Mr N Foster v Secretary of State for Justice: 3303970/2022

EMPLOYMENT TRIBUNALS

Case No 3303970/2022

Between

Mr N FosterClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge Cowen

Miss Platt (instructed by counsel) for claimant

Mr Greaves (instructed by counsel) for respondent

Date 23 February 2025

JUDGMENT

[1]The claim for Unfair Dismissal is out of time and is dismissed.

[2]The claim for direct disability discrimination is dismissed.

[3]The claim for discrimination arising from a disability succeeds in relation to allegations 6.1.1, 6.1.4, 6.1.5, 6.1.6 and 6.17 in the list of issues.

[4]The claim for failure to make reasonable adjustments succeeds,

[5]The claim for trade union detriment/dismissal is out of time in part and is dismissed. Allegations 9.2.8 and 9.29 which are in time, are dismissed.

[6]A remedy hearing will be held on 4, 5 November 2025 at Watford Tribunal, Radius House, 51 Clarendon Road, Watford WD17 1HP before

REASONS

[1]The Tribunal apologises to the parties for the delay in providing this judgment. Unfortunately, due to the workload of the Tribunal it has not been possible to produce this document more speedily.

[2]The Tribunal were provided with an agreed bundle of documents, together with some supplementary documents which were produced during the hearing, when it became apparent that the Respondent had failed to include copies of their policies in the bundle.

[3]The Tribunal also received witness statements from the Claimant, Mr Fitzsimmons, Mr Dables, Mr Pickin and Mr Kerr. On behalf of the Respondent the Tribunal received witness statements from Ms Price, Mr Cartwright, Mr Evans, Ms Panigel, Mr Crossey. Oral evidence was provided by all the witnesses except Mr Cartwright.

[4]An agreed List of Issues was provided by the parties which was amended and followed by the Tribunal throughout. References to paragraphs in the List of Issues below are to the amended list provided by the parties. Both counsel produced written closing submissions and supplemented them with oral submissions.

[5]The Tribunal was unable to complete its deliberations within the listing period and therefore sat to complete deliberations on 16 January 2025. Findings of Relevant Facts

[6]Having considered all the evidence, we find the following facts on a balance of probabilities;

[7]The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because we have limited them to points that are relevant to the legal issues.

[8]The Claimant started working as a prison officer on 23 February 2015 after a long application process. He worked at HMP The Mount which is a Category C prison, which contains an annexe holding some Category D prisoners who have enhanced privileges. The Mount is a large prison with 11 wings.

[9]The Claimant had a period of training and became a member of the full staff in April 2015. Soon after this he witnessed a shocking attempted murder between prisoners, where he thought that the prisoner was going to die. Shortly after, the Claimant started to show symptoms of PTSD. He received some sessions of counselling via his employer. He also attended his GP and was prescribed anti-depressant medication.

[10]In August 2016 the Claimant was referred to Occupational Health (‘OH’) who completed a report saying that his symptoms were increasing due to continued workplace pressures. The Claimant was allowed to work on the enhanced wing, as respite from the pressures of the other parts of the prison. He returned to full duties in the main prison in approximately late Summer 2016.

[11]In October 2016 the Claimant was assaulted by a prisoner which caused an injury to his nose, for which he required surgery. This too had an effect on his mental health and he received more counselling. The Claimant was off work for approximately 4 weeks as a result of this incident. He continued to suffer symptoms of anxiety and PTSD when returning to work.

[12]A third incident on 27 February 2017 occurred where the Claimant was assaulted by another prisoner. He did not take any time off and did not receive any further counselling.

[13]On 19 May 2017 the Claimant was assaulted again by a prisoner. This time he was knocked unconscious and hit his head when he fell to the floor. After this the Claimant was signed off by his GP for trauma and PTSD. Although he tried to return to work in July 2017, he was unable to do so and was signed off again. He was sent for an OH report in August 2017. This suggested a phased return to work over four weeks. This advice was followed.

[14]In October 2017 the Claimant was once again sent home and was off work due to symptoms of PTSD. At this point the Claimant received further counselling and medication. By December 2017 he was improving and was able to return to work.

[15]Between 2018 and 2020 the Claimant went through a period of disciplinary and transfer to another prison, before returning to The Mount and having his duties altered due to a risk assessment. When this was not followed, the Claimant raised a number of grievances.

[16]The Claimant became a member of the Prison Officers Association in April 2015 and became a representative for colleagues in April 2017. Part of his duties was to accompany those facing internal disciplinary and grievance procedures to meetings. The Claimant was a representative who was willing to challenge senior managers and was adamant that workplace policies should be followed.

[17]On 12 December 2020 the Claimant left the exercise yard gate unsecure on the Enhanced wing (the trusted prisoners accommodation). That morning the Claimant had found himself locked in the gym and unable to get out. This had upset him and stressed him. As a result of the incident of leaving a gate unlocked the Claimant was placed on restricted duties. Mr Crossey told him on 14 December 2020 that an investigation would be undertaken. Around this time the Claimant was diagnosed with complex PTSD, aggravated low mood and anxiety. He was recommended to have treatment with a clinical psychologist, which he did for some time.

[18]Unfortunately on 2 May 2021, the Claimant was involved in an incident where a prisoner died in his cell. The Claimant was present and tried to give CPR before the emergency services arrived. He found this to be traumatising once again.

[19]The Claimant was absent from May 2021 to September 2021 due to his mental health conditions of anxiety, depression and PTSD. He obtained further OH reports in that time, all of which referred to anxiety and depressive symptoms and/or PTSD.

[20]In late June 2021 the Claimant received a letter to say that he would be disciplined for the incident in December 2020 and that the hearing would take place on 1 July 2021. This caused the Claimant distress and he was signed off by his GP once again.

[21]On 28 June 2021, an OH report indicated that a phased return to work would ensure a ‘safe return to work’. Having set out a plan, it indicated that the plan could be adjusted if necessary and that if no resumption of full time duties was possible within 3 months, a referral to OH should be made.

[22]On 1 July 2021 the disciplinary meeting occurred. The Claimant was given ‘advice and guidance’ which was a low level of reprimand.

[23]The Claimant applied for and was granted Sick Leave Excusal by Mr Crossey between 24 June 2021 and 24 September 2021, although Mr Evans declined to support the application. He therefore returned to work on 4 October 2021. Before his return he was referred to OH for a further report. Dr Palka saw the Claimant on 9 September 2021 and the report was dated 14 October 2021. He suggested a return to work including restricted duties and phased over a period of four weeks.

[24]At a meeting on 4 October between Mr Evans and the Claimant, they discussed the Claimant’s apprehension at returning to work and the Claimant’s desire for a 12 week phased return. Mr Evans had not yet seen Dr Palka’s report, but was supportive of this measure and understood it was to support the Claimant’s mental health. It was agreed that he should start to work on Brister wing. This was with the intention of slowly building the Claimant’s work towards full duties. Initially the Claimant was supernumerary in Brister wing. The Claimant’s phased return worked well, with the Claimant gaining in confidence and during the first four weeks he increased his hours and his duties, although he remained supernumerary.

[25]Mr Evans received the report of Dr Palka around 14 October 2021, prior to meeting with the Claimant again to review his phased return. The report was written prior to the start of the Claimant’s phased return and said that the Claimant should be phased back to his full duties over a period of “4 weeks or so”.

[26]On 27 October 2021 the Claimant and Mr Evans met three times. At the first meeting that day, they agreed to increase the Claimant’s hours for weeks 5 and 6 of his phased return. At the second meeting that day Mr Evans requested that the Claimant’s return be speeded up in light of Dr Palka’s report, but the Claimant disagreed and indicated that if his return was to speeded up, he wanted to go back to the OH for a more up to date view. Mr Evans remained supportive and said he would find out whether the Claimant could self-refer to OH.

[27]Mr Evans then spoke to an HR case manager about extending time beyond the time referred to in the OH report. It was on the basis of the advice of the case manager that Mr Evans decided to send the Claimant to a full FARM meeting. Mr Crossey’s evidence indicated that Mr Evans should have returned the Claimant to OH at that point.

[28]A third meeting took place that day between Mr Evans and the Claimant where he told the Claimant that he would be referred to a full FARM due to his absences, as a 12 week phased return would mean the Claimant had been off for more than 26 weeks. Mr Evans told the Claimant the full FARM would be heard by Ms Price, the Governing Governor, the most senior position in the prison. This change of position by Mr Evans was very upsetting to the Claimant.

[29]On 28 October 2021 Mr Evans sent the Claimant an email saying that he could not self-refer to OH. The self-referral which the Claimant had commenced was cancelled and the Claimant’s request to his manager to refer him was also declined. This left the Claimant without a way back to OH and a manager who had changed his position on the Claimant’s phased return to work. THIs change had not been discussed between Mr Evans and the Claimant in any of their meetings the previous day.

[30]The email on 28 October also informed the Claimant that his phased return was being limited to six weeks and that an amended risk assessment had been put in place to reflect this. Mr Evans then departed on holiday, so the Claimant could not discuss it further with him.

[31]The Claimant had a meeting with Ms Price on 1 November 2021 at which Ms Price told him that he could either comply with the amended risk assessment, or he would have to go off sick, as there was no other work for him.

[32]The Claimant then went off sick again on 2 November 2021, after the conversation with Ms Price. His mental health was in decline at this point.

[33]A further OH referral was made and the Claimant was assessed on 23 November 2021 as having moderately severely low mood and anxiety.

[34]On 24 November 2021, prior to his dismissal meeting, the Claimant issued grievances against Ms Price, Ms Panigel and Mr Evans with respect to their handling of his sickness absence, disability and disciplinary. Mr Crossey dismissed the grievance against Ms Panigel and Mr Evans and Ms Price heard and dismissed the grievance against herself, telling the Tribunal that she was the person best placed to hear it as she had the best knowledge of the situation.

[35]Ms Price also sat on the appeal panel for the grievances of Mr Evans and Ms Panigel and dismissed those. Mr Cartwright heard the appeal against the grievance of Ms Price and dismissed that.

[36]On 24 November 2021 the Claimant met with Ms Price. She told the Claimant that the options were to regrade him into an operational support grade, or an administrative grade, neither of which the Claimant wanted to do; or alternatively, to dismiss the Claimant for sickness absence.

[37]Ms Price said to the Claimant that he had been absent since 1 November 2021, which equated to 24 calendar days and that over the last 4 years he had been absent for 133 days on 10 occasions. Ms Price said that this did not include 68 days of absence associated with Covid which had been deducted, but was nevertheless time away from the workplace. Ms Price did not take into account the Sick Leave Excusal between 24 June and 24 September 2021, which had been found by Mr Crossey. Ms Price told the Claimant that as he could not say when he would be able to return to full duties, she could not continue to employ him.

[38]At the end of the meeting Ms Price dismissed the Claimant and awarded him 50% of the Civil Service Management Code compensation payment. This was said to be due to “ your levels of engagement in this process”. Ms Price said that this was due to the fact that the Claimant had not shown the requisite desire to try to return to work as he had wanted a 12 week phased return and gone off sick when this was not allowed.

[39]The Claimant appealed the dismissal decision and the compensation level. Mr Cartwright uplifted the compensation level to 100% but did not alter the decision to dismiss.

[40]Time Limits The Claimant was dismissed on 24 November 2021 and therefore the initial 3 month time limit expired on 23 February 2022. The ACAS certificate was dated 10 – 17 February 2022.

[41]The Claimant contacted his household insurer on 21 February to ask them for assistance and was told they would contact solicitors. On 22 February the Claimant was told by the insurer that this would take 10 days to organise.

[42]The Claimant obtained a further medical report in April 2022 from Dr Tim Acton, a clinical psychologist which said that his treatment ended in February 2022, when Dr Acton moved overseas.

[43]On 9 March 2022 the Claimant contacted the insurer to ask what was happening and was told that the email to the solicitors on 22 February had contained a typographical error and had not therefore reached its destination.

[44]On 23 March the solicitors contacted the Claimant to tell him his claim would be late. The Claimant therefore took steps to issue an ET1 himself the following day.

[45]On 3 April 2022 the Claimant was offered a part time, fixed term position with the Royal Mail as a postman. LAW Time Limits

LAW

[46]For a claim of Unfair Dismissal to be considered by the Tribunal, it must comply with section 111 Employment Rights Act 1996; “(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to the following provisions of this section , an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

[47]A claim for trade union detriment is limited under s.147 Trade Union and Labour Relations (consolidation) Act 1992 in the same terms.

[48]The Tribunal must consider whether it was ‘reasonably practicable’ for the Claimant to have brought the claim within the time limit (as extended by EC). The most recent guidance was given by Underhill LJ in Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490

, CA which indicated that issues such as whether the Claimant was aware of the time limit and whether it was reasonable for them to have been ignorant of it. Likewise that a mistake by an adviser is attributable to the Claimant themselves, Dedman v British Building and Engineering Appliances :td

[1974] ICR 53

, CA

[49]Furthermore the CA in Palmer v Southend on Sea Borough Council

[1984] ICR 372

said that the existence of a pending internal appeal was not of itself sufficient to justify a finding that it was not reasonably practicable to have issued a Tribunal claim.

[50]Only if the Tribunal concludes on an objective basis that it was not reasonably practicable to have brought the claim in time, should they consider when the first reasonable time would have been for the Claimant to have issued the claim.

[51]The relevant time-limit for discrimination claims is at section 123 Equality Act 2010. According to section 123(1)(a) the tribunal has jurisdiction where a claim is presented within three months of the act to which the complaint relates.

[52]The normal three-month time limit needs to be adjusted to take into account the early conciliation process and any extensions provided for in section 140B Equality Act

[53]Where the Claimant has not brought the claim within the required time limit in respect of all the allegations, the Tribunal may still treat them as in time, where it can be said that there was a continuing act. In Hendricks v Metropolitan Police Commissioner

[2002] EWCA Civ 1686

, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the Claimant was treated less favourably.

[54]Alternatively, the tribunal may still have jurisdiction if the claim was brought within such other period as the employment tribunal thinks just and equitable as provided for in section 123(1)(b); (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. (3)For the purposes of this section—…. (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it

[55]The tribunal has a wide discretion to extend time on a just and equitable basis. As confirmed by the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, the best approach is for the tribunal to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. This will include the length of and reasons for the delay, but might, depending on the circumstances, include some or all of the suggested list from the case of British Coal Corporation v Keeble

[1997] IRLR 36

[56]It is for the Claimant to show that it would be just and equitable to extend time. The exercise of discretion should be the exception, not the rule (Bexley Community Centre (t/a Leisure Link) v Robertson

[2003] EWCA Civ 576

[57]Where the reason for the delay is because a Claimant has waited for the outcome of his or her employer’s internal procedures before making a claim, the tribunal may take this into account (Apelogun-Gabriels v London Borough of Lambeth and anor

2002 ICR 713

, CA). Each case should be determined on its own facts, however, including considering the length of time the Claimant waits to present a claim after receiving the outcome

[58]Disability under the Equality Act 2010 Section 6(1) Equality Act 2010 (EqA) states: “A person (P) has a disability if— P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.” Part 1 of Schedule 1 to the EqA ; “Long-term effects 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

c. it is likely to last for the rest of the life of the person affected. If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. … Effect of medical treatment An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— a. measures are being taken to treat or correct it, and b. but for that, it would be likely to have that effect. “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.”

[59]‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (‘the Guidance’) sets out:- 59.1. that anything which occurs after the date of the discriminatory act will not be relevant to the consideration of definition of disability. 59.2. The time at which the Tribunal is to consider the disability is the date of the alleged act of discrimination. This is also the relevant date when considering whether any impact is long term. All Answers Ltd v W

2021 IRLR 612

, CA, set out that the Tribunal must look at the facts and circumstances existing at the date of the discrimination and not to events which occurred subsequently. 59.3. The Tribunal must take into account Statutory Guidance on the definition of Disability (2011) which stresses that it is important to consider the things that a person cannot do,or can only do with difficulty (B9). This is not offset by things that the person can do: Aderemi v London and South Eastern Railway Ltd

2013 ICR 391

. Day to day activities are things people do on a regular or daily basis such as shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities. This includes work related activities such as interacting with colleagues, using a computer, driving, keeping to a timetable etc ( Guidance D2 – D7)

[60]In Paterson v Commissioner of Police of the Metropolis

[2007] IRLR 763

, Elias J said:''… when assessing the effect, the comparison is not with the population at large. As paragraphs A2 and A3 [of the then Guidance] make clear, what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.”

[61]The burden of proving disability lies with the Claimant who must provide evidence of circumstances which fall within s.6 Equality Act 2010. Each disability must be considered independently. Discrimination Arising from a Disability

[62]S.15 (1) Equality Act 2010 sets out that; “ a person (A) discriminates against a disabled person (B) if: - A treats B unfavourably because of something arising in consequence of B’s disability, and - A cannot show that the treatment is a proportionate means of achieving a legitimate aim. s.15(2) says that s.15(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”.

[63]The treatment received by the employee must be “unfavourable” but does not require comparison to another person who does not have the same protected characteristic.

[64]The Claimant is required to show that the unfavourable treatment was due to “something arising in consequence of his/her disability” and not due to the disability itself. The something need not be the main or sole cause for the unfavourable treatment, but have had a more than trivial influence in order to amount to an effective reason or cause for the action. The Tribunal should apply an objective test to this aspect of the causative test.

[65]The Tribunal must also consider whether the Respondent’s actions were a “proportionate means of achieving a legitimate aim”. The legitimate aim must not be discriminatory and should be a real, objective consideration. Examples of these may include health and Safety issues, protection of the public, or operational needs of the business.

