Mr S Hussain v Arrow Enterprise Computing Solutions Ltd: 3309728/2022

EMPLOYMENT TRIBUNALS

Case No 3309728/2022

Between

Mr S HussainClaimant

Arrow Enterprise Computing Solutions LtdRespondent

Before

Employment Judge French

In person for claimant

Mr R O’Dair (instructed by Counsel) for respondent

Date 21 January 2025

JUDGMENT

[1]At the relevant times the claimant was a disabled person as defined by section 6 Equality Act 2010 because of generalised anxiety disorder.

[2]The complaint of direct disability discrimination is not well-founded and is dismissed.

[3]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.

[4]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.

[5]The complaint of harassment related to disability is not well-founded and is dismissed.

[6]The complaint of victimisation is not well-founded and is dismissed.

[7]The complaint relating to holiday pay was not presented within the applicable time limit. It was reasonably practicable to do so. The complaint of holiday pay is therefore dismissed. In any event, the complaint is not well founded and is dismissed. Approved by: JUDGMENT having been sent to the parties on 8 February 2025 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunal Rules of Procedure 2013, the following reasons are provided:

REASONS

Introduction

[1]By way of claim form dated 23 July 2022 the claimant brings complaints of direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment, victimisation and failure to pay holiday pay. In its response dated 9 September 2022 the respondent denies the complaints. Disability is accepted from 1 March 2021.

[2]Oral reasons for our decision were provided at the conclusion of the hearing. On 23 January 2025 the claimant requested written reasons. This request was forwarded to Employment Judge French on 4 February 2025 who has actioned as soon as she was able to do so around existing commitments and a period of leave. The tribunal apologises for the delay. Evidence

[3]The tribunal had a bundle consisting of 599 pages. For the claimant we had a witness statement presented by himself. For the respondent we had statements from Ms Susan Casbon, Mr Richard Nicholson, Mr Anthony Dobson and Mr James Hewitt. We heard closing submissions from both parties and had regard to the same.

The Issues

[4]The Tribunal has used the list of issues at pages 79 – 84 of the bundle to aid its deliberations and to deliver this Judgment. Using the same numbering as they appear in the list of issues, these are repeated below. The list of issues was finalised and agreed at a case management hearing conducted by Employment Judge Manley on 10 October 2023 and confirmed as accurate at the outset of the final hearing. Time limits 1.1. The Claimant commenced ACAS Early Conciliation on 10 June 2022. In respect of the claims brought by the Claimant, did any or all of the matters complained of occur before the primary limitation period, that is prior to 11 March 2022? 1.2. In respect of any discrimination claims which are not within the primary limitation period, is it nonetheless just and equitable under Section 123(1)(b) Equality Act 2010 to permit the Claimant to pursue his claims brought under the Equality Act 2010? 1.3. In the alternative, did any of those acts amount to conduct extending over a period ending within the primary limitation period? Disability 2.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 before 1 March 2021 for any of the complaints before that date? The Tribunal will decide:2.1.1 Did the Claimant’s Generalised Anxiety Disorder have a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities?

2.1.2 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

2.1.3 Would the impairment have had a substantial adverse effect on his ability to carry out day-to-day activities without the treatment or other measures?

2.1.4 Were the effects of the impairment long-term? The Tribunal will decide:2.1.4.1 did they last at least 12 months, or were they likely to last at least 12 months?

2.1.4.2 if not, were they likely to recur? Direct disability discrimination (Equality Act 2010 section 13)

3.1 Did the Respondent do the following things:3.1.1 On or around February or March 2020, the claimant went in to an area where renovations were taking place in Respondent’s offices. An allegation was then made by James Hewitt, Facilities Manager, that the claimant had breached health and safety provisions.

3.1.2 At a disciplinary hearing meeting on 2/7/2020 did Anthony Dobson say to the claimant “anxiety is a serious condition how can we as an organisation trust that your condition won’t impact your future decision making.”

3.2 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. The Claimant says he was treated worse than James Hewitt in respect of 3.1.1. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated.

3.3 If so, was it because of disability? Discrimination arising from disability (Equality Act 2010 section 15)

4.1 Did the Respondent treat the Claimant unfavourably by (taken laregly from the grievance of 19 January 2022 starting on page 40 of the Claimant’s 64 page document):4.1.1 Give the Claimant on Final Written Warning on 3 July 2020;

4.1.2 Fail to implement the OH report of 5 October 2020;

4.1.3 Fail to implement the OH report of 18 January 2021;

4.1.4 Sue Casbon communicating with the Claimant in a non supportive way in February 2021;

4.1.5 Sue Casbon giving the Claimant tasks for which he had had no training in May 2021;

4.1.6 Sam Harrison providing a negative response to the Claimant’s concerns on 17 May 2021;

4.1.7 Sam Harrison and Paulina Bijak threatening the Claimant with a Performance Improvement Plan on 24 June 2021;

4.1.8 Sue Casbon showing a lack of support for the Claimant’s health in a message exchange on 2 August 2021;

4.1.9 Sue Casbon refusing to allow the Claimant to take DSE training in September 2021;

4.1.10 Delaying the implementation of the OH recommendations until October 2021;

4.1.11 Sue Casbon not allowing the Claimant to take leave at the month end on 11 October 2021 (whilst allowing it at year end);

4.1.12 Sue Casbon restricting the Claimant’s leave on 27 October 2021;

4.1.13 Sue Casbon and Paulina Bijak breaching the Claimant’s confidentiality by speaking to his NHS Wellbeing person on 5 November 2021;

4.1.14 Paulina Bijak not allowing carry forward of the Claimant’s holidays he was unable to take in December 2021;

4.1.15 The Claimant’s grievance not being upheld in March 2022;

4.1.16 Sue Casbon saying the Claimant was hostile and that the relationship had broken down in an email of 18 March 2022;

4.1.17 The Claimant’s appeal against the grievance outcome being unsuccessful and there being a delay in July 2022;

4.1.18 The Claimant’s request to be allowed to move teams being rejected during 2022;

4.1.19 Criticising the Claimant’s work more often than previously.

4.2 Did the following things arise in consequence of the Claimant’s disability: 4.2.1 The Claimant’s anxiety increased and he had to take periods of sick leave.

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

4.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 4.4.1 [To be completed after the amended response is presented]

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

4.5.2 could something less discriminatory have been done instead;

4.5.3 how should the needs of the Claimant and the Respondent be balanced?

4.6 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

5.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

5.2 Did the following occur:5.2.1 In May 2020, did the Claimant ask his line manager, Steven Fowler, on several occasions, for a referral to Occupational Health (“OH”) because he was not coping. Did the Respondent fail to refer the Claimant to OH until October 2020;

5.2.2 Did the Respondent fail to implement the recommendations of the 2020 Occupational Health report. In particular, did the Respondent fail to:5.2.2.1 Carry out a risk assessment on the Claimant’s return to work;

5.2.2.2 arrange for an assessment checklist to be completed before the Claimant’s return to work to identify reasonable adjustments;

5.2.2.3 provide the Claimant with meetings with a manager as recommended between November 2020 and January 2021

5.2.2.4 arrange a reassessment with OH within 6 weeks

5.2.2.5 provide the Claimant with regular breaks;

5.2.2.6 provide the Claimant with a quiet place to use at work when overwhelmed;

5.2.2.7 take appropriate steps to protect the Claimant from stress over the first few months after return to work.

5.3 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:5.3.1 Treating the Claimant unfairly in relation to holidays;

5.3.2 Failing to implement and delaying the OH, risk assessment and Wellbeing Person’s recommendations;

5.3.3 Refusing to move the Claimant to another team.

5.4 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that they increased his anxiety and led to him taking sick leave?

5.5 Did the Respondent know or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

5.6 What steps could have been taken to avoid the disadvantage? The Claimant suggests: 5.6.1 The recommendations in 3 OH reports, 2 risk assessments and the Wellbeing Person suggestions should have been implemented without delay.

5.7 Was it reasonable for the Respondent to have to take those steps and when?

5.8 Did the Respondent fail to take those steps? Harassment related to disability (Equality Act 2010 section 26)

6.1 Did the Respondent do the following things: 6.1.1 As above at paragraphs 4.1.1 and 4.1.19

6.2 If so, was that unwanted conduct?

6.3 Did it relate to disability?

6.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

6.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Victimisation (Equality Act 2010 section 27)

7.1 Did the Claimant do a protected act as follows: 7.1.1 His Grievance of 19 January 2022?

7.2 Did the Respondent do the following things: 7.2.1 Sue Casbon stating that the Claimant was being hostile and the relationship had broken down on 18 March 2022.

7.3 By doing so, did it subject the Claimant to detriment?

7.4 If so, was it because the Claimant did a protected act?

7.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act? Remedy for discrimination or victimisation

8.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

8.2 What financial losses has the discrimination caused the Claimant?

8.3 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

8.4 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

8.5 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

8.6 Did the Respondent or the Claimant unreasonably fail to comply with it?

8.7 If so, is it just and equitable to increase or decrease any award payable to the Claimant?

8.8 By what proportion, up to 25%?

8.9 Should interest be awarded? How much? Holiday Pay (Working Time Regulations 1998)

9.1 Did the Respondent fail to pay the Claimant for annual leave the Claimant had accrued but not taken?

9.2 How many days remain unpaid?

9.3 What is the relevant daily rate of pay? Preliminary matters

[5]At the outset of the hearing the parties were invited to take us to any prereading that they wished for the tribunal to complete before commencing. Neither party identified anything specifically and the tribunal therefore read and considered all witness statements before them. Where the witness statement made reference to a document the tribunal also considered that document. The parties were informed that unless we were asked to read the document and taken to it in cross examination then the parties should not assume we had read the same and our pre-reading was limited to the above.

The law

[6]In seeking to set the timetable for the hearing the claimant indicated that he had not yet put his mind to the questions that he wished to ask of the respondent witnesses. The tribunal therefore suggested that he do so during our pre-reading time on day one. At each stage of the process the tribunal signposted the claimant to the next stage of the proceedings so that he could put his mind to that step in the proceedings.

[7]The claimant has generalised anxiety disorder. The tribunal discussed with him how we could help him to fully participate, and it was agreed that the tribunal would take a break each hour through the course of his evidence and as otherwise requested by him. The claimant exercised that adjustment with regular breaks being called where required.

[8]Prior to the start of the hearing at the claimant's request, the hearing was converted to a hybrid hearing for days 1 and 2 only, to allow him to give his evidence from home. The format for the remaining days was left as a matter for the final tribunal. At the conclusion of day 2 the respondent made representations that the hearing should be in person. The respondent's position was that this would assist the tribunal to read the body language of the witnesses, and they wished for their witnesses to be cross examined live and asserted that the claimant had not produced any medical evidence to support the adjustment. The claimant sought to continue to appear from home because he stated that Watford Employment Tribunal was some distance for him, he would find the travel stressful and considered that he would be best able to conduct proceedings from a familiar environment with his support network around him.

[9]Having considered the matter, the tribunal granted the claimant’s request to continue to appear by video. The tribunal did not consider that medical evidence was required to support what was being requested as a reasonable adjustment. We accepted that the claimant’s participation in proceedings would be assisted by him appearing from home via video. We indicated that it was a matter for the respondent witnesses as to whether they attended the tribunal in person for their evidence or whether they wished to also appear by video (as they had also done for the first 2 days.) The respondent witnesses chose to attend in person. The law S136 Equality Act 2010 – Burden of Proof

[10]Section136(2) Equality Act 2010 (EqA) provides that if there are facts from which the court or tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the EqA, the court must hold that the contravention occurred; and S.136(3) provides that S.136(2) does not apply if A shows that he or she did not contravene the relevant provision.

[11]We have taken into account the well-known guidance given by the Court of Appeal in Igen Ltd v Wong

[2005] ICR 931

which although concerned with predecessor legislation remains good law. It was approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

. Ayodele v Citylink Ltd

[2018] ICR 748

, CA confirmed that differences in the wording of the Equality Act 2010 have not changed the test or undermined the guidance in Igen Ltd.

[12]In the case of Igen, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place (on the balance of probabilities). If so proven, the second stage is engaged, whereby the burden then ‘shifts’ to the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground. The consequence is that the claimant will necessarily succeed unless the respondent can discharge the burden of proof at the second stage. However, if the claimant fails to prove a ‘‘prima facie" case in the first place then there is nothing for the respondent to address and nothing for the Tribunal to assess Ayodele and Hewage.

[13]At the first stage of the test, when determining whether the burden of proof has shifted to the respondent, the question for the Tribunal is not whether, on the basis of the facts found, it would determine that there has been discrimination, but rather whether it could properly do so.

[14]The following principles can be derived from Igen Ltd v Wong (above), Laing v Manchester City Council

[2006] ICR 1519

EAT, Madarassy v Nomura International p/c

[2007] ICR 867

, and Ayodele v City link Ltd (above); which reviewed and analysed many other authorities.

[15]At the first stage a Tribunal should consider all the evidence, from whatever source it has come. It is not confined to the evidence adduced by the claimant, and it may also properly take into account evidence adduced by the respondent when deciding whether the claimant has established a prima facie case. A respondent may, for example, adduce evidence that the allegedly discriminatory acts did not occur at all, or that they did not amount to less favourable treatment, in which case the Tribunal is entitled to have regard to that evidence.

[16]It is insufficient to pass the burden of proof to the respondent for the claimant to prove no more than the relevant protected characteristic and a difference in treatment. That would only indicate the possibility of discrimination and a mere possibility is not enough. Something more is required, see Madarassy (above).

[17]The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board

[2012] IRLR 870

, SC.) Detriment

[18]The tribunal must look at the alleged detriment from the employee’s point of view. Did the employee reasonably understand that they had been disadvantaged? This is a low threshold, but it nonetheless needs to be crossed. An unjustified sense of grievance is not sufficient: Shamoon v Royal Ulster Constabulary

[2003] UKHL 11

. Disability

[19]S6 Equality Act 2010 states: 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… Direct Discrimination - s13 Equality Act

[20]The prohibition on discrimination against employees is found in section 39(2) Equality Act 2010. Employers must not discriminate:a. in the terms of employment;

b. in the provision of opportunities for promotion, training, or other benefits;

c. by dismissing the employee;

d. by subjecting the employee to any other detriment.

[21]The claimant relies on disability as his protected characteristic which is covered by s6 of the Equality Act.

[22]Section 13 Equality Act 2010 states: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Discrimination arising from disability - Section 15 Equality Act 2010

[23]Section 15 Equality Act 2010 (“EQA”) provides: “(1) A person(a) (A) discriminates against a disabled person

(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the Failure to make reasonable adjustments – Section 20 and 21 Equality Act 2010

[24]EQA section 39(5) provides that a duty to make reasonable adjustments applies to an employer.

[25]The duty itself appears in section 20. Section 21 provides that a failure to comply with any of the three requirements in section 20 is a failure to comply with the duty to make reasonable adjustments. That amounts to discrimination against the disabled person.

[26]In Lamb v The Business Academy Bexley EAT 0226/15 the EAT commented that the term “PCP” is to be construed broadly “having regard to the statute’s purpose of eliminating discrimination against those who suffer disadvantage from a disability”.

[27]Nevertheless, there are some limits to what can constitute a PCP. In particular there has to be an element of repetition, actual or potential. A genuine one-off decision which was not the application of policy is unlikely to be a “practice”: Nottingham City Transport Ltd v Harvey

[2013] All ER(D) 267

(Feb), EAT. In that case the one-off application of a flawed disciplinary process to the claimant was not a PCP. There was no evidence to show that the employer routinely conducted its disciplinary procedures in that way. In Ishola v Transport for London

[2020] ICR 1204

the Court of Appeal said that all three words “provision”, “criterion” and “practice” “..carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.” Harassment – s26 Equality Act 2010

[28]Section 26 Equality Act 2010 states: 1) A person(a) (A) harasses another

(b) (B) ifa)A engages in unwanted conduct related to a relevant protected characteristic, and b)The conduct has the purpose or effect ofViolating B’s dignity, or Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— a)the perception of B; b)the other circumstances of the case; c)whether it is reasonable for the conduct to have that effect.

[29]While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by comments or conduct related to protected characteristics, it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase: Richmond Pharmacology Ltd v. Dhaliwal

[2009] IRLR 336

[30]Section 26 has been interpreted as creating a two-step test for determining whether conduct had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. The steps are firstly, did the claimant genuinely perceive the conduct as having that effect? And secondly, in all the circumstances, was that perception reasonable? Pemberton v Inwood

[2018] EWCA Civ 564

Victimisation - Section 27 Equality Act 2010.

[31]S27 states: (1)A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4)This section applies only where the person subjected to a detriment is an individual. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule. 31. If it is established that (a) the employee did a protected act and (b) the employer subjected the employee to a detriment, the critical question will be: Why did the employer subject the employee to that detriment? Was it because they had done (or might do) the protected act? Or was it wholly for other reasons? (Chief Constable of West Yorkshire Police v. Khan

[2001] ICR 1065

) Holiday pay

[32]Claims for holiday pay can be brought as complaints of unlawful deduction from wages, as complaints of breach of contract or under the Working Time Regulations 1998 (“the WTR”).

[33]The WTR give workers the entitlement to 5.6 weeks (28 days) leave each leave year (including any bank holidays the worker is entitled to take).

[34]Section 13(15) states where, as a result of taking a period of sick leave in any leave year, a worker is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year provided it is taken by the end of the period of 18 months from the end of the leave year in which the entitlement originally arose.

[35]Section 16 of the WTR states that a worker is entitled to be paid for annual leave at the rate of a week’s pay in respect of each week of leave. Findings of Fact and Conclusions General background

[36]Arrow Enterprise Computing Solutions Limited is a cyber security business. The company is split up into various divisions. The company buys cyber security solutions from suppliers and then sells them on to channel partners, who are the respondent’s customers. The suppliers are called vendors within the business; and the respondent is their customer. The respondent looks after the channel partners, who are their customers. The channel partner cannot buy directly from the supplier/vendor, they must buy from the company as the vendor’s distributor.

[37]The claimant was a vendor specialist. His role as vendor specialist involves liaising with the channel partners as well as the employees that sell the products to channel partners, coordinating new business from channel partners and dealing with any issues around pricing and supply of the product. He has been employed by the respondent since 10 March 1999 and remains in their employment.

[38]Many of the claimant’s complaints are around his line manager Susan Casbon who became his line manager at the beginning of February 2021. She managed him until April 2022 when he then moved teams.

[39]In relation to our fact findings and conclusions we use the same numbering identified in the list of issues outlined above. Issue 2 – Disability

[40]The Tribunal must determine whether or not the claimant had a disability as defined by s.6 of the Equality Act 2010 (“EqA”). That is for the period before 1 March 2021, the respondent conceding that the claimant was disabled within the meaning of the Act from 1 March 2021.

[41]The relevant time that we are concerned with is between March 2020 and July 2020, that being the dates of the alleged discrimination prior to the period from which the respondent accepts that the claimant did have a

[42]To meet the definition within the EqA there are a number of factors that the Tribunal have to consider which are listed in full at points 2.1.1 to 2.1.4. However, the question the tribunal has addressed is 2.1.4 namely whether or not the effects of the claimant’s impairment was long term. We do so on the basis that that is the point the respondent disputes as outlined at page 71 of the bundle when they outlined their position in relation to disability.

[43]The question for the Tribunal was whether or not the impairment had lasted for 12 months or was likely to last for 12 months.

[44]The claimant’s assertion was that the condition had been ongoing for a number of years prior to 2020, and his position is that it had therefore lasted for 12 months by the date of the alleged discrimination.

[45]However, the first piece of medical evidence the Tribunal has is at page 512 of the bundle, which is dated March 2020. We do not have anything prior to that documenting any condition. Further, we note that the entry at March 2020 does not refer to any history of anxiety by way of previous visits to the GP.

[46]Based on that the Tribunal concludes that by March 2020 the condition had not lasted for 12 months and so the question is whether it was likely to last for 12 months, or if not, whether it was likely to recur. We do not answer this question with the benefit of hindsight, we do not look at it in terms of what has happened since, but we have to answer the question in terms of what the position at the time was.

[47]In answering the question of whether the impairment was likely to last 12 months, ‘likely’ has been held to mean it is a “real possibility” and ‘could well happen’ rather than something that is probable or more likely than not (SCA Packaging Ltd v Boyle

[2009] ICR 1056

[48]The claimant has not produced any GP letter which suggests that it was likely to last for 12 months, but the Tribunal do consider that we are assisted by the medical evidence in the bundle in that regard. We note at page 512 the claimant attends his GP on 9 March 2020, he refers to chest pain and the doctor considered that that is related to anxiety. The claimant states that he has been experiencing those conditions for a year albeit there is no medical evidence supporting it has been for a year.

[49]The claimant returns to his GP in June 2020, and we can see on 26 June 2020 (page 513 of the bundle) that he is prescribed medication. We also note entries around the time of the disciplinary action, that being 2 July 2020, where the symptoms of anxiety are still ongoing and at that point had been for four months as we have seen it documented from March 2020. Indeed, at that point the claimant is describing his symptoms as getting worse.

[50]Based on that medical evidence we do conclude that there was a real possibility that the condition was likely to last 12 months or recur and we therefore do deem that the claimant was disabled within the meaning of the Equality Act 2010 from 9 March 2020 by reason of his generalised anxiety disorder. Issue 3 – Direct Disability Discrimination s13 EqA

[51]Direct discrimination occurs when the employer treats the employee less favourably because of a protected characteristic. In this case the claimant makes a number of complaints which we address in turn and which he says is because of his generalised anxiety disorder. Issue 3.1.1

[52]In relation of issue 3.1.1, it is a matter of fact that Mr Hewitt made an allegation against the claimant that he had breached health and safety provisions. That is accepted by the respondent and relates to an incident that occurred in which the claimant entered the respondent's property at night to remove old kitchen units during a renovation. It is not in dispute that the claimant had permission to remove the units for personal use as part of the renovation. However, it is the respondent's position that the claimant was told to speak to the site foreman about the safe removal of the same. Instead, the claimant entered the premises and removed the units himself with the help of his wife. This involved him not only entering what was deemed to be a building site but also carrying large items downstairs himself.

[53]We do not consider that the claimant has produced any facts from which we could conclude that this treatment was because of his disability. The claimant’s own evidence was that he had told his previous line manager Mr Fowler about going to his GP in March 2020 but did not suggest that he had told anyone else until the disciplinary hearing conducted by Mr Anthony Dobson on 2 July 2020.

[54]Mr Hewitt stated that he did not know that the claimant had a disability and there is nothing in evidence to suggest that he was aware. We consider that Mr Hewitt cannot have made this allegation because of the claimant's anxiety if he was not aware of it.

[55]In respect of this issue the Tribunal concludes that the claimant was not treated any worse than someone else would have been treated in those circumstances. We consider that anyone who had entered a building unauthorised in the night, in those circumstances, would have been reported for a health and safety breach. We accept Mr Hewitt’s evidence that there was an extensive renovation occurring at the time and that the room entered was effectively a building site and there had been signs warning against entry. We also accept the evidence that he considered the claimant carrying large items down the stairs himself was a risk.

[56]This complaint therefore fails for those reasons. Issue 3.1.2

[57]This is an allegation that during a disciplinary meeting on 2 July 2020 Mr Anthony Dobson stated ‘anxiety is a serious condition how can we as an organization trust that your condition won't impact your future decision making’. It is accepted that Mr Dobson made that comment. The question for the Tribunal is therefore whether or not that was less favourable treatment because of the claimant’s anxiety.

[58]The Tribunal are satisfied that the claimant has proved facts from which we could conclude that this comment was made because of the claimant’s disability. It directly refers to the same. We therefore look to the respondent’s explanation in relation to the same and it is for the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground.

[59]Mr Dobson was aware of the claimant’s anxiety because he was made aware of it at the disciplinary hearing in which the same comment is made. Based on the evidence of Mr Dobson and review of the disciplinary meeting notes, the Tribunal conclude that he did not ask the question because of his disability, rather he was seeking to understand the potential consequences of the same and exploring it in order to take it on as mitigation, as advanced by the claimant and in order to assist in the final outcome. That was the evidence of Mr Dobson and the disciplinary outcome letter (page 127 of the bundle) acknowledges this. It states that it took on board the claimant’s explanations, which we can see summarised by the claimant in his closing statement during the disciplinary hearing (page 126) which itself relies on anxiety and lack of judgement.

[60]The Tribunal considers that the correct comparator here is somebody without anxiety facing disciplinary action and advancing lack of judgement as mitigation. We consider that Mr Dobson would have asked that question to any individual in those circumstances in order for assurance that something like that would not occur again, which is directly relevant to the potential sanction to be imposed. We do not consider that there was less favourable treatment because of the claimant’s disability, but rather was a question that would have been asked of any individual raising lack of judgment as mitigation.

[61]The tribunal concludes that the comment was not made because of disability, rather to understand the mitigation advanced and that the behaviour would not be repeated.

[62]For those reasons the claim of direct disability discrimination fails and is dismissed. Issue 4 – Discrimination Arising from Disability s15 EqA

[63]Discrimination arising from disability occurs when the claimant is treated less favourably because of something arising from the claimant's disability. In this case, something arising from disability is said to be the claimant’s anxiety increased and he had to take periods of sick leave. That is outlined in the list of issues at 4.2.1.

[64]We take each allegation of unfavourable treatment in turn and again, we are referring to the list of issues at 4.1.1 through to 4.1.19. It is said these things were done because of the claimant’s increased anxiety and he had to take periods of sick leave. Issue 4.1.1.

[65]It is a matter of fact that the claimant was given a final warning on 2 July 2020. In relation to that the Tribunal notes at page 525 of the bundle (that being the start of the claimant’s sick notes), that he was signed off of work from 3 July 2020 to 12 July 2020.

[66]The complaint here is that the reason the respondent gave the claimant a final written warning was because of something arising from his disability and that something being his increased anxiety and sick leave. The Tribunal concludes that in light of that sick note, it cannot have been that the claimant was given the final warning on 2 July 2020 because of his sick leave, because it had not yet started. He did not go off sick until 3 July 2020, he was given the warning on 2 July 2020 and so it pre-dates the sick leave.

[67]Further the Tribunal have made the findings above in relation to the incident which involved the claimant receiving a final written warning and rely on the same. The incident involved the claimant entering a construction site at night and removing kitchen items down a flight of stairs himself which was deemed to be a health and safety risk. This incident was admitted by the claimant and captured on CCTV. The Tribunal concludes that was the reason the claimant was giving a final warning, and it was not anything to do with his disability.

[68]This part of the complaint therefore fails. Issue 4.1.2.

[69]This is an allegation that the respondent failed to implement the Occupational Health report of 5 October 2020. That report is at page 129 of the bundle and a summary of the recommendations to be implemented is a stress risk assessment, regular meetings with the line manager, a phased return to work and regular breaks in a quiet space, with a review in six weeks.

[70]It is important to note the timeline in relation to the claimant’s sick leave at this point, the start of which can be seen at page 525. The claimant was sick between 3 – 12 July 2020. There was then a further period of sick leave between 21 August to 20 September 2020 and another sick note that overlaps with that period, 18 September to 1 October 2020. There is then another period of sick leave that overlaps with the previous from 30 September to 10 November 2020.

[71]Based on those sick notes the claimant is absent from 21 August 2020 until 10 November 2020. He is present between 12 July 2020 to 21 August 2020.

[72]As to the recommendation for a stress risk assessment to be carried out we can see that that did take place (page 306 of the bundle) dated 15 December 2020.

[73]We can also see (page 142) in the next Occupational Health report, that the claimant acknowledges within that meeting that a stress risk assessment did take place. Therefore, we conclude that the recommendation was implemented.

[74]The next recommendation was for a phased return to work. The claimant did not dispute that there was a phased return to work, again at page 142 (that being the next Occupational Health report) we can see that the claimant acknowledges that there had been a phased return. We also can see within the stress risk assessment (page 576) that he confirmed that he is content with how the phasing has gone and feels that he has been eased back. Therefore, the Tribunal concludes that that recommendation was also implemented by the respondent.

[75]In terms of the recommendation for regular meetings with his line manager, we do not have the evidence of Mr Fowler (the claimant’s previous line manager) as he has left the employment of the respondent. However, we are able to make observations from the stress risk assessment that was carried out on 15 December 2020 to assist us in our conclusions.

[76]The claimant was asked whether there was anything more that his line manager could do (page 582 of the bundle) and he declined to answer. He is not suggesting at that stage that the recommendations had not been put in place. In cross examination he was also asked about contact with Mr Fowler and he first of all acknowledged that there had been a few interactions and later stated that there were indeed weekly or fortnightly telephone calls. We consider this supports the fact that there had been such meetings.

[77]On page 583 of the stress risk assessment, the claimant was asked about support, and he states that that was okay now, but it had not been in the past. This supports the conclusion that there were meetings at that time because the claimant says it is okay now.

[78]The Tribunal concludes, based on that evidence and the claimant’s answers in cross examination, that that recommendation was implemented.

[79]In respect of breaks, in cross examination the claimant did not dispute that he was able to take breaks when Mr Fowler was his line manager. He stated that his issue was that it was Ms Casbon that made him feel negative about taking such breaks.

[80]The claimant did not take the tribunal to anything which supported his assertion that Ms Casbon made him feel negatively about taking breaks. To the contrary at page 579, the claimant references taking breaks when he needs them and makes no reference to feeling negative about doing so. The Tribunal therefore considers that that recommendation was also implemented. As a matter of fact, the claimant accepted that he was provided with a quiet space in which to take breaks or work.

[81]In respect of the review in six weeks, as a matter of fact the review did not take place in six weeks. The Tribunal considers that is in context with the claimant’s absence from 21 August 2020 to 10 November 2020. As a result, the reasonable adjustments did not have any time to be implemented or to take effect, until he returned properly on 10 November 2020. The tribunal considers there would be little point in a review taking place at the 6 week point when the claimant has not been at work for the other recommendations to have had any effect.

[82]There then is a further Occupational Health report, dated 21 January 2021 and is at page 142 of the bundle which does amount to a review by occupational health. Although this is outside the 6-week period the tribunal are satisfied that this does not amount to a failure to implement the same, but rather it is implemented at a later stage because of the claimant's absence from work.

[83]For those reasons, the Tribunal concludes that there was no failure to implement the Occupational Health report of 5 October 2020. If there is no failure, that brings the complaint to an end because it cannot have arisen as a consequence of the claimant’s disability if it did not occur. Issue 4.1.3.

[84]This allegation concerns failing to implement the Occupational Health report of 18 January 2021 which can be seen at page 412. In summary the recommendations there were the stress risk assessment, regular meetings with the line manager, psychological counselling sessions and time off work to attend those, regular breaks and making contact with Remploy. Again, there was reference to a further review in six weeks.

[85]In relation to the stress risk assessment, it is a matter of fact as we have already outlined that one had been done in December 2020. The claimant’s issue here was that no additional steps had been taken; effectively that the risk assessment had been done, but not actioned. We can also see the further stress risk assessment at page 298 of the bundle, that is from August 2021.

[86]As to whether or not the stress risk assessment was actioned, we can see the action plan at page 324 of the bundle. We consider that it is not proportionate to go through each aspect of that action plan as to whether or not it was done because we consider that to do so would amount to its own enquiry. This is already a claim with a number of complaints identified and those points in the action plan are not separately listed as issues in this claim nor are they pleaded within the claim form.

[87]The Tribunal makes this general observation namely that we conclude the stress risk assessment was being carried out. That in part reproduces parts of the occupational health report (for example phased return to work) and we consider that the recommendations from the previous Occupational Health report had been implemented. For reasons that we will address later, we further consider that the claimant was within a generally supportive environment.

[88]In terms of regular meetings with his line manager, the claimant does not dispute that these meetings did take place with Susan Casbon, but states that they were negative.

[89]We can see records of those meetings at various points in the bundle, examples are at pages 173 – 178. They are recorded by way of an email sent by Ms Casbon to the claimant after the meeting and set out what was discussed. That is covered within paragraph 16 of her witness statement. We note that there is nothing in response to those emails from the claimant, for example to say that is a totally inaccurate record of our call and we conclude from that therefore that the records provided were an accurate summary of what was discussed. We consider that this is an individual who has otherwise been proactive on other occasions in raising issues and the claimant has not challenged the record of these calls. We therefore consider that those records are an accurate reflection of the meeting.

[90]At page 154 of the bundle, we can see that the claimant refers to those meetings having a negative effect and we note that as a result Paulina Bijak (from human resources) then joins those calls. At page 344, there is another record of a meeting having taken place in February 2022.

[91]It is understood that the claimant considered that the meetings were negative because there was criticism of or feedback in relation to his work. One such issue was an issue of duplication whereby it was suggested that the claimant was not marking a new enquiry as he should have, in order to indicate that he had picked up the same. This led to other members of the team then duplicating the work and picking up the same enquiry.

[92]The Tribunal have assessed the content of those emails to assist us with the nature of those calls and to determine whether or not they were negative. We conclude on our reading of the records of the calls that the calls were supportive in nature. There is an example of Ms Casbon checking the claimant’s workload as she had noticed he was working online at night. We do note that within some of the records there is reference to duplication of work, but we do consider and conclude that this was said in a supportive way namely Ms Casbon is pointing it out to the claimant as a reminder in relation to process and procedure, rather than specifically targeting the claimant with examples or direct criticism. Ms Casbon is the claimant’s line manager and will still need to carry out that role in terms of addressing problem areas despite the claimant’s health and adjustments.

[93]At page 181 of the bundle, we also note there is reference to Ms Casbon monitoring the frequency of the calls, asking the claimant how often he wants them, and she is monitoring the progress of those. We therefore conclude that the recommendation for regular calls/meetings with the claimant’s line manager was implemented.

[94]As to the recommendation in relation to psychological counselling, the Tribunal understands the claimant’s issue here to be that the respondent should have paid externally for this. We can see from the recommendation that effectively Harlow (who conducted the occupational health report) are offering their counselling services. However, the report does not say that there must be externally paid for counselling.

[95]We can then see that Ms Casbon was aware that the claimant was seeking to access counselling through the NHS, and she is proactive in chasing that in her correspondence with the claimant, again recorded in the records of calls/meetings as outlined above. Her unchallenged evidence was that Paulina Bijak had also referred him to the Employee Assistance Programme and he had replied that this was not suitable. We can see at page 178 of the bundle there is a record of a telephone call from March 2021 and the claimant is signposted to numerous agencies outside of the NHS. It is correct that none of those are with Harlow, but nonetheless the tribunal considers that he is referred to numerous agencies.

[96]The claimant in cross examination stated that he had spoken to Canada Life and had also spoken to MIND. We can see at page 181 of the bundle, an email from Ms Casbon that records that the claimant has reached out to Canada Life and has received four sessions of counselling. We can also see at page 198 of the bundle, that being the next Occupational Health report from August 2021, the claimant confirms that he has had three counselling sessions.

[97]The recommendation in that previous Occupational Health report was not that he required counselling with Harlow, but rather that he was supported in obtaining that counselling and the Tribunal are satisfied based on the evidence identified that this has been implemented and supported by the respondent.

[98]The Tribunal further concludes that Ms Casbon had facilitated the time off for the claimant to attend those sessions. We can see that from the fact that at page 198 the claimant refers to having had those sessions. We also know that there was a morning counselling call because that is referred to in an email at page 220 from Ms Casbon where she states that at the last wellbeing review call/meeting the claimant had been offline for the morning.

[99]It is not suggested that the respondent indicated to the claimant that he needed to make up the time for these appointments and there is nothing in evidence that Ms Casbon indicated that the claimant would need to make up the time for these appointments, or indeed that she was negative about it. The tribunal therefore concludes that this recommendation of the occupational health report was implemented.

[100]As to the recommendation of regular breaks, the issue here is that the claimant’s position is that Ms Casbon was negative in relation to allowing the breaks. There is no evidence in the bundle that the claimant was ever refused breaks, and neither do we consider that there is evidence that Ms Casbon was negative in relation to providing breaks. The Tribunal specifically asked the claimant to assist us in relation to this and we were taken to page 248 of the bundle where the claimant indicated that he felt negative about it. We note that email documents the claimant’s recollection of the breaks, but the Tribunal notes the email at the bottom of that page from Ms Casbon, in which she is very encouraging of the claimant taking those breaks. We conclude that may well be how the claimant felt about it, but the evidence simply does not suggest that she was negative about taking breaks.

[101]In relation to the recommendation for the claimant to contact Remploy, that was a matter for him to do and he accepted that it was done. It was not something the respondent could be involved in.

[102]Finally, in relation to the six-week review, as a matter of fact, we note that there is not another Occupational Health report until 19 July 2021 with the report having been finalised in August 2021. However, we consider that the six-week review is not a recommendation in its own right. It indicates and says that the individual would like to see the claimant again, if the respondent is happy to authorise it. Therefore, it was a matter for the respondent at their discretion and their evidence which the Tribunal has already accepted, is that they were trying to make the adjustments work and give time for those to be implemented before a further referral was made.

[103]Therefore, for those reasons the Tribunal concludes that there was no failure to implement the Occupational Health report of 18 January 2021. As such that cannot be something that arose from his disability because there was no failure and that complaint fails. Issue 4.1.4.

[104]This is an allegation that Ms Casbon communicated with the claimant in a non-supportive way in February 2021. Our understanding is this is the incident where Sue Casbon speaks to the claimant about sending what the claimant refers to as a ‘good housekeeping email’ and we have cross referred that to the allegation as raised in the grievance (page 329 of the bundle). We can see that ‘good housekeeping email’ at page 170, that is from the claimant to the team about managing tasks.

[105]Ms Casbon then refers to that, (page 174 of the bundle) in her summary of the call that she had with the claimant. The claimant then reports this to Paulina Bijak in the email at page 152 of the bundle and reports that Ms Casbon has used trigger words. Ms Casbon denies using any trigger words. In any event, the claimant’s evidence in cross examination was that he had not ever told Ms Casbon what the trigger words were, for her to have known them and avoided them.

[106]Ms Casbon’s evidence in relation to the email, (page 170) was that there had been two complaints from colleagues about what had happened. The claimant asserts that there were not complaints and in fact the two colleagues thanked him.

[107]The Tribunal considers that even if those individuals had replied to the claimant and said that it was helpful, Ms Casbon’s evidence was that they had separately approached her and indicated that they were not happy. That is supported by the claimant’s email, at the top of page 157, to those individuals where he apologises to them. The Tribunal considers that Ms Casbon is entitled to raise the incident with the claimant because she is his line manager. He accepts that she had not been told the trigger words and therefore the Tribunal considers that she could not have known how to raise that without using them if she did not know them.

[108]The Tribunal concludes in those circumstances that Ms Casbon has not communicated with the claimant in a non-supportive way and concludes that her communication is in fact a balanced management response.

[109]Even if the email that Ms Casbon sent to the claimant is not supportive the claimant has not adduced any evidence from which we could conclude that it is because of his increased anxiety and sick leave. We then accept Ms Casbon’s evidence that this was a management response.

[110]This aspect of the complaint therefore fails for those reasons. Issue 4.1.5.

[111]This is an allegation that Sue Casbon gave the claimant tasks for which he had no training in May 2021. Having heard all of the evidence it is not entirely clear to the Tribunal what the claimant is alleging was given to him as a task that he did not have training for.

[112]In relation to this issue page 36 of the bundle was put to Ms Casbon by the claimant and the tribunal therefore understood part of the complaint to be centered around that. In relation to that Ms Casbon’s evidence was that training and tasks effectively were fluid, the team were figuring out the best approach together and there was not a set training programme which could have been provided to the claimant. Effectively the team act together and feel their way through it for the best approach; as such training would come internally and informally on the job.

[113]Later, on that page 36, the claimant is actually saying that he is proficient in providing quotes which would suggest this was not a task for which he required training.

[114]We also note from the claimant’s grievance that on 12 May 2021 the claimant indicates that he is able to provide internal training, but felt side lined because somebody else did it. This would suggest there were not tasks on which he needed training because he was in fact offering to provide internal training.

[115]The Tribunal also observe from the records of the well-being calls with the claimant, that Ms Casbon was continuously inviting the claimant to tell the respondent what training he needed, and he did not do so. An example of that can be seen at page 236 of the bundle, where it asks what he may need. In light of that, the Tribunal concludes that Ms Casbon did not give the claimant any tasks for which he had no training.

[116]The Tribunal concludes that this did not occur and as such that complaint goes no further because if it did not happen then it could not have arisen out of his increased anxiety and sick leave. Issue 4.1.6.

[117]This is an allegation that Sam Harrison provided a negative response to the claimant’s concerns in May 2021. This is reference to a comment made at page 183 namely: “… sometimes small mistakes can be made and it is important we work together to locate and address them as quickly as possible – it isn't about blame.”

[118]The Tribunal concludes from its own reading of that comment and the context of the email as a whole that this was not a negative response. We conclude in fact, that it is supportive in its nature and suggests that the respondent does not have a blame culture. Again, the Tribunal therefore concludes that this was not a negative response.

[119]It did not occur and as such that complaint goes no further because if it did not happen then it could not have arisen out of the claimant’s sick leave. Issue 4.1.7.

[120]This is a complaint that Sam Harrison and Paulina Bijak threatening the claimant with a Performance Improvement Plan (PIP) on 24 June 2021. The evidence of Mr Harrison and Paulina Bijak is not available, that is understood to be because they have since left the respondent’s employment.

[121]The tribunal does note that there is evidence about concerns regarding the claimant’s performance and indeed, Ms Casbon accepts that there were such concerns. We can see at page 494 of the bundle that Paulina refers to consideration having been given to performance management and that is documented during that wellbeing meeting in October 2021. That is also supported by a GP entry (page 517) dated 24 June 2021 being the same day.

[122]The Tribunal concludes in those circumstances that there was therefore mention of a PIP during a call on 24 June 2021, based on the evidence around that time of concerns with his performance.

[123]The Tribunal do not consider, however, that this was a threat, but rather was likely to have been reference to performance and this possibly being a step to take at a future stage. The claimant’s presentation of this complaint is such that he suggests this to be a formal plan being put in place, which he says was done without following the policy which can be found at page 282. In relation to that policy, we can see that it refers to an informal process first and then moving to a formal process. There is no evidence that when the PIP was mentioned on 24 June 2021, that it was actioned in any way, or taken any further. It was explained to the claimant during the meeting in October 2021 that that would not be progressed further and as a matter of fact there is no subsequent action to put any sort of performance plan in place.

[124]The question for the Tribunal is whether or not this was said because of the something arising out of the claimant’s disability, namely his increased anxiety and sick leave and we conclude that it was not. It was said because the claimant was making mistakes. He, himself, accepts that he was not working as he previously had been. Ms Casbon was aware of performance issues and the claimant’s cross examination of Ms Casbon emphasised his own concerns about meeting his objectives. It is therefore clear to the Tribunal that that is the reason why there was reference to the PIP and that it was not because of the claimant’s sick leave.

[125]This part of the complaint therefore fails. Issue 4.1.8.

[126]This is a complaint that Sue Casbon showed a lack of support for the claimant’s health in a message exchanged on 2 August 2021. We can see the comment itself at page 207 of the bundle. The message is actually undated, but the list of issues suggests it was made 2 August 2021, and the date did not arise as an issue in dispute.

[127]The claimant messages Ms Casbon at 8.58am stating ‘sorry Sue, but I’m working from home today as I was too stressed to come in.’ Ms Casbon replied ‘too stressed about what though Sub, as we’ve just had a weekend off so you shouldn't be stressed at 9am on a Monday.’

[128]It is a matter of fact that this was said, and the claimant says that how it was worded was patronising and made his anxiety worse, which is detailed in his witness statement at paragraph 44.

[129]Ms Casbon’s explanation in relation to that comment is contained within her witness statement at paragraph 34. Ms Casbon states that there had been a history of reluctance by the claimant to tell her his causes of stress and this question had been posed by her in order to try and better understand what his causes were so that she could address them.

[130]The claimant did not seek to challenge Ms Casbon on this explanation and in those circumstances the tribunal accepts the explanation as advanced.

[131]The question for the Tribunal is whether this was unfavourable treatment because of his increased anxiety and sick leave. The Tribunal accepts the unchallenged explanation by Ms Casbon, that the reason for the comment was to try and better understand how to support the claimant and was not said due to the something arising out of his disability, namely his sick leave.

[132]This complaint therefore fails for those reasons. Issue 4.1.9.

[133]This is an allegation that Sue Casbon refused to allow the claimant to take DSE training in the September 2021. The exchange can be seen at page 218 of the bundle. The Tribunal notes from that exchange that Ms Casbon asked that the training is pushed back to the first week of October due to business reasons of it being quarter end. We conclude that there is not a refusal by Ms Casbon to allow training, but rather she is asking that it is pushed back.

[134]The course trainer goes on to say in a subsequent response at page 215 that the claimant will be added to the next course.

[135]Based on that evidence, the Tribunal concludes it is not a refusal to allow him to do it, but rather an alternative proposal that it is pushed back to a later time.

[136]That complaint therefore fails because we conclude that it did not occur; there was not a refusal but rather a request for it to be arranged to an alternative time which is then done as evidenced at page 215. Issue 4.1.10.

[137]This is a complaint that the respondent delayed the implementation of the Occupational Health recommendations until October 2021. We understand that this concerns the Occupational Health report dated August 2021 (page 197 of the Bundle). That made recommendations for a phased return to work, placement to another team, a stress risk assessment, regular breaks and annual leave at short notice.

[138]In relation to phased return, there is no dispute that there was a phased return, and as such there was no delayed implementation of the same. It is also clear that that happens when the claimant comes back to work, and it is not put off until October 2021.

[139]In respect of placement to another team, as a matter of fact that did not happen at that stage, but the Tribunal consider that this was with the claimant’s input. We note at page 350 that it is recorded that there was a discussion between the parties in relation to moving team and it was considered that moving teams may add to the stress being experienced by the claimant in circumstances where he would need to learn how the new team worked etc.

[140]The discussion can be seen at pages 508 – 509 and having read the same, we consider that the claimant is not expressly stating that he wants to move but indicates that he would be interested in doing so. The claimant then seems to accept the reasoning given by the respondent why not to move him, namely that it was considered that it was likely to contribute to more stress on the claimant having to learn the procedures of a new team.

[141]We can later see that when the claimant expressly states that he does want to move team, they do move him, and the move is confirmed from 11 April 2021.

[142]Therefore, the Tribunal conclude that whilst there was a delay in moving him, that was with his input and when it was requested by the claimant it was actioned incredibly quickly by the respondent, it having been requested at the end of March and put into effect from 11 April 2021.

[143]In relation to the stress risk assessment, we can see that it was done (page 298) on 19 August 2021. This was therefore very shortly after that report, therefore there is no delay in implementing that recommendation.

[144]In relation to regular breaks, we rely on our earlier findings. We conclude that the breaks have been in place since the first occupational health report and Ms Casbon is not negative about the claimant taking these. This is supported at page 349 where the claimant refers to appreciating that he is able to take breaks. Therefore, the tribunal concludes that there is no delay in implementing this recommendation because the breaks have been ongoing since the first report.

[145]In relation to being able to take annual leave at short notice, the recommendation is very clear that it is ‘if this can be accommodated’. The respondent’s position is that they accommodated this where they could around business needs, and we accept that evidence. At page 477 is an example of Ms Casbon giving the claimant short notice leave in June 2021 and it is authorised, we note, the day before the leave. This is therefore evidence that this was implemented where it could be accommodated. Sue Casbon there says that that is authorised as exceptional rather than the rule. The claimant’s suggestion was that that goes against the Occupational Health report recommendations. It is very clear in our judgement that the recommendation was where it can be accommodated. Ms Casbon is being clear that there is a business and resource need, so is acting in accordance with that recommendation ‘where it can be accommodated.’

[146]At page 148 of the bundle there is evidence of a discussion that the claimant could use leave to shorten his week, but the claimant’s indication is that he does not wish to do that. This does not support the contention that the claimant could not take leave.

[147]The Tribunal were taken to page 188 of the bundle by the claimant, which he relied on to demonstrate that the adjustments in the occupational health report were not made or refused. In terms of that document the Tribunal do not interpret that document as saying that adjustments were refused. It is very clear that that document states that the respondent needs to see the Occupational Health report before any adjustments are made, not that they will not be made.

[148]For all of those reasons, the Tribunal concludes that there was no delay in implementing the August 2021 Occupational Health recommendations. This complaint therefore fails. Issue 4.1.11.

[149]This is an allegation that Sue Casbon did not allow the claimant to take leave at month end on 11 October 2021. The Tribunal simply were not taken to any evidence of Ms Casbon refusing leave on 11 October 2021. In cross examination the claimant took Ms Casbon to page 288 of the bundle, that was an entry within the Wellbeing Passport, but that seemed to relate to a later date of 27 October 2021 which is a separate issue and which we will come to.

[150]Therefore, in relation to that allegation the claimant has not proved that there was any refusal for the claimant to take leave specifically on 11 October 2021. Issue 4.1.12.

[151]This is an allegation that Sue Casbon restricted the claimant’s leave on 27 October 2021. We can see at page 479 of the bundle that leave is refused on 27 October 2021 for dates in November, those being 5 – 12 November 2021. Ms Casbon says that the claimant cannot take 5 November off because Beckie and Ian (other team members) are already off. So, as a matter of fact, there is a restriction on his leave and therefore we look at the reason for that.

[152]We conclude that looking at the contemporaneous document refusing that period of leave, that the reason for it was a business need because other individuals were already on leave on the same date.

[153]Page 480 of the bundle supports that, in that Ms Casbon indicates that she needs to make sure that there is cover and that is the reason for it, not the claimant's sick leave. We can also see on page 481 that Ms Casbon in fact offers alternative dates that the claimant can take. Further we note the claimant has been encouraged to plan his leave from the beginning of the year, which we can see at pages 148 – 150.

[154]Therefore, the Tribunal concludes that where there was a restriction in relation to the claimant taking leave, this was for legitimate business needs and was not because of something arising from his disability. Issue 4.1.13.

[155]In relation to Issue 4.1.13, that being Sue Casbon and Paulina Bijak breaching the claimant's confidentiality by speaking to his NHS Wellbeing person on 5 November 2021. We do not have any document in which contact was made between the respondent and the claimant’s wellbeing person called Michelle. What we can see is that all parties, including the claimant, agreed that they found Michelle’s presence at one of the well being meetings helpful.

[156]We can see Ms Casbon’s evidence at paragraph 43 of her witness statement was that Paulina Bijak had asked if she could have another meeting with her. We see the reply from Michelle (page 239) where she says that she will need the claimant’s permission, which he does not give and that is the end of the matter.

[157]The Tribunal concludes from that that there has not been a breach of confidentiality because Michelle does not talk to Paulina or Ms Casbon, other than to acknowledge their request and say that she needs the claimant’s permission.

[158]In any event, it is understood that the claimant has openly had a discussion in front of all three individuals, and there is no suggestion that Sue Casbon and Paulina knew things that Michelle did not to have passed on anything to her that might have breached confidentiality. It may well be that Michelle had sensitive information in relation to the claimant because she was his wellbeing person, but we know clearly from her response on page 239 that she says she cannot discuss the matter and that is the end of it.

[159]Therefore, the Tribunal concludes that there is no breach of confidentiality and as such this allegation did not happen and so there is no unfavourable treatment. Issue 4.1.14.

[160]This is a complaint that there is a refusal by Paulina Bijak to carry the claimant’s holiday forward. Despite significant time during the hearing trying to explore this, the claimant's complaint in relation to this is very unclear. We understand it to be that he is owed three days' leave which he says relates to 3 days leave that was carried over from the previous year.

[161]We consider that the leave is calculated by Paulina (page 246 of the bundle) with reference to statutory leave entitlement. Pursuant to the WTR outlined above the claimant is entitled to 28 days leave, including 8 days bank holiday. With the removal of the bank holidays (which the claimant would have usually worked and had off) there was a remaining entitlement of 20 days. She has calculated that the claimant has taken a total of 11 days because she has removed a period of leave which was booked but which occurred at the same time as his sick leave. As such she has credited that leave back to the total owed to the claimant.

[162]The claimant’s position in his earlier exchange at page 247 was that he had 9.5 days leave and in response to our questions around that, he said that those 9.5 days included the 3 days that were carried over from the previous year. On Paulina’s calculation the claimant had a remaining 9 days leave.

[163]We then note from the same exchange that the claimant is given that leave between 22 December 2021 and 4 January 2022, which is a total of 9 days. Therefore, based on the calculations, the claimant has received his 20-day statutory entitlement to leave.

[164]On that basis, the Tribunal concludes that there is no refusal to carry over his holidays.

[165]If there is any refusal to carry over non-statutory leave and this is where the claimant’s case is somewhat muddled, in that he says that he gets an extra 5 days contractually, although we were not taken to the same we consider that Paulina was applying the same rule that would apply to all the employees and that is that you cannot carry over leave. Again we were not taken to any document by way of evidence of this but it was accepted by the claimant that it was only in exceptional circumstances that it could be carried over.

[166]Therefore, if there is any refusal to carry over contractual leave, it is clear that that is being refused because of the respondent’s policy which applies to every individual, as opposed to the fact the claimant had taken sick leave.

[167]Again, in this regard we can see on page 148 that the claimant is reminded in February 2021 to plan his holiday leave. He was told the 3 days carried over from the previous year needed to be used by March and again he was reminded of that at page 150.

[168]We find there was no unfavourable treatment in relation to this allegation. Issue 4.1.15.

[169]This is a complaint that the claimant’s grievance was not upheld. As a matter of fact, it was not upheld.

[170]The claimant on his own admission states that there was a thorough investigation of his grievance by Mr Nicholson. Indeed, during his questioning of him he stated that Mr Nicholson was very helpful and thanked him.

[171]In those circumstances, the claimant did not adduce anything which would suggest that the reason his grievance was not upheld was a discriminatory one or one which arose from his disability. His position was instead that because the grievance was not upheld it allowed separate acts of discrimination to continue. However, even on the claimant’s own evidence the failure to uphold the grievance was not said to be its own act of discrimination.

[172]This complaint therefore fails on that basis. Issue 4.1.16.

[173]As to issue 4.1.16, this is an email from Ms Casbon dated 18 March 2021, in which the claimant was called hostile, and it was said that the relationship had broken down. As a matter of fact, that email was sent, we can see it at page 393 of the bundle.

[174]We can see the lead up and the background to that email and that is an issue around leave which we can see at page 397 of the bundle. As part of his phased return, it was agreed that the claimant would work Mondays and Thursdays. During the week of 21 February 2021, the claimant had 2 days leave booked namely 22 and 23rd February. The claimant had not attended work on 21 February on the basis that he had 2 days annual leave that week and the rest would be sick days.

[175]In cross examination, the claimant suggested that Ms Casbon was not telling the truth about this issue and that Monday in relation to the leave was always meant to be a sick day. The Tribunal considers that the evidence before it does not support this.

[176]The Tribunal agrees with the respondent’s position on this that the claimant was wrong to have not attended work on Monday of that week. His working days were Monday and Thursday for that week. We can see that that is agreed from the email that was sent to payroll at page 372. The claimant had booked off Tuesday and Wednesday as leave and Ms Casbon’s position was that the claimant cannot simply swap those annual leave dates to the Monday and Thursday without any input or approval.

[177]The claimant’s position was that he was booked off for two days, and only due to be working for two days and therefore could take the rest of the days as sick leave, but the Tribunal do not agree with that position. There was a clear expectation that the respondent expected him to be in on Monday and he did not attend. On our findings, Ms Casbon had not approved for the claimant to be off on Monday and Thursday. She had approved the claimant to be off on Tuesday and Wednesday.

[178]Page 397 of the bundle then refers to the fact that no action would be taken, but if it were to happen again there may need to be disciplinary action. We can see the claimant’s response to that at page 394, where he again stresses that he had three days sick plus two days holiday that he said had been approved. Within that email the claimant goes on to say that he refuses to have further sessions with Sue and Paulina together and states that they do not understand him and his well-being is not a concern to them.

[179]What follows is the email at page 393 of the bundle, which is the subject matter of this issue. We consider that is a response by Ms Casbon to the position outlined by the claimant at page 394.

[180]We do consider that the claimant is outlining there, that there has been a relationship breakdown before Sue Casbon then replies. She is effectively agreeing with his position in her response at page 393. We do not consider in those circumstances that what was said in that email of 18 March 2021 was due to the claimant’s sick leave that arose in consequence of his disability. Instead, it was in response to the claimant’s own position and observation in relation to the relationship. Issue 4.1.17.

[181]In relation to Issue 4.1.17, this is the appeal against the grievance being unsuccessful and there being a delay in July 2022.

[182]We can see the outcome to the appeal at page 410 that is conducted by Rob Picking who did not attend the Tribunal to give evidence. It is a matter of fact that the claimant’s appeal against the grievance was rejected, and we can see the reasons given in the outcome letter.

[183]The Tribunal has already made findings in relation to the original decision of Mr Nicholson and there is nothing to suggest in the outcome letter (page 410) that Mr Picking’s outcome was discriminatory or anything to do with the claimant’s sick leave. Again, he makes an enquiry, carries out an investigation in relation to the matter and draws conclusions based on those findings. We consider that the claimant has not introduced any facts from which we could conclude that the unsuccessful appeal was related to his increased anxiety and sick leave.

[184]In terms of delay, the claimant lodges his Appeal on 8 March 2022 and the outcome is on 10 June 2022 (put in the list of issues as July 2022, but that is incorrect). We can see that a meeting takes place because it is referred to in April 2022 and we consider that a period of three months, although that might have caused stress to the claimant, is a reasonable period of time for him to carry out an investigation into matters and make his conclusions.

[185]In any event, if there is a delay there is no evidence that that was because of the claimant’s increased sick leave sickness absence. Any unfavourable treatment by way of delay was not because of something arising in consequence of the claimant’s disability because there is simply no evidence of this. Issue 4.1.18.

[186]As to issue 4.1.18, that is the claimant’s request to be allowed to move teams being rejected in 2022, we conclude that there is no evidence that there was a refusal to move teams in 2022. We can see on page 391, the claimant’s request to move teams is made on 1 April 2022. At page 389 we can see that this is to take effect from 11 April 2022.

[187]In fact, the claimant actually suggested as part of his cross examination of a witness that the move then took place too quickly and he did not know what he was supposed to be doing.

[188]The Tribunal concludes therefore that there simply was not a refusal in 2022 for the claimant to move Teams and therefore there was no unfavourable treatment as alleged. Issue 4.1.19.

[189]In relation to issue 4.1.19, that is criticising the claimant’s work more than previously. We understand this complaint to be what the claimant considered to be negative telephone calls and the issue of duplication.

[190]The Tribunal notes that this is made in the context of the claimant having admitted that he is not performing, and with the background of the respondent having considered a PIP which ultimately was not put in place. There were therefore clear suggestions that there were performance issues.

[191]The claimant throughout those issues is inviting what he calls constructive criticism and was requesting specific examples of duplication rather than what he considered to be general references to duplication which he then could not improve because he did not have specific examples. The Tribunal concludes that in circumstances where a claimant is inviting examples of constructive criticism that this would naturally lead to more criticism.

[192]The Tribunal concludes that if there was more criticism it was therefore due to the claimant’s performance issues which were accepted by him. The reason for it is therefore not because of his sick leave, but rather because of his performance.

[193]The claimant’s other criticism of the respondent is that the criticism that was provided was not specific enough. When making this assertion the claimant did not seek to suggest that the criticism was more than previously but rather was not specific enough.

[194]In relation to that we note at page 150 Ms Casbon does refer to a specific example of duplication having arisen there. As such we do not agree with the claimant’s assertion that he was not given specific examples.

[195]We can also see at page 493 that the claimant says during those meeting notes that he was given an example which was fine. We can also see that there is an example involving Donna having a specific client (page 354 of the bundle), the claimant is told to please leave those client enquiries to Donna. As such specific examples are given on occasion.

[196]The Tribunal accepts that there are other occasions where Ms Casbon is less specific and in relation to those the Tribunal’s understanding of the duplication is that effectively tasks are colour coded per team member when they are picked up. It does not therefore need specific examples to be given to the claimant; it is self-explanatory in terms of what needs to be done and Ms Casbon is reminding the claimant of that general process and procedure.

[197]The Tribunal also concludes that if more specific examples had been provided to the claimant, he was unlikely to receive those well and indeed may have felt more targeted by the actions of Ms Casbon. Her approach, we consider, was a gentler reminder of what needed to be done by way of overall process and procedure.

[198]The reason we conclude the claimant would have reacted negatively if he had been provided with specific examples, is that we can see occasions where he has had negative reactions in particular circumstance, for example, in relation to the issue already covered by the Tribunal in relation to the two days leave and we consider on that basis that that would have been the likely reaction if he had been provided with specific examples.

[199]For those reasons this complaint fails.

[200]For all of the reasons given, the entirety of the s15 complaint fails either because there has been no unfavourable treatment or because it has not arisen because of something arising from the claimant’s disability. The section 15 EqA complaint fails and is dismissed. Issue 5 - Reasonable Adjustments EqA sections 20 and 21 Issue 5.1.

[201]It is accepted the respondent was aware of the claimant’s disability from 2 July 2020 and that is when he disclosed it during the disciplinary hearing. Issue 5.2

[202]Within that list of issues, we can see that at 5.2, there are a number of things alleged by the claimant in terms of the respondent’s failures. We do not usually see a list of issues about reasonable adjustments framed in this way in that it is usually that there is a PCP, a disadvantage to the disabled person and a need for adjustments as a result.

[203]We do not consider that there need be any finding in relation to the specific failures in order for us to determine this complaint, however we address the alleged acts in any event because of how it is farmed within the list of issues. Issue 5.2.1

[204]This is a failure to refer to Occupational Health until October 2020. In that regard we note the claimant did not expressly state that he had anxiety until the disciplinary hearing in July 2020 and he accepts that he was then off of work on sick leave from 3 – 12 July and then again from 21 August to 10 November 2020.

[205]The Tribunal has not been taken to any documentary evidence from the claimant of him asking for such a report prior to October 2020. Given on the claimant’s own account he did not raise the issue of anxiety until July 2020 and in absence of any documentary evidence to support he was asking for a referral to occupational health prior to that we conclude that there were not multiple requests in May 2020 by the claimant for such a referral.

[206]To the extent that a request followed, we consider that any delay is a result of the period of sick leave during that time. Issue 5.2.2

[207]This issue is broken down into a number of further sub issues. Issue 5.2.2.1

[208]In terms of failure to carry out a risk assessment, we conclude the respondent did carry out risk assessments for the claimant’s return to work and we have already made findings in relation to that above and rely on the same. We can see the risk assessments at pages 306 and 298 of the bundle. Issue 5.2.2.2

[209]This relates to a failure to carry out an assessment check list to be completed before the return to work in order to identify the reasonable adjustments. The Tribunal accepts there is not a separate document by way of a check list, but we consider that that formed part of the risk assessment, and it is clear, for the reasons that we have already given, that adjustments were identified in the occupational health report and implemented. Issue 5.2.2.3

[210]In terms of the failure to provide the claimant with meetings with a manager, between November 2020 and January 2021, we repeat our findings that we have already made in relation to that. In summary we repeat our observations on the risk assessment from 15 December and the claimant’s own evidence in relation to his contact with Mr Fowler. Issue 5.2.2.4

[211]In relation to the failure to arrange the assessment with Occupational Health within six weeks, we have already observed this was effectively a qualified recommendation, it was subject to authorisation by the employer and was a matter within their discretion. The employer’s position was that there were numerous periods of sick leave and as a result they were trying to allow a period of adjustments without disruption in order to see whether or not they were working. The Tribunal accepts that explanation. Issue 5.2.2.5

[212]In relation to the failure to provide regular breaks, again we have already made our findings in relation to that and rely on the same. We have not seen any evidence that Ms Casbon was negative about those. Indeed, actually at page 349 in February 2022 we can see that the claimant states that he appreciates being allowed to take breaks. Therefore, there is evidence in the bundle which would support the fact that the claimant was able to take those breaks. Issue 5.2.2.6

[213]In relation to being provided with a quiet place at work, the claimant confirmed in his cross examination, and it was not disputed as part of his case, that that was provided. Therefore, we conclude that there has been no failure to provide this. Issue 5.2.2.7

[214]In relation to failure to take steps to protect the claimant from stress over the first few months after returning to work, it is accepted that he had a phased return to work and by its very nature we consider that offers a degree of protection. Page 363 of the bundle, in the grievance outcome there is a chart which shows that 60% of the claimant’s workload/tasks were removed from him. Also, at page 509 during the wellbeing meeting, the claimant states that the workload has never been an issue for him. He states the issue was negativity.

[215]As to the negativity, the Tribunal has already given findings in relation to duplication. Effectively Ms Casbon is his line manager and despite the disability it does not prevent her from being able to line manage him and raise issues where they arise.

[216]The Tribunal concludes, as it has already indicated, that actually from the records of the calls that she has, she does so sensitively and in a supportive manner. Issue 5.3.

[217]We turn now to look at the PCPs, that is the provision, criterion or practice as set out at 5.3.

[218]We make the general observation here that these are poorly constructed in our view and appear to relate to specific incidents involving the claimant rather than a PCP of wider application and we rely on the case law cited above in this regard.

[219]That being said, we are reminded that the list of issues is meant to aide our findings and deliberations and we need not stick to them slavishly Z v Y

[2024] EAT 63

. We have therefore looked at the wider policies where identified. Issue 5.3.1

[220]It is said that the respondent had a PCP of treating the claimant unfairly in relation to holidays; this is understood by the way he has presented this complaint at the final hearing to be in relation to the refusal to allow him to carry over leave.

[221]The Tribunal concludes that there is no PCP of treating the claimant unfairly in relation to holidays. Nothing on the evidence indentified any PCP relating specifically to the claimant’s holiday.

[222]There is a policy in relation to holidays which we were not taken to by way of documented policy, but which the respondent and claimant both agreed was that holidays could only be carried over from the year in which it was accrued in exceptional circumstances.

[223]The Tribunal does not consider that this puts the claimant at a disadvantage compared to somebody without the claimant’s disability. The disadvantage relied on here is that it increased his anxiety and led him to taking sick leave.

[224]We do not consider that the holiday policy of the respondent caused this disadvantage. We do acknowledge that periods of sick leave would have made it more difficult for the claimant to take his holiday leave in the accrued year, but the policy did allow for carry over in exceptional circumstances which would negate this.

[225]In any event, the Tribunal have already made findings that the claimant was given his statutory leave at the end of the year, and he was given adequate warning throughout the year of the need to plan his leave. We rely on the same findings here. Issue 5.3.2

[226]In relation to the second PCP, that is failure to implement and delaying the Occupational Health risk assessment and wellbeing person’s recommendations, we do not consider that there was any practice of policy of delaying or failing to implement these.

[227]On our findings already given, the Occupational Health reports were implemented and that included the risk assessment and also the wellbeing person’s recommendations. We were not taken to any other examples of the respondent failing generally or delaying implementing these either against the claimant or anyone else.

[228]In relation to the wellbeing person’s recommendations that is understood primarily to be the wellbeing passport; a document in which both parties could access and upload concerns and responses.

[229]We conclude that the wellbeing passport was implemented. Simply because Ms Casbon did not populate it on every single occasion, we do not consider this meant that she was not acting within the spirit of it. It is clear from our findings that she was providing support to the claimant by other means, which is all separately documented. It is important to also read that document as a whole, in that the comments added by Ms Casbon appear on a different page within the bundle and so if you read one page in isolation you are not getting the full picture in relation to her input. As such, where it was suggested by the claimant that she had not responded in places we can see that she had by looking at the later pages. Where she has not responded we conclude that is because the support is offered by an alternative channel.

[230]In any event, on the evidence, we do not conclude that there was a PCP of failing to implement such recommendations or delaying them. If there has been any failure (and we conclude that there has not) this would amount to a one off incident concerning the claimant rather than a PCP of wider application. We were not taken to any evidence to suggests that there were delays or failures to implement such recommendations for other employees. Nottingham City Transport Ltd v Harvey

[2013] All ER(D) 267

(Feb), EAT referred to above is applied. Issue 5.3.3.

[231]In terms of issue 5.3.3, that is refusing to remove the claimant to another team, we conclude that there is no provision, criteria or practice of failure to move the claimant to another team. Nor do we consider that there is any general PCP of refusal to move individuals to another team.

[232]It was considered throughout that the respondent’s view was that may cause the claimant more stress because he would need to familiarize himself with new practices etc. The claimant’s position was that he was open to it, but he did not push for it and indeed, at page 508 that is confirmed where he says he was open to it but he will try his best to stay with this team, with reference to Ms Casbon’s Team.

[233]The Tribunal agrees with the respondent’s observations that a new team may have indeed caused him more stress in the circumstances.

[234]When the claimant then does request a move of team at the end of March 2022, that is put into effect incredibly quickly within a matter of two weeks. We consider that clearly demonstrates that there was no PCP of failing to move teams or that the respondent routinely conducts itself in this way. Again Nottingham City Transport Ltd v Harvey

[2013] All ER(D) 267

(Feb), EAT is applied.

[235]Our observations in relation to the PCPs are important because the disadvantage and the reasonableness of an adjustment all flow from the PCP. We have concluded that there is no PCP as outlined at issues 5.3.2 and 5.3.3. Issue 5.4

[236]In terms of the application of the holiday policy to the claimant we repeat our findings above and do not consider that this placed him at a substantial disadvantage compared to someone without the claimant’s disability. The claimant states that the disadvantage was it increased his anxiety and led to him taking sick leave.

[237]We do not consider that the holiday policy caused this disadvantage. To the extent that the claimant was prevented from taking holiday due to his sick leave, the holiday policy did allow carry over of accrued leave.

[238]The claim therefore fails at this stage however, if there were any PCPs that placed the claimant at a substantial disadvantage, we conclude that reasonable adjustments were made.

[239]In relation to the Occupational Health report, we have made findings and given reasons, and conclude that all of the recommendations were implemented. This included the risk assessments and the well being passport. We rely on those findings and conclusions and do not repeat them here. Therefore, we consider that the respondent took reasonable steps within a reasonable period to assist the claimant.

[240]The Tribunal make the observation, that from our experience of dealing with such complaints this is a case where we consider that the respondent has done all that they possibly could to support the claimant and to introduce the recommendations that were made by Occupational Health.

[241]The complaint of a failure to make reasonable adjustments fails for those reasons. Issue 6 – Harassment Issue 6.1

[242]The list of issues here repeats the conduct alleged at issue 4.1.1 to 4.1.19. The actual list itself states 4.1.1 and 4.1.19 which suggested it was perhaps just those two issues that were relevant to this complaint, however having clarified this with the parties it was confirmed that all conduct at issues 4.1.1 to 4.1.19 was relied on for this complaint.

[243]As such it is necessary to refer again to issues 4.1.1 to 4.1.19 albeit in the context of the complaint of harassment. Where we do so we also address the issues 6.2 to 6.5 at the same time under each head of complaint. Issue 4.1.1 within issue 6

[244]As to issue 4.1.1, we have already made the findings that as a matter of fact, that conduct did happen. We consider that was unwanted conduct by the claimant, but we conclude that it did not relate to the claimant’s disability.

[245]We conclude the reason the claimant was issued with a final warning was a conduct issue. He had gone into a building site, there was deemed breach of health and safety, and he was issued with a warning as a result. We accept the respondent's explanation in relation to this. This conduct was largely admitted by the claimant during the disciplinary process, and we conclude therefore that this being issued with a written warning did not relate to his disability.

[246]We acknowledge that during the disciplinary process the claimant informed Mr Dobson that he had anxiety and there was a question raised by Mr Dobson as a result in relation to ensuring that the incident did not happen again as per our findings above. We do not consider that this suggests that the claimant was given a written warning and this related to his disability when there is clear evidence that it was a conduct issue.

[247]This complaint therefore fails on that basis because it did not relate to his Issues 4.1.2, 4.1.3, 4.1.4, 4.1.5 and 4.1.6 within issue 6

[248]As to issues 4.1.2 to 4.1.6, we have already concluded that those events did not happen therefore they fail under the harassment complaint for the same reasons we have given in relation to the Section 15 EqA complaint above. Issue 4.1.7 within issue 6

[249]In relation to issue 4.1.7, we have concluded that there was mention of a PIP but concluded that this was not a threat. We do consider that that was unwanted conduct, even if not a threat because of the claimant’s interpretation of the same.

[250]We do also consider that that did relate to the claimant’s disability. It related to his performance. This is a claimant that has been employed by the respondent for a long period of time and performance has become an issue once he has the symptoms of his anxiety from March 2020.

[251]We therefore need to look at whether or not it had the purpose of violating the claimant’s dignity or creating the intimidating, hostile, degrading, humiliating or offensive environment as outlined at point 6.4 of the list of issues.

[252]We conclude it did not have that purpose. The clear purpose of it was to improve the claimant’s performance and it was a management plan of action.

[253]Therefore, we look at the effect of it as outlined at issue 6.5. It is very clear that the claimant’s perception of this PIP was that it was hanging over him and that did cause an intimidating environment for him. We do not look at the claimant’s perception in isolation, however and also look at the circumstances of the case and whether it is reasonable for the conduct to have this effect.

[254]The Tribunal concludes that it was not reasonable for it to have had that effect because the claimant admits himself that he was underperforming and that there were performance issues. It is a legitimate management action foreseen in the respondent’s policies and that is documented at page 282 of the bundle. It is a course of action taken by employers across the country to manage employees with performance issues. Further, a formal plan was never actually put into place. It was mentioned informally.

[255]The Occupational Health report specifically addresses the issue of a PIP and says that it would not be good for the claimant to be subject to the same. We consider that the respondent acts in accordance with this and takes the issue no further.

[256]The call during which a PIP was mentioned was on 24 June 2021 when that was mentioned, and we can see Occupational Health views on that at page 200 of the bundle being a report from July 2021. We can also see in October 2021 during the wellbeing meeting (page 494) where it was stressed to the claimant that the respondent was not taking that approach. The claimant had therefore been informed that this was not being implemented and in those circumstances, we do not consider it was reasonable for the conduct to have that effect. On the evidence it is clear that the claimant had been informed such to know that it did not remain hanging over him.

[257]Ultimately, we look at the wording of s.26: intimidating, hostile, degrading, humiliating or offensive environment. Those are big words, and it is very so as not to encourage a culture of hypersensitivity. In the circumstances as outlined we conclude that it was not reasonable for the mention of the PIP to have had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. Issue 4.1.8.

[258]As to 4.1.8, that is the email where Ms Casbon is said to show a lack of support for the claimant’s health; the comment itself can be seen at page 207 of the bundle.

[259]It is a matter of fact that this comment was said. We conclude that it was unwanted conduct. The claimant’s witness statement at paragraph 44 states that that was patronising and it made him more stressed.

[260]In relation to whether or not it related to disability, we consider that it did. It refers to what the claimant had to be stressed about, and his disability is anxiety in the context of work related stress.

[261]We therefore move on to whether or not that had the purpose of violating the claimant’s dignity or creating such an environment as outlined in s.26 EqA (issue 6.4) and we accept the unchallenged explanation from Ms Casbon at paragraph 34 of her witness statement that the purpose was to find out and understand what the issues were so that she could better support the claimant. As such that was not the purpose of this comment.

[262]We therefore look at whether or not it had that effect (issue 6.5) and the claimant’s perception in relation to this is as per his witness statement outlined above namely that he felt patronised and more stressed. On his own evidence he does not go as far as to suggest that it is to such an extent as outlined in s26 of the EqA namely violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. On cross examination his position was the same, he says that this caused him more stress. Again, we stress the wording in s.26, are big words, and on the claimant’s own evidence it did not have that effect.

[263]If that was the claimant’s perception, we also examine all the circumstances and whether it was reasonable for it to have that effect. This is the case where Ms Casbon, on our conclusions, has been supportive and has been trying to understand the claimant’s position. We conclude in light of her explanation that she is doing nothing more than a managerial role to understand his position. We consider in those circumstances it was not reasonable for it to have had that effect. Issues 4.1.9, 4.1.10 and 4.1.11.

[264]In relation to issues 4.1.9 to 4.1.11, we have concluded that they did not happen for the reasons already given. They fail under the harassment complaint for the same reasons. Issue 4.1.12.

[265]This concerns restricting the claimant’s leave for which we have concluded that leave was refused by Ms Casbon on 27 October 2021 for dates in November 2021. We do consider that was unwanted conduct because the claimant clearly wished to take leave.

[266]We do not consider, however, that it related to the claimant’s disability. It was clear that it related to the business needs of the company. The evidence in which the leave is refused says as much; it says that it cannot be authorised because other team members are off and Ms Casbon goes further and offers alternative dates. We rely on our findings under the s15 EqA complaint in this regard.

[267]This complaint therefore fails. Issue 4.1.13.

[268]We found that this act did not occur for the reasons already given. Again, we rely on the reasons already given as to why and the harassment complaint in relation to this allegation fails for the same reasons. Issue 4.1.14.

[269]We have already concluded that all statutory leave was taken. That was effectively taken at the end of December and then one day into January the following year. The claimant’s position was that there were three contractual days remaining, although as stated the claimant's complaint in relation to this was unclear.

[270]What we do observe is where contractual leave was remaining, the claimant accepts the respondent had a policy that it cannot be carried over and that would only be granted in exceptional circumstances.

[271]We look at whether or not that was unwanted conduct. The claimant clearly wants to use his leave, he refers to selling it or being paid for it and consider that any refusal to carry over remaining leave was unwanted conduct.

[272]We therefore look at whether or not it was related disability, and we consider that it is not. Any refusal to take leave is a policy that applies to all staff, and we conclude that any refusal did not relate to the claimant’s disability.

[273]This is again with the background that since February 2021 the claimant has been encouraged to plan and take his leave. Therefore, that complaint fails at that stage. Issue 4.1.15.

[274]As a matter of fact, the claimant’s grievance was not upheld. That was clearly unwanted conduct, because the claimant would have wanted a favourable outcome.

[275]We therefore look at whether or not it was related to disability (issue 6.3) and we conclude that it was not. There was a thorough investigation, and it was concluded that there were no grounds to uphold the claimant’s grievance. As we have already said, the claimant’s own position in relation to Mr Nicholson was that he was very helpful and he thanked him.

[276]The outcome letter at page 362 of the bundle also sets out why it was not upheld. It is clear that that was not related to disability.

[277]In any event, the failure to uphold the grievance did not have the purpose of violating the claimant’s dignity or creating the environment within s26 EqA. It purpose was to provide an outcome. In terms of whether it had that effect, the claimant does not suggest that it did. He states that he was disappointed because he felt that it allowed what he perceived as discrimination to continue.

[278]In all of the circumstances we therefore do not consider that it was reasonable for it to have had any such effect. It is ultimately a process; there will always be an unfavourable outcome to one of the parties in a grievance and there is nothing inherently offensive within the outcome. Indeed, we conclude that there is a well-reasoned outcome. Issue 4.1.16.

[279]As a matter of fact, this incident occurred, and we consider that it was unwanted conduct.

[280]In terms of whether or not it related to disability, on balance we do consider that it was related to disability because the very content of the email was in response to his suggestion that she isn’t supportive about his disability and that she does not understand it. Ms Casbon replies and sets out the support she considers she has given.

[281]We look therefore at whether it had the purpose of violating the claimant’s dignity or creating the s.26 EqA environment (issue 6.4) and we conclude that it did not. She is responding to the claimant’s position as outlined on page 394. We consider that she is setting out what steps she is taking to try and support him and those are steps which the Tribunal have concluded had been put in place.

[282]The Tribunal’s assessment of page 394 is that the claimant is saying that he will not speak to Ms Casbon or Paulina and says he refuses to have further sessions and that his wellbeing is not of concern to them and Ms Casbon replies to the same.

[283]As to the effect on the claimant, (issue 6.5) his witness statement is silent on the point. We can see his response to the email at page 392 and he says he is disappointed that she thinks he is hostile.

[284]In all of the circumstances, the Tribunal consider that Ms Casbon was summarising what the claimant had himself already outlined, namely that there was the relationship breakdown and the steps that had been taken by her to support him. In terms of looking at the effect we do not consider that it was reasonable for the conduct to have had any such s.26 effects in those circumstances. Issue 4.1.17.

[285]As a matter of fact, the claimant’s appeal against the grievance was unsuccessful. We conclude this is unwanted conduct because we consider the claimant would have wanted a favourable outcome. In answering whether or not it was related to disability, we can see in the outcome letter at page 410 and there is nothing in that to suggest that it was not upheld because of anything relating to disability.

[286]Mr Picking has conducted a review and reached his conclusions. Again, in cross examination the claimant’s own position was that the fact that it had not been upheld meant that the other acts of discrimination continued rather than it being a separate act of discrimination relating to his disability.

[287]In relation to delay, we have addressed that above and rely on those findings here. There is a period of three months which we consider reasonable in circumstances to investigate properly what was being raised. But as to delay and whether that had any purpose of violating the claimant’s dignity, we consider that it did not. There is nothing on the evidence to suggest that the delay was a deliberate act or of any ill intent by Mr Picking.

[288]When we look at the effect, the claimant says it was stressful which we acknowledge. We do not consider that it was reasonable for it to have that effect in all of the circumstances. Again, this is a process that is being undertaken by the respondent and there is always going to be one unhappy party in such a process. It is not reasonable in the circumstances for that act to have had that effect. Issue 4.1.18.

[289]We found that this act did not occur for the reasons already given. Again, we rely on the reasons already given as to why and the harassment complaint in relation to this allegation fails for the same reasons. Issue 4.1.19.

[290]We have already made findings in relation to the criticism of the claimant’s work, and we rely on those findings in relation to the harassment complaint. We do consider that it was unwanted, albeit we make this observation; the claimant wanted constructive criticism, that is what he said he wanted, and he invited it. Therefore, that goes to whether or not the conduct was wanted or not. What we consider to be the unwanted conduct is that he says he wanted specific examples, which he was not given (on the claimant’s account at all).

[291]The Tribunal do not accept that he was not given examples. We have already outlined where we consider he was given examples, albeit we accept they were not given as specific examples on every occasion and Ms Casbon’s own evidence was that she could have given more specific examples.

[292]We move on to whether or not it is related to disability (issue 6.3). We conclude that it was in the context that the performance issues which led to the criticism were linked to the claimant’s anxiety.

[293]In terms of whether it had the purpose of violating the claimant’s dignity or creating a s.26 environment, the Tribunal conclude that it did not. Ms Casbon worded her feedback in our judgement very carefully and sensitively. Indeed, where she did not give specific examples, the Tribunal concludes that this was to try and be supportive, to try and make him not feel targeted and because it was self-explanatory, it was a general process that she was stressing to the claimant to follow as opposed to a specific example having arisen.

[294]The Tribunal have already concluded that the claimant would likely have a negative reaction had continuous specific examples been provided. Again, at this point we will make this observation that when the claimant’s workload has been adjusted, which is obviously a supportive measure and is there to assist him manage his work related stress, his evidence is that he is then not consulted on that process.

[295]We consider that is an example of the claimant not being happy in either situation, he is not happy that he is not supported, but he is also then criticising the respondent that they took away tasks from him without consultation. We do consider that that gives a general overview in relation to the claimant’s likely reaction to specific examples had more been given.

[296]We conclude here that Ms Casbon’s clear purpose was to try and improve the claimant’s performance and prevent errors from being made.

[297]In terms of whether that conduct had that effect on him, namely the effects of s.26, it is clear that the claimant’s perception is that he did not feel that he knew what he was doing wrong and in those circumstances, it would have caused a difficult situation for him. We consider that the claimant’s perception here falls short of having the effect set out in s26 EqA.

[298]If that was the claimant’s perception, we look at all of the circumstances of the case and whether it was reasonable to have that effect as outlined in issue 6.5. This is a claimant that has been with the company for a number of years, he is aware of how work allocation works and is simply being reminded of that. As such, specific examples were not necessarily needed, he is being reminded of a general process.

[299]We have also concluded that there were specific examples given to him. We consider that the claimant’s perception is flawed in that he was being given the examples of where he was going wrong.

[300]This is further a case where Ms Casbon sought to be supportive in circumstances where the claimant had specifically asked for constructive criticism and so in those circumstances, we conclude that it was not reasonable for the conduct to have that effect.

[301]Therefore, the harassment complaint also fails. Victimisation

[302]It is accepted that the grievance on 19 January 2022 was a protected act.

[303]The detriment alleged is that Ms Casbon stated that the claimant was being hostile, and the relationship had broken down on 18 March 2022.

[304]As to issue 7.3 and whether this subjected the claimant to a detriment, we look at the detriment from the employee’s point of view; did the employee reasonably understand that they had been disadvantaged? We consider that as the email came from the claimant's line manager and from the wording used, the claimant would have understood this email to be a disadvantage.

[305]We therefore look at issue 7.4 and need to look at whether or not it was done because the claimant did the protected act. The question for us to resolve is did Ms Casbon call the claimant hostile and say that the relationship had broken down because of the grievance.

[306]Ms Casbon’s evidence was that it did not relate to the grievance. The claimant’s case is that it was although he did not identify anything specifically on the evidence to support why he considered this to be the case.

[307]We note the timeline here namely that the grievance is January 2022, the detriment (the email) is 18 March 2022 so it is some two months later.

[308]We have also already looked at the build up to this, and the claimant’s email at page 393 that resulted in the reply which is said to be the detriment. We do not repeat those reasons which apply equally to this complaint and appear at paragraphs 173 to 180.

[309]There is also in the lead up to this email, the issue relating to holidays which occurred in February 2022 where the claimant was on a phased return to work and had annual leave booked in the same week. Again, we have already looked at this issue within paragraphs 173-180 and rely on those findings in relation to the complaint.

[310]We consider that incident does demonstrate a relationship breakdown and a conflict between the parties.

[311]We consider these to be two separate and distinct issues that go to the reason that Ms Cabon sent the email on 18 March 2022 and that is both the issue with the holiday and then what the claimant himself states at page 393. We accept Ms Casbon’s evidence that those were the reasons she sent the email of 18 March, and as such it did not relate to the grievance.

[312]The Tribunal also notes the email at page 399 from Ms Casbon on 14 March 2022 which refers to the grievance outcome. She has had it at that point and that email in our judgement is supportive of the claimant; she is saying that she is happy to accommodate and follow the recommendations within that outcome. It is not until the claimant takes his stance in the email of page 393 that she then sends the email of 18 March 2022.

[313]Based on that evidence, the history and chain of events, we are satisfied that the email on 18 March 2022 had nothing to do with the claimant’s grievance.

[314]Therefore, the victimisation complaint fails. Holiday Pay

[315]As already outlined, the claimant’s complaint about his holiday pay is muddled and unclear, despite the tribunal spending some time at the final hearing trying to understand this. It is ultimately understood to be a claim for 3 days holiday pay which he says he was not able to carry over.

[316]To the extent that this is a complaint under the WTR relating to his statutory leave, we consider that the leave is calculated by Paulina (page 246 of the bundle). Pursuant to the WTR outlined above, the claimant is entitled to 28 days leave, including 8 days bank holiday. With the removal of the bank holidays (which the claimant would have usually worked and had off) there was a remaining entitlement of 20 days. She has calculated that the claimant has taken a total of 11 days because she has removed a period of leave which was booked but which occurred at the same time as his sick leave. As such she has credited that leave back to the total owed to the claimant.

[317]The claimant’s position in his earlier exchange at page 247 was that he had 9.5 days leave and in response to our questions around that, he said that those 9.5 days included the 3 days that were carried over from the previous year (and which appeared to be part of his complaint relating to holiday pay namely that it was 3 days carry over from a previous year). The respondent calculates it to be 9 days remaining, instead of the claimant’s 9.5 days.

[318]In calculating the remaining leave, we prefer the respondent's evidence to the claimants because we have a contemporaneous note of the same and because even on exploring this complaint with the claimant during the final hearing his calculations were not understood by the tribunal. Even on his calculation in December 2021 he says he was owed 9.5 days. The respondent calculated he was owed 9 days so this would only amount to an extra half day leave and not 3 days.

[319]We therefore conclude from the documentary evidence that the claimant had taken 11 days and having separately taken the bank holidays therefore had 9 days remaining of his statutory leave.

[320]We then note from the same exchange that the claimant is given that leave between 22 December 2021 and 4 January 2022, which is a total of 9 days. Therefore, based on the calculations, the claimant has received his 20-day statutory entitlement to leave. As such we conclude that there has not been any failure to comply with the WTR as the claimant has received his leave.

[321]In terms of any non-statutory leave (so holiday in excess of the 5.6 weeks) the claimant did not take us to any contractual provision that provided for the same. Even if this existed however and the claimant had further contractual leave remaining, he agreed that there was nothing that automatically allowed for this to be carried over and rather there was a generally understood rule that it could only be carried over in exceptional circumstances.

[322]Based on that the tribunal concludes that there has been no breach of contract in relation to holiday or unauthorised deduction from wages because there is no contractual provision stating that the claimant was entitled to carry over any non-statutory leave.

[323]Again, in this regard we can see on page 148 that the claimant is reminded in February 2021 to plan his holiday leave. He was told the 3 days carried over from the previous year needed to be used by March and again he was reminded of that at page 150.

[324]In terms of any contractual leave outstanding, we consider that the claim would be out of time in any event. A claim needs to be presented within 3 months of the failure to provide or pay leave. The claimant says in December 2021 that he is owed three days holiday. The claim is not presented until July 2022 and we are not assisted by the ACAS consolidation period because on 10 June 2022 when he contacted ACAS he was already out of time. Three months from December 2021 would have meant that the claimant should have presented the claim by March 2022.

[325]The Tribunal therefore needs to look at whether or not it was reasonably practicable to have presented the claim in that period.

[326]The claimant was asked directly by the Tribunal in relation to that and he did not give any reason whatsoever in relation as to why it was not reasonably practicable to present the claim in relation to holiday pay within that three month period.

[327]In the absence of any explanation we consider that it was reasonably practicable for the claimant to present the complaint within the three month limitation period. The claimant did not and as such the tribunal does not have jurisdiction to deal with this complaint. Time Limits

[328]In relation to time limits on discrimination, we have determined the case on its merits and the claim has failed on its merits. We therefore do not make findings on the time limits for each complaint but make the following general observations.

[329]The time limit would be three months from the date of the alleged discrimination unless there was a continuing act. The time limit can be extended where it is just and equitable to do so.

[330]Here we have not found any acts of discrimination and so on our findings there is not a continuing act and therefore anything prior to 9 March 2022 is on the face of it out of time. That is because the claimant contacts ACAS on 10 June 2022.

[331]As to the just and equitable extension we consider that would need to be applied to each complaint because it is likely to have a different application to each by way of prejudice caused, for example. We do not go as far as performing that exercise because we have determined the case on the merits.

[332]We do observe however that in January 2022, we know that the claimant has taken advice from the Citizens Advice Bureau, that is his evidence. His evidence is that that advice included advice on time limits, and he confirmed he was told of the three month time limit. We know that they helped him put together the grievance (page 327) because he states that they did so and we can see from that grievance that expressly refers to discrimination so it is clear that by 19 January 2022 at the latest the claimant is aware of and is alleging acts of discrimination.

[333]That grievance is lengthy, and we do consider that it is likely to have taken some time, so we do consider that the advice in relation to time limits and that there were allegations of discrimination is likely to have been given some time earlier. This is also a case where the claimant is challenging the actions of the respondent throughout.

[334]The claimant then contacts ACAS on 10 June 2022, the certificate is issued on 21 July 2022 and he lodges his claim on 23 July 2022. We consider there is no explanation for the delay between January 2022, when the claimant has alleged discrimination and been informed of the time limits and his contact with ACAS in June, save for he suggests that he was awaiting the outcome of the Grievance.

[335]In law, awaiting the outcome of an internal procedure is not in its own right a reason to extend time limits and the claimant does not suggest that there was anything in addition that caused him to await the outcome. He does not suggest he was given advice by CAB that that was the process he needed to follow for example.

[336]We have been able to have a final hearing, but the delay has meant that there have been witnesses that have been unavailable to the Tribunal because they have left the respondent’s employment. Memories have clearly been affected because we are looking back at events from 2020. We have not had any medical reason advanced in relation to the delay and again, to reiterate the advice that was clearly given to the claimant from January 2022, which he does not act on until June 2022.

[337]In circumstances where he states he is aware of the time limits, our general observation in relation to that is we do not consider that it would have been just and equitable to extend the time limits (for those complaints that occur before 9 March 2022) in the circumstances but make no final conclusions on each complaint in that regard. Approved by:

[1]Following the liability Judgment on 21 January 2025, the respondent made an application for costs on 13 February 2025. The application was opposed by the claimant, and the application was subsequently listed before the Tribunal on 5 January 2026 to determine the application. Evidence

[2]For the purposes of the cost proceedings, we had a bundle that consisted of 375 electronic pages. We also have a skeleton argument produced by the respondent together with two authorities on the matter. Separately, that is not part of the main bundle, we have an email from the claimant, Mr Hussain, dated 28 December 2025, which attaches three documents; a document called ‘the main defence’, a defence bundle, and a document called ‘costs letter’.

[3]Mr Hussain had emailed the Tribunal in advance indicating that he did not intend on attending the hearing because he did not consider he was well enough to. He invited the Tribunal to proceed in his absence, based on the written representations he had made.

[4]Mr Hussain did in fact attend the hearing and we are grateful to him for his attendance. He was able to confirm the documents that he had submitted in opposition of the costs application, and confirmed his reliance on the same by way of his representations. We were also able to obtain some additional information from him in relation to his means. That has also assisted us in relation to determining the application.

[5]Having indicated that the Tribunal would need to take some time to consider the application, the claimant indicated that he would not be returning to the hearing for the decision and again invited us to proceed in his absence. Having returned, the claimant did not attend, and we provided the oral decision and reasons to the respondent. On 18 January 2026, the claimant requested the written reasons for the decision which are now provided.

The law

[6]Rule 74 of the Employment Tribunal Procedure Rules 2024 states as follows:(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.

(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a)a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b)any claim, response or reply had no reasonable prospect of success, or (c)a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.

[7]The Tribunal Rules impose a three-stage test: first, the tribunal must ask itself whether a party’s conduct falls within rule 74(2)(a) — in other words, is its costs jurisdiction engaged?; if so, secondly, it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party; the third stage is the determination of the amount of any award.

[8]The test for whether the claim had no reasonable prospect of success is objective, not subjective (Vaughan v London Borough of Lewisham

[2013] IRLR 713

, EAT.

[9]It was well established under previous versions of the Rules of Procedure that the term ‘misconceived’ could cover unmeritorious claims brought by employees who, possibly because they are unrepresented, are unaware of the legal position and genuinely believe that their employers have committed illegal acts against them and that the term misconceived includes having no reasonable prospect of success.

[10]In Scott v Inland Revenue Commissioners

2004 ICR 1410

, CA: Lord Justice Sedley observed that ‘misconceived’ for the purposes of costs under the Tribunal Rules 2004 included ‘having no reasonable prospect of success’ and clarified that the key question in this regard is not whether a party thought he or she was in the right, but whether he or she had reasonable grounds for doing so. The Court of Appeal held that the employment tribunal’s decision in this particular case not to award costs against S should be reconsidered, as it was not clear that the tribunal had directed its attention to the questions of whether S’s case was doomed to failure or, if it was, from what point.

[11]Rule 82 states: ‘In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.’ Conclusions Is the costs jurisdiction engaged?

Conclusions

[12]The Tribunal are satisfied that the costs jurisdiction is engaged under rule 74(2)(b) namely that various complaints pursued by the claimant had no reasonable prospect of success.

[13]We acknowledge, which is accepted by the respondent in any event, that this was not a claim in its entirety that had no reasonable prospects of success and we would concur with what Mr O’Dair conceded, namely that two of the complaints did call for an explanation by the respondent. Those were identified as a comment made by Mr Dobson in a disciplinary meeting in 2020 and then a message then sent by Ms Casbon in August 2022 to the claimant querying why he was calling in sick on a Monday. Therefore, this is not a claim that in its entirety had no reasonable prospect of success.

[14]However, we do consider that a number of the complaints, had no reasonable prospects of success in circumstances where the contemporaneous documents spoke for themselves as to the conclusions that we subsequently reached. Those documents were all within the claimant’s possession pursuant to the disclosure direction made in the order of EJ Manley on 9 October 2023 which directed disclosure by 20 October 2023.

[15]The Tribunal considers that the claimant would have needed some time to consider those documents and either undertake his own research on the same or seek advice. We therefore consider that the complaints were misconceived by January 2024. In any event, the respondent does not seek the entirety of the costs incurred as outlined below. We consider that this takes into account the fact that not all of the complaints were bound to fail but also the stage at which the claimant should have been aware of the same.

[16]We consider that based on the findings in our liability judgment there were a number of complaints that had no reasonable prospect of success. We do not repeat the contents but in particular have regard to paragraph 69 of the written reasons, 73 and 74 and 114, 115, then further paragraphs 152, 169-171, 180- 183, 186, paragraphs 189-197 and 212-214.

[17]We conclude, based upon those findings, that there were complaints where the contemporaneous documents supported the conclusions that we ultimately reached and, in effect, were such that it made the claimant’s complaints, ones that were bound to fail.

[18]For example, one of the complaints was a failure to implement Occupational Health recommendations. However, in a subsequent occupational health report it was recorded on the claimant’s own admission, that there had, in fact, been an implementation of the recommendations. That claim therefore had no reasonable prospect of success because the contemporaneous documents on the claimant’s own admission did not support the complaint.

[19]A further example of this is complaints concerning the claimant’s annual leave, where he said this had either been refused or restricted. The contemporaneous evidence however demonstrated that the claimant had actively been encouraged to take leave and where it had been refused it was due to operational needs of the team due to others being on leave. We consider that the complaints about holidays were therefore bound to fail.

[20]Again, we do not repeat those findings but based on them, those were complaints where the Tribunal considers that the contemporaneous documents spoke for themselves such that the complaints as alleged had no reasonable prospects of success.

[21]The costs regime is therefore engaged on that basis. The respondent also submitted that rule 74(2)(a) was engaged, arguing that the claimant unreasonably pursued the complaints. We consider this is not only relevant to whether the costs regime is engaged, but we also consider that it is relevant to the second stage of the test, namely whether we should exercise our discretion to make a costs order and that there is a degree of overlap.

[22]We acknowledge the claimant’s health condition as set out in the medical evidence he has provided as part of his representations on the application. It is clear that since the hearing on liability his health appears to have worsened, and is having a significant impact on him. That being said he presents as an individual who is clearly very capable. He did so throughout the final hearing and has done so in dealing with this costs application. He has provided six responses in total to this costs application being within the bundle or separately provided as above. Those contain detailed submissions which include wellarticulated submissions on the law. We therefore conclude that he is therefore clearly capable of conducting legal research.

[23]The claimant accepts that he had assistance from the Citizen’s Advice Bureau which included advice on time limits in this case. At the time he presented his claims, he was still working in a role with a salary of £35,000.00 per annum. Whilst it is a matter for him to decide if he wishes to be legally represented, he could have and had the means to obtain even limited legal advice on the merits of his case.

[24]The claimant has placed reliance on what was said to him by Judges during the course of preliminary case management and his suggestion was that those Judges endorsed his complaints having looked at documents and in listing a final hearing, gave some sort of endorsement as to the merits of the claim. We would reject such a suggestion. That is not borne out from the case management orders which separately appear in the bundle. There is nothing that records or gives any indication as to the merits of the complaints. This would also not be the practice of the tribunal; we are neutral in the process, and it would be inappropriate at a case management stage to give any kind of endorsement in one party’s favour or another.

[25]In those circumstances, we do also consider that the complaints were unreasonably pursued because we consider that the documents on which we reached our conclusions were in the claimant’s possession, he was capable of taking a view on those complaints in light of those documents or seeking advice on the merits of the same either through his own research or obtaining legal advice. Is it appropriate to exercise our discretion?

[26]We therefore go on to the second stage, which is whether it is appropriate to exercise our discretion to award costs. We do acknowledge that there was a lack of costs warning by the respondent in this case, which we observe as unusual in the circumstances as are now identified by the respondent.

[27]However, that does not prevent us from making an award of costs. The rules do not require the same. We do however have regard to it in terms of whether or not to exercise our discretion particularly in circumstances where the claimant says the information he received from the Citizen’s Advice Bureau was that costs were exceptional.

[28]That being said, it is recorded in the case management orders that the claimant is directed to the Employment Tribunal Rules of Procedure, they are linked within the case management orders, and that, of course, includes the rules on costs which the claimant could have availed himself of.

[29]We also acknowledge that there was no strike out application made by the respondent. We do not place any criticism on the respondent in relation to that in circumstances where on the case law, such arguments are unlikely to succeed where we are concerned with discrimination complaints, as we were in this case. We do, of course, acknowledge that it was also open to them to seek a deposit order instead, and they did not do so. Again, this is a factor we have had regard to when looking at whether or not to exercise our discretion in that the claimant was not on notice of the same. However again we would reiterate that the rules do not state that costs can only be made where a deposit order has been sought.

[30]Ultimately, we have concluded that some of the complaints had no reasonable prospects of success and were pursued unreasonably. This is in circumstances where, we consider that the claimant could have obtained legal advice or, if not, he was clearly a capable individual in conducting his own research. That is borne out from the documents and the role that he was performing when he lodged his ET1; it is borne out from the documents that he produces even in response to this costs application, where there is evidence of legal research. In those circumstances, we consider therefore that he was perfectly capable of assessing the documentary evidence, that, quite clearly, went against the claimant’s assertions.

[31]As to the claimant’s mental health condition, we concluded that he was disabled within the meaning of the Equality Act as part of our findings back in January 2025. As to the severity, all of the evidence that the claimant has produced for the purposes of this application, points to a significant decline of that condition when, firstly, he lost his original claim, but, secondly, when the respondent made the costs application. In those circumstances, although we recognise that he had that condition, we do not consider that that was such to prevent him from effectively assessing that evidence and making a reasonable decision based on the documentary evidence that he was provided with.

[32]Again, this is in circumstances where the claimant came before this tribunal and said that, for example, a phased return to work had not been granted, but on the documentary evidence in the next Occupational Health report, he was recorded as having accepted that there had, indeed, been a phased return to work and went as far as saying he was content with the same.

[33]In deciding whether to exercise our discretion, this is a case where we consider that because of the complaints that were pursued unreasonably and/or with no reasonable prospects of success, additional resources of the Tribunal and respondent were required. It led to a longer hearing time, additional witnesses and resources, and in those circumstances, the tribunal does consider that it is appropriate to exercise our discretion to award costs. The amount of the award

[34]We turn to the third stage and that is the amount of the award. In this regard, we have in mind rule 82 both in terms of whether or not to make an award at all having regard to the claimant's means but also in terms of the amount.

[35]The costs of the respondent in the entirety of the claim is some £52,000. There is no detailed breakdown of the same. The suggestion by Mr O’Dair is that half of that total can be attributed to the complaints that had no reasonable prospect of success and therefore seeks a sum in half of that amount adopting a broad brush approach by way of summary assessment. Pursuant to rule 76 the Tribunal would be limited to an award in the sum of £20,000.00 unless the matter was referred for detailed assessment.

[36]As to the claimant’s means his indication was that he receives £85 per week in Employment Support Allowance, but he was not sure of that figure. We have looked at the government website which suggests £90 per week. There is a possibility that he may be entitled to some other benefits and has made an application for Personal Independence Payment but that has not yet been granted. So, effectively, we are concerned with an individual who is currently in receipt of approximately £90 per week.

[37]On the medical evidence that the claimant has produced we are satisfied that it is very unlikely that he is going to be able to return to work in the near future and, if his is able to return to work, we do not consider that it will be at the level that he was previously either by way of the salary that he was receiving or by the amount of hours that he is able to undertake.

[38]We have regard to the fact that he is living with a partner. We take into account household income. His partner is working but we understand on a part-time basis only receiving minimum wage. This is a family that has three children, two of which are under 18 and therefore are dependent. One is 19 years old, so now an adult, but we accept what Mr Hussain says that that child is still in full-time education and recognise that with costs of living it is very unusual for an adult of 19 years old to be fully independent of their parents.

[39]The claimant confirmed he has credit card debt currently of £3,000. It is a mortgaged property that he resides in. It is understood that the mortgage is currently unpaid albeit that there is some sort of arrangement in place giving him some breathing space in relation to that such that it is not payable at the current time.

[40]We also heard from the claimant that he has some savings of £1,500 and we have regard to the same when looking at the amount of costs. We consider that given the limited household income the savings are likely to be required to meet his living costs, at least until the other benefit applications have been determined. However that is an amount in savings that is available to meet any award of costs.

[41]Therefore, taking those means into account, we are going to make what we consider to be a limited award in the sum of a of £500.00 towards the respondent’s costs having full regard to the claimant’s limited means.

[42]We consider that award also reflects that not all of the complaints had no reasonable prospect of success, and two of the complaints were legitimately pursued, albeit ultimately unsuccessful. It also takes account of the fact that it was after disclosure that the Tribunal considers the claimant should have been aware that these complaint had no reasonable prospect of success given the documentary evidence to the contrary. This is because the award is significantly less than what was sought such to ensure that no award has been made for costs that would have been incurred in any event. Approved by: