Mr M Razzaq v The Secretary of State for Justice: 3305321/2020

EMPLOYMENT TRIBUNALS

Case No 3305321/2020

Between

Mr M RazzaqClaimant

The Secretary of State for JusticeRespondent

Before

Employment Judge Eeley

In person for claimant

Ms R Kennedy (instructed by counsel) for respondent

Date 29 April 2025

JUDGMENT

[1]The claimant was disabled within the meaning of the Equality Act 2010 during the period October 2019 to February 2020 by reason of physical and mental impairments consisting of physical injury to the jaw, post-concussion syndrome, vertigo, mixed anxiety and depression/PTSD.

[2]The claimant has permission to amend his claim to add claims of race and sex discrimination in line with his draft amended particulars of complaint dated 18th March 2021.

[1]The following claims are struck out on the basis that they have not been actively pursued: 1.1. Any claim other than a claim of unlawful discrimination. 1.2. Any claim not described in the claimant’s “further information” or under the heading “harassment” in his amended ET1 (dated 18 March 2021).

[2]The claim of harassment described at para 23 of the claimant’s amended ET1 (dated 18 March 2021) is struck out either on the basis that it has not been actively pursued or on the basis that it has no reasonable prospect of success.

[3]The protected characteristic relied upon for the purposes of any claim of harassment is disability.

[4]The following claims described in the “further information” are struck out on the basis that they have no reasonable prospect of success: 4.1. The claim described at para 6, 4.2. The claim described at para 14, and 4.3. Any reference to race or sex discrimination in paragraphs 17, 18, 19, 20, 22, 23 (23 being in respect of reasonable adjustments only).

REASONS

[1]These are the written reasons for the tribunal’s judgment of 1 March 2022, which was sent to the parties on 18 March 2022. The claimant made a request for written reasons on 27 March 2022 and that request was referred to me on 6 May 2022. THE APPLICATION

[2]This hearing was listed to address an application made by the respondent to strike out or for a deposit order in respect of elements of the claim. The claims at paragraph 8

[3]I will first address the question of whether the further information fully addresses the claimant’s claim and if not, what I’m going to do about it.

[4]The claimant's claim was originally case managed by Employment Judge Ord. During the hearing before Employment Judge Ord (on 24 March 2021) the claimant withdrew claims of unfair dismissal, automatically unfair dismissal and wrongful dismissal (also called breach of contract). This was on the basis that he had been reinstated to his role.

[5]Employment Judge Ord identified that there were claims of disability discrimination that would then be proceeding, but did not identify what the claimant now says are two claims to be found at paragraph 8 of his original Page 1 of 4 claim form: a claim of whistleblowing detriment and breach of contract. In both cases, these relate to his transfer from one part of the prison to another.

[6]Employment Judge Ord’s order included a provision that if there is anything wrong with his description of the claim, the parties should identify this within 14 days. The claimant did not do so, and when the case went before Employment Judge Eeley (on 4 August 2021) she considered that she was addressing a claim that was one of discrimination only: the disability discrimination claim as originally formulated by the claimant along with amendments he sought to add to include race and sex discrimination. There is no mention in Employment Judge Eeley’s order of any claims other than discrimination claims.

[7]The question is what I do with the whistleblowing detriment and the breach of contract claims in relation to the transfer between two parts of the prison. I accept that they are arguably described by the claimant in his claim form at paragraph 8 and have not been expressly dismissed or withdrawn. However, they were not identified by the claimant in front of either Employment Judge Ord or Employment Judge Eeley and the claimant did not respond when Employment Judge Ord ordered the parties to correct any misunderstanding of the claim within 14 days.

[8]It seems to me that in those circumstances I should strike out those two elements of the claim on the basis that they were not actively pursued by the claimant, as we have had two previous hearings at which they were not identified by him as being claims that he wanted to bring, and they were not identified by him as being missing from Employment Judge Ord’s order. Harassment

[9]There is a further matter that arises as regards claims of harassment. There are claims of harassment set out in the original claim, and in the amended claim form. The claimant has not specifically related any of those harassment claims to a protected characteristic, but they seem to relate to his disability. The order made by Employment Judge Eeley required the claimant to set out all his complaints of discrimination. A claim of harassment is a claim of discrimination, although that may not be obvious to the claimant who is not a trained lawyer. I also note that the way in which Employment Judge Eeley set out her requirement for further information is such as to address elements of discrimination other than harassment or victimisation (for the avoidance of doubt, there is no victimisation claim).

[10]I am left with the difficult question of what I do with the harassment claims that were set out in the amended ET3. They were not addressed by Employment Judge Eeley. They were not specifically addressed by Employment Judge Ord, although because they would fall within the broad heading of complaints of disability discrimination they do not have the same difficulties as the claims at paragraph 8. Page 2 of 4

[11]This is a point I have found difficult to decide but I have decided that the complaints of harassment described by the claimant in his amended claim form should be permitted to continue. My reason for that is that Employment Judge Eeley’s order for further information is specifically directed at complaints of discrimination other than complaints of harassment, but the complaints of harassment are clearly set out in the claimant's claim form, and the points I have made about the claimant attempting to correct Employment Judge Ord’s understanding of his claims do not apply in respect of the harassment claims.

[12]There is one proviso to that, which is that Employment Judge Eeley found that the claimant was disabled in the period October 2020 to February 2021. She says nothing about any disability outside that period and it seems that she was not asked to make findings of disability for a period early than earlier than October 2020. In those circumstances I consider that the claimant’s claims of harassment prior to October 2020 cannot proceed. That only relates to the very first complaint of harassment, which is what was said to him immediately following the assault he suffered.

[13]It might be said that that same analysis would apply to any complaints of harassment after February 2021, but I do not think I can say that because we know that there is now a second claim in the offing, and ultimately the tribunal may have to decide (if it is not conceded) whether the claimant was disabled after February 2021. I note also the one aspect of harassment was added in by the amendment and this allegation post-dates February 2021. “Further information”

[14]That then brings me on to the further information document and a criticism that is made by the respondent of that in their application to strike out parts of it. I agree that there are elements of this further information document that clearly are not legally sustainable. I include in that the claimant's comparison of his position and to that of a pregnant woman. That’s simply not going to work either as a matter of indirect discrimination or as a matter of direct discrimination. I also have in mind the claimant’s claims of reasonable adjustments discrimination based on sex and race. Those are not sustainable claims. There is mention in the strike out application of claims of discrimination arising from disability but as far as I can see there are no claims of discrimination arising from a disability.

[15]There is one other point which I will strike out, not as a matter of law, but simply on the basis that, as the respondent puts it, that there are no facts put forward in support of this contention and no comparators are named. That is the allegation concerning the delay in the dismissal letter. It is agreed that the dismissal letter was late, but I simply can't see anything in what the claimant says in his further information from which the tribunal could conclude that somebody who was not disabled but was in the same position as him would have been treated any differently. Page 3 of 4 Other matters

[16]There was more to the respondent’s application to strike out than this, but it seems to me that, broadly speaking, much of this is tangled up with the question of what the policy was, why a warning wasn't given and why the respondent moved immediately to dismissal. That seems to me to be a complicated subject that requires evidence and ventilation before a full hearing. As I understand it, the application is set out on the basis that the claimant was complaining that he been given a warning when in fact he hadn’t been given a warning, but it rather seems that the claimant’s claim complaint is that he hadn’t been given a warning and that instead he was dismissed. That requires some untangling but seems to me I am not in a position to strike that out or impose a deposit order. There are various other points that are made in relation to policies, particularly as regards absence. Those are going to have to be heard at a full hearing where a tribunal can consider exactly what policies were or weren’t in force and how they were or weren’t applied to the claimant.

The law

[21]Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a 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.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.” Comparators 9. Section 23 of the Eqaulity Act 2010 provides as follows:- “23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, [F119 or 19A] there must be no material difference between the circumstances relating to each case. (2) The circumstances relating to a case include a person's abilities if— (a) on a comparison for the purposes of section 13, the protected characteristic is disability; (b) on a comparison for the purposes of section 14, one of the protected characteristics in the combination is disability. (3) If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is a civil partner while another is married F2... is not a material difference between the circumstances relating to each case.

(4) If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is married to[F4, or the civil partner of,] a person of the same sex while another is married to[F4, or the civil partner of,] a person of the opposite sex is not a material difference between the circumstances relating to each case.]” Harassment 10. Section 26 of the Equality Act provides:- “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. (2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b). (3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (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.

(5) The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.” Victimisation 11. Section 7 of the Equality Act 2010 provides as follows:- “27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.” The evidence 12. We had a main hearing bundle running to 1542 pages. In addition there was a supplementary bundle of 54 pages. 13. The respondent provided us with a chronology and a cast list. 14. We had witness statements and heard evidence from the following: (i) The claimant (an incomplete witness statement and the contents of his claims forms and further and better particulars confirmed on oath as true to the best of his knowledge and belief). (ii) Mr Fahad Durrani, a Prison Officer colleague at the time. (iii) Ms Emma Laws, Head of Residents and Safety, Young Adults, and the line manager of Custodial Manager West at the time. (iv) Mr Andrew Lloyd, Prison Officer, Mallard Unit. (v) Governor Emily Martin, Governing Governor. (vi) Ms Zhane McColgan, Prison Officer, Mallard Unit. (vii) Mr Mark Garbett, Custodial Manager until early March 2021 and the claimant’s line manager. (viii) Mr Nicholas West, Custodial Manager and the claimant’s line manager from April 2021 until October 2021. (ix) Ms Marisa Teixeira, Prison Officer, Mallard Unit. (x) Mr Jonathan French, Prison Group Director for the Youth Custody Service. (xi) Mr David Niker, Custodial Manager and the claimant’s line manager from 1 October 2020 until March 2021. (xii) Mr Paul Barney, Head of Function and Mr Mark Garbett’s line manager from August 2019 until September 2020. Thereafter, he was Mr Niker’s and Mr West’s manager. (xiii) Mr Dean Donoghue, Deputy Governor. 15. Mr Tibbets provided us with written closing submissions. The claimant’s disability/disabilities 16. On 4 August 2021 Employment Judge Eeley issued a judgment in the following terms: “The claimant was disabled within the meaning of the Equality Act 2010 during the period October 2019 to February 2020 by reason of physical and mental impairments consisting of physical injury to the jaw, post-concussion syndrome, vertigo, mixed anxiety and depression/PTSD”. 17. Due to the judgment being given orally and no written reasons being requested, unfortunately we do not have the basis for that judgment. 18. The respondent has accepted that the claimant was disabled within the meaning of the Equality Act 2010 at all material times up until he was transferred to the Home Office on 13 June 2022. 19. We do not know why Employment Judge Eeley confined her judgment to the period October 2019 to February 2020. It is a period of only five months. We do not know how Employment Judge Eeley approached the issue of whether the disabilities had lasted or were likely to last 12 months. The onset of the disabilities appears to have been the assault on the claimant on 22 June 2019 which still meant that by February 2020 12 months had not elapsed. 20. Be that as it may, we have a copy of the claimant’s impact statement and GP records and assume that the claimant’s evidence was accepted by Employment Judge Eeley. We take it that the claimant was disabled for the purposes of this case from October 2019 until 13 June 2022. 21. From the claimant’s impact statement we take it that the effect of the claimant’s disabilities upon his ability to undertake normal day to day activities is as follows: (i) He has pains in his lower jaw left side and in three teeth, pain in his temple area and left cheek which swells up on some days. The pain is continuous, and he has to take a range of painkillers. The pain puts him off doing his work or activity and hinders his concentration. (ii) His eyesight has weakened. (iii) He has dizzy spells or a complete blackout which makes it hard to stand and his wife has to keep an eye on him. (iv) At work when his colleagues are talking he feels like he is not there and he tries to write things down in case he forgets them. (v) He has difficulty concentrating on anything as it causes pain in his head and he feels tired and loses energy. (vi) He does not drive for long periods and is fearful on public transport. (vii) He suffers loss of sleep and nightmares. (viii) He does not play with his children due to pain and loss of concentration and interest and gets annoyed easily. (ix) He finds it difficult to watch TV or concentrate on playing games on an iPad or phone. (x) His relationship with his wife and children has changed as he cannot share his feelings. (xi) He has mood swings. (xii) He cannot cook as he can’t concentrate or feel innovative or focus. (xiii) He does not socialise and wants to stay alone as he does not trust anyone and cannot share anything with anyone. (xiv) He has given up cricket and badminton. (xv) He no longer walks in the evening with his wife as he does not feel safe. (xvi) He gets bored and tired quickly and easily annoyed. (xvii) He experiences pain when praying. (xviii) He no longer takes his children to school.

The evidence

[22]The impact statement is dated 19 May 2021. However, on the basis that the claimant maintains that he has at all material times remained disabled within the meaning of the Equality Act 2010, so we take the effect on his ability to undertake day to day activities as continuing in the same way.

[23]In addition, we have noted that the claimant’s claim in relation to failure to make reasonable adjustments is put on the following basis. The PCP relied upon is “The requirement to work on prisoner facing or operational duties.” The substantial disadvantage that it is alleged that that PCP outs the claimant to is as follows:- “The claimant experiencing flashbacks to the prior assault and/or experiencing anxiety/trigger PTSD.”

[24]In our judgment, this issue alone would probably preclude the claimant from working as a prison officer on a long term basis. By definition, a prison officer works on non-prisoner facing or operational duties. The non-prisoner facing, or operational duties identified were for lower Grade employees paid much less than prison officers. Whilst such roles were available for prison officers on a temporary basis to facilitate a return to work, they were not a long term option.

The facts

[25]The claimant was employed by the respondent on 3 September 2018 as a Prison Officer, Band 3.

[26]The claimant’s contract of employment contained the following: “4. Probation You will be on probation for a period of 12 months. The purpose of this probationary period is to test your suitability for permanent appointment. … Your attendance (including sick absence record) and conduct must have been satisfactory throughout your probationary period.” “6. Pay & Hours You will be paid monthly in arrears by credit transfer directly into your bank account. Your annual basic pay will be based on a 37 (net) hour working week, excluding meal breaks, which are unpaid.” “7. Working hours You are required to work shifts, including night shifts. … You may on occasion be asked to work more than your average weekly hours because of:  An operational emergency.  The need to ensure minimum staffing levels are maintained.  Unavoidable or unforeseen operational reasons such as delay in returning from external duty. Hours worked in this way will be repaid as soon as possible through arrangements for “Time off in lieu” described in Bulletin 8.” “10. Sick Absence You may be entitled to sick pay subject to length of service as set out in the table below, to a maximum of 10 months sick pay in a four year rolling period. Length in civil service Entitlement 2nd year of service 2 months full pay & 2 months half pay 3rd year of service 3 months full pay & 3 months half pay”

[27]The respondent has a Staff Grievance Policy. This includes: “ 3 Stage 1 – Formal procedure … 3.5 The manager must invite the member of staff to a meeting to discuss the grievance and remind them of their right to be accompanied. This meeting must be held on a mutually convenient date within 20 working days of receipt of the written complaint by the manager. … 3.7 Following the meeting, the manager must inform the member of staff in writing of their response to the grievance and set out what action, if any, they intend to take to resolve the grievance. The manager must notify the member of staff of their right and route of appeal against the manager’s decision. Wherever possible, this should be sent in writing to the member of staff within 10 working days of the meeting. 4. Stage 2 Appeal 4.10 Wherever possible, the meeting should be arranged on a mutually convenient date within 20 working days of receipt of the notification of intention to appeal. … 4.12 Wherever possible, the manager should inform the member of staff of their conclusions in writing within 10 working days of the appeal meeting setting out where applicable, what action they intend to take to resolve the grievance. If it is not possible to reply within this time the member of staff should be given an explanation for the delay including when a reply can be expected.”

[28]The respondent has a policy on employee induction and probationary periods. The one produced to us references an expiry date of 27 March 2017. In our judgment that is of no significance. In the absence of any replacement, in our judgment, that policy stood to be considered as continuing. In any event, it stands as a yardstick by which the reasonableness of the respondent’s actions as an employer may subsequently be judged.

