Mr D Dawson v University of Aberdeen: 4105478/2020

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4105478/2020

Between

Mr D DawsonClaimant

University Of AberdeenRespondent

Before

Employment Judge J M Hendry

Date 10 January 2022

JUDGMENT

[1]Any claim for harassment arising from Incident 1 having been withdrawn is dismissed.

[2]Any claims arising from Incidents 23 and 30 (Paragraphs 15-32) and are struck out as having no reasonable prospects of success along with any claims for detriment said to arise from incidents described in Paragraphs 17, 18, 19, 20, 21, 23, 26 and 28.

[3]Any claims arising from Paragraphs 37, 39, 44, 45 are stuck out as 35 having been already struck out previously and as such being res judicata and in any event having no reasonable prospects of success.

[4]Any claims for detriment or discrimination under Section 20 of the Equality Act 2010 arising from Paragraph 77 are struck out as having no reasonable prospects of success.

[5]The claim for automatically unfair dismissal in terms of Section 100 or otherwise having little reasonable prospects of success will be 5 subject to a Deposit Order the amount of which to be afterwards ascertained.

[6]Any claims in Paragraph 82 that the Claimant’s dismissal related to either his Religious or other beliefs having no reasonable prospects of success are struck out.

[7]Any claims for harassment/victimisation arising from Paragraphs 7-15 are struck out on the grounds that they have no reasonable prospects of success.

[8]Any claim for detriment arising from Paragraphs 7-15 (Incidents 3 and 5) will be subject to a Deposit Order the amount of which to be 15 afterwards ascertained.

[9]The claim for a reasonable adjustment in Paragraph 35 relating to delay in concluding the claimant’s grievance shall be allowed as an amendment and shall proceed to a hearing reserving the issue of time bar.

[10]The claim for a reasonable adjustment relating to change of the claimant’s line manager on 4 October 2019 shall be allowed as an amendment and shall proceed to a hearing reserving the issue of time bar.

[11]The application for expenses is reserved meantime.

REASONS

Disposal

[1]The claimant raised various claims against his employers having commenced 30 some claims whilst in employment and following his dismissal, further claims including a claim for unfair dismissal. I will refer to claims 4110829/2019 and 4114716/2019 as the first and second claims and claim numbered 4104157/2020 as the third and 4104107/2020 as the fourth. The claims have been conjoined.

[2]It would be pointless rehearse the long procedural history of the case at least at the outset. The claimant’s Better and Further Particulars lodged on 16 5 December 2020 superseded all previous pleadings and encompasses all claims both pre and post dismissal.

[3]Some historical matters however, must be touched on. The first and second claim proceeded to a strike-out hearing on 18 June 2020 (June PH Judgment) 10 and following that hearing many of the claims made were struck out. However, the claimant was given an opportunity of recasting his pleadings in relation to some remaining claims which he has done in his Better and Further Particulars.

[4]Both parties lodged written submissions. The respondent’s submissions were 15 lodged on 4 February 2021 and the claimant’s submissions were contained in correspondence but his primary position was set out by him in the Better and Further Particulars itself which contains an amalgam of pleadings and submissions.

[5]One further matter should be mentioned and that is there was a fifth claim (4105478/2020). The Tribunal understood that because the fifth claim was in effect a duplicate of earlier claims (which the claimant accepted) and that as such it given it served no purpose should be dismissed. I accordingly dismissed the fifth claim believing that the claimant had consented to this. 25 There appears perhaps to have been some misunderstanding about this matter with the claimant later arguing after the dismissal that it should not have been formally dismissed but simply rolled up into the other claims. The claimant seems in retrospect had become concerned that the recording of the dismissal in the public record might reflect in some adverse way on his current claims 30 against the University. The dismissal as is normal practice simply refers to the claim number and not the type of claims that have been dealt with. The decision in any event has not been appealed and the fifth claim remains dismissed.

[6]The claimant also wrote to the Tribunal on 3 February 2021 enclosing a copy of a report from a Dr. Michael Bott, a Consultant Psychiatrist. In the conclusion 5 of the report the claimant is noted as having been diagnosed with having what is termed an ‘‘Adjustment Disorder and Post Traumatic Embitterment Disorder’’. I record this as the claimant has asked the Tribunal to take this into consideration when determining the respondent’s strike out application. It is not clear how such information can impact on the strike-out application itself 10 which is an exercise in considering the pleadings. The strike out application must be dealt with in accordance with the Employment Tribunal Rules and any sympathy the Tribunal has for the claimant’s medical condition (which has not yet been the subject of any factual enquiry by the Tribunal or acceptance by the respondent) cannot sway it’s decision except perhaps in the limited 15 circumstances where it is considering whether the claimant is likely to succeed at some point in proving he was disabled by this condition at the time of events. It is unclear if the report is being used to try and assist the claimant with any issue of amendment but I think not as it does not suggest that the claimant was hindered because of his condition in taking timeous action against the 20 University but it may have some relevance is assessing the claimant’s behaviour when considering expenses. Strike Out Application

[7]The respondent’s application for strike-out is made under Rule 37. They seek 25 strike out of the whole claim which failing strike out of various claims. In relation to certain incidents, they also seek as an alternative a Deposit Order to be put in place before those claims proceed. This case is not easy to follow so I will begin with the respondent’s submissions but this Judgment should be seen as a continuation of the earlier strike out Judgment. Respondent’s Submissions

[8]The respondent’s solicitors remain concerned at the claimant’s behaviour in particular the lodging of multiple claims and the reintroduction of ‘‘old’’ claims causing the maximum burden on the respondent and their agents. They doubt that he is acting in good faith. 5 They draw attention to the report from the claimant’s physician Dr Bott and how his condition may be driving his behaviour.

[9]The respondent’s position was that the June PH Judgment allowed the claimant to articulate claims arising from the events pled at the point of 10 the first strike out application namely in relation to specific incidents (58,59 and 60). After the first strike out hearing we were left dealing with two disability discrimination claims involving an adjustment relating to expediting the internal appeal/grievance process and change of a line manager (60). The claimant referred to four incidents in his 15 pleadings (58 and 59): a change of line manager in October/November 2019 and (60 and 61) delays around the grievance process.

[10]The claimant has they noted expanded the list of possible reasonable adjustments (Paragraphs 33 onward). The respondent’s position was 20 that matters dealt with in the June PH Judgment are now res judicata and the new adjustments that are pled should be dealt with as an amendment. They submitted that the application should be refused as being considerably out of time and that it would significantly add to the breadth of the matters before the Tribunal with the implication that it 25 would add considerably to the time and expense involved in dealing with these matters.

[11]The new or resurrected causes of action according to the respondent’s agents were detailed as follows: a) Paragraph 34 – the claimant’s allegations in relation to the reallocation of the CCTV project originally cast as “Incident 37” and which was struck out by para 139 of the PH Judgment. The incidents cited by the claimant took place on 04/03/2019 and 28/03/2019 and therefore to the extent not covered by the strike-out decision in para 5 139 of the PH Judgment, are out of time. b) Paragraph 36 – the claimant’s objections to the Occupational Health appointment on 31/01/19 and the warning that not attending Occupational Health appointments was a breach of his contract were originally cast as “Incident 36” and was struck out by para 137 of the 10 PH Judgment. The incidents cited by the claimant took place on 30/01/19, 21/02/19 and 29/03/19 and therefore to the extent not covered by the strike-out decision in para 137 of the PH Judgment, are out of time. c) Paragraph 37 – the claimant’s dissatisfaction with his meeting with 15 Professor Leydecker was originally mentioned under “Incident 42” and allegations in relation to this, including a failure to make reasonable adjustments, were struck out by para 146 of the PH Judgment. The claimant’s attempt to resurrect this claim should be refused on the grounds of res judicata. d) Paragraph 38 – this is the first time in the context of the claimant’s various tribunal claims that the claimant has formally raised complaints about not being able to send an email to colleagues to “clear his name” in September 2019, and not being allowed to work from home. To the extent the BFPs are taken as an application to 25 amend, the events having taken place in September 2019, the application should be dismissed in this regard on the basis of time-bar. e) Paragraph 39 – the claimant’s issues with what he regarded as the recommended HSE risk assessment tool were originally cast as 30 “Incident 51” and were struck out by para 161 of the PH Judgment. The incident cited took place on 11/09/19 and therefore to the extent not covered by the strike-out decision in para 161 of the PH Judgment, is out of time. f) Paragraph 41 – this is the first time in the context of the claimant’s various tribunal claims that the claimant has stated a belief that the Respondent failed in its duty to make reasonable adjustments by not 5 referring him to counselling on 30/08/19. To the extent the BFPs are taken as an application to amend, the alleged failure having taken place in August 2019, the application should be refused in this regard on the basis of time-bar. g) Paragraph 42 - this is the first time in the context of the claimant’s 10 various tribunal claims that the claimant has stated a belief that the respondent failed in its duty to make reasonable adjustments by not allowing him to acquire additional annual leave on 03/09/19. To the extent the BFPs are taken as an application to amend, the alleged failure having taken place in September 2019, the application should 15 be refused in this regard on the basis of time-bar. h) Paragraph 43 – this is the first time in the context of the claimant’s various tribunal claims that the claimant has stated a belief that the Respondent failed in its duty to make reasonable adjustments by Mr Henderson not progressing a referral to Occupational Health. To the 20 extent the BFPs are taken as an application to amend, the alleged failure having taken place in November 2019, the application should be refused in this regard on the basis of time-bar. i) Paragraph 44 – the claimant’s issues with Dr Marie’s grievance appeal hearing was originally described under “Incident 62” and allegations in 25 relation to this, including a failure to make reasonable adjustments, were struck out by para 183 of the PH Judgment. The claimant’s attempt to resurrect this claim should be refused on the grounds of res judicata. j) Paragraph 45 – the claimant’s inability to self-refer to Occupational 30 Health was originally cast as “Incident 63” and was struck out by para 185 of the PH Judgment. By the claimant’s own narration, “the Respondent then made a replacement, non-consented referral on 17/12/19”. The claimant complains both that he was unable to refer himself to Occupational Health, and that a referral was made by the respondent. The claimant’s attempt to resurrect this claim should be refused on the grounds of res judicata. To the extent that the BFPs are taken as an application to amend, the time period of the alleged failures 5 was December 2019 to February 2020, and therefore to the extent not covered by paragraph 185 of the PH Judgment it should be refused on the grounds of time bar. k) Paragraph 35 – contrary to the paragraphs discussed immediately above, this paragraph recasts the pleadings previously made under 10 “Incident 61” (delay in actioning a grievance) accordingly conforms to the instructions given in the PH Judgment. However, the respondent submits that the pleadings on this issue do not meet the test of having reasonable prospects of success, in that they do not disclose that the claimant was put to a substantial disadvantage by virtue of any 15 alleged provision, criterion, or practice of the respondent’s. This claim should be struck out, or, in the alternative, only be allowed to proceed subject to a deposit order under Rule 39 of up to £1,000 on the basis that the claim has little reasonable prospect of success. l) Paragraph 40 – similarly, it is acknowledged that this paragraph recasts 20 the pleadings previously made under “Incident 58 & 59” and accordingly conforms to the instructions given in the PH Judgment. However, the respondent submitted that the pleadings on this issue do not meet the test of having reasonable prospects of success, in that they do not disclose that the claimant was put to a substantial disadvantage by 25 virtue of any alleged provision, criterion, or practice of the respondent’s. This claim should be struck out, or, in the alternative, only be allowed to proceed subject to a deposit order under Rule 39 of up to £1,000 on the basis that the claim has little reasonable prospect of success. Claimant’s Submissions

[12]The claimant opposed the application. He wrote on the 3 February that he was unable to work and incapable of submitting a more detailed submission. His position was that he had assisted in saving expense by agreeing that the strike out should be dealt by submissions rather than at a public hearing. He expressed disappointment at what he saw as the respondent’s behaviour and was disappointed that the Tribunal had not taken a stronger line with 5 them. He had he wrote set out the unvarnished truth. Discussion and Decision

[13]This Strike Out application is in effect round two following, as it does the issue 10 of a Strike Out Judgment following a hearing on 18 June 2020. Parties fully canvassed the legal framework at that hearing but I will summarise that framework and then deal with amendment and expenses.

The Legal Principles

[14]Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that: "37. Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any 20 of the following grounds - (a) that it is scandalous or vexatious or has no reasonable prospect of success;….. (c) for non-compliance with any of these Rules or with an order of the Tribunal …"

[15]In applying the Rules the Tribunal must have regard to the overriding objective in Rule 2: “Overriding objective 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and 30 importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” 13. It has been recognised that striking out is a draconian power that must be exercised carefully. If exercised it would prevent a party from having their claim 5 determined by a Tribunal. The legal principles applicable in relation to the striking out of discrimination complaints pursuant to this Rule are well-established. In the House of Lords case of Anyanwu & Ano v South Bank Student’s Union and Ano

2001 ICR 391

, Lord Steyn said as follows: "24. … Discrimination cases are generally fact-sensitive, and their proper 10 determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. Against this background it is necessary to explain why on the allegations made by the appellants it would be wrong to strike out their claims against the university." At paragraph 39 in the judgment of Lord Hope of Craighead, said as follows: "Nevertheless, I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to [be] taken up by having to hear evidence in cases that are bound to fail." 14. In Ezsias v North Glamorgan NHS Trust

2017 ICR 1126

,CA ,a case referred to by both sides, the Court of Appeal was considering a case involving public interest disclosure and held that a claim should not ordinarily be struck out where there was a: "29. … crucial core of disputed facts in this case that is not susceptible to 25 determination otherwise than by hearing and evaluating the evidence. … It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably 30 inconsistent with the undisputed contemporaneous documentation. …" 15. In the more recent case of Ahir v British Airways plc

[2017] EWCA Civ 1392

, Underhill LJ said as follows: "16. … Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are 35 satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract 5 between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success'."

[16]I will deal with the application for strike out of the entire proceedings first of all. While I sympathise with the respondent’s position and agree that this case has become unusually burdensome I do not accept that matters have reached the high threshold required to allow me to strike out the entire claim at least at this 15 stage. The claimant has statutory rights and a Tribunal must be slow to remove those rights without an enquiry into the facts. The respondent can challenge and continue to challenge the claimant’s behaviour and seek expenses which is what they have done. I also bear in mind that the claimant was dismissed and is entitled to challenge that dismissal. The difficulties arise in relation to 20 the multitude of other claims that the claimant says predate the dismissal. Quite correctly the respondents refer me to the report of Dr Bott which suggests that the claimant’s behaviour is driven by his condition. I am not clear on the claimant’s position and how he regards the terms of the report but that is likely to be a matter that will ultimately almost certainly be canvassed at a full hearing 25 when the Tribunal will be in a far better position to assess the claimant’s motivation. Amendment

[17]The first matter to consider is the claimant’s application for amendment. Relevant Law 30 18. The claimant seeks to amend his application to include claims for disability discrimination. The Tribunal has wide powers of amendment. The starting point for the Tribunal is the “Overriding Objective” in Rule 2 which provides: “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and 5 importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. 10 ……..”

[19]A Tribunal must seek to give effect to the overriding objective in interpreting, or exercising any power given to it in the Rules. In the context of applications to amend the Tribunal should have regard to the case of Selkent Bus 15 Company Ltd v Moore

[1996] IRLR 661

(which was followed by the EAT in Scotland in Amey Services Ltd and another v Aldridge and others

UKEATS/0007/16

[20]In this case the amendment purports to introduce claims which appear clearly 25 time barred. Given that the claimant was already underway with his various discrimination claims against the University it is difficult to believe, and he does not specifically say this, that he was not aware of the three-month time limit. Time bar was raised by the respondent in their Agenda for the case management hearing in November 2019 (case 4110829). It was discussed at 30 the June PH in 2020. The time limit for a discrimination claim to be presented to a Tribunal is 3 months starting with the act complained of (section 123(1), 25 Equality Act 2010). Section 123(3)(a) of the Equality Act 2010 provides for continuing acts of discrimination, where acts of discrimination extend over a period are treated as having occurred at the end of that period. The question a Tribunal should ask in such circumstances is whether the employer is responsible for an “an ongoing situation or a continuing state of affairs” in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents (Hendricks v Metropolitan Police Commissioner [2002] 5 EWCA Civ 1686). There must be facts and circumstances which are linked to one another to demonstrate a continuing discriminatory state of affairs. The Tribunal should consider the nature of the conduct and the status or position of the person responsible for it. I have some difficulty finding a ‘golden thread’ between the various incidents involving as they do different people and 10 situations.

[21]The Tribunal has the power to grant a just and equitable extension of time if a claim is out of time. It can allow a late claim to be presented in such further period as it considers just and equitable (section 123(1)(b)). In the case of 15 British Coal Corporation v Keeble & Others

[1997] IRLR 33

sets out a checklist of factors which a Tribunal should consider when deciding whether to refuse or grant an application to extend the time limit. These are: a) The length of and reasons for the delay, b) The extent to which the cogency of the evidence is likely to be affected by the delay, c) The extent to which the party 20 sued had co-operated with any requests for information, d) The promptness with which the Plaintiff acted once he or she knew of the facts giving rise to the cause of action. e). The steps taken by the Plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

[22]In the case of Mensah v Royal College of Midwives

UKEAT/124/94

[23]I accept that the respondent’s agents have correctly identified the matters that would entail amendment. Whether to allow such amendment also entails considering the pleadings and whether sufficient notice is given of individual claims and significantly in this case whether such new claims are out of time.

[24]I remind myself that following the last hearing I wrote at follows at paragraph 199 : ‘‘I accept that striking out is a draconian step and that it should be done in limited circumstances. I considered this case to be exceptional on the basis 15 firstly that the various incidents pled did not seem to justify the multitude of claims made even when read together with other incidents and reading those pleadings liberally and in a non-technical way. After reading the pleadings it is not clear in general why the claimant believes any particular type of discrimination arises. He fails to set out why he thinks his employers in breach 20 of their legal obligations. He employs a large cast list of individuals and a multitude of incidents but despite his labours the same criticism applies all the claims namely the nexus between the facts and the claims made is not apparent. The reasons ‘‘why’’ actions are taken and in what way those actions are therefore discriminatory are not even speculated upon. The second 25 exceptional matter is that the claimant himself does not give the reason why he believes a particular type of discrimination is in play and in a number of instances, he provides explanations for decisions taken which are perfectly plausible and yet not discriminatory. After every narrative incident the reader is left wondering how the facts pled amount could possibly amount to this or 30 that type of discrimination. It is worse than a scatter gun approach as there seems to be no answer to the query why this particular type of discrimination and not another arises when we are given a multiple choice of several possibilities’’.

[25]Before finalising this Judgment I asked the claimant to confirm whether he accepted the respondent’s analysis that these matters were new and required to be addressed as amendment. I had the Tribunal Clerk write to the claimant on the 9 June 2021 bringing this matter to his attention and referring him to the Selkent principles. His initial response was that some matters could be traced back to a Chronology lodged on the 10 January 2020 and were in time (Incident 56 and 59). Mr McLean responded indicating that he did not accept the brief references in that document gave his client’s notice of properly articulated 5 claims. He once more drew the Tribunal’s attention to the claimant going further than the first strike out Judgment allowed. He pointed out that although some matters were raised on the Chronology document the duties to which they related arose some time before and were time barred by the 10 January 2020. He reaffirmed that matters contained in Paragraph 46,47,48 and 49 were 10 raised for the first time.

[26]The claimant responded on the 11 June stating that Incidents 56, 58 and 59 were put before the Tribunal in case 4114716/19 on the 17 December 2019. His position was that Para 24 refers to his BFP of 12 January 20121, Para 46 15 traced back to earlier claims, Para 47 traced back to emails to the Tribunal in March 2020 and the hearing in June 2020, Para 48 to the hearing in June 2020 and 49 to the fourth claim and the hearing on 18 June 2020. This prompted a further response from Mr McLean essentially that tracing an issue back to some factual matter is insufficient to give notice of a claim. The claimant 20 responded at length on the 14 June now addressing the sort of factors that Selkent indicates are important. He stressed he was a litigant in person and had responded to Tribunal orders timeously.

[27]The June PH Judgment dealt with the claimant’s pleadings (at that point) and 25 I will not repeat what was decided. Suffice to say the claimant did not set out an adequate claim for reasonable adjustments either at that point or at an earlier point in the first and second claims and that is why he was given the opportunity of recasting his pleadings on this matter to set out a claim for reasonable adjustments specifying what adjustments he was seeking and 30 when the duty arose. Mr McLean is correct in his submission that the original pleadings were wholly insufficient to give anything more than notice of vague allegations. One example being that in the meeting that occurred on the 4 October 2019 which the claimant originally gives as background and contains no ‘‘acts complained of’’ (as he puts it) is an invitation to change his line manager. It is not stated by him as a reasonable adjustment at that stage. Nevertheless, the Judgment allowed him to recast his pleadings around the matters described as incidents on the 4 October and 4 November 2010. That 5 has now been expanded to some 16 separate claims for reasonable adjustments.

[28]One matter that I have noted is that the Judgment ordered the claimant to provide further details of the proposed claims but made no specific reference 10 to the substantial disadvantage that would be alleviated by the adjustment. He has been frequently referred to the Equality Act and should have realised that he needs to plead what substantial disadvantage he suffered which would be alleviated by the adjustment. Similarly, there is no reference to PCP’s. There are many problems with the multitude of adjustments sought and the claimant’s 15 own pleading of when the duties arose to make them shows that the claims are considerably out of time. Some adjustments contended for appear impossible (Para 37). The unsatisfactory meeting with Professor Leydecker has become an adjustment not to have had the meeting or frankly to have had a meeting that the claimant liked more. This is nonsense and I am sure as a 20 rational person the claimant must be aware of that.

[29]Time bar is only one factor that requires to be considered. Even if the claimant was correct and some of these matters can be seen to have their genesis earlier in the chronology this is not a straightforward relabelling exercise: these 25 are new claims.

[30]The proposed amendments if allowed would considerably lengthen and make more complex an already difficult case and hearing. The respondent would have difficulty in responding to the claims given the way they have been 30 articulated. In Para 36 one adjustment there is that the respondent should have obtained the claimant’s consent for an Occupational Health referral. The claims are often vague for example a meeting should have taken place ‘‘consistent with the Occupational Recommendations’’ (Para 37). The claims have not been properly formulated and looking not just at the pleadings but at the basis on which adjustments are contended for it is unclear what substantial disadvantage the claimant could have faced that would have been ameliorated.

[31]These are all factors which the Tribunal is entitled to consider when exercising its discretion whether to allow amendment. The claimant on the other hand will lose potential statutory claims. Examination of the Pleadings

[32]I will now set out portions of the claimant’s Better and Further Particulars to assist in an understanding the various claims now being pursued and the issues that arise and how I intend dealing with them.

[33]The PH Judgment did not strike out some incidents and is summarised below 15 (reference is made to various numbered paragraphs that narrate factual happenings (‘Incidents’) that occurred and these were the paragraph numbers used in the claimant’s original pleadings that were scrutinised in the PH Judgment): (Harassment 23 and 32). Detriment alternatively incidents 23 and 30, incidents 58, 59 and 60 and 61(Reasonable Adjustments). Incidents 3 and 20 5 were also permitted to continue subject to a Deposit Order.

[34]In relation to Incident 1 (Harassment/detriment) this related to an interaction with another staff member. I note that this (has not been proceeded with and is solely background). Accordingly, any claim arising from Incident 1 shall 25 be dismissed.

[35]The respondent’s agents helpfully expressed their submissions on the basis of four categories of incidents that had to be addressed firstly in Category I those reflecting matters that had to be determined following the original PH 30 Judgment; secondly matters which related to the period of time dealt with by that Judgment (Category 2); thirdly new matters raised in the Better and Further Particulars (Category 3) and finally fourthly matters raised in the third and fifth claim which the respondent believes has no reasonable of success (Category 4). Incidents 3 and

[36]As described by the claimant: “On 13/03/18, as part of a protest, students had occupied the management 5 corridor at the University. The incident was commanded by Mrs Caroline Inglis and Professor Mike Greaves (Interim Senior Vice-Principal). The students’ understanding was that they would be given free access in and out of the building, as both Mrs Inglis and Professor Greaves signed a note approving free access in and out, but this was subsequently not permitted. The students' 10 posted on social media that they were being denied access to a disabled toilet. In response to these events, I posted a photograph of an unnamed senior managers car (with the number plate obscured) parked in a disabled parking bay in violation of the parking policy. An Aberdeen UCU member had witnessed the parking infringement and reported it to me. The car was that of 15 Mrs Inglis, and at her request of even date, I removed the post. 8. On 14/03/18 I was involved in an incident at the University that caused me considerable distress. On the day of the incident some students were attempting to access the occupied building but were prevented from doing 20 so by security staff. The students within the building were enclosed within a corridor. I was outside the building at the time of the incident and was concerned for the students’ safety. The decision was taken to send in two members of staff to check on the students’ welfare. Despite being the least experienced of the available staff in terms of student welfare, I was instructed 25 by Mrs Inglis to go into the building against my wishes. 9. Once I had entered the building, I noticed that the atmosphere was very charged and that the students were very upset. I stayed with the students and tried to mediate between them and the security staff and senior 30 management. The aggressive attitude of the security staff and senior management made it an intimidating and hostile environment. I later established that some of the students had been assaulted by a member of senior management, Mr Angus Donaldson (Director of Estates & Facilities). 10. Following the incident, I found myself thinking about the events on a regular basis. My sleep was disturbed, and I became extremely distressed. I felt that my values in terms of fair play and transparency had not been honoured. My family and colleagues noticed that I was not myself. I was angry and making out of character outbursts. 11. On 20/03/2018 I advised several senior managers of my severe psychological distress but no action was taken. 11. [Incident 5 - PH 18/06/20 Judgement, extract from para 78: "The claim in relation to the claimant having been victimised in relation to the alleged 5 protected disclosure relating to the alleged abuse of disabled parking spaces and "victimisation" (harassment of a trade union representative) shall be treated as a claim for detriment and shall be allowed to proceed subject to a deposit order."] 12. On 26/03/18 I repeated my concerns to Mr Lynch, unexpectedly appointed as 10 my temporary line manager the previous month, and Mr Henderson, my Head of Section. On the same day I was signed off work by my GP due to stress, until 01/04/18, followed by two weeks of annual leave. No further action was taken by the Respondent. 13. The Respondent investigated the 14/03/18 incident and an injury reported by 15 a member of security staff. The investigation concluded 08/05/18. A colleague (Dr Dannette Marie, the AUCU vice-president/vice-chair, my deputy) and I were named in the report. I was not interviewed. I felt unfairly discriminated against by association and this added to my distress. I was also upset about the allegations made against my colleague and her 20 subsequent treatment. This was compounded when the investigation report was leaked by Principal Diamond before he left his post in June 2018. The report targeted me without justification, and I felt victimised. I continued to report my distress to my managers, but no action was taken. 13a) On 1st June 2018 Principal Diamond emailed myself and others to advise "As 25 you may already be aware, I commissioned a report into the disturbance involving members of staff and students which took place on 14 March 2018 during the recent student occupation of the University Office building. I have considered this report in detail and have decided to convene a short‐life working group to identify key “lessons learned” from the incident.". 30 Representatives from each of the four recognised trade unions were invited to participate. The Aberdeen UCU executive committee appointed me to the UCU seat. However, before the inaugural meeting of the group I was advised by Mrs Crabb, the clerk, that "Your participation in the meetings during the occupation means that you are conflicted in terms of your membership of the 35 working group". Professor Margaret Ross was allowed to participate in the working group in her capacity as a senior manager, despite - as I found out later - her being the person who facilitated the students entry into the University Office building on 13 March 2018. 13b) In September and October 2018 I endeavoured to use functions bestowed 40 upon me via the Safety Representatives and Safety Committees Regulations 1977 to investigate the Student Occupation. However, I had no choice but to conclude my investigation after receiving a "cease and desist" style letter from my employer, who refused to co-operate with me. 14. I found myself unable to continue in my trade union roles, resigning on 02/11/18. All members of the Respondents' staff are responsible to the University Court through a line management structure that includes a reporting line to the Principal. I intimated a protected disclosure in writing to Professor George Boyne, Principal & Vice-Chancellor on 07/11/18 5 (Professor Boyne having succeeded Professor Sir Diamond on 01/08/18). In summary the disclosure was that the Respondents' investigation into injuries reported by a security guard on 14/03/18 was a cover up to excuse the serious failings of senior managers (Mr Donaldson, Mrs Inglis and Professor Greaves) and the security guard (Mr Cox), by improperly shifting blame to Dr 10 Marie. The former Principal described the investigation report as "non-factual". I assert there is a danger to health and safety; wrongdoing is being covered up; there has been criminal activity and a miscarriage of justice. Professor George Boyne acted by passing my disclosure of 07/11/18 own and inward within the organisation, through the hierarchy of Mrs Inglis 15 (Professor Boyne's direct report) and onto Mrs Debbie Dyker (Mrs Inglis direct report) for handling, meaning Mrs Inglis, who was implicated in the disclosure (eg. incident 3,5), had had influence and control over its investigation. The investigation was facilitated by Mrs Dyker, who had history of antagonising me because of my trade union activity. Acting as a 20 trade union representative, I had shared details of an email exchange between Mrs Dyker and myself (without naming either party) with union members in 2017, which had seemingly embarrassed Mrs Dyker. She took umbrage and cancelled various trade union meetings for many months, citing me as the reason, and refusing to attend meetings with me. On or 25 around 05/03/18, I met Mrs Dyker and Mrs Fiona Smith (HR Manager) unexpectedly on the pavement outside the university whilst I was on strike and fulfilling the statutory role of "Picket Supervisor". Mrs Debbie Dyker entered into conversation with me. She enquired if I thought that she woke up every day thinking "whose life am I going to ruin today" and accused me 30 of deliberately causing damage to her mental health, as per Incident 1.”

[37]The respondent seeks strike out of these incidents which failing Deposit Orders. I note in passing that Paragraph 5 relates to a financial settlement made with the former Principal and the role of Mrs Inglis and Mrs Dyker in that. 35 This seems to be part of a pattern of trying to bring Professor Ian Diamond and controversy around his tenure into these proceedings for no obvious purpose. This appears to have no relevance whatsoever to the claims being advanced yet by being pled invites the respondent to answer the irrelevant allegations.

[38]If the posting of the photograph is capable of being a protected disclosure, (and this is not accepted by the respondent) or the health and safety ‘‘disclosures’’ then the claimant must assert a link between the disclosure relied upon and subsequent events. The earlier Judgment found that what appeared to be being asserted was that Mrs Kinmond was acting as she did because of Mrs Inglis (or because of someone else being able to influence future events) was angered at the claimant for photographing the car in a disabled bay or having 5 the matter posted on the internet. On re-reading the amended pleadings the claimant has failed to make such a link. I am not surprised given that it seems inherently unlikely. The third incident appears to be the claimant being asked to go and find out what was happening during the occupation. How this constitutes or could constitute a detriment is still unclear. It may be that the 10 claimant has sustained some psychiatric injury by witnessing some events at the occupation but this is looking at the matter with the benefit of hindsight. At the time Mrs Dyker asked the claimant to find out what was happening and there is no pleadings to infer that she thought she was putting him in some sort of danger or aware of that this might cause him future problems.

[39]In relation to the claim for harassment/victimisation that is said to arise from these events I allowed it to proceed as a claim for detriment (on the basis that the claimant could demonstrate some detriment). I am not sure he has done so. Unfortunately, I have issued a Judgment indicating that Deposit Orders should be made and this was neither appealed nor was a reconsideration 20 sought. In retrospect, I was premature in making such an order until the pleadings were clarified. I am concerned that the respondent will be put to considerable cost in rebutting unspecific claims for detriment that seem to have a tenuous connection with the remaining claims. It will of course be open to the respondent’s agents to raise issues of relevancy at any merits hearing. These 25 claims for detriment have little prospects of success. A Deposit Order will be made in a sum to ascertained later.

[40]The Incidents 23 and 30 (Detriment) claims were described as follows: “[Incidents 23 and 30, 18/06/20 Judgement, extract from para 112: "It might be that the pleadings could be recast and I am reluctant to strike out the 30 claims here without giving I a chance to argue he should be allowed to do so despite the claim not being listed by him as a detriment."; extract from para 129: "Put shortly I believes that his disclosures were not treated properly and were misconstrued. If that is his position then that might possibly constitute a detriment. I will reserve the question of strike out meantime to allow I to consider this matter. He needs to set out which disclosure is at issue and what he says was the detriment."] 16. An external solicitor, Mrs Erica Kinmond, was appointed by Mrs Dyker as an agent of the Respondent to investigate my protected disclosure of 07/11/18. 5 As far as I am aware, the appointment of an external solicitor to carry out the investigation of a complaint was unprecedented. I was assured Mrs Kinmond "is bound by professional obligations which mean that in accepting our instruction to conduct an independent investigation she cannot and would not favour any particular party in that investigation". Following conclusion of the 10 investigation it transpired Mrs Kinmond had been instructed with the "principal purpose of gathering evidence where legal proceedings against the University are a reasonable prospect". As such, the Respondent recognised at the outset that it had likely acted unlawfully. Mrs Kinmond did not investigate my disclosure fairly or thoroughly, she endeavoured to prepare a 15 robust legalistic defence for her client, to cover up wrongdoing. Due process was intentionally corrupted to avoid confirming the veracity of my disclosures and the legitimate concerns they contained. This is a form of detriment arising because of my disclosure of 07/11/18. 17. Incident 28, struck out as standalone therefore background: The minute of the 20 first of two investigation meetings between Mrs Kinmond and myself, on 06/12/18, was misrepresentative and misconstrued. The minute attributed words and phrases to me that I did not use, the most significant of which was "I have trust and confidence issues". This was done deliberately, in order to facilitate dismissing me. The misconstruction of the meeting minute is a form 25 of detriment arising because of my disclosure of 07/11/18. The second and final investigation meeting between Mrs Kinmond and I took place on 16/01/19 at her firm’s office. I attempted to show Mrs Kinmond the photographic evidence in high resolution on my laptop and talk through the photographs. I had previously made available to Mrs Kinmond very small and blurry 30 thumbnails of the photographic evidence, as part of my disclosure of 07/11/18i. I showed Mrs Kinmond the first photograph and started to orate a detailed description of the photograph, including pointing myself out within it, which could not have been determined from the thumbnail. Mrs Kinmond stopped me from proceeding, and therefore failed to act to review the 35 available evidence. Mrs Kinmond was aware there was something in the photographs that she sought to deliberately avoid. The overlooking of evidence in the investigation is a form of detriment arising because of my disclosure of 07/11/18.19. At the meeting of 16/01/19, Mrs Kinmond spent around one hour reviewing 40 the video evidence on my laptop, taking extensive notes and asking questions. As part of my response, I drew a detailed diagram of the scene to aid her understanding. Mrs Kinmond declined to share a note or minute for review. It was later evidenced her notes on the video evidence were misconstrued. The misconstruing of evidence in the investigation is a form of detriment arising because of my disclosure of 07/11/18.

20. At the meeting of 16/01/19, Mrs Kinmond asked me various questions in relation to the extensive documents I had shared with her via Dropbox. No minute or note was taken or shared. The failure to share a note or minute of 5 the meeting is a form of detriment arising because of my disclosure of 07/11/18.

21. At the meeting of 16/01/19, Mrs Kinmond provided me with a printed document which outlined her interpretation of my disclosure, separated into two sections titled whistleblowing and grievance. Her interpretation trivialised 10 whistleblowing and maximised grievance, forking one disclosure into two different investigations. This separation and the Respondents use of separate decision makers for each investigation, without sight or regard of the alternate investigation report, meant a fair outcome could never be achieved. The disclosure should have been investigated as considered as 15 one. This is form of detriment arising because of my disclosure of 07/11/18.

22. The Respondents grievance procedure states "Meetings will be conducted in a manner that enables all parties to explain their cases" yet this did not occur, as described above. This is a form of detriment arising because of my disclosure of 07/11/18.

23. The Respondents grievance procedure states "a Human Resources Adviser will be in attendance in the role of clerk" "at any investigation, grievance or appeal meeting" yet this did not occur. This is a form of detriment arising because of my disclosure of 07/11/18.

24. The Respondents grievance procedure states "each step and action under 25 the procedure will be undertaken as quickly as practicable and without unreasonable delay" yet there was unreasonable delay, the process only concluding after 499 days on 20/03/20. This is a form of detriment arising because of my disclosure of 07/11/18 As evidenced by the grievance investigation report, Mrs Erica Kinmond did not interview anybody who was 30 likely to corroborate my disclosure of 07/11/18i, nobody whose name I put forward as a suggestion, and asked only one simple written question of a person likely to corroborate the disclosure (that the Principal Diamond had described the investigation report as "non-factual"). Mrs Kinmond saw fit to interview 12 other individuals, and question in writing 2 other individuals, 35 none of whom were likely to corroborate my disclosure. Most significantly, and most obviously, not even Dr Marie was interviewed prior to Mrs Kinmond concluding her investigations. This is a form of detriment arising because of my disclosure of 07/11/18….. 29. Described within multiple incidents which have been struck out, following my 40 disclosure of 07/11/18i I have been subject to humiliating and demeaning comments or behaviour; "gaslit"; insignificant issues about conduct being unduly highlighted; the Respondent subsequently not handling grievances, whistleblowing and health and safety issues such that the Respondent did not take them seriously or deal with them in a proper manner. 30. My disclosure of my 07/11/18 describes in detail my severe psychological distress, but no action was taken. Such intervention could have been to offer support, timeously refer me to the Occupational Health Service or meet with 5 me informally or formally. This is a form of detriment arising because of my disclosure of 07/11/18. 31. The Respondent did not follow the Acas Code of Practice on disciplinary and grievance procedures……. As described herein, the Respondent fell markedly short of this. This is a form of detriment arising because of my 10 disclosure of 07/11/18. 32. I also contend that as a form of detriment arising because of my disclosure of 07/11/18i the Respondent failed to make reasonable adjustments for me, as described below. It did so in a futile attempt to affect my resignation.’’

[41]The respondent’s agents point to the original strike out Judgment in which I 15 observed that it was unclear how the various alleged events interact with the possible disclosure. Their position was that although recast the pleadings do not provide any greater clarity. They say that an unjustified sense of grievance cannot amount to a detriment.

[42]I agree with the respondent’s criticisms of the pleadings. It should be borne 20 in mind that we are now looking at a second alleged disclosure made on the 7 November 2018. The pleadings are still no more than a narrative of events that the claimant did not like. How some of these matters could in any event amount to a detriment is unclear. The claimant alleges that some of his evidence for example was misconstrued. It is not made clear how this could 25 be a detriment or how it could lead to a detriment. The claimant simply does not address the issue of cause and effect despite invitations to do so. How did or could the disclosure impact on later events and what was the detriment caused to him? In addition, it is disappointing that the claimant has referred to Mrs Kinmond allegedly being involved in unprofessional 30 behaviour, covering matters up as he sees it and preparing a ‘‘legalistic defence’’ to cover up wrongdoing.

[43]Turning to Paragraph 29 it is not good enough to refer to ‘‘multiple incidents’’ or demeaning comments. This does not give the respondent fair notice of the claimant’s position. If as he seems to indicate it refers to claims previously struck out then there should be no reference to them unless some of the factual background supports remaining claims.

[44]Additionally I would also specifically mention Paragraph 31 contains reference to the ACAS Code and it is alleged that the respondent’s actions 5 fell short of the guidance contained there. It remains unclear exactly what the precise detriments were although the claimant has set out some general matters and how they relate to the alleged whistleblowing.

[45]The matter of causation is straightforward. Section 47B(1) of the Employment Rights Act 1996 says that an employee shall not suffer any detriment ‘‘by 10 his employer done on the ground that the worker has made a protected disclosure’’. (my emphasis). The claimant’s pleadings are still wholly deficient in identifying exactly what the detriments amount to and why the flow from the disclosure.

[46]I repeat the claimant’s pleadings here as the beginning of disability 15 discrimination claims and paragraph 26 related to a further alleged detriment. “25. Incident 35, struck out as standalone therefore background - Mrs Kinmond continued to ask me questions via email. On 30/01/19 she asked "When did you receive a diagnosis that you are suffering from Post Traumatic 20 Stress Disorder?". The same day the Respondent made a referral to the Occupational Health Service, requesting a medical assessment by a named physician, to ask the question "Has Mr Dawson received a formal diagnosis of PTSD?". The referral was made without my knowledge or consent and is therefore deeply suspicious. When I determined what had 25 occurred, I was advised I would be in breach of the terms and conditions of my contract of employment if I did not attend the appointment. This is improper use of the Occupational Health Service and evidences the improper nature of the investigation of my disclosure being used to gather "evidence where legal proceedings against the University are a 30 reasonable prospect", rather than investigate the disclosure impartially and properly, as I had been assured.”

[47]These incidents narrated in paragraphs 16-32 do not give rise to validly plead claims and any such claims have no reasonable prospects of success and are stuck out. It is not clear where the claims for detriment end and background begins so for the avoidance of any doubt any claims for detriment arising from paragraphs 17, 18, 19,20, 21,23. 26 and 28 are also struck out for the same deficiencies that I have identified.

[49]Claims relating to alleged failures to make reasonable adjustments (Paragraphs 33 49) were made as follows (the original incidents were 5 58,59,60 and 61. First he sets out the background. “33. When: 22/02/2019 How: My Occupational Health Report of 21/02/19 states "Mr Dawson has been experiencing symptoms affecting his psychological wellbeing following a workplace incident in March 2018. He is receiving 10 appropriate advice from his GP and has been referred for specialist opinion and for therapy with another specialist support service. His symptoms are persistent and are likely to be considered long term. His symptoms have a substantia impact on his normal day to day activities and as such, although it is ultimately a legal question, an Employment Tribunal is likely to consider his 15 condition as covered by the disability provisions of the Equality Act 2010." What that disability is: A consultant psychiatrist has diagnosed me with an Adjustment Disorder with Mixed Anxiety and Depressive Reaction and Post Traumatic Embitterment Disorder.34. Reasonable Adjustments: CCTV Project 20 When duty arose: 22/02/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "I recommend that he is not allocated to the CCTV project as the nature of this project is that it is likely to trigger an exacerbation of his symptoms". At my request, the CCTV project work had 25 previously been reallocated by Mr Lynch on 14/12/2018. However, it had not been progressed, and was given back to me on 04/03/2019. I was advised nobody else could undertake the work, which was unreasonable given the nature of the project and size of/resources available to the Respondent. I duly commenced work on the project, which I found difficult and stressful, 30 but ultimately delivered a key document. Having done so, the project was put on indefinite hold on 28/03/2019, meaning the stress of the work was wholly unnecessary. It therefore felt like a cruel form of punishment. What reasonable adjustments should have been made: I should not have been reallocated to the CCTV project.

35. Reasonable Adjustments: Prolonged uncertainty and undue delay When duty arose: 22/02/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "University processes ... may be distressing and prolonged uncertainty may be detrimental to his health and well being. I therefore advise that they are concluded without undue delay.". The "University processes" refer to the protected disclosure I intimated to Professor Boyne on 07/11/18. I signposted Professor Boyne to the UK Government "Guidance for Employers and Code of Practice" on 20/11/18. This states, as an example of good practice, to "Manage the expectations of the whistleblower in terms of what action and/or feedback they can expect as well as clear timescales for providing updates". I repeatedly made this and other similar requests, 5 yet next to no meaningful information was provided and uncertainty was prolonged. The timeline is represented …… Principal Boyne refused to meet or talk with me. My line manager Mr 10 Lynch was unable or unwilling to provide meaningful support. I was passed from pillar to post, receiving scant little feedback along the way. The grievance "hearing" on 20/05/19 was nothing of the sort: the outcome was predetermined and I was handed a letter detailing the outcome. The grievance stage one appeal "hearing" on 02/09/19 was a charade, as the 15 outcome had already been predetermined. The Respondent advised it could not follow its grievance procedure as it applied to me. The grievance process was then concluded by the Respondent unilaterally and the second stage appeal process/hearing did not take place, much to my disappointment and distress. The grievance process concluded on 20/03/20, 392 days after the 20 duty arose to avoid prolonged uncertainty and undue delay. The whistleblowing process concluded on 21/04/20, 424 days after the duty arose to avoid prolonged uncertainty and undue delay. The Respondents grievance procedure states allows 15 working days for an appeal to be lodged, and permits appeals at two stages. As can be seen 25 the "ball was in the Respondents court" for the overwhelming majority of the circa 500 days processes were active. It is unreasonable, given the size of and resources available to the Respondent, for it to have let these processes run for so long. The respondent deliberately protracted these processes, processes which the Respondent directly controlled (and of 30 which I had no control), in order to maximise damage to me. Prolonged uncertainty and undue delay in terms of the 05/09/19ii disclosure was also evident. I was advised this was to be subsumed into the extant 21/02/19 "Grievance" process which was pending a stage 2 appeal hearing. Ultimately, the process was concluded unilaterally by the Respondent on 35 20/03/20, 197 days later, without evidence of any investigation having taken place in relation to the 05/09/18 disclosure. What reasonable adjustments should have been made: The Respondent should have concluded the processes much sooner, to avoid or minimise 40 uncertainty and delay. The Respondent should have managed my expectations in terms of what action and/or feedback I could expect as well as clear timescales for providing updates. The Respondent should have followed its processes and procedures as they applied to me, or mutually agreed a deviation from those processes and procedures.

36. Reasonable Adjustments: Occupational Health Review Meeting When duty arose: 22/02/19 Factual basis for failure to make reasonable adjustments: An outcome of my Occupational Health Report of 04/01/19 was the scheduling, by the service and at my request, of a review appointment on 29/03/19. In the interim I received 5 an unexpected appointment for 21/02/19. It transpired the Mr Lynch had re-referred me to the service without my knowledge or consent on 30/01/19. I objected but was told I would be in breach of contract if I did not attend. As such I attended the appointment, notwithstanding being on bereavement leave arising from the sudden death of my father a few days prior. My Occupational 10 Health Report of 21/02/19 states "Mr Dawson will be reviewed by my colleague Karen Hudson, Nurse Advisor, on 29/3/19". I expected the telephone appointment to take place on 29/03/19 but it did not. I brought this to the Respondents' attention. It transpired the surreptitious referral had caused the cancellation of the 29/03/19 meeting. As such, the review meeting did not take 15 place. I made the Respondent aware of this. No further action was taken. What reasonable adjustments should have been made: The Respondent should have obtained my consent and agreement for the February 2019 referral to Occupational Health. The Respondent should not have threatened me to be in breach of contract if I did not attend. The Respondent should have 20 rearranged the appointment after I made it aware of the sudden death of my father. The Respondent should have rearranged the scheduled review meeting, cancelled because of its actions, I could not have rearranged it.

37. Reasonable Adjustments: Meeting with the Senior Vice-Principal When duty arose: 22/02/19 25 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "University processes ... I recommend that he is accompanied for support, that he is notified in advance of the participants and provided with an agenda for any meetings". Professor Karl Leydecker, Senior Vice-Principal, telephoned me on the evening of 20/06/19 and 30 requested to speak urgently and privately me about my disclosure of 07/11/18i. A meeting was duly arranged to take place at 10am the following day, 21/06/19. I had arranged annual leave for 21/06/19 and had commitments which meant a telephone call was arranged. I then rescheduled these commitments and advised Professor Leydecker we could meet in person as first envisaged. The 35 meeting duly took place. Given my repeated stonewalling by Professor Boyne, given the passage of time, given I was aware that Professor Leydecker had arranged a meeting with Dr Marie later that day, I "fell over myself": I thought this was a 'break-through' and that the Respondent was finally going to acknowledge harm. I had incorrectly assumed that the meeting Professor 40 Leydecker had requested was in order to provide me with an apology, in private, as this was one of the four outcomes I had sought from the outset. Furthermore, I had incorrectly assumed that Professor Leydecker would discuss with Dr Marie her exoneration to realise another outcome I sought. In fact, the meeting served absolutely no meaningful purpose and it was unclear 45 what, if anything, Professor Leycker sought to achieve by meeting with me, other than to satisfy his curiosity and "get the measure" of me. Dr Marie's meeting went similarly. I was emotionally crushed and overwhelmed. As a consequence of my disability, I cleared my office of personal belongings over the weekend. I was absent through "Stress at Work" from 24/06/20 returning 09/09/20. On 26/06/20 my line manager made an unfounded accusation to me that I had stolen University property, later withdrawn. What reasonable adjustments should have been made: The meeting with Professor Leydecker served no purpose, caused me more harm than good, 5 and should either not have taken place or taken place consistent with the Occupational Health recommendations. I should not have been accused of theft without any evidence or investigation.

38. Reasonable Adjustments: Communicating with Colleagues 10 When duty arose: 19/08/19 Factual basis for failure to make reasonable adjustments: During my sickness absence for "Stress at Work" between 24/06/19 and 09/09/19, I shared with Mr Lynch a resource titled "Return to Work - Communicating with colleagues" which described its purpose to help "employees successfully return to work 15 following depression, anxiety or a related mental health problem". The resource included various recommendations for supervisors and employees. The advice for employees was to "discuss and come to a clear agreement with your supervisor about who is to be told and what they will be told". A significant barrier for me, as discussed with Mr Lynch, was the leaked report of the 20 14/03/18 incident which targeted me without justification and how I could "clear my name" with his colleagues. I contacted Mr Henderson, head of section, and requested we speak before my planned return to work. He was unavailable. I requested to work from home until I could speak with Mr Henderson, this was refused. As such and because agreement could not be reached, I returned to 25 work without being able to communicate my mental health problem to colleagues. Ultimately, on 01/10/19 the Respondent advised the leaked report had "no standing" and on 02/10/19 announced the departure of Mrs Inglis, which did little to nothing to exonerate me and mitigate the damage so unnecessarily caused to the reputation and health of Dr Marie and myself. 30 What reasonable adjustments should have been made: I should have been supported and permitted to send an email to colleagues to "set the record straight" and facilitate my return to work. I should have been allowed to work from home until I could speak with my head of section. The Respondents censuring the report should have occurred much earlier, and the mitigation 35 should have went much further to undo the damage caused.

39. Reasonable Adjustments: Stress Risk Assessment When duty arose: 30/08/19 Factual basis for failure to make reasonable adjustments: Occupational Health Report of 22/08/19 states "I would suggest that on Derek’s return to work a 40 stress risk assessment is completed. This will highlight any particular areas of difficulty that Derek may experience, and a managerial solution can be explored. You can find this resource online - http://www.hse.gov.uk/stress/risk-assessment.htm" What reasonable adjustments should have been made: Following sickness 45 absence for "Stress at Work" from 24/06/19 I returned to work on 09/09/19, attending the first supervision with my line manager Mr Lynch on 11/09/19. Mr Lynch advised that rather than use the recommended HSE risk assessment tool, he felt an alternate questionnaire would be better. Mr Lynch had printed two copies of a single page template document titled "NHS Grampian Occupational Health Service Stressor Assessment Questionnaire". I suggested I take away the questionnaire, complete it, and return it, allowing the meeting to focus on workload. Mr Lynch insisted on talking through the questionnaire and that he would take notes, type them up, and share them for 5 review. The entire meeting was therefore focused on the questionnaire, during which Mr Lynch made succinct notes written within the limited space for notes (the form being designed to be used electronically and expand accordingly). I took the other copy away with me to study further. Mr Lynch then typed up his notes, sharing them with me 16 days later on 27/09/19. As requested, I 10 reviewed the notes, made some changes, and returned the document of even date. I had a supervision meeting with Mr Lynch on 30/09/19 during which Mr Lynch advised I that I had included a lot in the revision which he felt we hadn't discussed, although when challenged conceded this. Mr Lynch stated his view that I was restating his case for the purposes of bringing my Employment 15 Tribunal Claim [I had lodged a claim on 12/09/2019] and that what I had provided him was "not helpful" and that I was "looking back in the past and looking for reasons to throw up problems". Following these unwanted comments, I excused myself from the meeting. The recommended "HSE risk assessment tool" records who might be harmed and how; what is being done 20 to control the risks; what further action needs to be taken to control the risks; who needs to carry out the action; and when the action is needed by. In contrast, the "NHS Grampian Occupational Health Service Stressor Assessment Questionnaire" is a basic questionnaire intended to be completed by a person experiencing work related stress, from their 25 perspective. If any actions or managerial solutions were subsequently explored, they were not communicated to me. From my perspective, no action was taken. What reasonable adjustments should have been made: The HSE risk assessment template should have been used. I should have been allowed to 30 complete the questionnaire myself, without any undue pressure. My expectations should have been managed in terms of what action and/or feedback they can expect as well as clear timescales for providing updates. Managerial solutions should have been explored and the appropriate action taken.

40. Reasonable Adjustments: Supervision & Line Management Support When duty arose: 30/08/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 22/08/19 states "I believe Derek would benefit from having 40 weekly supervision on his return to work and for the duration of his phased return as a way of offering further support at this time. It may be useful to ensure supervision is carried out with a person whom is up to date with the incident and the processes that are ongoing as this will make the process more meaningful. You may reduce this to monthly at a time agreeable to both 45 parties.". I sought to establish who could keep, or how I could be kept, up to date with the incident and processes that were ongoing. Mr Lynch advised me that I would need to speak to "the appropriate member of management within the University" yet was unable to clarify who this was. Supervision in week one had comprised the "stressor assessment questionnaire" described above. Supervision in week two was cancelled because Mr Lynch was ill. Supervision in week three comprised the "stressor assessment questionnaire" described above, during which I had to excuse myself from the meeting due to Mr Lynch's unwanted comments and behaviour, as described above. I raised concerns 5 about Mr Lynch in a grievance with Mr Henderson, line manager of Mr Lynch and head of section. Mr Henderson and I met on 04/10/19. I requested a change of line manager. The request was declined. On 04/10/19 Mr Henderson emailed me to advise he declined to progress the grievance. Mr Lynch unilaterally ended weekly supervision with me. On 12/11/19 I emailed Mr 10 Henderson to query the current situation. On 22/11/19 Mr Henderson advised he was now able to progress the grievance but would not change my line manager until he personally had heard the grievance. This was contrary to the Respondent's grievance policy, which states another appropriate individual shall take the matter forward. I responded of even date and withdrew 15 my grievance by virtue of the fact the Respondent had by then confirmed it was unable to follow its grievance procedure as it applied to me and the Respondent refused to concede I was a disabled person for the purposes of the Equality Act 2010. Upon withdrawal, 52 days had elapsed with no action by the Respondent consistent with its procedure. 20 What reasonable adjustments should have been made: Meaningful supervision should have taken place as described by the Occupational Health Service. The Respondent should have followed its grievance procedure. Prolonged uncertainty and undue delay were not avoided (as per para 35 above). The Respondent should have changed my line manager on a 25 temporary or permanent basis, and ensured the support envisaged by the Occupational Health Service was provided. As per incident 34, struck out as standalone - the temporary re- organisation/restructure unexpectedly made Mr Lynch my permanent line manager without any of the consultation required via the Respondents change management procedure, which should have 30 been followed.

41. Reasonable Adjustments: Counselling When duty arose: 30/08/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 22/08/18 states "We explored the benefits of counselling and 35 Derek has expressed an interest in engaging in this. I believe that counselling would provide Derek with further support at this time. I would suggest that a referral be made for counselling on his behalf.". No referral was made for counselling. What reasonable adjustments should have been made: A referral should have 40 been made for counselling.

42. Reasonable Adjustments: Purchase of annual leave When duty arose: 30/08/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 22/08/19viv states "I would also support that Derek should be 45 given time to attend all appointments in relation to his health as this will have a positive impact on his overall wellbeing.". During my sickness absence for "Stress at Work" between 24/06/19 and 09/09/19, I submitted a request on 03/09/19 to utilise the "Purchase of Annual Leave Scheme" to make a salary sacrifice to acquire up to 10 days of additional leave within the annual leave year 1 October 2019 and 30 September 2020. Mr Lynch declined the request without discussion. Mr Lynch's position was effectively that my previous sickness absence and bereavement leave meant I had already accrued what, 5 in Mr Lynch's opinion, was too much leave. What reasonable adjustments should have been made: I sought to utilise additional annual leave to help manage stress and improve my wellbeing and should have been allowed to purchase up to 10 days of additional leave, to aid my recovery.

43. Reasonable Adjustments: Mr Henderson's concerns When duty arose: 04/11/19 Factual basis for failure to make reasonable adjustments: Mr Henderson proposed a further referral to the Occupational Health Service on 04/11/19, sharing with them Mr Lynch's original version of the "Stressor Assessment 15 Questionnaire" and my revision. Mr Henderson advised "I feel that I have to write to OH setting out concerns that you are having difficulty with moving on from past events and that this is causing difficulties, at times, in your day-to-day work" also "I have underlying concerns about how safe an environment this is for you, given your potential psychological response to certain situations 20 that may occur in your day-to-day work." also " Once we have the response from OH, I propose we sit down together to see how we secure a safe way for you and Richard to work together safely and constructively.". No such referral was made, no such meeting took place. What reasonable adjustments should have been made: The proposed referral, 25 appointment and meeting should have occurred.

44. Reasonable Adjustments: Dr Marie's grievance appeal hearing When duty arose: 22/02/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "University ... processes may be distressing and prolonged uncertainty may be detrimental to his health and well being. I therefore advise that they are concluded without undue delay. In addition I recommend that he is accompanied for support, that he is notified in advance of the participants and provided with an agenda for any meetings". Dr Marie invited me to attend as 35 a witness at her first stage grievance appeal on 10/12/19. By this time she had resigned and moved abroad, attending via video conference. Mrs White clerked the meeting, and as HR partner for IT was aware of my disability and Occupational Health Reports. I was only advised of the participants and format whilst waiting in the allocated room on the morning of the meeting. The 40 convenor directed all the meeting participants around the table to introduce themselves, but stopped short of me, moving onto other matters. I requested, but was not allowed, to read a pre-prepared statement, or excerpts from it during the hearing itself. What reasonable adjustments should have been made: I should have been 45 notified in advance of the participants and provided with an agenda. I should have been introduced in the same way as the other participants. My request to read a pre-prepared statement, or excerpts from it during the meeting, should have been accepted.

45. Reasonable Adjustments: Self-Referral to Occupational Health When duty arose: 10/12/19 Factual basis for failure to make reasonable adjustments: I had to leave work 5 early following the distress of the above meeting. On even date, I felt better after taking some medication and sought to self-refer to the Occupational Health Service, and returned to work the next day. The Respondents "Sickness and Attendance Management Procedure" permits self-referral but I was advised by the service this was not possible, and instead a consented referral 10 was made on my behalf by the Respondent: "On 10 December 2019, Derek attended a meeting as a witness in support of a former work colleague. He subsequently advised that he found aspects of the meeting distressing and, as a result, has requested to be referred to Occupational Health.". The Respondent then made a replacement, non-consented referral on 17/12/19 15 which added in "Additionally, Derek has indicated that not progressing his grievance concerns is having an impact on his health. Derek's grievance concerns and the support he provided to the former work colleague relate to events of March 2018 and the aftermath of them." also including the 11 disability questions supplied by Mr Maclean, the solicitor representing the 20 Respondent. A consented referral was not made until 10/02/20 by which time matters had deteriorated further: "Derek is currently working from home due to an ongoing situation in the workplace. Derek reported feeling unsafe and removed himself from the workplace on Monday 13th January. He has been instructed to work from home whilst a process takes place to uncover the 25 nature and mitigation of the danger he feels in the workplace. Derek has reported that prolonged uncertainty and working from home is having a detrimental impact on his health. A referral is sought with a Physician to consider reasonable adjustments and other measures to facilitate Derek's return to the workplace. Advice is sought on whether a joint meeting with 30 Derek, his manager, a trade union representative and the Physician would be appropriate at this time.". With the appointment on 25/02/20, 77 days had elapsed since I first sought to self-refer. What reasonable adjustments should have been made: A timeous appointment with the Occupational Health Service should have taken place. 4104107/2020; 4104157/2020 and 4105478/2020 - Reasonable Adjustments

46. Reasonable Adjustments: Line Manager Support & Effective management of workplace stressors When duty arose: 27/02/20 Factual basis for failure to make reasonable adjustments: I shared with Mr 40 Lynch the Occupational Health Report of 13/02/20vii which I had obtained privately due to the Respondents failures. This report diagnosed me with an Adjustment Disorder together with Post Traumatic Embitterment Disorder. The report states "symptoms are unlikely to resolve where workplace stressors persist. It is difficult to say at this stage whether his symptoms will continue 45 if/when there is satisfactory resolution of his ongoing workplace stressors but he is likely to require psychological support in order to increase the likelihood of a good recovery. Effective management of workplace stressors is key to facilitate recovery". This reiterates advice given in the first Occupational Health report, of 04/01/19iv, which advised "I would recommend allocating protected time to focus on ongoing Line Manager support with regards to the specific workplace stressors Mr Dawson identifies and will continue to be exposed to 5 throughout an ongoing University investigation.". There was little to no line manager support and effective management of workplace stressors. What reasonable adjustments should have been made: I should have been lined managed by an individual capable of giving effective support to me and managing my workplace stressors. This failure is evident over a long period 10 of time in the reasonable adjustment claims of 4110829/2019 and 4114716/2019, including my request to be appointed a different line manager, which was declined.

47. Reasonable Adjustments: Conclusion & Meetings When duty arose: 27/02/20 The Occupational Health Report of 17/02/20viivi recommends "the appeals 15 process is concluded as expeditiously as possible", that appeals process being relative to the grievance the Respondent instigated from my disclosure of 07/11/18i. The physician also envisaged physical "meetings related to his absence and to the current procedural issues, but only if these are held in a mutually acceptable location" and a further review in 4 weeks after which "If 20 things are not progressing at this stage then it may be that a joint meeting as suggested in your referral would be a good way to start to move things forward". My Occupational Health Report of 22/08/19 stated "I believe that attending this appeal and reaching an outcome of this issue will allow Derek to move forward.". Contrary to the intent the advice, on 20/03/20 the Respondent 25 concluded the grievance process arising from the disclosure of 07/11/18i via a brief email, without hearing the second stage appeal. None of the envisaged meetings regarding my absence or current procedural issues took place. On 21/04/20 the Respondent concluded the whistleblowing process arising from the disclosure of 07/11/18i, via a brief email. 30 What reasonable adjustments should have been made: The stage two appeal should have taken place. In person meetings should have been arranged to communicate the conclusion of the processes and their outcome.

48. Reasonable Adjustments: Post Traumatic Embitterment Disorder (PTED) When duty arose: 01/04/20 35 Factual basis for failure to make reasonable adjustments: Following a discussion with Mr Lynch, I sent him a link to a resource on the National Bullying Helpline website titled "What is Post Traumatic Embitterment Disorder?" which included a section on advice for employers. Mr Lynch advised me that he had read the material. The advice for employers included: a) Engage with the employee and encourage them to talk about what is troubling them. To be both listened to and to feel believed goes to the very heart of the embittered mind. b) In-house Policies and procedures should be updated to reflect the fact that PTED is a disability. It is an illness. Follow your procedures and work with 45 mental health experts. c) Do not force Mediation. It will likely be a waste of time, money and resources. The embittered mind is incapable of empathising with others and believes it is others who need to change – not them. d) Do not rush into a Performance Improvement process. The PTED mind will resent a heavy-handed approach. e) Don’t expect too much from the employee who has trust issues. Be open and honest and reassuring. Appoint a ‘workplace buddy’ if appropriate. f) Work with an Occupational Health expert who understands PTED. g) Consider Coaching. A good Coach will not tell their Client what to do. Coaching may provide the embittered mind with the tools they need to look to the future. h) Talk openly about PTED to the employee in question. Reference the work of both Professor Michael Linden and The National Bullying Helpline … It will also demonstrate to them that you have a reasonable understanding of what 10 they are going through. The events narrated in 4104157/2020 of May 2020 show Mr Lynch and the Respondent had failed to heed the advice given in any meaningful way. What reasonable adjustments should have been made: The National Bullying Helpline advice should have been considered and implemented: Mr Lynch 15 should have engaged with me and encouraged me to talk about what is troubling me; ensured procedures were followed; avoided a heavy-handed approach; be open and honest and reassuring; appoint a workplace buddy; work with an expert who understands PTED; provided coaching; talk openly about PTED and show an understanding of what I was going through. 49. Reasonable Adjustments: Joint Review Meeting When duty arose: 07/04/20 Factual basis for failure to make reasonable adjustments: The four week review took place on 06/04/20 amidst the initial disturbance of the COVID-19 pandemic advising of the difficulty of obtaining GP/OHS appointments; and that 25 there would likely be significant disruption to arranging further Occupational meetings to expedite a resolution to my situation in a timeous manner; and it was likely unfeasible to arrange a joint meeting in the short term. What reasonable adjustments should have been made: A meeting between me, my trade union representative, Mr Lynch and others should have been 30 arranged and taken place, even without Occupational Health input.”

[50]The claimant did not directly respond to the respondent’s submissions that the amendment came out of time or indeed that amendment was required. Accordingly I instructed my clerk to write to the claimant on the 9 June asking 35 him what his position was and whether he accepted the respondent’s position that the Better and Further Particulars were in effect an amendment. In that letter the claimant was referred to the leading case of Selkent and to the principles around amendment. The claimant quickly responded. He suggested that some claims could be traced back to a chronology that had been lodged 40 in January 2020. The respondent’s solicitor wrote on the 11 June reminding the Tribunal of the terms of the original PH Judgment which allowed the claimant to recast some claims and not add new ones. They pointed out that the Early Conciliation took place in relation to the case between 7 and 28 August 2019 and the claims were out of time before any reference was made to such matters in the Chronology. His position was that the claims had no reasonable prospects of success and that there were no pleadings to point to any substantial disadvantage suffered. The claimant had only mentioned 5 claims in Paragraphs 21.4,21.6,21.7 and 21.8 but that Paragraphs 46,47,48 and 48 are new.

[51]The claimant initially did not fully accept Mr McLean’s analysis and his response drew a further letter from the respondent’s agents on the 14 June 10 ending that being able to ‘trace back’ a claim was insufficient to articulate one. The claimant in his email dated 14 June formally sought leave to amend ‘‘such that anything which the respondent asserts is new or time barred ..is not treated as such by the Tribunal and struck out’’. He then addressed the ‘‘Selkent’’ principles dealing with the nature of his amendment (where it was relevant to 15 look at whether it was relabelling existing facts) time limits and the timing of the application. He pointed out that he was a litigant in person with no previous experience of the Tribunal process. He had obeyed Tribunal directions and had done everything possible to keep his claims up to date.

[52]Ultimately, I preferred the analysis of Mr McLean and I agree that although some refence to certain facts can be traced back this is not a simple relabelling exercise. The claimant had ‘pushed the envelope’ by seeking to add additional claims. The Tribunal has wide powers of amendment and a party can seek leave to amend at any stage before Judgement and accordingly the matters 25 identified in the Better and Further Particulars will be treated as amendment as both parties now agree.

[53]It might be helpful for the claimant to understand what is meant by a reasonable adjustment and what a claimant must aim to prove to demonstrate a breach of 30 the Equality Act by failing to implement one. Before doing so I would stress that a reasonable adjustment is not just some event or decision that a claimant wanted to happen differently. A PCP or ‘provision criteria or practice’ of the employer must be identified that puts the disabled person at ‘substantial disadvantage’.

[54]The claimant initially made a number of claims for an alleged failure to make 5 reasonable adjustments following his GP’s letter putting the respondent’s management on notice that he was suffering stress t work. I mentioned in the PH Judgment that time bar issues arose. We now have pleadings that are a mixture of some issues that were struck out, some new issues and some recast ‘old’ ones. The pleadings for a lawyer are not easy to follow but I accept that 10 some latitude must be given to the claimant who is a party litigant subject of course to the respondent not being prejudiced. As noted earlier he has gone beyond what was envisaged in the PH Judgment by adding new claims without getting the Tribunal’s authority to do so. I would observe that the initial adjustment claims were that the grievance process that the claimant had 15 initiated should have been dealt with more quickly and the a more specific adjustment that he should have been given a new line manager at some point.

[55]At the outset it is important to identify what relates to matters that were struck out by the PH Judgment and what are new. The matters struck out previously 20 cannot be resurrected and the new matters require to be the subject of amendment. Time bar is of course something that should be taken into account in whether or not to allow an amendment but the Tribunal has a wide discretion as noted earlier and it is only one factor.

[56]Turning to paragraph 34 this relates to whether it was a reasonable adjustment to take the claimant off a project involving CCTV. He had initially been allowed to give up involvement but was then reassigned to it. The pleadings are still deficient. There is no reference to a suggested PCP or to substantial disadvantage although reading the pleadings as a whole the claimant alleges 30 that this decision to reallocate the work caused him unnecessary stress.

[57]Paragraph 35 related to the issue of delay and on the face of the bald facts there has been a significant delay but there may, of course, be an explanation for those delays. The respondent’s lawyers say that no PCP has been identified. The claimant seems to try here and add an additional adjustment relating to the provision of support. The respondent says that there are no 5 pleadings to support a substantial disadvantage being caused.

[58]The claimant has done himself no favours by not focusing on the full statutory basis for his claims. However, reading the pleadings as a whole it is apparent that he says the failure to deal with these processes quickly caused him stress 10 and prolonged any such stress unnecessarily. The claimant pleads that the respondent ‘‘deliberately protracted these processes …..in order to maximise the damage to me’’

[59]In his pleadings the claimant adds that he was distressed at a particular hearing 15 not taking place or what happened at a meeting and so on but this is not the issue he is founding upon in that passage. The issue is whether it was a reasonable adjustment to try and expedite the process (and whether this could reasonably be done) and if so what would have been likely to result. It would be open to a Tribunal to consider whether it was a reasonable adjustment in 20 the circumstances and whether it would have then alleviated a possible substantial disadvantage namely the additional stress that an unresolved process could have caused.

[60]There are, however, further difficulties. It is not clear why the delay occurred 25 and whether it was a decision of one person or more likely the cumulative effect of a number of decisions. I was not referred by parties to the recent Court of Appeal case of Ishola v Transport for London which I think contains important guidance. A one-off act, here a decision not to investigate a grievance before dismissal was held not to be a PCP. There has to be some 30 sort of continuing state of affairs or repetition of behaviour. I would add that the Claimant might benefit from reading the case. At paragraph Lady Justice Simler said this: ‘‘In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct 5 discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP. In context, and having regard to the function and purpose of the PCP in the 10 Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will 15 be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. In that sense, the one-off decision treated as a PCP in Starmer is readily understandable as a decision that would have been applied in future to similarly situated employees. However, in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J 25 referred to "practice" as having something of the element of repetition about it. In the Nottingham case in contrast to Starmer, the PCP relied on was the application of the employer's disciplinary process as applied and (no doubt wrongly) understood by a particular individual; and in particular his failure to address issues that might have exonerated the employee or give credence to 30 mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual's case and by inference, there was nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way.”

[61]It might be viewed differently if it had been possible for the claimant to demonstrate some sort of likely repetition or ongoing state of affairs. I bear in mind that we do not have detailed pleadings from the respondent clarifying their position. In Paragraph 177 of the PH Judgment I made reference to a 40 possible claim around a reasonable adjustment to expedite the claimant’s grievance because of the stress an unresolved grievance apparently had on him and did not strike it out. The claimant deals with this mater in Paragraph 35 referring to the Occupational Health Report dated 21 February 2019 referring to avoiding ‘‘undue delay’’. The claimant attended a grievance hearing on the 20 May and had an outcome on 20 March 2020. He alleged breaches of the respondent’s policies. We are concerned about the period from February 2019 to March 2020. The previous delay having resulted before the claimant says the duty began.

[62]This particular matter does require amendment. It was considered as part of the pleadings at the previous PH hearing and permission given to lodge Better and Further Particulars. In the whole circumstances I am not prepared to strike out this claim (delays in carrying out and concluding the grievance process) 10 and will allow amendment subject to reserving the issue of time bar. I cannot assess whether it has little reasonable prospects of success or not as much will depend on the factual reasons for the delay and as yet there is no detailed response from the respondent explaining the reason for delay.

[63]In relation to Paragraph 34 it is noteworthy that the original complaint (Para 138 of the PH Judgment) refers to various forms of discrimination including disability discrimination, harassment and detriment. This is now recast as a reasonable adjustment claim which is out of time. Paragraphs 36 and 38 are new matters and require an amendment.

[64]Paragraph 39 relates to the use of an alternative to an HSE stress assessment. This was dealt with in Paragraph 160 of the PH Judgment. The claims were struck out and have been reinstated. I repeat what I wrote there: ‘‘What happened at the meeting seems on the face of it wholly unremarkable’’ That is 25 still my conclusion and it is disappointing to note that the issue has simply returned to us and is required to be considered again with the time and expense that causes. The claimant must understand that just because something happened in a way that he did not approve of or would have done differently does not mean that there is a failure to make a reasonable 30 adjustment. Similarly, the unsatisfactory meeting with Professor Leydecker formerly Incident 42 and now Paragraph 37 had made reference to reasonable adjustments and those claims were struck out. I cannot understand why the matter now reappears. The claimant writes: ‘‘The meeting with Professor Leydecker served no purpose, caused me more harm than good, and should either not have taken place or taken place consistent with the Occupational Health recommendations. I should not have been accused of theft without any 5 evidence or investigation.’’ I am not sure how the claimant could reasonably analyse the situation as having any PCP being in play. The reasonable adjustment sought seems to effectively be things should have gone as the claimant wanted them to. For the avoidance of doubt even if this was not already struck out there is no reasonable prospects of success for such a claim.

[65]Paragraphs 41,42 and 43 relate to a suggested reasonable adjustment of referring the claimant for counselling, allowing him to acquire annual leave and not progressing a referral to Occupational Health. The latter does not amount to a valid adjustment as it is a means to an end to identify reasonable 15 adjustments not an adjustment in itself. These are wholly new claims that require amendment.

[66]Paragraph 44 relates to the involvement of the claimant in a colleague’s grievance hearing. This was previously Incident 62 and was struck out. Once 20 more the matters reappear this time solely under the heading of reasonable adjustments. The claimant attended this meeting and suggests that reasonable adjustments arose: ‘‘I should have been notified in advance of the participants and provided with an agenda. I should have been introduced in the same way as the other participants. My request to read a pre-prepared 25 statement, or excerpts from it during the meeting, should have been accepted.’’ Again, this seems to be no more than a complaint that things should have been done differently. There is no PCP nor does one seem to exist from what we are told. This matter was struck out but for the avoidance of doubt these claims have no reasonable prospects of 30 success.

[67]Paragraph 45 was formerly Incident 63 and which was struck out. There are now some new facts pled which would require amendment. Once more the deficiencies noted earlier are apparent. What is the PCP? If it is the refusal to accept self-referrals then this on it’s own seems a policy that is within management discretion and neutral to both those who were disabled and those 5 who are not. An adjustment has to be ‘reasonable’ and it is foreseeable that self-referral could be readily abused by individual staff member incurring considerable expense. There is no indication of what the substantial disadvantage would be given that the claimant could ask for a management referral and has his own GP to seek support from. For the avoidance of doubt 10 this matter as pled has no reasonable prospects of success and is struck out.

[68]Paragraph 35 formerly Incident 61.The claimant was given an opportunity to recast his pleadings. He has now stated that the reasonable adjustment is: ‘‘The Respondent should have concluded the processes much sooner, to avoid or minimise uncertainty and delay. The Respondent should have managed my expectations in terms of what action and/or feedback I could expect as well as clear timescales for providing updates. The Respondent 20 should have followed its processes and procedures as they applied to me, or mutually agreed a deviation from those processes and procedures.”

[69]There is no reference to a PCP or to what the substantial disadvantage is. However, while I am hesitant to let such an adjustment stand it is capable of 25 giving the respondent’s sufficient notice that delay in their processes might be likely to adversely affect the claimant’s health (whether they did or not would be a matter for proof) and whether there were any good reasons for such delays. In the circumstances I am of the view that there are little reasonable prospects of success and I fear that any hearing could end up as a long-winded 30 trawl through events both large and small. In addition the issue of time bar remains extent. A Deposit Order will be made in a sum to be ascertained later.

[70]Paragraph 40 (formerly 58 and 59) related to various matters principally a change in line manager. We have no clear PCP and what appear to be discrete one-off decisions relating to the whole department. The claimant contends: ‘‘Meaningful supervision should have taken place as described by the 5 Occupational Health Service. The Respondent should have followed its grievance procedure. Prolonged uncertainty and undue delay were not avoided (as per para 35 above). The Respondent should have changed my line manager on a temporary or permanent basis, and ensured the support envisaged by the Occupational Health Service was provided. As per incident 10 34, struck out as standalone - the temporary re- organisation/restructure unexpectedly made Mr Lynch my permanent line manager without any of the consultation required via the Respondents change management procedure, which should have been followed.’’

[71]This is difficult to follow and what for example ‘‘meaningful supervision’’ means is not clear. It is not clear what the substantial disadvantage is that would be avoided other than the general assertion that having the same line manager was stressful. The issues here are struck out as having no reasonable prospects of success apart from the adjustment relating to 20 a change of line manager.

[72]The respondent’s pointed to Paragraphs 46 (appointment of a new manager in February 2020), 47 (failure to allow a stage two stage appeal), 48 (a failure to make adjustments in April/May 2020) and 49 (a failure to arrange a Joint 25 Review Meeting). These matters all required amendment.

[73]The respondents sought Strike out/ Deposit in relation to other claims made in their fourth and fifth categories which related to matters raised in the Fourth and Fifth claim which they argued had no reasonable prospects of success 30 Paragraphs 62 i-iv, 65 onwards Paragraphs 73, 74-76 ,77, 78-79 ,82, 84-88. The claimant had recorded that Paragraphs 50-54 are background but in Paragraph 60 he draws out some potential claims. The respondents submitted that the claimant could not reasonable believe that the events narrated amount to unlawful detriment or harassment.

[74]The claimant says that he was harassed because of his protected characteristic namely disability. In his original claim he had alleged that he had been discriminated against on the ground of his religion or philosophical belief. In Paragraph 62ii related the claimant’s grievance being dealt with ‘seriously’ 5 and this is said to be a detriment arising from disclosures. There is no linkage or nexus with the disclosures. The next matter relates to interactions with Mr Lynch that seem unremarkable and again no indication of how this could relate to the disclosures. The word detriment has a wide meaning but it is not so wide as to encompass behaviour that is only subjectively regarded as upsetting. 10 Paragraphs 65 onwards of the BFPs relate to matters which had previously been raised in the Fifth Claim. The Respondent notes that the Claimant has stopped clearly categorising the various claims he makes amidst these paragraphs, and will respond where a claim appears to be identified.

[75]In paragraph 73 the claimant says his dismissal was automatically unfair because of whistleblowing yet as the respondent’s agents point out this was some two years earlier. As noted earlier the claimant has not pled a causal link between these events. To succeed he would have to demonstrate that the dismissal related to the much earlier alleged disclosure. This would be a time 20 consuming and costly exercise which would be likely to lead to evidence being led and rebutted about the sort of numerous events the claimant has pled over a two year period. I have considerable misgivings about allowing this claim to proceed. It could be seen as an invitation to try and lead evidence about all the peripheral events that seem to prey on the claimant’s mind. It would not be 25 such an invitation. It would be up to the claimant to demonstrate, at least a prima facie case that the matters are somehow linked. From the pleadings before me he will struggle to do so but I will not strike out the claim. Considering the matter in the round I am reluctantly of the view that I cannot rule that this has no reasonable prospects of success given that it is so fact sensitive. 30 However, this matter has little prospects of success and will be subject to a Deposit Order in a sum to ascertained later.

[76]Turning to Paragraphs 74-76 and 87. The claimant writes at 76 and 87: ‘‘The Respondent consistently refused to make reasonable adjustments for me, including to change my line manager due to the evidenced history of Mr Lynch's unwanted conduct, lack of support and behaviours which I found antagonistic, harassing and distressing.’’ ‘‘The dismissal could have been handled in a manner which minimised the severe psychological distress caused to me. For example, holding a meeting with me where I could be accompanied by a trade union representative; suspending me to provide forewarning; providing me with particulars of the allegations and allowing me to give an explanation of the matter; responding 10 to my grievances of 24/04/20 and 02/06/20; responding to the accident I logged on 02/06/20; holding the joint Occupational Health meeting; seeking appropriate medical advice. The respondent should have sought my permission prior to the visit to my house on 01/07/20 and informed me in advance of who was visiting and for what purpose. The Respondent failed to 15 make these reasonable adjustments.’’

[77]If these Paragraphs intended to found separate claims then they fail to specify the adjustments properly or provide the basis for them i.e give the PCP etc. I suspect they are more likely to be summarised background but for the 20 avoidance of doubt as a separate stand alone basis for claims they have no reasonable prospects of success and are struck out. In relation to Paragraph 87 the words ‘‘The Respondents failed to make these reasonable adjustments’’ should be removed from the text.

[78]Dealing with Paragraph 77 it has two mixed claims the first being under Section 20 of the Equality Act and the second detriment arising from Whistleblowing. The claimant writes: ‘‘The 22/05/20 email I sent to colleagues was a consequence arising from my disability and therefore Section 15 of the Equalities Act 2010 affords me 30 protection. I was treated unfavourably because the email arose in consequence of my disability. The Respondents' treatment is not a proportionate means of achieving a legitimate aim: it is a means by which to circumvent protections afforded to employees by statute and dismiss me as a whistle-blower.’’

[79]The respondent’s position was that the email was only one element in their assessment that there had been a break down in trust and confidence. The claimant does not specify how the email is connected to his disability or was in some way a symptom of it for example of impulsivity and whether he apologised or retracted it. To succeed the claimant would have to show what 5 was in the minds of the people who dismissed him and that they did so because of his disability. The pleading do not adequately support either claim. Neither claim has any reasonable prospects of success and are struck out.

[80]In Paragraphs 78-79 the claimant refers to dismissal for Health and Safety reasons or for disability. It is unclear factually how such claims could arise as the respondent ‘s agents point out. These matters are not thought through and so vague and unspecified that they seem to be simply a way of adding complexity to an already complex situation. There is no basis pled for 15 dismissal under Section 100 of the ERA. These allegations are struck out as having no reasonable prospects of success.

[81]In Paragraph 82 the Claimant suggests his dismissal related to his religion or belief. The matter is put thus: ‘‘In the "case for dismissal" obtained via a subject access request, it is narrated that it is perplexing why not resigned and to paraphrase, "putting me out of my misery" was a factor in the recommendation and decision to dismiss. As of 10/01/20 the Respondent was fully aware of my Christian beliefs and the doctrine I was endeavouring to apply by 25 "turning the other cheek", as per Joint Bundle for the PH of 18/06/20 p332. At the PH of 18/06/20 the tension between the Respondents continued poor treatment and desire to dismiss me, against my refusal to resign was discussed. This is detailed in an email I sent to the Tribunal following the PH of even date: "I feel that it is wholly 30 incompatible with my religious and philosophical beliefs (particularly "turning the other cheek" - see joint bundle p332) to resign and claim constructive dismissal.". In the 4105478/2020 ET3 it is stated "The Respondent did not know that the Claimant held the belief that his Christian religion required that he not countenance resignation" which 35 is evidentially untrue. I contend I have been discriminated against because of my "religion or belief" and this was a significant factor in my dismissal. That I endeavoured to "turn the other cheek" placed me at a particular disadvantage, that being that an individual without my "religion or belief" would have found the situation so unbearable as to have resigned long ago. A comparator here is Dr Marie’’.

[82]How the claimant’s religion or belief played a part in his dismissal remains obscure. There is no ‘smoking gun’ to suggest that someone like the claimant holding conventional/traditional religious or political beliefs was dismissed because of those beliefs and there is no underpinning pleadings to suggest such motivation on the part of the 10 respondent. The claimant had recycled these matters which were struck out in the PH Judgment and they now appear in relation to the unfair dismissal element. They have no reasonable prospect of success and are struck out.

[83]In Paragraphs 84-88 the claimant complains of harassment that: ‘‘Mrs Dyker obtained my personal email address and used it on 01/07/20 to send me the dismissal letter as an attachment within an email. It is "scandalous, unreasonable or vexatious" for the Respondent to have used the personal data I had supplied to the Tribunal in this way. This action was 20 undertaken without consideration or respect, violated my dignity, and was personally offensive to me. It caused me severe psychological distress.’’

[84]It is understandable that the claimant found his dismissal unsettling but there is nothing untoward in what occurred given that he was working at home. Nor 25 is there any suggestion that some legal obligation towards him has been broken or that any employment claim arises. Whether any distress was genuine or hyperbole is something that the Tribunal hearing the unfair dismissal may touch on but is of no relevance to the claim for unfair dismissal where injury to feelings is not a relevant head of claim. These matters have 30 no reasonable prospects of success and are struck out.

[85]The respondent’s agents then turned to what they described as Category 5 the Fourth Claim made. Their position was that if the whole case was not struck out then they did not seek separately strike out of the unfair dismissal claim. They acknowledged that dismissing an employee for a breakdown in trust and confidence in these circumstances without meeting to discuss the proposed termination was unusual. Accordingly, the (‘‘ordinary’’) unfair dismissal claim will now 5 proceed to a hearing. Expenses

[86]The rules relating to expenses are found in the Employment Tribunal Rules of Procedure. We are concerned with Rule 76. The respondent’s position is that the claimant has acted unreasonably (Rule 76(1)(a)).

[87]There are two matters that have to be considered before an expenses (costs) order is made. The first is whether the rule is engaged and the second is whether the Tribunal should exercise its discretion to make an award at all.

[88]I do not minimise the difficulties that party litigants face when drafting pleadings especially in discrimination cases. The claimant also has mental health issues which are referred to in the report he has lodged. He has not suggested how this impact on his actions. He is clearly an able person and has demonstrated this in a number of ways such as the detailed research he has carried out on 20 issues and the lengthy and complex nature of his pleadings. He was also a Trade Union representative at the University. He is not the average party litigant and has skills and experience (including the ability to research matters on the Internet) which he can deploy.

[89]A feature of many of the events relied upon is that the claims he says arise from those events have evolved as the case had proceeded. It is difficult to understand how a claim can mutate from one of say an honest belief in discrimination on the grounds of philosophical belief to one of discrimination on the grounds of disability when that entails a wholly different reason for the 30 alleged discriminatory behaviour. I described the claimant’s approach in the previous Judgment as being a scatter gun approach. He has certainly now focussed on disability discrimination (no doubt because these were the matters left extant following the previous hearing) but it is difficult to understand why he considered so many apparently anodyne interactions with the respondent’s staff give rise to so many claims and this in turn gives rise to the suspicions, voiced by the respondent’s agents, that the claims are being manufactured; 5 old claims relabelled and matters made needlessly complex with the result, whether intentionally or not, the claimant’s behaviour is objectively unreasonable and should attract an award of expenses. I bear in mind that a litigant in person should be judged less harshly than a legally qualified person but the way the litigation is being conducted arguably does not seem to arise 10 wholly out of oversight, ignorance or inexperience.

Disposal

[1]A preliminary hearing took place on 1 November 2021 in order to consider reconsideration applications from both parties arising from the Employment Tribunal’s judgment dated 12 July 2021 (‘‘May PH Judgment’’). The respondent’s lawyers had set out the basis for their application in their email to the Tribunal dated 22 July 2021 found at pages 131-134 of the 5 Reconsideration Bundle (RB).

[2]The submissions were slightly confusing sometimes referring to Paragraphs in various Judgments and Better and Further Particulars. There were two folders of documents forming the Reconsideration Joint Bundle the first Inventory covering pages 1-153 lodged by the respondent and the second 10 lodged by the claimant covering pages 155-699. The latter contained an earlier strike out Judgment dated 14 August 2020 which was issued following a PH in June (‘‘June Judgment’’). This was helpful as it contained details of the various ‘‘Incidents’’ that the claimant originally founded upon.

[3]The claimant sought reconsideration by email dated 24 July 2021 (RBp135-15 146) of the most recent Strike out Judgment dated 12 July 2021 issued following a hearing in May 2021 (‘‘May Judgment’’). The two Judgments dealt with consideration of the claimant’s Better and Further Particulars which articulated the pleadings of the various conjoined claims in place before the June PH Judgment (‘‘BFP20’’) and the May Judgment 2021 (‘‘BFP21’’) The 20 Tribunal had to consider if the BFP21 were in part an amendment introducing new claims. This matter fell by the wayside when the claimant stated that he was not pursuing amendment. The Tribunal also had to consider the respondent’s application for expenses/deposit orders.

[4]I will deal with the respondent’s application first as it was dealt with first at the 25 hearing being the first application lodged. It was also convenient to allow Mr McLean to present the application first as it allowed the claimant to consider the legal basis underpinning reconsideration applications before presenting his own application.

[5]The procedural history of the case is important and requires some 30 explanation. The respondent’s made an earlier strike out application which led to the Tribunal issuing the June Judgment. That Judgment did not deal with all the claims raised by the claimant in his BFP20 and left the issue of deposit orders to another day whilst giving the claimant a limited opportunity of recasting his pleadings in relation to specific named matters. The claimant responded by lodging the BFP21 in December/January (RBp25-41) which the second strike out hearing in May 2021 addressed. That Judgment left open both the issue of deposit orders and expenses to allow the claimant to make 5 representations in person. It is the May Judgment that is the subject of the applications for reconsideration.

[6]Before the hearing began I invited parties to take part in a discussion about the way in which we should address the various issues. It was agreed that the reconsideration applications should be dealt with first and then the 10 question of the level of any deposit order granted and finally the expenses application. Respondent’s Submissions

[7]Mr Maclean first of all reminded the Tribunal about the terms of Rule 70 which 15 deals with reconsideration of Judgments. He also made reference to the “old Rules” which gave examples of the sort of circumstances in which reconsiderations could be sought. He stressed that the reconsideration was not an opportunity for a party to reopen the hearing and have a ‘‘second bite of the cherry’’. He made reference to the importance of the finality of 20 Judgments, to res judicata and also to rules regarding the admission of new evidence. The respondent’s solicitor then made reference to the written application that had been lodged and worked his way through the application. At suitable junctures there was discussion about the points being made.

[8]I narrate the application using the same headings as the written application 25 and setting out Mr Maclean’s position. (Where there is reference to the claimant’s ‘‘Submissions’’ that was reference to the claimant’s pleadings namely his Better and Further Particulars. It was also agreed that reference to ‘‘paragraphs’’ of the Judgment, when the reference was to the orders or awards contained in the operative part of the Judgment, should be referred 30 to as ‘‘points’’ or the number of the particular award/order). Point 4 (Award number 4) of the Judgment – Any claims for detriment or discrimination under Section 20 of the Equality Act 2010 arising from Paragraph 77 are struck out as having no reasonable prospects of success.

[9]The respondent’s solicitor made reference to Paragraph 77 of the June PH 5 Judgment and to the BFP20. The stated claim was for discrimination arising from disability under section 15 of the Equality Act 2010, and the respondent believed the reference in Point/Award 4 of the Judgment should therefore be to Section 15 of the Equality Act 2010. The same legislative reference was made at Paragraph 78 of the reasons. (This matter was common ground and both parties agreed that this should be allowed) Point 5 of the Judgment – The claim for automatically unfair dismissal in terms of Section 100 or otherwise having little reasonable prospects of 15 success will be subject to a Deposit Order the amount of which to be afterwards ascertained.

[10]In Paragraph 80 of the reasons in the Judgment it is stated that: “There is no basis pled for dismissal under Section 100 of the ERA. These allegations are 20 struck out as having no reasonable prospects of success.” Mr Mclean pointed to Paragraph 75 where it was stated that the claim for automatically unfair dismissal because of whistleblowing “has little prospects of success and will be subject to a Deposit Order in a sum to [be] ascertained later”.

[11]Mr Mclean submitted that both claims had been considered and that the order at point 5 of the Judgment should be split, and reflect that the claim for automatically unfair dismissal in terms of Section 100 of the ERA has been struck out; whereas the claim for automatically unfair dismissal because of whistleblowing under Section 103A of the ERA should be subject to a deposit 30 order of an amount to be afterwards ascertained.

[12]The claimant did not object to the clarification that was proposed but argued that both claims should proceed. He argued that there was a basis for his claim for unfair dismissal under Section 100 which related to leaving work for health and safety reasons as he thought it was unsafe for him to stay. He submitted that it would be preferable to make a deposit order rather than strike out this claim. Point 9 of the Judgment – The claim for a reasonable adjustment in Paragraph 35 relating to delay in concluding the claimant’s grievance shall be allowed as an amendment and shall proceed to a hearing reserving the issue of time bar.

[13]The respondent had noted that Paragraph 62 of the reasons stated in relation 10 to the alleged delay in concluding the grievance process that the Judge “cannot assess whether it has little reasonable prospects of success or not as much will depend on the factual reasons for the delay”. However, Paragraph 69 of the reasons stated that as “there is no reference to a PCP or to what the substantial disadvantage is […] In the circumstances I am of the view that there 15 are little reasonable prospects of success”, and stated that this aspect of the claimant’s claim was to be made subject to a deposit order. This was not, however, reflected in order 9 of the Judgment. Given that Paragraph 62 and 69 of the Judgment both deal with the claimant’s claim for a failure to make reasonable adjustments in relation to concluding internal processes and 20 procedures, he sought clarification as to whether order 9 of the Judgment should be altered to refer to this aspect of the claim also being subject to a deposit order of an amount to be afterwards ascertained. He referred to paragraph 22 of the respondent’s submissions contending that the failure to disclose a substantial disadvantage suffered by the claimant by virtue of any 25 alleged provision, criterion, or practice of the respondent’s, means that this aspect of the claim has at best little reasonable prospect of success, and so should be subject to a deposit order of up to £1,000.

The Legal Principles

[14]The claimant argued that the claim should proceed and that there was no basis to seek a deposit order. He had not made reference to PCP’s or substantial 30 disadvantage because the Preliminary Hearing order (RBp16) did not require him to do so. Paragraphs 63, 65, and 72 of the Reasons in the Judgment, dealing with Paragraphs 36, 38, 41, 42, 46, 47, 48, and 49 of the Claimant’s Submissions (BFP21).

[15]The respondent’s solicitor noted that in Paragraph 63, the Judgment referenced paragraphs 36 and 38 of the claimant’s submissions or BFP21 5 (RBp121) which are new and require amendment. In Paragraph 65, the Judge noted that paragraphs 41- 43 were new, and that 43 did not amount to a valid adjustment. In Paragraph 72 it was noted that paragraphs 46, 47, 48, and 49 of these particulars were new and required amendment. The respondent was unclear as to the outcome of these claims, and whether the amendment has 10 been permitted in relation to the claims outlined in paragraphs 36, 38, 41, 42, 46, 47, 48, and 49 of BFP21, or refused for the reasons outlined in paragraphs 21 and 24 of the respondent’s submissions. The respondent contended that the amendments should be refused for the reasons given in paragraphs 21 and 24 of the respondent’s submissions, which failing only allowed to proceed 15 subject to the issue of time-bar and a deposit order being fixed of an amount to be afterwards ascertained. Paragraph 74 of the Reasons in the Judgment, dealing with Paragraph 62 (and sub-paragraphs) of the Claimant’s submissions.

[16]In Paragraph 74 of the May PH Judgment it is noted that ‘‘there is no linkage or nexus with the disclosures’’; ‘‘interactions with Mr Lynch that seem unremarkable and again no indication of how this could relate to the disclosures’’. The respondent was unclear as to the outcome of these claims, and whether given the lack of such ‘‘linkage or nexus’’, and the ‘‘unremarkable’’ 25 nature of the interactions, the claims made in Paragraph 62 are to be struck out. The respondent contended these claims should also be struck out for having no reasonable prospects of success for the reasons given in Paragraph 25 of the respondent’s submissions, which failing only allowed to proceed subject to the issue of time-bar and a deposit order being fixed of an amount 30 to be afterwards ascertained.

[17]To the extent that the above issues should be considered to be grounds for a reconsideration rather than an accidental omission, the respondent submitted that the requests are in the interests of justice as it appeared that administrative errors may have resulted in an erroneous recording of a decision. In addition, they will enable a proper consideration of the key issues brought by the claimant, while complying with the overriding objective including dealing with the case in a manner proportionate to the complexity and importance of the 5 issues and saving expense. Reasonable Adjustment Paragraph 40 BFP21

[18]In addition the respondent requested reconsideration of decision to allow the claim for a failure to make reasonable adjustments under section 20 of the Equality Act 2010, brought by the claimant at Paragraph 40 (formerly 58 and 59) and dealt with at Paragraphs 70 and 71 of the Reasons in the Judgment, to proceed without the setting of a deposit order. The respondent believes this 15 request is in the interests of justice as it will enable a proper consideration of the key issue brought by the claimant, while complying with the overriding objective including dealing with the case in a manner proportionate to the complexity and importance of the issues and saving expense.

[19]It was submitted that at Paragraphs 70 and 71 of the Reasons in relation to 20 this aspect of the claim it was held, “We have no clear PCP and what appear to be discrete one-off decisions […] It is not clear what the substantial disadvantage is that would be avoided other than the general assertion that having the same line manager was stressful”. The respondent contended that given the lack of substantial disadvantage alleged by the claimant as a result 25 of the respondent not changing the line manager, this aspect of the claim has, at most, little reasonable prospects of success. It was therefore submitted that, as with the other claims for reasonable adjustments brought the claim should only be allowed to proceed subject to a deposit order under Rule 39 of up to £1,000.

[20]Mr Maclean concluded his submissions by indicating that in his view it was helpful to look at the claims that were left. He summarised these as follows:(a) ‘Ordinary’ unfair dismissal claim.

(b) A claim that the principal reason for dismissal was the claimant’s whistleblowing, and therefore that it was automatically unfair under section 103A of ERA 1996 (subject to deposit order).

(c) A claim of failure to make reasonable adjustments under section 20 of the 5 Equality Act 2010 in relation to the change in the claimant’s line manager around October/November 2019 (subject to deposit order).

(d) A claim of failure to make reasonable adjustments under section 20 of the Equality Act 2010 in relation to delays in concluding the grievance process (subject to deposit order).

[21]Mr Maclean explained that he had initially asked for a deposit order in relation to the claim for detriment under s.47(B)(1) of the Employment Rights Act 1996 in relation to the events surrounding the claimant being asked to find out what was happening during a student occupation in March 2018 but this should be 15 subject to a deposit order but in the interim period the claimant had agreed that this claim would not be pursued.

[22]The respondent’s agent suggested that in his view there were still preliminary issues namely the level of any deposit order if granted and whether the claimant was disabled for the purposes of the Equality Act, whether he made 20 a protected whistleblowing disclosure and if so, what to whom and when. He noted that Mr Lynch continued to be listed as a party and that the claims had been struck out and that he should be formally removed from the process. Claimant’s Submissions

[23]The claimant was then invited to respond and then take the Tribunal through his application for reconsideration (JB153-146). He asked to be allowed to start with the points made by the respondent’s lawyers on 2 August 2021 in their e-mail to him (RBp147). There was no objection to this course of action 30 and the claimant began with paragraph 4 which dealt with the issue of whether the claim being made arose from Section 15 or 20 of the Equality Act. He began by indicating that in his view the Judgment was void of any reference to the ET1 and to what he repeatedly described as the ‘‘core documents’’ contained in the various ET1 applications lodged including his earlier reconsideration that he had made which had been refused. He could not understand why the Tribunal was not familiar with those documents. He 5 suggested that the Tribunal had become confused and not realised that the “parking photograph” incident had been dropped and had never in his view been a separate claim. Accordingly, when the June 2020 Judgment dismissed the detriment claims it dismissed this “supposed claim” and the actual claim that was being made which related to a whistleblowing on the 7 10 November. (This led to a discussion of the Judgment during which I indicated to the claimant that whatever his feelings might be we were left with the June 2020 Judgment which was undisturbed as his appeal to the EAT had been unsuccessful and his reconsideration refused). The claimant suggested that the July 2021 Judgment compounded errors made in the earlier Judgment.

[24]At one point he suggested that he was not allowed to criticise the solicitor who had been tasked to deal with his grievance and that I had a ‘‘professional’’ or “personal” involvement with her. I stopped the claimant at this point and told him that I had no personal knowledge of, relationship with or other involvement with the solicitor nor any professional one other than her 20 appearing as a representative in cases before me. The claimant had checked the matter and told me that she had appeared in a recent case that I had dealt with at or around the time of the strike out hearing. Despite my suggestion that he should not persist with this he repeated the allegation, effectively of bias, at a later point.

[25]The claimant’s position was that he did not accept that the better and further particulars (sometimes referred to as the Submissions) that both the June 20 and July 2021 Judgments considered should have been taken as the totality of his pled claims. A letter he said attached to one of his ET1s had been ignored and that this was again a core document. I pointed out that he had 30 lodged numerous claims with many attached documents and he had been asked to put all his pleadings in the BFPs. He denied this.

[26]The claimant advised that he tried to have the first strike out Judgment reconsidered but this had been refused. He pointed out what he thought was an inconsistency in the Tribunal’s reasoning namely reference to him disparaging Mrs Kinmond professionally when this pleading detriments that he was complaining of. In his view the causal link had been clearly set out. 5 It all went back he said to the whistleblowing on 7 November 2018. It was absolutely clear from the better and further particulars that he had lodged that his claims arose from this incident and not from earlier ones. He made reference to (pages 104, 195). The detriment ultimately ended up in dismissal.

[27]The claimant’s position was that the Tribunal had no right to strike-out this claim (detriment) and that it had gone “too far, too fast”. He referred to paragraph 23 (RBp28). His view was that it should have been quite clear that it was a detriment claim. He continued referring to the past procedure and the Judgment in June 2020. He believed that it was unclear and that it’s terms 15 allowed him to lodge better and further particulars in relation to claims arising both from detriment (7 November whistleblowing) and reasonable adjustments.

[28]We discussed paragraphs 20 to 29 of the BFP21 (RBp20-29). He did not believe they should be seen in isolation. It boiled down in his view to the fact 20 that he was entitled to recast his pleadings and was not restricted from doing so.

[29]The claimant made reference to the failure of the respondent to give him a particular stress risk assessment (Paragraph 39 RBp109). I indicated that I had I considered the matter in Paragraph 64 of the July PH 2021 Judgment. 25 I should have made it clearer that obtaining a stress risk assessment is not in any event an adjustment. I explained what was meant by this. The employers had in any event taken the view that they could deal with the matter by way of a stress questionnaire. I appreciated that the claimant believed this was inadequate but the stress assessment is just a means of identifying 30 reasonable adjustments. He should have said what he thought the stress assessment would have led to or identified. He said he could not tell what it would have led to. Nevertheless, I indicated that if there was any claim for adjustment he would have had to set out what that adjustment actually should have been. The fact that there was a failure to provide him with a particular type of risk assessment was not in itself, as far as I could see, an adjustment. Mr Maclean intervened and indicated that in any event the right to make such claims had gone as they had been dealt with in the first strike out Judgment.

[30]The claimant commented that he had not mentioned PCPs in his BFP21 because they had not been mentioned in the order for better and further particulars. The incident that set matters off occurred during the third day of a student occupation (paragraphs 37 to 39). He felt he had been victimised from the earlier parking incident onwards. I suggested that his position was 10 broadly that because of this incident it could be said that he had fallen out with some managers and had become persona non grata. He agreed that this described how he came to be regarded. He believed that his claims had been buried in the confusion over whether matters were PIDS or protected acts. In his view he should be entitled to proceed with a lesser sanction being applied 15 namely that of a deposit order. I explained to him that a deposit order was only appropriate if there was a claim in existence.

[31]We then looked at the reconsideration application (RBp144) relating to harassment. The claimant asked me to allow this to proceed.

[32]Turning to the application for expenses he suggested that in relation to this 20 matter the Judgment disclosed that I was doing the job of the respondent. He stressed that he was a party litigant. In his view he had always obeyed the Tribunal orders. He went over the various claims that he had made. Mr Maclean had indicated that the first strike out Judgment was as he put it a line in the sand but three of his ET1s had been lodged after the Judgment 25 which had been sent out to parties in September. It had been agreed that no expenses would be sought in relation to the fifth claim. He had thought reading the June 2020 Judgment he was entitled to persist with the matter of reasonable adjustments and this is what he had done. He asked the Tribunal to stand by the earlier Judgment. He argued that there was no such thing as 30 an average party litigant. (Although the claimant did not make the overt suggestion of bias he indicated that he thought that I had done the respondent’s job for them).

[33]We looked at paragraphs 12, 13, 14, 15, 16 in order. The claimant’s position was that the burden of proof should move to the respondent. We discussed the data breach. This again was something he said he had been excluded from by his managers because they wouldn’t welcome his opinion. It was a detriment in his view. I queried that if the managers did not want his opinion 5 (I took it that it would be likely to be contrary to theirs) did that not provide a reason or explanation for their actions other than the somewhat historic whistleblowing. I also asked him to explain how it could be in any event amount to a detriment and his response was that the fact that his name was associated with the data breach was itself a detriment. I took from this he 10 believed that he would in some way be cast in a poor light). He again made reference to a cover up and the leaking of reports.

[34]At this point on the first day I indicated to the claimant that we were moving very slowly. He had asked to start with the respondent’s email dated 3 August 15 (RBp147-148) we had only now finished that and started on his reconsideration. I suggested that overnight he read his submissions and try and summarise his position. I advised him that I would give him some guidance and I suggested that he should try and summarise his position and conclude before 12pm if possible. Mr Maclean would then respond and then 20 we could then move on to the question of expenses. I advised the claimant that we should not get too tied up in the rights and wrongs of the various incidents but look at what the pleadings say. I said that I fully understood that it might be difficult for him to summarise and that I didn’t want to put any undue pressure on him but indicated that if at all possible we should make 25 every effort to try and finish within the two days allocated.

[35]On the following day the claimant observed at the outset that he thought that I had become frustrated and annoyed at the lack of progress and accordingly he was not now going to go through his reconsideration point by point but adopt a different way of approaching matters. I apologised if that had been 30 the impression I had given but I had a duty to conduct proceedings expeditiously and reiterated that I had thought that I had made it clear that while I did not want to put any undue pressure on him I had asked him to consider the presentation of his case overnight to think about ways of summarising the points he was going to make. If, as he now indicated, he was not going to go through the reconsideration point by point I cautioned that it might be to his disadvantage. I reminded him that although I said I would give him two hours to complete his submissions I had said that there 5 was some flexibility in that. The claimant was undaunted. He wanted to adopt what he described as a different approach.

[36]The claimant then returned to the 2020 Judgment on which he wanted to focus. He had been victimised in his view because he was a trade unionist and once he raised the question of protected acts in incidents 3 and 5. We 10 explored this once more. It appears from what he says is that the protected act he made in relation to disability discrimination amounted to him raising with his employers the fact that students in the occupation were not allowed to use the disabled toilet. (He was unaware if any actually were disabled). I asked him to consider whether or not students had any right to be in the 15 building in the first place as it was after all an occupation of a university administration building. I queried whether he would accept as a principle that if the students did not have a right to be in the building, except for engaging with the administration staff, whether in this situation they could have any right to use the disabled toilet. The claimant declined to engage in this discussion 20 indicating that he was not legally qualified to do so.

[37]We discussed the disabled parking bay again and in the course of this discussion it was clear that there was no actual disabled person refused access to the disabled bay he was aware of or the disabled toilet in the administration building. The claimant then took me to page 682 of the June 25 PH Judgment. He felt that I had not taken the claim there at it’s highest. In relation to expenses he had always complied with the orders and prepared the better and further particulars in good faith. He had suffered detriment through the actions of his employers. He asked me to ‘‘stand by’’ the June 2020 Judgment.

[38]We turned to page 67 of the June PH Judgment (RBp627). In his view this gave him authority to recast his pleadings and this is what he did. He did not add anything that had not been present before. The whistleblowing that had led to his dismissal was after 7 November 2018. The claimant wanted the section 100 claim to proceed. I intervened and said that my understanding was that the June 2020 Judgment had dismissed all the claims (including any Section 100 claim) and as that had not been appealed it was closed. In any event I was unsure how the claimant believed that such a claim could be 5 made. He had not resigned and not been sacked at the time of these events. I asked how what he was saying squared with the statutory terms of this section which I read out. He indicated that he left work because he felt it was an unsafe environment. He was ultimately dismissed for leaving work. He complained that a colleague had approached him visibly upset because 10 allegations had been made against himself by managers that he had damaged the IT system as part of the bullying that was going on. It got back to him that managers were saying that although he was off ill he had been drunk and dancing at a wedding. The claimant concluded that the work environment was “dangerous and unsafe” (On a number of occasions during 15 the presentation I asked the claimant to take a step back and try and look at events objectively. I explained that what the Tribunal was interested in was not in general his subjective experience but what he said he could prove about the motivation of his employers for the various actions complained about).

[39]I suggested to the claimant that perhaps his position was that there was a thread between the various incidents namely starting with incident 3 and 5 (actually following Incident 1 he said that there were various difficulties with his managers which led to a deterioration in his relationship with them). The claimant then said he was sure that Incidents 3 and 5 had nothing to do with 25 his later dismissal. I found this hard to square with what he had been saying earlier. The claimant then referred me to pages 628 and 629 of his Reconsideration Bundle which were pages from the June Judgment and asked me to substitute this grievance for the grievance that I had allowed to proceed.

[40]The claimant then turned to reasonable adjustments. He suggested that the failure to make reasonable adjustments was both a detriment and also a failure in terms of section 15 of the Equalities Act. In his view tying matters to the grievance of 4 October was too restrictive. There had been a number of interactions between him and his employers when he raised these difficulties. (Mr Maclean intervened and indicated that the respondent had no difficulty with this being amended. He accepted that there was not one grievance on 4 October but a number of grievances extending from 4 October 5 until November. We discussed and agreed that irrespective of any of the other arguments the Judgment would be amended accordingly to indicate that the grievances at issue were made at or around October or November.

[41]Referring to paragraph 88. (RBp128) he said that I was doing the respondent’s lawyers job for them. I had, he argued, no right to make the 10 observations I had made in that paragraph. This led to some discussion and I asked Mr Dawson whether he could indicate which of the observations he thought was wrong. I advised him that this was his opportunity to set out his own position. He declined my suggestion but said that there was no “average Employment Tribunal applicant”.

[42]The claimant then made reference to various adjustments being suggested by Occupational Health Reports (incidents 50, 59, 60 and 61). As he had said earlier these disclosed detriments and a failure to make adjustments and they formed the basis of the claim for automatically unfair dismissal and it was only fair that these claims were allowed to proceed. The claimant did not 20 advance any further arguments. I allowed a short break giving him an opportunity of checking his notes in case he had missed any matter. On his return he advised that he had nothing to add. Respondent’s Response

[43]Mr Maclean first of all responded to the claimant’s submissions in support of his reconsideration application. He started by pointing out that the June 2020 Judgment was in force and had not been successfully appealed. Incidents 3 and 5 were “out”. In any event there was no legal basis for the claims arising 30 from purported protected acts. He referred to the July 2021 judgment. It was quite wrong he suggested for Mr Dawson to suggest that the reasoning was infected by some misunderstanding. The reasoning was adequately set out. It was quite clear the claim made was under the Equality Act and TULCRA had been considered and had been struck out: only whistleblowing survived.

[44]The solicitor took issue with the claimant’s position that the better and further particulars prepared and lodged by him were not intended and known to be 5 intended to be the full measure of his claims. It was quite clear from exchanges of correspondence that he understood this to be the position (RBp44 and 45). He then took the Tribunal though those exchanges.

[45]Turning to matters that he believed were res judicata Mr Maclean pointed out 10 that the June 2020 Judgment allowed Mr Dawson only limited opportunity to recast his position in relation to the matters specifically mentioned. (There was then had a discussion in relation to Incident 56, (RB p626) which overlapped with Incident 51). It was Mr McLean’s position that they had been struck out.

[46]Turning briefly to the issue of the correct claims under sections 15/20 Equality Act claims it was clear that this was a typographical error and that the section 20 claim had been considered and rejected. In relation to any claim under Section 100 there was clear reasoning why this should not proceed from the 20 June 2020 Judgment. The only matter that was left was whistleblowing under section 103A.

[47]Mr Maclean indicated he was confused about the claimant’s position over incident 3 and 5. At some points he says it is important and then seems to 25 be suggesting it is not. He touched on what he thought was “left’’ following the June 2020 Judgment. In relation to any amendment the respondent’s position was that any amendment came too late and had not been made. The primary position was that the Judgment in June 2020 precluded the claimant re-raising any of these issues. 30

[48]Finally, the claimant argued that it had not been clear to him that the better and further particulars were taken as his full case. This ignored core documents and such as the Agenda document that had been lodged referred to the earlier PH hearings. Reasonable adjustments arose and should proceed if necessary subject to a deposit order. Amendment

[49]There followed a discussion about amendment and the timing and extent of any amendment. The significant problems with the pleadings had not been cured Mr McLean submitted. I advised the claimant that it was not clear what any amendment was to be and in the absence of any separate amendment document or the highlighting of the proposed amendments I found the matter 10 difficult to consider. Mr Dawson’s position was that there was no amendment required as he was entitled to put these claims forward. He thought that the better and further particulars simply augmented his earlier position set out in the various ET1 documents and Agenda. There was a lot of background he said in the better and further particulars because he thought a new Judge was 15 going to deal with the case. Mr Maclean intervened submitting that he thought it was unfair of the claimant to suggest some sort of subterfuge in his part in relation to the status of the better and further particulars as this had been clear from the exchange of e-mails that he had referred to. Deposit orders

[50]Mr Maclean then turned to the issue of deposit orders. He made reference to Rule 39(2) of Employment Tribunal rules and to a number of cases relating to whether the Tribunal should approach the matter meritorious claims should not be encouraged. The figure set should not go so far as to amount to a 25 strike out. The Tribunal should look at each issue.

[51]I explained to Mr Dawson that if he had been represented his representative would have been likely to lodge on his behalf documents vouching his income and general financial position. Mr Maclean had suggested that Mr Dawson 30 should give evidence in relation to his financial position. Accordingly, it would be appropriate to ask him to take the oath or affirm. I explained what was involved in this and that taking the oath or affirmation meant that the evidence was formal and if untrue there would be a potential penalty of perjury existed. I explained that it wasn’t unusual for someone to be asked questions in this manner but I would ask questions about his financial position first but allow Mr Maclean an opportunity to cross-examine him. The claimant indicated that he wasn’t prepared to take the oath or answer questions. He wanted to know 5 the consequences of his actions. I explained to him to a certain extent he was leaving an “open goal”. Mr Maclean’s submission would no doubt be that failure to take the oath and explain his financial position showed a lack of candour on his part. He suggested that given that he had in passing observed yesterday that he wasn’t working it might be to his advantage to participate in 10 this process. I advised him however that if he wasn’t prepared to answer questions or take the oath/affirmation then I couldn’t force him to do so but the matter would be open to comment including at a later date any final Tribunal hearing. The claimant rather surprisingly advised me that he had been confused and didn’t understand the position. I therefore went over once 15 more explaining what the oath was in terms of the rule and what was proposed namely, I would ask him questions about his financial and Mr Maclean would have an opportunity of asking questions in cross-examination. The claimant once more indicated that he was not prepared to take the oath, affirmation or answer questions on his financial position.

[52]In the light of this Mr Maclean’s position was that I should issue deposit orders for £1,000 per issue. This was a sufficient deterrent to make the claimant think about unmeritorious claims but not to amount to a strike-out. Mr Maclean submitted that as Mr Dawson had given no evidence of his means I 25 discharged my obligation under the rules I was entitled to make an order for the maximum sum of £1,000. Mr Dawson said that he had given evidence yesterday that he wasn’t working. I advised him that if this was the case and he wasn’t prepared to subject himself to further questioning Mr Maclean was entitled as he had to suggest that I should put no weight on this comment. Expenses

[53]We then turned to the issue of expenses. Mr Maclean referred to separate documents lodged in support of the application (RB p150-154). The cost of the litigation was now approaching £50,000 he said. They would restrict their claim to £20,000 being the sum that can be awarded without taxation. Mr Dawson had he said failed to answer questions about his financial position. 5 It must therefore be assumed that has a healthy capital position. Mr Maclean then indicated that the case contained voluminous correspondence, numerous unsavoury allegations including the suggestion that the respondent’s solicitors had acted in some Machiavellian way for example over tricking the claimant in some way over taking the better and further 10 particulars as the sole measure of the claims.

[54]More broadly he submitted that the majority of the claims had no reasonable prospect of success but had been insisted upon all this in his view redolent of unreasonable behaviour. The claimant should know better. He was given advice by the Tribunal on numerous occasions. He referred to the various 15 Notes of case management discussions that had been lodged.

[55]The claimant continued to look at matters on the basis of the impact on him rather than look at the employer’s motivation when seeking to make claims. An insight into his mindset was that he had made a comment on the first day that he felt he had been bullied at work and that Employment Tribunal claims 20 must arise from that. He had at an early stage made reference to the case of Bahl v The Law Society of England (which indicated that he must know that unreasonable behaviour does not give rise to any discrimination claims on it’s own unless the employer is acting because of a protected characteristic).

[56]The claimant argued that all the claims should proceed and that there was no basis to seek a deposit order. He had not made reference to PCP’s or substantial disadvantage because the Preliminary Hearing order (RBp16) did not require him to do so.

[57]He pointed out that as both parties had asked for reconsideration why should 30 he then pay for it. He went through the various entries the respondent’s lawyers had given of their expenses querying these. He had always tried to act responsibly and obey the Tribunal orders. He had never wilfully contravened any order or knowingly acted unreasonably. The fifth claim had been withdrawn under an agreement that no expenses was sought. He once more returned to the better and further particulars that he had lodged in December/January. He had thought that these were in accordance with the June 2020 Judgment and he was entitled to recast his reasonable 5 adjustments claim and it was unfair of Mr Maclean to refer to shifting sands or goalposts. It had not been clear to him what had been struck out. Both sides he submitted had indicated that there were problems with the June 2020 Judgment and he was entitled to recast his pleadings. In his view this is what he had done. He had not knowingly added any additional claims. These 10 were all matters that had their genesis in earlier ET1s/Agenda documents or other documentation. He accepted that his pleadings had not been easy to follow in parts and apologised for that but he was a party litigant. He then took the Tribunal through the history of the case referring to the various ET1s and what had happened at various points in the development of the case.

[58]In his written submissions the claimant submitted that he thought that it was unfair for the Judgment to deal with expenses as he thought it was only going to deal with Strike Out. He made various observations about the itemised expenses noting expenses were only claimed after June 2020. He queried if the expenses sought were properly claimed if his position was correct that his 20 BFP were allowed by the Judgement. He suggested that he was not responsible for the Judge fixing CMD hearings which the respondents had to attend. Errors in the Judgements were not his doing. Discussion and Decision Reconsideration

[59]The Tribunal has the power to reconsider Judgments. Rule 70 is in the 30 following terms: Principles “70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”

[60]This is a wide power that allows the Tribunal to reconsider the original Judgment and broadly put matters right that have gone awry in some way. As I have recorded there was common ground in relation to a number of a matters and accordingly the Judgment will be varied to reflect this. Hearing 1 and 2 November

[61]I narrated as best I can what transpired giving details of interactions and discussion where appropriate to ensure that the full background is given. The claimant was very anxious that all matters should be addressed. I have 15 considered carefully the Notes that that he submitted and believe that the various issues raised are recorded above.

[62]The first significant point he makes is that he did not understand that his BFP21 superceded earlier the ET1’s he had lodged and what he described 20 as core documents. It is true that at the first PH that took place on the 29 November advice was given as to what constituted pleadings (paragraph 9 onwards) and it was said that the BFP would augment the ET1. I think the claimant does not draw a distinction between documents for example grievances or grievance outcomes lodged with an ET1 (which was the 25 situation with the first case 4110829/19 which will form evidence in a case rather than be an articulation of claims being made. The ET1 in that case contained upwards of 119 separate sheets of papers with text, narrative, photographs and copy documents).

[63]There is an element of disingenuousness to the assertion that by the time of 30 the lodging of the second set of BFP in 2021 (now dealing with four conjoined claims) he was unaware that they were meant to be the distillation of all the claims being made. It is interesting to note that when the claimant lodged claim 4105478/19 (referred to as the fifth claim) he relied wholly on the last BFP21 reasoning that if they were struck out in the conjoined claims he could rely on them in the fifth.

[64]The claimant now complains that the strike out was dealt with in chambers. In an email dated 23 December from the Tribunal the claimant was reminded of his right to seek a public hearing when strike out was considered. It was 5 also suggested that if the claimant was now solely relying on the claims articulated in the BFP21 then the fifth claim was a duplicate. The claimant was also told once more that he had the right to ask for a hearing by email dated 18 January sent by the Tribunal Clerk.

[65]The claimant stressed that his Whistleblowing disclosure was his contact with Professor Boyne in November 2018 relating to the events of the student occupation. (In passing he did state in paragraph 16 of the BFP20 there was an earlier disclosure but that it did not trigger detriments). He is correct that the 7 November communication is noted in his first Agenda document as 15 being the disclosure he was founding upon. That matter was considered in the June Judgment and only a claim for reasonable adjustments allowed to proceed. It may be in retrospect that the claimant’s position that there was a claim for detriment though the employers deliberately not agreeing to reasonable adjustments together with separate claims for reasonable 20 adjustments was not clear at the time as the Judgment tried to focus on adjustments and there was no explanation why the refusal of adjustments which were decisions made by the claimant’s managers could be impacted by a Whistleblowing complaint made to the Principal.

[66]The claimant rightly acknowledges that the matter boils down to what he was allowed to do by the first Judgment and I trust that matter is now answered.

[67]I have tried to record the important interactions when discussion took place to highlight both that the claimant was given opportunities to explain his 30 reasoning for the basis of some claims he had made. It was important to understand his position fully both in relation to the claimant’s own request for reconsideration but also in relation to the respondent’s application for expenses and their expressed view that the claimant was intent on causing the respondent as much difficulty and expense as he could by pursuing multiple misconceived claims.

[68]The claimant returned on a number of occasions to the original car parking 5 incident that begins his history of incidents/interactions from which he draws claims suggesting that what he had done (highlighting by posting on the internet the misuse of the private University Disabled Bay by a Manager) was a protected act both in relation to his trade union activities and also in relation to the Equality Act. I asked him to take me through his reasoning on the 10 matter expressing a little scepticism firstly whether the use of a University disabled space was a matter that somebody who was disabled could raise a claim about and secondly on what basis did he think that he could raise the issue. His position was that the owner of the vehicle Mrs Ingles, was visibly angered by him raising the matter. He did not engage in an argument. He 15 said that the Manager, had the following day, insisted that he enter the occupied University administration building. This was he said putting him in a dangerous situation and was a detriment. It had also been sex discrimination. I asked him how these matters led to the claims he was making. His position was that being asked to enter the building prevented him being an active 20 trade unionist in some way and that in any event he was made to cross a picket line. I observed that his approach appeared to be that if something happened that he was upset or concerned then that meant that claims must arise where he must start with why something happened in the first place and why that was a breach of some obligation.

[69]Mr Maclean had intervened indicating that these matters had all been dismissed. This led to a discussion about the original July 2020 Judgment and the fact that it had not been successfully appealed. I indicated that even if I was sympathetic to the claimant’s position I could do nothing about it now. The only point of agreement that arose was that it was agreed that it should 30 be a reference to Mrs Dyker and not Mrs Ingles in the Judgment.

[70]The claimant also kept returning to incidents 2 and 3. It was, he asserted, clear that the original Judgment was wrong and his claim had nothing to do with protected disclosures but protected acts. He criticised the suggestion that there was no linkage: the link was he asserted obvious. The respondent had been involved in “nefarious conduct”.

[71]The claimant said in the course of the hearing that he was making a claim was because of the treatment of his deputy by the respondent (Paragraph 44. RBp34). This was a claim for reasonable adjustments. He indicated that his employers were bullies and had bullied him from his position in the University and forced his deputy to resign. They had been involved in white washing 10 the situation and blaming others for their own actions. He had been set up. His health and safety had been put at risk. I queried what he meant by this latter comment. His view was that the leaking of the report on the student occupation in which he was mentioned by the then Principal was a sinister and dangerous assault on him. Words had been put in his mouth by Mrs 15 Kinmond was as evident from the minutes.

[72]This led to a discussion about Minutes that had been taken. I was interested in understanding the claimant’s position (Incident 28/Paragraph 17 (RBp28)). The claimant believed they were inaccurate and words had been put in his mouth about him having trust issues with his managers. I explained that he 20 would be able to put his own position about their accuracy when the unfair dismissal claim proceeded to a hearing. I ventured that he should consider that if Mrs Kinmond was correct and the minutes had been taken by a trainee listening in to the meeting there was perhaps a basis from which that trainee might have inferred there were trust issues, even if these exact words had not 25 been used, if he had expressed the same sort of views at that meeting that he had expressed on numerous occasions before the Tribunal and in documentation. The claimant was adamantly of the view that the words had been placed in the Minutes deliberately specifically to assist the respondent dismissing him at a later date. (the Minutes were dated 6 December 2018 and 30 the claimant was dismissed in June 2020).

[73]I am afraid that the claimant seems to minimise just how forcefully he sometimes expresses himself about his managers and others. One example is that he had written to the University on the 5 September 2019 (R 194-197) making very serious allegations about Mrs Kinmond that she had acted contrary to her professional obligations, misrepresenting matters when investigating his grievance/whistleblowing and been party to ‘‘cronyism’’. She had, he alleged, been involved in trivialising his whistleblowing complaint and 5 exaggerating his grievance. A certain amount of hyperbole is understandable when someone feels aggrieved and it is not uncommon for parties to express strong or even intemperate views. The claimant has never been prevented from advocating his position. Disposal

[74]The first matter that needs to be stated is that it was not open to the claimant to re-open the earlier June PH Judgment. That Judgment was not successfully appealed nor was the refusal of the reconsideration. There are clearly some matters that are incorrect in the May PH and some that could have been better expressed and the respondent’s reconsideration shall be 15 granted effectively in full and the claimant’s in relation to some minor matters of correction.

[75]The claimant argued that he had not made reference to PCP’s or substantial disadvantage in his pleadings and it was unfair for them to be struck out for not containing these matters. The claimant was given guidance throughout 20 the proceedings about the need to look at the statutory basis for each claim. At an early stage the difference between direct and indirect discrimination as discussed and the need for a PCP to be identified. These matters are also flagged up in the initial Agenda documents. The claimant is correct that the Preliminary Hearing order (RBp16) did not specify all the elements that had 25 to be included but by that point he already had the June PH Judgment and should have been well aware of this requirement.

[76]The claimant also said that he was confused at the terms of that Judgment and did not know that many of his claims had been struck out. He believed he was free to recast all his reasonable adjustments claims. That was clearly 30 an error. I noted that he was given guidance at the PH that took place in November. It recorded (RBp16): ‘‘We then turned to the remaining conjoined actions. This led to a lengthy debate as to what the next steps should be. Mr Dawson expressed the view that he didn’t really understand from the strike out Judgment what he had to do. Mr MacLean expressed the view that he should focus on the Judgment carefully and prepare Better and Further Particulars as envisaged for the remaining claims. To assist Mr Dawson given the complex procedural history that has now enfolded over the months 5 since the issue of that Judgment I will give him 14 days from the date of issue of the Note to prepare Better and Further Particulars as envisaged in the Judgment…’’

[77]In making the order I was focussing on giving the claimant a fixed period to prepare BFP rather than specifying the elements that needed to be contained 10 in them. This matter was also related to the question of whether a deposit order would be made. Before the hearing I had raised whether the claimant was seeking to amend his claim. Mr McLean had also specifically raised this in his correspondence. The claimant argued that no amendment was necessary as the matters were left ‘live’ by the first Judgment.

[78]The starting point is the June Judgment. Paragraphs 58,59,60 and 61 of the BFP20 were allowed to be recast but only in so far as the circumstances narrated could give rise to claims for reasonable adjustments. The underlying complaint was a delay in dealing with grievances and possible changes to the working environment. It’s helpful to set these out. Paragraph 58 related to an 20 interaction with the claimant’s line manager on 4 October 2019 about Occupational Health recommendations. Paragraph 59 related to the 4 November and the issue of adjustments such as having a different line manager. Paragraph 60 related to the grievance not being heard in good time and whether there was a possible adjustment by the University of expediting 25 such processes. Finally, 61 relates to delay in actioning a grievance and whether a similar reasonable adjustment arises.

[79]We must then look to see what the claimant did with these in his BFP21 (RBp30 onwards) and how they were dealt with in the Judgment under review. The first point is that the claimant seems to have ignored the 30 ‘Incident’s referred to in his first BFP and started a consideration of reasonable adjustments at a much earlier point namely in February 2019. I have some sympathy with that as he was founding on an Occupational Health report of the 21 February but the headings make clear that he is seeking to add various reasonable adjustment claim starting from that date. I did not accept the explanation that this was simply background. For example, in paragraph 36 he poses the question what reasonable adjustments should have been carried out and answers it thus: ‘‘The Respondent should have 5 obtained my consent and agreement for the February 2019 referral to Occupational Health. The Respondent should not have threatened me to be in breach of contract if I did not attend. The Respondent should have rearranged the appointment….’’

[80]Even if these pleadings had been able to have been allowed standing the 10 terms of the June Judgment it would require an amendment and the pleadings themselves contain many adjustments that are not on the face of them likely to be held to be reasonable adjustments in themselves. In the course of the hearing I tried to explain to the claimant that the issues raised by him in relation to being referred or not referred or allowing self- referral to 15 Occupational Health did not amount to reasonable adjustments in themselves. Referral was a means to an end that end being the identification of reasonable adjustments. To make a claim for a reasonable adjustment in these circumstances means that a claimant has to set down what they think the outcome of the Occupational Health referral would have been for example 20 suggesting a cut in hours/workload or whatever. In the various paragraphs of his pleadings under consideration in the May Judgment, he disagreed with the stress risk assessment actually used by the line manager (Paragraph 39 of the Submissions/BFP21) and thought that a different more detailed one should have been used. I suggested that this seems to raise the same issue 25 as before namely an assessment was a means to and end not an end in itself.

[81]It was very difficult to wade through the long narratives and distil some adjustment from the text as much of it consisted of the claimant believing that reasonable adjustments were essentially the employer’s managers doing what he suggested or doing things differently from the way they did. The 30 pleadings are complex and prolix and if these were meant to introduce new claims by amendment then that is refused. In the May Judgment my view was that the only clearly stateable adjustment related to the delays in dealing with his grievance and to change his line manager. That remains my view.

[82]The Judgment was perhaps not as clear as it could have been in relation to Paragraph 62 of the claimant’s BFP21. That paragraph does appear to be a 5 summary of the preceding claims and not an iteration of claims itself. For the avoidance of doubt I will alter the Judgment to make this apparent by adding specific reference to this paragraph. The claimant’s reconsideration is not well founded for the reasons I have discussed and other than some minor alterations in the May Judgment proposed by him his reconsideration is 10 refused. The respondent in their application have carefully analysed the pleadings and have made suggested alterations which are in accordance with the reasoning set out there and being well founded is granted. In order ensure that changes to the Judgment are clear to parties following the reconsiderations I will revoke the Judgment and repromulgate it with the 15 changes discussed here. I understand that an appeal has been marked and this will hopefully allow parties to work from a ‘clean’ version of the Judgment.

[83]The issue of Mr Lynch still being a party to proceedings was raised but we did not have time to explore the issue in any detail. I am not sure why the 20 claimant disagrees that he should no longer be a party. If the respondent has given an assurance that they will not use the statutory defence then I struggle to see grounds for him to remain as a party. I will deal with this matter separately as a case management matter. Deposit Orders

[84]Rule is in the following terms: Deposit orders “39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal 30 considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential 5 consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. 10 (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a)the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the 15 contrary is shown; and (b)the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs 20 or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.” Expenses

[85]The Rule governing such applications is Rule 76:- “When a costs order or a preparation time order may or shall be made 76(1) A Tribunal may make a costs order or a preparation time order, 30 and shall consider whether to do so, where it considers that - (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the 35 proceedings (or part) have been conducted; or(b)any claim or response had no reasonable prospect of success.”

[86]Although there have been changes to what could be described as the expenses regime over the years an award is still the exception rather than 40 the rule. There are good policy grounds for this around ensuring that litigants are not deterred from making claims by the fear of incurring expenses if they lose.

[87]The terms of Rule 14(1) of the earlier 2001 Rules used the same formulation as later versions of the rules namely that the trigger test was acting ‘vexatiously, abusively, disruptively or otherwise unreasonably, or the 5 bringing or conducting of the proceedings by a party has been misconceived’.

[88]In most cases the unsuccessful party will not be ordered to pay the successful party’s costs; see McPherson v BNP Paribas (London Branch)

[2004] IRLR 558

per LJ Mummery at paragraphs 2 and 25:- “Although Employment Tribunals are under a duty to consider making an order for costs in the circumstances specified in Rule 14(1), in practice they do not normally make orders for costs against unsuccessful applicants. Their power to make costs orders is more 15 restricted than the power of the ordinary courts under the Civil Procedure Rules; it has also for long been generally accepted that the costs regime in ordinary litigation does not fit the particular function and special procedures of Employment Tribunals. It is, therefore, not surprising that the Employment Tribunal Rules of Procedure do not 20 replicate the general rule laid down in CPR Part 38.6(1) that a claimant who discontinues proceedings is liable for the costs which a defendant has incurred before notice of discontinuance was served on him. By discontinuing the claimant is treated by the CPR as conceding defeat or likely defeat. The Tribunal rules of procedure make provision for 25 withdrawal of claims in Rule 15(2)(a), but the costs consequences are governed by the general power in Rule 14.”

[89]The then President of the EAT, Mr Justice Burton in Salinas v Bear Sterns International Holdings Inc UK/EAT/0596/04DM noted at paragraph 22.3 30 that “something special or exceptional is required” before a costs order would be made and, even if the necessary requirements of Rule 14 are established, there would still remain a discretion of the Tribunal to decide whether to award costs. The matter is one for the Tribunal’s discretion. In Benyon & Others v Scadden

[1999] IRLR 700

it was made clear that the discretion given to 35 Tribunals and courts is not to be fettered.

[90]It should also be borne in mind that a litigant in person has to be judged less harshly than a professionally represented litigant. (See AQ Ltd v Holden

[2012] IRLR 648

[91]The present case is in my judgment a case that falls into the category of being exceptional for a number of reasons. The claimant lodged five ET1 5 applications (four of which are conjoined in the current proceedings). That is unusual but not exceptional in itself but what is the whole circumstances here. Firstly, there is the plethora of claims that were originally made and which were contained in the claimant’s BFP (RBp394-436) containing some 65 paragraphs over 42 pages detailing incidents or circumstances from which 10 multiple claims were said to arise. These various incidents were addressed in the June 2020 strike out and the vast majority held to have no reasonable prospects of success.

[92]Following that hearing the claimant recast his pleadings to make numerous claims for reasonable adjustments including claims arising from matters dealt 15 with at the first strike out. He did not ultimately ask to amend but rather argued that the first Judgment allowed him to pursue these claims. Throughout these proceedings the claimant has persevered with claims that he must reasonably know he cannot rationally justify and are baseless. When asked to explain how such claims could arise he refused or was unable to explain his thinking. 20 This all occurred when the claimant must have known perfectly well that most of his claims could never amount to valid legal claims. In his overall conduct of the case while I accept that he has obeyed case management instructions the overarching approach has been to pursue meritless claims.

[93]I will briefly refer to the first and penultimate paragraphs of the first BFP 25 (RBp394and p435) as they are illustrative of the approach taken by the claimant both at that stage. The first incident relates to a conversation the claimant had with one of the respondent’s managers. He asserts that five claims arise but no proper basis is set out. In Paragraph 64 an email postponing an internal grievance hearing is said to give rise to ten claims 30 ranging from discrimination on the grounds of his philosophical beliefs to detriment as a whistleblower. Looking at the various incidents it was difficult to decern what the viable claims were leading to a considerable amount of time and effort being expended by the Tribunal and the respondent’s solicitors in trying to understand the matters pled.

[94]However, it is noteworthy that the these BFP are not narratives of events as sometimes occurs they are structured by the claimant giving the date of the Incident, those involved, the claims that arise, the facts relied upon and 5 whether there is a comparator. In passing the claimant suggested that it was unfair to criticise his later BFP because no comparator’s were mentioned yet he was aware that this was needed when preparing his earlier BFP. It was in any event a matter canvassed at the case management hearing that took place in November 2019 and reflected in the orders promulgated that gave 10 rise to the first BFP. In paragraph 12 it recorded: ‘‘I indicated that I would make Orders that the claimant address first of all his specific statutory basis for his claims. The facts underpinning them and the detriments or less favorable treatment he believes resulted’’. I specifically raised the need for the claimant to address the motivation of the employer. The Note is worth 15 quoting: ‘‘9. We then spent some time discussing the ET1 and the further information the claimant had included in the Agenda document. I pointed out that what is in the Agenda document is not strictly speaking pleadings. In 20 order to become pleadings the claimant would have to prepare document headed Better and Further Particulars to augment what is in his ET1.10. I observed that I struggled a little to see the basis of the claims made by 25 the claimant and the nexus or connection between the facts that he sets out in some detail and any possible breach of the Equality Act or other statute. I took some time to explain what I meant by this. I noted that the respondent’s Agenda document raised a number of preliminary issues. 30

11. The claimant advised me that the matter had started with a parking issue and then he became involved events surrounding a student occupation. It affected him badly. He believes that he has some form of PTSD and was then off ill. He was upset that he was not interviewed as a witness 35 as part of the investigation that took place and feels that this for example was disability discrimination. We explored this. I suggested that a failure to interview the claimant whilst unwell might have an innocent explanation but even if it didn’t the fact that the employer had acted in some way unreasonably did not answer the question of why there was a particular form of discrimination at work or some detriment arising out of whistleblowing, trade union activities or whatever.’’

[95]The claimant was also given advice about identifying the issues and keeping them separate from background information. It was clear that he had put all the Incidents on which he relied in one documents namely the BFP. Following 5 the strike out hearing In June 2020 at which numerous claims were struck out the claimant was also warned about amending in new claims as he might be accused of manufacturing such claims. The need to set out PCP’s was also raised at the Preliminary Hearing that took place in October 2020 (Rbp5). The respondent made reference to the PH Note that was issued following the case 10 management hearing in November 2020 (RB3-19) that also provided the claimant with guidance about following the requirements of the section of the statue he was making a claim under. He was advised again that unreasonable behavior was not in itself proof of discrimination. At paragraph 15 it said: ‘‘He should look at what is required by the statutory section he is invoking 15 and make sure the facts he sets out are sufficient to found such a claim. In section 13 of the Equality Act to amount to direct discrimination a claimant must show they were treated less favourably that others would have been treated and the difference is because of a protected characteristic. He should bear in mind what has been said on previous 20 occasions namely that an employer’s unreasonable actions does not mean (on its own) that there has been discrimination of any particular sort.’’

[96]The claimant took exception to the observations recorded in the July 2021 25 Judgment which bear repeating here: “88. I do not minimise the difficulties that party litigants face when drafting pleadings especially in discrimination cases. The claimant also has mental health issues which are referred to in the report he has lodged. 30 He has not suggested how this impact on his actions. He is clearly an able person and has demonstrated this in a number of ways such as the detailed research he has carried out on issues and the lengthy and complex nature of his pleadings. He was also a Trade Union representative at the University. He is not the average party litigant and has skills and experience (including the ability to research matters on the Internet) which he can deploy.”

[97]Another noteworthy feature of his case is that the claimant is not an average party litigant who commonly would have little knowledge of the law or Tribunal 5 processes. Although I invited him to say which of these observations he disagreed with he would not do so and simply said that there was not such a thing as an average party litigant. The matter can be put in another way. The claimant has demonstrated considerable aptitude in getting to grips with the relevant law and the Tribunal Rules and procedures. He has the ability to 10 research and understand legal matters. I would give one example namely he wrote to the Tribunal in March 2020 prior to the first strike out application quoting, summarising and applying upward of twenty relevant case authorities. He has shown he is able to demonstrate similar abilities throughout the conduct of the case including being able to understand and 15 comply with Orders.

[98]The claimant denies that he is manufacturing spurious claims and says that the June Judgment left the way open for his to set out what reasonable adjustments he should have had. He did not seem to appreciate that the June Judgment was not successfully appealed and rightly or wrongly he must live 20 with that. The Judgment stated that all claims were dismissed other than those specifically reserved as arising from named incidents. That cannot be seen as a green light to start again.

[99]For completeness, the claimant mentioned that he had put more background into BFP21 because another Judge was likely to deal with the second strike 25 out and that it was in some way unfair both that I dealt with that matter and there was no hearing. It is true that in December I had hoped that another Judge could deal with the second strike out. This was intimated in an email dated 21 December to parties. The respondent’s position was that I should deal with the second strike out application given my knowledge of the case. 30 The claimant did not comment. I will not quote all the correspondence but the claimant emailed on the 12 January confirming he was content that the strike out should be dealt with by me on the basis of written submissions. In the email dated 18 January the Tribunal set out it’s understanding thus: ‘‘the Judge notes that there appears to be agreement as to the future course that should be followed. He therefore agrees that the five claims are conjoined and the claimant’s BFP are accepted as the narration of the claims’’

[100]The respondent’s in their submissions took issue with the claimant’s 5 approach characterising it as unreasonable and one where ‘‘old’’’ claims had been re-labelled. They referred to the case of Keskar v Governors of All Saints Church of England School (

UKEAT/0007/18

) where it was said that the Tribunal should consider whether the claimant ought to have known the claims have no prospects of success. I regret to say that this is the conclusion 10 I have drawn. Not only from the claimant’s willingness to use quite intemperate language but more crucially from his reluctance to be prepared to discuss the rational basis for some claims, to acknowledge the difficulties such as lack of direct evidence, in the face of and despite the case management advice, his own resources and knowledge and the previous 15 lengthy strike out process and Judgment that examined his many claims in some detail leads me to conclude that he did and does know better. I conclude that the Rule is engaged and that his conduct in leveling so many claims against the respondent is unreasonable behavior and designed to cause the utmost expense and inconvenience.

[101]The claimant refused to assist the Tribunal consider his financial position in relation to Deposit Orders and it was explained that any such information would be part of the overall picture the Tribunal would consider when looking at expenses. The claimant did observe in passing at one point on the first day that he was unemployed. Mr McLean asked me to discount this as the 25 statement was not given under oath. I do not, however, believe the claimant would seek to mislead the Tribunal on this matter and am prepared to weigh it in the balance. I also weigh in the balance the fact if we are just looking at the expenses incurred following the June Judgment some of those expenses might probably not have been avoided for example the respondent would no 30 doubt have sought reconsideration anyway. I accept that the likely cost to the respondent in legal fees probably approaches or exceeds £50,000. I also note that they considerably restrict what they are claiming.

[102]The claimant’s actions have markedly increased the cost and complexity of the case through his clear intent to maximise the number of claims he can lay at the respondent’s door irrespective of whether he considers that there is a logical basis for doing so. He is an able and intelligent man who is well able to research the law and this leads me to conclude that he knows full well what 5 he is doing irrespective of any psychological motivation or drive he has to act in this way. Nevertheless, I am not prepared to award the sum sought bearing in mind that this is a substantial sum for a private individual to raise and the respondents have ‘‘broad shoulders’’. In all the circumstances I conclude that it would be appropriate to award the sum of £7000 in expenses as being 10 an appropriate award to reflect part of the cost the respondent has been put to through his actions. Employment Judge J Hendry Date of Judgement 26 November 2021 Date sent to parties 26 November 2021 E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4105478/2020 Claimant: Mr D Dawson Respondent: University Of Aberdeen CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 In accordance with the power set out in Rule 69 of the Employment Tribunal Rules of Procedure 2013, I hereby correct the clerical mistake(s), error(s) or omissions(s) in the Judgment sent to the parties on 26 November 2021, Add after Neil McLean where it appears in line 24, page 1 after the word ‘‘Solicitor’’ the following: ‘‘accompanied by Ms S Leslie Solicitor and Mrs D Dyker Director of People University of Aberdeen’’ An amended version of the Judgment is attached. Important note to parties: Any dates for the filing of appeals or reconsideration are not changed by this certificate of correction or the amended Judgment or Case Management Order. 30 These time limits still run from the date of the original Judgment or Case Management Order, or if reasons were provided later, from the date that those were sent to you. Employment Judge J Hendry Date 13 January 2022 Sent to parties 13 January 2022 EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4105478/2020 Held on 1 & 2 November 2021 Employment Judge J M Hendry Mr D Dawson Claimant In Person University of Aberdeen Respondent Represented by Mr N Maclean, Solicitor

Disposal

[1]The Respondent’s Reconsideration is granted and the Judgment dated and sent to parties on the 12 July 2021 is revoked and repromulgated 30 but varied as follows: A) to change reference at order 4 of the first page of the Judgment from Section 20 of the Equality Act to Section 15. B) Order or point number 5 on the first page of the Judgment shall be deleted and shall now read as follows: 35 ‘‘5A The claim under Section 100 of the Employment Rights Act is struck out as having no reasonable prospects of success. 5B The claim for automatically unfair dismissal under Section 103A of the Employment Rights Act having little reasonable prospects of success shall be subject to a Deposit Order in the sum of £500’’. C) The Judgment shall be varied to delete order number 9 and substitute: ‘‘The claim for reasonable adjustment in Paragraph 35 relating to prolonged delay and uncertainty in concluding the claimant’s grievance shall be allowed as an amendment and shall proceed to a hearing reserving time bar and subject to a Deposit Order in the sum of £500.’’ D) The Judgment shall be varied to add on the first page a further order 9 B in the following terms namely: ‘‘The claims in paragraph 40 relating to reasonable adjustments over supervision and line management 5 having little reasonable prospects of success shall be subject to a Deposit Order in the sum of £500’’. E) The Judgment shall be amended to add an additional order 9C namely: ‘‘9C Any claims arising from Paragraph 62 having no reasonable prospects of success are struck out’’. The Judgment shall be amended 10 to add an additional order as follows:‘‘10A Other than the claims referred to in points 1 to 9 of the Judgment all other claims for reasonable adjustments are struck out’’. F) The Judgment shall be varied to delete the last sentence in paragraph 62 at 11. G) The Judgment shall be varied to add the following to the end of paragraph 74: ‘‘Paragraph 62 seems to summarise earlier claims and adds no new facts. I have dealt with these matters which I regard as having no reasonable prospects of success. However, for the avoidance of doubt if it is meant to set out separate claims for harassment, 20 detriment or disability discrimination it fails to do so adequately and they are struck out’’.

[2]The claimant’s reconsideration is allowed to the extent: A) The order or point number 10 of the Judgment is varied to delete ‘‘on 25 October 2019’’ and to substitute ‘‘at or around October and November 2019’’. B) At page 21 of the Judgment line reference to Mrs Dyker shall be deleted and Mrs Inglis substituted. C) At Paragraph 39 line 20 and 21 the words ‘‘neither appealed nor was a 30 reconsideration sought’’ shall be deleted and the following substituted ‘‘appealed to the EAT unsuccessfully’’. D) At Paragraph 75 line 18 delete ‘‘two years earlier’’ and substitute ‘‘some 19 months earlier’’.

[3]The Respondent’s application for expenses succeeds and the claimant 35 shall pay the Respondent the sum of Seven Thousand Pounds (£7000) as expenses.

The Legal Principles

[20]Mr Maclean concluded his submissions by indicating that in his view it was helpful to look at the claims that were left. He summarised these as follows:(a) ‘Ordinary’ unfair dismissal claim.

(b) A claim that the principal reason for dismissal was the claimant’s whistleblowing, and therefore that it was automatically unfair under section 103A of ERA 1996 (subject to deposit order).

(d) A claim of failure to make reasonable adjustments under section 20 of the Equality Act 2010 in relation to delays in concluding the grievance process (subject to deposit order).

[31]We then looked at the reconsideration application (RBp144) relating to harassment. The claimant asked me to allow this to proceed.

[66]The claimant rightly acknowledges that the matter boils down to what he was allowed to do by the first Judgment and I trust that matter is now answered.

[88]In most cases the unsuccessful party will not be ordered to pay the successful party’s costs; see McPherson v BNP Paribas (London Branch)

[2004] IRLR 558

[1999] IRLR 700

it was made clear that the discretion given to 35 Tribunals and courts is not to be fettered.

[90]It should also be borne in mind that a litigant in person has to be judged less harshly than a professionally represented litigant. (See AQ Ltd v Holden

[2012] IRLR 648

UKEAT/0007/18

[1]Any claim for harassment arising from Incident 1 having been withdrawn is dismissed.

[2]Any claims arising from Incidents 23 and 30 (Paragraphs 15-32) and are struck out as having no reasonable prospects of success along with any claims for detriment said to arise from incidents 30 described in Paragraphs 17, 18, 19, 20, 21, 23, 26 and 28.

[3]Any claims arising from Paragraphs 37, 39, 44, 45 are stuck out as having been already struck out previously and as such being res judicata and in any event having no reasonable prospects of success.

[4]Any claims for detriment or discrimination under Section 20 of the 35 Equality Act 2010 arising from Paragraph 77 are struck out as having no reasonable prospects of success.

[5]The claim for automatically unfair dismissal in terms of Section 100 or otherwise having little reasonable prospects of success will be subject to a Deposit Order the amount of which to be afterwards ascertained.

[6]Any claims in Paragraph 82 that the Claimant’s dismissal related to 5 either his Religious or other beliefs having no reasonable prospects of success are struck out.

[7]Any claims for harassment/victimisation arising from Paragraphs 7-15 are struck out on the grounds that they have no reasonable prospects of success.

[8]Any claim for detriment arising from Paragraphs 7-15 (Incidents 3 and 5) will be subject to a Deposit Order the amount of which to be afterwards ascertained.

[9]The claim for a reasonable adjustment in Paragraph 35 relating to delay in concluding the claimant’s grievance shall be allowed as an 15 amendment and shall proceed to a hearing reserving the issue of time bar.

[11]The application for expenses is reserved meantime.

[1]The claimant raised various claims against his employers having commenced some claims whilst in employment and following his dismissal, further claims including a claim for unfair dismissal. I will refer to claims 4110829/2019 and 5 4114716/2019 as the first and second claims and claim numbered 4104157/2020 as the third and 4104107/2020 as the fourth. The claims have been conjoined.

[2]It would be pointless rehearse the long procedural history of the case at least 10 at the outset. The claimant’s Better and Further Particulars lodged on 16 December 2020 superseded all previous pleadings and encompasses all claims both pre and post dismissal.

[3]Some historical matters however, must be touched on. The first and second 15 claim proceeded to a strike-out hearing on 18 June 2020 (June PH Judgment) and following that hearing many of the claims made were struck out. However, the claimant was given an opportunity of recasting his pleadings in relation to some remaining claims which he has done in his Better and Further Particulars.

[4]Both parties lodged written submissions. The respondent’s submissions were lodged on 4 February 2021 and the claimant’s submissions were contained in correspondence but his primary position was set out by him in the Better and Further Particulars itself which contains an amalgam of pleadings and submissions.

[5]One further matter should be mentioned and that is there was a fifth claim (4105478/2020). The Tribunal understood that because the fifth claim was in effect a duplicate of earlier claims (which the claimant accepted) and that as such it given it served no purpose should be dismissed. I accordingly 30 dismissed the fifth claim believing that the claimant had consented to this. There appears perhaps to have been some misunderstanding about this matter with the claimant later arguing after the dismissal that it should not have been formally dismissed but simply rolled up into the other claims. The claimant seems in retrospect had become concerned that the recording of the dismissal in the public record might reflect in some adverse way on his current claims against the University. The dismissal as is normal practice simply refers to the claim number and not the type of claims that have been dealt with. The 5 decision in any event has not been appealed and the fifth claim remains dismissed.

[6]The claimant also wrote to the Tribunal on 3 February 2021 enclosing a copy of a report from a Dr. Michael Bott, a Consultant Psychiatrist. In the conclusion 10 of the report the claimant is noted as having been diagnosed with having what is termed an ‘‘Adjustment Disorder and Post Traumatic Embitterment Disorder’’. I record this as the claimant has asked the Tribunal to take this into consideration when determining the respondent’s strike out application. It is not clear how such information can impact on the strike-out application itself 15 which is an exercise in considering the pleadings. The strike out application must be dealt with in accordance with the Employment Tribunal Rules and any sympathy the Tribunal has for the claimant’s medical condition (which has not yet been the subject of any factual enquiry by the Tribunal or acceptance by the respondent) cannot sway it’s decision except perhaps in the limited 20 circumstances where it is considering whether the claimant is likely to succeed at some point in proving he was disabled by this condition at the time of events. It is unclear if the report is being used to try and assist the claimant with any issue of amendment but I think not as it does not suggest that the claimant was hindered because of his condition in taking timeous action against the 25 University but it may have some relevance is assessing the claimant’s behaviour when considering expenses. Strike Out Application

[7]The respondent’s application for strike-out is made under Rule 37. They seek 30 strike out of the whole claim which failing strike out of various claims. In relation to certain incidents, they also seek as an alternative a Deposit Order to be put in place before those claims proceed. This case is not easy to follow so I will begin with the respondent’s submissions but this Judgment should be seen as a continuation of the earlier strike out Judgment. Respondent’s Submissions

[8]The respondent’s solicitors remain concerned at the claimant’s behaviour in particular the lodging of multiple claims and the 5 reintroduction of ‘‘old’’ claims causing the maximum burden on the respondent and their agents. They doubt that he is acting in good faith. They draw attention to the report from the claimant’s physician Dr Bott and how his condition may be driving his behaviour.

[9]The respondent’s position was that the June PH Judgment allowed the claimant to articulate claims arising from the events pled at the point of the first strike out application namely in relation to specific incidents (58,59 and 60). After the first strike out hearing we were left dealing with two disability discrimination claims involving an adjustment relating 15 to expediting the internal appeal/grievance process and change of a line manager (60). The claimant referred to four incidents in his pleadings (58 and 59): a change of line manager in October/November 2019 and (60 and 61) delays around the grievance process.

[10]The claimant has they noted expanded the list of possible reasonable adjustments (Paragraphs 33 onward). The respondent’s position was that matters dealt with in the June PH Judgment are now res judicata and the new adjustments that are pled should be dealt with as an amendment. They submitted that the application should be refused as 25 being considerably out of time and that it would significantly add to the breadth of the matters before the Tribunal with the implication that it would add considerably to the time and expense involved in dealing with these matters.

[11]The new or resurrected causes of action according to the respondent’s agents were detailed as follows: a) Paragraph 34 – the claimant’s allegations in relation to the reallocation of the CCTV project originally cast as “Incident 37” and which was struck out by para 139 of the PH Judgment. The incidents cited by the claimant took place on 04/03/2019 and 28/03/2019 and 5 therefore to the extent not covered by the strike-out decision in para 139 of the PH Judgment, are out of time. b) Paragraph 36 – the claimant’s objections to the Occupational Health appointment on 31/01/19 and the warning that not attending Occupational Health appointments was a breach of his contract were 10 originally cast as “Incident 36” and was struck out by para 137 of the PH Judgment. The incidents cited by the claimant took place on 30/01/19, 21/02/19 and 29/03/19 and therefore to the extent not covered by the strike-out decision in para 137 of the PH Judgment, are out of time. c) Paragraph 37 – the claimant’s dissatisfaction with his meeting with Professor Leydecker was originally mentioned under “Incident 42” and allegations in relation to this, including a failure to make reasonable adjustments, were struck out by para 146 of the PH Judgment. The claimant’s attempt to resurrect this claim should be refused on the 20 grounds of res judicata. d) Paragraph 38 – this is the first time in the context of the claimant’s various tribunal claims that the claimant has formally raised complaints about not being able to send an email to colleagues to “clear his name” in September 2019, and not being allowed to work 25 from home. To the extent the BFPs are taken as an application to amend, the events having taken place in September 2019, the application should be dismissed in this regard on the basis of time-bar. e) Paragraph 39 – the claimant’s issues with what he regarded as the 30 recommended HSE risk assessment tool were originally cast as “Incident 51” and were struck out by para 161 of the PH Judgment. The incident cited took place on 11/09/19 and therefore to the extent not covered by the strike-out decision in para 161 of the PH Judgment, is out of time. f) Paragraph 41 – this is the first time in the context of the claimant’s various tribunal claims that the claimant has stated a belief that the Respondent failed in its duty to make reasonable adjustments by not 5 referring him to counselling on 30/08/19. To the extent the BFPs are taken as an application to amend, the alleged failure having taken place in August 2019, the application should be refused in this regard on the basis of time-bar. g) Paragraph 42 - this is the first time in the context of the claimant’s 10 various tribunal claims that the claimant has stated a belief that the respondent failed in its duty to make reasonable adjustments by not allowing him to acquire additional annual leave on 03/09/19. To the extent the BFPs are taken as an application to amend, the alleged failure having taken place in September 2019, the application should 15 be refused in this regard on the basis of time-bar. h) Paragraph 43 – this is the first time in the context of the claimant’s various tribunal claims that the claimant has stated a belief that the Respondent failed in its duty to make reasonable adjustments by Mr Henderson not progressing a referral to Occupational Health. To the 20 extent the BFPs are taken as an application to amend, the alleged failure having taken place in November 2019, the application should be refused in this regard on the basis of time-bar. i) Paragraph 44 – the claimant’s issues with Dr Marie’s grievance appeal hearing was originally described under “Incident 62” and allegations in 25 relation to this, including a failure to make reasonable adjustments, were struck out by para 183 of the PH Judgment. The claimant’s attempt to resurrect this claim should be refused on the grounds of res judicata. j) Paragraph 45 – the claimant’s inability to self-refer to Occupational 30 Health was originally cast as “Incident 63” and was struck out by para 185 of the PH Judgment. By the claimant’s own narration, “the Respondent then made a replacement, non-consented referral on 17/12/19”. The claimant complains both that he was unable to refer himself to Occupational Health, and that a referral was made by the respondent. The claimant’s attempt to resurrect this claim should be refused on the grounds of res judicata. To the extent that the BFPs are taken as an application to amend, the time period of the alleged failures 5 was December 2019 to February 2020, and therefore to the extent not covered by paragraph 185 of the PH Judgment it should be refused on the grounds of time bar. k) Paragraph 35 – contrary to the paragraphs discussed immediately above, this paragraph recasts the pleadings previously made under 10 “Incident 61” (delay in actioning a grievance) accordingly conforms to the instructions given in the PH Judgment. However, the respondent submits that the pleadings on this issue do not meet the test of having reasonable prospects of success, in that they do not disclose that the claimant was put to a substantial disadvantage by virtue of any 15 alleged provision, criterion, or practice of the respondent’s. This claim should be struck out, or, in the alternative, only be allowed to proceed subject to a deposit order under Rule 39 of up to £1,000 on the basis that the claim has little reasonable prospect of success. l) Paragraph 40 – similarly, it is acknowledged that this paragraph recasts 20 the pleadings previously made under “Incident 58 & 59” and accordingly conforms to the instructions given in the PH Judgment. However, the respondent submitted that the pleadings on this issue do not meet the test of having reasonable prospects of success, in that they do not disclose that the claimant was put to a substantial disadvantage by 25 virtue of any alleged provision, criterion, or practice of the respondent’s. This claim should be struck out, or, in the alternative, only be allowed to proceed subject to a deposit order under Rule 39 of up to £1,000 on the basis that the claim has little reasonable prospect of success. Claimant’s Submissions

[12]The claimant opposed the application. He wrote on the 3 February that he was unable to work and incapable of submitting a more detailed submission. His position was that he had assisted in saving expense by agreeing that the strike out should be dealt by 5 submissions rather than at a public hearing. He expressed disappointment at what he saw as the respondent’s behaviour and was disappointed that the Tribunal had not taken a stronger line with them. He had he wrote set out the unvarnished truth. Discussion and Decision

[13]This Strike Out application is in effect round two following, as it does the issue of a Strike Out Judgment following a hearing on 18 June 2020. Parties fully canvassed the legal framework at that hearing but I will summarise that 15 framework and then deal with amendment and expenses.

The Legal Principles

[14]Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that: "37. Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds - (a) that it is scandalous or vexatious or has no reasonable prospect of success;….. (c) for non-compliance with any of these Rules or with an order of the Tribunal …"

[15]In applying the Rules the Tribunal must have regard to the overriding objective in Rule 2: “Overriding objective 2. The overriding objective of these Rules is to enable Employment Tribunals to deal 30 with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any 5 power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” 13. It has been recognised that striking out is a draconian power that must be exercised carefully. If exercised it would prevent a party from having their claim 10 determined by a Tribunal. The legal principles applicable in relation to the striking out of discrimination complaints pursuant to this Rule are well-established. In the House of Lords case of Anyanwu & Ano v South Bank Student’s Union and Ano

2001 ICR 391

, Lord Steyn said as follows: "24. … Discrimination cases are generally fact-sensitive, and their proper 15 determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. Against this background it is necessary to explain why on the allegations made by the appellants it would be wrong to strike out their claims against the university." At paragraph 39 in the judgment of Lord Hope of Craighead, said as follows: "Nevertheless, I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to [be] taken up by having to hear evidence in cases that are bound to fail." 14. In Ezsias v North Glamorgan NHS Trust

2017 ICR 1126

,CA ,a case referred to by both sides, the Court of Appeal was considering a case involving public interest disclosure and held that a claim should not ordinarily be struck out where there was a: "29. … crucial core of disputed facts in this case that is not susceptible to 30 determination otherwise than by hearing and evaluating the evidence. … It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably 35 inconsistent with the undisputed contemporaneous documentation. …" 15. In the more recent case of Ahir v British Airways plc

[2017] EWCA Civ 1392

, Underhill LJ said as follows: "16. … Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence 5 has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract 10 between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success'."

[16]I will deal with the application for strike out of the entire proceedings first of all. While I sympathise with the respondent’s position and agree that this case has become unusually burdensome I do not accept that matters have reached the high threshold required to allow me to strike out the entire claim at least at this 20 stage. The claimant has statutory rights and a Tribunal must be slow to remove those rights without an enquiry into the facts. The respondent can challenge and continue to challenge the claimant’s behaviour and seek expenses which is what they have done. I also bear in mind that the claimant was dismissed and is entitled to challenge that dismissal. The difficulties arise in relation to 25 the multitude of other claims that the claimant says predate the dismissal. Quite correctly the respondents refer me to the report of Dr Bott which suggests that the claimant’s behaviour is driven by his condition. I am not clear on the claimant’s position and how he regards the terms of the report but that is likely to be a matter that will ultimately almost certainly be canvassed at a full hearing 30 when the Tribunal will be in a far better position to assess the claimant’s motivation. Amendment

[17]The first matter to consider is the claimant’s application for amendment. Relevant Law 18. The claimant seeks to amend his application to include claims for disability discrimination. The Tribunal has wide powers of amendment. The starting point 5 for the Tribunal is the “Overriding Objective” in Rule 2 which provides: “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— 10(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the 15 issues; and

(e) saving expense. ……..”

[19]A Tribunal must seek to give effect to the overriding objective in interpreting, 20 or exercising any power given to it in the Rules. In the context of applications to amend the Tribunal should have regard to the case of Selkent Bus Company Ltd v Moore

[1996] IRLR 661

(which was followed by the EAT in Scotland in Amey Services Ltd and another v Aldridge and others

UKEATS/0007/16

). The EAT held that, when faced with an application to 25 amend, a Tribunal must carry out a careful balancing exercise of all the relevant circumstances, weighing up the balance of injustice or hardship that would be caused to each party by allowing or refusing the application. This would include the nature of the amendment, the applicability of time limits, and the timing and manner of the application.

[20]In this case the amendment purports to introduce claims which appear clearly time barred. Given that the claimant was already underway with his various discrimination claims against the University it is difficult to believe, and he does not specifically say this, that he was not aware of the three-month time limit. Time bar was raised by the respondent in their Agenda for the case management hearing in November 2019 (case 4110829). It was discussed at the June PH in 2020. The time limit for a discrimination claim to be presented 5 to a Tribunal is 3 months starting with the act complained of (section 123(1), 25 Equality Act 2010). Section 123(3)(a) of the Equality Act 2010 provides for continuing acts of discrimination, where acts of discrimination extend over a period are treated as having occurred at the end of that period. The question a Tribunal should ask in such circumstances is whether the employer is 10 responsible for an “an ongoing situation or a continuing state of affairs” in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents (Hendricks v Metropolitan Police Commissioner

[2002] EWCA Civ 1686

). There must be facts and circumstances which are linked to one another to demonstrate a continuing discriminatory state of affairs. The 15 Tribunal should consider the nature of the conduct and the status or position of the person responsible for it. I have some difficulty finding a ‘golden thread’ between the various incidents involving as they do different people and situations.

[1997] IRLR 33

sets out a checklist of factors which a Tribunal should consider when deciding whether to 25 refuse or grant an application to extend the time limit. These are: a) The length of and reasons for the delay, b) The extent to which the cogency of the evidence is likely to be affected by the delay, c) The extent to which the party sued had co-operated with any requests for information, d) The promptness with which the Plaintiff acted once he or she knew of the facts giving rise to the 30 cause of action. e). The steps taken by the Plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

[22]In the case of Mensah v Royal College of Midwives

UKEAT/124/94

[23]I accept that the respondent’s agents have correctly identified the matters that 15 would entail amendment. Whether to allow such amendment also entails considering the pleadings and whether sufficient notice is given of individual claims and significantly in this case whether such new claims are out of time.

[24]I remind myself that following the last hearing I wrote at follows at paragraph 20 199 : ‘‘I accept that striking out is a draconian step and that it should be done in limited circumstances. I considered this case to be exceptional on the basis firstly that the various incidents pled did not seem to justify the multitude of claims made even when read together with other incidents and reading those 25 pleadings liberally and in a non-technical way. After reading the pleadings it is not clear in general why the claimant believes any particular type of discrimination arises. He fails to set out why he thinks his employers in breach of their legal obligations. He employs a large cast list of individuals and a multitude of incidents but despite his labours the same criticism applies all the 30 claims namely the nexus between the facts and the claims made is not apparent. The reasons ‘‘why’’ actions are taken and in what way those actions are therefore discriminatory are not even speculated upon. The second exceptional matter is that the claimant himself does not give the reason why he believes a particular type of discrimination is in play and in a number of 35 instances, he provides explanations for decisions taken which are perfectly plausible and yet not discriminatory. After every narrative incident the reader is left wondering how the facts pled amount could possibly amount to this or that type of discrimination. It is worse than a scatter gun approach as there seems to be no answer to the query why this particular type of discrimination and not another arises when we are given a multiple choice of several 5 possibilities’’.

[25]Before finalising this Judgment I asked the claimant to confirm whether he accepted the respondent’s analysis that these matters were new and required to be addressed as amendment. I had the Tribunal Clerk write to the claimant 10 on the 9 June 2021 bringing this matter to his attention and referring him to the Selkent principles. His initial response was that some matters could be traced back to a Chronology lodged on the 10 January 2020 and were in time (Incident 56 and 59). Mr McLean responded indicating that he did not accept the brief references in that document gave his client’s notice of properly articulated 15 claims. He once more drew the Tribunal’s attention to the claimant going further than the first strike out Judgment allowed. He pointed out that although some matters were raised on the Chronology document the duties to which they related arose some time before and were time barred by the 10 January 2020. He reaffirmed that matters contained in Paragraph 46,47,48 and 49 were 20 raised for the first time.

[26]The claimant responded on the 11 June stating that Incidents 56, 58 and 59 were put before the Tribunal in case 4114716/19 on the 17 December 2019. His position was that Para 24 refers to his BFP of 12 January 20121, Para 46 25 traced back to earlier claims, Para 47 traced back to emails to the Tribunal in March 2020 and the hearing in June 2020, Para 48 to the hearing in June 2020 and 49 to the fourth claim and the hearing on 18 June 2020. This prompted a further response from Mr McLean essentially that tracing an issue back to some factual matter is insufficient to give notice of a claim. The claimant 30 responded at length on the 14 June now addressing the sort of factors that Selkent indicates are important. He stressed he was a litigant in person and had responded to Tribunal orders timeously.

[27]The June PH Judgment dealt with the claimant’s pleadings (at that point) and I will not repeat what was decided. Suffice to say the claimant did not set out an adequate claim for reasonable adjustments either at that point or at an earlier point in the first and second claims and that is why he was given the opportunity of recasting his pleadings on this matter to set out a claim for 5 reasonable adjustments specifying what adjustments he was seeking and when the duty arose. Mr McLean is correct in his submission that the original pleadings were wholly insufficient to give anything more than notice of vague allegations. One example being that in the meeting that occurred on the 4 October 2019 which the claimant originally gives as background and contains 10 no ‘‘acts complained of’’ (as he puts it) is an invitation to change his line manager. It is not stated by him as a reasonable adjustment at that stage. Nevertheless, the Judgment allowed him to recast his pleadings around the matters described as incidents on the 4 October and 4 November 2010. That has now been expanded to some 16 separate claims for reasonable 15 adjustments.

[28]One matter that I have noted is that the Judgment ordered the claimant to provide further details of the proposed claims but made no specific reference to the substantial disadvantage that would be alleviated by the adjustment. He 20 has been frequently referred to the Equality Act and should have realised that he needs to plead what substantial disadvantage he suffered which would be alleviated by the adjustment. Similarly, there is no reference to PCP’s. There are many problems with the multitude of adjustments sought and the claimant’s own pleading of when the duties arose to make them shows that the claims 25 are considerably out of time. Some adjustments contended for appear impossible (Para 37). The unsatisfactory meeting with Professor Leydecker has become an adjustment not to have had the meeting or frankly to have had a meeting that the claimant liked more. This is nonsense and I am sure as a rational person the claimant must be aware of that.

[30]The proposed amendments if allowed would considerably lengthen and make more complex an already difficult case and hearing. The respondent would 5 have difficulty in responding to the claims given the way they have been articulated. In Para 36 one adjustment there is that the respondent should have obtained the claimant’s consent for an Occupational Health referral. The claims are often vague for example a meeting should have taken place ‘‘consistent with the Occupational Recommendations’’ (Para 37). The claims have not 10 been properly formulated and looking not just at the pleadings but at the basis on which adjustments are contended for it is unclear what substantial disadvantage the claimant could have faced that would have been ameliorated.

[31]These are all factors which the Tribunal is entitled to consider when exercising 15 its discretion whether to allow amendment. The claimant on the other hand will lose potential statutory claims. Examination of the Pleadings

[32]I will now set out portions of the claimant’s Better and Further Particulars to 20 assist in an understanding the various claims now being pursued and the issues that arise and how I intend dealing with them.

[33]The PH Judgment did not strike out some incidents and is summarised below (reference is made to various numbered paragraphs that narrate factual 25 happenings (‘Incidents’) that occurred and these were the paragraph numbers used in the claimant’s original pleadings that were scrutinised in the PH Judgment): (Harassment 23 and 32). Detriment alternatively incidents 23 and 30, incidents 58, 59 and 60 and 61(Reasonable Adjustments). Incidents 3 and 5 were also permitted to continue subject to a Deposit Order.

[35]The respondent’s agents helpfully expressed their submissions on the basis of four categories of incidents that had to be addressed firstly in Category I those 5 reflecting matters that had to be determined following the original PH Judgment; secondly matters which related to the period of time dealt with by that Judgment (Category 2); thirdly new matters raised in the Better and Further Particulars (Category 3) and finally fourthly matters raised in the third and fifth claim which the respondent believes has no reasonable of success 10 (Category 4). Incidents 3 and

[36]As described by the claimant: “On 13/03/18, as part of a protest, students had occupied the management corridor at the University. The incident was commanded by Mrs Caroline Inglis 15 and Professor Mike Greaves (Interim Senior Vice-Principal). The students’ understanding was that they would be given free access in and out of the building, as both Mrs Inglis and Professor Greaves signed a note approving free access in and out, but this was subsequently not permitted. The students' posted on social media that they were being denied access to a disabled toilet. 20 In response to these events, I posted a photograph of an unnamed senior managers car (with the number plate obscured) parked in a disabled parking bay in violation of the parking policy. An Aberdeen UCU member had witnessed the parking infringement and reported it to me. The car was that of Mrs Inglis, and at her request of even date, I removed the post. 8. On 14/03/18 I was involved in an incident at the University that caused me considerable distress. On the day of the incident some students were attempting to access the occupied building but were prevented from doing so by security staff. The students within the building were enclosed within a 30 corridor. I was outside the building at the time of the incident and was concerned for the students’ safety. The decision was taken to send in two members of staff to check on the students’ welfare. Despite being the least experienced of the available staff in terms of student welfare, I was instructed by Mrs Inglis to go into the building against my wishes. 9. Once I had entered the building, I noticed that the atmosphere was very charged and that the students were very upset. I stayed with the students and tried to mediate between them and the security staff and senior management. The aggressive attitude of the security staff and senior management made it an intimidating and hostile environment. I later established that some of the students had been assaulted by a member of senior management, Mr Angus Donaldson (Director of Estates & Facilities). 10. Following the incident, I found myself thinking about the events on a regular basis. My sleep was disturbed, and I became extremely distressed. I felt that my values in terms of fair play and transparency had not been honoured. My family and colleagues noticed that I was not myself. I was angry and making out of character outbursts. 11. On 20/03/2018 I advised several senior managers of my severe psychological distress but no action was taken. 11. [Incident 5 - PH 18/06/20 Judgement, extract from para 78: "The claim in relation to the claimant having been victimised in relation to the alleged 15 protected disclosure relating to the alleged abuse of disabled parking spaces and "victimisation" (harassment of a trade union representative) shall be treated as a claim for detriment and shall be allowed to proceed subject to a deposit order."] 12. On 26/03/18 I repeated my concerns to Mr Lynch, unexpectedly appointed as 20 my temporary line manager the previous month, and Mr Henderson, my Head of Section. On the same day I was signed off work by my GP due to stress, until 01/04/18, followed by two weeks of annual leave. No further action was taken by the Respondent. 13. The Respondent investigated the 14/03/18 incident and an injury reported by 25 a member of security staff. The investigation concluded 08/05/18. A colleague (Dr Dannette Marie, the AUCU vice-president/vice-chair, my deputy) and I were named in the report. I was not interviewed. I felt unfairly discriminated against by association and this added to my distress. I was also upset about the allegations made against my colleague and her 30 subsequent treatment. This was compounded when the investigation report was leaked by Principal Diamond before he left his post in June 2018. The report targeted me without justification, and I felt victimised. I continued to report my distress to my managers, but no action was taken. 13a) On 1st June 2018 Principal Diamond emailed myself and others to advise "As 35 you may already be aware, I commissioned a report into the disturbance involving members of staff and students which took place on 14 March 2018 during the recent student occupation of the University Office building. I have considered this report in detail and have decided to convene a short‐life working group to identify key “lessons learned” from the incident.". 40 Representatives from each of the four recognised trade unions were invited to participate. The Aberdeen UCU executive committee appointed me to the UCU seat. However, before the inaugural meeting of the group I was advised by Mrs Crabb, the clerk, that "Your participation in the meetings during the occupation means that you are conflicted in terms of your membership of the working group". Professor Margaret Ross was allowed to participate in the working group in her capacity as a senior manager, despite - as I found out later - her being the person who facilitated the students entry into the University Office building on 13 March 2018. 13b) In September and October 2018 I endeavoured to use functions bestowed upon me via the Safety Representatives and Safety Committees Regulations 1977 to investigate the Student Occupation. However, I had no choice but to conclude my investigation after receiving a "cease and desist" style letter from my employer, who refused to co-operate with me. 14. I found myself unable to continue in my trade union roles, resigning on 02/11/18. All members of the Respondents' staff are responsible to the University Court through a line management structure that includes a reporting line to the Principal. I intimated a protected disclosure in writing to Professor George Boyne, Principal & Vice-Chancellor on 07/11/18 15 (Professor Boyne having succeeded Professor Sir Diamond on 01/08/18). In summary the disclosure was that the Respondents' investigation into injuries reported by a security guard on 14/03/18 was a cover up to excuse the serious failings of senior managers (Mr Donaldson, Mrs Inglis and Professor Greaves) and the security guard (Mr Cox), by improperly shifting blame to Dr 20 Marie. The former Principal described the investigation report as "non-factual". I assert there is a danger to health and safety; wrongdoing is being covered up; there has been criminal activity and a miscarriage of justice. Professor George Boyne acted by passing my disclosure of 07/11/18 own and inward within the organisation, through the hierarchy of Mrs Inglis 25 (Professor Boyne's direct report) and onto Mrs Debbie Dyker (Mrs Inglis direct report) for handling, meaning Mrs Inglis, who was implicated in the disclosure (eg. incident 3,5), had had influence and control over its investigation. The investigation was facilitated by Mrs Dyker, who had history of antagonising me because of my trade union activity. Acting as a 30 trade union representative, I had shared details of an email exchange between Mrs Dyker and myself (without naming either party) with union members in 2017, which had seemingly embarrassed Mrs Dyker. She took umbrage and cancelled various trade union meetings for many months, citing me as the reason, and refusing to attend meetings with me. On or 35 around 05/03/18, I met Mrs Dyker and Mrs Fiona Smith (HR Manager) unexpectedly on the pavement outside the university whilst I was on strike and fulfilling the statutory role of "Picket Supervisor". Mrs Debbie Dyker entered into conversation with me. She enquired if I thought that she woke up every day thinking "whose life am I going to ruin today" and accused me 40 of deliberately causing damage to her mental health, as per Incident 1.”

[37]The respondent seeks strike out of these incidents which failing Deposit Orders. I note in passing that Paragraph 5 relates to a financial settlement made with the former Principal and the role of Mrs Inglis and Mrs Dyker in that. This seems to be part of a pattern of trying to bring Professor Ian Diamond and controversy around his tenure into these proceedings for no obvious purpose. This appears to have no relevance whatsoever to the claims being advanced yet by being pled invites the respondent to answer the irrelevant allegations.

[38]If the posting of the photograph is capable of being a protected disclosure, (and this is not accepted by the respondent) or the health and safety ‘‘disclosures’’ then the claimant must assert a link between the disclosure relied upon and subsequent events. The earlier Judgment found that what appeared to be being asserted was that Mrs Kinmond was acting as she did because of Mrs 10 Inglis (or because of someone else being able to influence future events) was angered at the claimant for photographing the car in a disabled bay or having the matter posted on the internet. On re-reading the amended pleadings the claimant has failed to make such a link. I am not surprised given that it seems inherently unlikely. The third incident appears to be the claimant being asked 15 to go and find out what was happening during the occupation. How this constitutes or could constitute a detriment is still unclear. It may be that the claimant has sustained some psychiatric injury by witnessing some events at the occupation but this is looking at the matter with the benefit of hindsight. At the time Mrs Dyker asked the claimant to find out what was happening and 20 there is no pleadings to infer that she thought she was putting him in some sort of danger or aware of that this might cause him future problems.

[39]In relation to the claim for harassment/victimisation that is said to arise from these events I allowed it to proceed as a claim for detriment (on the basis that the claimant could demonstrate some detriment). I am not sure he has done 25 so. Unfortunately, I have issued a Judgment indicating that Deposit Orders should be made and this was neither appealed nor was a reconsideration sought. In retrospect, I was premature in making such an order until the pleadings were clarified. I am concerned that the respondent will be put to considerable cost in rebutting unspecific claims for detriment that seem to have 30 a tenuous connection with the remaining claims. It will of course be open to the respondent’s agents to raise issues of relevancy at any merits hearing. These claims for detriment have little prospects of success. A Deposit Order will be made in a sum to ascertained later.

[40]The Incidents 23 and 30 (Detriment) claims were described as follows: “[Incidents 23 and 30, 18/06/20 Judgement, extract from para 112: "It might be that the pleadings could be recast and I am reluctant to strike out the 5 claims here without giving I a chance to argue he should be allowed to do so despite the claim not being listed by him as a detriment."; extract from para 129: "Put shortly I believes that his disclosures were not treated properly and were misconstrued. If that is his position then that might possibly constitute a detriment. I will reserve the question of strike out 10 meantime to allow I to consider this matter. He needs to set out which disclosure is at issue and what he says was the detriment."] 16. An external solicitor, Mrs Erica Kinmond, was appointed by Mrs Dyker as an agent of the Respondent to investigate my protected disclosure of 07/11/18. As far as I am aware, the appointment of an external solicitor to carry out the 15 investigation of a complaint was unprecedented. I was assured Mrs Kinmond "is bound by professional obligations which mean that in accepting our instruction to conduct an independent investigation she cannot and would not favour any particular party in that investigation". Following conclusion of the investigation it transpired Mrs Kinmond had been instructed with the "principal 20 purpose of gathering evidence where legal proceedings against the University are a reasonable prospect". As such, the Respondent recognised at the outset that it had likely acted unlawfully. Mrs Kinmond did not investigate my disclosure fairly or thoroughly, she endeavoured to prepare a robust legalistic defence for her client, to cover up wrongdoing. Due process 25 was intentionally corrupted to avoid confirming the veracity of my disclosures and the legitimate concerns they contained. This is a form of detriment arising because of my disclosure of 07/11/18. 17. Incident 28, struck out as standalone therefore background: The minute of the first of two investigation meetings between Mrs Kinmond and myself, on 30 06/12/18, was misrepresentative and misconstrued. The minute attributed words and phrases to me that I did not use, the most significant of which was "I have trust and confidence issues". This was done deliberately, in order to facilitate dismissing me. The misconstruction of the meeting minute is a form of detriment arising because of my disclosure of 07/11/18. The second and 35 final investigation meeting between Mrs Kinmond and I took place on 16/01/19 at her firm’s office. I attempted to show Mrs Kinmond the photographic evidence in high resolution on my laptop and talk through the photographs. I had previously made available to Mrs Kinmond very small and blurry thumbnails of the photographic evidence, as part of my disclosure of 40 07/11/18i. I showed Mrs Kinmond the first photograph and started to orate a detailed description of the photograph, including pointing myself out within it, which could not have been determined from the thumbnail. Mrs Kinmond stopped me from proceeding, and therefore failed to act to review the available evidence. Mrs Kinmond was aware there was something in the photographs that she sought to deliberately avoid. The overlooking of evidence in the investigation is a form of detriment arising because of my disclosure of 07/11/18.19. At the meeting of 16/01/19, Mrs Kinmond spent around one hour reviewing 5 the video evidence on my laptop, taking extensive notes and asking questions. As part of my response, I drew a detailed diagram of the scene to aid her understanding. Mrs Kinmond declined to share a note or minute for review. It was later evidenced her notes on the video evidence were misconstrued. The misconstruing of evidence in the investigation is a form 10 of detriment arising because of my disclosure of 07/11/18.

20. At the meeting of 16/01/19, Mrs Kinmond asked me various questions in relation to the extensive documents I had shared with her via Dropbox. No minute or note was taken or shared. The failure to share a note or minute of the meeting is a form of detriment arising because of my disclosure of 15 07/11/18.

21. At the meeting of 16/01/19, Mrs Kinmond provided me with a printed document which outlined her interpretation of my disclosure, separated into two sections titled whistleblowing and grievance. Her interpretation trivialised whistleblowing and maximised grievance, forking one disclosure into two 20 different investigations. This separation and the Respondents use of separate decision makers for each investigation, without sight or regard of the alternate investigation report, meant a fair outcome could never be achieved. The disclosure should have been investigated as considered as one. This is form of detriment arising because of my disclosure of 07/11/18. 25

23. The Respondents grievance procedure states "a Human Resources Adviser 30 will be in attendance in the role of clerk" "at any investigation, grievance or appeal meeting" yet this did not occur. This is a form of detriment arising because of my disclosure of 07/11/18.

24. The Respondents grievance procedure states "each step and action under the procedure will be undertaken as quickly as practicable and without 35 unreasonable delay" yet there was unreasonable delay, the process only concluding after 499 days on 20/03/20. This is a form of detriment arising because of my disclosure of 07/11/18 As evidenced by the grievance investigation report, Mrs Erica Kinmond did not interview anybody who was likely to corroborate my disclosure of 07/11/18i, nobody whose name I put 40 forward as a suggestion, and asked only one simple written question of a person likely to corroborate the disclosure (that the Principal Diamond had described the investigation report as "non-factual"). Mrs Kinmond saw fit to interview 12 other individuals, and question in writing 2 other individuals, none of whom were likely to corroborate my disclosure. Most significantly, and most obviously, not even Dr Marie was interviewed prior to Mrs Kinmond concluding her investigations. This is a form of detriment arising because of my disclosure of 07/11/18….. 29. Described within multiple incidents which have been struck out, following my disclosure of 07/11/18i I have been subject to humiliating and demeaning comments or behaviour; "gaslit"; insignificant issues about conduct being unduly highlighted; the Respondent subsequently not handling grievances, whistleblowing and health and safety issues such that the Respondent did 10 not take them seriously or deal with them in a proper manner. 30. My disclosure of my 07/11/18 describes in detail my severe psychological distress, but no action was taken. Such intervention could have been to offer support, timeously refer me to the Occupational Health Service or meet with me informally or formally. This is a form of detriment arising because of my 15 disclosure of 07/11/18. 31. The Respondent did not follow the Acas Code of Practice on disciplinary and grievance procedures……. As described herein, the Respondent fell markedly short of this. This is a form of detriment arising because of my disclosure of 07/11/18. 32. I also contend that as a form of detriment arising because of my disclosure of 07/11/18i the Respondent failed to make reasonable adjustments for me, as described below. It did so in a futile attempt to affect my resignation.’’

[41]The respondent’s agents point to the original strike out Judgment in which I observed that it was unclear how the various alleged events interact with the 25 possible disclosure. Their position was that although recast the pleadings do not provide any greater clarity. They say that an unjustified sense of grievance cannot amount to a detriment.

[42]I agree with the respondent’s criticisms of the pleadings. It should be borne in mind that we are now looking at a second alleged disclosure made on the 30 7 November 2018. The pleadings are still no more than a narrative of events that the claimant did not like. How some of these matters could in any event amount to a detriment is unclear. The claimant alleges that some of his evidence for example was misconstrued. It is not made clear how this could be a detriment or how it could lead to a detriment. The claimant simply does 35 not address the issue of cause and effect despite invitations to do so. How did or could the disclosure impact on later events and what was the detriment caused to him? In addition, it is disappointing that the claimant has referred to Mrs Kinmond allegedly being involved in unprofessional behaviour, covering matters up as he sees it and preparing a ‘‘legalistic defence’’ to cover up wrongdoing.

[43]Turning to Paragraph 29 it is not good enough to refer to ‘‘multiple incidents’’ 5 or demeaning comments. This does not give the respondent fair notice of the claimant’s position. If as he seems to indicate it refers to claims previously struck out then there should be no reference to them unless some of the factual background supports remaining claims.

[44]Additionally I would also specifically mention Paragraph 31 contains 10 reference to the ACAS Code and it is alleged that the respondent’s actions fell short of the guidance contained there. It remains unclear exactly what the precise detriments were although the claimant has set out some general matters and how they relate to the alleged whistleblowing.

[45]The matter of causation is straightforward. Section 47B(1) of the Employment 15 Rights Act 1996 says that an employee shall not suffer any detriment ‘‘by his employer done on the ground that the worker has made a protected disclosure’’. (my emphasis). The claimant’s pleadings are still wholly deficient in identifying exactly what the detriments amount to and why the flow from the disclosure.

[46]I repeat the claimant’s pleadings here as the beginning of disability discrimination claims and paragraph 26 related to a further alleged detriment. “25. Incident 35, struck out as standalone therefore background - Mrs Kinmond continued to ask me questions via email. On 30/01/19 she asked "When 25 did you receive a diagnosis that you are suffering from Post Traumatic Stress Disorder?". The same day the Respondent made a referral to the Occupational Health Service, requesting a medical assessment by a named physician, to ask the question "Has Mr Dawson received a formal diagnosis of PTSD?". The referral was made without my knowledge or 30 consent and is therefore deeply suspicious. When I determined what had occurred, I was advised I would be in breach of the terms and conditions of my contract of employment if I did not attend the appointment. This is improper use of the Occupational Health Service and evidences the improper nature of the investigation of my disclosure being used to gather "evidence where legal proceedings against the University are a reasonable prospect", rather than investigate the disclosure impartially and properly, as I had been assured.”

[47]These incidents narrated in paragraphs 16-32 do not give rise to 5 validly plead claims and any such claims have no reasonable prospects of success and are stuck out. It is not clear where the claims for detriment end and background begins so for the avoidance of any doubt any claims for detriment arising from paragraphs 17, 18, 19,20, 21,23. 26 and 28 are also struck out for the same deficiencies that I have identified.

[49]Claims relating to alleged failures to make reasonable adjustments (Paragraphs 33 49) were made as follows (the original incidents were 58,59,60 and 61. First he sets out the background. “33. When: 22/02/2019 How: My Occupational Health Report of 21/02/19 states "Mr 15 Dawson has been experiencing symptoms affecting his psychological wellbeing following a workplace incident in March 2018. He is receiving appropriate advice from his GP and has been referred for specialist opinion and for therapy with another specialist support service. His symptoms are persistent and are likely to be considered long term. His symptoms have a 20 substantia impact on his normal day to day activities and as such, although it is ultimately a legal question, an Employment Tribunal is likely to consider his condition as covered by the disability provisions of the Equality Act 2010." What that disability is: A consultant psychiatrist has diagnosed me with an Adjustment Disorder with Mixed Anxiety and Depressive Reaction and Post 25 Traumatic Embitterment Disorder.34. Reasonable Adjustments: CCTV Project When duty arose: 22/02/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "I recommend that he is not allocated to the 30 CCTV project as the nature of this project is that it is likely to trigger an exacerbation of his symptoms". At my request, the CCTV project work had previously been reallocated by Mr Lynch on 14/12/2018. However, it had not been progressed, and was given back to me on 04/03/2019. I was advised nobody else could undertake the work, which was unreasonable given the 35 nature of the project and size of/resources available to the Respondent. I duly commenced work on the project, which I found difficult and stressful, but ultimately delivered a key document. Having done so, the project was put on indefinite hold on 28/03/2019, meaning the stress of the work was wholly unnecessary. It therefore felt like a cruel form of punishment. 40 What reasonable adjustments should have been made: I should not have been reallocated to the CCTV project.

35. Reasonable Adjustments: Prolonged uncertainty and undue delay When duty arose: 22/02/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "University processes ... may be distressing and prolonged uncertainty may be detrimental to his health and well being. I therefore advise that they are concluded without undue delay.". The "University processes" refer to the protected disclosure I intimated to Professor Boyne on 07/11/18. I signposted Professor Boyne to the UK Government "Guidance for 10 Employers and Code of Practice" on 20/11/18. This states, as an example of good practice, to "Manage the expectations of the whistleblower in terms of what action and/or feedback they can expect as well as clear timescales for providing updates". I repeatedly made this and other similar requests, yet next to no meaningful information was provided and uncertainty was 15 prolonged. The timeline is represented …… Principal Boyne refused to meet or talk with me. My line manager Mr Lynch was unable or unwilling to provide meaningful support. I was 20 passed from pillar to post, receiving scant little feedback along the way. The grievance "hearing" on 20/05/19 was nothing of the sort: the outcome was predetermined and I was handed a letter detailing the outcome. The grievance stage one appeal "hearing" on 02/09/19 was a charade, as the outcome had already been predetermined. The Respondent advised it could 25 not follow its grievance procedure as it applied to me. The grievance process was then concluded by the Respondent unilaterally and the second stage appeal process/hearing did not take place, much to my disappointment and distress. The grievance process concluded on 20/03/20, 392 days after the duty arose to avoid prolonged uncertainty and undue delay. The 30 whistleblowing process concluded on 21/04/20, 424 days after the duty arose to avoid prolonged uncertainty and undue delay. The Respondents grievance procedure states allows 15 working days for an appeal to be lodged, and permits appeals at two stages. As can be seen the "ball was in the Respondents court" for the overwhelming majority of 35 the circa 500 days processes were active. It is unreasonable, given the size of and resources available to the Respondent, for it to have let these processes run for so long. The respondent deliberately protracted these processes, processes which the Respondent directly controlled (and of which I had no control), in order to maximise damage to me. Prolonged uncertainty and undue delay in terms of the 05/09/19ii disclosure was also evident. I was advised this was to be subsumed into the extant 21/02/19 "Grievance" process which was pending a stage 2 appeal hearing. Ultimately, the process was concluded unilaterally by the Respondent on 20/03/20, 197 days later, without evidence of any investigation having taken place in relation to the 05/09/18 disclosure. What reasonable adjustments should have been made: The Respondent should have concluded the processes much sooner, to avoid or minimise 5 uncertainty and delay. The Respondent should have managed my expectations in terms of what action and/or feedback I could expect as well as clear timescales for providing updates. The Respondent should have followed its processes and procedures as they applied to me, or mutually agreed a deviation from those processes and procedures.

36. Reasonable Adjustments: Occupational Health Review Meeting When duty arose: 22/02/19 Factual basis for failure to make reasonable adjustments: An outcome of my Occupational Health Report of 04/01/19 was the scheduling, by the service and at my request, of a review appointment on 29/03/19. In the interim I received 15 an unexpected appointment for 21/02/19. It transpired the Mr Lynch had re-referred me to the service without my knowledge or consent on 30/01/19. I objected but was told I would be in breach of contract if I did not attend. As such I attended the appointment, notwithstanding being on bereavement leave arising from the sudden death of my father a few days prior. My Occupational 20 Health Report of 21/02/19 states "Mr Dawson will be reviewed by my colleague Karen Hudson, Nurse Advisor, on 29/3/19". I expected the telephone appointment to take place on 29/03/19 but it did not. I brought this to the Respondents' attention. It transpired the surreptitious referral had caused the cancellation of the 29/03/19 meeting. As such, the review meeting did not take 25 place. I made the Respondent aware of this. No further action was taken. What reasonable adjustments should have been made: The Respondent should have obtained my consent and agreement for the February 2019 referral to Occupational Health. The Respondent should not have threatened me to be in breach of contract if I did not attend. The Respondent should have 30 rearranged the appointment after I made it aware of the sudden death of my father. The Respondent should have rearranged the scheduled review meeting, cancelled because of its actions, I could not have rearranged it.

37. Reasonable Adjustments: Meeting with the Senior Vice-Principal When duty arose: 22/02/19 35 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "University processes ... I recommend that he is accompanied for support, that he is notified in advance of the participants and provided with an agenda for any meetings". Professor Karl Leydecker, Senior Vice-Principal, telephoned me on the evening of 20/06/19 and 40 requested to speak urgently and privately me about my disclosure of 07/11/18i. A meeting was duly arranged to take place at 10am the following day, 21/06/19. I had arranged annual leave for 21/06/19 and had commitments which meant a telephone call was arranged. I then rescheduled these commitments and advised Professor Leydecker we could meet in person as first envisaged. The 45 meeting duly took place. Given my repeated stonewalling by Professor Boyne, given the passage of time, given I was aware that Professor Leydecker had arranged a meeting with Dr Marie later that day, I "fell over myself": I thought this was a 'break-through' and that the Respondent was finally going to acknowledge harm. I had incorrectly assumed that the meeting Professor Leydecker had requested was in order to provide me with an apology, in private, as this was one of the four outcomes I had sought from the outset. Furthermore, I had incorrectly assumed that Professor Leydecker would 5 discuss with Dr Marie her exoneration to realise another outcome I sought. In fact, the meeting served absolutely no meaningful purpose and it was unclear what, if anything, Professor Leycker sought to achieve by meeting with me, other than to satisfy his curiosity and "get the measure" of me. Dr Marie's meeting went similarly. I was emotionally crushed and overwhelmed. As a 10 consequence of my disability, I cleared my office of personal belongings over the weekend. I was absent through "Stress at Work" from 24/06/20 returning 09/09/20. On 26/06/20 my line manager made an unfounded accusation to me that I had stolen University property, later withdrawn. What reasonable adjustments should have been made: The meeting with 15 Professor Leydecker served no purpose, caused me more harm than good, and should either not have taken place or taken place consistent with the Occupational Health recommendations. I should not have been accused of theft without any evidence or investigation.

38. Reasonable Adjustments: Communicating with Colleagues When duty arose: 19/08/19 Factual basis for failure to make reasonable adjustments: During my sickness absence for "Stress at Work" between 24/06/19 and 09/09/19, I shared with Mr Lynch a resource titled "Return to Work - Communicating with colleagues" 25 which described its purpose to help "employees successfully return to work following depression, anxiety or a related mental health problem". The resource included various recommendations for supervisors and employees. The advice for employees was to "discuss and come to a clear agreement with your supervisor about who is to be told and what they will be told". A significant 30 barrier for me, as discussed with Mr Lynch, was the leaked report of the 14/03/18 incident which targeted me without justification and how I could "clear my name" with his colleagues. I contacted Mr Henderson, head of section, and requested we speak before my planned return to work. He was unavailable. I requested to work from home until I could speak with Mr Henderson, this was 35 refused. As such and because agreement could not be reached, I returned to work without being able to communicate my mental health problem to colleagues. Ultimately, on 01/10/19 the Respondent advised the leaked report had "no standing" and on 02/10/19 announced the departure of Mrs Inglis, which did little to nothing to exonerate me and mitigate the damage so 40 unnecessarily caused to the reputation and health of Dr Marie and myself. What reasonable adjustments should have been made: I should have been supported and permitted to send an email to colleagues to "set the record straight" and facilitate my return to work. I should have been allowed to work from home until I could speak with my head of section. The Respondents 45 censuring the report should have occurred much earlier, and the mitigation should have went much further to undo the damage caused.

39. Reasonable Adjustments: Stress Risk Assessment When duty arose: 30/08/19 Factual basis for failure to make reasonable adjustments: Occupational Health Report of 22/08/19 states "I would suggest that on Derek’s return to work a stress risk assessment is completed. This will highlight any particular areas of difficulty that Derek may experience, and a managerial solution can be explored. You can find this resource online - http://www.hse.gov.uk/stress/risk-5 assessment.htm" What reasonable adjustments should have been made: Following sickness absence for "Stress at Work" from 24/06/19 I returned to work on 09/09/19, attending the first supervision with my line manager Mr Lynch on 11/09/19. Mr Lynch advised that rather than use the recommended HSE risk 10 assessment tool, he felt an alternate questionnaire would be better. Mr Lynch had printed two copies of a single page template document titled "NHS Grampian Occupational Health Service Stressor Assessment Questionnaire". I suggested I take away the questionnaire, complete it, and return it, allowing the meeting to focus on workload. Mr Lynch insisted on talking through the 15 questionnaire and that he would take notes, type them up, and share them for review. The entire meeting was therefore focused on the questionnaire, during which Mr Lynch made succinct notes written within the limited space for notes (the form being designed to be used electronically and expand accordingly). I took the other copy away with me to study further. Mr Lynch then typed up 20 his notes, sharing them with me 16 days later on 27/09/19. As requested, I reviewed the notes, made some changes, and returned the document of even date. I had a supervision meeting with Mr Lynch on 30/09/19 during which Mr Lynch advised I that I had included a lot in the revision which he felt we hadn't discussed, although when challenged conceded this. Mr Lynch stated his 25 view that I was restating his case for the purposes of bringing my Employment Tribunal Claim [I had lodged a claim on 12/09/2019] and that what I had provided him was "not helpful" and that I was "looking back in the past and looking for reasons to throw up problems". Following these unwanted comments, I excused myself from the meeting. The recommended "HSE risk 30 assessment tool" records who might be harmed and how; what is being done to control the risks; what further action needs to be taken to control the risks; who needs to carry out the action; and when the action is needed by. In contrast, the "NHS Grampian Occupational Health Service Stressor Assessment Questionnaire" is a basic questionnaire intended to be 35 completed by a person experiencing work related stress, from their perspective. If any actions or managerial solutions were subsequently explored, they were not communicated to me. From my perspective, no action was taken. What reasonable adjustments should have been made: The HSE risk 40 assessment template should have been used. I should have been allowed to complete the questionnaire myself, without any undue pressure. My expectations should have been managed in terms of what action and/or feedback they can expect as well as clear timescales for providing updates. Managerial solutions should have been explored and the appropriate action 45 taken.

40. Reasonable Adjustments: Supervision & Line Management Support When duty arose: 30/08/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 22/08/19 states "I believe Derek would benefit from having weekly supervision on his return to work and for the duration of his phased return as a way of offering further support at this time. It may be useful to ensure supervision is carried out with a person whom is up to date with the 5 incident and the processes that are ongoing as this will make the process more meaningful. You may reduce this to monthly at a time agreeable to both parties.". I sought to establish who could keep, or how I could be kept, up to date with the incident and processes that were ongoing. Mr Lynch advised me that I would need to speak to "the appropriate member of management within 10 the University" yet was unable to clarify who this was. Supervision in week one had comprised the "stressor assessment questionnaire" described above. Supervision in week two was cancelled because Mr Lynch was ill. Supervision in week three comprised the "stressor assessment questionnaire" described above, during which I had to excuse myself from the meeting due to Mr Lynch's 15 unwanted comments and behaviour, as described above. I raised concerns about Mr Lynch in a grievance with Mr Henderson, line manager of Mr Lynch and head of section. Mr Henderson and I met on 04/10/19. I requested a change of line manager. The request was declined. On 04/10/19 Mr Henderson emailed me to advise he declined to progress the grievance. Mr Lynch 20 unilaterally ended weekly supervision with me. On 12/11/19 I emailed Mr Henderson to query the current situation. On 22/11/19 Mr Henderson advised he was now able to progress the grievance but would not change my line manager until he personally had heard the grievance. This was contrary to the Respondent's grievance policy, which states another appropriate individual 25 shall take the matter forward. I responded of even date and withdrew my grievance by virtue of the fact the Respondent had by then confirmed it was unable to follow its grievance procedure as it applied to me and the Respondent refused to concede I was a disabled person for the purposes of the Equality Act 2010. Upon withdrawal, 52 days had elapsed with no action 30 by the Respondent consistent with its procedure. What reasonable adjustments should have been made: Meaningful supervision should have taken place as described by the Occupational Health Service. The Respondent should have followed its grievance procedure. Prolonged uncertainty and undue delay were not avoided (as per para 35 35 above). The Respondent should have changed my line manager on a temporary or permanent basis, and ensured the support envisaged by the Occupational Health Service was provided. As per incident 34, struck out as standalone - the temporary re- organisation/restructure unexpectedly made Mr Lynch my permanent line manager without any of the consultation required 40 via the Respondents change management procedure, which should have been followed.

41. Reasonable Adjustments: Counselling When duty arose: 30/08/19 Factual basis for failure to make reasonable adjustments: My Occupational 45 Health Report of 22/08/18 states "We explored the benefits of counselling and Derek has expressed an interest in engaging in this. I believe that counselling would provide Derek with further support at this time. I would suggest that a referral be made for counselling on his behalf.". No referral was made for counselling. What reasonable adjustments should have been made: A referral should have been made for counselling.

42. Reasonable Adjustments: Purchase of annual leave 5 When duty arose: 30/08/19 Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 22/08/19viv states "I would also support that Derek should be given time to attend all appointments in relation to his health as this will have a positive impact on his overall wellbeing.". During my sickness absence for 10 "Stress at Work" between 24/06/19 and 09/09/19, I submitted a request on 03/09/19 to utilise the "Purchase of Annual Leave Scheme" to make a salary sacrifice to acquire up to 10 days of additional leave within the annual leave year 1 October 2019 and 30 September 2020. Mr Lynch declined the request without discussion. Mr Lynch's position was effectively that my previous 15 sickness absence and bereavement leave meant I had already accrued what, in Mr Lynch's opinion, was too much leave. What reasonable adjustments should have been made: I sought to utilise additional annual leave to help manage stress and improve my wellbeing and should have been allowed to purchase up to 10 days of additional leave, to 20 aid my recovery.

43. Reasonable Adjustments: Mr Henderson's concerns When duty arose: 04/11/19 Factual basis for failure to make reasonable adjustments: Mr Henderson proposed a further referral to the Occupational Health Service on 04/11/19, 25 sharing with them Mr Lynch's original version of the "Stressor Assessment Questionnaire" and my revision. Mr Henderson advised "I feel that I have to write to OH setting out concerns that you are having difficulty with moving on from past events and that this is causing difficulties, at times, in your day-to-day work" also "I have underlying concerns about how safe an environment 30 this is for you, given your potential psychological response to certain situations that may occur in your day-to-day work." also " Once we have the response from OH, I propose we sit down together to see how we secure a safe way for you and Richard to work together safely and constructively.". No such referral was made, no such meeting took place. What reasonable adjustments should have been made: The proposed referral, appointment and meeting should have occurred.

44. Reasonable Adjustments: Dr Marie's grievance appeal hearing When duty arose: 22/02/19 Factual basis for failure to make reasonable adjustments: My Occupational 40 Health Report of 21/02/19 states "University ... processes may be distressing and prolonged uncertainty may be detrimental to his health and well being. I therefore advise that they are concluded without undue delay. In addition I recommend that he is accompanied for support, that he is notified in advance of the participants and 45 provided with an agenda for any meetings". Dr Marie invited me to attend as a witness at her first stage grievance appeal on 10/12/19. By this time she had resigned and moved abroad, attending via video conference. Mrs White clerked the meeting, and as HR partner for IT was aware of my disability and Occupational Health Reports. I was only advised of the participants and format whilst waiting in the allocated room on the morning of the meeting. The convenor directed all the meeting participants around the table to introduce 5 themselves, but stopped short of me, moving onto other matters. I requested, but was not allowed, to read a pre-prepared statement, or excerpts from it during the hearing itself. What reasonable adjustments should have been made: I should have been notified in advance of the participants and provided with an agenda. I should 10 have been introduced in the same way as the other participants. My request to read a pre-prepared statement, or excerpts from it during the meeting, should have been accepted.

45. Reasonable Adjustments: Self-Referral to Occupational Health When duty arose: 10/12/19 15 Factual basis for failure to make reasonable adjustments: I had to leave work early following the distress of the above meeting. On even date, I felt better after taking some medication and sought to self-refer to the Occupational Health Service, and returned to work the next day. The Respondents "Sickness and Attendance Management Procedure" permits self-referral but I was 20 advised by the service this was not possible, and instead a consented referral was made on my behalf by the Respondent: "On 10 December 2019, Derek attended a meeting as a witness in support of a former work colleague. He subsequently advised that he found aspects of the meeting distressing and, as a result, has requested to be referred to Occupational Health.". The 25 Respondent then made a replacement, non-consented referral on 17/12/19 which added in "Additionally, Derek has indicated that not progressing his grievance concerns is having an impact on his health. Derek's grievance concerns and the support he provided to the former work colleague relate to events of March 2018 and the aftermath of them." also including the 11 30 disability questions supplied by Mr Maclean, the solicitor representing the Respondent. A consented referral was not made until 10/02/20 by which time matters had deteriorated further: "Derek is currently working from home due to an ongoing situation in the workplace. Derek reported feeling unsafe and removed himself from the workplace on Monday 13th January. He has been 35 instructed to work from home whilst a process takes place to uncover the nature and mitigation of the danger he feels in the workplace. Derek has reported that prolonged uncertainty and working from home is having a detrimental impact on his health. A referral is sought with a Physician to consider reasonable adjustments and other measures to facilitate Derek's 40 return to the workplace. Advice is sought on whether a joint meeting with Derek, his manager, a trade union representative and the Physician would be appropriate at this time.". With the appointment on 25/02/20, 77 days had elapsed since I first sought to self-refer. What reasonable adjustments should have been made: A timeous 45 appointment with the Occupational Health Service should have taken place. 4104107/2020; 4104157/2020 and 4105478/2020 - Reasonable Adjustments

46. Reasonable Adjustments: Line Manager Support & Effective management of workplace stressors When duty arose: 27/02/20 Factual basis for failure to make reasonable adjustments: I shared with Mr Lynch the Occupational Health Report of 13/02/20vii which I had obtained 5 privately due to the Respondents failures. This report diagnosed me with an Adjustment Disorder together with Post Traumatic Embitterment Disorder. The report states "symptoms are unlikely to resolve where workplace stressors persist. It is difficult to say at this stage whether his symptoms will continue if/when there is satisfactory resolution of his ongoing workplace stressors but 10 he is likely to require psychological support in order to increase the likelihood of a good recovery. Effective management of workplace stressors is key to facilitate recovery". This reiterates advice given in the first Occupational Health report, of 04/01/19iv, which advised "I would recommend allocating protected time to focus on ongoing Line Manager support with regards to the specific 15 workplace stressors Mr Dawson identifies and will continue to be exposed to throughout an ongoing University investigation.". There was little to no line manager support and effective management of workplace stressors. What reasonable adjustments should have been made: I should have been lined managed by an individual capable of giving effective support to me and 20 managing my workplace stressors. This failure is evident over a long period of time in the reasonable adjustment claims of 4110829/2019 and 4114716/2019, including my request to be appointed a different line manager, which was declined.

47. Reasonable Adjustments: Conclusion & Meetings When duty arose: 27/02/20 25 The Occupational Health Report of 17/02/20viivi recommends "the appeals process is concluded as expeditiously as possible", that appeals process being relative to the grievance the Respondent instigated from my disclosure of 07/11/18i. The physician also envisaged physical "meetings related to his absence and to the current procedural issues, but only if these are held in a 30 mutually acceptable location" and a further review in 4 weeks after which "If things are not progressing at this stage then it may be that a joint meeting as suggested in your referral would be a good way to start to move things forward". My Occupational Health Report of 22/08/19 stated "I believe that attending this appeal and reaching an outcome of this issue will allow Derek to 35 move forward.". Contrary to the intent the advice, on 20/03/20 the Respondent concluded the grievance process arising from the disclosure of 07/11/18i via a brief email, without hearing the second stage appeal. None of the envisaged meetings regarding my absence or current procedural issues took place. On 21/04/20 the Respondent concluded the whistleblowing 40 process arising from the disclosure of 07/11/18i, via a brief email. What reasonable adjustments should have been made: The stage two appeal should have taken place. In person meetings should have been arranged to communicate the conclusion of the processes and their outcome.

48. Reasonable Adjustments: Post Traumatic Embitterment Disorder (PTED) 45 When duty arose: 01/04/20 Factual basis for failure to make reasonable adjustments: Following a discussion with Mr Lynch, I sent him a link to a resource on the National Bullying Helpline website titled "What is Post Traumatic Embitterment Disorder?" which included a section on advice for employers. Mr Lynch advised me that he had read the material. The advice for employers included: a) Engage with the employee and encourage them to talk about what is troubling them. To be both listened to and to feel believed goes to the very heart of the embittered mind. b) In-house Policies and procedures should be updated to reflect the fact that PTED is a disability. It is an illness. Follow your procedures and work with mental health experts. c) Do not force Mediation. It will likely be a waste of time, money and resources. The embittered mind is incapable of empathising with others and believes it 10 is others who need to change – not them. d) Do not rush into a Performance Improvement process. The PTED mind will resent a heavy-handed approach. e) Don’t expect too much from the employee who has trust issues. Be open and honest and reassuring. Appoint a ‘workplace buddy’ if appropriate. f) Work with an Occupational Health expert who understands PTED. g) Consider Coaching. A good Coach will not tell their Client what to do. Coaching may provide the embittered mind with the tools they need to look to the future. h) Talk openly about PTED to the employee in question. Reference the work of both Professor Michael Linden and The National Bullying Helpline … It will 20 also demonstrate to them that you have a reasonable understanding of what they are going through. The events narrated in 4104157/2020 of May 2020 show Mr Lynch and the Respondent had failed to heed the advice given in any meaningful way. What reasonable adjustments should have been made: The National Bullying 25 Helpline advice should have been considered and implemented: Mr Lynch should have engaged with me and encouraged me to talk about what is troubling me; ensured procedures were followed; avoided a heavy-handed approach; be open and honest and reassuring; appoint a workplace buddy; work with an expert who understands PTED; provided coaching; talk openly 30 about PTED and show an understanding of what I was going through. 49. Reasonable Adjustments: Joint Review Meeting When duty arose: 07/04/20 Factual basis for failure to make reasonable adjustments: The four week review took place on 06/04/20 amidst the initial disturbance of the COVID-19 35 pandemic advising of the difficulty of obtaining GP/OHS appointments; and that there would likely be significant disruption to arranging further Occupational meetings to expedite a resolution to my situation in a timeous manner; and it was likely unfeasible to arrange a joint meeting in the short term. What reasonable adjustments should have been made: A meeting between 40 me, my trade union representative, Mr Lynch and others should have been arranged and taken place, even without Occupational Health input.”

[50]The claimant did not directly respond to the respondent’s submissions that the amendment came out of time or indeed that amendment was required. 45 Accordingly I instructed my clerk to write to the claimant on the 9 June asking him what his position was and whether he accepted the respondent’s position that the Better and Further Particulars were in effect an amendment. In that letter the claimant was referred to the leading case of Selkent and to the principles around amendment. The claimant quickly responded. He suggested that some claims could be traced back to a chronology that had been lodged in January 2020. The respondent’s solicitor wrote on the 11 June reminding 5 the Tribunal of the terms of the original PH Judgment which allowed the claimant to recast some claims and not add new ones. They pointed out that the Early Conciliation took place in relation to the case between 7 and 28 August 2019 and the claims were out of time before any reference was made to such matters in the Chronology. His position was that the claims had no 10 reasonable prospects of success and that there were no pleadings to point to any substantial disadvantage suffered. The claimant had only mentioned claims in Paragraphs 21.4,21.6,21.7 and 21.8 but that Paragraphs 46,47,48 and 48 are new.

[51]The claimant initially did not fully accept Mr McLean’s analysis and his response drew a further letter from the respondent’s agents on the 14 June ending that being able to ‘trace back’ a claim was insufficient to articulate one. The claimant in his email dated 14 June formally sought leave to amend ‘‘such that anything which the respondent asserts is new or time barred ..is not treated 20 as such by the Tribunal and struck out’’. He then addressed the ‘‘Selkent’’ principles dealing with the nature of his amendment (where it was relevant to look at whether it was relabelling existing facts) time limits and the timing of the application. He pointed out that he was a litigant in person with no previous experience of the Tribunal process. He had obeyed Tribunal directions and had 25 done everything possible to keep his claims up to date.

[52]Ultimately, I preferred the analysis of Mr McLean and I agree that although some refence to certain facts can be traced back this is not a simple relabelling exercise. The claimant had ‘pushed the envelope’ by seeking to add additional 30 claims. The Tribunal has wide powers of amendment and a party can seek leave to amend at any stage before Judgement and accordingly the matters identified in the Better and Further Particulars will be treated as amendment as both parties now agree.

[53]It might be helpful for the claimant to understand what is meant by a reasonable adjustment and what a claimant must aim to prove to demonstrate a breach of 5 the Equality Act by failing to implement one. Before doing so I would stress that a reasonable adjustment is not just some event or decision that a claimant wanted to happen differently. A PCP or ‘provision criteria or practice’ of the employer must be identified that puts the disabled person at ‘substantial disadvantage’.

[54]The claimant initially made a number of claims for an alleged failure to make reasonable adjustments following his GP’s letter putting the respondent’s management on notice that he was suffering stress t work. I mentioned in the PH Judgment that time bar issues arose. We now have pleadings that are a 15 mixture of some issues that were struck out, some new issues and some recast ‘old’ ones. The pleadings for a lawyer are not easy to follow but I accept that some latitude must be given to the claimant who is a party litigant subject of course to the respondent not being prejudiced. As noted earlier he has gone beyond what was envisaged in the PH Judgment by adding new claims without 20 getting the Tribunal’s authority to do so. I would observe that the initial adjustment claims were that the grievance process that the claimant had initiated should have been dealt with more quickly and the a more specific adjustment that he should have been given a new line manager at some point.

[55]At the outset it is important to identify what relates to matters that were struck out by the PH Judgment and what are new. The matters struck out previously cannot be resurrected and the new matters require to be the subject of amendment. Time bar is of course something that should be taken into account in whether or not to allow an amendment but the Tribunal has a wide discretion 30 as noted earlier and it is only one factor.

[56]Turning to paragraph 34 this relates to whether it was a reasonable adjustment to take the claimant off a project involving CCTV. He had initially been allowed to give up involvement but was then reassigned to it. The pleadings are still deficient. There is no reference to a suggested PCP or to substantial disadvantage although reading the pleadings as a whole the claimant alleges 5 that this decision to reallocate the work caused him unnecessary stress.

[57]Paragraph 35 related to the issue of delay and on the face of the bald facts there has been a significant delay but there may, of course, be an explanation for those delays. The respondent’s lawyers say that no PCP has been 10 identified. The claimant seems to try here and add an additional adjustment relating to the provision of support. The respondent says that there are no pleadings to support a substantial disadvantage being caused.

[58]The claimant has done himself no favours by not focusing on the full statutory 15 basis for his claims. However, reading the pleadings as a whole it is apparent that he says the failure to deal with these processes quickly caused him stress and prolonged any such stress unnecessarily. The claimant pleads that the respondent ‘‘deliberately protracted these processes …..in order to maximise the damage to me’’

[59]In his pleadings the claimant adds that he was distressed at a particular hearing not taking place or what happened at a meeting and so on but this is not the issue he is founding upon in that passage. The issue is whether it was a reasonable adjustment to try and expedite the process (and whether this could 25 reasonably be done) and if so what would have been likely to result. It would be open to a Tribunal to consider whether it was a reasonable adjustment in the circumstances and whether it would have then alleviated a possible substantial disadvantage namely the additional stress that an unresolved process could have caused.

[60]There are, however, further difficulties. It is not clear why the delay occurred and whether it was a decision of one person or more likely the cumulative effect of a number of decisions. I was not referred by parties to the recent Court of Appeal case of Ishola v Transport for London which I think contains important guidance. A one-off act, here a decision not to investigate a grievance before dismissal was held not to be a PCP. There has to be some sort of continuing state of affairs or repetition of behaviour. I would add that the 5 Claimant might benefit from reading the case. At paragraph Lady Justice Simler said this: ‘‘In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination 10 and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into 15 the application of a discriminatory PCP. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it 20 occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in 25 future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. In that sense, the one-off decision treated as a PCP in Starmer is readily understandable as a decision that would have been applied in future to similarly situated employees. However, in the case of a one-off decision in an individual 30 case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to "practice" as having something of the element of repetition about it. In the Nottingham case in contrast to Starmer, the PCP relied on was the application of the employer's disciplinary process as applied and (no doubt 35 wrongly) understood by a particular individual; and in particular his failure to address issues that might have exonerated the employee or give credence to mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual's case and by inference, 40 there was nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way.”

[61]It might be viewed differently if it had been possible for the claimant to demonstrate some sort of likely repetition or ongoing state of affairs. I bear in mind that we do not have detailed pleadings from the respondent clarifying their position. In Paragraph 177 of the PH Judgment I made reference to a possible claim around a reasonable adjustment to expedite the claimant’s 5 grievance because of the stress an unresolved grievance apparently had on him and did not strike it out. The claimant deals with this mater in Paragraph 35 referring to the Occupational Health Report dated 21 February 2019 referring to avoiding ‘‘undue delay’’. The claimant attended a grievance hearing on the 20 May and had an outcome on 20 March 2020. He alleged 10 breaches of the respondent’s policies. We are concerned about the period from February 2019 to March 2020. The previous delay having resulted before the claimant says the duty began.

[62]This particular matter does require amendment. It was considered as part of 15 the pleadings at the previous PH hearing and permission given to lodge Better and Further Particulars. In the whole circumstances I am not prepared to strike out this claim (delays in carrying out and concluding the grievance process) and will allow amendment subject to reserving the issue of time bar. I cannot assess whether it has little reasonable prospects of success or not as much 20 will depend on the factual reasons for the delay and as yet there is no detailed response from the respondent explaining the reason for delay.

[63]In relation to Paragraph 34 it is noteworthy that the original complaint (Para 138 of the PH Judgment) refers to various forms of discrimination including 25 disability discrimination, harassment and detriment. This is now recast as a reasonable adjustment claim which is out of time. Paragraphs 36 and 38 are new matters and require an amendment.

[64]Paragraph 39 relates to the use of an alternative to an HSE stress assessment. 30 This was dealt with in Paragraph 160 of the PH Judgment. The claims were struck out and have been reinstated. I repeat what I wrote there: ‘‘What happened at the meeting seems on the face of it wholly unremarkable’’ That is still my conclusion and it is disappointing to note that the issue has simply returned to us and is required to be considered again with the time and expense that causes. The claimant must understand that just because something happened in a way that he did not approve of or would have done 5 differently does not mean that there is a failure to make a reasonable adjustment. Similarly, the unsatisfactory meeting with Professor Leydecker formerly Incident 42 and now Paragraph 37 had made reference to reasonable adjustments and those claims were struck out. I cannot understand why the matter now reappears. The claimant writes: ‘‘The meeting with Professor 10 Leydecker served no purpose, caused me more harm than good, and should either not have taken place or taken place consistent with the Occupational Health recommendations. I should not have been accused of theft without any evidence or investigation.’’ I am not sure how the claimant could reasonably analyse the situation as having any PCP being in play. The reasonable 15 adjustment sought seems to effectively be things should have gone as the claimant wanted them to. For the avoidance of doubt even if this was not already struck out there is no reasonable prospects of success for such a claim.

[65]Paragraphs 41,42 and 43 relate to a suggested reasonable adjustment of 20 referring the claimant for counselling, allowing him to acquire annual leave and not progressing a referral to Occupational Health. The latter does not amount to a valid adjustment as it is a means to an end to identify reasonable adjustments not an adjustment in itself. These are wholly new claims that require amendment.

[66]Paragraph 44 relates to the involvement of the claimant in a colleague’s grievance hearing. This was previously Incident 62 and was struck out. Once more the matters reappear this time solely under the heading of reasonable adjustments. The claimant attended this meeting and suggests that 30 reasonable adjustments arose: ‘‘I should have been notified in advance of the participants and provided with an agenda. I should have been introduced in the same way as the other participants. My request to read a pre-prepared statement, or excerpts from it during the meeting, should have been accepted.’’ Again, this seems to be no more than a complaint that things should have been done differently. There is no PCP nor does one seem to exist from what we are told. This matter was struck out but for the avoidance of doubt these claims have no reasonable prospects of 5 success.

[67]Paragraph 45 was formerly Incident 63 and which was struck out. There are now some new facts pled which would require amendment. Once more the deficiencies noted earlier are apparent. What is the PCP? If it is the refusal to 10 accept self-referrals then this on it’s own seems a policy that is within management discretion and neutral to both those who were disabled and those who are not. An adjustment has to be ‘reasonable’ and it is foreseeable that self-referral could be readily abused by individual staff member incurring considerable expense. There is no indication of what the substantial 15 disadvantage would be given that the claimant could ask for a management referral and has his own GP to seek support from. For the avoidance of doubt this matter as pled has no reasonable prospects of success and is struck out.

[68]Paragraph 35 formerly Incident 61.The claimant was given an opportunity to recast his pleadings. He has now stated that the reasonable adjustment is: ‘‘The Respondent should have concluded the processes much sooner, to avoid or minimise uncertainty and delay. The Respondent should have 25 managed my expectations in terms of what action and/or feedback I could expect as well as clear timescales for providing updates. The Respondent should have followed its processes and procedures as they applied to me, or mutually agreed a deviation from those processes and procedures.”

[69]There is no reference to a PCP or to what the substantial disadvantage is. However, while I am hesitant to let such an adjustment stand it is capable of giving the respondent’s sufficient notice that delay in their processes might be likely to adversely affect the claimant’s health (whether they did or not would be a matter for proof) and whether there were any good reasons for such delays. In the circumstances I am of the view that there are little reasonable prospects of success and I fear that any hearing could end up as a long-winded trawl through events both large and small. In addition the issue of time bar remains extent. A Deposit Order will be made in a sum to be ascertained later.

[70]Paragraph 40 (formerly 58 and 59) related to various matters principally a change in line manager. We have no clear PCP and what appear to be discrete one-off decisions relating to the whole department. The claimant contends: ‘‘Meaningful supervision should have taken place as described by the Occupational Health Service. The Respondent should have followed its grievance procedure. Prolonged uncertainty and undue delay were not avoided (as per para 35 above). The Respondent should have changed my line manager on a temporary or permanent basis, and ensured the support 15 envisaged by the Occupational Health Service was provided. As per incident 34, struck out as standalone - the temporary re- organisation/restructure unexpectedly made Mr Lynch my permanent line manager without any of the consultation required via the Respondents change management procedure, which should have been followed.’’

[71]This is difficult to follow and what for example ‘‘meaningful supervision’’ means is not clear. It is not clear what the substantial disadvantage is that would be avoided other than the general assertion that having the same line manager was stressful. The issues here are struck out as having no 25 reasonable prospects of success apart from the adjustment relating to a change of line manager.

[72]The respondent’s pointed to Paragraphs 46 (appointment of a new manager in February 2020), 47 (failure to allow a stage two stage appeal), 48 (a failure to 30 make adjustments in April/May 2020) and 49 (a failure to arrange a Joint Review Meeting). These matters all required amendment.

[73]The respondents sought Strike out/ Deposit in relation to other claims made in their fourth and fifth categories which related to matters raised in the Fourth and Fifth claim which they argued had no reasonable prospects of success Paragraphs 62 i-iv, 65 onwards Paragraphs 73, 74-76 ,77, 78-79 ,82, 84-88. The claimant had recorded that Paragraphs 50-54 are background but in 5 Paragraph 60 he draws out some potential claims. The respondents submitted that the claimant could not reasonable believe that the events narrated amount to unlawful detriment or harassment.

Disposal

[74]The claimant says that he was harassed because of his protected 10 characteristic namely disability. In his original claim he had alleged that he had been discriminated against on the ground of his religion or philosophical belief. In Paragraph 62ii related the claimant’s grievance being dealt with ‘seriously’ and this is said to be a detriment arising from disclosures. There is no linkage or nexus with the disclosures. The next matter relates to interactions with Mr 15 Lynch that seem unremarkable and again no indication of how this could relate to the disclosures. The word detriment has a wide meaning but it is not so wide as to encompass behaviour that is only subjectively regarded as upsetting. Paragraphs 65 onwards of the BFPs relate to matters which had previously been raised in the Fifth Claim. The Respondent notes that the Claimant has 20 stopped clearly categorising the various claims he makes amidst these paragraphs, and will respond where a claim appears to be identified.

[75]In paragraph 73 the claimant says his dismissal was automatically unfair because of whistleblowing yet as the respondent’s agents point out this was 25 some two years earlier. As noted earlier the claimant has not pled a causal link between these events. To succeed he would have to demonstrate that the dismissal related to the much earlier alleged disclosure. This would be a time consuming and costly exercise which would be likely to lead to evidence being led and rebutted about the sort of numerous events the claimant has pled over 30 a two year period. I have considerable misgivings about allowing this claim to proceed. It could be seen as an invitation to try and lead evidence about all the peripheral events that seem to prey on the claimant’s mind. It would not be such an invitation. It would be up to the claimant to demonstrate, at least a prima facie case that the matters are somehow linked. From the pleadings before me he will struggle to do so but I will not strike out the claim. Considering the matter in the round I am reluctantly of the view that I cannot rule that this has no reasonable prospects of success given that it is so fact sensitive. 5 However, this matter has little prospects of success and will be subject to a Deposit Order in a sum to ascertained later.

[76]Turning to Paragraphs 74-76 and 87. The claimant writes at 76 and 87: ‘‘The Respondent consistently refused to make reasonable adjustments for 10 me, including to change my line manager due to the evidenced history of Mr Lynch's unwanted conduct, lack of support and behaviours which I found antagonistic, harassing and distressing.’’ ‘‘The dismissal could have been handled in a manner which minimised the severe psychological distress caused to me. For example, holding a meeting 15 with me where I could be accompanied by a trade union representative; suspending me to provide forewarning; providing me with particulars of the allegations and allowing me to give an explanation of the matter; responding to my grievances of 24/04/20 and 02/06/20; responding to the accident I logged on 02/06/20; holding the joint Occupational Health meeting; seeking 20 appropriate medical advice. The respondent should have sought my permission prior to the visit to my house on 01/07/20 and informed me in advance of who was visiting and for what purpose. The Respondent failed to make these reasonable adjustments.’’

[77]If these Paragraphs intended to found separate claims then they fail to specify the adjustments properly or provide the basis for them i.e give the PCP etc. I suspect they are more likely to be summarised background but for the avoidance of doubt as a separate stand alone basis for claims they have no reasonable prospects of success and are struck out. In relation to Paragraph 30 87 the words ‘‘The Respondents failed to make these reasonable adjustments’’ should be removed from the text.

[78]Dealing with Paragraph 77 it has two mixed claims the first being under Section 20 of the Equality Act and the second detriment arising from Whistleblowing. The claimant writes: ‘‘The 22/05/20 email I sent to colleagues was a consequence arising from my disability and therefore Section 15 of the Equalities Act 2010 affords me 5 protection. I was treated unfavourably because the email arose in consequence of my disability. The Respondents' treatment is not a proportionate means of achieving a legitimate aim: it is a means by which to circumvent protections afforded to employees by statute and dismiss me as a whistle-blower.’’

[79]The respondent’s position was that the email was only one element in their assessment that there had been a break down in trust and confidence. The claimant does not specify how the email is connected to his disability or was in some way a symptom of it for example of impulsivity and whether he 15 apologised or retracted it. To succeed the claimant would have to show what was in the minds of the people who dismissed him and that they did so because of his disability. The pleading do not adequately support either claim. Neither claim has any reasonable prospects of success and are struck out.

[80]In Paragraphs 78-79 the claimant refers to dismissal for Health and Safety reasons or for disability. It is unclear factually how such claims could arise as the respondent ‘s agents point out. These matters are not thought through and so vague and unspecified that they seem to be simply a way of adding 25 complexity to an already complex situation. There is no basis pled for dismissal under Section 100 of the ERA. These allegations are struck out as having no reasonable prospects of success.

[81]In Paragraph 82 the Claimant suggests his dismissal related to his 30 religion or belief. The matter is put thus: ‘‘In the "case for dismissal" obtained via a subject access request, it is narrated that it is perplexing why not resigned and to paraphrase, "putting me out of my misery" was a factor in the recommendation and decision to dismiss. As of 10/01/20 the Respondent was fully aware of my Christian beliefs and the doctrine I was endeavouring to apply by "turning the other cheek", as per Joint Bundle for the PH of 18/06/20 p332. At the PH of 18/06/20 the tension between the Respondents continued poor treatment and desire to dismiss me, against my refusal 5 to resign was discussed. This is detailed in an email I sent to the Tribunal following the PH of even date: "I feel that it is wholly incompatible with my religious and philosophical beliefs (particularly "turning the other cheek" - see joint bundle p332) to resign and claim constructive dismissal.". In the 4105478/2020 ET3 it is stated "The 10 Respondent did not know that the Claimant held the belief that his Christian religion required that he not countenance resignation" which is evidentially untrue. I contend I have been discriminated against because of my "religion or belief" and this was a significant factor in my dismissal. That I endeavoured to "turn the other cheek" placed me at a 15 particular disadvantage, that being that an individual without my "religion or belief" would have found the situation so unbearable as to have resigned long ago. A comparator here is Dr Marie’’.

[82]How the claimant’s religion or belief played a part in his dismissal 20 remains obscure. There is no ‘smoking gun’ to suggest that someone like the claimant holding conventional/traditional religious or political beliefs was dismissed because of those beliefs and there is no underpinning pleadings to suggest such motivation on the part of the respondent. The claimant had recycled these matters which were 25 struck out in the PH Judgment and they now appear in relation to the unfair dismissal element. They have no reasonable prospect of success and are struck out.

[83]In Paragraphs 84-88 the claimant complains of harassment that: ‘‘Mrs Dyker obtained my personal email address and used it on 01/07/20 to send me the dismissal letter as an attachment within an email. It is "scandalous, unreasonable or vexatious" for the Respondent to have used the personal data I had supplied to the Tribunal in this way. This action was undertaken without consideration or respect, violated my dignity, and was 35 personally offensive to me. It caused me severe psychological distress.’’

[84]It is understandable that the claimant found his dismissal unsettling but there is nothing untoward in what occurred given that he was working at home. Nor is there any suggestion that some legal obligation towards him has been broken or that any employment claim arises. Whether any distress was genuine or hyperbole is something that the Tribunal hearing the unfair dismissal may touch on but is of no relevance to the claim for unfair dismissal where injury to feelings is not a relevant head of claim. These matters have no reasonable prospects of success and are struck out.

[85]The respondent’s agents then turned to what they described as Category 5 the Fourth Claim made. Their position was that if the whole case was not struck out then they did not seek separately strike out of the unfair dismissal claim. They acknowledged that dismissing an 10 employee for a breakdown in trust and confidence in these circumstances without meeting to discuss the proposed termination was unusual. Accordingly, the (‘‘ordinary’’) unfair dismissal claim will now proceed to a hearing. Expenses

[87]There are two matters that have to be considered before an expenses (costs) 20 order is made. The first is whether the rule is engaged and the second is whether the Tribunal should exercise its discretion to make an award at all.

[88]I do not minimise the difficulties that party litigants face when drafting pleadings especially in discrimination cases. The claimant also has mental health issues 25 which are referred to in the report he has lodged. He has not suggested how this impact on his actions. He is clearly an able person and has demonstrated this in a number of ways such as the detailed research he has carried out on issues and the lengthy and complex nature of his pleadings. He was also a Trade Union representative at the University. He is not the average party 30 litigant and has skills and experience (including the ability to research matters on the Internet) which he can deploy.

[89]A feature of many of the events relied upon is that the claims he says arise from those events have evolved as the case had proceeded. It is difficult to understand how a claim can mutate from one of say an honest belief in discrimination on the grounds of philosophical belief to one of discrimination 5 on the grounds of disability when that entails a wholly different reason for the alleged discriminatory behaviour. I described the claimant’s approach in the previous Judgment as being a scatter gun approach. He has certainly now focussed on disability discrimination (no doubt because these were the matters left extant following the previous hearing) but it is difficult to understand why 10 he considered so many apparently anodyne interactions with the respondent’s staff give rise to so many claims and this in turn gives rise to the suspicions, voiced by the respondent’s agents, that the claims are being manufactured; old claims relabelled and matters made needlessly complex with the result, whether intentionally or not, the claimant’s behaviour is objectively 15 unreasonable and should attract an award of expenses. I bear in mind that a litigant in person should be judged less harshly than a legally qualified person but the way the litigation is being conducted arguably does not seem to arise wholly out of oversight, ignorance or inexperience.

[90]If the respondent insists for the matter of expenses should be decided on the basis of the papers before me then I will consider doing so. However, I have to be convinced that a particular order is appropriate and proportionate. Now that the strike out /amendment process has (I hope) ended this is a convenient point to consider the application. I accept that it might be lost sight of by the 25 time the case is finally heard. I am, however, of the view that it is unsatisfactory to conclude the matter on the basis of the current application which was made some time ago and does not attempt to detail the precise behaviour complained of. This makes it difficult for the claimant as a party litigant to meaningfully respond. In addition, the Tribunal has no indication of the 30 expenses incurred say for the individual strike out hearings. It is not necessary for expenses to be allocated to particular acts of unreasonable behaviour but it would be helpful when considering whether a lesser award that the expenses of the proceedings should be contemplated I would therefore invite the respondent’s agents to make additional submissions on this matter particularly in relation to how they allocate the expenses between the hearings (to which the claimant will be entitled to respond) before coming to a concluded view. This will also allow the claimant to provide details of his current financial 5 position which a Tribunal can take into account when considering the level of expenses and the appropriate sum to fix as a Deposit. Employment Judge James Hendry Date of Judgement 10th January 2022 Date sent to Parties 10th January 2022 EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4105478/2020 Claimant: Mr D Dawson Respondent: University Of Aberdeen CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 In accordance with the power set out in Rule 69 of the Employment Tribunal Rules of Procedure 2013, I hereby correct the clerical mistake(s), error(s)or omissions(s) in the Judgment dated 11 May 2021 and sent to parties on 10 January 2022 shall be amended as follows: In paragraph 9 of the head note of the Judgment on line 23 the full stop shall be deleted and the following added: “subject to a Deposit Order in the sum of £500’’. An amended version of the Judgment is attached. Important note to parties: Any dates for the filing of appeals or reconsideration are not changed by this certificate of correction or the amended Judgment or Case Management Order. These time limits still run from the date of the original Judgment or Case Management Order, or if reasons were provided later, from the date that those were sent to you. Signed J M Hendry Employment Judge Date: 14 October 2022 Sent to parties 14 October 2022 E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) 5 Case No: 4105478/2020 (P) Held on 11 May 2021 Employment Judge J M Hendry Mr D Dawson Claimant In Person University Of Aberdeen Respondents Represented by: Mr. N MacLean, 20 Solicitor

Disposal

[1]Any claim for harassment arising from Incident 1 having been withdrawn is dismissed.

[2]Any claims arising from Incidents 23 and 30 (Paragraphs 15-32) and are struck out as having no reasonable prospects of 35 success along with any claims for detriment said to arise from incidents described in Paragraphs 17, 18, 19, 20, 21, 23, 26 and 28.

[4]Any claims for detriment or discrimination under Section 15 of the Equality Act 2010 arising from Paragraph 77 are struck out as 5 having no reasonable prospects of success.

[5]5A. The claim under Section 100 of the Employment Rights Act is struck out as having no reasonable prospects of success. 5B. The claim for automatically unfair dismissal under Section 103A of the Employment Rights Act having little reasonable prospects of 10 success will be subject to a Deposit Order in the sum of £500.

[6]Any claims in Paragraph 82 that the Claimant’s dismissal related to either his Religious or other beliefs having no reasonable prospects of success are struck out.

[7]Any claims for harassment/victimisation arising from Paragraphs 7- 15 15 are struck out on the grounds that they have no reasonable prospects of success.

[8]Any claim for detriment arising from Paragraphs 7-15 (Incidents 3 and 5) will be subject to a Deposit Order the amount of which to be afterwards ascertained. 20 9. The claim for reasonable adjustment in Paragraph 35 relating to prolonged delay and uncertainty in concluding the claimant’s grievance shall be allowed as an amendment and shall proceed to a hearing, subject to a Deposit Order in the sum of £500. 9B.The claims in Paragraph 40 relating to reasonable adjustments over 25 supervision and line management having little reasonable prospects of success shall be subject to a Deposit Order in the sum of £500. 9C Any claims arising from Paragraph 62 having no reasonable prospects of success are struck out.

[10]The claim for a reasonable adjustment relating to change of the 30 claimant’s line manager on or around October and November 2019 shall be allowed as an amendment and shall proceed to a hearing reserving the issue of time-bar. 10A Other than the claims referred to in points 1-9 above of the Judgment all other claims for reasonable adjustments are struck out.

[11]The application for expenses is reserved meantime. 5 REASONS 1. The claimant raised various claims against his employers having commenced some claims whilst in employment and following his dismissal, further claims including a claim for unfair dismissal. I will refer to claims 4110829/2019 and 10 4114716/2019 as the first and second claims and claim numbered 4104157/2020 as the third and 4104107/2020 as the fourth. The claims have been conjoined. 2. It would be pointless rehearse the long procedural history of the case at least 15 at the outset. The claimant’s Better and Further Particulars lodged on 16 December 2020 superseded all previous pleadings and encompasses all claims both pre and post dismissal. 3. Some historical matters however, must be touched on. The first and second 20 claim proceeded to a strike-out hearing on 18 June 2020 (June PH Judgment) and following that hearing many of the claims made were struck out. However, the claimant was given an opportunity of recasting his pleadings in relation to some remaining claims which he has done in his Better and Further Particulars. 25 4. Both parties lodged written submissions. The respondent’s submissions were lodged on 4 February 2021 and the claimant’s submissions were contained in correspondence but his primary position was set out by him in the Better and Further Particulars itself which contains an amalgam of pleadings and submissions. 5. One further matter should be mentioned and that is there was a fifth claim (4105478/2020). The Tribunal understood that because the fifth claim was in effect a duplicate of earlier claims (which the claimant accepted) and that as such it given it served no purpose should be dismissed. I accordingly dismissed the fifth claim believing that the claimant had consented to this. There appears perhaps to have been some misunderstanding about this matter with the claimant later arguing after the dismissal that it should not have 5 been formally dismissed but simply rolled up into the other claims. The claimant seems in retrospect had become concerned that the recording of the dismissal in the public record might reflect in some adverse way on his current claims against the University. The dismissal as is normal practice simply refers to the claim number and not the type of claims that have been dealt with. The 10 decision in any event has not been appealed and the fifth claim remains dismissed. 6. The claimant also wrote to the Tribunal on 3 February 2021 enclosing a copy of a report from a Dr. Michael Bott, a Consultant Psychiatrist. In the conclusion 15 of the report the claimant is noted as having been diagnosed with having what is termed an ‘‘Adjustment Disorder and Post Traumatic Embitterment Disorder’’. I record this as the claimant has asked the Tribunal to take this into consideration when determining the respondent’s strike out application. It is not clear how such information can impact on the strike-out application itself 20 which is an exercise in considering the pleadings. The strike out application must be dealt with in accordance with the Employment Tribunal Rules and any sympathy the Tribunal has for the claimant’s medical condition (which has not yet been the subject of any factual enquiry by the Tribunal or acceptance by the respondent) cannot sway it’s decision except perhaps in the limited 25 circumstances where it is considering whether the claimant is likely to succeed at some point in proving he was disabled by this condition at the time of events. It is unclear if the report is being used to try and assist the claimant with any issue of amendment but I think not as it does not suggest that the claimant was hindered because of his condition in taking timeous action against the 30 University but it may have some relevance is assessing the claimant’s behaviour when considering expenses. Strike Out Application 7. The respondent’s application for strike-out is made under Rule 37. They seek strike out of the whole claim which failing strike out of various claims. In relation to certain incidents, they also seek as an alternative a Deposit Order to be put in place before those claims proceed. This case is not easy to follow so I will 5 begin with the respondent’s submissions but this Judgment should be seen as a continuation of the earlier strike out Judgment. Respondent’s Submissions 8. The respondent’s solicitors remain concerned at the claimant’s 10 behaviour in particular the lodging of multiple claims and the reintroduction of ‘‘old’’ claims causing the maximum burden on the respondent and their agents. They doubt that he is acting in good faith. They draw attention to the report from the claimant’s physician Dr Bott and how his condition may be driving his behaviour. 9. The respondent’s position was that the June PH Judgment allowed the claimant to articulate claims arising from the events pled at the point of the first strike out application namely in relation to specific incidents (58,59 and 60). After the first strike out hearing we were left dealing 20 with two disability discrimination claims involving an adjustment relating to expediting the internal appeal/grievance process and change of a line manager (60). The claimant referred to four incidents in his pleadings (58 and 59): a change of line manager in October/November 2019 and (60 and 61) delays around the grievance process. 10. The claimant has they noted expanded the list of possible reasonable adjustments (Paragraphs 33 onward). The respondent’s position was that matters dealt with in the June PH Judgment are now res judicata and the new adjustments that are pled should be dealt with as an 30 amendment. They submitted that the application should be refused as being considerably out of time and that it would significantly add to the breadth of the matters before the Tribunal with the implication that it would add considerably to the time and expense involved in dealing with these matters. 11. The new or resurrected causes of action according to the respondent’s 5 agents were detailed as follows: a) Paragraph 34 – the claimant’s allegations in relation to the reallocation of the CCTV project originally cast as “Incident 37” and which was struck out by para 139 of the PH Judgment. The incidents 10 cited by the claimant took place on 04/03/2019 and 28/03/2019 and therefore to the extent not covered by the strike-out decision in para 139 of the PH Judgment, are out of time. b) Paragraph 36 – the claimant’s objections to the Occupational Health appointment on 31/01/19 and the warning that not attending

[15]Occupational Health appointments was a breach of his contract were originally cast as “Incident 36” and was struck out by para 137 of the PH Judgment. The incidents cited by the claimant took place on 30/01/19, 21/02/19 and 29/03/19 and therefore to the extent not covered by the strike-out decision in para 137 of the PH Judgment, are 20 out of time. c) Paragraph 37 – the c l aimant’s dissatisfaction with his meeting with Professor Leydecker was originally mentioned under “Incident 42” and allegations in relation to this, including a failure to make reasonable adjustments, were struck out by para 146 of the PH Judgment. The 25 claimant’s attempt to resurrect this claim should be refused on the grounds of res judicata. d) Paragraph 38 – this is the first time in the context of the claimant’s various tribunal claims that the claimant has formally raised complaints about not being able to send an email to colleagues to “clear his name” 30 in September 2019, and not being allowed to work from home. To the extent the BFPs are taken as an application to amend, the events having taken place in September 2019, the application should be dismissed in this regard on the basis of time-bar. e) Paragraph 39 – the claimant’s issues with what he regarded as the recommended HSE risk assessment tool were originally cast as “Incident 51” and were struck out by para 161 of the PH Judgment. The incident cited took place on 11/09/19 and therefore to the extent not 5 covered by the strike-out decision in para 161 of the PH Judgment, is out of time. f) Paragraph 41 – this is the first time in the context of the claimant’s various tribunal claims that the claimant has stated a belief that the Respondent failed in its duty to make reasonable adjustments by not 10 referring him to counselling on 30/08/19. To the extent the BFPs are taken as an application to amend, the alleged failure having taken place in August 2019, the application should be refused in this regard on the basis of time-bar. g) Paragraph 42 - this is the first time in the context of the claimant’s 15 various tribunal claims that the claimant has stated a belief that the respondent failed in its duty to make reasonable adjustments by not allowing him to acquire additional annual leave on 03/09/19. To the extent the BFPs are taken as an application to amend, the alleged failure having taken place in September 2019, the application should 20 be refused in this regard on the basis of time-bar. h) Paragraph 43 – this is the first time in the context of the claimant’s various tribunal claims that the claimant has stated a belief that the Respondent failed in its duty to make reasonable adjustments by Mr Henderson not progressing a referral to Occupational Health. To the 25 extent the BFPs are taken as an application to amend, the alleged failure having taken place in November 2019, the application should be refused in this regard on the basis of time-bar. i) Paragraph 44 – the claimant’s issues with Dr Marie’s grievance appeal hearing was originally described under “Incident 62” and allegations in 30 relation to this, including a failure to make reasonable adjustments, were struck out by para 183 of the PH Judgment. The claimant’s attempt to resurrect this claim should be refused on the grounds of res judicata. j) Paragraph 45 – the claimant’s inability to self-refer to Occupational Health was originally cast as “Incident 63” and was struck out by para 185 of the PH Judgment. By the claimant’s own narration, “the Respondent then made a replacement, non-consented referral on 5 17/12/19”. The claimant complains both that he was unable to refer himself to Occupational Health, and that a referral was made by the respondent. The claimant’s attempt to resurrect this claim should be refused on the grounds of res judicata. To the extent that the BFPs are taken as an application to amend, the time period of the alleged failures 10 was December 2019 to February 2020, and therefore to the extent not covered by paragraph 185 of the PH Judgment it should be refused on the grounds of time bar. k) Paragraph 35 – contrary to the paragraphs discussed immediately above, this paragraph recasts the pleadings previously made under 15 “Incident 61” (delay in actioning a grievance) accordingly conforms to the instructions given in the PH Judgment. However, the respondent submits that the pleadings on this issue do not meet the test of having reasonable prospects of success, in that they do not disclose that the claimant was put to a substantial disadvantage by virtue of any 20 alleged provision, criterion, or practice of the respondent’s. This claim should be struck out, or, in the alternative, only be allowed to proceed subject to a deposit order under Rule 39 of up to £1,000 on the basis that the claim has little reasonable prospect of success. l) Paragraph 40 – similarly, it is acknowledged that this paragraph recasts 25 the pleadings previously made under “Incident 58 & 59” and accordingly conforms to the instructions given in the PH Judgment. However, the respondent submitted that the pleadings on this issue do not meet the test of having reasonable prospects of success, in that they do not disclose that the claimant was put to a substantial disadvantage by 30 virtue of any alleged provision, criterion, or practice of the respondent’s. This claim should be struck out, or, in the alternative, only be allowed to proceed subject to a deposit order under Rule 39 of up to £1,000 on the basis that the claim has little reasonable prospect of success. Claimant’s Submissions12. The claimant opposed the application. He wrote on the 3 February that he was unable to work and incapable of submitting a more detailed submission. His position was that he had assisted in saving 5 expense by agreeing that the strike out should be dealt by submissions rather than at a public hearing. He expressed disappointment at what he saw as the respondent’s behaviour and was disappointed that the Tribunal had not taken a stronger line with them. He had he wrote set out the unvarnished truth. Discussion and Decision

13. This Strike Out application is in effect round two following, as it does the issue of a Strike Out Judgment following a hearing on 18 June 2020. Parties fully 15 canvassed the legal framework at that hearing but I will summarise that framework and then deal with amendment and expenses. The Legal Principles

14. Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure)

[20]Regulations 2013 provides that: "37. Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds -

[25]

(a) that it is scandalous or vexatious or has no reasonable prospect of success;….. (c) for non-compliance with any of these Rules or with an order of the Tribunal …" 15. In applying the Rules the Tribunal must have regard to the overriding objective in Rule 2: “Overriding objective 30 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall 5 seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall cooperate generally with each other and with the Tribunal.” 13. It has been recognised that striking out is a draconian power that must be 10 exercised carefully. If exercised it would prevent a party from having their claim determined by a Tribunal. The legal principles applicable in relation to the striking out of discrimination complaints pursuant to this Rule are wellestablished. In the House of Lords case of Anyanwu & Ano v South Bank Student’s Union and Ano

2001 ICR 391

, Lord Steyn said as follows: 15 "24. … Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. Against this background it is necessary to explain why on the allegations made by the 20 appellants it would be wrong to strike out their claims against the university." At paragraph 39 in the judgment of Lord Hope of Craighead, said as follows: "Nevertheless, I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to [be] taken up by 25 having to hear evidence in cases that are bound to fail." 14. In Ezsias v North Glamorgan NHS Trust

2017 ICR 1126

,CA ,a case referred to by both sides, the Court of Appeal was considering a case involving public interest disclosure and held that a claim should not ordinarily be struck out where there was a:

[30]"29. … crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. … It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the 35 facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. …"15. In the more recent case of Ahir v British Airways plc

[2017] EWCA Civ 1392

, Underhill LJ said as follows:

"16. … Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the 5 danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to 10 other phrases or adjectives or by debating the difference in the abstract between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable 15 prospect of success'." 16. I will deal with the application for strike out of the entire proceedings first of all. While I sympathise with the respondent’s position and agree that this case has become unusually burdensome I do not accept that matters have reached the 20 high threshold required to allow me to strike out the entire claim at least at this stage. The claimant has statutory rights and a Tribunal must be slow to remove those rights without an enquiry into the facts. The respondent can challenge and continue to challenge the claimant’s behaviour and seek expenses which is what they have done. I also bear in mind that the claimant was dismissed 25 and is entitled to challenge that dismissal. The difficulties arise in relation to the multitude of other claims that the claimant says predate the dismissal. Quite correctly the respondents refer me to the report of Dr Bott which suggests that the claimant’s behaviour is driven by his condition. I am not clear on the claimant’s position and how he regards the terms of the report but that is likely 30 to be a matter that will ultimately almost certainly be canvassed at a full hearing when the Tribunal will be in a far better position to assess the claimant’s motivation. Amendment

17. The first matter to consider is the claimant’s application for amendment.

[35]Relevant Law 18. The claimant seeks to amend his application to include claims for disability discrimination. The Tribunal has wide powers of amendment. The starting point for the Tribunal is the “Overriding Objective” in Rule 2 which provides: 5 “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and 10 importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. 15 ……..” 19. A Tribunal must seek to give effect to the overriding objective in interpreting, or exercising any power given to it in the Rules. In the context of applications to amend the Tribunal should have regard to the case of Selkent Bus 20 Company Ltd v Moore

[1996] IRLR 661

(which was followed by the EAT in Scotland in Amey Services Ltd and another v Aldridge and others

UKEATS/0007/16

). The EAT held that, when faced with an application to amend, a Tribunal must carry out a careful balancing exercise of all the relevant circumstances, weighing up the balance of injustice or hardship that would be 25 caused to each party by allowing or refusing the application. This would include the nature of the amendment, the applicability of time limits, and the timing and manner of the application. 20. In this case the amendment purports to introduce claims which appear clearly 30 time barred. Given that the claimant was already underway with his various discrimination claims against the University it is difficult to believe, and he does not specifically say this, that he was not aware of the three-month time limit. Time bar was raised by the respondent in their Agenda for the case management hearing in November 2019 (case 4110829). It was discussed at the June PH in 2020. The time limit for a discrimination claim to be presented to a Tribunal is 3 months starting with the act complained of (section 123(1), 25 Equality Act 2010). Section 123(3)(a) of the Equality Act 2010 provides for continuing acts of discrimination, where acts of discrimination extend over a 5 period are treated as having occurred at the end of that period. The question a Tribunal should ask in such circumstances is whether the employer is responsible for an “an ongoing situation or a continuing state of affairs” in which the acts of discrimination occurred, as opposed to a series of unconnected or isolated incidents (Hendricks v Metropolitan Police Commissioner [2002] 10 EWCA Civ 1686). There must be facts and circumstances which are linked to one another to demonstrate a continuing discriminatory state of affairs. The Tribunal should consider the nature of the conduct and the status or position of the person responsible for it. I have some difficulty finding a ‘golden thread’ between the various incidents involving as they do different people and 15 situations. 21. The Tribunal has the power to grant a just and equitable extension of time if a claim is out of time. It can allow a late claim to be presented in such further period as it considers just and equitable (section 123(1)(b)). In the case of 20 British Coal Corporation v Keeble & Others

[1997] IRLR 33

sets out a checklist of factors which a Tribunal should consider when deciding whether to refuse or grant an application to extend the time limit. These are: a) The length of and reasons for the delay, b) The extent to which the cogency of the evidence is likely to be affected by the delay, c) The extent to which the party 25 sued had co-operated with any requests for information, d) The promptness with which the Plaintiff acted once he or she knew of the facts giving rise to the cause of action. e). The steps taken by the Plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action. 30 22. In the case of Mensah v Royal College of Midwives

UKEAT/124/94

, Mummery.J. said that knowledge is a factor relevant to the discretion to extend time. Tribunals are therefore entitled to ask questions about a claimant’s prior knowledge, including: when did the claimant know or suspect that they had a claim for discrimination; was it reasonable for the claimant to know or suspect that they had a claim earlier; and if they did know or suspect that they had a claim, why did they not present their complaint earlier. Amendment is more 5 often granted where it can be argued that the ET1 contains facts which support the amended claim and that the exercise is one of ‘‘ relabelling’’ In this context although the claimant has pointed to references to events in a Chronology he cannot point in general to the pleadings as such for assistance except in relation to the matters of adjustments mentioned in the June PH Judgment. 10 Better and Further Particulars 16 December 2020. 23. I accept that the respondent’s agents have correctly identified the matters that would entail amendment. Whether to allow such amendment also entails considering the pleadings and whether sufficient notice is given of individual claims and significantly in this case whether such new claims are out of time. 24. I remind myself that following the last hearing I wrote at follows at paragraph 199: ‘‘I accept that striking out is a draconian step and that it should be done in limited circumstances. I considered this case to be exceptional on the basis 20 firstly that the various incidents pled did not seem to justify the multitude of claims made even when read together with other incidents and reading those pleadings liberally and in a non-technical way. After reading the pleadings it is not clear in general why the claimant believes any particular type of discrimination arises. He fails to set out why he thinks his employers in breach 25 of their legal obligations. He employs a large cast list of individuals and a multitude of incidents but despite his labours the same criticism applies all the claims namely the nexus between the facts and the claims made is not apparent. The reasons ‘‘why’’ actions are taken and in what way those actions are therefore discriminatory are not even speculated upon. The second 30 exceptional matter is that the claimant himself does not give the reason why he believes a particular type of discrimination is in play and in a number of instances, he provides explanations for decisions taken which are perfectly plausible and yet not discriminatory. After every narrative incident the reader is left wondering how the facts pled amount could possibly amount to this or 35 that type of discrimination. It is worse than a scatter gun approach as there seems to be no answer to the query why this particular type of discrimination and not another arises when we are given a multiple choice of several possibilities’’. 25. Before finalising this Judgment I asked the claimant to confirm whether he accepted the respondent’s analysis that these matters were new and required to be addressed as amendment. I had the Tribunal Clerk write to the claimant 5 on the 9 June 2021 bringing this matter to his attention and referring him to the Selkent principles. His initial response was that some matters could be traced back to a Chronology lodged on the 10 January 2020 and were in time (Incident 56 and 59). Mr McLean responded indicating that he did not accept the brief references in that document gave his client’s notice of properly articulated 10 claims. He once more drew the Tribunal’s attention to the claimant going further than the first strike out Judgment allowed. He pointed out that although some matters were raised on the Chronology document the duties to which they related arose some time before and were time barred by the 10 January 2020. He reaffirmed that matters contained in Paragraph 46,47,48 and 49 were 15 raised for the first time. 26. The claimant responded on the 11 June stating that Incidents 56, 58 and 59 were put before the Tribunal in case 4114716/19 on the 17 December 2019. His position was that Para 24 refers to his BFP of 12 January 20121, Para 46 20 traced back to earlier claims, Para 47 traced back to emails to the Tribunal in March 2020 and the hearing in June 2020, Para 48 to the hearing in June 2020 and 49 to the fourth claim and the hearing on 18 June 2020. This prompted a further response from Mr McLean essentially that tracing an issue back to some factual matter is insufficient to give notice of a claim. The claimant 25 responded at length on the 14 June now addressing the sort of factors that Selkent indicates are important. He stressed he was a litigant in person and had responded to Tribunal orders timeously. 27. The June PH Judgment dealt with the claimant’s pleadings (at that point) and 30 I will not repeat what was decided. Suffice to say the claimant did not set out an adequate claim for reasonable adjustments either at that point or at an earlier point in the first and second claims and that is why he was given the opportunity of recasting his pleadings on this matter to set out a claim for reasonable adjustments specifying what adjustments he was seeking and when the duty arose. Mr McLean is correct in his submission that the original pleadings were wholly insufficient to give anything more than notice of vague allegations. One example being that in the meeting that occurred on the 4 5 October 2019 which the claimant originally gives as background and contains no ‘‘acts complained of’’ (as he puts it) is an invitation to change his line manager. It is not stated by him as a reasonable adjustment at that stage. Nevertheless, the Judgment allowed him to recast his pleadings around the matters described as incidents on the 4 October and 4 November 2010. That 10 has now been expanded to some 16 separate claims for reasonable adjustments. 28. One matter that I have noted is that the Judgment ordered the claimant to provide further details of the proposed claims but made no specific reference 15 to the substantial disadvantage that would be alleviated by the adjustment. He has been frequently referred to the Equality Act and should have realised that he needs to plead what substantial disadvantage he suffered which would be alleviated by the adjustment. Similarly, there is no reference to PCP’s. There are many problems with the multitude of adjustments sought and the claimant’s 20 own pleading of when the duties arose to make them shows that the claims are considerably out of time. Some adjustments contended for appear impossible (Para 37). The unsatisfactory meeting with Professor Leydecker has become an adjustment not to have had the meeting or frankly to have had a meeting that the claimant liked more. This is nonsense and I am sure as a 25 rational person the claimant must be aware of that. 29. Time bar is only one factor that requires to be considered. Even if the claimant was correct and some of these matters can be seen to have their genesis earlier in the chronology this is not a straightforward relabelling exercise: these 30 are new claims. 30. The proposed amendments if allowed would considerably lengthen and make more complex an already difficult case and hearing. The respondent would have difficulty in responding to the claims given the way they have been articulated. In Para 36 one adjustment there is that the respondent should have obtained the claimant’s consent for an Occupational Health referral. The claims are often vague for example a meeting should have taken place ‘‘consistent 5 with the Occupational Recommendations’’ (Para 37). The claims have not been properly formulated and looking not just at the pleadings but at the basis on which adjustments are contended for it is unclear what substantial disadvantage the claimant could have faced that would have been ameliorated. 10 31. These are all factors which the Tribunal is entitled to consider when exercising its discretion whether to allow amendment. The claimant on the other hand will lose potential statutory claims. Examination of the Pleadings 15 32. I will now set out portions of the claimant’s Better and Further Particulars to assist in an understanding the various claims now being pursued and the issues that arise and how I intend dealing with them. 33. The PH Judgment did not strike out some incidents and is summarised below 20 (reference is made to various numbered paragraphs that narrate factual happenings (‘Incidents’) that occurred and these were the paragraph numbers used in the claimant’s original pleadings that were scrutinised in the PH Judgment): (Harassment 23 and 32). Detriment alternatively incidents 23 and 30, incidents 58, 59 and 60 and 61(Reasonable Adjustments). Incidents 3 and 25 5 were also permitted to continue subject to a Deposit Order. 34. In relation to Incident 1 (Harassment/detriment) this related to an interaction with another staff member. I note that this (has not been proceeded with and is solely background). Accordingly, any claim arising from Incident 1 shall 30 be dismissed. 35. The respondent’s agents helpfully expressed their submissions on the basis of four categories of incidents that had to be addressed firstly in Category I those reflecting matters that had to be determined following the original PH Judgment; secondly matters which related to the period of time dealt with by that Judgment (Category 2); thirdly new matters raised in the Better and Further Particulars (Category 3) and finally fourthly matters raised in the third 5 and fifth claim which the respondent believes has no reasonable of success (Category 4). Incidents 3 and

[36]As described by the claimant: “On 13/03/18, as part of a protest, students had occupied the management 10 corridor at the University. The incident was commanded by Mrs Caroline Inglis and Professor Mike Greaves (Interim Senior Vice-Principal). The students’ understanding was that they would be given free access in and out of the building, as both Mrs Inglis and Professor Greaves signed a note approving free access in and out, but this was subsequently not permitted. The students' 15 posted on social media that they were being denied access to a disabled toilet. In response to these events, I posted a photograph of an unnamed senior managers car (with the number plate obscured) parked in a disabled parking bay in violation of the parking policy. An Aberdeen UCU member had witnessed the parking infringement and reported it to me. The car was that of 20 Mrs Inglis, and at her request of even date, I removed the post. 8. On 14/03/18 I was involved in an incident at the University that caused me considerable distress. On the day of the incident some students were attempting to access the occupied building but were prevented from doing 25 so by security staff. The students within the building were enclosed within a corridor. I was outside the building at the time of the incident and was concerned for the students’ safety. The decision was taken to send in two members of staff to check on the students’ welfare. Despite being the least experienced of the available staff in terms of student welfare, I was instructed 30 by Mrs Inglis to go into the building against my wishes. 9. Once I had entered the building, I noticed that the atmosphere was very charged and that the students were very upset. I stayed with the students and tried to mediate between them and the security staff and senior 35 management. The aggressive attitude of the security staff and senior management made it an intimidating and hostile environment. I later established that some of the students had been assaulted by a member of senior management, Mr Angus Donaldson (Director of Estates & Facilities). 40 10. Following the incident, I found myself thinking about the events on a regular basis. My sleep was disturbed, and I became extremely distressed. I felt that my values in terms of fair play and transparency had not been honoured. My family and colleagues noticed that I was not myself. I was angry and making out of character outbursts. 11. On 20/03/2018 I advised several senior managers of my severe psychological 5 distress but no action was taken. 11. [Incident 5 - PH 18/06/20 Judgement, extract from para 78: "The claim in relation to the claimant having been victimised in relation to the alleged protected disclosure relating to the alleged abuse of disabled parking 10 spaces and "victimisation" (harassment of a trade union representative) shall be treated as a claim for detriment and shall be allowed to proceed subject to a deposit order."] 12. On 26/03/18 I repeated my concerns to Mr Lynch, unexpectedly appointed as my temporary line manager the previous month, and Mr Henderson, my Head 15 of Section. On the same day I was signed off work by my GP due to stress, until 01/04/18, followed by two weeks of annual leave. No further action was taken by the Respondent. 13. The Respondent investigated the 14/03/18 incident and an injury reported by a member of security staff. The investigation concluded 08/05/18. A 20 colleague (Dr Dannette Marie, the AUCU vice-president/vice-chair, my deputy) and I were named in the report. I was not interviewed. I felt unfairly discriminated against by association and this added to my distress. I was also upset about the allegations made against my colleague and her subsequent treatment. This was compounded when the investigation report 25 was leaked by Principal Diamond before he left his post in June 2018. The report targeted me without justification, and I felt victimised. I continued to report my distress to my managers, but no action was taken. 13a) On 1st June 2018 Principal Diamond emailed myself and others to advise "As you may already be aware, I commissioned a report into the disturbance 30 involving members of staff and students which took place on 14 March 2018 during the recent student occupation of the University Office building. I have considered this report in detail and have decided to convene a short‐life working group to identify key “lessons learned” from the incident.". Representatives from each of the four recognised trade unions were invited 35 to participate. The Aberdeen UCU executive committee appointed me to the UCU seat. However, before the inaugural meeting of the group I was advised by Mrs Crabb, the clerk, that "Your participation in the meetings during the occupation means that you are conflicted in terms of your membership of the working group". Professor Margaret Ross was allowed to participate in the 40 working group in her capacity as a senior manager, despite - as I found out later - her being the person who facilitated the students entry into the University Office building on 13 March 2018. 13b) In September and October 2018 I endeavoured to use functions bestowed upon me via the Safety Representatives and Safety Committees Regulations 1977 to investigate the Student Occupation. However, I had no choice but to conclude my investigation after receiving a "cease and desist" style letter from my employer, who refused to co-operate with me. 14. I found myself unable to continue in my trade union roles, resigning on 5 02/11/18. All members of the Respondents' staff are responsible to the University Court through a line management structure that includes a reporting line to the Principal. I intimated a protected disclosure in writing to Professor George Boyne, Principal & Vice-Chancellor on 07/11/18 (Professor Boyne having succeeded Professor Sir Diamond on 01/08/18). In 10 summary the disclosure was that the Respondents' investigation into injuries reported by a security guard on 14/03/18 was a cover up to excuse the serious failings of senior managers (Mr Donaldson, Mrs Inglis and Professor Greaves) and the security guard (Mr Cox), by improperly shifting blame to Dr Marie. The former Principal described the investigation report as "non15 factual". I assert there is a danger to health and safety; wrongdoing is being covered up; there has been criminal activity and a miscarriage of justice. Professor George Boyne acted by passing my disclosure of 07/11/18 own and inward within the organisation, through the hierarchy of Mrs Inglis (Professor Boyne's direct report) and onto Mrs Debbie Dyker (Mrs Inglis 20 direct report) for handling, meaning Mrs Inglis, who was implicated in the disclosure (eg. incident 3,5), had had influence and control over its investigation. The investigation was facilitated by Mrs Dyker, who had history of antagonising me because of my trade union activity. Acting as a trade union representative, I had shared details of an email 25 exchange between Mrs Dyker and myself (without naming either party) with union members in 2017, which had seemingly embarrassed Mrs Dyker. She took umbrage and cancelled various trade union meetings for many months, citing me as the reason, and refusing to attend meetings with me. On or around 05/03/18, I met Mrs Dyker and Mrs Fiona Smith (HR Manager) 30 unexpectedly on the pavement outside the university whilst I was on strike and fulfilling the statutory role of "Picket Supervisor". Mrs Debbie Dyker entered into conversation with me. She enquired if I thought that she woke up every day thinking "whose life am I going to ruin today" and accused me of deliberately causing damage to her mental health, as per Incident 1.”

[37]The respondent seeks strike out of these incidents which failing Deposit Orders. I note in passing that Paragraph 5 relates to a financial settlement made with the former Principal and the role of Mrs Inglis and Mrs Dyker in that. This seems to be part of a pattern of trying to bring Professor Ian Diamond and 40 controversy around his tenure into these proceedings for no obvious purpose. This appears to have no relevance whatsoever to the claims being advanced yet by being pled invites the respondent to answer the irrelevant allegations.

[38]If the posting of the photograph is capable of being a protected disclosure, (and this is not accepted by the respondent) or the health and safety ‘‘disclosures’’ then the claimant must assert a link between the disclosure relied upon and 5 subsequent events. The earlier Judgment found that what appeared to be being asserted was that Mrs Kinmond was acting as she did because of Mrs Inglis (or because of someone else being able to influence future events) was angered at the claimant for photographing the car in a disabled bay or having the matter posted on the internet. On re-reading the amended pleadings the 10 claimant has failed to make such a link. I am not surprised given that it seems inherently unlikely. The third incident appears to be the claimant being asked to go and find out what was happening during the occupation. How this constitutes or could constitute a detriment is still unclear. It may be that the claimant has sustained some psychiatric injury by witnessing some events at 15 the occupation but this is looking at the matter with the benefit of hindsight. At the time Mrs Inglis asked the claimant to find out what was happening and there is no pleadings to infer that she thought she was putting him in some sort of danger or aware of that this might cause him future problems.

[39]In relation to the claim for harassment/victimisation that is said to arise from 20 these events I allowed it to proceed as a claim for detriment (on the basis that the claimant could demonstrate some detriment). I am not sure he has done so. Unfortunately, I have issued a Judgment indicating that Deposit Orders should be made and this was appealed to the EAT unsucessfully. In retrospect, I was premature in making such an order until the pleadings were clarified. I 25 am concerned that the respondent will be put to considerable cost in rebutting unspecific claims for detriment that seem to have a tenuous connection with the remaining claims. It will of course be open to the respondent’s agents to raise issues of relevancy at any merits hearing. These claims for detriment have little prospects of success. A Deposit Order will be made in a sum to 30 ascertained later.

[40]The Incidents 23 and 30 (Detriment) claims were described as follows: “[Incidents 23 and 30, 18/06/20 Judgement, extract from para 112: "It might be that the pleadings could be recast and I am reluctant to strike out the claims here without giving I a chance to argue he should be allowed to do so despite the claim not being listed by him as a detriment."; extract from 5 para 129: "Put shortly I believes that his disclosures were not treated properly and were misconstrued. If that is his position then that might possibly constitute a detriment. I will reserve the question of strike out meantime to allow I to consider this matter. He needs to set out which disclosure is at issue and what he says was the detriment."] 10 16. An external solicitor, Mrs Erica Kinmond, was appointed by Mrs Dyker as an agent of the Respondent to investigate my protected disclosure of 07/11/18. As far as I am aware, the appointment of an external solicitor to carry out the investigation of a complaint was unprecedented. I was assured Mrs Kinmond "is bound by professional obligations which mean that in accepting our 15 instruction to conduct an independent investigation she cannot and would not favour any particular party in that investigation". Following conclusion of the investigation it transpired Mrs Kinmond had been instructed with the "principal purpose of gathering evidence where legal proceedings against the University are a reasonable prospect". As such, the Respondent recognised 20 at the outset that it had likely acted unlawfully. Mrs Kinmond did not investigate my disclosure fairly or thoroughly, she endeavoured to prepare a robust legalistic defence for her client, to cover up wrongdoing. Due process was intentionally corrupted to avoid confirming the veracity of my disclosures and the legitimate concerns they contained. This is a form of detriment arising 25 because of my disclosure of 07/11/18. 17. Incident 28, struck out as standalone therefore background: The minute of the first of two investigation meetings between Mrs Kinmond and myself, on 06/12/18, was misrepresentative and misconstrued. The minute attributed words and phrases to me that I did not use, the most significant of which was 30 "I have trust and confidence issues". This was done deliberately, in order to facilitate dismissing me. The misconstruction of the meeting minute is a form of detriment arising because of my disclosure of 07/11/18. The second and final investigation meeting between Mrs Kinmond and I took place on 16/01/19 at her firm’s office. I attempted to show Mrs Kinmond the photographic 35 evidence in high resolution on my laptop and talk through the photographs. I had previously made available to Mrs Kinmond very small and blurry thumbnails of the photographic evidence, as part of my disclosure of 07/11/18i . I showed Mrs Kinmond the first photograph and started to orate a detailed description of the photograph, including pointing myself out within it, 40 which could not have been determined from the thumbnail. Mrs Kinmond stopped me from proceeding, and therefore failed to act to review the available evidence. Mrs Kinmond was aware there was something in the photographs that she sought to deliberately avoid. The overlooking of evidence in the investigation is a form of detriment arising because of my 45 disclosure of 07/11/18.19. At the meeting of 16/01/19, Mrs Kinmond spent around one hour reviewing the video evidence on my laptop, taking extensive notes and asking questions. As part of my response, I drew a detailed diagram of the scene to aid her understanding. Mrs Kinmond declined to share a note or minute for review. It was later evidenced her notes on the video evidence were misconstrued. The misconstruing of evidence in the investigation is a form of detriment arising because of my disclosure of 07/11/18.

20. At the meeting of 16/01/19, Mrs Kinmond asked me various questions in 5 relation to the extensive documents I had shared with her via Dropbox. No minute or note was taken or shared. The failure to share a note or minute of the meeting is a form of detriment arising because of my disclosure of 07/11/18.

21. At the meeting of 16/01/19, Mrs Kinmond provided me with a printed 10 document which outlined her interpretation of my disclosure, separated into two sections titled whistleblowing and grievance. Her interpretation trivialised whistleblowing and maximised grievance, forking one disclosure into two different investigations. This separation and the Respondents use of separate decision makers for each investigation, without sight or regard of 15 the alternate investigation report, meant a fair outcome could never be achieved. The disclosure should have been investigated as considered as one. This is form of detriment arising because of my disclosure of 07/11/18.

22. The Respondents grievance procedure states "Meetings will be conducted in a manner that enables all parties to explain their cases" yet this 20 did not occur, as described above. This is a form of detriment arising because of my disclosure of 07/11/18.

24. The Respondents grievance procedure states "each step and action under the procedure will be undertaken as quickly as practicable and without unreasonable delay" yet there was unreasonable delay, the process only concluding after 499 days on 20/03/20. This is a form of detriment arising 30 because of my disclosure of 07/11/18 As evidenced by the grievance investigation report, Mrs Erica Kinmond did not interview anybody who was likely to corroborate my disclosure of 07/11/18i , nobody whose name I put forward as a suggestion, and asked only one simple written question of a person likely to corroborate the disclosure (that the Principal Diamond had 35 described the investigation report as "non-factual"). Mrs Kinmond saw fit to interview 12 other individuals, and question in writing 2 other individuals, none of whom were likely to corroborate my disclosure. Most significantly, and most obviously, not even Dr Marie was interviewed prior to Mrs Kinmond concluding her investigations. This is a form of detriment arising 40 because of my disclosure of 07/11/18….. 29. Described within multiple incidents which have been struck out, following my disclosure of 07/11/18i I have been subject to humiliating and demeaning comments or behaviour; "gaslit"; insignificant issues about conduct being unduly highlighted; the Respondent subsequently not handling grievances, 45 whistleblowing and health and safety issues such that the Respondent did not take them seriously or deal with them in a proper manner. 30. My disclosure of my 07/11/18 describes in detail my severe psychological distress, but no action was taken. Such intervention could have been to offer support, timeously refer me to the Occupational Health Service or meet with me informally or formally. This is a form of detriment arising because of my disclosure of 07/11/18. 31. The Respondent did not follow the Acas Code of Practice on disciplinary and grievance procedures……. As described herein, the Respondent fell 5 markedly short of this. This is a form of detriment arising because of my disclosure of 07/11/18. 32. I also contend that as a form of detriment arising because of my disclosure of 07/11/18i the Respondent failed to make reasonable adjustments for me, as described below. It did so in a futile attempt to affect my resignation.’’ 10 41. The respondent’s agents point to the original strike out Judgment in which I observed that it was unclear how the various alleged events interact with the possible disclosure. Their position was that although recast the pleadings do not provide any greater clarity. They say that an unjustified sense of grievance cannot amount to a detriment. 15 42. I agree with the respondent’s criticisms of the pleadings. It should be borne in mind that we are now looking at a second alleged disclosure made on the 7 November 2018. The pleadings are still no more than a narrative of events that the claimant did not like. How some of these matters could in any event amount to a detriment is unclear. The claimant alleges that some of his 20 evidence for example was misconstrued. It is not made clear how this could be a detriment or how it could lead to a detriment. The claimant simply does not address the issue of cause and effect despite invitations to do so. How did or could the disclosure impact on later events and what was the detriment caused to him? In addition, it is disappointing that the claimant 25 has referred to Mrs Kinmond allegedly being involved in unprofessional behaviour, covering matters up as he sees it and preparing a ‘‘legalistic defence’’ to cover up wrongdoing.

[43]Turning to Paragraph 29 it is not good enough to refer to ‘‘multiple incidents’’ or demeaning comments. This does not give the respondent fair notice of 30 the claimant’s position. If as he seems to indicate it refers to claims previously struck out then there should be no reference to them unless some of the factual background supports remaining claims.

[44]Additionally I would also specifically mention Paragraph 31 contains reference to the ACAS Code and it is alleged that the respondent’s actions fell short of the guidance contained there. It remains unclear exactly what the precise detriments were although the claimant has set out some general matters and how they relate to the alleged whistleblowing.

[45]The matter of causation is straightforward. Section 47B(1) of the Employment 5 Rights Act 1996 says that an employee shall not suffer any detriment ‘‘by his employer done on the ground that the worker has made a protected disclosure’’. (my emphasis). The claimant’s pleadings are still wholly deficient in identifying exactly what the detriments amount to and why the flow from the disclosure. 10 46. I repeat the claimant’s pleadings here as the beginning of disability discrimination claims and paragraph 26 related to a further alleged detriment. “25. Incident 35, struck out as standalone therefore background - Mrs Kinmond continued to ask me questions via email. On 30/01/19 she asked "When 15 did you receive a diagnosis that you are suffering from Post Traumatic Stress Disorder?". The same day the Respondent made a referral to the Occupational Health Service, requesting a medical assessment by a named physician, to ask the question "Has Mr Dawson received a formal diagnosis of PTSD?". The referral was made without my knowledge or 20 consent and is therefore deeply suspicious. When I determined what had occurred, I was advised I would be in breach of the terms and conditions of my contract of employment if I did not attend the appointment. This is improper use of the Occupational Health Service and evidences the improper nature of the investigation of my disclosure being used to gather 25 "evidence where legal proceedings against the University are a reasonable prospect", rather than investigate the disclosure impartially and properly, as I had been assured.”

[47]These incidents narrated in paragraphs 16-32 do not give rise to validly plead claims and any such claims have no reasonable prospects of 30 success and are stuck out. It is not clear where the claims for detriment end and background begins so for the avoidance of any doubt any claims for detriment arising from paragraphs 17, 18, 19,20, 21,23. 26 and 28 are also struck out for the same deficiencies that I have identified.

[48]Claims relating to alleged failures to make reasonable adjustments (Paragraphs 33 49) were made as follows (the original incidents were 58,59,60 and 61. First he sets out the background. 5 “33. When: 22/02/2019 How: My Occupational Health Report of 21/02/19 states "Mr Dawson has been experiencing symptoms affecting his psychological wellbeing following a workplace incident in March 2018. He is receiving appropriate advice from his GP and has been referred for specialist opinion and for therapy with another specialist support service. His symptoms are 10 persistent and are likely to be considered long term. His symptoms have a substantia impact on his normal day to day activities and as such, although it is ultimately a legal question, an Employment Tribunal is likely to consider his condition as covered by the disability provisions of the Equality Act 2010." What that disability is: A consultant psychiatrist has diagnosed me with an 15 Adjustment Disorder with Mixed Anxiety and Depressive Reaction and Post Traumatic Embitterment Disorder.34. Reasonable Adjustments: CCTV Project  When duty arose: 22/02/19  Factual basis for failure to make reasonable adjustments: My Occupational 20 Health Report of 21/02/19 states "I recommend that he is not allocated to the CCTV project as the nature of this project is that it is likely to trigger an exacerbation of his symptoms". At my request, the CCTV project work had previously been reallocated by Mr Lynch on 14/12/2018. However, it had not been progressed, and was given back to me on 04/03/2019. I was advised 25 nobody else could undertake the work, which was unreasonable given the nature of the project and size of/resources available to the Respondent. I duly commenced work on the project, which I found difficult and stressful, but ultimately delivered a key document. Having done so, the project was put on indefinite hold on 28/03/2019, meaning the stress of the work was 30 wholly unnecessary. It therefore felt like a cruel form of punishment.  What reasonable adjustments should have been made: I should not have been reallocated to the CCTV project.

35. Reasonable Adjustments: Prolonged uncertainty and undue delay 35  When duty arose: 22/02/19  Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "University processes ... may be distressing and prolonged uncertainty may be detrimental to his health and well being. I therefore advise that they are 40 concluded without undue delay.". The "University processes" refer to the protected disclosure I intimated to Professor Boyne on 07/11/18. I signposted Professor Boyne to the UK Government "Guidance for Employers and Code of Practice" on 20/11/18. This states, as an example of good practice, to "Manage the expectations of the whistleblower in terms 45 of what action and/or feedback they can expect as well as clear timescales for providing updates". I repeatedly made this and other similar requests, yet next to no meaningful information was provided and uncertainty was prolonged. The timeline is represented …… Principal Boyne refused to meet or talk with me. My line manager Mr Lynch was unable or unwilling to provide meaningful support. I was passed from pillar to post, receiving scant little feedback along the way. The grievance "hearing" on 20/05/19 was nothing of the sort: the outcome was 10 predetermined and I was handed a letter detailing the outcome. The grievance stage one appeal "hearing" on 02/09/19 was a charade, as the outcome had already been predetermined. The Respondent advised it could not follow its grievance procedure as it applied to me. The grievance process was then concluded by the Respondent unilaterally and the second stage 15 appeal process/hearing did not take place, much to my disappointment and distress. The grievance process concluded on 20/03/20, 392 days after the duty arose to avoid prolonged uncertainty and undue delay. The whistleblowing process concluded on 21/04/20, 424 days after the duty arose to avoid prolonged uncertainty and undue delay. 20 The Respondents grievance procedure states allows 15 working days for an appeal to be lodged, and permits appeals at two stages. As can be seen the "ball was in the Respondents court" for the overwhelming majority of the circa 500 days processes were active. It is unreasonable, given the size of and resources available to the Respondent, for it to have let these 25 processes run for so long. The respondent deliberately protracted these processes, processes which the Respondent directly controlled (and of which I had no control), in order to maximise damage to me. Prolonged uncertainty and undue delay in terms of the 05/09/19ii disclosure was also evident. I was advised this was to be subsumed into the extant 30 21/02/19 "Grievance" process which was pending a stage 2 appeal hearing. Ultimately, the process was concluded unilaterally by the Respondent on 20/03/20, 197 days later, without evidence of any investigation having taken place in relation to the 05/09/18 disclosure. 35  What reasonable adjustments should have been made: The Respondent should have concluded the processes much sooner, to avoid or minimise uncertainty and delay. The Respondent should have managed my expectations in terms of what action and/or feedback I could expect as well as clear timescales for providing updates. The Respondent should have 40 followed its processes and procedures as they applied to me, or mutually agreed a deviation from those processes and procedures.

36. Reasonable Adjustments: Occupational Health Review Meeting  When duty arose: 22/02/19  Factual basis for failure to make reasonable adjustments: An outcome of my 45 Occupational Health Report of 04/01/19 was the scheduling, by the service and at my request, of a review appointment on 29/03/19. In the interim I received an unexpected appointment for 21/02/19. It transpired the Mr Lynch had rereferred me to the service without my knowledge or consent on 30/01/19. I objected but was told I would be in breach of contract if I did not attend. As 5 such I attended the appointment, notwithstanding being on bereavement leave arising from the sudden death of my father a few days prior. My Occupational Health Report of 21/02/19 states "Mr Dawson will be reviewed by my colleague Karen Hudson, Nurse Advisor, on 29/3/19". I expected the telephone appointment to take place on 29/03/19 but it did not. I brought this to the 10 Respondents' attention. It transpired the surreptitious referral had caused the cancellation of the 29/03/19 meeting. As such, the review meeting did not take place. I made the Respondent aware of this. No further action was taken.  What reasonable adjustments should have been made: The Respondent should have obtained my consent and agreement for the February 2019 15 referral to Occupational Health. The Respondent should not have threatened me to be in breach of contract if I did not attend. The Respondent should have rearranged the appointment after I made it aware of the sudden death of my father. The Respondent should have rearranged the scheduled review meeting, cancelled because of its actions, I could not have rearranged it. 20

37. Reasonable Adjustments: Meeting with the Senior Vice-Principal  When duty arose: 22/02/19  Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "University processes ... I recommend that he is accompanied for support, that he is notified in advance of the participants 25 and provided with an agenda for any meetings". Professor Karl Leydecker, Senior Vice-Principal, telephoned me on the evening of 20/06/19 and requested to speak urgently and privately me about my disclosure of 07/11/18i . A meeting was duly arranged to take place at 10am the following day, 21/06/19. I had arranged annual leave for 21/06/19 and had commitments which meant 30 a telephone call was arranged. I then rescheduled these commitments and advised Professor Leydecker we could meet in person as first envisaged. The meeting duly took place. Given my repeated stonewalling by Professor Boyne, given the passage of time, given I was aware that Professor Leydecker had arranged a meeting with Dr Marie later that day, I "fell over myself": I thought 35 this was a 'break-through' and that the Respondent was finally going to acknowledge harm. I had incorrectly assumed that the meeting Professor Leydecker had requested was in order to provide me with an apology, in private, as this was one of the four outcomes I had sought from the outset. Furthermore, I had incorrectly assumed that Professor Leydecker would 40 discuss with Dr Marie her exoneration to realise another outcome I sought. In fact, the meeting served absolutely no meaningful purpose and it was unclear what, if anything, Professor Leycker sought to achieve by meeting with me, other than to satisfy his curiosity and "get the measure" of me. Dr Marie's meeting went similarly. I was emotionally crushed and overwhelmed. As a 45 consequence of my disability, I cleared my office of personal belongings over the weekend. I was absent through "Stress at Work" from 24/06/20 returning 09/09/20. On 26/06/20 my line manager made an unfounded accusation to me that I had stolen University property, later withdrawn.  What reasonable adjustments should have been made: The meeting with Professor Leydecker served no purpose, caused me more harm than good, and should either not have taken place or taken place consistent with the Occupational Health recommendations. I should not have been accused of 5 theft without any evidence or investigation.

38. Reasonable Adjustments: Communicating with Colleagues  When duty arose: 19/08/19  Factual basis for failure to make reasonable adjustments: During my sickness 10 absence for "Stress at Work" between 24/06/19 and 09/09/19, I shared with Mr Lynch a resource titled "Return to Work - Communicating with colleagues" which described its purpose to help "employees successfully return to work following depression, anxiety or a related mental health problem". The resource included various recommendations for supervisors and employees. 15 The advice for employees was to "discuss and come to a clear agreement with your supervisor about who is to be told and what they will be told". A significant barrier for me, as discussed with Mr Lynch, was the leaked report of the 14/03/18 incident which targeted me without justification and how I could "clear my name" with his colleagues. I contacted Mr Henderson, head of section, and 20 requested we speak before my planned return to work. He was unavailable. I requested to work from home until I could speak with Mr Henderson, this was refused. As such and because agreement could not be reached, I returned to work without being able to communicate my mental health problem to colleagues. Ultimately, on 01/10/19 the Respondent advised the leaked report 25 had "no standing" and on 02/10/19 announced the departure of Mrs Inglis, which did little to nothing to exonerate me and mitigate the damage so unnecessarily caused to the reputation and health of Dr Marie and myself.  What reasonable adjustments should have been made: I should have been supported and permitted to send an email to colleagues to "set the record 30 straight" and facilitate my return to work. I should have been allowed to work from home until I could speak with my head of section. The Respondents censuring the report should have occurred much earlier, and the mitigation should have went much further to undo the damage caused.

39. Reasonable Adjustments: Stress Risk Assessment 35  When duty arose: 30/08/19  Factual basis for failure to make reasonable adjustments: Occupational Health Report of 22/08/19 states "I would suggest that on Derek’s return to work a stress risk assessment is completed. This will highlight any particular areas of difficulty that Derek may experience, and a managerial solution can be 40 explored. You can find this resource online - http://www.hse.gov.uk/stress/riskassessment.htm"  What reasonable adjustments should have been made: Following sickness absence for "Stress at Work" from 24/06/19 I returned to work on 09/09/19, attending the first supervision with my line manager Mr Lynch on 11/09/19. 45 Mr Lynch advised that rather than use the recommended HSE risk assessment tool, he felt an alternate questionnaire would be better. Mr Lynch had printed two copies of a single page template document titled "NHS Grampian Occupational Health Service Stressor Assessment Questionnaire". I suggested I take away the questionnaire, complete it, and return it, allowing the meeting to focus on workload. Mr Lynch insisted on talking through the questionnaire and that he would take notes, type them up, and share them for review. The entire meeting was therefore focused on the questionnaire, during which Mr Lynch made succinct notes written within the limited space for notes 5 (the form being designed to be used electronically and expand accordingly). I took the other copy away with me to study further. Mr Lynch then typed up his notes, sharing them with me 16 days later on 27/09/19. As requested, I reviewed the notes, made some changes, and returned the document of even date. I had a supervision meeting with Mr Lynch on 30/09/19 during which Mr 10 Lynch advised I that I had included a lot in the revision which he felt we hadn't discussed, although when challenged conceded this. Mr Lynch stated his view that I was restating his case for the purposes of bringing my Employment Tribunal Claim [I had lodged a claim on 12/09/2019] and that what I had provided him was "not helpful" and that I was "looking back in the past and 15 looking for reasons to throw up problems". Following these unwanted comments, I excused myself from the meeting. The recommended "HSE risk assessment tool" records who might be harmed and how; what is being done to control the risks; what further action needs to be taken to control the risks; who needs to carry out the action; and when the action is needed by. In 20 contrast, the "NHS Grampian Occupational Health Service Stressor Assessment Questionnaire" is a basic questionnaire intended to be completed by a person experiencing work related stress, from their perspective. If any actions or managerial solutions were subsequently explored, they were not communicated to me. From my perspective, no action 25 was taken.  What reasonable adjustments should have been made: The HSE risk assessment template should have been used. I should have been allowed to complete the questionnaire myself, without any undue pressure. My expectations should have been managed in terms of what action and/or 30 feedback they can expect as well as clear timescales for providing updates. Managerial solutions should have been explored and the appropriate action taken.

40. Reasonable Adjustments: Supervision & Line Management Support 35  When duty arose: 30/08/19  Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 22/08/19 states "I believe Derek would benefit from having weekly supervision on his return to work and for the duration of his phased return as a way of offering further support at this time. It may be useful to 40 ensure supervision is carried out with a person whom is up to date with the incident and the processes that are ongoing as this will make the process more meaningful. You may reduce this to monthly at a time agreeable to both parties.". I sought to establish who could keep, or how I could be kept, up to date with the incident and processes that were ongoing. Mr Lynch advised me 45 that I would need to speak to "the appropriate member of management within the University" yet was unable to clarify who this was. Supervision in week one had comprised the "stressor assessment questionnaire" described above. Supervision in week two was cancelled because Mr Lynch was ill. Supervision in week three comprised the "stressor assessment questionnaire" described above, during which I had to excuse myself from the meeting due to Mr Lynch's unwanted comments and behaviour, as described above. I raised concerns about Mr Lynch in a grievance with Mr Henderson, line manager of Mr Lynch and head of section. Mr Henderson and I met on 04/10/19. I requested a 5 change of line manager. The request was declined. On 04/10/19 Mr Henderson emailed me to advise he declined to progress the grievance. Mr Lynch unilaterally ended weekly supervision with me. On 12/11/19 I emailed Mr Henderson to query the current situation. On 22/11/19 Mr Henderson advised he was now able to progress the grievance but would not change my line 10 manager until he personally had heard the grievance. This was contrary to the Respondent's grievance policy, which states another appropriate individual shall take the matter forward. I responded of even date and withdrew my grievance by virtue of the fact the Respondent had by then confirmed it was unable to follow its grievance procedure as it applied to me and the 15 Respondent refused to concede I was a disabled person for the purposes of the Equality Act 2010. Upon withdrawal, 52 days had elapsed with no action by the Respondent consistent with its procedure.  What reasonable adjustments should have been made: Meaningful supervision should have taken place as described by the Occupational Health 20 Service. The Respondent should have followed its grievance procedure. Prolonged uncertainty and undue delay were not avoided (as per para 35 above). The Respondent should have changed my line manager on a temporary or permanent basis, and ensured the support envisaged by the Occupational Health Service was provided. As per incident 34, struck out as 25 standalone - the temporary re- organisation/restructure unexpectedly made Mr Lynch my permanent line manager without any of the consultation required via the Respondents change management procedure, which should have been followed.

41. Reasonable Adjustments: Counselling 30  When duty arose: 30/08/19  Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 22/08/18 states "We explored the benefits of counselling and Derek has expressed an interest in engaging in this. I believe that counselling would provide Derek with further support at this time. I would suggest that a 35 referral be made for counselling on his behalf.". No referral was made for counselling.  What reasonable adjustments should have been made: A referral should have been made for counselling.

42. Reasonable Adjustments: Purchase of annual leave 40  When duty arose: 30/08/19  Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 22/08/19viv states "I would also support that Derek should be given time to attend all appointments in relation to his health as this will have a positive impact on his overall wellbeing.". During my sickness absence for 45 "Stress at Work" between 24/06/19 and 09/09/19, I submitted a request on 03/09/19 to utilise the "Purchase of Annual Leave Scheme" to make a salary sacrifice to acquire up to 10 days of additional leave within the annual leave year 1 October 2019 and 30 September 2020. Mr Lynch declined the request without discussion. Mr Lynch's position was effectively that my previous sickness absence and bereavement leave meant I had already accrued what, in Mr Lynch's opinion, was too much leave.  What reasonable adjustments should have been made: I sought to utilise 5 additional annual leave to help manage stress and improve my wellbeing and should have been allowed to purchase up to 10 days of additional leave, to aid my recovery.

43. Reasonable Adjustments: Mr Henderson's concerns  When duty arose: 04/11/19 10  Factual basis for failure to make reasonable adjustments: Mr Henderson proposed a further referral to the Occupational Health Service on 04/11/19, sharing with them Mr Lynch's original version of the "Stressor Assessment Questionnaire" and my revision. Mr Henderson advised "I feel that I have to write to OH setting out concerns that you are having difficulty with moving on 15 from past events and that this is causing difficulties, at times, in your day-today work" also "I have underlying concerns about how safe an environment this is for you, given your potential psychological response to certain situations that may occur in your day-to-day work." also " Once we have the response from OH, I propose we sit down together to see how we secure a safe way for 20 you and Richard to work together safely and constructively.". No such referral was made, no such meeting took place.  What reasonable adjustments should have been made: The proposed referral, appointment and meeting should have occurred.

44. Reasonable Adjustments: Dr Marie's grievance appeal hearing 25  When duty arose: 22/02/19  Factual basis for failure to make reasonable adjustments: My Occupational Health Report of 21/02/19 states "University ... processes may be distressing and prolonged uncertainty may be detrimental to his health and well being. I therefore advise that they are 30 concluded without undue delay. In addition I recommend that he is accompanied for support, that he is notified in advance of the participants and provided with an agenda for any meetings". Dr Marie invited me to attend as a witness at her first stage grievance appeal on 10/12/19. By this time she had resigned and moved abroad, attending via video conference. Mrs White 35 clerked the meeting, and as HR partner for IT was aware of my disability and Occupational Health Reports. I was only advised of the participants and format whilst waiting in the allocated room on the morning of the meeting. The convenor directed all the meeting participants around the table to introduce themselves, but stopped short of me, moving onto other matters. I requested, 40 but was not allowed, to read a pre-prepared statement, or excerpts from it during the hearing itself.  What reasonable adjustments should have been made: I should have been notified in advance of the participants and provided with an agenda. I should have been introduced in the same way as the other participants. My request 45 to read a pre-prepared statement, or excerpts from it during the meeting, should have been accepted.

45. Reasonable Adjustments: Self-Referral to Occupational Health  When duty arose: 10/12/19  Factual basis for failure to make reasonable adjustments: I had to leave work early following the distress of the above meeting. On even date, I felt better after taking some medication and sought to self-refer to the Occupational 5 Health Service, and returned to work the next day. The Respondents "Sickness and Attendance Management Procedure" permits self-referral but I was advised by the service this was not possible, and instead a consented referral was made on my behalf by the Respondent: "On 10 December 2019, Derek attended a meeting as a witness in support of a former work colleague. He 10 subsequently advised that he found aspects of the meeting distressing and, as a result, has requested to be referred to Occupational Health.". The Respondent then made a replacement, non-consented referral on 17/12/19 which added in "Additionally, Derek has indicated that not progressing his grievance concerns is having an impact on his health. Derek's grievance 15 concerns and the support he provided to the former work colleague relate to events of March 2018 and the aftermath of them." also including the 11 disability questions supplied by Mr Maclean, the solicitor representing the Respondent. A consented referral was not made until 10/02/20 by which time matters had deteriorated further: "Derek is currently working from home due to 20 an ongoing situation in the workplace. Derek reported feeling unsafe and removed himself from the workplace on Monday 13th January. He has been instructed to work from home whilst a process takes place to uncover the nature and mitigation of the danger he feels in the workplace. Derek has reported that prolonged uncertainty and working from home is having a 25 detrimental impact on his health. A referral is sought with a Physician to consider reasonable adjustments and other measures to facilitate Derek's return to the workplace. Advice is sought on whether a joint meeting with Derek, his manager, a trade union representative and the Physician would be appropriate at this time.". With the appointment on 25/02/20, 77 days had 30 elapsed since I first sought to self-refer.  What reasonable adjustments should have been made: A timeous appointment with the Occupational Health Service should have taken place. 4104107/2020; 4104157/2020 and 4105478/2020 - Reasonable Adjustments

46. Reasonable Adjustments: Line Manager Support & Effective management of 35 workplace stressors  When duty arose: 27/02/20  Factual basis for failure to make reasonable adjustments: I shared with Mr Lynch the Occupational Health Report of 13/02/20vii which I had obtained privately due to the Respondents failures. This report diagnosed me with an 40 Adjustment Disorder together with Post Traumatic Embitterment Disorder. The report states "symptoms are unlikely to resolve where workplace stressors persist. It is difficult to say at this stage whether his symptoms will continue if/when there is satisfactory resolution of his ongoing workplace stressors but he is likely to require psychological support in order to increase the likelihood 45 of a good recovery. Effective management of workplace stressors is key to facilitate recovery". This reiterates advice given in the first Occupational Health report, of 04/01/19iv, which advised "I would recommend allocating protected time to focus on ongoing Line Manager support with regards to the specific workplace stressors Mr Dawson identifies and will continue to be exposed to throughout an ongoing University investigation.". There was little to no line manager support and effective management of workplace stressors.  What reasonable adjustments should have been made: I should have been 5 lined managed by an individual capable of giving effective support to me and managing my workplace stressors. This failure is evident over a long period of time in the reasonable adjustment claims of 4110829/2019 and 4114716/2019, including my request to be appointed a different line manager, which was declined.

47. Reasonable Adjustments: Conclusion & Meetings 10  When duty arose: 27/02/20  The Occupational Health Report of 17/02/20viivi recommends "the appeals process is concluded as expeditiously as possible", that appeals process being relative to the grievance the Respondent instigated from my disclosure of 07/11/18i . The physician also envisaged physical "meetings related to his 15 absence and to the current procedural issues, but only if these are held in a mutually acceptable location" and a further review in 4 weeks after which "If things are not progressing at this stage then it may be that a joint meeting as suggested in your referral would be a good way to start to move things forward". My Occupational Health Report of 22/08/19 stated "I believe that 20 attending this appeal and reaching an outcome of this issue will allow Derek to move forward.". Contrary to the intent the advice, on 20/03/20 the Respondent concluded the grievance process arising from the disclosure of 07/11/18i via a brief email, without hearing the second stage appeal. None of the envisaged meetings regarding my absence or current procedural issues took place. On 25 21/04/20 the Respondent concluded the whistleblowing process arising from the disclosure of 07/11/18i , via a brief email.  What reasonable adjustments should have been made: The stage two appeal should have taken place. In person meetings should have been arranged to communicate the conclusion of the processes and their outcome. 30 48. Reasonable Adjustments: Post Traumatic Embitterment Disorder (PTED)  When duty arose: 01/04/20  Factual basis for failure to make reasonable adjustments: Following a discussion with Mr Lynch, I sent him a link to a resource on the National Bullying Helpline website titled "What is Post Traumatic Embitterment 35 Disorder?" which included a section on advice for employers. Mr Lynch advised me that he had read the material. The advice for employers included: a) Engage with the employee and encourage them to talk about what is troubling them. To be both listened to and to feel believed goes to the very heart of the embittered mind. 40 b) In-house Policies and procedures should be updated to reflect the fact that PTED is a disability. It is an illness. Follow your procedures and work with mental health experts. c) Do not force Mediation. It will likely be a waste of time, money and resources. The embittered mind is incapable of empathising with others and believes it 45 is others who need to change – not them. d) Do not rush into a Performance Improvement process. The PTED mind will resent a heavy-handed approach. e) Don’t expect too much from the employee who has trust issues. Be open and honest and reassuring. Appoint a ‘workplace buddy’ if appropriate. f) Work with an Occupational Health expert who understands PTED. g) Consider Coaching. A good Coach will not tell their Client what to do. Coaching may provide the embittered mind with the tools they need to look to the future. h) Talk openly about PTED to the employee in question. Reference the work of 5 both Professor Michael Linden and The National Bullying Helpline … It will also demonstrate to them that you have a reasonable understanding of what they are going through. The events narrated in 4104157/2020 of May 2020 show Mr Lynch and the Respondent had failed to heed the advice given in any meaningful way. 10  What reasonable adjustments should have been made: The National Bullying Helpline advice should have been considered and implemented: Mr Lynch should have engaged with me and encouraged me to talk about what is troubling me; ensured procedures were followed; avoided a heavy-handed approach; be open and honest and reassuring; appoint a workplace buddy; 15 work with an expert who understands PTED; provided coaching; talk openly about PTED and show an understanding of what I was going through.

[49]Reasonable Adjustments: Joint Review Meeting  When duty arose: 07/04/20  Factual basis for failure to make reasonable adjustments: The four week review 20 took place on 06/04/20 amidst the initial disturbance of the COVID-19 pandemic advising of the difficulty of obtaining GP/OHS appointments; and that there would likely be significant disruption to arranging further Occupational meetings to expedite a resolution to my situation in a timeous manner; and it was likely unfeasible to arrange a joint meeting in the short term. 25  What reasonable adjustments should have been made: A meeting between me, my trade union representative, Mr Lynch and others should have been arranged and taken place, even without Occupational Health input.” 49. The claimant did not directly respond to the respondent’s submissions that the 30 amendment came out of time or indeed that amendment was required. Accordingly I instructed my clerk to write to the claimant on the 9 June asking him what his position was and whether he accepted the respondent’s position that the Better and Further Particulars were in effect an amendment. In that letter the claimant was referred to the leading case of Selkent and to the 35 principles around amendment. The claimant quickly responded. He suggested that some claims could be traced back to a chronology that had been lodged in January 2020. The respondent’s solicitor wrote on the 11 June reminding the Tribunal of the terms of the original PH Judgment which allowed the claimant to recast some claims and not add new ones. They pointed out that 40 the Early Conciliation took place in relation to the case between 7 and 28 August 2019 and the claims were out of time before any reference was made to such matters in the Chronology. His position was that the claims had no reasonable prospects of success and that there were no pleadings to point to any substantial disadvantage suffered. The claimant had only mentioned claims in Paragraphs 21.4,21.6,21.7 and 21.8 but that Paragraphs 46,47,48 and 48 are new.

[50]The claimant initially did not fully accept Mr McLean’s analysis and his response drew a further letter from the respondent’s agents on the 14 June ending that being able to ‘trace back’ a claim was insufficient to articulate one. The claimant in his email dated 14 June formally sought leave to amend ‘‘such 10 that anything which the respondent asserts is new or time barred ..is not treated as such by the Tribunal and struck out’’. He then addressed the ‘‘Selkent’’ principles dealing with the nature of his amendment (where it was relevant to look at whether it was relabelling existing facts) time limits and the timing of the application. He pointed out that he was a litigant in person with no previous 15 experience of the Tribunal process. He had obeyed Tribunal directions and had done everything possible to keep his claims up to date.

[51]Ultimately, I preferred the analysis of Mr McLean and I agree that although some refence to certain facts can be traced back this is not a simple relabelling 20 exercise. The claimant had ‘pushed the envelope’ by seeking to add additional claims. The Tribunal has wide powers of amendment and a party can seek leave to amend at any stage before Judgement and accordingly the matters identified in the Better and Further Particulars will be treated as amendment as both parties now agree.

[52]It might be helpful for the claimant to understand what is meant by a reasonable adjustment and what a claimant must aim to prove to demonstrate a breach of the Equality Act by failing to implement one. Before doing so I would stress that a reasonable adjustment is not just some event or decision that a claimant 30 wanted to happen differently. A PCP or ‘provision criteria or practice’ of the employer must be identified that puts the disabled person at ‘substantial disadvantage’.

[53]The claimant initially made a number of claims for an alleged failure to make reasonable adjustments following his GP’s letter putting the respondent’s management on notice that he was suffering stress t work. I mentioned in the 5 PH Judgment that time bar issues arose. We now have pleadings that are a mixture of some issues that were struck out, some new issues and some recast ‘old’ ones. The pleadings for a lawyer are not easy to follow but I accept that some latitude must be given to the claimant who is a party litigant subject of course to the respondent not being prejudiced. As noted earlier he has gone 10 beyond what was envisaged in the PH Judgment by adding new claims without getting the Tribunal’s authority to do so. I would observe that the initial adjustment claims were that the grievance process that the claimant had initiated should have been dealt with more quickly and the a more specific adjustment that he should have been given a new line manager at some point.

[54]At the outset it is important to identify what relates to matters that were struck out by the PH Judgment and what are new. The matters struck out previously cannot be resurrected and the new matters require to be the subject of amendment. Time bar is of course something that should be taken into account 20 in whether or not to allow an amendment but the Tribunal has a wide discretion as noted earlier and it is only one factor.

[55]Turning to paragraph 34 this relates to whether it was a reasonable adjustment to take the claimant off a project involving CCTV. He had initially been allowed 25 to give up involvement but was then reassigned to it. The pleadings are still deficient. There is no reference to a suggested PCP or to substantial disadvantage although reading the pleadings as a whole the claimant alleges that this decision to reallocate the work caused him unnecessary stress. 30 56. Paragraph 35 related to the issue of delay and on the face of the bald facts there has been a significant delay but there may, of course, be an explanation for those delays. The respondent’s lawyers say that no PCP has been identified. The claimant seems to try here and add an additional adjustment relating to the provision of support. The respondent says that there are no pleadings to support a substantial disadvantage being caused.

[57]The claimant has done himself no favours by not focusing on the full statutory 5 basis for his claims. However, reading the pleadings as a whole it is apparent that he says the failure to deal with these processes quickly caused him stress and prolonged any such stress unnecessarily. The claimant pleads that the respondent ‘‘deliberately protracted these processes …..in order to maximise the damage to me’’.

[58]In his pleadings the claimant adds that he was distressed at a particular hearing not taking place or what happened at a meeting and so on but this is not the issue he is founding upon in that passage. The issue is whether it was a reasonable adjustment to try and expedite the process (and whether this could 15 reasonably be done) and if so what would have been likely to result. It would be open to a Tribunal to consider whether it was a reasonable adjustment in the circumstances and whether it would have then alleviated a possible substantial disadvantage namely the additional stress that an unresolved process could have caused.

[59]There are, however, further difficulties. It is not clear why the delay occurred and whether it was a decision of one person or more likely the cumulative effect of a number of decisions. I was not referred by parties to the recent Court of Appeal case of Ishola v Transport for London which I think contains 25 important guidance. A one-off act, here a decision not to investigate a grievance before dismissal was held not to be a PCP. There has to be some sort of continuing state of affairs or repetition of behaviour. I would add that the Claimant might benefit from reading the case. At paragraph Lady Justice Simler said this: 30 ‘‘In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP. 5 In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of 10 continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although 15 a one-off decision or act can be a practice, it is not necessarily one. In that sense, the one-off decision treated as a PCP in Starmer is readily understandable as a decision that would have been applied in future to similarly situated employees. However, in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, 20 it seems to me the position is different. It is in that sense that Langstaff J referred to "practice" as having something of the element of repetition about it. In the Nottingham case in contrast to Starmer, the PCP relied on was the application of the employer's disciplinary process as applied and (no doubt wrongly) understood by a particular individual; and in particular his failure to 25 address issues that might have exonerated the employee or give credence to mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual's case and by inference, there was nothing to indicate that a hypothetical comparator would (in future) 30 be treated in the same wrong and unfair way.”

[60]It might be viewed differently if it had been possible for the claimant to demonstrate some sort of likely repetition or ongoing state of affairs. I bear in mind that we do not have detailed pleadings from the respondent clarifying 35 their position. In Paragraph 177 of the PH Judgment I made reference to a possible claim around a reasonable adjustment to expedite the claimant’s grievance because of the stress an unresolved grievance apparently had on him and did not strike it out. The claimant deals with this mater in Paragraph 35 referring to the Occupational Health Report dated 21 February 2019 40 referring to avoiding ‘‘undue delay’’. The claimant attended a grievance hearing on the 20 May and had an outcome on 20 March 2020. He alleged breaches of the respondent’s policies. We are concerned about the period from February 2019 to March 2020. The previous delay having resulted before the claimant says the duty began.

[61]This particular matter does require amendment. It was considered as part of 5 the pleadings at the previous PH hearing and permission given to lodge Better and Further Particulars. In the whole circumstances I am not prepared to strike out this claim (delays in carrying out and concluding the grievance process) and will allow amendment subject to reserving the issue of time bar. 10 62. In relation to Paragraph 34 it is noteworthy that the original complaint (Para 138 of the PH Judgment) refers to various forms of discrimination including disability discrimination, harassment and detriment. This is now recast as a reasonable adjustment claim which is out of time. Paragraphs 36 and 38 are new matters and require an amendment.

[63]Paragraph 39 relates to the use of an alternative to an HSE stress assessment. This was dealt with in Paragraph 160 of the PH Judgment. The claims were struck out and have been reinstated. I repeat what I wrote there: ‘‘What happened at the meeting seems on the face of it wholly unremarkable’’ That is 20 still my conclusion and it is disappointing to note that the issue has simply returned to us and is required to be considered again with the time and expense that causes. The claimant must understand that just because something happened in a way that he did not approve of or would have done differently does not mean that there is a failure to make a reasonable 25 adjustment. Similarly, the unsatisfactory meeting with Professor Leydecker formerly Incident 42 and now Paragraph 37 had made reference to reasonable adjustments and those claims were struck out. I cannot understand why the matter now reappears. The claimant writes: ‘‘The meeting with Professor Leydecker served no purpose, caused me more harm than good, and should 30 either not have taken place or taken place consistent with the Occupational Health recommendations. I should not have been accused of theft without any evidence or investigation.’’ I am not sure how the claimant could reasonably analyse the situation as having any PCP being in play. The reasonable adjustment sought seems to effectively be things should have gone as the claimant wanted them to. For the avoidance of doubt even if this was not already struck out there is no reasonable prospects of success for such a claim.

[64]Paragraphs 41,42 and 43 relate to a suggested reasonable adjustment of referring the claimant for counselling, allowing him to acquire annual leave and not progressing a referral to Occupational Health. The latter does not amount to a valid adjustment as it is a means to an end to identify reasonable 10 adjustments not an adjustment in itself. These are wholly new claims that require amendment.

[65]Paragraph 44 relates to the involvement of the claimant in a colleague’s grievance hearing. This was previously Incident 62 and was struck out. Once 15 more the matters reappear this time solely under the heading of reasonable adjustments. The claimant attended this meeting and suggests that reasonable adjustments arose: ‘‘I should have been notified in advance of the participants and provided with an agenda. I should have been introduced in the same way as the other participants. My request to read a pre-prepared 20 statement, or excerpts from it during the meeting, should have been accepted.’’ Again, this seems to be no more than a complaint that things should have been done differently. There is no PCP nor does one seem to exist from what we are told. This matter was struck out but for the avoidance of doubt these claims have no reasonable prospects of 25 success.

[66]Paragraph 45 was formerly Incident 63 and which was struck out. There are now some new facts pled which would require amendment. Once more the deficiencies noted earlier are apparent. What is the PCP? If it is the refusal to 30 accept self-referrals then this on it’s own seems a policy that is within management discretion and neutral to both those who were disabled and those who are not. An adjustment has to be ‘reasonable’ and it is foreseeable that self-referral could be readily abused by individual staff member incurring considerable expense. There is no indication of what the substantial disadvantage would be given that the claimant could ask for a management referral and has his own GP to seek support from. For the avoidance of doubt this matter as pled has no reasonable prospects of success and is struck 5 out.

[67]Paragraph 35 formerly Incident 61. The claimant was given an opportunity to recast his pleadings. He has now stated that the reasonable adjustment is: 10 ‘‘The Respondent should have concluded the processes much sooner, to avoid or minimise uncertainty and delay. The Respondent should have managed my expectations in terms of what action and/or feedback I could expect as well as clear timescales for providing updates. The Respondent should have followed its processes and procedures as they applied to me, 15 or mutually agreed a deviation from those processes and procedures.”

[68]There is no reference to a PCP or to what the substantial disadvantage is. However, while I am hesitant to let such an adjustment stand it is capable of giving the respondent’s sufficient notice that delay in their processes might be 20 likely to adversely affect the claimant’s health (whether they did or not would be a matter for proof) and whether there were any good reasons for such delays. In the circumstances I am of the view that there are little reasonable prospects of success and I fear that any hearing could end up as a long-winded trawl through events both large and small. In addition, the issue of time bar 25 remains extent. A Deposit Order will be made in a sum to be ascertained later.

[69]Paragraph 40 (formerly 58 and 59) related to various matters principally a change in line manager. We have no clear PCP and what appear to be 30 discrete one-off decisions relating to the whole department. The claimant contends: ‘‘Meaningful supervision should have taken place as described by the Occupational Health Service. The Respondent should have followed its grievance procedure. Prolonged uncertainty and undue delay were not 35 avoided (as per para 35 above). The Respondent should have changed my line manager on a temporary or permanent basis, and ensured the support envisaged by the Occupational Health Service was provided. As per incident 34, struck out as standalone - the temporary re- organisation/restructure unexpectedly made Mr Lynch my permanent line manager without any of the 5 consultation required via the Respondents change management procedure, which should have been followed.’’

[70]This is difficult to follow and what for example ‘‘meaningful supervision’’ means is not clear. It is not clear what the substantial disadvantage is that 10 would be avoided other than the general assertion that having the same line manager was stressful. The issues here are struck out as having no reasonable prospects of success apart from the adjustment relating to a change of line manager. 1571. The respondent’s pointed to Paragraphs 46 (appointment of a new manager in February 2020), 47 (failure to allow a stage two stage appeal), 48 (a failure to make adjustments in April/May 2020) and 49 (a failure to arrange a Joint Review Meeting). These matters all required amendment. 20

72. The respondents sought Strike out/ Deposit in relation to other claims made in their fourth and fifth categories which related to matters raised in the Fourth and Fifth claim which they argued had no reasonable prospects of success Paragraphs 62 i-iv, 65 onwards Paragraphs 73, 74-76 ,77, 78-79 ,82, 84-88. The claimant had recorded that Paragraphs 50-54 are background but in 25 Paragraph 60 he draws out some potential claims. The respondents submitted that the claimant could not reasonable believe that the events narrated amount to unlawful detriment or harassment.

[73]The claimant says that he was harassed because of his protected 30 characteristic namely disability. In his original claim he had alleged that he had been discriminated against on the ground of his religion or philosophical belief. In Paragraph 62ii related the claimant’s grievance being dealt with ‘seriously’ and this is said to be a detriment arising from disclosures. There is no linkage or nexus with the disclosures. The next matter relates to interactions with Mr Lynch that seem unremarkable and again no indication of how this could relate to the disclosures. The word detriment has a wide meaning but it is not so wide as to encompass behaviour that is only subjectively regarded as upsetting. Paragraphs 65 onwards of the BFPs relate to matters which had previously 5 been raised in the Fifth Claim. The Respondent notes that the Claimant has stopped clearly categorising the various claims he makes amidst these paragraphs, and will respond where a claim appears to be identified. Paragraph seems to summarise earlier claims and adds no new facts. I have dealt with these matters which I regard as having no reasonable prospects of 10 success. However, for the avoidance of doubt if it is meant to set out separate claims for harassment, detriment or disability discrimination it fails to do so adequately and they are struck out.

[74]In paragraph 73 the claimant says his dismissal was automatically unfair 15 because of whistleblowing yet as the respondent’s agents point out this was some 19 months earlier. As noted earlier the claimant has not pled a causal link between these events. To succeed he would have to demonstrate that the dismissal related to the much earlier alleged disclosure. This would be a time consuming and costly exercise which would be likely to lead to evidence being 20 led and rebutted about the sort of numerous events the claimant has pled over a two year period. I have considerable misgivings about allowing this claim to proceed. It could be seen as an invitation to try and lead evidence about all the peripheral events that seem to prey on the claimant’s mind. It would not be such an invitation. It would be up to the claimant to demonstrate, at least a 25 prima facie case that the matters are somehow linked. From the pleadings before me he will struggle to do so but I will not strike out the claim. Considering the matter in the round I am reluctantly of the view that I cannot rule that this has no reasonable prospects of success given that it is so fact sensitive. However, this matter has little prospects of success and will be subject 30 to a Deposit Order in a sum to ascertained later.

[75]Turning to Paragraphs 74-76 and 87. The claimant writes at 76 and 87: ‘‘The Respondent consistently refused to make reasonable adjustments for me, including to change my line manager due to the evidenced history of Mr Lynch's unwanted conduct, lack of support and behaviours which I found antagonistic, harassing and distressing.’’ 5 ‘‘The dismissal could have been handled in a manner which minimised the severe psychological distress caused to me. For example, holding a meeting with me where I could be accompanied by a trade union representative; suspending me to provide forewarning; providing me with particulars of the allegations and allowing me to give an explanation of the matter; responding 10 to my grievances of 24/04/20 and 02/06/20; responding to the accident I logged on 02/06/20; holding the joint Occupational Health meeting; seeking appropriate medical advice. The respondent should have sought my permission prior to the visit to my house on 01/07/20 and informed me in advance of who was visiting and for what purpose. The Respondent failed to 15 make these reasonable adjustments.’’

[76]If these Paragraphs intended to found separate claims then they fail to specify the adjustments properly or provide the basis for them i.e give the PCP etc. I suspect they are more likely to be summarised background but for the 20 avoidance of doubt as a separate stand-alone basis for claims they have no reasonable prospects of success and are struck out. In relation to Paragraph 87 the words ‘‘The Respondents failed to make these reasonable adjustments’’ should be removed from the text. 25 77. Dealing with Paragraph 77 it has two mixed claims the first being under Section 20 of the Equality Act and the second detriment arising from Whistleblowing. The claimant writes: ‘‘The 22/05/20 email I sent to colleagues was a consequence arising from my disability and therefore Section 15 of the Equalities Act 2010 affords me 30 protection. I was treated unfavourably because the email arose in consequence of my disability. The Respondents' treatment is not a proportionate means of achieving a legitimate aim: it is a means by which to circumvent protections afforded to employees by statute and dismiss me as a whistle-blower.’’

[78]The respondent’s position was that the email was only one element in their assessment that there had been a break down in trust and confidence. The claimant does not specify how the email is connected to his disability or was in some way a symptom of it for example of impulsivity and whether he apologised or retracted it. To succeed the claimant would have to show what was in the minds of the people who dismissed him and that they did so 5 because of his disability. The pleading do not adequately support either claim. Neither claim has any reasonable prospects of success and are struck out.

[79]In Paragraphs 78-79 the claimant refers to dismissal for Health and Safety 10 reasons or for disability. It is unclear factually how such claims could arise as the respondent ‘s agents point out. These matters are not thought through and so vague and unspecified that they seem to be simply a way of adding complexity to an already complex situation. There is no basis pled for dismissal under Section 100 of the ERA. These allegations are struck out as 15 having no reasonable prospects of success.

[80]In Paragraph 82 the Claimant suggests his dismissal related to his religion or belief. The matter is put thus: ‘‘In the "case for dismissal" obtained via a subject access request, it is 20 narrated that it is perplexing why not resigned and to paraphrase, "putting me out of my misery" was a factor in the recommendation and decision to dismiss. As of 10/01/20 the Respondent was fully aware of my Christian beliefs and the doctrine I was endeavouring to apply by "turning the other cheek", as per Joint Bundle for the PH of 18/06/20 25 p332. At the PH of 18/06/20 the tension between the Respondents continued poor treatment and desire to dismiss me, against my refusal to resign was discussed. This is detailed in an email I sent to the Tribunal following the PH of even date: "I feel that it is wholly incompatible with my religious and philosophical beliefs (particularly 30 "turning the other cheek" - see joint bundle p332) to resign and claim constructive dismissal.". In the 4105478/2020 ET3 it is stated "The Respondent did not know that the Claimant held the belief that his Christian religion required that he not countenance resignation" which is evidentially untrue. I contend I have been discriminated against 35 because of my "religion or belief" and this was a significant factor in my dismissal. That I endeavoured to "turn the other cheek" placed me at a particular disadvantage, that being that an individual without my "religion or belief" would have found the situation so unbearable as to have resigned long ago. A comparator here is Dr Marie’’.

[81]How the claimant’s religion or belief played a part in his dismissal 5 remains obscure. There is no ‘smoking gun’ to suggest that someone like the claimant holding conventional/traditional religious or political beliefs was dismissed because of those beliefs and there is no underpinning pleadings to suggest such motivation on the part of the respondent. The claimant had recycled these matters which were 10 struck out in the PH Judgment and they now appear in relation to the unfair dismissal element. They have no reasonable prospect of success and are struck out.

[82]In Paragraphs 84-88 the claimant complains of harassment that: 15 ‘‘Mrs Dyker obtained my personal email address and used it on 01/07/20 to send me the dismissal letter as an attachment within an email. It is "scandalous, unreasonable or vexatious" for the Respondent to have used the personal data I had supplied to the Tribunal in this way. This action was undertaken without consideration or respect, violated my dignity, and was 20 personally offensive to me. It caused me severe psychological distress.’’

[83]It is understandable that the claimant found his dismissal unsettling but there is nothing untoward in what occurred given that he was working at home. Nor is there any suggestion that some legal obligation towards him has been 25 broken or that any employment claim arises. Whether any distress was genuine or hyperbole is something that the Tribunal hearing the unfair dismissal may touch on but is of no relevance to the claim for unfair dismissal where injury to feelings is not a relevant head of claim. These matters have no reasonable prospects of success and are struck out.

[84]The respondent’s agents then turned to what they described as Category 5 the Fourth Claim made. Their position was that if the whole case was not struck out then they did not seek separately strike out of the unfair dismissal claim. They acknowledged that dismissing an employee for a breakdown in trust and confidence in these circumstances without meeting to discuss the proposed termination was unusual. Accordingly, the (‘‘ordinary’’) unfair dismissal claim will now 5 proceed to a hearing. Expenses

[85]The rules relating to expenses are found in the Employment Tribunal Rules of Procedure. We are concerned with Rule 76. The respondent’s position is that 10 the claimant has acted unreasonably (Rule 76(1)(a)).

[86]There are two matters that have to be considered before an expenses (costs) order is made. The first is whether the rule is engaged and the second is whether the Tribunal should exercise its discretion to make an award at all.

[87]I do not minimise the difficulties that party litigants face when drafting pleadings especially in discrimination cases. The claimant also has mental health issues which are referred to in the report he has lodged. He has not suggested how this impact on his actions. He is clearly an able person and has demonstrated 20 this in a number of ways such as the detailed research he has carried out on issues and the lengthy and complex nature of his pleadings. He was also a Trade Union representative at the University. He is not the average party litigant and has skills and experience (including the ability to research matters on the Internet) which he can deploy.

[88]A feature of many of the events relied upon is that the claims he says arise from those events have evolved as the case had proceeded. It is difficult to understand how a claim can mutate from one of say an honest belief in discrimination on the grounds of philosophical belief to one of discrimination 30 on the grounds of disability when that entails a wholly different reason for the alleged discriminatory behaviour. I described the claimant’s approach in the previous Judgment as being a scatter gun approach. He has certainly now focussed on disability discrimination (no doubt because these were the matters left extant following the previous hearing) but it is difficult to understand why he considered so many apparently anodyne interactions with the respondent’s staff give rise to so many claims and this in turn gives rise to the suspicions, 5 voiced by the respondent’s agents, that the claims are being manufactured; old claims relabelled and matters made needlessly complex with the result, whether intentionally or not, the claimant’s behaviour is objectively unreasonable and should attract an award of expenses. I bear in mind that a litigant in person should be judged less harshly than a legally qualified person 10 but the way the litigation is being conducted arguably does not seem to arise wholly out of oversight, ignorance or inexperience.

[89]If the respondent insists for the matter of expenses should be decided on the basis of the papers before me then I will consider doing so. However, I have to 15 be convinced that a particular order is appropriate and proportionate. Now that the strike out /amendment process has (I hope) ended this is a convenient point to consider the application. I accept that it might be lost sight of by the time the case is finally heard. I am, however, of the view that it is unsatisfactory to conclude the matter on the basis of the current application which was made 20 some time ago and does not attempt to detail the precise behaviour complained of. This makes it difficult for the claimant as a party litigant to meaningfully respond. In addition, the Tribunal has no indication of the expenses incurred say for the individual strike out hearings. It is not necessary for expenses to be allocated to particular acts of unreasonable behaviour but 25 it would be helpful when considering whether a lesser award that the expenses of the proceedings should be contemplated I would therefore invite the respondent’s agents to make additional submissions on this matter particularly in relation to how they allocate the expenses between the hearings (to which the claimant will be entitled to respond) before coming to a concluded view. 30 This will also allow the claimant to provide details of his current financial position which a Tribunal can take into account when considering the level of expenses and the appropriate sum to fix as a Deposit. Employment Judge: J M Hendry Date of Judgment: 10 January 2022 Date sent to parties: 10 January 2022 ETZ4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4105478/20 In Chambers 22 March 2022 Employment Judge J Hendry 15 Mr D Dawson Claimant In Person University of Aberdeen Respondent 20 Represented by:- Mr N MacLean, Solicitor Reasons under Rule 62 The Claimant’s applications for reconsideration are refused. 1. The Judge, J Hendry, noted that parties were keen to try and deal with any outstanding matters while the case is at appeal. The Judge, whilst having reservations about this given the subject matter of the appeal is prepared to set out his decision in relation to any outstanding reconsideration 35 applications. First of all he has had regard to the following chronology:(i) On 26 November 2021 the reconsideration granted. Claimant lodges appeal.

(ii) 30 November 2021 the claimant makes application for reconsideration of 5 the reconsideration. There are five numbered paragraphs. Paragraphs 1, 2 and 3. Paragraphs 4 raise the question of a claim for automatically unfair dismissal due to disability and 5 raises miscellaneous matters which are not requests for reconsideration. 10

(iii) On 16 December the Judge gave his preliminary response.

(iv) On 22 December the respondents set out their position indicating they did not see any basis for a reconsideration. 15

(v) The claimant wrote again on 23 December in relation to points 1 and 3.

(vi) On 7 January 2022 the Judge set out his decision on the reconsideration request. 20

(vii) On 11 January 2022 the claimant responded to the reconsideration.

(viii) On 18 January 2022 the respondents wrote in relation to the points made by the claimant. 25

(ix) On 20 January 2022 the claimant responded to the respondent’s letter.

(x) On 3 January the claimant made further observations.

(xi) Further correspondence Law on reconsideration 2. There is nothing in the 2013 Tribunal rules that expressly prohibits repeat reconsiderations although it’s been held that a second application, when a 5 first application has been refused it is only likely to succeed in exceptional circumstances. Rule 72(1) indicates that where an application for reconsideration has previously been refused on the basis that there is no reasonable prospect of the original decision being varied or revoked. A second application that is substantially the same as the first will be refused 10 “unless there are special reasons”. The “special reasons” will require to satisfy the threshold of being in the interests of justice set out in the rule before reconsideration is granted. The parting point therefore is the Judgment of 12 July 2021 and the reconsideration granted on 26 November 2021. The claimant by e-mail dated 20? July 2021 sought reconsideration 15 of the Judgment on multiple grounds. Included in these are:  The striking out of claims under TUL(c)(a) section 27 in 146;  Automatic unfair dismissal section 100 Employment Rights Act;  Unfair dismissal on grounds of disability’ 20  Automatically unfair dismissal. 3. These matters were dealt with in the November reconsideration Judgment under section 100 of the Employment Rights Act were struck out as having no reasonable prospect of success. The claim for automatically unfair 25 dismissal under section 103A of the Employment Rights Act were subject to a Deposit Order. 4. In the circumstances the reconsideration Judgment dealt with these matters. The claimant has not shown exceptional circumstances as to why 30 these matters should be re-opened. 5. However, in relation to point 3 of the claimant’s reconsideration the claimant has yet to lodge a formal amendment seeking to pursue a claim for dismissal because of trade union activities (section 152 TULCRA). 5 6. The Judge referred back to the claimant’s pleadings contained in his letter of 16 December 2020. The claimant indicated there that he had resigned from trade union activities on 2 November 2018. The claimant deals with “unfair dismissal” and other claims in paragraph 65 onwards and makes reference to his dismissal on 2 July 2020. The claimant states: “My dismissal was automatically unfair because the principal reason was for whistleblowing”. He narrates the circumstances that surround his dismissal. 15 At 79 he states: “Should the Tribunal find the principal reason for dismissal was not whistleblowing, then the principal reason is health and safety or disability”. He does not suggest that his dismissal was for trade union activities. It is 20 against his own pleadings that this matter must be judged. 7. For completeness the Tribunal in it’s email of 7 January 2022 noted that the correspondence of 28 January also related to case management issues around the Deposit Orders. 8. On 23 January 2022 the claimant wrote seeking reconsideration of the revoked and repromulgated Judgment (which itself was the product of a reconsideration Judgment) with reference to ‘‘whistleblowing detriment’’ arising from an alleged protected disclosure on 7 November 2018. This 30 related to a student occupation. The claimant made a number of allegations around the occupation and the way it was handled. He alleged that there had been a danger to health and safety and that wrong doing had been being covered up. This seeks to be a “stand-alone” reconsideration and is refused. The claimant has not demonstrated exceptional circumstances. 5 The pleadings were examined in detail at two strike out hearings. In his pleadings the claimant indicated that there were difficult relations with management following the occupation in March 2018. The claimant says he was in severe psychological distress. He made an alleged protected disclosure in November 2018. Apart from the claimant disagreeing with 10 various actions of management he is not clear what the detriments were that he was subjected to or how the disclosure in 2018 impacted on his dismissal in mid 2020. The letter is notable for couching many of the claimant’s grievances or concerns at his treatment as a failure to make reasonable adjustments. 9. The question of detriment or detriments arising from the alleged protected disclosure on 7 Novemberi2018 is struck out. 10. In his letter of 11 January the claimant indicated that there was possible 20 confusion in relation to paragraph 177 of the June 2020 Judgment. There is reference to an incident on 7 November 2019 and not 7 November 2018 being the alleged protected disclosure. 11. The claimant has not, in the Judge’s view, demonstrated exceptional 25 circumstances to have the earlier decisions reviewed nor any special reasons for doing so. In short he repeatedly attempts to re-argue matters that have been considered and dealt with. There is in any event no reasonable prospect of the earlier Judgements being varied or revoked even if a further reconsideration was merited. In the Judge’s view after 30 considering both the history of the matter and the submissions made the reconsideration request, in so far as not dealt with in the letter of the 7 January 2022 must be refused as must his later attempts to reopen matter through further reconsiderations. 12. In passing I note that the claimant is unhappy with the fact that this matter has not progressed to a hearing. It cannot do so until the claimant’s most recent appeal is resolved.