Mr D Windsor v North Star Community Trust Ltd and others: 3302620/2022 and others

EMPLOYMENT TRIBUNALS

Case No 3302620/2022

Between

Mr D WindsorClaimant

North Star Community Trust Ltd and othersRespondent

Before

Employment Judge Alliott

Members

Mrs P Barratt

Mrs J Hancock

In person for claimant

Ms S Firth (instructed by counsel) for respondent

Date 26 January 2026

JUDGMENT

[1]The claimant’s claim of discrimination arising from disability for failing to respond to a request to share departmental equipment (issue 50.2) succeeds against the first respondent.

[2]The claimant’s claim of failure to make reasonable adjustments by not sharing departmental equipment (issue 52.1.a) succeeds against the first respondent.

[3]The claimant’s claims of harassment due to being written to on 22 October 2021 and told there was no evidence on your file regarding a disability (issue 54.3) succeeds against the first respondent.

[4]Issues 50.2, 52.1.a and 54.3 were brought out of time and it is just and equitable to extend time.

[5]All of the claimant’s remaining claims of discrimination arising from disability, failure to make reasonable adjustments, harassment and unfair dismissal against all the respondents are dismissed.

[6]The claimant’s claim for personal injury compensation is dismissed upon withdrawal.

REASONS

[1]The claimant was employed by the respondent as a Teacher from 1 September 2019 until he was dismissed with effect on 30 April 2023.

[2]The claimant has presented five claims which have been consolidated:2.1 3302620/2022: 1 March 2022

2.2 3305165/2022: 29 April 2022

2.3 3309829/2022: 20 July 2022

2.4 3312746/2022: 20 October 2022

2.5 3302082/2023: 23 February 2023

[3]The claimant brings claims of disability discrimination (s.15 Equality Act 2010), failure to make reasonable adjustments (s.20 and 21 Equality Act 2010), harassment related to disability (s.26 Equality Act 2010) and unfair dismissal. The respondent defends the claims.

The issues

[4]The issues were set out following two preliminary hearings.

[5]On 19 January 2023 Employment Judge McNeill KC set out the issues in the first four claims as follows:- “The Complaints 43. The following issues arise for determination. Jurisdiction 44. Did any of the acts of disability discrimination relied upon by the Claimant occur more than three months before the date on which the Claimant submitted his claim to the Employment Tribunal (extended, as necessary, by ACAS Conciliation)? 45. If so, do any such acts form part of “conduct extending over a period” for the purposes of s123(3) Equality Act 2010 (EqA), and was the claim brought within three months of the end of that period (extended, as necessary, by ACAS Conciliation)? 46. If not, should time be extended to “such other period as the Employment Tribunal thinks just and equitable” under s123(1)(b) Equality Act 2010? Disability discrimination 47. Was the Claimant disabled at the material times under the definition contained in section 6 of the Equality Act 2010 i.e. did the Claimant suffer from a physical or mental impairment (anxiety and depression) which had a substantial and long term adverse effect on his ability to carry out day to day activities? As noted above, the Respondent accepts that the Claimant was disabled from or around 17 March 2020, in relation to his physical impairment (osteoarthritis & other damage to the weight bearing part of the left knee) and has made a limited admission in relation to mental impairment. The Respondent is further considering its position in relation to mental impairment. [On 2 February 2023 the Respondent set out its position in relation to mental impairment. The Respondent accepts that the Claimant was disabled by reason of a mental impairment from 17 December 2021]. 48. If so, did the Respondent know or could they have been reasonably expected to know that the Claimant was a disabled person at the relevant times? Discrimination arising from disability (s15 EqA) 49. Did the Respondent treat the Claimant unfavourably because of something arising in consequence of the Claimant’s (alleged) disability contrary to section 15(1) EqA. 50. The Claimant relies on the following alleged unfavourable treatment:50.1 On 19 July 2021, following a meeting involving the Claimant, Arthur Barzey, Stephanie Simpson and Elaine Lattibaudiere, the Claimant was informed that an amicable solution had been reached about his relationship with Ms Lattibaudiere, when it had not.

50.2 Failing to respond to a request to Ms Lattibaudiere to share departmental equipment (a Chromebook trolley) on 20 July 2021. The Claimant wanted to use Ms Lattibaudiere’s departmental laptop trolley rather than having to walk to and fro to find a trolley he could use, which was difficult because of his mobility issues.

50.3 Ms Simpson failed to take any action when the Claimant, on 22 July 2021, complained of an injury that he had suffered on 21 July 2021 when pushing a laptop trolley.

50.4 On 31January 2022, the Claimant was not supported when he requested for ACAS to mediate between the parties.

50.5 The Claimant did not receive responses to his queries regarding using information contained within previous grievances in the sickness absence management process until 21 February 2022 (a delayed response).

50.6 On 25 February 2022, the Claimant’s request for an investigation report into an allegation that he had made a racist comment, which did not progress to any disciplinary hearing, was denied.

50.7 Failure to hold an informal grievance meeting requested on 7 July 2021.

50.8 The failure to hear the Claimant’s grievances against Marino Charalambous and Wendy Bowstead sent on 22 July 2022.

50.9 On 24 January 2022 the Claimant was issued a first written warning due to his absence as a result of his depression.

50.10 Being invited to a disciplinary meeting because of raising his voice on 8 and 30 March 2022.

50.11 On May 18 2022 at a formal absence review meeting, refusing to engage with the Claimant’s attempts to refer to his mental state, when the Claimant was agitated in meetings.

50.12 Requiring the Claimant to attend a disciplinary meeting on 20 June 2022.

50.13 Dismissing the Claimant on 22 July 2022. 51 In relation to each of the allegations set out above:

a. Is the allegation upheld?

b. If so, does it amount to unfavourable treatment?

c. If so, was the unfavourable treatment because of something arising in consequence of the Claimant’s disability?

d. If so, can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? Failure to make reasonable adjustments (ss 20 and 21 EqA) 52 Did the Respondent impose a PCP upon the Claimant that put him at a substantial disadvantage in comparison with persons who are not disabled?

52.1 The Claimant relied upon the following alleged PCP(s): a. The non-sharing of departmental equipment specifically the Chromebook trolley; b. The requirement to attend a disciplinary hearing on 14 June 2022; c. The requirement for Elaine [Marie] Lattibeaudiere to be the Claimant’s co-tutor; d. To not be given full details of disciplinary allegations at the investigation (this issue was not explained at the preliminary hearing and will need to be further clarified);

e. Appeal hearings to be held on Trust property;

f. Requiring answers to a list of questions from Mr Charalambous in July 2022.

52.2 In relation to each of the allegations above:

g. Is the allegation upheld?

h. If so, did the Respondent know, or could they reasonably be expected to know, that the PCP was likely to place the Claimant at a substantial disadvantage compared to a person who is not disabled?

i. If so, did the Respondent take such steps as it is reasonable to have to take to avoid the disadvantage?

j. If so, was it reasonable for the Respondent to have made such adjustments? Harassment – s.26 Equality Act 53 Did the Respondent engage in unwanted conduct towards the Claimant? 54 The Claimant relies on the following alleged conduct:

54.1 On 8 October 2021, the Claimant was informed that he was to face disciplinary action in relation to alleged racist remarks.

54.2 Being invited to attend a disciplinary hearing on 8 October 2021 in relation to an allegation of racist remarks.

54.3 The Respondent wrote on 22 October 2021 “There was no evidence on your file regarding a disability and your absence record of depressions does not suggest that there is any underlying disability”.

54.4 On 17 December 2021, the Claimant was found not to have made racist statements and was not given a copy of the investigation report.

54.5 On 17 January 2021, the Claimant was told that him being able to prove that Oveta Mclnnis was not telling the truth was not relevant to the grievance against Arthur Barzey.

54.6 Refusing to acknowledge that the Claimant was raising any valid points during discussions including in relation to his mental health or to produce any evidence that might help him eg re reasonable adjustments.

54.7 In relation to each of the allegations set out above:54.7.1 Is the allegation upheld?

54.7.2 If so, was this conduct related to the Claimant’s (alleged) disability?

54.7.3 If so, did the conduct have the purpose or effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, taking into account the Claimant’s perspective, the other circumstances of the case and whether it was reasonable for the conduct to have that effect? … Remedy Not set out here as this hearing has been liability only.”

Remedy

[6]The issues in claim 5 were set out by Employment Judge Spencer following a preliminary hearing heard on 22 May 2023. They are as follows:- “1 Time limits Not repeated here.

[7]Unfair dismissal2.1 There is no dispute that the claimant was dismissed.

2.2 What was the reason or principal reason for dismissal? The respondent says the reason was capability (long term absence). The claimant agrees.

2.3 If the reason was capability, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:2.3.1 The respondent genuinely believed the claimant was no longer capable of performing their duties;

2.3.2 The respondent adequately consulted the claimant;

2.3.3 The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position;

2.3.4 Whether the respondent could reasonably be expected to wait longer before dismissing the claimant;

2.3.5 Dismissal was within the range of reasonable responses. 3 Remedy for unfair dismissal Not set out here as this has been a liability alone hearing. 4 Discrimination arising from disability (Equality Act 2010 section 15)

4.1 Did the respondent treat the claimant unfavourably by:4.1.1 Issuing him with a disciplinary warning on 22nd July 2022; and

4.1.2 Dismissing him.

4.2 Did the following things arise in consequence of the claimant’s disability:4.2.1 The conduct which resulted in the claimant being issued with the disciplinary warning on 22 July 2022; and

4.2.2 The claimant’s long term absence from work/inability to return to work.

4.3 Was the unfavourable treatment because of any of those things?

4.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were:4.4.1 The requirement for the claimant to attend work and fulfil contractual duties; and

4.4.2 To maintain acceptable levels of behaviour amongst staff

4.5 The Tribunal will decide in particular:4.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

4.5.2 could something less discriminatory have been done instead;

4.5.3 how should the needs of the claimant and the respondent be balanced?

4.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? 5 Remedy for discrimination Not set out here due to this being a liability hearing.” The law Unfair dismissal 7. Section 98 Employment Rights Act 1996 provides as follows:- “98 General.

(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 … of the employee for performing work of the kind which he was employed by the employer to do. … (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.”

The law

[8]As per the IDS Employment Law Handbook unfair dismissal: At 5.15 “Long term ill-health absence 5.15 There are two key aspects to a fair dismissal for long-term illness or injury involving long-term absence from work. First, where an employee has been absent from work for some time, it is essential to consider whether the employer can be expected to wait any longer for the employee to return – Spencer v Paragon Wallpapers Ltd

[1977] ICR 301

, EAT. According to the Court of Session in SV Dundee City Council

2014 IRLR 131

, CT SESS (Inner House), the tribunal must expressly address this question, balancing the relevant factors in all the circumstances of the individual case. Such factors include:  Whether other staff are available to carry out the absent employees work;  The nature of the employee’s illness;  The likely length of his or her absence;  The cost of continuing to employee the employee;  The size of the employing organisation; and  (balanced against those considerations), the unsatisfactory situation of having an employee on very lengthy sick leave. These factors are essentially the same as those affecting the reasonableness of ill-health dismissals in general… 5.16 Secondly, a fair procedure is essential. This requires, in particular:  Consultation with the employee;  A thorough medical investigation (to establish the nature of the illness or injury and its prognosis), and  Consideration of other options; in particular, alternative employment within the employer’s business. … 5.17 Employers will also need to consider their additional obligations under the Equality Act 2010 (EQA) since, where long-term ill-health is concerned, it is highly likely that the underlying illness will amount to a disability under the EQA. In its guide, Acas recommends that employers “take a more sympathetic and considerate approach, particularly if the employee is disabled and where reasonable adjustments at the workplace might enable them to return to work” (see Appendix 4).” Disability Discrimination (s.15 Equality Act 2010)

[9]Section 15 of the Equality Act 2010 provides as follows:- “15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[10]As per the IDS Employment Law Handbook Disability: “Something arising in consequence of… disability 4.17 For a claim under section 15(1) of the Equality Act 2010 (EQA) to succeed, the unfavourable treatment must be shown by the claimant to be “because of something arising in consequence of [his or her] disability”. In other words, the discriminatory treatment must be as a result of something arising in consequence of the claimant’s disability, not the claimant’s disability itself.”

[11]And at 4.18 Types of “Consequences arising”: “In T-Systems Ltd v Lewis EAT 0042/15 the EAT thought that the phrase “something arising in consequence of” the disability should be given its ordinary and natural meaning.”

