Mr C Blacha v The Chief Constable of Northamptonshire Police: 3314095/2021
EMPLOYMENT TRIBUNALS
Case No 3314095/2021
Between
Mr C BlachaClaimantThe Chief Constable of Northamptonshire PoliceRespondent
Before
Employment Judge HutchingsDate 13 August 2024
JUDGMENT
It is the unanimous decision of this Employment Tribunal that:[1]The complaint of unfair dismissal is not well-founded. The claimant was fairly dismissed for reason of misconduct.[2]The complaint of breach of contract in relation to notice pay is not wellfounded. The claimant is not entitled to notice pay as he was dismissed for misconduct.[3]The complaint of direct disability discrimination is not well-founded and is dismissed.[4]The complaint of harassment related to disability is not well-founded and is dismissed.[5]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.[6]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.[7]The complaint of victimisation is not well-founded and is dismissed. Case No: 3314095/2021
REASONS
[1]On 18 October 2024 the claimant’s lay representative sent an email to Watford Employment Tribunal administration requesting written reasons for the judgment delivered orally on 13 August 2024 and sent to parties on 11 October 2024. The email request was referred to Employment Judge Hutchings by Tribunal administration on 4 November 2024. The first opportunity Employment Judge Hutchings had to consider the request was on 11 November 2024. These reasons respond to that request. Summary of the claims[2]The claimant was employed as a cadet by the respondent, a police force, in 2014. In July 2017 he was promoted to the role of Police Community Support Officer (“PCSO”). On 24 March 2021 the respondent dismissed the claimant, it says on the grounds of misconduct. By ET 1 and Particulars of Claim dated 8 August 2021 the claimant brings the following claims: 2.1. Unfair dismissal; 2.2. Breach of contract for non-payment of notice pay; 2.3. Direct disability discrimination; 2.4. Discrimination arising from disability; 2.5. Failure to make reasonable adjustments for to accommodate disabilities; 2.6. Harassment related to disability; and 2.7. Victimisation.[3]For his claims of disability discrimination the claimant relies on the disabilities of Asperger’s Syndrome (“Aspergers”), Attention Deficit Disorder (ADD) and dyscalculia, depression and anxiety.[4]In summary, the claimant says he was mistreated by the respondent and this mistreatment was in some way related to or because of his disabilities. The factual allegations of mistreatment are set out in the list of issues below, which was agreed between the parties prior to the final hearing. There are factual allegations listed which are not referenced in the claim form; strictly, following the guidance in the case of Chandhok & Anor v Tirkey UKEAT/0190/14/KN they do not form part of the claimant’s complaints. However, for the reasons given orally on day 1 of the hearing, and summarised below, the Tribunal directed the claimant to make an application to amend his claim to include all factual allegations recorded in the agreed list of issues.[13]N 5. By an ET3 and Grounds of Resistance dated 23 November 2021 the respondent accepts that the claimant’s conditions satisfy the legal test of disability in section 6 of the Equality Act 2010, submitting that it treated the claimant as a disabled person at all material times. The respondent’s defence is that it supported the claimant with his disabilities, making appropriate adjustments. It denies the he was discriminated against, harassed or victimised due to these conditions, stating that the reasons he was dismissed was a finding of misconduct following an internal investigation, specifically that he reported a parking issue with a pizza van belonging to the partner of one of his colleagues when this was not within the remit of his role. The respondent considers that some of the complaints have been brought by the claimant outside of the strict time limits set by legislation. Early conciliation commenced on 22 May 2021 and an ACAS certificate was issued on 3 July 2021. Hearing process 6. The hearing was listed for 10 days. However the Tribunal was only able to sit for 9 days due to panel availability; parties were informed of this at the start of the hearing on day 1. 7. On day 1 we considered preliminary issues raised by the parties (where a decision of the Tribunal was required, this is recorded below). Mindful the claimant was not legally represented, we explained the structure of the hearing by reference to the draft timetable helpfully provided by the respondent’s representative. We followed the order of witnesses on this timetable. Mr Leach provided a detailed written skeleton argument at the outset. We suggested that the claimant and Ms Barnett read this during the time available for reading on day 1. The Tribunal took the remainder of day 1 as a reading day. Throughout the hearing the Tribunal gave an explanation of the process to ensure the claimant (mindful of his disabilities and the need for direction and structure), and his lay representative, had clear directions as to what was happening and why. 8. The claimant and respondent’s representatives were ordered to provide written closing statements (the claimant’s preference); both parties submitted their statements in time. 9. At the end of the hearing there was insufficient time in the hearing window for the Tribunal to make a decision and deliver an oral judgment to the parties. Therefore the Tribunal identified 19 July 2024 as a deliberation day and told the parties an oral decision would be given on 13 August 2024, asking the parties to notify the Tribunal as to whether they would attend by video link or in person. At the hearing Mr Leach confirmed the respondent’s attendance would be by video link. The claimant notified the Tribunal by email subsequently to confirm he would attend by video. However, he did not attend. Ms Barnett and the Panel attended in person. Evidence 10. Initially the claimant told the Tribunal he would represent himself, supported by his mother (Ms Barnett). After giving his own evidence he felt he was not able to do so and Ms Barnett acted as his lay representative, asking questions on the claimant’s behalf, at his direction initially and then without his direction when he did not attend the latter days of the hearing in person. The claimant gave evidence in person on days 2, 3, 4, 5 and by written questions, attending the Tribunal in person, on day 6 (the explanation for which is below). He did not attend the Tribunal centre for the remainder of the hearing, attending the remainder of the hearing intermittently by CVP to observe proceedings. 11. The claimant called evidence from Mr Assante, a PCSO colleague. On day 1 the claimant told the Tribunal that Mr Assante had been told by the respondent not to attend the hearing. There is no evidence before the Tribunal that this is the case. The claimant did not request a witness summons for Mr Assante. By day 7 Mr Assante had not attended the hearing. In the absence of any evidence to the contrary, we must conclude that it was Mr Assante’s decision not to attend the hearing. 12. The respondent was represented by Mr Leach of counsel, who called sworn evidence from: S Desrochers, C Burrows, H Handford, H Clancy, C Stevens, P Dobson, A Roberts and S Peart, all of whom are police officer colleagues who worked with the claimant. The respondent’s witnesses gave evidence on days 6, 7 and 8. The respondent requested that Mr Burrows give evidence by CVP, submitting medical evidence showed he had recently suffered a stroke. The claimant objected, telling us it would be unnerving for him if Mr Burrows gave evidence by video link. Mindful of the claimant’s disabilities, and of rule 2 of the Employment Tribunals Rules of Procedure 2013, and in particular the need for parties to be on an equal footing, we balanced the fairness to each party of allowing Mr Burrows to give evidence by video link. In this context, and the fact it was Ms Barnett and not the claimant himself who cross examined the respondents’ witnesses (with direction from the Tribunal mindful she was a lay representative) we concluded it was fair and just to allow Mr Burrows to give evidence by video link. In the event, the claimant decided to attend several days of the hearing by video link. 13. We considered the following documents: 13.1. An agreed hearing file of 2080 pages which the parties introduced in evidence; and 13.2. 80 pages of subject access documents introduced in evidence by the claimant on day 1 of the hearing. Mr Leach queried the relevance to the issues in dispute of some of these documents; however, the respondent took a pragmatic approach and did not object to the Tribunal admitting these documents as evidence. We admitted the documents, noting that it was for the claimant to identify during evidence or questioning of the respondent’s witnesses why he considers the documents relevant. Reasonable Adjustments[14]Mindful that the claimant has several disabilities, we consider it important to record the adjustments the Tribunal made (at the claimant’s request and on its own direction, taking account of the guidance in the Equal Treatment bench Book) to the hearing format.[15]The documents in the hearing file the claimant used for giving evidence were printed on yellow paper. This satisfied the only request for adjustments made by the claimant prior to the hearing. On day 1 of the hearing we agreed the following to ensure that the claimant could participate fully in the hearing and give his best evidence: 15.1. Mr Leach and the Tribunal would signpost the topic about which questions were being asked by reference to the record in the list of issues; 15.2. Mr Leach and the Tribunal would ask direct, singular, simply phrased questions; and 15.3. In doing so, Mr Leach and the Tribunal would refer the claimant to any relevant paragraphs in his witness statement and the hearing files, and wait until the claimant told us he had read the relevant parts, before asking the question.[16]We instructed the claimant that if he did not understand the question he should say so and Mr Leach or the panel member representative would rephrase the question. Allocating several days for the claimant’s evidence reflects that these reasonable adjustments were adhered to. The Tribunal took a break of at least 10 minutes every hour and additional breaks when requested by the claimant. We reviewed these arrangements with the claimant on each of the days he attended the hearing.[17]On day 4 we adjourned the hearing at 2pm as the claimant told us he was unable to continue with the hearing due to his disabilities. He told us he did not want to withdraw his claims. Therefore, we had to address how the hearing could continue given our concerns about the claimant. We asked the claimant if there were any additional adjustments to assist him giving his best evidence and discussed openly in the hearing with the claimant the options in the Presidential Guidance on Vulnerable Witnesses to identify any which may assist. Then we adjourned the hearing as it was clear that the claimant was unable to answer more questions that day, with a view to continuing cross examination the following morning once the claimant had had the opportunity to rest and consider whether any of our proposed adjustments would assist.[18]Subsequently he made a request in writing direct to the Tribunal (and not copied to the respondent as required by Rule 92 of the Employment Tribunals Rules of Procedure 2013) to have any remaining questions from the respondent set out in writing and to have some time to complete written responses. We note this request was made after the claimant had before distressed on day 4 of the hearing, placing his head in his hand, and telling us there were too many papers and he was confused. He told us he could not answer the questions and give evidence as he was thinking about what he should have said to the preceding question. In his request the claimant told us that due to his Asperger’s and ASC he has a slower processing speed which means that as he is answering a question he is still thinking about what he should have said in answer to the previous question. He also told us that he had been out of work for so long that he found it difficult to sit at a desk with so many files and papers in front of him and this exacerbated his anxiety.[19]Mr Leach objected to the request because the Tribunal had discussed the adjustments required at the case management hearings and at the outset of this hearing, all of which had been adhered to throughout, and the claimant had not mentioned a request for written questions, despite knowing how his disabilities impacted his processing speeds. Mr Leach reminded us that the obligation of a Tribunal to make adjustments is not without limits and the right to a fair hearing also applies to both parties. Mr Leach referred to the case of Rackham v NHS Professionals Ltd UKEAT/0110/15/LA as an example of when a Tribunal was correct to refuse a reasonable adjustment requested by a claimant, drawing analogies with the request before us. Mr Leach acknowledged that while it must be the case that the claimant has fair and proper access to justice, the appropriateness and fairness of the measure proposed must be judged by reference to both parties and with a view to proportionality.[20]We took a break to consider our position, review the President’s Guidance on Vulnerable Witnesses, the Equal Treatment Bench Book and consider the case of Rackham v NHS Professionals Ltd UKEAT/0110/15/LA. In reaching our decision, we were also mindful of the guidance in section 20 of and schedules to the Equality Act 2010 about the duty to make adjustments[21]We are satisfied that all reasonable adjustments required (and requested by the claimant) were in place at the outset of the hearing and the claimant was able to give his best evidence to the point at which he became distressed on day 4. He was able to do so as a result of Mr Leach and the Tribunal following a very structured approach to the questions, signposting topics at the outset, and change of topic, identifying by reference to the list of issues the issue to which the question relates, ensuring the claimant has the list in front of him and has read the issue; directing him to the relevant document and allowing him plenty of time to read the documents. Simple questions were asked in plain English. Where the claimant told us he did not understand the question, it was rephrased. The Tribunal assisted him with timelines and setting out chronology of events as he identified this as something he finds particularly challenging due to his disabilities.[22]We are mindful that it is incumbent on the Tribunal to ensure that the claimant can fully engage in the hearing process and be able to give his best evidence throughout the hearing. He was not able to do so with the adjustments in place when he became distressed on day 4. We are also mindful that the claimant has been hospitalised several times and on occasion displayed behaviour in the workplace, which resulted in paramedics being called, which started with the behaviour he displayed to the Tribunal on day 4 (heading he hands, sat rocking at the desk).[23]We are satisfied there are no capacity issues with the claimant. However, in the context of the adjustments in place and the deterioration in claimant’s ability to engage in the hearing, we decided to allow the additional reasonable adjustment of written questions and answers. We are mindful that this results in extra work (and cost) to the respondent but consider it a necessary step to ensure a fair trial is still possible for the claimant.[24]In reaching our decision to allow written questions, we have taken account of: 24.1. Article 13(1) of the UN Convention on the Rights of People with Disabilities 2006 which says: ‘States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages’; and 24.2. The guidance of a former president of the Employment Appeal Tribunal that “….the purpose of making an adjustment as being to overcome such barriers so far as access to court is concerned, in particular to enable a party to give the full and proper account that they would wish to give to the Tribunal, as best they can be helped to give it.”[25]We are mindful that the any adjustment must be proportionate and fair to both parties, ensuring expeditious disposal of proceedings. We consider the adjustment can be accommodated, albeit with some rescheduling, in the current hearing time. It may mean that written closing statements are ordered and judgment has to be given at a later date; indeed this was the case. The adjustment is required to ensure that the parties are on an equal footing. Having reviewed the case of Rackham v NHS Professionals Ltd we conclude the decision reached not to allow the claimant to answer written questions was based on sufficiently different facts; in that case the claimant also had Asperger’s syndrome and anxiety. However, he requested to answer the questions at home, something the which took the balance of fairness disproportionately away from the respondents.[26]The process was agreed as follows: 26.1. Mr Leach would use the remainder of day 5 of the hearing to prepare written questions for issues 8j to 8 m (noting that R accepts that the factual allegations at issues 8l and 8m took place as stated by C, but deny that these events amounted to discrimination) and the questions relevant to the legal claims for these facts. Mr Leach would send the questions to the Tribunal by no later than 9.45am on day 6; and 26.2. The claimant would attend the hearing centre on day 6. He would be in a room on his own, with the hearing files and witness statements, without a computer or phone. At 10am he would receive the list of questions, a pen and notepad and would have until 4pm that day to answer the questions. The adjustments about taking regular breaks applied. He acknowledged that he remained under oath and could not consult anyone about the questions or his answers. The available time would be limited to 4pm even if he had not answered all the questions. Indeed this was the case, something he raised concerns about in a further letter to the Tribunal. In order to ensure fairness for both parties, a proportionate approach must be taken. Written questions cannot be a means to circumvent the respondent’s right to ask (within a reasonable time) questions about the allegations made against it. The Tribunal consider that given the list of issues 3.5 days is sufficient time to hear the claimant’s evidence. It is often the case that not all of a party’s questions are asked and answered in the available hearing time. We consider there is no prejudice to either party as a result. The Tribunal panel and Mr Leach would be provided with a copy of the answers. Preliminary matters[27]During the hearing we considered the following applications, giving our reasons orally. Tribunal directed amendment to the claim[28]Mindful of the guidance in the case of Chandhok & Anor v Tirkey UKEAT/0190/14/KN and the facts that, following the case management hearing and prior to this hearing, the respondent’s solicitor agreed a list of issues which included complaints beyond those identified in the claim form, we directed the claimant to make an application to amend his claim to reflect the agreed list of issues. We explained the tests in the cases of Selkent Bus Company Limited v Moore [1996] ICR 836 and Vaughan v Modality Partnership UKEAT/0147/20/BA we must apply in considering whether to allow the amendment.[29]Mr Leach submits that this amendment does not resolve the issue with the case, telling us that the reasonable adjustments claim was not particularised even taking the allegation in the list of issues. The respondent has been represented by a solicitor from receipt of this claim. The solicitor agreed the list of issues, in the form included in this judgment. At no time since the case management hearing, or during the process of agreeing the list of issues or preparing its evidence, did the respondent raise concerns about a lack of particularisation to the claim. We are where we are. The Tribunal accepted an amended claim such that the claim it will consider is that recorded in the list of issues agreed by the respondent many months ago, before disclosure and witness statements. In this regard, there is no practical prejudice to the respondent of this amendment.[30]In allowing this amendment we noted that the case management order of Employment Judge Ord records that the list of issues was agreed by the parties in May 2022, both parties were represented at the May 2022 case management hearing and this list of issues has been in place since May 2022 (2 years ago). Neither party has raised any issue with list of issues in the 2 years since, until Mr Leach did on the first day of this hearing. The final hearing was due to take place in November 2023; it was cancelled at late notice due to lack judicial resource. Even then neither party raised an issue. Claimant’s request to amend claim[31]At the end of day 2 of the hearing (4 June 2024), and part way through the claimant’s evidence, the claimant made an application to amend his claim at paragraph 8(a) of the list of issues to change the reference to schizophrenia to paranoia. It is noted that this was in the context of it being put to him that there was no reference to schizophrenia in the evidence. Mr Leach objected to the timing of the application, submitting that the respondent would be prejudiced by this amendment as it had prepared its defence and evidence and the claimant was part way through giving evidence. We agree.[32]In refusing the claimant’s application we applied the Employment Appeal Tribunal’s (‘EAT’) guidance in the cases of Selkent Bus Company Limited v Moore [1996] ICR 836 and Vaughan v Modality Partnership UKEAT/0147/20/BA. Taking account of the fact that the list of issues was agreed between the parties in May 2022, that the claimant applied to amend the allegation part way through his evidence when it was pointed out to him he had not provided any evidence of schizophrenia, we consider the balance of prejudice favours the respondent who has prepared it’s evidence based on the allegation that the respondent accused the claimant of having schizophrenia. Practically an amendment at this stage in the proceedings would put the respondent at an evidential disadvantage.
Findings of fact
[33]Having already outlined the length of employment we turn now to our findings of fact regarding the events about which the claimant complains. Credibility[34]First we consider the credibility of the witnesses. We found the claimant keen to assist the Tribunal. However, often he did not answer the question put to him by Mr Leach and wanted to talk about things he says had happened which are not the subject matter of this claim. His written statement in response to the respondent’s questions and his written closing submission took a similar approach. In his closing statement he referenced legal tests not within the jurisdiction of the Employment Tribunal and not relevant to his claim. It is clear to us that the claimant, and Ms Barnett, feel that the claimant has suffered an injustice and mistreatment. We can only, and have assessed, this by reference to the complaints in his claim and law within the jurisdiction of the Employment Tribunals.[35]Generally we found the respondent’s witnesses’ evidence aligned with each other and the contemporaneous documents before the Tribunal. There was an exception, which we have addressed in our findings of fact below.[36]Where witnesses could not recall events we took account of the period of more than 4 years that has passed since the events are alleged to have taken place. Factual allegations[37]We turn now to the factual allegations made by the claimant. We have set out in the introduction the period of the claimant’s employment and his roles, which are not disputed. Occupational health (“OH”) referrals[38]First we address the occupational health referrals, which the claimant says were “unjustified” and “insinuated that he suffered from medical conditions such as prosopagnosia, schizophrenia and memory loss”. We have assessed the reasons given by the respondent for making the referral against the reasons why the claimant says the referrals were not justified. On this point the claimant offered little evidence (either in his witness statement or when he was asked this question by Mr Leach) as to why he says the referrals were unjustified and should not have been made, other than the fact he was referred several times. Indeed, the claimant introduces reasons in his closing written submissions as to why he says the referrals were unjustified, which were not reasons he gave to the Tribunal before or during the hearing. Therefore, we cannot consider these reasons as they did not form part of his claim, his evidence and the respondent has not had the opportunity to respond to these reasons. Therefore, we must focus on the reasons he gave during the hearing and not reasons introduced after both parties concluded their evidence. To consider the new reasons stated in the written submission would render the process unfair; if the Tribunal did so we would be making an error of law. In this regard, the case of Chandhok and Tirkey UKEAT/0190/14/KN and the quote referenced below is relevant.[39]We note that on 4 June 2024 the claimant withdrew his allegation that any of the referrals insinuated he suffered from schizophrenia. They do not.[40]We have considered the referral on 26 February 2018 by Mr Hodgson. This referral was made following an incident with face recognition and advice from Ms Nicholson of Action for Aspergers; it was she who raised that prosopagnosia was a possibility. This reason is clearly recorded in the referral form. The claimant has not provided any evidence to support his allegation that this referral and the reasons stated for it were unjustified. Mr Hodgson was following up on the advice of someone who was a specialist in the area of one of the claimant’s disabilities. We find that the referral was a reasonable, genuine and made for the reasons stated on the form.[41]The next referral takes place a year later. Ms Handford made a referral on 19 February 2019. The claimant alleges this referral was made to disrupt him, and to make him sit in a room for lengths of time, which he could not do due to his disabilities. He has not presented any evidence to support the allegation the referral was intended to disrupt him, nor did he complain this was the case at the time of the referral. The contemporaneous referral form references the fact that the claimant told his employer he experienced PTSD; when questioned by Mr Leach he admitted he had exhibited signs of PTSD in the workplace at that time. The referral also coincides with a refusal, accepted by the claimant, to attend a meeting the day the referral is made. Both reasons are clearly stated on the referral form to justify the referral. We find this referral was genuinely and reasonably made for the reasons stated on the referral form.[42]In evidence the claimant suggested that he was referred as Ms Handford knew there was a long waiting list and while he was waiting for a review he would not be in his usual role. He does not provide any evidence to the Tribunal of a long waiting list, or explain why he alleges Ms Handford knew of any wait. Nor is there any evidence the referral insinuated prosopagnosia or memory loss. Indeed the claimant accepted in evidence that the first reference to memory loss was 13 May 2019 so by chronology alone this could not have been inferred by this referral (or any referrals made before this date). The claimant accepted that prior to the referral, when he refused to attend the meeting, he was crying, hyperventilating, covering his ears, saying he couldn’t cope and banging his head. He also accepted that the respondent was justified when faced with an employee behaving in this way in the workplace to make an OH referral. We agree. We find the claimant was referred due to exhibiting signs of PTSD and as a result of this worrying behaviour exhibited to Ms Hanford.[43]The referral was to support not disrupt him. The record of referral does not contain any personal opinions of Ms Handford, nor any assumptions about the claimant’s behaviour or conditions. Observations are made based on events that were known to Ms Handford (that she had observed) and the claimant at the time of the referral. Mindful of all employer’s duty of care to all employees, it was incumbent on Ms Handford to make these observations to inform the referral and it is entirely natural and sensible for the person making the referral to explain why they consider the referral necessary. We find the referral was justified and made for the reasons stated on the form.[44]A further year passed between referrals. These separate referrals were not related, and were made for different reasons, there is no evidence on the forms or by reference to circumstances surrounding the referral that they of suggested the conditions the claimant alleges. We find that these are words imposed by the claimant in bringing this claim; they are not the respondent’s words.[45]The claimant was next referred on 24 July 2019 by Mr Desrochers, the respondent says following an incident on 13 July 2019 when the claimant accepted he had taken too much prescribed medication resulting, understandably, in concerns for his health and welfare. The referral was also after a meeting on 23 July 2019 to discuss his return to full time duties, at which he also became distressed. The claimant accepted this timeline.[46]The claimant told us it would have been nice to be asked rather than being referred again, and it was for this reason he told us in his oral evidence that he considered the referral unjustified. Given the severity of the situation at that time, and the claimant’s role as a PCSO, we find the respondent had a duty to refer, which does not require consent, and the referral was made as a result of the claimant’s actions which put his welfare, and potentially those of his colleagues, and the public, at risk. Again, the referral form accurately records the reasons for this referral, which reflect events at that time concerning his medication and wellbeing presentation. Indeed, the claimant accepted in oral evidence that the situation with his medication was the reason for the referral. There is no insinuation that the decision to refer was taken due to memory loss or prosopagnosia. It is not part of a series of linked referrals. Each of the referrals had a separate trigger, which was directly related to contemporaneous concerns about the claimant’s health and welfare, manifested in his worrying behaviour on each occasion.[47]At the hearing on 4 June 2024 the claimant accepted that the referral on 24 March 2020 by Ms Buckingham was justified, acknowledging that the referral was prompted by a domestic incident the claimant accepts took place on 17 March 2020 and an overdose he took at that time. This referral was entirely justified given the claimant’s actions and he accepted this in his oral evidence.[48]On 22 May 2020, a referral was made by Mr Desrochers prompted, the respondent says, by the claimant’s reaction at the end of a meeting he attended that day to assess his fitness to work in different roles. In evidence the claimant accepted that he was emotional at the end of this meeting; he also accepted that he had said in this meeting that there were aspects of the missing persons role that he found difficult. This accords with the reasons recorded by Mr Desrochers in the referral form. We find this was the reason for the referral. There is no evidence that the referral was insinuating memory loss of prosopagnosia. It was triggered by Mr Desrochers justified concerns about the claimant’s emotional wellbeing following the professional standards meeting. The reason triggering the referral is entirely separate and distinct from the previous referrals. With any employee exhibiting these behaviours, an employer has a duty to take appropriate action to address the concerns; we find this is what the respondent was doing in making the referral. We agree with the respondent that, in the circumstances, it was a manifestly appropriate referral.[49]The next OH referral was made by Ms Berry on 8 July 2020. In oral evidence the claimant accepted that this was a very difficult time in his home life and a period of the stress due to of his ongoing PSD investigation. We agree, This referral was appropriate and justified.[50]A final referral was made on 11 November 2020 by Ms Gibson. Again, the trigger for this referral is distinct from previous referrals. The reason stated on the referral is that OH input was required to determine whether the claimant was able to attend a misconduct hearing; this referral was supported by GP advice. There is no insinuation of the alleged health conditions in the referral. It is incumbent on an employer where an employee has known disabilities for the employer to seek professional advice where that employee is subject to misconduct proceedings, as the claimant was at this time. In oral evidence the claimant accepted that at this time there was new information and events (the misconduct hearing) which could not (by reason of chronology – the incident with the pizza van which trigger the misconduct investigation occurred after many of the OH referrals) been known at the time of previous referrals. Therefore, we find there was no link between this referral and prior referrals. The reason for this referral was the need to assess whether the claimant was well enough to attend a misconduct hearing. This is a justifiable reason; the respondent had a duty to fulfil in obtaining this advice before proceeding with the misconduct hearing, given by this time the claimant had made 3 attempts of his life, and in this context the GP had advised that OH input was necessary.[51]Having concluded each OH referral was separate and made for the reason stated in the referral document, which reflected events related to the claimant’s health and behaviour at the time of the referral, mindful of the respondent’s duty of care to all employees and the public, we find that there is no evidence to support the claimant’s allegation that the referrals were made in a targeted way to disrupt the claimant or that the referrals were used as a vehicle to place and keep him on restricted duties. Each referral states the reason for the referral by reference to the contemporaneous behaviour of the claimant which had caused the respondent concerns for his welfare. These events were discrete, happening on separate occasions. The reasons are clearly recorded in the contemporaneous referral requests and align with the evidence about the reasons for referrals in the respondents’ witness evidence.[52]Balancing the claimant’s perception the referrals were aimed at disrupting him and ensuring he was placed on restrictive duties, with the reasons articulated by the respondent, we find that none of the referrals had this aim nor did they insinuate any of the medical conditions he suggests. Given the claimant’s deteriorating mental health through this period, it was vital that the respondent obtained expert opinion at each trigger point to ensure it satisfied the duty of care all employers have a duty to all employees and, particularly in the case of this employer, the public. Faced with employee who had deteriorating mental health conditions, we find that the referrals were made in line with all employer’s duty of care, to any individual employee experiencing difficulties, their colleagues and the public. Restrictive duties[53]The claimant does not identify the period for which he says he was placed on restrictive duties. He was unable to identify the period in oral evidence. It was the respondent which suggested to the Tribunal that the period is pre June 2020. We agree on the basis that the claimant makes a separate allegation for the period from June 2020, which we address separately.[54]We have considered the timeline; the claimant was placed on office duties on 19 February 2019 following a serious incident on duty after which the respondent sought OH advice as the claimant’s senior officer did not consider the claimant’s assessment of risk satisfactory, concluding he put himself and potentially others (colleagues and the public) at risk. This was proper and responsible action by an employer with a duty to the public where there is any concern an employee is unable to carry out public facing duties. During this time the claimant was restricted in his duties.[55]Once OH advice was received (on 14 March 2019) and reviewed, the claimant was returned to normal duties on 5 April 2019 following completion of safety training. We find this limited period of restrictive duties (about 3 weeks) was justified (noting that the claimant does not advance a reason as to why the length of restrictive duties is unjustified) to allow the respondent to obtain professional input from OH and follow up on any advice received, thus ensuring the claimant completed safety training. We find that the respondent acted within a reasonable time and with responsible action to return the claimant to normal duties.[56]During July 2019 the claimant was placed on restrictive duties for 1 month, 3 weeks of which he was on annual leave. This 1 week of actual restrictive duty was requested by a senior officer (a Chief Inspector) to allow the claimant’s managing officer, Mr Desrochers, to look into the reasons that led to the claimant being restricted. Again, for an employer with duties to all employees and the public, this was a reasonable and necessary step. The timeline evidences that the respondent acted quickly; Mr Desrochers investigated the incidents, and the claimant was returned to his normal duties after a month (3 weeks of which he was on annual leave).[57]Furthermore, on 17 July 2019 the claimant was told the reason he was being placed on restrictive duties (pending the outcome of an OH referral requested as a result of a period of sick leave following a domestic incident on 13 July 2019). We find that the claimant was told, and confirmed in an email, that he accepted the reasons for the restriction. Again, on receipt of the OH advice on 5 August 2019 the claimant was returned to frontline duties.[58]In the claimant’s closing written submissions, the claimant suggests he should have been redeployed. This is not something the claimant raised in his claim nor something he gave evidence about. He does not provide any details of when and how he should have been redeployed and whether he raised this with the respondent at the time. Bearing in mind the case of Chandhok and Tirkey UKEAT/0190/14/KN. The approach taken by the claimant in this case echos that the EAT noted is not permissible, specifically that “……such an approach too easily forgets why there is a formal claim, which must be set out in an ET1. The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1.….Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute. . In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it……”[59]Quite simply, the claimant cannot rely on something in his closing statement which he is not addressed in his claim form. In our judgment, moving to restrictive duties was a deployment in any event.[60]Indeed, it is a matter of undisputed fact that after the claimant was served with the gross misconduct notice on 31 January 2020 he received a Reasonable Instruction moving him to a different role, on the same day (initially to Emergency Services Cadets, then to MPU), pending the outcome of the gross misconduct investigation. The fact he was subject to a misconduct investigation was the reason for restricting his duties at that time. There is no evidence that the decision to do so was related to his disabilities. Unattainable deadlines[61]The claimant’s claim that unattainable deadlines were placed on him does not contain any details as to when these deadlines were imposed, by whom or why they were unattainable, despite several opportunities to provide this information (in his claim form, witness statement, oral and written answers). There is no evidence of the claimant complaining about deadlines during his employment. Therefore, we must conclude the deadlines to which the claimant was required to work were attainable. Role with Wellingborough Neighbourhood Team[62]The claimant alleges that from June 2020 the respondent refused to let the claimant resume his role on the Wellingborough Neighbourhood Team (“WNT”) and his regular frontline duties. In oral evidence the claimant accepted that the reason he was on restricted duties at this time was the PSD investigation into the allegation of misconduct and not because he was not fit to carry out these duties. Indeed, the claimant said himself, and acknowledged at the hearing, and the respondent acknowledged at the time, that he was medically fit at this time. His fitness to work on the WNT was not in dispute, as evidenced by the OH reports around this time where he is assessed as fit (11 May 2020 and 1 June 2020 note the claimant was fit for his front line duties; and 8 August 2020 which records that the claimant’s stress at that time was primarily caused by the PSD investigation). The decision to not to allow him to return had nothing to do with his disabilities. Our finding based on this professional advice is the reason the claimant was not allowed to return to the WNT team was because he was subject to an investigation into alleged gross misconduct involving dishonesty and his senior officers decided he should not return to front line duties where he was in contact with the public while the misconduct investigation was ongoing. We find this a fair and genuine, indeed necessary, decision.[63]The claimant drew a comparison with PCSO Burrows who was also under a PSD investigation at this time but who was not placed on restricted duties. We have considered the documentary evidence setting out the reason for the investigation into PCSO Burrows. The investigations into the claimant and PCSO Burrows do not warrant comparison as they are materially different; PCSO Burrows admitted he had committed misconduct, the respondent did not. The allegation made against and accepted by PCSO Burrows did not concern issues of integrity or dishonesty. The allegation against the claimant did. PCSO Burrows’ duties were not restricted as there was no dishonesty element to the allegation made against him. The claimant’s duties were restricted as an allegation of dishonesty was integral to the investigation against him. Neither decision was reached because of the claimant’s disabilities; the decision centred on whether there was dishonesty in the respective misconduct investigations. Table and chair incident involving PCSO Dobson[64]The PSD investigation found that PCSO Dobson did grab the claimant and push him under a table. We have reviewed the documents from this investigation. It was thorough, concluding that while the conduct was not appropriate it did not constitute dismissal conduct as there were a group of colleagues engaging in high jinx, all of whom the investigation concluded were willing participants.[65]Given the detail of the witness evidence taken contemporaneously in the PSD investigation and the respondent engaged in due process we find that PCSO Dobson did push the claimant under a table, notwithstanding PCSO’s Dobson’s evidence to the Tribunal, under oath, that he did not do so. His evidence to us is at odds with his evidence to the internal investigation. He told us “no, I did not push him under table”, which is totally at variance with PSD finding. We find that investigation was robust, documented and the investigation’s conclusion that PCSO Dobson did push the claimant under the table correct. Such discrepancy calls into question the credibility of PCSO Dobson’s evidence to this Tribunal. We find he is not a credible witness.[66]We turn now to the claimant’s allegation that PCSO Dobson tied the claimant to a chair and fastened his mouth using police evidence tape. Having regard to the credibility of Dobson as a witness, while we are not satisfied that this incident did not take place, we must have due regard to the claimant’s own evidence at the time it allegedly happened. We have seen emails from the claimant in June 2022 that he could not recall this happening. This begs the question why he does recall it happening when giving evidence to a Tribunal 2 years later.[67]Therefore, disregarding the unreliable evidence of PCSO Dobson and balancing what the claimant says now with what he said at the time of the PSD investigation, on balance, we must conclude that the incident did not take place as alleged not least that the claimant himself on 2 occasions could not attest to the internal PSD investigation that it did happen and in a contemporaneous email he said he could not remember what happened. Simply, the claimant has not discharged his burden and proved on his evidence presented to this Tribunal that this happened, not least as his own evidence closer in time to the alleged event is that it did not. Hospital visits[68]We do not need to consider the claimant’s allegations about the respondent’s conduct while his sister was in hospital. Having reviewed the timeline of events when questioned by Mr Leach, the claimant accepted that the events did not occur in the manner and timeline suggested by the claimant, and on 5 June 2024 he withdrew this factual allegation. Alleged remarks that the claimant was paranoid, that it was “all in his head” and being mocked for the use of his “little book” to take notes.[69]The claimant alleges the respondent made remarks he was paranoid. Neither in his ET1 claim form, the Particulars of Claim nor the list of issues, did the claimant identify who made the remarks, what they said and when. The first reference to paranoia is in the claimant’s witness statement but when given the opportunity by Mr Leach the claimant could not recall any details. There is no documentary evidence any remarks were made by the respondent’s managers and employees. The claimant has failed to discharge his burden to show the remarks were made. That is because they were not.[70]In his witness statement the claimant alleges that in a meeting on 19 February 2019 Ms Handford said “it was all in his head”. She denies saying this. The claimant did not complain about a comment at the time; the first reference is the claimant’s witness statement (mindful of the case of Chandhok v Tirkey we note this allegation is not referred to in the claimant’s particulars of claim ) and he could not corroborate the allegation such as the subject matter of the conversation during which this was said. Based on our assessment of the claimant’s recollections, in that he recalls things at the hearing which he could not recall at the time of the alleged event, we find this was not said by Ms Handford. Had it been and the claimant was concerned, it would be something he could have raised as part of the PSD investigation when he raised other concerns, or he would be able to recall the context of the conversation. He did not and cannot.[71]Similarly the claimant has not presented facts to the Tribunal (who, what was said, when) to support his allegation that he was mocked for using a little book to take notes. There is no evidence that any of his colleagues mocked him about this. We have considered the notes of all meetings between the claimant and the respondents’ managers / employees; none contain any of the comments or words that can be interpreted as such (even taking the claimant’s case at its highest and applying a generous interpretation). Length of misconduct process[72]The claimant alleges that the misconduct process started on 7 November 2019 and was “drawn out” for 14 months by the respondent. The contemporaneous documents we have seen evidence that the claimant was served with misconduct papers commencing the investigation on 31 January 2020.[73]We have considered the respondent’s log of the investigation. We have seen that documents available to the investigation were shared with the claimant’s representative on 5 May 2020. The claimant was interviewed on 21 May 2020. The Investigation Report was completed on 28 July 2020 and the claimant was informed that he would appear before a misconduct panel on 4 August 2020. Uncertainty as to the claimant’s fitness to attend this hearing delayed the process as the respondent decided medical input was required to determine whether the claimant was well enough to attend the misconduct panel hearing.[74]Given the claimant’s disabilities, we consider this a necessary and reasonable decision. Upon receipt of medical advice the respondent decided to adjourn the misconduct panel, after which the claimant was admitted to hospital (12 December 2020) and signed off sick for the period 30.Decemebr 2020 to 1 February 2021. The misconduct panel could not reconvene until the claimant was sufficient well to attend. He returned to work on 1 February 2021 and the misconduct panel hearing took place on 24 March 2021. The written outcome, upholding the allegation of misconduct was issued on 26 March 2021.[75]While this amounts to a period of 14 months, there is no evidence before the Tribunal that the respondent deliberately extended the period of time for the investigation. Some of the delay was due to concerns about the claimant’s health, and the need to seek medical input, as well as the claimant’s absence on sick leave. Given the seriousness of the allegation, and the possible tariff (dismissal) it is incumbent on an employer to ensure that the process is fair and robust. Due to the claimant’s disabilities, an additional duty is added to ensure the claimant is fit to participate in the process, hence the OH referral. This is standard procedure and expected of all employees. Misconduct process / outcome and consequential action by the respondent[76]The respondent did uphold the misconduct charges and dismiss the claimant. We have read the transcript of the misconduct panel hearing and the documents prepared by the claimant for this, setting out his position. We have considered the documents in the bundle prepared for the panel misconduct hearing. The claimant was given the opportunity to put his case in response to the misconduct allegation during the initial investigation interview, subsequently in writing on 3 occasions and in person to the panel. The claimant accepted he had union support available to him during this process. The respondent gave the claimant reasonable notice of the hearing and took steps by seeking medical advice to ensure he was fit to participate (delaying the hearing to ensure this was the case) and adjustments were made to accommodate his disabilities.[77]The hearing panel concluded that, based on the evidence before it, and applying the balance of probabilities, it was more likely than not that the claimant knew the pizza van belonged to PCSO Burrows’ partner; this led the hearing panel to conclude that the contents of the email dated 7 November 2019 the claimant sent to ELVIS, making the internal report, were dishonest and the report was premeditated.[78]The claimant has not offered any evidence to contradict this finding. The documents before us evidence that the internal investigation was robust; it followed due process. We respect the conclusion of the contemporaneous investigation; the respondent had a genuine belief, based on reasonable grounds (contemporaneous evidence) to reach it’s conclusion that the report that the claimant was aware that PCSO Burrows’ partner owned the pizza van and, therefore, his report to ELVIS was dishonest. In his evidence to the misconduct hearing panel the claimant does not cite his disabilities as a reason for his behaviour. The decision to dismiss was based on the misconduct panel’s conclusion that the email was dishonest; there is no evidence it was informed by or related to the claimant’s disabilities.[79]When the respondent received a vetting check from British Transport Police (“BTP”) on 8 January 2021 it had a duty to reply honesty and confirm the claimant subject to a misconduct process. We find this is the reason the respondent provided this information was the fact that the claimant had received a conditional offer from BTP on 7 July 2020. One condition was that vetting checks must be completed. This condition triggered BTP’s enquiry. The respondent had a statutory duty to respond to BTP’s request and to provide the information it did. On 23 February 2021 the claimant was told that vetting checks could not be completed because the claimant was the subject of a misconduct investigation. Therefore we find that the claimant knew the reason the information was required and the BTP job could not proceed. There is no evidence before us that the provision of information was in any way related to his disabilities.[80]It also had a duty to inform the College of Policing when the misconduct allegation against the claimant was upheld. This duty applies to all serving officers, whether or not they have disabilities. Had an allegation of misconduct been upheld against a PCSO who did not have the claimant’s disabilities, they would have been treated in the same way. The positive finding of misconduct and dishonesty resulted in the College of Policing placing the claimant on the barred list. .[81]Prior to the hearing, parties had agreed a list of issues (pages 50 – 53 of the hearing file), as follows: Issues[82]Unfair dismissal, s.98 ERA 1996 1. What was the reason for dismissal? 2. Was this a potentially fair reason? 3. If, as the Respondent contends, the reason was misconduct, then:a. Did the Respondent have a genuine belief that the Claimant had committed that misconduct?b. If so, was such belief based on reasonable grounds?c. In forming its view, did the Respondent carry out as much investigation as was reasonable? 4. Was the dismissal procedurally fair? 5. Was the dismissal fair in all the circumstances? Wrongful dismissal 6. Did the Claimant in fact commit gross misconduct and thereby forfeit his right to receive contractual notice? Disability, s.6 EqA 2010 7. It is agreed that the Claimant was at all material times a disabled person by reason of Asperger’s Syndrome, Attention Deficit Disorder, dyscalculia and depression/ anxiety. Factual allegations of mistreatment 8. Did the Respondent subject the Claimant to the following treatment: a. Make a series of unjustified referrals to Occupational Health and insinuating that the Claimant suffered from medical conditions such as prosopagnosia, schizophrenia and memory loss (GoC §6a). b. On 19 February 2018, PC Handford making a referral to Occupational Health in which she stated her own opinions and assumptions about the Claimant’s disability and his risk to the Respondent (GoC §6b). c. Place the Claimant on restricted duties (GoC §6c).d. Impose unattainable deadlines (GoC §6d).e. From June 2020 onwards, refuse to let the Claimant resume his role on the Wellingborough Neighbourhood Team (GoC §6e) and his regular frontline duties (GoC §6f).f. PCSO Dobson grabbed the Claimant and pushing him underneath a table and other officers taking photographs (GoC §10a).g. PCSO Dobson tied the Claimant to a chair and fastening his mouth using police evidence tape (GoC §10b).h. Refuse the Claimant time off to visit his sister in hospital (GoC §10c).i. remarks that the Claimant was paranoid, that it was “all in his head” and repeatedly mock him for using his “little book” to take notes (GoC §10e).j. On or around 7 November 2019 start a misconduct process and thereafter drawing it out for some 14 months (GoC §10g).k. On 24 March 2021, uphold the misconduct charges and dismiss the Claimant (GoC §§16 and 21).l. Inform the British Transport Police’s vetting team that the charges had been upheld, resulting in their retraction of the job offer.m. Inform the College of Policing of the dismissal, resulting in the Claimant being placed on the police barred list. Direct discrimination section 13 EqA 9. In respect of the allegations above, did the Respondent treat the Claimant less favourably than it did treat or would have treated a non-disabled person? a. For all the allegations, the Claimant relies upon a hypothetical comparator. b. Additionally, for allegation 9.e. (removal from frontline duties), the Claimant also relies upon an actual comparator, PCSO Burrows (GoC §6g), who was not removed from duties pending an investigation into his misconduct. In respect of each 10. If so, was the less favourable treatment because of the Claimant’s disability? Discrimination arising from disability, s.15 EqA 2010 11. In respect of each of the allegations above, did the Respondent treat the Claimant unfavourably because of something arising in consequence of his disabilities. Specifically, the “something arising” was: a. The Claimant’s difficulties with interacting with others and reading social situations; b. His perceived awkward personality; c. His need to make written notes to aid him in remembering tasks. Harassment, s.26 EqA 12. Did the allegations at para.9 above constitute unwanted conduct by the Respondent? 13. Did that conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? (Due regard is to be had to the Claimant’s perception, the circumstances of the case and whether it was reasonable for the conduct to have the effect. 14. Was such conduct related to disability? Victimisation, s.27 EqA 15. Did the Claimant do one or more protected acts, namely: a. complain that the Respondent was failing to make reasonable adjustments on account of his disability? b. On 12 January 2021 file a grievance complaining about discrimination and bullying (GoC §12)? 16. Because he did those protected acts, did the Respondent subject the Claimant to detriments, specifically the treatment identified above? Failure to make reasonable adjustments, s.21 EqA Was the Claimant subjected to a provision, criterion and/or practice which placed him at a substantial disadvantage and in respect of which reasonable adjustments should have been made? Jurisdiction 17. Do any of the claims relate to acts or omissions that occurred more than 3 months prior to the complaint having been brought? 18. If so, do such acts or omissions form part of conduct extending over a period of time; and if so, when did that period end? 19. In relation to any complaints that are prima facie out of time, is it just and equitable to extend time? Remedy 20. If the Tribunal finds that there was discrimination in any respect, what is the appropriate remedy in terms of: a. Declaratory relief b. Recommendations c. Compensation for financial and non-financial losses?
Relevant law
[83]We set out below the legal tests applicable to this claim. Time limits: section 123 Equality Act 2010[84]Section 123 of the Equality Act 2010 (“EqA”) sets the time limits we must apply where a claimant brings a claim for discrimination pursuant to the protection offered by the EqA. Section 123 provides: (1)Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. (2)Proceedings may not be brought in reliance on section 121(1) after the end of— (a)the period of 6 months starting with the date of the act to which the proceedings relate, or (b)such other period as the employment tribunal thinks just and equitable. (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[85]The ACAS early conciliation procedure covers discrimination claims. The primary time-limit is within 3 months of the discriminatory action. If the claim is late, the tribunal has a ‘just and equitable’ discretion under s123(1)(b) to extend time. In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, the Court of Appeal held that ‘an act extending over a period’ can comprise a ‘continuing state of affairs’ as opposed to a succession of isolated or unconnected acts. There needs to be some kind of link or connection between the actions. Unfair Dismissal: Employment Rights Act 1996[86]Section 94 of the Employment Rights Act 1996 (the ‘1996 Act’) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that he was dismissed by the respondent under section 95. This is also satisfied by the respondent admitting that it dismissed the claimant (within section 95(1)(a) of the 1996 Act).[87]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98: 87.1. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Where this is in dispute, an employer bears the burden of establishing that it had a potentially fair reason for dismissing its employee. The potentially fair reason must be capable of justifying the dismissal (Abernethy v Mott Hay Anderson [1974] ICR 323) 87.2. Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[88]Section 98(4) of the 1996 Act deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[89]Here the respondent replies on the reason of misconduct. Where the reason for dismissal is misconduct, Tribunals should have regard to the well-established guidance in British Home Stores v Burchell [1978] ICR 303. We have not felt it necessary to include the often-cited passage from Arnold J’s Judgment in Burchell. The Tribunal must decide whether the employer held a genuine belief on reasonable grounds, and after carrying out a reasonable investigation, that the employee was guilty of misconduct. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed. It is immaterial how the Tribunal would have handled the events or what decision it would have made. The employer, and not the Tribunal, is the proper person to conduct the investigation into the alleged misconduct. Burchell and countless decisions since have served as a reminder that a Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439 and Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23). The employer is the primary fact finder; the Tribunal’s role is to review the facts evident during the disciplinary process, not what may be raised at a later date (Fuller v The London Borough of Brent [2011] EWCA Civ 267, at [32] of Cossington).[90]The case of Iceland Frozen Foods is similarly long-standing authority that reminds Tribunals that their function is to decide whether in the particular circumstances the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. The question for the Tribunal is whether the employer acted fairly and reasonably in all the circumstances at the time he was dismissed (London Ambulance Service NHS Trust v Small 2009 IRLR. In Sainsburys Supermarket Ltd v Hitt [2003] IRLR 23 CA, the Court of Appeal confirmed that the band of reasonable responses applies to both the procedures adopted by the employer as well as the dismissal. Ultimately a Tribunal must consider, on the facts of the case, no reasonable employer in the respondent’s position would have dismissed the claimant (British Leyland (UK) Ltd v Swift [1981] IRLR 91). The Tribunal cannot and must not ask whether a lesser sanction would have been appropriate.[91]The Tribunal must consider the whole process when determining fairness, notwithstanding any potential deficiencies (Taylor v OCS Group Ltd [2006] ICR. A Tribunal must consider whether any defect is so significant as to render the whole process unfair, considering equity and the substantial merits of the case to balance the seriousness of the misconduct and any procedural imperfections.[92]The compensatory award if a claim of unfair dismissal is successful must be ’just and equitable’. As a result of the decision in Polkey v AE Dayton Services Ltd [1987] IRLR 503 a Tribunal may reduce the compensatory award to reflect the chance that the claimant would have been dismissed in any event had the dismissal followed a fair process. If, in reaching its conclusions, the Tribunal identifies a deficiency with the process such that it concludes the dismissal was unfair, the Tribunal must assess whether this deficiency made a difference to the overall outcome. The assessment as to the percentage likelihood of dismissal without the defect is by reference to the actual employer in the claim. To substitute the Tribunal’s own mindset is an error of law. Breach of contract: notice pay[93]A claimant is entitled to any notice pay due under the terms of their contract of employment. If the Tribunal decides that a claimant is fairly dismissed by reason of misconduct, that claimant is not entitled to notice pay. Direct race discrimination related to disability: section 13 Equality Act 2010[94]Under section 13 EqA direct discrimination is defined as: “(1) 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.”[95]The protected characteristics are set out in section 4 EqA and includes race, sex and disability. Direct discrimination occurs where the employer treats the employee less favourably because of a protected characteristic.[96]We consider the following parts of section 13 EqA relevant to this claim: (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. ….. (8)This section is subject to sections 17(6) and 18(7).[97]Section 23 of EqA provides for a comparison by reference to circumstances in a direct discrimination complaint. The Tribunal must consider whether the employee was treated less favourably than they would have been treated if they did not have the protected characteristic. One way of testing whether or not the employer would have treated them better if they did not have the protected characteristic is to imagine a “hypothetical comparator”. There is no actual comparator in this case; therefore, the test of hypothetical comparator is applied. The circumstances of a comparator must be the same as those of the claimant, or not materially different: see section 23 of EqA. The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board [2012] UKSC 37.[98]The important thing to note about comparators (whether actual or hypothetical) is that they are a means to an end. The crucial question in every direct discrimination case is: What is the reason why the claimant was treated as she was? Was it because of the protected characteristic? Or was it wholly for other reasons? It is often simpler to go straight to that question without getting bogged down in debates over who the correct hypothetical comparator should be: Shamoon v Royal Ulster Constabulary [2003] UKHL 11.[99]The Tribunal must consider the “mental processes” of the alleged discriminator: Nagarajan v London Regional Transport [1999] IRLR 572. The protected characteristic need not be the only reason for the less favourable treatment. It may not even be the main reason. Provided that the decision in question was significantly (that is, more than trivially) influenced by the protected characteristic, the treatment will be because of that characteristic and discrimination would be made out.[100]The burden of proof provisions are contained in section 136 of EqA: (2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene that provision.[101]Section 136 prescribes two stages to the burden of proof: Stage 1 (primary facts) and Stage 2 (employer’s explanation). At Stage 1, the burden of proof is on the claimant Ayodele v Citylink Ltd & Anor [2017 EWCA Civ 1913. Stage 2 considers the employer’s explanation. Has the employer proved on the balance of probabilities that the treatment was not for the proscribed reason. In a direct discrimination case, the employer only has to prove that the reason for the treatment was not the forbidden reason. There is no need for the employer to show that they acted fairly or reasonably.[102]The Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142 sets out guidelines on the burden of proof. Therefore, the process a Tribunal must follow is: 102.1. Establish if there are facts from which a Tribunal can determine that an unlawful act of discrimination has taken place; 102.2. If the Tribunal concludes that there are, the burden of proof shifts to the respondent to provide a non-discriminatory explanation for the conduct.[103]Specifically, Mr Leach asked us to consider the guidance about applying the burden of proof in Efobi v Royal Mail Group Ltd [2021] IRLR 811 (SC) applies. In particular: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that … the respondent had committed an unlawful act of discrimination” (per Mummery LJ in Madarassy at para.56; endorsed in Efobi at para.46).[104]We were also directed to the following cases relevant to the consideration of this complaint. 104.1. Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (HL); 104.2. Nagarajan v London Regional Transport [1999] IRLR 572 (HL): 104.3. B v A [2007] IRLR 576 (EAT); and 104.4. Igen Ltd v Wong [2005] IRLR 258 (CA) and Madarassy v Nomura International plc [2007 IRLR 246 (CA)[105]Mr Leach submitted that what is in issue in this case is whether the protected characteristic materially operated on the mind of the relevant decision maker, asking us to consider CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 (CA). Discrimination arising in consequence of disability: section 15 Equality Act 2010[106]Section 15 of 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 disability.[107]We were referred to and considered the case of Pnaiser v NHS Business Services Authority [2016] IRLR 170 (EAT) and the “material influence” test again which we note applies by reference to the relevant “something arising in consequence of disability” rather than the protected characteristic itself, noting a test of “but for” causation does not apply.[108]In assessing any objective justification put forward by an employee and whether the relevant treatment must be a proportionate means of achieving a legitimate aim. We applied the guidance in Homer v Chief Constable of Yorkshire Police [2012] ICR 1287 (SC) (per Baroness Hale at para.22). Harassment related to disability: section 26 Equality Act 2010[109]Section 26 EqA provides: (1)A person(a) (A) harasses another(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.[110]In considering assessing whether alleged conduct is “related” to the relevant protected characteristic on the facts (here disability) we are mindful of the guidance in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495 (EAT), that there must: “be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be” (per HHJ Auerbach at para.25)[111]In considering the words “intimidating, hostile, degrading, humiliating or offensive” a Tribunal must be sensitive to the hurt comments may cause but balance so as 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. Where a claim for harassment is brought on the basis that the unwanted conduct had the effect of creating the relevant adverse environment, section 26 has been interpreted as creating a two-step test for determining whether conduct had such an effect; Pemberton v Inwood [2018] EWCA Civ 564. The steps are: 111.1. Did the claimant genuinely perceive the conduct as having that effect? 111.2. In all the circumstances, was that perception reasonable? Failure to make reasonable adjustments for disability: sections 20 and 21 Equality Act 2010[112]Section 20 EqA sets out the duty on an employer to make adjustments; the duty comprises the following three requirements. ….. (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. Section 21 provides: (1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[113]In the case of Mr J Hilaire v Luton Borough Council [2022] The Court of Appeal held that, however widely and purposively the concept of a PCP was to be interpreted, it did not apply to every act of unfair treatment of a particular employee. All three words ("provision", "criterion" and "practice") carried the connotation of a state of affairs indicating how a similar case would be treated if it occurred again; although a one-off decision or act could be a practice, it was not necessarily one. A one-off act in respect of an individual employee is not capable of constituting a valid PCP. It must at least be possible to find on the evidence that the PCP identified would hypothetically be applied to others Ishola v Transport for London [2020] IRLR 368 (CA) at paragraphs 35-39.[114]It is necessary for the employer to have actual or constructive knowledge not only of the relevant disability, but of the relevant substantial disadvantage as well: Wilcox v Birmingham CAB Services Ltd (23.6.11, UKEAT/0293/10/DM); Secretary of State for Work and Pensions v Alam [2010] IRLR 283 (EAT). the substantial disadvantage of “stress” is not something that it will generally be reasonable to have to make adjustments for, due to its wholly subjective nature (Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 (CA), per Elias LJ at para.68). Victimisation: section 27 Equality Act 2010[115]Section 27 EqA provides: (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.[116]A detrimental act will not constitute victimisation, if the reason for it was not the protected act itself, but some properly separable feature of it. There is no requirement that the circumstances be exceptional for such a case to arise: Page v Lord Chancellor and anor [2021] IRLR 377 (CA), per Underhill LJ at paras.55-56. Analysis & conclusions[117]In analysing whether the complaints of discrimination proceed we direct ourselves that we only need to consider factual allegations we have found took place. Quite simply, if something did not happen as a matter of fact, it cannot be a discriminatory act. Complaints of Discrimination[118]The factual allegations recorded in the list of issues which did not take place as alleged by the claimant are set out below. OH referrals – we have not accepted the claimant’s factual allegation[119]Either we have found the referrals were justified, for the reasons stated in the forms, or the claimant has accepted the referral was justified. There is no discrimination arising from disability. While the claimant felt, and still feels, aggrieved by the referral, the way he was treated was not less favourable. Any PCSO displaying the same treatment would have been referral to OH. As we have found the referrals were justified, it is inconceivable that the referrals amount to less favourable or unfavourable treatment and therefore the claims of direct discrimination and discrimination arising from disability must fail.[120]The referrals reasons are stated, none of which relate to the way the claimant interacts with others or reads social situations, his perceive awkward personality (he says) or his need to make written notes. The reason given for the referrals do not satisfy the legal test for a complaint of harassment. We have found the claimant was referred because of the behaviour he was presenting and the concerns for his health, as reasoned in the OH referral forms. While the referrals may have been unwanted by the claimant, we have found the reasons for them were not related to his disabilities but as a result of concerns about his behaviour. It does not matter of the incidents of behaviour were related to his disability; that is a separate issues. In any event, we have found the referrals were objectively necessary given the claimant’s behaviour at the time of each referral for his own wellbeing and those of colleagues and the public. Therefore the claim of harassment must fail.[121]Chronology alone determines that the OH referrals cannot form the basis of a claim for victimisation. All the referrals predate the “protected act” on which the claimant relies (the submission by the claimant of a grievance on 12 January 2021). Therefore, the OH referrals cannot be a consequence of the claimant raising a grievance. Unattainable deadlines – we have not accepted the claimant’s factual allegation[122]We have found that there is no evidence before the Tribunal that the respondent imposed unattainable deadlines. As this did not happen, it cannot amount to discrimination. WNT – we have not accepted the claimant’s factual allegation[123]We have found that the reason the claimant was kept way from his front line duties in the WNT was that he was subject to a misconduct investigation involving an allegation of dishonesty. We have found this decision did not relate to his disabilities, the OH report having confirmed he was fit to return to these duties.[124]We conclude that the claimant was not treated less favourably than PCSO Burrows, the comparator on whom he relies in his claim of direct discrimination. We have found the decision concerning PCSO Burrows’ duties does not warrant comparison. The claimant is comparing apples and pears. The allegation against him was founded in dishonesty; the allegation against PCSO Burrows was not. The decision had nothing to do with the claimant’s disabilities, it was for a legitimate reasons pending the outcome into an investigation of dishonesty. The claim of direct discrimination fails.[125]It would be wholly inappropriate for someone subject to an allegation of dishonesty to be placed on front line duties. Indeed, given the allegation it would have been reasonable for the respondent to suspend the claimant. We conclude there was no unfavourable treatment. It was within the discretion of senior officers to decide that a junior officer should not be in contact with the public (as the role in the WNT required) while they are subject to an investigation of dishonesty. This is a reasonable decision, safeguarding the public. This decision had nothing to do with the claimant’s disabilities or the reasons he states in his complaint of discrimination arising from disability (the way the claimant interacts with others or reads social situations, his perceive awkward personality (he says) or his need to make written notes). Therefore the claim of discrimination arising from disability must fail.[126]The claim of harassment also fails; we have not found any evidence that the decision to not allow the claimant to return to WNT was related to his disabilities. The only reason the claimant was not allowed to return to WNT was the fact he was subject to a misconduct investigation involving an allegation of dishonesty.[127]Refusing to return the claimant to WNT cannot amount to victimisation as the protected act (the grievance) postdates the restriction and therefore cannot be the reason for it. Chair incident – we have not accepted the claimant’s factual allegation[128]We have found that the claimant was not tied to a chair. As we have found this incident did not happen at all as a matter of fact, it cannot amount to discrimination. Being called paranoid – we have not accepted the claimant’s factual allegation[129]As we have found that the claimant was not called paranoid by the respondent, nor was he told it was all in his head, these allegations cannot amount to discrimination as it did not occur as a matter of fact.[130]We have found that the following events did happen: The claimant was placed on restricted duties[131]We have found the claimant was placed on restrictive duties in February 2019 due to concerns his senior officers had about his and colleagues / the public’s safety following the incident in January and his subsequent disclosure that he was suffering PTSD as a result. In this context, moving the claimant onto a short period of restricted duties pending the outcome of an OH referral is not unfavourable treatment. It was right and proper that he did not continue interacting with the public until advice was sought.[132]Similarly, we have found the June 2019 restrictive duties were justified. While he felt aggrieved, given the context, while we have no doubt he was personally upset, these feelings are unjustified given the context of the decision for moving him.[133]When the claimant was moved to restricted duties in March 2020 it was pending the outcome of the grievance process. While the claimant was upset by this, it is usual practice that an employee subject to a misconduct investigation has their duties restricted, and often they will be suspended on full pay. In this regard the respondent’s actions were reasonable, and the claimant’s sense that it was unfair does mean the treatment was unfavourable. We have accepted the respondent’s explanation and find it was not.[134]On each occasion we have found the restricted duties were implemented for the reasons stated by the respondent.. These had nothing to do with the things the claimant suggests (alleged difficulties interacting with others/reading social situations; alleged perceived awkward personality; alleged need to make written notes to remember tasks). We conclude a colleague in materially the same circumstances as the claimant, but without his disabilities would have been placed on restrictive duties in the same way had an OH referral been made, or a senior officer was concerned about a hypothetical PCSO’s behaviour.[135]For these reasons, placing the claimant on restrictive duties was not discrimination arising from disability. Nor we conclude was it direct disability discrimination. There was no detriment to the claimant of placing him on restrictive duties. It was done in his interests (to obtain an OH assessment) or due to the fact a misconduct investigation was pending and not to do with his disability.[136]There is no victimisation as the protected act on which the claimant relies (his grievance on 12 January 2021) occurred after the periods of restrictive duties. Table incident[137]The unfortunate (and in our view) extremely unprofessional incident involving the claimant and the table did take place. We have found that it was investigated internally by the PSD team at the time following due process. That investigation considered evidence from the claimant and other participants, including those officers who admitted taking photographs. It concluded all, including the claimant, were willing participants. The claimant accepted in his witness evidence to the Tribunal that he gave that impression at the time and did not counter this to the internal investigation. He has not explained to the Tribunal why he now feels differently. For that reason we prefer the contemporaneous evidence of the claimant and the colleagues engaged in this activity.[138]The claimant alleges the behaviour was in some way linked to his disability. We have considered the case law which assists the Tribunal is assessing whether alleged conduct is “related” to the relevant protected characteristic on the facts, (the EAT decision in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495 EAT. To conclude that the behaviour which resulted in the claimant being photographed under a desk was related to his disabilities, we must be able to identify facts which properly lead to the conclusion that he was photographed under the table because of his disabilities.[139]We have not found a factual link. Indeed, the claimant himself has not explained why he says the behaviour was linked to his disability. He did not link the behaviour at the time and has not explained, any time since, including his evidence to the Tribunal at the hearing, why he considers the reason he was photographed under the table was his disabilities. The evidence before us in the findings of a contemporaneous investigation concluded that consenting colleagues engaged in horse play.[140]It is important to note that a claim for disability discrimination harassment “ does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be” (per HHJ Auerbach at para.25)”[141]We conclude this incident falls into this category. The claimant may, on reflection, have found the conduct unwanted, although the respondent had concluded in an investigation at the time he was a willing participant. However, he had not provided any facts to the Tribunal to evidence that the events were in some way linked to his disabilities. Therefore, the factual matrix required by law does not exist and we cannot conclude that the conduct was in any way related to his disabilities. Indeed, when considering the claimant’s perception, he did not complain at the time, he cannot tell us now why, factually, he links the behaviour to his disabilities and there is third party contemporaneous witness evidence that he was a willing participant, that he did not challenge at the time. We conclude that this is a complaint the claimant has brought retrospectively when his employment went in an unhappy direction and he was aggrieved. At this point he has sought to link the behaviour to his disability, something he did not do at the time.[142]The claimant waited 18 months to complain about this incident to the Tribunal. We consider this a one-off event, which is out of time. The claimant has not discharged his burden to the Tribunal to offer a reason why it is just and equitable to extend time. Given this was investigated thoroughly at the time, we cannot see a reason to extend time. This claim fails as it is out of time, and in any event it fails because we conclude there was no unwanted conduct, not least as the claimant has not presented evidence to the Tribunal as to why he is changing his position from a willing to unwilling participant.[143]The protected acts postdate this incident therefore the claim that it was something arising in consequence of disability is misconceived. The incident was not related to the claimant’s disabilities. It was a group of colleagues messing around in the office, all of whom were willing participants, as the claimant confirmed at the time.[144]Therefore the claims of disability discrimination must fail This is not a claim of victimisation as the incident predates the claimant’s grievance. Misconduct investigation[145]We have found the misconduct did take 14 months, with delays in part due to the need to assess the claimant’s fitness to participate in this process, given his disabilities, and his absence from work due to sickness, during which times the misconduct hearing could not proceed. There is no evidence that the respondent took longer than necessary with this process. The reason for starting the process was not related to claimant’s disability. The claimant was investigated for misconduct following an allegation in an email dated 26 November 2019 that he had reported a parking issue with a commercial vehicle belonging to a colleague.[146]The investigation was not related to the claimant’s disabilities. The respondent engaged in the process as it is required by law to investigate the allegation of misconduct. This was the only reason the process commenced. It had nothing to do with the claimant’s difficulties interacting with others, his perceived awkward personality or his need to make written notes or his disabilities. The investigation was triggered by a complaint against his conduct in reporting the vehicle. The claimant’s grievance postdates much of the investigation; it is not the reason the investigation took 14 months. For these reasons all claims of discrimination fail. Upholding misconduct allegation[147]We have found that on 24 March 2021 the respondent upheld the misconduct charges and dismissed the claimant. The decision to dismiss was because the claimant has been found guilty, on the balance of probabilities, of making a report to ELVIS that was dishonest as the panel concluded he knew the identity of the owner of the pizza van when he reported the parking issue. Dishonesty is a dismissible offence; the respondent would have treated any PCSO it found had been dishonest in the same way, dismissing them. The claimant was not treated less favourably than a hypothetical comparator who had been dishonest. The section 13 claim of direct discrimination must fail. The treatment was not because of the claimant’s disabilities or the things he said arose in consequence of it. The dismissal was because the panel had found him to be dishonest.[148]The respondent would have treated a PCSO without the claimant’s disabilities person who had been found guilty of misconduct the same. The treatment was not less favourable and not because of the claimant’s disability. The claimant was dismissed because the respondent had concluded the claimant was dishonest in his reporting of the parking issue with the pizza van, and this amounted to gross misconduct. Therefore, the section 15 and section 26 claims must fail. Provision of information to the British Transport Police[149]We have found that the respondent provided information to the British Transport Police, at their request, was because the claimant was subject to a misconduct process at the time of the request. There is no evidence that the provision of information was because of or related to the claimant’s disabilities or the fact he had submitted a grievance. While the provision of information was unwanted conduct in the mind of the claimant, objectively it is not reasonable for the conduct to have that effect. The claimant was subject to an investigation. BTP sought the information. The respondent had no option but to ensure its respond to the requests were factually correct. The only reason the BTP was told a misconduct process was ongoing was because it was. Therefore all claims of discrimination must fail.[150]It is agreed that the respondent informed the College of Policing of the dismissal, resulting in the Claimant being placed on the police barred list. We have found that the respondent had a duty to notify the College where an allegation of misconduct involving dishonesty been upheld. The claimant was not treated less favourably; had the same allegation been upheld against a PCSO without the claimant’s disabilities, and that PCSO dismissed, the College would have been notified in the same way and that PCSO would have been placed on the barred list. While being placed on the barred list is unwanted conduct, it is objectively justified by the requirement for all police forces to notify the College where an officer has been dismissed for these reasons. Reasonable adjustments claim[151]The claimant does not set out details of the PCP on which he relies in his claim form or witness statement. He could not explain the practice about which he complains when giving oral evidence; he does not provide details of a PCP in his written answers that reflects contemporaneous documents. The claimant has not discharged his burden in bringing a reasonable adjustments claim to identify the PCP on which the claim relies, despite being given several opportunities to do so. The claimant confirmed to the Tribunal that he could drive a manual car, but preferred an automatic car. This was a preference, not an adjustment he had agreed with the respondent (there is no reference to this requirement in his personalised reasonable adjustment document) and it was not something he required to carry out his role, which was primarily an onfoot or office based role.[152]It follows that, as he has not identified the practice, he cannot explain the substantial disadvantage he experience due to his disabilities as a result of the respondent having said practice. It is not for the Tribunal to identify the practice at a final hearing. It is for the claimant to explain the respondent’s practice he says put him at a disadvantage. Mindful the claimant is not legally represented we have taken his witness statements and documentary evidence at their highest; it is not possible to identify a practice. Therefore, the reasonable adjustments claim must fail. Unfair dismissal[153]We have found that the claimant was dismissed following a finding of misconduct by a through PSD investigation. Misconduct is a potentially fair reason for dismissal. Having considered the detailed misconduct process and the outcome report, we conclude that the claimant genuinely believed that the claimant was dishonest in reporting the parking issue with the pizza van. The misconduct panel’s conclusion was reached having assessed the evidence about the claimant’s knowledge as to the identity of the van’s owner, concluding that the claimant did know when making the report to ELVIS that the van belonged to PCSO Burrows’ partner. The basis for reaching this conclusion is set out in the report; this basis is not challenged by the claimant.[154]The misconduct process was fair. We have found that the claimant at access to union representation at all times, he was given notice of hearings, hearings were delayed when the respondent consider the claimant was not well enough to take part, the process took 14 months reflecting periods of sickness by the claimant and the respondent’s OH referral to ensure the claimant’s fitness to attend the panel hearing. The claimant received the documentary evidence in ample time for the hearing and was given the opportunity to put his case in advance and at the hearing. He did so in writing by several emails as well as at the initial interview and final disciplinary hearing. The respondent identified evidence through interview to establish that the claimant had been dishonest.[155]In reaching this conclusion we are mindful of the suggestions made in the C’s written submissions of things he says should have happened as part of the investigation process. The test we must apply does not require an absolute investigation that covers every requirement the person subject to the investigation considers necessary. Case law emphasis that the test we must apply is a reasonable investigation and this does not require pursuit of every line of defence advanced by an employee. For such an approach to be enshrined in law would be unworkable in practice and place unnecessary burdens on employers. We are satisfied that the investigation and the appeal process conducted by the respondent over several months discharges their obligation. The claimant did not attend the appeal hearing, but was represented. That was his choice. On occasion he took the same approach for this hearing; for example he did not attend for judgment, but was represented by Ms Barnett.[156]We have found that the claimant was dismissed as the respondent concluded, on balance, his reporting of the van was dishonest. Dishonesty amounts to gross misconduct. Given the claimant was a PCSO with public facing duties, we consider that dismissal, notwithstanding this was a first offence, was within the range of reasonable responses. The claimant submits dismissal was not a fair sanction as PCSO Burrows and PCSO Dobson had also been investigated but were not dismissed. The reasons the respondent investigated the claimant are very different from the reasons PCSO Burrows and PCSO Dobson were investigation. The allegations against them did not involve dishonesty; that was the reason for a different sanction.[157]For these reasons we conclude that the claimant was fairly dismissed; his claim for unfair dismissal must fail. Notice pay[158]As we have concluded the reason for the dismissal was gross misconduct, the claimant does not have the legal right to notice pay.[159]For these reasons it is the unanimous judgment of this Employment Tribunal that: 1.1. The complaint of unfair dismissal is not well-founded. The claimant was fairly dismissed for reason of misconduct. 1.2. The complaint of breach of contract in relation to notice pay is not wellfounded. The claimant is not entitled to notice pay as he was dismissed for misconduct. 1.3. The complaint of direct disability discrimination is not well-founded and is dismissed. 1.4. The complaint of harassment related to disability is not well-founded and is dismissed. 1.5. The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed. 1.6. The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed. 1.7. The complaint of victimisation is not well-founded and is dismissed.