[66]The EHRC Employment Code sets out that to be proportionate the actions of the employer do not have to be the only possible way to achieve the aim, but the Tribunal must consider whether a less discriminatory measure could have been taken to achieve the same aim.

[67]The employer has a potential defence if they can show that they were not aware of the disability, or could not reasonably be expected to know. Gallop v Newport City Council

2014 IRLR 211

, CA indicated that the employer cannot merely adopt the view in an occupational health report, it must make its own factual judgement as to whether the employee is disabled.

[68]To be a proportionate means of achieving a legitimate aim, the Tribunal must look at whether the act of discrimination was also a reasonably necessary means of achieving that aim; Homer v Chief Constable of West Yorkshire

[2012] UKSC 15

. The Tribunal is entitled to consider whether a less discriminatory measure could have achieved the legitimate aim; Naeem v Secretary of State for Justice

[2017] UKSC 27

. Direct Discrimination

[69]Section 13 of the Equality Act provides that: “ (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[70]Section 23 of the Equality Act goes on to provide that: “ (1) On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case”.

[71]In the House of Lords decision of Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[2003] IRLR 285

, ICR 337, it was held by Lord Scott that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim save that he, or she, is not a member of the protected class”.

[72]The test as to whether there has been less favourable treatment is an objective one: the claimant’s belief that there has been less favourable treatment is insufficient. Likewise, the treatment must be less favourable, not merely different. Unreasonable treatment is not sufficient, although it may be evidence which supports an inference if there is no adequate explanation for the behaviour (Anya v University of Oxford and anor

2001 ICR 847

, CA).

[73]Where there is less favourable treatment, the key question to be answered is why the claimant received less favourable treatment: was it on grounds of the protected characteristic or for some other reason (London Borough of Islington v Ladele

[2009] ICR 387

). As Mr Justice Linden said in Gould v St John’s Downshire Hill

2021 ICR 1

, EAT “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective…For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision…[and] the influence of the protected characteristic may be conscious or subconscious.” Failure to make Reasonable Adjustments

[74]Section 20(3) of the Equality Act 2010 provides that: “ (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.”

[75]Section 21 of the Equality Act 2010 provides that: “(1) A failure to comply with the first, second or third requirement is a failure to comply with the duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

[76]The burden is on the claimant to show the application of a provision, criterion or practice, and the substantial disadvantage suffered by him because of it. Substantial means “more than minor or trivial”. If that is done the burden shifts to the respondent to show that the adjustment in question was not reasonable. A one-off act can amount to a PCP where there is an indication that it would be repeated if a similar situation arose in future (Ishola v Transport for London

[2020] EWCA Civ 112

, CA).

[77]The duty to make reasonable adjustments does potentially require an employer to treat a disabled person more favourably than others (Archibald v Fife Council

[2004] ICR 954

[78]Paragraph 6.28 of the EHRC Code sets out some of the factors that might be taken into account when deciding what is a reasonable step: it is wise for the Tribunal to consider the factors although there is no duty to consider each and every one (Secretary of State for Work & Pensions (Job Centre Plus) v Higgins

[2014] ICR 341

, EAT [58]). What is reasonable is considered objectively having regard to all the circumstances. The steps are: a) Whether taking any particular steps would be effective in preventing the substantial disadvantage; b) The practicability of the step; c) The financial and other costs of making the adjustment and the extent of any disruption caused; d) The extent of the employer’s financial or other resources; e) The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and f) The type and size of the employer.

[79]The test of reasonableness is objective and will depend on the circumstances of the case. Trade Union Detriment/Dismissal

[80]Section 146(1)(b) set out that; “(1) [A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of—(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,

(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, [...]

[81]Section 152 refers to automatic unfair dismissal when connected to membership/activity in a trade union; “(1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee—(a) was, or proposed to become, a member of an independent trade union, [...]

(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, [...] DECISIONS

[82]Time Limits The Tribunal accepted that the Claimant’s dismissal exacerbated his mental ill health for some time. However, it noted that by February 2022, Dr Acton felt that he was improving and that treatment could be curtailed. Dr Acton described the Claimant as symptomatic for all measures of generalised anxiety and depression, but that he had achieved a level of recovery. The Tribunal therefore felt that by the end of February 2022, medical reasons were not a contributing factor to the delay in issuing the claim.

[83]The Tribunal also noted that the Claimant was engaged with appealing his dismissal and grievances around this time, as well as applying for a new job. These acts indicated that the Claimant was able to deal with administrative tasks and putting together his arguments about his dismissal. The fact that it was the Claimant who ultimately issued his claim by himself, indicated that he was able to do so.

[84]The fact that the Claimant had been a trade union representative was not something that the Tribunal considered to be of relevance to his knowledge of time limits or ability to comply with them, as the role is an internal one and does not associate with advice about Tribunal procedure.

[85]The Tribunal took account of the principles in Dedman that indicate that a failure by a legal advisor to act within time is held to be the action of the Claimant. Furthermore, the Tribunal took account of the fact that the Claimant was able to engage in other forms of administrative and complaint- type work at this time. Unfair Dismissal

[86]The Tribunal concluded that it was therefore reasonably practicable for the Claimant to have issued his claim in the Tribunal on or before 17 March 2022 and that time therefore cannot be extended and the claim of unfair dismissal is dismissed as out of time.

[87]Disability The Tribunal took into account the fact that the Claimant raised his grievances on 24 November 2021, prior to his dismissal. These contained complaints as to how his absence and disability had been handled by his superiors. These points were overlooked by the Respondent when Mr Crossey dismissed the grievance. The Claimant was then allowed to appeal against these outcomes and against his dismissal. As these were issues which were linked, the Tribunal concluded that the decision making between the grievances and the dismissal were linked, as well as the fact that Ms Price was involved in the decision making of both the grievance, appeal and the dismissal. The Tribunal were satisfied that the last act of discrimination being alleged was therefore on 22 February 2022 when the Claimant was told of the appeal outcome and that the preceding matters were part of the same continuing situation.

[88]The ET1 was issued on 24 March 2022, therefore the claims related to disability were brought within the time limit. Disability

[89]The Tribunal accepted the concession of the Respondent that the Claimant was a disabled person within s.6 Equality Act 2010 between June 2021 and February 2022.The Tribunal were satisfied that the Claimant’s symptoms of depression and anxiety, together with the symptoms associated with PTSD, namely feelings of vulnerability, anger, anticipation of further assault, and tiredness associated with hypervigilance, had a substantial effect on the Claimant’s ability to carry out day to day activities, such as engaging with others, concentrating, socialising and sleeping.

[90]In considering when the Respondent had knowledge of the Claimant’s disability, the Tribunal took into account the Respondent’s concession that they knew of the mixed anxiety disorder and depressive disorder from 28 June 2021 and they knew of his PTSD from around 14 October 2021.

[91]The Tribunal noted that the Respondent was sent copies of the reports from OH about the Claimant. The first of these was dated 24 October 2017 which indicated that the Claimant had Anxiety. In August 2020 the report referred to low mood, depression, anxiety and PTSD. A later report that month referred to PTSD and the Claimant being vulnerable. This was confirmed in May 2021 when it was said that the Claimant had a severe level of anxiety or moderate depression.

[92]The Tribunal were satisfied that Mr Evans had knowledge of the Claimant’s disability from October 2017 when he received the first OH report. By 11 August 2020 the Respondent had knowledge of moderate depression and anxiety and were clear that this was a longstanding condition, namely PTSD. By 25 August 2020, the OH report went to Ms Price which indicated that the Claimant was vulnerable due to his illness.

[93]The Tribunal therefore found that the Respondent had knowledge of the Claimant’s disability in relation to anxiety and depression from 24 October 2017 and in relation to PTSD from 11 August 2020. Direct Discrimination

[94]The Tribunal were satisfied that the Claimant was dismissed, as this was admitted by the Respondent. The Tribunal were also satisfied that being dismissed from a job was a detriment to the employee.

[95]Likewise the Tribunal were satisfied that the Claimant’s appeal against dismissal was not upheld and that this too amounted to a detriment against him.

[96]The Tribunal considered whether these two acts occurred because the Claimant was disabled. The Tribunal considered a hypothetical comparator as someone who was not materially different from the Claimant, ie they had the same absence record as the Claimant for a non-disability related reason.

[97]The Tribunal considered Ms Price’s reasons for dismissing the Claimant. She indicated these related to his length of absence and the fact that he could not indicate a date by which he would be able to return to full duties. The Tribunal considered that Ms Price was wrong in her calculation of the number of days of absence, as she ignored the sick leave excusal. The Tribunal also considered that the Claimant was told that he was progressing to a full FARM on 28 October 2021, before he went off sick for the period which Ms Price dismissed him. The FARM was not arranged to consider the current absence, but the previous absences. However, Ms Price did not accurately consider the Claimant’s previous absence.

[98]The Tribunal concluded that Ms Price did not make these errors and decide to dismiss the Claimant due to his disability. The Tribunal concluded that anyone who had the sickness record that the Claimant had and had brought grievances against Ms Price, as the Claimant had, would have been treated in the same manner. The dismissal was therefore not direct discrimination on grounds of disability. This allegation is dismissed.

[99]In relation to the appeal against dismissal, the Tribunal noted that Mr Cartwright relied on the fact that there was “ no prospect of you returning to work in your current role (or in any capacity) within a reasonable timeframe” and therefore he found the dismissal to be appropriate. The Tribunal concluded that Mr Cartwright was following Ms Price’s flawed logic and that he did not take steps to identify the reasons for himself. However, the Tribunal also considered that Mr Cartwright would not have treated someone with a similar absence history for a non -disability related absence in any different manner. He was merely willing to follow the decision of Ms Price. The Tribunal viewed his actions as inadequate and lacking precision, rather than due to and disability discrimination. Discrimination arising from a Disability Issue 6.1.1

[100]The Tribunal found that on 4 October 2021, Mr Evans and the Claimant had reached an agreement to have a 12 week phased return to work. This was agreed by Mr Evans without any OH report or other medical evidence. It was agreed that it would be reviewed after 4 weeks and then after every following 2 weeks. After 3 weeks he had not felt well enough to assume full duties and asked to continue to be supernumerary. Mr Evans allowed this again without any recourse to an OH report, or medical evidence.

[101]On 20 October 2021 the Claimant told Mr Evans that he was not happy with the content of the OH report and wanted another report. Mr Evans told the Claimant that he had the option to say that he disagreed with the existing report.

[102]By the time they met again on 27 October to discuss weeks 5 and 6 of the phased return, Mr Evans had access to, but had not read Dr Palka’s OH report. There were three meetings that day between the Claimant and Mr Evans. At the first meeting Mr Evans remained supportive of the Claimant, at the second meeting he again said he would find out if the Claimant could self – refer to OH. However, by the third meeting, Mr Evans had taken advice from a case manager and told the Claimant he was being referred to a full FARM and that it would be heard by Ms Price.

[103]The following day the Claimant asked to hold a formal meeting with Mr Evans to discuss the return to work and the reasons for the FARM. In response to this Mr Evans sent the Claimant an amended risk assessment changing his phased return in line with the recommendations in the OH report. Mr Evans admitted to the Tribunal that this was done without agreement with the Claimant. He then commenced annual leave, so was not available to discuss this decision with the Claimant.

[104]The Tribunal concluded that the change in the risk assessment to reduce the phased return from 12 weeks to 4 weeks and to ‘comply’ with the OH report did occur. There was no discussion or agreement about this between Mr Evans and the Claimant, as their discussion was general and superficial about the OH report generally and not the effect of this on the risk assessment and phased return. The Tribunal were satisfied that the OH report was advisory and there was no compulsion on Mr Evans to follow its recommendation. The implementation of adjustments is a management decision. He also failed to take into account the fact that the report was written prior to the Claimant starting his phased return to work and therefore their discussion was the more contemporaneous account of the Claimant’s ability to cope with work. The Tribunal concluded that the decision taken by Mr Evans was as a result of the Claimant’s stated need for a long period of phased return over 12 weeks. The Tribunal found that Mr Evans clearly understood that the Claimant’s requirement for 12 weeks was due to his disability and that he changed his view on supporting the Claimant to do this after their discussion on whether the Claimant required more than 6 weeks. His actions were therefore discriminatory.

[105]Issue 6.1.2 The Claimant did attempt to self- refer to OH on 27 October, following his meetings with Mr Evans. This referral was automatically accepted. The following day, Mr Evans indicated to the Claimant that he was not allowed to do this and the booking was cancelled. Mr Evans’ evidence was that OH told him that self-referral was not part of the contract terms with the Respondent. No documentary evidence was provided to support this contention.

[106]Equally the Claimant provided no evidence to the Tribunal to prove that the policy did allow self-referral and that it could be inferred that the prohibition on the Claimant was for a reason related to his disability. The Claimant has therefore not provided evidence from which an inference of discrimination could be made.

[107]The Tribunal therefore found that the Respondent/Mr Evans did not refuse the Claimant the right to self-refer to OH due to a reason related to his disability. The Tribunal found this was due to Mr Evans’ understanding of the Respondent’s policy and the advice he received. This allegation was dismissed.

[108]Issue 6.1.3 The Tribunal found, on the basis of the Claimant’s evidence and that of Mr Evans, that Mr Evans did refuse to refer the Claimant to OH on 28 October 2021. The Claimant asked Mr Evans to do this when he was told that he could not self-refer. Mr Evans initially told him he was uncertain whether he could refer again with regard to the same absence (which the Tribunal felt was an unlikely reason to refuse, given the Claimant’s history) and whilst the Claimant had challenged the current OH report. The evidence suggested that Mr Evans was unwilling to engage in investigation of this point due to his impending holiday. Instead he told the Claimant to speak to Ms Panigel in his absence.

[109]The Tribunal were satisfied that Mr Evans did this due to the fact he was about to leave on holiday. He believed he was following the Respondent’s policy. The Tribunal found no evidence from which they could infer that Mr Evans had denied the referral due to the Claimant’s absence, nor due to his need for a phased return of 12 weeks. This allegation was dismissed.

[110]Issue 6.1.4 The Tribunal were satisfied by the evidence of the Claimant and Mr Fitzsimmons that there was a conversation between the Claimant and Ms Price on 1 November 2021, in which Ms Price told the Claimant that he should work from the amended risk assessment or go off sick, as there was no work for him there. Ms Price’s own evidence used similar words and indicated that she said to him that he must work as directed, or go off sick. The Tribunal were satisfied that at the time this was said, Ms Price was aware of the Claimant’s disability, as she had seen the OH report and was aware that he was undertaking a phased return which had been agreed by Mr Evans and reviewed by him.

[111]The Tribunal concluded that the reason that Ms Price said this was because she was aware that that the Claimant needed a long phased return to work of approximately 12 weeks. Her comment was a detriment to the Claimant who felt that this removed his opportunity to return to work in a gradual and successful manner. The Tribunal consider that this allegation shows discrimination did occur.

[112]Issue 6.1.5 The Tribunal found that there was clear evidence that the Claimant was subjected to the capability procedure, by way of the Respondent’s Attendance Management Policy. The evidence of all the Respondent’s witnesses was that the policy was applied to the Claimant, due to his sickness absence.

[113]Mr Evans evidence was that the full FARM was required so that Ms Price could deal with the Claimant’s absence history. Ms Price believed it was because the Claimant had been absent for 23 days. Either way, these are both related to sickness absence, which in turn was related to the Claimant’s disability.

[114]The Tribunal were satisfied that the reason the capability procedure was used was due to his sickness absence, which was due to his disability and that it was detrimental to the Claimant to do this. This allegation shows that discrimination did occur.

[115]Issue 6.1.6 The dismissal of the Claimant did occur on 24 November 2021. This was agreed by the witnesses and was evidenced by the dismissal letter.

[116]The evidence showed that Ms Price failed to take into account the Claimant’s sick leave excusal when she calculated the number of days absence. This excusal was given for the matters which had led to the Claimant’s PTSD and his continuing disability. Ms Price’s evidence which suggested that the Claimant had failed to return to work within a reasonable timescale didn’t take account of the fact that the Claimant had returned to work in October, but had gone off sick again due to the discriminatory change in his risk assessment and Ms Price telling him on 1 November to go off sick if he could not return to full duties immediately.

[117]Ms Price’s evidence to the Tribunal was not supported by the dismissal letter, which makes no reference to a failure to provide a date for return. The letter also referred to the Claimant not returning to work when expected and not co-operating with reasonable adjustments. This was not consistent with the Tribunal’s findings that the Claimant did return to a phased return in agreement with Mr Evans at the start of October. The reasons given by the dismissal letter did not therefore reflect the reality of what had happened. The Tribunal conclude that Ms Price knew that her reasons were not factually accurate and that her evidence to the Tribunal was unreliable and at times fanciful in its logic.

[118]The Tribunal concluded that the reason for dismissal was therefore linked to the Claimant’s sickness absence and his need for a longer phased return. The Tribunal find this was an act related to the Claimant’s disability and was an act of discrimination.

[119]Issue 6.1.7 The Tribunal found that it follows from the dismissal being an act of discrimination, that the failure to uphold the appeal for the same reasons as given for the dismissal is also an act due to the Claimant’s absence and his need for a long phased return. Mr Cartwright chose to follow Ms Price’s logic without independent investigation of the situation. He therefore chose to follow and/or be led by Ms Price’s discrimination. This too was an act of discrimination.

[120]Issue 6.1.8 The Tribunal considered this allegation with reference to the grievances made on the 24 November 2021. The Claimant did raise grievances about his treatment by management. However, at the time the grievances were raised he had not yet been dismissed.

[121]The Tribunal considered that this was a reference firstly to the grievance against Ms Panigel’s handling of the Claimant’s request to be referred to OH once again.This grievance was handled by Mr Paul Crossey on 22 December 2021. He dismissed the grievance, saying that it was reasonable for both Mr Evans and Ms Panigel to refuse to refer the Claimant to OH and that it was reasonable for Ms Panigel to discuss her approach with Ms Price.

[122]The evidence of Mr Crossey to the Tribunal indicated that he now acknowledged that his decision was not in line with the Respondent’s own How to Guide, the Claimant ought to have been referred to OH once again.

[123]The Tribunal also noted that Mr Crossey had signed the sick leave excusal application on 3 August 2021, so was aware that the sickness record needed to be amended. He had also given the Claimant guidance due to the outcome of the disciplinary process in July 2021 and therefore was aware of the Claimant’s circumstances. Finally, the Tribunal also noted that Mr Crossey made his decisions on these grievances after the Claimant had been dismissed and the Tribunal concluded that Mr Crossey felt that there was no need to consider these grievances correctly, as it would have no impact for the Claimant.

[124]The Tribunal were therefore satisfied that these decisions were made by Mr Crossey on the basis that they no longer held consequence for the Claimant. His decision was not on the basis of the Claimant’s disability, but due to the fact that the Claimant had been dismissed.

[125]In relation to the Claimant’s grievance about Ms Price on 24 November 2021, the Tribunal considered it unprofessional that Ms Price should consider a grievance about herself. Her evidence to the Tribunal that she did so as she would be the person with greatest knowledge to consider it, was lacking in professionalism or natural justice. The Tribunal acknowledged that Ms Price considered she was not in the Claimant’s line management (a point contradicted by Mr Crossey’s evidence).

[126]The Tribunal also noted that Ms Price’s assertion that she did not breach the attendance management process, was also incorrect, as the OH report did not address the Claimant’s return to work which had been happening for four weeks prior to Mr Evans’ decision.

[127]Furthermore, the Tribunal found that Ms Price failed, in her decision making, to address the Claimant’s allegation with regard to comments made by her at their meeting on 1 November 2021. Her decision therefore did not address all the Claimant’s issues.

[128]The Tribunal concluded that, on the basis that Ms Price had all the information before her on 21 December 2021, when she made her decision and knowing that the Claimant had been dismissed the previous month, Ms Price did not uphold the Claimant’s grievance for a number of reasons, which included his sickness absence and phased return. However, the Tribunal also found that part of her rationale was to not uphold a grievance against herself. The Tribunal concluded that Ms Price was not independent or open minded about his grievance and was aware of the Claimant’s disability and the impact it had on his ability to work.

[129]The Tribunal considered whether the Respondent’s actions were a proportionate means of achieving a legitimate aim. The aims of the Respondent were set out as;129.1 To facilitate a safe and sustainable return to work,

129.2 To have a stable workforce

129.3 To ensure compliance with the Respondent’s duty of care to its employees,

129.4 To ensure a safe and efficient service.

129.5 To ensure the security of the prison and the safety of members of the public.

[130]The Tribunal concluded that aims 107.1,2 and 3 are legitimate aims of many employers and accepted that these are legitimate. With regard to 107.4 and 5, the Tribunal concluded that these are legitimate aims of a prison service which is publicly funded.

[131]In relation to 6.1.1 the Respondent relied on 107.4 – the Tribunal noted that the Claimant had told Mr Evans that he was not confident of returning to full time duties at the time of their discussion on 27 October 2021. The Claimant told the Tribunal that he would not have been a reliable member of the team at that time, so requested to stay supernumerary.

[132]The Tribunal considered that it cannot be proportionate for an employer to insist that a member of staff who is saying that they don’t feel capable of engaging in their full duties, who is disabled, should be made to do so. The Tribunal took into account the fact that the Claimant had been working successfully through a phased return to work at the time of that conversation and was working positively towards a full return. The Tribunal concluded that the Respondent’s conduct on 27 October was not proportionate.

[133]In relation to 6.1.4 – the Respondent relied on 107.4 – the Tribunal considered that this was linked to 6.1.1 as this also amounted to placing pressure on a member of staff who had indicated that he was not well enough to work on full duties, due to a disability. The Tribunal considered that telling the Claimant to go home was not proportionate, as he had been successfully working a phased return. It was clear that there were lesser steps (such as continuing a phased return) which could have been taken by the Respondent.

[134]In relation to 6.1.5 – the Respondent relied on all the legitimate aims – The Tribunal considered whether the application of the capability procedure was proportionate, and concluded that it was not as the procedure that was followed was in breach of the Respondent’s own policy. The Tribunal considered that there were lesser steps which could have been taken than applying the capability procedure in a discriminatory manner.

[135]In relation to 6.1.6- the Respondent relied on 107.2- 5- the tribunal considered that it was not proportionate to dismiss the Claimant as this had a significant detrimental impact on him. The Respondent could have taken less discriminatory steps, such as extending the phased return, or obtained further medical evidence, before deciding what steps to take.

[136]In relation to 6.1.7 – the Respondent relied on 107.2-5 – the Tribunal considered this a missed opportunity for the Respondent to exercise reasonableness. The Tribunal also noted that it was not proportionate for the Respondent to take four months to bring the matter to an appeal. This could have been handled in a non discriminatory manner.

[137]In relation to 6.1.8 – the Tribunal assumed that the Respondent relied on all the legitimate aims – The Tribunal considered that it was proportionate for the Respondent to dismiss the Claimant’s grievances after his termination as the outcome had no impact on the Claimant. The allegation under 6.1.8 was therefore dismissed. Failure to make Reasonable Adjustments

[138]The Tribunal accepted that the Respondent had Provisions, Criteria, Practices (PCP) of;138.1 Taking longer than 28 days to complete an investigation in the disciplinary process,

138.2 The requirement to attend work.

[139]The Tribunal also accepted that the Claimant’s disability placed him at a substantial disadvantage because his anxiety levels were higher than others, and therefore awaiting the outcome of the disciplinary process placed him in a worse position than others who were subject to the process. The Tribunal noted that all disciplinary issues are stressful, but starting from a vulnerability meant that the Claimant was worse off than others.

[140]The Tribunal also considered the requirement to attend work, which did place the Claimant at a substantial disadvantage as he was more likely to be absent from work than those without such a disability.

[141]The Tribunal considered whether the Respondent ought to have completed the investigation more speedily in order to avert the disadvantage to the Claimant. The Tribunal did not find that there was any evidence to support the suggestion that the Claimant had indicated that he was struggling as a result of the length of time the investigation took, nor that he would benefit from it being speeded up, due to his anxiety. The Claimant’s focus at the time was that he had admitted the allegations in the disciplinary and therefore the investigation did not have to take so long.

[142]The Tribunal also took into account the fact that the Respondent knew of the Claimant’s disability and knew that awaiting the outcome of a disciplinary would make the Claimant anxious, in those circumstances, the Respondent had a duty to alleviate that disadvantage, if reasonable adjustments would achieve that. The Tribunal concluded that speeding up the process would have alleviated the disadvantage to the Claimant.

[143]The Tribunal noted that at the time of the disciplinary process, the Claimant said that Mr Evans was supportive towards him. The Tribunal considered the circumstances at the time, including the fact that this was during the Covid 19 pandemic, when rates of absence from work were high, that the Respondent was awaiting transcripts of interviews and that the OH report did not indicate that speeding up the process would assist the Claimant.

[144]The Tribunal also took into account the fact that there was no evidence to suggest that those relevant to the investigation were absent due to Covid, nor have they suggested other reasons for delay other than awaiting transcripts. The Tribunal did not consider that the Respondent’s reasons could justify such a lengthy delay, particularly in the absence of any evidence showing that the Respondent had chased the production of the transcripts or keeping the Claimant informed about the reasons for delay.

[145]The Tribunal noted that Mr Crossey allowed extensions to the timescales without any reasoning or apparent scrutiny. The Respondent could and should have put greater resources into completing the procedure, particularly in light of the Claimant’s anxiety and absence, together with the fact that the Claimant had admitted his mistake, it could have been concluded more swiftly.

[146]The Tribunal particularly noted the EAT in Southampton City College v Randall

[2006] IRLR 18

, where it was said that a tribunal may find a particular step to be a reasonable adjustment, even in the absence of evidence that the Claimant had asked for it at the time. The Tribunal therefore concluded that the Respondent failed to make a reasonable adjustment by not speeding up the disciplinary process.

[147]The Respondent accepted that it applied the requirement to attend work and that this placed the Claimant at a disadvantage. The Respondent, by way of the evidence of its witnesses, accepted that it was reasonable to allow the Claimant a phased return. Mr Evans had initially agreed to allow 12 weeks, when he first discussed it with the Claimant.

[148]The Tribunal considered whether it was reasonable for the Respondent to have allowed the Claimant’s desired 12 week return, particularly in light of the evidence provided by Dr Palka. The Tribunal considered that Dr Palka’s evidence was only part of the consideration which the Respondent needed to make. The Respondent also needed to listen to the Claimant, who was indicating that he was improving and was proposing at weeks 5 and 6 of the process to increase his hours of work. The Respondent therefore had evidence of the fact that the phased return was successful, thus far. They also were aware that the Claimant and Mr Evans were on good terms, but the subsequent actions of Mr Evans to ignore all that they had agreed and to change the parameters, were not reasonable actions.

[149]The Respondent failed to consider that the OH report was already out of date when it was received and that the discussion of Mr Evans and the Claimant was the more up to date and accurate evidence of the Claimant’s ability. The Respondent ignored this and failed to adjust the return to work programme to suit the needs of the Claimant. Essentially the Respondent was making a reasonable adjustment and then stopped it. The adjustment they were making was clearly alleviating the disadvantage and they chose to stop making it. They therefore failed to make a reasonable adjustment from 28 October 2021. Trade Union Detriment/Dismissal

[150]The Tribunal considered that the same time limits applied to the allegations listed at 9.2.1 to 9.2.7 of the list of issues. For the same reasons as set out above in relation to the unfair dismissal claim, these matters are out of time and dismissed.

[151]In relation to allegations 9.2.8 and 9.2.9, the failure to uphold the appeal against dismissal and grievances occurred on 22 February 2022 and are therefore the claims in relation to these were issued within the three month time limit and could be considered by the Tribunal.

[152]The Tribunal were satisfied that the Claimant did take part in trade union activities. This was referenced in evidence on behalf of both the parties. Ms Price referred to the Claimant’s activities as a union representative for another employee in her evidence (allegation 9.2.4) and was therefore aware of the Claimant’s work for the union.

[153]The Tribunal considered whether preventing or deterring the Claimant’s trade union activity was a reason why his appeal against dismissal was turned down. For the reasons set out above in relation to disability discrimination, the Tribunal concluded that the reasons for his dismissal were his absence from work and inability to return to work as the Respondent demanded. The Tribunal noted that during the grievance appeal, the Claimant mentioned the comment made by Ms Price with regard to union activity. However, this was not referenced in the appeal outcome by Mr Cartwright. Furthermore, the appeal was partially upheld by Mr Cartwright who increased the compensation to 100% and therefore the Tribunal concluded that there was not a total failure to uphold the appeal, nor was there sufficient evidence to infer that the Claimant’s trade union activity played any part in the decision making.

[154]In relation to the failure to uphold grievances about dismissal and treatment as a breach of policy, the Tribunal found there to be no mention in the grievance appeal outcome about the Claimant’s status as trade union representative. However, the Tribunal were alive to the fact that some of the appeals were carried out by Ms Price. The Tribunal considered that the self interest of Ms Price was likely to be the paramount reason for the failure to uphold the grievances and that there was insufficient evidence from which it could be inferred that the trade union activity was a reason for the denial of the appeal.

[155]The Tribunal therefore considered to that the allegations relating to trade union activity should be dismissed. Approved by Employment Judge Cowen Date: 23 February 2025 N Gotecha Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/