[12]And at 4.19: “The Code gives the further example of a woman who “Is disciplined for losing her temper with a colleague. However, this behaviour was out of character and is a result of severe pain caused by her cancer, of which her employer is aware. This disciplinary action is unfavourable treatment. The treatment is because of something which arises in consequence of the worker’s disability.” – Para 5.9 In practice, the most common consequence cited in section 15 claims as being something that arises as a consequence of disability is sickness absence. However, numerous other consequences have been cited before employment tribunals. The following are just a few examples:  Misconduct triggered by disability or related medication;  Need for sensitivity and support. …”

[13]And at 4.22 Causal link between the “something” and disability: “As Mrs Justice Simler made clear in Sheikholeslami v University of Edinburgh (above), the question of whether the “something” arose in consequence of the disability is a question of objective fact for an employment tribunal to decide in light of the evidence. While a broad approach applies when establishing whether there is a causal connection, there must still be a connection of some kind. Any tribunal upholding a claim of section 15 discrimination without clearly addressing the question of whether the “something” relied upon by the claimant arose in consequence of the disability will err in law – see British Telecommunications Plc v Robertson EAT 0229/20.

[14]And at 4.23 Employer’s knowledge of causal link: “In City of York Council v Grosset

[2018] ICR 1492

, CA, the question arose whether, where an employer dismisses a disabled employee for misconduct caused by his or her disability, the dismissal can amount to discrimination under section 15 EQA even if the employer did not know that the disability caused the misconduct. The Court of Appeal held that it can.” Failure to make reasonable adjustments

[15]Section 20 of the Equality Act 2010 provides as follows:- “20 Duty to make adjustments … (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.” Harassment

[16]Section 26 of the Equality Act 2010 provides as follows:- “26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.” Disability

[17]Section 6 of the Equality Act 2010 provides as follows:- “6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

[18]Schedule 1 to the Equality Act provides:- “(1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or …”

[19]As per the guidance on the definition of disability (2011) “Meaning of “likely” …‘likely,’ should be interpreted as meaning that it could well happen.”

[20]And as per the EHRC Code of Practice on Employment (2011): “WHAT IF THE EMPLOYER DOES NOT KNOW THE WORKER IS DISABLED? 6.19 For disabled workers already in employment, an employer only has a duty to make an adjustment if they know, or could reasonably be expected to know, that a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. The employer must, however, do all they can reasonably be expected to do to find out whether this is the case. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”

The evidence

[21]We had a hearing bundle of 1,137 pages to which were added documents during the course of the hearing bringing it up to 1,150 pages.

[22]We had witness statements and heard evidence from the following:(i) The claimant

(ii) Ms Eneyo Ilenbarenemen, HR Manager

(iii) Mr Arthur Barzey, Head Teacher

(iv) Ms Stephanie Simpson, Deputy Head Teacher

(v) Ms Oveta McInnis, Chair of Governors

(vi) Ms Sue Ellingham, Finance Director

(vii) Ms Jenny Tosh, Vice Chair of Trustees

(viii) Ms Wendy Bowstead, Head of Operations and Community Engagement

(ix) Mr Marino Charalambous, CEO

(x) Mr Joseph Howlett, HR and Operational Excellence Adviser.

[23]In addition, we had a witness statement from Ms Elaine Marie Lattibeaudiere, Head of Department and Teacher of Computer Science & Business Studies.

[24]On the first day of this hearing Ms Firth informed us that Ms Lattibeaudiere was not going to attend to give oral evidence. Despite this probably having been known by the First Respondent for some time, this was the first time that the claimant had been informed.

[25]On the second day of the hearing the respondent made an application for a witness order. This was granted on Wednesday 19 March 2025. The tribunal sent the witness summons on 20 March 2025 by special delivery. The Royal Mail Track and Trace Service indicates that delivery was attempted at 9.46 on 21 Mach 2025, 9.31 on 22 March 2025 and on 23 March 2025. No answer was recorded against all delivery attempts.

[26]We were informed that the respondent had emailed the claimant a copy of the witness summons and had attempted to make contact with Ms Lattibeaudiere. No contact was established.

[27]Unfortunately, it is clear that Ms Lattibeaudiere has not been served with the witness summons from the tribunal.

[28]The claimant invited us to exclude the witness statement of Ms Lattibeaudiere. We decided to admit the statement in evidence but subject to submissions and a decision on what, if any, weight we place on it or any part of it.

[29]The respondent provided us with a chronology and a document setting out the respondent’s legitimate aims.

[30]Ms Firth provided us with written closing submissions for which we are grateful. Disability

[31]The claimant has prepared a disability impact statement. This is dated 31 May 2022. The claimant relies on two disabilities, namely:(i) A physical impairment of osteoarthritis and other damage to the weight bearing part of the left knee.

(ii) A mental impairment of anxiety and depression.

[32]As far as the physical impairment is concerned, on 2 February 2023 the respondent admitted that the claimant had been disabled within the meaning of the Equality Act since 17 March 2020 and knowledge of the same was conceded.

[33]As far as the mental impairment is concerned, the respondent has accepted that the claimant was disabled from 17 December 2021 and that from that date it had the requisite knowledge.

[34]As some of the alleged disability discrimination took place prior to 17 December 2021, so we have gone on to consider whether the claimant was disabled within the meaning of the Equality Act 2010 prior to that date and, if so, whether the respondent knew or ought to have known that he was so disabled.

[35]Accordingly, we have reviewed the medical evidence that we have.

[36]In his impact statement the claimant states that he believes he began to feel depressed in late May 2021.

[37]Whilst we do not have the claimant’s GP notes, we do have a psychiatric report dated 11 January 2023. In that report the claimant’s GP records are reviewed. The following entries appear to be the relevant ones up to 17 December 2021.(i) On 14 July 2020, the claimant reported lethargy and not sleeping well to his GP. Routine blood tests were ordered.

(ii) On 15 July 2020 there was an incident during which the claimant burst into tears in front of Arthur Barzey, the Headmaster. The claimant was sent home.

(iii) Later on 15 July 2021, the claimant sent an email to Humaira Assam of HR which copied in Arthur Barzey. The subject was “Issue with my line manager.” This states:- “This is what left me feeling very vulnerable – my worry is that Marie is setting me up for a disciplinary hearing. This is why I broke down today. I didn’t know what else to do.” The claimant’s mental health is not referenced in that email.

(iv) Following a meeting on 19 July 2021 (which will be referred to below) the claimant escalated his complaints to a grievance against Marie Lattibeaudiere on 20 July 2021.

(v) Also on 20 July 2021 the claimant sent an email to HR with the subject “Adjustments due to my disability”. The issues highlighted by the claimant relate to diabetes, an artificial left knee (should be right knee) and osteoarthritis. It is notable that no mental impairment is referenced.

(vi) On 26 July 2021, following a GP review, the claimant was prescribed sertraline. The claimant reported outbursts of anger, feeling fearful and eating less. He was advised to contact IAPT (Improving Access to Psychological Therapy).

(vii) The claimant told us that he was diagnosed with depression on or around 24 August 2021. However, there is no reference to a GP consultation in August in the psychiatric report. That said, an email dated 28 June 2022 from the respondent’s legal advisers states:- “Before then the claimant had visited his doctor in the August of 2021 for “work related stress”.

(viii) Whether or not the claimant was diagnosed with depression in July or August 2021, we have an email dated 24 August 2021 from the claimant to HR which states:- “I have been diagnosed with depression and I am now on antidepressants. I have been for about six weeks now. As I am coming closer to returning, I find myself feeling more stressed.”

(ix) In August 2021, the claimant attended a two week summer camp at the school and returned for the beginning of the autumn term on or around 1 September 2021.

(x) On 9 September 2021, the claimant sent an email to HR stating:- “An addition to my self-declaration form 2021 I have also been diagnosed with clinical depression. My diagnosis was made as part of the work-related issues I am having. I am on medication and seeing a therapist. Given my depression diagnosis and my mobility issues, I am hoping that my “reasonable adjustment” request to go down to four days a week might be considered favourably.”

(xi) On Friday 10 September 2021 there was an incident in the Goat Public House to which we will refer in due course.

(xii) On 13 September 2021, the claimant went off sick.

(xiii) On 22 September 2021, the claimant was signed off unfit for work due to “depression”.

(xiv) Between 28 September and 26 October 2021 the claimant attended four sessions of guided self-help/low intensity CBT.

(xv) On 12 October 2021, the claimant was reviewed for his depression. He reported some improvement since sertraline was increased to 100mg OD. He reported that pouring hot water over his legs helped distract him mentally. (xvi) The claimant was reviewed for his depression on 3 December 2021. He reported panic attacks, especially when receiving emails from his workplace. Sertraline was increased to 150mg. (xvii) On 12 December 2021, the claimant attended the Urgent Care Centre for a burn to his left foot after pouring boiling water from the kettle on it. (xviii) The claimant was referred to Occupational Health and he was seen on 17 December 2021. The Occupational Health report confirms that the claimant was not fit for work and that he was likely to be considered disabled. There was no timetable for his projected return.

[38]A complicating factor in the assessment of the claimant’s disability is that the psychiatric report has diagnosed him with PTSD and generalised anxiety disorder which pre-date the claimant’s employment and probably relate back to his youth. Clearly, those mental impairments had lasted more than 12 months. However, there were two preliminary hearings subsequent to the date of the report, namely on 19 January and 22 May 2023 and the claimant did not endeavour to include them as relevant disabilities. Another complicating factor is that the claimant has stated that he probably has autism (which the claimant told us had been diagnosed in Dubai in 2015). The claimant expressly did not rely upon his alleged autism when asked about it.

[39]Even though the PTSD and general anxiety disorder had lasted longer than 12 months, we have had no evidence as to whether they had a substantial adverse effect on his ability to undertake day to day activities.

[40]The psychiatric report does state that the depression occurred during the course of the claimant’s employment. The report recites:- “Mr Windsor said his mental health declined significantly during this time, this is when he was under investigation for the racism allegation…”

[41]We find that the claimant had the mental impairment of depression and that that began on 26 July 2021 when he was apparently prescribed sertraline.

[42]The claimant’s impact statement does not give us much help as to the extent to which his ability to undertake day to day activities was impaired at that stage. We have evidence of the claimant self-harming on 12 December 2021. Doing the best we can, we find that the claimant’s ability to undertake normal day to day activities was significantly adversely affected from the date he went off work, namely 13 September 2021.

[43]We have gone on to consider at what stage it was likely that the claimant’s mental impairment would last more than 12 months or could well last more than 12 months. We have taken account of the Occupational Health report which gives quite a long-term prognosis. We find that the claimant’s mental impairment was likely to last more than 12 months as of 17 December 2021. Accordingly, we find that the claimant was disabled within the meaning of the Equality Act 2021 by reason of depression and anxiety from 17 December 2021 and that the respondent had knowledge of the mental impairment disability as from this date.

The facts

[44]The respondent is a Charitable Trust based in Edmonton, London, which manages four academy schools. One of the schools is Heron Hall Academy.

[45]The claimant was employed by the respondent as a Teacher of Business at Heron Hall from 1 September 2019.

[46]The respondent has a sickness absence policy. This provides: “5 Disabilities5.1 The Trust is aware that sickness absence may result from a disability. At each stage of the sickness absence procedure, particular consideration will be given to whether there are reasonable adjustments that could be made to the requirements of a job or other aspects of working arrangements that will provide support at work and/or assist a return to work.

5.2 If you consider that you are affected by a disability or any medical condition which affects your ability to undertake your work, you should inform your line manager or a member of the Senior Management Team. Any information that you disclose about a disability or other medical condition will be treated in the strictest confidence.”

[47]The Code also covers long-term absence. This provides for formal absence review meetings gradually progressing until a first written warning and a final written warning with dismissal with notice being an outcome.

[48]Section 22 provides as follows:- “22 Venue for meetings 22.1 Formal Absence Review Meetings and any Appeal Meetings can be held off site to minimise any distress to the employee.”

[49]The respondent also has a disciplinary policy. Within the formal process, investigation section, the following is recited:- “8.5 The Investigating Manager will produce an Investigation Report setting out evidence and detailed allegations and a recommendation. 8.6 You will be sent a copy of the Investigation Report.”

[50]The claimant was employed on 1 September 2019 in the Computer Science and Business Studies Department at Heron Hall Academy. The claimant taught business studies.

[51]Marie Lattibeaudiere joined as Head of Department and Teacher in September 2020. Obviously enough, that was a challenging time for teaching since the first covid lockdown had recently finished and the second lockdown took place in November 2020.

