Mr A Mackowski v Network Rail Infrastructure Ltd: 3308807/2022

EMPLOYMENT TRIBUNALS

Case No 3308807/2022

Between

Mr A MackowskiClaimant

Network Rail Infrastructure LtdRespondent

Before

Employment Judge S Moore

In person for claimant

Mr J Crozier (instructed by counsel) for respondent

Date 16 February 2024

JUDGMENT

(1) The Claimant was not a disabled person within the meaning of section 6 of the Equality Act 2010 at the material time and the claim of disability discrimination is struck out.

(2) The complaint of equal pay is struck out on the grounds it has no reasonable prospect of success.

REASONS

[1]A Final Hearing has been listed in this matter for six days between 5 and 12 January 2024. This Preliminary Hearing was listed in order to determine:(i) Whether the Claimant was or became a disabled person at any point between 21 July 2021 and 28 October 2022;

(ii) Whether his equal pay claim should be struck out under rule 37 of the Employment Tribunals Rules of Procedure 2013 or a deposit order made under rule 39; and

(iii) To make further Case Management Orders.

[2]This judgment deals with matters (i) and (ii). A separate document containing a Case Management Summary and Case Management Orders deals with matter (iii). Procedural Background

[3]The Claimant lodged his Claim Form on 23 June 2022 following early conciliation between 9 and 22 June 2022. He made complaints of race and disability discrimination and claims for “other payments”.

[4]He was subsequently ordered to clarify the nature of his disability, to provide further clarity on his race and disability claims, and to provide the Respondent and the Tribunal with the name and sex of anyone with whom he claimed to be entitled to equal pay and set out the basis on which he claimed to be entitled to equal pay with them.

[5]The Claimant responded by providing:(i) A document entitled “Disability, Discrimination, Harassment, Victimisation” setting out the history of alleged discrimination. This account also details a number of grievances and capability processes since July 2021; and

(ii) A document entitled “Unequal Pay” in which he sets out the manner in which he says he was paid less than both male and female alleged comparators, giving the names of five comparators, three female and two male.

[6]On 28 November 2022, following his resignation on 28 October 2022, the Claimant applied to add claims of victimisation and constructive dismissal and the Respondent did not oppose this application.

[7]At a Preliminary Hearing on 28 April 2023, the Claimant’s causes of action were confirmed as being: 1. Direct disability discrimination 2. Disability harassment 3. Direct race discrimination 4. Racial harassment 5. Victimisation 6. Constructive unfair dismissal

[8]In an effort to clarify the basis of his claims the Claimant had produced a Scott Schedule, however, rather than identify precise factual and legal allegations, it set out a narrative account of the Claimant’s version of events. Further, EJ Gumbiti-Zimuto was not clear that the Claimant was intending to pursue an equal pay claim within the meaning of Chapter 3 to Part 5 of the Equality Act 2010. The Respondent was ordered to respond to the Scott Schedule and the Claimant to confirm his position on equal pay.

[9]The Respondent subsequently responded to the Claimant’s original Scott Schedule, attempting to distil the factual allegations from the Claimant’s chronological account of events and identify the corresponding causes of action. It invited further clarification from the Claimant.

[10]The Claimant did not respond to the Respondent’s proposed amendments to the Scott Schedule but repeated his equal pay claim in similar terms to those provided previously save for removing a reference to male comparators.

[11]On 9 June 2023 the Respondent applied for the equal pay claim to be struck out (or a deposit order made).

[12]At the hearing today, I had before me a bundle of documents and the Claimant and his mother, Mrs Ursula Mackowski, gave evidence on the issue of disability. Disability Evidence The Claimant’s date of birth is 8 July 1979.

[14]His evidence was that he had had a mental health condition of anxiety disorder since 2000, that his mental health condition had progressively got worse since 2018 and that since April 2020 he started to suffer with severe depression and anxiety following a family bereavement and being a fulltime carer. Further, that his mental health condition had been greatly exacerbated by stress at work and discrimination, in particular he had received a first warning for performance on 3 February 2022, just after the Respondent had failed to uphold his Formal Grievance.

[15]In support of his claim to be a disabled person, the Claimant relied on a copy of a print-out of his medical records from his GP surgery dated 15 September 2022 (“the GP Medical Report”). There are also a number of GP “fit notes” in the bundle and an Occupational Health assessment dated 14 March 2022.

[16]The Claimant stated there was lots more medical evidence that he could have provided, but he wasn’t willing to share it. Even leaving aside the Claimant’s obligation to disclose all documentation relevant to the question of disability, the burden of proof as regards disability is on him and the Tribunal can only make an assessment of disability on the evidence before it.

[17]Mrs Ursula Mackowski stated the Claimant suffered from clinical anxiety and depression that was diagnosed in his early twenties. This impacted his normal day-day activities by making him constantly anxious, having nausea and headaches, causing frequent panic attacks, difficulty in going to social places because of panic attacks and fainting, difficulty in using public transport for fear of having panic attacks, and family holidays being cancelled because of his anxiety disorder. Since the Claimant’s early twenties he had been prescribed medication for many years by his GP as well as being referred to a specialist doctor at the Royal Berkshire Hospital for anxiety disorder and receiving counselling from a family friend. From April 2020 onwards his anxiety and depression had got significantly worse and he had severe anxiety, palpitations and depression, severe nausea, frequent headaches, and high blood pressure, feelings of being overwhelmed and unable to concentrate, being extremely exhausted and fatigued, severely distressed, socially withdrawn, and having suicidal thoughts.

[18]The Claimant was employed by the Respondent between 21 September 2014 and 28 October 2022 as a Route Isolation Planner.

[19]It is common ground that from 2018 onwards he was placed on various Performance Improvement Plans.

[20]The first fit note and reference to sick leave in the bundle is dated 1 May 2020, when the Claimant was signed off work until 25 May 2020, on grounds of “Bereavement, death of father” (although he was in fact absent from work between 13 April – 25 May 2020).

[21]A “Return to Work” form dated 27 May 2020 records the Claimant being asked by his line manager, Danielle Pound: “Any underlying issues?” and “Are you on any medication?”. The Claimant replied “No” to both questions. As regards a query in respect of “Expectation of improvement” the form records the answer as being “N/A – one off instance”. In evidence the Claimant said the notes on the form were incorrect, that he did have underlying issues at the time, and that Ms Pound knew he was suffering from anxiety and depression.

[22]I don’t accept the Claimant’s evidence in this respect. An email exchange between Ms Pound and the Claimant dated 27 May 2020 records Ms Pound stating “Please see the attached fit note from our return-to-work discussion. As we can’t sign the form you just reply to say happy with the form” and the Claimant responding, “Yes happy with the form”. Later in the chronology there is an example of the Claimant contesting the accuracy of meeting notes, so I am satisfied that on this occasion, at the time, the Claimant considered the notes to be accurate.

[23]On 21 July 2021 the Claimant raised a Formal Grievance alleging, broadly speaking, that he was paid less than other Route Isolation Planners, that confidential information about his father’s death had been broadcast in the workplace in a data breach, and that he had been subject to discriminatory treatment.

[24]In December 2021 and/or January 2022 the Respondent took decisions upholding the Claimant’s grievance in relation to the data breach but not in relation to the other matters. The Claimant appealed this outcome,

[25]At a similar time (or shortly thereafter) the Claimant was invited to a disciplinary hearing regarding his performance.

[26]On 10 February 2022 the Claimant was signed off from work until 5 March 2022 on grounds of “stress-related illness”.

[27]On 16 February 2022 a “Record of Contact” form with the Claimant records Ms Pound stating “[The Claimant] felt overwhelmed, exhausted, his heart was racing/palpitations. The GP had prescribed beta blockers. [The Claimant] mentioned that he has a history of depression and anxiety from many years ago, that he thought he had moved on. We talked about antidepressants, that he had been on them previously, that he was recommended the type he had tried before and didn’t get along with… [The Claimant] raised that the GP mentioned getting out of the situation. I said I would ask about the redeployment list for him. [The Claimant] spoke about job applications that he had in progress.”

[28]From 5 to14 March 2022 the Claimant was on annual leave.

[29]On 14 March 2022, Ms Marie Brocklehurst, provided an Occupational Health Report in respect of the Claimant. That report provides: “As you are aware [the Claimant] has been absent from work due to work related stress since 10 February 2022. He reports a number of issues in the workplace as building over a period of time and raised a grievance in July 2021 which he states is still ongoing…He currently reports symptoms of palpitations, insomnia, feeling anxious all the time and feeling constantly overwhelmed. He was very anxious and agitated throughout his assessment today. He states he has consulted his GP who has prescribed treatment for his palpitations and has suggested anti-depressants may be helpful…I have undertaken an assessment using nationally recognised questionnaires to determine the extent of his symptoms. The results indicate that he is experiencing severe symptoms of anxiety and depression, which in themselves would be a barrier to him returning to work at the present time. I am unable to determine the timeframe for a return to work at this time, this is wholly dependent upon the work issues being resolved…Following assessment today, I can advise that [the Claimant] is unlikely to return to work until workplace issues are addressed or resolved.”