[29]The policy provides: “Extension of probation period 3.32 The Governor/Head of Headquarters Group may decide, in exceptional circumstances, that a probationary period should be extended beyond 12 months. This should be for no longer than 6 months. If the Governor/Head of Headquarters Group so decides they must write to the employee setting out the reasons for the extension and length of extension….”

[30]The respondent has an Attendance Management Policy. This has a number of parts. There is a Managing Unsatisfactory Attendance section. This part includes: “When it is not appropriate for a written improvement warning to be given … 2.54 A warning must not be given if the sickness absence is due to an injury or assault or disease contracted in the course of the employee’s duties. …If injury benefit is awarded, the department must provide up to a maximum of six months injury absence on full pay before normal sick pay arrangements are applied. Any subsequent sickness absence will be treated in the same way as other sickness absences.”

[31]A separate section deals with “Continuous absence.” This provides for informal reviews followed by formal attendance review meetings (“FARM” meetings). The first FARM meeting must take place when sickness absence reaches 28 consecutive calendar days. Thereafter, further FARM meetings must be held when an employee has been absent for three months and then every three months thereafter as a minimum.

[32]The policy provides:- “2.88 If a return to work is not likely within a reasonable timescale and the absence cannot continue to be supported, consideration should be given as to whether the employee should be referred for consideration for ill-health retirement or whether downgrade/regrade or dismissal is appropriate.” Further: “Decision is dismissal 2.98 The decision manager must dismiss the employee if all of the following apply:  The business can no longer support the employee’s level of sickness absence;  Downgrade or regrade is not appropriate without employee’s consent;  Where appropriate, there are no further reasonable adjustments which can be made which will help the employee return to satisfactory attendance and all other considerations have been exhausted;  Occupational Health advice from an OHP has been received within the last three months, unless the employee withheld their consent to an Occupational Health referral;  An application for ill-health retirement would not be appropriate or has been refused. “

[33]The policy also provides : “Arrangements for staff on probationary period 2.137 Members of staff on their probationary period who reach the sickness absence monitoring trigger of four working days absence in a six month period, do not need to be progressed through all three warning stages of the unsatisfactory attendance process. … 2.140 Once the member of staff has been confirmed in post, they are no longer subject to the special arrangements applying to probationers. Any warnings issued are no longer valid; however, absences incurred during the previous 12 months will count for the purpose of determining new unsatisfactory attendance trigger point breaches.”

[34]Further, the policy provides as follows:- “Sick leave excusal arrangements…” 2.141 Someone who contracts a disease or is injured or assaulted whilst on duty may qualify for sick leave excusal. If excusal is granted all sick leave, up to a maximum of six months (182 calendar days), relating to that injury, assault or disease is removed from reckoning against the individual’s sick leave record for sick pay purposes and excluded from consideration under the unsatisfactory attendance procedures.” And “Assault: 2.146 Where a member of staff has been assaulted on duty, or when not on duty but clearly connected with duty, remains sick beyond the normal six month excusal period they remain entitled to sick leave excusal payments for the duration of their assault related absence while they remain in service.”

[35]The respondent has a Special Leave Policy. This provides as follows:- “Attendance in court as a witness in an official capacity 2.24 An employee who is called upon in his/her official capacity to give evidence in criminal or civil proceedings, in a coroner’s court, or to attend another outside body as a witness or in some other capacity, is regarded as being on official duty. In addition to normal pay he/she is entitled to travelling and subsistence allowances and payment for travelling time. Any sums recovered from the outside sources are repayable to the Service.” “Attendance in court as a witness in a private capacity 2.25 An employee, who in his/her private capacity appears as a witness in a criminal or coroner’s court, may be granted special leave with pay and may retain any travelling and subsistence allowances received from the court. … an employee appearing as a witness in civil proceedings in a private capacity may be granted special leave without pay or annual leave. He/she may retain any travelling and subsistence allowances received from the court and, where special leave without pay has been given, any compensation for loss of earnings or other sums payable by the court or any other party to the action.”

[36]The Feltham Young Offender Institution is split into two parts. Feltham A is a young offender institution for boys aged 15-18. Feltham B is a category C prison for men aged 18-24. Feltham B has 20 individual residential units, all named after birds.

[37]The claimant was initially assigned to the Nightingale Unit in Feltham B.

[38]Unfortunately, on 22 June 2019 the claimant was assaulted and injured by a prisoner whilst working in Feltham A. The claimant’s disabilities have arisen as a consequence of that assault.

[39]We have been shown three instances of performance issues being raised prior to the onset of the claimant’s disability. On 23 January 2019, the claimant was sent an email by Mark Garbett as follows:- “Dear Mr Razzaq can you please explain why security have observed you leaving a prisoner unescorted on 22.1.19 to be advised by another officer there was one left at the gate when being escorted to education?”

[40]In addition, we have an intelligence report dated 25 January 2019 which contains a description of an incident involving a potentially violent inmate and the intelligence assessment was:- “Intel suggests officer Muhammad Razzaq did not assist a colleague during an incident.”

[41]It is fair to say that the claimant disputed any culpability arising out of both incidents and had an explanation. Nevertheless, it does illustrate to us that concerns were raised as to the claimant’s abilities as a Prison Officer prior to him becoming disabled.

[42]In addition, and perhaps more seriously, we have an email dated 10 April 2019 from Mr Ronald MacAulay, Governor of Security, to Mark Garbett which states:- “Can you let me know how officer Razzaq is progressing through his probation as I have heard rumblings about his competence and abilities as an officer…”

[43]To this Mark Garbett replied:- “I haven’t been given any specifics all I have heard is that some of his peers that he trained with are surprised he hasn’t been dismissed yet. Also I think there may have been some issue around his C & R [Control and Restraint] and potentially hesitance to get involved with using C & R.”

[44]In our judgment, in a workplace such as a prison, it is only to be expected that colleagues would keep an eye on each other and that line managers would be assessing new recruits on probation in order to ensure they were up to the job and, in particular, could be trusted if an incident arose that threatened the personal safety of staff. This was obviously at a time prior to the claimant becoming disabled. However, we have approached subsequent workplace comments about competence in the light of this observation.

[45]In May 2019, the claimant was moved from the Nightingale Unit to the Mallard Unit. A letter dated 22 May 2019 explaining the move to the claimant sets out that the Nightingale Unit had a high proportion of new staff which made mentoring challenging and that it was hoped that with more experienced staff on the Mallard Unit it would strengthen his development. The claimant disputes that that was the real reason he was transferred and relates it to a whistleblowing event concerning another prison officer which caused Mr Garbett to move him. We accept the respondent’s evidence that the claimant was moved for operational reasons to support his progression through his probation but observe that, if the motivation was due to the fact that the claimant had reported an incident involving another prison officer, then that fundamentally undermines his case that subsequent action was taken against him on the grounds of his disability.

[46]As recited above, the claimant was assaulted in Feltham A (whilst on temporary secondment) on 22 June 2019. The claimant was punched multiple times in the face. The claimant attended the Ashford Walk In Centre at Ashford Hospital. He was discharged with no follow up and taken home. The claimant attended his GP on 24 June 2019, was prescribed Co-codamol and given a Med 3 fit note signing him not fit for work for 28 days because of “been attacked by a prisoner and feels unwell”.

[47]The claimant was referred to Occupational Health and was seen on 11 July 2019. It was recorded that he had suffered trauma and soft tissue injury and was still feeling dizzy and experiencing sleep problems. The current outlook was:- “It is hoped that Mr Razzaq’s symptoms will improve over the next four-six weeks with the appropriate intervention of EMDR [Eye Movement Desensitisation and Reprocessing] therapy.”

[48]At that stage, the advice was that the claimant’s condition/impairment was unlikely to be considered a disability because it had not lasted more than 12 months and was unlikely to last longer than 12 months.

[49]On 22 July 2019, the claimant was signed off work for a further month due to “post-concussion syndrome”.

[50]The claimant applied for leave excusal which was granted on 7 August 2019.

[51]It is clear that the claimant was provided with EMDR sessions and had a course of six sessions on 19 and 24 July, 6 and 18 September and 2 and 16 October 2019.

[52]Mr Garbett and SO Clarke from the Wellbeing Team visited the claimant at home on 27 August 2019. We have a follow up letter of the same date. The claimant confirmed he would be attending to receive EMDR. The following is stated:- “Your current sick certificate runs out on 9.9.12 [sic: should be 19] and you stated you expect to return to work that day, we agreed it would be helpful on both counts for you to return on restricted duties for 2 weeks. Week one 4 hours per day and week two your normal shifts.”

[53]However, the claimant obtained a further Med 3 fit note signing him not fit for work until 20 September 2019 because of “Ongoing vertigo/dizzy spells”.

[54]The claimant was seen by Occupational Health on 12 September 2019 and the report confirms that he was “not fit to return to work at present due to ongoing physical and psychological symptoms following the history for work related assault on 22 June”. The report states:- “He tells me the PAMAssist counsellor is due to start EMDR treatment soon (he was referred for EMDR by our advisor at the previous OH assessment on 11 July.)”.

[55]We have noted an email dated 24 September 2019 from Mark Garbett to Collette Whitby (of HR) which states:- “OHA’s ongoing the officer is in probation, and has been extended due to long term absence. He is currently having EMDR treatment and next OH set for 4th October I have requested FARM with Governor Emily Martin but as yet no date set.”

[56]Clearly the extension of the claimant’s probation period was being discussed at that stage by his line manager.

[57]Mark Garbett had a further meeting with the claimant on 25 September 2019. This was an informal attendance and review meeting. The follow up letter concluded:- “The previous letter dated 27.8.19 confirmed any return to work details and these still stand if you return immediately. Secondly I am confirming I have offered you the opportunity to come back immediately and work in the gate house, post room or escorting just to get you back to work with no prisoner contact, however you said you need to discuss this with your doctor.”

[58]In a letter dated 28 September 2019 Governor Martin invited the claimant to a FARM meeting on 5 October. The letter begins:- “Your manager Mark Garbett wrote to you on 25 September about your level of sickness absence. Mark advised you I would consider whether you should be dismissed or regraded, or whether your sickness absence level should continue to be supported at this time.”

[59]Governor Martin held the FARM meeting on 15 October 2019. We have various drafts of the outcome letter with different dates in. The relevant one appears to be dated 27 November 2019 which states:- “Your Employment began on 18 September 2018 and your absence commenced on 23 June 2019 following an assault on you by a prisoner. On account of your ongoing absence I extended your probationary period by 4.5 months which would mean that it ran until 2 February 2020.”

[60]In actual fact the claimant’s employment began on 3 September 2018 and so his 12 month probationary period would have expired on 2 September 2019. Be that as it may, Governor Martin clearly extended the claimant’s probation as of 15 October 2019 as four and a half months would expire on or about 2 February 2020. Issue 4.1.3 alleges that on 15 October 2019 CM Garbett extended the claimant’s probation to four and a half months. We find that it was actually Governor Martin who formally extended the claimant’s probation by four and a half months to 2 February 2020 (in actual fact it was an extension of five months). To that extent we find issue 4.1.3 proved.

[61]No direct comparators are relied upon and consequently we have taken a hypothetical comparator, namely a prison officer who had had a period of absence during his/her initial probation period. In our judgment any such comparator would have been treated exactly the same. Consequently, we find that this was not less favourable treatment. The alternative to an extension of the probation period in circumstances where an employee has not satisfactorily completed their probation period would be dismissal.

[62]As already recorded, the claimant had six sessions of EMDR treatment, the final session being on 16 October 2019. On 16 October 2019 PAM Assist submitted a request for additional sessions. This states:- “It would be helpful to see him for a further six sessions to enable him to process any triggers that should arise to enable him to make a smooth transition back into work.”

[63]That document suggests that the request was sent to the claimant’s line manager, Mark Garbett, as his email address is quoted.

[64]Mark Garbett gave us evidence that he would have forwarded that email request to OH and HR. Mark Garbett’s evidence was that the decision whether or not to provide EMDR to the claimant was not his and that he was not involved with the authorisation of any sessions. We accept Mark Garbett’s evidence on that point.

[65]No evidence has been placed before us as to what happened to the request for further EMDR once it was referred to Occupational Health. An Occupational Health report dated 19 November 2019 states as follows:- “Mr Razzaq told me that he has completed a course of nine sessions of EMDR a couple of weeks ago and that the therapy has significantly helped his psychological symptoms. He reports some residual sleep disturbance and bad dreams, however significantly less frequent now. I understand from Mr Razzaq that he is waiting to have a few more sessions of EMDR approved.”

[66]The documentation we have indicates that the six sessions of EMDR ended on 16 October 2019. If the contents of the Occupational Health report referring to nine session is accurate, then the claimant clearly had three further sessions in late October/early November 2019.

[67]Be that as it may, an Occupational Health report dated 23 January 2020 records as follows:- “Mr Razzaq has recently started a further course of trauma therapy, EMDR. He says his first session was yesterday and he says this therapy was arranged through the prison service.”

[68]Issue 4.1.2 alleges that in October 2019 CM Garbett stopped the claimant’s EMDR sessions for a period of three months. We find that CM Garbett did not stop the claimant’s EMDR sessions for a period of three months or at all. We find that a request was made for a further six sessions on 16 October 2019. The claimant may or may not have had three further sessions in late October/early November 2019. In late November he was awaiting approval for more sessions which clearly was forthcoming as they resumed on 22 January 2020. In the circumstances we find allegation 4.1.2 not proved.

[69]Issue 3.1.1 alleges that in or around December 2019 Custodial Manager Garbett and Rebecca Clarke attended the claimant’s home and informed the claimant that Occupational Health merely notifies the respondent of what the claimant tells his GP. It is the claimant’s case that that comment implied that the claimant was making up the information or giving false information. We have follow-up letters evidencing visits to the claimant’s home by CM Garbett and Rebecca Clarke on 27 August and 4 December 2019. In oral evidence the claimant said it could have been either of those occasions.

[70]Mark Garbett’s evidence was that these were informal meetings under the Sickness Absence Policy designed to facilitate the claimant’s return to work. He recalls it being a friendly and supportive meeting and has no specific recollection of the comments alleged. We find that any comment along the lines that Occupational Health reports merely reiterate what the claimant may have told his GP to be an entirely innocuous comment. It is broadly accurate and, in our judgment, does not carry the implication the claimant alleges, namely that he was making up symptoms to his GP. Consequently, we are prepared to find that the comment was made and allegation 3.1.1 is proved. We find that it was not unwanted conduct. We find that even if it was unwanted conduct it did not relate to the protected characteristic of disability. At that stage the claimant had been off sick for only a few months after the assault. Further, we find that Mark Garbett probably did not know that the claimant was disabled. The Occupational Health report on 19 November 2019 stated that it was unlikely that the claimant would be considered to have a disability. It was only in the 29 January 2020 Occupational Health report that Occupational Health indicated that he should be considered as disabled under the Equality Act. Further, we find that the nature of the comment fell far short objectively, of having the prescribed effects under sub paragraph (1)(b).

[71]Issue 8.1.2 alleges that in late 2019 CM Garbett, CM Niker, CM West, Governor Barney and Governor Donoghue failed to give time off for EMDR sessions. We have cross referenced this allegation with paragraph 12 of the particulars of claim in the second claim and it is unclear to us where the date has come from. In late 2019 CM Niker and CM West were not the claimant’s line managers and Governor Barney and Governor Donoghue would not have been involved in decisions as to whether or not the claimant could take time off for EMDR sessions. However, the fact is that, from 22 June 2019 until his dismissal on 24 January 2020, the claimant was off sick continuously. Consequently, there can be no question of the claimant being refused time off for EMDR sessions. He could have gone at any time. Consequently, we find issue 8.1.2 not proved.

[72]That said, and on the basis that the date may be incorrect, we go on to consider the whole issue of time off for EMDR sessions. A number of the respondent’s witnesses gave evidence that the respondent has a policy whereby employees are encouraged to book medical treatment sessions either in their own time or towards the beginning or end of their shifts. If towards the beginning or end of their shifts then the evidence was that the shift times could be altered to accommodate the appointment.