[52]It would appear that at the outset relations were cordial between the claimant and Marie Lattibeaudiere. Once the second lockdown took place teaching was conducted online and it would appear that the claimant took the lead in developing that. In a grievance dated 14 September 2021, the claimant puts it as follows:- “I was able to work because I felt I had the support of my Head of Department and Head Teacher.”

[53]It would appear that the relationship between the claimant and Marie Lattibeaudiere began to deteriorate once the schools returned from lockdown in about March 2021.

[54]We have approached Marie Lattibeaudiere’s witness statement with some caution as her evidence has not been tested by cross examination. In her witness statement she suggests that the relationship deteriorated after she, along with David Lee, failed the claimant on a lesson observation. The claimant accepted that he had been failed on a lesson observation but denied that this was the start of the deterioration of their relationship. In essence, the claimant said it occurred over a period of time.

[55]It would appear that a disagreement concerning the preparation of a scheme of work was the main catalyst for the deterioration in the relationship as far as the claimant is concerned. The claimant took us to various documents in the bundle which indicated that, initially on 26 February 2021, Marie Lattibeaudiere requested one unit (12 weeks) schemes of work for lessons be prepared. On 19 April 2021 that was increased to three units with a deadline of 31 May 2021. On 7 July 2021 it was again increased to six units with a deadline of 17 July 2021. In his oral evidence the claimant said, with reference to the final change to six units, “She then made it for the whole year – I asked for extra time – she refused and this started the whole process.”

[56]In her witness statement Marie Lattibeaudiere accepts that in the first few months of 2021 she had a conversation with the claimant about his knee and that he told her that one of his knees had been operated on previously and he was waiting for an operation on the other knee.

[57]When the pupils returned from the lockdown they were taught in “bubbles.” This meant that classes would remain in one classroom and the teaching staff would move to them accordingly. As a result, for the Computer and Business Studies Department, amongst others, a trolley was used to transport up to 30 laptop chromebooks from class to class. The laptop chromebooks were stored on a trolley which had caster wheels and could be pushed from class to class. Mr Zain Keyani, who taught computer studies, had one trolley. A second trolley was generally kept in Marie Lattibeaudiere’s office.

[58]For a while, the department had the use of a Maths Department trolley.

[59]Issue 52.1(a) is that: A PCP was “The non-sharing of departmental equipment specifically the chromebook trolley.”

[60]Officially, a trolley sharing scheme was put in place. Marie Lattibeaudiere says that on 26 November 2020 she put together a Google document to fill in regarding the location of the trolleys so that there would be a timetable for the trolleys to make it easier sharing between teachers.

[61]In due course Marie Lattibeaudiere arranged to borrow a trolley from the Maths Department for the claimant’s use.

[62]Nevertheless, there were times when the Maths Department trolley was not available and the claimant would need one at the same time as Zain Keyani.

[63]We find that due to the deterioration in the relationship between the claimant and Marie Lattibeaudiere, there was a reluctance on the part of Marie Lattibeaudiere to allow the claimant to use the trolley which she kept in her room. We find that this was more than a one-off decision and, as such, we find that that was a provision, criteria and practice.

[64]We find that Marie Lattibeaudiere’s reluctance to allow the claimant to use the trolley in her room was because she expected the claimant either to use Zain Keyani’s trolley or to go and source a trolley from elsewhere in the school. We find that that put the claimant at a substantial disadvantage compared with nondisabled colleagues in that it could cause his leg to become inflamed and painful. We find that the respondent would reasonably be expected to know the PCP was likely to put the claimant at a substantial disadvantage. We accept that the claimant would routinely walk one third of a mile in the morning to catch his bus and, as such, his mobility was not always restricted by the disability in his left knee. Further, we accept that the distances involved in looking for a trolley around the school were relatively minor. The corridor on which he worked was about 50 metres long and there was a lift that he could take to the next floor.

[65]Nevertheless, we have taken account of a document generated by the claimant on 23 July 2021 wherein he complains about having to walk around the school hunting chromebook trolleys and not being able to find any. He states:- “By this time, however, the damage was done and I could barely move. The pain in my legs was too severe.” In the same document, the claimant also states:- “Marie eventually agreed that I could take the trolley in her room.”

[66]We have also taken into account that in his grievance against Marie Lattibeaudiere on 15 July 2021, the claimant references having to borrow trolleys and states:- “Again, not a big issue – of and by itself – but it just added to my workload and stress when it needn’t have.”

[67]We find that the PCP was applied to the claimant.

[68]We find that, accordingly, the duty to make reasonable adjustments arose and that there was a failure on the part of the respondent to provide the reasonable adjustment of readily allowing the claimant to borrow the trolley in Marie Lattibeaudiere’s room as and when was necessary.

[69]We find it would have been reasonable for the respondent to make that adjustment.

[70]We find that the respondent at all material times knew the claimant was disabled by reason of the osteoarthritis in his left knee.

[71]Accordingly, the claim of failure to make reasonable adjustments in issue 52.1(a) and 52.2 is upheld.

[72]Issue 50.7 is that: There was a “failure to hold an informal grievance meeting requested on 7 July 2021”.

[73]There is an email dated 7 July 2021 from the claimant to Mr Abdul Moquith, a member of the Senior Leadership Team, which states:- “As per the Trust’s grievance procedure, I wish to have a meeting to see if there is a way to informally resolve an issue I am having with Marie.”

[74]In a grievance document dated 22 September 2021, the claimant sets out his understanding that Abdul Moquith spoke to Marie Lattibeaudiere and that, as a result, Abdul Moquith thought that he had “No leg to stand on” and, accordingly, the informal grievance meeting did not take place. As such, we find that there was a failure to hold an informal grievance meeting requested on 7 July 2021.

[75]We find that that was unfavourable treatment from the claimant’s perspective.

[76]We have gone on to consider whether that failure was because of something arising from the claimant’s physical impairment of osteoarthritis in his left knee. It is clear to us that the information given by Marie Lattibeaudiere to Abdul Moquith concerned the schedule of work issue. The claimant has not been clear about what something arising he is relying upon. We find that the decision not to hold an informal grievance meeting with the claimant was unrelated to the claimant’s physical impairment and was not because of something arising in consequence of it (whatever that may have been).

[77]Issue 52.1(c) alleges a PCP of: “The requirement for Elaine [Marie] Lattibeaudiere to be the claimant’s co-tutor.”

[78]Marie Lattibeaudiere was appointed co-tutor for the claimant in July 2021. Not every member of staff had a co-tutor, but most did. Absent the friction between the claimant and Marie Lattibeaudiere, we find that it was logical that she should be the claimant’s co-tutor as she was Head of the Department, and they were the only two teachers teaching business.

[79]Appointing co-tutors was clearly a PCP. However, the PCP alleged relates specifically to the appointment of Marie Lattibeaudiere as the claimant’s co-tutor. We find that that was a one-off decision, albeit with lasting consequences, but that it was not a provision, criteria or practice. Even if we found it was a provision, criteria and practice, we find that it did not put the claimant at a particular disadvantage due to his physical impairment of osteoarthritis in the left knee. By the time the claimant was disabled by reason of his mental impairment of depression and anxiety on 17 December 2021, the claimant was off on long-term sickness and, as such, we find that there was no substantial disadvantage arising.

[80]Issue 50.1 alleges: “On 19 July 2021, following a meeting involving the claimant, Arthur Barzey, Stephanie Simpson and Elaine [Marie] Lattibeaudiere, the claimant was informed that an amicable solution had been reached about his relationship with Ms Lattibeaudiere, when it had not.”

[81]There was a meeting on 19 July 2021 involving those individuals. It is clear to us and we find the purpose of the meeting as far as Arthur Barzey is concerned was to try and sort out the deterioration in the relationship between the claimant and Marie Lattibeaudiere. The reference to an amicable outcome appears to come from two interviews with Stephanie Simpson and Arthur Barzey on 7 October 2021 when both refer to the meeting ending amicably.

[82]The respondent has produced some typed notes of the meeting on 19 July 2021 prepared by Stephanie Simpson. The claimant did not accept those notes were accurate. The claimant did not receive them at the time. The notes conclude by recording that the claimant and Marie Lattibeaudiere agreed that the SOW work would be shared, that communication would be clearer going forward and: “The meeting ended in a positive way and all seemed to be happy with the outcome.”

[83]It is also recorded that the claimant became agitated during the course of that meeting. Following the meeting the claimant put in a grievance. In the circumstances we find that the claimant was told that an amicable solution had been reached but that, from his perspective, it had not.

[84]We have gone on to consider whether that was unfavourable treatment. We are prepared to accept that that was unfavourable treatment from the claimant’s perspective.

[85]We have gone on to consider whether that treatment was because of something arising in consequence of his physical impairment, namely osteoarthritis in the left knee. The claimant has not advanced what the something arising was. We find that the treatment was not because of anything arising in consequence of his physical impairment to his left knee. It was an attempt to manage the relationship between the claimant and Marie Lattibeaudiere. Accordingly, this issue is not upheld.

[86]Issue 50.2 is: “Failing to respond to a request to Ms Lattibeaudiere to share departmental equipment (a chromebook trolley) on 20 July 2021. The claimant wanted to use Ms Lattibeaudiere’s departmental laptop trolley rather than having to walk to and fro to find a trolley he could use, which was difficult because of his mobility issues.”

[87]During the course of the hearing it emerged that this must relate to the incident on 22 July 2021. As already found, on 22 July 2021 the claimant was initially refused permission to use the trolley in Marie Lattibeaudiere’s room which caused him to walk around quite a lot and experience pain in his knee. As already found, in due course on that day, Marie Lattibeaudiere did allow the claimant to use the trolley in her room.

[88]To that extent, we find the facts alleged in 50.2 are proved.

[89]We have gone on to consider whether that treatment was unfavourable treatment. In our judgment it was.

[90]We have gone on to consider whether the unfavourable treatment was because of something arising in consequence of the claimant’s disability. The something arising in consequence of the claimant’s disability would appear to be his restricted mobility.

[91]We have gone on to consider whether the unfavourable treatment was because of the claimant’s restricted mobility. We have seen evidence that repeatedly on that day, the claimant emphasised his mobility issues in the context of requesting to use Marie Lattibeaudiere’s trolley. We have not heard from Marie Lattibeaudiere. We place little reliance on her evidence on this issue from her witness statement as she has not been cross examined. In the circumstances, we find that the unfavourable treatment was because of the claimant’s mobility issues. Consequently, this issue is upheld.

[92]Issue 50.3 is: “Ms Simpson failed to take any action when the claimant, on 22 July 2021, complained of an injury that he had suffered on 21 July 2021 when pushing a laptop trolley.”

[93]It would appear that the dates in the list of issues are incorrect. We have an email dated 23 July 2021 from the claimant to Stephanie Simpson forwarding his record of events of 22 July 2021. The account references leg pain on attending at work and it getting worse as a result of him having to walk round the school looking for a trolley. In oral evidence the claimant suggested that the injury being referred to was a fall whilst pushing a trolley or as a result of a trip. Neither are referred to in this account. Stephanie Simpson told us she could not recall being informed about a specific injury.

[94]We find that the claimant has failed to prove that he complained of an injury that he had suffered either on 21 or 22 July 2021 to Ms Simpson. As such, we find that there was no failure on her part to take action. Accordingly, issue 50.3 is not proved.

[95]On Friday 10 September 2021 there was an incident between the claimant and Mr Marcus Burke in the Goat Public House.

[96]Issues54.1 and

54.2 arise out of that incident. They are as follows:- “54.1 On 8 October 2021, the claimant was informed that he was to face disciplinary action in relation to alleged racist remarks. 54.2 Being invited to attend a disciplinary hearing on 8 October 2021 in relation to an allegation of racist remarks.”

[97]The claimant returned to work at the start of the autumn term around the beginning of September 2021.

[98]On 10 September 2021, the claimant was in the Goat Public House and was having a conversation with Marcus Burke. Following the incident Marcus Burke returned to the school and spoke to four colleagues.

[99]On Monday 13 September 2021 Marcus Burke spoke to Stephanie Simpson about the conversation he had had with the claimant on that Friday night, and she told him to put his complaint in writing. This Marcus Burke did on 17 September 2021. In the statement the following appears:- “…at this point Darren asked me to step to side and said “no – but, I am not too sure if you might be offended but I don’t think you will.” Darren suggested that there was preferential treatment towards black staff at the school. He said “Chimson , Chaneesa and others get away with murder – and what do they all have in common?” The very clear implication was that Darren was referring to their racial identities. I was stunned and offended by Darren’s assertion. I found his suggestion to be inflammatory as it puts Mr Barzey professionalism in question and belittles the experience and expertise of all member of staff who are of colour within the NorthStar Trust organisation.”