[30]Ms Brocklehurst’s opinion was that the Claimant’s anxiety was unlikely to be considered a disability because “- it has not lasted 12 months nor is likely to last longer than 12 months; - is not having a significant impact on his ability to undertake their normal daily activities; - would not have a significant impact on normal daily activities without the benefit of treatment”.

[31]On 15 March 2022 the Claimant was signed off work from 14 March 2022 until 28 March 2022 on grounds of a “stress-related problem”.

[32]The Claimant said in cross-examination that had suffered from depression and anxiety for long time and the stress at work simply exacerbated his pre-existing condition. That the GP’s notes signing him off work on grounds of stress were written that way because the doctor was being compassionate and only recording what the Claimant wanted the doctor to tell the Respondent. However, since the GP was not at the Tribunal to give evidence to the contrary, I must assume that the GP’s fit notes accurately reflect their assessment of the situation at that time.

[33]On March 2022 the Claimant had a Welfare Meeting with Danielle Pound. The notes of those meeting record, amongst other things, the Claimant referring to a GP prescribing him “anti-depressants that I had years ago” and saying “…many years ago I had something similar I was off for about 9 months…” Ms Pound also referred to the OH Report and the reference to the Claimant experiencing severe symptoms of anxiety and depression. The Claimant is recorded in the notes as stating “I don’t know about depression, maybe a bit.”

[34]The Claimant took issue with the notes at the time, stating “There meeting’s minutes are very poorly written. Symptoms as discussed: stressrelated illness, anxiety, overwhelmed, headaches, nausea, palpitations. GP and mental health doctor had been seen already by this point meeting minutes say GP not seen first answer. Where is the part about discussion of what specific support do I get when you advised that morning call and afternoon call is what support I receive? That should be contained within the minutes. About 90% of the minutes are inaccurate and need-rewriting.”

[35]On 28 March 2022 the Claimant was signed off work until 25 April 2022 on grounds of “stress-related illness and anxiety”.

[36]On 28 April 2022 the Claimant was signed off work from 25 April 2022 until 6 June 2022 on grounds of “stress related illness, anxiety and depression”.

[37]The Claimant said in cross-examination that during April 2022 nothing changed in relation to his symptoms and that he was continuing to apply for other jobs. The issues at work he had with the Respondent remained and continued to cause him stress. He further agreed that between August 2021 and August 2022 he applied for approximately 400 jobs.

[38]On or about 14 June 2022 the Claimant returned to work. In a back-towork interview the Claimant stated that since taking Sertraline antidepressant he didn’t have as much of the “unable to cope feelings”. The interview also records the Claimant requesting a potential move to a different department that had no contact with route planning and stating this was “one of the main things that is affecting my wellbeing”.

[39]In cross-examination the Claimant agreed he had said this but disagreed with the suggestion that the central and immediate cause for his problems was how work made him feel, he said he had suffered with anxiety and depression for a long time.

[40]A Welfare Meeting took place on 1 July 2022. The notes of that meeting record the Claimant stating, amongst other things, that his “anxiety is workload related with all the “nonsense” going on. [The Claimant] was feeling depressed and unable to cope and says anyone would feel the same in the position he was in. [The Claimant] states A & D is related to work and after his father passed away it was too much. [The Claimant’s] mother is ill so the Claimant is trying to be strong for her. [The Claimant] believes work was affected due to bereavement as he was grieving and working and could not concentrate”.

[41]The Claimant remained at work between mid-June 2022 and midSeptember 2022.

[42]On 15 September 2022 the Claimant was signed off work until 29 September 2022 on grounds of “Mixed anxiety and depressive disorder” and his GP Medical Report was printed out.

[43]The GP Medical Report records the following information:

[44]First, under the hearing “Problems: Active” the notes record a list of the following matters: 15 September 2022 Mixed anxiety and depressive disorder 15 September 2022 Stress at work 5 October 2000 [X]Phobic anxiety disorders.

[45]Secondly, the report refers to the Claimant being prescribed Sertraline in 50 mg tablets and Propranolol in 10 mg tables, both on 15 September 2022 (although there is a reference to the Claimant being advised to “Restart Sertraline”).

[46]Thirdly, the report records the Claimant’s Covid and flu vaccinations between May 2021 and December 2021, and early historic vaccinations in 1979, 1980 and 1984.

[47]Fourthly, there is a reference to the Claimant’s “Last 3 Consultations”, all dated 15 September 2022. As regards the Claimant attending an appointment on 15 September 2022, by the heading “History”, the notes state “history of depression and anxiety, particularly in early 20s. Found 2020 very hard, Dad passed away, now become a carer for Mum…Home life – can manage. At work – struggling to concentrate, very anxious – chest tightens, SOB palpitations, pins and needles, can feel like might pass out, tries to get up and go outside to ease symptoms, wakes up being sick first thing, very stressed. Now performance managed at work, getting warnings, “toxic environment”, now feels that line manager has sided with bullying manager, now being isolated from the team can’t find information needed to do job, has been put onto a different area of work. 4 weeks ago put in another grievance for victimisation, nothing done, few weeks later received a final warning. Trying to find a new job or move department within the company, has interviews lined up. Has seen occupational health a few times, discussed this with them. Have advised network rail to carry out a stress risk assessment – haven’t done it. Feels as if being managed out of the company. Feels as it has relapsed back to where he was in early 20s.”

[48]It is clear from the information contained in this narrative that these are the GP’s notes of the Claimant’s history as described by the Claimant to the GP.

[49]Fifthly, the GPs examination record the Claimant’s heart rate and blood pressure and describe him as being “very tearful at times”. The “problems” are identified as(1) “Stress at work” and

(2) “Mixed anxiety and depressive disorder”.

[50]On 28 September 2022 the Claimant was signed off work until 31 October 2022 on grounds of “Mixed anxiety and depressive disorder”.

[51]On 28 October 2022 the Claimant resigned with immediate effect.

Conclusions

[52]The question is not whether the Claimant has, or has ever had, problems with his mental health but whether he has shown that he satisfied the statutory definition of being a disabled person within the meaning of the Equality Act 2010 at any point during the relevant part of his employment with the Respondent, namely between 21 July 2021 and 28 October 2022.

[53]In this respect, section 6 of the Equality Act 2010 provides: (1) A person (P) has a disability if- (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

[54]In this case the impairment relied upon for the purposes of section 6(1)(a) is a mental impairment of anxiety and/or depression and/or phobic anxiety disorders.

[55]Section 6(1)(b) provides that a mental or physical impairment amounts to a disability if it has both a substantial and a long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

[56]As to the meaning of substantial, section 212(1) of the Equality Act 2010 and paragraph B1 of the Guidance on matters to be taken into account in determining questions relating to the definition of disability 2011 (“the Guidance”), state that the requirement that an adverse effect on normal day-to-day activities should be a substantial effect reflects the general understanding of disability as a limitation going beyond normal differences in ability which may exist among people and that a substantial effect is one that is more than a minor or trivial effect.

[57]As to the meaning of long-term, paragraph 2 of schedule 1 of the Equality Act says: “(1) The effect of an impairment is long-term, if-(a) it has lasted for at least 12 months,

(b) it is likely to last for 12 months, or

(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”

[58]Also relevant is the authority of J v DLA Piper UK LLP (EAT)

[2010] ICR 1052

[59]At paragraph 40(2) the court held that when analysing the questions of impairment and adverse effect the tribunal should not proceed by rigid consecutive stages, and that where there is dispute about an impairment it may make sense to start by making findings about whether a claimant’s ability to carry out normal day to day activities is adversely affected on a long-term basis and to consider the question of impairment in the light of those findings.

[60]At paragraph 42 the court drew a distinction between two states of affairs which can produce broadly similar symptoms, the first being a mental illness and an impairment within the meaning of the Equality Act 2010, the second being a reaction to “adverse life events”, such as problems at work. The court continued by pointing out that the distinction can be difficult to apply in practice but may be resolved by first considering the long-term effect requirement: if a Tribunal finds that a claimant’s ability to carry out normal day to day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more that was likely to suggest “clinical depression” since reactions to adverse life events were not normally long-lived.

[61]Here, the Claimant’s case is that he has suffered from a mental impairment which has had a substantial adverse effect on his ability to conduct normal day to day activities since 2000. He relies on the fact that his GP Medical Report lists the item “5 October 2000 Phobic anxiety disorders” as an active problem. On this basis he argues that he was a disabled person within the meaning of the Equality Act 2010 from the outset of his employment with the Respondent. I am not satisfied this is the case.

[63]While I accept that something happened in 2000, when the Claimant was about 20 years old, which is described in his medical notes as “Phobic Anxiety Disorders”, there is no evidence before me in respect of that matter and, in particular, whether it had a significant adverse effect on his ability to carry out normal day to day activities for a period of 12 months or more. Moreover, as Mr Crozier put it in submissions, that matter has no subsequent footprint in the Claimant’s medical records, other than simply being listed as an active problem in the GP Medical Report. There are no medical records of the Claimant seeing a GP about anxiety related problems, having any treatment or medication for anxiety related problems, or having time away from work for anxiety related problems at any time prior to April 2020, nearly 20 years later. This, even though the GP Medical Report does list some historic matters such as the Claimant’s vaccination record.