[73]In his evidence Mark Garbett accepts that he may have queried the claimant’s requests for time off work due to the policy. In particular, it appears that the claimant was having this therapy in Tring which involved over an hours travel each way. However, Mark Garbett’s evidence was that he never refused the claimant time off work, and we accept that evidence. We have examples of where the claimant did take time off work for EMDR sessions. In an email dated 2 July 2020 the claimant informed Mark Garbett that he could not attend on that day due to an Occupational Health Assist appointment at 13.00 and an EMDR session at 16.00. We have an email dated 16 July 2020 from the claimant to Mark Garbett stating, “I couldn’t find you yesterday to inform that today I have EMDR session”.

[74]In an email dated 23 July 2020 from the claimant to Mark Garbett, the claimant complained, amongst other things, about being told that he should not book EMDR sessions while he was on duty and that consequently he had cancelled the EMDR session for that week. Mark Garbett replied on 31 July 2020 as follows:- “Please may I suggest you do not cancel any EMDR sessions as you have already mentioned these are very important and as you have previously stated are very helpful in aiding your long term recovery.”

[75]Further, we have an email dated 15 September 2020 from the claimant to Mark Garbett stating:- “I have EMDR session (as you have asked the timing) on 24-09-2020 at 09.30am and I will confirm the next session when I have confirmation of the date and time from the person.”

[76]Further emails of the 24 September 2020, 10 October 2020 and 17 February 2022 all confirm the claimant informing the respondent of his EMDR sessions and being allowed time off for them.

[77]Consequently, we find that at no time was the claimant not given time off by his line managers for EMDR sessions. As such, that part of issue 8.1.4 relating to time off for EMDR session we find not proved.

[78]Following the FARM meeting on 15 October 2019 the outcome letter dated 27 November 2019 recites as follows:- “We discussed the Occupational Health reports and I observed that the most recent (dated 4 October 2019) states that you continue to experience severe symptoms associated with post-concussion syndrome. Mark Garbett had offered some alternative temporary duties when he last met with you on 25 September 2019 (such as working in the gate house, post room or escorting) which may have enabled an earlier gradual return to work. However, the Occupational Health Physician stated in his report that you are unfit for work at present and that there are no adjustments at present which would allow a return to work. … During our meeting, I asked you for your view on your current health situation and whether or not you felt you would be able (and wanted to) return to your Prison Officer role. You confirmed that you did want to return to role… …you felt you might then be fit to return to work just a couple of weeks afterwards. I explained to you that as you have already been absent for approximately four months, I was in a position where I needed to consider whether or not we could sustain the ongoing absence. In making this decision, I needed to review the medical opinion, your views, and whether a return to work is likely within a reasonable timescale.”

[79]There were two attempts to rearrange the next FARM meeting in December 2019 and ultimately it was arranged for 24 January 2020.

[80]The claimant attended the meeting on 24 January 2020 with his trade union representative, Christine Miller. Rebecca Clarke from the Staff Care Team attended as notetaker. We have the notes of the meeting.

[81]The day before the meeting on 23 January 2020 the claimant was seen by Occupational Health. The report records as follows:- “Mr Razzaq says his psychological symptoms increased late last year. He says this followed him seeing a photo in the paper of an individual who Mr Razzaq believed was the person who assaulted him at work last June. Mr Razzaq says on reading the article the photo was not of the person who assaulted him but of a different member of his family.” And “Current capacity for work Mr Razzaq remains unfit for work given his ongoing health difficulties and it is unclear when this may change. I recommend that management consider requesting additional Occupational Health advice in a months’ time towards the end of February 2020. We can then review his situation including his response to his EMDR therapy. We will be able to offer additional Occupational Health advice at that time in relation to his fitness for work and his capabilities.”

[82]As recorded above, it is in that report that Occupational Health advises for the first time that the claimant should be considered as disabled under the Equality Act.

[83]The notes of the 24 January 2020 meeting (actually a transcript) record Governor Martin saying:- “Whenever a sick note has run out you’ve produced another sick note for another period of time and that’s what worries me about kind of the assurance about your return, but also your resilience to your return as well.”

[84]Issue 3.1.2 alleges that during the meeting on 24 January 2020 Governor Martin told the claimant that she believed the claimant is always submitting sick notes when one ends and that she does not believe this will not happen again. In our judgment, the recorded comments of Governor Martin are, in essence, that which are complained about. Accordingly, we find allegation 3.1.2 proved.

[85]We have gone on to consider the context in which that remark was made. At numerous informal meetings and at the first FARM meeting on 15 October 2019, the claimant had evinced intentions to return to work which had not, in fact, transpired as he had obtained further Med 3 fit notes signing him unfit for work. Any employee who has been signed off unfit for work by their GP is expected to obtain a further MED 3 fit note signing them off unfit for work in the event that they remain unfit for work. As such, any comment that the claimant was always submitting sick notes when one ends is merely a statement of fact. Further, the statement that Governor Martin did not believe that it would not happen again was, in our judgment, a reasonable comment. It had happened on a number of occasions in 2019 and, as recorded in the notes of the meeting, the claimant’s then current sick note had expired on 23 January 2020 and it was understood that he had been given another fit note for a further four weeks. In addition, the Occupational Health report had expressed the opinion that it was unclear when the claimant’s unfitness for work would change.

[86]We are prepared to accept that, subjectively, the claimant considered this to be unwanted conduct.

[87]We find that the comment was related to the claimant’s disability in that his sickness absence was caused by his disabilities.

[88]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? We find that it did not have that purpose. Based on the contemporaneous record of the claimant’s response, which is to address the point raised, we doubt whether, subjectively, the claimant perceived the comment to have that effect. In any event, objectively, we find that the comment fell well short of having the prescribed effects under sub paragraph 1(b) as it was not reasonable for the conduct to have that effect.

[89]Issue 3.1.3 alleges that during the meeting on 24 January 2020 Governor Martin said to the claimant that he would be triggered by reading any article relating to gangs. The transcript of the meeting records the actual exchange as follows:- “Governor Martin: And what I can’t mitigate is risks of you seeing people in a newspaper yeah and that potentially being a trigger, I can’t mitigate for that because quite clearly you know the people that we’re dealing with potentially are notorious and will have notorious family members as well. That worries me that psychologically I still think that you’re quite fragile if something like that was able to trigger an episode of you not being particularly well and needing to go back to your GP.”

[90]Whilst we accept there is no reference to gangs, we find that the essence of the allegation in 3.1.3 has been proved.

[91]The context of this comment is that it arises out of the reference in the Occupational Health report to the increase in the claimant’s psychological symptoms in late 2019 having read a newspaper article. That information must have been imparted to Occupational Health by the claimant. In our judgment, this was no more and no less than Governor Martin discussing the claimant’s potential difficulties at work in the context of exploring whether he could return to work. In the circumstances, we do not find that this was unwanted conduct.

[92]During the course of the meeting on 24 January the claimant’s health was discussed and Governor Martin explored whether the claimant could return to work and, if so, when. Facilitating the claimant’s return to work with non-prisoner facing duties was discussed. It is clear that during the course of the meeting the claimant’s position on when he might be likely to return to work changed. Initially it was four weeks and then became two weeks and then, following a break in which he was able to discuss the matter with his representative, he suggested an earlier return the next week. In our judgment, it is probable that his trade union representative was indicating to the claimant that unless there was a clear commitment to return to work his job was likely to be in jeopardy.

[93]As far as non-prisoner facing restricted duties are concerned, the position appears to be as follows. By definition, prison officers worked in a prisoner facing role. There are non-prisoner roles at Feltham Young Offender Institution. Those non-prisoner facing roles were staffed by Operational Support Grade staff at Band 2, who were paid £8-10,000 less than a prison officer. The non-prisoner facing roles involved working in the Gatehouse, in the Admin Block, a fire safety role and, topically, covid testing visitors. However, those non-prisoner facing roles could not be on a permanent basis. The claimant would have to be regraded in order to fulfill those roles with a concomitant reduction in his salary.

[94]At the conclusion of the FARM meeting on 24 January 2020 Governor Martin dismissed the claimant. In doing so, by definition, Governor Martin failed to adopt a lesser sanction such as regrading or giving the claimant further time to return to work as suggested by the Occupational Health report of 23 January 2020. As such, issue 4.1.1 and 4.1.4 are proved.

[95]We have gone on to consider the comparators that the claimant has relied upon. The list of issues gives them as Ms Toland, Mr Page, Ms Fraser, Mr Rogers, Mr Bryant and Mr Campbell.

[96]In order to be a correct comparator we have to find that any comparator was in not materially different circumstances to the claimant. During the course of cross examination, the claimant at various times suggested that some of those individuals may have had similar or longer periods of absence due to sickness, some of them may have been within their probation period, some of them may have been given alternative duties and some of them may have been given time off for EMDR sessions. The respondent’s witnesses replies were universally that the witness did not know any details of the individuals put to them as they were not their line managers.

[97]In our judgment, on the basis of the evidence that has been placed before us, we are in no position to assess whether the named comparators were or were not appropriate on the basis that they were in not materially different circumstances to the claimant.

[98]The claimant complained to us that the respondent had not made adequate disclosure in relation to those comparators. However, the claimant produced to us an email from 28 April 2023, addressed to the respondent’s representatives, wherein he was seeking specific disclosure as regards 13 named comparators. The claimant complained that the respondent had not provided the information requested. We express no view as to whether that is right or wrong but, at the end of the day, it is for the claimant to seek orders from the tribunal in the event that he considers that the respondent’s disclosure is inadequate. That the claimant has failed to do. We take due account that the claimant is a litigant in person. Nevertheless, there have been seven preliminary hearings in this case, and it is an issue that really should have been sorted out well in advance of the start of this hearing. (The email from 28 April 2023 was produced to us on the final day during closing submissions)

[99]Consequently, for the purposes of the direct discrimination claims, we have taken a hypothetical comparator. Such a hypothetical comparator would be a non-disabled prison officer who had the same sickness absence.

[100]By 24 January 2020, the claimant had been absent from work for seven months. The information from Occupational Health was that it was unclear when the claimant would be fit for work. The information from the claimant is that he had a further Med 3 fit note for four weeks and, in our judgment, Governor Martin understandably was sceptical as to whether the claimant’s claims that he could return in four/two/a week’s time or next week were unrealistic. Governor Martin concluded that the respondent could no longer support his continuing absence.

[101]Governor Martin set out her reasons in the dismissal letter dated 4 February 2020. This states:- “I considered whether an alternative to dismissal was an option. Previous discussions around reasonable adjustments and a return to an adjusted/alternative role had been had throughout your absence, in the hope that we could support you back into the business sooner as part of a phased return. However, to date you have not been fit to engage with this. We re-reviewed the possibility of this during our meeting as discussed above, but my opinion from listening to you and reading the OH advice is that you remain unfit to do so at this time. In addition, given the nature of the prison environment and the psychological affects you stated you experience by reviewing a newspaper article, I was deeply concerned that at this time you are not ready to return to work in any capacity.”

[102]In our judgment, a hypothetical comparator would have been treated in exactly the same way. Consequently, we do not find that this was less favourable treatment.

[103]We now turn to consider the indirect disability discrimination claim.

[104]Allegation 5.1.1 is that the respondent applied the PCP relying on paragraphs 2.137 and 2.140 of the Attendance Management Policy which allows probation periods to be extended due to unsatisfactory attendance.

[105]We find that the respondent did not apply paragraphs 2.137 and 2.140 of the Attendance management Policy to the claimant in extending his probation period. We find that the claimant’s probation period was extended in both October 2019 and June 2020 pursuant to the policy on Employee Induction and Probationary Periods.

[106]Allegation 5.1.2 is that the respondent failed to apply the Sick Leave Excusal Policy to employees (which made special accommodation for work related injury and/assault on duty).

[107]As has already been recited, following his assault the claimant applied for and was granted sick leave excusal for the whole of the period extending until his reemployment following the successful appeal against his dismissal. We find that there was no PCP of failing to apply the sick leave excusal policy.

[108]We find that the policies were PCPs. We find that those policies were applied to all the respondent’s employees.

[109]We find that those PCPs, even if they were applied to the claimant at the relevant time, did not place the claimant at a particular disadvantage compared with those who did not share the claimant’s disabilities. In particular:(i) The PCPs alleged were not relevant to the claimant being given paid time off work from 24 January 2020 for two weeks.

(ii) As found, the claimant’s probation was extended under the probation policy and this would have applied to any employee whether disabled or not.

(iii) The PCPs did not cause the claimant’s dismissal.

[110]Consequently, the claimant’s indirect disability discrimination claims are dismissed.

[111]Issue 3.1.4 alleges that in the dismissal letter of 4 February 2020 Governor Martin stated that the claimant was asking for further time not because of his medical condition but to save his employment. The outcome letter dated 4 February 2020 states:- “Towards the end of the meeting, you did shorten the return period from 4 weeks, to 2 weeks and then a week, but I was very concerned that this was only as a response to the difficult situation you faced in relation to your ongoing employment, rather than you actually being medically well enough to do so.”

[112]Hence, the allegation is that the claimant was told that his request for further time off was not because of his medical condition but to save his employment. However, the actual comment in the outcome letter is expressing concerns that the claimant’s assertions that he would return sooner and sooner was in order to save his employment in circumstances where he was not actually medically fit enough to return to work. Consequently, we find allegation 3.1.4 not proved. Even if issue 3.1.4 was intended to allege the meaning which we have ascribed to the comment in the outcome letter, in our judgment such a comment was entirely reasonable and justifiable. As such, we would not find that it was unwanted conduct.

[113]The claimant appealed his dismissal in a letter dated 4 February 2020.

[114]Issue 3.1.5 alleges that on 28 May 2020 CM Garbett made comments about the claimant at Feltham Prison that the claimant had never provided any medical evidence. As of that date the claimant was not at work as he was dismissed pending his appeal. The source of this allegation is paragraph 29 of the amended particulars of claim. That suggests that the source of the claimant’s information is hearsay evidence from two other officers. The claimant’s witness statement makes plain that the source of his information was what he alleges other staff told him when he returned to work on or about 19 June 2020. The witness statement names Mr Durrani as well as three other prison offers. This is the first time they are named and to that extent we find that the respondent has been prejudiced in not knowing the source of this hearsay evidence. The respondent has not been in a position to make investigations. Mark Garbett’s evidence was to the effect that he did, on one occasion, come across staff gossiping about the claimant and his case. The gist of the gossip was that other prison officers had heard that the claimant had not put in medical evidence for the reason for his absence. Mark Garbett’s evidence was that he interrupted them and told them they needed to stop the conversation. Mark Garbett’s evidence was that he did not say that the claimant had not submitted medical evidence. He states that he knew the claimant had in fact submitted medical evidence as he had submitted sick notes throughout his absence. He states that he did not tell the colleagues about this because it was confidential, and it was not for him to discuss it with them.

[115]We find that it is inevitable that following the dismissal of a prison officer colleagues would discuss the issue amongst themselves and speculate as to the reason why. We find that it is a fact that the claimant had been submitting his Med 3 fit notes to Mark Garbett throughout. As such, it is a fact that the claimant had been submitting medical evidence justifying his sickness absence. In addition, Mark Garbett would have had access to the Occupational Health reports which provided further medical justification for the claimant’s absence. We find it inherently implausible that Mark Garbett would have made such comments in the circumstances. We are not prepared to accept the hearsay evidence of the claimant on this issue. Consequently, we find issue 3.1.5 not

[116]The claimant’s appeal was heard on 23 March 2020 by Jonathan French. We have the notes of the hearing. The following is recorded:- “JF asked MR how he felt about is ability to return to work. MR confirmed that he is no longer experiencing any spells of dizziness and feels that by the end of April he should be fit to go back to work.” And “JF informed that appeal that this was in no indication of his decision but asked if MR was reinstated had he given any thought to what role he wished to be reinstated in. MR confirmed that he would want to go back to the role of a Prison Officer and believes that he will be capable of doing the same role as before, he just needs a little more time to heal.”

