Mr J P Westcott v Greater Glasgow Health Board: 4107041/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4107041/2023Venue GlasgowHearing 4-8, 11, 13 November 2024; 17, 18 December 2024; 7 & 8 January 2025
Between
Mr J P WestcottClaimantGreater Glasgow Health BoardRespondent
Before
Employment Judge CampbellMr T Merck (instructed by Counsel) for respondentDate 4 March 2025
JUDGMENT
The unanimous judgment of the tribunal is that each of the claimant’s legal complaints is unsuccessful, and the claim is dismissed.
REASONS
[1]This complaint arose out of the claimant's employment with the respondent which began on 27 April 2020 and ended on 25 April 2024. The claimant worked as a porter within one of the respondent's hospitals. He alleges that his dismissal was unfair, whereas the respondent maintains that he was fairly dismissed by reason of his conduct.[2]The claimant is autistic. He claimed that this was a disability in the statutory sense. He argues that he was discriminated against, harassed and victimised in relation to it. He also alleges that the respondent was subject to the duty to make reasonable adjustments which it did not fulfil. The respondent accepted that the claimant's autism qualified as a disability but denied the complaints.[3]A full hearing took place over eleven days. This involved adding extra hearing days as it became clear that more hearing time was needed. This was partly because the claimant's solicitor who represented him at the outset of his claim withdrew, and his mother took on the role of representing him and presenting his case.[4]The tribunal took time throughout the hearing to ensure the claimant and his mother understood the legal principles which applied to the claim, the procedure being followed, to allow for breaks - both scheduled and unscheduled, and to ensure the tribunal's time was used as proportionately as possible.[5]The respondent was represented at the hearing by Mr Merck, an advocate. Both he and the claimant's mother are thanked for their assistance to the tribunal in presenting their respective cases, and in observing the tribunal's overriding objective, including by co-operating to ensure the smooth running of the hearing.[6]The parties had not been able to agree a list of issues before the hearing, but one was prepared by Mr Merck which the tribunal found to be uncontroversial, as it essentially repeated key passages from the claimant's own particulars of claim which had been drafted (and later revised) by the claimant's solicitor before he withdrew from acting. Subject to some minor amendments in wording, this is reproduced below.[7]Similarly the claimant had been unable to provide all of his documents to the respondent which he wished to be included in a joint bundle. There was a suggestion that his solicitor ought to have done so but did not, but this was not conclusively established. The position therefore was that each party brought its own bundle to the hearing. During one of the gaps between the hearing days the claimant applied to have unredacted versions of some redacted documents provided by the respondent, which was partially granted, and additional documents were added to his bundle as a result of that process. References to documents in square brackets below correspond to the parties’ bundles – C denoting the claimant’s and R denoting the respondent’s.[8]The hearing was to determine liability only, and not remedy. That is to say, the tribunal only decided whether any of the claimant's legal complaints succeeded on their merits and did not go on to decide on any compensation or other orders.[9]Evidence was heard from the following witnesses:a. for the claimant – himself, Watty Gaffney (Trade Union representative), Steven Reid (Occupational Health Lead Nurse), Marion McLaughlin (autism specialist consultant), his mother Serena Westcott, Eileen O'Rourke (Retail Manager), Eileen McFadden, and Gayle Brown (Head of Facilities, North Sector); andb. for the respondent – Jamie Coleman (Portering Manager), Frank McGuire (Facilities Manager), Morag Walsh (Head of Facilities), Janice Thompson (Porter Supervisor), Sharon Johnstone (Head of Facilities Management, South Sector), Lynne Campbell (Senior Staff/Charge Nurse), Helen Gemmell (Assistant Director of Facilities and Production), and Thomas Steele (Director of Estates and Facilities).[10]Both parties provided a note of their closing submissions. Mr Merck summarised his orally by agreement with the claimant and the tribunal.
Relevant law
[11]By virtue of the Equality Act 2010 (‘EqA’) people with protected characteristics are safeguarded against discriminatory treatment in a variety of scenarios, including work. Disability is a protected characteristic and is defined in section 6 of EqA as follows: 6 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.[12]An employer can discriminate against an employee with a disability by treating them unfavourably because of something arising from the disability. Section 15 of EqA sets out:[15]Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 13. An employer may be under a duty to make reasonable adjustments to alleviate or remove a disadvantage caused to a disabled person by something connected to their work. Section 20 sets out the relevant provisions as follows:[20]Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.(7) … 14. An employer will unlawfully harass an employee with a protected characteristic if they treat them negatively in one or more prohibited ways in relation to that characteristic. The specifics of the protection are in section 26 of EqA which states:[26]Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 15. Separately, an employee can be unlawfully ‘victimised’ if they carry out a ‘protected act’ under section EqA and then as a result suffer adverse treatment:[27]Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule. 16. By virtue of Part X of the Employment Rights Act 1996 ('ERA'), an employee is entitled not to be unfairly dismissed from their employment. The right is subject to certain qualifications based on matters such as length of continuous service and the reason alleged for the dismissal. 17. Unless the reason is one which will render termination automatically unfair, the employer has an onus to show that it fell within at least one permitted category contained in section 98(1) and (2) ERA. Should it be able to do so, a tribunal must consider whether the employer acted reasonably in relying on that reason to dismiss the individual. That must be judged by the requirements set out in section 98(4), taking in the particular circumstances which existed, such as the employer's size and administrative resources, as well as equity and the substantial merits of the case. The onus of proof is neutral in that exercise. 18. Where the reason for dismissal is the employee's conduct, principles established by case law have a bearing on how an employment tribunal should assess the employer's approach. Relevant authorities are considered below under the heading ‘Discussion and decision’. Legal issues 19. A list of issues was prepared by the respondent. This essentially reproduced the legal complaints as stated in the claimant's particulars of claim, as amended by his former solicitor. Although this had not been formally agreed with the claimant before the hearing began, it was ultimately accepted by the tribunal as a suitable note of the matters the tribunal had to decide. It is reproduced below with some minor alterations the tribunal saw fit to make. 20. All references to legislative provisions relate to the Equality Act 2010 (EqA) unless otherwise stated: 1. Time Bara. Were the claims made within the time limit in section 123. The claims would be within time if presented to the tribunal within three months after the acts complained of, subject to any extension of time through pursuit of ACAS Early Conciliation. This means that any complaints about events on or before 6 June 2023 are provisionally out of time.b. If not within time by themselves, were the acts complained of part of a continuing act, which carried on beyond the relevant time limit, so that they become within time?c. If not, is it just and equitable for the tribunal to extend the time limit to determine those claims? 2. Reasonable Adjustments a. Did the Respondent apply a PCP, namely the requirement for employees to regulate their emotional behaviour in order not to be subject to the risk of disciplinary sanctions? b. If so, did this place the Claimant at a substantial disadvantage in comparison with those who are not disabled? c. Would any of the following adjustments have removed that substantial disadvantage? i. Informing all staff about the Claimant’s requirement for a radio and why this requirement was put in place; ii. Providing regular training and subsequent refresher training to the workplace on neurodiversity and the potential adverse effects this can have on employees; iii. Ensuring an ongoing assessment was made of the Claimant’s work variation requirement to ensure this was not being eroded without consultation and justification, and considered other variations to substitute for those removed; iv. Rather than simply naming a mentor, taking steps to ensure that a plan was put in place that illustrated how the mentorship was intended to work, including a consultation about who the mentor would be and why they were the most suitable person to carry out that role, and a proposed timetable for regular meetings; v. Rather than subject the claimant to disciplinary sanctions for altercation with colleagues, convene a meeting with the colleagues in question to remind them about their training in neurodiversity or, in the event that colleague never had such training, provide that training; and vi. Disregard the claimant's conduct at work for the purpose of its disciplinary policy and thereby not subject him to disciplinary proceedings.d. Did the Respondent fail in its duty to make reasonable adjustments in contravention of ss20-22? 3. Harassment a. Did the Respondent engage in unwanted conduct related to the Claimant’s disability, and did that conduct have the purpose or effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him (s26)? b. Did the Respondent harass the Claimant (within the meaning of s.26) contrary to s.40(1)(a) in any or all of the following incidents upon which the Claimant relies: i. On 26 May 2020, the Claimant states he was confronted aggressively by a security guard and this resulted in shouting and swearing by both, thereby creating an intimidating and hostile environment for him; ii. On 26 April 2021, the Claimant states he was verbally abused by John Howden thereby creating an intimidating and hostile environment for him; iii. On 23 July 2021, the Claimant states he was handed a letter from Jamie Coleman advising him that it had been unacceptable to walk away from challenging situations in order to avoid escalation. The Claimant’s position is that this approach had previously been agreed by Jamie Coleman and other senior colleagues, thereby creating a confusing and hostile environment for him; iv. On 30 November 2021, the Claimant states he was told the radio would not be provided because Ciara [Nicholson, a porter] did not have one, and that he was then verbally abused by Janice [Thompson] and Daniel for the resultant problems, thereby violating his dignity, and creating an intimidating and hostile environment for him; v. In December 2021, the Claimant states that Janice Thompson intentionally gave the radio assigned to the Claimant to a different member of staff in the knowledge that this would cause distress to the Claimant, thereby violating his dignity and creating a hostile and intimidating environment for him; vi. On 6 January 2022, radio use was removed from the Xray department altogether; the Claimant states this prevented him from continuing to work with that department, and thereby violating the Claimant’s dignity and creating a hostile environment for him; vii. On 29 December 2021, the Claimant states he was verbally abused after disagreeing with a senior nurse and that they proceeded to humiliate the Claimant in front of others, thereby violating the Claimant’s dignity; viii. On 11 March 2022, Morag Walsh wrote to the Claimant regarding his return to work; the Claimant states that the terms of this letter offended him and made him feel unheard and degraded; ix. On 4 April 2022, the Claimant states that Morag Walsh continued to pressure the Claimant to accept temporary redeployment rather than a return to his substantive post, thereby offending the Claimant and making him feel unheard and degraded; x. In early 2022, the Claimant states that the delay between him being declared fit for work and the Respondent enabling his return made him feel that the Respondent did not want him as an employee, thereby offending him and violating his dignity; xi. In early 2022, the Claimant states that he was subjected to a reduction in pay until this was reversed, thereby offending the Claimant and violating his dignity; xii. On 27 September 2022, the Claimant states he was verbally abused and humiliated in front of other employees and patients by Nurse Campbell, thereby creating an intimidating and hostile environment for him; and xiii. The Claimant claims that the disciplinary process was an act of harassment. 4. Discrimination arising from a disability a. Did the Respondent treat the Claimant unfavourably because of something arising in consequence of his disability (s15)? b. If so, was the unfavourable treatment a proportionate means of achieving a legitimate aim? 5. Victimisation a. Were the following protected acts within the meaning of s27(2)? i. the Claimant referenced his disability and the Equality Act as part of the various grievances he raised; and ii. the Claimant alerted the employer to his intention to engage ACAS with a view to bringing proceedings under the Equality Act. b. Did the Respondent subject the Claimant to the following because of the protected act(s) and do they amount to detriments? i. Did the Respondent act slowly in response to the grievances raised by the Claimant? ii. Issuing a final written warning on 16 March 2023; and/or iii. Dismissing the Claimant’s appeal on 17 July 2023. 6. Unfair Dismissal a. What was the reason for the Claimant’s dismissal? The Respondent contends that it was the potentially fair reason of conduct under section 98(2) of the Employment Rights Act 1996. b. If the Tribunal finds that there was a potentially fair reason, taking into account the circumstances and the size and administrative resources of the Respondent, did the Respondent act reasonably in treating it as sufficient reason for dismissing the Claimant in accordance with equity and the substantial merits of the case? c. Was the decision to dismiss the Claimant within the range of reasonable responses available to the Respondent? Findings of fact 21. The tribunal made the following findings of fact, based on the evidence provided to it in oral and documentary form. The findings are made on the balance of probability. These findings do not include every event or matter covered in the evidence – they are only relevant to the legal issues above which the tribunal had to decide.
Findings of fact
[1]The claimant was employed by the respondent between the dates of 27 April 2020 and 25 April 2024. On the latter date he was dismissed without notice. He worked throughout his period of service as a porter within the Queen Elizabeth University Hospital in Glasgow (hereafter referred to as 'the hospital'), which is one of a number of hospitals in the West of Scotland administered by the respondent.[2]The hospital is one of the largest in Europe and contains a number of specialist departments and emergency wards such as Accident and Emergency. Its campus takes up a large area. It is very busy in terms of patient flow.[3]As a porter, the claimant's role was to transport people or items from place to place within the hospital. Primarily, he transferred patients from one department to another. He enjoyed this work and especially patient interaction.[4]The claimant is autistic. This qualified as a disability under section 6 of EqA and was accepted as such by the respondent. The respondent became aware of the claimant's autism in May 2020 at the latest. Aspects of the condition which affect the claimant's ability to carry out normal day to day activities include:a. Taking the language of others literally, which can lead to misinterpretation of their intentions;b. Speaking frankly in a manner which may come across as rude or blunt, even when not intended to be;c. A need for routine, predictability and structure to his life, including work; andd. Occasionally mirroring the actions, words or vocal mannerisms of others ('echolalia').[5]The claimant began his employment with the respondent during the early part of the Covid-19 pandemic and various health and safety protocols were in place within the hospital. Those included the wearing of face masks, social distancing and the amendment and restriction of routes used to move around the hospital, entrances and exits. Incidents in May to September 2020[6]On 26 May 2020 the claimant was challenged by a security guard to show his ID badge on entering the hospital building. The guard was engaged by a security contractor to the respondent. The two individuals became involved in a physical altercation. The guard made a complaint, alleging that the claimant had acted aggressively and refused to show his pass. It was investigated by William Hunter, Assistant Director of FM Operations (South Sector), who met with the claimant on 25 June 2020. Mr Hunter concluded that it was the guard who was the aggressor, and this was fed back to his employer. The claimant was allowed to return to his duties. Mr Hunter outlined his conclusions to the claimant in a letter dated 30 June 2020 [R97-99]. He said that, whilst the guard was found to be the aggressor and no disciplinary action would be taken against the claimant, it was nonetheless important that the claimant understood the behaviours expected of him in his role. He made reference to the claimant having shouted and sworn during the altercation, and said that if it occurred again, disciplinary action may be taken. He said that he had asked a colleague, Janis Young, to go through relevant policies and procedures with the claimant. He also said that he had referred the claimant to the respondent's Occupational Health ('OH') department to seek advice on how the claimant's local management team could support him. Mr Hunter planned to meet again with the claimant and his trade union representative, Watty Gaffney, after OH had prepared a report of their recommendations.[7]The claimant attended an OH appointment with Steven Reid, OH Lead Nurse, in or around the first half of July 2020. He was then asked by Sharon Johnstone, Assistant Head of FM Operations, to attend a meeting with her and an HR Manager, Eileen McFadyen, to discuss Mr Reid's report which was dated 16 July 2020. The meeting took place on 29 July 2020 and Ms Johnstone followed it up with a letter to the claimant the following day [R101]. She recorded that Mr Reid had reported the claimant to say that he did not need any adjustments to his role, and could regulate his behaviour when dealing with difficult situations at work. She noted that the claimant affirmed those points in the meeting. By this time the claimant had met with Ms Young and reviewed some of the respondent's policies such as its Dignity at Work policy and Staff Code of Conduct. One of the claimant's supervisors, John Howden, had covered a Health Care Support Worker Code of Conduct also. Ms Johnstone confirmed that she was treating her meeting and her letter as the end of the matter, i.e. the complaint by the security guard and any issues arising out of it.[8]On two separate occasions in September 2020 the claimant had disagreements with members of nursing staff. On 7 September 2020 he told a nurse that she was not following Covid safety protocols correctly. She reported him to a Porter Manager, Frank McGuire, alleging that he had been cheeky to her. The claimant spoke to a supervisor about the incident and was told that some nurses complained about porters all the time, it was just part of the job and he should not worry about it but learn to 'pick his battles'. On 23 September 2020 the claimant had a disagreement with a different nurse. She did not report him to a manager.[9]Mr McGuire met with the claimant on 25 September 2020 under the respondent's Early Resolution procedure, which is designed to resolve less serious matters promptly without engaging a formal process. Mr McGuire told the claimant that he was being removed from patient transport as a result of the complaint by the nurse on 7 September 2020. This would have stopped the claimant interacting with nursing staff, and instead involved him transporting other materials around the hospital, such as supplies, samples or laundry rather than patients. The claimant took Mr McGuire's words to mean that he was being taken out of his role altogether, in other words being dismissed. He became upset at that point in the meeting, stood up and left the room, then the hospital building altogether. He went home.[10]The claimant's mother telephoned Mr McGuire to discuss the incident and, partly, to explain the claimant's way of processing information and why he reacted as he did. This conversation was cordial and considered helpful on both sides. Ms Westcott followed the call with a letter which she emailed to Mr McGuire on 29 September 2020 [R102- 103]. Again she explained that the claimant could take language literally, and raised the question of whether there had been any disability awareness training.[11]On 8 October 2020 Mr McGuire wrote to the claimant to record the outcome of the Early Resolution process [R104-106]. He said that the claimant's conduct in the meeting had been of concern, but noted that the claimant and Mr Gaffney had explained that he could find it difficult to deal with stressful situations. Mr McGuire explained that he was concerned about how the claimant would carry out patient transfer duties, as further differences of view could arise with colleagues or members of the public in the future. He recalled that the claimant had said previously in discussions with Mr Hunter that he could control his behaviour. He noted that the claimant had said that he had learned, and would remove himself from any difficult exchanges before they escalated.[12]A number of support steps were outlined in the letter which were said to have been agreed. In brief, they were:a. For the claimant to meet with an Assistant Manager every Thursday to discuss support needs;b. To remove himself from difficult situations in the first instance and then speak to a Supervisor, and to report any derogatory conduct towards himself in this way;c. A change in shift pattern so that he would consistently work 9am to 5pm, Monday to Friday rather than varying shifts or days;d. To accept that patient transfer was only one aspect of portering, and to be prepared to transport other goods and materials as required; ande. To continue to comply with current Covid guidance.[13]Mr McGuire arranged a further OH referral to see if any further adjustments would be recommended in light of these developments since the first appointment. A standard referral template was completed. It raised four questions for OH to deal with [R109]. Those were:a. Is the claimant able to deal with difficult situations in a controlled manner;b. Are there adjustments to his role which should be considered;c. Is there any support available which would help him control his behaviour to ensure there would not be a repeat of the disagreements which had already occurred: andd. Bearing in mind the support his local management team had already given, could anything else be done?[14]At some point the claimant was allowed to resume transporting patients. On or around 3 November 2020 he attended an appointment with Mr Reid, whom he had met on his previous visit. Mr Reid completed a report and included answers to Mr McGuire's questions [R111]. He said that he believed the claimant was adapting to the new interactions he was having at work, and becoming better at doing so in a controlled manner, but would likely encounter further new situations where he might struggle. The need for the claimant to be professional was emphasised. Mr Reid also said that the claimant particularly enjoyed working with patients, and did not feel he needed supportive interventions from supervisors. A mentor or positive role model however may help, as would a consistent approach to dealing with future incidents.[15]A follow-up consultation with Mr Reid was planned, and took place on 13 January 2021. In the interim no problematic situations involving the claimant were recorded. Mr Hunter wrote to him on 18 January 2021 to say that he was pleased that the claimant continued to make good progress when dealing with unpredictable situations at work. He had been meeting regularly with Jamie Coleman and Ross McFarlane, both Assistant Portering Managers, and would continue to do so. He noted that a further appointment with Mr Reid had been arranged for 10 March 2021, but did not anticipate having to take further direct involvement in the claimant's day to day work.[16]On 8 March 2021 the claimant reported to work late, telling Mr Coleman that he had contemplated not coming in but had been persuaded to do so by his mother. His mood was low following an appointment with a Dr Holmes, a consultant psychiatrist within the respondent's OH department the previous Friday. He said she had made him feel insignificant. He reported that on the same day there had been another altercation with the security guards, and later that a supervisor had sworn at him for being late. Mr Coleman granted the claimant two annual leave days as he believed him to be too agitated, and that there was scope for the claimant to react badly to work scenarios. He put the claimant in the main pool for his next day back at work, which would be a less demanding environment. He asked the claimant to report to him on his return to discuss whether he felt fit to work. Incident with John Howden[17]On 26 April 2021 the claimant was involved in an incident with Mr Howden, one of the portering supervisors. A number of porters including the claimant were having a discussion when Mr Howden came to complain about the noise level. An argument developed between Mr Howden and the claimant about whether the porters had been shouting and swearing. The claimant alleged that Mr Howden misused his authority by threatening to have the claimant suspended or dismissed. He reported the matter to Mr Coleman, who asked both individuals to provide a statement of what happened [R114-117]. Each accused the other of using aggressive and threatening behaviour towards them. Mr Coleman reported the matter to Sharon Johnstone, his manager. Mr Coleman also asked two colleagues who were witnesses to provide a note of what they saw [R118-120].[18]Ms Johnstone organised a Teams call on 30 April 2021 with Mr Coleman, Mr Reid and an HR representative to discuss the claimant's situation. She noted the discussion in an email [C228]. She said that management were increasingly concerned about the claimant's ability to comply with and provide required standards of behaviour and conduct due to the increasing number of incidents involving him. The tribunal considered that this choice of words could be taken as conveying that Ms Johnstone thought the incidents which had occurred to that point were solely the fault of the claimant, which would be simplistic and inaccurate. The tribunal did not take the same view, accepting that the claimant was at this time more often than not the victim rather than the perpetrator. However, it was correct that the claimant had been involved in an unnaturally high number of situations involving disagreement with those around him, and it was appropriate for local management to feel the need to address this in some way. There was a discussion about steps which had already been taken to vary the claimant's working environment, and what further actions would be possible and appropriate. Mr Reid was asked about the degree to which the claimant's autism was a factor. He said that someone with autism should still be able to take instructions and carry them out. It was agreed to explore the transfer of the claimant to a smaller site where work was more stable and additional support was realistically possible, compared to the high levels of activity within the hospital and the reactive nature of the work. It was agreed that the claimant would be invited to a conference to discuss transferring him to another hospital managed by the respondent. Mr Coleman arranged a meeting for 31 May 2021.[19]Ms Johnstone explored what other sites would have portering roles meeting the criteria discussed on 30 April 2021. She identified one at the Hillington laundry facility. She obtained approval for an eight-week trial period. The position was at the same pay level and the site was closer to his home than the hospital.[20]In relation to the altercation between the claimant and Mr Howden, Mr Coleman reached the view that it was not possible to conclude whether either or both had behaved inappropriately, as each contradicted the other's account and the witnesses were unwilling or unable to corroborate events. He wrote a letter to each of Mr Howden and the claimant on or around 23 May 2021 saying essentially the same thing, namely that owing to a lack of evidence there was no disciplinary case for either to answer and the matter would be taken no further [R123, 124]. Case conference meeting 31/5/21[21]The claimant attended the case conference meeting with Mr Coleman, an HR colleague and Mr Reid. His mother also attended. It was noted that there was a risk that the claimant was gaining a reputation for getting into difficulties with colleagues, but a desire to prevent this happening. Those present discussed the way that the claimant's autism could manifest itself and potentially create issues for others, especially if they were unaware of why the claimant might act as he would. It was also recognised that conduct others might engage in and consider unremarkable, such as playful physical contact, could be upsetting or unwanted by the claimant. It was noted that the claimant had developed understanding relationships with Mr Reid and Mr Coleman through patience and discussion.[22]The claimant's need for routine and structure was covered, and it was agreed that he would be based in the Imaging (i.e. X-ray) department for three days each week and another department for the remaining two. Accommodation of his OH appointments was also discussed and agreed on.[23]The claimant attended an OH appointment on 22 June 2021. Mr Reid recommended that the claimant be provided with a consistent mentor.[24]On 20 July 2021 a senior charge nurse in the discharge lounge complained about the claimant to Mr Coleman. She alleged that he had taken a break after accepting a job to collect a patient from her department, causing a delay of around ten minutes. It was alleged that the delay prevented the patient being discharged at the planned time as an ambulance could not wait for her. The claimant denied doing so, saying that he had merely taken a quick drink of water from his workstation as he passed, because it was a hot day. He said this delayed him by no more than five minutes.[25]Mr Coleman had a scheduled wellbeing meeting with the claimant on 22 July 2021. After a general discussion he raised the complaint of the senior charge nurse and told the claimant to spend his working time in rotation between the Main Pool and Imaging, but not carry out jobs for the discharge lounge. This upset the claimant. He felt the scope of his role was being eroded.[26]Mr Coleman wrote a letter to the claimant on 23 July 2021 [R125-126] covering a number of points. He apologised for the lack of frequency of meetings between the two, but recorded that the claimant himself had been happy at work in recent weeks and had no issues to raise. He said that he had raised with the claimant on two occasions that he should only gain access to the hospital through agreed access points, in line with Covid protocols. Doing so would help avoid challenging interactions with colleagues. He documented the complaint of three days before. He said that he had no issue with staff taking heat breaks, but they should not accept time-sensitive jobs before doing so. He confirmed that the claimant would work between the Main Pool and Imaging only, and that he would ensure the claimant could meet weekly with an Assistant Portering Manager (i.e. himself or Mr MacFarlane) on a weekly basis.[27]On 26 July 2021 the claimant's mother wrote to Mr Coleman in response to his letter [C488-491]. It began by acknowledging the steps and efforts which Mr Coleman and others, such as OH, had provided to help the claimant. It went on to raise what Ms Westcott thought were a number of errors in what Mr Coleman had said. It offered the claimant’s explanation for why he had been delayed on his job on 20 July 2021, which the nurse concerned had complained about. It also explained why the claimant had left his meeting with Mr Coleman so abruptly.[28]The claimant was absent from work on 13 September 2021, and then again from 20 September to 31 October 2021, with the reason given as stress.[29]On 28 October 2021 the claimant met with Mr Coleman and Eileen McFadyen from HR, to discuss his recent absence. The claimant's mother and Mr Gaffney were also present.[30]The claimant returned to work on 1 November 2021 and attended a return-to-work interview. He said that he did not find regular meetings with Mr Coleman and Mr McFarlane helpful, and preferred not to continue with them. It was reiterated and agreed that the claimant would work between the Main Pool and Imaging department. It was explained that he could not be guaranteed the use of the same radio at all times, but he would be given one if he wanted for each shift.[31]On 30 November 2021 the claimant requested a radio to use. He was told by Janice Thomson that his supervisor or point of contact for that day, Ciara, did not have one herself and so there was no point in him having one himself, as in effect nobody would be trying to reach him by radio or able to listen for contact by him. He should report back to her in person after each job and be given a new one on a slip of paper. This was the normal procedure when radios were not being used. He said that Ms Thomson ‘screamed’ at him later in the day for not answering his radio in front of a room full of supervisors, before asking him to report to a room upstairs where she criticised him further in the presence of a supervisor named Daniel. He said he had autism and they were going too far. He felt they were standing too close to him. He was seated at the time. He asked them to leave him alone. Ms Thomson had no recollection of such an event.[32]One day in December 2021 the claimant asked Ms Thomson as he went on a break to make sure nobody took his radio, which he put into a charging station. When he came back to retrieve the radio someone had taken it.[33]On 29 December 2021 the claimant had a disagreement with a senior nurse. He felt that she humiliated him in front of others. The circumstances were that he was waiting in the ward with a trolley to transport a patient. He had been waiting for around 20 minutes when he had been told by his supervisors normally not to wait more than ten. He stood up to leave and told a nearby nurse that the job would need to be re-booked. A more senior nurse came out and asked him to come back, saying that the patient was almost ready. The claimant said he had waited long enough and could not wait any more. He says that at that point the nurse raised her voice to him and told him she didn’t like his attitude. Other staff as well as patients and visitors were witness to this. The senior nurse followed the claimant to ask what his name was.[34]On or around 6 January 2022 the respondent decided to stop using radios for communication between porters and their supervisors in the Imaging department. The claimant saw this as detrimental. The respondent had taken the decision because there were not enough radios to go around all of the porter bases, and they were to be prioritised in other areas. When explaining this to the claimant, Mr Coleman intended to discuss with him the option of him only working in departments where radios would be used, but did not get the chance as the claimant became upset at hearing of the decision and began shouting. Mr Coleman suggested he go home.[35]The claimant began a period of absence on 7 January 2022 which continued for two weeks. He provided a fit note to cover the absence.[36]On 19 January 2022 the claimant submitted a written grievance against the respondent [C246-248]. It alleged bullying, harassment and discrimination based on disability on the part of various supervisors and other colleagues, including Mr Coleman.[37]On 23 February 2022 the claimant met with Morag Walsh, Assistant Head of FM (Clyde), to discuss his return to work and how that would be accommodated whilst his grievance was dealt with. She was chosen as a manager who had no previous history with the claimant. Mr Gaffney and the claimant's mother also attended.[38]Ms Walsh wrote a letter to the claimant on 11 March 2022 [R145-146]. She noted that the claimant had preferred to return to his role at the hospital pending the conclusion of his grievance. She said that since the meeting she had been considering the viability of that option, and found it difficult to envisage given the allegations of bullying by supervisors and other colleagues, and a failure to protect the claimant. It would be difficult for his work to be managed without the involvement of the portering managers, who were implicated in the grievance. This led her to offer two options:a. A role at another hospital – portering roles at three hospitals were offered, plus a role in the laundry facility; orb. A return to his current role at the Queen Elizabeth University hospital, on conditions. Those were: i. He would be in a clearly defined and potentially restricted role, ii. He would have a named supervisor and mentor, iii. He would continue to fall under the management of the portering service, and iv. He would have a weekly review meeting with a portering manager. The claimant was asked to confirm his preference. Ms Walsh explained that she would be on leave until 21 March 2022, but could discuss the options on her return, and that she would provisionally arrange a meeting in the following week.[39]On 21 March 2022 the claimant's mother replied to the letter on his behalf [148-150]. She said he was disappointed to read the letter as he was expecting simply to be told on which day to return to work. She mentioned that the claimant's desire for structure and routine had been discussed at the meeting. She said that the claimant did not want to work at another location, and that this had been suggested a number of times before. He preferred to return to his existing role which he had become familiar with, and because there were aspects he enjoyed. She said that the claimant's need for a radio had been discussed, then went on to propose details of a phased return. The letter also responded to the conditions Ms Walsh had listed with the claimant's and his mother's own comments. A named supervisor was welcome, but Mr Coleman should not have contact with the claimant as he was the subject of the grievance. The claimant did not want to have weekly review meetings.[40]Further conditions were suggested, such as the claimant completing a phased return, supervisors to be equipped to close down negative comments towards the claimant relating to his disability, the mentor to be suitably aware of the requirements of the Equality Act, a clear rota structure, a radio always to be available, the option to take time to settle himself if he became involved in confrontation, support from his mother and union representative in formal meetings, a choice of lunch break, and a designated email address to communicate about OH appointments.[41]A follow up meeting took place on 4 April 2022, involving Ms Walsh, an HR advisor, the claimant, his mother and Mr Gaffney. Ms Walsh raised a further option, namely to work in the service yard at the hospital with a new manager. The claimant did not want to take that option up. Ms Walsh expressed concern in an email to Mr Reid dated 11 April 2022 that the claimant 'going back into the environment where he felt intimidated and bullied isn't in his best interest.' This was in response to a prompt from Mr Reid who was aware that the claimant was now deemed medically well enough to resume work but had not returned. He had dropped down to half pay under the respondent's sick pay scheme, and so was earning less.[42]On 21 April 2022 Ms Walsh wrote again to the claimant [R1160-164]. She referred back to the meeting on the 4th and referred to his frustration at not being back at work. She said the position was difficult as his serious allegations had to be investigated whilst maintaining key services and supporting the claimant's return. She reminded him that there were still outstanding complaints against him by other members of staff. She explained that his absence was now being treated as special leave so that he would be paid in full pending his return.[43]Ms Walsh reiterated that her view was that it was better for the claimant to work outside of the portering team at the hospital while the grievance was dealt with, but accepted the claimant's position. She outlined the conditions which would accompany his return to his role in detail. Paul Armstrong would be his designated supervisor and Louise Gallagher would be his line manager above that. This removed Mr Coleman from the management line. He would have weekly documented reviews despite not believing they were required, because they would provide support and help identify any issues at an early stage. He would be able to use a radio when based in the Main (General) Pool but only there, as radios by that time were only used in one other area – SATA – which the claimant did not work from. Some of the additional conditions requested by Ms Westcott were agreed, and others would be subject to review. It was explained that training on autism and learning disabilities had already been provided across the service, but refresher training would be given to management teams.[44]Ms Walsh also said that it was important the claimant appreciated and complied with some of the requirements of his role such as being contactable during his shift, undertaking the tasks given to him and participation in informal discussions with managers. She suggested that the phased return could start on or around 25 April 2022.[45]In a separate letter dated 25 April 2022 Ms Walsh confirmed that the claimant's full pay had been backdated to the date some six weeks before when he was deemed well enough to return, so that he did not lose out on pay for that period.[46]The claimant returned to work on 28 April 2022. His mother emailed Ms Walsh the following day. She said the claimant had had a good first day back at work. On 24 May 2022 she emailed Ms Walsh again, to say that she recognised the latter was no longer overseeing the claimant's return, but that the agreed measures had 'derailed a bit'. She mentioned that contact from the designated managers had been less. They had missed each other when contact attempts had been made. Ms Walsh conveyed the message to the portering management team. Mr Coleman asked Mr Armstrong to make sure a radio was charged and ready for the claimant to use when he came in. On 7 June he confirmed the claimant's phased working times to the portering supervisors. He sent an email the following day as a further reminder to have a radio set aside for the claimant to use.[47]No further issues were recorded in relation to the claimant's return to work from his absence earlier in the year.[48]On 23 September 2022 the claimant was absent from work, giving the reason as stress. He returned to work on 27 September 2022. Mr Armstrong met with him to discuss his absence on his return date. He asked the claimant whether any further adjustments were needed, to which the claimant replied no. Incident of 27 September 2022 and complaint[49]On 27 September 2022 the claimant became involved in a verbal exchange with a senior charge nurse ('SCN') Campbell in a ward where he had been asked to go to collect a patient. There was a disagreement over whether the patient, an elderly lady with dementia, should be transferred to another part of the hospital in a wheelchair or on a trolley. SCN Campbell asked for the patient to be taken in a wheelchair, but the claimant believed that a trolley, which he had brought, would be more appropriate. The discussion became more of an argument, which was overheard by others in the corridor area where they were situated, including the patient's mother who was in a nearby room.[50]When describing the events later, the claimant said that SCN Campbell followed him back to his station using critical language and she said that he had used foul and abusive language, and aggressive behaviour in front of the patient. SCN Campbell complained to the portering supervisors and Sharon Johnstone met with the claimant and asked him about the incident. She did not have full details and was content to allow the claimant to carry on working that day on the basis that he was not allocated further jobs for the same area of the hospital.[51]By the following morning SCN Campbell had provided a statement and Ms Johnstone considered the allegations to be more serious than first indicated. She asked the claimant's mother to come in and met with them both, and then decided to suspend the claimant with pay pending further investigation, which was to be carried out by Eileen O'Rourke, Retail Manager. The decision was taken after she had first suggested the claimant be transferred to another of the respondent's hospitals to work pending investigation into the matter, which the claimant did not wish to do.[52]The day after the incident the patient's daughter emailed the hospital's complaints department to lodge a complaint about the incident [R182- 183]. Specifically, the complaint was about the claimant and did not implicate SCN Campbell in any wrongdoing. She said that the claimant 'flew into a rage, he was shouting and cursing at the nurse calling her unrepeatable names.', and that 'His behaviour was appalling and indeed extremely frightening. My 91 year old mother was terrified (as was I)…'.[53]The claimant's suspension was confirmed by letter of 30 September 2022 [R184-186].[54]Ms O'Rourke undertook an investigation into the incident. This took from 6 October to 28 December 2022. She prepared a report documenting her actions and findings [R215-231]. The report had a number of appendices, principally containing statements from witnesses [R232-295]. She listed the allegations she was investigating as:a. That the claimant used foul and abusive language towards SCN Campbell and in front of patients within a clinical area;b. He had displayed aggressive behaviour towards SCN Campbell in the same setting; andc. His behaviour resulted in SCN Campbell and the patient feeling intimidated and fearful for their safety.[55]Among others, Ms O'Rourke interviewed Staff Nurse Thomson and a pharmacist who had witnessed all or part of the exchanges between the claimant and SCN Campbell. Notes of their interviews were included in the appendices to the report.[56]Nurse Thomson witnessed the whole incident. He said that the claimant had arrived with a trolley and that SCN Campbell asked for the patient to be transported by chair as it would be easier and more comfortable. He agreed with this view as he said the patient was elderly, small and stooped over, and would have struggled to get onto a trolley. He said that the claimant then remarked that if a chair was needed, the job would need to be re-booked, and walked away. He said that when SCN explained the patient needed to go to the radiology department for a scan, the claimant replied 'tough'. SCN then asked the claimant who he thought he was speaking to and asked him for his name. The claimant then became verbally aggressive, shouting and swearing. This occurred immediately outside the patient's room. SCN Campbell did not shout herself and was described as very professional. He believed that the claimant had been on her own in her room at the time of the incident. After the claimant left, another porter was called but the patient was scared to go with them. He said other staff were coming to see what was going on, and were shocked that a porter was shouting and swearing in the corridor. He also stated that it was a normal occurrence for a nurse to request that a trolley was switched for a chair or vice versa, and that porters normally were happy to do so.[57]The pharmacist said she had seen less of the incident, but said she was around eight feet away from SCN Campbell and the claimant when the exchanges occurred. She heard both talking loudly, then saw the claimant leaving and saying, 'Do not speak to me like that', and also shouting and being angry. She said SCN Campbell did not shout or act aggressively. She had no recollection of the claimant swearing, but said the situation was very uncomfortable. She said she saw nothing done by SCN Campbell which warranted the response she witnessed from the claimant. She believed the patient was in her room at the time with the door open, and that other people were around.[58]SCN Campbell and the claimant gave a fuller account of the incident than they had done on the day it occurred. Notes of their interviews were included in the appendices to the report and those were summarised in the report itself.[59]SCN Campbell reiterated that both the patient and her daughter were in the patient's room at the time of the incident. She said she returned to them after the claimant had left and attempted to reassure them. After another porter had taken the patient away, SCN Campbell went to speak to a portering supervisor. She said she could still hear the claimant being upset, with a colleague trying to calm him down. He left, and she burst into tears when explaining what had happened. She later spoke to her lead nurse and made a report. She recalled that the patient's daughter had asked how she could make a complaint. She said in conclusion that she had never witnessed anything like this before, the severity of the claimant's behaviour was unacceptable and that she was noticeably shaken. In a follow-up interview she said that the claimant had not made her aware of his autism.[60]The claimant himself denied all three allegations. He said that before the incident he had undertaken two jobs earlier in the day where he took a trolley to the ward and was then asked to come back with a chair. He said to SCN Campbell that this kept happening, and it was then her who escalated the exchange into an argument about his attitude. He said he then started walking away as this was his way of de-escalating a confrontation, but SCN Campbell followed after him and continued to criticise him in front of others in the corridor. He also believed that either the patient's daughter had been pressured into making the complaint, or in fact that it was fabricated by a colleague, such as Mr Coleman. He maintained his view that a trolley would have been more suitable to convey the patient, and that he was mindful of the extra time he was taking on his jobs that day, which could have prompted criticism of his timekeeping by supervisors. Conduct hearing with Helen Gemmell[61]The claimant attended a conduct hearing on 3 March 2023 which was chaired by Helen Gemmell, Assistant Director of Facilities. Also present were an HR manager, a note-taker, Ms O'Rourke as the investigator, the claimant's mother and Mr Gaffney. Minutes of the hearing were not submitted as evidence and apparently had not been retained, but Ms Gemmell wrote an outcome letter to the claimant dated 16 March 2023 which summarised the matters covered [R296- 299]. Enclosed as an appendix was a more detailed note explaining the rationale for her decision [R300-304].[62]During the hearing SCN Campbell, Ms Johnstone and Ms Gallagher answered questions in person.[63]MS Gemmell did not reach a decision on the day of the hearing, and her outcome was set out in her letter. She found that the allegations against the claimant were substantiated, based on the evidence of SCN Campbell and the other witnesses to the events. She accepted that they had not met the claimant before, and did not know about his autism. She also accepted that the complaint emailed by the patient's daughter was genuine.[64]In her letter Ms Gemmell discussed the mitigatory factors which the claimant had raised in the hearing. She recognised the challenges faced by the claimant, but believed he had also been given support by supervisors and managers. She noted that the claimant believed that Mr Coleman was pursuing a vendetta against him, but concluded that his involvement in the events under review was minor. She was aware of the claimant's still outstanding grievance against Mr Coleman, but did not consider it connected to the disciplinary case. She noted a point the claimant made about staff being trained or educated in understanding disabilities. She said that it would not be practicable for all staff in a large and busy hospital to be trained to deal with the signs, symptoms and behaviours of every disability. She was content with the steps the hospital management team had taken to raise awareness, and the SEARCH project which focussed on recruiting individuals with disabilities into jobs.[65]Ms Gemmell concluded that the conduct which the claimant had displayed amounted to gross misconduct and would justify a decision to dismiss him with immediate effect. She noted in saying this that there was little to reassure her that a similar incident would not happen again, given that further challenging situations were bound to arise in the hospital’s environment. She said that acute hospitals were, by their nature, uncontrolled and unpredictable environments which occasionally created difficult, busy and pressurised situations.[66]Despite her conclusions, Ms Gemmell was prepared to offer an alternative to the claimant in light of the challenges he faced and the value of stable work in his life. She therefore proposed to issue a twelve-month final written warning and to relocate the claimant from a patient-facing role in the hospital to a smaller team where there would be a more controlled working environment, and a management team better able to support him. Two options were offered – the Central Decontamination Unit at Cowlairs, or the laundry facility at Hillington. Both would involve the same patterns of working days and hours as his existing role. Ms Gemmell offered to meet again with the claimant to discuss further details of the roles.[67]Under the respondent's disciplinary policy the claimant was offered a right of appeal against the decision within ten days. Appeal against disciplinary outcome[68]The claimant appealed against Mr Gemmell's decision by letter dated 28 March 2023 [R305]. He said that he felt that relevant information had been negated and mitigatory evidence ignored. He believed that Ms Gemmell had relied on hearsay in reaching her conclusions, and that prejudice and discrimination had occurred, contrary to the Equality Act. He saw the decision as forcing him into redeployment.[69]Mr Tom Steele, Director of Estates and Facilities, was asked to consider the appeal.[70]Despite the ongoing appeal, the claimant and Ms Gemmell met further on 31 March 2022 to discuss the two options she had offered him. An HR manager, the claimant's mother, and Mr Gaffney also attended. Ms Gemmell summarised the discussion in a letter she sent on 6 April 2022 [306-307].[71]Ms Gemmell recorded that she had arranged for the claimant to visit each of the sites if he wished, to understand better what working there would involve and help him make a decision. The claimant made clear that he felt unable to do so. Ms Gemmell confirmed that he was no longer under paid suspension, and that it had been agreed he could take annual leave whilst considering his position. He could also begin either of the alternative roles on a phased basis if and when he felt ready. She separately emailed him job descriptions for the two posts.[72]The claimant did not pursue either role further. He felt that he would not be able to fulfil either of them. After he had used up all of his accrued annual leave he remained off work.[73]An appeal hearing took place on 11 July 2023. Present were Mr Steele, the claimant, his mother, Mr Gaffney, an HR advisor and a note-taker.[74]Ms Gemmell prepared a document for the appeal titled 'Management Statement of Case', which effectively documented the process she had followed [R308-325]. A copy was sent to the claimant before the hearing. She attended the appeal hearing to answer questions about her handling of the matter at the previous stage of the process. Ms Johnstone also attended to give evidence.[75]Following the input of all attending, Mr Steele concluded that there was adequate evidence to support the conclusions Ms Gemmell had reached regarding the claimant's conduct. He therefore upheld her decision. He was not persuaded that there was any bias, prejudice or failure to give adequate weight to mitigatory factors. He agreed with Ms Gemmell's decision both to issue a final warning and to relocate the claimant to a setting where a repeat of the events under consideration was unlikely to occur. He could not see a return to a patient-facing role being tenable and agreed that the claimant would be better suited to working in a less busy and changeable environment, within a smaller team and with management support.[76]This effectively left the claimant in the same position as at the outcome of the disciplinary hearing. Both roles had been kept free should the claimant have decided he wished to explore either of them. However, Mr Steele had identified a third possible role which was for a porter at Gartnavel Hospital in the west end of Glasgow. That was where Mr Steele himself was based and he had knowledge of both the hospital and the portering team there. That hospital was smaller than the Queen Elizabeth University and did not have an emergency department, being more focussed on planned procedures. Because of that, work patterns were more predictable. He knew of managers there who were experienced in supporting staff with additional needs.[77]Mr Steele confirmed his decision in a letter to the claimant dated 17 July 2023 [R326-327]. He telephoned the claimant on the day he sent it, to give advance notice. He spoke to the claimant and his mother via loudspeaker.[78]The claimant was disappointed at the outcome of the appeal, both in terms of the warning and the decision to relocate him. On his behalf his mother wrote to Mr Steele on 19 July 2022 to set out his position. He continued to believe that the correct, if not only, outcome was for him to be restored to his original role. He explained that agreeing to being redeployed was equivalent to accepting that he was the cause of all of the difficulties he had experienced at the hospital, and not others. He felt that had not been the case.[79]Although the formal process had been concluded, Mr Steele replied by letter on 20 July 2023. He accepted that the claimant was disappointed with his decision and the options remaining. He reiterated that he could not agree that it was viable for the claimant to return to his previous role. He offered a meeting to discuss the situation further.[80]On 29 August 2023 the claimant wrote to Mr Steele to say that he would like a meeting [R513-514]. There then followed an exchange of emails between Mr Steele and Ms Westcott, before Mr Steele wrote a letter to her dated 21 September 2023. In it he made clear that he had not changed his mind about the outcome to the disciplinary process, but would arrange an appointment for the claimant to meet with OH to discuss his current position. He envisaged having a further meeting with the claimant and his mother once a report had been prepared. He said that if the claimant continued to decline the offers of alternative roles it would be necessary to revert to dismissal. He stressed that this was not a route he wished to follow.[81]There was a delay in an OH appointment being made, which led to Mr Steele writing to the claimant on 15 January 2024 to explain the situation and state that an appointment should now shortly follow. Ms Westcott replied on 30 January 2024, saying that she had spoken to Mr Reid in October 2023 and it had been decided not to have any further appointments. An appointment arranged for 16 January 2024 was therefore cancelled. Ms Westcott mentioned that the situation was now 'subject to legal proceedings'.[82]Mr Steele wrote to Ms Westcott on 15 April 2024 [R535-537]. He recapped the disciplinary and appeal processes, and noted the claimant's confirmed position regarding meeting with OH. He concluded by saying that it was now evident that all viable options had been exhausted. He asked for the claimant's position to be confirmed by 24 April 2024. If the claimant had not replied to say he wished to take up one of the alternative roles offered, and which, his employment would be terminated with effect from 25 April 2024.[83]Ms Westcott wrote back on the same day [R538-541]. The letter revisited a number of matters from the start of the claimant's employment. She maintained that Mr Steele was not fully aware of the claimant's needs and the treatment he had received from colleagues. Mr Steele replied on 29 April 2024 to say that the claimant had been given the chance to raise all points he wished in the appeal, which was now concluded. As it appeared clear to him that the claimant was not going to pursue one of the alternative roles, he said that the claimant would therefore be treated as dismissed as of 25 April 2024. He would be paid for accrued annual leave up to that date but not in respect of any entitlement to notice under his contract. Discussion and decision Time bar 22. The starting point is section 123(1) of the Equality Act 2010 which states as follows: ‘123 Time limits Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.’ 23. It was clear that a number of the claimant’s complaints had not been presented within the three-month time limit. He began Early Conciliation with ACAS on 5 September 2023, which ended on 17 October 2023. Any events or acts occurring before 6 June 2023 would therefore at least provisionally be out of time. This applied to essentially all of the claimant’s case save the appeal meeting with Mr Steele and anything which came after, unless earlier events could be said to be part of a continuing act which ended with the appeal. 24. It had been decided at a previous stage in the claim that the question of time bar should be dealt with at the full hearing of the claim. This is often the best approach given the tribunal’s overriding objective, because often only by hearing all of the relevant evidence can questions such as whether there was a continuing act be fairly determined. 25. Other questions which may arise are often best addressed at a full hearing for the same reason, such as whether it is just and equitable to decide any complaints on their merits which are technically time-barred. This often involves exploring why the complaints were not raised earlier so that they would have been within time, why the complaints were ultimately raised when they were, what the claimant’s degree of knowledge of the relevant law and tribunal process was, what advice and assistance if any they received at various points in time, and what are the actual or provisional merits of the late complaints they wish to have decided. 26. An employment tribunal has a wide discretion to extend time under section 123(1)(b). However, the starting point should always be that the primary time limit of three months should be applied. Only if it is just and equitable to extend time should that happen. In that sense an extension should be an exception rather than the default rule. 27. Neither party is subject to a burden of proof in relation to the issue, although a decision to extend time must be based on some relevant material or facts. That need not necessarily be provided by the claimant in such a case, although often this will happen as they are the party seeking the exercise of the discretion. 28. A helpful list of factors to consider was provided in the cases of British Coal Corporation v Keeble [1997] IRLR 336 and DPP v Marshall [1998] IRLR 494, namely: 29.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 respondent had co-operated with any requests for information,d. The promptness with which the claimant acted once they knew of the possibility of taking action,e. The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action. 30. However, it has been made clear in subsequent cases that this is not a closed or definitive list to be slavishly followed. Some factors will be more relevant in each claim than others. 31. A further matter which has been held to be of potential relevance is the apparent merits of the case, although care should be taken when assessing those at a preliminary stage and before all possible evidence has been heard. Some matters disclosed at an early stage in a claim may be agreed or uncontroversial whereas others may be more nuanced, or later squarely contested. If this is a potentially relevant factor, there is no rule that it is more or less important than any others. 32. The tribunal determined that the disciplinary process from the point when Ms Gemmell decided the outcome of the disciplinary hearing until the dismissal of the claimant was a continuing act, or ‘conduct extending over a period’ for the purposes of section 123(3) of EqA. This was because her decision left open to be resolved whether the claimant would be dismissed or would continue to be employed, but under different terms. That process carried on through the appeal to the point when Mr Steele concluded that the claimant was not going to agree alternative terms with him, and so opted for dismissal. 33. The tribunal reached the conclusion that the earlier complaints were timebarred and were not brought within time by being part of a continuing act, but that it should decide the claimant’s complaints on their merits because it was just and equitable to extend time in order to do so. The reasons for that were that: a. They were at least potentially valid complaints. They were competently framed and could have succeeded had there been sufficient evidence to support them; b. The claimant was not represented by solicitors at the times when the issues took place, and was more focussed on gaining a resolution acceptable to him; c. It would have been artificial to separate the earlier complaints from those which were within time; d. The claimant did act quickly enough to ensure at least some of his complaints were within time; and e. The prejudice to him in potentially having valid complaints rejected because of questions of timing was greater than the prejudice caused to the respondent in having to answer them on their merits. 34. The tribunal therefore, having heard all of the evidence, decided to determine all of the claimant’s complaints on their merits. Reasonable adjustment complaint (s20/21 EqA) 35. An employer is under a duty to make reasonable adjustments for a disabled worker in certain circumstances. In summary, as relevant to this claim, they are: a. A provision, criterion or practice ('PCP') put the claimant at a substantial disadvantage in relation to a relevant matter compared with persons who do not share that disability; and b. The employer knows, or reasonably ought to have known, about both the disability and the substantial disadvantage caused by the PCP. 36. If those circumstances apply, the employer is under a duty to make such steps as are reasonable to avoid the disadvantage. 37. The claimant alleged in his revised particulars of claim that the PCP which put him at a disadvantage was 'the requirement that [he] should not conduct himself at work in breach of the respondent's disciplinary policy' and that the disadvantage was that 'if [he] conducted himself at work in breach of the policy he was placed at an increased risk of being subject to disciplinary proceedings/dismissal.' These are referred to in the following paragraphs as 'the requirement' and 'the disadvantage' for brevity. 38. The tribunal found it to be uncontroversial that the requirement qualified as a PCP and that it put the claimant to a particular disadvantage as he asserted. There was such a general rule which applied to all employees, and the claimant was at a particular disadvantage by reason of his autism because he was more likely to fall foul of that rule through his interactions with colleagues. The tribunal stresses however that although he was more at risk in this way, that did not mean that every problematic interaction he had with colleagues was caused by, or even linked to, his autism. 39. The claimant contends that the respondent knew both that the claimant was disabled under the EqA and that the requirement was a PCP in relation to him 'at the relevant time'. The respondent accepts that it had knowledge of these matters by around June 2020, following investigation of the security guard altercation in May of that year. That incident highlighted both the existence of the claimant’s autism and the way in which it could affect how he behaved in workplace situations. 40. The tribunal therefore moved to consider what the claimant said were the reasonable adjustments that should have been made. Its conclusions in relation to each alleged adjustment set out in the particulars of claim (and list of issues) is as follows. 41. As a general precursor to these conclusions, the tribunal noted that a number of managers and supervisors, as well as OH staff, had spent significant time in considering ways for the claimant to perform his role in a way which did not cause unsustainable disruption with colleagues and patients. It also noted what the claimant himself had said about whether he needed further support during his employment. Finally, it observed that there were no records of issues between his return to work on 28 April 2022 and the incident with SCN Campbell on 27 September 2022 – five months later. This suggested that the measures and arrangements in place by that point were appropriate. For reasons explained further below, the tribunal accepted that the claimant was responsible for his conduct on the latter date and that his autism was not a recognisable factor. There were no further events where the claimant was a victim of unfair treatment by colleagues which could have amounted to discrimination, harassment or victimisation. a. Informing all staff about the claimant's requirement for a radio and why this requirement was put in place – the tribunal accepts that this was a reasonable adjustment for times when the claimant’s supervisors were themselves using radios. It was not reasonable for ‘all staff’ to be made aware, but it was reasonable for his supervisors to be generally aware. It was a reasonable adjustment because by using a radio to keep in touch with his supervisors, the claimant would not need to return to his base so often where other porters and supervisors may be, while picking up jobs themselves or waiting. By not spending so much time at a base there would be a reduced likelihood of arguments or altercations with those colleagues developing, which at least some of the time could have involved the claimant’s neurodivergent behaviour being taken as challenging. Use of radios did not happen on every shift and in every department over the time of the claimant’s employment, however. There would have been no point in providing the claimant with a radio if he could not communicate with a supervisor using it, and no point telling a particular supervisor about the value to the claimant in using a radio if it was not feasible to do so on the day or in the department in question. The tribunal’s conclusion given consideration of these matters was that to the extent that a reasonable adjustment should have been made, it was made. b. Providing regular training and subsequent refresher training to the workplace on neurodiversity and the potential adverse effects this can have on employees – it would not have been feasible for this to apply to all employees of the respondent, given the large number of people working at the hospital. The tribunal considered whether such training would have been a reasonable adjustment if applied to those who the claimant worked most closely with, namely the other porters and supervisors. The evidence suggested that some were trained in dealing with neurodiversity and others were not. All were aware of more general policies reinforcing values such as respect and recognition of diversity. Looking at the claimant, he said on more than one occasion that he could control his behaviour sufficiently to avoid disputes with colleagues developing or escalating. Supervisors, particularly Mr Coleman, checked in with him and reinforced the value of walking away from potentially difficult situations. On balance, given the measures which were in place, there was insufficient evidence of further or more specific training being likely to make a difference to the claimant’s working experience, or in particular avoiding the incident for which he was disciplined. c. Ensuring an ongoing assessment was made of the Claimant’s work variation requirement to ensure this was not being eroded without consultation and justification, and considered other variations to substitute for those removed – the tribunal did not see this as an adjustment which would have alleviated or removed the disadvantage as framed, namely the increased risk of disciplinary action. This adjustment was aimed more at providing the claimant with a working pattern which was consistent for his need for stability and order. That was a different matter. In any event, the claimant’s working patterns were adjusted initially to suit him (to provide consistent working hours and days) and reviewed at later stages. When his working pattern changed this was most often because of the respondent’s need to react to issues which arose, such as complaints by nursing staff. It was necessary and proportionate to do that. d. Rather than simply naming a mentor, taking steps to ensure that a plan was put in place that illustrated how the mentorship was intended to work, including a consultation about who the mentor would be and why they were the most suitable person to carry out that role, and a proposed timetable for regular meetings – the tribunal could see no meaningful difference between this suggested amendment and what the respondent did, or offered to do. At various times he was offered a mentor and regular support meetings, designed to ensure that further issues were not arising between him and his colleagues, or to intervene early if they did. He said he did not want that to happen. In offering the support measures that it did the respondent satisfied the duty in this respect. e. Rather than subject the claimant to disciplinary sanctions for altercation with colleagues, convene a meeting with the colleagues in question to remind them about their training in neurodiversity or, in the event that colleague never had such training, provide that training – the only disciplinary sanctions the tribunal noted were the final warning issued by Ms Gemmell and then the dismissal decision by Mr Steele, both in response to the incident involving SCN Campbell. It is true that in relation to earlier events the claimant was suspended, but that was a proportionate measure so that investigation could take place. It was not a sanction in itself. The sanctions imposed following the findings made in Ms Gemmell’s disciplinary hearing were appropriate given the evidence available. It would not have been a reasonable adjustment, following a conclusion that the claimant had committed an act of gross misconduct, to refrain from taking any kind of action in respect of the claimant himself, and instead convene a meeting with other employees to discuss appropriate ways of dealing with neurodiversity. First, the tribunal found that the claimant’s neurodiversity did not play a significant part in his conduct towards SCN Campbell, and secondly it would not have been appropriate to deal with any and every situation involving the claimant the same way – by discussion not with him but with anyone else involved. Each situation would be different. Some may call for reinforcement of principles of understanding and tolerance with the claimant’s colleagues, instead of or alongside a suitable response to the claimant himself. The incident in question highlighted that in some cases it would not be of any value to talk to colleagues about the importance of recognising diversity when they had done nothing wrong.f. Disregard the claimant's conduct at work for the purpose of its disciplinary policy and thereby not subject him to disciplinary proceedings – as with (e) above, it could not be a reasonable adjustment to never deal with the claimant’s conduct using a disciplinary procedure. That would effectively give him blanket immunity from all actions, however serious or culpable. There was no evidence that his neurodiversity affected and controlled everything he did. A reasonable adjustment would be to recognise that the claimant’s autism could be a factor in a given occurrence of apparent misconduct, then consider whether and to what extent it was, and then, based on that, point out what the issue was which had been created, identify changes which could be made to reduce the chance of it occurring again, and take appropriate action if the matter was one of general conduct. This is what the respondent did. 42. The tribunal did not therefore agree that any of the alleged failures to make reasonable adjustments met the necessary criteria. Harassment complaint (s26 EqA) 43. The claimant listed a number of alleged acts of harassment, each based on his protected characteristic of disability. 44. The tribunal considered each in turn and found as below. a. On 26 May 2020, the Claimant states he was confronted aggressively by a security guard and this resulted in shouting and swearing by both, thereby creating an intimidating and hostile environment for him – the security guard was an employee of a contractor company and not of the respondent, but an employer can be liable towards its employees for discriminatory acts of its agents, which in this situation the security contractor was. The evidence clearly showed that the claimant’s dignity had been violated by the guard, as attested by the claimant himself and as ultimately concluded by Mr Hunter. He was objectively justified in believing that the guard’s conduct towards him had that effect, as it was intimidating and involved some physical force. However, it was not established by the evidence that this was related to the claimant’s autism, as opposed say to the claimant not showing his security pass when expected or asked, or the guard simply taking a dislike to him; b. On 26 April 2021, the Claimant states he was verbally abused by John Howden thereby creating an intimidating and hostile environment for him – there was conflicting evidence from Mr Howden and the claimant as to what exactly had happened on this occasion, and a lack of helpful evidence from other bystanders led to Mr Coleman deciding not to pursue either individual via a formal process. Harassment under section 26 EqA can take many forms, but must be ‘related to a relevant protected characteristic’. The tribunal considered that, even by the claimant’s own account of the incident, Mr Howden shouted at a group of porters who he believed were making too much noise and not just the claimant, and only after that got into a one-to-one dialogue with the claimant after he had answered back. The claimant believed he was in control of his behaviour throughout the whole incident. The tribunal were not satisfied that Mr Howden’s actions were ‘related to’ the claimant’s autism; c. On 23 July 2021, the Claimant states he was handed a letter from Jamie Coleman advising him that it had been unacceptable to walk away from challenging situations in order to avoid escalation. The Claimant’s position is that this approach had previously been agreed by Jamie Coleman and other senior colleagues, thereby creating a confusing and hostile environment for him – the tribunal accepted that Mr Coleman giving the claimant a letter under these circumstances amounted to conduct which the claimant found to be ‘unwanted’, and that it was sufficiently ‘related to’ his autism because, among other things, it discussed behaviours that the claimant was being asked to either adopt or avoid in order for him to minimise the risk of disagreements with colleagues, at least some of which such occasions in the past had been accepted to be connected to his autism. Whether such unwanted conduct can amount to a form of harassment is to be judged both on how the claimant viewed it himself, but also based on the other relevant circumstances and the question of whether it is reasonable for the claimant to hold that perception – section 26(4). The tribunal accepted that the claimant believed being handed the letter violated his dignity, as this was the essence of his evidence, but they did not agree that it was reasonable for him to hold that view. The letter summarised a discussion which had already taken place the day before on an informal basis. It was not raising new matters out of the blue – its impact was less than that. It covered a number of management issues Mr Coleman had seen fit to raise with the claimant’s conduct at work such as using prohibited access points or returning to his base without bringing a chair or trolley, which were not related to his autism. The tribunal concluded that the claimant was more likely to have been upset with the other aspects, or the letter as a whole, rather than being able to isolate how he felt about one particular point or passage in the letter. Finally, the letter does not in fact say that it was unacceptable for the claimant to walk away from challenging situations at all. The closest it came was to counsel the claimant to update the person waiting for him on a job if he found he needed to take a break; d. On 30 November 2021, the Claimant states he was told the radio would not be provided because Ciara did not have one, and that he was then verbally abused by Janice [Thomson] and Daniel for the resultant problems, thereby violating his dignity, and creating an intimidating and hostile environment for him – the claimant’s evidence was that he was shouted at by Ms Thompson in front of other porters for not answering his radio, which he felt was unfair because he had turned it off after being told that he would not be given jobs that way. He was then told to go upstairs to get his next job. Ms Thompson went into the supervisors’ room and came out again with another supervisor, Daniel, who said to the claimant that he had better do what he was told. The claimant felt he was being intimidated and shouted at them to leave him alone, and that he had autism. A friend of Daniel stepped in and led him away, before gesturing to the claimant to get up from his chair. The claimant then went for a break. Ms Thompson said that she could not recall any such incident. She did not deny outright that it had happened, but said that generally she had no problem working with the claimant. The tribunal accepted that the claimant’s more detailed account was the more likely to have happened. His recollection was clear and it was plausible that, being affected the way he was, he remembered it. The issue with his account in the context of his legal claim was that although what he described could amount to the type of behaviour which constituted harassment, there was nothing to show that it was related to his autism. He only referred to that at the very end of the exchange, at which point neither Ms Thompson or Daniel did anything further to him; e. In December 2021, Janice Thomson intentionally gave the radio assigned to him to a different member of staff in the knowledge that this would cause distress to the claimant, thereby violating his dignity and creating a hostile and intimidating environment for him – the claimant said in evidence that he handed his radio to Ms Thomson as he went on a break, so that it could be charged up next to where she was working. He said that when he returned to get it, she had allowed someone else to take it as it was no longer there, and it was implied that there were no other radios which the claimant could have taken instead. Ms Thomson had no recollection of such an event, though agreed that generally porters would ask her to put their radios on charge. The tribunal accepted the claimant’s evidence to the extent that he asked Ms Thomson to look after his radio and that she did not prevent someone from taking it, but considered that this was merely an oversight and not a calculated act. It was not related to his autism and not of the character which could amount to harassment; f. On 6 January 2022, radio use was removed from the X-ray department altogether, the claimant states this prevented him from continuing to work with that department, and thereby violating the claimant’s dignity and creating a hostile environment for him – the tribunal were satisfied on the evidence that there was a general policy change to this effect for valid operational reasons and that it was unconnected to the claimant’s autism. The claimant believed that the change was not fully observed by some of his colleagues, but there was no credible evidence to suggest that anyone so acting was doing so in any way connected to his condition;g. On 29 December 2021, the claimant states he was verbally abused after disagreeing with a senior nurse and that they proceeded to humiliate the claimant in front of others, thereby violating the claimant’s dignity - there was little evidence on this point. The tribunal accepted that the claimant and a senior nurse had a difference of opinion over whether the claimant should have waited any longer to transport the patient. There was no evidence that the nurse was aware of the claimant’s autism or had acted in some way relating to it. The claimant’s account of the matter suggested he remained calm and rational throughout, and it was the nurse who became more angry. There was nothing to suggest that his words or actions were caused or influenced by his autism;h. On 11 March 2022, Morag Walsh wrote to the claimant regarding his return to work; the claimant states that the terms of this letter offended him and made him feel unheard and degraded – this letter, as with Mr Coleman’s above, summarised a meeting which had taken place, in this instance on 23 February 2022. Although it contained an update on Ms Walsh’s efforts to identify an alternative position for the claimant pending the resolution of his grievance, its contents should not have come as a surprise. Its essence was to explain where Ms Walsh had got to with her thinking about the claimant’s working options. She offered him four alternative roles whilst his grievance was dealt with, or he could return to his existing role subject to some safeguards and conditions. The tribunal considered that the terms of the letter were appropriate, and they suggested that Ms Walsh had given significant thought to helping the claimant find a suitable way to return to working. It would not have been reasonable for the claimant to view it as violating his dignity or creating an inappropriate environment for him;i. On 4 April 2022, the claimant states that Morag Walsh continued to pressure him to accept temporary redeployment rather than a return to his substantive post, thereby offending him and making him feel unheard and degraded – this referred to a meeting between the claimant, his mother and Ms Walsh following her letter of 11 March 2022. Its purpose was to explore further the options which would allow the claimant to continue working. She restated her own view in a follow-up letter of 21 April 2022 that it would be better for the claimant to move to another site, which she was entitled to do. She also said that she had ‘taken account of [the claimant’s] depth of feeling, and the individual benefits to [him] of returning to the same role within the same site and will support [his] return’ on a set of listed conditions. In the circumstances this was also appropriate. Again, she had clearly taken note of the claimant’s position and spent a significant amount of time considering the measures which would be necessary to allow him to return to his role with the lowest risk of further incidents. Ms Walsh communicated with Ms Westcott on 12 April 2022 to provide an update, which was appreciatively acknowledged by the latter. There was no suggestion of the claimant being distressed or frustrated at the steps she said she was taking;j. In early 2022, the claimant states that the delay between him being declared fit for work and the respondent enabling his return made him feel that the respondent did not want him as an employee, thereby offending him and violating his dignity – this allegation overlapped with the process described immediately above. Ms Walsh obtained approval to treat the claimant’s period off work while a role was agreed as special leave, meaning it would be paid after his entitlement to full sick pay ran out. She also got permission to backdate his sick pay to full pay from the point when it became less. She assured Ms Westcott of these by email on 12 April 2022. He had become fit to work again around mid-March. The delay was relatively short and explained by the efforts Ms Walsh made to find alternative options for the claimant as well as identify the conditions which would be necessary for him to return to his own role. He would likely have completed a phased return. It would not have been reasonable for the claimant to consider that the actions of Ms Walsh fell within section 26(1). The contemporaneous correspondence raises no suggestion that the claimant was affected to that degree in any event;k. In early 2022, the claimant states that he was subjected to a reduction in pay until this was reversed, thereby offending the claimant and violating his dignity – this is covered within (j) above;l. On 27 September 2022, the claimant states he was verbally abused and humiliated in front of other employees and patients by Nurse Campbell, thereby creating an intimidating and hostile environment for him – as with issue (g) above, although there was more evidence in relation to what had happened on this occasion, there was none to suggest that the claimant’s own conduct was related to his autism, that SCN Campbell was aware of the claimant’s autism in any event, or that the way in which she interacted with him related in any way to his autism;m. The claimant claims that the disciplinary process was an act of harassment – this is a general allegation levelled at a process which began at the end of September 2022 and ended in April 2024. Nevertheless, the tribunal considered all of the steps followed. The process was initiated as a result of the claimant’s argument with SCN Campbell and the resulting complaint which the respondent took in good faith to have come from the patient’s daughter. The respondent was entitled to commence a disciplinary procedure by investigating the incident. There was enough evidence to amount to a ‘case to answer’ and to warrant therefore an invitation to a disciplinary hearing. There were no identifiable aspects of the process which impacted on the claimant’s dignity or created a hostile, degrading or similar environment and which also related to his autism. The claimant found the process challenging but was unable to show that this was different from the experience any employee would have as the subject to a process of dealing with an accusation of misconduct against them. The claimant was considerately treated, including most significantly by the willingness of Ms Gemmell, and later Mr Steele, to offer an alternative to dismissal following a finding of gross misconduct. Again, the tribunal noted that the claimant had not shown that his conduct was caused or contributed to by his autism. 45. Given all of the above, the tribunal concluded that no allegations of harassment were proven. Discrimination arising from disability complaint (s15 EqA) 46. The claimant argues that he was treated unfavourably because of something arising in consequence of his disability. The 'something arising' was said to be 'neurodivergent behaviour' without further specification. This was taken to mean the claimant’s way of behaving as a result of his autism. 47. The unfavourable treatment alleged was: a. The acts of alleged harassment under section 26 EqA; b. The application of the disciplinary policy, including suspension, investigation and presenting the ultimatum of accepting redeployment or dismissal; and c. The act of dismissal itself, implemented on 25 April 2024. 48. The claimant did not accept that any unfavourable treatment was a proportionate means for the respondent to achieve a legitimate aim, and so said that it could not be legally justified. He argued that it would have been more proportionate to focus on raising awareness among the claimant's colleagues of the nature and effects of his disability, and then (it is presumed) to allow him to return to his original position. 49. The tribunal took the general approach of evaluating whether each alleged act in fact occurred, if it did whether it involved the respondent unfavourably treating the claimant, and if so whether it was because of the claimant’s neurodivergent behaviour. If all of those requirements were satisfied then the tribunal would consider whether the treatment was justified as being a proportionate means of fulfilling a legitimate aim. 50. Dealing with each allegation in turn the tribunal determined as follows: a. On 26 May 2020, the claimant states he was confronted aggressively by a security guard and this resulted in shouting and swearing by both, thereby creating an intimidating and hostile environment for him – the tribunal’s view of this incident as an act of discrimination under section 15 was similar to how it appeared as an alleged act of harassment – the claimant had been unfavourably treated by the guard but the evidence was not present to show that this was ‘because of’ any neurotypical behaviour, as opposed to other behaviour by the claimant or an unconnected personal dislike of the claimant on the part of the guard; b. On 26 April 2021, the claimant states he was verbally abused by John Howden thereby creating an intimidating and hostile environment for him – for essentially the same reasons as the tribunal found that any established conduct of Mr Howden was not ‘related to’ the claimant’s autism in terms of being a harassment complaint, any unfavourable treatment of the claimant by Mr Howden was not ‘because of’ the claimant’s neurodivergent behaviour arising from his autism under section 15. It was for other, more general reasons arising at the time; c. On 23 July 2021, the claimant states he was handed a letter from Jamie Coleman advising him that it had been unacceptable to walk away from challenging situations in order to avoid escalation. The claimant’s position is that this approach had previously been agreed by Jamie Coleman and other senior colleagues, thereby creating a confusing and hostile environment for him – the tribunal did not consider the terms of the letter or the circumstances under which it was given to the claimant to be ‘unfavourable’. The tribunal accepted that the claimant perceived the letter to be a form of unfavourable treatment, much as he viewed it as ‘unwanted’ in the context of his harassment claim. However, what is unfavourable in this context is to be assessed objectively – it will involve consideration of how the alleged victim felt but that is not the only relevant factor. The letter was designed to be supportive and clarify the respondent’s expectations of the claimant. In any event, had the act of providing the letter been objectively unfavourable, it was not done ‘because of’ the claimant’s neurodivergent behaviour. It was done because Mr Coleman wished to support the claimant for more general reasons. Had the letter amounted to unfavourable treatment because of the claimant’s neurodivergent behaviour, the tribunal found that it would have been justified. The respondent had legitimate aims in maintaining Covid safety protocols and operating efficient portering functions for the benefit of patients and colleagues in other departments of the hospital, and those were the motives of Mr Coleman in writing the letter. It was done in a suitably cordial and measured way and was not excessive in tone or scope; d. On 30 November 2021, the Claimant states he was told the radio would not be provided because Ciara did not have one, and that he was then verbally abused by Janice Thompson and Daniel for the resultant problems, thereby violating his dignity, and creating an intimidating and hostile environment for him – the tribunal’s findings of what happened are recorded above in relation to the equivalent harassment complaint. The claimant was unfavourably treated by Ms Thompson by way of verbal criticism. This criticism was unfair and mistakenly based, but it occurred not because of his neurodivergent behaviour, and rather because he had not answered his radio. e. In December 2021, Janice Thompson intentionally gave the radio assigned to him to a different member of staff in the knowledge that this would cause distress to the claimant, thereby violating his dignity and creating a hostile and intimidating environment for him – the tribunal did not agree that Ms Thompson deliberately gave the claimant’s radio away. Most likely she agreed to put it on charge but then inadvertently failed to prevent someone else from taking it. This omission was not because of the claimant’s neurodivergent behaviour, but because of a lapse in attention or concentration on Ms Thompson’s part. f. On 6 January 2022, radio use was removed from the X-ray department altogether, the claimant states this prevented him from continuing to work with that department, and thereby violating the claimant’s dignity and creating a hostile environment for him – as discussed in relation to the claimant’s harassment complaint, this was an operational change unconnected to his own circumstances. To the extent he was being treated unfavourably by not being able to use a radio, it was not because of his neurodivergent behaviour. It related to the question of how best to allocate a limited number of radio devices throughout the hospital; g. On 29 December 2021, the claimant states he was verbally abused after disagreeing with a senior nurse and that they proceeded to humiliate the claimant in front of others, thereby violating the claimant’s dignity – the tribunal recognised that it was possible that a nurse could have verbally abused him because of his neurodivergent behaviour, which would have been unfavourable treatment when objectively viewed. However, the evidence suggested that the claimant calmly explained his position in relation to how long he was expected to wait, and the nurse simply disagreed with him. The tribunal saw no basis for concluding that he was displaying neurodivergent behaviour at the time, or that therefore the nurse was being unreasonable towards him because of such| behaviour; h. On 11 March 2022, Morag Walsh wrote to the claimant regarding his return to work; the claimant states that the terms of this letter offended him and made him feel unheard and degraded – this was not unfavourable treatment when objectively tested – it was an attempt to support the claimant to continue working and avoid situations which might have resulted in distress, disciplinary action and possibly dismissal. There was not a sufficiently clear connection to any neurotypical behaviour, or behind that, autism in any event. The letter dealt with a number of matters and its fundamental objective was to find a way for the claimant to continue working while a grievance containing complaints about his immediate colleagues and management team was resolved. Had this been an example of discrimination arising from the claimant’s disability, it would have been justified as it was a proportionate attempt to ensure both that the claimant could continue working as a porter and minimise problematic encounters with colleagues; i. On 4 April 2022, the claimant states that Morag Walsh continued to pressure him to accept temporary redeployment rather than a return to his substantive post, thereby offending the claimant and making him feel unheard and degraded – Ms Walsh did not pressure the claimant and explicitly acknowledged his own preference for a return to work. He was not unfavourably treated by Ms Walsh issuing the letter. Any offence taken was disproportionate when viewed objectively; j. In early 2022, the claimant states that the delay between him being declared fit for work and the respondent enabling his return made him feel that the respondent did not want him as an employee, thereby offending him and violating his dignity – there was a delay of around three weeks and this was recognised by Ms Walsh. It was not as simple a matter as her delaying the process unduly. She was justified in not merely allowing the claimant to return to his original role as soon as he was deemed medically fit to work again. She was still exploring all of the available options for the claimant, and clarifying the measures which would need to be in place were he to return to his original role. This was clearly explained in Ms Walsh’s letter. It was not unfavourable treatment for her to take that approach. Nor was it because of the claimant’s neurodivergent behaviour that she did so – it was for a combination of reasons relating to various issues between the claimant and his colleagues, and to aspects of his role and the wider working practices and conditions at the hospital. In particular, he had raised a grievance against a number of supervisors and colleagues and suggested they were bullying and harassing him. Had Ms Walsh treated the claimant unfavourably because of his neurodivergent behaviour, then again she would have been justified in doing so – her alternative, as the claimant had wanted, was to simply leave it to the claimant to report back for work upon being deemed medically fit with no measures in place to protect him or prevent further disagreements with those immediately around him. Her aim was to protect both the claimant and his colleagues, and a short delay until all of the alternatives were known, and relevant safeguards put in place, was a proportionate means of furthering that by reducing the risk of further incidents; k. In early 2022, the Claimant states that he was subjected to a reduction in pay until this was reversed, thereby offending the Claimant and violating his dignity – this is addressed immediately above and as part of the harassment complaint – the matter was rectified within a short space of time. The temporary disadvantage was to do with the ongoing dialogue between the claimant and Ms Walsh in which both were content with the steps being undertaken; l. On 27 September 2022, the Claimant states he was verbally abused and humiliated in front of other employees and patients by Nurse Campbell, thereby creating an intimidating and hostile environment for him – It has been found as fact that the claimant was not abused or humiliated by Nurse Campbell to any meaningful degree. m. The Claimant claims that the disciplinary process was an act of harassment – this is dealt with in the paragraphs immediately below. 51. The claimant made additional allegations of discrimination arising from disability, namely that the operation of the disciplinary procedure from the point of suspension onwards, the presentation of an ‘ultimatum’ of moving location in particular, and the act of dismissal itself were all discriminatory acts. Those were considered alongside allegation (m) above given the apparent overlap in subject matter. 52. As with the allegation of harassment, the tribunal did not agree that any aspect of the disciplinary process involved discriminatory conduct. It was prompted by the claimant’s interaction with SCN Campbell. There was no evidence that the claimant’s conduct (or at the outset, suspected conduct) at that time was caused or influenced by his autism. He simply disagreed with SCN Campbell over which was the best way to convey a patient. He was accused of then becoming louder and more aggressive in the presence of staff, an elderly patient and the patient’s daughter. There was enough reason to suspend the claimant, conduct an investigation and then invite him to a hearing to respond to the evidence against him. The respondent was also entitled to conclude on the evidence of SCN Campbell and three other witnesses (including the patient’s daughter) that the claimant had conducted himself inappropriately. In response to the allegations of using foul language and aggressive and intimidatory behaviour he did not raise that he was behaving in a neurodivergent way and indeed stressed that he had not had an autistic meltdown. Instead, he denied the conduct complained of had occurred and challenged the evidence of those accusing him. It was therefore difficult to see that the process had been started, and then continued, because of any occurrence of his neurodivergent behaviour. The claimant argued before the tribunal that both the conduct of SCN Campbell towards him, and the subsequent disciplinary process, were aimed at his autism or the impact it had on how he behaved in the workplace, but there was an insufficiency of evidence to this effect at the time and he did not make that argument as the events were occurring. 53. As the process reached the point of Ms Gemmell’s decision following the disciplinary hearing, it remained the case that the motivation for her thought process was a genuine belief in the claimant’s unacceptable conduct, based on evidence and without the claimant suggesting that any such behaviour was neurodivergent or related to his autism. It followed, in the tribunal’s reasoning, that neither the imposition of a 12-month final warning nor the stipulation that the claimant perform his role in a different environment were unfavourable treatment because of something arising in consequence of his disability. The position was no different at the appeal stage. The focus of the claimant’s case before and after Mr Steele’s decision remained the quality and sufficiency of the evidence of his actions and not, for instance, the effect of his autism on how he had conducted himself on the day in question. Victimisation complaint (s27 EqA) 54. The claimant alleges that he was unfavourably treated as a result of carrying out a protected act or acts. The protected acts are said to be: a. Referring to his condition and the Equality Act in his grievance which he submitted on 19 January 2022; and b. Intimating that he would engage ACAS as a precursor to raising an employment tribunal claim, which he did via his mother's email dated 6 September 2023. 55. The unfavourable treatment was stated as: a. The respondent acting unreasonably slowly in response to the grievance, in contrast to vigorously following the disciplinary process against him; b. Issuing a final written warning on 16 March 2023; c. Dismissing his disciplinary appeal on 17 July 2023; and d. Dismissing what was described as his 'final appeal' on 21 September 2023. 56. The tribunal was satisfied that the two alleged protected acts had that status by meeting at least one of the criteria in section 27(2) of EqA. The grievance alleged that the respondent had contravened the Act (subsection (d)) and the intimation of intended legal proceedings did the same, as well as arguably amounting to 'bringing proceedings' under subsection (a) – which the respondent believed would happen within the meaning of section 27(1)(b). The tribunal therefore turned to the instances of alleged unfavourable treatment. 57. The tribunal was not satisfied on the evidence that either the respondent acted unduly slowly in responding to the claimant's grievance, or that conversely they expedited the disciplinary process with undue haste. The points were for the claimant to establish if he was to succeed in this part of his claim. He could not point to any matters which realistically were strong enough evidence to support his belief. What evidence there was appeared to justify the length of the time taken to respond to his grievance. Whilst it was an unusually long period, that was largely explained by the fact that Mr Coleman, the person accused of wrongdoing, was absent from work for a lengthy period of time and in the circumstances could not reasonably be expected to participate in the process. The tribunal did not accept that the disciplinary process was deliberately expedited by comparison. Each process adopted a pace according to the matters to be investigated, taking into account their nature and scope, and the individuals who had to be interviewed as part of that information-gathering process. It is not uncommon for a grievance to take longer than a disciplinary allegation to respond to, as often (as was the case here) the former raises a number of events and issues over a period of time and involving a number of people. By contrast, the disciplinary case centred around the events of a few minutes between two individuals, with two other staff witnesses. Had the tribunal reached the view that the grievance had been dealt with unduly slowly, in itself or by comparison with the disciplinary process, it could not see how that happened specifically because the claimant made an allegation of breach of the Equality Act within the grievance, as it would have required to find in order for the complaint to succeed under section 27(1) and (2) read together. 58. The tribunal next considered whether Ms Gemmell issuing a final written warning on 16 March 2023 was an act of victimisation. As with the allegation above, this could only have been caused by the first protected act as a matter of chronology. Again it was for the claimant to at least provisionally prove a connection between the allegations in his grievance and the decision to give him the warning. Again there was no evidence of a connection between those two things, and the evidence available pointed the other way. Ms Gemmell did not know the details of the claimant's grievance and was only made aware of what the claimant told her about it during the disciplinary process. The tribunal accepted that she could have come to appreciate in that way that the claimant had alleged Mr Coleman's treatment (or the treatment of others) to have contravened the EqA by being acts of discrimination or otherwise, but this was not clearly made out. Essentially what she knew was that he was said to be continually finding fault with the claimant. Regardless of the degree of knowledge Ms Gemmell had about the details of the grievance, the tribunal was satisfied that she took her decision about the outcome of the disciplinary process independently of the grievance, and based solely on her evaluation of what had happened on the day of the altercation between the claimant and SCN Campbell. This was her own evidence and it was supported by the documentary and other witness evidence (such as from SCN Campbell herself). 59. The third alleged act of victimisation was the dismissal of the claimant's disciplinary appeal by Mr Steele on 17 July 2023. Again, this came after the raising of the grievance, and so potentially could have been caused by that, but before the second protected act. Once more, hearing the oral evidence of Mr Steele and considering the supporting material in the bundles which the tribunal was directed to, it was satisfied that Mr Steele reviewed the appeal on its own merits and within its own parameters, and was not influenced in his decision by the existence and content of the claimant's grievance. There was no evidence to credibly suggest otherwise. 60. The fourth and final act of victimisation was stated to be Mr Steele's dismissal of the claimant's final appeal on 21 September 2023. This was not a formal step in the respondent's disciplinary process, but rather a reconsideration of the circumstances in light of the passing of time and submissions made by the claimant and his mother. Mr Steele mad clear that he would not re-open the question of the claimant's by now established misconduct, but would allow OH to have input into the process of finding the claimant an alternative role. Unlike the first three alleged victimisation acts, this came after both protected acts and so could potentially have been caused by either or both of them. 61. On reading Mr Steele's letter of 21 September 2023 the tribunal saw no suggestion that he had taken his outlined stance either because the claimant alleged discriminatory acts in his grievance or because he had intimated that he was entering ACAS early conciliation with a view to raising a claim. He acknowledged that the claimant's mother had intimated such a course of action in the second paragraph of his letter. His reiteration of his previous consideration of the matter and his reasons why he felt relocation was in the claimant's best interests was credible. The claimant and his mother both clearly took a different view of what was best for him, but Mr Steele was bound to consider the interests of all concerned, and was entitled to believe that the claimant's return to the Queen Elizabeth University hospital carried a serious risk of further conflict with colleagues, and with it a real possibility of his dismissal given the existence of the warning. 62. In summary therefore, the tribunal could not find that any of the four alleged acts of victimisation had occurred. Unfair dismissal complaint (s94 ERA) 63. The respondent accepts that it dismissed the claimant, doing so on 25 April 2024. Legally the onus is on it to show that the reason for dismissal was a potentially fair one. It relies on the claimant's conduct under section 98(2)(b) of ERA. 64. The tribunal was satisfied that the claimant was dismissed by reason of his conduct, namely his actions on the day of 27 September 2022, towards SCN Campbell. The allegations were related to his conduct in nature. There was evidence from a number of individuals. A disciplinary process was followed. A finding of gross misconduct was made by Ms Gemmell, and upheld by Mr Steele. The claimant did not challenge that those individuals had a genuine belief in his misconduct, albeit that he argued they should not have reached that conclusion based on the evidence. 65. Had the claimant not been dismissed by reason of his conduct, the tribunal considered that he would have been dismissed for ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’ within the terms of section 98(1)(b) of ERA. That reason would have been his refusal to accept a change in his role in the circumstances where the respondent reasonably concluded that it was untenable for him to return to his original position. The parties could no longer agree on what work the claimant would perform, a fundamental term of the contract. 66. Content however that the claimant was dismissed because of his conduct, the tribunal considered whether the respondent had met the other requirements of a fair dismissal. In that exercise the onus is neutral in relation to this issue, and the longstanding precedent of British Home Stores v Burchell [1978] IRLR 379 is still the starting point. According to that authority three things must be established for a conduct related dismissal to be fair. First, the employer must genuinely believe the employee is guilty of misconduct. Secondly, there must be reasonable grounds for holding that belief. Third, the employer must have carried out as much investigation as was reasonable in the circumstances before reaching that belief. Burchell part 1 67. The respondent maintained that it genuinely believed the claimant was guilty of misconduct. The claimant did not positively dispute that this was the case. He simply believed that there was insufficient evidence to support the belief. 68. All of the relevant evidence presented to the tribunal suggested that there was a belief in the minds of Ms Gemmell and Mr Steele that the claimant was guilty of offensive behaviour which upset a colleague, a patient and her daughter, and caused damage to the respondent’s reputation. 69. The tribunal was satisfied that the first requirement of Burchell had been met. Burchell part 2 70. The respondent argued that it had a reasonable basis to form the belief in the claimant’s misconduct. Although each of the two protagonists –SCN Campbell and the claimant – accused the other of unprofessional behaviour, there were two other staff witnesses and the patient’s daughter who all said it had been the claimant alone who had behaved unacceptably. Ms Gemmell was entitled to accept this additional and consistent evidence as being a sufficiently reliable account of what had happened. Each person’s description of the claimant’s behaviour was clear and consistent in characterising it as unacceptable conduct in the environment where it occurred. 71. The tribunal was satisfied on the basis of the evidence provided that the respondent had met the requirements of the second limb of the Burchell test. There were reasonable grounds for holding a belief that the claimant committed an act or acts of misconduct. Burchell part 3 72. The third limb of Burchell requires consideration of whether the employer carried out as much investigation as was reasonable in the circumstances in order to reach its genuine belief in the employee's misconduct. That does not require an employer to explore every possible avenue, but no obviously relevant line of enquiry should be omitted. 73. The legal test, as emphasised in Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 is whether the investigation fell within a band of reasonable approaches, regardless of whether or not the tribunal might have approached any particular aspect differently. 74. The respondent submitted that a sufficiently adequate investigation had been undertaken. The claimant did not appear to dispute that this was the case. He did not, for example, suggest that there were other relevant witnesses who could have supported his own account and who were not consulted. The nature of the investigation was by its nature limited as it centred around one event lasting only a few minutes. 75. The tribunal noted that the claimant did not accept the putative email from the patient’s daughter to be genuine. However, on the balance of probability it was genuine, and the respondent was entitled to rely on it. The tribunal noted in particular the evidence of Mr Steele that he had checked with the complaints team that the email had come from a legitimate account. 76. The tribunal considered whether Ms Gemmell or Mr Steele should have made follow-up enquiries with the patient’s daughter to verify that the email complaint was genuine, but reached the view that the further intrusion this would have caused was not justified by any likely benefit from verifying her position, which had initially been clear. 77. Considering all of the evidence presented, the tribunal was therefore satisfied that the respondent's investigation was adequate and reasonable. The band of reasonable responses 78. In addition to the Burchell test, a tribunal must be satisfied that dismissal fell within the band of reasonable responses to the conduct in question which is open to an employer in that situation. The concept has been developed through a line of authorities including British Leyland UK Ltd v Swift [1981] IRLR 91 and Iceland Frozen Foods Ltd v Jones [1982] IRLR 439. 79. The principle recognises that in a given disciplinary scenario there may not be a single fair approach, and that provided the employer chooses one of a potentially larger number of fair outcomes that will be lawful even if another employer in similar circumstances would have chosen another fair option which may have had different consequences for the employee. In some cases, a reasonable employer could decide to dismiss while another equally reasonably employer would only issue a final warning, or vice versa. 80. It is also important that it is the assessment of the employer which must be evaluated. Whether an employment tribunal would have decided on a different outcome such as applying a lesser penalty is irrelevant to the question of fairness if the employer's own decision falls within the reasonableness range and the requirements of section 98(4) of ERA generally. A tribunal must not substitute its own view for the employer's, but rather judge the employer's own choices against the above standard. 81. On the evidence heard, it is found that dismissal of the claimant was within the band of reasonable responses. Whilst it may have been open to Ms Gemmell (and later Mr Steele) to decide to give the claimant a final warning and allow him to return to his role, it was reasonably also open to her to reach the view, as she did, that there was too great a risk of further unsustainable incidents. Following from that, it was within the set of reasonable options for Mr Steel to dismiss the claimant when he would not accept working in a different environment. There had been a finding of gross misconduct and there was no longer anywhere realistically that the claimant could be utilised. 82. As discussed above, had Mr Steele not decided to dismiss the claimant for misconduct the tribunal could see no other option than the claimant being dismissed for the other substantial reason of fundamental disagreement over what work the claimant would perform. A dismissal on that basis would have been reasonable in the circumstances, particularly given the time and effort put into identifying alternatives for the claimant, offering trial periods, and proposing to seek updated OH advice (which the claimant declined). 83. The respondent therefore satisfied all of the requirements for a fair dismissal under section 98 of the Employment Rights Act 1996.
Conclusions
[84]For the reasons given above, each of the claimant’s legal complaints was unsuccessful and therefore had to be dismissed.