”. He referenced his discussion with HR Expert Advice and said that he had been advised to treat the Claimant as an internal candidate for the purpose of dealing with his failure to pass the TAP. This would involve either identifying a vacancy which he is happy to move to or if not he would be placed on the redeployment register. Mr Timmins then goes on to comment as follows “failing his PTW is a clear indicator of poor performance and the formal process is available and may be appropriate particularly as his poor time keeping and attention to detail can read across to essential requirements of other parts of HMRC. I can take a view on this as his Line Manager. The meaning of this was clear; even though the Claimant had to be redeployed, Mr Timmins could influence the potential for the Claimant to be redeployed by reading across his failings and invoking poor performance process to other areas within HMRC.[181]On 23 August 2021 Mr Timmins then emailed Ms Noone as the Claimant was due back from holiday and a decision needed to be taken about his status at work. Mr Timmins referenced needing to write to the Claimant about Ms Rockett’s formal concern that had been raised against the Claimant and that an investigation would take place during which time what would he be allowed to do. Mr Timmins told Ms Noone that his (our emphasis) initial assessment of Ms Rockett’s allegations if proven were capable of amounting to gross misconduct and HR concurred (our 8 This was a reference to Ms Rockett who had obtained the application form on 12 August 2021. emphasis) referencing primarily in relation to the allegation of lack of integrity and being untruthful. There were no emails from HR in the bundle around this discussion only those from Mr Woffenden. He told Ms Noone that the specific areas of guidance were (i) deliberate falsification of records (example may include but not restricted to expenses, medical statements, job applications); activity likely to bring HMRC into serious disrepute. He said this was an early indication of worse case scenario and that it will be ultimately a matter of the Decision Manager. Given there were allegations of dishonesty Mr Timmins did not consider the Claimant should continue in his full duties until the matter had been concluded. He sought complete restriction of all his normal duties. Ms Noone replied concurring with most of the recommendations albeit she did not agree that the Claimant should be denied access to any case papers or materials stating that they needed to work carefully with the Claimant on this and he was still employed by HMRC and needed to do some meaningful work for his own welfare and the needs of the business. She was also mindful that this was an accusation at this stage and a full investigation was required to determine the facts.[182]We had sight of sight of an “Upholding our standards checklist” completed by Mr Timmins on 23 August 2021. This stated that the lack of honesty and integrity was in particular that the Claimant had claimed he declared a medical condition on entry which was not corroborated by the records held. Mr Timmins later comments that the Claimant had advised he had evidence he declared a medical condition on entry contrary to the allegation. This must have been in reference to the health declaration the Claimant had obtained on 12 August 2021 (see above) and offered to Mr Timmins. The Claimant says he offered this to Mr Timmins but he refused to consider it. Mr Timmins was asked why under cross examination as had he done so there could have been no conceivable basis to maintain the disciplinary allegation of lying about declaring a medical condition. Mr Timmins agreed the Claimant told him he had relevant evidence but HR guidance said it had to be referred for an investigation. It was put to Mr Timmins this had prolonged the Claimant’s suffering to which he replied he had followed HR Guidance.[183]On 23 August 2021 Mr Timmins sent the Claimant a letter referencing a meeting that had taken place that day and told the Claimant that in respect of Ms Rockett’s complaint he would be appointing an Independent Decision Manager who would be managing a process under Approach B of the HMRC Upholding Our Standards Conduct Policy. He was informed about the restrictions within his role. He was also provided with resources to seek support. What was not in the letter was what the actual allegations were against the Claimant that were being investigated that Mr Timmins had discussed with HR and Ms Noone.[184]On 25 August 2021 Ms Rockett sent an email to Ms Barty, Mr Timmins and Mr Barnett regarding a conversation that she had had with HR concerning the Claimant’s appeal against failing his TAP. Ms Rockett told the recipients that the Claimant should be advised that his appeal would be solely based on the evidence in his folder and that if he still wished to proceed they would need to finalise the evidence folder with management and PTO notes which could be shared with the Claimant but would not be anything he has not already seen. Ms Rockett said an independent Senior Officer would be needed to review it and that HR had suggested Ms Walker which Ms Rockett agreed was a good choice as she did not know the Claimant and had nothing to do with him previously. This is a different position to what had been said on 11 August 2021 that the CFA would be reviewing the decision to fail the TAP.[185]On 26 August 2021 Mr Timmins had had another conversation with the Claimant and he emailed Ms Rockett, Mr Barnett and Ms Barty advising that the Claimant had confirmed he wanted his appeal to go forward and made it clear there were 3 themes,(1) process not being correctly followed,(2) the evidence submitted and(3) that he should have been given additional time for his medical condition.[186]On 2 September 2021 Ms Rockett emailed the HR professional she had been dealing with and asked whether the Claimant’s PTW folder could be locked down so that he could view it but not write in it or change it. This differed from the position that had been taken on 5 August 2021 when it had been agreed that Ms Barty would contact the Claimant to ask if he wished to include any further evidence (which she had not). It was agreed that the access would be changed to “read only”. Ms Rockett replied that Ms Barty still needed access to finalise additional management notes so wanted her to be able to maintain access along with Ms Walker which was subsequently agreed. Therefore the Claimant was not going to be permitted to amend anything in his folder but management could continue to amend and update it as they saw fit. Ms Walker told the Tribunal that she had been unaware that the Claimant had been locked out of his PTW and not permitted to add anything. Ms Walker told the Tribunal she had understood the PTW folder she reviewed was the same content as what Ms Rockett had made her decision on 3 August 2021 save Ms Rockett could have added management notes about events Ms Rockett would have been aware of. The problem with this approach is that the student is supposed to have an opportunity to provide feedback on information in the PTW and if the management notes were not in the PTW then the Claimant would not have known these matters were being used to assess him nor would he have had an opportunity to provide feedback prior to the decision to fail him.[187]On 8 September 2021 the Claimant submitted further grounds to his appeal. Appeal / review of the decision to fail the Claimant’s TAP[188]Ms Walker was a Senior Investigation Officer based in Bristol and although the same grade as Mr Rockett, Ms Rockett was technically her superior as Ms Rockett had been appointed as AD. She was appointed by Ms Rockett to conduct the Claimant’s appeal against his failure to pass his TAP.[189]On 9 September 2021 she contacted Ms Barty and Ms Rockett seeking copies of the one-to-one records and the DO review sheets noting that Ms Rockett had carried out three reviews and seeking copies of the reports. She asked Ms Rockett if any further reviews had been carried out from after 27 October 2020 and when she made her final decision in August 2021. Ms Barty confirmed that during lockdown no one-to-one’s had taken place over Teams and that she had not completed one-to-one documentation rather she had sent the Claimant emails in relation to what was outstanding at each stage.[190]On 9 September 2021 Mr Timmins responded to the Claimant’s additional points on appeal. It is plain that Mr Timmins had undertaken a thorough review of those points and sought to rebut many of them setting these out in an email on the basis that the points were either incorrect or ambiguous or misrepresenting the position as Mr Timmins saw it. We find this to be a peculiar approach given that he was not charged with conducting the appeal itself, Ms Walker was. Mr Timmins concluded in his email that making unproven assertions that another officer had committed actions which may amount to gross misconduct are serious allegations and to share such remarks particularly without a determination by a disciplinary panel could amount to misconduct. In our judgment this was designed to warn the Claimant that elements of his appeal could result in him being disciplined. He asked him to review additional points and adjust as necessary indicating he would not send on the appeal until in his opinion the content was correct and not misleading. Mr Timmins instructed the Claimant to withdraw some of his appeal points failing which they could be used to discipline him. The Claimant did as instructed and sent revised grounds of appeal on 13 September 2021.[191]Mr Timmins sent these on to Ms Walker on 14 September 2021.[192]On 14 September 2021 Mr Barnett emailed Mr Waldin and asked him to send any relevant management notes or emails between him and the Claimant to Ms Walker as she was performing an independent check on the failure of his TAP. He specifically asked him “anything to do with failure to complete work or show negative behaviours, chasing up incomplete work etc.”[193]Around this time we find that Ms Barty, Ms Rockett and Mr Barnett were undertaking a trawl for other emails and evidence to support the Claimant’s failures. An email from 10 February 2020 regarding the Claimant’s attendance at a training course in Bristol where he had been criticised for not travelling with other Cardiff officers on the list was discussed. There were multiple other emails around this time between Ms Rockett, Mr Waldin, Mr Barnett, Ms Barty and Mr Timmins going back over historical matters involving the Claimant and discussing whether or not such historical matters could be included in Ms Walker’s review. For example on 14 September 2021 Ms Rockett asked Mr Waldin and Mr Barnett about whether time scales had been met for a search warrant application in October 2020 as if so it could be included as showing the Claimant had opportunities given to assist TAP completion. Ms Rockett was reminded by Mr Barnett that she had changed her mind about the deadline and instructed everyone to focus on another task rather than the one due commenting “therefore it is tough to say whether he made the deadline he did write a draft which I checked and had to change quite a lot but that’s reflected in my feedback.” Ms Rockett comments “that’s fine we can leave that one then.”[194]Ms Rockett was also reviewing material that was being sent by Mr Waldin to Ms Walker. On 16 September 2021 Ms Rockett emailed Ms Walker attaching historical emails regarding the Claimant commenting “although not directly related to PTW tasks the attached emails demonstrate the misunderstanding assertions made by the Claimant in respect of other work related matters that we and I have challenged.” She goes on to say that the scenario in respect of disputed conversation in 2019 between her and the Claimant about an RC (regional centre) test routes was “simply untrue and currently forms part of the formal concerns she had raised about his behaviours”. Mr Rockett also sent the email criticising the Claimant for the scant warrant information but Ms Walker was not told the Claimant had been told by Mr Barnett to take out a lot of the information in the original draft (see above). Ms Rockett also told Ms Walker in an email exchange that the Claimant had lodged a grievance against her. Outcome of the Claimant’s appeal regarding his failure of the TAP[195]On 23 September 2021 Ms Walker forwarded by email her report on the review of the Claimant’s TAP decision to Ms Rockett. At 13:38 Ms Rockett replied thanking Ms Walker for her comprehensive review and report and saying that she completely took on board that there were lessons to be learned from all of us who have been involved. Ms Rockett then comments as follows, “there were a few typos and possibly missing words so I have made some very minor changes if you wouldn’t mind just checking to confirm you’re happy with those.” Ms Walker was asked what section of the report were amended by Ms Rockett and told the Tribunal no context was changed but she could not remember the specifics.[196]We find it was inappropriate and demonstrative of an unfair appeal that Ms Rockett was reviewing a draft of the report and permitted to make changes and is evidence that Ms Walker was deferential to Ms Rockett which is unsurprising given she was being asked to undertake a review into a decision taken by a superior officer. We find this notwithstanding that Ms Walker overturned some of Ms Rockett’s decisions. The overall result did not change.[197]In summary Ms Walker’s decision was as follows. She had reviewed the evidence for each unit contested and stated whether she agreed or disagreed with the decision giving her reasons. Ms Walker agreed with the decisions in respect of unit 2 disclosure, unit 4 court procedures, unit 5 RIPA, unit 6 notetaking. She disagreed with the decision in respect of unit 9 witness statements, unit 10 financial, unit 13 arrests. Two of these three were the tasks set by Mr Barnett on 18 March 2021 which Mr Barnett maintained during the hearing the Claimant had not met but Ms Rockett agreed they had been met. Given that Ms Walker assessed the Claimant as passing the unit on arrests and witness statements it was not fair to the Claimant to insist he still had not met these units. In respect of the other task which was to “do some work on case management and disclosure”, Ms Walker agreed the Claimant had not passed the unit for disclosure.[198]Ms Walker agreed with the decision in unit 11 behaviours and this particular section Ms Walker commented that the records showed a lack of planning on the Claimant’s part, and concern over quality of work acknowledging that she saw a pattern of concern arising from the records she had reviewed. The final comments were “whilst the Claimant can be enthusiastic, work well within the team, act in a professional manner and get on with tasks this largely relates to face to face activities. When left to prioritise his own work and get on with the desk side of the job he has not displayed the appropriate behaviours consistently.”[199]With regard to procedures, Ms Walker briefly mentioned his mental health issues and stated that the adjustments recommended by Occupational Health had already been put in place. In relation to procedural irregularities Ms Walker commented that a degree of pragmatism has to be used in relation to all guidance due to the pandemic. She found that there needed to be general upskilling in task completion as Ms Barty had not completed the PTO templates, rather she had relied on sending emails and there had been insufficient DO reviews as required by the Policy. Ms Walker felt the three DO reviews were comprehensive and that after each review a detailed report was provided by Ms Rockett making it clear what the issues were and what needed to be done. Ms Walker says it can be seen from an email that Ms Rockett intended to carry out the final review in January 2021 but did not do so as she did not receive the portfolio (we know that Ms Barty had the Claimant’s PTW at this stage – see above so this was not an issue of the Claimant’s making). Ms Walker concluded that she was content that there were thorough reviews carried out up to January 2021 since then a further SO review was carried out by Mr Barnett, a review by Mr Timmins and a final review by Ms Rockett. She stated in the report that whilst this was not strictly in accordance with the guidance she believed pragmatism had come into play joined to the unique circumstances in the last 18 months. Ms Walker acknowledged that it could be argued it was unclear that the TAP period was going to end on 30 June 2021 from Mr Barnett’s email. Overall she concurred that the TAP had not been met and sufficient time had been given to complete it.[200]Ms Walker did not address the Claimant’s point that Ms Rockett had certified she had undertaken a minimum of 4 quarterly reviews on the PTW form on 16 August 2021 which was inaccurate. Mrs Walker told the Tribunal and this was also reflected in her overall conclusions that some account had to be taken of the Covid pandemic when considering if all procedures had been properly followed.[201]In total during the Claimant’s TAP period between 21 May 2019 and 3 August 2021 he had 7 instead of 24 monthly one to one meetings with Ms Barty and no ad hoc meetings. The last documented one to one meeting was on 9 September 2020. During 2021 the Claimant was sent a total of 2 work related PTW emails from Ms Barty. Ms Barty was on long term sick during 2021.[202]On 23 September 2021 Ms Rockett sent a copy of Ms Walker’s report to Mr Barnett, Mr Timmins and Ms Barty. Ms Rockett acknowledged the need to take on the feedback of the report and the need to learn lessons. She then sent on the report to the Claimant later that day and advised that he would be advised on next steps by Mr Timmins. Upon receipt the Claimant contacted Ms Walker to request a telephone conversation. He followed this with an email in which he set out that he wished to clarify the grounds of the appeal as he had not requested his folder to be reviewed generally accepting the folder was not in a finished state. Ms Walker forwarded that email onto Ms Rockett and Mr Timmins. Ms Walker told the Claimant that she had taken advice from EAS as she was not the person who made the decision or would have any further input into the process, her role had been to review the portfolio with a training background to see if she agreed with the decision. She referenced advice from EAS that the Claimant should be encouraged to have a facilitated conversation with the line management chain. Following some internal emails between Mr Timmins and HR by 28 September 2021 it had been agreed that the Claimant would be placed for redeployment.