Case No 3307153/2018Venue BirminghamHearing 14 January 2020
Between
Mr L DhillonClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge SelfIn person for claimantDate 14 January 2020
JUDGMENT
The unanimous decision of the Tribunal is the complaint of victimisation under Section 27 Equality Act 2010 is not well founded and is dismissed.
REASONS
[1]This complaint of victimisation came before the Tribunal for a five-day Hearing from the 19-23 August 2019 inclusive. At the outset of this Judgment we should say something about how the case was conducted and progressed. These proceedings are the third set of proceedings brought by the Claimant against his employer Royal Mail Group Ltd. We understand that for the first two sets of proceedings commenced in 2016 and 2017 respectively, the Claimant had the benefit of legal advice. The first set of proceedings Case Number 3401084/2016 we are told were withdrawn. The second set Case Number 3328533/2017 were the subject of a four-day Trial in this Tribunal before Employment Judge Dimbylow in October 2018. These were claims under Section 15 of the Equality Act and of victimisation. During that Trial, the Claimant had legal representation. The claims were found to be not well-founded and were dismissed and full reasons were given and sent to the Parties on the 15 November 2018.[2]The Claimant was initially in receipt of legal advice in relation to the proceedings before us, his advisors were named on the ET1 which was filed on the 11 May 2018. There was a Preliminary Hearing Case Management in these proceedings on the 20 August 2018 conducted by Employment Judge Postle at which the Claimant was represented by his Employment Law Consultant and during which the issues were identified. There was a further Case Management Preliminary Hearing before Employment Judge Woffenden in this Tribunal on the 2 August 2019. By this stage, the Claimant’s legal advisors had come off record. They did so on the 7 May 2019 by email to the Tribunal. The Claimant thus represented himself at the Hearing on the 2 August 2019, that Hearing also considered a fourth set of proceedings Case Number 3334250/2018, issued by the Claimant on the 22 June 2018. Employment Judge Woffenden ordered those proceedings be stayed pending the outcome of the Hearing before us.[3]On Day One of this Hearing, the parties attended. The Respondent’s Solicitor handed over a bundle and three witness statements and our Clerk reported that the Claimant had attended with his own bundle and six witness statements including his own. The Claimant had not however brought sufficient copies of his statements and bundles for the Panel. We identified that the Respondent had been served with the Claimant’s bundle and statements and vice versa and allowed the Claimant time to photocopy his papers. The Tribunal also afforded some assistance with photocopying.[4]After reading in, the Claimant commenced giving evidence. Only a few questions were put to him in cross-examination before we identified that the witness statement served on the Respondent was different to that handed up to the Panel and being used in the witness box. Mr Bownes kindly agreed to return to his office and produce copies of the statement that he was working to and that was the statement we took as the Claimant’s evidence in chief. In fact, there were only two paragraphs that were the difference between the two versions.[5]The Claimant’s evidence concluded at the end of Day One. He had produced five further witness statements and we asked him to liaise with Mr Bownes and identify for his benefit which witnesses would be attending on Day Two and in which order. At the commencement of Day Two, the Claimant confirmed that only one of his witnesses Mr Bal was present. He had three more live witnesses attending on Day Three. His wife, for whom he had tendered a written statement, would not in fact be attending as she was too uncomfortable to do so. After Mr Bal had entered the witness box, we again discovered that the statement handed to the Panel was different from that in Mr Bownes’ possession. Mr Bownes was given a copy of the statement the Panel had read and was prepared to go ahead. We identified at this time that the other witness statements for the remaining witnesses for the Claimant and that had been handed to the Panel and read on Day One, were the same versions as in Mr Bownes’ possession.[6]After Mr Bal had given evidence and in order to make progress, we agreed with the Respondent that we would start the Respondent’s case. We next heard therefore from the Respondent’s witnesses Mr Kishan Patel, Early Shift Manager and Ms. Sandra Easton, Quality Business Partner. We also read a statement from a further witness for the Respondent who did not attend to give evidence, Mr Victor Nforgwei.[7]We explained to the Claimant we would give less weight to the statement of Mr Nforgwei given that he had not presented himself in cross-examination.[8]On Day Three, we heard from the Claimant’s remaining witnesses Mr Paul Hyland (now retired) but former Union Representative and employee of the Respondent. Mr Les Marsons, Communication Workers Union (CWU) Representative and Health & Safety CoOrdinator and employee of the Respondent, and Mr Amandeep Kooner CWU Representative and employee of the Respondent. We also read the statement of the Claimant’s wife who did not give evidence.[9]On Day Three, at the conclusion of the evidence, we heard oral submissions from Mr Bownes. We afforded the Claimant time to prepare his own submissions but he asked for, and we granted, additional time. We concluded sitting at 2.45pm on Day Three allowing the Claimant overnight to conclude his submissions, which we heard at 10am on Day Four. We spent the rest of Day 4 deliberating. We gave oral Judgment on Day five and the Respondent requested these Written Reasons.[10]At the outset of proceedings, we noted the Respondent’s concession that the Claimant was a disabled person for the purposes of the Equality Act, the Claimant suffering from depression.[11]We noted at the Preliminary Hearing Case Management on the 2 August 2019 that the Claimant had told Employment Judge Woffenden that he did not require any reasonable adjustments. Of course, a fiveday Trial is different to a Preliminary Hearing and so we enquired of the Claimant at the start of the Hearing as to whether he required any adjustments. He indicated he might find concentration difficult and that he might need to take breaks. We therefore took hourly breaks throughout the evidence and offered more frequent breaks if required. The Claimant attended every day with his daughter. She was on Day One described to us by our Clerk as an observer. At the end of Day One, the Claimant indicated his daughter was in fact representing him, (she had not addressed us at all on Day One) and that she would be cross-examining the Respondent’s witnesses. Mr Bownes had no objection to this and neither did we, save we explained to the Claimant that he and his daughter could not both ask questions as that would confuse matters. At the start of Day Two, the Claimant informed us that his daughter would not now be conducting the cross-examination of the Respondent’s witnesses and that he would do so himself. The Claimant’s daughter did assist him at the end of his submissions when he became upset and we thank her for doing so.[12]At the outset of proceedings, we clarified the issues with the Parties. These have been recorded by Employment Judge Postle in the Preliminary Hearing Case Management on the 20 August 2018 and had not changed and were as follows: - i. The Claimant is still employed by the Respondent. ii. The Claimant’s disability is depression, that disability is accepted by the Respondent and satisfies Section 6 of the Equality Acts Definition of disability. iii. The claim arises under Section 27 of the Equality Act, one of victimisation. iv. The protected acts relied on are the two aforementioned Tribunal claims which we shall call for ease of reference the 2016 and 2017 claims. v. The issue is quite narrow, whether the Claimant suffered a detriment as a result of his assertion that the Respondent delayed in arranging a referral to Occupational Health. vi. The Respondent counters that the Claimant did not want to be referred to the Respondent’s usual contracted Occupational Health Provider, OH Assist, rather he wanted to be referred to AXA Private Healthcare. vii. There was a potential time limit point however this was withdrawn by Mr Bownes before he made his submissions.[13]As noted, we identified that these remained the issues at the outset of proceedings. Several times during the proceedings, we explained these issues again for the Claimant reminding him of them for a final time after Mr Bownes had made his submissions on Day Three and before affording the Claimant a break until Day Four to prepare his own submissions. We also afforded the Claimant significant leeway and latitude in asking supplemental questions of his witnesses. We did so in light of his disability and in light of the fact that he was a litigant in person, albeit one with previous experience of a number of hearings when he was in fact legally represented. The Claimant on occasion, and particularly when asking these supplemental questions, strayed into matters that were not relevant to the relatively narrow issues before us. Mr Bownes did not raise continuing objections to this, even though he might have done so legitimately, and we thank him for his patience in this regard.
