Mr S Gough v Secretary of State for Justice: 3302374/2022

EMPLOYMENT TRIBUNALS

Case No 3302374/2022

Between

Mr S GoughClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge Shastri-Hurst,

Date 19 January 2026

JUDGMENT

[1]The claim of unfair dismissal is well-founded and succeeds;

[2]The harassment claim is well-founded and upheld in relation to the following allegations:a. (race and religion) - sending the claimant inappropriate text messages linking the claimant to the IRA (Issue 7a(iii));

b. (race) - subjecting the claimant to childish name calling (Issue 7a(v));

c. (race and religion) - refusing the claimant promotion in May 2020 (Issue 7a(ii));

d. (race and religion) - informing the claimant’s union representative during the investigation that it is better for him to resign (Issue 7a(iv)).

[3]All other claims of harassment are dismissed;

[4]All claims of direct discrimination are dismissed.

REASONS

[1]The claimant started working for the respondent as a Prison Officer (“PO”) based at HMP Bedford on 23 March 2016. On 1 February 2021 he was promoted to the position of Supervising Officer (“SO”). The claimant’s employment was terminated by summary dismissal on 30 November 2021. The respondent alleged that the reason for that dismissal was conduct, specifically gross misconduct.

[2]The early conciliation process commenced on 10 January 2022 and concluded on 26 January 2022. The claim form was presented on 24 February 2022.

[3]The claimant brought claims of: b. “Ordinary” unfair dismissal – s98 Employment Rights Act 1996 (“ERA”); c. Direct race discrimination; d. Harassment related to race; e. Direct discrimination on the grounds of religion/belief; and, f. Harassment related to religion/belief.

[4]The claimant identified his race as Northern Irish and his religion as Catholic.

[5]The claim primarily revolved around the claimant’s summary dismissal on 30 November 2021. The incident that formed the basis of the dismissal took place on 20 July 2021, in which the claimant was involved in a “use of force” incident with a prisoner, referred to herein as “Prisoner A”. The incident was recorded and understood by all as being an incident “at height”; at height being understood by all concerned to mean “off the ground”.

[6]The Tribunal had the benefit of a bundle of 591 pages: reference to a page X within that bundle is recorded as [X] in this Judgment. We also had witness statements from the claimant and, for the respondent:a. Governor Butler;

b. Governor Phelps; and,

c. Governor Monaghan.

[7]The majority of the claimant’s harassment and discrimination allegations were against Governor Megicks. He is no longer an employee of the respondent and did not provide a witness statement or attend to give evidence.

[8]The respondent had helpfully prepared a chronology, list of people and suggested reading list. Both parties provided us with written submissions, which they amplified with oral submissions.

[9]We also had the benefit of CCTV footage from the incident on 20 July 2021. Issues

[10]At a preliminary hearing on 26 April 2023, Employment Judge Gumbiti-Zimuto had set out the list of issues to be determined at this hearing. That list is found at [37]. For completeness, it is reproduced here, with some further detail relating to the specifics of the five allegations of harassment/discrimination that were pinned down during the course of the final hearing. Furthermore, from the respondent’s Grounds of Resistance, it appeared that the “contribution” argument regarding the compensatory award had been left out of the List of Issues – that point was added in at paragraph 5f(vi) and (vii). Finally, under the harassment claim issues, we have added in the necessary paragraphs as to the purpose and effect of the respondent’s conduct, that appear to have been left off the original list by mistake (Issues 7d and e below). 3. Time limitsa. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before [11 October 2021] may not have been brought in time.

b. Were the discrimination and harassment complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: i. Was the claim made to the tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 4. Unfair dismissal a. What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believes the claimant had committed misconduct. b. If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that is a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: i. There were reasonable grounds for that belief; ii. At the time the belief was formed the respondent had carried out a reasonable investigation; iii. The respondent otherwise acted in a procedurally fair manner; iv. Dismissal was within the range of reasonable responses. 5. Remedy for unfair dismissal a. Does the claimant wish to be reinstated to their previous employment? b. Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

c. Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

d. Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

e. What should the terms of the re-engagement order be?

f. If there is a compensatory award, how much should it be? The Tribunal will decide: i. What financial losses has the dismissal caused to the claimant? ii. Has the claimant taken reasonable steps to replace the lost earnings, for example by looking for another job? iii. If not, for what period of loss should the claimant be compensated? iv. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? v. If so, should the claimant’s compensation be reduced? By how much? vi. If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? vii. If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

g. What basic award is payable to the claimant, if any?

h. Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? 6. Direct race, and/or religion or belief discrimination (Equality Act 2010) a. Did the respondent do dismiss the following things:

i. Dismiss the claimant on 30 November 2021; ii. Refuse the claimant a promotion in May 2020 (Governor Megicks); iii. Send the claimant inappropriate text messages linking the claimant to the IRA (limited to one text message sending a YouTube link from Governor Megicks in 2020 or 2021); iv. Inform the claimant’s union representative during the investigation that it is better for him to resign (Governor Megicks); v. Subject the claimant to childish name-calling (limited to one occasion in a promotion board in December 2020 when Governor Megicks asked the claimant to say “motorcycle helmet”)? b. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between the circumstances and the claimants. If there was nobody in the same circumstances as the claimant the Tribunal will decide whether he was treated worse than someone else would have been treated c. If so, was it because of race, religion or belief? 7. Harassment related to race, religion or belief (Equality Act 2010) a. Did the respondent do dismiss the following things: i. Dismiss the claimant on 30 November 2021; ii. Refuse the claimant a promotion in May 2020 (Governor Megicks); iii. Send the claimant inappropriate text messages linking the claimant to the IRA (limited to one text message sending a YouTube link from Governor Megicks in 2020 or 2021); iv. Inform the claimant’s union representative during the investigation that it is better for him to resign (Governor Megicks); v. Subject the claimant to childish name-calling (limited to one occasion in a promotion board in December 2020 when Governor Megicks asked the claimant to say “motorcycle helmet”)? b. If so, was that unwanted conduct? c. Did it relate to race, religion or belief? d. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? e. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Findings of fact Relevant policies and guidance

Findings of fact

[11]During the course of this hearing, we were referred to various of the respondent’s policies and handbooks. Below, we set out some relevant passages.

[12]The Use of Force Handbook was found at [96], and provided as follows: “Use of force is any type of physical intervention used on another person” “The general principles of use of force are:  Honestly perceived that the use of force is necessary in the circumstances  The degree of force is reasonable in the circumstances  The use of force is proportionate to the seriousness of the circumstances  No more force than is necessary” “Article Two: The right to life Everyone’s right to life shall be protected by law; Article Two imposes an obligation to take measures to protect a person if it is known, or ought to be known, that there is a real or immediate risk to life. ... In exceptional circumstances, it may be necessary to use force in order to meet the obligations under Article Two:  In defence of a person from unlawful violence  In order to effect a lawful arrest or to prevent the escape of a person lawfully detained  In action lawfully taken for the purpose of quelling riot or insurrection again, no more force than is strictly necessary may be used.

[13]The Use of Force Policy set out the following – [54]: “The use of force will be justified, and therefore lawful, only:  If it is reasonable in the circumstances  If it is necessary  If no more force than is necessary is used  If it is proportionate to the seriousness of the circumstances”.

[14]The definition of “necessary” was found at [58]: “2.5 The first distinction to make is between force used in “self defence” (can more easily be demonstrated to be “necessary”) and force used because someone has refused to obey a lawful order. It is not enough that a prisoner be given any “lawful order” to do something and has refused to do so. 2.6 It is important to take into account the type of harm that the member of staff is trying to prevent – this will help to determine whether force is necessary in the particular circumstances they are faced with”. “Harm” may cover all of the following risks:  Risk to life  Risk to limb  Risk to property  Risk to the good order of the establishment It is clearly easier to justify force as “necessary” if there is a risk to life or limb”.

[15]Under the title of “Conflict Resolution” at [60], the policy stated: “2.13 When faced with a conflict situation we should have one of three objectives, these are:  Avoid danger  Defuse the situation  Control the situation”.

[16]The Conduct and Discipline Policy set out a non-exhaustive list of matters of misconduct at [129]. That list included “use of unnecessary force on a prisoner”.

[17]Gross misconduct was defined at [131] as: “...misconduct that is so serious as may make any further relationship and trust between NOMS and the member of staff concerned impossible. Gross misconduct is repudiatory misbehaviour by a member of staff...”.

[18]A non-exhaustive list of matters that may amount to gross misconduct was set out on [131]. Notably, it did not include “use of unnecessary force on a prisoner”. Alleged comparators

[19]The claimant argued that three of his colleagues employed by the respondent had historically been treated more favourably than him in relation to penalties imposed following conduct matters. The relevant details are set out immediately below. George Harvey-Dell (“GHD”)

[20]On 27 August 2019, GHD was sent an outcome letter following a disciplinary hearing on 24 June 2019 – [195].

[21]The following charge was found to have been proved: “...at approximately 1210 hours on the 17 October 2018 on A Wing at Bedford Prison, you used inappropriate or unnecessary force on [redacted].”

[22]GHD’s disciplinary case was dealt with by someone other than Governor Butler.

[23]GHD was given a final written warning following the disciplinary hearing and was sent on some additional training. Phil Fitzpatrick (“PF”)

[24]Governor Butler chaired the disciplinary hearing for PF.

[25]The first allegation against PF was that he kicked a prisoner when forcing him into his cell.

[26]The second allegation faced by PF was that he had pulled a prisoner by his clothes off the stair rail at the top of a flight of stairs.

[27]The investigation report for PF is at [197]-[210]. Following the investigation, the second allegation was proven against PF as follows – [199]: “On Friday 31 May 2019, during the incident at height on Ewing, at approx. 12:42 hours, CM Fitzpatrick pulled [redacted] by his clothes off the stair rail at the top of E3 stairs.”

[28]The first allegation was dismissed. The investigating officer determined that PF genuinely feared for his personal safety and as such the force used by PF was reasonable and proportionate in circumstances - Governor Butler’s witness statement paragraph 80.

[29]In terms of the second allegation, PF had used force without seeking authorisation from a more senior manager, as per policy. PF’s assertion that the prisoner was about fall was rejected by the investigating officer who concluded that PF had been reckless and risked the prisoner sustaining serious injury if he had fallen - Governor Butler’s witness statement paragraph 81.

[30]Governor Butler explained to us that the difference, in his eyes, between this matter and the claimant’s disciplinary was the fact that PF had mitigation, whereas the claimant did not. PF had in the preceding hours and days been involved in an extremely challenging situation at work, and also was very contrite following the incident. However, Governor Butler’s evidence to us was that he considered, in retrospect, that he had been lenient in PF’s case in deciding not to dismiss PF and instead giving him a written warning for 12 months - Governor Butler’s witness statement paragraph 84.

[31]It is in this report that a different definition of “at height” was found, and was raised by the Tribunal during the course of this litigation. The relevant passage cites the policy coded as “PSI 2012-11 Management and Security of the Incident Reporting System” and states as follows at [207]: “An incident at height is defined as any incident taking place over 3 feet from the ground level”.

[32]In the event, we consider that very little in fact turns on the definition of “at height”, given that everyone involved in the process up until this point had been of the understanding that “at height” simply means off the ground. Tony Gibson (“TG”)

[33]TG was disciplined following an incident on 17 January 2020 in which he had entered a cell occupied by a prisoner and assaulted him by striking him in the face. It was also alleged that TG had assaulted the prisoner by kneeing him in the face. The investigation report is at [211]-[218], in which the allegations are framed as:a. Use of Unnecessary Force of a Prisoner; and,

b. Assault on a prisoner.

[34]Governor Butler commissioned the investigation and chaired the disciplinary hearing for TG.

[35]On 22 December 2020, TG received a letter confirming the outcome following a disciplinary hearing on 11 December 2020 – [235]. The first allegation was upheld, the second was rejected. It was generally understood that TG had lied about a certain aspect of his account, namely that the prisoner had grabbed his keys on TG’s entry to his cell.

[36]As a penalty, TG was given a two-year written warning.

[37]Governor Butler’s evidence in his witness statement (paragraph 87) and in his oral evidence to us was that TG had indicated that he was going to resign imminently due to ill health. In Governor Butler’s judgement, this meant that any risk to prisoners would be eliminated. As a result, Governor Butler decided not to dismiss TG on conduct grounds.

[38]We asked Governor Butler what he would have done had he been informed that the claimant was going to resign: would he have held off from dismissing the claimant? The Governor said he would have gone ahead and dismissed the claimant in any event. This, to us, seemed to be inconsistent with the manner in which he treated TG and indeed his logic for not dismissing TG in response to a use of unnecessary force charge. Governor Megicks’ prior investigations (2020)

[39]Part of the claimant’s case is that Governor Megicks had investigated him several times before the July 2021 incident. In the bundle, we have seen documentation regarding the following two investigations, from 2020:a. On 30 July 2020, an investigation report was produced that had been commissioned by Governor Butler. The investigating officer was not Governor Megicks – [219];

b. A managerial enquiry report was produced at [229] regarding an incident on 16 April 2020 involving the claimant and two other officers. Governor Megicks was the “commissioning manager”/“instigating manager”, not the investigating officer. The outcome of that investigation was that the allegations against the three officers were unfounded. The claimant’s knowledge of Prisoner A

[40]The claimant, whilst employed by the respondent, volunteered to run a program, weekly on Fridays, called STRIDE. This was a course he adapted and ran for prisoners of ages 18 to 25. Prisoners who attended the course and passed were awarded certificates. Prisoner A was one of the first people to successfully go through the course with the claimant. The claimant’s evidence to us and throughout the disciplinary process was that he and Prisoner A had a good relationship – for example [320], [325]. He also explained that he had learned whilst working with Prisoner A on this course that he (Prisoner A) had some struggles with his mental health.

[41]On 29 June 2021, an Assessment, Care in Custody and Teamwork (“ACCT”) Plan was opened in relation to Prisoner A. Such plans are opened when there is a concern about a prisoner’s well-being. This particular plan was opened as a result of a potential self-harm incident that arose on 29 June: Prisoner A had used bedding to make a noose and attached it to a window as a ligature point in his cell. He did not in fact injure himself and was seen by healthcare at 19:55hrs on the same day - [244/245].

[42]The ACCT plan was closed on 1 July 2021 – [241]. This recorded: “States he only ligatured to get an answer. States he was playing games and doesn’t wish to kill himself”; “No recent/previous self-harm intentions or thoughts”; “No suicidal/self-harm intentions. Doesn’t want to be dead. Has never had any thoughts of this”.

[43]The claimant was aware of this ACCT Plan during its lifetime in June/July 2021.

[44]On 19 July 2021, Prisoner A had performed a protest at height, as a result of which some of his privileges were removed from him; he was “placed on basic” - [344]. It was the claimant‘s case that Prisoner A told the claimant that he considered removal of privileges to be unfair, given that he was not protesting, but was at height in order to self-harm - [344]. The claimant had been aware of this incident at the time of his shift on 20 July 2021 following the morning briefing.

[45]The claimant informed us during the course of his evidence that, due to the above knowledge and experience with Prisoner A, he was “very invested in his behaviour”. We accept this evidence from the claimant; he was consistent on this point throughout his evidence to us and throughout the internal disciplinary process. Incident on 20 July 2021

[46]On 20 July 2021, the claimant was on shift in his role as a Senior Officer. At the time of the incident that led to the claimant’s dismissal, there were several other officers on duty, including Officer Portas.

[47]We have had the benefit of observing the CCTV both at normal speed and slowed down, and we have watched it several times. We make the following findings.

[48]Immediately prior to the incident, the claimant and Officer Portas (amongst other officers) were organising the prisoners to return from a time in the communal area back into their cells.

[49]Prisoner A was sitting on a safety sofa (deliberately manufactured for use in venues such as prisons); he showed a reluctance to return to his cell. Officer Portas attempted to persuade him to return, however the claimant told her to leave Prisoner A and focus on the other prisoners. At this point, Officer Portas moved away from Prisoner A.

[50]We accept the claimant’s explanation as to why he told Officer Portas to leave Prisoner A. His explanation was that, if other prisoners got a notion that there was to be a stand-off or any kind of protest to returning to cells, they were likely to join in instead of returning to their cells. The claimant’s rationale was to get all the other prisoners into their cells, and then deal with Prisoner A. This is a logical explanation, and one that cannot be challenged with positive evidence by the respondent.

[51]The claimant, when seen in the video, began then to walk past Prisoner A, who at that stage jumped onto the sofa and stood on the edge of the back of the sofa, hanging onto the netting directly above his head. This netting spans from one side of the prison to the other, creating a netting “ceiling” above head height but that was reachable by Prisoner A when standing on the back of the sofa. The netting

[52]At this point we pause to discuss the netting and incidents around that netting. The claimant’s evidence was that it was a regular occurrence that individuals would try to get through the netting to climb up out of reach of officers. In fact, he said roughly once a week an individual would pull themselves up through the netting. Governor Monaghan disputed this; he suggested that this may be the number of people who jump down onto the netting from above, but not the number of those who climb up from below. Governor Monaghan explained that, in his role as Prison Group Director for Bedfordshire, he would need to be alerted whenever a prisoner did climb through the netting, and he had never been informed of such an incident.

[53]Governor Monaghan gave detailed evidence, having been to the site to inspect the netting. He told us that the holes in the netting directly overhead were not large enough for a prisoner to get up through the netting. Instead, an individual would need to use the netting like monkey bars to swing across to one side of the netting, where it attaches to the wall. At that location there would be a gap big enough to climb up through in order then to be on top of the netting, which in itself would require great strength. He accepted it may be possible for a prisoner to reach their feet up into the netting, but again that would require great strength.

[54]In his time in the prison service, Governor Monaghan had not seen anyone getting up, clinging to the netting, and then “monkey climbing” across (his expression) to a gap that they could then climb through.

[55]We accept Governor Monaghan’s evidence on this point. He informed us that he is a rock climber and has some understanding of the logistics of climbing and the strength required. He has also had many years’ experience, during which we accept that he would have been informed if someone had successfully climbed up through the netting.

[56]We therefore find that it unlikely that Prisoner A would have in fact been able either to get through the net from directly below (from the sofa), or to clamber across to a gap allowing him to get through the netting. The “rugby tackle”

[57]The claimant, on seeing Prisoner A climb onto the sofa, followed him onto the sofa, wrapped his arms around Prisoner A’s waist and brought him down initially onto the back of the sofa, then the pair fell to the floor.

[58]Once the two men were on the floor, other officers joined the scene. We observed from the CCTV that, once Prisoner A was on the floor, and once the claimant could extricate himself, he did so. In fact, his focus, as soon as he was free from Prisoner A’s grip, was to untangle his key chain from Prisoner A’s foot. At the point of becoming free from entanglement, the claimant stood up and was directing staff in terms of what needed to be done to secure the area and check Prisoner A’s health status.

[59]The respondent’s case is that the claimant’s action in climbing onto the sofa and taking down Prisoner A was a tackle in the heat of the moment; Governor Monaghan said it was a “rush of temper”. We do not accept this. We accept the claimant’s case, supported by the CCTV footage, that he deliberately wrapped his hands/arms around Prisoner A’s waist, not in a rugby tackle, but in order to be able to bring him down in a controlled fashion onto the sofa. It is clear from the positioning of the two men that this was the claimant’s intent and, as we have said, was in part effective as the men did land on the sofa back initially.

[60]We do not accept this was an emotional/heat of the moment reaction. We find that the claimant’s calm, professional actions in the immediate aftermath, and the speed with which he extricated himself from his entanglement with Prisoner A, were inconsistent with someone who had been overcome with emotion seconds before.

[61]We accept that the claimant’s actions were motivated not by anger/frustration, but by a genuine concern for Prisoner A’s safety. We accept that this genuine belief may have been mistaken. We have accepted Governor Monaghan’s evidence regarding the netting and so, objectively, consider it unlikely that someone would get through the netting to put themselves in mortal danger.

[62]However, we accept also that the claimant had particular knowledge of Prisoner A and his mental state, given both their involvement in STRIDE, and the claimant’s knowledge of the ACCT Plan that had been opened and closed in the last month. The claimant also knew that Prisoner A had undertaken a protest at height on 19 July 2021.

[63]Following the incident, the claimant said to Officer Portas that Prisoner A had threatened to “do himself up” (i.e. to commit suicide) while in the throes of getting up onto the sofa. It is the respondent’s case that this was a lie. We address this assertion further in our findings below. We find that the claimant was not lying when he said this to Officer Portas. The respondent argues that the claimant said this after the event to cover up his actions, so that he could later say that he had a concern for Prisoner A’s safety and was acting to preserve life. We find, on the balance of probabilities, that it is unlikely that the claimant would have had the presence of mind to fabricate this so quickly following what the respondent deemed to be a rush of temper. To fabricate something of that nature so quickly requires a level of forethought that we find would be unlikely to follow a rush of temper which is, by definition, not planned but instinctive.

[64]We therefore accept that Prisoner A had made such a remark. This remark, coupled with the claimant’s particular knowledge of the claimant, we find made the claimant hypervigilant and particularly sensitive/hyperaware when it came to the welfare of Prisoner A. We find that this factual matrix led the claimant to have internally over-estimated the danger level. Even though mistaken, we accept that his concern for Prisoner A was genuine. Following 20 July 2021

[65]The following day, the claimant completed a Use of Force (“UOF”) Statement – [344]. The respondent has asserted that this statement is not honest when compared to the CCTV evidence. We reject that assertion. The UOF statement was completed by the claimant having seen the CCTV evidence only once, in a room with others, on a small screen. At the time of writing, he had not had the opportunity to pore over the CCTV evidence. We find that the claimant in his UOF statement gave his genuine account: we accept it is not completely accurate however the presence of inaccuracies is not synonymous with the writer deliberately lying. The UOF statement was the claimant’s subjective impression of events that began and concluded within a matter of seconds. The claimant was happy to accept later in the chronology, having reviewed the CCTV again, that some of the UOF statement was wrong; particularly in relation to his initial assertion that Prisoner A had been attempting to punch him. We find that the UOF statement was given in good faith, and was genuine if mistaken on some points.

[66]On 21 July 2021, the claimant was suspended on full pay based on the allegation that - [281]: “You used unnecessary force on a prisoner, [Prisoner A], on C Wing at 09.03a.m. on 20 July 2021”

[67]An investigation was commissioned by Governor Butler; the Terms of Reference for the investigation are at [314] and set out that the relevant categories of alleged misconduct are:a. Assault/unnecessary use of force on a prisoner; and,

b. Unprofessional conduct.

[68]Governor Megicks was appointed as investigating officer and wrote to the claimant by letter of 26 July 2021 to inform him of his appointment - [283]. Megicks’ appointment as investigating officer

[69]Part of the claimant’s case is that Governor Megicks should never have been appointed to be investigating officer, due to his bias against the claimant. This is (in part) based on the claimant’s point that Governor Megicks had previously conducted or commissioned investigations into the claimant, where to do so was unnecessary (see paragraph 39 above).

[70]This point was explored by Governor Phelps in the grievance appeal process - [581]. The evidence she found was that it was not the case that Governor Megicks had investigated the claimant previously. The claimant’s evidence to Governor Phelps was that Governor Megicks had investigated him three times.

[71]As we have set out above at paragraph 39, the documentary evidence before us demonstrates that there was only one previous occasion in which Governor Megicks had been the instigating officer. On no occasions in the documentary evidence had he been the investigating officer.

[72]We are not satisfied that the fact Governor Megicks instigated one investigation is sufficient on its own to mean that he was not an appropriate person to be appointed as investigating officer in 2021.

[73]However, we take into account Governor Phelps’ findings regarding a probation board for the claimant in December 2020, presided over by Governor Megicks. This relates to Issues 6a(v) and 7a(v) of the List of Issues. On this point, Governor Megicks accepted in the grievance appeal process that he asked the claimant to say a phrase in order specifically to highlight his accent. Governor Phelps found that this was inappropriate. In her evidence to us, she stated: “[the behaviour] was very concerning to me at the promotion board, but they weren’t my staff, and I think Governor Butler should have been aware of it and should have been dealing with it”.

[74]On the basis of his conduct towards the claimant in this probation board alone, we consider that Governor Megicks was not an appropriate person to undertake the investigation. This conduct by Governor Megicks demonstrates a lack of professionalism and a willingness to demean the claimant in a professional context.

[75]It was Governor Butler who appointed Governor Megicks to the position of investigating officer. We therefore consider his knowledge of the working relationship between the claimant and Governor Megicks to be relevant to the issue of whether Governor Megicks should have been so appointed.

[76]During his evidence to us, Governor Butler was asked about his knowledge of the history between the two gentlemen. Specifically, this was done in reference to points raised latterly by the claimant in his email to Governor Butler on 26 October 2021 - [356/357]. In that letter, the claimant raised thirteen points that he says demonstrated that the relationship between himself and Governor Megicks was such as to make Governor Megicks an inappropriate investigating officer. We will refer to those points as “Points 1 - 13”.

[77]In terms of Point 1 (grievances raised by Governor Megicks against the claimant), Governor Butler’s evidence was: “I am not aware of any formal grievances”.

[78]We find that Governor Butler picked his words carefully and deliberately in giving that answer: there was no reason for him to specify “formal grievances”; that had not been the question.

[79]Regarding Point 2 (the events at a meeting between the claimant and Governor Megicks held in an attempt to resolve issues between the men at the lowest level), Governor Butler stated: “I don’t recall at the time, there was no reason why as Governor I should know. The issue was informally dealt with...I don’t recall anyone raising it with me. ... If they had raised it with me I would have been glad it had been resolved”.

[80]We consider it notable that this lengthy answer did not contain a categorical “No, I did not know of the meeting”. Again, we find that Governor Butler was choosing his words carefully and deliberately.

[81]In his evidence on the relationship between the claimant and Governor Megicks generally, Governor Butler’s answers were “I don’t recall” (or iterations thereof). The only matter to which he gave a clear answer was that he did not have knowledge of the text containing a YouTube link sent by Governor Megicks to the claimant (Issues 6a(iii) and 7a(iii) of the List of Issues). We again find that Governor Butler picked his words carefully when answering these questions.

[82]We consider it more likely than not that Governor Butler was aware of the tension between the claimant and Governor Megicks, including that there had been an attempted resolution meeting between the two men. We accept the claimant’s evidence that he would see Governor Butler whilst at work and that they would chat; this would seem almost inevitable as between an SO and Governor. We accept Governor Phelps’ evidence that this sort of interaction between colleagues is something of which a Governor should be aware. We find it unlikely that Governor Butler knew nothing about the interaction between employees for whom he was responsible.

[83]We accept that the respondent’s widespread policy is to deal with matters at the lowest possible level, as Governor Butler confirmed in his evidence to us. The consequence of this policy (whether intentional or not) is that the senior leadership team (and ultimately the Governor) need not be troubled by personal difficulties or disagreements between employees unless absolutely necessary, when such matters become formal. However, there is a difference, we find, between the senior leadership team having formal or official knowledge of such issues, and having informal or unofficial knowledge of relationship tensions between their staff.

[84]Another consequence of dealing with matters at the lowest possible level is that there are no records of such matters. For example, there is no record of the “resolution” meeting between the claimant and Governor Megicks precisely because they were dealing with the matter between them informally. This does mean that there is a lack of documentary evidence of such lowerlevel disagreements or grievances.

[85]We come back to Governor Butler’s choice of investigating officer. His evidence to us was that “there was nothing to suggest that [Governor Megicks] wasn’t going to be impartial”.

[86]We do not accept this evidence, in light of our findings on Governor Butler’s knowledge of the tension between the claimant and Governor Megicks, we consider that this knowledge should have been sufficient to exclude Governor Megicks as an investigating officer due to at least the risk of Governor Megicks being impartial.

[87]The respondent argues that the claimant only raised the alleged inappropriateness of Governor Megicks’ appointment after the investigation report was produced, and in reaction to its negative contents. We do not accept the underlying suggestion here, that the claimant’s concern was raised in bad faith. The claimant’s evidence, which cannot be challenged by the respondent, is that he raised this point to his union representative at the time of Governor Megicks’ appointment. His union representative advised him to see how the investigation played out. In any event, the claimant raised his concerns within the time frame given by the respondent’s policy for raising such objections: he cannot be criticised for raising concerns towards the end of the permitted time frame. We find that the claimant’s concern about Governor Megicks was genuine.

[88]The respondent argues that, if the appointment of Governor Megicks was inappropriate, this matter was addressed by the respondent, as Governor Butler in the disciplinary hearing offered to have the investigation redone. The reference is at [490]: “[Butler] But the investigation Sean, right. Okay. The investigation’s on the facts. We’ve seen the CCTV. Now, what are you suggesting? That I go and reinvestigate it? [Claimant] No. [Butler] Because I can do that. I can get another manager to do it. And you know, we can do that. If that’s what if that’s what [sic] you’re suggesting that you don’t believe you believe in some way [sic]. But you’d have to show me how because I’m not, I’m not clear. Because the facts is [sic] the facts”.

[89]When asked about this statement in evidence, Governor Butler stated: “I said it because I meant it. What I was also saying was that I was not clear what he was saying as the facts were the facts, but if he was able to convince me of course I would have got someone else”.

[90]What this evidence in fact demonstrates to us is that Governor Butler mainly focused his decision making on the CCTV (that footage showing “the facts”). We return to this matter when discussing Governor Butler’s decision making below.

[91]In summary on the issue of Governor Megicks appointment as Investigating Officer, we find that it was inappropriate. Furthermore, we find that Governor Butler had sufficient knowledge of the fractious relationship between the claimant and Governor Megicks to come to the conclusion that it was inappropriate to appoint Governor Megicks into the role. We will return to the question of the impact the appointment had on the fairness of the process late in our Judgment. The investigation process

[92]As part of the investigation process, Governor Megicks interviewed the following individuals:a. Prisoner A on 30 July 2021 - [342];

b. Officer Owen Price, Use of Force Instructor, Use of Force Coordinator, on 27 July 2021 – [331];

c. Officer Helen Portas, witness, on 4 August 2021 – [340];

d. The claimant (second interview) on 3 September 2021 – [317].

[93]The claimant had a first investigation interview with Governor Megicks, however that interview was not recorded due to a technical fault. As such a second interview had to be arranged. Governor Megicks obtained permission for an extension to the completion date for the investigation - [288].

[94]The second interview took place on 3 September 2021; the transcript of that interview appears at [317]. It is the claimant’s case that, in the first interview, Governor Megicks made various sympathetic comments that were not recorded, and then not repeated in the second interview. We are not satisfied that we can safely make findings about what was said at the first interview that may have been sympathetic and, if then not repeated at the second interview, the reasons for that lack of repetition. We simply note that the Tribunal is somewhat puzzled by the lack of recording and the need for a second interview. However, this has no impact on our findings in this case.

[95]An investigation report was produced by Governor Megicks on 27 September 2021 and sent to Governor Butler on the same day. The report is at [290]. In that report, Governor Megicks summarised the evidence of those individuals he had interviewed. He also analysed the incident using the framework of the Use of Force four general principles. In his report, under the heading of “Evidence against allegation 1”, he recorded that “[t]here is no evidence against the allegation” - [303]. He also recorded under the subheading of “Special/mitigating issues” that there were “[n]one” - [304].

[96]Governor Megicks summarised the information he gleaned from each interview. We note in particular the evidence obtained from Officer Price, and refer to the transcript of that officer’s interview, starting at [331]. In summary, Officer Price’s evidence to the investigation was that the use of force by the claimant, looking at the CCTV, was not reasonable or necessary – for example [334/335]. This was due to, firstly, the matter being at height and, secondly, there being no dialogue between the claimant and Prisoner A first: Officer Price’s evidence was that force should always be the last resort, there should be de-escalation attempts first.

[97]Governor Megicks’ report summary is at [305]. He reached the following conclusions:a. Prisoner A was not posing a risk of harm to himself or others - [308];

b. The claimant used more force than was necessary and as such “the actions of [the claimant] in the restraint of [Prisoner A] could be considered as unlawful”;

c. The claimant’s Use of Force statement was inconsistent with the CCTV footage regarding the events of 20 July 2021 - [309];

[98]In light of these conclusions, Governor Megicks made a recommendation that the evidence of the allegation be tested through a disciplinary hearing – [312].

[99]The claimant was informed of the decision for the matter to progress to a disciplinary hearing by Governor Butler on 13 October 2021 - [353] (the date of 13 August on the letter is accepted by all as being inaccurate). The investigation report

[100]The claimant’s case is that the investigation report is biased and flawed.

[101]We consider that there is information within the investigation report that is skewed against the claimant. For example, Governor Megicks found that the claimant had attempted to put his arm across Prisoner A’s neck deliberately. We disagree with this interpretation of the CCTV (as, notably, did Governor Butler), and consider that interpretation to be unreasonable on the footage. This demonstrates to us that the investigation is skewed against the claimant.

[102]The Tribunal also considers it conspicuous that there is no mitigation and no evidence against the allegation within the report. We find that this demonstrates a closed-mindedness, given that there was mitigation, such as the claimant’s argument that he had acted to preserve life.

[103]We find that the investigation report was flawed. However, the pertinent issue is whether this flaw impacted the decision-making. We return to this point when considering Governor Butler’s decision-making below. The claimant’s complaint

[104]The claimant sent Governor Butler an email dated 26 October 2021, a couple of weeks after being informed of the investigation outcome. He attached two documents to that email, one of which was labelled as a grievance – cover email at [356], grievance at [357]. The grievance focused on actions that the claimant alleged had been committed against him by Governor Megicks and contained the Points 1-13 referenced above at paragraph 76. The other document attached to the 26 October email was entitled “Consideration Letter” and set out the claimant’s response to the disciplinary allegation against him.

[105]On receipt of that email from the claimant, Governor Butler sent an email to Lana Turney advising that the claimant would need to submit his grievance on the correct form, SOP-GRV1 - [379]. In that email, he stated: “The Deputy governor will not be able to consider anything related to the investigation into the allegation against [the claimant] as part of his grievance, as this is a separate disciplinary matter. [The claimant] would need to raise any concerns he has about the process or the conduct of the investigating manager at the disciplinary hearing with the hearing authority”.

[106]The claimant’s grievance was referred to Steve Paice as the line manager of Governor Megicks, the subject of the complaint – [381]. Disciplinary process

[107]On 25 November 2021, a Case Analysis Submission was sent by HR to Governor Butler regarding the disciplinary case against the claimant - [394].

[108]The disciplinary hearing took place on 30 November 2021 - [397-502]. The hearing was attended by:a. Governor Butler as the hearing officer;

b. The claimant;

c. Martin Field as the claimant’s trade union representative;

d. Lana Turning, note taker;

e. Julia Bielby, HR Case Worker;

f. Governor Megicks as the investigating officer.

[109]At [499], the disciplinary meeting was reconvened in order for Governor Butler to deliver his decision – [499]. The Governor found that the allegation against the claimant of unnecessary use of force was proven on the balance of probabilities, which was the applicable burden of proof. He went on to conclude that the claimant’s conduct constituted gross misconduct. At that stage he paused in order to take time to consider the appropriate penalty. On returning, Governor Butler told the claimant that he considered - [502]: “the relationship between you and HMPPS is irretrievably broken down as a consequence of your gross misconduct and the penalty is dismissal”.

[110]The outcome of the decision to dismiss was conveyed to the claimant by letter dated 7 December 2021 – [503-506]. The effect of the investigation report

[111]We have found above that Governor Butler’s evidence regarding “facts being facts” demonstrates to us that he mainly focused his decision making on the CCTV (that footage showing “the facts”). However, this is at odds with the fact that Governor Butler was influenced by the contents of the investigation report: for example, the information given by Officer Portas. His evidence was that, in general, his approach to investigation reports when acting as disciplinary officer was as follows: “I used the investigation report as a way of triangulating my decisions – the investigating officer has to be able to back up findings and conclusions”.

[112]At paragraph 100 to 103 above, we found that the investigation report was flawed. However, when we analyse the (negative) impact of the flaws we have identified, there is no such impact:a. We accept that Governor Butler did not simply accept the investigation report as read. For example, he disagreed with Governor Megicks on his interpretation of the claimant putting his arm across Prisoner A’s throat;

b. Further, although the investigation report highlighted a lack of mitigation, the claimant accepted in the disciplinary hearing that he had had the opportunity to put forward all relevant mitigation – [500].

[113]As such, we find that any impartiality on the part of Governor Megicks, and any flaw in the investigation report caused by that impartiality, did not impact Governor Butler’s decision. Governor Butler’s decision-making

[114]There are three places in the bundle where we can find evidence of Governor Butler’s decision making: in the transcript at the point of delivering his view on the allegation [499/500]; in the transcript at the point of delivering his decision on sanction [502]; in the disciplinary outcome letter at [503].

[115]At the end of the disciplinary hearing, Governor Butler set out clearly the reasons why he found the claimant guilty of the misconduct alleged: those reasons are set out in the transcript at [499-500]. He concluded by stating: “Therefore the force used on [Prisoner A] was not justified. I’m satisfied that the standard of proof required which is the balance of probabilities was met. Your behaviour constitutes gross misconduct for the reasons I’ve explained. So before I decide on the penalty, Sean, is there anything you wish to say in mitigation? Anything further”.

[116]As we set out earlier (at paragraphs 17 and 18) the definition of gross misconduct does not include the use of unnecessary force. The definition of gross misconduct that the respondent now seeks to rely on is the general definition that there was “repudiatory misbehaviour”; something “so serious as may make any further relationship and trust between NOMS and the member of staff concerned impossible” - [131]. In short, we understand this to mean that the employee has caused a repudiatory breach of their contract of employment by breaching the implied term of trust and confidence.

[117]Governor Butler did not address the issue of a break-down in trust and confidence or of repudiatory misbehaviour in his decision at the hearing [499/500]. He explained why he found the charge of unnecessary use of force proven; but then we find that there is a gap in his explanation for why the unnecessary use of force was equated to gross misconduct. He discussed the undermining of HMPPS work, and the importance of maintaining standards, but this, we find, does not equate to finding that an employee has gone so far as to cause a repudiatory breach of the implied term of trust and confidence.

[118]When Governor Butler reconvened the hearing to deliver his decision on sanction, he stated that: “Your use of force on a prisoner at height as the first option rather than as a last resort, and on a prisoner who was that [sic] height, was wholly unnecessary and completely contravened HMPPS use of force procedures. I therefore consider the relationship between you and HMPPS is irretrievably broken down as a consequence of your gross misconduct and the penalty is dismissal”.

[119]This again is to jump from the finding of unnecessary use of force to a finding of repudiatory breach.

[120]Finally, we find that, in his decision outcome letter at [503], Governor Butler did not sufficiently explain why he went from upholding the factual allegation of unnecessary use of force to there being an irretrievable breakdown of trust. His only words that went beyond the reasons for upholding the factual allegation of unnecessary use of force were “you have significantly breached standards expected of you as an employee of HMPPS”. However, there is no good explanation as to why standards have been breached, or why he considered that the implied term of trust and confidence had been breached.

[121]In short, we find that Governor Butler’s conclusion was that the very nature of a charge being unnecessary use of force is sufficient to amount to gross misconduct leading to dismissal. However, this is at odds with the respondent’s policy whereby an unnecessary use of force is “just” misconduct. Governor Butler, we find, failed to explain why this particular incident of unnecessary use of force was elevated from misconduct to gross misconduct.

[122]We find that, given “unnecessary use of force” is expressly named in the list of misconduct, if the respondent intended it to be also an example of gross misconduct it would appear in that list too. By virtue of its absence from the examples of gross misconduct, but being explicitly listed in the misconduct list, we find that, on its own, unnecessary use of force is not deemed an act of gross misconduct by the respondent. In other words, something more must be required to elevate it to a repudiatory breach equating to gross misconduct.

[123]In his oral evidence, Governor Butler gave the impression that it was the claimant’s lack of contrition and lack of confirmation that he would not act in the same way again that led to dismissal being the appropriate sanction. In his witness statement, Governor Butler sets out that the claimant’s failure to take responsibility impacted his decision; this witness statement is dated December 2024 and appears to be the first time that this rationale is mentioned. These explanations do not appear in the contemporaneous documents from the time of dismissal; we find they are retrospective reasons, rather than reasons that acted on the Governor’s mind at the time of making the decision to dismiss.

[124]Furthermore, we confirmed with Governor Butler that he concluded that the claimant had lied about the incident on 20 July 2021. Governor Butler’s conclusion was that the claimant had lied in telling Officer Portas that Prisoner A had told him he was “going to do himself up”. This was, Governor Butler told us, on the basis that Prisoner A had denied making such a statement. We have found as a fact that this statement had not been invented by the claimant. We furthermore find that it was not reasonable for Governor Butler to reach the conclusion that the claimant was lying on this point, simply on the basis of Prisoner A’s evidence – we deal with this in greater detail below. The claimant’s appeal against dismissal

[125]The claimant appealed his dismissal. Governor Monaghan was assigned as the hearing authority for the appeal, and held an appeal hearing with the claimant on 16 February 2022 – [540]. That meeting was attended by Sarah McCarthy as the HR Case Manager, and Kym Moore as note-taker. The claimant was not represented by the union at the appeal hearing, but he was content to go ahead. The transcript of the appeal hearing is at [544].

[126]As part of the appeal process, Governor Monaghan attended the area in which the incident in July 2021 occurred at HMP Bedford.

[127]Prior to making his decision on the appeal, Governor Monaghan was informed that the claimant’s grievance had not been upheld (see below).

[128]The claimant’s appeal against dismissal was refused. Governor Monaghan sent confirmation of this decision in a letter dated 15 March 2022 – [587-588].

[129]The appeal outcome letter is short, less than two pages of text. In that letter, Governor Monaghan explained that he considered the claimant’s actions to have been reckless and outside policy, that there were inconsistencies in the claimant’s account when compared to the CCTV and that he disagreed with the claimant’s assessment of the risk posed by Prisoner A - [587]. These matters all go to whether factually there was use of unnecessary force. Governor Monaghan then simply stated “I am fully supportive of Governor Butler’s decision to dismiss you from HMPPS;...”: he did not mention or address the matter of an irretrievable breakdown.

[130]In Governor Monaghan’s witness statement, there is no mention of the rationale behind the proven factual allegation leading to an irretrievable breakdown. All that is said on the matter appears at paragraph 28 of his statement: “I considered [the] Governor’s decision to dismiss the claimant to be appropriate, I agreed that the relationship between the claimant and HMPPS had irretrievably broken down”.

[131]When asked by the Tribunal about the “irretrievable breakdown”, Governor Monaghan said that he felt that the claimant had not been honest in his account and had denied that he had inappropriately used force. He also stated that the claimant was “not contrite in his actions at all”, leading him to the conclusion that there was “little we could do to trust that the claimant would not act in the same way again”. We note, as with Governor Butler, that this was not an explanation given within the contemporaneous documentation.

[132]In his evidence to us, Governor Monaghan raised his conclusion that the claimant had not been honest. When we explored this with Governor Monaghan, he explained that he concluded that the claimant had not been honest when he said to Officer Portas that Prisoner A was “going to do himself up”. Governor Monaghan also based his conclusion of dishonesty on his finding that the claimant had run a defence denying he had inappropriately used force. We will return to this rationale in our conclusions.

[133]We find that these conclusions regarding dishonesty were not reasonable conclusions to reach on the evidence before Governor Monaghan:a. We find it unlikely that, in the space of seconds, the claimant would have fabricated the line “he said he was going to do himself up”. It would have required some mental agility to think through the steps having, just seconds before, taken Prisoner A down in what Governor Monaghan explained to us was (in his view) a spontaneous rugby tackle;

b. The claimant told Governor Monaghan: “...I breached the policy at height by putting my arms...” and “So I agreed that I breached the policy at height...”. As such, we find that it was inconsistent with the evidence before him for Governor Monaghan to find that the claimant denied he had inappropriately used force. We note that the claimant told us “I accept I used inappropriate force, but I did so because of Article 2 and concern about harm”. The reason for dismissal

[134]We are satisfied on the evidence of Governors Butler and Monaghan that they had a genuine belief in the misconduct alleged by the claimant, in that they genuinely believed that he was guilty of unnecessary use of force. In fact, the claimant himself admitted during the process that he had breached the Use of Force policy. He however maintained that this was due to his assessment of the risk to Prisoner A’s (and others’) safety meaning that Article 2 took effect as cited above at paragraph 12.

[135]We further accept that the reason for the claimant’s dismissal was the use of unnecessary force, which falls within the scope of conduct. We will explore the reasonableness of the dismissal in light of that reason further in our conclusions below. The grievance process

[136]The claimant’s formal grievance is recorded in the correct format at [509/567] and was received by Governor Paice on 10 November 2021 - [514].

[137]A grievance meeting took place, chaired by Governor Paice, on 26 November 2021. Governor Paice’s outcome decision is found at [515/573], in which he rejected the grievance.

[138]The claimant appealed against the grievance outcome and Governor Phelps was assigned as appeal panel chair. The claimant’s appeal document is found in the correct format at [576].

[139]Following an appeal hearing, Governor Phelps set out her outcome within the requisite form on 18 February 2022 at [581]. Her conclusion was - [582]: “An inappropriate text message was sent to you by Adam Megicks which was inappropriate as was any mention of your nationality or accent during a promotion board. I will formally write to Adam Megicks’ line manager to address the sending of inappropriate text messages”.

[140]These findings relate to Issues 6a(iii)/7a(iii) and 6a(v)/7a(v) of the List of Issues.

[141]The claimant had, between his dismissal and disciplinary appeal, undertaken the ACAS early conciliation process. Following the outcome of the disciplinary appeal and grievance appeal, he presented his claim form to the Tribunal on 24 February 2022. Facts regarding the discrimination and harassment claims

[142]We make some general findings at this stage in relation to Governor Megicks and his relationship with the claimant.

[143]The direct discrimination and harassment claims relate to the same five factual allegations, and are run in the alternative. Looking at the grievance that the claimant entered on [566], in terms of “Nature of Grievance”, he specifically ticked the boxes for harassment and discrimination on the grounds of race and religion or belief (amongst other boxes).

[144]The claimant’s grievance at [567] started with a general statement: “Shortly after the arrival of Governor Megicks at HMP Bedford as the Head of Residence I became the subject of bullying of a racial, religious and cultural nature. Governor Megicks would frequently belittle my Irish accent, ask me to say phrases and words in an Irish accent, presumably this appeared humorous to him, was but insulting and degrading to me. He would tell me we needed to go back to Belfast together when I do not even come from Belfast, nor have I ever been there”.

[145]From the evidence we have seen and heard, it appears to be common ground between the parties that, sometime around April 2021, the claimant and Governor Megicks had a “conciliation meeting” (our phrase) to try to clear the air. The claimant’s union representative, Mr Field, was present. Given that the fact of this conciliation meeting is accepted by both sides, it must follow that it is acknowledged that there were tensions in the working relationship between the claimant and Governor Megicks that made such a meeting advisable.

[146]Although the nature of the claims before us are five discrete matters, we take into account the evidence we have of the background as set out by the claimant above. Although this background of alleged discriminatory behaviour is not accepted by the respondent, we find that there was some friction between the claimant and Governor Megicks that stemmed from the claimant’s Northern Irish background and familial links to the IRA (his uncle was a member). We found the claimant to be a credible witness, who has been consistent throughout the documentation we have seen in the bundle, his witness statement, and his evidence to us. We have not heard from Governor Megicks, and so are not able to weigh his evidence against the claimant’s.

[147]We find that the claimant’s Northern Irish background was a matter of interest to Governor Megicks, and was on his mind in his dealings with the claimant. We find this on the basis of the claimant's evidence to us on the start of Day 3 and on which he was not challenged: “Governor Megicks was fascinated by Irish and British military presence. Governors Butler and Paice were in the Army. I think Governor Megicks may have been in the Army too but I can’t remember. He was extremely interested in British military and loved to ask questions and talk about it. He was fascinated by my family’s background”.

[148]Furthermore, we find that Northern Irish history is so intertwined with the religious divide that runs through that history, that the two cannot be separated.

[149]Although all allegations of discrimination and harassment (bar the allegation relating to dismissal) were raised within the claimant’s grievance, the only one that was dealt with in Governor Paice's outcome was the inappropriate text message. Governor Paice gave the reason that all the other matters were historic and that the conciliation meeting between the claimant and Governor Megicks had been seen by both parties as resolving those historic matters. He therefore decided only to deal with the text message. He came to the conclusion that he was unable to make any judgment given that he could not see the originating message. We consider this to be an unsatisfactory manner in which to deal with an allegation of discrimination and harassment.

[150]At the grievance appeal stage, Governor Phelps set the scope somewhat more broadly. She to some extent dealt with the lack of promotion in May 2020, although not conclusively. She covered the text message as well as the childish name-calling and the suggestion to the claimant's union representative that the claimant should resign. However, she did not turn her mind as to whether these were acts of harassment/discrimination, finding instead that the name calling and text were “inappropriate”, but not addressing the question of whether they were discriminatory or harassing in nature. Governor Phelps, like Governor Paice, was of the opinion that historic matters fell outside the scope of the grievance: “You also said you want a fair and transparent investigation into Governor Megicks and his conduct, however the things that you cite in your grievance happening [sic] more than 3 months ago apart from the alleged comment in [sic] the gate. You did not raise any formal complaint and nor was anything recorded at the time therefore an investigation is not warranted”.

[151]It is against this background and evidence that we consider the five distinct allegations before us. Issue 6a(i)/7a(i) - dismissing the claimant in November 2021

[152]The decision to dismiss was taken initially by Governor Butler and then affirmed on appeal by Governor Monaghan.

[153]We have found that the reason for dismissal was the claimant’s conduct. Furthermore, we have found that any bias within the investigation report did not impact on the decision to dismiss the claimant. Issue 6a(ii)/7a(ii) - refusing the claimant promotion in May 2020

[154]This allegation is set out in the claimant’s grievance at [567]: “In May 2020 I scored a top position in the first set of SO interviews I attended at HMP Bedford. The results were confirmed by Governor Megicks who had conducted and led the interview process. I was not given the role as I was placed under investigation which was also led by Governor Megicks. The position was awarded to another member of staff. This was a clear breach of policy regarding promotion which requires the promotion to be offered pending investigation. This was an attempt by Governor Megicks to interrupt my promotion, and prevent me progressing in the role”.

[155]In relation to this particular promotion board, Governor Butler told us that there was an urgent need to fill the space as HMP Bedford was in difficulty at that time. He also explained that the standard practice within the civil service is not to promote someone subject to investigation procedures. In other words, if someone goes for a promotion, but during the process is under investigation, the promotion process pauses for that individual whilst the investigation concludes. If the vacancy has been filled by the time of conclusion of the investigation, the individual candidate then has to wait for the next promotion board. He explained that, if filling a vacancy can wait until the outcome of the investigation process, then it will wait. However when there is an urgency to fill the role, as there was at HMP Bedford at the time, then the entire promotion process cannot be paused and the role will be filled.

[156]Looking at the timeline of the promotion board and the investigations of which we are aware, it is unclear to us which investigation is said to have impacted on this promotion board. We have set out the two investigations we have in the bundle above:a. The first investigation was the subject of the investigation report produced on 30 July 2020 at [219]. Governor Megicks does not appear to have had direct involvement in this case; he is not named within the report other than reference being made to him not being interviewed – see paragraph 8.1 on [22]. The report seems to refer to some incidents prior to the promotion board, in February 2020 [223]. The report appears to have been opened on 11 June 2020 and closed on 30 July 2020 – [228];

b. The second investigation refers to an incident on 16 April 2020 - [229]. The terms of reference were issued by Governor Megicks on 20 August 2020; he was the commissioning officer or instigating officer. We note that the investigation continued into late October 2020.

[157]It therefore appears that the investigations did not formally commence until after the probation board in May 2020 (June and August 2020 respectively). However, the incidents leading to the investigations did take place prior to the promotion board: February and April 2020 respectively. It strikes us as odd that, if the alleged incidents were important enough to give rise to an investigation, those investigations would not take place for several months after the incidents.

[158]In terms of witness evidence, neither Governor Monaghan nor Governor Butler dealt with this matter in their statements. Governor Phelps’ evidence supports our findings to some extent, in that the only investigation she was aware of that involved Governor Megicks occurred in August 2020 - paragraph 14 of her statement. She went on at paragraph 16 to state: “It was agreed the claimant had attended a Promotion Board and scored highly but had not been promoted because he was under investigation at the time (and it was subsequently found there was no case to answer)”.

[159]In evidence to us, Governors Butler and Phelps gave a general synopsis of what happens when someone going for promotion is under investigation. They gave no evidence on the specifics of the claimant’s promotion board in May 2020.

[160]We consider that the relevant investigation must have been the second investigation set out above. This is the one in which Governor Megicks was involved, and which ended with there being no case to answer. We are not, however, satisfied that the formal investigation had commenced at the point of the promotion board in May 2020. As such, we consider that the respondent’s reasoning for not promoting the claimant, given his top marks at the promotion board, requires further exploration; we will return to this in our conclusions. Issue 6a(iii)/7a(iii) - sending the claimant inappropriate text messages linking the claimant to the IRA

[161]It is common ground that Governor Megicks sent the claimant a text message with a link to a video on YouTube; that video containing footage of the claimant’s uncle, in his capacity of a member of the IRA, being shot and killed in the 1980s, prior to the claimant’s birth.

[162]It also appears to be common ground that this text message was inappropriate to send to the claimant. Timing of the message

[163]There is some confusion about when this message was sent. We have various time references:a. Governor Megicks references this at a meeting in November 2021 as taking place 14 months ago, which would therefore be August September 2020;

b. In his grievance to Governor Paice at [509/510], the claimant placed the text as having been sent after the conciliation meeting. That meeting occurred in Spring 2021.

c. At [515], Governor Paice’s summary of his conversation with the claimant records that the claimant stated the text message had been received in August 2020. The narrative summary sets out that the conciliation meeting was “in May”; we take this as being reference to May 2021 as it would naturally read as referring to the May in the same year as the grievance meeting. However, the narrative also sets out that the text came after the conciliation meeting.

d. In the claimant’s witness statement at page 6, at paragraph (VI) he says that he made a complaint to the Diversity Manager in March 2021, which led to the conciliation meeting. He also says at paragraph (VII) that the text message was sent in April 2021. The narrative on this page of the claimant’s statement reads as if the conciliation meeting took place before the text message

e. In Governor Phelps’ outcome at [582], she places the text as being sent in August 2020 and the meeting being held in April 2021. It is further recorded that the text was discussed at the meeting.

[164]The weight of the evidence places the conciliation meeting in spring 2021, and places the text as being sent following that meeting. We find therefore that the text followed the meeting, and so the text was sent in spring 2021.

[165]This finding is further supported by the claimant’s words on page 6 of his statement, that the sending of the message was an indication to him “that [Governor Megicks] had not been genuine when he had agreed that his behaviour would “stop”” in the conciliation meeting. The reason for the message

[166]Governor Megicks did not provide evidence to the Tribunal himself, however we have a summary of his account within the grievance process at [515]: “Governor Megicks has stated that he sent the message to you, to alert you to the video being out on YouTube and this only being one day old. You had previously discussed your personal family circumstances and situation regarding your uncle with Governor Megicks and he therefore felt that you would want to know of its existence. In my meeting with Governor Megicks he said that in no way did he want to cause you any offence. He agreed that in hindsight he should have been better not to send the video, but have sent a descriptive text alerting you to its existence...”

[167]We heard evidence from all three governors before us that, if there was a genuine safety concern for the claimant due to the existence of the YouTube video, then it should have been reported by way of the correct security risk route. It was Governor Butler and Governor Monaghan’s position that, given the passage of time between his uncle’s death and the claimant's employment, there was no real security risk. Governor Phelps departed from this opinion, stating that the video should have been raised via the appropriate channels, which did not include sending the video link by message to the claimant directly.

[168]Governor Megicks has not been here to give us evidence or to be crossexamined. We do not accept his evidence to the grievance panel that this message was sent in a well-meaning, caring fashion. Had this been his intention, we conclude that he would instead have either talked to the claimant personally, or raised it via the proper channels.

[169]We consider the reason Governor Megicks sent the claimant the video was the claimant’s family connection to the individual in the footage. It is the personal familial connection between the subject of the footage and the claimant that we find led Governor Megicks to send the video. Issue 6a(iv)/7a(iv) - informing the claimant’s union representative during the investigation that it is better for him to resign

[170]This allegation relates to two alleged conversations that Governor Megicks had with the claimant’s union representative, Mr Jim Duncan, on two occasions in October 2021.

[171]In his grievance to Governor Paice, the claimant set out his allegation that Governor Megicks spoke to Mr Duggan in order to convince him to resign as he could “not see this [disciplinary process] ending well” - [511].

[172]Governor Megicks’ response to this allegation is set out within the summary of the grievance appeal at [582]. His response was that he did speak to the claimant’s union representative and talked about possible outcomes but that it would be down to Governor Butler. He denied saying that the claimant should resign.

[173]This conversation was not witnessed by the claimant but was reported to him by his union representative, therefore his information is second-hand.

[174]Mr Duncan gave evidence to Governor Butler at [460] – [462] in the disciplinary hearing. The relevant passages are as follows: “he recommended the potential of me advising you that you hand in your resignation”; “so he spoke to myself in a private capacity, very much not in front of anybody else. He did speak to me about how he felt the outcome was going through his investigation point”; “that was his own opinion. And I took that to mean that the write-up from his investigation and his sort of recommendations were not looking positive for [the claimant]”; “To be fair, I do genuinely think Adam, sorry, Governor Megicks… I did feel at the time that he had [the claimant’s] interest at heart. How [sic] it did surprise me somewhat that he brought it up with me later on”.

[175]In his appeal with Governor Monaghan, the claimant reported some more detail of Mr Duncan’s recollection to him - [553]: “he also approached my union representative twice, and told my union representative that it wasn’t going to go well for me and that I should just resign rather than go through the hearing because he didn’t want some grievances and text messages dredged up…”

[176]However, the claimant then clarified that the comment about not wanting grievances and text messages dredged up was his own interpretation, not something that was said by Governor Megicks.

[177]We are satisfied that words encouraging the claimant to resign on the basis that the disciplinary process was not going well for him were said by Governor Megicks. We accept Mr Duncan’s account over the account given by Governor Megicks: Mr Duncan had nothing to hide and nothing to gain from making up this detail. He was also reasonable in conceding that he thought Governor Megicks was acting in the claimant’s interests.

[178]Again, we are in the position where we have no evidence from Governor Megicks that can be subject to cross-examination. He has not provided a statement to the Tribunal. The only person who knows why he said these words is Governor Megicks. The only evidence we have from Governor Megicks on this is as cited above within the grievance appeal process, in which he denied suggesting resignation.

[179]His evidence to Governor Phelps was that he wanted to discuss possible outcomes. We have rejected this account factually; it follows that we reject the only reason put forward by Governor Megicks for his contact with Mr Duncan (to discuss possible outcomes).

[180]We will return to the reason for Governor Megicks’ conduct within our conclusions.

[181]We need to consider the date on which these conversations between Governor Megicks and Mr Duncan occurred. The claimant’s evidence in the grievance appeal at [582] was that this conversation happened after the investigation report had been completed, which was 27 September 2021. We find the only way the claimant could have used the report as a measure of time would be if he had, by then, seen the report. The claimant received the report on or after 13 October 2021 – [353].

[182]We also note that the resignation conversation is noted in the letter at [361]: that letter is dated 26 October 2021.

[183]As such, we find that the two discussions between Governor Megicks and Mr Duggan took place between 13 and 26 October 2021. Issue 6a(v)/7a(v) - subjecting the claimant to childish name calling – Megicks in December 2020

[184]The claimant clarified for us that this allegation relates to one sole incident, namely that at a probation board interview held by Governor Megicks and Vanessa Pitt (Head of Business Assurance), Governor Megicks asked the claimant to say “motorcycle helmet” in an Irish accent.

[185]The claimant initially reported this to Governor Butler in his email grievance of 26 October 2021, in which he said that Ms Pitt challenged and chastised Governor Megicks for this comment.

[186]The same allegation is repeated in the claimant’s grievance at [509], in which he recalls he was asked by Governor Megicks to say “motorcycle helmet” the way Irish people say it. The claimant acquiesced to this request given the importance of the interview. The claimant recorded that Governor Megicks was not satisfied and demanded that he repeated the phrase properly.

[187]Governor Megicks’ account of this incident is recorded within Governor Phelps’ summary of the grievance appeal [581]. She records the following: “[Governor Megicks] recalls this as being Vanessa (HOBA) saying she liked your accent and Adam asking you to say a phrase your [custody manager] used to get you to say. Martin [the claimant’s union representative] remembers something being said about you being Irish in the informal meeting but not what was said amongst all of the professional issues that were discussed. It is clear to me that any mention of your nationality or comments about your accent are not appropriate in either setting".

[188]We accept the claimant’s account of this incident; we repeat that Governor Megicks was not in attendance to be cross-examined whereas the claimant was. The claimant’s account has been consistent throughout the internal process and the Tribunal process. We find that Governor Megicks repeated his request for the claimant to say motorcycle helmet and that he was chastised by his colleague Ms Pitt.

[189]We turn to the reason why Governor Megicks asked the claimant to say the words “motorcycle helmet””. The claimant’s evidence on this point is that “motorcycle helmet” is a phrase which is one that Northern Irish people are asked to say in order to demonstrate their accent. This evidence was not challenged, and we accept it.

[190]We find that the only reason for Governor Megicks to require the claimant to say any specific wording in the manner in which we have found was because of his accent, which is connected to his Northern Irish nationality. Facts relating to jurisdiction and the time point – Issue 3b

[191]The claimant had not addressed this matter in his witness statement. As such, the Tribunal ensured that it asked the claimant some questions on this point to elicit relevant evidence from him.

[192]The claimant told us that the union referred him to Thompsons solicitors. However, because he had no documentation, he was told Thompsons would not represent him.

[193]The claimant did discuss Governor Megicks’ conduct with his union representatives in 2020 and 2021. However, nothing was discussed about coming to the Tribunal. We were told that Mr Field is not very litigious, and so he would not think to discuss possible litigation.

[194]It was Governor Monaghan who told the claimant something about ACAS or the Tribunal during the disciplinary appeal process. This led the claimant to undertaking his own research on the matter. Until the Governor mentioned something on this matter, the claimant was not aware of the Tribunal process or that he had a right to bring a claim.

[195]The Tribunal heard that the claimant wanted to exhaust the internal grievance process, and wanted to retain his job.

[196]We find it unlikely that someone with the claimant’s level of intelligence would not have heard of the Tribunal process, or have at least a high level understanding of employee rights. We note that he used words such as “discrimination” and “harassment” throughout the internal process. Also, giving the reason of wishing to keep your job as a reason for not starting litigation earlier suggests that he was at least aware that there may be some route for legal challenge available to him.

[197]However, we accept that he deferred to his union representatives and the advice they gave him. We further find that the claimant had wanted very much to remain as a prison officer, and so would not have wanted to do anything to (in his eyes) jeopardise that. Law Unfair dismissal – reason for dismissal

[198]The relevant legislation is found at s98(1), (2) and (4) ERA. “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal, and

(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – (a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) Relates to the conduct of the employee,

(d) Is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3) ... (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) - (a) Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) Shall be determined in accordance with equity and the substantial merits of the case”.

[199]The reason for dismissal is the “set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee” - Abernethy v Mott, Hay and Anderson

[1974] ICR 323

[200]It is for the employer to show the reason for dismissal and that it is a potentially fair one, such as conduct: this is not a high threshold for a respondent. In Gilham and Ors v Kent County Council (No2)

[1985] ICR 233

, the Court of Appeal held as follows: “The hurdle over which the employer has to jump at this stage of an inquiry into an unfair dismissal complaint is designed to deter employers from dismissing employees for some trivial or unworthy reason. If he does so, the dismissal is deemed unfair without the need to look further into its merits. But if on the face of it the reason could justify the dismissal, then it passes as a substantial reason, and the inquiry moves on to [s98(4)] and the question of reasonableness.” Unfair dismissal – fairness

[201]When applying s98 ERA, the Tribunal has been cautioned about attaching labels such as “gross misconduct”. In Hope v BMA [2022] IRLR, it was held at paragraphs 26-27: “26. Whether or not dismissal by reason of conduct is fair or unfair within the meaning of s98(4) depends not on the label attached to or characterisation of the conduct as gross misconduct, but on whether, in the circumstances, including the size and administrative resources of the employer's undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. It is equally well-established that the determination of that question involves, in a case where the reason for dismissal is said to be the employee's misconduct, the following four-stage analysis, as pithily summarised by Langstaff J in JJ Food Service Ltd v Kefil (2013)

UKEAT/0320/12

[2013] IRLR 850

: '8. In approaching what was a dismissal purportedly for misconduct, the Tribunal took the familiar four-stage analysis. Thus it asked whether the employer had a genuine belief in the misconduct, secondly whether it had reached that belief on reasonable grounds, thirdly whether that was following a reasonable investigation and, fourthly whether the dismissal of the Claimant fell within the range of reasonable responses in the light of that misconduct.' 27 There is no requirement in that four-stage analysis to determine whether conduct amounts to 'gross misconduct', which involves a separate contractual concept. That was made clear by Langstaff J in West v Percy…”.

[202]As set out above there are therefore four questions for the Tribunal to consider when determining whether a conduct dismissal is fair, originating from the case of British Home Stores Ltd V Burchell

[1978] IRLR 379

:a. Did the Respondent have a genuine belief that the Claimant was guilty of the misconduct alleged by the Respondent?

b. If so, were there reasonable grounds for the Respondent in reaching that genuine belief? and,

c. Was this following an investigation that was reasonable in all the circumstances?

d. Was the sanction of dismissal within the band of reasonable responses open to a reasonable employer?

[203]In all aspects of such a case, including consideration of sanction, in deciding whether an employer has acted reasonably or unreasonably within s98(4) ERA, the tribunal must decide whether the employer acted within the band of reasonable responses open to an employer in the circumstances. Whether the Tribunal would have dealt with the matter in the same way or otherwise is irrelevant, and the tribunal must not substitute its view for that of a reasonable employer – Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

, Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

, London Ambulance Service NHS Trust v Small

[2009] IRLR 563

[204]Following the case of Polkey v AE Dayton Services Ltd

[1988] ICR 142

, it is well established that fairness in procedure is a vital part of the test for reasonableness under s98(4) ERA. It is not relevant at this (the liability) stage to consider whether any procedural unfairness would have made a difference to the outcome: that is a matter for remedy (the issue in Polkey is set out below).

[205]Regarding dismissal for conduct issues, the reasonableness of the procedure is closely tied to the reasonableness of the investigation, and the provision of opportunity for the employee to make his position, explanation and mitigation heard and understood.

[206]Procedural and substantive fairness do not stand as separate tests to be dealt with in isolation. In Taylor v OCS Group Ltd

[2006] ICR 1602

, Smith LJ held at paragraph 47: “….it may appear that we are suggesting that employment tribunals should consider procedural fairness separately from other issues arising. We are not; indeed, it is trite law that section 98(4) of the Employment Rights Act 1996 requires the employment tribunal to approach its task broadly as an industrial jury. That means that it should consider the procedural issues together with the reason for the dismissal, as it has found it to be. The two impact upon each other and the employment tribunal's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason it has found as a sufficient reason to dismiss. So, for example, where the misconduct which founds the reason for the dismissal is serious, an employment tribunal might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee. Where the misconduct was of a less serious nature, so that the decision to dismiss was nearer to the borderline, the employment tribunal might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee.”

[207]An appeal hearing may be sufficiently comprehensive, thorough and effective such that it is capable of curing any preceding deficiencies in the disciplinary process: Khan v Stripestart Ltd

UKEATS/0022/15/SM

. Inconsistency of treatment

[208]When considering whether any inconsistency in sanction awarded to other employees is ostensibly similar disciplinary proceedings, Beldam LJ in Paul v East Surrey District Health Authority

[1995] IRLR 305

, held that: “34. I consider that all industrial tribunals would be wise to heed the warning of Waterhouse J, giving the judgment of the Employment Appeal Tribunal in Hadjioannou v Coral Casinos Ltd

[1981] IRLR 352

where, in paragraph 25, he said: “We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that industrial tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by [s 98(4) of the ERA]. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation”.35. I would endorse the guidance that ultimately the question for the employer is whether in the particular case dismissal is a reasonable response to the misconduct proved. If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning. If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider whether in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified.

36. An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely. I mention this because I consider that if the industrial tribunal in this case had had regard to these factors they would not have regarded the actions of the employers in Mrs Rice's case as disparate or have said that Mr Verling's misconduct should have been treated just as seriously, if not more seriously, than Mr Paul's.''

[209]If there is clear inconsistency, this is only a factor which may have to give way to flexibility. Accordingly if, an employer has been unduly lenient in the past, he will be able to dismiss fairly in future notwithstanding the inconsistent treatment – Distillers v Conlin

[1992] IRLR 503

at paragraph 5. Interplay between direct discrimination and harassment

[210]Under s212(1) EqA, “detriment” is defined as follows: ““detriment” does not, subject to subsection (5), include conduct which amounts to harassment;”

[211]S212(5) EqA provides: “Where this Act disapplied a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic.”

[212]Under s39(2): “An employer(a) (A) must not discriminate against an employee of A’s

(b) (B) – (a) as to B’s terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

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

[213]As such, a detriment falls within the definition of discrimination and therefore direct discrimination under s13. Following s212, this therefore means that the Tribunal cannot uphold a claim of harassment and direct discrimination on the same factual allegation. Harassment and direct discrimination claims for the same conduct are therefore mutually exclusive and cannot both succeed, but can be run as claims in the alternative.

[214]Given that the legislation provides that detriment does not include conduct amounting to harassment, it is appropriate for the Tribunal to determine whether a particular allegation amounts to harassment. If it does, then there is no need to consider whether the same allegation amounts to direct discrimination. If the allegation does not amount to harassment, the Tribunal will then move on to consider whether the allegation amounts to direct discrimination. Direct race/religion discrimination – s13 Equality Act 2010 (“EqA”)

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

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

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

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

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

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

[2003] UKHL 11

. Reason for less favourable treatment

[218]The correct approach to the issue of causation under s13 EqA is to determine whether the protected characteristic had a “significant influence” on the treatment – Nagarajan v London Regional Transport

[1999] IRLR 572

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

[2001] UKHL 48

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

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

[1996] IRLR 372

. Burden of proof under the Equality Act 2010

[220]The burden of proof for discrimination claims is set out in s136 EqA: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.

[221]In Laing v Manchester City Council and anor

[2006] ICR 1519

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

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

[2007] ICR 867

, Lord Justice Mummery held: “56. The court in Igen Ltd v Wong

[2005] ICR 931

expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.

[223]This approach was subsequently approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

, at paragraph 31: “The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden”.

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

[2021] ICR 1263

. The case of Efobi also upheld the approach of the decisions set out above, that it is for the claimant to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the Tribunal could infer discrimination. Although the Tribunal may consider all the evidence before it (not just that of the claimant) the burden rests firmly with the claimant at this first stage – see discussion at paragraphs 21 to 34 of Efobi.

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

[226]In Virgin Active Ltd v Hughes

[2023] EAT 130

(specifically paragraph 65), it was highlighted by the EAT that the consideration of whether there are material differences in the circumstances of an actual comparator compared to those of the claimant needs to take place before applying the shift in the burden of proof. The EAT gave the following example at paragraph 68: “For example, if two people who differ in a protected characteristic attend a job interview and one is appointed but the other is not, that, of itself, would not be enough to shift the burden of proof, but if they scored the same marks in the assessment, so there is an actual comparator, the difference of treatment would seem to call out for an explanation”.

[227]Regarding a hypothetical comparator, the claimant must show that the comparator would have been treated more favourably. This requires the Tribunal to be able to draw inferences of likely treatment of a hypothetical comparator from the evidence before it.

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

[2005] ICR 931

[229]Overall however, the courts caution against placing too much emphasis on the burden of proof provisions. This was emphasised in Martin v Devonshires Solicitors

[2011] ICR 352

when the EAT held that: “39. …[The burden of proof] provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination – generally, that is, facts about the respondent’s motivation (…) because of the notorious difficulty of knowing what goes on inside someone else’s’ head (…). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or another, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law”.

[230]The Supreme Court in Hewage agreed with this approach, citing the decision in Martin with approval at paragraph 32. Harassment related to race/religion

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

(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) Violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, mediating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;

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

[1999] IRLR 299

, and more recently Smith v Ideal Shopping Direct Ltd

UKEAT/0590/12

. Purpose or effect

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

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

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

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

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

[2018] EWCA Civ 1203

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

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

[2020] IRLR 495

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

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

[240]Section 123 of the EqA provides as follows: “(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of –(a) The period of 3 months starting with the date of the act to which the complaint relates, or

(b) Such other period as the employment tribunal thinks just and equitable. (2) … (3) For the purposes of this section – (a) Conduct extending over a period is to be treated as done at the end of the period; (b) Failure to do something is to be treated as occurring when the person in question decided on it. (4) …” Continuing act

[241]There is a difference between a one-off discriminatory act that has ongoing consequences, and a continuing act. This comes from the case of Barclays Bank plc v Kapur and others

[1991] ICR 298

, HL, in which the House of Lords held that, in a situation in which an employer operates a discriminatory regime, rule, practice or principle, then such arrangement will amount to a continuing act. Conversely, where no such arrangement exists, there will be no continuing act under s123(3), even though the effects of an act may be continuing.

[242]The requirement of a policy or regime must not be taken too literally, In Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

, CA, the Court of Appeal moved away from the approach of identifying a regime, and instead focused on whether the Police Commissioner was responsible for a continuing state in which (in that case) women of ethnic minorities were treated less favourably than other officers. The decision in Hendricks was later confirmed in Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

, CA. The Tribunal must therefore consider the substance of each allegation, not whether there is a regime or policy in place.

[243]One factor that can be weighed in to the question of a continuing act is whether the alleged individual acts of discrimination involved the same or different people – Aziz v FDA

[2010] EWCA Civ 304

[244]In South Western Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

, EAT, the Employment Appeal Tribunal held that, if any of the acts in an alleged chain of conduct extending over a period are found to be nondiscriminatory, they cannot be part of that chain. Those acts must be ruled out of any consideration under s123(3). Just and equitable extension

[245]The issue as to whether a claim is brought within such time as is just and equitable has been established to be one of fact for the first instance tribunal.

[246]It is well established that, despite the broad scope of the “just and equitable” test, it remains the case that time limits should be applied strictly, and to extend time remains an exception to the rule – Robertson v Bexley Community Centre

[2003] EWCA Civ 576

. The burden is therefore on the claimant to demonstrate to the Tribunal that time should be extended.

[247]However, the Tribunal’s discretion is wide: the Court of Appeal commented in recent years that “Parliament has chosen to give the employment tribunal the widest possible discretion” - Abertawe Bro Margannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

[248]The Employment Appeal Tribunal in the case of Miller and ors v Ministry of Justice and ors and another case EAT 003/15 held that the prejudice suffered by the respondent in having to answer an otherwise time barred claim is of relevance to the Tribunal’s decision.

[249]HHJ Tayler, in the case of Jones v Secretary of State for Health and Social Care

2024 EAT 2

, remarked that the comments from Robertson are often cited out of context by respondents. He held that Robertson in fact is authority for the principle that the Tribunal has a wide discretion when it comes to the “just and equitable” test; Auld LJ’s comments in Robertson should be reviewed within that framework and not taken out of context.

[250]The accepted approach to be taken to exercising the Tribunal’s discretion is to take into account all the factors in a particular case that the tribunal considers relevant, including the length of and reasons for delay – Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ 23

. The strengths and weaknesses of the claim may also be relevant (but not definitive) to a decision on extending time – Lupetti v Wrens Old House Ltd

[1984] ICR 348

[251]The Tribunal must consider the balance of prejudice to the parties if the extension is granted or refused – Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] ICR 283

. Conclusions Unfair dismissal Issue 4a – reason for dismissal

Conclusions

[252]As above at paragraphs 134-135, the Tribunal accepts that the reason for dismissal was the claimant’s conduct, namely the unnecessary use of force. Conduct is a potentially fair reason under s98 ERA. As such, we move on to consider whether the respondent was reasonable in treating that specific conduct as a sufficient reason to dismiss the claimant. Issue 4b(i) and 4b(ii) – reasonable grounds for the belief following a reasonable investigation

[253]We have found that Governor Megicks was an inappropriate person to be appointed as investigating officer, and that the investigation report was flawed. However, we have also found at paragraph 113 that these matters did not impact Governor Butler’s decision-making. As such, those matters in themselves do not render the dismissal unfair.

[254]We accept that there were reasonable grounds for concluding that the claimant was guilty of unnecessary use of force. He admitted as much, but relied on the exception of the need to act contrary to the Use of Force Policy given his concerns for Prisoner A’s safety. However, Governor Butler had professional evidence from Officer Price which clearly stated that the claimant’s actions amounted to an unnecessary use of force. We conclude that Governor Butler and Governor Monaghan were reasonable in relying on this evidence given the role that Officer Price held at the time. Issue 4b(iii) - procedural fairness

[255]We have found that Governor Megicks should not have been appointed as Investigating Officer, and that his investigation report demonstrates elements of bias.

[256]However, we have found that those irregularities did not have any impact on the respondent’s decision making. As such, those irregularities are not so severe as to render the dismissal unfair. Issue 4b(iv) - sanction within the range of reasonable responses

[257]We have found at paragraphs 114-123 and 130-133 that there is no adequate explanation from Governor Monaghan or Governor Butler as to why a charge of unnecessary use of force was treated as a matter that amounted to a repudiatory breach of the implied term between employer and employee.

[258]In other words, although we accept that this was a matter of (mis)conduct, we are not satisfied that the respondent acted fairly in treating it as a matter sufficient to give rise to dismissal for an irretrievable breakdown in trust. We have found that there is a lack of adequate and contemporaneous explanation as to why the claimant’s conduct equated to an irretrievable breakdown in trust, which is the only ground on which, under the respondent’s policy, an unnecessary use of force matter could amount to gross misconduct.

[259]In any event, and turning to the explanations offered latterly as to why this matter amounted to gross misconduct, both Governor Butler and Governor Megicks concluded that:a. The claimant had lied when telling Officer Portas that Prisoner A had said he was going to “do himself up”; and,

b. That the claimant showed no contrition and failed to acknowledge he had unnecessarily used force.

[260]On those matters, we conclude that there were no reasonable grounds for those two decisions:a. We have found it unlikely that, in the space of seconds, the claimant would have fabricated the line “he said he was going to do himself up”. It would have required some mental agility to think through the steps having, just seconds before, taken Prisoner A down in what Governor Monaghan explained to us was a spontaneous rugby tackle;

b. The claimant told Governor Butler in his disciplinary hearing that “According to my thought processes, it at the time, met the four principles [for Use of Force]. I accept that I made the wrong decision. Based on my genuinely held belief. I shouldn’t have used force when [Prisoner A] was at height...” - [455];

c. The claimant told Governor Monaghan: “...I breached the policy at height by putting my arms...” and “So I agreed that I breached the policy at height... - [549]”. As such, we find that it was inconsistent with the evidence before him for Governor Monaghan to find that the claimant denied he had inappropriately used force. We note that the claimant told us “I accept I used inappropriate force, but I did so because of Article 2 and concern about harm”: that has been his case throughout the internal process and this litigation.

[261]As such, we reject the respondent’s case that the facts of this disciplinary matter caused an irretrievable breakdown in the employment relationship. We therefore are not satisfied that the sanction of dismissal was within the band of reasonable responses.

[262]At this stage we also consider the claimant’s argument that there was inconsistent treatment of his disciplinary when compared to the three comparators set out at paragraphs 18-38. We conclude that their cases were not sufficiently similar to be comparators for an argument of “inconsistent treatment”. However, we do take their treatment into account as part of the evidence as to how the respondent deals with matters of unnecessary use of force. The respondent was willing to keep in its employ three individuals all guilty of misconduct within the same category as the claimant. Given that we have discounted the respondent’s argument as to the claimant’s lying and lack of contrition, we find that the sanctions short of dismissal for his three “comparators” support our conclusion that the sanction of dismissal was outside the band of reasonable responses.

[263]As such, we conclude that the dismissal was unfair on the basis that the sanction of dismissal was not within the band of reasonable responses. Direct race/religion discrimination and harassment

[264]We will take the five allegations of discrimination and harassment out of order. We take the two allegations first over which there was little factual dispute; those being issues 6a(iii)/7a(iii) and 6a(v)/7(a)(v). Issue 6a(iii)/7a(iii) - sending the claimant inappropriate text messages linking the claimant to the IRA – Megicks Spring 2021

[265]We have made findings that Governor Megicks sent the claimant the inappropriate text in Spring 2021. We agree with Governor Phelps that that message was inappropriate, and have rejected Governor Megicks’ alleged well intentioned motivation for sending the text.

[266]Furthermore, we found that the reason for him sending the video was because the claimant had personal family ties to the individual who is the subject of the video.

[267]In terms of the harassment allegation, we are satisfied that the sending of the message was unwanted conduct. Given the subject matter of the video, namely the claimant’s uncle who was in the IRA, we are satisfied that the sending of the message is related to race and religion, that being Northern Irish Catholicism.

[268]In terms of whether the sending of the message has the required effect under section 26 of the Equality Act 2010, it is evident that the claimant was distressed by this message given that he raised it several times internally. Further, we note the remarks he made in his grievance appeal at [576] in which he says: “Just because I talk to a senior manager, does not mean I invite that person to send me racist and inflammatory texts linking me to the IRA. If Governor Paice believes that this is the case, and by extension, yourself, then I will be raising this in the highest echelons of equality and diversity circles in both HMPPS, and government as well. It’s an unacceptable and outdated mindset to hold while governing a centre of custody and apparent procedural justice”.

[269]We consider that his perception that the necessary environment was created by the sending of this message was a reasonable perception. To be sent a video of one’s uncle being shot would inevitably and objectively create a hostile and offensive environment. This is in part admitted by the respondent in that it was found that the message was inappropriate. Furthermore, Governor Paice found that the message was “emotive and sensitive” - [515]. Although we accept that inappropriate, emotive and sensitive are not the same as the higher threshold required for the necessary environment under s26, we are satisfied that, in the context of Governor Megicks’ previous conduct towards the claimant (see paragraphs 142-146 above), and the content of the video, such an environment was reasonably perceived as having been created.

[270]As such we uphold the allegation of harassment on the grounds of race and religion in relation to this allegation. We need not therefore consider the allegation as an act of direct discrimination. Issue 6a(v)/7a(v) - subjecting the claimant to childish name calling – Megicks in December 2020

[271]We have set out our findings on the facts of this matter above at paragraphs 184-190. We have found that the reason for Governor Megicks’ conduct was the claimant’s accent.

[272]Taking the harassment claim first, Governor Megicks’ conduct was clearly unwanted. This is a conversation that took place in a formal promotion board interview scenario at which any discussion other than the professional was highly inappropriate. Evidently the claimant took offence to it, as this incident is also raised through the internal grievance process.

[273]The reason for Governor Megicks’ conduct was the claimant’s accent, which is inherently linked to his being Northern Irish. As such we are satisfied that the requisite causal link under s26 is made out in this case.

[274]Turning then to the issue as to whether the requisite environment was created by Governor Megicks’ request. The respondent's position is that this conduct cannot reach the high threshold set out in section 26 EqA of creating an intimidating, hostile, degrading, humiliating, or offensive environment for the claimant. We disagree and reject that argument. Evidently, the claimant was sufficiently distressed about this behaviour to raise the matter to Governor Butler and then raise a formal grievance. We particularly note the wording of his initial grievance raised to Governor Butler at [359]: “I was humiliated for my culture, language, and race, when asked by Governor Megicks to say motorcycle helmet in an Irish accent during the interview”.

[275]We are satisfied that the claimant’s perception of this conduct was reasonable. Clearly the behaviour was such that it prompted chastising by Ms Pitt, and was deemed inappropriate conduct by Governor Phelps. We would go further to conclude that this conduct by Governor Megicks does reach the threshold required in section 26. The environment within which this incident occurred, in a formal job interview, in front of another senior colleague, would reasonably create a degrading and humiliating environment: the conduct trivialised an important and formal process at the expense of the claimant.

[276]We therefore uphold the allegation of harassment in relation to race. We conclude that there is no connection here between the claimant’s accent and his religion. On that basis, we reject the claim of harassment in relation to religion.

[277]Given we have rejected the religious harassment allegation, we go on to consider the direct religious discrimination claim. Given that we have found that the reason for the treatment was the claimant’s accent, and that this was not connected to his religion, it follows that the higher threshold, of the treatment being “because of” his religion is not met. As such, we reject the direct discrimination claim relating to religious belief. Issue 6a(ii)/7a(ii) - refusing the claimant promotion – Megicks in May 2020

[278]We have set out our findings relevant to this allegation at paragraphs 154 to 160 above. In short summary, we are not satisfied that the reason given for not promoting the claimant is a satisfactory one. We are not satisfied that there was a live formal investigation against the claimant in May 2020.

[279]We turn to the reason why the respondent says that the particular promotion was filled instead of waiting for the outcome of any investigation against the claimant. We were told that there was an urgent need to fill the role. The respondent has not provided us with evidence as to:a. The nature of the role subject of the promotion board;

b. The date on which the role was appointed to;

c. The facts meaning that HMP Bedford needed to fill the role urgently.

[280]We consider then the burden of proof under s136. We remind ourselves that unreasonable conduct, without more, is not sufficient to find that the initial burden of proof has shifted. However, we also take into account the findings we have made as to the background between Governor Megicks and the claimant at paragraphs 142 to 147 above, and the fact that we have upheld allegations of harassment against Governor Megicks above. We consider that, taking all those matters into account, there are facts from which we could draw an inference that the failure to promote the claimant in May 2020 was discriminatory. Therefore, we turn to the respondent for an explanation.

[281]The Tribunal is not satisfied with the explanation given as to why the claimant was not appointed, given he was top scorer, and (secondarily) why the role needed to be appointed to urgently.

[282]We consider that there is a dearth of evidence from the respondent about this allegation to support its argument that the claimant was legitimately not promoted due to a live investigation. Ultimately, we have not heard from the decision-maker on the promotion board, Governor Megicks. He is named as one of the decision-makers by the claimant in his witness statement on page 5, and this evidence has not been challenged. Further, because this allegation was not fully or properly explored during the grievance process, we do not even have his account through that process.

[283]We are not satisfied that the respondent has proven a non-discriminatory reason for the failure to promote the claimant in May 2020. As such, the burden of proof, which has shifted to the respondent, has not been satisfied.

[284]We consider the allegation of harassment first. Evidently the failure to promote the claimant was unwanted conduct; he brought a grievance about this matter. In terms of whether the lack of promotion was related to the claimant’s race and/or religion, we refer back to our conclusions immediately above on the burden of proof. We are further satisfied that to be prevented from being promoted, and therefore being held back in one’s career, particularly when scoring the highest, would reasonably create a hostile and degrading environment.

[285]As such, we uphold the harassment claim relating to both race and religious belief. Issue 6a(iv)/7a(iv) - informing the claimant’s union representative during the investigation that it is better for him to resign – Megicks between 13 and 26 October

[286]Our findings are set out above at paragraphs 170 to 183. We have found that Governor Megicks did suggest to Mr Duncan that the claimant consider resignation, as the disciplinary process was not going well for him.

[287]We turn to the reason why Governor Megicks made this comment, and consider the burden of proof. We consider that there are facts from which we could draw an inference that this conduct was discriminatory under s136 EqA, those facts being as follows:a. The background between the two individuals as set out at paragraphs 142 to 147 above;

b. By this stage, Governor Megicks had sent the claimant the IRA video text message in spring 2021;

c. Governor Megicks had also made the inappropriate request for the claimant to say “motorcycle helmet” in his Northern Irish accent.

d. We have upheld several acts of harassment against Governor Megicks on the basis of the claimant’s race and/or religion.

[288]We consider that the burden of proof is shifted to the respondent to demonstrate that Governor Megicks’ conduct was in no way tainted by discrimination. On that point, we have rejected Governor Megicks’ sole explanation for his behaviour on this day which was to discuss possible outcomes. As such, we are not satisfied that the reason for this conversation was in no way tainted by discrimination.

[289]In terms of the harassment claim, we accept these conversations with Mr Duncan were unwanted conduct; it was raised by the claimant as part of his internal grievance. Given the lack of reason from the respondent and the shifted burden of proof, as well as the facts we have highlighted above at paragraph 287, we are satisfied that Governor Megicks’ behaviour was related to the claimant’s race and/or religion.

[290]As to whether this conversation created the requisite environment as described under section 26, again we turn to the fact that the claimant raised this matter internally as part of his grievance process. We also bear in mind that this conversation took place at the time at which the claimant’s employment was hanging in the balance, and Governor Megicks was the investigating officer who had been appointed inappropriately. We also bear in mind that we have found that, by October 2021, Governor Magicks had already harassed the claimant.

[291]With that factual matrix in mind, it was reasonable for the claimant’s perception to be that Governor Megicks’ discussion with Mr Duncan created the requisite environment as set out in section 26 EqA. It is a high threshold, but we consider that it is met in the circumstances given the facts set out immediately above.

[292]Given that we uphold the allegation of harassment, we need not consider the allegation as one of direct discrimination. Issue 6a(i)/7a(i) - dismissing the claimant

[293]We have found that the reason for dismissal was conduct. We are therefore satisfied that the reason for the dismissal was not related to the claimant’s race or religion for the purposes of the harassment claim. Furthermore, it follows that the reason for the claimant’s dismissal was not his race/religion. As such, we reject both the harassment and direct discrimination claims.

[294]To explore this somewhat further, we conclude that there is no good evidence to suggest that either Governor Butler or Governor Monaghan were influenced in their decision-making by the claimant’s race or religion. There is no evidence from which we could safely draw an inference that either gentleman acted in a discriminatory manner in their decision to dismiss him.

[295]Given that we have rejected the harassment claim on the basis of the lack of relevant causal link, we turn to consider in slightly more detail the allegation under the head of direct discrimination. Specifically, we turn to consider the claimant’s three alleged comparators, the facts of which are set out above at paragraphs 19 to 38. We find that those three individuals are not in fact appropriate comparators as defined under s23 EqA. There were material differences between each of the three individuals’ cases and that of the claimant. Factually, each disciplinary allegation was different: no other individual had been disciplined for taking a prisoner down who jumped onto the back of the sofa, within the same factual matrix as the claimant, including any mitigation. The closest case is that of PF, however, even in that case there are differences in fact in terms of the detail of the disciplinary allegation itself, and also the individual facts of the two gentlemen, PF and the claimant. As such, we conclude that none of the three comparators are true, appropriate comparators.

[296]We therefore revert to considering a hypothetical comparator. We have already found that any impartiality demonstrated by Governor Megicks did not influence the decision to dismiss the claimant. As such, we conclude that Governor Megicks’ bias in his report, and his prior harassing behaviour towards the claimant, did not taint the decision of Governor Butler and Governor Monaghan.

[297]As such we are satisfied that the dismissal was in no way influenced or tainted by the claimant’s race or religion.

[298]We dismiss this claim both in terms of the direct discrimination claim and the harassment claim. Time points - jurisdiction

[299]We have upheld the following claims of discrimination and harassment:a. May 2020 – promotion board;

b. December 2020 - “motorcycle helmet”;

c. Spring 2021 – text message;

d. October 2021 – resignation discussion.

[300]Given the timing of the ACAS early conciliation and the ET1 claim form, any incident that occurred prior to 11 October 2021 is out of time. This means that the resignation discussion claim is in time.

[301]There are then two questions for us to consider:a. Issue 3b(ii) - was this conduct extending over a period (that period ending with the resignation discussion); and, if not,

b. Issue 3b(iv) - were the claims made within a further period that the Tribunal thinks is just and equitable?

[302]We are satisfied that the four acts set out at paragraph 299 above are acts which equate to conduct extending over a period. The acts were all committed by the same person, with a level of regularity to them (four acts in a year and a half). We conclude that there was a continuing state in which the claimant, as a Northern Irish Catholic individual, was discriminated against.

[303]If we are wrong on this, we conclude that the claims regarding matters between May 2020 and Spring 2021 were brought to the Tribunal within a period we consider to be just and equitable. Considering the balance of prejudice to both sides:a. These claims have succeeded on their merits. To deprive the claimant of those claims on the issue of time would be unjust and would prevent him from receiving any injury to feelings for the discrimination we have found he suffered;

b. Conversely, the respondent has to face paying a Tribunal award that, if the time extension were not applied, it would not have to pay.

c. We consider the balance of prejudice to favour the claimant. To refuse an extension would be to enable the respondent to escape payment of an award that they should rightly pay in light of our findings on the merits.

[304]We therefore conclude that the claims set out at paragraph 299 were brought within such further period as we consider to be just and equitable. Approved by