[203]Ms Walker was asked why the flowchart procedure was not followed (see paragraph 46 above). This specifies that the job holder has the right to appeal if they have failed to reach the standard or grieve (if internal). Notwithstanding this being the official and documented position, document Ms Walker told the Tribunal there was a “missing step” from the flowchart which is where the CFA offer an independent review before the formal progress is gone to. She acknowledged this was not in the flow chart. This does not explain why, if Ms Walker was conducting the undocumented independent review, the Claimant was then not afforded the right to grieve the decision which would have enabled him to have some input.[204]Ms Walker was asked why the Claimant was not allowed to add missing documents to the PTW but the managers were. Ms Walker had not been aware this was the case. She explained that CFA had said management notes could be added but she had not been aware that the PTW folder she reviewed was not the same as the version Ms Rockett had used to fail the Claimant’s TAP on 3 August 2021. She was also not aware that the Claimant had been locked out of the folder and unable to add anything. Disciplinary investigation into the Claimant[205]On 10 September 2021 Mr Piddock, Senior Investigation Officer, wrote to the Claimant to confirm that he had been appointed as a Decision Manager in relation to potential misconduct or gross misconduct issues. He informed the Claimant that they would be managing the process under Approach B and that if gross misconduct was established this could result in a final written warning placed on file for 12 months or summary dismissal. Enclosed with that letter was the terms of reference document. It was unclear from the document who had authored the terms of reference but we find this was Mr Timmins (see below). The terms of reference stated: These are the terms of reference for my commission of an investigation under the upholding of standards of conduct policy into the issues concerning the Claimant as raised by Jude Rockett in August 2021.[206]Mr Pickford was asked who had appointed him as a decision manager and who had decided that the Claimant would be investigated following the allegations. He advised that someone called Mr Forbes had appointed him and Ms C Atkins in EAS made the decision that the complaint was capable of meeting gross misconduct but Mr Piddock did not know who made the preliminary decision the proceed with a disciplinary process against the Claimant. Mr Piddock told the Tribunal that Ms Rockett had drafted the terms of reference and it was not unusual for someone who had raised a formal concern to then draft the disciplinary terms of reference against that individual with EAS.[207]Ms Rockett was asked about this when she gave her evidence. Ms Rockett said she could not recall a terms of reference document but would have had a meeting to go through her concerns.[208]In light of the evidence at paragraph 181 above we find that it was Mr Timmins who decided to commission the investigation and drafted the terms of reference.[209]The terms of reference were sent to the Claimant and informed him that the investigations were to establish whether there was evidence whether his actions and behaviours as reported fell below HMRC’s expected standards of conduct being a Civil Service Code in HMRC’s Conduct Statement. The allegations were:(1) the use of rude abrasive aggressive or offensive language by the Claimant(2) whether the Claimant’s conduct was considered to be a personal attack on Ms Rockett(3) whether the Claimant had demonstrated a lack of honesty and integrity and in particular relating to the declaration of a medical condition (our emphasis) upon appointment. It is pertinent to note here that there was no mention of any issues relating to relativity or a disputed conversation in 2019 regarding a regional centre test routes in the terms of reference investigation document sent to the Claimant.[210]Following the letter we have referred to above from Mr Pickford, another individual was appointed to conduct the investigation called Mr McCarthy. Mr McCarthy met with Mr Barnett on 27 September 2021 and 19 October 2021. He told the investigation that the Claimant does not take feedback on board, he had tried to get the Claimant to complete work on relativity but the work was never started. The Claimant was alleged to have told Mr Timmins that he had done work on relativity however he later admitted to Mr Barnett that he had not done any work despite having had the training. Mr Barnett told Mr McCarthy he had not seen a side of the Claimant being aggressive, rude or swearing in general. Of particular importance is the following: “JR was looking at places in HMRC he could work, she was very supportive of him. JR and AB discussed RW being redeployed to the Investigation Hub within FIS however after his outburst and bad language to JR this wasn’t deemed appropriate.”[211]This was not accurate as it suggested that redeployment was considered unsuitable after bad language but documents do not support this at all. It was not until after the Claimant’s challenges to Ms Rockett’s decision that the redeployment option was taken off the table.[212]Mr McCarthy spoke again to Mr Barnett on 19 October 2021 about the use of bad language in the workplace as the Claimant had provided him with the What’s App messages and asserted Mr Barnett had told Ms Rockett to fuck off during a meeting. Mr Barnett told Mr McCarthy that swearing was not really commonplace in the office, people swore but noone swore at each other, it was just conversational. He later clarified that people sometimes swore in the office but this was always in jest and never directed at anyone or maliciously. He also said he could not recall saying to Ms Rockett “fuck off I’m not doing that” during a meeting.[213]Mr McCarthy interviewed Mr Timmins on 27 September 2021. Mr Timmins told him he had found it challenging managing the Claimant whose performance had definitely slipped during his period of management. He told Mr McCarthy that the Claimant first mentioned his mental health in March 2021 and there was no evidence to suggest he declared a disability following a review of his application when he applied for FIS but he now says he has a disability. Mr Timmins told Mr McCarthy that he had put in place a series of reasonable adjustments including one that had lessened his workload to 80%. This was not accurate. He also told Mr McCarthy that he had had 3 meetings with Mr Wickham about his work on relativity. We find this was misleading as whilst relativity was discussed, it was not as Mr Timmins suggested the focus of the meetings at all. He said that the Claimant had assured him that he had done the work but he had not done anything at all. This was also not true as Mr Timmins own note recorded he had done some work. Mr Timmins told Mr McCarthy the Claimant had used bad language in conversations with him and was clearly angry about the decision to fail him albeit angry at the situation rather than at him personally and that he was not generally angry or aggressive. Mr Timmins view was that the Claimant had only termed his condition as a disability after the Occupational Health Report indicated that it may have been considered as such which suggests Mr Timmins thought the Claimant was being untruthful and seeking to use his disability. He also said that his behaviour throughout did not suggest he was struggling with mental health. It is really very difficult to understand how Mr Timmins reached this conclusion given what had been said at the meetings he had conducted with the Claimant between March and July 2021 and the content of the Occupational Health report.[214]Mr McCarthy met with Ms Barty on 29 September 2021. The notes of this conversation were very short. Ms Barty told Mr McCarthy that the Claimant had never mentioned anything about mental health to her but had said he was struggling in general. She also claimed that the Claimant had told her that he had been doing relativity disclosure work but had not done anything on it at all. This was not recorded anywhere in the Claimant’s emails to Ms Barty in fact he had been very clear he had not done any work. Ms Barty was asked about this when she gave her evidence. Ms Barty told the Tribunal that Mr Timmins had told her the Claimant was doing relativity work. But when it was put to her that the note says the Claimant told her she said she could not remember but recalls the phrase dipping in and out. She also commented that she thought the Claimant had a short fuse but she had not seen that side of him. We find that the Claimant never told Ms Barty he was doing relativity work, in fact he had told her he was not. As such. What Ms Barty told Mr McCarthy was inaccurate and the Claimant later showed the email to Mr Piddock but it was ignored (see below).[215]Mr McCarthy met with the Claimant on Teams on 14 October 2021. After introductions Mr McCarthy told the Claimant that the first point was abrasive, aggressive language. Mr McCarthy put to the Claimant that he had agreed he had used language that was rude and abrasive and asked for the context. The Claimant told Mr McCarthy about his history of mental health and the problems that lockdown caused him. He explained that he had understood Mr Barnett had set him 3 tasks and had given him until 30 June to get the tasks done. He explained that his medication that he was taking was making him forget to do things and that Occupational Health had said he needed longer to do tasks and he had been off sick for a month. He had understood the final review date was the deadline for the tasks but then he was failed. The Claimant accepted that he swore during the meeting with Ms Rockett but it was not targeted or threatening and he has a generally loud voice, he pointed out that he suffered with mental health and he had been told on a phone call that he had lost his career. The Claimant told Mr McCarthy that he had evidence that other people swore and had previously sent him WhatsApp messages to prove this. WhatsApp messages[216]It is convenient to deal with the what’s app messages disclosed by the Claimant to Mr McCarthy at this point[217]The Tribunal saw contents of a WhatsApp group chat that had been set up in order for employees to keep in contact over Covid. The group contained senior mangers down to junior staff including the Claimant, Mr Barnett, Ms Rockett. The messages were generally jokey and jovial in nature about daily work related niggles. Bad language was commonplace. Mr Barnett called work colleagues “clowns” and used the phrase “FFS” and “shitting”. Ms Rockett referred to whoever said “its good to talk” needed “fecking shooting” and “bastards”. Someone else used the term “shitbags” in sympathy to a colleague who had experienced a burglary. Colleagues were referring to each other as “shits”. “Bollox” was also used.[218]The notes record that Mr McCarthy had also spoken to Ms Rockett as he references Ms Rockett denying that there had been swearing in the workplace and she also is referenced as saying that the Claimant had been “ferocious and irate” at the meeting on 3 August 2021. Ms Rockett told the Tribunal that she had been interviewed by Mr McCarthy but could not explain why there were no notes of the meeting. She also did not recall using the words “ferocious and irate” in describing the Claimant to Mr McCarthy. This is not mentioned in her note of the meeting of 3 August 2021 but similar words were later used to Ms Ali (see below). The Claimant told Mr McCarthy that at no time did Ms Rockett say she had offended her or she was upset and it was only when the Claimant said he was going to get legal advice and appeal her decision that she made the complaint.[219]Returning to the investigation meeting with the Claimant, the second point was said to be whether his conduct was a personal attack on Ms Rockett. This appears to have been in relation to the Claimant’s appeals to his TAP failure contained in his emails to Ms Rockett on 11 and 16 August 2021 (see above). Mr McCarthy put to the Claimant that since that meeting Ms Rockett considered that his conduct to be a personal attack upon her. The Claimant acknowledged he intended to raise a formal grievance but had not yet done so was unsure how Ms Rockett would think that he was targeting her. We also find this to be a very peculiar basis to discipline an individual for gross misconduct on the basis of an appeal against a decision to fail his training. It must be remembered that the Claimant’s appeal had not been considered by the first Respondent at all; Ms Walker had only been charged with conducting a review to which the Claimant was refused an opportunity to have any input save his watered down appeal document to the extent it was permitted by Mr Timmins. Therefore the Claimant was being disciplined for the content of the appeal emails. We find this to be a retaliatory action and wholly outside of the first Respondent’s procedures (both the grievance procedure and the TAP failure procedures).[220]Mr McCarthy then addressed the third point which was said to be as follows “you didn’t tick the disability box at the time you weren’t on medication. Occupational Health said no issue but it’s mental health”. He then asked him about the relativity platform work and put to him that he was given work and had told Mr Timmins he had done it but told Mr Barnett he had not. The Claimant replied that this was not accurate and “the dishonesty part I thought was the disability part or I would have sent you [information] about why I didn’t do the relativity work. I sent you the relativity emails on it and my emails to Alex.” Mr McCarthy then put to Mr Wickham that he had been untruthful about a conversation with Ms Rockett in 2019 regarding test routes. This was another new matter raised with the Claimant that had not been in the terms of reference regarding dishonesty. Mr McCarthy put to the Claimant that “you’ve said there was a conversation that happened and Ms Rockett said it didn’t”. Investigation outcome[221]The Tribunal did not hear evidence from Mr McCarthy. In the bundle there was a report called Upholding our Standards Report on the Claimant dated 25 October 2021. It was not signed or it was not clear who had authored this report.[222]In summary the report concluded as follows: The use of rude, abrasive, aggressive or offensive language[223]The report author says that Ms Rockett had been shocked at the ferocity and aggression of the Claimant throughout the meeting and that he had used foul language at her rather than in the context of the conversation. It is unclear where this conclusion emanated as this could not have been sourced from Ms Rockett’s note of the meeting of 3 August Whether the Claimant’s conduct was a personal attack on Ms Rockett[224]This allegation had never been made clear in the terms of reference. The report states: JR feels that since the meeting all RWs energies have been put into targeting her with reports and appeals. JR feels that RW is trying to undermine her at every opportunity. There have been numerous conversations that RW has said happened between him and JR that JR denies ever taking place (more on this is point 3). LT states that RW seems to have focused all of his attention on JR with various reports trying to undermine her.[225]It also goes on to repeat the conclusions about the swearing. In light of the above section we have highlighted we find that the second allegation was that the Claimant’s challenges to the decision to fail his TAP were the subject matter of this allegation and source of alleged attacks against Ms Rockett. It should be noted that these were the communications on 4 August 2021 relied upon as a protected act and the subsequent emails of 11 and 16 August 2021. Whether the Claimant has demonstrated a lack of honesty and integrity, in particular relating to the declaration of a medical condition upon appointment[226]With regard to the dishonesty allegation the author made the following findings. The first instance of honesty and integrity was said to be his application form for HMRC in that he did not tick the disability box. The report acknowledges that in the pre-employment check health declaration the Claimant obtained from his SAR and acknowledges that this was followed up by an Occupational Health assessment which said there were no ongoing issues and that he was fit for the role. The Claimant’s explanation for not bringing the attention and for not ticking the disability box at the time was that he, at the time of his application, did not consider himself disabled as he had not been suffering with his mental health issues for more than 12 months.[227]“Not ticking the disability box” was not the allegation the Claimant had been facing. The terms of reference clearly state he was alleged to have been dishonest about not declaring a medical condition. It is difficult for this Tribunal to understand how the first Respondent could consider it ever appropriate to discipline an employee for gross misconduct for not ticking the disability box on an application form but this is what happened in this case.[228]The other incident where the Claimant’s integrity was said to be being questioned was to do with his work and that is the work on the relativity platform. The report repeats Mr Timmins assertion that he had three meetings with the Claimant about relativity platform and had told him he was doing the work and also Ms Barty had been told he was doing relativity work but he had later admitted he was not doing anything at all. This allegation was not contained anywhere in the terms of reference. This was also not a reasonable conclusion to reach given the evidence (see paragraphs 70-72, 82, 105, 108, 110-112, 163-166 for our findings on relativity).[229]Another area of honesty and integrity highlighted in the report was around conversations that the Claimant says he had with Ms Rockett that she denied taking place, that is to do with the journey test runs we have outlined above. This was also not referenced anywhere in the terms of reference.[230]On 26 October 2021 the Claimant sent Mr McCarthy an email addressing the allegation that had been made at the meeting that he had lied to Vanessa Barty that he had completed relativity. He brought to Mr McCarthy’s attention an email from Ms Barty to Mr Barnett from March 2021 (see above) which plainly shows at that stage Ms Barty was aware he was not working on relativity contrary to what Ms Barty had told Mr McCarthy.[231]On 28 October 2021 the Claimant raised a formal concern against Ms Rockett alleging bullying, victimisation, harassment and discrimination. Disciplinary decision of Mr Piddock[232]Mr McCarthy’s report was sent to Mr Piddock who had been appointed as the Disciplinary Officer. On 19 November 2021 Mr Piddock emailed the Claimant to advise he had come to a provisional conclusion and enclosed a copy of Mr McCarthy’s report and Mr Piddock’s provisional report and invited him to attend a decision meeting on 2 December 2021. The reaching of a provisional decision prior to a disciplinary hearing was not in accord with the usual procedure set out in the Code of Conduct policy. Mr Piddock’s explanation for this was that Mr McCarthy’s report had not reached any conclusions so it was fair to send his own provisional conclusions and then have a meeting.[233]On or around 9 December 2021 the Claimant presented further evidence to Mr Piddock regarding his relativity activity. The Claimant had contacted the relativity software providers (Anexys) to ask for a report on his access to the system including dates and times. He had been sent an excel spreadsheet showing he had reviewed 12 documents. He queried this having previously been told by Mr Timmins that there were approximately 80 on the first round and 20 on the second. The software provider subsequently confirmed that if someone had edited a document previously reviewed by the Claimant it would have overwritten the Claimant’s decision and reviewed by field on the system (thus making the Claimant’s numbers look lower). The Claimant sent this information onto Mr Piddock but he refused to consider this as part of the investigation on the basis it was outside the scope. He explained to the Tribunal that the amount of work that had been done was not relevant it was the Claimant’s honesty and integrity in relation to what he had led the mangers to believe he had done. This was not a reasonable conclusion to have taken. The Claimant was being disciplined for lying about how much work he had done on relativity. The documents were plainly relevant to this issue.[234]The software provider was subsequently contacted by Ms Bass in January 2022 to find out what they had told the Claimant and was instructed not to provide any further information to him but to come via Ms Bass.[235]On 20 December 2021 Mr Piddock wrote to the Claimant to arrange for a further meeting on 7 January 2022 for him to communicate his decision on the gross misconduct allegations. This was confirmed in a letter dated 10 January 2022.[236]The conclusions were more or less the same as his provision conclusions save he removed a reference to the dishonesty about declaring a disability not proven on the “slimmest of margins” instead deciding the dishonesty allegation was partially proven as he had been dishonest about relativity. Richard Wickham’s actions and behaviours as reported, fell below HMRC’s expected standards of conduct; The Civil Service Code and HMRC’s Conduct Statement. Yes With specific consideration of the above in relation to: 1. The use of rude, abrasive, aggressive or offensive language by Mr. Wickham. Proven 2 Whether Mr. Wickham’s conduct was considered to be a personal attack on Jude Rockett. Not proven 3. Whether Mr. Wickham has demonstrated a lack of honesty and integrity, in particular relating to the declaration of a medical condition upon appointment. Partially proven I find it proven that you were dishonest in relaying to your managers the extent to which you had completed work on the Relativity system. This is based upon the testimonies of Alex Barnett, Lee Timmins and Vanessa Barty during interview with the Investigation Manager and from management and general records submitted as part of the investigation.[237]Mr Piddock told the Tribunal that he had run his decision past the EAS who advised his findings and recommendations were consistent with similar cases but they did not have input into his final report save it was overseen reviewed and endorsed the findings.[238]Mr Piddock was asked about the reference in his provisional conclusions that the Claimant had not declared a medical condition was not proven but on the “slimmest of margins” given that the investigation showed the Claimant had declared the condition during the recruitment process and had an occupational health assessment. Mr Piddock explained that he reached this view as the Claimant had not declared a disability. As we have observed above that was not the allegation against the Claimant, the allegation was whether he had declared a medical condition. He was also asked whether he had taken into account the Claimant’s mental health and expressions of suicidal ideation at the time of the swearing and he told the Tribunal he had done so but agreed this was not evidence in his conclusions, referring to a mitigation document which could not be located in the bundle. Events from 2022[239]Since failing his TAP the Claimant had been assigned to Ms Bass’s team on a temporary basis whilst alternative work was looked for, on restricted duties. This was restricted to relativity work. The Claimant was subsequently signed off sick from work and referred to occupational health. On 27 January 2022 the occupational health report sated: In the past I feel that Richard may have returned to work too soon as he was concerned about his pay. Consequently, his mental health may have manifested in the workplace as negative behavior and resistance. It may be worth considering Richard for health-related special leave in order to remove the pressure to present to work when he is actually not well enough to be at work. This is known as presentism. This would also prevent any unnecessary grievances in the future. Please bear in mind when making your decision that antidepressant medication can have all sorts of side-effects including tiredness, irritability, and lack of focus. Changing medications and doses can magnify these side-effects. Appeal against written warning[240]By 27 January 2022 the Claimant appealed the written warning and Ms Ali had been appointed as the appeal manager. Ms Ali’s job title was “Customer Equalities Support”. Ms Ali was not called to give evidence by the Respondents and the Tribunal did not have any explanation from the Respondents. Having considered the report the very clear reason the Respondents did not want to call Ms Ali was that her report undermined the Respondents defence. We return to this below under our conclusions on inferences.[241]Ms Ali emailed Ms Rockett on 27 January 2022 to advise she was reviewing the appeal, had read Ms Rockett’s notes of 4 August 2021 and asked three questions for clarification. She requested details of the foul language in terms of frequency and the words used. She then asked Ms Rockett what had happened following the meeting to change the recorded next steps from supporting the Claimant to find an alternative role to raising a formal concern against him. Lastly she asked about whether there was an update on the alternative role.[242]On 28 January 2022 Ms Rockett replied advising the details on the swearing were in the notes and she was unable to recall the number of times apart from it being quite a few. She did not address the second question. Ms Rockett then forwarded her reply to Ms Ali to Mr Barnett and Ms Bass. Ms Ali replied asking the second question again. Ms Rockett replied on 31 January 2022 advising she did not know the number of times the Claimant had used foul language except it was multiple. Whilst not directly answering the second question again Ms Rockett stated: I had hoped that Richard would accept the situation and work with us to find him another suitable role however his reactions were extreme, he didn’t accept the decision, accused line managers and others of lying and was clearly not accepting any responsibility for failing. In responses to being failed he lied to cover up work he hadn’t done which had formed part of the reason for his failure. His trainee assessment workbook includes a section on Behaviours which was another area Richard failed in. His behaviours are still of concern.[243]She then explained she was not directly involved with finding him another role due to his grievance and that his other line managers were doing so.[244]Ms Ali contacted Ms Rockett again as we saw a reply to Ms Ali on 8 February 2022 apologising for a delay in responding and asking for a call as well as a copy of the Claimant’s appeal so she could provide clarity in a response. Ms Rockett asserted the Claimant was “not always truthful as had been proven” and asserted she was at a disadvantage as she did not know what was being asserted to be untrue.[245]Ms Ali relied later that day asking for a third time why she had progressed to the formal grievance route bypassing informal and why concerns had not been previously raised about the Claimant’s behaviours. Ms Rockett replied on 11 February 2022. She advised she had been left “stunned and shaken” by the Claimant’s reaction on 3 August 2021 and the “ferocity and aggression” in his speech. She then stated: The following day Richard spoke at length with his SO Alex Barnett9. During that meeting, Richard told a lie (now proven) which inferred his HO line manager Lee Timmins was lying. Lee had been a very supportive manager to Richard so for him to lie about a conversation showed that he was prepared to lay blame at other peoples door for his TAP failure. This lack of acceptance has been a theme throughout his Training Assessment Period. On the 16th August I received a response to my final TAP report from Richard. His response to me indicated anger by spelling my name in capitals and picking out comments I’d made in capitals and bold. There was simply no point in attempting to resolve locally as Richard simply wont accept failing. I did not want to engage with him either by Teams or in a face to face meeting. If I had been asked to meet him face to face I would have done so reluctantly and only with a witness present. This would not have been an ideal situation so I believe it wouldn’t have achieved anything. Re point 2 – Richard was subject to continual assessment during his TAP which included a unit dedicated to Behaviours. Richards behaviours were discussed and evidenced throughout this period. Even if some negative is received during the TAP, the student is given time to act on the feedback so they can demonstrate improvements. Unfortunately Richard was resistant to accepting some of his feedback so improvements were shown and hence he failed.[246]The Claimant presented further grounds for his grievance against Ms Rockett on 21 February 2022. This was a lengthy document.[247]On 23 February 2022 Ms Ali met with the Claimant over Teams as part of his appeal. It can be seen on 24 March 2022 email that Ms Ali had sought internal advice about some conclusions she had reached and had discussed the issues with the advisor previously. The advisor details are redacted. They requested pinpointing evidence for some of the points. We saw Ms Ali returned to the advisor with detailed evidence and explanations in a later (undated and redacted) email. Ms Ali at that stage recommended upholding the complaint on relativity and reducing the penalty to six months. In our judgment these emails plainly show that Ms Ali was seeking advice from and being provided with advice from someone within the first Respondent.[248]On 13 April 2022 Ms Ali wrote to the Claimant with her decision on the appeal. She upheld the Claimant’s appeal and formally overturned the 9 This refers to the conversations relied upon as the protected act. It remains unclear what the lie is said to have been, it was possibly that Mr Barnett says the Claimant denied relativity had been discussed with Mr Timmins during their management meetings. written warning. Ms Ali had conducted a detailed analysis of the evidence before her. Regarding the relativity dishonesty finding, in our judgment, for reasons we have set out above, she rightly evaluated that there was a lack of evidence to support the decision that the Claimant had been dishonest about the amount of work he had undertaken noting the information from the software provider. She noted the decision appeared to be based on the testimony of Ms Barty and the 27 July 2021 note from Mr Timmins and there had been open discussions with the manager around this being done on an ad hoc basis. She concluded she had not seen anything to demonstrate that the Claimant had said he completed relativity work when he had not or how he had misled the managers.[249]In respect of the use of foul language Ms Ali did not condone the use of swear words but had struggled to obtain details of the foul language used. Ms Ali also noted that although Ms Rockett had originally said the Claimant would be redeployed, ten days later she raised the concern after finding out the Claimant could not be dismissed. Ms Ali agreed it could appear that Ms Rockett’s complaint against the Claimant was targeted because he said he would take legal advice.[250]Following this outcome, it was agreed the Claimant would remain on secondment to the new team and he agreed to remain under overall line management of Ms Rockett. As far as the Claimant was concerned, up to the start of this hearing, his written warning had been overturned.[251]Ms Ali subsequently authored a report titled “Lessons learned from appeal case” dated 9 May 2022. It was not known to whom this report was provided. It is common ground that it was not shared with Ms Rockett until shortly before these proceedings albeit it was disclosed to the Claimant as part of the disclosure process by the first Respondent.[252]Ms Ali raised significant concerns about the approach taken to failing the Claimant’s TAP considering the Claimant’s known mental health issues. She noted the Claimant had not long been back from 1720 hours sick leave, had not been pre warned the meeting would be about failing the course, that his suicidal ideations were disregarded and the meeting continued advising on his failures. She also highlighted that the occupational health advice had not been followed and Ms Rockett’s complaint had been targeted and witness statements collaborated in support.[253]Ms Ali notes that Mr Kelly, who was the Claimant’s line manager at that time was informed of the outcome of the appeal on 13 April 2022. Mr Kelly reports to Ms Rockett. The report then states that Ms Rockett had emailed Ms Ali on 4 May 2022 to request details of the outcome of the appeal, which was refused. Ms Rockett then told Ms Ali it was “required for ongoing proceedings” and she could ask the solicitor to contact her directly. Ms Ali records she had been advised by HR and solicitor that the process remained not to share the details. Ms Ali states she was unaware of any litigation. She concludes: It concerns me that this has become a personal mission of Jude’s to have Richard dismissed, simply because he voiced his opinion/disagreement on failing his training. Gearing others in support and targeting is borderline bullying and being of a senior position can seem intimidating for those at lower grades – almost so that the complaint being top heavy with a G7, SO, HO and Band O one-sided against another Band O.[254]Mr Piddock told the Tribunal he had been unaware of Ms Ali’s appeal decision until recently but an undated email in the bundle from Ms Ali states she was due to speak to him after she had conducted the appeal hearing with the claimant on 23 February 2022. This may have been to discuss Mr Piddock’s reasoning with him rather than communicate any outcome. Outcome of the Claimant’s grievance against Ms Rockett[255]The Claimant’s grievance had been initiated on 28 October 2021. It was submitted to the EAS on 4 November 2021. The Claimant was off sick for a period of time until the end of December 2021. A 90-page submission was sent by the Claimant on 21 February 2022. An investigating manager was appointed who held a number of meetings with the Claimant in March 2022. Ms Rockett was interviewed on 25 May 2022 and subsequently Mr Timmins and Ms Barty. We had sight of an investigation report dated 24 November 2022.[256]The decision manager then stood down and in January 2023 Mr Lees was appointed. On 23 February 2023 the Claimant and Ms Rockett were sent a copy of the investigation report, and Ms Rockett made comments. Mr Lees had not been informed of Ms Ali’s decision to overturn his written warning until the Claimant shared it with him in June 2023.[257]The Tribunal saw emails between the Claimant and Mr Lees that were added to the bundle after the February 2024 hearing in time for the July 2024 hearing. Mr Lees was aware that the Claimant had an ongoing tribunal claim and that at least the first Respondent was being represented by the GLD as can be seen from his email to the Claimant on 5 July 2023. On 27 October 2023 Mr Lees sent the Claimant an email stating: “The decision notice is all but complete and is currently being reviewed to ensure my decisions are sound and that the document is understandable and has no obvious errors”[258]On 21 November 2023 he provided a further updating, advising “I’ve had word today that my decision notice still requires some work before this can be delivered to you”. We do not know who was advising Mr Lees about the decision notice but it must have been either the EAS or potentially the GLD.[259]We find that Mr Lee was taking advice and sought authorisation from someone internally at the first Respondent, likely the EAS as to the content and findings of his report and he was fully authorised by the first Respondent to reach the conclusions he reached. The report was a comprehensive, well balanced and considered review of all of the evidence and reached conclusions, like Ms Ali that we find were wholly reasonable based on the evidence available to Mr Lees. It was a damming report respect of his conclusions regarding Ms Rockett’s behaviour and to a lesser degree Mr Barnett and Ms Barty.[260]These were as follows:a. A. Whether Judith Rockett displayed malice towards you. I am partially upholding this concern point.b. B. Whether Judith Rockett abused her position. I am partially upholding this concern point.c. C. Whether management failings occurred. I am not upholding this concern point.d. D. Whether Bullying has occurred. I partially upholding this concern point.e. E. Whether Victimisation has occurred. I am not upholding this point.f. F. Whether Harassment has occurred (Protected Characteristic-Disability) I am not upholding this concern point.g. G. Whether you have been discriminated against. (Protected CharacteristicDisability) I am not upholding this concern point.h. H. Whether Judith Rockett had raised a false grievance (Concern) against you. I am partially upholding this concern point.i. I. If there are untruths or misrepresentations. I am not upholding this concern point.j. J. Whether Judith Rockett breached your confidentiality. I am upholding this concern point.k. K. Whether Judith Rockett breached GDPR regulations. I am not upholding this concern point.l. L. If there were failings in your PTW (Practical training workbook) process. I am partially upholding this concern point.[261]Mr Lees set out his conclusions in a detailed accompany document. It is too lengthy to set out here but we set out the key findings below. We firstly address his conclusions about the TAP failure as this is important in respect of remedy. Mr Lees concluded that the Claimant did not fail on behaviours alone and whilst this was a major part there were other units that had not been completed as highlighted by Ms Walker. He stated that had the Claimant had consideration to his wellbeing and proper help and support then a different outcome may have been achieved. He supported the view that the Claimant had difficulty in accepting feedback. After observing that Ms Rockett only raised her formal concern against the Claimant after receiving his response to failing his TAP he stated: As part of the evidence that has been provided, I conclude that Judith Rockett did display malice towards you by raising this concern based on exaggerated claims of aggressiveness and claims of a lack of honesty and integrity. Judith Rockett’s account of your use of foul language changed in seriousness over time, with at least three different accounts being documented of what happened in the meeting of the 3rd of August 2021.[262]He highlighted the discrepancies between the alleged language that had been used by the Claimant then concluded: This followed attempts by Judith Rockett to have you dismissed for failing your TAP and also, she did not believe that you had declared your mental health when you commenced employment with HMRC. On the balance of probabilities, it can be concluded that Judith Rockett used this as a means to have you removed from employment, as this was specifically asked for in the outcomes part of her concern, she had submitted in relation to you which you have seen. And I would expect an assistant director to be able to meet with an officer to discuss conduct without fear. Especially one who was fully aware of your mental health situation and would understand the stress and strain this would put you under. Especially given your statement in the meeting of 3rd August 2021 stating your thoughts of self-harm. As you have stated you have had no behavioural problems before that and I consider it unusual that someone who has no history of, no reprimands, or corrective actions taken for behavioural problems would be felt unsuitable to work in any area of HMRC, giving concern to any team that you are redeployed to. Despite Judith Rockett being willing to redeploy you only a matter of days earlier.[263]Regarding the “digging the dirt allegations he concluded: Emails from the SAR show that on the 5th August 2021, Alex Barnett specifically instructed Vanessa Barty (PTO) and Lee Timmins (your manager at time) to compile feedback on your failures in order to be used against you in your TAP appeal. …. This email also included a list of action points to be carried out by Alex Barnett, Lee Timmins and Vanessa Barty. On the balance of probabilities, it does show that Judith Rockett was only looking for feedback on your failures and no positive feedback to share with the appeal manager Debbie Walker. Although this email disseminated from Alex Barnett, Judith Rockett did not object to this email being sent, and replied to the original email with an additional action point. Judith Rockett advised the investigation manager on several occasions that a comprehensive review had taken place. If that had been the case there would have been no need for additional negative evidence to be gathered and the appeal could have taken place on the same terms as the original review. This appears to be a concerted effort to deny your right to a fair appeal against the failure of your TAP.[264]On 5 January 2024, over 14 months from the date the grievance was raised, the Claimant was sent the outcome of his grievance by Mr Lees. He was also not called to give evidence to the Tribunal by the Respondents. In the absence of any explanation we find it was because his report was also very damaging to the Respondents defence.[265]The report was sent to the Claimant 6 or so weeks before the beginning the Tribunal hearing. The Claimant reasonably understood that the first Respondent had adopted and accepted Mr Lees report and therefore which of his concerns had been upheld or partially upheld. He relied on this report in drafting his witness statement.[266]We therefore have an extraordinary position of the first Respondent having two senior managers undertake lengthy investigations supported internally by at least the first Respondent’s EAS and possibly legal advisors subsequently being resiled from by the first Respondent at the start of these proceedings and subsequently initiating a whole new investigation, after their reports had been sanctioned and signed off.[267]On 14 February 2024 Ms Rockett raised a formal concern against Ms Ali and Mr Lees. Whilst not directly relevant to the issues in this claim, the content and tone of that grievance are. Ms Rockett has levied the most grave and serious allegations against Ms Ali. She alleges that Ms Ali abused HR process and conducted an inadequate and illicit investigation causing her reputational damage and discredit. She accuses Ms Ali of discrimination and victimisation by conducting an illicit investigation and presenting her findings as evidence without ever having raised the issues with Ms Rockett and reached a perverse and biased conclusion in favour of the Claimant. She also accuses Ms Ali of maliciousness, deliberate dishonesty, deliberately excluding relevant material and a deliberate perversity to reach an outcome in favour of the Claimant.[268]Ms Rockett also accuses Mr Lees of refusing to engage with her and deliberately withholding his outcome and Ms Ali’s report from her and of colluding with Ms Ali.[269]Ms Ali was originally due to give evidence for the Claimant. The Tribunal was not provided with any explanation as to why the Respondent did not call Ms Ali. The Claimant informed the Tribunal prior to the hearing he would not be calling Ms Ali. He was asked about this under cross examination and told the Tribunal that he had discussed matters with Ms Ali and they reached a decision that her report should speak for itself and they were also concerned she would be targeted if she gave evidence for the claimant.[270]The Claimant did not know that the first Respondent would resile from her report or that of Mr Lees. The amended response filed on 28 June 2023 actually sought to rely on Ms Ali’s report in defence of allegation 5.2.3 (disciplining the Claimant for foul language). Timeline of CIF training (was there an “open ended” TAP?)[271]We deal with findings in respect of the status of the training programme during the Claimant’s TAP period. There is some evidence above as to what was being communicated to managers at the time but all of the relevant dates were subsequently confirmed in an email to the Claimant from Ms K Singleton, Deputy Director Professionalism on 8 January 2024. She advised that the dates had been communicated to the PTO reps (in this case Ms Barty) and confirmed there had never been an indefinite moratorium on training rather pauses reflect in additional time allowed for trainees to complete and demonstrate their learning. These were as follows: 24/03/20 – Email from CFA outlining that CIF training had been paused in line with government guidelines. Digital Classrooms to commence at the end of April 2020. Message advised that TAP’s were to be extended by a minimum of two months, dependent upon further guidelines on the pandemic. 21/04/20 – Email from CFA advising that digital classrooms had commenced. Further confirmation that TAP’s will be extended with new end dates agreed when we were able to recommence BAU10 delivery. 20/11/20 - Email from CFA confirming position to recommence F2F11 training in Jan 2021. 13/01/21 – Email from CFA to outline FIS SLT decision to temporarily pause all F2F delivery. 25/01/21 – Email from CFA outlining new F2F training dates (commencing from 01/03/21). 29/03/21 – Email from CFA outlining CIF recommencing from 12/04/21. 12/08/21 – Email from CFA confirming that all trainees who had completed their CIF F2f/Finex will have had their TAP extended until July 2022. The Claimant was in this particular category but had of course been failed by Ms Rockett 9 days earlier.[272]On 12 August 2021 an email was sent by a Ms Fearne (Senior Officer in CFA) to PTO reps and HR about a new foundation programme. In that 10 Business as usual 11 Face to face email she discussed TAP end dates and stated “we have now confirmed that all trainees who have completed their CIF f-2-f/finex will have a TAP end date of 31 July 2022.” She commented they were being generous with the end date “of those currently in TAP” to allow time to complete the PTW’s and evidence portfolios. She further states (underlined): This date is an ‘up to’ date and therefore we will be expecting PTW’s to completed and submitted long before then for those who completed their training some time ago.[273]Mr Barnett, Mr Timmins, Ms Rockett and Ms Walker all told the Tribunal that whilst that was the case generally, the first Respondent had to ability to terminate students at any time of they considered they had had sufficient time to complete the training. We accepted this evidence and it was also supported by the terms and conditions on appointment (see above). In respect of the Claimant it was felt that as the Covid restrictions that affected his ability to complete his PTW only four months prior to the end of the usual 12 month programme, the Claimant had had sufficient time with the extension to August 2021 to evidence he could pass the programme.[274]Both Ms Rockett and Mr Barnett “double downed” on this when giving evidence asserting that the Claimant would never have been able to pass even if he had had further time as he was not capable.[275]Lastly, the Tribunal heard evidence about a previous criminal conviction in respect of an individual who was not a comparator for the purposes of the claim. For these reasons we do not consider that evidence to be relevant to the issues in the claim and it is not proportionate to make any further comment in this regard.
The Law
[276]The issues before the Tribunal were to determine whether the Claimant was a disabled person for the purposes of the Equality Act 2010 as defined in Section 6. The burden of proof lies with the Claimant.[277]The steps that the Tribunal are required to examine in such matters are whether the Claimant has a physical or mental impairment that has a substantial adverse effect and a long-term adverse effect on the Claimant’s ability to carry out day to day activities.[278]The substantial adverse effect is one that is more than minor or trivial and a long-term effect is one that has lasted for at least 12 months, is likely to last for at least 12 months, or is likely to last for the rest of the life of the person. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities it is treated as having continued to have that effect if the effect is likely to recur.[279]Section 6 of the Equality Act provides: 6 Disabilitya. A person (P) has a disability if—b. P has a physical or mental impairment, andc. the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.d. A reference to a disabled person is a reference to a person who has a disability.e. In relation to the protected characteristic of disability—f. a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;[280]In determining whether a Claimant is disabled the Tribunal must take into account of the statutory guidance on the meaning of disability as it thinks relevant (2011 Guidance on Meaning of Disability). Joint and several liability of multiple Respondents[281]Discrimination is a statutory tort which means that where two (or more) respondents are jointly responsible for an act of discrimination, harassment or victimisation, the Tribunal can award compensation on a joint and several basis. S110 EQA 2010 deals with the liability of employees. It provides that a person(a) (A) contravenes the section if A is an employee and A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be) and the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be). Under s110 (3) A does not contravene this section if A relies on a statement by the employer or principal that doing that thing is not a contravention of this Act, and(b) it is reasonable for A to do so.[282]In London Borough of Hackney v Sivanandan & Others [2013] EWCA Civ 22, the Court of Appeal upheld the EAT’s decision that an employment tribunal had no power to apportion a compensatory award where numerous respondents were found jointly and severally liable for an indivisible act of discrimination. In the EAT, it was held that where there are co respondents jointly responsible, the usual award will simply be that each such respondent is jointly and severally liable. In such cases, the EAT (Underhill P presiding) held that the Employment Tribunal's discretion to apportion liability to the claimant between each of the respondents exists only where the injury caused by different acts of discrimination is 'divisible' and the tribunal can—and, indeed, should—apportion to each discriminator responsibility for only that part of the damage done by them. Even then, the EAT warned that such 'split' awards should only be made where such an order is sought by one of the parties and if the proper legal basis for the discretion is clearly demonstrated in the particular case. Direct Discrimination[283]Section 13(1) of the Equality Act 2010 (“EQA 2010”) provides that direct discrimination takes place where a person treats the claimant less favourably because of the protected characteristic of sex than that person treats or would treat others. Under s23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.[284]Under s136 EQA 2010, if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision. Guidelines were set out by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258 regarding the burden of proof (in the context of cases under the then Sex discrimination Act 1975). The Tribunal must approach the question of burden of proof in two stages.[285]The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act if the complaint is not to be upheld. To discharge the burden of proof “it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex,” (per Gibson LJ).[286]In Nagarajan v London Regional Transport and others [1999] IRLR 572 HL held that the Tribunal must consider the reason why the less favourable treatment has occurred. Or, in every case of direct discrimination the crucial question is why the Claimant received less favourable treatment.[287]The key to identifying the appropriate comparator is establishing the relevant "circumstances". In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 this was expressed as follows by Lord Scott of Foscote: "...the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class."[288]Hewage v Grampian Heath Board [2012] IRLR 870 (SC) endorsed the guidelines in Madarassy v Nomura International [2007] IRLR 246 (CA) concerning what evidence is required to shift the burden of proof. Facts of a difference in treatment in status and treatment are not sufficient material from which a Tribunal could conclude that on the balance of probabilities there has been unlawful discrimination; there must be other evidence. S20/21 – Failure to make reasonable adjustments[289]Sections 20 and 21 of the Equality Act 2010 set out the duty to make reasonable adjustments. In this case, it is the duty arising under S20 (3) EQA 2010. The Tribunal must consider first of all the PCP applied by the employer, secondly the identity of non-disabled comparators (where appropriate) and thirdly the nature and extent of the substantial disadvantage suffered by the Claimant. (Environment Agency v Rowan 2008 ICR 218, EAT). The question whether the proposed steps were reasonable is a matter for the ET and has to be determined objectively. We were also referred to Smith v Churchill Stairlifts plc [2006] IRLR 41 and HM Prison Service v Johnson [2007] IRLR 951.[290]The EHRC Employment Code provides that the meaning of “PCP” should be widely construed so as to include and formal or informal policies, rules, practices, arrangements, criteria, conditions. Prerequisites, qualifications or provisions.[291]In United First Partners Research v Carreras 2018 EWCA Civ 323, CA, the Court of Appeal held that tribunals should not adopt an overly technical approach to what constitutes a ‘practice’ for the purpose of showing that a PCP has been applied.[292]In Nottingham City Transport Ltd v Harvey [2013] EqLR 4, Langstaff J stated: 4 ““Practice” has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply.”[293]The employer’s duty is to take such steps as it is reasonable to take to alleviate the disadvantages. Such steps should not be unduly restricted (Griffiths v Secretary of State for Work and Pensions 2017 ICR 160). The Tribunal must consider whether the particular adjustment would or could have removed the disadvantage experienced by the Claimant. Section 26 EQA 2010 – Harassment[294]Section 26 sets out the definition of harassment. Part 7 of the EHRC Code provides that unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic.[295]It is a question of fact for the Tribunal as to whether the conduct complained of occurred. If so, the Tribunal must determine if it had the purpose or effect as set out in S26 (1) (b). The test has subjective and objective elements to it. The subjective part involves the tribunal looking at the effect that the conduct of the alleged harasser has on the Claimant. The objective part requires the tribunal to ask itself whether it was reasonable for B to claim that A’s conduct had that effect.[296]In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495 the EAT held that the broad nature of the ‘related to’ concept means that a finding about what is called the motivation of the individual concerned is not the only necessary or possible route to the conclusion that the conduct in question is related to the particular characteristic. Nevertheless there must still be some feature or features of the factual matrix identified by the Tribunal which properly leads it to the conclusion that the conduct is related to the protected characteristic. The Tribunal must articulate what these features are.[297]General Municipal and Boilermakers Union v Henderson 2015 IRLR 451 provides that a single comment could not constitute harassment because it had not reached the necessary degree of seriousness.[298]In Reverend Canon Pemberton (appellant) v Right Reverend Inwood, former acting Bishop of Southwell and Nottingham (Respondent) - [2018] IRLR 542, Underhill LJ held: S 26 of the 2010 Act [entitled “Harassment”] … is not in identical terms to s 3A of the Race Relations Act 1976, with which I was concerned in Dhaliwal … the precise language of the guidance at para 13 of [that] judgment … needs to be revisited. I would now formulate it as follows. In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the Claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the Claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.'[299]We were referred to the authority Richmond Pharmacology v Dhaliwal [2009] IRLR 336 in which the EAT confirmed that for conduct to qualify as harassment it must cross the threshold for severity to have the required effect on dignity or environment. Also Nazir and Aslam v Asim and Nottinghamshire Black Partnership [2010] ICR 1225 which emphasised it is relevant to take into account the context in which harassing comments were made. when considering whether they relate to the protected characteristic. Victimisation[300]Section 27 EQA 2010 provides: 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[301]Under S27 (c ), an act can be done in reference to the legislation if it is done “in the broad sense even though the doer does not focus his mind specifically on any provision of the Act” (Aziz v Trinity Street Taxis Ltd & Others ICR, 534, CA).[302]Under 27(2( (d) it is not necessary for there to have been an express clear reference to the Equality Act. If a claimant asserts things have been done which breach the Act but does not say those things are contrary to the Act, this will not amount to a qualifying allegation (Waters v Metropolitan Police Comr [1997] IRLR 589.[303]The asserted facts must be capable of amounting to a breach of the Equality Act 2010.[304]Durrani v London Borough of Ealing UKEAT/0454/12 (unreported, 10th April 2013) and Fullah v Medical Research Council UKEAT/0586/12 (unreported, 10th June 2013) are authorities for the submission that a mere reference to discrimination without identifying the protected characteristic does not amount to a protected act.[305]In Durrani, Langstaff P said: 'I would accept that it is not necessary that the complaint referred to race using that very word. But there must be something sufficient about the complaint to show that it is a complaint to which at least potentially the Act applies. The Tribunal here thus expressly recognised that the word “discrimination” was used not in the general sense familiar to Employment Tribunals of being subject to detrimental action upon the basis of a protected personal characteristic, but that of being subject to detrimental action which was simply unfair.…[306]The treatment must be by reason of the protected act. The Tribunal must consider the employer's motivation (conscious or unconscious); it is not enough merely to consider whether the treatment would not have happened 'but for' the protected act. See also Martin v Devonshires Solicitors [2011] ICR 352, Panayiotou v Kernaghan [2014] IRLR 500) approved in Page (appellant) v Lord Chancellor and another (respondents) - [2021] IRLR 377.
Conclusions
[307]It is not proportionate to address this issue in detail as the relevant period for the complaints span the period where the Respondents conceded disability by way of depression in any event (25 January 2021 and 17 April 2023). Direct disability discrimination Comparators[308]The actual comparators relied upon by the Claimant were “other students on the TAP programme that had an open ended tap and or no set review date and or their PTW folders returned for a second chance.” The Respondents amended response asserted without names of actual comparators they were unable to plead whether they were valid or treated more favourably. There was no evidence about actual individuals on the TAP programme in any of the witness statements. We have made some findings of fact and draw the following conclusions about comparators before us as follows:[309]As we did not know the identity of the other TAP students, how many had a disability, when they started their training, how much extra time they were given to accommodate for the pandemic, we are unable to make any comparison with the Claimant’s treatment. Fortunately this has not proven necessary given our conclusions below our conclusions for the “reason why” dispensing for the need for a comparator analysis in any event. However we are able to conclude as follows:[310]During 2021 there was no pressure to get students signed off. This is confirmed on multiple occasions (see Ms Rockett’s email at paragraph 63 and the email from HR to Mr Barnett on 17 February 2021 (paragraphs 64- 65). At the time of the Claimant’s termination of his TAP the position was that CFA had “outlined CIF recommencing from 12/04/21”. By virtue of the email on 12 August 2021 position was that all trainees who had completed their CIF F2f/Finex would have their TAP extended until July 2022. Although the Claimant’s TAP had been ended on 4 August 2021, generally speaking it must follow that the substantive overall position in respect of all trainees was that the TAP period would be extended until July 2022. The email from Lisa Fearne also confirms that this decision applied to all trainees who had completed the CIF Fdf/ Cinex would have their training extended and the Claimant was in this category. We found that whilst there was an open ended TAP, generally, managers did have the authority to terminate the TAP earlier provided they followed the appropriate procedures. We make this finding as we accepted what the Respondent’s witnesses told the Tribunal and this was also corroborated in Ms Fearne’s email where she commented that we will be expecting PTW’s to completed and submitted long before then for those who completed their training some time ago.[311]We now turn to our conclusions in respect of the less favourable treatment asserted by the Claimant for the s13 claim. Refuse to acknowledge the Claimant’s mental health[312]This was in the original claim form and put in the context of the first Respondent failing to acknowledge the Claimant’s mental health and pass it on to line managers. We have therefore understood this complaint to be about the failure to acknowledge the Claimant’s initial health declarations and subsequent assessments and not in relation to the later conduct in August 2021 when the Claimant was called a liar for asserting those declarations. It was common ground that the initial declarations and assessments were not passed on to the line managers who were unaware until the Claimant spoke to Mr Barnett on 18 March 2021 and according to Mr Woffenden, they should have been. See findings of fact at paragraph 174.[313]In this context, the claim does not succeed as whilst the information was not passed on, there was not a failure to acknowledge the Claimant’s mental health issues. The first Respondent acted upon the information disclosed in the health declaration by referring the Claimant for a proper medical assessment. As the Claimant was stable and reporting no issues, the advisor certified him fit for his role with no adjustments. Further, when the Claimant disclosed to Mr Barnett it was acknowledged and acted upon. It was discussed at the meeting with Mr Timmins and the Claimant was referred to Occupational Health. Factually this complaint is not made out and therefore fails. Terminate the Claimant’s TAP and not give the Claimant an open-ended TAP[314]This is not in dispute. The decision to terminate the Claimant’s TAP was made by Ms Rockett on or around 3 August 2021 and communicated to the Claimant at the meeting on 4 August 2021. This was less favourable treatment as the result was that the Claimant could no longer continue in his role and whilst he was not dismissed as a result this was only because the first Respondent had to treat him as an internal candidate. It also resulted in both a loss of status and monetary allowances.[315]We consider that this complaint needs to be determined by the reason why the treatment occurred. The evidence before us about comparators, actual or hypothetical was not conclusive other than to say that there was an open ended TAP but that managers could terminate prior to this if it as felt the trainee had had sufficient time depending on how far into their training period they had been when the Covid restrictions began. In respect of this complaint we do not consider we need to embark on the comparator issue as the reason why the Claimant’s TAP was terminated was not because of his disability but because Ms Rockett considered he had had sufficient time and opportunity but was unable to meet the requirements of the training programme. The reason the Claimant was not given an open ended TAP was because Ms Rockett believed she had the authority to terminate it at any time and was justified in doing so. There was no evidence that she was motivated either consciously or unconsciously by his disability indeed the evidence shows that she gave this no consideration at all. In our judgment, this complaint was potentially more appropriately a complaint of discrimination arising from disability but that was not the complaint before us. This complaints are not well founded. Not return to the Claimant his PTW folder for a ‘second-chance’[316]See findings of fact at paragraphs 133 and 186. As of 5 and 9 August 2021 Ms Barty was charged with asking the Claimant if he had any more evidence to add. Mr Barnett intended the Claimant to be able to access his folder and add to it specifically acknowledging this was “only fair”. This all changed by 2 September 2021 as Ms Rockett took a decision to lock the Claimant out of his PTW folder meaning he would be unable to add anything to it as opposed to management who were still adding information. This was less favourable treatment as there was not a level playing field for the Claimant. We consider that the Claimant has proved facts from which this Tribunal could, apart from the section, conclude in the absence of an adequate explanation that the Respondents has committed, or is to be treated as having committed, the unlawful act of discrimination.[317]We looked to the explanation from the Respondents in the amended response which was that the Claimant was advised on numerous occasions what improvements needed to be made to his PTW folder, so he was aware of what was required to in order to successfully completed his TAP. Whilst this may have indeed been the case previously it does not explain why there was a change in position between 5 August and 2 September 2021. In our judgment the reason why the Claimant was not permitted to add to his PTW in a change in position was not because of his disability but because of the Claimant’s grievance against Ms Rockett and the management actions of seeking to ensure the decision to fail to TAP could be post justified. We explain our findings in this regard in more detail below under our conclusions on victimisation. What is plain in our judgment was the conduct was not because of the Claimant’s protected characteristic of disability. This complaint is not well founded. Compare the Claimant to ‘normal officers’ i.e. others on the TAP;[318]See findings of fact at paragraphs 91, 94, 95, 100, 104, 112. A comparison with other students on the TAP happened on multiple occasions and was repeated in the Respondent’s witness statements but at no time did the managers use terminology such as “normal” students. In our judgment the reason why the managers made these comparisons was not because of the Claimant’s disability but because they considered that notwithstanding his mental health issues he had over and above enough extra time to pass the TAP programme. The judgment of the Claimant against other students was not because of his disability. As we have found above under the TAP failure conclusions, there was no evidence that the comparisons were motivated either consciously or unconsciously by the Claimant’s disability. In fact, for reasons we discuss below, the evidence shows that the managers gave this no proper consideration at all when they should have done. This does not mean a claim for direct discrimination can succeed. This complaint is not well founded. Failure to make reasonable adjustments[319]The Respondents asserted in the amended response that did not know or could reasonably have known that the Claimant was likely to have been placed at the disadvantages. In written submissions the Respondents maintained this on the basis the Claimant’s disclosures (about his disability) were “vague and inconsistent”. They asserted that the Wellness Plan mentioned stress without specifying a disabling condition and Mr Timmins evidence was that the Claimant did not request adjustments specific to a disability. Further the Claimant acknowledged he had not made explicit requests for accommodation beyond general workplace support.[320]The Claimant relied upon the substantial disadvantages compared to someone without his disability: a) It was significantly more difficult and took longer to learn/absorb information and/or information learned was at risk of being forgotten; b) The Claimant was unable to complete the tasks within the timeframes; c) The Claimant struggled to focus / had brain fog resulting in Claimant missing important facts.[321]In respect of the above substantial disadvantages we find that the medical evidence and in particular the Occupational Health report corroborate that the Claimant experienced these disadvantages see our findings below.[322]In respect of the following said disadvantages these were consequences of the disadvantages rather than disadvantages themselves: d) The Claimant was unable to pass the TAP; e) The Claimant’s performance and well-being were not managed and his poor mental health was exacerbated;[323]In our judgment, the first Respondent knew or should reasonably have known about the substantial disadvantages as of 18 March 2021. The second Respondent knew or should reasonably have known by on or around 21 April 2021. These are our reasons: a) When the Claimant disclosed his mental health issues on 18 and 19 March 2021, Mr Barnett specifically acknowledged that his mental health may have been a cause for his work taking a backward step (see paragraphs 74- 74); b) Whilst we agree the Claimant told Mr Timmins on 31 March 2021 that he did not need specific restrictions or adaptions, he did tell him that last minute leave might assist to help him manage his condition and that there was an indirect link or impact on his work due to his medication which was causing interrupted sleep, leaving him tired and open to making mistakes (see paragraph 82); c) The Claimant also told Mr Timmins at the meeting he was on anti depressant medication and was awaiting an assessment for suspected PTSD which would have alerted any reasonable person that the Claimant must have been experiencing serious symptoms; d) In the Wellness plan the Claimant told Mr Timmins that his mental health was best described as an almost full coffee cup and how stress affected him; e) Of significant relevance to this question is the content of the Occupational Health report dated 21 April 2021 which gave the Respondents clear and detailed advice as to how the Claimant’s disability would affect him corroborating the first Respondent would have been aware of the substantial disadvantages (see paragraphs 85 – 88); f) On 7 May 2021 the Claimant further disclosed the effects of his disability (see paragraphs 90-91) to Mr Timmins and Mr Timmins acknowledged them (for example difficulty in sleeping and lack of concentration); g) Whilst we do not know when the Occupational Health report was sent to Ms Rockett, we find it would have bene on or around 21 April 2021 upon receipt by Mr Timmins who would have forwarded it on. We do know she had read the report by the meeting on 11 May 2021 (see paragraph 98). Upon reading that report the second Respondent would have been imparted with knowledge of the substantial disadvantages.[324]There was overwhelming evidence to support the knowledge as outlined above and the Tribunal considers the Respondents position to have been unreasonable in the light of this evidence. PCP’s[325]The Respondents accepted they applied the first two PCP’s which were as follows: a) A requirement to undertake and complete training over a Training Assessment Period (“TAP”) and; b) Applying a TAP involving set tasks to be completed within set time frames;[326]The Respondents did not accept that the third and fourth PCP’s were capable of amounting to PCP’s or that they applied the same. These were a) Terminating an open-ended TAP/Terminating an open-ended TAP in a review meeting; b) Not following/undertaking TAP/Practical Training Workbook (“PTW”) reviews and meetings and/or performance support meetings;[327]From 24 March 2020 there was a decision to suspend the TAP programme. There was a clear policy that following this there was no pressure to get students signed off and everyone generally understood the programme was being extended until such time it was deemed there had been sufficient opportunity to complete the PTW’s. Eventually as of 12 August 2021 we saw that an end date was agreed to be July 2022 for students that had completed their CIF F2f/Finex.[328]We found above that this was not a blanket extension for all trainees but would depend on each student. We also found that the first Respondent had the right to terminate TAP’s during this extended period. This was one of the Respondents main arguments in respect of the decision to terminate the Claimant’s TAP and it is therefore unclear why the third PCP was disputed. It was the Respondents case that the Claimant and indeed any other student could have their TAP terminated at any time if the managers deemed they had had sufficient time to pass and had been unable to do so. We suspect the argument being fought over was that the TAP was not open ended because of the timing of the final extension on 12 August 2021. The Tribunal finds that the first Respondent applied the third PCP to the Claimant and would have applied it to others.[329]In respect of the fourth PCP, to not follow / undertake TAP PTW reviews and meetings and / or performance support meetings this requires a little more unraveling as these are two different factual assertions.[330]Firstly in our judgment the first Respondent did not follow or undertake the required TAP / PTW review and meetings in respect of the Claimant: a) Ms Rockett as the DO did not undertake the mandatory minimum quarterly reports (see paragraph 51): b) Ms Rockett also did not ensure all records were up to date (see paragraph 199); c) Ms Barty did not complete the mandatory assessor duties as she did not take remedial action and review performance with the Claimant’s line management nor did she inform CFA of any relevant issues (see paragraph 52): d) Ms Barty did not hold the mandated one to one meetings, complete the paperwork nor did she hold any “ad hoc meetings (see paragraph 201); e) The first Respondent and Ms Walker did not follow the Process overview flowchart procedure including the right to bring a grievance regarding the TAP failure decision (see paragraphs 46, 203).[331]Secondly, in light of Ms Walker’s findings that although the reviews had not been conducted in accordance with procedures pragmatism must come into play due to the Covid pandemic (see paragraph 199) the Tribunal concludes that the PCP was both repeatedly applied to the Claimant and was or would be capable of being applied again to other students by reason of the pandemic impacting on the ability to comply with the TAP / PTW reviews and meeting requirements.[332]Turning to the second element of this PCP - not following performance support meetings. The first Respondent applied this PCP to the Claimant. They did not follow their own performance management procedure (see paragraph 41). This provided that the managing poor performance procedure should have been followed in respect of the Claimant. The policy applies to everyone with the exception of probationers and the Claimant had passed his probation. Mr Timmins acknowledged that this process should be the next step on several occasions (see paragraphs 113, 114, 180). As late as 27 July 2021 Mr Timmins observed the next steps would be to invoke the poor performance process. We have already observed that it remains unexplained to this Tribunal why this procedure was not followed. Further, there is a discord between the first Respondent’s managing poor performance policy and the Process overview to deal with TAP failure. Whilst the latter provides some process for addressing poor performance it must not have the same structure as the former which envisages a PIP and in all likelihood several stages and warnings before dismissal.[333]There are a number of students enrolled in the TAP training programme at any one time. We heard that other trainees have failed to TAP programme (see paragraph 20). Whilst we do not know for certain which process was followed or that the performance management policy was not followed in those cases, in light of the above discord the PCP was capable of being applied again and therefore is a valid PCP.[334]The Respondents rely upon the extension of his TAP training period by 11 months and feedback and direction provided, the wellness plan and signposting provided by Mr Timmins and the adjustments put in place. These were asserted to have been late notice leave, flexibility in work pattern, extended deadlines, changes in activity, regular discussions with the PTO and regular performance development conversations to be kept under constant review, with a further meeting to take place after an occupational health referral.[335]The Claimant suggested the following steps should have been taken to avoid the disadvantages: Acknowledging the Claimant’s poor mental health during the TAP;[336]This was not the same acknowledgement point as the s13 claim. This was a different complaint as the reasonable adjustment complaint asserts his mental health was not acknowledged during the TAP. In the original complaint the Claimant stated “Judith Rockett – failed to acknowledge my mental health, all for reasonable adjustments for my long term impairment / disability.” In the Claimant’s further and better particulars the Claimant repeated the above assertion adding the symptoms of his mental health were the same as the reasons for failure. We therefore understand this complaint to be about the Respondents failing to acknowledge his disability during the TAP.[337]We agree that the Respondents failed to acknowledge the effect the Claimant’s mental health would have had on his performance and ability to complete the PTW from the date of knowledge (18 March 2021 for R1 and 21 April 2021 for R2). They failed to take into account what they were advised by Occupational Health on how the Claimant’s disability would have been affecting his performance; instead these were described as the Claimant making “excuses that did not tally”;[338]The Respondents were told by Occupational Health that the Claimant’s disability had undoubtedly had an impact on his performance yet did nothing to quantify to what extent;[339]On 7 May 2021 Mr Timmins told the Claimant he would alert the DO that it was “right that some allowances should be made in recognition to the extra challenges he had faced”. He subsequently highlighted this to Ms Rockett but went on to say he had had enough time anyway given the extra time that had been provided (see paragraph 99-100).[340]On 11 May 2021 despite a focus on what we have found to be the substantial disadvantages (Claimant’s time needed to complete tasks, lack of time management and commitments to take advice on board and meet deadlines), the managers did not equate any of these issues with his disability despite what they had been told by Occupational Health. We find that Ms Rockett’s attitude towards the Occupational Health advice dismissive and indicative that she had not properly considered the advice when reaching her decision (see paragraph 94 – 96 and 98). In fact the report had identified reasons as to why the Claimant was behaving in the manner described;[341]Ms Rockett said she would take the Claimant’s “medical situation” into account yet she did not do so (100);[342]The Claimant had a significant period of sick leave between 21 June 2021 being signed off for a total of 30 days yet no consideration was given to giving him further time on return from his sick leave to complete his PTW. We observe that in any event such further time may not have assisted as he had not been given the extra feedback and support promised by Ms Barty and Mr Timmins (see below);[343]Ms Barty did not take into account the Claimant’s mental health issues when setting her TAP review in March 2021 and did not revisit them in light of what she knew when she revisited the review on 23 June 2021. She accepted under cross examination that some of her criticisms of the Claimant could have been as a result of his depression symptoms (see paragraph 109);[344]The Claimant was not given advance warning of the nature of the meeting on 4 August 2021. This meeting could have ended with the Claimant’s dismissal had he not been deemed an internal candidate. The arrangements for the meeting were crass and insensitive and did not consider how such news might impact on someone with the Claimant’s disability namely its timing in respect of the Claimant’s return from sick leave, no right to be accompanied no forewarning and it taking place on Teams. Nobody checked that the Claimant was going to be well enough to attend this meeting. We agree that given what the Claimant had been told by Mr Timmins on 27 July 2021 and that he considered he had passed the three tasks set by Mr Barnett despite his sickness absence that the Claimant would naturally have been extremely shocked at the news Ms Rockett delivered at that meeting;[345]Ms Rockett expressed surprise when the Claimant told her he had not been firing on all cylinders despite being aware of the Occupational Health referral and what had been said by Mr Timmins, as well as herself saying she would take his medical situation into account;[346]Ms Walker’s review also acknowledged how the Claimant’s lack of planning, concerns over quality of work and that when left to prioritise his own work he had not displayed the appropriate behaviours consistently. She barely mentioned the Claimant’s disability and we find she did not properly consider how his disability may have impacted on his ability to complete the PTW especially given the lengthy period of sickness absence and the absence of any final reviews or targets;[347]The failings were acknowledged by HR (175) who stated that “some remedial action may be required”. None was taken;[348]For these reasons it would have been reasonable for the Respondents to have taken the step of properly acknowledging the Claimant’s mental health and had they done so it would have alleviated the disadvantages by properly assessing how it had impacted on his performance. The first and second respondent are jointly and severally liable. Giving the Claimant fewer tasks to undertake during the TAP / Giving the Claimant a longer period to complete any tasks given during the TAP / Returning to the Claimant his PTW folder for a ‘second-chance’[349]The Claimant had returned his PTW to Ms Barty in January 2021 for a review. He heard nothing from her until Mr Barnett emailed his review of the PTW in March 2021. He was told to focus on three tasks by Mr Barnett. Ms Walker found he had completed two of them but not disclosure.[350]The three tasks set by Mr Barnett on 18 March 2021 were not adjusted neither was the deadline even though they were set before the mental health disclosures, occupational report advice and the long period of sickness absence starting on 21 June 2021. No adjustment was made to the tasks and this was unreasonable given those developments since the tasks were set.[351]The first Respondent failed to act on the advice of occupational health. The team had experienced an intense operational period (see paragraph 92). Occupational health recommended a reduced workload to allow the Claimant to focus on fewer tasks. It was not reasonable for Mr Timmins to decide that the Claimant had autonomy and could agree longer deadlines himself as he had been told by Occupational Health that the Claimant was forgetful and easily distracted which had an impact on his ability to manage his workload. Mr Timmins also failed to keep this under constant review as he promised on 7 May 2021 (see paragraph 91);[352]Mr Timmins refused the Claimant last minute leave on 9 June 2021 citing the reason that his PTW folder needed to be up to date even though this was one of the agreed reasonable adjustments that were made. This in our judgment shows that there was no consideration of giving the Claimant more time to complete the tasks even when he told Mr Timmins he was struggling.[353]It was also not reasonable to permit the management team to add new evidence to the PTW but not permit the Claimant to do so.[354]It would have been a reasonable step to adjust or restructure both the tasks and the timeframe and this could have alleviated the disadvantage. Giving the Claimant an open-ended TAP[355]We agree that the first Respondent should not have been expected to allow the Claimant an open ended training period and this would not have been a reasonable step to have to take. Ensuring that policy on PTW and TAP in terms of assessments, reviews and welfare checks and meetings on performance were undertaken / Holding additional meetings with the Claimant[356]We remind ourselves of the purpose of reasonable adjustments. The duty requires a degree of positive action by the employer to alleviate the effects of a PCP. It must follow that when applying a PCP to a disabled employee one would expect that an employer would follow their own internal procedures and policies unless there was a very good reason to depart from them and in such cases of a departure examine the overall reasonableness of that departure.[357]In our judgment it should be a reasonable step for the Respondents to have followed their own internal procedures. There were multiple failures in this regard:[358]The did not follow their own procedures for meetings, reviews and providing feedback to the Claimant. The first Respondent did not follow their own performance and development policy by placing the Claimant on the poor performance procedure nor did they follow the section on how disability may affect performance (see paragraphs 41 and 42). The Claimant’s goals were not jointly reviewed and discussed upon his return to work after the June 2021 absence.[359]The first Respondent did not follow the DO and PTO requirements in respect of quality assurance checks, monthly meetings, record keeping and failed to take remedial action with the line manager or inform CFA of issues in professional discussion interviews (see paragraphs 51, 52 and 199);[360]The first Respondent via Mr Timmins and Ms Barty did not follow the steps they had had set out to support the Claimant (see paragraph 92 - no stress management plan, no framework, no weekly half hour meetings with Ms Barty). These were important and would have assisted the Claimant having regard to the substantial disadvantages by assisting him to manage completion of tasks in a structured way. The weekly meetings would also have assisted the Claimant in organizing himself to ensure he was working towards completing the outstanding tasks and identify gaps to help him complete his training. In fact Ms Barty was on long term sick and only sent the Claimant 2 work related emails in the whole of 2021.[361]Ms Rockett did not follow the first Respondent’s flowchart procedure in deciding to fail the Claimant’s TAP and the Claimant was denied his right to grieve the decision even though that was the process flowchart. Had the Claimant been provided with a proper and fair opportunity to challenge the decision there may have been a different outcome. We are not persuaded that the above departures were reasonable due to Covid. In our judgment in no way can the pandemic justify the failure to take the above steps. Not terminating the TAP/Not terminating an open-ended TAP on the review date (or at all)[362]In our judgment it would have been a reasonable step to not terminate the TAP at the date it was terminated as it was premature and further adjustments should have been made prior to making this decision. We are not concluding it could never have been terminated. That will be a question for remedy albeit we have made findings above based on what Mr Lees concluded.[363]On 27 July 2021 Mr Timmins told the Claimant that if he did not improve he would consider invoking the PIP or poor performance process but failed to do so. Instead Ms Rockett moved to terminate the Claimant’s TAP programme;[364]After such a lengthy period off sick it would have been reasonable to refer the Claimant back to Occupational Health. This would have been a reasonable step to have taken so that the Respondents could take into account his disability and medication before taking a final view;[365]Whilst this Tribunal in no way condones swearing no consideration was given to how the news must have impacted on the Claimant and swearing was commonplace in the first Respondent’s whats app chat which had been a significant form of communication the past months during Covid;[366]Ms Rocket told the Claimant that use of the disability medication could have resulted in risks despite having no proper evidence upon which to reach such a conclusion;[367]Ms Rockett’s review cannot have been sufficiently through as otherwise why else did the managers embark on an intense period of activity to trawl through historical matters to add to the PTW once they became aware the Claimant intended to appeal; Ensuring the Claimant understood that his TAP was terminated before, during or after 30 June 2021 review meeting / Giving the Claimant explicit direction to avoid ambiguity on what was required of him/ Seeking confirmation from Claimant that any direction given was understood, with explicit confirmation being sought (through email, text phone call or meeting) that the Claimant did in fact understand direction.[368]We agree it would have been a reasonable step to have ensured the Claimant understood that 30 June 2021 was a final deadline for the review. Mr Barnett had not made that clear although we found this was communicated by Mr Timmins when he refused the Claimant leave due to the PTW deadline in June 2021. However we consider that the Claimant would not have then reasonably understood, having had no final review meeting and a long term sickness absence that he would be failed without any further discussion.[369]For these reasons the complaint of failure to make reasonable adjustments is well founded. The first and second Respondents are jointly and severally liable for these complaints. Disability related harassment[370]We discuss each allegation of unwanted conduct as follows; Compared the Claimant to ‘normal officers’ i.e. others on the TAP without reasonable adjustments;[371]This happened on a number of occasions, see above under the direct discrimination discussion and after the Claimant had disclosed his mental health struggles and after the managers had been in receipt of occupational health advice. The Claimant was compared to other officers who had completed their training within less time in two meetings with Mr Timmins and at a management meeting where he was not present (it is unclear when the Claimant became aware of the note of that meeting and hence the comparison). The terminology “normal” officers was not used and it could not have been known by the Claimant whether the other officers were disabled or not, but he assumed they were not. The Claimant was being judged against other officers. These comparisons were related to the Claimant’s disability as they related to the difficulties he was experiencing with work performance caused in part by the symptoms of his disability.[372]We do not consider that the purpose of those comparisons was to violate the Claimant’s dignity or create the proscribed effect and were made in ignorance (see conclusions under acknowledging of mental health above). This allegation was not addressed in the Claimant’s witness statement and at the relevant time he did not express any concern about the comparisons. He also would not have known about the comments on 11 May 2021 until later. For these reasons we conclude the Claimant has not proven that the comparisons had the effect of a violation of dignity / creating the proscribed environment and this complaint therefore is not well founded. Held an informal investigation and/or ‘chastise’ the Claimant in relation to a witness statement;[373]This is in respect of the meeting with Mr Timmins on 27 July 2021 see findings of fact at paragraph 110. In our judgment Mr Timmins was entitled to raise this matter with the Claimant in respect of the length of time it had taken between April and June to progress the statement but it was not fair to criticise the Claimant for failing to return the call from the witness which came in when the Claimant was on sick leave. However the conduct was not related to the Claimant’s disability by reason of the disability being the cause of the sick leave. The conduct was related to legitimate concerns as to why the witness statement had taken so long to be progressed. We further conclude that whilst it may have been unfair to criticise the Claimant for not getting back to the witness whilst off sick, this does not give rise to the proscribed environment. This complaint is not well founded. From 18 March 2021, the Second Respondent accused the Claimant of lying about his mental health (in particular, but not limited to, in the Second Respondent’s response to Claimant’s grievance that he was a liar and dishonest); and The Second Respondent told others that she considered that the Claimant was lying about his mental health in particular to: Lee Timmins and Alex Barnett by way of email on or around 13 August 2021; Vanessa Barty, by way of the same email forwarded to her; On 16 August 2021, the Second Respondent alleged the Claimant falsified paperwork on commencement of TAP[374]See findings of fact at paragraphs 129, 134, 142, 143, 146, 147, 148, 149, 150, 202, 213, 219, 229, 331 and 353. We found this to be a particularly concerning conduct on the part of Ms Rockett. It is completely inexplicable as to how this was permitted to progress to a disciplinary by the first Respondent.[375]Ms Rockett and to a degree Mr Timmins and Mr Barnett’s conduct in this regard shows a complete lack of understanding or awareness of the general principle that pre employment health questions should not be asked in application forms. The Claimant told Mr Barnett on 4 August 2021 that he had declared his mental health on entry, which was entirely accurate (see paragraphs 34 – 39). For reasons that remain unclear to this Tribunal Ms Rockett’s reaction to that was to start a covert investigation into the Claimant’s application process involving multiple individuals to obtain the Claimant’s application and onboarding documents all of which contained special category data. By 12 August 2021 Ms Rockett had received the Claimant’s application form which would not have contained any health or disability related questions other than to ask if he considered he needed any reasonable adjustments. In a continuing display of ignorance Ms Rockett decided that as such the Claimant had been lying about his mental health on entry and set about making multiple allegations to this effect to multiple individuals when she started to disseminate her grievances on 13 August 2021 to Mr Barnett, Mr Timmins, Ms Noone and then Ms Barty. In that document she accused the Claimant of lying about aspects of his application form to discredit the first Respondent. Ms Rockett even acknowledged at one point that they were still seeking to ascertain the Claimant’s assertions he declared his mental health issues when applying but had found no evidence but still calls him a liar. She goes on to also accuse the Claimant of lying about the initial OH referral.[376]In regard to this complaint there was unwanted conduct related to the Claimant’s disability. The second Respondent repeatedly accused the Claimant of lying about his mental health and this particular conduct contributed in part to the 5 month disciplinary investigation. The allegations were without any basis and should have never been progressed to an investigation let alone a disciplinary. In our judgment the conduct had both the purpose and effect of violating the Claimant’s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. We have decided it had the purpose because notwithstanding the urge of caution by HR and the offer and refusal of a document that should have stopped the investigation in its tracks, the investigation was pursued.[377]We find the first and second respondents jointly and severally liable for this complaint. The Second Respondent dismissed and minimised the Claimant’s mental health concerns and refused to acknowledge the symptoms of Claimant’s poor mental health, particularly in the latter stages of the TAP process;[378]See findings of fact at paragraphs 94-101 and 119. We find this complaint proven. The unwanted conduct related to the disability was the continued dismissal of the Claimant’s mental health concerns by the second Respondent as can be evidenced by our findings of fact in the above paragraphs. The second Respondent paid no regard to the advice in the Occupational Health report or how this might have impacted on his performance. No account was taken of his lengthy absence just before the final review of the PTW. In May 2021 she said she would take the Claimant’s mental health issues into account and then denied being aware of them until “recently” at the meeting on 3 August 2021. The second Respondent maintained this stance at the hearing when she commented that the occupational health report did not explain why the Claimant was “incapable of achieving what was required of him”. We also had particular regard to the dismissive response to the Claimant’s suicidal ideations expressed on 4 August 2021 where Ms Rockett decided notwithstanding what must have been a great level of distress on the Claimant’s part to continue with feedback commenting whether it had been the right time to commence a career path (see paragraph 119).[379]We find the first and second respondents jointly and severally liable for these complaints. When conducting the final review meeting on 3 August 2021, the Second Respondent ignored the Claimant’s poor mental health, was patronising and condescending, suggesting that the Claimant had lied about his mental health and that he had been ‘terrible’ through his training and TAP;[380]We have already dealt with this complaint and it is a duplicate save Ms Rockett did not say the Claimant had been terrible throughout his training. Terminate the Claimant’s TAP[381]The response denied that the termination of the TAP was due to the alleged disability moreover it was because the Claimant had failed to meet the appropriate standards within a reasonable timeframe and with two extensions totaling 11 months.[382]We first of all consider whether the termination of the TAP was related to the Claimant’s disability. We have already concluded above under the direct discrimination complaint that the TAP was not terminated because of the Claimant’s disability. The second Respondent was not motivated by his disability to terminate the TAP. However a harassment complaint requires a different test to s13 and the “reason why”. In our judgment the failing of the TAP was related to the Claimant’s disability as the some of the failures were attributable to his disability and symptoms thereof. See our conclusions under failure to make reasonable adjustments.[383]The termination of the TAP had the effect of creating the proscribed environment and it was reasonable for it to have done so. See our findings at paragraphs 121-124 and 136. The Claimant was devastated at failing his TAP attributing it immediately to his mental health issues and describing it as a bombshell. It was reasonable for the termination to have had that effect considering our conclusions above namely that the Claimant had not understood he was about to be terminated nor that the final review had been decided especially given his long term sickness absence and having understood he had passed the three tasks allocated by Mr Barnett. In our judgment it did not have the purpose as having examined Ms Rockett’s intentions we have already decided that she was not motivated by the Claimant’s disability in terminating the TAP.[384]For these reasons this complaint succeeds and the first and second Respondent are jointly and severally liable. Access to systems[385]There were a number of different explanations from the documents and the witness statements as to the reason for the Claimant’s removal to work systems. Initially it appears a decision was taken to remove him from some systems on 5 August 2021 (see paragraph 130). Mr Timmins witness statement attributed it to the dishonesty allegations as the reason. At the relevant time he told HR twice it was because he had not taken the TAP failure well, was volatile and his behaviours towards managers meant it was deemed necessary to protect criminal investigation material. Ms Rockett told Ms Ali it was because he was no longer an authorised officer.[386]On 17 August 2021 Ms Rockett told Ms Noone that the Claimant’s access to systems had been removed by Mr Timmins because he was concerned [the Claimant] may seek to jeopardise others work acknowledging it was an extreme measure but citing such concern with his behaviour (see paragraph 172). At this point the Claimant had been on annual leave and therefore the only behaviour that Ms Rockett could have been referring to was his contact with Mr Barnett on 4 August 2021 and his emails of 11 and 16 August 2021 challenging the termination of his TAP.[387]On 23 August 2021 Ms Noone, having been made aware there were dishonesty allegations against the Claimant still specifically instructed Mr Timmins that the Claimant should not be denied access to case papers or materials as he needed meaningful work for his welfare and it was still at investigation stage (see paragraph 181). On this basis we find that whilst the change in status from authorised officer was likely to result in the Claimant’s access being removed from certain sensitive systems, there was not a standard procedure to have removed the Claimant from all systems and meaningful work as he had failed the TAP otherwise Ms Noone would not have issued this instruction.[388]Notwithstanding this instruction the Claimant was removed from all systems and restricted to relativity work. We have concluded that the reason to Claimant was removed from all systems was because of what he told Mr Barnett on 4 August 2021 and his subsequent challenge to the termination of the TAP on 11 and 16 August 2021. Whilst there were references to his state of mind we do not consider that the decision was motivated by or related to his disability but as part of the retaliatory process that ensued following the protected act. As a disability related harassment complaint this is not well founded. Removal of PPE in front of peers[389]See our findings of fact at paragraph 170 where we found that it took place in an open office. It must follow that this would have been observed by colleagues as no private meeting rooms were permitted to have been used and it is wholly unlikely that the office would have been empty save for Mr Timmins and the Claimant. However this complaint fails as the removal of the PPE was not related to the Claimant’s disability but because he had failed his TAP and CFA had been informed. This would mean he was no longer authorised to hold this equipment. The Claimant had to Claimant defend this false allegation in his own time;[390]We note that the amended response addresses a different period when Ms Bass had to tell the Claimant in January 2022 not to use any more work time to work on this grievance. We have understood this to be about a different period after the Claimant failed his TAP between 4 – 11 August 2021 when the Claimant was on holiday and drafting his appeal as this was the context of the complaint on the Claimant’s further particulars (paragraph 1.14). See our findings at paragraph 167. Whilst having to do this may have impacted the Claimant’s mental health it does not follow that there was unwanted conduct amounting to harassment. Nobody compelled or placed pressure on the Claimant to draft the appeal in how own time and we do not consider this can fall within the definition of unwanted conduct. Drafting an appeal is also not related to disability. This complaint is not well founded. The Respondent did not follow occupational health advice regarding reasonable adjustments;[391]Whilst we have found this allegation to be factually proven (see our conclusions above at paragraphs 92, 93, 98, 338, 340, 346, 351, 354), as a harassment complaint it does not succeed for the following reasons. The unwanted conduct is not following occupational health advice. We consider that has to be distinguished from the consequences of that unwanted conduct (which was that those failures led in part to the Claimant failing his TAP and having regard to the circumstances of that failure there was a violation of dignity and the proscribed effect). However the consequences of the failures have already been considered. We do not consider that the Claimant has shown harassment specifically in respect of the failures to follow occupational health advice. We have noted that the report was discussed with the Claimant on 7 May 2021 and at that stage he did not object to Mr Timmins’ approach and agreed the outcomes. Further, this has already been taken into account in respect of our findings of the failure to make reasonable adjustment complaints. credibility, integrity and attempt to incriminate the Claimant;[392]See findings of fact at paragraphs 47, 49, 50, 126, 128, 129, 131, 134, 135, 138, 147, 149, 150-151, 163-166, 171, 184, 186, 192-194, 210, 211, 213, 214, 218 -230, 242, 245, 248, 249, 251-253, 260, 261, 263. The actions of the management team following the Claimant’s TAP failure (the “digging the dirt” allegations) are advanced as disability related harassment and victimisation detriments. This requires examination of whether the conduct both related to the disability and / or was because of a protected act.[393]We have concluded there was conduct by the Respondents that was both disability related harassment and victimisation detriments. From the 4 August 2021 until the Claimant’s written warning was overturned by Ms Ali the Respondents engaged in activity to shore up the decision to terminate his TAP outside of process which had the result of undermining his credibility, integrity and attempted to incriminate him. All of the following conduct was related to the Claimant’s disability and amounted to disability related harassment. (By way of background, as of 5 August 2021 Ms Rockett became aware that she had not followed the correct procedure and the Claimant may have to be dismissed if he was not an internal candidate).[394]As evidenced by the outcome of the management meeting on 5 August 2021 Mr Barnett, Ms Barty and Mr Timmins were focused on looking for further evidence of the Claimant’s failures and missed appointments etc. This conduct was related to his disability as the failures had a connection with the Claimant’s disability symptoms for reasons we have set out above. This conduct continued right up until Ms Walker reviewed the PTW folder.[395]Extensive efforts were made to obtain the Claimant’s application and recruitment documents to establish whether he was telling the truth about having declared a medical condition on entry and also had an Occupational Health assessment. There remains no plausible explanation before this Tribunal as to why the managers embarked on this process other than they wanted to prove he was lying and to try and undercover evidence the Claimant was being untruthful in the event he could not be dismissed.[396]There was initially no serious degree of concern over what the Claimant had said about Relativity but it was subsequently used to shore up allegations against the Claimant that he was a liar. The Claimant’s conversation with Mr Barnett on 4 August 2021 (where he had denied telling Mr Timmins he had done relativity work) was seized upon and used to accuse him of lying to Mr Timmins with no consideration as to his state of mind at that time of that discussion during which he was very distressed.[397]In Ms Rockett’s grievance of 13 August 2021 disseminated to multiple managers, she exaggerated the Claimant’s behaviour at the meeting on 4 August 2021 and failed to mention his depression, suicidal ideations and that he had only just returned from long term sick which may have given a context for his behaviours.[398]Ms Rockett told Ms Noone that they believed the Claimant might jeopardise other people’s work when there was no credible basis for doing so.[399]There was constant reference to the Claimant displaying difficult, challenging and volatile behaviour following his TAP termination based on one conversation with Mr Barnett and two emails appealing the decision. Whilst we acknowledge the Claimant was also angry and upset during his call with Mr Barnett and we do not condone swearing, again there was no recognition or awareness as to how the situation may have affected his depressive symptoms instead he was repeatedly labelled as such.[400]When the managers found examples that might have looked favourable to the Claimant they discounted including them (see paragraphs 193). They also sought to add in evidence about unremarkable events from years previously where the issues had been addressed at that time and not followed up for example the missed flight, the OST warrant and Claimant travelling by train instead of in a car with colleagues to exaggerate the Claimant’s alleged “behaviours”.[401]The first Respondent commissioned a disciplinary investigation despite having been provided with specific evidence that the Claimant had not lied about a medical condition on entry. The terms of reference did not set out the allegations about relativity or lying about a conversation with Ms Rockett about test routes instead these were raised with the Claimant for the first time at investigation leaving him on the back foot and having to second guess what the actual allegations were supposed to be. Some of this was attributed to “behaviours” which were in fact symptoms arising from his disability.[402]This unwanted conduct had both the purpose and effect of violating the Claimant’s dignity and creating the proscribed environment. What was particularly aggravating about this course of conduct was that it was the management team and to a degree HR colluding to build a case against the Claimant for seeking to appeal the decision to terminate his TAP which was his right.[403]This complaint is well founded and the first and second respondents are jointly and severally liable save we do not find Ms Rockett liable for the harassment arising from the disciplinary investigation and outcome at paragraph 401. Victimisation Protected Acts[404]There was one protected act relied upon: On 4 August 2021 the Claimant informed Alex Barnett that he was going to speak to Citizen’s Advice and possibly seek legal advice on options The Claimant also relied on s27 (1) (b) that Respondents believed that the Claimant had done or might do a protected act.[405]See findings of fact at paragraphs 121-125 and 127 regards 4 August 2021. The Respondents amended response admitted that the Claimant spoke to Mr Barnett as set out above but did not admit this amounted to a protected act. The submission did not expand on why this was not admitted.[406]There were two discussions with Mr Barnett on 4 August 2021. The first was a Teams message in which the Claimant stated he was not accepting the decision, he was looking to seek legal advice, he declared mental health on entry which is a disability defined by the Equality Act 2010 and that losing his role was not acceptable. In the following telephone conversation the Claimant told Mr Barnett his mental health was a disability and his employers were failing him. He stated he had been unfairly treated and was going to appeal, go to citizens advice and maybe seek legal advice. He would not take this ‘lying down’ and his TAP failings were due to his disability. He also said he would speak to HR and OH.[407]In our judgment this could not be any clearer that this amounted to a protected act under both s27 (c ) and s27 (d). The asserted facts were capable of amounting to a breach of the Equality Act; the Claimant specifically equated his TAP failings to his disability and said he would appeal the decision. The Claimant specifically cites the Equality Act and says he will not take the decision lying down and would be seeking legal advice.[408]As regards to whether the Respondents believed the Claimant had done or may do a protected act (s27 (1) (b), we have concluded that as a result of what the Claimant told Mr Barnett above which was disseminated to Ms Rockett, Mr Timmins and later HR they must have believed that he may do a protected act as that is what he told them he intended to do.[409]We also consider the other findings of fact to be relevant to this issue: a) The management team colluded to shore up the TAP failure as outlined above. Given the collective effort to focus on failure with no plausible explanation before us for that conduct we have drawn an inference that this was not just in respect of the appeal but out of concern there would be legal action; b) The investigations into his mental health declaration on entry; c) Mr Woffenden telling Mr Timmins that some remedial action might be necessary to ensure the department had met its legal obligations under the Equality Act; d) Mr Timmins told Mr Woffenden that the Claimant was considering taking legal advice; e) On 11 August 2021 in the Claimant’s first appeal document he reiterated he was disabled and that reasonable adjustments had not been made; f) In his second appeal document dated 16 August 2021 he repeats the above assertions. Detriments The Second Respondent raised a formal complaint/allegation about the Claimant[410]See findings of fact at paragraphs 140- 156, 160-166. Up to 4 August 2021 all of the documents show that the second Respondent was intending on redeploying the Claimant. Ms Rockett’s own note of the meeting on 3 August 2021, after she had experienced the Claimant’s bad language, confirmed this was still her intention and she told the Claimant this in an email on 4 August 2021. Thereafter there were a number of developments which could all have motivated Ms Rockett to raise her formal complaint on 13 August 2021. We have carefully considered the facts to reach the following conclusions.[411]At the time of the email on 4 August 2021 where Ms Rockett was still discussing redeploying the Claimant she had seen Mr Barnett’s notes and was aware of the 4 August 2021 protected act. This suggests that Ms Rockett at that stage was still considering redeploying the Claimant notwithstanding the protected act on 4 August 2021.[412]Another potential factor in finding the grievance was not motivated by the protected act is unpalatable but would not be victimisation. It could be concluded that the reasons Ms Rockett raised the grievance is that she realised on 12 August 2021 that she had not followed the correct procedure when failing the Claimant’s TAP and the Claimant might be dismissed if not treated as an internal candidate. On obtaining his application form on 12 August 2021 she must have realised that he would not dismissed, indeed she acknowledges that in her grievance but says the information came to light after her decision to raise a grievance and did not affect her decision. In other words, Ms Rockett could have raised the grievance to get the Claimant dismissed as she realised she had not followed the correct procedures in failing the TAP.[413]Another explanation and one that was discussed extensively by the Tribunal was the very significant offence Ms Rockett had taken to the content of the Claimant’s email of 11 August 2021 challenging her decision to fail his TAP. The degree of the offence taken was high, Ms Rockett described herself as aggrieved and appalled by his comments saying they were untrue and he blamed her for the failures. Whatever the motivating factor it is clear that Ms Rockett was determined the Claimant should be dismissed. On 17 August 2021 Ms Rockett, after the Claimant’s second appeal document is sent she added further to the grievance stating that the Claimant should be dismissed and was not suitable to work in any area of the first Respondent, accusing him of having the potential to sabotage other people’s work.[414]Between 3 / 4 August 2021 and 17 August 2021 Ms Rockett has changed her mindset completely discussing the Claimant’s redeployment to saying he was not suitable to work anywhere. What had happened to change her mind? This was a critical question that Ms Ali quite properly sought to gain an answer from Ms Rockett three times. On the third occasion Ms Rockett told Ms Ali that after receiving the Claimant’s 16 August response there was “simply no point in attempting to resolve locally” but she did not directly address the change in position.[415]From the wording of Ms Rockett’s grievance she was extremely aggrieved by the Claimant’s appeal of 11 August 2021 alleging fabrication, lies, mocking and lies seeking to undermine her integrity and cast doubt over her ability to make a fair assessment of his performance and this had caused her distress. In our judgment this was a complete overreaction by a senior officer to a junior officer exercising his right to appeal a decision she had taken that had ended his career and given the actual content of the Claimant’s email of 11 August 2021.[416]We therefore turn to consider what Ms Rockett herself told the Tribunal about her reason for lodging the grievance. See paragraphs 162 – 163. Ms Rockett said she decided to lodge a grievance after consideration of the Claimant’s response to Alex on 4 August 2021 (the protected act) and she was aggrieved by his comments in respect of her conduct during the TAP. This must have been in reference to the Claimant’s email of 11 August[417]We found there was no serious or credible concern over the Relativity issue between 4 – 13 August 2021 and this was added and exaggerated to add credence to the grievance (see 164 – 166).[418]For these reasons in our judgment the decision to lodge a grievance against the Claimant was partly about the content of the Claimant’s email dated 11 August 2021 but the main factor was the realisation on Ms Rockett’s part that the Claimant was going to take further action to enforce his appeal against the TAP failure both internally and externally and these were the protected acts. Ms Rockett brought the grievance in order to thwart the Claimant’s credibility and the ability to take the action he said he was going to take under the Equality Act.. This complaint is well founded and the first and second Respondents are jointly and severally liable. The second Respondent subsequently elaborated on that complaint / allegation and pursued dismissal of the Claimant[419]There was undoubtedly an elaboration of the complaints and allegations against the Claimant. Initially Ms Rockett said on 4 August 2021 that the Claimant had become very irate, raised his voice and used foul language then became more aggressive and was swearing. When he was asked to stop swearing and tone it down he apologised and she acknowledged a degree of mitigation stating that the Claimant’s emotions had got the better of him. The bad language and behaviour had not concerned Ms Rockett enough at the time as can be seen from her comments after the meeting and intention redeploy him. After receiving the email of 11 August 2021 in which the Claimant asserted failures to make adjustments and other Equality Act breaches, Ms Rockett uses much more serious language to describe his behaviour in her grievance of 13 August 2021 describing his as becoming extremely aggressive shouting and swearing at me and the Claimant should be dismissed being unsuitable to work anywhere in HMRC. On 17 August 2021 she then tells HR and CFA that she wants to add management notes to be considered on appeal and Ms Noone that the Claimant’s behaviour is of such concern they think he might jeopardise other people’s work. There then followed the trawling for other failures to add to the documents Ms Walker was due to review.[420]Ms Rockett told multiple people that the Claimant was a liar and lied to managers (plural).[421]There was later more extreme language used when she told Mr McCarthy the Claimant had been “ferocious and irate”.[422]The escalation occurred after the protected act and there was a belief the Claimant would do further protected acts. This complaint is well founded and the first and second Respondents are jointly and severally liable. Discipline the Claimant for using foul language; Inappropriately consider allegations against the Claimant of using foul language to be allegations of Gross Misconduct;[423]In our judgment the decision to discipline the Claimant was because of the protected act and because the Respondents believed he might do further protected acts. Ms Rockett showed no intention of taking any action in respect of the Claimant’s bad language after the meeting on 3 August 2021 and neither did anyone else. Had she considered the bad language to be a disciplinary offence she would have taken action at that point rather than maintain to redeploy the Claimant. This all changed after the protected act on 4 August 2021 and realising that the Claimant was likely to do further protected acts by reason of his email of 11 August 2021. There was no plausible explanation before us for this change in position other than the protected act / s27 belief.[424]The Respondents evidence around the decision to discipline the Claimant was inconsistent. Mr Piddock said Ms Rockett decided the terms of reference. Mr Timmins suggested that HR had decided Ms Rockett’s allegations should result in gross misconduct allegations but we made findings that it was Mr Timmins who instigated a disciplinary investigation. This was a really important decision which should have had a very clear explanation as to who made the decision and in particular when and why but the Respondents have failed to provide an explanation for the change in position. In our judgment it is obvious that the disciplinary investigation was commissioned and progressed because of the protected act and the belief the Claimant would take legal action. This complaint is well founded and succeeds against the first Respondent. It does not succeed against the second Respondent as there was insufficient evidence to conclude that Ms Rockett was involved in the decision to commission the disciplinary allegations although we have no doubt in concluding this was her desired outcome and motivation for initiating the grievance.[425]Whilst we have found that Mr Piddock’s decisions were unreasonable we do not consider that Mr Piddock was motivated by the protected act in reaching his decision on the allegations. He based his decisions on information that was available to him at the time and would not have been aware of the full background now available to this Tribunal as to how Ms Rockett’s grievance against the Claimant or the other allegations came about. credibility, integrity and attempt to incriminate the Claimant[426]As observed above some of the digging the dirt allegations were also related to the Claimant’s disability. In addition we also consider that locking the Claimant out of his PTW folder and telling Ms Walker that he had raised a concern against Ms Rockett also demonstrate that the management team were colluding to gather evidence of the Claimant’s failures in order to justify the TAP failure decision and did so because of the protected act and that the Respondents believed the Claimant would do further protected acts. They needed to post justify a decision taken outside of process and were evidently concerned that the Claimant intended to take matters further both internally and via ACAS. This complaint is well founded and the first and second Respondents are jointly and severally liable.[427]The Claimant had sought to appeal his TAP failure and asserted that the decision was in breach of the duty to make reasonable adjustments. The protected act was on 4 August and by 5 August 2021 there was a plan to remove him from some systems. We found above that there was no process to completely remove the Claimant due to him not being an authorised officer. We have drawn an inference from the inconsistent explanations from the Respondents as to the reasons the access to all systems save relativity was removed, the exaggeration of the Claimant’s behaviour, the unsubstantiated allegation he might jeopordise other people’s work and that this was contrary to what had been instructed by Ms Noone and advised by HR.[428]We also draw an inference from the lack of explanation as to why the Claimant’s access to his PTW folder was locked down after expressly recognising that he needed to be able to add and access it. This came about on 2 September 2021.[429]This complaint is well founded and the first and second Respondent are jointly and severally liable.[430]We do not consider the Claimant’s PPE was removed because of the protected act but because he did not have authorised officer status. Inferences[431]We lastly deal with other inferences we have drawn from the Respondents conduct and their conduct in these proceedings.[432]Ms Ali’s Lessons Learned document was not followed up by the first Respondent, No action appears to have been taken in response to the serious and concerning findings that managers had collaborated against the Claimant as well as the failings to manage the Claimant’s mental health issues. These were serious matters and we infer that the lack of any follow up actions show the first Respondent did nothing about discriminatory conduct by senior managers. This has failed not only the Claimant but the other managers and Ms Rockett as had there been an appropriate and early intervention these behaviours could have been addressed. Someone of sufficient authority and seniority must have been aware of the report and decided not to do anything about it. There has been a veil of secrecy around who has been taking high level decisions in these events with no accountability. Managers have sought to blame HR or advisors and that was not credible. Both the Ali and Lees reports were fully authorised and adopted by the first Respondent. A sensible review of Ms Rockett’s initial grievance document should have seen it for what it was, an over sensitive reaction by a very senior manager to a legitimate appeal and stopped it in its tracks let alone it be escalated to disciplinary allegations of gross misconduct. These events should never have permitted to unfold and demonstrate the imbalance of power that was evident between the managers and the Claimant and the failure to apply the first Respondent’s policies and procedures designed to balance and check these behaviours.[433]The first Respondents credibility was significantly damaged by resiling from the Ali and Lees reports on the first day of the hearing. The explanation set out in paragraph 9 was not credible. It was claimed that the Respondents were not aware of Ms Ali’s report until January 2024. This cannot have been the case as Ms Ali’s report was disclosed to the Claimant by the first Respondent, it was their document. Further and more seriously, the evidence shows that Ms Ali was fully advised and authorised to reach the conclusions she reached in her report. There was no explanation for the abandonment of Mr Lees report which had been published only weeks before the hearing also with the full authority of the first Respondent. The first Respondent had engaged two senior managers to conduct reviews and not taken any issue with the fully authorised outcomes until the hearing commenced. This had the nature of an ambush on the Claimant. The second Respondent has launched an extraordinary attack on Ms Ali which was adopted by the first Respondent at the start of these proceedings when they had relied upon that very report in their amended response.[434]Whilst we have no doubt that Mr Mclean was acting on instructions when he told the Tribunal what we relay in paragraph 10, it was not true that the Ali report had only come to the first Respondent’s attention when compiling witness statements for these proceedings. The first Respondent had been in possession of the Ali report since 2022 and we found it had been advised upon and authorised by someone within the first Respondent. The first Respondent had even relied upon the report in their amended response.[435]Mr Barnett’s denial that he had not engaged with anyone about the possibility of the Claimant lying about his mental health was not credible (see paragraphs 155 – 157). This was a significant inconsistency between the witness statement and the documents which spoke for themselves.[436]Mr Timmins intention to influence the Claimant’s redeployment by transposing the TAP failures across to new performance management (see paragraph 182);[437]Mr Timmins interference in the Claimant’s appeal of his TAP failure and the threat of disciplinary proceedings if he did not comply with Mr Timmins instructions to remove elements from his appeal.[438]A remedy hearing shall be listed. Approved by