Findings of Fact
[14]In these Findings on occasion we will need to refer to both the Claimant’s bundle and the Respondent’s bundle. Whilst some of the documents in each are in common, some are not. We heard evidence from some witnesses which was entirely irrelevant to the issues we had to decide and such evidence we have disregarded and do not set out in these reasons.[15]The Claimant has been employed by the Respondent since the 7 September 1997. The Respondent’s contracted Occupational Health provider has at all relevant times been an entity called Atos now known as OH Assist. On the 31 May 2016, the Claimant moved job roles from Parcelforce to the National Distribution Centre, known as NDC. We were taken to emails between relevant managers of both sides regarding the Claimant’s transfer and these are a pages 94-95 of the Claimant’s bundle. Andrew Key who reports to Sandra Easton at the NDC made enquiries of Parcelforce to obtain the Claimant’s sickness absence records before the transfer took place Ms. Easton told us this was a common practice to establish whether the transfer could be accommodated. No barriers to transfer were identified and Ms. Easton told us she was aware the Claimant had raised a grievance whilst working for Parcelforce and was not comfortable working there and wanted to transfer. She did not know the detail of the grievance or any recommendations flowing from it. The Claimant told us that on arrival at NDC he gave Mr Bal a copy of a letter from Coventry & Warwickshire Partnership NHS Trust Mental Health Services dated 3 March 2016, page 90 of the Claimant’s bundle. The letter is addressed to the Claimant and refers to him “undergoing some work-related stress “and that” changing his work environment … would have a positive effect on his mental illness”. Mr Bal said he handed a copy of that letter to Ms. Easton in a corridor. Ms. Easton had no recollection of receiving the letter, but if she had, she told us she would have passed it on to the relevant line or shift manager. In any event, the Respondent made the adjustments set out in the letter by facilitating the transfer from Parcelforce to NDC.[16]On the 30 October 2017, the Claimant emailed Ms. Easton as follows: - “Please can I have an update on my request for an Occupational Health Assessment which was made during week commencing 9 October 2017. I had made this request to Victor (sic) who was early shift manager on that week and in turn he forwarded my request to HR (NDC). I have not received a letter for an OHS assessment (OHS to have no connections as to Atos Healthcare)”. This was the first request made to Ms. Easton. We did have a witness statement from Mr Nforgwei but he did not attend to give evidence. His statement does not mention receiving any request for an Occupational Health Assessment in the week commencing 9 October 2017, but in the Claimant’s witness statement he says he made the request orally to Mr Nforgwei on the 9 October 2017 and we accept this. At page 119 of the Claimant’s bundle is a record of a return to work interview, (the Respondents refer to these as “Welcome Back Meetings”) held between the Claimant and a Mr Sanders after the Claimant had been absent from the 4-8 September 2017 (the shoulder pain). It is recorded in those notes that “Victor has arranged OHS, but not Atos”. We find therefore the Claimant had made a request to Mr Nforgwei for an Occupational Health Assessment on or around the 9 October 2017 and it is clear that when the Claimant emailed Ms. Easton on the 30 October 2017, he was chasing that up. Ms. Easton is a relatively senior manager and would not normally obtain Occupational Health referrals for employees such as the Claimant. Instead, these should be actioned by line or shift managers. She was on leave when the Claimant emailed her. The Claimant chased her on Sunday 5 November 2017 having received no response and again we see this at page 119 of the Claimant’s bundle. She responded on the same day and she explained that she had been on annual leave and stated “I am not sure why you have written to me about your OHA as I am not your line manager and neither have I had a discussion with yourself or anyone about your requirement for this. Any conversation about this should be with your line manager so can I ask who you’ve requested this through so that I can ask them what they have done about it. Once I understand who you have liaised with, I will ensure that they are aware, but then you must communicate with them - my role does not get involved (or told about) people’s personal requirements unless it is essential for resourcing”. The Claimant responded on the same day, again page 119 of his bundle stating that he had made the request a month ago, but had had no reply. He referred to his Mother’s illness, attempted suicide and his own stress and depression. Ms. Easton replied on the 6 November, having spoken to Mr Nforgwei and said that Mr Nforgwei would like to speak to the Claimant but was at a different site so would like his phone number to arrange that conversation. On the same day, the Claimant emailed Mr Nforgwei with his telephone number. On either the 7 or 8 November the Claimant spoke with Mr Nforgwei. Mr Nforgwei advised the Claimant he could contact the Respondent’s confidential counselling service Feeling First Class, if he wished and provided the Claimant with a leaflet about the service. The Claimant however did not want to avail himself of this service as it was a confidential one. What he wanted was a referral to Occupational Health in the hope that might resolve his perceived issues in the workplace. Mr Nforgwei asked the Claimant to provide his consent to Mr Patel, the Claimant’s shift manager, if he wished to progress with an Occupational Health referral. On the 8 November 2017, the Claimant emailed Mr Nforgwei again (page 119 of the Claimant’s bundle) giving permission but noting• “OHA not to be done by Atos• Or have any connection to Atos”[17]On the 22 November 2017, the Claimant emailed Mr Patel for the first time on this matter and we see that at page 138 of the Respondent’s bundle. He acknowledged Mr Nforgwei had suggested using Feeling First Class, but did not wish to use that service. He stated “my home/work-life has become ever more challenging… I have been waiting since week commencing 9 October 2017 for an OHS referral, please can you arrange a referral independent of Atos”. Mr Patel responded on the 23 November 2017 at page 137 of the Respondent’s bundle. He stated he had spoken to HR and that “all referrals from Royal Mail are done through Occupational Health and do not use anyone independent”. The Claimant responded that day to state he had previously seen AXA “as an agreement is in place that Atos (irelivent [sic] of any new name) not conduct any of my future assessment”. He also asked for the email address of the Head of Royal Mail HR which was not provided to him.[18]On the 5 December 2017 at page 136 of the Respondent’s bundle, the Claimant sent a further email to Mr Patel giving further information. He referred again to his mother’s illness and stay in hospital and he stated “Atos Healthcare, not used as I have been subjected to inhumane treatment by this Occupational Health provider: Breach of the Human Rights Act – Amendment 3. The decision/agreement that Atos Healthcare not conduct any future Occupational Health Assessments for me was made in December 2013 by Mr Martin Green who is part of the Harassment Investigation Team and can be contacted at the Northwest Midlands Mail Centre”. The reference to Martin Green was a reference to a bullying and harassment investigation conducted by Mr Green in 2013. His case report was at pages 32-46 of the Claimant’s bundle. On the final page of that report, Mr Green made reference to the Claimant asserting that Atos had provided incorrect information when assessing him. Mr Green’s recommendations dated 16 December 2013 pages 111-112 of the Claimant’s bundle included “I recommend that as soon as possible, an OHA review is arranged to assess all of Mr Dhillon’s health and mental health needs and that this should be undertaken by a company other than Atos”. On 3 July 2014, page 60 of the Respondent’s bundle, Mr Perkins, a Senior Manager at Parcelforce wrote to the Claimant to follow up on the recommendations made by Mr Green. Regarding Occupational Health, he noted “the reason for you not using Atos is that you told Mr Green you were pursuing a complaint with them. With this mind it was decided that whilst that was going through, it would be better to use an independent Occupational Health provider”. Mr Perkins proposed that one of the Respondent’s HR business partners would see if she could progress matters, however, “as you declined for your details to be released, we could no longer pursue this”. What we do find is that in 2015, the Respondent was able to refer the Claimant to an organisation outside of its usual Occupational Health function, that being AXA; as we had had the benefit of seeing a report from them at pages 76-80 of the Claimant’s bundle. It appears there was one consultation on the 22 April 2015 and no further review was recommended. Mr Patel told us he was unaware of any of this history. He made enquiries as to contacting Mr Green but was told he had left the business. In any event, we are not sure that contacting Mr Green would have assisted Mr Patel in progressing any Occupational Health referral given that Mr Green’s recommendations were nearly four years old, his recommendation had in fact been fulfilled by the 2015 referral to AXA and when the Claimant had seen AXA, no further Occupational Health involvement was recommended.[19]On the 6 December 2017, Mr Patel emailed the Claimant to tell him that he had referred the matters to HR “and will get a response by today and will pass this on to you”. It seems no response from HR was received and Mr Patel did not in fact get back to the Claimant. On the 26 December the Claimant again chased Mr Patel and reported that he had diagnosed with diabetes. That chase was of course sent on Boxing Day and Mr Patel did not respond over the Christmas Holiday period, but did respond on the 3 January 2018 at page 135 of the Respondent’s bundle to ask for a face-to-face discussion. This was arranged for the 9 January 2018, unfortunately, no notes were taken at that meeting. At the meeting Mr Patel sought to understand why the Claimant was reluctant to be referred to Atos/OH Assist. The Claimant accused them of “inhumane treatment”. In the Respondent’s bundle at page 59, is an email where the Claimant had accused Atos of “inhumane treatment done over the phone during 2011 using some sort of techniques (hypnotherapy) which comes under the Official Secrets Act”. Mr Patel suggested that a referral be made to OH Assist but that a different practitioner assess the Claimant. The Claimant remained resistant to any referral to OH Assist.[20]Following the meeting, Mr Patel sought to contact the Claimant by telephone but was unable to do so, so he sent him an email which we see at page 135 of the Respondent’s bundle asking him to get in touch. The Claimant responded on the 10 January again asking for an OH referral not connected to Atos. Mr Patel in his evidence accepted that any employee could request an Occupational Health Assessment, it was not something that had to be instigated by management. He however believed that he and the Claimant had reached an impasse. The Claimant was steadfastly refusing to be referred to the Respondent’s contracted provider. Mr Patel told us that had the Claimant consented to a referral to OH Assist, it would be a quick matter, he described as a “click of the finger” and a process he was familiar with. He sent emails to HR, he spoke himself to AXA who told him that unless the Respondent was prepared to transfer all its Occupational Health business to them they would not assist, he looked at a private arrangement but found this would be difficult to set up. He established with OH Assist that whilst they would need to receive the referral and conduct any initial assessment, if treatment were required it would be subcontracted to someone independent of OH Assist and local to the employee.[21]The Claimant was on sick leave from the 5-9 March 2018. A Welcome Back meeting was conducted by Mr Patel on the 12 March 2018 and we see the notes at page 151-153 of the Respondent’s bundle. It was recorded that the Claimant’s absence was for backache and high temperature. Question 7 on the form states “is there anything I can do further to help you maintain your health/attendance”. The answer recorded by Mr Patel is “No. Check personnel file to progress Occupational Health referral”. Mr Patel later checked the Claimant’s sickness absence records, rather than accessing his entire personnel file. Mr Patel’s evidence was that he again spoke to the Claimant (but we have no notes or date for that discussion) and that the Claimant informed him that he was feeling better and asked that the referral be put on hold. Whilst we found Mr Patel credible on this point and indeed in the entirety of his evidence and that he was doing his best to assist, nevertheless it is clear that by April 2018 the issue of the Occupational Health Assessment was again being raised by the Claimant. In an Attendance Review meeting, at pages 142-143 of the Claimant’s bundle, it was noted “I am aware of Atos, awaiting alternative health provider”.[22]We need to make Findings of Fact now about the Respondent’s witnesses knowledge or otherwise of the Claimant’s 2016 and 2017 Tribunal claims. Ms. Easton told us she had no knowledge of the claims. Mr Nforgwei says the same in his witness statement. It was not put to Ms. Easton by the Claimant that she had any such knowledge. He did question her about her knowledge of his illness and his disability and past grievances, but those matters are irrelevant for the issues before us. Mr Patel did accept when cross-examined, that the Claimant had told him in January 2018 that he had brought previous Employment Tribunal claims. The Claimant’s witnesses sought to contend that Mr Patel and indeed management generally should have known about the 2016 and 2017 claims either through gossip from the shop-floor or from managers sharing an open-plan office. There was however no witness who could directly attest to telling either Mr Patel or Ms. Easton about the previous claims.[23]Mr Marsons who gave evidence on the Claimant’s behalf and who was one of his witnesses in the 2017 claim, which was heard in October 2018, said that he and other witnesses in the 2017 claim, (identified by Mr Marsons as “Mr Bal, Slippy and Pal”) would have handed in documentation regarding that 2017 claim to their shift manager in order to obtain special leave and to receive pay when attending the October 2018 Hearing. However, Mr Marsons did not identify the manager to whom this information was given, nor the date on which it was given and it was never put to Mr Patel. We therefore find the Respondent’s witnesses on this matter had no knowledge of the 2016 and 2017 claims until the Claimant’s meeting with Mr Patel on the 9 January 2018 and this of course was three months after the request for an Occupational Health referral was first made to Mr Nforgwei. Submissions[24]We heard all submissions from Mr Bownes who referred us to two cases which we will set out below when dealing with the law. He reminded us that the detriment is not defined in the Equality Act but that the House of Lords in Shamoon v Chief Constable of the Royal Uster Constabulary (2003) UK HL 11 had said if a reasonable worker might take the view he had been disadvantaged, that that would be a detriment.[25]The Respondent contended the Claimant had failed to discharge the burden of proof. In the alternative, the Respondent had provided a nondiscriminatory reason for the treatment. Mr Bownes further contended that the Claimant had not established any disadvantage. Mr Bownes also made the valid point that if the Claimant’s witnesses were asserting that it was common knowledge that the Claimant had brought previous claims amongst the Respondent’s staff, that Mr Kooner the Claimant’s witness, claimed not to know of the outcome of the 2017 case, that being proceedings in which Mr Kooner was a witness and in which full Reasons were given and presumably are available on the Government Website.[26]In the Claimant’s submissions, he invited us to find a lack of credibility on the part of the Respondent’s witnesses. He contended the Respondent’s witnesses would have had access to his personnel files on their PC’s and information from working in a shared office and that they had not offered an explanation for the delay in referring him to Occupational Health. He asserted that Mr Patel had subjected him to the detriment because he considered the Claimant to be a nuisance for wanting to use an organisation other than Atos. He referred us again to the delay which he said was at the expense of his mental health. The Claimant made some submissions which were not relevant to the issues we have to decide and we do not record them in this Judgment.
The Law
[27]Section 27 of the Equality Act 2010 provides as follows: -(1) A person (A) victimises another person (B) if (A) subjects (B) to a detriment because (B) does a protected act or (A) believes that (B) has done or may do a protected act. Subsection (2) defines the protected acts including (a) bringing proceedings under the Equality Act. The reverse burden of proof applies here as set out in Section 136 of the Equality Act.(2) If there are facts from which the Court could conclude in the absence of any other explanation, that person (A) has contravened the provision concerned, the Court must hold that that contravention occurred(3) That Subsection 2 does not apply if (A) shows that (A) did not contravene the provision.[28]If there was a protected act and the Claimant relies on two acts here, the bringing of the 2016 and 2017 Tribunal claims, which the Respondent accepts are protected acts, the Tribunal must consider whether the Claimant was subjected to detriments because of those acts. When considering if detrimental treatment occurred, we must first consider if the Claimant has proved facts from which he can establish a detriment. If he can, we must determine whether the protected acts influenced the detrimental treatment.[29]The Court of Appeal in Igen -v- Wong and Others 2005 IRLR258 considered the burden of proof. Whilst what is now Section 136 Equality Act sets out a two-stage test, this does not require us to divide the evidence into two parts, but rather to look at all the evidence including the Respondent’s explanation before deciding whether the first stage of the burden of proof test is met.[30]The Respondent’s Solicitor referred us to the subsequent case of Laing -v- Manchester City Council 2006 IRLR748 and specifically paragraph 64, “it is for the employee to prove that he suffered the treatment, not merely to assert it, and this must be done to the satisfaction of the Tribunal after all the evidence has been considered”. The Respondent’s Solicitor also referred us to Hewage -v- Grampian Health Board 2012 UKSC37 and specifically paragraph 31, “the Complainant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination against the Complainant which was unlawful. So the prima facie case must be proved, and it is for the Complainant to discharge that burden”.[31]The case law has established therefore that there is a distinction between the Respondent’s explanation for the treatment of the Claimant, which must be disregarded at Stage One, and determining facts which establish the treatment could not have been because the Claimant had done protected acts which are relevant at Stage One as they could point to the Claimant failing to reverse the burden. If we do find the burden has shifted, and we do move to Stage Two, we must consider “the reason why” the detriment if proven occurred. Our Findings[32]It is not in dispute the Claimant is disabled and that the bringing of the 2016 and 2017 Employment Tribunal Claims were protected Acts. We turn therefore to the first issue, did the Respondent delay in making a referral to Occupational Health and did the Claimant thereby suffer a detriment? The Claimant first requested the referral to Mr Nforgwei on or around the 9 October 2017. It is clear that by the time he issued his claim, on the 11 May 2018, some seven months later, no referral had been made. Given the Respondent’s position, as articulated by Mr Patel, that any employer of the Respondent can request an Occupational Health referral, rather than it being only something that management could request, and given the facts clearly show a delay of seven months, we do find the Claimant has established primary facts pointing to a detriment. We find as an objective assessment any reasonable employee would find themselves at a disadvantage in this regard.[33]The difficulty however for the Claimant is that the Respondent can offer a perfectly good and non-discriminatory reason for the delay. Clearly some of the delay was for the Christmas period, most of it however was occasioned by the Claimant’s refusal to use the Respondent’s contracted Occupational Health provider. We have already found that Mr Patel made it clear that a referral to OH Assist would be a swift matter. On learning of the Claimant’s outright refusal to have anything to do with OH Assist we have recorded the other steps taken by Mr Patel which seem a perfectly reasonable response. We do not accept that Mr Patel saw the Claimant as a nuisance, we accept his evidence that it was in the best interests of the business to have employees medically assessed, however he had reached stalemate as far as the steps available to him to take. We do record some surprise that the Respondent was unable to look outside its usual provider, given it had been able to do so in 2015 with the AXA referral, but turning our minds to the reason why the Respondent’s witnesses acted as they did, we cannot find on the evidence that this was in any way because the Claimant did a protected act. Whilst it is accepted the 2016 and 2017 claims were protected acts, there is no evidence we have found which shows that Mr Nforgwei or Ms. Easton had any knowledge of these claims at the relevant time. Mr Patel accepted he knew of them in January 2018 but his awareness was not the reason why he acted as he did. In the case of Ms. Easton, she simply received an enquiry from the Claimant that she would not normally deal with and she referred him back to Line Management, that was the extent of her dealings. In the case of Mr Patel, he was in fact keen to make the referral, but was unable to do so because of the Claimant’s refusal to use OH Assist.[34]For the reasons give above, the claim must fail.