[64]To the contrary the notes of the “Return to Work” form dated 27 May 2020 record the Claimant saying he had no underlying issues, the “Record of Contact” dated 16 February 2022 records the Claimant mentioning that he had a history of depression and anxiety from many years ago that he thought he had moved on from, while the GP Medical Report itself records the Claimant as having told the GP on 15 September 2022 that he felt as if had relapsed back to where he was in his early 20s.

[65]Further there’s no medical evidence to indicate that as at October 2000 the phobic anxiety disorders the Claimant was then experiencing were likely recur as he got older and I cannot simply assume that they were likely to do so (see J v DLA Piper UK LLP at para 45).

[66]It therefore follows that even if the Claimant was a disabled person within the meaning of the Equality Act 2010 in or around October 2000, he had ceased to be a disabled person by the time he started working for the Respondent in 2014.

[67]The next question is whether the Claimant became a disabled person by reason of a mental impairment in or about April/May 2020 when he was signed off work until 25 May 2020, on grounds of “Bereavement, death of father”.

[68]Here, I consider the evidence points clearly to the Claimant suffering a reaction to a traumatic life event rather than a mental impairment within the meaning of the Equality Act 2010. As noted above the Return to Work” form dated 27 May 2020 records the Claimant stating he had no underlying issues, that he was not on medication and that the matter was a once off instance. Further, there is no contemporaneous medical evidence to suggest the Claimant was suffering from a mental impairment of depression or anxiety rather than a natural reaction to the death of a much-loved parent.

[69]The next relevant period is February to June 2022.

[70]During this period of time, the Claimant’s fit notes describe him being signed off work for “stress-related illness”; “stress-related problem”; and “stress-related illness and anxiety” and I am not satisfied that the mental health problems he was then experiencing were a mental impairment within the meaning of the Equality Act 2010, rather than a normal reaction to workplace stress that was likely to resolve if his work issues were addressed to his satisfaction. Notably the commencement of the Claimant’s sick leave took place shortly after his grievance was partially rejected and he was issued with a performance warning, while the OH Report of 14 March 2022 describes the Claimant as being absent due to work related stress and expressly links his return to work with the resolution of his workplace issues. Furthermore, the Welfare Meeting of July 2022 records the Claimant stating his anxiety was workload related “with all the nonsense going on” and said that anyone would feel depressed and unable to cope in his position.

[71]The final period of time is from about mid-June to 28 October 2022.

[72]The Claimant remained at work from mid-June to mid-September. However, on 15 September 2022 he was signed off work on grounds of “mixed anxiety and depressive disorder”. Further the GP Medical Report details the Claimant as suffering from both stress at work and mixed anxiety and depressive disorder, describes him presenting as “very tearful at times”, and records that he was prescribed Sertraline and Propranolol.

[73]The Respondent accepts, correctly in my judgment, that at this point the Claimant’s condition, which until that point had been a normal stress reaction to an adverse situation at work, had become a medical condition and mental impairment within the meaning of the Equality Act 2010, no doubt triggered by the continuation of the Claimant’s work-related stress.

[74]The next question is therefore whether that mental impairment had a substantial and long-term adverse effect on the Claimant’s ability to carry out normal day to day activities.

[75]While Mr Crozier did not seek to argue that the Claimant’s impairment did not have a substantial adverse effect on his ability to carry out normal to day activities, he submitted the impairment was not likely to last 12 months because it remained focused on the Claimant’s work-related stresses and was not likely to recur.

[76]I accept this submission.

[77]It is plain from the chronology of events set out above that the deterioration of the Claimant’s mental health was very much linked to the unfair treatment he felt he was experiencing at work, namely the failure, as he saw it, of the Respondent to address his grievances and the disciplinary process being brought against him from January 2022 onwards. Notably the GP Medical Report refers to the Claimant telling the GP on 15 September 2022 about having recently received a Final Warning, about the “toxic environment” at work and that he was trying to find a new job or move department within the company, and that he had interviews lined up. By contrast the notes record him stating that he could manage his home life. As at September 2022 the evidence therefore suggests that if the Claimant’s work problems were to resolve to his satisfaction, or he were able to secure a satisfactory new job, it is likely his mental impairment would also resolve. There is no medical evidence prior to his resignation on 28 October 2022 to suggest his mental health impairment would persist beyond the resolution of his workplace issues or was likely to recur.

[78]I am therefore not satisfied the Claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 at any point during his employment with the Respondent and it follows that his claim for disability discrimination must be struck out. Equal Pay

[79]The Respondent submits that the Claimant’s complaint of equal pay has no reasonable prospect of success within the meaning of section 37(1)(a) Employment Tribunals Rules of Procedure 2013.

[80]When he first set out the basis of his equal pay claim, the Claimant identified five comparators, three female and two male comparators.

[81]In that document the Claimant complained(i) that Christopher Hall was paid more than him, despite, the Claimant alleged, working on more limited routes than the Claimant and the Claimant having to cover Christopher Hall’s workload for over a year;

(ii) that he became more aware of the pay disparity after he saw roles advertised with very different salaries depending on location;

(iii) that female comparators were paid significantly more than him although he had 8 years’ service;

(iv) that Mathew Brakspear had been given a significant pay increase to prevent him leaving, despite him having less experience that the Claimant;

(v) his pay had always been at the low end; and

(vi) despite his complaints and grievances the Respondent had not addressed the matter.

[82]When required to clarify the nature of his claim, the Claimant removed his references to the two male comparators. He complained that(i) he became even more aware of the unequal pay across the Respondent as Isolation Planner roles were advertised internally;

(ii) Sharra Lock was paid the same as the Claimant when she first joined the Respondent despite having no prior Isolation Planning experience; and

(iii) despite his complaints and grievances the Respondent had not addressed the matter.

[83]At the hearing today the Claimant referred to the fact that there were approximately 12 Isolation Planners working for the Respondent, and that he had been paid less than all or most of them. Three of them were female (the ones identified in his documentation). He stated that he had covered the workload of Christopher Hall for over a year and had received no credit for that and that Christopher Hall had been paid at least £12,000 per annum more than him. Sharra Lock was given a pay rise to more than the Claimant had been earning although she was doing the same job as the Claimant. She hadn’t magically out-performed him, rather the Respondent was trying to belittle him. He had been paid less than a female for doing the same work and that was unfair. The Claimant said he had given the Respondent his all and he expected to be paid properly.

[84]The essence of an equal pay claim is that a claimant alleges that they have been paid less than a comparator of the opposite sex doing equal work because of their sex.

[85]It’s true that if the Claimant were able to establish that he did work that was equal to Sharra Lock (or either of the other two female comparators named in his documentation) it would be for the Respondent to prove that the difference in pay was not because of the Claimant’s sex (within the meaning of section 69 of the Equality Act 2010). However, I consider there is no reasonable prospect the Respondent would not be able to discharge this burden, given(i) since the Claimant was one of the lowest paid Isolation Planners he would have been paid less than about eight other male Isolation Planners (as well as the three female Isolation Planners);

(ii) the Claimant accepts the Respondent raised the pay of certain Isolation Planners in order to retain them (including males such as Matthew Brakspear);

(iii) the Claimant accepts that the pay of Isolation Planners varied according to location; and

(iv) the Claimant accepts the Respondent pursued disciplinary proceedings against him because it considered there were issues with his performance (although he does not accept the disciplinary proceedings were justified).

[86]Further and in any event, the Claimant’s complaints appear to be that the pay of Isolation Planners across the Respondent was unequal and unfair because he was paid less than other Isolation Planners – both female and male – for no good reason, that he wasn’t remunerated fairly for his work or experience and that when he raised these matters with the Respondent his complaints and grievances weren’t addressed properly.

[87]While these complaints are matters that the Claimant can advance in the context of his claim for constructive unfair dismissal (and, perhaps, race discrimination), they do not disclose the basis of an equal pay claim within the meaning of Chapter 3 of Part 5 of the Equality Act 2010, where the difference in pay must be because of sex.

[88]For these reasons I consider the Claimant’s complaint of equal pay has no reasonable prospect of success and must be struck out.

Conclusions

[1]The claimant’s claim of constructive dismissal is not well founded and is dismissed.

[2]The claimant’s claim of direct discrimination based on race is not well founded and is dismissed.

[3]The claimant’s claim of harassment based on race is not well founded and is dismissed.

[4]The claimant’s claim of victimisation is not well founded and is dismissed. 1 on 14 February 2024 the Tribunal deliberated without attendance of the parties. JUDGMENT having been sent to the parties on 5 March 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

[1]In this case the claimant brought claims of constructive dismissal, direct discrimination based on rase, harassment based on race and victimisation. As stated in the judgment, none of these claims were well founded and were all dismissed.

[2]The respondent in this case is Network Rail Infrastructure Limited. In these reasons any reference to the shorter “Network Rail” should be read as a reference to the respondent. 1 on 14 February 2024 the Tribunal deliberated without attendance of the parties.

[3]The Tribunal sat for five days 8-12 January 2024. The Tribunal panel sat in private for further deliberations on 14 February 2024 and gave oral judgement and reasons on 16 February 2024. PROCEDURAL HISTORY

[4]There was a preliminary hearing on 18 August 2023. Employment Judge Moore struck out claims of disability discrimination and equal pay. Judge Moore’s reasons are fully set out in the record of that hearing. FINAL HEARING Witnesses

[5]At the final hearing, the claimant gave evidence himself and called evidence from his mother, Mrs Ursula Mackowski.

[6]The claimant told us he was suffering from stress and depression during the hearing. The Tribunal took steps to take account of this in the proceedings such as asking the claimant if he was feeling okay and offering to take breaks. There were no other adjustments that the claimant asked for.

[7]The respondent called evidence from seven witnesses:a. Peter Frampton

b. Danielle Pound

c. Robert Breckon

d. Daniel Collins

e. Dominic Gorton

f. Adam Cooper-Watson

g. Gregory Martin Burden and standard of proof

[8]The standard of proof applicable to these proceedings is the balance of probabilities. That means that on the disputed issues the Tribunal will weigh up the relevant evidence that has been presented to the Tribunal by the claimant and respondent and decide what is more likely than not to be true. To say that something is proved on the balance of probabilities is to say that the evidence shows it to more likely than not be true.

[9]The Tribunal has taken account of the evidence of the witnesses called by the claimant and respondent and the documentary evidence put before us.

[10]The general position in civil law is that the claimant, who has brought the case, has the burden of proving his case. However, in claims under Equality Act 2010, under s. 136, if facts are established from which the Tribunal could decide that an unlawful act of discrimination has taken place the burden of proof shifts to the respondent to show that there is a non-discriminatory explanation. This shifting burden of proof may apply to claims of discrimination, harassment and victimisation (claims that the claimant has brought in this case).

[11]The first stage is that the claimant must show a prima facie case that potentially less favourable treatment has occurred (see Laing v Manchester City Council and another 2006 1CR 1519, EAT). In determining this the Tribunal must look at all the circumstances (which will be apparent from the evidence) and draw reasonable inferences where appropriate.

[12]In this case the claimant seeks to pass the first stage by showing that events indicated in the Scott Schedule agreed by the parties occurred.

[13]If the first stage is passed then the burden shifts to the respondent to provide an explanation and show that the act was not discriminatory. Documentary evidence bundle

[14]The parties agreed a bundle of 1406 pages (including index) and referred us to particular documents. The parties were clearly directed that if they wished the Tribunal to have regard to a document in the bundle, they should highlight that document to us.

[15]At the outset of the final hearing, preliminary issues were raised about the bundle. Firstly, the claimant considered that certain documents he had asked to go into the bundle had been left out by the respondent’s solicitors. Some of the documents were in the bundle but had been relabelled in the index from the label, or title, the claimant has proposed for these documents. Other documents had not been included. These were, save for three documents referred to below, put into a supplementary bundle of 12 pages (including index) that was provided to the Tribunal.

[16]The claimant asked for three more documents to be included in the bundle which the Tribunal refused. These referred to a person who was not a witness in the case but who works in the respondent’s human resources department.

[17]The three documents were:a. A screenshot of this person’s LinkedIn profile;

b. A screenshot of pages from the website of the Solicitors Regulation Authority indicating that this person had been disciplined by the SRA some years ago, was suspended from practice for a period and had restrictions placed on their practice; and

c. An online news report appearing to refer to the disciplinary hearing in question and setting out the facts of that case, which were that they had in 2018 sought to conceal a tribunal hearing notification received by their firm to cover-up a diary mistake and was dismissed by their firm prior to the SRA action. According to the news report they suffered a panic attack after becoming aware of their diary mistake and the SRA disciplinary tribunal considered medical evidence. The disciplinary tribunal described their dishonest action as “not sustained or calculated.”

[18]The respondent confirmed that in the present case this person had had “an advisory HR role.” One of the managers who had dealt with HR processes concerning the claimant had spoken to this person for HR advice. The claimant said he considered these three documents to be relevant to his case as people in Network Rail have, he believes, “closed ranks” against him. He suspects that the person referred to in the document interfered with his case and “brushed [his] complaints under the carpet and advised Mr Collins [a Network Rail manager] not to do anything.” He suggested that the concealment of a tribunal notification in 2018 suggested this person might have tampered with documents in this case. He could not specify any document he was concerned might have been tampered with.

[19]The respondent submitted that the three documents were entirely irrelevant to the issues in this case. There are no allegations against this person in the Scott Schedule of the claimant’s allegations. The Tribunal would be hearing evidence from witnesses who had substantively dealt with the grievance that the claimant had raised. It was submitted that the person concerned is “largely irrelevant” to the case and “what happened to them in a previous career is utterly irrelevant.” The “Speak Out” reports, documents in which the claimant had raised concerns about various matters at his work had been disclosed and relevant reports are in the bundle.

[20]The Tribunal took the view that the three documents did indeed appear to lack relevance to the issues in the case. There was no specific complaint in this case against the person concerned and the events of 2018 (which on the basis of the news report that the claimant asked us to have regard to, appeared to concern a serious but one-off mistake over five years ago for which there was personal mitigation and had been addressed by the relevant tribunal) was extremely unlikely to have any bearing on our assessment of the disputed issues in this case. We therefore refused permission for the three documents to be added to the bundle but said that the claimant could renew his application to include them later in the hearing if the evidence heard gave the documents relevance. The claimant did not seek to raise the matter again later in the hearing. Claimant’s application to add to the list of issues

[21]A further preliminary issue was that the claimant sought to add another allegation to the 21 allegations in the Scott Schedule. The allegation as drafted was not straightforward to understand but the claimant explained that, in short, he was alleging that his sources of stress (or stressors) had not been dealt with adequately on 13/9/22 by Network Rail managers. He names two managers, Danielle Pound who already was a witness in the case and Alison Prentice who was not.

[22]He said in the draft addition to the Scott Schedule (which he had emailed to the Tribunal on 4/1/24) this was part of the direct discrimination and harassment against him. He said that it was disability discrimination and victimisation.

[23]The respondent objected to this proposed addition to the Scott Schedule. The allegation appeared to, at most, touch on disability discrimination which was struck out as a claim in August 2023. A list of issues and the Scott Schedule were discussed at a further preliminary hearing in October 2023. Agreed versions of these were put into the bundle which did not include this allegation. The present version of the bundle was sent to the claimant in late November 2023, and he had not raised his wish that this allegation be included until his email of 4 January 2024. The claimant told us he had not noticed its absence until over the Christmas period.

[24]The respondent submitted that allowing this extra allegation to be included now would require an extra witness. The allegation was made against Alison Prentice. She was not a witness in the case. If this allegation was to be added a statement would need to be taken from her, further documents might need to be obtained and she would likely need to attend to give evidence.

[25]The Tribunal considered it was unreasonable of the claimant, having received the present iteration of the Scott Schedule in late November, not to raise his request for an additional allegation until 4 January 2024 (just two working days before the start of this hearing) and the point made by the respondent that it would introduce a new person to the case and need for additional evidence was correct. The Tribunal therefore considered it was not in the interests of justice to allow this addition to the Scott Schedule (or the consequent amendment to the list of issues that would have been required). THE LAW

[26]As noted above, the claimant brought claims of constructive dismissal, direct discrimination based on race, harassment based on race and victimisation. CONSTRUCTIVE DISMISSAL

[27]When an employee terminates their contract of employment that can, in certain circumstances, be considered to be a dismissal. This is made law by Employment Rights Act 1996, s. 95(1)(c). A termination that is in fact a dismissal is referred to as a “constructive dismissal” and arises out of conduct by the employer.

[28]In Western Excavating (ECC) ltd v Sharp

1978 ICR 221

CA the Court of Appeal ruled that a constructive dismissal requires a repudiatory breach of the employment contract. There must be a fundamental breach of the contract by the employer, which must cause the employee to resign, and the employee must not delay too long before resigning. If they delay too long they will be taken as affirming the contract (agreeing to the contract continuing) and losing the right to bring a claim that a constructive dismissal has occurred.

[29]The breach of contract that is alleged to have taken place must be a fundamental breach and what is fundamental will depend on the facts of a given case. In many cases, including this case, the claimant is entitled to rely on an implied term in the contract of mutual trust and confidence.

[30]Mutual trust and confidence are essential to employment contracts and neither party should behave in a way that is calculated or likely to destroy or seriously damage the relationship of trust and confidence. Employers can breach this duty in a number of ways. The claimant in this case says that the respondent did various things identified in the Scott Schedule and these amount to destruction or serious damage to his trust and confidence in the respondent. DIRECT DISCRIMINATION BASED ON RACE

[31]The claimant has brought claims connected to this race. Equality Act 2010 s. 9 defines race and includes “ethnic or national origins.” In this case the claimant relies on his Polish heritage, clearly an ethnic or national origin, as his race. The claimant says he was discriminated against due to his race.

[32]One of the forms of discrimination prohibited by the Equality Act 2010 is direct discrimination. Section 13(1) says that a person discriminates against another if, because of a protected characteristic (in this case, race) they treat someone less favourably than they would treat another person. The various ways in which the claimant in this case says he was treated less favourably than others are set out by the parties in the Scott Schedule. Whether something amounts to less favourable treatment is an objective question. What that means is that a claimant’s own perception that they have been treated less favourably is not enough to establish a case, although the Tribunal may have regard to the claimant’s perception of what the effect on him has been of the treatment in question.