[100]We understand that Arthur Barzey, Marie Lattibeaudiere and Marcus Burke are all black.

[101]The investigation report written by Stephanie Simpson with the HR support of Deanna Williams, states:- “Following the interview with Marcus Burke, Darren Windsor was written to by Deanna Williams on 8 October, informing him of the allegation and invited him to a meeting on Friday 15 October, Darren Windsor requested reasonable adjustments and wanted the meeting rearranged. This was done by HR. Eventually the meeting was carried out on Thursday 21 October.

[102]The letter dated 8 October 2021 is headed “Disciplinary Investigation” and invites the claimant to attend an investigation meeting. The letter states:- “The allegation of which I refer is that a racist comment was made by yourself to Marcus Burke on Friday 10 September 2021. The nature of the allegation against you are such that if proven they could represent a gross misconduct offence. Please be aware that the Trust reserves the right to change or add to this allegation as appropriate in the light of Steph’s investigations. Please be assured that at this stage Steph is seeking information only and this meeting has been arranged for fact-finding purposes. Please bring with you any information that might be useful to the investigation.”

[103]The letter included a copy of the Disciplinary Policy and the Code of Conduct.

[104]Accordingly, we find that on 8 October 2021, the claimant was invited to attend an investigatory meeting within the disciplinary process in relation to an allegation of racist remarks. To that extent, we find issue 54.2 is proved. We find that the claimant was not informed that he was to face disciplinary action in relation to alleged racist remarks on 8 October 2021, or indeed, at any time thereafter. Accordingly, issue 54.1 is not proved.

[105]On 17 December 2021, the claimant was sent an email which states as follows:- “Tino [Hernandez (Head of Marketing & Communications)] has now reviewed all of the notes, statements and other paperwork which was sent to him for his consideration, and has come to a conclusion that there is no evidence to show that you made the racist remarks that Marcus Burke alleged you made to him in the pub on 10 September 2021. Therefore the case will not be proceeding to any disciplinary action.”

[106]We find that the treatment in issue 54.2 was unwanted conduct from the claimant’s perspective.

[107]We find that that treatment was not related to the claimant’s physical or mental disability. We find that it was related to the fact that an allegation had been made against the claimant of racially offensive conduct.

[108]Issue 54.3 is: “The respondent wrote on 22 October 2021 “There was no evidence on your file regarding a disability and your absence record of depression does not suggest that there is any underlying disability”.

[109]In the grievance outcome letter dated 22 October 2021, sent to the claimant by Marino Charalambous, the following is set out:- “My understanding from HR regarding the reasonable adjustment request, was that in the first instance they were not aware that you had a disability, nor would they have been aware. There was no evidence on your file regarding a disability and your absence record of depression does not suggest that there is any underlying disability.”

[110]Accordingly issue 54.3 is proved

[111]The reasonable adjustments that the claimant was complaining about were going down to four days a week and teaching in a single classroom. This was related to pain in his left leg but also referenced a deterioration in his mental health. Of course, at this time, the claimant’s mental health has not been found by us to be a disability within the meaning of the Equality Act 2010.

[112]Nevertheless, as far as his physical impairment is concerned, the claimant had a disability and had specifically requested reasonable adjustments to address issues caused by his disability. The claimant had raised a grievance that Arthur Barzey and/or HR had not actioned that request. The part of the letter quoted in issue 54.3 omits the preamble, namely: “My understanding from HR regarding the reasonable adjustment request was that in the first instance they were not aware that you had a disability, nor would they have been aware.”

[113]However, the fact of the matter is that Mr Charalambous was stating to the claimant in reply to his grievance that the respondent did not have evidence that he was disabled.

[114]We find that that was unwanted conduct.

[115]We find that the unwanted conduct related to the claimant’s disability.

[116]We have gone on to consider whether the conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In deciding this issue we have to take into account the perception of the claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect,

[117]We find that the unwanted conduct did not have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

[118]We find that the unwanted conduct had the effect of violating the claimant’s dignity. We find that the claimant did perceive this. We find that it was reasonable for the conduct to have that effect. We find that the conduct was, in essence, saying to a disabled person who had raised his disability with his employer and asked for reasonable adjustments, that there was no record on his file that he had a disability in the context of rejecting his grievance about the matter. We find that that was sufficient to violate the claimant’s dignity.

[119]Accordingly, the claimant’s harassment claim under issue 54.3 is upheld.

[120]Issue 52.1(d) is an alleged PCP of: “To not be given full details of disciplinary allegations at the investigation (this issue was not explained at the preliminary hearing and will need to be further clarified).”

[121]This relates to the claimant being invited to an investigatory meeting that was held on 21 October 2021.

[122]It is the respondent’s position that full details of disciplinary allegations are not provided to employees prior to an investigation meeting. As such, we find that this was a PCP.

[123]We have gone on to consider whether that PCP put the claimant at a particular disadvantage by reason of his physical impairment, namely osteoarthritis to the left knee. We find that it did not put the claimant at a particular disadvantage compared with non-disabled employees. All employees would have been treated in this way. Consequently, issue 52.1(d) and 52.2(h) is not proved.

[124]Issue 54.4 is: “On 17 December 2021, the claimant was found not to have made racist statements and was not given a copy of the investigation report.

[125]Issue 50.6 is: “On 25 February 2022, the claimant’s request for an investigation report into an allegation that he had made a racist comment, which did not progress to any disciplinary hearing, was denied.”

[126]As recited above, on 17 December 2021 the claimant was informed that there was no evidence to show that he had made the racist remarks that Marcus Burke had alleged he had made to him in the pub on 10 September 2021. To that extent, we are prepared to find that on 17 December 2021 the claimant was found not to have made racist statements. The claimant was not given a copy of the investigation report then.

[127]On 25 February 2022, the claimant sent an email to a number of managers and HR stating:- “As per section 8.6 of the disciplinary policy, I would like to be sent a copy of the disciplinary report. As it is already prepared (it was sent to Tino), I expect this to be forthcoming without delay.”

[128]We observe that the claimant was correct in his assertion that section 8.6 of the disciplinary policy states that he was entitled to see a copy of the disciplinary report.

[129]In a reply dated 1 March 2022, Deanna Williams, on behalf of HR, stated: “As the matter did not progress to a disciplinary hearing then there is no requirement for us to provide you any documentation other than the email confirming that it was not being taken further. I have reattached the confirmation email for ease of reference for you.”

[130]Consequently, we find that the claimant was not given a copy of the investigation report and his request was denied. We find issues 54.4 and 50.6 are proved.

[131]We have gone on to consider whether that was unfavourable treatment. We find that it was unfavourable treatment given that he had a right to see the report. Even absent the policy, in our judgment any individual who has been accused of making a racially offensive comment would want to see the report that led to the conclusion that there was no evidence that he had made the remark.

[132]We find that that was unwanted conduct.

[133]We have gone on to consider whether the unfavourable treatment was because of something arising in consequence of the claimant’s disabilities.

[134]Once again, we have not been helped by the failure to the claimant to articulate what he says the thing arising in consequence of his disability was. Notwithstanding that, we have gone on to consider why it was that the claimant was not given the investigation report. In an email dated 4 March 2022, Eneyo Ilenbarenemen stated:- “An allegation was made against you in good faith which warranted an investigation and at the end of the investigation, it was decided that there was no case to answer, and this was communicated to you. Had the decision been that there was a case to answer, then you would have received the investigation report as well as all of the witness evidence in preparation for the disciplinary. As there is no case to answer then there is no requirement to send you all of the documents, and as a result, this is the response to your grievance.”

[135]We find that the reason for the withholding of the investigation report was due to a flawed understanding of the respondent’s procedure and an understandable reluctance to disclose the details of those who had provided evidence against the claimant. We do not find that it was because of something arising in consequence of the claimant’s disabilities.

[136]We find that the unwanted conduct did not relate to the claimants disabilities. It was due to a flawed understanding of the respondent’s procedures.

[137]Issue 54.5 is: “On 17 January 2021, the claimant was told that him being able to prove that Oveta McInnis [actually amended to Marie Lattibeaudiere] was not telling the truth was not relevant to the grievance against Arthur Barzey.”

[138]On 17 January 2022 Oveta McInnis held a meeting to hear the claimant’s appeal against the outcome of the grievance against Arthur Barzey.

[139]In her witness statement Oveta McInnis states:- “The grievance appeal that I was dealing with was in relation to Mr Barzey, not Ms Lattibeaudiere. I therefore said to Mr Windsor “This isn’t relevant to your grievance against Arthur Barzey.” I did not say that Mr Windsor being able to prove Ms Lattibeaudiere was not telling the truth was not relevant to the grievance against Mr Barzey. This is borne out by the minutes of the appeal which state: “ DW. You say it’s my word against hers. There have been multiple occasions where what she has said was misleading. Another is where she refused to attend a meeting. OM: This isn’t relevant to your grievance against AB.”

[140]As such, we find issue 54.5 is proved.

[141]We have gone on to consider whether that was unwanted conduct. We find that it was unwanted conduct as far as the claimant was concerned

[142]We find that the unwanted conduct was not related to the claimant’s disabilities. It was due to the issue not being relevant in the grievance.

[143]Issue 54.6 is: “Refusing to acknowledge that the claimant was raising any valid points during discussions including in relation to his mental health or to produce any evidence that might help him, eg, re reasonable adjustments.”

[144]We observe that this allegation is extremely general and lacking in detail.

[145]That said, throughout the period of his employment from 17 December 2021 until 30 April 2023, the claimant was seen by Occupational Health on a number of occasions. We have three Occupational Health reports which all acknowledge that the claimant was raising valid points relating to his mental health. Further, the respondent, through Occupational Health, was actively exploring reasonable adjustments to facilitate the claimant’s return to work. As such, we find issue 54.6 not proved.

[146]Issue 50.4 is: “On 31 January 2022, the claimant was not supported when he requested Acas to mediate between the parties.”

[147]On 27 January 2022, the claimant sent an email to HR stating as follows:- “Having thought about the sickness review meeting and the possibility of mediation, I have come to the following conclusion. I can only agree to mediate if: 1. The mediator does not work for the Trust and the choice of mediator is approved by both parties and 2. I have permission to speak about issues that are currently confidential. If this can not happen, then I do not think mediation is a positive step.”

[148]On 31 January 2022, Eneyo Ilenbarenemen replied:- “In my email with you on Tuesday 24 January, I explained that mediations are done by SLT and Heads of Service within the Trust. To put your mind at rest and ensure that it is impartial, we could appoint someone outside Heron Hall Academy to do this mediation. With regard to permission to speak about issues that are currently confidential, I need clarity on why this is needed. Everything as it pertains to our processes/procedures are done confidentially not sure why you don’t want them to be.”

[149]On 31 January 2022, the claimant replied:- “Part of the mediation will be that I feel I was bullied and poorly treated. In order to illustrate points, I will need to mention items that are included in the grievances and disciplinary actions. I also note that whilst the Trust might allow a person external to the Trust, you did not comment on my condition that I need the mediator to be approved by both parties – as an example, Acas.”

[150]On 1 February 2022, Eneyo Ilenbarenemen replied:- “My emails explain that to put your mind at rest and ensure that the mediation is impartial, someone outside Heron Hall Academy could be appointed as mediations are done by SLT and Heads of Service within the Trust (which compromises of four academies and a central service office).”

[151]Later on 1 February 2022, Eneyo Ilenbarenemen added:- “I agreed that I’ll discuss with the CEO with regards to an external Acas mediator and update you if this is something the Trust will agree to.”

[152]The respondent later did not agree to either an Acas mediator or an Acas trained mediator.

[153]To that extent, we find that the claimant was not supported when he requested for Acas to mediate between the parties. As such, issue 50.4 is proved.

[154]We have gone on to consider whether that was unfavorable treatment. We find that from the claimant’s perspective it was unfavourable treatment.

[155]We have gone on to consider whether that unfavourable treatment was because of something arising in consequence of the claimant’s disability. Once again, we have not been helped by the claimant’s failure to identify what thing he says arose as a consequence of his disability. We find that the unfavourable treatment was not because of anything arising in consequence of the claimant’s disability (whatever that may have been). We find that the reluctance to engage an external Acas trained or Acas mediator was because within the organisation the respondent could find an impartial mediator and they also took into account cost implications. We accept that the claimant did not trust the respondent to mediate fairly but that, in our judgment, was not a matter arising in consequence of his disabilities.

[156]Issue 50.9 is: “On 24 January 2022 the claimant was issued a first written warning due to his absence as a result of his depression.”

[157]We have a letter dated 21 January 2022 from David Lee to the claimant. This states:- “After carefully considering your attendance record, it was concluded that as your attendance has failed to meet the standards required by the Trust. This is therefore a first formal warning for poor attendance. The expectation going forward is that your attendance improves and is sustained. This will be reviewed within the next 4-6 weeks and if your level of attendance has not improved within this period, this could lead to the next stage of the formal absence process which could result in a final formal warning.”

[158]As such, we find issue 50.9 is proved.

[159]We find that this was unfavourable treatment.

[160]We find that this was unfavourable treatment because of something arising in consequence of the claimant’s disability, namely his sickness absence.

[161]We have gone on to consider whether the issuing of a first written warning under the sickness policy was proportionate means of achieving a legitimate aim.

[162]We find that the legitimate aim of the respondent was managing the claimant’s sickness absence and return to work.

[163]The claimant went off sick on 13 September 2021.

[164]The claimant was referred to Occupational Health and a telephone consultation took place on 17 December 2021. The report references a breakdown in the professional relationship with the Head of Department and diagnoses anxiety and depression. The following is recorded:- “Is the underlying medical condition likely to cause more absence than would otherwise be expected? In my opinion, resolution of his work related issues, is likely to correspond with an improvement in current ill health symptoms. And “Any further reasonable adjustments for us to consider to support his return to work and maintain acceptable attendance? If operationally feasible, due to a breakdown in the employee and line managers professional relationship, I recommend a change in line manager for Mr Windsor, if this is possible for the company to accommodate.”

[165]We note that the grievance outcomes in October 2021 and January 2022 recommended mediation between the claimant, Arthur Barzey and Marie Lattibeaudiere.

[166]On 12 January 2022, the claimant was invited to the sickness absence meeting. One of the stated purposes was:- “Discuss measures, such as additional support, medical treatment or adjustments to your role.”

[167]The claimant attended the sickness absence meeting on 19 January 2022. We have the notes of that meeting. Contrary to what the claimant says in his witness statement, it does appear that he was able to discuss his anxiety and depression. It is recorded that he explained that he was taking medication and undergoing therapy. It is clear from the notes that the claimant was unhappy with the outcome of his grievances and that David Lee, the manager hearing the absence meeting, sought to draw a distinction between the two. The following exchange is recorded:- “DW: explained that it’s a matter of support, which is something he does not feel is there. DL: explained that a possible adjustment could be mediation to help support a return to work. DW: explained that the support isn’t there, so there is no reason for mediation. DW: explained that we are trying to support DW through possible mediation, and that we understand he does not feel supported, but to possibly try it in order to help move forward. DW: explained that he cannot see himself returning to work.”

[168]At the conclusion of the hearing it was decided that the claimant would receive a first written warning.

[169]Whatever the reason for the delay, the fact is that the first absence review meeting was only held four months after the claimant’s first sickness absence. The claimant had been referred to Occupational Health and, although the claimant disagreed with it, the outcome of conducting mediation between himself and his line manager had been suggested. It is clear to us that the claimant was reluctant to go down that route. However, in our judgment, that was a reasonable suggestion as it was not feasible to move Marie Lattibeaudiere as his line manager. Consequently, we find that the issuing of the warning was a proportionate means of achieving a legitimate aim. The respondent was endeavouring to facilitate the claimant’s return to work and the claimant was not engaging. In our judgment a first formal step of a warning was reasonable and proportionate. Consequently, we find on issue 51(d) the respondent has shown that the treatment was a proportionate means of achieving a legitimate aim.

[170]Issue 50.5 is:- “The claimant did not receive responses to his queries regarding using information contained within previous grievances in the sickness absence management process until 21 February 2022 (a delayed response).”

[171]On 24 January 2022, the claimant emailed HR (Eneyo Ilenbarenemen) referencing his appeal against a first written warning and stating:- “2. Mediation was a significant factor in the meeting. In the light of the first point, to properly consider appropriateness of mediation as a possible strategy, I require permission from my grievance managers to release me from confidentiality commitments.”

[172]The claimant followed this up on 24 January 2022 with an email that included:- “In order for mediation to work, the mediator will have to be someone external to the Trust and agreed to by both parties. The policy does give the grievance managers the power to waive the confidentiality requirements.”

[173]On 1 February 2022, Eneyo Ilenbarenemen sent an email to the claimant which contained the following:- “Mentioning items from the grievance at the mediation is not hindered.”

[174]We find that within eight days of requesting release from his confidentiality requirements the claimant did receive a response which agreed that he could. We do not find that this was a delayed response. Accordingly, issue 50.5 is not proved.

[175]Issue 50.10 is:- “Being invited to a disciplinary meeting because of raising his voice on 8 and 30 March 2022.”

[176]Issue 50.12 is:- “Requiring the claimant to attend a disciplinary meeting on 20 June 2022”

[177]Issue 52.1(b) is a PCP as follows:- “The requirement to attend a disciplinary hearing on 14 June 2022.”

[178]On 24 January 2022, the claimant appealed against the first written warning issued to him on 21 January 2022.

[179]The appeal hearing was held on 8 March 2022 by Sue Ellingham. The claimant attended along with a trade union representative and Eneyo Ilenbarenemen, was also present. We have some additional notes of that meeting which contained the following:- “As the meeting progressed DW started to get quite upset and stated information about things he had been accused of and how he held the Trust responsible for his situation. He started to shout at EIL that he had not been dealt with properly under the Equalities Act and that she had refused his grievance. When I asked if he needed to take a moment to calm down he continued to shout at EIL and banged on the table. EIL was visibly distressed and I again said to DW that we should not continue in this manner and it would be best for us to take a break at this stage. COD [the trade union representative] did not intervene initially at his behaviour and only after the second time said that he and DW would go outside for a break and we took a recess. The commotion had been heard by the team in the next office and they checked in on us at this point to make sure that everything was ok. After returning to the meeting, DW was calmer and the meeting proceeded to its conclusion. At the end of the meeting COD acknowledged to DW that he had been given a fair opportunity to have his say during the meeting. After the meeting concluded and EIL had finished the minutes, DW started shouting at EIL again saying that the Trust picks and chooses the policies that it adheres to and that she (EIL) didn’t adhere to the grievance policy and why didn’t she do that? I said that the meeting had ended that this was not a conversation that we should enter into at this stage. He continued to shout at EIL and I said that it was inappropriate to speak to another staff member in that way and we would now leave the room. His behaviour towards Eneyo was quite aggressive and directed personally at her. We left the meeting room and allowed DW and COD to prepare to leave.”

[180]On 25 February 2022, the claimant raised grievances against Deanna Williams and Stephanie Simpson.

[181]On 4 March 2022, Eneyo Ilenbarenemen provided a short response to the grievances rejecting the suggestion that there was a requirement to send the claimant the investigation report and ending:- “And as a result, this is the response to your grievance.”

[182]It would appear that, in part, that response was a cause of the claimant’s anger towards Eneyo Ilenbarenemen.

[183]On 16 March 2022, the claimant’s appeal against the first written warning was rejected. In the appeal outcome letter the following is set out:- “This appeal was about your sickness absence warning, and you said that you could not see yourself returning to work. This supports the written warning and the target set within that and therefore your appeal is dismissed. Your other issues must be addressed within the other processes. Please note that this response reflects my review of the appeal in reaching my decision and may not include comment on all matters covered in the appeal meeting. The minutes to the meeting will be provided separately for that purpose.”

[184]In his witness statement Marino Charalambous states:- “After the meeting, Ms Ellingham raised concerns about Mr Windsor’s behaviour during the meeting and told me she had never seen anything like it. This caused me concern, so I emailed Ms Ellingham and Ms Ilenbarenemen asking for them to provide me with an account of what happened at the meeting. I was also concerned that a trade union representative was present at the meeting and did not intervene.”

[185]On 16 March 2022, Mr Charalambous indeed emailed Ms Ilenbarenemen and Ms Ellingham and asked for their accounts of the meeting.

[186]On 23 March 2022, the claimant was invited to a further sickness absence meeting on 30 March 2022 with David Lee (DLE). The notes of the meeting contain the following:- “DLE: Explained that the meeting is becoming difficult due to DW raising his voice. DW: Shouted, “You will not consider the fact that I have been treated unfairly.” DLE: Explained that he will consider this. DW: Explained that DLE will not consider this, explaining that he had been discriminated on the grounds of disability.” And “DLE: ● Explained to DW that his shouting is interrupting him, explaining that he is finding it difficult to conduct the meeting. ● Explained that he is therefore going to wrap the meeting up and explained that the outcome could be a final written warning, at which DW level of attendance will be reviewed for a further four weeks or continue on a first written warning with plan on returning to work.” And “DW: Explained that if this outcome does not include the reasons behind his depression, the reasons why he is not back to work, the reasons why the Trust have treated me unfairly, then this would be an indication to him that this process is a tick box exercise and that the Trust do not want a solution.”

[187]On 30 March 2022 Deanna Williams (who had been the note taker at the meeting on 30 March 2022) emailed Marino Charalambous to state:- “Just thought I should let you know that the meeting made me feel very uncomfortable. He raised his voice throughout the whole meeting, and on numerous occasions saying (shouting) that I have broken the law and that myself and Steph Simpson denied him reasonable adjustments, which is untrue. He also blamed me and Steph for his ill health and mentioned a sensitive issue he is experiencing, saying that I and Steph were the case of this. He brought other names into it from the Trust, and was very argumentative. David Lee had to ask Darren to stop shouting, and had to say to him that he is interrupting him and making it difficult for him to conduct the meeting. Darren acknowledged he was being disruptive, saying that this is what he was like at Sue’s meeting. “

[188]At 8.20pm on 30 March 2022, Marino Charalambous requested an account from David Lee who replied at 9.06pm as follows:- “I can confirm that I felt the conduct of Darren Windsor during today’s meeting was inappropriate, rude and unprofessional. Darren was aggressive in his tone and I had to ask him to not use this tone when speaking to myself and Deanna (who was making notes). There were multiple occasions where I was unable to speak because Darren would not let me speak. I had given an opportunity earlier in the call that if he felt upset with Deanna being present then we could end the call and find another suitable arrangement. He declined this but then continued to berate Deanna’s involvement in various issues, among many other members of staff at the Trust. At one point, Deanna became visibly upset to myself (she was off the camera screen) because of this…. Darren’s aggressive tone continued so much that I explained to Darren I felt the conversation was going round in circles and I therefore summarised my position before ending the call.”

[189]On 22 April 2022, the claimant was invited to a disciplinary investigation meeting. The invitation letter states:- “The allegation to which I refer is your conduct in the meeting held on 8 March 2022 and on 30 March 2022 which was alleged to be aggressive, inappropriate and unacceptable.”

[190]On 14 June 2022, the claimant was required to attend a disciplinary hearing on 20 June 2022. The purpose of the hearing was to consider an allegation of gross misconduct as follows:- “1. In the meeting on 8 March 2022 you shouted at Eneyo accusing her of not dealing with things properly under the Equalities Act and saying she had refused your grievance. Also that in the meeting you banged on the table when it was suggested you took a break. 2. Further, in the meeting on 30 March 2022, you raised your voice at Deanna and berated her in relation to the process followed and used the absence meeting to criticise Deana and HR in respect of grievances in an aggressive manner even when asked not to.”

[191]Accordingly, issue 50.10 is proved.

[192]Accordingly, issue 50.12 is proved.

[193]We find that being required to attend a disciplinary hearing was a PCP and accordingly, issue 52.1(b) is proved.

[194]We find the treatment in issues 5.10 and 5.12 was unfavourable treatment.

[195]We have taken the something arising in consequence of the claimant’s disability to be as set out in the unfair dismissal issues as follows:- “The conduct which resulted in the claimant being issued with the disciplinary warning on 22 July 2022”. [In actual fact the claimant was dismissed on 22 July 2022, and it was only on appeal in December 2022 that his dismissal was revoked and replaced with a disciplinary warning]

[196]We find that in the meetings on 8 March 2022 and 30 March 2022 the claimant shouted, banged the table (8 March only) and was personally aggressive in his manner towards Eneyo Ilenbarenemen (8 March) and Deanna Williams (30 March). The claimant accepted in evidence that his behaviour was inappropriate on those occasions and, indeed, apologised to the respondent’s witnesses who had been present at the material time.

[197]We have gone on to consider whether that conduct was something arising in consequence of the claimant’s disability. This is an objective question of fact.

[198]We first considered the medical evidence. The Occupational Health report dated 17 December 2021 does not deal with any symptoms that may have arisen from the claimant’s anxiety and depression. The Occupational Health report dated 4 May 2022 contains the following:- “What are the symptoms and impact of his depression with regards to conduct? Clearly from my consultation today Mr Windsor is not fit, and is suffering with his mental health, therefore, in my opinion, he is not in the right frame of mind to be making good decisions.”

[199]The claimant made an impact statement dealing with his disability on 31 May 2022. He states as follows:- “3.2 What are/were the effects of the impairment on the claimant’s ability to do day to day activities? Answer The significant and long term effects include, but are not necessarily limited to: ● Irritability … 3.7 What would the effects of the impairment have been without any treatment or other measures? The claimant should give clear day to day examples, if possible. Answer The claimant would have continued to increase in irritability, mood swings, feeling worthless and anxious.”

[200]Against that, in his answers to questions before the investigation meeting, the claimant stated that his behaviour was symptomatic of his mental illness.

[201]In our judgment, the contemporaneous Occupational Health evidence and the claimant’s own impact statement fall well short of establishing that the conduct which resulted in the claimant being disciplined was something arising in consequence of his depression and anxiety.

[202]Nevertheless, we have the benefit of the psychiatric report dated 8 January 2023. This has the following contained within it:- “ ● He said he would “explode in anger” every so often because he was so unhappy. ● Sertraline 50mg OD was commenced on 26 July 2021 following GP review. Mr Windsor reported outbursts of anger, feeling fearful and eating less. ● He said he broke down during one of the reviews and ended up shouting. He said he was not swearing or abusing anyone, “I was yelling about the pain I felt and what they did to me, and I was incredibly distressed.” ● Mr Windsor explained that he was bad at handling conflict in the moment, “I can become argumentative.”

[203]In the Opinion and Recommendations section the following is contained:- In the section dealing with PTSD: “Typical symptoms include episodes of repeated reliving of the trauma in intrusive memories (“flashbacks”), occurring against the persisting background of a sense of “numbness” and emotional blunting, detached from other people, unresponsiveness to surroundings, and anhedonia, and the avoidance of activities and situations reminiscent of the trauma. Rarely, there may be dramatic, acute bursts of fear, panic or aggression, triggered by stimuli arousing a sudden recollection and/or re-enactment of the trauma or of the original reaction to it. There is usually a state of hyperarousal with hypervigilance and insomnia. Anxiety and depression are commonly associated with the above symptoms and signs, and suicidal ideation is not infrequent.” (our underlining)

[204]The psychiatric report clearly links dramatic acute bursts of aggression as being possible symptoms of anxiety and depression. On that basis, we find that the conduct which resulted in the claimant being disciplined was something arising in consequence of his mental impairment.

[205]We have gone on to consider whether the treatment was a proportionate means of achieving a legitimate aim.

[206]In our judgment, the legitimate aim was to take appropriate action in light of totally unacceptable behaviour. The claimant’s conduct was in breach of several parts of the Code of Conduct, in particular concerning the treatment of other Trust personnel with respect. The respondent has a duty of care to its staff and had a responsibility to enforce proper standards of conduct. In claim 2 the legitimate aim is pleaded as: “To maintain acceptable levels of behaviour amongst staff.”

[207]In our judgment, investigating the matter and referring the claimant for a disciplinary hearing was a proportionate means of achieving that legitimate aim. The conduct could not go ignored and had to be dealt with and, in our judgment, this was a reasonable way to address the issue. Consequently, as regards issues 50.10 and 50.12, we find that the respondent has shown that the treatment was a proportionate means of achieving a legitimate aim.

[208]We have considered whether the PCP put the claimant at a substantial disadvantage compared to a non-disabled colleague. We find that it did not. A non-disabled colleague would have been required to attend a disciplinary hearing had he or she behaved in the same way as the claimant.

[209]Issue 52.1(f) is a PCP as follows:- “Requiring answers to a list of questions from Mr Charalambous in July 2022”.

[210]Having been invited to the disciplinary investigation on 22 April 2022, also on 22 April 2022 the claimant emailed Wendy Bowstead. This included:- “Pursuant to section 20 of the Equalities Act, I am asking for the following reasonable adjustments  I had to attend an Occupational Health meeting to determine my fitness to attend an absence review. I therefore want another meeting held to help determine my mental state and my fitness to attend this meeting.  That I be allowed to provide evidence of the actions of the Trust that created, and then deepened, my depressions.  that I be told what section of the Code of Conduct, I was alleged to have violated.  a copy of the allegations made against me given to me prior to the meeting.”

[211]On 25 April 2022, Wendy Bowstead responded that she had arranged to have a follow up Occupational Health review, that the claimant could present any evidence he wanted to and set out the parts of the Code that it was alleged the claimant had breached. The claimant was informed that if he was a trade union member then he should have representation.

[212]The claimant was reviewed by Occupational Health on 4 May 2022 and the report is dated 6 May 2022. It contains the following:- “• Is he fit to attend a meeting in person/virtually? or in written representations or have a union rep attend in his place. In my opinion, he is not fit to attend any meetings in person or virtually, and is not content to be represented by a union rep. Mr Windsor is open to written correspondence, but not fit for written representation.”

[213]On 19 May 2022 Wendy Bowstead sent the claimant questions.

[214]On 24 May 2022, the claimant answered the questions in a four page document. We note that the claimant had been able to provide detailed answers to 30 questions in three and a half days.

[215]In due course Wendy Bowstead produced an investigation report. That concluded that the claimant had a case to answer, and the matter would proceed to a disciplinary hearing. We note that as regards the meeting on 8 March 2022, the following is set out:- “You state that this behaviour is a “symptom of your mental illness” however, the Occupational Health report does not suggest that this type of behaviour is caused by mental illness. There is no evidence therefore that this is a symptom of your mental illness.”

[216]However, given that this is an objective question of fact, it is not necessary for the employer to know that the disability caused the misconduct.

[217]As set out above, on 14 June 2022 the claimant was invited to the disciplinary hearing. He was provided with a copy of the disciplinary procedure and Code of Conduct, a summary of the findings of the investigation which set out further detail of the allegations against him, copies of the witness statements obtained and copy of the claimant’s responses to Wendy Bowstead’s questions.

[218]On 15 June 2022, the claimant emailed HR, Marino Charalambous, and Wendy Bowstead as follows:- “Given the current state of my mental health, I do not feel it in my best interest to attend meeting (either online or in person) I therefore ask for the following reasonable adjustments due to my disabilities: 1. That this disciplinary be conducted through written correspondence and 2. That I’m given more time to respond.”

[219]On 27 June 2022, Eneyo Ilenbarenemen sent a series of questions to the claimant requesting a response by 1 July 2022. There were 14 questions.

[220]On 27 June 2022, the claimant asked for more time to answer.

[221]On 28 June 2022, Eneyo Ilenbarenemen extended the response time to 3 July 2022.

[222]On 28 June 2022, the claimant complained that that was not a reasonable adjustment.

[223]On 28 June 2022, Eneyo Ilenbarenemen extended the deadline to 8 July 2022. Although the claimant complained again, that was given as a final deadline.

[224]On 8 July 2022, the claimant submitted his document stating that he had been unable to finish the document. The document is five pages long but leaves the written questions unanswered. The claimant took it upon himself to deal with “a number of issues that I would like to introduce prior to dealing with the specific questions.” He attached his previous answers to questions. We note that the claimant had been given 11 clear days to answer the questions.

[225]We find that the claimant was required to answer a list of questions from Eneyo Ilenbarenemen (not Mr Charalambous) in July 2022. We find that that was a PCP.

[226]We find that the submission of written questions was in accordance with recommendations from Occupational Health and to comply with the reasonable adjustments the claimant had requested. We find that, in the circumstances, being requested to answer questions did not put the claimant at a substantial disadvantage compared with non-disabled colleagues. It was how he wanted the disciplinary process to be conducted.

[227]Although the list of issues does not put it in this way, it may be that the claimant’s complaint was that he was not given sufficient time to answer the questions. In our judgment, he was given more than sufficient time to answer the questions. We find that the claimant was not put at a substantial disadvantage compared with non-disabled colleagues in being required to answer 14 questions in 11 days. The claimant has demonstrated himself throughout this time of being well capable of producing long and factually complex documents

[228]Issue 50.13 is:- “Dismissing the claimant on 22 July 2022.”

[229]It is accepted that the claimant was dismissed on 22 July 2022. We find that that was unfavourable treatment. We find that the unfavourable treatment was because of something arising in consequence of his disability, namely the dramatic acute bursts of aggression.

[230]The dismissal letter states:- “In reaching this decision, I also considered the Trust’s Code of Conduct and the Teacher Standards Part B specifically, your behaviour at the meeting on 8 March 2022 and 29 April 2022 [sic: should be 30 March 2022] contravenes the examples of the rules of conduct and falls within the examples of gross misconduct taken from the Trust’s Code of Conduct Policy: 1. Behave professionally. This is expected of all Trust employees at all times. Your behaviour at the meeting on 8 March and 29 April [sic: should be 30 March] (shouting, banging the table when a break was suggested which would have put a stop to your behaviour, berating a colleague despite being asked to stop), cannot in any way be considered professional. 2. Observe the published standards for Teachers. As a teacher you are expected to demonstrate consistently high standards of personal and professional conduct. Amongst other behaviours and attitudes, you are expected to “show tolerance of and respect for the rights of others.” Your behaviour at the meetings on 8 March and 29 April (sic: should be 30 March) highlighted above does not meet this expectation. Shouting at, accusing Eneyo of not dealing with things, banging the table, raising your voice and berating and criticising Deana despite been (sic) asked to stop are not examples of “treating other Trust personnel with respect.” This behaviour not only breaches the Trust’s expectations of its employees, it also breaches the expectation of the Teachers Standards. 3. Actual or threatened violence, or behavior which provokes violence. “Aggressive “ does not exclusively mean you insulted, swore at or attempted to physically touch Eneyo or Deanna as stated in your response. It also means behaving in a forceful way” which is what your statements and behaviour towards Eneyo and Deana were at both meetings.” The majority decision (EJ Alliott and Mrs Hancock)

[231]The majority decision is that dismissing the claimant was a proportionate means of achieving the legitimate aim.

[232]We take the legitimate aim to be as before. [paragraph 206]

[233]We are required to conduct a critical evaluation on the question of objective justification, weighing the interests of the employer with the discriminatory impact on the employee.

[234]We have taken into account the following factors:  The claimant’s conduct was unacceptable and involved aggressive conduct to two colleagues on two separate occasions. It plainly constituted gross misconduct.  Occupational Health at that stage had not supported the proposition that the claimant’s behaviour was because of something arising in consequence of his disability.  Occupational Health advice at the time was that the claimant was fit to attend a meeting.  The respondent has an interest in and, indeed, a duty to(i) uphold proper professional standards of conduct by teachers;

(ii) ensure a safe working environment for all staff;

(iii) take appropriate action in the event that a member of staff was guilty of gross misconduct.

[235]We accept that in the circumstances where the misconduct has been caused by a disability, the disabled person is worthy of due allowance and that a more sympathetic approach may be appropriate even in the face of gross misconduct.

[236]Nevertheless, in these circumstances we find that the gross misconduct was of such a seriousness that dismissal was a proportionate means of achieving the legitimate aim. The minority decision (Mrs Barratt)

[237]The minority decision is that dismissing the claimant was not a proportionate means of achieving a legitimate aim.

[238]I accept the legitimate aim as before [paragraph 206].

[239]I have taken account of the following factors.  Whilst the claimant’s conduct was unacceptable it has to be seen in its context which was losing his temper twice as a disabled person when frustrated with his treatment and attempting to secure reasonable adjustments.  The Occupational Health report clearly stated the claimant was not in the right frame of mind to be making good decisions.  The claimant was away from the workplace on long term sickness absence and, as such, ensuring colleague protection was not an urgent priority.  I accept that upholding proper professional standards of conduct by teachers is important.

[240]I find that the claimant’s mental health was a mitigating factor that meant his conduct should not have been found to be gross misconduct.

[241]Nevertheless, in my judgment the claimant was deserving of a more sympathetic approach due to his disability. I find that the respondent should have delayed and obtained more detailed medical evidence and assessment of the claimant’s mental state and whether action more than mediation such as counselling or mentoring could be provided. End of the minority decision

[242]Issue 50.11 is as follows:- “On May 18 2022 at a formal absence review meeting, refusing to engage with the Claimant’s attempts to refer to his mental state, when the Claimant was agitated in meetings.”

[243]On 11 May 2022, the claimant was invited to a further formal absence meeting to take place on 18 May.

[244]On 11 May 2022, the claimant replied as follows:- “Given the contents of my latest OH report, which states that I am not in the right frame of mind to be making good decisions and that I am not fit to attend meetings, I do not think it is appropriate to attend any meeting. Would it be possible to conduct this via correspondence.”

[245]On 12 May 2022, Deanna Williams replied:- “We accept your request to conduct by correspondence. We will get some questions out to you early next week.”

[246]On 17 May 2022 questions were sent to the claimant. These include: “How are you feeling now?” to which the claimant replied “Anxious, depressed, distressed, feeling worthless, fatigue from lack of sleep.”

[247]There was in fact no formal absence review meeting attended by the claimant on 18 May 2022. As such, the claimant has failed to prove that there was any refusal to engage with his attempts to refer to his mental state.

[248]In the event that the date of this allegation is wrong and should refer to the formal absence review meeting held on 30 March 2022, the notes of the meeting contain the following:- “David Lee:  Explained that he acknowledges that there is the mental health aspect of his illness and that there is the physical aspect.  Asked if there is anything that he can think of that the Trust can do to help support him?”

[249]We find that there was no failure to engage with the claimant’s attempts to refer to his mental state in that meeting.

[250]Accordingly, issue 50.11 is not proved.

[251]Issue 50.8 is:- “The failure to hear the Claimant’s grievances against Marino Charalambous and Wendy Bowstead sent on 22 July 2022.”

[252]Issue 52.1(e) alleges a PCP as follows:- “Appeal hearings to be held on Trust property;”

[253]Issue 4.1.1 in claim 2 is:- “Issuing him with a disciplinary warning on 22 July 2022” [should be substituting a final written warning for dismissal on 13 December 2022]

[254]On 22 July 2022, the claimant submitted a grievance against Marino Charalambous as follows:- “I will [sic] to submit a grievance against Marinos Charalambous on the following grounds: 1. Marinos did not allow the reasonable adjustment I asked for. This is indirect discrimination. 2. Marinos misused the Occupational Health report. It was never intended to be used for the purpose it was used for. 3. Marinos has no medical background – yet he decided that my mental impairment was not sufficient to ameliorate my conduct. He was duty bound to seek additional medical evidence prior to making that decision.”

[255]On 22 July 2022, the claimant also submitted a grievance against Wendy Bowstead as follows:- “I will [sic] to submit a grievance against Wendy Bowstead on the following grounds: 1. Wendy misused the Occupational Health report. It was never intended to be used for the purpose it was used for., 2. Wendy has no medical background – yet he [sic] decided that my mental impairment was not sufficient to ameliorate my conduct. She was duty bound to seek additional medical advice prior to making that decision.”

[256]On 30 July 2022, the claimant appealed against his dismissal. The grounds of appeal are as follows:- “1. The second Occupational Health report was used for a purpose for which it was never intended. This was whether my mental state, at the time, ameliorated my behaviour. 2. Whether my current mental state ameliorated my behaviour is a medical issue and therefore the Trust was duty bound to seek professional medical advice on this matter. Neither Marino nor Wendy was qualified to reach a conclusion on this matter. … 4. In refusing my reasonable adjustment, Marino has indirectly discriminated against me.”

[257]It is clear and we find that the points raised on appeal replicate the issues raised by the claimant in his two grievances against Marino Charalambous and Wendy Bowstead.

[258]On 1 August 2022 Eneyo Ilenbarenemen sent an email to the claimant as follows:- “We would organise for your appeal to take place as soon as possible. As it is the holiday period, we are unable to organise this until school resumes in September 2022. Details for the appeal will be sent as soon as that is arranged. The points you have raised in your grievance against Marino Charalambous and Wendy Bowstead will be dealt with in the appeal as they relate to the reason for dismissal.”

[259]On 30 September 2022, the claimant was notified that the appeal hearing had been arranged for 10 October 2022 at Harmony House which is Trust property.

[260]On 30 September 2022, the claimant replied: “… Given the OH reports, I request an independent venue. Also, what is happening with my grievance?”

[261]On 30 September 2022 Eneyo Ilenbarenemen replied:- “We are unable meet your request for a venue outside the Trust. Your grievances against Marino and Wendy are covered under your grounds of appeal and will be dealt with at the appeal.”

[262]On 1 October 2022, the claimant replied:- “… 2. Given that my dismissal centered on my conduct in a meeting at Harmony House, meeting there again will probably trigger another Trauma dump. I have chatted with my therapist about it and she also feels a neutral place would be appropriate. I therefore request, as a reasonable adjustment, that the meeting takes place in a neutral venue due to my mental impairment – which the Trust has admitted to. 5. Finally, if the process continues and the change of venue is not granted, then I ask that the proceedings be conducted through written communication. I also need to ask if wrapping up my grievances with my disciplinary will affect my right to an appeal on the grievances. If so, I ask that the proceedings be separated.”

[263]On 4 October 2022 Eneyo Ilenbarenemen replied:- “Further to your email we are prepared to rearrange the appeal so that it does not clash with your medical appointments. The rearranged date will be sent as soon as I confirm Ms Tosh’s availability. This meeting will now be held in portacabin. … The two grievances you have issued against Marino and Wendy respectively are exactly the same as your appeal, and therefore the correct forum to discuss these is the appeal meeting rather than a separate grievance process.”

[264]On 4 October 2022, the claimant replied:- “What is Portacabin – if it on the trust site, that is not acceptable. We would need to have it off site. Section 11.3 states, if you have … a disability which causes you a substantial disadvantage, adjustments may be made to the procedure to allow you to participate.” I require an offsite venue. I completely disagree that the grievances and the disciplinary are exactly the same things. There is some overlap, but they are not the same. The disciplinary appeal will deal with the severity of my mental disability as well as fairness, bias and discrimination – most of which is quite recent. The grievance against Marino will include items that are older. Whilst it is possible to hear three procedures in the same meeting, hearing them together is against the Acas Code of Conduct as it is patently unfair.”

[265]On 6 October 2022 Eneyo Ilenbarenemen replied:- “You said that you could not have the meeting in Harmony House which is why we arranged it in the portacabin (Portacabin building is a portable building quickly set up for use as an office/classroom etc) you requested the adjustment because of what you said about the previous meeting. As a school trust we cannot go to the expense of hiring external venues when we have numerous buildings that we can use of our own. If you do not want to meet in the portacabin then we can offer Enfield heights or Kingfisher. The issues that you are raising as grievances are the same as those which you are raising in the appeal against your dismissal. This is why the correct forum is the appeal meeting itself. We are not obliged to hold separate meetings to discuss the matters already raised as part of another process.”

[266]On 6 October 2022, the claimant replied quoting his previous request for a neutral venue and repeating that request.

[267]On 21 October 2022, the appeal hearing was scheduled for 11 November 2022 in the portacabin behind Harmony House.

[268]On 25 October, the claimant requested that the meeting be held online.

[269]The claimant’s request was granted and on 11 November 2022 the appeal hearing went ahead. It was heard by Jenny Tosh, Vice Chair of Trustees. She made clear that she was only hearing the claimant’s appeal and was not there to hear his grievances.

[270]The claimant was informed about the outcome of his appeal on 13 December 2022. The appeal overturned the claimant’s dismissal and substituted a final written warning for 18 months. As such issue 4.1.1 is proved.

[271]Thereafter, the grievances against Marino Charalambous and Wendy Bowstead were not dealt with. As such, issue 50.8 is proved. We find that it was unfavourable treatment.

[272]It is accepted by the respondent that the respondent did have the PCP of appeal hearings having to be held on Trust property. As such, we so find. The claimant was issued with a final written warning for 18 months on 13 December 2022 and, as such, issue 4.1.1 in the second claim is proved.

[273]The claimant is of course correct when he asserts that a grievance is materially different from a disciplinary process. The outcome of a grievance may involve a finding against another member of staff. The outcome of a disciplinary process may involve a finding against the subject of that process.

[274]Once again, the claimant has failed to identify the something arising in consequence of his disability that he relies upon. Obviously enough, the grievances arose out of Wendy Bowstead’s investigation report and the dismissal of the claimant on 22 July 2022. As we have already found, the investigation report and the claimant’s dismissal are because of something arising in consequence of the claimant’s disability, namely his dramatic acute bursts of aggression.

[275]However, we find that the failure to deal with the claimant’s grievances against Marino Charalambous and Wendy Bowstead was not because of that thing. We find that the failure to deal with the grievances was because Eneyo Ilenbarenemen erroneously considered that the issue was identical to and would be dealt with in the appeal hearing.

[276]We find the respondent did have a PCP of appeal hearings to be held on Trust property.

[277]We find that the PCP of holding appeals on Trust property did put disabled members of staff at a particular disadvantage compared with non-disabled staff due to the chance of triggering an adverse mental reaction. We find that the respondent knew that it would place the claimant at that substantial disadvantage.

[278]We find that a duty to make reasonable adjustments therefore arose.

[279]We find that the respondent did take such steps as was reasonable to avoid the disadvantage. The respondent:(i) Offered to hold the appeal in a different building to Harmony House.

(ii) Offered to hold the appeal at a different site to Harmony House.

(iii) When both of the aforesaid were rejected by the claimant, the respondent offered to hold the hearing remotely.

[280]We find that it was not reasonable to expect the respondent to go to the trouble and expense of hiring a third party venue.

[281]Consequently, the claim for failure to make reasonable adjustments is not upheld.

[282]We find that giving the claimant a final written warning for 18 months was unfavourable treatment.

[283]We find that that unfavorable treatment was because of something arising in consequence of the claimant’s disability, namely his dramatic acute bursts of aggression.

[284]We find by a majority ( Employment Judge Alliott and Mrs Hancock) that the treatment was a proportionate means of achieving a legitimate aim. Our reasons are the same as in respect of the original dismissal decision.

[285]I find (Mrs Barratt) that the treatment was not a proportionate means of achieving a legitimate aim. My reasons are the same in respect of the original dismissal decision. In addition, whilst I find a warning would have been more proportionate, I find that a final warning and for 18 months was not proportionate.

[286]There is no dispute that the claimant was dismissed on notice on 6 Febraury 2023 with the effective date of termination being 30 April 2023. As such, issue 4.1.2 in claim 2 “dismissing him” is proved.

[287]It is clear and we find that the thing arising in consequence of the claimant’s disability was his long-term absence from work/inability to return to work.

[288]We find that the claimant’s dismissal was unfavourable treatment.

[289]We find that the unfavourable treatment was because of that thing.

[290]The claimant began his period of sickness absence on 13 September 2021.

[291]The claimant was referred to Occupational Health and seen on 17 December 2021.

[292]On 21 January 2022, the claimant was issued a first formal warning for poor attendance pursuant to the respondent’s sickness absence policy (albeit that he had been given far more than the four week absence trigger).

[293]The claimant’s appeal against his written warning was heard on 8 March 2022 and the outcome letter on 16 March 2022 records that the appeal was unsuccessful, and that the claimant had said that he could not see himself returning to work.

[294]On 30 March 2022 David Lee held a further formal sickness absence meeting with the claimant as described above.

[295]On 14 April 2022, the claimant was given a final formal warning for poor attendance pursuant to the sickness absence policy.

[296]The claimant had a consultation with Occupational Health on 4 May 2022 and was found to be not currently fit to return back to work.

[297]Due to the claimant being dismissed on 22 July 2022, so the absence management of the claimant ceased.

[298]The claimant was reinstated on 13 December 2022.

[299]Following his reinstatement, on 15 December 2022 Eneyo Ilenbarenemen contacted the claimant to arrange a wellbeing call with him before the end of term.

[300]There appears to have been a conversation on 19 December 2022 between the claimant and Eneyo Ilenbarenemen. Then on 20 December the claimant raised some questions including noting that an Occupational Health evaluation had not taken place.

[301]On 21 December 2022 Eneyo Ilenbarenemen emailed the claimant as follows:- “If you are ready to come into work then we would of course do a return to work meeting and consider a phased return and what duties you can do… I was of the impression that you were not ready to come back to work which is why I am suggesting Occupational Health. An appointment with OH can assist us in knowing when you are ready to return or how long until you return. It will also cover matters such as reasonable adjustments and phased returns. Can you let me know if you agree to see OH and I will set this up?”

[302]A telephone consultation was held with Occupational Health on 5 January 2023. The report concludes as follows:- “Fitness for work and adjustments Based on the information available today, it is my opinion that Mr Windsor will be unable to return to work to the situation that resulted in his absence and which has been reported to have caused significant mental health issues. He has reported that he would be unable to work with the two colleagues again as he would not have a sense of security or confidence that the previous treatment, he had reported to have experienced, would not occur in the future. He does not believe that there has been any resolution to the issues he has raised. There are no adjustments that can be suggested that would expedite a return to work for the reasons given above.”

[303]On 16 January, the claimant spoke to Eneyo Ilenbarenemen, and she summarised their conversation in an email of the same date. This records:- “I explained that the OH report ascertains that there are no adjustments that can be suggested as you are unable to work with Marie and Stephanie. You agreed and highlighted the fact that the report confirmed that you are suffering from depression and PTSD. You explained that you cannot return to working with the people responsible for it. You mentioned Marino, Arthur, Stephanie and Marie; particularly Marie and Stephanie who you explained turned down your reasonable adjustment request that led to you sustaining an injury as a result. … You expressed that if the Trust does not come to a resolution within two weeks preferably seven days, you’ll file a constructive dismissal claim.”

[304]The claimant accepted in cross examination that by this time he had the psychiatric report of Dr Lara Cleland. The claimant accepted in cross examination that he could not work with the respondent’s CEO, the Head, the Deputy Head and the Head of Department. It was put to him that it was unworkable for him to return, and he replied “yes.” He was referred to his threat to make a constructive dismissal claim and asked if that was the end of the road to which he said “yes.”

[305]On 25 January 2023, the claimant was given notice of a final formal absence review meeting and sent all relevant documents. The claimant was informed that Joseph Howlett would chair the meeting and that:- “If, having considered all the available material and anything you have to say about the mater, Joseph considers there is no reasonable prospect of a return in a reasonable amount of time, he may decide to give you notice to terminate your employment on the grounds of capability.”

[306]The final absence review meeting was held on 2 February 2023 by Teams.

[307]As recited above, on 6 February 2023 the claimant was given the outcome of the final review meeting, and his employment was terminated.

[308]We find that the reason for dismissal was capability (long-term absence). The majority decision (Employment Judge Alliott and Mrs Hancock)

[309]We find that the respondent genuinely believed the claimant was no longer capable of performing his duties.

[310]We find that the respondent adequately consulted the claimant.

[311]We find that the respondent carried out a reasonable investigation including finding out about the up-to-date medical position.

[312]We find that the respondent could not reasonably be expected to wait longer before dismissing the claimant.

[313]We find that the decision to dismiss was within the range of reasonable responses of a reasonable employer.

[314]Consequently, we find that the dismissal was not unfair.

[315]We find that the unfavourable treatment of dismissal was a proportionate means of achieving a legitimate aim.

[316]The legitimate aim pleaded is “the requirement for the claimant to attend work and fulfil contractual duties.” We find that that was a legitimate aim.

[317]We are required to conduct a critical evaluation on the question of objective justification, weighing the interests of the employer with the discriminatory impact on the employee

[318]We have taken into account the following factors:  Our conclusions in relation to the fairness of the dismissal.  That after 18 month sickness absence and given the claimant’s stated inability to return to work due to the individuals concerned, the point had been arrived at where the respondent could no longer reasonably be expected to continue with the claimant in employment.  We find that something less discriminatory than ending the claimant’s employment would not have been workable.  We find that the respondent could not be expected to continue to cover the claimant’s position with expensive supply teachers. The minority decision (Mrs Barratt)

[319]I find that the respondent had not adequately consulted with the claimant and had not carried out an adequate investigation in terms of informing itself of the medical position. The respondent had access to the psychiatric report had it wanted to.

[320]I find that the respondent resumed the absence management of the claimant too soon after reinstatement.

[321]I find the point had not been reached at which the respondent could not be reasonably expected to wait longer before dismissing the claimant. The speed at which the Respondents proceeded to conduct a final hearing after the claimant was reinstated was indicative of wanting to remove the claimant rather than find a way to help the claimant return to work.

[322]Though the Respondent through Eneyo Ilenbarenemen did contact the claimant following the decision to reinstate, I find it wasn’t with the intention of ‘How can we get you back to work’ it was more about ‘are you fit to return?’ Given that in the preceding 18 months nothing had changed in the personnel it was highly unlikely with the claimant’s deteriorating mental health that he could return if nothing new was now being offered. If they are not offering other working opportunities then the claimant is not able to return. He could return and work, just not in the same place with the same people.

[323]Reasonable adjustments were not considered or offered. The claimant requested part time work, this wasn’t mentioned by Eneyo Ilenbarenemen, but in any case, it would require a new location/college. The respondent had four colleges and a different place of work wasn’t considered.

[324]As far back as the first Occupational Health report in December 2021 the requirement that alternative opportunities could be considered for Mr Windsor was raised and it was suggested HR undertake to do this. It never happened. In failing to explore alternative opportunities as far back as December 2021 up to his final dismissal in Feb 2023 the respondent did fail to adequately consult with the claimant to enable him to return to work.

[325]The time the claimant went off on sick leave until the final decision to dismiss was a full 18 months during which the claimant had a recognised mental disability. Clearly, unless something changed through action by the respondents to enable the claimant’s return to work, he was not going to be able to do so. All the medical information available to HR and the Management was consistent with that view. Therefore, going down the disciplinary route was counter productive, indeed an approach to mutually terminate may have been less stressful and more in keeping with the situation.

[326]In my judgment the dismissal was unfair and not a proportionate means of achieving a legitimate aim. End of minority judgment Time

[327]The claimant’s first claim was presented on 1 March 2022. The Acas early conciliation certificate sets out that Day A and Day B were both 3 February 2022. As such there is no early conciliation time to be discounted. The claim was presented within one month of Day B. As such anything that occurred prior to 4 November 2021 is out of time.

[328]The three issues that the claimant has succeeded on took place in July 2021 and 22 October 2021. We find that they represented a course of conduct. Both relate to the context of the claimant requesting and being denied reasonable adjustments. Consequently the last act is only 14 days out of time.

[329]The claimant has complained about a lot of treatment that postdates 4 November 2021 but has obviously not been successful. Nevertheless, balancing prejudice and weighing up all the circumstances, we find it would be just and equitable to extend time.

[330]The trolly issue was subject of a grievance in July 2021 and the October 2021 statement was in response to the grievance raised against Arthur Barzey. The respondent has not been prejudiced in having to deal with the issues and the claimant would be prejudiced by not litigating them. Approved by:

Introduction

[1]This is a remedy hearing consequent upon the reserved judgment on liability sent to the parties on 11 August 2025. The law Injury to feelings

The law

[2]In Prison Service and others v Johnson

[1997] ICR 275

, EAT, the EAT summarised the general principles that underlie awards for injury to feelings:  Awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party.  An award should not be inflated by feelings of indignation at the guilty party’s conduct.  Awards should not be so low as to dimmish respect for the policy of the discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed riches.  Awards should be broadly similar to the range of awards in personal injury cases.  Tribunals should bear in mind the value in everyday life of the sum they are contemplating, and  Tribunals should bear in mind the need for public respect for the level of awards made.

[3]In addition, Mr Quickfall made submission to us arising out of the case of Eddie Stobart Limited v Graham (EAT (SC))[2025] ICR, to the effect that:-  Compensation should only be awarded for genuinely injured feelings.  An award of injury to feelings Is not automatic.  We need evidence of injury to feelings.  An award of injury to feelings is not a punishment. The evidence We had a remedy bundle of 481 pages.

[5]We had remedy statements and heard evidence from:(i) The claimant

(ii) Mrs Julia Windsor, the claimant’s wife.

[6]In addition, we had the claimant’s witness statement from the liability hearing.

[7]Mr Bindnell-Edwards provided us with a skeleton argument on injury to feelings for which we are grateful. The Vento guidelines

[8]There was some debate before us as to which Vento bands should be applicable.

[9]The claimant’s claim in relation to the matters where he has been successful was presented to the tribunal on 1 March 2022. As such, on the face of it, the Vento guidelines for claims presented after 1 April 2021 are applicable. The lower band is £900 - £9,100.

[10]For claims presented after 1 April 2025 the lower band is £1,200 - £12,100.

[11]Mr Bindnell-Edwards submitted to us that we should update the Vento guidelines in accordance with inflation which he said would give a lower band of £1,250 - £12,500.

[12]We note that the authorities that Mr Bindnell-Edwards relied upon pre-date the instigation of the Presidential Guidance on Vento guidelines which is issued on an annual basis these days and uplifts the bands to reflect inflation etc.

[13]Were we to take the contemporary Vento bands, whether for claims issued after 1 April 2025 or uplifted to take into account the Retail Price Index, then, in our judgment, that would pose problems in so far as the application of interest is concerned. In the County Court, when awards of general damages are made for personal injury based on the contemporary Judicial College guidelines, an award of 2% interest is made to compensate the claimant for being kept out of their damages. However, the only interest rate we can award in this jurisdiction is 8% per annum. In our judgment, if we were to take the contemporaneous bands but also award intertest at 8% that would raise a potential injustice to the respondent by overcompensating the claimant.

[14]Consequently, we have worked from the Vento guidelines that were relevant in 2021 and have awarded the claimant interest at 8% per annum from the midpoint of the discriminatory conduct that we have found. We observe that that probably leaves the claimant better off. Injury to feelings

[15]The claimant has been successful on three heads of claim.

[16]The first is a failure to make reasonable adjustments, namely failure to share departmental equipment being the Chromebook trolley. The second head of claim relates to an incident on 22 July 2021 when the claimant was treated unfavourably by being refused access to the Chromebook trolley kept in Marie Lattibeaudiere’s office. As such, in our judgment, the unfavourable treatment is overlapped by the failure to make reasonable adjustments.

[17]It is clear to us from our findings in our reserved judgment that the respondent did make attempts to address the issues surrounding the Chromebook trolley. As recited in paragraphs 60 and 61 of our judgment, a Google document was created for the location of the trolleys to be logged to make it easier for sharing between the teachers and, later, a trolley was borrowed from the Maths Department.

[18]Nevertheless, we have found that a trolley was not always available to the claimant and he would need to go and look for one around the school. That would involve the claimant having to walk around the school, which we found put him at a particular disadvantage due to his disability with his knee. That said, we found that the distances were not great and that, for example, the claimant would routinely walk one third of a mile in the morning to catch his bus.

[19]We have found that Marie Lattibeaudiere was reluctant to allow the claimant to use the trolley. We find that that was on a number of occasions in June and July when the claimant was beginning to experience undue pain in having to look for a trolley.

[20]We have taken into account that at this time there were numerous matters that were injuring the claimant’s feelings but that we have found that those were not unlawful.

[21]We have taken into account the fact that at the time, as set out in paragraph 66 of our judgment, that claimant referred to the matter not being a big issue of and by itself.

[22]We consider that it would be somewhat artificial to try and apportion the injury to feelings attributable to the discriminatory conduct rather than other matters that the claimant was dissatisfied with.

[23]We find that the claimant has proved that his treatment injured his feelings.

[24]Further, we have taken into account the particular effect that the treatment may have had on the claimant given his mental condition.

[25]In all the circumstances, in our judgment a fair, reasonable, and just figure for these two items of discrimination would be £1,500.

[26]The second issue that the claimant has been successful upon relates to a comment in an outcome of his grievance to the effect that HR did not have evidence of his disability, when, in fact, there was such evidence. We have found that that was unwanted conduct and constituted harassment on the basis that it violated the claimant’s dignity.

[27]We have found that the purpose of the comment was not to violate the claimant’s dignity.

[28]We note that the letter went on to suggest that when the claimant returned to work he could engage with Occupational Health in terms of moving the matter forward.

[29]We find that the claimant has proved that his treatment injured his feelings.

[30]Again, doing the best we can in circumstances where there were many issues that were affecting the claimant in terms of injuring his feelings, in our judgment a fair, reasonable, and just figure for that treatment would be £1,500.

[31]As far as the claimant’s claims for loss of earnings and other expenses, in our judgment there is no causative link in any way, shape, or form between the discrimination found and those losses.

[32]We do not find that there was any failure to comply with the Acas Code of Conduct in relation to grievance proceedings and accordingly apply no uplift.

[33]The interest we have applied is as follows. We have taken 1 September 2021 as being the mid-point of the discriminatory conduct. That is 4 years 131 days until todays’ date. 8% ÷ 365 x 131 = 2.87. Consequently, we have awarded interest at 34.87 percent. 34.87% x £3,000 = £1,046.10 Approved by: