Mr M Lees v BP Exploration Operating Company Ltd: 4103968/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103968/2024Venue AberdeenHearing 5 August 2024
Between
Mr Mark LeesClaimantBP Exploration Operating CompanyRespondent
Before
Employment Judge N M HosieDate 9 December 2025
JUDGMENT
[1]the Tribunal has jurisdiction to consider the claimant’s disability discrimination claim; and[2]the case should proceed to a Preliminary Hearing. E.T. Z4 (WR)
REASONS
[1]The claimant, Mark Lees, presented his ET1 claim form to the Tribunal on 3 March 2024. He intimated complaints of disability discrimination under the Equality Act 2010. The claim is denied in its entirety by the respondent. The respondent’s solicitor took a number of preliminary points including that the claim was time-barred. The case called before me by way of a Preliminary Hearing to consider the time-bar point and other preliminary issues.
The evidence
[2]I heard evidence from Mr Lees and his wife, Mrs Nicola Lees. A Joint Bundle of documentary productions was submitted (“P”), along with Mr Lees’ G.P. records.[3]After hearing the evidence, Counsel for the respondent spoke to written submissions and I heard oral submissions by and on behalf of Mr Lees.
Relevant law
[4]The provisions relating to the time limit for bringing a claim to the Employment Tribunal under the Equality Act 2010 (“the 2010 Act”) are set out in s.123- “(1) Subject to section 140B [a reference to the provision extending time for ACAS Early Conciliation] proceedings on a complaint within section 120 [the section giving power to the Tribunal to hear claims under the Act] may not be brought after the end of -(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable.................”[5]The Tribunal has a broad discretion to hear a claim out of time under s.123(1)(b) of the 2010 Act. In British Coal Corporation v. Keeble [1997] IRLR 336, it was confirmed that this involved a consideration of the prejudice each side would suffer, taking account of all the relevant circumstances of the case.[6]Keeble also suggested that the factors set out below are ones which the Tribunal should take into account in exercising its discretion. However, in subsequent decisions, it was made clear that the Tribunal has been given a very wide discretion under the 2010 Act and it should not treat these factors as a “check-list” (Adedeji v. University Hospital Birmingham NHS Foundation Trust [2021] ICR D5]) but, rather, take into account all relevant factors with no one factor being determinative.[7]The length and reason for any delay as well as the question of any prejudice to the respondent arising from the delay have been said to always be relevant factors (Abertawe Bro Morgannwg University Local Health Board v. Morgan [2018] IRLR 1050) although it has to be borne in mind that no one factor is determinative.[8]The factors which may be relevant to the exercise of the Tribunal’s discretion are:-(i) the length and reasons for the delay;(ii) the extent to which the cogency of the evidence is likely to be affected by the delay;(iii) the extent to which the party sued had co-operated with any request for information;(iv) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action;(v) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.[9]Other factors which may be relevant to the exercise of the discretion are:-(i) the presence or absence of any prejudice to the respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend proceedings);(ii) the presence or absence of any other remedy for the claimant if the claim is not allowed to proceed;(iii) the medical condition of the claimant, taking into account, in particular, any reason why this should have prevented or inhibited the making of a claim.[10]The burden of proof in the exercise of the discretion falls on the claimant and past cases have made it clear that it should be the exception not the rule, with no expectation that the Tribunal would automatically extend time {Robertson v. Bexley Community Centre [2003] IRLR 434). However, this does not mean that exceptional circumstances are required for the Tribunal to exercise it’s discretion and the test remains of what the Tribunal considers to be just and equitable {Pathan v. South London Islamic Centre UKEAT/0312/13). Discussion and Decision[11]It was common ground between the parties that the effective date of termination of Mr Lees’ employment was 21 August 2023 and that his ET1 claim form was presented on 3 March 2024.[12]S.140B of the 2010 Act provides for an extension of the three-month time limit to facilitate conciliation before institution of proceedings. However, a claimant is required to notify ACAS within three months from the date of the last act complained of and the claimant did not do so in the present case. He only notified ACAS on 2 February 2024 which was more than three months after the effective date of termination.[13]Dismissal was the last act complained of. Accordingly, the time limit in the present case expired on 20 November 2023 and the claim which was presented on 3 March 2024 was over three months late.[14]The issue for me, therefore, was whether I should exercise my discretion, extend the time limit on the basis that it was “just and equitable” to do so and allow the case to proceed.[15]It was significant, so far as my decision was concerned, that the evidence I heard from Mr and Mrs Lees about Mr Lees’ medical condition immediately after his dismissal and the impact on him was consistent, corroborative to a degree, credible and reliable.[16]Mr Lees has been diagnosed as “experiencing complex PTSD”. One of the productions in the Joint Bundle was a Report from a Consultant Clinical Psychologist dated 29 April 2024 (P.142-146).[17]Mr Lees also maintained that he has Attention Deficit Hyperactivity Disorder (ADHD) and “anxiety".[18]While Counsel submitted, with reference to the claimant’s medical records in the supplementary bundle, “that the claimant’s anxiety levels were wellmanaged with his existing medication between the issue of the ET1 on 3 March 2024 and had no impact on his ability to bring a claim in time”, I was not persuaded that that was so.[19]While his G.P.’s medical records record that on 23/8/23 that he had, “a sense of relief’ about being “sacked” and that he found the situation “less stressful”, I accepted his evidence that shortly thereafter his health deteriorated.[20]In an “Impact Statement” which he produced in response to a Tribunal Order he gave extensive details of the impact of his various health conditions on him (P.53-60). I was satisfied that this information is reasonably accurate and reliable.[21]I accepted Mr Lees’ evidence that, in the crucial period from 21 August 2023 to 20 November 2023, he “couldn’t face anything to do with BP”, that he experienced “nightmares” lacked motivation and that he could not “revisit” the way he had been treated by the respondent. As he put it, he “became a hermit” and he continued to experience "flashbacks which came from nowhere”. Clearly, it was a very distressing time for him.[22]It was not until January 2024 that he was able to consider taking advice and he was able to arrange an appointment with the Citizens Advice Bureau on 16 February 2024, having notified ACAS on 2 February 2024 of his intention to bring a claim.[23]Although he had assistance from his wife thereafter, I accepted their evidence, which was corroborative, that Mr Lees did not speak to his wife about the way he had been treated by the respondent or that he was considering bringing an Employment Tribunal claim until January 2024. He was unable to do so.[24]Although I was not persuaded that Mr Lees could reasonably believe that he had six months to bring his claim, as he asserted ( he could have ascertained the three month time limit by reasonable enquiry), I was satisfied that his medical condition for some months after his dismissal prevented him making a timeous claim.[25]So far as the other factors relevant to the exercise of my discretion, detailed above, were concerned, Mr Lees’ medical condition was an explanation for the length of the delay; I am not persuaded that the cogency of the evidence is likely to be affected by the delay; as far as the management of the case is concerned, Mr Lees has co-operated fully and timeously with all Tribunal Directions and Orders; as soon as he was fit to do so, in January 2024, Mr Lees acted promptly in bringing his claim; it was not unreasonable, at least in the first instance, to seek advice from the Citizens Advice Bureau and although he said that was not particularly helpful, he had already notified ACAS of his intention to bring a claim.[26]So far as the balance of prejudice is concerned, if I were not to exercise my discretion the claimant will be left with no remedy as his disability discrimination claim is the only one extant as I refused his application to amend to bring a “whistleblowing” claim. The only prejudice to the respondent is that it will have to defend the claim.[27]I arrived at the view, therefore, that I should exercise my discretion, extend the time limit on the basis that it is “just and equitable” to do so and allow the case to proceed.[28]In arriving at this view, I remained mindful that while I have a wide discretion in this matter, the onus was on the claimant to convince the Tribunal that it was just and equitable to extend the time limit and that the exercise of the discretion is “the exception rather than the rule”. However, in the particular circumstances of this case and having regard to Mr Lees’ medical condition which was an impediment to him submitting his claim in time, I am satisfied that this is one of the exceptional cases.[29]Accordingly, I shall issue a Judgment to the effect that the Tribunal has jurisdiction to consider this claim and direct that the case proceed to a further Preliminary Hearing, in accordance with a separate Note I shall issue to the parties. io
Introduction
[1]The claimant, Mark Lees, brought various discrimination complaints in respect of the protected characteristic of disability (discrimination arising from disability, in terms of s.15 of the Equality Act 2010; indirect discrimination, in terms of s.19; failure to make reasonable adjustments, in terms of s.20; and harassment, in terms of s.26). The respondent, BP Exploration Operating Company Ltd (“BP”), accepted that Mr Lees was a disabled person in respect of his Attention Deficit Hyperactivity Disorder (“ADHD”). However, they denied any knowledge of any disability at the relevant time when he was employed. They accepted that they had dismissed Mr Lees, but claimed that the reason was capability and that it was fair. They denied the discrimination complaints in their entirety. The Evidence[2]We heard evidence first from Mr Lees and then on his behalf from:-• Dr Lene M Harkjear-Thorgrimsen, a Consultant Clinical Psychologist. We then heard evidence on behalf of BP from:-• Matthew (“Matt”) Doherty, Azule Energy Technical Services Manager from November 2022, and the claimant’s Line Manager in that role;• Karina Rambachan, P & C Senior Advisor (HR);• Alister Forder, Chief Operating Officer, Azule Energy, a BP employee seconded to Azule;• Colin Mitchell, Reliability Discipline Lead.[3]Joint Bundles of documentary productions, running to some 1,000 pages, were also submitted.[4]Having heard the evidence, parties were directed to make written submissions, on receipt of which the Tribunal reconvened on its own on 20 November 2025 to consider and determine the issues.[5]We wish to record, at this stage, that the volume of evidence and documentary productions was such that we have not recorded all of the evidence which we heard; nor have we referenced all of the documents. That would be an impossible task. We have only made findings in fact relevant to the issues in the case. However, the time devoted to ensuring that no point of substance was overlooked has been considerable. All of this put an enormous burden both on the parties and the Tribunal. Observations on
The Evidence
[6]The emotional turmoil the case had generated for Mr Lees was clear. He exhibited signs of significant anxiety and distress throughout the five-day Hearing. That was understandable in view of the nature of his disabilities and the fact that he was naturally immersed in the complexities of the case.[7]The Tribunal remained mindful throughout of Mr Lees’ disabilities and the fact he was a litigant in person, with no experience of Employment Tribunal proceedings. We remained mindful of the “overriding objective” in the Tribunal Procedure Rules and allowed Mr Lees regular breaks throughout the Hearing.[8]Mr Lees had been conducting the Hearing himself, but latterly he felt unable to do so and, with his agreement, his wife, Mrs Nicola Lees, ably took over the conduct of the Hearing on his behalf with cross-examination of the respondent’s witnesses.[9]We wish to record that, without exception, each of the respondent’s witnesses gave their evidence in a measured and convincing manner and presented as credible and reliable. Their evidence was consistent with the documents, consistent with the evidence of the other witnesses, and corroborative to an extent. Matt Doherty, Mr Lees’ Line Manager for a period, was a particularly impressive witness.[10]Their evidence was in contrast to that of Mr Lees. Even taking account of his stress and his disabilities, his evidence in parts was inconsistent and not credible or reliable; for example, in cross examination he denied that he had ever sought any medical intervention in relation to his alcohol consumption when it was clear from his medical records that that was not so. Nor did we find favour with Mr Lees’ written submissions regarding witness credibility. The respondent’s witnesses were all credible and reliable and, by and large, in so far as their evidence conflicted with that of Mr Lees, we preferred the respondent’s evidence. Findings in fact[11]Helpfully, the parties submitted a brief statement of agreed facts. This was consistent with the evidence which we heard. On that basis, we make the following findings in fact.[12]Mr Lees commenced his employment with BP on 28 March 2022.[13]He provided support to Azule Energy in Angola (“Azule”), remotely from Aberdeen. He was nominated to take up a secondment with Azule on a threeyear basis.[14]In April 2023, Azule told the respondent that they did not agree to Mr Lees working to provide services to Azule and they did not want him to take up the secondment. They sent an email containing reasons on 19 April 2023 (P.690- 692).[15]On 7 July 2023, Mr Lees applied for a role in Colin Mitchell’s team. He was not interviewed for that role.[16]Mr Lees was dismissed without being put through a formal performance improvement plan.[17]Mr Lees’ employment with BP ended on 21 August 2023. He was notified of the termination of his employment in person, but without being forewarned that the meeting was to discuss his employment being ended.[18]Mr Lees, his Line Manager Matt Doherty, and Karina Rambachan of BP’s People & Culture Team, were present at the meeting on 21 August 2023.[19]Having heard the evidence and considered the documentary productions, the Tribunal was able to make the following additional findings in fact, relevant to the issues with which we were concerned.[20]Mr Lees was employed by BP as a “Reliability Squad Lead at Level G” from 28 March 2022 until 21 August 2023 when he was dismissed, allegedly on the ground on capability. His Offer of Employment and the Statement of Terms & Conditions of Employment were included with the documentary productions (P.579-595).[21]Mr Lees has over 30 years’ experience in the oil and gas industry. His role at BP was that of a “Change Agent”, which required him to address performance issues of employees and processes in the workplace that were business critical. Azule Energy[22]This was a business 50% owned by BP and 50% by ENE based in Angola. The business was set up on 1 August 2020. BP had discussions with Mr Lees concerning a three-year relocation, “secondee attachment”, to Azule in Angola. After interview, he was told in March 2023 that his application had been successful.[23]He worked remotely at first, but it had been agreed that he would go to work in Angola while still remaining a BP employee. He was moved into the BP Azule organisation, in terms of the Technical Service Agreement (“TSA”) on 1 August 2022. Matt Doherty was the Azule Technical Services Manager and Mr Lees’ Line Manager from November 2022. His previous Line Manager from August to November 2022 was Mark Kelso. Angola trip in March 2023[24]Mr Lees had a familiarisation trip to Angola in March 2023. On or about 30 March 2023, Matt Doherty, the Azule TSA Manager, received a telephone call from Peter Harriman, the Azule Chief Operating Officer, also a BP secondee. He advised Mr Doherty that Mr Lees’ trip to Angola, “had been a disaster’”. According to Mr Harriman, the manner in which Mr Lees behaved at a meeting when he had finger pointed, was inappropriate and unprofessional and there were other conduct issues as well. He advised Mr Doherty that he would be having discussions with his Leadership Team at Azule and that he would let him know whether Mr Lees’ secondment was going to be cancelled.[25]Mr Doherty next heard from Mr Harriman on 19 April 2023 when he discussed an email from Guilherme Pascoal, the Engineering Manager and Authority employed by Azule. Mr Pascoal had sent an email to Mr Harriman that day about Mr Lees, in which he detailed issues of, “Poor Performance”; “Inappropriate Behaviours”; and expressed concerns about “Lack of Leadership” (P.690-692).[26]Mr Doherty discussed the email with both Mr Harriman and Mr Pascoal on 19 April. The following are excerpts from Mr Pascoal’s email:- “As a follow-up from the feedback session I set up with Kimi (Kimi De Sousa, PSVM Asset Manager, employed by Azule); Nick (Nick Blyth, Azule Asset Manager and BP Secondee); Ricardo (Ricardo Valbuena, Azule Maintenance and TAR Manager and a BP Secondee); and Peter F (Peter Falconer, Senior Operations Advisor, Contracted to Azule) to discuss Mark Lees’ performance and behaviour, we have concluded that Mark Lees is not the right person for the Azule Reliability Section Lead role. Therefore below is my recommendation: Recommendation• Stop the secondment of Mark Lees into the Azule Reliability Section Lead role (with immediate effect);• Release Mark Lees from the Reliability Section Lead role (with immediate effect – no handover required back to BP);• Assign Daniel dos Santos as the Interim Reliability Section Lead (with immediate effect)”.[27]Mr Pascoal went on in his email to detail concerns regarding Mr Lees’ “Poor Performance” and then detailed “Inappropriate Behaviours” (P.691):- “Takes leave or goes out of office without consulting his Azule Line Manager and presents excuses that are not acceptable; Struggles to have a sound working relationship with his peers despite of (sic) trips he made to Angola to help strengthen the working relationship; Mark undermines his peers often brings wrong information to Managers without checking first with his peers (e.g. stated to Asset Manager that we spent over $200k on engineering for the Gas Filter Separator when in fact it was way below $50k, blaming techs on LIT for RCFA, etc.)• Mark often comes across as blaming others, most of the time stating his observations on what is wrong as opposed to working collaboratively with the teams to help improve;• Despite of (sic) being told multiple times by various Azule Senior Leaders, Mark struggles to accept that Reliability reports to Engineering which is evident in his speeches and communications. Leadership skills• Lack of structure planning;• Mark often misses his stand-up calls leaving the team without direction;• When team members present good ideas, Mark shuts it down which results in team demotivation; I could add a lot more, but I feel we have sufficient evidence to make a decision.”[28]Following their discussion, Mr Harriman sent an email to Mr Pascoal and Mr Doherty to advise him that he “supported the recommendation”. He instructed Mr Doherty and Mr Pascoal to, “agree and carry out a specific timeline for notifications and next steps to manage this properly” (P.692). Mr Doherty’s meeting with Mr Lees on 24 April 2023[29]Adelya Kashkay “P & C’s Advisor” (HR) was also in attendance. The meeting was conducted by way of Microsoft Teams. Mr Doherty’s handwritten notes and a typed transcript were produced (P.696-709). Mr Doherty advised Mr Lees that Azule had rejected him as the secondee candidate and that he was being removed from working with Azule, with immediate effect. He was also informed that he may have broken the BP Code of Conduct and that this was to be investigated. He was advised to take the rest of the week as paid leave which would enable Mr Doherty to consider redeployment.[30]Mr Doherty had follow-up meetings with various individuals concerning Mr Lees’ performance issues. There emerged from these discussions further allegations concerning his conduct: that he had been under the influence of alcohol in the office in Angola and had made racist remarks to an Angolan national. However, these allegations were never substantiated. The evidence was unavailable and, as Mr Doherty put it, he decided to give the claimant “the benefit of the doubt” and no further action was taken.[31]Following the meeting on 24 April, Mr Doherty sent an email to Mr Lees with a summary of what had been discussed (P.710-711). Mr Doherty also contacted Colin Mitchell, Reliability Discipline Lead and Mr Lees’ Manager before Mr Kelso. Mr Mitchell was able to provide some work for him.[32]On 2 May 2023, Mr Mitchell sent an email to Mr Doherty to confirm that he had been in touch with Mr Lees and arranged work for him in his Global Reliability Department (P.712). Meeting between Mr Doherty and Mr Lees on 22 May 2023[33]Mr Doherty’s handwritten notes of this meeting were produced (P.720-721). A typed transcript was also produced (P.724). This was disputed by Mr Lees as it was typed sometime later. However, we were satisfied that it was a reasonably accurate record.[34]This was the first time that Mr Doherty advised Mr Lees of the allegations about his performance and the feedback which had been received Azule in Angola. The reason for this delay was that Mr Doherty was required to investigate the conduct allegations which could have taken priority, but, as it transpired, it was decided that there was insufficient evidence to take these allegations further.[35]Following the meeting on 22 May, Mr Lees sent an email to Mr Doherty in which he “refuted the negative feedback given by Azule on my performance and whilst there has been isolated comments from a few individuals in the Azule team these were not “regular” and ongoing.” He also requested a “return”, on a permanent basis, to Colin Mitchell’s team (P.737).[36]Mr Doherty replied by email the following day with a summary of what had been discussed at the meeting. He also sent Mr Lees the “Feedback Summary” he had received from Mr Pascoal. Mr Doherty had also decided that it would be appropriate to put in place a Performance Improvement Plan (“PIP”) for Mr Lees. The following are excerpts from his email (P.735):- “Your points are noted as we discussed in the call yesterday. We will continue to discuss and clarify the specifics of the feedback provided as the PIP process moves forward – relevant extracts of the written feedback from Azule are provided below……… I appreciate that receiving feedback like this and facing the PIP process must be a source of stress and worry, which is absolutely not the intention. I would council being open-minded to the feedback and using it as a learning experience for your future success in BP. Please also talk to me, other trusted colleagues, P & C and the Employee Assistance Programme to help and support you through this challenging period.”[37]As it transpired, on the advice of Karina Rambachan, P & C Senior Advisor, Mr Doherty did not put a PIP in place. He was persuaded, having regard to Mr Lees’ many years of experience, that a “Coaching Plan” would be more appropriate. On 12 June 2023, Mr Doherty sent an email to Mr Lees with details of the Plan, the rationale for putting it in place, and offered support in its completion (P.833-834).[38]Mr Lees sent a further email to Mr Doherty on 23 May after he had received the Feedback Summary. He disputed the Summary and considered it to be “very one sided, don’t give full context and are very selective in comments around very big subject areas. Many of which I have articulated multiple times at Reliability Steering Team Meetings and in 1-2-1s with senior BP and Azule leaders, providing guidance and possible solutions.” (P.739)[39]In the meantime, Mr Lees had been working in Colin Mitchell’s team on a “Global Central Project”.[40]Mr Mitchell had a vacancy at the time in his team for a Senior Reliability Engineer. However, as Mr Doherty said in evidence “There is a big focus in BP on transparency”. It was not just a case, therefore, of a “managed move” to that position which Mr Lees wanted. Mr Mitchell had serious concerns about Mr Lees’ performance in the tasks he had given him on his return from Angola.[41]We heard evidence from Mr Mitchell at the Hearing. He gave his evidence in a measured, consistent and convincing manner and presented as credible and reliable. He had been able to assign work to Mr Lees on 2 May 2023. However, so far as he was concerned, Mr Lees had not completed all the required work by the “delivery date” of 4 July. As he put it, “there were gaps. I discussed these with Mark and he agreed.”[42]Mr Mitchell also asked Mr Lees on 9 July “to look into reliabilities in Azerbaijan”. However, according to Mr Mitchell, which we accepted, “that work was never started or delivered. It didn’t progress.”[43]On 20 July, Mr Mitchell also asked Mr Lees to “try out an investigation into work on the West Nile Delta.” However, according to Mr Mitchell, which we accepted, “it wasn’t as advanced as it should have been.”[44]Accordingly, there were three pieces of work which Mr Mitchell had given to Mr Lees which had not been completed satisfactorily or to the level he had hoped. Therefore, Mr Mitchell was of the opinion that a managed move was not appropriate in the circumstances and that Mr Lees would have to apply for the post. However, his recommendation was that as Mr Lees wasn’t working at the level of a Senior G Grade employee, his application should not be progressed to interview.[45]On 11 August 2023, Mr Doherty, Steven Gibson, Reliability Discipline Manager, Alister Forder, Azule Energy COO considered Mr Lee’s suitability for the vacant post in Mr Mitchell’s team with the benefit of advice from Karina Rambachan, P & C Senior Advisor. It was decided that Mr Lees should not be included in the candidates list. Mr Doherty’s typewritten note of that meeting was produced. We were satisfied that it was reasonably accurate (P.882-883). It was based on contemporaneous handwritten notes which Mr Doherty had taken (P.879-881). He was a credible and reliable witness.[46]On 16 August 2023, Mr Doherty sent an email to Mr Mitchell in which he asked him to explain his decision not to employee Mr Lees in his team as he was preparing for a meeting with Mr Lees (P. 900). Mr Mitchell replied later that day and suggested the wording to be adopted: - “Behaviourally in the last 4 months I have had no issues with his conduct towards myself however I have been dismayed at his response to his situation and had hoped for a more energetic and determined delivery. I am of course aware of the Azule issues and previous line management challenges. Would prefer a slight change to the wording if possible……. The skills that you demonstrated whilst working for Colin in the last 4 months, has led him to a decision that he would not progress with your application to the interview stage. Colin has provided the following feedback/reasons for his decision:• The investigation quality review was not completed as per the target due date, did not cover the time specified or provide any quantification for the quality;• An exploratory assessment of AGT Reliability has not progressed in the 4 weeks since being requested;• Mark has been supporting WND MEG circ pump failure, preventing progress on the AGT scope, however the Cause Map produced for this prior to his leave does not indicate any real time being spent on its development. Feedback relates more to delivery and performance in past few months rather than behaviours whilst under my leadership.” Dismissal Meeting on 21 August 2023[47]Mr Doherty invited Mr Lees to a “Teams Meeting” on 21 August 2023 (P.902). Although Mr Doherty advised Mr Lees that this was a “catch-up”, the intention was to advise Mr Lees of his dismissal.[48]Prior to the meeting, Mr Doherty had prepared a script with guidance from HR (P.898-899).[49]Mr Doherty flew up to Aberdeen with Karina Rambachan and they met Mr Lees.[50]In terms of the script, Mr Doherty advised Mr Lees that his employment was to be terminated. He explained that the reasons were not just because of the difficulties which he had experienced with Azule and their refusal to allow him to work in Angola, but also the feedback about his poor performance which had been obtained from Colin Mitchell in whose team he had been working since his return from Angola.[51]When he heard that his employment was to be terminated Mr Lees had a “panic attack”. He required medical assistance. He was taken to recover in a bed at the respondent’s Occupational Health Unit in its premises and his wife was called. When she came in to assist, Mr Doherty gave her and Mr Lees a letter confirming the termination of his employment (P.911-913).[52]Miss Rambachan also sent an e-mail that day to Mr Lees to confirm the termination of his employment and attached the formal termination letter (P.909-910). Teams Meeting on 11 September 2023[53]As Mr Lees had advised Mr Doherty that he had no recollection of the meeting on 21 August, he arranged a further meeting, by way of “Teams”, on 11 September 2023. Mr Doherty explained again the reasons for Mr Lees’ dismissal, with reference to the script which he had prepared (P.898-899). The meeting was secretly recorded by Mr Lees.[54]There was also included in the bundles typewritten notes of the meeting which we were satisfied were reasonably accurate (P.922-926).[55]During that meeting Mr Doherty advised Mr Lees that BP would pay for “counselling sessions for him”. Claimant’s submissions[56]Mr Lees made written submissions and he also responded in writing to the respondent’s written submissions. These are referred to for their terms. The following is a brief summary. Knowledge of disability[57]Mr Lees submitted that the respondent had knowledge of his ADHD and GAD throughout his employment and, “through his disclosures and behaviours, ought reasonably to have known about his ADHD.” With reference to AEcom Ltd v. Mallon [2023] EAT 104, he submitted that the respondent failed to make reasonable enquiries, despite signs of his disability. Discrimination arising from disability[58]Mr Lees gave examples of how his ADHD and GAD had “resulted in specific work place behaviours”. He submitted that it was because of these that he was “Removed from Azule on 24 April 2023”; “Refused a Managed move – April – July 2023”; “Placed on Informal Performance Coaching – June – July 2023”; that there was “Pre-Dismissal planning from 27 July 2023”; that as far as the dismissal meeting on 21 August 2023 was concerned, the respondent “deliberately hid that it was a dismissal, to prevent accompaniment”; failed to provide written reasons for the dismissal; “relied on BP Azule TSA Performance Issues”; relied on, but did not disclose, allegations from Azule that he had been “drunk in the office and had made racist remarks to an Angolan National”; there was evidence of a practice of managed moves by the respondent and yet the respondent refused a managed move for him back to Colin Mitchell’s team.[59]Mr Lees also submitted that there was a failure by the respondent to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Conclusion
[60]Finally, Mr Lees said this with regard to the s.15 complaint:- “These actions arose in consequence of the claimant’s disabilities. His communication style, need for structure, and difficulties under stress were directly linked to ADHD and Anxiety.”[61]He further submitted, with reference to s.15(2), that the respondent had failed to prove a proportionate means of achieving a legitimate aim.[62]In support of his submissions in this regard he referred to City of York Council v. Grosset [2018] EWCA Civ 1105.[63]Mr Lees referred to the PCPs at paras. 50-53 of his further and better particulars (P.119-120).[64]He submitted that he was put to the following particular disadvantages by these PCPs.[65]He was removed from the BP Azule TSA Organisation and advised that he was under investigation for a possible breach of the Code of Conduct. However, he was not informed of the nature of the allegations; he was excluded from full participation in the investigation (P.119, para. 50).[66]He was required to apply competitively for a role in Mr Mitchell’s team (P.119, para. 51).[67]He was required to complete an Operational Personality Questionnaire (“OPQ”) as part of the recruitment process for the role in Mr Mitchell’s team (P.120, para. 52).[68]He was not given written reasons for his dismissal (P.120, para. 53). `[69]In support of his submissions in this regard, Mr Lees referred to the following cases:- Archibald v. Fife Council [2004] UKHL 32; Government Legal Service v. Brookes [2017] UKEAT 0302/16; Project Management Institute v. Latif [2007] IRLR 579 Reasonable adjustments[70]Mr Lees submitted that, “the relevant PCP in this case was the respondent’s practice of requiring employees to apply and be interviewed competitively for vacancies, rather than being reassigned through a managed move.”[71]He was, “managed moved” to Azule, yet he was refused a managed move to Mr Mitchell’s team following his removal from Azule in April 2023.[72]He referred, by way of comparison, to Ross Yule who was managed moved to Mr Mitchell’s team.[73]He further submitted that there were “two PCPs in operation: “• The practice of using managed moves to place employees directly into roles without competition; and• The practice of requiring employees to apply competitively for vacancies.”[74]He submitted that requiring him to apply competitively placed him at a substantial disadvantage, compared with non-disabled colleagues.[75]In support of his submissions in this regard he referred to the following cases:- Collins v. Royal National Theatre [2004] EWCA Civ 144; Archibald v. Fife Council [2004] UKHL 32; Khorram v. Capegemini UK Plc (ET, 14 July 2025).[76]Mr Lees referred to a number of incidents which were pleaded in his further and better particulars (P.120-121), “supported by background incidents in para. 28.” Respondent’s submissions[77]Counsel made written submissions on behalf of the respondent and also responded in writing to the claimant’s submissions. These are referred to for their terms. The following is a brief summary. Knowledge[78]Counsel submitted that all the discrimination complaints comprising the claim “failed”, as the respondent did not have actual knowledge of his relevant disabilities and, “could not reasonably have been expected to have known” of them.[79]The only employee of the respondent with any recollection of Mr Lees having any condition which might be characterised as a disability was Mr Mitchell but he thought that the claimant was only making “passing reference to him about having dyslexia.” In any event, dyslexia was not a disability pleaded by the claimant.[80]In the Pre-Employment Health Questionnaire, which he completed on 12 January 2022 (P.349-350), Mr Lees did not advise the respondent that he had any disabilities which would require them to make reasonable adjustments.[81]Counsel further submitted that, “the claimant’s reliance on his ADHD diagnosis must fail, given that even he was not himself aware that he had ADHD until after his employment with the respondent was terminated.”[82]Further, so far as his GAD was concerned, it was submitted that, “that only appears to be relevant to the degree to which the claimant was emotionally affected by things that he complains of, rather than being causal of the treatment.” In any event, “GAD having a causal role in his claims was not put to the respondent’s witnesses. Nor was the ADHD in many cases”.[83]The claimant, it was submitted, never said to his Manager, “I have GAD” or “I have symptoms of Neurodiversity which are significantly affecting my life (in ways relevant to the facts of this case).”[84]In support of her submissions, Counsel referred to Wilcox v. Birmingham Citizens Advice Bureau Services [2011] WL 900247, UKEAT. She submitted that this was, “similar to the instant case, in which the respondent’s witnesses interpreted Mr Lees’ stress/unhappiness as an understandable reaction to his particular situation at work at the time.”[85]Nor, it was submitted, did the respondent have “constructive knowledge of ADHD” because it was aware of him having the neurodiversity of dyslexia. “His phycologist confirmed that ADHD and Dyslexia are completely separate diagnoses.”[86]Counsel also referred in her submissions to the EHRC Code of Practice on Employment (2015) where it advises that employers should “consider issues of dignity and privacy” when making enquiries about disability (para. 6.19).[87]Counsel went on in her submissions to give additional reasons why the respondent could not reasonably have been expected to have known of the claimant’s disabilities and said this in conclusion:- “Although the fact of Mr Lees being disabled by GAD and ADHD is admitted, the case law on disability may also assist on the knowledge question. In Paterson v. Commissioner of Police for the Metropolis [2007] ICR 1522 Elias J, then President of the EAT, considered the test of ‘substantial impairment’ and said at paragraph 68: The only proper basis, as the Guidance makes clear, is to compare the effect on the individual of the disability and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial. The respondent’s evidence of their thinking that the claimant’s behaviours just reflected his personality/reaction to circumstances – rather than being indicative of him having a disability – are effectively them saying that they saw the way he did things as of a kind one might expect to see, taking a cross-section of the population in materially similar circumstances. That is good evidence that they did not have “constructive knowledge” of the claimant’s disabilities.” Discrimination arising from disability[88]Counsel submitted that although the claimant was relying on his disability of ADHD, the respondent had no knowledge of such a disability at the relevant time.[89]So far as the alleged detriments were concerned, it was submitted that the respondent could not force Azule to retain the claimant and, as a consequence, he could no longer do the work he was employed to do in Angola.[90]In any event, the respondent was required to comply with Azule’s request to remove him from the project and, “this was a proportionate means of meeting the legitimate aim of maintaining and complying with the terms of the joint venture.”[91]So far as the claimant’s request to fill the vacancy in Mr Mitchell’s team was concerned, it was submitted that the reason his application was refused was because he had failed to complete a number of tasks assigned to him by Mr Mitchell in a timely manner. That was not because of something arising from his disabilities.[92]So far as the decision to provide the claimant with performance coaching was concerned, it was submitted that that was “a legitimate attempt to seek to help him to improve.”[93]Finally, it was decided that the decision to terminate the claimant’s employment and not give him written reasons for dismissal was not something arising from his disability. “The claimant was given the reasons orally in the meeting (on 21 August 2023) and was given another meeting (11 September 2023) which he secretly recorded, when they were given again. His recording evidences that the oral reasons were fully reflective of the “script” (P.898) provided for his dismissal meeting.”[94]Counsel challenged the validity of the claimant’s PCPs, with reference to Ishola v. London Transport [2020] ICR 1204.[95]Counsel submitted that, on the evidence, the claimant had failed to establish that his disability put him in a group sharing a substantial disadvantage compared with those in a materially similar group (hypothetical or real) who did not share that disadvantage and nor did he put this to the respondent’s witnesses. Reasonable adjustments[96]As with the other complaints, Counsel also submitted that this complaint must fail as the respondent did not have knowledge of the claimant’s disabilities at the relevant time and could not reasonably have been expected to have known.[97]In support of her submissions in this regard, she referred to Eastern and Coastal Kent PCT v. Grey [2009] IRLR 429.[98]The claimant maintained that he should have been allowed a “managed move” to Mr Mitchell’s Global Reliability Department. However, there was evidence from the respondent that such managed moves were only done on an exceptional basis and “never where there were concerns about the employee’s performance and only if the receiving manager agreed to it.”[99]Further, and in any event, the claimant failed to prove “substantial disadvantage” on the group basis requiring candidates to apply for and be interviewed for roles.[100]Counsel further submitted that, “the claimant’s assertion that he should have been given the job in Colin Mitchell’s team without a competitive process appears to be based on a misreading of the House of Lords’ decision in Archibald v. Fife Council [2004] ICR 954.”[101]Counsel submitted that all of the harassment complaints were time-barred.[102]In any event, as the respondent did not have knowledge of the claimant’s disabilities, it “cannot have done acts which had the purpose of ‘harassing’ the claimant because of his disability.”[103]Counsel also submitted that the respondent was not liable for the actions of Mr de Sousa who was an employee of Azule and not of the respondent.[104]Further, there was no basis to find that what Mr de Sousa allegedly said satisfied the definition in s.26.[105]So far as the allegation of Mr de Sousa shouting at the claimant at the meeting on 10 January 2023 was concerned, the claimant accepted when asked by Judge Hosie that Mr de Sousa might equally have done it to someone who was not disabled. For that reason alone, it was submitted, this claim must fail.[106]So far as the events of the meeting on 9 February 2023 were concerned, it was submitted, for the same reason, “it fails the test of being related to his disability.”[107]So far as Mr Forder saying to Mr Lees, “You’ve not worked for BP long have you! We don’t talk like that here”, was concerned, Mr Lees did not raise a grievance about this. In any event, Mr Forder denied using these exact words. He explained that he was responding to Mr Lees’ regrading request and attempting to help him understand how to take a more appropriate approach, in line with BP’s expectations.[108]Finally in this regard, it was submitted that even if these had been Mr Forder’s exact words, this did not satisfy the statutory test.[109]So far as “Mr Doherty asking the claimant how he had managed to upset a BP secondee to Azule Energy, Nick Blyth, as he is a mild-mannered individual”, was concerned, “it was not reasonable for the claimant to see the comment as harassment and the comment was not made because of the claimant’s disability.”[110]Finally, so far as the harassment complaints were concerned, Counsel also submitted that Mr Doherty’s email to the claimant of 23 May 2023 in which he said “I would council (sic) being open-minded to the feedback and using it as a learning experience for your future success in BP” was not a “good basis” for the claimant to consider this as harassment. Respondent’s response to the claimant’s submissions[111]So far as “knowledge” was concerned, Counsel submitted that the claimant’s reference to CPTSD was not an issue in the case and nor was dyslexia a disability issue. Otherwise, we simply refer to the terms of these submissions.[112]In conclusion, Counsel said this:- “The claimant’s submissions demonstrate further evidence of his unreliable account of the facts. His submissions also appear to demonstrate a lack of good faith in his own approach to this litigation (e.g. attempting to introduce a new liability issue of harassment in order to seek to support a ‘continuing acts’ time limit submission). The respondent believes that the claimant has cited two false legal references but gives the claimant the benefit of that doubt that these were innocent errors by a litigant in person, not a deliberate attempt to mislead the Tribunal although they were made contrary to the overriding objective.” Claimant’s response to the respondent’s submissions[113]These are simply referred to for their terms.[114]Mr Lees said this in conclusion:- “The respondent’s submissions minimise or ignore central evidence. The HR system record, the 1 August 2023 HR email, the completion of performance coaching, the refusal to provide written reasons, and the OPQ requirement are decisive. The Tribunal is respectfully invited to prefer the claimant’s account and uphold the claims under ss.15, 19, 21 and 26 EqA, with remedy to be assessed in line with the claimant’s final written submissions.” Discussion and Decision Knowledge[115]We were of the unanimous view that the respondent did not have actual knowledge of Mr Lees’ disabilities at the relevant time. By and large, we found the submissions by the respondent’s Counsel in this regard to be wellfounded.[116]When he brought his claim, ADHD was the underlying disability relied upon by Mr Lees. However, in his submissions he also relied upon his Generalised Anxiety Disorder (“GAD”). His position regarding GAD had been unclear. It was first referred to in his pleadings on 2 September 2024, several months after he submitted his claim form (P.116-117); when she gave evidence, the Clinical Psychologist, Dr.Harkjaer-Thorgrimsen, only referred to Mr Lees’ ADHD; she did not refer to GAD in her first Report (P.357-361) but she did in her second (P.431).[117]While GAD had become part of the pleaded case, albeit introduced rather late in the day, we did not consider this to be significant when it came to our deliberations, as it relates to ADHD and, as Dr. Harkjaer-Thorgrimsen said in her second Report it “entails symptoms that are in part overlapping. As such, it is not possible to say where one ends and the other begins they all (she was also referring to PTSD but that was not part of the pleaded case) contribute to Mr Lees clinical presentation and experience” (P.431)[118]In any event, we found favour with Counsel’s submission that Mr Lees’ GAD “only appears to be relevant to the degree to which the claimant was emotionally affected by things that he complains of, rather than being causal of the treatment. If my understanding of the claimant’s case is disputed by him, then the respondent submits that GAD having a causal role in any of his claims was not put to the respondent’s witnesses. Nor was the ADHD in many cases.”[119]At the relevant time, when he was employed by the respondent, Mr Lees never said to any of the respondent’s employees: “I have ADHD”, or “I have GAD”.[120]Significantly, he did not have a formal diagnosis of either of these conditions, until after he had left the respondent’s employment.[121]Nor did any of the documentation disclose that he was a disabled person. Mr Lees did not disclose that he had any disabilities in the Health Assessment Questionnaire which he completed on 12 January 2022 before his employment with the respondent started (P.349-350).[122]The following are excerpts:- “If you need, or is it possible that you might need, any special aids or adjustments to the workplace to assist you to work? : No. If you have, have you ever had, any form of health condition or disability that affects your ability to work? : No. Are you having, or waiting for treatment or investigation for any health condition at present that may affect your ability to work? : No. Have you had any health conditions which have been caused by or made worse by work? : No. Is there anything in your history or circumstances which might affect our decision to offer you employment and/or affects and/or might affect your ability to perform the role for which you have applied? : No.”[123]Mr Lees also confirmed in that Questionnaire that the information he provided was accurate and truthful.[124]Mr Lees himself was not aware that he had ADHD and GAD until after his employment with the respondent had ended. All of the respondent’s witnesses presented as credible and reliable. None of them was aware of Mr Lees’ disability at the relevant time he was employed by the respondent. Only Mr Mitchell had some vague recollection of Mr Lees making reference to having dyslexia.[125]Nor, on the evidence, did we accept Mr Lees’ contention that he had recorded his disability on the respondent’s electronic records. Indeed, the “Disability Section” in the “Personal Information” which the respondent held for Mr Lees recorded, “Prefer not to say” (P.991-993).[126]However, it was not established that Mr Lees was a disabled person in respect of his dyslexia and, in any event, dyslexia was not part of his pleaded case.[127]But the matter of knowledge does not end there. Although it was clear that the respondent did not have actual knowledge of Mr Lees’ disabilities, we had to consider whether, looking at all the circumstances of the case, the respondent, “could reasonably have been expected to have known” of them, the shorthand for which is “constructive knowledge”.[128]Mr Lees submitted, with reference to AEcom v. Mallon, that that he exhibited signs of disability. This was evident, he submitted, from his visible distress and his “many references to his poor mental health and mental wellbeing”.[129]He claimed that, in light of this, the respondent failed in its duty to make reasonable enquiries regarding the state of his health.[130]We did not find favour with these submissions. In our unanimous view, Counsel’s submissions regarding the issue were well-founded.[131]When it was put to the respondent’s witnesses that they should have been aware that Mr Lees was disabled, the consistent, invariable, convincing, response was that although Mr Lees presented on occasions as stressed and anxious, this was to be expected in his particular circumstances. It was a stressful time for him. It was not unusual. For example, Mr Forder, another impressive witness, said this when giving evidence:- “What disabilities were you aware of the claimant having? I was categorically not aware of any. And no reason to suspect. I lead a very large team. At present around 400. I appreciate we’re all unique but absolutely nothing stood out about Mark having a disability in any shape or form.”[132]When asked by Mr Lees in cross-examination whether he had seen him getting upset at a Teams Meeting on 13 July 2023 (P.851), Mr Forder denied that Mr Lees was “exceptionally upset in the circumstances”. He went on to say this:- “Given my role I had to deal with many employees in similar circumstances. He didn’t stand out as being unusually upset. I explained why the role was being advertised externally. It was a normal process. I wouldn’t say very upset. I’d say upset. It was on a Teams Call. It was not out of the ordinary in the circumstances. He was emotional and upset but I wouldn’t describe it as him ‘breaking down’. Yes he asked if it was ok to end the call. I said it was and that I would speak to Colin Mitchell which I did.”[133]We also found favour with the following submissions by Counsel:- “The fact that the P & C Advisor (Miss Rambachan), and those making the decision to dismiss, explicitly considered whether the claimant had a relevant protected characteristic, and genuinely did not identify that he was disabled, is also the most plausible explanation for the fact that they explicitly discussed the risks of dismissing the claimant without taking into account his disability. The claimant will ask the Tribunal to prefer a conspiratorial explanation, however there was nothing in the evidence of the respondent’s witnesses to support an interpretation of them having recorded that discussion in bad faith (i.e. when they really thought that he was, or may be, disabled). In fact, the respondent’s evidence is that they did not interview him for the post in Mr Mitchell’s team precisely because to do so would be a sham. On the balance of probabilities, if they were seeking to cover up a dismissal for a disability related reason, it is more likely that they would have proceeded with that sham. The claimant asserts that the respondent did know, or should have known, that he suffered from a mental health disability, because of the contents of his Team Talk on Mental Health. However, the claimant has not shown that Talk contained anything more than advice which may be useful to all his colleagues – whether or not they had a mental health disability – given that all of us suffer stress and anxiety from time to time and may benefit from breathing exercises, cold water therapy, and other strategies…… The respondent’s evidence of their thinking that the claimant’s behaviours just reflected his personality – reaction to circumstances – rather than being indicative of him having a disability – are effectively them saying that they saw the way he did things as of a kind one might expect to see, taking a cross-section of the population in materially similar circumstances. That is good evidence that they did not have ‘constructive knowledge’ of the claimant’s disabilities.”[134]We arrived at the unanimous view, therefore, that not only did the respondent not have actual knowledge of Mr Lees’ disabilities, in all the circumstances of the case, “it could not reasonably have been expected to have known” of them.[135]We also wish to record that we arrived at this view mindful of the guidance in the EHRC Employment Code that an employer must do all it can reasonably be expected to do to find out whether a person has a disability (para. 5.15). Dismissal of the s.s. 15 and 20 complaints[136]This means that the complaints of discrimination arising from disability, in terms of s.15 of the 2010 Act, and a failure to make reasonable adjustments, in terms of s.20, must fail, as each has a “lack of knowledge defence”.[137]S.15(2) is in the following terms:- “(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[138]So far as s.20 is concerned, Para (1) of Schedule 8 to the 2010 Act provides that a person is not subject to the duty to make reasonable adjustments if he or she did not know or could not reasonably be expected to know of an applicant’s or employee’s disability.[139]Accordingly, the s.s. 15 and 20 complaints are dismissed. S.s 19 and 26 complaints[140]However, there is no such express defence, in terms of the statute, in relation to the s.19 indirect discrimination complaint and the s.26 harassment complaint which were also advanced by Mr Lees.[141]Although not entirely clear, ignorance of the disability or disadvantage seems not to be a complete defence to a claim for indirect discrimination (McClintock v. Department of Constitutional Affairs [2008] IRLR 29).[142]However, an employer who does not have knowledge is likely to be in a stronger position to argue that the PCP is justified.[143]Absent any express statutory provision, a lack of knowledge does not appear to be a complete defence to a s.26 harassment complaint either. However, it is difficult to envisage a situation where the conduct in question can satisfy the statutory requirement of being, “related to a relevant protected characteristic”, or having the “purpose or effect” of harassment, if the perpetrator did not have the requisite knowledge.[144]It follows, therefore, that we did not accept Counsel’s submission that all the complaints necessarily failed because of the respondent’s lack of knowledge, actual or “constructive”. It was only the complaints of discrimination arising from disability and a failure to make reasonable adjustments that failed for that reason. However, we are bound to say that, in light of the respondent’s lack of knowledge, it was only with some hesitation that we decided that we were required to address the merits of the indirect and harassment complaints.[145]The relevant statutory provision is s.19 of the 2010 Act:- “19. Indirect Discrimination 1. A person(a) (A) discriminates against another(b) (B) if (A) applies to (B), a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of (B’s). 2. For the purposes of sub-section (1) a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of (B’s) if – (a) (A) applies, or would apply it to persons with whom (B) does not share the characteristic; (b) it puts, or would put, persons with whom (B) shares the characteristic at a particular disadvantage when compared with persons with whom (B) does not share it;(c) it puts, or would put, (B) at that disadvantage and(d) (A) cannot show it to be a proportionate means of achieving a legitimate aim.”[146]The protected characteristic relied upon by Mr Lees was his disability.[147]All four conditions in s.19 must be met before a successful claim for indirect discrimination can be established: there must be a PCP which the employer applies or would apply to employees who do not share the protected characteristic of the claimant; that PCP must put people who share the claimant’s protected characteristic at a particular disadvantage when compared with those who do not share that characteristic; the claimant must experience that particular disadvantage; and the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim.[148]The burden lies with the claimant to establish the first, second and third elements of the statutory definition. Only then, does it fall to the employer to justify the PCP as being a proportionate means of achieving a legitimate aim. PCPs[149]The phrase “Provision, Criterion or Practice” (“PCP”) is not defined in the 2010 Act. However, the EHRC Employment Code confirms that the term is capable of covering a wide range of conduct, noting: “……it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions.” (Para. 4.5).[150]The Court of Appeal case, Ishola v. London Transport [2020] ICR 1204, to which we referred by Counsel, focused on what may amount to a PCP. For an act to be characterised as a PCP, there has to be some element of repetition, whether it be evidence that what happened was indicative of a practice of more general application, or evidence from which the existence of such a practice could be inferred. As Simler LJ said in Ishola at para. 37: - “Something may be a practice or done ‘in practice’, if it carries with it an indication that it will be or would be done again in future if a hypothetical similar case arises.”[151]The finding of a PCP is one of fact for the Tribunal to make from the evidence before it: Jones v. University of Manchester [1993] IRLR 218.[152]Once again, we found favour, by and large, with Counsel’s submissions on behalf of the respondent in relation to the indirect discrimination complaints.[153]We deal with each of the four PCPs alleged by Mr Lees (P.146-147). “Exclusion from investigation”[154]This allegation was unfounded, in fact, as there was no formal investigation by the respondent of the Azule allegations of “drunkenness and racism”. The respondent was unable to obtain evidence from Angola to substantiate the allegations and, as we recorded above, Mr Lees was given the, “benefit of the doubt”. No formal action or sanction was taken against him by the respondent and he was not subjected to any detriment. The Azule allegations were dismissed and did not feature thereafter. There was no requirement to interview Mr Lees.[155]We were satisfied that the Azure allegations were not a factor in the way Mr Lees was treated by the respondent. Nor were they a factor in his dismissal. The fact that the respondent took no further action served to confirm our unanimous view that Mr Lees’ disabilities did not influence the respondent in any way. If they had, then this allegation presented the respondent with at least an opportunity to take disciplinary action under the guise of conduct, but they did not do so.[156]Further, and in any event, this was a one-off act relating to Mr Lees in these particular circumstances and there was no evidence of group disadvantage.[157]This was not a PCP for the purpose of the 2010 Act.[158]For all these reasons, therefore, Mr Lees’ complaint on this basis was not “Requirement to apply competitively for a role of Mr Mitchell’s team”[159]It was accepted by the respondent that there was a PCP of requiring candidates to apply for and be interviewed for roles. However, there was no evidence that it put disabled candidates, capable of performing the role, at any disadvantage, as compared to candidates who were capable of performing the role who were not disabled.[160]There was clear evidence from the respondent and from Ms Rambachan and Mr Doherty in particular, that a so-called “managed move” which Mr Lees sought, was only done in exceptional circumstances and never where there were concerns about the employee’s performance, as was the case with Mr Lees; and further the receiving manager had to agree to a managed move.[161]There was clear evidence from Mr Mitchell that in the period Mr Lees worked in his Team his performance was not of the required standard. As his Manager, Mr Mitchell was entitled to express his views on Mr Lees’ competence. Mr Lees’ disabilities were not a factor.[162]Mr Lees referred to Mr Yule’s managed move. His circumstances were clearly quite different; he did not have any performance issues and the receiving manager wanted him in the role. Mr Mitchell said that Mr Lees, “had a great opportunity to demonstrate his ability”, but he failed to do so.[163]It was clear that Mr Lees had not demonstrated competence for the role. There was no evidence as to how his disability put him at a substantial disadvantage in the selection process. Nor was there any evidence that his disability put him in a group sharing a substantial disadvantage as a result of the application and interview requirement.[164]In any event, the respondent had no knowledge of Mr Lees’s disability and the requirement was a proportionate means of achieving a legitimate aim. As Counsel put it: “the need to have an appropriately skilled and competent employee in the role”.[165]For all these reasons, therefore, Mr Lees’ complaint on this basis was not “Operational Personality Questionnaire”[166]It was accepted by Counsel that the respondent had a policy of making applicants for the role complete a personality questionnaire, although this was a policy of the respondent’s recruitment provider and applied to both internal and external candidates (P.887).[167]We found favour with Counsel’s submission that:- “The claimant has not shown, nor put to the respondent’s witnesses, that he did or would have performed less well in the test because of his disability, nor has he provided evidence of group disadvantage. As the claimant was not permitted to proceed with the application for the role that questionnaire had no effect on whether or not he got the job, so he suffered no detriment.”[168]For all these reasons, therefore, Mr Lees’s complaint on this basis was not “No written dismissal reasons”[169]It was accepted by Counsel that the respondent had a policy or practice of not providing written reasons for termination.[170]However, at the “dismissal meeting” on 21 August 2023 Mr Doherty read to Mr Lees a script he had prepared with the reasons (P.898-899). Mr Lees became unwell at that meeting and when he told Mr Doherty that he had no recollection of what he had been told, Mr Doherty arranged to meet him on 11 September 2023 when he explained again the reasons for his dismissal (P.922-926).[171]Also, Mr Lees had his own written record of the reasons that were given to him by the respondent at these meetings; and he had made a secret recording of the meeting on 11 September.[172]Accordingly, there was no substantial disadvantage.[173]Nor did Mr Lees put this allegation to Ms Rambachan.[174]For all these reasons, therefore, this complaint was not well-founded and it is dismissed. Time Limit[175]The general rule is that claims of work-related discrimination under the Equality Act 2010 must be presented to the Employment Tribunal within the period of three months starting with the date of the act complained of (s.123).[176]All of Mr Lees’ harassment complaints were out of time. However, at a preliminary hearing on 5 August 2024 Judge Hosie decided that he should exercise his discretion and allow these complaints to proceed on the basis that it was just and equitable to do so. The Judgment which he issued on 8 August 2024 is referred to for its terms (P.100-107).[177]The relevant statutory provision is s.26 of the Equality Act 2010:- “26. Harassment (1) A person (A) harasses another (B) if – (a) (A) engages in unwanted conduct related to a relevant protected characteristic, (b) the conduct has the purpose or effect of – (i) violating (B’s) dignity or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for (B).”[178]Further, in terms of s.26(4)(c) the Tribunal requires to have regard to, “whether it was reasonable for the conduct to have that effect”.[179]This stand-alone complaint does not require a comparative approach and there are subjective and objective elements to the statutory test. The Tribunal is required to examine the alleged conduct from the claimant’s perspective – did he or she regard the conduct as violating his or her dignity or creating the required environment, in terms of the statutory provision?[180]The objective aspect of the statutory test requires the Tribunal to consider whether it was reasonable for the conduct to have the effect on that particular claimant.[181]What then of the present case?[182]As we recorded above, although not determinative it was relevant that the respondent did not have actual or “constructive” knowledge of Mr Lees’ disability as the statutory test requires the unwanted conduct to “relate to” his disability and it must have had the “purpose or effect” of harassing Mr Lees. Business meetings on 8 November 2022, 10 January 2023 and 9 February 2023[183]These were allegations regarding Mr de Sousa’s conduct. However, as Counsel submitted, Mr de Sousa was an employee of Azule and not of the respondent and the Equality Act provisions against third party harassment did not come into effect until October 2024, after Mr Lees had been dismissed. The respondent is not liable, therefore for the actions of Mr de Sousa.[184]In any event, Mr Lees was not present at the meeting on 8 November 2022 (P.981). Even if Mr de Sousa “became angry, shouted and lashed out verbally about work he believed Mr Lees was responsible for”, this did not relate to his disability. This was Mr de Sousa expressing his concerns about Mr Lees’ work. It was part of his function as a “Senior Leader”.[185]It was revealing that Mr Lees’ alleged that, “I found this behaviour to be hostile, intimidating, degrading, humiliating and violated my dignity”. These are not words, in common parlance. They were lifted straight from s.26. This brought into question whether his assertion was genuine or only made to satisfy the statutory test. In our view, as Counsel submitted, this was not, “an objective recollection”.[186]When asked by Judge Hosie what this alleged conduct had to do with his disability, Mr Lees replied that it was to do with his “anxiety” but that was not a disability he relied upon.[187]For all these reasons, therefore, the Tribunal was of the unanimous view that this complaint did not meet the statutory test in s.26 and it is dismissed.[188]So far as the meeting on 10 January 2023 was concerned (P.983), this allegation related again to Mr de Sousa and the respondent was not liable for his actions.[189]In any event, in evidence, as submitted by Counsel, Mr Lees accepted that Mr de Sousa would have responded in the same manner to someone who was not disabled. This conduct, therefore, did not “relate to” his disability.[190]For all these reasons, therefore, the Tribunal was of the unanimous view that[191]So far as the meeting on 9 February 2023 was concerned (P.646), the allegation related again to Mr de Sousa and the respondent was not liable for his actions.[192]That allegation is on the same basis as the previous one.[193]Mr de Sousa’s conduct did not “relate to” Mr Lees’ disability; it did not have the “purpose or effect” of harassing Mr Lees because of his disability. He was exercising his function as a leadership Manager. It had nothing to do with Mr Lees’ disability.[194]For all these reasons, therefore, the Tribunal was of the unanimous view that “Mr Forder’s remark – 27 January 2023”[195]It was alleged that Mr Forder said to Mr Lees: “You have not worked for BP long have you? We don’t talk like that here.”[196]In evidence, Mr Forder, a credible and reliable witness, denied using these exact words. In any event, as Counsel submitted, what Mr Forder said was in relation to Mr Lees’ regrading request and his attempt to help Mr Lees understand how to make a more appropriate approach, in line with BP’s expectations. It did not relate to Mr Lees’ disability.[197]Mr Lees did not raise a grievance about this alleged harassment.[198]Further, in the unanimous view of the Tribunal, it was not reasonable for Mr Lees to consider these comments, even if they had been the exact words that Mr Forder used, as creating the effect specified in s.26. Even if Mr Lees did take offence, that was unreasonable in the circumstances.[199]The Tribunal was of the unanimous view, therefore, that this complaint was not well-founded and it is dismissed. “Mr Doherty’s remark re-Nick Blyth – March 2023”[200]This related to Mr Doherty asking Mr Lees how he had managed to upset a BP secondee to Azule Energy, Nick Blyth as he is “a mild-mannered individual”.[201]Mr Lees’ evidence was that this related to his disability because he felt “attacked” by the comment and his, “rejection sensitivity disorder set in”. However, as Counsel submitted he was relying on his ADHD disability only in relation to the effect of the conduct, not the cause of the conduct.[202]In any event, the Tribunal was of the unanimous view that it was not reasonable for Mr Lees to consider that this amounted to the required effect. Nor did the comment “relate to” his disability; nor did it have the “purpose” of harassing him.[203]For all these reasons, therefore, the Tribunal was of the unanimous view that “Mr Doherty’s email – 23 May 2023”[204]In this email, Mr Doherty said, “I would council (sic) being open-minded to the feedback and using it as a learning experience for your future success in bp” (P.735-736).[205]Mr Doherty as we recorded, was an impressive witness, credible and reliable. We accepted Counsel’s submission that Mr Doherty, “was giving the claimant feedback in an attempt to help him improve and flourish at work”.[206]We also found favour with Counsel’s reference to the question one of the Tribunal Member’s, Mr Pirie, asked Mr Lees :- “Mr Pirie asked the claimant whether some word other than ‘counsel’ would have been better. The claimant’s answers amounted to admission that he was not ‘triggered’ by the word ‘counsel’ specifically – but by the meaning that he was being told that he needed to be open-minded to feedback. He said to Mr Pirie that ‘……reading the allegations I had spoken to him about all those things on many occasions’ – in other words he was offended that Mr Doherty did not entirely accept the claimant’s view but sought to challenge that view and asked the claimant to change.”[207]Counsel’s following submission was also well-founded: “there is no good basis for the claimant to see Mr Doherty’s comment as harassment. On the contrary: the fact that the claimant sees that comment as harassment proves that the respondent had no hope of coaching him to meet the standard of performance necessary and that his dismissal was fully justified. Again, the claimant only relies on his disability (this time his ADHD/RSD as being relevant – and again only as to the effect on him, and not the cause of the comment being made”[208]For all these reasons, therefore, the Tribunal was of the unanimous view that[209]We are bound to say that the allegations by Mr Lees that Mr Doherty had harassed him were far-fetched and wholly without foundation. It was clear to the Tribunal that, far from harassing Mr Lees because of his disability, he was seeking to guide him and be supportive. Regrettably, these allegations were rather typical of all the harassment complaints which Mr Lees’ advanced and the somewhat scattergun approach he adopted. It seemed to us that Mr Lees was unreasonably prone to take offence and label any comments which had upset him as harassment because of his disability when they were no such thing. “Harassment Training Meeting – 31 July 2023”[210]Counsel’s submission that this was not an issue in this case, was wellfounded, for the reasons given in her written response to the claimant’s submissions (Paras 37-42).[211]However, if we are mistaken, and, for the sake of completeness, we address the merits of this complaint.[212]This complaint lacks detail. It is not even clear who was the alleged harasser. Nor was this allegation put to the respondent’s witnesses.[213]Mr Lees may have become upset but on the evidence that was not because he was harassed in relation to his disability. It appeared to us that this allegation was something of an afterthought.[214]Further, and in any event, it was not reasonable, in the circumstances, for Mr Lees to have felt his dignity to have been violated or for the environment specified in s.26 to have been created.[215]For all these reasons, therefore, the Tribunal was of the unanimous view that S.s 15 and 20 complaints[216]Finally, as far as the complaints of discrimination arising from disability and a failure to make reasonable adjustments were concerned, as we recorded above, these complaints fall to be dismissed as the respondent did not have any knowledge, actual or constructive, of the claimant’s disabilities.[217]However, for the sake of completeness, we record that had we been required to consider the merits, we would have found favour with Counsel’s submissions that these complaints were not well-founded.[218]The unanimous Judgment of the Tribunal, therefore, is that the claim is dismissed, in its entirety.