[33]The claimant must be able to point to a comparator. This is another person who does not share his characteristic (in this case, his race) but who otherwise resembles the claimant. The comparator may be actual or hypothetical. The claimant must show that he was treated unfavourably compared to this person because of his race. HARASSMENT BASED ON RACE

[34]Section 26(1) of the Equality Act 2010 prohibits conduct that violates a person’s dignity or creates and intimidating, hostile, degrading or offensive environment. This covers unwanted conduct related to the relevant protected characteristic (race in this case) which has the purpose or has the effect of violating dignity of creating an environment as described in the previous sentence.

[35]There are therefore three elements that must be present for a harassment claims to be well founded:a. unwanted conduct

b. which has the proscribed effect or purpose, and

c. it must relate to the relevant proscribed characteristic.

[36]Unwanted conduct can include a wide range of behaviours. The matters complained of in this case are set out in the parties’ Scott Schedule. There is some disagreement between the parties as to what occurred. The Tribunal must make findings, on the balance of probabilities, as to what occurred and consider whether all three elements listed above are shown to be present. In some parts of the case the parties agree that a particular event happened (e.g. the claimant was invited to a meeting or was given a written warning) but the respondent contends that it acted reasonably (i.e it did not have the effect of purpose required to make it harassment) and was not connected to race. VICTIMISATION

[37]People who wish to protect their rights under Equality Act 2010 may sometimes fear reprisal if they take steps to do so. The law seeks to give people protection from such reprisals.

[38]Section 27 of the Equality Act 2010 provides that a person victimises another if they subject them to a detriment because they do a “protected act” or they believe the person has done or may do a protected act. Protected acts are bringing proceedings under the Equality Act, giving evidence or information in connection with such proceedings, doing any other thing in connection with the Equality Act and alleging that the Act has been contravened.

[39]A detriment is something which a person might reasonably consider changed their position for the worse. It can include being denied a promotion or opportunity to do certain work or training. Unlike, in the direct discrimination claim, a comparator is not required to show that there has been a detriment. The detriments alleged to have been suffered by the claimant are set out in the Scott Schedule.

[40]The evidence in the case must show that these detriments were indeed suffered by the claimant. It must also be shown, on the evidence, that they occurred because of protected act (or acts) he had taken. One must cause the other to take place. THE LIST OF ISSUES

[41]The parties agreed a list of issues before the final hearing. This appears in the bundle at pages 45-48. The list of issues reflects the relevant law. There is no need to reproduce the list of issues as the parties both have copies. However, we will refer to the issues in the list later in these reasons when setting out the findings we have made in relation to the claims brought by the claimant. SCOTT SCHEDULE

[42]As referred to above the parties provided an agreed Scott Schedule setting out 21 allegations made by the claimant. Each allegation was relevant to one or more of his claims.

[43]The allegations are numbered 1 to 20 including a 5A and 5B, making a total of 21 allegations.

[44]In Appendix 1 to this document, we set out each allegation from the Scott Schedule and summarise the evidence we received in connection that allegation and our findings of fact in relation to that allegation. The description of the act or omission in each allegation is reproduced verbatim from the schedule. FINDINGS IN RELATION TO THE CLAIMS

[45]In light of our findings of fact on the 21 allegations, we make the following findings in relation to the four claims advanced and we refer to the list of issues. The issue of time appears in the list of issues but is academic in light of our determination on other issues as set out below. DIRECT DISCRIMINATION BASED ON RACE

[46]The Claimant alleges that allegations 1 to 4, 6 to 7 and 17 in the Scott Schedule took place and amounted to less favourable treatment, and that such treatment was on the grounds of his race. For the reasons given in Appendix 1 we have found that these allegations are not proved. It is not proved, on the balance of probabilities that the respondent carried out the acts or omissions alleged or, where certain treatment is agreed that it amounted to less favourable treatment.

[47]The respondent did corporately know that the claimant had Polish heritage. He has told the respondent in 2017 (he had told his manager Peter Frampton and Danielle Pound that his family were Polish) and his name may suggest a Polish or eastern European heritage.

[48]We do not find it proved that the claimant was treated less favourably because of this race. There is little or no evidence to suggest that any of the actions of the respondent’s employees were motivated by or affected by the claimant’s race. We are mindful that discrimination is not always overt but we can see no proved circumstances in this case on which we could properly infer that discrimination took place covertly.

[49]In light of our findings above it is not necessary for the Tribunal to reach a finding on whether the comparators put forward by the claimant are appropriate comparators. HARASSMENT

[50]The Claimant alleged that allegations 1 to 3, 6 to 8 and 17 to 20 of his Scott Schedule took place. For the reasons given in appendix 1 we have found that they did not take place or where certain matters did take place they were reasonable actions or omissions in all the circumstances.

[51]As can be seen in Appendix 1, we found that allegation 1 did not take place. In relation to allegation 3, the grievance did take six months to answer, but this was reasonable in the circumstances. In relation to allegation 6 we found that Mr Collins’s actions were reasonable based on all the evidence available to him. In relation to allegation 7, the claimant was issued with a written warning, but we have not found that was unfair on the evidence available. Allegation 8 is not proved to have taken place.

[52]Allegation 17 is not a specific allegation. Allegations 18 to 20 concern continuation of disciplinary process after the claimant’s resignation. It is agreed between the parties that this took place. As stated in Appendix 1. we find it was reasonable in all the circumstances and did not amount to harassment.

[53]For the claimant to succeed in this harassment claim the conduct complained of must be related to race. In our assessment, there is no real evidence in this case that the conduct cited was connected to the claimant’s race.

[54]Although the claimant expressed his strong sense of grievance at these matters we do not consider that the conduct established to have taken place could be said on the evidence before us have the purpose or effect of violating the claimant’s dignity nor did it create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. VICTIMISATION

[55]The Claimant raised a formal grievance on 21 July 2021. the Claimant issued an Employment Tribunal claim on 23 June 2022. It was accepted by the respondent that this constitutes a protected act.

[56]The Claimant refers to allegations 3 and 18 to 20 of the Claimant’s Scott Schedule as being detriments to which the respondent subjected the claimant because he did the protected act.

[57]The Tribunal has found that the grievance did take six months to complete and the respondent pursued disciplinary matters after the claimant’s resignation.

[58]The Tribunal finds that the six month delay was reasonable in all the circumstances as was the completion of disciplinary proceedings. There were credible reasons for both of these which we refer to in Appendix 1. The Tribunal does not find that these acts were because the claimant had taken protected acts. We accept the evidence of Gregory Martin (the manager dealing with the disciplinary process) that he was unaware of the claim the claimant had brought until the claimant told him about it in December 2022 and he was not, as the respondent’s representative, motived to pursue disciplinary proceedings because of the claim that had been brought. CONSTRUCTIVE UNFAIR DISMISSAL

[59]The breaches of contract alleged and relied on by the Claimant are allegations 1 to 16 of his Scott Schedule. We have set out in appendix 1 our findings of fact in relation to each of these allegations.

[60]We find that the claimant has not proved a repudiatory breach of his contract. He has not proved that the respondent acted unreasonably in the events identified in allegations 1 to 16. None of the actions of the respondent amounted to a repudiatory breach of contract or, therefore, amount to a dismissal of the claimant from his employment. The claimant, we find, chose to resign and moved immediately to a new job that he had been offered, he said in evidence, months before subject to vetting; he was not constructively terminated. CONCLUSION

[61]For the reasons given, the claimant’s claims do not succeed.

[62]The Tribunal accepts that the claimant was very unhappy in his work for the respondent for some time. There were mutual allegations of poor behaviour between the claimant and his line manager. The evidence in the case doe not in our view well found the claims that the claimant has brought.

[63]The claimant said that his new employment, for an important organisation, is more satisfying and enjoyable for him, and we wish him well in that. Mr A Mackowski -v- Network Rail Infrastructure Limited APPENDIX 1 to the Tribunal’s Written Reasons

[1]This appendix sets out the Tribunal’s findings in relation to each of the allegations. The format used by the parties in their agreed Scott Schedule is followed and the content of that schedule is reproduced.

[2]In the third column the alleged act/omission is reproduced from the schedule and is highlighted in yellow. The Tribunal’s findings are set out below without any highlight.

[3]The initials NR refer to the respondent, Network Rail Limited. All Dat Act/Omission (short statement of what the Respondent is said By whom Where What form of eg e ati to have done/not done) discrimination on (e.g. direct The Tribunal’s findings. discrimination, N harassment, 1. 26/05/20 The Claimant had to sit within an office environment where there were Peter The Direct 21 occasions and discussions taking place about a dislike of foreigners. A Frampton Respondent’s discrimination comment was made about Polish being referred to as being “Gypsies”. office, Harassment The Claimant is a British National of Polish descent. Reading Factual Allegation: Did Peter Frampton refer to Polish people being “gypsies”? The claimant said in his statement that racist or xenophobic comments “have always been frequent” and that he challenged Peter Frampton about this on one occasion. He also says in his statement that a comment was made about Polish people being “gypsies” and he found this offensive, discriminatory and harassing. He says he raised this with Peter Frampton, but nothing was done about it. The claimant is a person of Polish heritage which he says would be reasonably obvious to most people from his surname. Mrs Ursula Mackowski refers to this in her statement but of course she was not there to witness the matter in question and has been told by her son that it occurred. Mrs Mackowski gives general evidence as to her son’s anxiety and depression while working at NR and she feels that NR failed to treat her son fairly. In his statement, Peter Frampton accepted that there had been an incident involving the use of the word “gypsies”, but this was in 2017. In February 2017, the claimant had complained to him about another member of staff saying, “there were Polish gypsies in the car park” and this led to an investigation. There was an apology from that member of staff who was offered training and told that any further issues may result in a formal process. Peter Frampton was not the claimant’s line manager by May 2021 and has, he said, had limited interaction with him since 2020. He says that the claimant did not complain to him of a racist incident in 2021. The bundle includes a number of documents referring to the 2017 incident. On 21/7/21 the claimant raised a grievance by letter. He refers to “discriminatory behaviour” but there is no reference to this alleged incident. The letter is primarily, before and after the use of that phrase, about pay, hours and recognition. A grievance meeting took place on 19/8/21 and notes of that meeting are exhibited in the bundle. The claimant raises a number of matters but not this alleged incident. The Tribunal is faced with the claimant’s account that this incident happened and Mr Frampton’s account that it did not. The documents indicate no reference to such an incident in 2021. In cross-examination the claimant referred to it being recorded in his diary, but no diary has been disclosed. We find on the balance of probabilities that this alleged incident did not take place because we are left with the evidence of one witness against another and in our view the non-mentioning of this incident in any of the grievance letter or interview in the summer of 2021 suggests it did not happen. We would expect the claimant to mention it had it happened. It may be that the claimant is now confused with the incident that took place in 2017. The claimant has not put his case as relying on the incident in 2017 and if he had done he would face a problem in regard to the old age of that incident and it clearly being many years out of time. 2. Around The Claimant made a verbal complaint about the behaviour detailed in box 1. Peter The Direct 26/05/21 directly to Peter Frampton, but nothing was done about the racist behaviour Frampton Respondent’ discrimination within the Network Rail Reading office. s office, Harassment Reading Mr Frampton was sitting near where an open conversation of a dislike of foreigners was taking place where Caroline Williams was referring to Polish as being gypsies. The Claimant challenged this racist comment stood up from his desk and told Ms Williams that Polish are not gypsies. Ms Williams stated to the Claimant “Yes they are”. The Claimant then told Mr Frampton that you need to sort that out. Mr Frampton did not do anything at all about this. These conversations of a dislike of foreigners took place on many occasions particularly of foreigners stealing jobs and a dislike of foreigners and Brexit. The Claimant made a further complaint about racist behaviour directly to Mr Frampton again in a 1-2-1 meeting where the Claimant’s former line manager, Helen Benson, was present. The Claimant stated to Mr Frampton that the racist behaviour in the office has to stop. Mr Frampton smirked and stated to the Claimant “What racist behaviour”. Factual Allegation: Did Mr Frampton fail to deal with the Claimant’s complaints? This allegation is obviously closely connected with allegation 1. Peter Frampton gave evidence in his statement that Helen Benson moved to Australia in 2018 so any involvement of her (and she was not called as a witness by either party) must have been long before the alleged incident in May 2021. As with allegation 1 above, we can see no evidence, particularly no documentary evidence from 2021 of this taking place and being raised with Peter Frampton by the claimant. We are bound to find it is not proved, on the balance of probabilities, that this allegation is true. 3. 21/07/2021 The Claimant made a formal grievance in relation to Mr Frampton’s Danielle Network Rail Harassment, direct harassment, discrimination, and Unequal Pay and whereby the claimant’s Pound office, Reading discrimination, dignity was violated where Mr Frampton disclosed confidential personal details victimization. of the Claimant’s family bereavement breaching the Respondent’s policy. The Breach of the Respondent took a period of over 6 months to give the Claimant an outcome Peter ACAS Code. nothing had been adequately addressed. The Claimant was provided this Frampton outcome on 13th January 2022 a period of over 6 months later. This is unacceptable and breaches the ACAS Code. Network Rail HR The Claimant submitted a formal grievance on 21/7/21. As mentioned above most of this letter referred to pay issues. His equal pay claim has been Robert struck out by the Tribunal at an earlier hearing. Breckton He referred to “discriminatory behaviour” but did not explain in detail what this was. He also referred to Peter Frampton having shared with other people, details of the claimant’s bereavement (his father had died). This information sharing was around April 2020. The evidence is clear that it did take about 6 months to fully respond to this grievance. The respondent contends that this was reasonable in all the circumstances. The grievance was investigated by Rob Breckon. He met with the claimant on 19/8/21 and interviewed four members of staff between September and November 2021. He completed his report on 21/12/21 – exactly five months after the complaint was made by the claimant. He met with the claimant relatively quickly (about four weeks after it was made, and in the summer period) and then interviewed three witnesses in September. There was a two month delay before the final witness, Mr Frampton, was interviewed and we heard no evidence as to why there was that delay. Neither Mr Brecon nor Mr Frampton were asked about this when they gave evidenc and we cannot speculate one evidence we did not hear. The claimant was on leave for three weeks at the turn of the year and the outcome was given to him at a meeting on 13/1/22. ACAS guidance states decisions should be conveyed “without unreasonable delay”. What is reasonable is context specific. Rob Breckon gave evidence. He said the investigation had taken place at the busiest time he could recall in his career. He also pointed out that the investigation concerned complaints that were not simple. There were three areas of complaint. The pay aspect of the complaint required him to make several enquiries about the company’s approach to pay. In all the circumstances, we consider that the time taken to investigate the complaint was just within reasonable bounds, given the complexity of the issues in the complaint, the number of people spoken to, and allowing for the claimant’s own leave period at the end of 2021. We therefore do not uphold this allegation. 4. 13/01/20 The Claimant was invited to a hearing where the Grievance the Claimant Robert Hearings Harassment, made 6 months earlier was discussed. The outcome was that nothing was Breckton held via direct done about the harassment, discrimination, and Unequal Pay. The fact that Network Microsoft discrimination, Mr Frampton breached the Respondent’s policy by disclosing confidential Rail HR Teams victimization. information of the Claimant was only dealt with by telling Mr Frampton to Breach of the send the Clamant a one line apology email and to familiarise Mr Frampton ACAS Code. with the Respondent’s bereavement handing policy. Factual Allegations:(i) did the Respondent take six months to address the Claimant’s grievance; and

(ii) did the grievance outcome fail to address the Claimant’s grievance adequately? We have dealt with the time issue further above. We now consider the adequacy of the response. The claimant’s grievance in relation to sharing of details of his bereavement was upheld. The respondent accepted that the claimant’s line manager should not have shared this with others without the claimant’s permission. The respondent’s response was to require the manager in question to give an apology and to make themselves aware of company policy on supporting bereaved colleagues. The complaint about pay disparity was not upheld. The reasoning for this is explained in the report letter from Rob Breckon. He explained that pay is affected by role, years of service and other factors. Mr Breckon also dismissed the complaint of “discriminatory behaviour” briefly saying that the claimant had not identified any evidence of discriminatory behaviour. At a meeting on 13/1/22 the Claimant raised his Polish heritage as a basis on which he said he had been discriminated against. He had not raised this when he met with the investigator Mr Breckon earlier. In our view, Mr Breckon’s decision on the grievance and the steps taken (including requiring an apology and training) were reasonable based on what was presented to him. Even if that was not the case, we do not see any evidence that Mr Breckon’s decisions were motivated by or related to the claimant’s race.

[5]A 21/01/22 The Claimant was suffering from severe anxiety and depression and was Danielle The None – invited to a disciplinary hearing in relation to performance. The Claimant Pound Respondent’s constructive made the hearing manager aware of all the issues yet these were office, unfair dismissal Dominic subsequently ignored and the Claimant was issued with a written warning in Reading claim only Gorton relation to performance whilst suffering from severe anxiety and depression. The Respondent accepts that the Claimant was invited to a disciplinary/performance meeting and was issued with a first written warning on 3 February 2022. The claimant said in his witness statement that he was suffering from stress and anxiety. The respondent agrees that it invited him to a meeting about his performance in January 2022 and issued him with a first written warning on 3/2/22. The claimant’s manager at this time was Danielle Pound. It is common ground between the parties that the claimant’s role was to produce plans for safe, deliverable, non-disruptive disconnections of power from parts of the railway to enable engineering work to be completed. Danielle Pound’s evidence was that the claimant was producing low quality work that was unsafe, undeliverable or excessively disruptive. The claimant vigorously contests that. Danielle Pound says that checks were made on the claimant’s work which revealed problems. She also says that his attitude was poor, and he would not accept, when given feedback, that he had made a mistake. There had been performance improvement plans in 2018 and 2019. On 21/9/21 Danielle Pound initiated a performance investigation. This led to a report. It is important to note, in the context of the claimant’s case involving considerable attack on Danielle Pound for treating him (he alleged) unfairly, that she gave evidence that he was confrontational towards her and she was traumatised by how he spoke to her on a number of occasions. On 3 February 2022, a formal performance improvement plan was put in place. Another manager, Dominic Gorton, was asked to undertake a performance review. This led to a meeting of Mr Gorton with the claimant. The claimant made clear to Mr Gorton that he disputed that his performance was problematic and said that his workload was excessive. He asked for James Sealy and Mathew Breakspear to be witnesses. Mr Gorton spoke to Mr Breakspear, to Danielle Pound and another member of the team of which the claimant was a part. Mr Gorton’s evidence is that at no time did the claimant tell him he was unwell with anxiety and depression when they met on 3/2/22 but they did discuss a number of matters and Mr Gorton asked the claimant to tell him about any problems he was having. The claimant reminded Mr Gorton that he, the claimant, had passed his assessments. Mr Gorton noted that despite this, the view of the claimant’s work generally was that there were often problems with it. Mr Gorton concluded that the best way to support the claimant was a formal performance improvement plan and concluded that a first formal warning was appropriate. The claimant contends that it was fundamentally unfair to take this step when he was suffering from anxiety and depression. However, he was not signed off work at that time. He had been signed off in April 2020 after this father’s death and was signed off again after the warning was given. Mr Gorton had asked the claimant whether he was happy to proceed on 3/2/22 and he said he was. Ms Pound’s report is comprehensive and the notes of the interview on 3/2/22 indicated a thorough meeting where the claimant was given a reasonably supportive hearing. In the circumstances we are not persuaded that the evidence shows on the balance of probabilities that that the impositions of the PIP and first written warning on 3/2/22 were unfair. 5. b 24/03/20 Mrs Pound failed to conduct a risk assessment. Danielle Pret a None – 22 Pound Manger, constructive Danielle Pound did undertake an assessment of the claimant using the Reading unfair dismissal “Wellbeing discussion tool”. This was on 24/3/22 and was produced in the Station claim only bundle. Her evidence was that this incorporated consideration of stress. The document states that “stress related illness and anxiety” is why it was being prepared. The document identifies several actions, such as for the claimant to inform Ms Pound if worksites were acting unreasonably towards the claimant, for him to prioritise and not multi-task and to speak to the NHS. It identified sources of support for the claimant. The claimant gave evidence that he does not consider this to be a stress risk assessment but could not clearly explain to the Tribunal what should have been done that was not done in the tool that was used. We conclude that the claimant has not proved to us on the balance of probabilities that an adequate assessment of his stress risk was not carried out. 6. 21/04/20 The Claimant was invited to an appeal hearing regarding bullying harassment Danielle The Harassment. 22 and unequal pay whereby the appeal hearing was heard by Daniel Collins. Pound Respondent Direct The way in which the hearing was dealt was that the Claimant was asked to ’s office discrimination. Daniel stand outside the meeting room whilst Mr Collins telephoned HR to advise on Reading Collins what to do. The outcome was that nothing was done about the Claimant’s Delivery grievance or appeal in relation to discrimination, bullying, harassment and Unit Room unequal pay. 1 Factual Allegations:(i) did Mr Collins seek advice from HR during the grievance appeal hearing; and

(ii) did Mr Collins fail to address the Claimant’s complaints? Mr Collins is a senior manager in the company and was tasked with dealing with Mr Mackowski’s appeal against his grievance. The grievance appeal hearing took place on 21 April 2022. During that meeting, Mr Collins accepts that he phoned the HR department before giving his decision. He said this was to talk through his proposed decision and rationale. Mr Collins said this was following an established policy that a manager should do this. The claimant in his statement describes this as “HR advising what to say”. In our view, it is reasonable for a manager dealing with an HR issue (such as a grievance appeal) to speak to their organisation’s HR department in the course of doing so. The claimant also alleges that Mr Collins failed to properly address matters. There are detailed notes of Mr Collins’ meeting with the claimant in the bundle. In relation to the pay disparity, Mr Collins notes that the claimant was £3,000 below the average pay for his role but also notes that he had three performance plans and concluded that in all the circumstances his pay position was reasonable. In relation to the bereavement information, Mr Collins upheld the decision of Mr Breckon that an apology and guidance for the manager concerned was an appropriate response and it did not merit a more draconian sanction for the manager as the claimant said was called for. In relation to discriminatory behaviour, Mr Collins considered that the incidents raised by the claimant were old. The Tribunal finds that in all the circumstances the decisions made by Mr Collins were reasonable based on the evidence available and, if that were not the case, there is no evidence that they were motivated by race or related to the claimant’s race in any way. 7. 12.05.20 The Claimant was issued with a written warning in relation to his Danielle Microsoft Harassment. 22 performance. Pound Teams Direct Adam discrimination. Mr Cooper Watson did not deal with the issuing the first written warning in Cooper February but heard an appeal against it on 12/5/22. The identification of Mr Watson Cooper Watson and the date indicate that this allegation concerns that handling of the appeal against the first written warning. This appeal was held after the claimant returned to work from a period of sick leave. There was an appeal outcome meeting where Mr Cooper Watson explained his findings on the appeal. Mr Cooper Watson spoke with Mr Gorton and with Ms Pound about the distribution of work in the team. Like Ms Pound, Mr Cooper Watson said he found the claimant quite aggressive in his demeanour towards him. Mr Cooper Watson’s evidence was that he went through all the claimant’s grounds of appeal and concluded that he “had no doubt” that Mr Gorton had reached the correct decision but would look further into the matter of stress affecting the claimant’s performance. Mr Cooper Watson reconvened the appeal hearing with the claimant on 9 June 2022 and said he was satisfied that the evidence showed several attempts by his line manager to support him and that the PIP and warning would be upheld. Mr Cooper Watson’s evidence was that he was unaware of the claimant’s Polish heritage until the claimant mentioned it and it played no part in his consideration of the appeal. We find there is no evidence that Mr Cooper Watson’s approach to the appeal was unreasonable or was in any way affected by the claimant’s race. 8. 11/05/20 Mr Frampton fell out with Josh Aspinall Project Manager Change and made a Peter The Harassment. 22 bullying comment in front of Mr Aspinall and the Claimant. Mr Frampton Frampton Responden stated to Mr Aspinall that “If you don’t sort your attitude out I will give your job t’s Reading to someone that’s looking for a Project Manager role” then Mr Frampton in office front of Mr Aspinall looked towards the Claimant. In this allegation, the claimant says he was present when Peter Frampton made the quoted remark to another person (Josh Aspinall). The Tribunal accepts that in principle a bullying remark to one person in front of another could have an effect of creating an unpleasant working environment for that other person as well. The claimant says this happened on 11 May 2022. The claimant accepted in cross examination that this was “not race related”. It is therefore hard to see how the incident can be part of the claimant’s harassment claim given (per the list of issues) the conduct complained of must relate to race. Neither party called Mr Aspinall as a witness. There is no documentary evidence presented to support the allegation. Mr Frampton denied all knowledge of the incident and said he was on holiday in Cornwall at the time. The claimant has not proved to us on the balance of probabilities that this incident occurred. 9. 15/06/20 Factual Allegations: (i) was the Claimant unsuccessful in his application for an Danielle The None – 22 Incident Controller role without being called to interview; (ii) was the Claimant Pound Responden constructive given a low score for motivational fit? Adam t’s Reading unfair dismissal Cooper office claim only The claimant gave evidence that he applied for “about 1,600” jobs in the Watson respondent company including the incident controller role. Mr Cooper Watson was the manager recruiting for this role. His evidence is that a blind sift of CVs was used with names removed from the process. This sift was done by HR. Applicants’ answers to questions were then presented anonymously and scored. He said the claimant did not get past this stage. His scores were not high enough. There was no evidence to undermine Mr Cooper Watson’s account and he was not in fact challenged on it in cross examination. The claimant was unsuccessful in his application and given a low score, but we are not persuaded that the respondent adopted an unfair process or that it can be said to have undermined the trust and confidence between claimant and respondent. 10. 26/08/20 The Claimant was told by James Sealey that Danielle Pound stated to him not Danielle The None – 22 Pound Responden constructive to show the Claimant anything he was unsure of whilst on annual leave. On another occasion Mick Murphy the Network Rail ATIL Training Assessor office claim only picked up on the fact that the Claimant wasn’t being provided with isolation diagrams/tools that he needed to perform his job properly and advised the Claimant that he had told Danielle Pound to do so. The respondent accepted that James Sealey covered for Danielle Pound when she was on leave in August 2022. A handover email on various matters is produced in the bundle. Ms Pound refers to training and says, “I don’t want you doing any training of anyone while I am on leave”. Ms Pound did not say why she wanted training to await her return. She emailed the claimant to say that in her absence James Seely would he “colouring up” work for him which we understand from the evidence to mean allocating it in a shared inbox and she set him a number of priorities for work while she was away. The emails are brief and to the point. The claimant says he learned of the instruction to Mr Sealey from Mr Sealey. We take the view that as a more senior member of the team (indeed one who had been asked to review the claimant’s work) Mr Sealey’s starting point would have been to give the claimant basic advice and assistance. The email instruction appears to be not to deliver training and in our view that is not the same as “not to show the claimant anything he was unsure of”. Indeed, there was a note in the email to the claimant that Mr Sealey would help him with one particular matter (the launch of a Sharepoint). In relation to diagrams/tools, Ms Pound goes into some detail in her statement about steps taken to provide the claimant with these (pages 6 and 7 of her statement). She was not challenged about this in cross-examination. Mr Gorton had raised with the claimant whether it would be helpful for him to come into the office to access resources. This matter is not referred to in the Claimant’s own statement. We are not persuaded that the claimant has proved to us on the balance of probabilities that the respondent failed to provide necessary diagrams/tools to him, 11. 02/09/20 The Claimant was given a written warning without a stress risk assessment Danielle The None – 22 Pound Responden constructive being properly completed or the workplace issues being resolved. The wellbeing discussion tool was used in March 2022 and was completed office claim only again on 13/9/22. On 5/8/22 Ms Pound closed the PIP and concluded that the quality of the claimant’s wok was still below the required standard. On 2/9/22 the claimant was given a final written warning for performance. This was communicated to him in a letter from Rebecca Hicks. Her letter sets out in some detail issues with the claimant’s quality of work. She referred to support given to the claimant and the mental health wellbeing toolkit. The claimant, as before in relation to stress risk assessment, takes the view that the toolkit was not a sufficient assessment of his stress but does not appear to us the able to explain how his stress should he been assessed that was not done by this tool. In all the circumstances we do not find the claimant has proved this allegation on the balance of probabilities. 12. 08/09/20 Factual allegation: did Ms Pound threaten the Claimant with disciplinary action Danielle Telephone. Constructive 22 Pound unfair dismissal for having “an attitude” following the Claimant enquiring when a stress risk assessment would be carried out? Ms Pound made a threat towards the Claimant. The Claimant asked his Line Harassment and Victimisation. Manager after a team morning call when will the stress-risk assessment be carried out as Optima Health have advised and which also is a legal requirement. Ms Pound stated that she would be opening disciplinary action against the Claimant for having “an attitude”. A Formal Grievance was made by the Claimant about this to the Head of Planning this Formal Grievance in relation to victimisation and discriminatory behaviour has not been dealt with or investigated by the Respondent to date. The claimant alleges in his statement that in response to asking for this assessment he was threatened with disciplinary action. Ms Pound gives a very different account of their conversation on 8/9/22. She says the claimant shouted at her and said she was not competent to manage him, which according to her evidence he would say on many occasions. She describes him behaving aggressively towards her “day after day” and escalating in his level of aggression. He would not accept that the assessments done were a stress risk assessment. She did then say she would ask for a disciplinary investigation for his abusive behaviour towards her. The Tribunal is confronted with two different and competing accounts. There is no independent evidence to corroborate one side over the other. The claimant brings the case and has the burden of proof of showing that what he alleges happened did happen. The claimant has not proved to us on the balance of probabilities that Ms Pound improperly threatened him as he alleges 13. 15/09/20 Factual allegation: did Ms Pound email the Claimant recording that he used Danielle Email None – 22 Pound constructive the ‘do not disturb’ sign on MS Teams and that he should not do so? unfair dismissal Ms Pound sent the claimant an email on 15/9/22 (a copy appears in the claim only bundle) to the effect that he was using the “do not disturb” function on MS Teams excessively. She said he could use this when focussing on a specific piece of work but needed to be available at other times. There does not appear to be further correspondence about this that might enable us to analyse whether this was a reasonable management instruction or not. In all the circumstances the claimant has not proved to us that he was given an instruction in relation to this that could properly be said to cause a fundamental breakdown of trust between him and the respondent. 14. 04/10/20 Factual allegation: did Ms Pound invite the Claimant to a disciplinary hearing Danielle The None – 22 despite the Claimant being signed off from work? Pound Responden constructive The respondent agrees that Andrew Bromley (one its managers) invited the office claim only claimant to a meeting as part of a disciplinary investigation on 4/10/22. The claimant attended this (virtual) meeting with Mr Bromley. He did not ask for it to be postponed. In all the circumstances we cannot find it was inappropriate for the respondent to seek to progress matters, especially where the claimant felt able to attend a meeting and did not ask for it to be postponed. 15. 04/10/20 Factual allegation: did Ms Pound invite the Claimant to an appeal hearing Danielle The None – 22 despite the Claimant being signed off from work? Pound Responden constructive The claimant appealed Ms Hicks’s decision to impose a written warning on office claim only 5/9/22. The claimant was signed off work from 15/9/22 until his resignation without notice on 28/10/22. He was invited to an appeal hearing that took place on 5/10/22. He did not attend, nor did he ask for it to be re-arranged. The claimant said he was offered his new job (at a different employer) in August and was going through vetting. The respondent says it was entitled to continue with disciplinary matters and there is a difference between being unfit to attend work and unfit to attend a disciplinary appeal meeting. The claimant could have asked for a postponement of the meeting. The respondent says it is also apparent by this time the claimant had decided to leave. It is factually correct that the claimant was invited to a meeting while he was signed off but in all the circumstances we do not consider this can amount to a destruction of the parties’ mutual trust and confidence or any other repudiatory breach of contract. In any event, the claimant waited a further 21 days from the invitation to that meeting until his resignation and did not resign immediately. 16. 13/10/20 Factual allegation: Was the Claimant given a Final Written Warning arising Danielle MS Teams None – 22 Pound constructive from allegation 12? unfair dismissal The date given in the schedule is the date of the interview with Andrew claim only Bromley. Mr Bromley ended his investigation with a conclusion that the matter should proceed to a formal disciplinary hearing which resulted in a final written warning on 14/12/23 (which is referred to further below). The giving of a final written warning on that date is addressed further below. 17. 28/10/20 The Claimant resigned with immediate effect due to the long ongoing bullying, Danielle The Harassment. 22 harassment, discrimination, and unequal pay as this had become intolerable. Pound Responden Direct A comment was made by the office receptionist towards the Claimant that she t’s Reading discrimination knows what they had done to the Claimant. office. Claimant’s resignation/assertion of constructive unfair dismissal. No separate factual allegation. There is not specified sperate allegation here. Whether or not a receptionist made such a comment cannot take the case further one way or another. 18. 07/12/20 After the Claimant had resigned, a letter was received by the Claimant from Danielle The Harassment and 22 Gregory Martin inviting the Claimant to a disciplinary hearing on the Pound Respondent’s Victimisation. 14/12/2023. On 07/12/2022 the Claimant responded by email stating that office. Gregory the Claimant will not attend and is not obliged. The Claimant’s response Martin was ignored. Factual allegation: did Mr Martin invite the Claimant to a disciplinary hearing after the Claimant had resigned? This is accepted. It is agreed between the parties that the respondent invited the claimant to a disciplinary meeting after the claimant had resigned. It appears to the Tribunal it was reasonable for the respondent to seek to complete its disciplinary process. Gregory Martin’s evidence was that the nature of Danielle Pound’s allegation (of sustained abuse or bullying of her) required that the process should be pursued to a complete outcome. Mr Martin has stated in his witness statement and when cross examined that he was unaware of the ET proceedings when he invited the claimant to a disciplinary hearing. He stated that he considered that the nature and seriousness of the allegations required them to be fully dealt with and the respondent owed it to the complainant (Danielle Pound) to completely deal with her complaint. The completion of the process would also affect the claimant’s HR record such that it would be available to consider if the claimant applied for a job with the respondent in future. We accept the evidence of Mr Martin as to his reasons and consider that these are clearly reasonable grounds to wish to proceed. Ms Pound’s complaint was serious, and it behoves a large company of the respondent’s size to investigate and complete a process in relation to it. There is no connection to the claimant’s race apparent from any of the evidence about this aspect of the case. There is no evidence that he was treated less favourably than any comparator. 19. 14/12/20 A disciplinary hearing was held by the Respondent without any jurisdiction or Danielle The Harassment and 22 witnesses to give the Claimant another Final written warning. The Claimant left Pound Respondent’s Victimisation. the Respondent on 28/10/2022. office. Gregory Factual allegation: was the Claimant given a Final Written Warning after he Martin had resigned? This is accepted. The fact of the written warning after the resignation is accepted. The claimant chose not to attend the disciplinary hearing. Mr Martin’s evidence is that he was left to make a decision based on what was available to him which he considered indicated a pattern of behaviour amounting to gross misconduct by the claimant. Mr Martin’s evidence in his witness statement was that he did not know about the claimant’s heritage, and it had no impact on his decision making. We consider that the claimant’s name is suggestive of a Polish or eastern European heritage but there is no direct evidence, nor any evidence on which we could draw an inference, that race affected Mr Martin’s approach. 2 06/01/20 The Respondent sent the Claimant two recorded letters advising of final Danielle Post. Harassment and 0 23 written warning alleging bullying and harassment and not living Network Rail Pound Victimisation. . Core Values of Care. Gregory Martin Factual allegation: was the Claimant given a Final Written Warning after he had Network resigned? This is accepted. Rail HR. The issues in this allegation are really the same as the above matter, i.e. the continuation of the disciplinary process after the claimant had resigned. It was not suggested to Mr Martin during evidence that his decision to carry on and then issue a written warning were motivated by race or to victimise claimant. Our findings in relation to 19 above apply to this matter to0.