[117]Jonathan French’s evidence was to the effect that it was only because the claimant was saying he could return to his role as a prison officer that he allowed the appeal. He did not consider that the original decision to dismiss was wrong but that events had moved on and the claimant was now in a position to return.

[118]There was a delay in sending the claimant the notification of the appeal decision on 12 June 2020. The letter itself explains the delay due to the demands of the coronavirus lockdown. In addition, in his witness statement, Jonathan French explains that he thought he had allowed time for the claimant to finish his course of EMDR therapy and so be in the best position to return to work.

[119]There was communication between the claimant and Jonathan French on 11 June 2020 by telephone. Whether this was a reconvening of the appeal meeting or merely to inform him of the outcome is not really material. The notification of appeal outcome letter states:- “When we re-convened the appeal meeting on 11th June 2020, you were clear to me that you wanted to return to work imminently and wanted to remain an officer and to return to full operational duties. I discussed with you that, if you were serious about returning to work, and if I did reinstate you, then it was up to you to demonstrate this, and any return to work would be on the clear understanding that you needed to get yourself back to full operational duties in a reasonable time frame. You accepted this & indicated that you had continued with your EMDR treatment since our initial hearing and that your mental health had continued to improve. You subsequently indicated to me that you would be ready to return to work by 29th June 2020.” And “On the assumption that you will return to work on 29th June 2020, I will extend your probation period one more time by a further three months until 30th September 2020.”

[120]Issue 6.2.4 alleges that the claimant’s probation was extended in June 2020. Consequently, this issue is proved.

[121]The claimant presented his first claim on 4 June 2020. Whilst Jonathan French did not have a precise recollection, in his witness statement he states that he is very close to 100% sure that he did not know about the employment tribunal claim as of 11 June 2020. We accept that evidence. In any event, we do not find that this constituted detrimental treatment. In circumstances where an employee has not completed their probation period successfully, the alternative to an extension of probation is dismissal. To that extent it is an advantage. The extension of the claimant’s probation was clearly justifiable as he had yet to complete his 12 months’ probation period.

[122]We have a letter dated 16 June 2020 from Mark Garbett to the claimant setting up a return to work meeting to have a chat to formulate a return to work plan.

[123]Following the meeting on 19 June 2020 Mark Garbett wrote a letter to the claimant summarising what had been discussed. The letter includes the following:- “I also mentioned a plan for a 4 week return to work programme be discussed next week you requested you had requested that 4-6 weeks had been mentioned, however as you are fully fit for duties I am not sure if six weeks is helpful but I said we will review this over the next few weeks once you return and the return to work plan is reviewed.”

[124]The claimant was referred to Occupational Health on 23 June 2020 by Mark Garbett and Paul Barney with the question:- “Is there any reason why Mr Razzaq will not be able to commence full duties from 29 June as he has declared himself fit for duties on a phased return programme for four weeks.”

[125]The claimant attended at work on 24 June 2020 to discuss a provisional plan to return to work. We have a Safety Assessment Form completed on 24 June 2020 which sets out a four week phased return to work beginning on 29 June 2020. The amended duties at that stage were no planned C & R (spontaneous only) and no nights until the probationary period concluded on 14 September 2020. In an email dated 24 June 2020, the claimant stated he was not agreeing the plan and recording that it was provisional and could be changed.

[126]The claimant returned to work on 29 June 2020 on four hours per day.

[127]The claimant had a consultation with OH on 2 July 2020 and we have the report dated 3 July 2020. This states:- “Mr Razzaq has returned to work on a phased plan arranged by Management which he reports was not discussed with him. I understand he is doing four hours this week, then increasing hourly each week back to his full hours and has been back on working on the wing. In my opinion, following assessment he is fit to be at work. In my opinion, a gradual reintroduction to duties on residential wings will be a supportive measure, given that he is still undergoing EMDR intervention, still having dental symptoms, the length of time he has been absent and the reasons for absence. In my opinion a supportive return to work plan should be around 6 to 8 weeks. In my opinion, due to him starting new medication it would be better for Mr Razzaq to work either afternoons or start later in the morning until he becomes accustomed to his medication. This is likely to take 2 to 3 weeks.” And “Manager question Is there any reason why Mr Razzaq will not be able to commence full duties from 29th June as he has declared himself fit for duties on a phased return programme for 4 weeks. In my opinion, there is no physical reason why Mr Razzaq cannot do his full range of duties. However, it would be insensitive to put him straight back on a wing/unit due to the length of his absence plus he is still having therapy from being assaulted.”

[128]We have a further work safety assessment which has been signed by Mark Garbett on 8 July 2020. This is amending the previous one. The amendment is to introduce mental health support by way of shifts being swapped.

[129]The Occupational Health report of 2 July 2020 appears to have been updated on 15 July 2020. The following has been included:- “In my opinion, in terms of hours, his return to work plan as arranged by Management is supportive.”

[130]Mark Garbett had a further meeting with the claimant on 17 July 2020 to discuss his continued phased return to work. A follow up letter states:- “If you have any concerns or changes to your current risk assessment you need to bring this to our attention, you also need to provide appointments in writing for your next sessions for EMDR so shift adjustments can be accommodated where possible, as you are working restricted duties already there is an expectation you book your sessions not to conflict with your restricted shifts when and where possible. In ample time please.”

[131]On 23 July 2020, the claimant sent a two page email to Mark Garbett. The subject was informal attendance and review meetings, and the email sets out nine heads of issues which the claimant wanted to have addressed. Nowhere in that long email does the claimant complain about being placed on prisoner facing duties.

[132]Issue 6.2.5 is that the claimant was put on prisoner facing roles (including nonoperational duties) when he returned to work in July 2020. We have taken the reference to non-operational duties to be a refence to the fact that whilst the claimant was on duty in a prisoner facing role, because of his restriction on C & R control and restraint activity, so he was “above the numbers” or a supernumerary as regards the minimum staffing level. We find that the claimant was put on prisoner facing roles on his return to work in July 2020. Accordingly, issue 6.2.5 is proved.

[133]We find that this was not a detriment. It was as agreed with Jonathan French as part of the successful appeal against the claimant’s dismissal. It was in accordance with the claimant’s stated desire to return as a prison officer. It was in accordance with the Occupational Health report and the claimant made no contemporaneous complaint about it.

[134]Issue 3.1.6 is that in July 2020 Ms Teixeira, Ms McColgan and Mr Lloyd told the claimant to take the money and stay at home. We found this a strange allegation. In his witness statement the claimant makes the same allegation concerning a meeting on 27 August 2019 at his home concerning SO Clarke. The reason we find this strange is that whenever any of the respondent’s witnesses were asked about the allegation the response was that there was government process or scheme that paid out money following an assault by a prisoner. The witnesses referred to it being a rarity and dependent upon a claim being made to the Criminal Injuries Compensation Board. We do not understand the alleged link between taking the money and staying at home. If a claim were made for compensation then there would be no need to stay at home and the claim could be made whilst at work.

[135]Ms Teixeira, Ms McColgan and Mr Lloyd all deny making such a comment. The claimant responded that they were all friends, and they would deny it.

[136]Clearly there is a straight conflict of evidence on this issue.

[137]As will become apparent in due course, there was also a straight conflict of evidence between Ms Teixeira and the claimant concerning the circumstances in which a prisoner had changed key workers (issue 7.1.7). We will come to deal with that issue in due course. However, having seen and assessed both the claimant and Ms Teixeira we were firmly of the view that Ms Teixeira was the more reliable witness, and we did not believe the claimant on that issue. In the circumstances, we have approached the evidence of the claimant with some caution. Again we note that it is not a complaint made in the claimant’s long email of 23 July 2020. We also note that similar allegations are made against the same three individuals arising out of January 2021. We prefer the evidence of Ms Teixeira, Ms McColgan and Mr Lloyd on this issue and find issue 3.1.6 not

[138]Issue 3.1.7 is that in or around July 2020 Ms Teixeira, Ms McColgan and Mr Lloyd picked on the claimant by commenting that he did not understand things due to mental problems. Again, all three individuals deny making any such comment.

[139]We note that this issue has been drawn from the further and better particulars framework whereby the claimant was responding to a request for details of, amongst other things, this allegation. We note that in his answer the claimant references struggling with many issues and being blamed for things that he characterizes as being trivial. There is a quite odd reference to him fearing being jumped on by a prisoner from a window whilst he was in the exercise yard. Doing the best we can, we find that the claimant probably was told by colleagues when he was failing to do the job properly. The claimant may have had a perception that that was happening because of his mental state but we find that the reality was that any such comments were justified and on the grounds that he was, as he himself has said, struggling and making mistakes. We find that the claimant’s mental problems were probably not referenced. We note that the claimant was, after all, returning to work after an absence of over a year. Consequently, we find issue 3.1.7 not proved. In any event, whilst such comments may have been unwanted, we find they did not relate to the protected characteristic of disability. We find that, in all probability, they related to the claimant’s difficulties in readjusting to a return to work.

[140]Issue 3.1.8 is that in or around July 2020 Ms Teixeira, Ms McColgan and Mr Lloyd told the claimant to work in a prisoner-facing role. The witnesses accepted in terms that they probably did. The claimant was on a phased return to work in a prisoner-facing roll. As such, it is likely that he was asked to work in a prisonerfacing role due to the fact that this was his job. Consequently, we find the facts alleged in issue 3.1.8 are proved.

[141]We have gone on to consider whether that conduct was unwanted. In our judgment it was not unwanted due to the fact that it was the claimant’s job.

[142]Consequently, the claimant’s harassment related to disability claims in section 3 of the list of issues are all dismissed.

[143]The claimant submitted his first claim to the employment tribunal on 4 June 2020. We find that that was a protected act.

[144]Issue 6.2.1 alleges that the respondent failed to allow the claimant time off for Occupational Health in or around August or September 2020 and/or a follow up appointment.

[145]On 2 July 2020, the claimant had a telephone consultation with Occupational Health. A report was produced on 3 July 2020 and an amended report was produced on 15 July 2020. Both reports recommend that the claimant is referred back to Occupational Health in three months’ time.

[146]The claimant was on his phased return to work from 29 June until the end of July 2020. The claimant then had two weeks annual leave from 3 to 16 August 2020. Having returned from holiday in Belgium, the claimant was then required to quarantine for a further 14 days from 17 until 30 August 2020. It would appear that the claimant returned to work for one week before taking further annual leave from 6 to 10 September 2020. It would appear that the claimant then returned to work for one week before having to isolate from 16 to 30 September 2020 due to a member of his household having covid symptoms.

[147]The claimant then had a telephone consultation with Occupational Health on 29 September 2020.

[148]We have no evidence that the claimant had Occupational Health appointments between 2 July and 29 September 2020. Further, the evidence is that Occupational Health appointments were held by telephone. Further, the evidence we have is that the claimant was either on holiday or isolating for all but two weeks of August/September 2020. We find that there was no failure to allow the claimant time off for Occupational Health appointments and no failure to offer him a follow up appointment. Consequently, we find issue 6.2.1 not proved.

[149]Issue 6.2.2. alleges that the respondent failed to authorise EMDR sessions in or around August or September 2020.

[150]We have an email dated 25 August 2020 from Wellbeing CS to, amongst others, Mark Garbett. This states:- “Hi Mark I’m sorry for the delay with this. Your employee had the following sessions within this set: 28/05/2020

04/06/2020

18/06/2020

26/06/2020

09/07/2020

16/07/2020 Further sessions have also been approved, which will commence once our therapist returns from leave after 7 September.”

[151]We find that the claimant’s EMDR sessions ended on 16 July 2020. We find that further sessions had been approved by 25 August 2020. An email dated 15 September 2020 confirms that the claimant had a further EMDR session booked for 24 September 2020.

[152]We find that there was no failure to authorise EMDR sessions for the claimant in or around August or September 2020. Accordingly issue 6.2.2 is not proved.

[153]Issue 6.2.6 is that the respondent ignored the claimant’s complaints of harassment to Ms [should be Mr] Warman [should be Wawman] in or around September 2020 and in an email to CM Niker dated around January 2021.

[154]We have had little or no evidence as to what complaints the claimant alleges he made to Mr Wawman in or around September 2020. At some stage it appeared to be the claimant’s evidence that this allegation in fact related to his written grievance dated 15 October 2020. The claimant’s written grievance of 15 October 2020 references a meeting between the claimant and Mark Garbett and Mike Wawman on 14 September 2020. This concerned the further extension of the claimant’s probation. We have an email dated 30 September from Mike Wawman to Governor Martin referencing a meeting on that day between Mike Wawman and the claimant which he states had come to a resolution of all the claimant’s concerns. It had been decided to end the claimant’s probation on 30 September 2020 to draw a line in the sand. Other issues appear to have been dealt with. Consequently, we find that any complaints raised by the claimant in September 2020 with Mr Wawman were not ignored and were dealt with. The first part of issue 6.2.6 is not proved.

[155]The second part of 6.2.6 relates to an email to CM Niker dated around January 2021. This is also dealt with in issue 7.1.6 which we will deal with in due course.

[156]Issue 6.2.7 alleges the respondent failed to hear the claimant’s written grievances dated around September 2020 [by agreement should refer to 15 October 2020] and November 2020.

[157]The first point is that the email dated 15 October 2020 is not a formal grievance. The subject line on the email is “Risk assessment and issues.” It is a long email consisting of nine paragraphs of complaint. In fairness to the claimant, paragraph 7 does refence bullying, harassment, discrimination and racism. We have proceeded on the basis that this could be characterised as an informal grievance.

[158]It is clear to us that David Niker did deal with all the points that the claimant raised in his email dated 15 October 2020. We have an equally long email from David Niker dated 2 November 2020. This starts:- “Apologies that this has taken a while to get back to you. I know we have spoken about a few of the points and I explained that I was trying to gain as many of the answers as possible and answer in one email rather than dribbling through points as and when I get them and sending you multiple answers.”

[159]David Niker then sets out the response in nine paragraphs. The email concludes:- “I realise this email is vast and I hope that it has provided you with some of the closure from your questions. It is my hope that we can continue to move forward now with some of these issues resolved and that you can continue to contribute as you have as part of the team on Mallard Unit…That being said this has taken up far more of my time than I realistically needed to and so I am not expecting to nor shall I be doing something like this again unless all other avenues have been exhausted first. Should you have any particular issue then feel free to approach me and raise this with me in the first instance and hopefully it can be answered in a far less formal format. Should you not be happy with any responses then as above this is what you would use any grievance policy for.”

[160]We find that David Niker did deal with the claimant’s grievance dated 15 October 2020. It is noticeable that the claimant did not escalate the issues to a formal grievance which he could have done. We have had no evidence of any informal or formal written grievance made by the claimant around November 2020.

[161]Accordingly, we find issue 6.2.7 not proved.

[162]Issues 7.1.1,7.1.2, 7.1.3,7.1.4 and 7.1.5 are all said to have been raised by the claimant in an email dated 21 January 2021. As such, all these alleged incidents must have taken place prior to 21 January 2021.

[163]We begin by considering issue 7.1.3 and 7.1.5 as these concern an incident that we can pinpoint. 7.1.3 alleges that in early January 2021 Ms Teixeira wrongly blamed the claimant for breach of security, namely alleging that the claimant had passed security information to a prisoner, and failing to take action against Ms Teixeira when the prisoner alleged that it was her who had passed the information to him. Issue 7.1.5 alleges that in or around January 2021, Ms Teixeira intentionally undermined the claimant regarding his mental disability and making physical gestures and facial expressions of the claimant’s disability during a 45 minute meeting with the claimant and alleging that the claimant cannot do the job of a prison office because of his mental issues.

[164]This incident concerned Prisoner X. Marissa Teixeira gave evidence that on or around 15 January 2021 Prisoner X requested to do a laundry job on the unit. Each prisoner has a file on the National Offender Management Information System (“P-NOMIS”). Marissa Teixeira gave evidence that it was noticed by staff that Prisoner X’s P-NOMIS file contained comments made by other prison officers at a different jail that Prisoner X had passed contraband whilst carrying out a laundry job. Consequently, Prisoner X was informed that he would not be suitable for the laundry role. Prisoner X was not told the reason.

[165]Marissa Teixeira gave evidence that Prisoner X thereupon started asking every member of staff if they knew why he was not allowed to carry out the laundry job.

[166]We accept that evidence from Marissa Teixeira.

[167]Marissa Teixeira went on to state in her witness statement as follows:- “I cannot recall how it happened but on or around 15 January 2021 I found out from Mr Asad Yasin, Prison Officer, that the claimant told Prisoner X that the reason why Prison X was not allowed to do the laundry job was because he was known to passing contraband. I believe Mr Yasin overheard the conversation between the claimant and Prisoner X. Prisoner X then became angry and started demanding answers.”

[168]Both when Marissa Teixeira later spoke to the claimant and before us the claimant denied doing this.

[169]Marissa Teixeira states that later Mr Yasin came to the office and asked all of those present if the claimant had spoken to them about Prisoner X. Marissa Teixeira then offered to speak to the claimant as she had known him the longest and felt she had had positive interactions with him before. As a colleague she did not have the authority to carry out any form of investigation or to check CCTV cameras.

[170]Accordingly, Marissa Teixeira later approached the claimant, and they went to have a private chat in a private office later that day. Marissa Teixeira put the allegations to the claimant, and she states that she remembers he denied the accusations and accused Prison Officer Yasin of lying.

[171]In her oral evidence Marissa Teixeira said the meeting lasted about 30 minutes whereas the claimant has alleged it was 45 minutes. Clearly the meeting took some time. Marissa Teixeira characterises it as informing the claimant of the allegations and providing support to him. In our judgment, it is likely that Marissa Teixeira was advising the claimant as to how he should conduct himself as a prison officer and that this was not well received by the claimant. We say that as we have an exchange of text messages from 16 January 2021. Marissa Teixeira texted:- “Hi Razzaq Hope you’re ok. Just thought I’d message you. I hope I didn’t make you feel bad or annoyed after our talk yesterday. My intention wasn’t to have a go at you, although I feel like I may have come across accusing, but that was not my intention. I just concerned for you. If I have made you feel a type of way, I’m more than happy to talk it out with you and discuss things if need be. Hope you have a good weekend, Marissa.”

[172]To that, the claimant replied:- “Thanks for your message and I am fine after your message but it actually annoyed me as I do not give favours or unfair to anyone regardless of the person. I felt it cos a person like you who protected me at the college for annoying and your little support did help over there which probably you do not remember but anyone who gave respect to me or supported me at any time, I always respect the person and remember his support and yesterday was opposite for me. Its good I was off on this weekend as you wouldn’t see me working otherwise. But, apart of everything I still appreciate your text. Have a safe weekend too, Raz.”

[173]We accept the evidence of Marissa Teixeira concerning what Prison Officer Yasin claims to have seen and heard. We note that when Nicolas West dealt with this issue in the grievance outcome dated 8 September 20221 he refers to “There is no evidence that you or any other member of staff knowingly disclosed information to a prisoner.” That may be a reference to “conclusive” evidence as of course the report of what Prison Officer Yasin said is evidence. We do not know where the allegation that it was Ms Teixeira who had passed the information to Prisoner X has come from. It does not appear in the claimant’s witness statement or in the particulars of claim for claim 2. Having seen and heard from Marissa Teixeira we find that she would not have imparted that information to Prisoner X.

[174]We do not have to make a positive finding as to whether or not the claimant did breach security and inform Prisoner X why he had not got the laundry job. We find that Marissa Teixeira did raise the issue with the claimant in the private meeting and, no doubt, advised him why that would have been wrong and how he should approach the issue in the future.

[175]It is alleged that, during the course of that meeting, Marissa Teixeira made physical gestures and facial expressions that undermined the claimant regarding his mental disability. Further, it is alleged that Marissa Teixeira put to the claimant that he could not do the job of a prison officer because of his mental health issues. Marissa Teixeira denied this in cross examination. In particular, she stated she was not aware that the claimant had mental health issues.

[176]We note that no complaints along these lines were made by the claimant either in his text message the next day or when he finally raised it in a grievance in July 2021. We find that Marissa Teixeira did raise the issue of the claimant breaching security and passing security information to a prisoner in the meeting on 15 January 2021, but this was not wrongly blaming him. There was evidence that Marissa Teixeira had from Prison Officer Yasin that the claimant had done this. Consequently we find that issue 7.1.3 not proved.

[177]We find that the meeting on 15 January 2021 went on for some time and we find that it principally involved Marissa Teixeira talking to the claimant who said relatively little. We find that Marissa Teixeira was advising the claimant in no uncertain terms as to how to do his job and that the claimant was probably not receiving this terribly well. We have no doubt that Marissa Teixeira may have made physical gestures and facial expressions. However, due to a complete and utter lack of any detail as to what they were, we find that they were no more than one would have expected and certainly did not relate in any way to the claimant’s disability. Consequently, we find that any physical gestures or facial expressions did not relate to the claimant’s disability and that any comments in the context of the claimant not being able to do the job of a prison officer were not linked to his mental health issues. Consequently, we find issue 7.1.5 not proved.

[178]We now turn to consider issues 7.1.1 and 7.1.2. 7.1.1 alleges that in or around January 2021 Ms Teixeira, Ms McColgan and/or Mr Lloyd spread false rumours about the claimant, in particular:(i) Ms McColgan telling employees on the Mallard Unit that the claimant cannot work properly, that he is taking time off, he is not doing prisoner facing work and cannot think properly due to mental illness.

(ii) Ms Teixeira telling people in the prison that the claimant has a mental health issue and is not capable of doing the job as he cannot make sound decisions.

(iii) Mr Lloyd informing people on the Mallard Unit that the claimant has mental health issues and therefore cannot perform well.

[179]Issue 7.1.2 alleges that in or around January 2021, the claimant was ridiculed in front of staff and prisoners regarding the claimant’s mental health issues, in particular:(i) Ms McColgan commenting during morning meetings on the Mallard Unit that the claimant does not understand day to day things and is not capable of doing things because of his mental health problems.

(ii) Ms Teixeira telling people in the prison that the claimant has mental health issues and is not capable of doing his job on the basis that he cannot make sound decisions.

(iii) Mr Lloyd informing people that the claimant does not know what he is doing and laughing about this, and sneakily listening to the claimant’s conversations with prisoners.

[180]We note that these allegations are general and lacking specific details. With the exception of issue 7.1.2 (i) it seems probable that the claimant’s source of information is hearsay. In our judgment, it is unlikely that the comments alleged would have been made to the claimant’s face. This may explain why the claimant is not in a position to give more precise details of what was said when and where. Further, we have gained the distinct impression that the claimant’s approach to everything at work was that if something happened that he did not like then, because he is disabled, it must be related to his disability. Ms Teixeira, Ms McColgan and Mr Lloyd all deny making such comments and deny that they would have made such comments. Against that background we address the specific allegations.

[181]The claimant does not deal with these allegations in his witness statement, and it is hard to find the source of them in his second particulars of claim. They are dealt with in very general terms in the further and better particulars.

[182]We are prepared to accept that the claimant’s colleagues, including Marissa Teixeira, Zhane McColgan and Andrew Lloyd, discussed the claimant’s competence in the workplace. In our judgment, this was likely to include discussion as to whether he could do the job properly, the fact that he had taken time off, the fact that he was not doing some prisoner facing work and questioning his decision making.

[183]We find that Zhane McColgan probably did not make direct comments in morning meetings that the claimant did not understand day to day things and was not capable of doing things because of his mental health problems. In our judgment, it is highly unlikely that she would have made such comments in front of the claimant. Further, we find that Mr Lloyd did not laugh at the claimant or sneakily listen to his conversations with prisoners.

[184]We find that whatever comments may have been made in the workplace, the claimant has failed to prove the alleged link with his mental illness. In our judgment, all such comments as may have been made related to the claimant’s competence and not his mental illness/mental health problems.

[185]Accordingly:-(i) We find issue

7.1.1 (i) is not proved due to the failure to link the comments with mental illness.

(ii) We find issue 7.1.1 (ii) not proved due to the failure to link the comments with mental illness.

(iii) We find issue 7.1.1 (iii) is not proved due to the failure to link the comments with mental illness.

(iv) We find issue

7.1.2 (i) is not proved due to the failure to link the comments with mental illness.

(v) We find issue 7.1.2 (ii) is not proved due to the failure to link the comments with mental illness.

(vi) We find issue 7.1.2 (iii) is not proved due to the failure to link the comments with mental illness.

[186]Issue 7.1.6 is that in or around 21 January 2021 the claimant raised issues 7.1.1 – 7.1.5 in an email to CM Niker and raised them again in informal conversations with CM Niker in or around February 2021 and that CM Niker informed the claimant that he is not bothered about what happened on the Mallard Unit and that next time he would like to have a conversation rather than a long email.

[187]The starting point in our deliberation has been that we do not have any such email dated 21 January 2021.

[188]We note that in his particulars of claim to the second claim the claimant appears to date this email to 15 January 2021. David Niker gave evidence that he does not have any record of any such email from the claimant.

[189]Against that, the grievance appeal outcome report from Emma Laws on 28 October 2021 states:- “I have spoken to CM Niker who was aware of the January email and explained that following that email sent from your private email address, you had then gone on annual leave, for which I had authorised extended leave totalling a period of 6 weeks. He also partied me to a previous email which he had sent to you on 2nd November 2020 in response to one you had sent him following a meeting on 15th October regarding risk assessments for yourself.”

[190]In her witness statement Emma Laws states that she did not believe she saw a copy of the 21 January email.

[191]What is clear from the grievance appeal outcome is that the email was sent from the claimant’s private email address. On the basis that the claimant was taking six weeks holiday, then it is likely that it was sent at a time when he was on annual leave. This is because the claimant’s annual leave had to be taken prior to 28 February 2021 or he would have lost it. We find that this email, if it had been sent, would have been an email that the claimant could have recovered from his private email ‘sent’ account and consequently could and should have included it in the hearing bundle or, indeed, produced to us during the course of this hearing. Consequently, we are in no position to make a determination of what was or was not raised in that email. Due to the reference by Emma Laws to speaking to David Niker about the email, we are prepared to accept that that email exists. Further, we are prepared to accept that the claimant did raise certain issues in that email. We have little or no evidence about a conversation between the claimant and David Niker in or around February 2021. We note that the claimant was on annual leave at the time. However, we find that David Niker would not have told the claimant that he was not bothered about what happened on the Mallard Unit. David Niker denies it and we find that it is inherently unlikely that he would have said such a comment given that he was the Custodial Manager of it. We are prepared to accept that David Niker said words to the effect that he would prefer to have a conversation rather than a long email. Any such comment was merely reiterating what David Niker had said at the end of his email dated 2 November 2020. To that extent we find issue 7.1.6 is proved. The rest of the allegation we find not proved.

[192]We find that the facts found proved as regards 7.1.6 did constitute unwanted conduct as far as the claimant was concerned.

[193]We find that that unwanted conduct did not relate to the claimant’s protected characteristic of disability. We find that this was down to David Niker’s managerial style and the fact that, having already provided a comprehensive and long response to the claimant’s informal grievance on 15 October 2020, on 2 November 2020 David Niker would have liked to have had a conversation rather than a long email. That was his management style.

[194]Issue 7.1.7 alleges that in May 2021 the claimant saw an email from Marissa Teixeira in which she blamed the claimant for taking a key worker from her without consent and accusing the claimant of saying things behind her back, despite the claimant being on annual leave at the time, and the claimant being sent home to take time off due to this incident.

[195]As set out above, in our judgment this issue provided an important pointer as to the credibility of the claimant.

[196]In our judgment, Marissa Teixeira gave compelling evidence concerning this incident. Every prison officer had an allocation of three prisoners to look after. It was common for prison officers to act as key workers for the same prisoners due to the establishment of a trusting relationship.

[197]In order to encourage good behaviour, prisoners could obtain E-Level which entitled them to certain privileges such as extra visits/access to the gym etc.

[198]A prisoner would have to demonstrate good behaviour for a continuous period of 28 days to be eligible to obtain an E-Level. In order to obtain an E-Level a prisoner would require good conduct evidence on P-NOMIS and signatures from wing officers, gym staff, teachers or workshop instructors and key workers who were in agreement that the prisoner had met their targets, and that their behaviour was good.

[199]In early May 2021 Marissa Teixeira was a key worker for Prisoner Y. Marissa Teixeira gave evidence that she was not ready to sign off Prisoner Y’s E-Level.

[200]On 5 May 2021, the claimant sent an email to Nina Apuzzo (Key Worker CoOrdinator) stating:- “[Prisoner Y] has asked me if I can be his key worker and the reason he given is that he is not getting along with Ms Teixeira and therefore he wants me to be his key worker to which he already spoken to Ms Teixeira for a change.”

[201]Marissa Teixeira was included in the response from Nina Apuzzo who stated:- “No problem Mr Razzaq.”

[202]The claimant’s evidence is that he had previously spoken to Marissa Teixeira about the fact that Prisoner Y wanted to change key worker to the claimant. In cross examination the claimant put it to Marissa Teixeira that her response had been “I don’t care – take him.” Marissa Teixeira denied this.

[203]On 6 May 2021 Marissa Teixeira sent an email to the claimant, copying in Nicholas West, as follows:- “Razzaq, I would have appreciated if you had approached me directly first to talk about changing key workers for [Prisoner Y] in future, please do so out of common courtesy. I also did not appreciate the comments you made to [Prisoner Y] about me refraining from signing he E-Level (provided what he stated was true) as it seemed you were pitting me against you. I would not do such a thing to yourself, so please refrain from doing so to me.”

[204]We find that the email response from Marissa Teixeira is totally at variants with the alleged comment that she did not care, and that the claimant could take Prisoner Y. We find it completely implausible that Marissa Teixeira would have written such an email if what the claimant claimed was true.

[205]The claimant’s email response to Marissa Teixeira’s email is dated 11 May 2021. It is not entirely clear, but he denies any wrongdoing.

[206]In her evidence Marissa Teixeira told us that, having become Prisoner Y’s key worker, the claimant signed his E-Level and that following that Prisoner Y told Marissa Teixeira “I got the E-Level and can I have you back as a key worker as I actually liked you.” She denied making this up.

[207]Having seen and assessed Marissa Teixeira we have not doubt that she was telling the truth concerning this incident. That in turn caused us to have very significant concerns as to the credibility of the claimant. Throughout the course of the case, whenever contemporaneous documentation of what he said or did was put to him, the claimant like as not would allege that it had been made up or fabricated.

[208]We find that the Marissa Teixeira did send an email in which she blamed the claimant for taking a key worker from her without consent. We find that the email did accuse the claimant of saying things behind her back in that it references comments the claimant made to Prisoner Y about Marissa Teixeira not signing his E-Level. We find that the claimant was not on annual leave at that time. We find that the claimant was not sent home to take time off due to this incident. In actual fact the claimant went off sick on 11 May 2021 following this incident. To that extent, we find issue 7.1.7 is proved.

[209]We are prepared to accept that it was unwanted conduct as far as the claimant was concerned.

[210]We find that the unwanted conduct did not relate to the protected characteristic of disability. We find that it related to the fact that the claimant had arranged the change of key worker for Prisoner Y, signed Prisoner Y’s E-Level and thereby undermined Marissa Teixeira’s position.

[211]The claimant went off sick on 11 May 2021. His GP notes record as follows for 14 May 2021:- “Problem: Mixed anxiety and depressive disorder (new) History: Low mood; poor sleep, having angry outbursts at work and at home. Works as a prison officer, On Tuesday, there was an incident – where he had an angry outburst. Been off work since yesterday.”

[212]Issue 7.1.4 alleges that, in or around January 2021, the claimant was subjected to repeated criticism, namely:(i) Ms Teixeira alleging that the claimant needed further support as he had been absent for a long time;

(ii) Accusing the claimant of handing out IEP’s unfairly;

(iii) Accusing the claimant of giving jobs unfairly;

(iv) Accusing the claimant of taking a key worker from Ms Teixeira; and

(v) Accusing the claimant of giving incorrect behaviour entries to prisoners.

[213]We have had great difficulty in tracing the source of these allegations. We cannot locate them in the particulars of claim or indeed in the further particulars of claim document. “IEPs” Refers to Incentives and Earned Privileges Scheme which are recorded on a prisoner’s file P-NOMIS. The references to IEPs, giving jobs and taking a key worker suggests to us that these allegations do not arise in or around January 2021 but arose in the context of Prisoner Y in May 2021.

[214]Whenever this issue relates to, we have noted the evidence of Marissa Teixeira her witness statement when she states:- “With regards to the claimant’s allegation that I accused him of giving incorrect behaviour entries I believe that the claimant refers to IEP entries. Whilst I recall that on a few occasions I raised with the claimant that entries he would input on P-NOMIS were incorrect, I deny that I ever made accusations against him. If something was incorrect, I felt that it was appropriate for me to correct it, or challenge/advise the claimant appropriately.”

[215]From that we take it that on a number of occasions Marissa Teixeira talked to the claimant about the entries he would make on the P-NOMIS system. In so far as Marissa Teixeira was seeking to correct the claimant, so we are prepared to accept that that would constitute criticism. Further, Marissa Teixeira has accepted that in January 2021 she discussed with the claimant needing support. In our judgment, although the claimant had returned to work on 29 June 2020, he had had limited time back in his role. He had had a phased return to work in July 2020 and had effectively been absent from the workplace for August and September 2020. He had worked for the three months leading up to January 2021 but was still relatively new in post in terms of work experience whilst actually doing the job. Against those observations we make the following findings: (i) We find that Marissa Teixeira did tell the claimant that he needed further support as he had been absent for a long time. We do not find that this was an allegation or a criticism. In our judgment it was a perfectly legitimate comment to make. Consequently, we find issue 7.1.4 (i) not (ii),(iii), (iv) and (v). All of these issues use the word “accusing.” We do not find that Marissa Teixeira was “accusing” the claimant but raising issues where he may have got things wrong in a constructive way. That said, we find that Marissa Teixeira probably did point out to the claimant that he was handing out IEPs inappropriately, that he may have been giving jobs inappropriately and that he was giving incorrect behavior entries inappropriately. We do accept that the claimant was taken to task for taking a key worker from Marissa Teixeira without prior consultation.

[216]To that extent we find issues 7.1.4 (ii),(iii),(iv) and (v) proved.

[217]We find that from the claimant’s perspective that was unwanted conduct.

[218]We find that that unwanted conduct did not relate to the claimant’s disability. We find that the reason for this conduct was that the claimant was making errors and Marissa Teixeira was endeavoring to point out where he had got things wrong and to support him in getting it right in the future.

[219]Issue 7.1.8 alleges that between January to May 2021 and on 7 July 2021, 13 September 2021 and 11 October 2021, CM West, Governor Martin, CM Niker, Governor Barney and Governor Donohue ridiculed the claimant in a grievance hearing, namely:(i) Accusing the claimant of being manipulative, making things up and raising a grievance for no reason;

(ii) Defending other people over the claimant, and favouring the account of Ms Teixeira despite the facts differing between the claimant and Ms Teixeira and Ms Teixeira changing previously agreed facts;

(iii) Deciding on the outcome of the grievance without first hearing from the claimant.

[220]Issue 6.2.8 alleges that Mr Barney blamed the claimant for being manipulative in a hearing dated around mid 2021. This appears to be the same as in issue 7.1.8(i).

[221]On 7 July 2021, the claimant lodged a grievance. This related to the January 2021 incident concerning Prisoner X and the May 2021 incident concerning Prisoner Y. The grievance meeting took place on 8 Septemebr 2021. The grievance hearing was held by Nicholas West with Paul Barney as notetaker.

[222]Despite this issue containing the dates January to May 2021, 7 July 2021, 13 September 2021 and 11 October 2021, we do not understand the basis upon which these dates have been included given that the allegation relates to a grievance hearing. The grievance hearing was held on 8 September 2021, and we have treated these issues as relating to that and that alone. Consequently, these allegations must fail against Governor Martin, CM Niker and Governor Donoghue as they were not present.

[223]The accusation concerning comments to the claimant that he was being manipulative, making things up and raising a grievance for no reason is made against Paul Barney. Paul Barney’s evidence was that he was simply a notetaker and played no part in the hearing. That said, no notes have been produced before us. In any event, the nature of the comments alleged are such that they are unlikely to have been recorded in any notes. Paul Barney denies making the comments alleged. Nicholas West’s account in his witness statement is as follows:- “I felt during the meeting that the claimant was getting angry and reacting negatively to some of the information we were discussing. Mr Dhuranni had to calm the claimant several times. I deny ridiculing the claimant or accusing him of being manipulative, or of making things up.”

[224]We accept the evidence of Nicholas West and Paul Barney that these comments were not made. Even if they were made, in our judgment, they arose out of frustration and were not related to the claimant’s disability. Accordingly, we find issues 6.2.8 and 7.1.8(i) not proved.

[225]The grievance outcome is dated 13 September 2021. In our judgment it is a balanced response. In essence, both sides contentions are set out and the result was that there would be external mediation between the claimant and Marissa Teixeira. We do not find that Marissa Teixeira’s account was favoured. Further, we do not find that Marissa Teixeira changed previously agreed facts. As has already been set out above, in actual fact we prefer the account of Marisa Teixeira. Accordingly, issue 7.1.8(ii) is not proved.

[226]We have seen no evidence at all that suggests to us that he outcome of the grievance was determined prior to hearing from the claimant. We find that it was not. Accordingly issue 7.1.8(iii) is not proved.

[227]Issue 7.1.9 is that between October to November 2021, CM Niker, Governor Martin and/or Governor Laws failed to hear the claimant’s grievances for harassment promptly and/or parts of them in their entirety;

[228]The grievance outcome was dated 13 September 2021. Accordingly, due to the dates, this issue must relate to the appeal. The claimant appealed the grievance outcome on 23 September 2021. It is recorded as being received on 24 October 2021. The policy references working days and it is not clear to us what a working day is in the context of a prison which, by definition, is a seven day a week operation. However, on the basis that there are five administrative working days a week, then hearing the grievance appeal on 22 October 2021 would be in accordance with the policy. Consequently, we find that the grievance appeal was heard promptly.

[229]The grievance appeal was heard by Emma Laws. As such this issue must fail against CM Niker and Governor Martin.

[230]The grievance outcome response is dated 28 October 2021. It is correct to say that Emma Laws declined to hear some aspects of the appeal on the basis that they had not formed part of the original grievance. The claimant was advised that any additional issues that he wanted to raise should be submitted in another grievance. We find that Emma Laws did not fail to hear the claimant’s grievance in its entirety. Consequently we find issue 7.1.9 is not proved.

[231]Issue 7.1.10 is an allegation that the respondent intentionally ignored rules and procedures, namely:(i) Not following timescales for hearing the claimant’s grievances, appeals and formal or informal complaints;

(ii) Failure to follow PSO8550 in connection with the claimant’s appeals of July 2021, September 2021, 22 October 2021 and 24 March 2022 (namely proceeding with the appeals without the presence of the Head of Equality and a union member);

(iii) Not sending the appeal outcomes to the claimant’s personal email address;

(iv) Failing to hear the claimant’s grievance within 20 working days; and

(v) Failing to follow the A101/2017 to engage with the claimant to resolve the issues.

[232]PSO 8550 is the Staff Grievance Policy.

[233]The claimant’s first grievance was lodged on 7 July 2021.

[234]From the Staff Contact & Referral Record the claimant was invited to a grievance meeting on 22 July 2021 which was within the 20 day time limit. On 13 July, the claimant confirmed the date but also requested that he would like Mr Durrani to attend. On 14 July Nicholas West confirmed that the meeting had been moved to the morning and arrangements made so that Mr Durrani could attend. On 18 July Nicholas West informed the claimant that Mr Durrani would not be able to be present for the scheduled meeting. On 19 July 2021, the claimant emailed Nicholas West asking to reconvene the meeting on 29 July 2021. On 19 July 2021 Nicholas West replied to the claimant that they would have to reconvene the meeting in September as he was on annual leave or nights until 6 September 2021.

[235]The grievance hearing took place on 8 September 2021.

[236]The outcome is dated 13 September 2021 and in evidence the claimant said he did not know when he received it. We assume it was sent to the claimant within 10 working days of the meeting. As already recorded, the grievance appeal was heard within the relevant timescale. The outcome of the grievance appeal was again sent to the claimant’s work email address within the requisite timescale.

[237]Against that background we consider the specific allegations:(i) It is a fact that the claimant’s grievance dated 7 July 2021 was not heard within 20 working days. Save as aforesaid, the claimant’s grievance and grievance appeal were heard in accordance with the policy timescales. There are no timescales for informal complaints. We do not find that the failure to comply with the timescale for the hearing of the grievance was an intentional ignoring of that policy. The time was extended due to the availability of the claimant’s colleague, Mr Durrani, and the fact that Nicholas West was unavailable on annual leave and/or night shifts. As such we find issue 7.1.10(i) not proved. The claimant sought to advance an argument that Nicholas West should have come in earlier on his night shift to deal with the grievance, but we find that that would have been totally impracticable.

(ii) This allegation relates to the grievance appeal. It cross references the policy at 4.4 which provides:- “Appeals will be considered by a local appeal panel chaired by a more senior manager than at Stage 1… a representative from HR will also be a standing member of the panel. The trade union representative will normally be a staff member at the originating establishment/group.” We have an email dated 11 October 2021 from Emma Laws to Clare Fudge (HR). In this email she is seeking to set up the grievance appeal hearing and states:- “Having spoken to our POA they have said they won’t represent at a meeting, therefore it would just be yourself and me with him and his rep.” We find that Emma Laws contacted the Prison Officer Association Trade Union to arrange for a member to sit on the appeal panel but that this was declined. Consequently, we do not find that the respondent intentionally ignored the policy. Accordingly we find issue 7.1.10(ii) not

(iii) The appeal outcome was not sent to the claimant’s personal email address. As such issue 7.1.10(iii) is proved. The appeal outcome was sent to the claimant’s work email address on 3 November 2021. The claimant had returned to work from sickness on 6 October 2021. Emma Laws states that she does not recall being asked to send the outcome to the claimant’s private email address. We are prepared to accept that not sending the appeal outcome to the claimant’s personal email address was unwanted conduct. We do not find that the unwanted conduct was because of the protected characteristic of disability. We find that, as might be expected, it was sent to his work email address where he had access to it and that not sending it to his personal email address was no more than an administrative oversight at worst.

(iv) We have found that there was a failure to hear the claimant’s grievance within 20 working days. As already indicated above, we have found that that was not an intentional ignoring of the rules and was for good cause. As such we find it was not a failure. Consequently we find issue 7.1.10 (iv) not proved.

(v) AI01/2017 has not been produced to us but is refenced in the Attendance Management Policy. In any event, we find that there was no failure to engage with the claimant to resolve the issues. His grievance and grievance appeal were heard and the outcome, namely mediation between the claimant and Marissa Teixeira was agreed. Consequently we find issue 7.1.10 (v) not proved.

[238]Issue 8.1.1 alleges that CM Niker forced the claimant to take holidays between January 2021 and March 2021.

[239]The respondent has an Annual Leave Policy. The normal carry over policy allowed a maximum of nine days annual leave to be carried over from one leave year to the next.

[240]Clause 2.45 recites:- “Employees who are/have been on long term sickness absence… can, in certain circumstances, carry forward more annual leave that these limits. The following rules apply…  Employees are not obliged to take accrued annual leave before their return to work. However, if they return to work and have had the opportunity to take the leave before the end of their leave year, but did not ask to do so, then any excess over normal carry over limits will be lost.  Managers can also ask employees to take accrued annual leave, subject to giving the required notice. Managers have a shared responsibility to ensure that accrued annual leave is used as soon as practicable. However, if employees have the opportunity to take annual leave but do not do so, any excess over normal carry over limits will be lost.”

[241]The leave year ended on 28 February. The evidence of David Niker was that in the period January to March he would encourage staff to take their leave so that they did not lose it.

[242]By January 2021, the claimant had accrued a lot of untaken annual leave due to his sickness absence from June 2019. By mid-January 2021, the claimant had six weeks annual leave outstanding and it is a fact that if he had not taken it then he would have lost all or some of it. The claimant’s complaint in his oral evidence was that he was not given notice. However, had he been given notice then he would have lost some of his annual leave. We accept the evidence of David Niker that the claimant was encouraged to take his outstanding annual leave. Consequently we find issue 8.1.1 not proved as the claimant was not forced to take annual leave. He was encouraged to do so in his own interests.

[243]Issue 8.1.3 alleges that CM Brown, CM Holliday or CM Niker failed to refer the claimant to Occupational Health in January 2022.

[244]David Niker ceased being the claimant’s line manager in March 2021. It would appear that CM Brown took over.

[245]We have an Occupational Health report dated 12 January 2022. This references an Occupational Health report provided on 26 October 2021. We do not have that earlier Occupational Health report.

[246]On 11 December 2021, the claimant went off sick. The Occupational Health report of 12 January 2022 references a business referral on 11 October 2021. The claimant had a telephone consultation with Dr Dar, Consultant Occupational Physician, on 12 January 2022. Dr Dar recommended the claimant be moved into a non-operational duty and the follow on action advice was further counselling with the comment; “This service does not require approval and the manager needs to take no action.” We find that there was no duty on CM Brown, CM Holliday or CM Niker to refer the claimant to Occupational Health in January 2022 and, as such, there was no failure to do so. Consequently we find issue 8.1.3 not proved.

[247]Issue 8.1.4 alleges that CM Garbett, CM Niker, CM West, Governor Barney, Governor Martin and Governor Donohue failed to follow recommendations of Occupational Health in failing to allow the claimant to undertake a non-prisoner facing role and not allowing the claimant time off for EMDR sessions.

[248]Although this issue is undated, it cross references to paragraph 13 of the particulars of claim and on our reading relates to January 2022. As already recited the Occupational Health report of 12 January 2022 recommended the claimant be moved to a non-operational duty.

[249]We have a Prison Officer Work Safety Assessment dated 17 January 2022. In the “Amended Duties Safety Assessment” section the control measures for prisoner contact/risk of violence are recorded as “No prisoner contact.” The “Safety assessment outcomes” section recites:- “As you are not able to complete your full duties, we have agreed to place you on amended duties. You will work within the Legal Visits Department helping with covid testing. This will remain in place for 12 weeks provisionally. Review date 11/04/2022”.

[250]The report recites that EMDR is continuing through Occupational Health.

[251]Between 17 January 2022 and 12 June 2022 when the claimant transferred to the Home Office, the claimant was at work relatively infrequently. He is recorded as off sick from 21 January to 9 February, 22 February to 23 February, 29 March to 10 April, 13 April to 30 April, 3 May to 15 May and 24 May to 12 June. There are gaps between those dates but we were not told if the claimant took any of those gaps as annual leave.

[252]We have had no evidence to the effect that there was a failure to follow Occupational Health recommendations for the claimant to be on a non-prisoner facing role after 17 January 2022. The claimant’s evidence was confused, and he referenced Mark Garbett who had long since finished being his line manager. Consequently, we do not find that there was a failure to follow Occupational Health recommendations that the claimant be allowed to undertake non-prisoner facing roles. Further, as recorded in the Prison Officer Work Safety Assessment, the claimant’s EMDR sessions were continuing. For the same reasons as previously recorded, we find that there was no failure to allow the claimant time off for EMDR sessions as and when required. Accordingly, we find issue 8.1.4 not proved.

[253]Issue 8.1.5 alleges that CM West, Governor Martin, Governor Donohue and Governor Barney reduced the claimant’s pay to half pay in August 2021.

[254]The claimant went on sick leave on 11 May 2021. From 11 May 2021 until 11 August 2021 he was on full pay. He was on half pay from 12 August 2021 to 5 October 2021. As such the claimant’s pay did reduce to half pay in August 2021. We find that this would not have been as a result of any decision made by CM West, Governor Martin, Governor Donohue or Governor Barney. This would have been automatic and in accordance with the pay policy which entitled the claimant to three months sick pay as determined by his length of service at that stage. In order to obtain more sick pay on a full pay basis he had to make an excusal application which he had not done at that stage. Accordingly, to that extent, issues 8.1.5 and 6.2.3 are proved.

[255]We find that that was a detriment. We find that it was not because the claimant had done a protected act. We find it was because he had exhausted his contractual right to full sick pay.

[256]We have gone on to consider whether that was less favourable treatment. We have taken a hypothetical comparator, namely a colleague with similar length of service who had been absent for three months and was not disabled. In our judgment, such a hypothetical comparator would have been treated in exactly the same way. Consequently we find that this was not less favourable treatment.

[257]Issue 8.1.6 alleges that CM West, Governor Martin, Governor Donoghue and Governor Barney refused the claimant’s sick leave excusal application in September 2021.

[258]On 25 August 2021, the claimant made an application for sick leave excusal. The reason for the application was “assault” and it was the claimant’s case that his sickness absence from 11 May 2021 was because of the assault.

[259]Nicholas West considered the application. He assessed the incapacity cause as work-related stress. In his reasoning he stated:- “Officer Razzaq’s absence resulted from a breakdown in professional relations with another member of staff (Officer Teixeira) with an initial argument between the two occurring in January 2021 around working styles to which Officer Razzaq took offence… While Officer Razzaq links the absence to his previous injury through assault at work and disabilities incurred from that incident, I note that his initial sick notes state his reason for absence as mixed anxiety and depressive disorder rather than post traumatic stress, while I consider with the available evidence that Officer Razzaq’s mental state has obviously been impacted by the assault I cannot state that the assault was a direct contribution to the cause of absence in this instance.”

[260]We have an Occupational Health report dated 11 June 2021. This states:- “Reason for referral: Officer Razzaq was assaulted badly at work approx 2 years ago. Current work related issues stem from dispute with another member of staff but may have some basis in PTSD.”

[261]Dean Donohue considered the application. In the section beginning:- “Based on the evidence provided by the employee or their representative and manager, do you consider that this employee meets the criteria for sick leave excusal for assault or any injury, disease, condition, work related stress?” Dean Donohue answered “No.” He ticked the box for a reference back to the medical practitioner for further medical advice but stated:- “This application is not supported. None of this absence is in relation to the assault of June 2019, of which Officer Razzaq but a personal fall out with a member of staff. His line managers have tried everything to resolve this, even with the other party willing to mediate. His last OH report states this is due to falling out with a work colleague – NOT SUPPORTED”

[262]Dean Donohue’s evidence is that he did not know what happened to the application beyond this point. From the claimant’s payslips it is clear that the application was not successful as he continued to be paid on half pay until he returned from sick leave. We find that Governor Martin and Governor Barney were not involved in the sick leave excusal application. We find that CM West and Governor Donohue did not recommend the claimant’s sick leave excusal application in September 2021. To that extent we find issue 8.1.6 is proved.

[263]We have gone on to consider whether that was less favorable treatment. We have taken a hypothetical comparator, namely a colleague in the same situation but who was not disabled. In our judgment such a colleague would have been treated exactly the same. In the absence of sufficient evidence linking the sickness absence with the assault, the leave excusal application would not have been supported and therefore the comparator would also have dropped down to half pay.

[264]Issue 9.3.1 sets out that the claimant’s need to see Occupational Health, the claimant’s GP and/or his EMDR therapist arose as a consequence of his disability. We find that those things did arise in consequence of the claimant’s disability.

[265]The unfavorable treatment relied upon by the claimant that we have found proved is that set out in issues 8.1.5 and 8.1.6. We accept that they constituted unfavorable treatment from the claimant’s perspective.

[266]We find that that unfavorable treatment was not because of the things arising. The claimant’s reduction to half pay in August 2021 and the non-support of his sick leave excusal application were due to the sick pay policy and his managers considering that his sickness absence was not related to his assault. We find they were nothing to do with his need to see Occupational Health, his GP and/or his EMDR therapist.

[267]Issue 10.2 alleges a PCP that the claimant was required to work on prisoner facing or operational duties. We find that the respondent did have that PCP. It was, after all, the claimant’s job.

[268]It is the claimant’s case that the PCP put him at a substantial disadvantage compared to someone without the claimant’s disabilities in that it is alleged that the claimant experienced flashbacks to the prior assault and/or experienced anxiety/triggering PTSD.

[269]The claimant’s witness statement does not deal with this issue. The claimant’s impact statement dated 19 May 2021 does not deal with this issue. Consequently, we have examined the Occupational Health reports. The Occupational Health report dated 13 June 2020 references:- “Mr Razzaq says his psychological symptoms increased late last year. He says this followed him seeing a photo in the paper of an individual who Mr Razzaq believed was the person who assaulted him at work last June.”

[270]In actual fact, the person in the photo was a different member of the family.

[271]The Occupational Health report dated 3 July 2020 states:- “I have discussed with him a way of desensitisation in order that he may be able to go back to the actual area where the assault occurred and limit his anxiety level rising due to being in that location. It is recommended he just goes on to the specific wing when the offenders are locked up for about five minutes several times and then gradually each time move further into the wing so that eventually he is able to stand in the area of the assault. This is likely to take about a month.”

[272]The Occupational Health report of 29 September 2020 reported that the claimant was fit to work but with the benefit of support.

[273]The Occupational Health report from 11 June 2021 cited that the current work related issues stem from the dispute with another member of staff. The report states:- “Mr Razzaq remains emotionally vulnerable at this time. He spoke of the re-triggering of trauma reactions.”

[274]However, this was in the context of work related issues with another member of staff.

[275]In the Occupational Health report dated 12 January 2022 it was reported that the claimant was fit to undertake work activity, but concern was expressed as to his emotional robustness and the advice was that he should be moved into a nonoperational duty.

[276]On the evidence before us we do not find that the claimant was put at a substantial disadvantage compared with a non-disabled person because of the PCP. We have seen no evidence of the claimant experiencing flashbacks to the prior assault and/or experiencing anxiety/triggering PTSD by virtue of the PCP. We do have evidence that the claimant was triggered by seeing a picture in a newspaper and by the dispute with Marissa Teixeira. The claimant was working on prisoner facing or operational duties (albeit that he may have been working “above the numbers” (ie as an extra on the shift without C & R duties)) in October, November and December 2020 and into 2021. At no point did the claimant complain to Occupational Health about problems with flashbacks/prisoner facing duties causing anxiety or triggering his PTSD. It is clear to us that the claimant is not reticent in articulating any complaints he may have.

[277]Even if we are wrong on that issue, we would find that the claimant was not put to that substantial disadvantage and, in any event, we would find that the respondent did not know or could not reasonably have been expected to know that the claimant was likely to be placed at those disadvantages because of the contents of the Occupational Health reports.

[278]Consequently we do not need to consider the alleged reasonable adjustments.

[279]Issues11.1 and

11.2 relate to the claimant going onto half pay during sickness absence from August 2021 until 5 October 2021. This was due to the fact that his sick leave excusal application was refused. The reduction in his pay was in line with the sick pay policy. Consequently we find that the claimant was not owed pay from August, September and October 2021 and those sums were not properly payable. Accordingly, issues 11.1 and 11.2 are not proved.

[280]Issue 11.3 is that the claimant says that between June 2020 and 13 October 2021 he worked 39 hours per week but was only paid for 37 hours per week. The claimant says he is owed 140 hours across this 70 week period and the amount of £1,984 was properly payable.

[281]As recited above, the claimant’s contract of employment was based on 37 hours per week. Pursuant to the terms of the claimant’s contract of employment any hours worked in excess of that would be repaid by TOIL, not by way of an additional payment.

[282]It would appear that when the claimant returned to work on 29 June 2020 he was put on a 39 hour shift pattern instead of 37 hours. We have an email dated 10 May 2021 from Melaine Sawh which states:- “We need to change your shift pattern slightly as you are currently on a 39 hour shift pattern instead of 37 hours.”

[283]The claimant replied complaining about being put on a 39 hours shift pattern and asking why he had not been paid. Melanie Sawh confirmed on 11 May 2021 that the claimant had been placed on a 37 hour a week shift pattern for the week commencing 13 June 2021.

[284]As already found, the claimant was on a phased return to work in July 2020. Accordingly, we find that he did not work 39 hours per week. As already found, the claimant was continuously absent from work for August and September 2020. The claimant returned in October 2020 and worked until mid-January when he took six weeks leave. The claimant went off sick on 11 May 2021. Hence, at best, this claim represents six months or 26 weeks = 52 hours.

[285]The claimant raised this issue in a grievance dated 12 October 2021. In his complaint he states:- “… which I have been informed and now confirmed by CM West on 11-10-2021 that the hours I did will be paid back as TOIL and not in any other means as he confirmed with the CM of the details.” He goes on to state:- “Further, I have told the management that I am coming back on 06-10-2021 but I have been forced to take holidays and start on 11-10-2021, …”

[286]Hence, it would appear the claimant had a number of days off TOIL from 6 October 2021. Further, we have a work schedule from 11 October – 14 October 2021 which records the claimant having 22 hours’ time off in lieu during that month. We are not sure what that relates to.

[287]The grievance in relation to the hours was remitted by Paul Barney to the People Hub. What happened to it thereafter we know not.

[288]We find that any hours that the claimant worked in excess of his contractual hours were to be rewarded by TOIL. We have evidence that the claimant had TOIL from 6 October for a number of days. We have evidence the claimant had TOIL in October 2021, following the comments that the claimant has attributed to Nicholas West. In our judgment it was up to the claimant to claim time off in lieu as and when he was owed it. We find that this claim has not been proved.

[289]Issue 12.1 asked the question “Did the respondent have actual or constructive knowledge of the claimant’s disabilities at the material time.” We have taken the material time to be January 2022 until 13 June 2022. We find that the respondent did have actual knowledge of the claimant’s disabilities by virtue of the Occupational Health reports that have reported that he did probably qualify as disabled within the meaning of the Equality Act 2010.

[290]Issue 12.2 alleges that the respondent had a PCP as follows:- “12.2.1 The need to perform operational duties and/or prisoner facing duties from 26 February 2022 to 13 June 2022. “

[291]The claimant says this was “Allowed to Mr Ralys, Mr Riley, Mr Rogers, Mr Page, Mr Scott, Mr Bryant, Mr Doe, Mr Brown (CM Brown himself), Ms Fraser, Ms Rudi, Ms Scott, Ms Toland and many others.”

[292]Although the issue as defined does not read in this way, by reference to the third claim it is clear that the claimant is comparing himself to the list of other people who he says were moved to non-operational or placed in other roles to accommodate them.

[293]We have already referenced the prison officer work safety assessment dated 17 January 2022 which amended the claimant’s duties in light of the Occupational Health recommendations. The claimant was put on no prisoner contact and placed on amended duties for 12 weeks. We have had no evidence other than that, for the brief times the claimant was at work thereafter, he was not on those amended duties. Consequently, we find that the PCP alleged was not applied to the claimant at the relevant time.

[294]Issue 13.1.1 alleges that, in a grievance meeting on 24 March 2022 and in email correspondence beforehand dated 28 February 2022 and 8 March 2022, Governor Barney made false accusations (namely accusing the claimant of manipulating things, twisting things in his favour, confusing people by talking about different things, bringing unnecessary grievances, incorrectly interpreting things in the claimant’s favour).

[295]The background to this allegation is that the claimant made an application for special leave to attend a preliminary hearing at the employment tribunal. The hearing was scheduled for 3 November 2021 and the claimant initially asked for annual leave which was granted. However, on 27 October 2021 he applied to have special leave to attend.

[296]On 2 November 2021, Paul Barney advised the claimant that the correct procedure for applying for special leave was through the ‘My Hub’ portal.

[297]In due course the claimant submitted a special leave application form for 3 November 2021 on 30 November 2021. Presumably, he was applying retrospectively in the hope that he would get paid leave. On 2 December 2021 Paul Barney rejected the application on the grounds that it did not comply with special leave policy for paid leave. The policy states:- “An employee who is called upon in his/her official capacity to give evidence in criminal or civil proceedings, in a coroner’s court, or to attend another outside body as a witness or in some other capacity, is regarded as being on official duty.”

[298]As it was the claimant’s own personal case so special leave was refused. Special leave without pay was supported though.

[299]On 13 December 2021, Dean Donohue rejected the claimant’s application.

[300]On 12 February 2022, the claimant submitted a grievance concerning the refusal to grant his special leave to attend the employment tribunal. However, the correct procedure concerning special leave was to appeal to the Governor. This was explained to the claimant on 28 February 2022. The claimant maintained that a grievance was the correct procedure and Paul Barney responded on 28 February 2022 in an email which stated that the claimant had made an incorrect assumption that the respondent had withheld information and pointed out that submitting a grievance where an appeal to the governor was the correct process was “bringing another process into play that only serves to confuse rather than resolve your issue.” We find that the email dated 28 February 2022 did not make false accusations.

[301]Later on 28 February 2022 the claimant reasserted that his grievance was the correct process. On 8 March 2022, Paul Barney emailed the claimant to say that he would deal with the grievance. No accusations of any kind were made in that email.

[302]The claimant’s grievance meeting was held on 24 March 2022. The claimant was accompanied by Mr Durrani. Paul Barney denies making the comments alleged although he accepts that the claimant became upset during the course of the meeting and that he did refer to the fact that the claimant had raised several grievances especially given his short employment.

[303]After the hearing had begun the claimant produced an unsigned witness statement purporting to be from Mr Fahad Durrani. This references a meeting with Paul Barney. The only evidence tendered is a remark by Paul Barney that the claimant would “have to go in front of Number 1 (The Head Governor) for a FARM meeting.” The alleged comments are not corroborated by Mr Durrani.

[304]Nevertheless, we find that such comments were probably made. For obvious reasons they are not recorded in the meeting notes on the grievance form. However, in our judgment, such comments are readily understandable given the claimant’s approach and attitude. The policy on special leave had been explained to him along with the correct appeal route.

[305]We accept that the conduct was unwanted.

[306]We find that the conduct did not relate to the protected characteristic of disability. We find that such comments as were made were because of management frustration with the claimant’s attitude.

[307]Issue 13.1.2 is a general one concerning the respondent aggravating the claimant’s mental health by making false comments (namely referring to the claimant as having made incorrect assumptions, withholding information, the claimant being confusing, being manipulative and exaggerating facts).

[308]We find this allegation very vague and are unsure what it refers to. If it is referring to the grievance meeting on 24 March 2022, then our findings are as per issue 13.1.1. If it goes wider than the grievance meeting on 24 March 2022, then we find that the claimant has failed to prove these allegations.

[309]On 4 June 2020, the claimant presented claim number 3305321/2020 to the Employment Tribunal. On 26 February 2022, the claimant presented claim number 3302419/2022 to the Employment Tribunal. We find that these were protected acts within the meaning of s.27 Equality Act 2010.

[310]Issue 14.2.1 is that from June 2020 Ms Teixeira, Ms McColgan, Mr Lloyd and Ms Toland accused the claimant of manipulating facts to gain money in the Employment Tribunal.

[311]Marisa Teixeira, Andrew Lloyd and Zane McColgan all deny making such remarks or hearing them. We did not hear form Ms Toland. Faced with such a general accusation it is inevitable that those who were accused can do no more than a blanket denial. Indeed, in the claim form the allegation is merely made against the respondent. We find that the claimant has failed to prove this allegation. Consequently, issue 14.2.1 is not proved.

[312]Issue 14.2.2 is the respondent not making reasonable adjustments and instead intending to proceed with the formal absence review process to dismiss the claimant after the meeting on 24 March 2022.

[313]We have already found that from 17 January 2022 the claimant was at work relatively infrequently and that we had no evidence that the reasonable adjustments recommended by Occupational Health were not followed.

[314]We have an Occupational Health report dated 31 March 2022 which states:- “Current capacity for work Mr Razzaq is considered unfit at the time of today’s consultation. I am not able to offer a specific date for a return. A non-operational role will likely expedite his resumption to work.”

[315]The claimant has disclosed some handwritten notes from a meeting on 1 April 2022. The meeting was with Paul Barney. It would appear that three options were set out by Paul Barney, namely that the claimant could remain sick, could remain on restricted duties or could return to full duties. The first two of those would, however, result in the claimant being dealt with through the FARM Absence Review process and he would probably be dismissed.

[316]However, we find that there was no failure to make reasonable adjustments. Consequently, issue 14.2.2 is not proved.

[317]Issue 14.2.3 is extending the claimant’s probation in September/October 2020.

[318]As with issue 4.1.3 we have found this proved.

[319]As with issue 4.1.3 we find, for the same reasons, that this was not detrimental treatment.

[320]Issue 14.2.4 is an alleged failure to grant sick leave excusal in May 2021 and resulting reduction in pay between August to October 2021.

[321]In actual fact the sick leave excusal was not supported in August 2021. Nevertheless, we find issue 14.2.4 is proved.

[322]We find that that was detrimental treatment.

[323]We find that the treatment was not done because the claimant did the protected acts. We find that the refusal to grant sick leave excusal was due to the fact that the respondent reasonably considered that the claimant’s sick leave was not caused, or principally caused, by the assault.

[324]Issue 14.2.5 is an allegation of failing to hear the claimant’s formal and informal complaints in early 2021 by CM Niker, or in July or October 2021 by CM West.

[325]We have found that the claimant did send an email on 21 January 2021 to David Niker and that certain issues were raised in that email although we have no evidence as to precisely what. We have found that David Niker said words to the effect that he would “prefer to have a conversation rather than a long email.” To that extent issue 14.2.5 is proved.

[326]We are prepared to accept that that was detrimental treatment.

[327]We find that that treatment was not done because the claimant did a protected act. We find that it was because David Niker had already provided a very full response to a previous complaint by the claimant and that, as he said at the end of his email dated 2 November 2020, he preferred to deal with the issue in a conversation.

[328]The claimant’s grievance was heard by Nicholas West on 8 September 2021. As such, we find that there was no failure to hear the claimant’s formal complaints as of that date. We do not understand the reference in this issue to July or October 2021. Accordingly, issue 14.2.5 is not proved.

[329]Issue 14.2.6 is that from June 2020 until October 2021 the claimant was forced to work in a prison facing role and on full duties and Occupational Health recommendations were ignored.

[330]As with issue 6.2.5 we have found that the claimant was put on prisoner facing roles on his return to work in July 2020. As per issue 8.1.4 we have found that Occupational Health recommendations were not ignored. We find that the claimant was not ‘forced’ to work in that role. As such, issue 14.2.6 is not proved.

[331]In any event, we find that the treatment proved was not detrimental treatment for the same reasons as under issue 6.2.5.

[332]Issue 14.2.7 is that in March 2022 Governor Barney accused the claimant of making things up.

[333]We have found that Governor Barney may have made a comment along those lines. Accordingly, issue 14.2.7 is proved.

[334]We find that that treatment was a detriment.

[335]We do not find that the treatment was because the claimant did the protected acts. We find that they were borne of managerial frustration.

[336]Issue 14.2.8 is that CM Garbett in June 2020, CM Niker in January 2021 and CM West in May 20212 failed to investigate the claimant’s concerns and allowing the claimant’s colleagues to harass him.

[337]Once again, these allegations are very general and lack detail

[338]Mark Garbett’s dealings with the claimant in June 2020 was to arrange for and facilitate his return to work. The Occupational health recommendations were followed and a gradual return to work put in place. The claimant returned to work on residential wings and was placed “above the numbers.” As such, we find that the claimant’s concerns were investigated and taken into account.

[339]We have already made findings in relation to David Niker in January 2021 and Nicholas West in May 2021. (issue 14.2.5). For the same reasons, we do not find they amounted to a detriment and/or the detrimental treatment was because of the protected acts.

[340]We find that the claimant has not proved that those individuals allowed the claimant’s colleagues to harass him.

[341]Consequently issue 14.2.8 is not proved.

[342]Issue 15.1.1 is that between January and May 2022 (by Governor Barney and CM Brown) the claimant was not permitted to work in a different department.

[343]From the claimant’s claim form it would appear that the reference to working in another department is to working in a non-prisoner facing role. We have already found that the claimant was scheduled for a phased return to work during this period and that we have no evidence that that was not put in place for the brief periods that the claimant was at work. As has already been found, there was no question of allowing the claimant to work in a different department on a permanent basis. As such, we find issue 15.1.1 not proved.

[344]Issue 15.1.2 is that on or around 24 March 2022 Governor Barney chaired the grievance hearing and stated that the claimant was manipulative in his emails and conversations and making everything up. Officer Durrani pulling the claimant out of the meeting.

[345]We have already made our findings concerning what we find Paul Barney said on 24 March 2022 at the grievance hearing. The notes of the hearing confirmed that Officer Durrani went with the claimant out of the meeting when he became upset.

[346]To that extent, we find issue 15.1.2 proved.

[347]We have considered the claimant’s chosen comparators. We do not have sufficient information to determine whether they were or were not in not materially different circumstances. Consequently, we have considered a hypothetical comparator. In our judgment, such a hypothetical comparator would have been treated in exactly the same way. Consequently, we find there was no less favourable treatment.

[348]For the above reasons all the claimant’s claims are dismissed.

[349]Due to our findings so far, we do not deal with the time limits/jurisdiction points. Approved by:

The facts

[1]By the start of this hearing the claimant had failed to serve a witness statement.

[2]There have been no less than seven preliminary hearings in these claims.

[3]On 28 February 2023 these claims were listed to be heard from 6 January 2025 for 14 days. The claimant has therefore known about the hearing for 1 year 10 months.

[4]On 8 February 2024 case management orders were made. The respondent was ordered to produce a draft final list of issues and serve it on the claimant by 12 April 2024. The respondent did this on 18 April 2024. The claimant has not complied with the order to agree the final list of issues. However, the claimant has had the final list of issues for eight and a half months and has therefore been able to see what factual and other issues he needed to address in a witness statement for that period of time.

[5]The claimant was ordered to serve a schedule of loss by 28 March 2024, and he complied with this. The respondent was ordered to serve a counter schedule of loss by 19 April 2024 and the respondent has only recently complied with this. The parties were ordered to exchange list of documents by 31 May 2024. The claimant applied for an extension of time on 30 May 2024 and sent his documents to the respondent on 10 June 2024. The respondent has not complied with this order.

[6]The parties were ordered to exchange witness statements by 13 September 2024. The claimant has therefore known of the need to prepare a witness statement for 11 months.

[7]On 10 September 2024 the claimant wrote to the respondent requesting a seven-day extension for the exchange of witness statements.

[8]On 13 September 2024 the respondent replied proposing 9 December 2024 for exchange of witness statements.

[9]On 16 September 2024 the claimant suggested exchange of witness statements in early October 2024.

[10]On 4 October 2024 the claimant suggested exchange of witness statements by 8 November 2024.

[11]The respondent replied applying for an extension of time for exchange of witness statements to 2 December 2024.

[12]On 9 October 2024 the respondent sent the hearing bundle to the claimant.

[13]On 12 October 2024 the claimant objected to the respondent’s application for an extension of time for exchange of witness statements stating: “The claimant has prepared the statements on time and ready to exchange and ask one week extension because R failed to respond email previously…”

[14]The claimant told us that at that stage he had a written statement ready to be exchanged based on his evidence.

[15]On 19 October 2024 the claimant applied to the tribunal to strike out the response for failure to comply with case management orders. The claimant referenced the 8th February 2024 order and pointed out that the respondent was in breach as regard a list of issues, a counter schedule, a list of documents, agreeing the bundle and exchanging witness statements by 13 September 2024.

[16]On 24 October 2024 the respondent accepted that there had been slippage in the timetable and pointed out that the claimant had not confirmed the list of issues.

[17]On 9 November 2024 the claimant replied stating that he only had time at weekends to work on the statements and that he could not see that the hearing in January could go ahead. That was the last communication the claimant had with the respondent prior to today.

[18]The final hearing bundle was sent to the claimant on 18 November 2024.

[19]The application was placed before Employment Judge Daniels who directed the parties be written to as follows on 22 November 2024: “The claimant’s application to strike out the response is dismissed. It appears to the Employment Judge that both sides have contributed to the delays, including the claimant not replying to the draft list of issues. A fair trial is still plainly possible. Both parties should, however, urgently now co-operate and prioritise action to ensure compliance with all outstanding orders as soon as possible.”

[20]The claimant appealed that decision to the EAT on 7 December 2024.

[21]On 12 December 2024 the respondent sent its witness statements to the claimant non-password protected. On the same day, on 12 December 2024, the respondent applied to the tribunal for an unless order to compel the claimant to serve his witness statement by 20 December 2024.

[22]The application for an unless order was considered by Employment Judge Young on 31 December 2024, and she directed that it would be dealt with at the start of this hearing.

[23]The claimant’s position today was, in effect, that he had not had time to prepare his witness statement and that he needed time to do so. We took this to be an application to postpone the hearing. The respondent’s position was that an unless order was no longer relevant and that there were, in effect, only three potential options. These were to proceed, to postpone or to strike out the claimant’s claims.

[24]Applications to postpone are dealt with by Rule 32 (Employment Tribunal Procedure Rules 2024) which provides: “32-(1) An application for a postponement must be received by the Tribunal as soon as possible after the need for a postponement becomes known.

(2) In the circumstances listed in paragraph (3) the Tribunal may only order a postponement where – (a) all other parties consent… or (c) there are exceptional circumstances .

(3) The circumstances are – (a) a party makes an application for a postponement less than 7 days before the date on which the hearing begins.”

[25]The respondent does not agree a postponement. The application is made on the first morning of the hearing.

[26]The claimant sought to explain his failure to exchange a witness statement on a number of factors. He said that his psychological PTSD meant that he could not concentrate or focus on the issues and that doing so made him shaky as it took him back to where he was when employed. He referenced being placed on sleeping tablets at an increased dosage and told us that he had had about two weeks off work in early December 2024. In the course of questioning the claimant it emerged that he had in fact created 15-pages of a witness statement and this is what he was referring to in October 2024. We have had no medical evidence placed before us concerning the claimant’s health in December 2024.

[27]We agree with Mr Tibbets that there are three options for us today. Having consulted listing it is clear that if the claim was postponed it could not be relisted until 2027. It is simply not possible to relist a 14 day hearing before 2027. To do so would involve postponing other cases which have been listed and to do that would be unfair on them. The issues to be dealt with in this claim are already very old as they concern events in 2019-2022. In our judgment a further delay of two years has to be avoided if at all possible due to our concerns that it would not be possible to have a fair hearing 5-7 years after the events complained about.

[28]When considering the claimant’s failure to exchange a witness statement we have to consider whether it is still possible to have a fair trial of this case, and, in particular, we have to take into account a proportionate response bearing in mind the draconian nature of a strike out order. In that context Mr Tibbets has placed before us the case of Bharaj v Santander UK Plc and others

[2023] EAT 152

. That decision summarises the applicable law in dealing with strike outs under what was then Rule 37 and we have taken that into account.

[29]In circumstances where a claimant has failed to serve a witness statement it is often the practice of tribunals to take the contents of the claim form or further and better particulars as the claimant’s witness evidence once confirmed on oath. It is the respondent’s position that that would not be possible due to the fact that, as has been observed in a previous preliminary hearing by Employment Judge Tobin, the allegations are far ranging, duplicated and imprecise and that the complaints are difficult to understand. Nevertheless, we observe that the list of issues has been precisely drafted and generally cross references the claim forms/further and better particulars. In addition, we are now aware that the claimant has prepared a 15-page witness statement.

[30]In summary:(i) The claimant has known about this trial date for 10 months.

(ii) The claimant has known about the need for a written statement for 10 months.

(iii) The claimant has known about the final list of issues for 8 ½ months.

(iv) The claimant had most of the hearing bundle by 9 October 2024.

(v) The claimant prepared 15 pages of his written statement by 12 October 2024 and claimed to be ready for exchange.

(vi) The claimant had the final hearing bundle by 18 November 2024.

(vii) The claimant was directed by Employment Judge Daniels to prioritise action to prepare for the hearing on 22 November 2024.

(viii) The claimant had the respondent’s witness statements on 12 December 2024.

(ix) The claimant was aware that the respondent had applied for an unless order on 12 December 2024.

(x) The claimant has not responded to the respondent’s numerous emails or contacted the tribunal at all concerning his health, any alleged difficulties in preparing for the hearing or made an application to postpone the hearing. 31. [The position regarding the claimant not contacting the employment tribunal was as was understood on 6 January 2025, based on the paper case file. However, it is noted that the claimant, in his appeal to the Employment Appeal Tribunal, has referred to two emails to the tribunal dated 22 and 24 November 2024. These were not on the paper file. They were not brought to our attention. I have caused a check to be made on the system. The two emails do not appear in the inbox when a search is made based on the case number. They do appear when a search is made for emails from the claimant. Why is not known.

[32]The email of 22 November 2024 is seeking a reconsideration of the decision of Employment Judge Daniels not to strike out the response. It states: “The upcoming hearing cannot go ahead I cannot prepare all those as the documents are coming in and draft list is not sent on time…”

[33]The email of 24 November 2024 states: “The reason the hearing cannot go ahead is due to as I have stated before and further to that considering the issues of my psychological problems which was clearly ignored that I cannot prepare for the upcoming hearing…”

[34]We note that at the time of these emails the claimant still had six weeks to finalise his written statement and prepare for trial.]

[35]We do not accept that the claimant has had insufficient time to prepare and serve a witness statement. He has had many months to do so and had written 15 pages by 12 October 2024. That he has not done so is, in our judgment, his own fault.

[36]We do not accept that the claimant has had insufficient time to prepare his case for this hearing. He has had most of the bundle since 9 October 2024, some 12 weeks before this hearing. He has had the respondent’s witness statements since 12 December 2024, three weeks before this hearing. We accept that that is not much time but, nevertheless, the claimant could have prepared his questions.

[37]It is noticeable that, despite claiming to have had difficulties in preparing for this hearing during December 2024 due to his health, the claimant has nevertheless managed to draft and submit appeals to the Employment Appeal Tribunal in December 2024 and January 2025.

[38]We have considered whether it is possible to have a fair trial of the case and applied the overriding objective to deal with the case fairly and justly and with proportionality, flexibility and avoiding delay. We have concluded that to postpone would be to run the very real risk that there could not be a fair trial due to the age of the case and the further delay that is inevitable We find that there are no exceptional circumstances that would justify postponing the case. We have decided that it would be too harsh to strike out the claimant’s claims as we can deal with his evidence via his existing witness statement and verifying his claim forms and further and better particulars.

[39]In the circumstances, we decided that the least worst option would be to order the claimant to disclose his witness statement such as it is and to proceed with hearing this claim.

[40]Prejudice: Having heard the case we add as follows:

[41]The claimant was able to give evidence over 4 days from Tuesday 7 January to Friday 10 January 2025 with breaks put in as the claimant requested.

[42]The tribunal adjourned until Wednesday 15 January which gave the claimant 4 days to prepare his cross examination of the 11 respondent witnesses. He completed 7 witnesses from 15 to 17 Janaury and the final 4 on Monday 20 January. The claimant as a litigant in person conducted his case competently and knew the content of the bundle and the various witness statements to a good level of detail. Approved by: