Mr A Steele v Ministry of Defence: 3322069/2019 and 3306130/2020
EMPLOYMENT TRIBUNALS
Case No 3322069/2019, 3306130/2020
Between
Mr Allan SteeleClaimantMinistry of DefenceRespondent
Before
Employment Judge G TobinMs N Macara (instructed by solicitor) for claimantMs K Hindmarch (instructed by solicitor) for respondentDate 7 August 2023
JUDGMENT
[1]Following the claimant’s email to the Employment Tribunal of 18 November 2022 at 10:30am and as confirmed by the claimant and his representative today all complaints, save as to the claims of victimisation relating to the termination of the claimant’s commission, are dismissed upon withdrawal. RESERVED JUDGMENT[2]The claimant’s forename, typographical and paragraph numbering mistakes have been corrected under Rule 69 of the Employment Tribunal’s Rules of Procedure 2013 for clerical errors because of accidental slip or omission. The unanimous decision of the Employment Tribunal is that the respondent victimised the claimant in terminating his service commission. The claimant succeeded in 10 of the 15 specific allegations made.
REASONS
[1]This has been a remote hearing which has been agreed to by the claimant and the respondent. The hearing was conducted as a video hearing through HM Courts & Tribunal Service Cloud Video Platform. The claimant and the respondent’s witnesses and representative were not physically at the hearing centre. A face-to-face hearing was not held because the parties accepted all the issues could be determined at this video hearing. The proceedings[2]Proceedings were summarised by Employment Judge Cowan following the Preliminary Hearing of 13 August 2021. The claimant was a commissioned officer in the Royal Air Force (“RAF”) serving in the Legal Branch between 29 May 2003 and 30 March 2020 (i.e. almost 17 years). He brought claims of sex, race and religious discrimination, under the Equality Act 2010 (EqA”), on the basis of his male, Scottish and Christian protected characteristics. The initial claim was issued on 5 September 2019 and a further claim was brought on 26 June 2020 after the termination of the claimant’s commission.[3]Notwithstanding the claimant’s claims were made against the RAF, the Ministry of Defence was the appropriate respondent. The respondent denied all claims of direct discrimination, harassment, and victimisation. The claimant withdrew all complaints, save as to the claims of victimisation relating to the termination of his commission (i.e. his dismissal from the RAF) and this was confirmed by a Judgment dated 23 January 2023.[4]The case was originally listed by Judge Cowan, for 8 weeks but following the case management hearing of 20 January 2020 this was reduced to 22 days over 5 continuous weeks. The list of issues[5]The list of issues set out the legal and factual disputes that the Employment Tribunal was asked to determine in respect of the claim. The parties had agreed a revised list of issues following the claimant's withdrawal of the non-dismissal claims. The issues agreed between the parties were as follows: 1. The claimant and respondent agree that the Employment Tribunal has jurisdiction to determine the claim under s121 EqA. 2. Time Limitsa. Were all of the claimant’s complaints presented within the time limits set out in S123(1)(a) and (b) EqA? Was there an act and/or conduct extended over a period? Should time be extended on a just and equitable basis?b. Given the date of the first claim form was presented (5 September 2019) and the date of ACAS Early Conciliation (25 June 2019 to 7 August 2019) any complaint about something that happened before 25 February 2019 is potentially out of time so the Tribunal may not have jurisdiction to hear it. The claimant’s position is that the conduct extended over a period of time. 3. The remaining claim: Did the respondent treatment of the claimant amount to victimisation, applying s27 EqA? a. Did the claimant do two protected acts, namely raising: i. Service complaint of 3 September 2018 (referred to as SC3) (the first protected act); and ii. Claim form (“ET1”) of 5 September 2019 (case no 3322069/2019) (see second protected act) SPA (the process of commencing raising of ET1) (i.e. ACAS early conciliation started in July 2019 – paragraph 35 of the amended grounds of complaint)? The respondent accepted that the above amounted to protected acts; although the respondent did not accept that contacting ACAS is part of the second protected act, the protected act being the filing of the ET1 on 5 September 2019. b. Did the claimant receive the following detrimental treatment at the hands of the respondent, leading to the final detriment of the claimant’s termination of commission by the Air Force Board? [Note for chronology - first protected act; 3 September 2018] i. The claimant raised allegations that Gp Capt Mark Sanger-Davies bullied him [he was bullied] while working at RAF Coningsby in around December 2018/January 2019 – i.e. paragraph 27 amended grounds of complaint (and subject of service complaint). ii. The claimant was put through a Major Administrative Action Process (“MAAP”) in around April 2019 Initially designed to post him to a new location (following a temporary move offered to him after he had raised the allegation of bullying) – i.e. Para 30 amended grounds of complaint. iii. Flt Lt Gareth Davies wrote a report as part of the MAAP dated in or around summer 2019 recommending that the claimant be transferred out of the RAF Legal branch – i.e. paragraph 31 amended grounds of complaint. [Note for chronology – second protected act; 25 June 2019, although contended knowledge July 2019] iv. AVM Jennings wrote a report recommending that the claimant could not serve in the RAF Legal Branch on or around 18 July 2019 – i.e. paragraph 39 amended grants of complaint. v. This issue was withdrawn on 12 April 2023, day 10. vi. The RAF Service Complaints Team shared details of the claimant's first and/or second protected act(s) with Wg Cdr Shearing on or around August and September 2019 – i.e. paragraph 38 amended grounds of complaint. vii. Wg Cdr Justin Shearing recommended that the claimant's commission be terminated in his report dated on or around 8 October 2019 – i.e. paragraphs 36 and 38 amended grounds of complaint). viii. On receipt of Wg Cdr Shearing’s report, AVM Harvey Smyth recommended that the matter be referred to the Air Force Board on or around 13 November 2019 – i.e. paragraph 40 amended grounds of complaint. ix. The claimant's application for Early Termination “resignation” via the Joint Personnel Administration System was “actioned” on or around 28 November 2019 and he was advised he would be on resettlement leave from around 7 December 2019 and his employment would terminate in April 2020– i.e. paragraph 42 amended grounds of complaint. The claimant contended that his application for Early Termination should have taken priority. x. The claimant was not fit (due to ill-health as a result of stress and anxiety) to attend the Air Force Board hearing and was denied the opportunity for a colleague to present submissions on his behalf. The Air Force Board was therefore convened without the claimant present – i.e. paragraph 43 amended grounds of complaint. xi. The Air Force Board was not made aware that the claimant was willing to serve in branches of the RAF other than the RAF Legal Branch, which he had advised Air Cdre Rich Paul of in or around August 2019 (including, for example, intelligence, personnel support or chaplaincy) – i.e. paragraph 43 amended grounds a complaint. The claimant acknowledged that the AFB [“Air Force Board”] was advised that he would work in the chaplaincy branch. xii. Despite the claimant's resignation, sickness and inability to attend the hearing, the claimant's commission was terminated by the Air Force Board (comprised of Air Marshal Julian Young and Air Marshal Gerry Mayhew) on or around 9 December 2019 – i.e. paragraph 43 amended grounds of complaint. xiii. The Air Force Board's decision to terminate the claimant's commission was drafted by Wg Cdr Shearing on or around 13 December 2019 – i.e. paragraph 43 amended grounds of complaint. xiv. The claimant was directly advised of the decision of the Air Force Board on 24 December 2019 while off sick, despite the claimant's solicitors being made aware on or around 13 December 2019 – i.e. paragraph 44 amended grounds of complaint). xv. The claimant's commission was terminated with effect from 30 March 2020 – i.e. paragraph 42 amended grounds of complaint.c. Was the alleged detrimental treatment because the claimant had done a protected act(s)?d. Remedy will be dealt separately from the hearing on liability.
The law
[6]The Equality Act 2010/EqA provides protection for individuals who complain about discrimination so that they may do so without any reprisals. The provisions for victimisation are contained in s27(1) EqA, which provides: 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.[7]It follows from s27(1) EqA that a claimant seeking to establish victimisation will need to establish 2 things: i. that he has been subject to a detriment; and ii. that he was subjected to that detriment because of a protected act.[8]The following are protected acts for the purposes of s27(2):(a) bringing proceeding under the EqA;(b) giving evidence or information in connection with proceedings under the EqA;(c) doing any other thing for the purpose of or in connection with the EqA; and(d) making an allegation (whether or not expressed) that A (the alleged victimiser) or another person has contravened the EqA.[9]The cases of Derbyshire and others v St Helens Metropolitan Borough Council and others 2007 ICR 841 HL and Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065 HL set out a 3-stage test, which (adapted to accommodate the wording of the subsequent EqA) is as follows: did the alleged victimisation arise in any of the prohibited circumstances covered by the EqA? If so, did the respondent subject the claimant to a detriment? If so, was the claimant subjected to that detriment because of having done a protected act or because the respondent believed the claimant had done, or might do, a protected act?[10]The Equality & Human Rights Commission’s Statutory Code of Practice contains a useful summary of treatment that may amount to a detriment: See paragraphs 9.8 and 9.9. This is built upon previous case law: Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train… A detriment might also include a threat made to the complainant which they take seriously, and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, having an unjustified sense of grievance alone would not be enough to establish a detriment.[11]Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337 HL established that a detriment exists if a reasonable worker would or might take the view that the treatment was in all these circumstances to his disadvantage. Although an unjustified sense of grievance could not amount to a detriment, this case emphasised that whether a claimant has been disadvantaged is to be viewed subjectively, i.e. from the claimant’s point of view: see Chief Constable of West Yorkshire Police v Khan. That said the claimant’s perception must be “reasonable” in the circumstances, so there is an element of an objective test.[12]It is important to understand the precise detriments pleaded. In Ladiende and others v Royal Mail Group Ltd EAT 0197/2015 the Tribunal rejected the claimant’s victimisation claims on the basis that it could see no detriment because the grievances complained of had been investigated. On appeal the Employment Appeal Tribunal (“EAT”) pointed out that investigating the grievances was not the issue in that case. The Tribunal had to consider not whether there was an investigation but whether the investigation carried out had been adequate – or rather, whether the inadequacies that the Tribunal found had amounted to detriments.[13]Causation is key, as to succeed in a claim of victimisation the claimant must show that he was subject to a detriment because of doing a protected act or because the respondent believed the claimant had done or might do a protected act. Where there has been a detriment and a protected act, but the detrimental treatment was due to another reason, for example misconduct, a claim of victimisation will not succeed.[14]Wording like “because of”, “on grounds of” and “by reason that” all mean the same thing according to Amnesty International v Ahmed [2009] ICR 1450 EAT. The essential question in determining the reason for the claimant’s treatment is always the same: what, consciously or subconsciously, motivated the employer to subject the claimant to the detriment? In the majority of cases, this will require an enquiry into the mental processes of the respondent. If the necessary link between the detriment suffered and the protected act can be established a claim of victimisation will succeed.[15]The test is not precisely a strict causation test, and our analyses should be more sophisticated and nuanced. Tribunals should avoid the use of “but for”, according to Khan; rather, the Tribunal is to identify the real reason, the core reason, the motive for the treatment complained of. Nagarajan v London Regional Transport 1999 ICR 877 HL established that if a protected act has a significant influence on the employer’s decision making, the discrimination will be made out. Nagarajan was subsequently considered by the Court of Appeal in Igen Ltd (formerly Leeds Career Guidance) and others v Wong & other cases 2005 ICR 931 which clarified that for an influence to be “significant” it does not have to be of great importance. A significant influence is, perhaps counter-intuitively, “an influence which is more than trivial”. It is not necessary for the protected act to be the primary cause of a detriment, so long as it is a significant factor, see Pathan v South London Islamic Centre EAT 0312/2013.[16]In Martin v Devonshires Solicitors 2011 ICR 352 the EAT took the view that there could, in principle, be cases where an employer has dismissed an employee (or subjected them to some other detriment) in response to the doing of a protected act, but where the employer could say that the reason for the dismissal was not the complaint (or protected act) as such but some feature of it which could properly be treated as separable, for example the manner in which the complaint was made. In Martin the claimant suffered from a diagnosed mental illness that led her to make claims of discrimination, which she believed to be true but which were false, and she could not accept that they were false. The EAT distinguished between the detriment and the protected act and the detriment “as a matter of common sense and common justice” as “the reason for the dismissal was not the complaint as such, but some feature of it which can properly be treated as separable”. Martin v Devonshires Solicitors was an exceptional case: see also Micheldever Tyre Service Ltd v Burrell UKEAT/0427/2012; Mcintosh v Governing Body of St Mark’s Primary School UKEAT/0226/2013; Page v NHS Trust Development Authority UKEAT/0183/ 2018; and Page v Lord Chancellor UKEAT/0304/2018. In Woodhouse v West North West Homes Leeds Ltd UKEAT/0007/2012 the EAT held that the claimant’s dismissal was victimisation and could not be properly be separated from the claimant’s complaints. In that case W’s numerous grievances were dismissed by the employer, and the employee was then dismissed on the basis that their relationship had broken down as a result of the employee's “incurable disaffection”. The detriment of dismissal could not be properly separated from the claimant's complaint. W was not mentally ill (cf Martin) and the grievances (past and future) caused the dismissal and therefore amounted to victimisation.[17]If the Tribunal considers that the real reason for dismissal or some other detriment was a separable feature, then it should make this clear: Elston v Robbie’s Photographic Ltd and another EAT/0282/2018. In Gillingham Football Club Ltd and another v McCannon EAT/0560/2012, GFC had not asked a claimant why he had made allegations of discrimination, still less investigated it or produced any material relating to it, therefore the Tribunal had not accepted the submission that M had been dismissed for aggressive and violent behaviour and the Tribunal’s finding of victimisation was upheld.[18]There needs to be either evidence that any person who inflicted a detriment knew about a protected act or clear circumstances from which such knowledge can be inferred, otherwise a claim for victimisation will fail. In Reynolds v CLFIS (UK) Ltd and others 2015 ICR 1010, the Court of Appeal reaffirmed that the focus must be on the motivation of the actual decision maker, and that the acts of those who provided so-called tainted information to the decision maker for unlawful reasons have to be considered separately from the actions of the innocent decision maker.[19]It is not necessary for a Tribunal to distinguish between “conscious” and “subconscious” motivation in determining whether the claimant has been victimised. In Nagarajan the House of Lords determined that victimisation may be “by reason of” an earlier protected act if the discriminator subconsciously permitted that act to determine or influence his treatment of the complainant.[20]Discrimination is notoriously difficult to prove, and victimisation claims under EqA are also subject to the “shifting burden of proof” as set out in s136 EqA, which implements the European Union Burden of Proof Directive. This requires the claimant to prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of unlawful discrimination, and it is then for the employer to prove otherwise.[21]Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205 and Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 931 provide a 13- point form/checklist which outlines a two-stage approach to discharge the burden of proof. In essence, this can be distilled into a 2-stage approach:a. Has the claimant proved facts from which, in the absence of an adequate explanation, the Tribunal could conclude that the respondent had committed unlawful discrimination?b. If the claimant satisfies (a), but not otherwise, has the respondent proved that unlawful discrimination was not committed or was not to be treated as committed?[22]The Court of Appeal in Igen emphasised the importance of could in (a). The claimant is nevertheless required to produce evidence from which the Tribunal could conclude that discrimination has occurred. The Tribunal must establish that there is prime facie evidence of a link between less favourable treatment and, say, the difference of race and that these are not merely two unrelated factors: see University of Huddersfield v Wolff [2004] IRLR 534, Hill v Arriva Southern Counties Ltd ET Case No: 1101308/2010. It is usually essential to have concrete evidence of less favourable treatment. It is essential that the Employment Tribunal draws its inferences from findings of primary fact and not just from evidence that is not taken to a conclusion: see Anya v University of Oxford [2001] EWCA Civ 405, [2001] ICR 847.[23]So, in many cases the establishment of a prima facie case of victimisation will rely on inferences drawn from the primary facts and circumstances found by the Tribunal to have been proved on the balance of probabilities. It is less frequent for there to be direct evidence of victimisation and a Tribunal, where appropriate, may draw appropriate inferences. Drawing inferences is the process of taking evidence to its logical conclusion. The Tribunal will need to be very clear about the evidential basis upon which it may draw an inference. An example of where a Tribunal drew appropriate inferences is McConville v CT Plus Ltd ET Case No: 3200946/2014 where a Tribunal upheld a victimisation claim as there were a number of concerning features in the process leading to M's dismissal that left the overall impression that CP Ltd invariably chose the interpretation of events that was the least favourable to M; the investigation was flawed and emphasised the negative, CP gave no attention to facts that might support M's version of events, not all CCTV footage was preserved and witnesses were not all interviewed at that time. The Tribunal inferred that M was dismissed because he had brought Employment Tribunal proceedings against CP. The witness evidence[24]We (i.e. the Tribunal) heard evidence from the claimant who was at all material times a Wing Commander in the RAF.[25]The claimant also provided witness statements from 2 additional witnesses.25.1 Lieutenant General Stuart Skeates CB CBE. Major General Skeates (as he was) was an army officer and commander of the Standing Joint Force Headquarters. He provided input into the claimant's officer joint appraisal report (“OJARs”).25.2 Mr Geoff Hashman, who was a senior civil servant and a Lead Finance Business Partner at the Directorate of Resources and Finance and was the claimant's line manager whilst he was under a detachment without prejudice at RAF High Wycombe/Air Headquarters.[26]Having read these statements, the Tribunal indicated that we did not believe it was necessary to hear evidence from these 2 witnesses as their evidence was more character references. Both talked about the claimant's professional ability, personal values/disposition in positive terms, which was based on their personal interaction with the claimant. Neither witness gave evidence about the matters contained within the list of issues. Accordingly, the relevance of such evidence was marginal. Ms Hindmarsh confirmed that she did not have any cross-examination for these witnesses. Such as it was, we accepted the evidence of Lt Gen Skeates and Mr Hashman as read.[27]We heard from 11 witnesses on behalf of the respondent. These were as follows:27.1 Air Vice Marshal Tamara Jennings OBE was the former RAF Deputy Director Legal Service (“DDLS”) until her appointment as Director of Legal Services (“DLS”) to replace Air Vice Marshal Mardell in September 2018.27.2 Squadron Leader Mark Sanger-Davies, who was formerly a Group Captain (“Gp Cpt”) and the claimant's line manager at the Regional Legal Office Central (RLOC) at RAF Coningsby.27.3 Air Commodore (retired) Kevin Sanders, who was the former DDLS.27.4 Air Commodore (retired) Richard Paul, who was the Deputy Assistant Chief of Staff Career Management.27.5 Wing Commander Matthew Branch, who was the Officer Commanding Personnel Management Squadron at RAF Coningsby.27.6 Squadron Leader Gareth Davies who worked for Air Personnel Casework (“APC”).27.7 Group Captain Justin Shearing, who was the lead for APC. He was involved in the detachment without prejudice, the station investigation, the Major Administrative Action Process (“MAAP”) and attended and presented the case against the claimant at the Air Force Board.27.8 Wing Commander (retired) Moira Rowley, who was the claimant's Career Manager from 2018 until 2020.27.9 Air Marshal Harvey Smyth, who was the Air Officer Commanding 1 Group, and was involved in an important part of the MAAP.27.10 Air Marshal Sir Gerry Mayhew was the Deputy Commander Operations and was one of the 2 members of the Air Force Board.27.11 Group Captain Christopher Todd, who was a People Operations Officer and Deputy Assistant Chief of Staff A1.27.12 Air Marshal (retired) Sir Julian Young, who was the more senior and experienced member of the Air Force Board.[28]We refer hereinafter to military officers by their rank at the time of their involvement in the substantive case. So, some officers, such as Squadron Leader (“Sqn Ldr”) Sanger-Davies was promoted from Wing Commander (“Wg Cdr”) to Group Captain (“Gp Capt”) during our period of scrutiny and then reverted to Sqn Ldr as he has now taken up a position in the RAF Reserves. We refer to the members of the Air Force Board in the manner that they were described on the Record of Decision, which referred to their rank and surname and omitted their honourific title. By referring to these officers in the manner in which they were recorded contemporaneously, we seek to ensure a degree of clarity and consistency. If this is not the expected or correct etiquette, then we apologise, no disrespect is intended to these 2 individuals.[29]Each witness provided a signed and dated witness statement, which the “live” witnesses confirmed on oath or affirmation. The witnesses were crossexamined by Ms Hindmarch or the claimant, as relevant, and we asked questions for clarification. Provision was made for re-examination.[30]In additional to the witness evidence, we considered 18 lever arch files of documents, which amounted to 5,617 pages. During the course of the hearing, we also admitted a further document, a Detachment Without Prejudice Standard Operational Procedure.[31]The Employment Judge made clear at the outset of the hearing that the parties needed to bring to our attention any documents that they wanted to rely upon or which they thought was relevant to determining their case.[32]This was a complicated case, and we were considerably assisted by a detailed chronology, cast list and list of abbreviations prepared by, we think the respondent’s representatives. We thank them for their efforts in this regard. In addition, when navigating the hearing bundle, Ms Hindmarsh displayed an encyclopaedic knowledge of the contents therein and we thank Ms Hindmarch and her colleagues for this additional assistance.[33]Having heard the totality of the evidence we say as follows. There were surprisingly little conflicting accounts of events for the Tribunal to resolve. Much of the dispute turned on individuals explaining factors relied upon when they made decisions and/or exercised their judgment.[34]At the hearing the claimant was keen to emphasise the merit of his service complaints and his original Employment Tribunal complaint. We believed that the claimant sincerely believed in his substantive complaints, although we were troubled that he appeared to lack a sense of proportionality, and we were not entirely convinced that he had sufficient insight into the consequences of his complaints on others. The claimant felt that he had been wronged, and he sought to challenge the misjustice he perceived. That said, we reject the contention that he would not accept an outcome with which he disagreed. Our view was to the contrary, he wanted a fair hearing, and he would abide a fair outcome. We also believe that he genuinely lacked animosity towards his former colleagues as he made it clear to witnesses that whilst he challenged their evidence, he avoided personal attacks.[35]The claimant gave no indication to us that he would not abide by any fairminded interpretation to the contrary. He was respectful throughout proceedings to all concerned. He addressed people appropriately and although matters were obviously distressing to him, he remained calm and appropriately respectful to the respondent’s witnesses throughout. The claimant was fastidious perhaps bordering on compulsive concerning his attention to detail, but he took direction when the hearing Judge advised him to move on. We regarded him as a truthful witness and an accurate historian.[36]We were struck by the stock answers given by many of the respondent witnesses in which they said (possibly parroted) they were aware of the claimant's Service Complaints, but they could not recall when these complaints were brought to their attention nor the relevant circumstances. Various decision-makers contended that they did not know of the content of the claimant’s Service Complaints because these were confidential and some professed that the claimant had the right to bring as many Service Complaints as he chose. Yet, this was at some odds with the relevant decision-makers’ complaints of the subsequent disruption caused by the claimant. We were unconvinced about how this was reconciled. It was a key feature of relevant decision makers – Air Vice Marshal (“AVM”) Jennings, Wg Cdr Shearing, Air Marshal (“AM”) Mayhew and AM Young – that they were cognisant of the claimant’s Service Complaints and later his Employment Tribunal complaint and the real or purported disruption caused by these, yet they did not seek to inquire into the subject matter of such complaints. They professed not to be influenced by the content of the Service Complaints, which we find rehearsed, hollow and unconvincing. No-one made any attempt to untangle the supposed disruption caused by the complaints from the substantive complaint itself. The claimant put to various respondent witnesses whether he had been antagonistic or disruptive to them and none of the respondent witnesses replied in the affirmative. The closest this came was when Gp Capt SangerDavies said that he had been effectively scarred by his interaction with the claimant but at no stage in the contemporaneous exchanges had he raised a formal complaint and he described the exchanges with the claimant as being difficult but relatively cordial. Some of the other decision makers referred to “others” being distressed or disrupted but no formal complaints were made by these “others”, and there was an absence of specific instances of such disruption in the plethora of contemporaneous material disclosed. Perhaps this might reflect and reinforce the claimant's complaint that the Legal Branch was a hive of gossip and back biting but there is no substance we could find to evidence the claimant's supposed dysfunctional approach.[37]We were also particularly concerned by the behaviour and failures of AVM Jennings and Wg Cdr Shearing, in particular, to recognize the claimant's protected acts, given their legal and human resources experiences, their roles in these events and their seniority. The claimant complained about discrimination and victimisation at an early stage, and it was obvious to the Tribunal that both this very senior solicitor and the very senior HR practitioner should have been alerted for the need to be cautious and avoid subjecting an individual to any perceived detriment following such complaints. We are aware that AVM Jennings had been on employment law and antidiscrimination training and that the avoidance of discriminatory conduct should have been at the forefront of RAF human resources practice. In effect, alarm bells should have been ringing at the earliest stage, yet both proceeded into a formal process that refused to countenance the claimant returning to his workplace and which ultimately led to his dismissal.[38]Wg Cdr Shearing and AVM Jennings may or may not have seen the claimant’s Service Complaints and Employment Tribunal proceedings, but we assess both knew sufficient of these for them (and others) to take against the claimant and subject him to less favourable treatment. We draw this inference in line with the McConville case, see above as this accounts for their behaviour towards the claimant and the vigour that this was pursued. Both were dismissive of the claimant’s complaints and saw him as the problem without bothering to await the outcome or even trying to expedite matters. They chose to interpret events least favourabl to the claimant and dismissed factors that might support some of his contentions. We just do not believe that both these senior officers would behave in such a manner towards the claimant for other reasons.[39]We do not find that AM Mayhew and AM Young inadvertently victimised the claimant because they took into account things they ought not to have taken into account. We find that their behaviour was deliberate. The claimant was perceived as disruptive, and these senior officers effectively saw that it was one person at odds with 42 mainly senior officers and they believed that the interest of these 42 mainly senior officers ought to prevail against the interest (as they saw it) of the claimant, irrespective of the harsh consequences on the claimant of losing his job, his livelihood and his reputation. Had these 2 senior officers attempted to disentangle the disruption supposedly caused from the claimant’s protected act from the other disruption he was alleged to have caused then the outcome may have been very different. However, they did not and that is broadly why we found against them in this regard. AM Young and AM Mayhew were not to any extent “innocent decision makers”. Our findings of fact[40]We set out the following findings of fact, which were relevant to determining whether or not the claimant had been victimised. We have not determined all of the points of dispute between the parties, merely those that we regard as relevant to determining the issues of this case as identified above. When determining certain findings of fact, where we consider this appropriate, we have set out why we have made these findings.[41]In assessing the evidence and making findings of fact, we placed particular reliance upon contemporaneous documents as an accurate version of events. We also place some emphasis (and drew appropriate inferences) on the absence of documents that we expected to see as a contemporaneous record of events. Witness statements are, of course, important. However, these stand as a version of events that was completed sometime after the events in question and are drafted through the prism of either advancing or defending the claims in question. So, we regard them with a degree of circumspection as both memories fade and the accounts may reflect a degree of re-interpretation.[42]On 30 July 2018 AVM Susan Gray decided that the claimant would be issued with a formal warning. The claimant was involved in an incident in July 2016 which had led to a criminal conviction for threatening and abusive behaviour. AVM Grey decided that the formal warning should be issued for 3 months “to allow Wing Commander Steele to reflect on his behaviour, be reintegrated into the RAF Legal Branch and move forward” [Hearing Bundle page 849-851]. That formal warning was upheld by Air Marshal Atha [HB968-971].[43]On 16 August 2018 Air Commodore (“Air Cdre”) Jennings emailed Air Cdre Paul in respect of a posting for Wg Cdr Steele [HB873]. Air Cdre Jennings reported that Wg Cdr Steele felt he could not work for Gp Capt SangerDavies as Gp Capt Sanger-Davies was promoted ahead of Wg Cdr Steele who had come top of the promotion board. Air Cdre Jennings reported that Wg Cdr Steele feared that his health would be affected by such a move. The email went into detail about considering Wg Cdr Steele’s posting and the relevant career options for him. She considered a job at the Military Aviation Authority but for various reasons determined that a posting at the Regional Legal Office at RAF Coningsby was the preferred option, irrespective of the claimant’s personal objection to working for someone who he perceived to have been promoted over his head.[44]Previously, Wg Cdr Steele had written to AVM Mardell advising her that he had made a formal complaint and told her that he had received advice from MOD Quality & Diversity Advisors [HB869]. AVM Mardell was keen to meet with the claimant to attempt to allay his concerns. On 13 August 2018 AVM Mardell wrote to Air Cdre Jennings stating that she was concerned about the claimant who feels unable to meet with his legal chain of command although she noted that the best thing that they could do for Wg Cdr Steele at that stage was to get him back into a branch as soon as possible with a posting to the Regional Legal Office at RAF Coningsby where he could be properly supported and reassure him that he still had the potential for a full career in the Legal Branch.[45]On 21 August 2018 AVM Mardell wrote to Wg Cdr Steele recognising that he had concerns about the RLO RAF Coningsby posting. AVM Mardell explained the rationale for this posting decision. Significantly AVM Mardell said the RLO would directly meet the feedback from the promotion board of that year and provide the claimant with the experience he would require to progress. He was informed that this measure allowed him the opportunity to manage a Regional Legal Office as chief of staff and provided him with a wider experience of legal work and line management responsibilities [HB875].[46]On 28 August 2018 the Chief of Staff Personnel (“COS Pers”), who we believe was AVM Chris Elliott, wrote to the Chief of Staff [effectively the head of the RAF Personnel] in respect of a personal issue with Wg Cdr Steele. She referred to him becoming “somewhat erratic” in his correspondence and said that she anticipated that he would seek to elevate his grievance to her (the Chief of Staff) level. We were puzzled why these issues were referred to the highest chain of command in the RAF when this was not raised with the claimant directly. Indeed, this appears to have been raised rather surreptitiously. By that stage the claimant had raised 2 Service Complaints (i.e. on 12 April 2017 and 17 June 2017). There is no evidence that COS Pers criticism of the claimant was investigated. Little more seems to have been done other than this senior officer “marking the card” of a more junior officer or attempting to do so. In a strictly hierarchical organisation the detriment is obvious, but it does not appear to be in response a protected act. We considered whether this note reflected a wider (perhaps non-discriminatory) culture of senior RAF officers uneasy and apparently unused to being challenged. However, we saw no wider indications than this possibly malicious, certainly inappropriate, response.[47]On 3 September 2018 the claimant submitted his first protected act. This was a Service Complaint, in the format of the third Service Complaint that the claimant had submitted [HB849-899]. The claimant said, and we accept, that it was not permissible (or difficult) to amend a Service Complaint once raised; and a further Service Complaint had to be raised for any further dispute on what might appear to be the same or connected issue. We note that one service complaint appears to have been amended, but the claimant’s evidence on this point was not disputed by the respondent. The claimant complained of bullying, harassment, intimidation and victimisation, which he said emanated from the senior leadership of the Legal Branch. He complained of a toxic environment, colleagues leaving and a climate of fear. The claimant referred to 2 examples of intimidation and said that evidence had recently been disclosed showed his religious observance, accent and visible physical characteristics had been subject of comment in a derogatory document received by the Legal Branch in 2015 and stored to date. This email correspondence was later confirmed to have been sent by Wg Cdr Joanne Campbell to Gp Capt Jennings and kept (or stored) by Gp Capt Jennings. The claimant complained that he had been unfairly denied a place at the Advanced Command and Staff Course (“ACSC”) in 2016, 2017, and 2018, and unfairly denied promotion to Group Captain in 2017 and 2018. The claimant said that he was warned by 3 senior officers not to challenge this treatment because that would cause alienation. The claimant referred to taking advice from Equality and Diversity Advisers. This is clearly a protected act under s27(2)(d) EqA as the claimant had made an allegation (whether or not express) that someone has contravened the EqA.[48]The claimant was assigned to the Regional Legal Office at RAF Coningsby on 10 September 2018 [HB5519] and he started work on 10 October 2018 following a period of sick leave.[49]The claimant was given the formal warning (originally determined by AVM Grey) by Gp Capt Sanger-Davies and Air Cdre Kevin Sanders on his first day at RAF Coningsby [HB952a-d, 998]. The claimant challenged the formal warning [HB880-892] and he referred to his protected act in that document.[50]There is some uncertainty about when the formal warning commenced, and this was dealt with in Air Cdre Sanders note which he read to the claimant in its entirety [HB952D]. The Legal Branch was tasked with administering the formal warning. The start date for the formal warning was given as being 24 August 2018 and by 10 October 2018, over 1½-month had passed. Air Cdre Sanders determined not to restart the process but instead to monitor Wg Cdr Steele for the remaining period of the final warning, which was to be just under 2 months. The warning was clear that the fact that the claimant had been given a criminal conviction needed to be marked by some form of formal action. The conviction itself led to a conclusion that the claimant’s conduct fell below the standards required of a senior officer in the RAF. Air Cdre Sanders noted that the claimant’s “overall” conduct had fallen below the standards expected, particularly from a Legal Officer and that his attitude and performance, therefore, would be monitored for a period of 3 months [sic]. This did not relate solely to the conviction but also the manner in which the claimant was said to have conducted himself with others in the RAF and his engagement with them. Air Cdre Sanders directly referred to COS Pers raising issues with the Legal Branch about Wg Cdr Steele’s approach in which she questioned his judgment, the manner he conducted himself and his professionalism as a lawyer. Air Cdre Sanders informed the claimant that he should be cognisant of his dealings with others in the service and to judge when to challenge and if he did challenge, to do so appropriately and with respect. It is not clear what this meant but the Tribunal reads this as a veiled explanation that the claimant had upset AVM Elliott and possibly some other senior officers about his unwillingness to “take his medicine”.[51]Of significant relevance, Air Cdre Sanders said: The Branch does not support any separate administrative process at this stage as a result of the issues/concerns raised and considers the extant FW is sufficient mechanism to assure your judgment and conduct.[52]Air Cdre Sanders referred to the significant stress that the claimant had been under and hoped that matters would progress satisfactorily (so effectively the claimant was told that ongoing complaining and engagement would be taken into account for the duration of the final warning and if this was problematic then it might lead to an extension of the warning).[53]According to Air Cdre Sanders’ statement and the evidence of Gp Capt Sanger-Davies, as well as the claimant, matters progressed well at RAF Coningsby. However, the day after the warning, the claimant completed a Armed Forces Equality and Diversity Complaint/Incident Record [HB924- 925] in which he complained about AVM Jennings and contended that she had orchestrated the formal warning and had been undermining his career progression. The complaint suggested he merely wanted this to stop, and the matter be raised with the Station Commander, AOC (the Air Officer Commanding) 1 Gp and AVM Jennings. Wg Cdr Steele said that returning to work for the Legal Branch could be detrimental to his wellbeing. The form noted that the claimant would consider his options available in respect of informal or formal routes. Following this, Sqn Ldr Matt Branch, the officer commanding Personnel Management Squadron, said that he would keep the matters confidential, reporting on an anonymised basis to the Station Commander until the claimant told him otherwise [HB923].[54]The claimant and Gp Capt Sanger-Davies met for the formal warning second month progress review on 12 November 2018 and no problems were recorded [HB1000].[55]The third month progress report occurred a little over 2 weeks later on 28 November 2018. Although this recorded the warning as of 31 August 2018, and was written on the same day as the earlier progress report, the claimant contended that matters had been progressing well. He referred to his work in the Legal Branch Cyber Cadre. The claimant raised the issue of his conviction for which he clearly remained dissatisfied. The claimant referred to COS Personnel reminding him that should he remain dissatisfied with the formal warning then he ought to consider submitting a Service Complaint. Gp Capt Sanger-Davies referred to the claimant conducting his work with professionalism and that there had been no incidents that raised any concerns about the claimant either as an Officer or a Legal Adviser. He referred to Wg Cdr Steele achieving high standards of professionalism. Gp Capt Sanger-Davies concluded the period for formal warning [HB1002- 1004].[56]On 12 December 2018 the claimant complained about “extreme” bullying [HB1049]. The antecedence of this complaint is reflected in an email exchange commencing in the hearing bundle at page 1056. The claimant queried when his formal warning period was over as this, understandably, concerned him [HB1054]. The claimant contended, we believe rightly, that his formal warning should have expired by 24 November 2018. On 28 November 2018 he had a meeting with Gp Capt Sanger-Davies to sign off the formal warning, but he was subsequently told by Sqn Ldr Branch on 11 December 2018 that this was a “recommendation” and that the final warning had not been “formally closed” [HB 1052]. This considerably unsettled the claimant, and he subsequently wrote to the Station Commander, Gp Capt Mark Flewin, about the bullying, seemingly the uncertainty and/or delay about signing off or “withdrawing” the formal warning.[57]Matters were further muddled when on 26 November 2018 Gp Capt SangerDavies wrote to the claimant confirming that the formal warning had “time expired” but he asked for some further reflections in writing so that he could “close out on the FW” [HB997]. On 7 December 2018 the claimant chased Gp Capt Sanger-Davies for confirmation about the current situation in respect of his formal warning [1038].[58]On 11 December 2018 Sqn Ldr Branch wrote to the claimant saying that the delay was on his part “as we were awaiting the signed review print from you” [HB1050]. The claimant immediately took issue with this in forceful terms. The claimant contended that he had never received a review print and he also contended that this was not part of the process. We (the Tribunal) have not been taken to any aspect of the relevant formal review process to confirm whether this was a necessary step. Anyway, the claimant complained to Gp Capt Flewin about bullying. If Gp Capt Flewin read the email chain carefully he would have seen that the bullying the claimant was complaining about was directed towards the Legal Branch as significantly Sqn Ldr Branch commented as follows: Regarding your request for a posting without prejudice, during one of our meetings I explained that a Detachment Without Prejudice (DWP) could be considered when a Complainant makes an allegation of bullying and/or harassment about their line management to afford a degree of separation while the complaint runs its course. At the time you perceived that it was the Legal Branch/DLS that was responsible, therefore if you did raise a complaint I agreed to liaise with APC regarding the viability of a DWP (an abridged summary from the informal form I sent you is below): “Moreover when Wg Cdr Steele expressed that it was the Legal Branch that was implicated in the behaviour towards him (specifically he perceived it to be via AVM Jennings) and that returning to work for the Legal Branch may be detrimental to his wellbeing. OC PMS explained that he would investigate the mechanism that would allow Wg Cdr Steele to work outside of the Legal Branch should the circumstances warrant it – noting that it was not certain that this would be an option. “• Should Wg Cdr Steele request it idc, OC PMS would liaise with APC regarding the viability of a DWP should the circumstances warrant it” You mentioned that you have raised the matter of posting without prejudice with HQ Air, if you have now raised a complaint and wish to explore the DWP options please note that this is normally staffed via my team before advice is sought from Air. Once there is an agreement in place with the various stakeholders, A1 Ops can then task accordingly. Please let me know if you would like me to liaise with APC regarding a potential DWP?[59]It is very clear to the Tribunal that the claimant was complaining about the Legal Branch, and in particular AVM Jennings. So far as we can ascertain the grounds of his complaints at that stage seem to be about:(a) the email of 20 March 2015 (which he suspected involved the subsequently promoted AVM Jennings); and(b) his formal warning and the perceived reluctance to withdraw the formal warning or sign it off; and(c) a number of issues around his non-promotion, withdrawal from the ACSC course and other matters surrounding the Freedom of the City of Glasgow, RAF officer(s) intervention in his appeal, his perception of eavesdropping on a telephone call he was involved in and the refusal of permission to attend a conference with the Israeli military. All of these matters centred on or involved AVM Jennings, but they were not so serious as the Service Complaint raised about 3-months earlier.[60]So, the Tribunal is puzzled why Gp Capt Flewin embarked upon an investigation into bullying at RAF Coningsby. The claimant’s relationship with Gp Capt Sanger-Davies at that time had always been cordial and professional and likewise, Gp Capt Sanger-Davies made the best of a difficult situation and always conducted himself professionally. The investigation of bullying and harassment at RAF Coningsby focused on a complaint against Gp Capt Sanger-Davies, but this was not the complaint that the claimant had made. Had Gp Capt Flewin sought to ask the claimant about his complaint before investigating it he would have been aware of the precise nature of the claimant’s concerns or grievance.[61]On 17 December 2018 Wg Cdr Shearing shared with Sqn Ldr Branch an update of Wg Cdr Steele’s position [HB1090-1092]. Wg Cdr Shearing said that he was concerned about the “atmospherics” in the Coningsby Regional Legal Office. He noted the situation was deteriorating rapidly. Wg Cdr Shearing referred to the claimant’s Service Complaints and broached the issue of a DWP, and he referred to the impact on the claimant’s health, which was said to be a prime consideration. It appears that some thought had gone into the DWP because Wg Cdr Shearing mooted who could be moved and the interest that this would have and the implications that would have on the service. He also raised the implications that this would have on Wg Cdr Steele’s career and his future promotion. At no stage did Wg Cdr Shearing raise that a Detachment Without Prejudice could lead to a Major Administrative Action Process (“MAPP”), a Minor Administrative Action Process or any other form of disciplinary action or proceedings.[62]Wg Cdr Shearing noted that he had arranged for an RAF Police Investigator (Flight Sergeant Gary Longley) to interview personnel in the Regional Legal Office and provide a report as, seemingly resources, were scarce to occasion a wider investigation. Wg Cdr Shearing concentrated on the claimant’s complaint against Gp Capt Sanger-Davies, which the claimant commented subsequently missed the point because his complaint centred on other matters which appeared to have caused Gp Capt Sager-Davies involvement and not the conduct of Gp Capt Sanger-Davies himself.[63]In respect of the email of 12 December 2018 [HB1046] the claimant says that the extreme bullying that he was subjected to was in respect of the administration and a formal warning. He said there was nit-picking about the type of work he was doing, which caused him to be off work with mental health problems. The formal warning had not been properly implemented and the claimant said that had been denied the opportunity to go to an Israeli military event and he had been told not to brief the university air squadron. He said that he went to the Station Commander because the Station Commander was his CO.[64]On 17 December 2018 Gp Capt Sanger-Davies met with Wg Cdr Steele. He gave the claimant the formal review print and invited him to sign the formal warning. The claimant declined to sign this and requested time to submit a response. At this meeting the claimant felt chest pain; he thought he was having a heart attack and the meeting was concluded without the claimant signing the formal warning. The claimant had accused Gp Capt Sanger-Davies of causing him to believe that the formal warning was still ongoing [HB1076].[65]The claimant was off sick following the suspected heart attack until 16 January 2019, although it is not clear that Gp Capt Sanger-Davies or anyone else made any enquiries as to the claimant’s medical position. It would appear that the claimant did not go to the medical centre but, inexplicably, we cannot find evidence of anyone taking steps to check what happened thereafter. The claimant was off sick until 16 January 2019.[66]We were not taken to any terms of reference for the respondent’s investigation into the bullying and harassment at RAF Coningsby. However, we were taken to a draft version of what might be the terms of investigation drawn up by Sqn Ldr Branch and shared with Wg Cdr Shearing on 19 December 2018. The bullying complaint was said to be aimed at Gp Capt Sanger-Davies and Flt Lt Modu and a document referred to an enclosure. The draft terms of reference in a separate-coloured ink talks about possibly widening the investigation to the Director of Legal Services [AVM Jennings] where appropriate but we are not sure whether this had been included in the finalised informal complaint. We suspect that it had not because AVM Jennings nor anyone else from the Legal Branch were ever interviewed. Furthermore, the respondent has not been able to produce a copy of the written complaint purported to be found at enclosure 1 and Wg Cdr Steele denies ever making such a complaint other than what was referenced in the email of 14 December 2018.[67]In any event, the claimant disputed that he made such a written complaint [HB1114]. The claimant’s evidence at the hearing was clear and consistent with the contemporaneous material, and we accept the claimant’s version as true and accurate, i.e. that he did not make a written complaint but that he merely shared some concerns with Sqn Ldr Branch, which he was considering whether to include in a Service Complaint. The issues raised by the claimant were in support of his DWP and the claimant saw the DWP on the basis that Gp Capt Sanger-Davies was somehow implicated in his previous service complaint, and he also said that APC Personnel were directly implicated, but in a more serious matter. The claimant went to some lengths to emphasize that he had not submitted a complaint about Sqn Ldr Branch or any party other than his previous Service Complaints, which were investigated separately. His document identifying concerns was produced to justify a DWP but not to support any formal process. The claimant was clear that he was making no complaint other than the Service Complaints he had already made and he said that he would be happy to make clear to Flt Sgt Longley, “there is no complaint from him to investigate”. Indeed, the claimant met with Flt Sgt Longley the next day.[68]The claimant saw that the principal justification for the DWP was that Gp Capt Sanger-Davies was implicated in a previous Service Complaint that the claimant had made (this was in respect of being promoted over the claimant’s head). Again, on 8 January 2019, the claimant wrote to Flt Sgt Longley that the DWP would be justified in any event because Gp Capt Sanger-Davies and APC were implicated in the Service Complaint. So, at this stage, so far as we can tell, there were 3 separate processes undergoing of which Flt Sgt Longley was at the centre:(a) an investigation into the claimant’s service complaint(s);(b) the claimant’s request for a DWP; and(c) a Station Commanders investigation into bullying in the Regional Legal Office.[69]We have not been provided with a copy of the claimant’s interview notes compiled by Flt Sgt Longley and this suggests to us that Flt Sgt Longley (at least) saw this as integral to investigating the Service Complaints. If ever there was clarity needed, in such a complex case, then it was required at this stage.[70]Wg Cdr Steele produced a “summary of concerns now subject to a service complaint and details of an interview that occurred on 08 Jan 19 and an interview between witnesses that occurred on 16 Jan 19”. In this document the claimant identified the bullying which he contended he was subjected to resulted in him being off sick and being admitted to an outpatients’ department of a hospital. The claimant described his escalating concerns and a deterioration of the situation that had significantly outweighed matters already reported, both in terms of their substance and the effects that they had on his health.[71]Matters came to a head on 16 January 2019. The claimant was due to return to work and he met with Gp Capt Sanger-Davies. It is noteworthy, and particularly surprising to the Tribunal, that Gp Capt Sanger-Davies did not enquire in any detail about the claimant’s health, nor about his current medical position. Instead, he chose to raise, for the first time, concerns about the claimant’s personal and professional failings. This represented a significant change, and escalation, in the respondent’s approach to the claimant. Gp Capt Sanger-Davies had not warned the claimant that he would be raising such concerns but in evidence Gp Capt Sanger-Davies said that he had discussed his concerns with Wg Cdr Shearing, and he agreed and prepared a schedule of issues with Wg Cdr Shearing to raise with the claimant. The claimant saw AVM Jennings as being implicated in this process because, he contended, just before the meeting she had telephoned Gp Capt Sanger-Davies [HB1211]. The claimant was told that Gp Capt Sanger-Davies had serious concerns over the claimant’s capacity to deliver legal advice and that the claimant had given final advice well short of professionally competent [HB1178]. In the contemporaneous correspondence, the claimant repeatedly complained that he was told he was to be placed on a programme of review [HB1212, 1214]. The type of review that was subsequently disclosed to the claimant was extraordinary restrictive with close level supervision placed upon this hitherto experienced and very able practitioner. The claimant saw such measures to be an attack upon his professional competency. Having heard the evidence, we cannot see the justification for these highly restrictive measures, given the claimant’s senior rank, his history of accomplishments, the longevity of his qualifications as a solicitor and his (previous) demonstrable good performance. It is just not good enough for Gp Capt Sanger-Davies to opine about the claimant’s competence with no corroborative material or contemporaneous assessment. The measures he and Wg Cdr Shearing sought to implement were at odds with the preceding high standards of professional advice and work delivered by the claimant, for which the claimant was able to point to contemporaneous evidence.[72]On 13 February 2019 Gp Capt Flewin determined there was no evidence to support Wg Cdr Steele’s allegations of inappropriate behaviour towards him by Gp Capt Sanger-Davies and he recommended that Wg Cdr Steele be immediately Detached Without Prejudice [HB1259-1261]. He stated: … I recommend that Wg Cdr Steele is DWP as soon as reasonably practical, but no later than his planed return to work following sick leave (at present his sick leave is due to end on 13 Feb 19). Despite this recommendation, I do not believe that Gp Capt SangerDavies has been oppressive, undermining or is guilty of petty criticism. Furthermore, although Wg Cdr Steele may perceive Gp Capt Sanger-Davies’ actions as bullying, I can find no evidence within the investigation to support this accusation. My observation is that Gp Capt Sanger-Davies’ interaction with Wg Cdr Steele has been reasonable and measured at every stage, despite the very difficult circumstances. What is also clear to me is that Wg Cdr Steele’s assignment to work for Gp Capt SangerDavies whilst he underwent the review of a FW, during an on-going Service Complaint relating to it, was exceptionally challenging to manage. Consequently, despite no malintent by Gp Capt Sanger-Davies, their professional relationship has deteriorated beyond reasonable recovery. The catalyst was:(1) the review and a formal warning despite Gp Capt Sanger-Davies recommending that it was withdrawn;(2) Wg Cdr Steele’s perception that Gp Capt Sanger-Davies was acting at the behest of the senior members of the Legal Branch; and(3) Gp Capt Sanger-Davies reasonable actions as a line manager endeavouring to offer correction and guidance to one of his subordinates, which Wg Cdr Steele perceived unfavourably. As their professional relationship appears irretrievable, I consider the DWP requested by Wg Cdr Steele to be appropriate to afford a degree of initial separation and, therefore, recommend that RAF Career Management (CM) identify a suitable onward assignment from RAF Coningsby to a role commensurate with his rank, experience and circumstances.[73]Notwithstanding Gp Capt Flewin’s desire to support the chain of command in asserting that Gp Capt Sanger-Davies had done nothing wrong, particularly in respect of point 3 (which we regard was wrong), there is no reference to any MAPP or any other form of disciplinary or punitive investigation or action against Wg Cdr Steele. It appears that Group Captain Flewin was even not aware of, what was subsequently contended to be, his key role in the MAAP. To be clear, the Station Commander did not support any MAAP.[74]On 1 February 2019 Sqn Ldr Branch relayed to Wg Cdr Steele that his request for a copy of the meeting notes of 16 January 2019 was refused. Sqn Ldr Branch invited the claimant to make a Subject Access Request [HB1257].[75]On 17 December 2018, the claimant sent a further service complaint, additional matters document to Sqn Ldr Branch. His email [HB1070] said: I am seeking urgent intervention to get me into a decent working environment where I can get on with my career free from this treatment, which I believe is linked to the legitimate challenges I am now pursuing. As I try to explain to Manning when they took ACSC from me, posting me into this role in which I am to advise APC and take direction from DLS, both whom, both of whom are clearly implicated in the Service Complaint was untenable…[76]In the document enclosed [HB1071-1074] the claimant said: I ask these unrelated matters be added to my existing Service Complaint and that I be granted a Detachment Without Prejudice outside of the Legal Branch until such time as the bullying and harassment Service Complaint has been dealt with.[77]He then identified a role at Joint Warfare and reaffirmed: My intention is to re-join the Legal Branch once matters have been resolved, but being in it at the present time is not conducive to my welfare or the progress of the Service Complaint, which already raises issues of bullying, harassment, victimisation, discrimination and intimidation.[78]The Major Administrative Action Process (MAAP) applicable at the time is at pages 139 to 147 of the hearing bundle with pages 148 to 173, annex A. The MAAP makes no reference to a deployment or detachment without prejudice (DWP). The MAAP provides for action to be taken “where personnel have demonstrated professional or personal failings” for which “Minor Administrative Action” may be considered inappropriate or insufficient. The introduction goes on to say that the MAAP “should be applied to deal with serious failings or standards of behaviour or performance that have fallen below that which is expected of a member of the RAF”. The MAAP provides a number of “sanctions” and the sanctions available to officers were:(i) Termination of commission under QR (RAF) 2095.(ii) Removal from branch.(iii) Delay time promotion.(iv) Removal of acting rank.(v) Posted (assigned) to another appointment commensurate to the subject’s training, ability and experience.(vi) Interview with AOC, in association with Formal Warning.[79]The MAAP notes that “any sanction awarded under Major Administrative Action is likely to have an impact on the subject’s career and/or employment within the service. So the MAAP process is effectively disciplinary action taken against a member of the RAF. The process is a fault-based process so either the individual is not guilty of the disciplinary matter, or they are guilty and one of the actions above is taken. In respect of follow-on actions for Commissioned Officers, the process provides at paragraph 37. Assignment. OC PMS is to liaise with the appropriate Desk Officer in RAF Manning prior to issuing a Directed Letter. The subject should be assigned to an appointment commensurate with their training, experience and ability. Such an assignment will usually but not exclusively be associated with another administrative sanction.[80]The respondents did not initially provide a copy of any DWP process, and no such policy or guidance document had been referred to in the contemporaneous documents. However, on day 8, after request from the Tribunal, the respondent provided a copy of a document entitled APC Standard Operation Procedure (SOP) – Detach Without Prejudice. This document was dated 2 March 2016 and was presented after the claimant had given his evidence. The policy states at the introduction: 1. This SOP details the procedures that are to be followed when processing a request to Detach Without Prejudice (DWP). A Service person (SP) may be DWP from their Parent Unit (PU) or from theatre when it is deemed untenable by their Chain of Command (Commanding Officer) for them to remain in post for a determined period of time. [The footnote envisages that this can include separating parties during a service complaint process]. 2. From the outset it should be the intention to return the SP to their PU when the reason/grounds behind the original DWP requests are no longer applicable. On occasions there may be the requirement to permanently assign a SP from their PU whilst they are DWP. If this is due to normal career progression then this should be cleared via APC due to an Assignment Restriction being placed on the service person’s JPA record. For any other reason a major administrative action process (MAAP) should be raised.[81]The first the claimant knew about a MAAP was on 25 March 2019 in an email from Flt Lt Benn who was responsible for human resources at RAF Coningsby [HB1343]. Flt Lt Benn wrote as follows: I have been requested to initiate MAAP following the Stn Cdr’s recent recommendation that an alternative assignment should be considered. I believe you have been corresponding with OC BSW in regards to this. You’ll be aware that I have to formally inform you that a MAAP is to be raised and that you may give an initial statement as to your understanding of why this is being raised as well as any concerns or thoughts you may have on the process. If you want to discuss anything, please give me a call. If not I’ll see you when you come in for your meeting with the Stn Cdr tomorrow and we’ll discuss how this will move forward.[82]The claimant was clearly worried at this development, so he immediately spoke to Flt Lt Benn and responded in writing within a couple of hours [HB1342]: Thank you for taking the time to speak and to explain the context. I feel reassured that this process is not on account of any perceived personal or professional failings on my part and is simply what must now be done with regard to the posting. I confirm that I remain able to serve anywhere; the obvious exception to that in my mind would be HQ Air Command but that is solely on account of that being the location of where several implicated in ongoing Service Complaints are based. I would regard a posting to that location to be fraught with significant difficulties for both me and those implicated. I understand that SSAFA and RMC Staff agree [this is in reference to the claimant’s health]. In terms of positive alternatives, I would respectfully suggest: ACSC directing staff*; Any command appointment suitable for all branches; Any ADC [Aide de Camp] post in the Royal Household; JOPC [Junior Officer Programme Course] Staff. Longer term, my desire is to return to the legal branch, once matters raised in various Service Complaints have been resolved. * I should add that I was due to attend ACSC last year, but the place was revoked with a matter of days to go. I have since obtained a further A-OJAR, again recommending me for the course and I sincerely hope that a place will be offered. If that were the case, the redress sought in several of the Service Complaints could be amended. I will stand by to feed into the process as required and I thank you again for taking time to explain matters this morning.[83]We accept that the claimant was told that the MAAP was merely an administrative process to supposedly achieve his redeployment and, specifically, that he was assured this was not directed or implemented as a disciplinary or punitive measure or response. We did not hear from Flt Lt Benn, but we reject the evidence of the respondent witnesses, particularly Wg Cdr Shearing, who contended that it was obviously a disciplinary (or quasi-disciplinary) process. We prefer the evidence of the claimant and the contemporaneous documents. We resoundly reject the respondent’s version of events as misleading, perhaps deliberately deceitful. The claimant’s account is even more convincing as he was not given a copy of the MAAP document until much later.[84]In any event, even at this early time the claimant suggested an extensive range of training and command roles he could and would undertake.[85]On 12 July 2019 Wg Cdr Shearing wrote to Sqn Ldr Podmore [HB1676- 1677]. Sqn Ldr Podmore was a senior Personnel Officer in the Service Complaints Team. Gp Capt Todd was copied into this correspondence, as were various other individuals. Wg Cdr Shearing referred to the claimant’s MAAP response making references to service complaints that he had submitted, and he made reference to the claimant submitting a case to the Employment Tribunal on the basis of victimisation and discrimination. So, it was obvious to all of the parties to this correspondence that the claimant has made a protected act. Wg Cdr Shearing’s tone was quite dismissive of the claimant, which we determined was revealing. That tone was never challenged by these senior officers and others throughout the contemporaneous correspondence. It is odd, possibly conspicuous, that none of these senior officers raise any notes of caution or possible concern about what might appear to be a negative response after a colleague had raised complaints of discrimination and victimisation. Wg Cdr Shearing said that it would be important for the “Decision Authority” to understand various matters in respect of the Service Complaints, and he asked for some specific information: the total number of the claimant’s complaints; an overview of the nature of the complaints; the stage each complaint was at; and a “comprehensive” list of respondents and potentially affected persons. We were never really given a satisfactory explanation from Gp Capt Shearing at the hearing as to why the “Decision Authority” might want this information. We determine that Wg Cdr Shearing was at this early stage building a disciplinary case against the claimant. If Wg Cdr Shearing was seeking to understand the claimant’s concerns then he should have merely asked to read his Service Complaints and relayed the gist of these, if necessary. Given the tone of his correspondence from the outset, we believe that Wg Cdr Shearing would not give a neutral explanation of the claimant Service Complains and/or Employment Tribunal case in any event. However, Wg Cdr Shearing sought not to understand the concerns raised by the claimant in his enquiry of 12 July 2019. It merely looks like he was attempting to garner sufficient information to present the claimant in an unfavourable light, otherwise he would have sought to understand the claimant’s concerns to present them in a more neutral manner, rather than focus exclusively upon the disruption these had raised or would raise.[86]He asked if this information could be dealt with promptly as he wanted to get on with the MAAP. Significantly, given the extraordinary long time it had taken for the respondent to address the claimant’s Service Complaints, Wg Cdr Shearing did not want to know (either for him or the Decision Authority) why these had not been progressed, nor did he ask if the claimant’s index complaints could be expedited. So, he was anxious to extend the MAAP into this area of the claimant’s Service Complaints and the expediate a return of information for use in the MAAP but, inextricably not to expedite the investigations into the claimant’s index complaints.[87]Sqn Ldr Podmore responded on 15 July 2019 [HB1674-1676]; at that stage the claimant had made 11 Service Complaints. Sqn Ldr Podmore noted that the claimant’s first 3 Service Complaints were being administered by other services and the remaining 8 Service Complaints were awaiting determination to see if they were admissible. The Service Complaints officer provided a table of the claimant’s Service Complaints which included an overview which identified in the protected act “bullying and harassment Legal Branch – corrupt and toxic, Promotion and ASCS”. He identified 7 respondents who he said Wg Cdr Steele named and identified a category of “potential respondents and affected personnel” of 16 individuals who he lumped-in together (including Gp Capt Jennings and Wg Cdr Shearing). As for the remaining complaints (i.e. the non-protected acts) Sqn Ldr Podmore identified complaints of bullying and harassment, lack of promotion, administration of final warning, conduct of court assisting officer, RAF lawyers operating without a certificate, one identified count of discrimination and other matters.[88]The information provided by Sqn Ldr Podmore on 15 July 2019 was subtracted from the context, so it was highly prejudicial to the claimant and to a large extent more prejudicial than sending the enquirer the service complaints. Allegations of bullying and harassment, corruption, toxicity, even discrimination are starker when the details of these allegations have not been provided. So the reader would see this table as casting the claimant’s complaints in their widest and most serious manner. There was no attempt to set the complaints themselves in context nor to report upon duplication nor to advise upon whether these complaints could be expedited and if not why not.[89]On 30 September 2019 Sqn Ldr Podmore sent an updated table to Gp Capt Todd, AVM Pentland (who was involved in the decision making and appeals for the service complaints) and Wg Cdr Shearing. The updated table included an additional 5 complaints and paradoxically one of those complaints included a complaint about sharing of evidence and confidential information by APC [HB1939-1941]. We do not know why Sqn Ldr Podmore updated the relevant information at this stage because there is no email request provided.[90]In evidence Wg Cdr Shearing said that he received a letter in November 2019 in which he was named as a respondent in the claimant’s Service Complaint, according to Sqn Ldr Podmore’s schedule of service complaints [HB1939-1941], the only complaint that Wg Cdr Shearing had been named as a respondent to at that stage was a complaint of 9 September 2019, Service Complaint 14. In contrast AVM Jennings could not recall when she heard about the Service Complaint (which we find unconvincing). So Wg Cdr Shearing had heard within 2 months of the relevant Service Complaint. The claimant did not name AVM Jennings as a respondent until Service Complaints 4, 6, 7, 8, 9, 10, 11, 13 which were raised between 19 February 2019 and 9 September 2019. Whilst we note that the protected act Service Complaint did not name AVM Jennings as a respondent – she was identified as a potential respondent by the Service Complaints team, and she figures significantly in the narrative. AVM Jennings said that she did not know of the plethora of complaints against her until very late in the process and none of these Service Complaints were in respect of the protected act. We were not provided with any correspondence from any of the Service Complaint team to state how they were informed and Wg Cdr Shearing’s notification has not been provided to us. The “notification of respondent’s status in a service complaint and appointment of a decision body” sent to Wg Cdr Shearing on 28 November 2019 [HB2371-2372] appears to be a fairly standard letters such as the type that we infer was sent to all of the identified respondents shortly after (and within 2 months of) these Service Complaints having been made.[91]The claimant complained about the lack of progress in his Service Complaints on 26 September 2019 [HB1926] and that email identified his complaints but did not identify any respondents and gave a very brief and neutral description of the complaints.[92]At the hearing, the claimant took Gp Capt Todd through the list of Service Complaints prepared by Sqn Ldr Podmore and Gp Capt Todd accepted there were errors, which we regard as substantial, in identifying named respondents. So, the material relied upon by Wg Cdr Shearing in respect of the Service Complaints was both prejudicial and inaccurate.[93]The respondents’ position in respect of the Service Complaints is utterly perplexing. Gp Capt Todd and Wg Cdr Shearing said it was important that the investigators and Decision Body understood the nature of the claimant’s Service Complaints and the amount of people affected but they did not want to know the details or thought it was unnecessary to know the details because that was confidential. By not reading service complaints then these complaints cannot be seen in proper context and the repetition of complaints be assessed nor the seriousness. The table form presents these complaints in what a reasonable reader would infer to be in their most serious format. So, this table elevated the perceived disruptiveness without conveying adequately the complexity or seriousness of these complaints. This was a significant detriment.[94]The claimant complains about a lack of confidentiality. Whilst there was a breach of confidence in that the information was shared between the Service Complaints officer/team and those investigating the MAAP and whilst the information was disclosed in an inappropriate manner the claimant had an expectation that his Service Complaints would be treated confidentially. The claimant had disclosed various aspects of his complaints to other people and discussed the fact that he had made Service Complaints, so confidentiality was not inviolable. Sqn Ldr Podmore did not ask the claimant for his permission to provide this information, nor he did not even bother to inform Wg Cdr Steele about this disclosure. Under the circumstances we accept that this was a detriment albeit not a particularly significant detriment. In our determination the significant detrimental treatment was not breaching the confidentiality but utilising this information for the MAAP and that this was to the claimant’s detriment. Wg Cdr Shearing complained that the claimant had “weaponised” the Service Complaint procedure. We do not believe that this is true. The claimant was fastidious and compulsive about challenging any mistreatment that he perceived he suffered, but his Service Complaints should have been identified promptly and then progressed through an appropriate structure that gave a clear outcome within a reasonable period of time. That did not happen here, the claimant’s Service Complaints languished and we have not been provided with any information why it took so long or indeed, surprisingly, why Wg Cdr Shearing and Gp Capt Todd seem to have made no efforts to hurry things along. Instead, they utilised the claimant’s complaints against him, removing them from their context so as to elevate their argument about the disarray that he was causing. The claimant said that he needed to raise a different Service Complaint for each individual issue and that the service complaints were free-standing. We accept this. So, the system and the delays readily engineered numerous complaints.[95]On 9 October 2019 Wg Cdr Shearing wrote a report entitled “Major Administrative Action Process – Disclosure of APC Advice to Wg Cdr Steele (8701370W) RAF Legal Branch – RAF Coningsby” [HB1982-1199]. This report contained a recommendation that the claimant’s commission be terminated. The report is highly condemnatory of the claimant[96]The report firstly dealt Wg Cdr Shearing’s involvement and he referred to a number of allegations as to his involvement in the case. The report went on to say: … He [the claimant] is a member of a specialist branch and I have no personal interest in any aspect of Wg Cdr Steele’s career or future promotion. However, he states as follows: My advice in this case is my impartial professional opinion and I categorically state that it is in no way influenced by the numerous complaints and threats [our emphasis] made by Wg Cdr Steele against me or my staff [WC Shearing then referred to a dispute at the outset of a previous major administrative action] over the course of the last 2 years.[97]Wg Cdr Shearing highlighted the background in respect of the claimant’s formal warning. He stated: … He has therefore vociferously objected to the issuance of a FW and the impact he believes it has had on his career prospects, which has given rise to allegations of bullying, harassment, victimisation and discrimination, as he perceives this action has been taken against him because he is Scottish, male and a Christian, rather than because he is a commissioned officer and a lawyer with a criminal conviction. Should there have been any motivation to discriminate or victimise, then the criminal conviction in Sep 16 would have been this ideal opportunity to have dismissed him from the service.[98]The report directly refers to the Equality Act 2010 and Wg Cdr Steele’s claims of victimisation and discrimination, and Wg Cdr Shearing commented that “… it is challenging to understand how someone’s actions can themselves be considered discriminatory even when they were based on someone else’s (alleged) discriminatory motivation”.[99]Under the section marked “Service Complaints” Wg Cdr Shearing wrote: … His SC’s generally relate to allegations of bullying, harassment, discrimination and victimisation relating to alleged mistreatment by the RAF Legal Branch, APC, the RAF Career Management Organisation, the RAF Police and assorted other individuals, which have allegedly had an adverse impact on his career progression (promotion) and attendance on AST.[100]Gp Capt Shearing’s evidence to the Tribunal was that, at this stage, he had not considered the claimant’s Service Complaints, and neither had any other decision-maker, so we do not understand why they are so abruptly and definitively dismissed. Furthermore, Wg Cdr Shearing went further; he suggested that the delay in progressing the claimant’s Service Complaints was the claimant’s fault. He stated “… it does appear that there is some deliberate attempt by Wg Cdr Steele to frustrate and thereby undermine the credibility of the process”. This is highly prejudicial and (at least) misleading. We have not been provided with any evidence to corroborate the accusation that the claimant delayed, frustrated and undermined the Service Complaint’s process. At various stages the claimant complained about the delay and it was obviously against his interests to compound the respondent’s delays. We have looked through 18 leaver-arch files of materials and cannot see anything to support the accuracy or truthfulness of Wg Cdr Shearing’s statement.[101]Wg Cdr Shearing wrote a table of 21 largely senior and very senior individuals identified as affected or potential respondents. The advice identified “16 Service Complaints and counting” and identified an ACAS application (preliminary to ET) at least 3 separate reports to RAF SIB [Special Investigations Branch] and a detachment without prejudice move (which was now used against him). The report states: It should also be noted that Wg Cdr Steele does not wish to return to the [Legal] Branch until his SC’s “have been resolved”. It is suspected what he means is “resolved to his satisfaction” and it is questionable whether a resolution to his satisfaction could ever be reached now without a damaging and lasting impact on the operational effectiveness of the RAF Legal Branch and a significant number of its personnel.[102]In terms of wider employability, the report says that the only active branch that Wg Cdr Steele was willing to consider was the Chaplaincy Branch, which was a conviction-free branch on entry and required personnel to be ordained chaplains. Again, this is highly prejudicial and wrong. At the hearing the claimant said that his terms of service required that he be deployed anywhere. He was critical of RAF personnel who objected to certain deployments because, he said, it was a central feature of service life that personnel needed to service at various locations and with people that they would not necessarily choose to serve with. He said, and we believe, that he would serve anywhere and that he would never refuse a deployment. This is confirmed by his history of overseas deployments and by the fact that when deployed to the same building as the RAF Legal Branch headquarters, he attended and, according to Mr Hashman, he performed with distinction. The claimant’s position at the hearing was consistent with the contemporaneous documents authored or copied to him. The claimant requested that he not work alongside certain senior officers, notably in the Legal Branch and he gave good reasons for separation, including his health. Significantly, the claimant did not refuse, or say that he would refuse, any deployment and in various exchanges, notably on 25 March 2019 (above) he proffered constructive suggestions.[103]In his “Summary” Wg Cdr Shearing states “personal witness statements and individual names of personnel affected have deliberately not been used in this note, as it is disclosable to Wg Cdr Steele and there will be inevitable and predictable consequences to the exposure of their names”. We have not seen any evidence of Wg Cdr Shearing correlating any witness statements and the only witness statements that seem to have been taken to date were utilised in the Service Complaints and DWP process conducted by Ft Sgt Longley (who obtained witness statements from Gp Capt SangerDavies and Mrs Julie Berry, a civil servant at Coningsby). So, again this is highly prejudicial and misleading to suggest that there was witness evidence to suggest the contended unsustainable staff-work that impacted on the health and well-being of numerous other Service personnel and the operational efficiency of 2 branches over 2 years. The summary went on to say: The manner in which Wg Cdr Steele has handled his perceived grievances, in his determination to gain promotion, has irreparably undermined his professional credibility and relationships not only with the RAF Legal Branch but with all those AORs [areas of responsibility] who have had to deal with him and his persistent efforts to strengthen his own Employment Tribunal case which, by his own admittance, he has been planning for some time. [WC Shearing referred to an ACAS Early Conciliation Certificate and the Employment Tribunal claim form being submitted on 5 September 2019]. … In his efforts to intimidate personnel into giving him what he wants, a promotion to Group Captain and a place on AST, he has raised a total of 16 SCs, incriminating 42 officers, and reported several senior members of the RAF Legal Branch for criminal matters without any evidential basis for doing so. …. The proclaimed nature of his disclosures has yet to be tested, and its status is questionable, not least for it to be protected any claim of discrimination (in this case on grounds of race, sex or religion) needs to be done in good faith. [The respondents do not allege that the claimant made any of his complaints in bad faith] or be in the public interest. Wg Cdr Steele’s motivation for claiming race, sex and religious discrimination is not clear, and it is not easy to believe that he genuinely thinks he has been discriminated against because he is Scottish, male or a Christian. … The SC process is independently assured and has oversight by the Service Complaints Ombudsman but Wg Cdr Steele has not shown the patience and dignity1 required to allow the system to investigate his claims thoroughly and appropriately. He has continually piled2 new SCs, new allegations and new evidence on top of SCs 1 Our emphasis 2 Ibid already being dealt with [sic] and tried to manufacture criminal investigations at the same time into the same people he has put SCs against. It is now clear that the only way the Service will be able to manufacture any headroom with which to adequately deal with the current complaints is to create a circumstance whereby he can no longer keep adding to the pile [WC Shearing said that the number and nature of Wg Cdr Steele’s Service Complaints had to be updated 4 times whilst writing this advice.[104]Wg Cdr Shearing’s advice/recommendations is peppered with reference to Wg Cdr Steele’s “intolerable” behaviour, the “extreme” administrative burden which had fuelled an environment of fear and worry and Wg Cdr Steele’s combative and tenacious sense of personal injustice. The use of emotive language was prominent. What was not featured in this recommendation, was a breakdown of the details or the evidence of the intolerable extreme administrative burden. There is reference to a plethora of emails but how this was supposed to have created the environment of fear and worry that was complained was not made clear. That said the recommendations made it clear that “APC do not believe that the evidential burden has yet been reached to fully justify a discharge for misconduct”. So, as well as not producing the evidence for such an intolerable extreme administrative burden, even on Wg Cdr Shearing’s own assessment this fell short of “misconduct”. However, Wg Cdr Shearing then proceeded to recommend the termination of Wg Cdr Steele’s commission under QR2905(3) unsuitability.[105]Wg Cdr Shearing set out the decision options which included employment in the RAF Legal Branch, employment outside the RAF Legal Branch and compulsory termination of the claimant’s commission under Queen’s Regulations. He recommended termination under: QR2905(3) An officer who was not committed misconduct may at any time be called upon to resign their commission on grounds of unsuitability, incapacity, inefficiency or other similar reason… APC Recommendation.[106]In contrast to the report, the evidence of numerous key respondent witnesses was that the claimant could put in as many Service Complaints as he wanted. There was no limit to the Service Complaints and AVM Jennings, Wg Cdr Shearing, Gp Capt Todd all emphasised that the volume of complaints should not be used against the claimant. However, this was not reflected in Gp Capt Shearing’s report recommendations because we read the whole gist of his complaint was that the claimant was a serial complainer, his complaints involved a number of people, he wrote a lot of emails, and this upset people and was hugely disruptive. Beyond the mere allegations, there was not one shred of evidence of the actual effect of the claimant’s disruption and, significantly, no one had made a formal complaint about the claimant. So, no action had been taken against the claimant, prior to this dismissal-orientated process.[107]The Shearing report made no reference to the claimant’s positive report appraisals, his high scoring for promotion to Group Captain level and his positive career trajectory to date. The report made no assessment of the claimant’s work before his posting to RAF Coningsby and after his posting to Coningsby, which we accept was at an excellent or very high standard. The report did not mention that the claimant said that he would work anywhere and that he merely recommended that he did not want to work with a number of people who he had made service complaints against. This was sensible, but if there was an operational requirement then we determine the claimant would have worked with these individuals and indeed he did work at HQ Air (RAF High Wycombe) in the vicinity of many of the people he had made complaints about.[108]The report made no reference to the claimant raising a possible transfer to Personnel Support or Intelligence Branches notwithstanding that we are not satisfied that this was investigated fully by Wg Cdr Rowley. We were also concerned about Wg Cdr Rowley’s evidence [see paragraphs 82-83 of claimant’s submission]. Wg Cdr Rowley did not try particularly hard to redeploy the claimant. Her evidence was not impressive, and she could not adduce contemporaneous evidence or really any documentary evidence of job searches. She was wrong to discount the claimant from cyber roles, particularly as he had some considerable expertise in the legal aspect of cyber warfare so Wg Cdr Rowley should, at least, have considered whether he could have been available in a cyber warfare unit or alternatively whether he had sufficient skills to undertake operational cyber warfare roles. She ruled out working in embassies or a place on the advanced command and staff course, teaching or any other real roles. Wg Cdr Rowley did not look for any other roles for the claimant after July 2019 which is concerning as the claimant’s whole employability within the RAF was a significant factor in his subsequent discharge. In answer to a question from the Tribunal Wg Cdr Rowley said that she continued to look for opportunities available to the claimant on an ongoing basis, but we do not believe her, particularly as this was not in her witness statement and there was no contemporaneous evidence in the voluminous hearing bundles to confirm that any such searches were undertaken or reports of searches or any correspondence referring to any ongoing searches.[109]The claimant had some experience in dealing with the US military and overseas deployments, yet no enquiries were undertaken about vacancies in NATO or elsewhere. Yet these were the issues that had caused his employment to come into question. So we are not convinced that there was a proper evidential basis to support Wg Cdr Shearing’s contention that there was no available redeployment options for the claimant, particularly as the claimant’s position with Finance at RAF HQ went well (although we note that that position time limited).[110]By this time, the claimant had registered 2 protected acts, i.e. Service Complaint 3 and the initiation of Employment Tribunal proceedings. The reference of Wg Cdr Shearing in respect of the Equality Act refers to Employment Tribunal proceedings notwithstanding he does not appear to fully understand the nature of victimisation. Wg Cdr Shearing also made several references to the claimant’s Service Complaints.[111]Wg Cdr Shearing’s report was accompanied by a report from AVM Jennings [HB2000-2004]. Her report, particularly as it is written by a solicitor and the Head of a Legal Service, is extraordinary. The report presents its contents as a matter of fact, yet there was no separate investigation or evidence set out to justify AVM Jennings recommendations. She stated: As a result of an irretrievable breakdown in trust and the ruptured relationship between the RAF Legal Branch, its hierarchy and Wg Cdr Steele, I do not consider there are any viable options for the employment of Wg Cdr Steele in the RAF Legal Branch now or in the future3. The fracture of the relationship between Wg Cdr Steele and a significant number of the RAF Legal Branch’s Officers is beyond repair, to the extent that time and distance will not heal it. I therefore consider that Wg Cdr Steele can no longer continue as a Legal Officer within the RAF Legal Branch.[112]AVM Jenning’s report says that her deputy (Air Cdre Sanders) and all 4 Gp Capts at the Legal Branch had said that they do not want to work with the claimant and neither did other officers; but there is no further evidence of this potential mutiny (at least not that we have seen). It is telling that AVM Jennings finished her report by saying that “without apportioning any blame” her and her colleagues were not leaving so, effectively, the claimant had to go.[113]From our assessment of the chronology, we regard the Employment Tribunal claim as the final nail in the claimant’s coffin. Service Complaint number 3 was key in respect of all the Service Complaints as this was far ranging, involved a number of senior officers and made various complaints about discrimination. So, Service Complaint 3 overshadowed all of the other Service Complaints. So, if Gp Capt Shearing and AVM Jennings (and others) took against the Service Complaints collectively then Service Complaint 3 was a prominent feature. However, the Employment Tribunal proceedings took away the RAF’s power/authority to have a significant influence on the resolution of the claimant’s complaints. It took what was an internal matter or service matter out of that arena and into the public arena of the Employment Tribunal and the complaints of discrimination would be under scrutiny outside the RAF and that resulted in a sea change in how the claimant was dealt with.[114]On 17 July 2019 Gp Capt Shearing specifically quoted the claimant's position to AVM Jennings and a Gp Capt in COS Pers as follows: I confirm that I remain able to serve anywhere; the obvious exception to that in my mind would be HQ Air Command [Gp Capt Shearing’s emphasis], but that is solely on account of that being the location where several implicated in ongoing service complaints are based. I would regard a posting to that location to be fraught with significant difficulties [Gp Capt Shearing’s emphasis] for both me and those implicated. I understand that SFAFA and RMC agree…” [This is a reference to the welfare service and the claimant's service General Practitioner who provided appropriate information].[115]But the claimant subsequently went to work at HQ Air Command and in an office directly below AVM Jennings. Wg Cdr Steele’s email goes on to state the problems between the claimant and APC were significant, when he said that working with or providing any legal advice to APC would rule him out of an immediate [our emphasis] assignment into a significant number of Legal Branch positions [HB1695-1696]. 3 Our emphasis[116]As late as 20 August 2019 Air Cdre Paul emailed Gp Capt Todd about the employment options available for the claimant [HB1774]: You asked me to seek Wg Cdr Steele’s view of what other Branches may be of interest to him as part of reviewing his current employability in the RAF Legal Branch. I spoke to him at 1530 hrs on Monday 19 Aug on the phone as he is currently signed off on sick leave. Unsurprisingly, he was very proud of being and wanted to remain a Legal Branch officer. Nonetheless, in recognising the purpose of my question, he stated that the Chaplains Branch interested him, although he fully recognised that he was not qualified for that at the moment. He also stated that Int [Intelligence] and Pers [Personnel] branches could be other areas of potential employment. However, to be clear, he sees this as an academic question/exercise because his employability is being reviewed; he is not seeking a Branch change.[117]On 13 November 2019 AVM Harvey Smyth (Air Officer Commanding Number 1 Group) referred the claimant’s case to the Air Force Board for a decision [HB2202].[118]The claimant applied for Early Termination, and this was actioned on or around 28 November 2019. Early Termination is these circumstances was effectively an attempt to resign his commission. The claimant said that this application for early termination was not voluntary; he said it was a way to prevent his mental health collapsing, and we accept his evidence in that regard. The claimant had been on protracted sick leave and matters had been progressed in a manner that he said he could not cope with. The claimant said that he had suicidal thoughts by that stage, which we accept.[119]We have reviewed the claimant's sick leave from 2014 onwards [HB5515] and this records no sick leave in 2014, no period of sick leave in 2015, no period of sick leave in 2016, no sick leave in 2017, no sick leave in 2018. The claimant experienced a significant amount of sick leave from 2019 onwards. He is recorded as being on sick leave from 17 January while at RAF Coningsby RLO until 26 February 2019. He then went off sick on 8 March 2019 until 22 April 2019. His final period of sick leave commenced 5 August 2019 where he was detached to RAF High Wycombe on his DWP and this continued until his termination from the service. From 1 November 2019 the claimant was marked “MTM – non-effective” which meant the most serious element of sick leave absence and a substantial incapacity.[120]The claimant told Gp Capt Todd that his sickness had been downgraded to temporarily non-effective on 29 October 2019 and Gp Capt Todd accepted that APC could or should have been aware of the claimant's medical status during this process. On 17 October 2019 Dr Glenn Webster who was a civilian general medical practitioner at RAF High Wycombe confirmed that the claimant was then medically unfit for all military duties, which he said included all military administrative tasks that were not statutory or part of a recommended recovery duty. On 31 October 2019 Dr Webster wrote to Gp Capt Todd [HB2101] as follows: I can confirm that [the claimant] is currently [Temporarily Non-Effective] and undergoing urgent medical treatment which in which in my opinion is rendering [the claimant] medically unfit to engage with the MAAP process at the present time. On receipt of specialist medical opinion a further assessment re fitness for MAAP action can then be considered.[121]Gp Capt Todd responded promptly and asked whether that assessment applied solely to the MAAP process or to other processes involving Wg Cdr Steele and Dr Webster gave a further opinion the following day [HP2100]: Just to confirm that in my view [the claimant] is at present unfit all military duty, apart from those that have been agreed as a recovery duty by medical staff. I can also confirm that [the claimant] is due to have their first specialist medical appointment this coming Wednesday.[122]On 5 December 2019 Dr Webster wrote to Gp Capt Flewin the following [HB2415]: In order not to exacerbate [the claimant’s] medical condition, I can confirm that in my opinion the above SP [Service Person] is unfit for all military duty including Air Force Board duty. It is my understanding that the SP's Early Termination application has been accepted and actioned by the Executive, and a resulting termination date has been calculated and agreed with the SP. In the meantime the SP should engage in recovery and resettlement duties whilst awaiting release from the Service, especially in that recent recovery duty has been associated with a degree of amelioration of the SP's medical condition.[123]Gp Capt Flewin responded fairly promptly by stating that he would redirect this email to HQ Air who were managing the claimant's case [HB2415].[124]On 21 October 2019 Gp Capt Shearing had requested a case conference about Wg Cdr Steele with Gp Capt Hutchinson [HB2045]. Gp Capt Hutchinson was a qualified medical officer. We did not hear from Gp Capt Hutchinson. We were advised and accepted that he was a qualified medical officer and an occupational health specialist. However significantly, this medic did not examine Wg Cdr Steele nor, so far as we are aware, did he review Wg Cdr Steele’s medical records. Therefore, any recommendations or advice he gave should have been treated with a degree of caution. Gp Capt Shearing said that he was not particularly concerned about the claimant's sick leave so long as he was able to engage with the MAAP but he said that the claimant now felt unable to engage in the process because of workplace stress.[125]Gp Capt Shearing attached the claimant’s medical certificate which he interpreted as Wg Cdr Steele still being able to engage with the MAAP because that this was felt a statutory administrative process but he noted that the claimant still interpreted it differently. It is puzzling why Gp Capt Shearing said that he was reluctant to engage directly with any medical practitioners and he said a decision in respect of the claimant's employment could not be made until he was well enough to engage with the MAAP. Gp Capt Shearing did say that the claimant's health needs were a priority but he wanted some advice on the appropriateness of continuing with the claimant’s Service Complaints and the MAAP in order to bring both to an early resolution.[126]On 25 October 2019 Gp Capt Shearing emailed Gp Capt Todd [HB2057]: I don't know whether you've responded to [the claimant] yet regarding his latest email but Gp Capt Hutchinson has been back in touch to confirm that [the claimant] has indeed contacted the Med Centre again seeking their engagement to strengthen his medical argument so he doesn't have to respond; upshot is, that regardless of what he might say, his position has not changed. Gp Capt Hutchinson has spoken with the locum GP, SMO and other specialists this afternoon and he still squarely sits exactly where he was yesterday and he wanted to confirm with us that there is no medical reason why [the claimant] cannot continue to engage with the MAAP.[127]Irrespective of Gp Capt Shearing’s disbelief that the claimant was substantially ill, we find his comments dubious. There is no evidence that the claimant was examined or that Gp Capt Hutchinson had permission to review his medical records. Yet Gp Capt Hutchinson is purported to have made extensive enquiries and proffered an opinion that the claimant could engage with the MAAP. This opinion has never been produced so we doubt whether that this was a full or correct assessment. We suspect that this is not a full or considered medical assessment because according to the claimant Gp Capt Hutchinson did not have the appropriate permission to access his medical records and he might have transgressed professional regulatory issues. What is palpable is Gp Capt Shearing’s determination to overcome the perceived obstacle of the claimant’s ill-health. He refused to accept that the claimant was substantially incapacitated such to pause or slow down the MAAP. In any event, a short time later that same day (i.e. 25 October 2019) Wg Cdr Steele still emailed group Captain Todd to advise him of his downgraded medical condition as temporarily non-effective [HB2058].[128]On 24 October 2019 Gp Capt Shearing wrote to the claimant [HB2060- 2061] stating that irrespective of his sickness absence he had taken expert advice and the RAF’s position was that it was in everyone's best interest, including the claimant, to continue to bring the matter to a conclusion. He said that the claimant had made it clear that he was both able and willing to engage on a regular basis whilst he had been on sickness absence and that the MAAP needed to proceed. He gave the claimant some extra time to proceed to allow for him to provide his response.[129]The claimant responded the next day [HB2059] stating that the respondent's conduct was a significant cause of distress and alarm. The claimant said that he was pressurized to engage in the process in respect to the Service Complaints and also in respect of the MAAP. He made it clear that at that time “I will be following the medical opinion until such time as I am fit to handle matters arising appropriately”.[130]On 12 November 2019 Gp Capt Hutchinson sent an email surprisingly hostile and dismissive of the claimant's position. He said that Wg Cdr Steele refused consent for an occupational medical consultant to assess his fitness to participate in the administrative process and accordingly that the claimant should accept adverse consequences. He said he did not consider that pushing harder in this case would be of much value; that the respondent appeared to be content to continue the process regardless of whether the claimant accepted the offer to participate actively and this would normally be the appropriate course of action.[131]The claimant was never offered the opportunity to attend the hearing virtually because of his ill health. This contention was raised by Wg Cdr Shearing and disputed by the claimant and we specifically reject the respondent’s contention because there is no contemporaneous reference to such an offer.[132]The Air Force Board met on 9 December 2019. The Air Force Board members were AM Mayhew and AM Young. Also in attendance were Mrs Hindmarsh, as an employment law specialist to give legal advice, and Gp Capt Shearing, who presented the case against the claimant was supported by Ft Lt Davies. There was a Record of Discussion, which was produced on 13 December 2019 [HB2420-2434]. The Air Force Board specifically discussed employment in the Legal Branch [HB2424]. The note records Gp Capt Shearing “highlighted to the AFB” that Wg Cdr Steele refused to work with any of the respondents named in his service complaint or at HQ Air until a resolution had been achieved to his satisfaction. This was misleading because at no stage did the claimant refused to work with any individual; he merely expressed a reluctance to do so, which we determine was understandable in the circumstance and a measure that would make sense for the benefit of all individuals concerned. Yet, the claimant’s suggestion was deliberately mischaracterised and used as a device to portray him as unmanageable. The claimant worked with the finance team, which was based at Air HQ and in the same building as the Legal Branch so that, at least, ought to have prompted some question or engagement from the 2 Air Marshals.[133]The legal officer pointed out that Wg Cdr Steele had stated fundamentally he could not work with the respondents until his service complaints were resolved to his satisfaction and the question was raised that it was unlikely that the RAF could ever resolve matters to the claimant’s satisfaction. This was based on Gp Capt Shearing’s report. We are not sure what Gp Capt Shearing was referring to as to because on 2 March 2019 in an email to Wg Cdr Rowley [HB1306], the claimant said that he was committed to a full career in the service and that his priority remained (amongst other things), an early return to a working environment free from bullying and discrimination. This indicated a desire not to work with people until his Service Complaints were resolved but does not denote a refusal. Whilst the Tribunal has no doubt that the claimant felt strongly about his claim, there is nothing in the contemporaneous correspondence that indicate that the claimant would not abide a fair conclusion to his complaints. Indeed, this was wholly consistent with our assessment of the claimant.[134]On 17 July 2019 Gp Capt Shearing specifically quoted the claimant's position to AVM Jennings and a Gp Capt in COS Pers as follows: “I confirm that I remain able to serve anywhere; the obvious exception to that in my mind would be HQ Air Command [Gp Capt Shearing’s emphasis], but that is solely on account of that being the location where several implicated in ongoing service complaints are based. I would regard a posting to that location to be fraught with significant difficulties [Gp Capt Shearing’s emphasis] for both me and those implicated. I understand that SFAFA and RMC agree…” [This is a reference to the welfare service and the claimant's service General Practitioner who provided appropriate information].[135]But the claimant subsequently went to work at HQ Air Command and in an office directly below AVM Jennings. Wg Cdr Steele’s email goes on to state the problems between the claimant and APC were significant, when he said that working with or providing any legal advice to APC would rule him out of an immediate [our emphasis] assignment into a significant number of Legal Branch positions [HB1695-1696].[136]Irrespective of the claimant not being advised of the consequences of any potential redeployment refusal, he very clearly did not refuse to undertake these potential postings, so Gp Capt Shearing’s account is wrong, we determine deliberately misleading and highly prejudicial. What is surprising to the Tribunal is given AM Mayhew’s and AM Young's decision to proceed in the absence of the claimant, which we do not think was a necessary, appropriate or fair response in the circumstances, these 2 very senior officers surprisingly failed to properly engage with this point. They were provided with submissions, which were incorrect, and those submissions were not questioned. If there was any examination of the evidence contained in the 2 folders, then this was cursory and defective.[137]Several things emerged from Air Cdre Paul’s email to Gp Capt Todd of 20 August 2019. It is clear that the claimant saw the respondent as exploring options and he did not perceive his employment to be at risk as this was before Gp Capt Shearing’s report. The claimant was also off sick around his time so he may well have been isolated and not able to engage in this process. Furthermore, he was committed to return to the Legal Branch. Finally, in respect to the claimant's limited engagement, he did identify the intelligence and personnel branches as options for possible redeployment, and we determine this was never pursued with any interest by the respondent or with sufficient engagement.[138]The Air Force Board went on to consider the claimant's employment in “Any Role” and Gp Capt Shearing said that the claimant was currently employed in “Any role”. Gp Capt Shearing said that this was not a long-term solution and highlighted “skill fade”, which we do not see as any significant factor because according to the claimant's own career path, he spent lots of time engaged in various highly specialised work away from general legal practice. Furthermore, solicitors frequently go on protracted periods of specialist activity, career breaks, maternity leave etc and normally adequately retrain. Again, we view this as yet another stick with which to beat the claimant. Rather misleadingly Gp Capt Shearing said that Wg Cdr Steele still refused to serve at HQ Air and that most roles required suitably qualified experienced personnel in the field of space and cyber, for which he purported that the claimant was not competent (for which there is no evidential basis), and indeed the evidence suggests that the claimant was experienced and competent in this field. Had the Air Force Board enquired about where the claimant's more recent deployments then they would have discovered that the claimant had been working at HQ Air. In respect of rebranching, the only option presented to the AFB was the chaplaincy option and this was simply a gross distortion of the options available.[139]The legal advisor raised the claimant's Service Complaints, criminal allegations and Employment Tribunal application to suggest querying whether this would impact on his effectiveness in other branches and his own effectiveness. Service Complaint 3 and the claimant's Employment Tribunal application were protected acts. It is clear to us that the Air Force Board did not separate these protected acts from the purported disruption the claimant was alleged to have caused, in a Martin v Devonshire Solicitors type of assessment. There was no systematic attempt to go through the Service Complaints and other disruptions contended by Gp Capt Shearing and identify the nature and extend of the trouble Wg Cdr Steele was supposed to have caused. There was no critical analysis, indeed no analysis at all, of the resultant aggravation that this senior officer was supposed to have caused. Indeed, we can see little more than Gp Capt Shearing saying that the claimant had upset a lot of people, that this had caused trouble, and here were some documents saying that the claimant was disruptive. This was readily accepted without assessing the full nature of these complaints and, in particular, whether some of these complaints were separable from the protected acts. The 2 Air Marshals did not assess the extent that the disruption was separable from the disruption arising from the protected acts. Service Complaint 3 and the Employment Tribunal proceedings were a central feature of the complaint against the claimant and the Air Force Board should never have taken into account the claimant's protected acts if they were going to make a decision that was not tainted with victimisation.[140]The Air Force Board questioned only the merit of retaining this senior officer on a longer-term basis, yet somehow did not seem to have properly considered any interim measure until the claimant's Service Complaints and Employment Tribunal proceedings had been resolved. Whilst the Air Force Board agreed that that could have been done, so the claimant could have been redeployed, it indicated its unwillingness to do so because the claimant's “behaviour was not that expected of a senior officer with the RAF” [HB2426]. So the outcome was punitive. Without having heard from the claimant and with this scant information presented in Gp Capt Shearing’s report and 2 accompanying lever arch files, the Air Force Board deemed Wg Cdr Steele was passed the point of rehabilitation [HB2426]. AM Mayhew in the interview on 18 May 2021 referred that the decision makers took into consideration Wg Cdr Steele’s employability within the Legal Branch and his request to transfer to the chaplaincy branch but given the number of issues he had raised and the service having to respond to that they felt that concentrating on his primary role would be potentially difficult for him and it was very much their consideration that they had lost trust with him.[141]So according to AM Mayhew, the claimant's employability considerations were confined to the Legal Branch and the chaplaincy branch. The other branch redeployment options were quickly dismissed without any in-depth consideration. Significantly in his statement of 27 April 2021 AM Young does not refer to any considerations of wider employability. AM Young’s witness statement to the Tribunal is broadly in line with the record of discussion, but AM Mayhew referred to being given details of the limitations of the claimant working elsewhere in relation to people, locations, branches and roles. This is not detailed in the notes, nor is it referred to anywhere else in the hearing bundle. We reject AM Mayhew’s evidence in this regard. We determine that he was not being truthful with us, as this subsequent account was not consistent with the contemporaneous sources, and it was not consistent with his decision-making colleague.[142]Clearly the Air Force Board was not made aware that the claimant saw his future in the Legal Branch and anticipated a return to the Legal Branch in the future. Nor was the Air Force Board made aware that the claimant was prepared to work anywhere if necessary and certainly if it meant there was no other alternative than him losing his commission. In this regard Gp Capt Shearing is responsible for presenting a false picture. However, Gp Capt Shearing should not bear all of the burden; this was a final hearing to determine whether the claimant would be discharged from the service, and we were truly surprised about the lack of rigour emanating from the 2 very senior decision makers. Given that they had decided to proceed in the claimant's absence, we expected them to adopt a more challenging approach rather than merely rubber stamping the information that they were presented. Their decision making merely endorsed the flawed information that they were presented with.[143]The Air Force Board terminated the claimant’s commission on 9 December 2019 and this was confirmed on 13 December 2019 [HB2420-2432].[144]The claimant left the RAF with effect from 30 March 2019. Our determination[145]We make our determination in respect of time limits after making our determination on the merits of all of the claims. Issue 3(a)[146]The respondent accepted that Service Complaint 3 of 3 September 2018 was the first protected act, under s27(2) EqA. The respondent accepted that the claimant had made allegations of discrimination against various senior RAF colleagues in the senior leadership of the Legal Branch. This is clearly an allegation that RAF officers had contravened the EqA so there is little doubt that this is, both in fact and in law, a protected act.[147]There was a dispute about the second protected act – issue 3(a)(ii). The respondent accepted the second protected act as the claimant raising Employment Tribunal proceedings 3322069/2019 on 5 September 2019. The respondent did not accept that contacting ACAS was part of this protected act, the protected act being the filing of the Claim Form on 5 September 2018.[148]Paragraph 39 of the Grounds of Complaint for the second Claim Form said as follows [HB51]:39. In July 2019, after receiving an unredacted copy of the 20 March 2015 email, the claimant raised an Employment Tribunal claim against the Respondents claiming discrimination (Case No. 3322069/2019) (“second protected act”). Following this the claimant has continued to suffer detriments.40. It believed that in August and September 2019, Wg Cdr Shearing managed to access detail of the Claimant’s service complaints (in which he was a respondent in several) and past referrals to the RAF Police and welfare staff…[149]The Enterprise and Regulatory Reform Act 2013 introduced mandatory notification of a claim to the Advisory, Conciliation, and Arbitration Service (“ACAS”) before a claim can be accepted by the Employment Tribunal. The details of the scheme are set out in ss18A & 18B Employment Tribunals Act 1996 and Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014. The scheme positively encourages conciliation, but it does not debar a claimant (or a respondent) from refusing to conciliate as, following appropriate notification, ACAS may merely issue an Early Conciliation Certificate as a precursor and formality so the Employment Tribunal can accept the claim. So, the claimant was required to apply for an Early Conciliation Certificate as part of raising an Employment Tribunal claim against the respondent for discrimination (see claimant’s paragraph 39). His claim would be rejected by the Employment Tribunal if this step had not been followed. The claimant applied for an ACAS Early Conciliation Certificate on 25 June 2019 [HB1]. Early Conciliation was entered in respect of race discrimination, religion or belief discrimination and sex discrimination because those are the claims for which the claimant issued proceedings [HB2-12]. The ACAS Early Conciliation Certificate was issued on 7 August 2019, which was a little over 6 weeks after entering Early Conciliation. This is the maximum period permitted for Early Conciliation and the claimant issued proceeding on 5 September 2019, within the proscribed period, so the Early Conciliation Certificate remained valid.[150]Whilst not all claims that proceed through the ACAS Early Conciliation process result in Employment Tribunal proceedings, all discrimination claims need to follow that step. So, it is a necessary and integral part of the process of bringing – or raising as the claimant put it– an Employment Tribunal claim. Paragraph 39 does not talk about issuing proceedings, which is significant. We determine that the claimant was obviously referring to the whole process of commencing proceedings, i.e. from ACAS Early Conciliation. However, of the greatest significance is that the claimant refers directly to July 2019, which is when he would have received the first response from the respondents through ACAS. This point is reinforced by the chronology and narrative of the Grounds of Complaint which then proceeds to refer to events in August and September 2019.[151]If we are incorrect that this protected act is properly part of bringing proceedings under the EqA under s27(2)(a) EqA, then, in this case, starting ACAS Early Conciliation is doing any other thing for the purposes of or in connection with the EqA, under s27(2)(c) EqA. We note that “doing something” under s27(2)(c) EqA should be given a wide interpretation: see Aziz v Trinity Street Taxis Ltd & Ors 1998 ICR 534 CA. Knowledge of the protected act[152]Service Complaint 3 obviously featured AVM Jennings as a culprit but this Service Complaint also named Wg Cdr Sanger-Davies, Wg Cdr Campbell, Gp Capt Phelps, Air Cdre Paul, Gp Capt Houghton and AVM Mardell [HB1674-1675]. We accept Wg Cdr Shearing’s evidence that he was informed of the service complaint against him within 2 months or so, so the named respondents were notified around this time span. We determine that likely respondents would be similarly identified because there is no reason otherwise that this information would be correlated. That included AVM Jennings because of her pivotal role as the Direct of Legal Services.[153]It is inconceivable that given the senior positions of Wg Cdr Shearing and AVM Jennings and their roles in dealing with the claimant that they would not have known about the ACAS Early Conciliation, its protracted discussions and the claimant’s commencement of proceedings. It is logical to infer that both would have been immediate points of reference and kept informed throughout these early stages. We just do not believe any account to the contrary. Issue 3(b)(i)[154]There is no legal definition of “bullying”. There is a statutory definition of harassment which is contained in s26 EqA. Bullying is generally accepted to be wider than harassment, although there is some overlap. ACAS describe bullying as unwanted behaviour from a person or from a group that is offensive, intimidating, malicious or insulting and involves an abuse or misuse of power that undermines, humiliates or causes physical or emotional harm to someone. Bullying is usually a regular pattern of behaviour, but it could be a one-off incident, it can happen face-to-face, on social media, in emails or calls and it can happen at work or in work-related situations and not always be obvious or noticed by others. Clearly this is a wide definition, so some common-sense is needed when determining whether the behaviour in question does meet the threshold so as to amount to bullying. There is a debate about whether bullying needs to be intentional as was argued to be the case in the Tolley report on the former Deputy Prime Minister Dominic Raab (which was particularly salient at the time of this hearing), but we are not concerned with determining intention in these circumstances for reasons stated below.[155]The claimant was clearly upset about his formal warning. He challenged this and the situation was tense; nevertheless, both the claimant and Gp Capt Sanger-Davies said that they tried to make the situation workable. In evidence Gp Capt Sanger-Davies said that he prepared for the meeting 16 January 2019 by drafting a table of items, comments and action/decision [HB1178-1181]. Gp Capt Sanger-Davies said that he did not want to proceed with this meeting, but he felt compelled to as the claimant’s line manager. He said that he was assisted by discussing matters with Wg Cdr Shearing. Together they devised the appropriate table which contains items such as: objective, welcome and context, the claimant’s professional failings, the claimant’s personal failings, performance assurance and monitoring, a review mechanism, measures of success, and sign-posting. The table was prepared and sent to AVM Jennings and Air Cdre Sanders although Gp Capt Sanger-Davies could not remember either approving it, but he remembered some form of conversation with Air Cdre Sanders after he sent this to him. The file note clearly states that this was a return-to-work interview and yet on the agenda are comments such as angry outbursts from the claimant, a purported overbearing nature, ill-judged choice of words when addressing subordinates, disrespectful language and an adverse effect on an individual. We did not see any contemporaneous reports or evidence of the actual incidents and both this assessment and the incidents runs contrary to the claim’s recent progress reviews of 12 November 2018 and 28 November 2018, prior to his absence.[156]The claimant was taken aback. The performance and assurance monitoring set out an agenda that did not allow for any independent judgement or independent working from this senior and experienced RAF officer and solicitor. The Tribunal was baffled that the claimant was taken by surprise at this meeting, he was not given any advance notice that these matters were on the agenda. Gp Capt Sanger-Davies denied that decisions had been made in advance of meeting, but there is no other explanation by the involvement of Wg Cdr Shearing, Air Cdre Jennings and Air Cdre Sanders. The involvement of the Director of Legal Services and her Deputy is perhaps understandable when such restrictive measures were to be placed upon such a senior officer and legal practitioner but the secretive nature of these discussions, the lack of corroborative evidence and the fact that the claimant was ambushed at a return-to-work meeting is highly suspicious, particularly by individuals who practiced in an area where such behaviour would be less expected and more noticeable. We do not believe the accounts given that no decisions had been made prior to the meeting. We do not believe that these senior officers would be involved in reviewing and agenda for a fairly straightforward management meeting that Gp Capt Sanger-Davies purported this meeting to be.[157]The level of close supervision was not relayed to the claimant at the meeting, notwithstanding this was set out in the paperwork. We reject any contention that there was no fixed agenda. Gp Capt Sanger-Davies went to the trouble of preparing for this meeting and rehearsing his arguments with Wg Cdr Shearing. We believe that Gp Capt Shearing was deliberately put up to subject the claimant to a detriment and that detriment was likely to be substantial in limiting Wg Cdr Steele’s capacity to act as a solicitor.[158]The claimant said that the nature of the meeting was wholly unwarranted, and he denied any misconduct. We are very clear there had been no formal warnings and the “nit picking” contended by the claimant had now been elevated to something more serious. We are not persuaded that the underlying matters, i.e. the cause of the close-supervision, was serious because if they had been then there would have been considerable contemporaneous detail raised at the time rather than an attempt to elevate such matters through cross-examination at this hearing.[159]The claimant found himself in a stressful circumstance, he had something resembling a panic attack at his last meeting with Gp Capt Sanger-Davies and he was off for some time with stress. Although, we believe, there was a tendency for the claimant to see conspiracies against him, the behaviour of these senior officers was grossly unfair and fuelled that tendency. We find it highly surprising that 2 very senior legal officers and one very senior HR practitioner discussed such proposed restrictive practices and yet no one raised giving the claimant any advance notice that this is what was being proposed and confirmed as the outcome of the meeting, particularly as the meeting was labelled a return-to-work meeting. The intention of the parties concerned, Gp Capt Sanger-Davies and also AVM Jennings and Air Cdre Sanders and Wg Cdr Shearing were clear. All were involved in this effort to undermine the claimant. That said that the allegation is directly towards Gp Capt Sanger-Davies, and we find that his conduct met the threshold of bullying. The behaviour was clearly unwanted. It was offensive and intimidating and it was particularly insulting to Wg Cdr Steele. We are not satisfied that Wg Cdr Steele’s shortcomings justified such restrictive practices, particularly as Wg Cdr Steele had been a high performing and extremely diligent officer and solicitor prior to these very recent events. The misuse of Gp Capt Sanger-Davies’ authority certainly humiliated the claimant, and it caused harm to his mental health because he subsequently went off sick during the course of this meeting. This further sickness was predictable. There was an indication that the claimant was not previously well because of his sickness absence. Any meeting to address perceived shortcomings is not necessarily unacceptable but here it came out of the blue and that was wholly unfair. Gp Capt Sanger-Davies recorded Wg Cdr Steele as raising several times during the course of this meeting that he was being bullied and Gp Capt Sanger-Davies chose to proceed. This also convinced us that he was delivering a pre-agreed determination. The notes go on to say that Gp Capt Sanger-Davies refused permission to leave the interview until Wg Cdr Steele said he needed medical assistance, and he was released to attend the medical centre.[160]The next question is one of causation, whether this treatment was motivated by the claimant’s protected act or whether this arose for other reasons.[161]We note that Gp Capt Sanger-Davies was subject to a Station Commander’s investigation in respect of bullying, but when this was explored in cross-examination Gp Capt Sanger-Davies contended that this was wholly connected to the claimant’s request for a DWP. He said that, at that stage, he was not told, nor did he perceive, that he was the subject of a bullying investigation, so that was not the motivation for this poor treatment of the claimant. We also note that Wg Cdr Shearing had previous history of friction with the claimant. With regards to the claimant’s formal warning, the claimant objected to Wg Cdr Shearing’s categorisation of his criminal conviction which Wg Cdr Shearing corrected and apologised for. We could detect no animosity from the claimant in this respect and Wg Cdr Shearing did not raise this as a slight from the claimant for which he remained aggrieved.[162]So, we have established a detriment in respect of bullying at the 16 January 2019 interview. We have not established any significant detriments prior to this date because, although there was unease from all concerned, it seemed to us that (as Gp Capt Sanger-Davies termed it) everyone tried to make the most of a difficult situation. The first protected act arose on 3 September 2018. This was a little over 4 months before the bullying meeting of 16 January 2019. This is sufficient time for the key players to learn of the claimant’s complaints. We recognise that it is difficult to prove a negative, i.e. that a particular individual did not know of the claimant’s protected act. A confidential process is almost never leakproof. Individuals involved in the process know senior officers and inform friends or colleagues discretely and with no paper-trail. So that is why witness consistency and credibility is so important in assessing knowledge and individual’s behaviour. AM Jennings, Wg Cdr Shearing and Gp Capt Sanger-Davies were all uncertain as to when they discovered the claimant’s protected act and that was a key. However, of most significance was our assessment of the reason why the claimant received the treatment he did and we just do not believe that they did not know of his protected acts. These individuals were not dysfunctional or capricious in their mistreatment of the claimant. There was a reason why they treated the claimant so unfavourably and that is where we draw our inference. It was because of the protected act and what they knew of the protected act. There was for us no other viable explanation.[163]In respect of reversing the burden of proof, the respondent submits there is no direct evidence to indicate that Gp Capt Sanger-Davies was aware of the first protected act, which was service complaint 3. However, this is not accepted because we draw the inference that he did know of the protected act; notwithstanding Gp Capt Sanger-Davies was doing what he was told, by senior Legal Brach officers and Wg Cdr Shearing. So, from the above we can clearly establish that the claimant has discharged the first stage of fulfilling the burden of proof. He has established facts from which the Tribunal could infer that discrimination has occurred. The burden has now shifted to the respondents to establish that the bullying for which we have found has not been the result of victimisation, i.e. was not caused by the protected act in question. We reject Mrs Hindmarsh’s contention that Gp Capt Sanger-Davies was simply conducting his line management responsibilities. The respondent drew great emphasis by their contention that the service complaint procedure was a confidential process and that there was no evidence to establish that there was a breach of confidence. The claimant had discussed the nature of his complaint fairly widely and he was criticised by Mrs Hindmarsh for doing so at the hearing. The claimant described the environment in the Legal Branch as full of gossip and innuendo and matters were constantly resurrected. The Tribunal notes that keeping confidential matters such as complaints against senior management is difficult in any workplace, but it may well be considerably difficult in such an environment as APC and the Legal Branch where gossip and innuendo seem to be prevalent features. So, we are not persuaded by this rigid adherence to confidentiality in the service complaints procedures.[164]Our focus is to treatment and not the individual. The burden has shifted to the respondents, because we can find no explanation for the detriment. By this stage the claimant had submitted 3 service complaints, the protected act being his last service complaint. It is commonplace for there to be an absence of evidence which establishes a direct connection between the detriment and a reason for such a detriment. This is why the Tribunal can rely on inferences drawn from the primary facts in circumstances found by the Tribunal to have been proved on the balance of probabilities. So where there is no direct evidence of victimisation the Tribunal can draw inferences. We are careful in drawing any such inferences because there needs to be a direct evidential matrix to support drawing such a conclusion. Inferences are not supposed to bridge a gap but to build upon established facts with a firm evidential foundation. In this instance the severity of the action proposed to take against the claimant on 16 January 2019, the fact that the claimant was supposed to be taken by surprise, the fact that outcome was agreed was shown, and we believe agreed, with AVM Jennings, AVM Saunders, Wg Cdr Shearing prior to Gp Capt Sanger-Davies interviewing the claimant all lead to us drawing the inference that this is because of the allegations of discrimination and victimisation. We were concerned with the evidence of AVM Jennings and Wg Cdr Shearing as set out above so we do not believe that they did not know of the service complaints, but in any event, the respondents have not discharged the burden for proving victimisation did not occur in such events. Issue 3(b)(ii)[165]The claimant was not provided with a copy of the respondents’ Standard Operational Procedures for the DWP, which in the circumstances is extraordinary and, we determine, deceitful because Wg Cdr Shearing sought to orchestrate a disciplinary-type process against the claimant. In any event, the claimant had clearly indicated his desire to return to the Legal Branch – his Parent Unit – and the DWP allowed for this eventuality without a MAAP. So, the MAAP was not appropriately triggered under either the DWP or the MAAP process itself. In any event the Tribunal is surprised that a disciplinary process could ever be appropriate for circumstances where a decision had been made to separate 2 senior individuals whom both concurred that they should not work together whilst a Service Complaint is investigated. That said it was the claimant’s contention, with which we agree, that his complaint of bullying was more directed towards the Legal Branch and that Gp Capt Sanger-Davies only had some fringe involvement.[166]Gp Capt Flewin’s recommendation for the DWP [HB1259-1261] makes no reference to a MAAP or to any form of disciplinary action. By March 2019 the claimant’s formal warning issued was effectively over. Two of the respondent’s officers said that the claimant had to sign this off and the claimant refused to do so as he maintained that was not part of the process and matters thereafter appeared to have merely fallen away. Wg Cdr Shearing was clear in his evidence that the MAAP arose from the DWP and not the formal warning. Gp Capt Todd and Wg Cdr Shearing both gave evidence that the MAAP was required to permanently reassign the claimant, which we found unconvincing but did correspond with the document that arrived mid-way through proceedings (albeit not referred to at any stage during the process). However, this missed the key point, which was that the claimant was not seeking a permanent reassignment from the Legal Branch (his Parent Unit) he was looking to move away whilst his Service Complaints were resolved, and he explicitly stated at various occasions his desire was to return to the Legal Branch once these matters had been sorted out. So even on the respondents’ case the facts of this case did not warrant a MAAP.[167]Submitting the claimant to a MAAP was clearly a detriment because the MAAP is a disciplinary type of process. The MAAP provided for sanctions up to and including the termination of the claimant’s commission. We find the MAAP was unwarranted, so the claimant has established a detriment because we are not persuaded that this detriment was occasioned by a DWP, the burden has shifted to the respondents to prove that it was not for discriminatory reasons. The claimant contended that if there was some form of paperwork needed to affect his transfer this could be achieved through an assignment order. We do not know whether or not an assignment order would have been necessary, we merely remain unconvinced that major, as opposed to minor or any other form of disciplinary action, was required.[168]The claimant had put forward 3 more Service Complaints in the weeks leading up to the MAAP. However, Service Complaint 3 was clearly the most serious complaint because this referred to discriminatory conduct. Service Complaint 3 [HB5522-5567] was revised on 25 November 2018 was far ranging, complained about senior people, including AVM Jennings, (Director of Legal Services) and specifically complained of bullying, complained of discrimination, complained of breaches of the Equality Act 2010, bullying, harassment, intimidation and breaches of data handling amongst other things. The claimant’s Service Complaints were often repetitious and covered territory that had been raised previously. We are not persuaded that the detriments can be ascribed to a different causal factor. We are not persuaded that the raising of 3 additional Service Complaints warranted the MAAP, partly because the claimant’s move from RAF Coningsby gave the respondents the opportunity to raise a MAAP and not the additional Service Complaints.[169]Given that the burden of proof has shifted towards the respondent we consider whether the protected act had significant influence over the decision to subject the claimant to this detriment, therefore we find 3b(ii) proven in that this amounted to victimisation. Wg Cdr Shearing and Gp Capt Todd were clearly building a case against the claimant, they regarded the claimant as disruptive and sought evidence to prove this which was correlated in its starkest (perhaps misleading) form. So as the MAAP was initiated on the basis of victimisation it is difficult to read building a case against the claimant in any other context. That said, the burden has clearly shifted to the respondents and insofar as the respondent has not been able to establish that this detriment was in no way whatsoever caused by the protected act, the claimant has established victimisation. Issues 3b(iii) and 3(b)(iv)[170]On 1 July 2019 Flt Lt Davies wrote a formal APC staff advice [HB1586- 1587] as follows: APC Recommendation: APC are in agreement with the Unit, in that Wg Cdr Steele should be assigned into another appointment commensurate with his rank, ability and experience, but due to the wider breakdown of relationships with work colleagues beyond RLO(C), his wider employability within the legal branch needs to be considered.[171]This advice went considerably beyond what was recommended by Gp Capt Flewin. It seemed to attribute the breakdown of wider relationships to the claimant’s behaviour and questioned the claimant’s position within the Legal Branch. Flt Lt Davies identified a number of options available as ranging from (course of action) “COA1”, “COA2” and “COA3”. COA1 was to decide that Wg Cdr Steele was assigned to another appointment commensurate with his training, ability and experience, which was the recommendation of Gp Capt Flewin. However, APC recommended COA2 – decided that Wg Cdr Steele is assigned to another appointment commensurate with his training, ability and experience, combined with a review of his employability within the Legal Branch.[172]Flt Lt Davies said that: the DA [Deciding Authority] has decided that, on the balance of probabilities, the relationship between Wg Cdr Steele and his colleagues has irretrievably broken down and therefore an assignment into another role was commensurate with ability and experience is required, along with a view of his wider employability within the legal branch. (APC Recommendation)[173]The DA above was not Station Commander, Gp Capt Flewin, because Gp Capt Flewin had only decided the first part of the of APC Recommendation, which was reflected in the “Unit’s Recommendation” on page 1586.[174]It was Wg Cdr Shearing who decided upon COA2. The APC Recommendation was clearly a detriment because the APC advice recommended that the claimant was transferred – apparently permanently – outside the Legal Branch. There was no provision made for a temporary redeployment as was the claimant’s understanding as this was now no longer viewed as a temporary measure pending the resolution of the claimant’s Service Complaints. This change now brought into question the claimant’s wider employability within the RAF for the first time. This was supposedly because the claimant had requested a (permanent) DWP from RAF Coningsby and there was no place to effectively put him.[175]As the detriment at 3(b)(iii) is based on AVM Jennings’ report, we consider 3(b)(iii) and 3(b)(iv) together.[176]The MAAP was instigated or commenced by Wg Cdr Shearing and according to both Flt Lt Davies and Wg Cdr Shearing this was because the claimant would not work with other individuals. The claimant’s position was very clear in the contemporaneous evidence and in his evidence to the Tribunal, he repeatedly said that as an officer of the RAF he would be willing to be deployed anywhere and work in any circumstances. We believed him. He merely recommended that it would not be appropriate to compel him to work with people with whom had made a Service Complaint. This was envisaged in the DWP Standard Operational Procedure that has been provided to us, so the claimant’s position was not in any way controversial. He never refused to work with any individuals indeed he went to work at Air HQ where he worked in the office directly underneath that of AVM Jennings and he was based at the same location as the major protagonists within this case. So, the respondent’s position that the claimant refused to work with any individuals in the Legal Branch or elsewhere is disingenuous.[177]In any event it was never made clear to the claimant when discussing his options that his reluctance or perceived refusal to work with any individual could ultimately lead to his dismissal. This is astounding; at one stage in the hearing the claimant said that if he knew he was going to lose his career, then he would have withdrawn all of his Service Complaints and we believe him. The claimant was largely oblivious to the disruption his complaints had caused. He was preoccupied with a sense of injustice, and he needed to bring this to his employer’s attention. He had a strong belief in procedures and (in hindsight) naively believed that in pursuing his Service Complaints the senior echelons of the RAF would sort this out. We do not find him malicious in this approach, just lacking a degree of insight as to the consequences on others of his Service Complaints. That consequence was that he annoyed a number of his colleagues and he annoyed, in particular, very senior colleagues in the Legal Branch and elsewhere who dealt with the claims and did not expect to be challenged and to justify their conduct. Wg Cdr Shearing demonstrated this annoyance in his intemperate language during the process. AVM Jennings demonstrated her hostility by her report of 18 July 2019, which effectively sabotaged the claimant’s career. Ft Lt Davies said that his concerns arose from the inability to place the claimant within the Legal Branch, and this was told to him by Wg Cdr Shearing who said that the claimant was refusing to work with 8 Legal Officers. We have not seen evidence to demonstrate this so consequently we do not understand how it led to a conclusion that the relationship between the claimant and his colleagues had irretrievably broken down either in the Legal Branch or elsewhere.[178]Ft Lt Davies’ recommendation pre-dated the report from the head of the legal branch of 18 July 2019.[179]In respect of the DWP, AVM Jennings said that she was informed and engaged in multiple discussions about the claimant’s situation on numerous occasions, but she could not give an exact figure; although she did say it felt like a daily occurrence. She said that she was keen to ensure that the claimant was supported for his welfare. AVM Jennings said that she did express some views to different people at difference times, including her Deputy, Air Cdr Sanders, and Gp Capt Shearing. This was not included in her witness statement and there is no record of these discussions in the hearing bundle. We determine that it is inconceivable that AVM Jennings, as head of the Legal Branch, did not know of the claimant’s progress reviews with Gp Capt Sanger-Davies because: she originally directed that the claimant transfer to RLO(C); the Legal Branch was tasked with administering the formal warning; and the claimant was a senior officer/ solicitor.[180]So far as the MAAP was concerned, AVM Jennings said that she was broadly aware of this, she agreed with it, but she did not make any decisionmaking in this regard. She said that she did not remember when she was spoken to about the claimant’s employability within the Legal Branch, AVM Jennings said that she had a number of briefings from Gp Capt Todd and Wg Cdr Shearing but was not sure when these were and there is no contemporaneous record of these briefings that has been presented to us. AVM Jennings’ position was that she was not driving this process and it was not her idea to submit the claimant through these processes. We find this evidence wholly unconvincing. AVM Jennings was the Director of Legal Services and formal action had been taken against a senior member of her staff. It was alleged for some considerable time through this process that the claimant had been disruptive, and his disruption was increasing, yet AVM Jennings in overall charge of the Parent Unit and as a senior legal officer in the department, was supposed to have had no input. In respect of the APC recommendations AVM Jennings said that she was told about what was happening but that she had no concerns, she merely wanted to see how matters panned out. AVM Jennings said she did not know that Flt Lt Davies had initiated a wider review of the claimant’s employment options, which is just unbelievable. AVM Jennings said that she was aware that the claimant had made some complaints about her sometime previously, but again, she was very vague on this, she was vague on what she knew, where the source came from and she did not really know whether this was in the form of being told that the informant had told her that the claimant had made a Service Complaint or any further specifics. Again, this is wholly untenable. We do not believe that someone so senior would have had such a vague idea about a significant complaint being made against them, but then seemingly be totally unconcerned or uninformed as to what this was about and what was happening in respect of the complaint and the complainant. AVM Jennings said that she was aware that relationships were breaking down between the claimant and the legal team around this stage, so she was not surprised by Flt Lt Davies’ recommendations. If this was true, then in our view this would heighten AVM Jennings interest in the claimant and involvement in the processes rather than the continued supposed marginal interest and discrete monitoring from a distance.[181]The claimant took matters further when on 25 June 2019 he contacted ACAS to embark upon Early Conciliation. He gave Headquarters Air Command, RAF High Wycombe as the respondent’s contact details [HB1]. On 8 July 2019 ACAS wrote to the claimant stating that they would like to contact the respondent [HB1606]. According to an email from ACAS the respondent knew about ACAS early conciliation on 9 July 2019. On 10 July 2019 the claimant wrote to Sqn Ldr Gareth Jones (who dealt with HR support at RAF Coningsby) advising that he had also now made a claim under the EqA in the civil law and Employment Tribunal [HB1612,1618].[182]However, Flt Lt Davies/Wg Cdr Shearing recommended a review of the claimant’s employability within the Legal Branch and beyond on 1 July 2019 which was before the second protected act. So, the second protected act cannot be attributed as a relevant fact in issue 3(b)(iii).[183]Because there is a lack of contemporaneous documentation considering their thought processes, we cannot easily understand the factors motivating Flt Lt Davies’ and Wg Cdr Shearing’s conduct. Perhaps illuminating, is AVM Jennings’ response in which she said that around this time the claimant was highly disruptive. She said everything the employer did he challenged, he was unwilling to ascribe any legitimate reason and his behaviour was disruptive. She said that 2 people had gone off sick, which she attributed to the claimant. However, surprisingly if the claimant was so disruptive it is difficult to see why that was not addressed head-on so that that would be made clear to the claimant that he needed to stop his allegedly troublesome or unruly conduct. However, it seems that AVM Jennings and her deputy sat back a let a process unfold. Flt Lt Davies or Wg Cdr Shearing took no steps to stop this supposed disruptive conduct, in the alternative, which is equally surprising. The process that Flt Lt Davies/Wg Cdr Shearing implemented did not deal with the claimant’s disruption directly or promptly but proceeded down the avenue of questioning whether he was employable within the Legal Branch or elsewhere. This response to a so-called disruptive officer was not predictable so the behaviour and motivation of these officers caused us some considerable concern.[184]There was no evidence to conclude why the claimant’s employability within the Legal Branch was called into question prior to AVM Jennings’ report other than Wg Cdr Shearing raising concerns about the claimant’s behaviour – which was not addressed directly with him. However, on 18 July 2019 AVM Jennings prepared a report entitled Options for Employment of Wg Cdr Steele as an RAF Legal Officer [HB2000-2014]. She wrote this in her capacity as Director of Legal Services (RAF) and the Head of Branch. AVM Jennings said she was able to prepare a detailed report for the next day. The report was 5 pages single spaced with lots of narrative and AVM Jennings in evidence said that this was at the forefront of her mind for some time and she had been involved in multiple discussions with her deputy so it was easy to correlate all of the evidence and to turn around a report in such a tight timeframe. That somewhat contrasts with her evidence of a previous hands-off approach for the DWP and the MAAP.[185]In any event, AVM Jennings made the recommendation that she did not consider there were any viable options for the claimant’s employment in the RAF Legal Branch now or in the future. Her conclusion was definitive; “I therefore consider that Wg Cdr Steele can no longer continue as a Legal Officer within the RAF Legal Branch”.[186]The report refers to Wg Cdr Steele’s Service Complaints although in evidence AVM Jennings said she had not seen these Service Complaints. We do not believe that she would comment on such matters (which included the first protected act) without reading or knowing of these in some detail. So, we reject that part of her evidence at least. AVM Jennings said that she had been advised that she was the respondent in at least one Service Complaint, and she said that this had not influenced her recommendation. The report contends that the claimant’s standard of legal work was a cause of concern. The report is heavy on accusations but very light on providing the substance of these criticisms, so this report is unusual coming as it does from so senior a solicitor. As a polemic against the claimant, it may have some value, but the Tribunal rejects its value as a thorough or detached assessment of the claimant’s employability.[187]The detriment is obvious. The MAAP was the mechanism that the respondent effected the termination of the claimant’s commission then AVM Jennings’ report provided the supposed reason. We saw surprisingly little evidence to support AVM Jennings conclusion that the claimant could no longer serve in the RAF Legal branch. We determine that the real reason for AVM Jennings’ conclusion was that she was upset or annoyed about the claimant’s Service Complaint about her behaviour and management of the Legal Branch. By 12 July 2019 Wg Cdr Shearing knew about the claimant’s initiation of Employment Tribunal process or at least the significant step of ACAS Early Conciliation as a precursor to an Employment Tribunal claim. If Wg Cdr Shearing knew of this then it is not conceivable that AVM Jennings as the Head of the Legal Branch and the claimant’s senior manager did not know. This accounts for the abruptness and finality of AVM Jennings’ conclusion that the claimant had no future and would not work in the Legal Branch anymore. Issue 3(b)(vi)[188]It was mid-July 2019 that Sqn Ldr Podmore of the Service Complaints Team shared details of the claimant’s Service Complaints with Wg Cdr Shearing. Wg Cdr Shearing was building his case against the claimant and wanted selective information to provide to the “Decision Authority”. Sq Ldr Podmore provided this information promptly, i.e. 3 days later, on 15 July 2019. We find above that the provision of this information was very prejudicial to the claimant as this was taken out of context, but that seemed to be Wg Cdr Shearing’s point. So the provision of this information was a significant detriment, particularly as it was eventually relied upon to justify the termination of the claimant’s commission. The timing is clear, this came after the first protected act and immediately after the claimant’s second protected act. The real reason for this measure was to present to the Decision Authority, ultimately the Air Force Board so as to justify the claimant’s dismissal. We are not sure why the information was updated at the end of September 2019, probably to cast the claimant in a more unfavourable light as the claimant had made 5 additional complaints by then. Issue 3(b)(vii)[189]On 9 October 2019 Wg Cdr Shearing recommended that the claimant’s commission be terminated. We make extensive finding of fact in respect of this report above and comment upon the report extensively. Wg Cdr Shearing’s report was damning and unremitting, but also lacking in corroborative evidence.[190]The ongoing references to Service Complaints and Employment Tribunals proceedings draw us to the inexorable conclusion that, at the very least, these had a significant influence, but we think it had more than a significant influence. It was never adequately explained by the respondent the shift in emphasis of the MAAP from the claimant not being able to work in the RAF Legal Branch (according to AVM Jennings) to the claimant not being able to work anywhere in the RAF. Wg Cdr Rowley’s efforts were not sufficiently diligent, she left many areas or opportunities not pursued; there is a surprising lack of detail in respect of any careful and thorough job searches being undertaken. The claimant was not advised during this period that his commission was at risk, so, as far as he knew, he was merely making suggestions in respect of a temporary placement at various locations while his Service Complaints were resolved. He was not aware that Wg Cdr Shearing and AVM Jennings, the head of the Legal Branch were using the MAAP process as an opportunity to end his career. While Wg Cdr Rowley was looking to place the claimant on a temporary or permanent basis (it is not exactly clear to us which or both) the claimant was not given access to any list of vacancies, any internal websites or anything that might assist the job search. The claimant was not informed at this crucial time that if Wg Cdr Rowley could not find a suitable placement then the claimant’s commission would be terminated. We cannot find any corroborative contemporaneous evidence that Wg Cdr Rowley was informed of the gravity of her task. We believe that Wg Cdr Rowley probably did not know the claimant’s predicament was so stark because a fair-minded individual would have told the claimant and/or she might have made more of an effort with her job searches.[191]We are persuaded that the objective of the Shearing report of 9 October 2019 was to justify the termination of the claimant’s commission. The respondent has identified nothing that might discharge its burden to prove that this was the result of non-discriminatory motives. The claimant had made 2 protected acts. These were so serious that the respondent wanted to rid itself of him. The real reason for Wg Cdr Shearing report of 8 October 2019 was that the claimant was perceived to have gone too far in challenging senior officers and colleagues. The 2 protected acts were at the core of the perceived disruption, and they were the real reason for the detriment. Issue 3(b)(viii)[192]This allegation relates to the referral of Gp Capt Shearing’s report to AVM Harvey Smyth in early- to mid-November 2019. We heard in evidence that Wg Cdr Shearing’s report and 2 lever-arch folders of documents turned up on AVM Smyth's desk for review. AVM Smyth said in evidence he was told by one of his assistants that he needed to review and approve such report for upward transmission. AVM Smyth said that he took the material home on 12 November 2019 and flicked through the folder, concentrating on various aspects, although he could not remember anything standing out in his mind. He then spoke to Gp Capt Shearing the following day and Gp Capt Shearing informed him that there were no employment options available for the claimant and that AVM Smyth’s role was to pass this report and referral as the “higher authority” so that it could be dealt with by members of the Air Force Board. If there was discussion with Gp Capt Shearing, it was not of any depth or significance because there were no notes taken by anyone and AVM Smyth did not remember anything of any significance arising from either the documents given to him, any missing documents or his conversation with Gp Capt Shearing. AVM Smyth undertook no investigation. He said he merely read the report and looked through the file to see if there was a prima facie case. He could not remember reading the claimant’s response. He said that he was satisfied that there was some substance to the MAAP/disciplinary process and that matters would be ventilated at the next stage.[193]We are surprised by AVM Smyth’s evidence that he did not quiz Gp Capt Shearing more closely about the employment options available to the claimant. His statement reports him saying that Gp Capt Shearing confirmed that there had been no employment options for the claimant but, so far as we can tell the respondent, had undertaken no job searches for at least 4 months and these circumstances coupled the absence of redeployment opportunities appeared highly unusual. AVM Smyth exercised no independent judgment, he merely sought assurances from the author of the report that the report was correct. This should have been immediately apparent to AVM Smyth as a rather slap dash approach and we believe that he should have scrutinized the material more carefully, particularly:(a) given the tone of Gp Capt Shearing’s rather personalised criticism of the claimant;(b) there being no recommendations in respect of misconduct; and(c) there being no evidence of recent job searches. If this was not sufficient cause for concern, then the reference to complaints of discrimination and Employment Tribunal proceedings ought to have raised some concern or at least curiosity. Regrettably it did not. AVM Smyth read the report and signed it off, so far as we can see, without any sufficient engagement. He said that he wanted to deal with matters promptly and it is evident to us that he wanted this file off his desk as quickly as possible. Had AVM Smyth read the report thoroughly then he would have been able to discern that there was nothing favourable towards the claimant that might suggest a degree of balance sufficient that he may well have questioned what he was being asked to do.[194]In any event, he signed off the report and, as he said, passed this up the chain for the final determination before the Air Force Board.[195]This was a clear detriment to the claimant because it was an opportunity missed to reflect upon Wg Cdr Shearing’s direction of travel and the further passage of the MAAP.[196]At that time AVM Smyth was, Air Officer Commanding 1 Group RAF. So he was the higher authority. The MAAP is not entirely clear about AVM Smyth's role as the higher authority; he appears to sit below the disposal authority. In any event, what was required from AVM Smyth, according to the process [HB2022] was that he reviewed the MAAP and that he was satisfied that there was sufficient evidence to support the narrative of events outlined within the MAAP process. AVM Smyth said that from the information provided to him, it met this low bar. It met what, we perceived to be, a threshold lower than the rushes. It is unfortunate that this matter was referred to AVM Smyth as he was a busy officer and was keen to progress matters. We are not at all satisfied that he undertook the review thoroughly because he failed to pick up the obvious errors that we have identified above, and this is illustrated by the fact that he turned around the whole report within 24 hours. This was not a significant problem in itself because AVM Smyth was merely a conduit but when it was combined with a lack of rigor it reads to us that AVM Smyth treated this as a matter that merely required his signature. It was on his desk for a short while. He passed it on for others to deal with it and he was not sufficiently engaged or interested. Regrettably another officer's career and livelihood was at stake, so AVM Smyth’s shortcoming were significant.[197]The detriment for the claimant is that the MAAP passed this uncritical review of the report. From the information presented to AVM Smyth, he was satisfied that there was sufficient evidence to support referring the process onward. The detriment was that AVM Smyth did not stay the process or stop the process and instruct Gp Capt Shearing to produce a more balanced and rigorous account and question the impact of the Wg Cdr Steele’s complaints and the protected acts.[198]AM Young noted that the MAAP had progressed through various stages, including AVM Smyth’s scrutiny which he assessed gave it credence. So, a momentum built up in circumstances where the MAAP should have been questioned or decelerated at least. So, the detriment is established.[199]The fact that Gp Capt Shearing’s report was full of references to the claimant's protected act did not raise any concerns or scrutiny from this senior officer. The burden of proof has shifted to the respondent, but we do not believe that the real reason for this detriment is because of the claimant's protected act. The process required a signature, we feel AVM Smyth overstated the limited work that he undertook and his role in the MAAP but he easily signed off his part in the process without much thought. AVM Smyth was not sufficiently engaged; we think not sufficiently interested and did not place sufficient care because he was busy. He regarded this as a formality, he added his signature and moved something on without a great deal of thought or concern. We do not think AVM Smyth was involved in a conspiracy he was merely careless. This allegation of victimisation is rejected. Issue 3b(ix)[200]The claimant applied for Early Termination, and this was actioned on or around 28 November 2019. Early Termination is these circumstances was effectively an attempt to resign his commission. The claimant said that this application for early termination was not voluntary; he said it was a way to prevent his mental health collapsing, and we accept his evidence in that regard. The claimant had been on protracted sick leave at that stage and matters had been progressed in a manner that he said he could not cope with. The claimant said that he had suicidal thoughts by that stage, which we accept. The respondent's process is quite clear at paragraph 5 of the MAAP which said that any request for early termination should be held in abeyance for completion of the MAAP [HB140]. There was no provision for effecting the early termination, as opposed to actioning it, until the MAAP was resolved. We note AM Young's comments about specifically dismissing the claimant, as opposed to allowing him to leave on early termination both at the interview and in his 2021 statement. However, the process was quite clear so irrespective of AM Young's overlay we do not find any detriment in this regard. The presumption was for the MAAP to be completed where the subject was due to leave anyway at a normal exit point or where there was a pre-approved Early Termination date. The claimant sought something for which he had no entitlement to and the process continued in accordance with the appropriate policy. Even if there was a detriment, the detriment could not be linked in any way to the protected acts because it was the policy itself, and not the protected acts, that determined that the claimant was not permitted to resign or leave on Early Termination, so this allegation fails.[201]The policy provided that the early termination should be held in abeyance. Although “should” might seem to imply a discretion because it does not say “must”, we cannot see that anyone was placed in a position to exercise the discretion prior to the Air Force Board pof 13 December 2019. The claimant applied for early termination which was “actioned” on 28 November 2019. His employment was due to terminate in April 2020. Gp Capt Shearing progressed the MAAP as quickly as possible, but he would have done this in any event. The claimant was not in the position to engage in the process. So, on balance we see this as the respondent embarking upon a process which the presumption was that this must be followed through. We are not satisfied that the failure to cease the MAAP was because of the protected act. Issue 3(b)(x)[202]We have not heard from Gp Capt Hutchinson to explain this role or correspondence in this case nor have we seen any contemporaneous notes of his contact with Wg Cdr Steele. So we do not know what the claimant was asked or how he was asked. The claimant could well have a legitimate concern that Gp Capt Shearing was out to get him so did not wish to give him any ammunition in respect of his ill health. We simply do not know what the claimant voiced as his concerns. These were never addressed by the respondent and the claimant has not provided his medical records to us. In any event, what remains clear to the Tribunal is that the respondent was dealing with a sick man and that they were very keen to rush ahead with this process.[203]We were surprised that there was an absence of direct correspondence with the claimant over his fitness to proceed and we drew an adverse inference in respect of this. We expect an employer to explain the consequences carefully to a reluctant employee if he wanted to decline medical assessment. This would be more complicated where the claimant is suffering from a substantial mental health breakdown as appears to be the case from the limited medical evidence available. So the process should have been paused for further clarification. If the claimant did not cooperate with the occupational health review and if that cooperation was necessary, then that could be explored fully and appropriate action taken.[204]We are persuaded that the real reason for this behaviour was the claimant's protected act. It was clear to the Tribunal that Gp Capt Shearing wanted to move the process as quickly as possible towards the claimant's termination. The added impetus was that the claimant had pursued early retirement because of his illness, which appeared substantial. Gp Capt Shearing was not content to allow the claimant to retire, he wanted the claimant’s commission terminated. That is why the claimant was not permitted any pause in the process to allow time for further enquiries, clarification and or additional adjustments.[205]The respondent contend that it was not permissible for the claimant's assisting officer to attend the Air Force Board on his behalf, but he could accompany him for the interview as directed by the policy. We were not referred to any policy, but the claimant did not take issue with this specific point, so we do not find any detriment and consequently no victimisation in that part of the allegation. However, our principal concern was that in the rush to dismissal the claimant the respondent made little or no allowance for his illness and mental health deterioration and that was a significant victimising factor. Issue 3b(xi)[206]This allegation is about Gp Capt Shearing failing to present a full picture about what work the claimant was willing to undertake. The complaint is about the information given to the Air Force Board.[207]It is clear to us from our findings above that the claimant's wider employment opportunities, which was central to the MAAP, was not the real consideration for these 2 officers. The real consideration was to punish what they perceived as the claimant's wrongdoing. We were particularly disturbed at the endorsement both Air Marshals gave to the head of legal department’s unwillingness to work with the claimant. Perhaps they saw this as supporting the chain of command. However, this might have been more understandable had they questioned AVM Jennings directly, but they merely relied upon her written report and the representations of Gp Capt Shearing. Issues 3b(xii) and 3b(xv)[208]Both deal of the above allegations deal with claimant's termination so we will take those issues together. The Air Force Board's criticism of Wg Cdr Steele’s behaviour was at the forefront of their decision making however, at the hearing the claimant had not been accused of any misconduct and there were no formal complaints made against him for misconduct. Nevertheless, in its decision the Air Force Board was critical of the claimant for not accepting the decision and determined that Wg Cdr Steele’s manifestation of his perceived injustice had influenced his recent behaviour to such an extent that it had or is likely to cause reputational damage to the RAF. The Air Force Board found that he had not been rehabilitated since the formal warning. It was not clear to us why Wg Cdr Steele needed to show particular insight into accepting his formal warning. In any event, the formal warning was spent so we were puzzled about the Air Force Board's determination as to why he needed to be rehabilitated. Based entirely on Gp Capt Shearing’s report the Air Force Board determined that Wg Cdr Steele fell short of maintaining the ethos, common core values and standards of the RAF and he had not maintained a level of mutual respect towards personnel through his behaviour and an attitude towards his colleagues. This is an unsustainable conclusion because there were no formal complaints made against Wg Cdr Steele and the Air Force Board did not hear from any first-hand complainant, nor did they hear from Wg Cdr Steele itself. They merely relied upon the report of Gp Capt Shearing, which appeared to us as not balanced and inaccurate. The Air Force Board noted that individuals had been professionally affected by his behaviour and that was a key point. The Air Force Board accepted AVM Jennings’ report that Wg Cdr Steele's position was untenable and beyond repair [HB2000-2004].[209]Both AM Young and AM Mayhew considered it was not in the service interest to find him employment in an alternative branch. They felt the RAF had been sufficiently flexible to find him alternative employment after he submitted his first Service Complaint. It was clear to us that the Air Marshals viewed submission of Service Complaints in an unfavourable light. Both members of the Air Force Board agreed that Wg Cdr Steele’s was unsuitable for employment in the RAF and raised the lack of integrity, the gravity of his behaviour particularly as a senior officer and a lawyer and the behaviour he demonstrated was not acceptable for any service person. Consequently, the record of decision confirmed the termination of Wg Cdr Steele’s commission [2429-2430]. In the note of action [HB2431] the Air Force Board recommended discharge from the service. The discharge was not affected in accordance with the appropriate Queen's Regulations according to Wg Cdr Steele’s partially successful appeal to the Defence Council. This was a technical matter and did not concern the Tribunal greatly because it merely turned on certain wording in the Queen's Regulations. The Board said that they had satisfied themselves that the procedure for the MAAP had been applied properly and they said that they had considered Wg Cdr Steele’s representations which is disingenuous in the circumstances because at best there was a cursory consideration of some of Wg Cdr Steele’s responses. Although to date we have not been provided with a copy of the contents of the decision makers hearing bundle.[210]The statements completed in April and May 2021 are particularly illuminating because they are relatively near-contemporaneous, around 1 year and 4 months after the event. AM Young said he had access to some papers because he referred to reading through the Record of Discussion. AM Mayhew said that he did not have access to his bundle, possibly sensing the inconsistency with his evidence. We do not believe that AM Mayhew did not have access to the record of discussion and the decision record similar to AM Young who was interviewed earlier. In any event, both were warned of the importance of their statements, and both confirmed that the signed statements were accurate in the contemporaneous notes. So these accounts are highly relevant and stand as a more accurate record of their accounts in view of the proximity to the events under scrutiny. AM Young said that he and AM Mayhew wanted to terminate Wg Cdr Steele’s commission, as opposed to allow him to resign, for 3 specific reasons [HB4164-4170]:a. To demonstrate that behaviour such as his was unacceptable. At the time, he had submitted 16 SCs, allegations of bullying and 2 cases for Employment Tribunal. He had caused a lot of upheaval within the Service and a significant morale issue within one of the branches, and he was in our view beyond the point of rehabilitation. We do not expect senior officers in the RAF to behave in this way and it was unacceptable.b. To invite his resignation would not have been good enough, as there would have been the opportunity 5-years later for him to re-join as a Regular or Reservist, and we do not want that to happen as the relationship he had with the RAF had broken down irretrievably.c. When an individual submits an application for [early termination], at any point it can be rescinded and the possibility had to be considered. We did not want that to happen. Accordingly, we (the AFB) did not wish Wg Cdr (Retd) Steele to simply resign, we wanted him to leave the service on our terms.[211]AM Young in evidence at the Tribunal said he had read the papers in advance and so had AM Mayhew. He said there was a brief discussion at the outset to make sure that they were very broadly in agreement prior to the hearing starting. This is entirely consistent with their approach in not hearing the claimant. Paradoxically, we do not believe that it was a significant detriment not hearing from the claimant. We say this because we do not believe that anything the claimant had to say would have deterred the AFB, i.e. there 2 senior officers, from making the decision that they did. They were resolved to terminating the claimant’s commission. The claimant was told he was not permitted to submit evidence in advance of the hearing and he was told in the notice of hearing that the Air Force Board hearing “was not a hearing” [HB2377, 2386]. So this was a fundamentally unfair process.[212]It was clear to us that, irrespective of the refusal to hear first-hand evidence of one of the primary parties, the Air Force Board had already made up their mind. This was confirmed to us but AM Young said in evidence that when they discussed the claimant the outset, he remarked he had never seen 16 service complaints or so many freedom of information requests before and with this combined with lots of general complaints and other activities was highly unusual in itself. Once making such a remark AM Young said that they did not inquire into the substance of the Service Complaints – it did not matter if the claimant had a point or not, which we found bizarre.[213]In cross-examination AM Young was particularly critical to Wg Cdr Steele in respect of what he regarded as making allegations of wrongdoing against 42 officers. He said that had never happened before and that meant that Wg Cdr Steele had no credibility for moving into any branch and he could not perform at a senior level by virtue of the number of complaints he had made. This was in contrast to – and inconsistent with – his other evidence that he did not hold against the claimant the number of complaints he made. AM Young was particularly concerned about the credibility of the claimant and his position that the head of branch was saying that she could not work with him and that he believed that junior officers also did not want to work with him.[214]In his evidence AM Young said that there was no mention of the claimant's willingness to join RAF personnel, the administrative branch or intelligence. AM Young said the key to the decision was the Director of Legal Services stating that there had been any irretrievable breakdown in trust and that this bore heavily on his decision making. AM Young said he was not aware of the claimant's service experience nor was he aware of the claimant's work in other branches. In cross-examination AM Young said that 16 service complaints and an Employment Tribunal case was extraordinary, and he had the perception that the claimant sought to undermine the system which arose from his final written warning through to not being promoted and effectively manifested in the number of internal complaints which were not acts expected from a senior officer. He said that the claimant's case was unusual and extraordinary. AM Young said that Gp Capt Shearing’s report [HB1983-1999] painted a picture of the claimant’s frustrating and unprofessional behaviour, which he accepted. The Service Complaints and the Employment Tribunal claim worried him because he had not expected this from a senior officer.[215]It is clear to the Tribunal that AM Young saw the claimant's Service Complaints and Employment Tribunal procedures as the claimant undermining the chain of command and effectively trying to bully other individuals.[216]He said that it worried him when looking at his service. Wg Cdr Steele asked AM Young why he determined the claimant's behaviour was unacceptable when he did not have sight of the Service Complaints and the Employment Tribunal proceedings and AM Young answered that 42 officers had made complaints including very senior officers, Air Vice Marshals had been fighting each other to reign him in, but he accepted that he did not see the hard evidence. The very fact that the claimant was put through the process, according to AM Young, meant that the claimant had exhibited behaviour was not acceptable. Yet paradoxically AM Young said that he found the claimant unsuitable for continuous service but “not blameworthy” i.e. he did not see this as a disciplinary matter. We found this explanation to be wholly unfathomable because the claimant in fact was being blamed for making a volume of complaints which in itself was judged to be disruptive, according to AM Young.[217]AM Young repeated throughout that the claimant had made complaints against 42 officers and that this had caused significant upheaval. He said that junior officers did not want to work with him, although the Tribunal had seen no direct evidence or first-hand account of that and nor had the Air Force Board. A central feature of this claim was that AVM Jennings and Gp Capt Shearing purported that junior officers would not work with the claimant but other than their assertions, no evidence was produced to corroborate this. This absence of evidence is highly significant because we would have expected there to be ample evidence being sought and supposedly available of the claimant’s antagonistic approach, if there ever was such disruptive behaviour. AM Young confirmed that he believed he acted in the interest of the RAF and to preserve the integrity of the service, but the lack of any critical or rigorous analysis by the Air Force Board can only undermine the integrity of the process.[218]AM Mayhew recorded his decision to terminate the claimant’s service [HB4216]. The decision was based on Wg Cdr (Retd) Steele's unsuitability for further employment in his branch because of the trust breakdown, his way of reacting to the civil case and appeals, the catalogue of SCs and his inability to transfer to other branches that were conviction-free. His values and conduct were not in line with a senior officer in the RAF and he has had lost the trust and confidence of the RAF. We did not have sight of the SCs and didn't know the full nature of them, but we were aware that they were long standing. We suspected that further SCs might come.[219]So clearly AM Mayhew’s note was broadly consistent with the rationale of AM Young, although AM Mayhew does not refer to the Employment Tribunal proceedings. The catalogue of service complaints was a major factor in his decision-making and he suspected that further service complaints might come. Service Complaint 3 was prominent and that was the protected act. AM Mayhew was aware, but he did not refer to the Employment Tribunal complaint. There was no effort to separate the protected acts from the other disruption caused by the claimant and this is key. The fact that the claimant had complained of discrimination and victimisation was central and the claimant was dismissed because of the perceived disruption of these complaints.[220]Having heard the totality of the evidence we are satisfied that the first protected act and the second protected act had a significant influence upon the dismissing officers. According to AM Mayhew’s account it appears that he was concerned that the claimant may do further protected acts because he said that he was worried about further Service Complaints. In any event, the claimant was seen as a disruptor by AM Mayhew and a large element of his disruption was the internal Service Complaints and, in particular Service Complaint 3, which we regard as of paramount significance and also Employment Tribunal proceedings which took matters to an external footing. Issue 3b(xiii)[221]This allegation centres on the claimant's objection to Gp Capt Shearing drafting the notice of action which confirmed the Air Force Board's decision [HB2431-2432]. The claimant contended that it was inappropriate for Gp Capt Shearing to be involved in drafting the decision. Gp Capt Shearing had attended the Air Force Board and presented the case against the claimant. He drafted the appropriate decision because he was the prosecuting officer and submitted this to AM Young and AM Mayhew for their approval. As the Air Force Board, the Air Marshals approved the short note of action. Given that someone had to draft this, we do not see anything untoward that the prosecuting officer drafted this. We do not see any particular detriment by Gp Capt Shearing drafting the document for approval. It does perhaps emphasise the Air Force Board’s lack of independent, critical approach and its ready acceptance of Gp Capt Shearing’s prosecution, but this is largely cosmetic. If the Air Force Board’s decision-makers had done their job properly then this point would not matter, but the fact that they exercised little or no critical engagement with Gp Capt Shearing prosecution elevated this to a significant concern in the claimant’s eyes. However, for us, the injury was not substantive. The detriment was the decision made not who wrote it up. Issue 3b(xiv)[222]We do not see the detriment in sending a note of action directly to the claimant after this was shared with his solicitor. The claimant may or may not have had this document. The respondent sought to make sure he had and sent it out to a relevant contact address.[223]It is unfortunate that this was sent so that it arrived on Christmas Eve. We are not persuaded that this was intentional to cause further upset to the claimant over the Christmas period. Again, the detriment was the determination itself which was hugely significant. The respondent proceeded without the claimant being there, they sent an appropriate note to his solicitor and then subsequently sent a note direct to the claimant. We do not see this is causing any detriment.[224]For the reasons set out above the termination of the claimant’s commission, which took effect on 30 March 2020, amounted to unlawful victimisation in breach of s27 EqA. Issues 2(a) and (b)[225]The list of issues correctly identifies that any complaint arising before 25 February 2019 may be outside the Employment Tribunal time limit under s123 EqA, as adjusted for ACAS Early Conciliation. This applies to one complaint only, issue 3(b)(i).[226]As can be seen above, we are satisfied that the behaviour of Gp Capt Sanger-Davies (against whom the primary allegation is made) was a key part in an overall pattern of discriminatory behaviour. We make this determination cognisant of the involvement of Wg Cdr Shearing and AVM Jennings. So, this act is not out of time under s123(3)(a) EqA. Even if it were out of time, we would determinate that I would be just and equitable to allow this separate finding of victimisation to proceed to remedy as it was a significant part of the overall factual matrix, it was sufficiently proximate to the other in-time victimisation found and it would be unjust to disapply such remedy in respect of this incident.