Mr P McCue v Civil Nuclear Police Authority: 4111346/2021
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4111346/2021Venue GlasgowHearing 14 to 21 March 2022 Deliberations 22 – 24 March 2022
Between
Mr P McCueClaimantCivil Nuclear Police AuthorityRespondent
Before
Employment Judge D HoeyDate 12 April 2022
JUDGMENT
[1]The unanimous judgment of the Tribunal is that the claimant’s claim that he had been subject to unlawful religious harassment in respect of incidents that occurred on 1 June 2020 and 17 August 2020 (in terms of section 26 of the Equality Act 2010) is ill founded, as while the claims had been made in time and were acts for which the respondent was liable, the respondent had satisfied the Tribunal that all reasonable steps had been taken such as to entitle it to a defence in terms of section 109(4) of the Equality Act 2010.[2]The unanimous judgment of the Tribunal is that the claimant’s claim that he had been subject to unlawful religious harassment (in terms of section 26 of the Equality Act 2010) for which the respondent is liable, in relation to the incident that occurred on 30 June 2021 is well founded (the respondent not having satisfied the Tribunal that all reasonable steps were taken pursuant to section 109(4) of the Equality Act 2010).[3]A separate remedy hearing will be fixed to determine what, if any remedy, should be awarded in respect of the foregoing unlawful act.
REASONS
Background
[1]By ET1 accepted on 9 September 2021 the claimant claimed that he had been subject to unlawful harassment for which the respondent was liable. Early conciliation had commenced on 21 July 2021 with the ACAS Certificate issued on 13 August 2021.[2]The hearing was conducted in person with the claimant’s agent and the respondent’s agent attending the entire hearing, with witnesses attending as necessary, all being able to contribute to the hearing fairly. Due to the impact of the pandemic, some of the witnesses attended the hearing remotely and there were no issues arising. Case management[3]The parties had worked together to focus the issues in dispute and had provided a statement of agreed facts and a list of issues. Both documents were refined as the case progressed.[4]A timetable for the hearing of evidence had been agreed and the parties worked together to assist the Tribunal in achieving the overriding objective, in dealing with matters justly and fairly taking account of the issues, cost and proportionality. The hearing had been set down for 10 days but robust case management ensured the hearing was concluded within 6 days. Each witness had provided a written witness statement with the evidence being appropriately challenged.
Facts
[5]It was agreed that remedy would be reserved, with a separate hearing to be fixed if necessary. Issues to be determined
Background
[6]It is accepted that the following incidents occurreda. On 1 June 2020 the claimant found a document with “UDA no surrender” written on it in his pigeon hole;b. On 17 August 2020 the claimant’s wife found a piece of paper inside his work jacket which had the words “UDA no surrender” written on it; andc. On 30 June 2021 the claimant found the graffiti “FTP” on his coffee mug in the police kitchen area at Hunterston, which was understood to stand for “Fuck the Pope”.[7]It was accepted that the incidents set out had the purpose or effect of violating the claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for him (such that they amounted to unlawful religious harassment).[8]The issues to be determined are as follows (which is based on the agreed list which was has been updated to reflect the issues in dispute). Who perpetrated the relevant acts?[9]Were the 3 incidents perpetrated by an employee or agent of the respondent?[10]If so, were such acts done in the course of the relevant employee’s employment or within the relevant agent’s authority, such that the respondent is vicariously liable for their acts? Time limits[11]Given the first 2 incidents occurred outwith the limitation period for raising a claim, do the acts of discrimination relied upon by the claimant amount to an act continuing over a period?[12]If not, should the limitation period be extended on the basis that it would be just and equitable to do so? Reasonable steps[13]If the relevant acts are acts for which the respondent may be liable, did the respondent take all reasonable steps within the meaning of Section 109(4) of the Equality Act 2010 to prevent employees from committing such acts, or committing acts of that description so that the respondent has a defence to the claims of harassment? Evidence[14]The parties had agreed productions running to 478 pages with additional documents being inserted in the course of the hearing. The Tribunal heard from the claimant, his wife, Mr Thomas (a former officer of the respondent), Mr McGarvie (a former officer of the respondent), Inspector Gilmartin (who was commander of the unit in question and the claimant’s line manager), Sergeant Wilson (who stood in for Inspector Gilmartin when he was absent), Mr Mehmood (initially engaged as Diversity Manager who became the Equality, Disability and Inclusion Manager), Detective Inspector Allan (who managed the professional standards inquiry), Chief Inspector Brotherston (who had responsibility for the unit), Superintendent Jones (who was the divisional superintendent), Superintendent Robinson (whose command included the unit for a period), Temporary Assistant Chief Constable Vance (divisional commander) and Ms Ferguson (HR manager). Facts[15]The Tribunal is able to make the following findings of fact which it has done from the evidence submitted to it, both orally and in writing. The Tribunal only makes findings that are necessary to determine the issues before it (and not in relation to all disputes that arose nor in relation to all the evidence led before the Tribunal). Where there was a conflict in evidence, the conflict was resolved by considering the entire evidence and making a decision as to what was more likely than not to be the case. The chronology which the parties produced, which was finalised after the hearing has assisted the Tribunal in making relevant findings. Background 15. The respondent is a non-departmental public body created under section 51 of the Energy Act 2004 responsible for securing and maintaining the effective functioning of the civil nuclear constabulary, the statutory armed police force created under section 52, which has its primary function the protection of civil nuclear sites and safeguarding of nuclear material in Great Britain.[16]The claimant joined the respondent in 17 May 2007 and was engaged as Police Sergeant (from 2018). The claimant is a Roman Catholic and was based at the operational policing unit at Hunterston B nuclear power station, which is operated by a commercial entity. Policy documents[17]There are a number of policy documents that are relevant to this case. Policy documents are found on the respondent’s intranet and when issued are issued electronically (with links to the intranet page). Briefings are also issued when the documents are produced with some being placed on the noticeboard. Staff are expected to read all policies. There is no record kept as to who had read each policy or when but as a disciplined organisation staff are expected to read such documents.[18]On 1 June 2014 the respondent adopted a Dignity at Work Policy which stated that the respondent did not condone nor tolerate unacceptable behaviour. All staff had a duty to follow the policy and comply with it. Staff had a personal responsibility to ensure the principles were followed. Complaints could be dealt with informally or formally and malicious complaints could lead to disciplinary action. This was updated on a number of occasions.[19]The respondent also had an Equality Diversity and Inclusion Policy and Procedure (introduced in December 2019 and updated in March 2021).[20]The respondent had unit based diversity champions (based at each unit) and a Diversity Manager (engaged to cover the respondent’s organisation).[21]Where an incident arises in connection with a protected characteristic, these may be characterised as a Prejudice Related Incident (with any grievance containing such issues to be considered prejudice related grievances) which would require consideration as to how to deal with the issue. The Diversity Manager would be involved in such discussions to determine what diversity related input is needed. The Diversity Manager was available to discuss any diversity related matters with staff and on occasion would conduct briefings on diversity related matters.[22]The respondent also had an Equalities Consultative and Support Network which is an arm’s length partly independent body to support equality issues via consultation and engagement. Members are volunteers from the respondent’s staff. The respondent had Equality Support Groups which provided moral and cultural support to employees with particular characteristics, with one such group being the Multi Faith Network which formed part of an external inter faith network. There are documents setting out the approach taken to diversity champions the Equalities Consultative and Support Network and Equality Support Groups on the respondent’s intranet. Staff can join these groups voluntarily.[23]The respondent also had a Police Officer Misconduct Policy and Procedure which states that the respondent is committed to ensuring officers adhere to the Standards of Professional Behaviour (as found in Schedule 2 to the Police (Conduct) Regulations 2012 and the College of Policing Police Code of Ethics. Standards of behaviour include authority respect and courtesy, equality and diversity and challenging and reporting improper conduct.[24]The Misconduct Policy set out the policy to be followed in respect of potential breaches of the policy which includes the completion of a form to inform local management of such behaviour and ultimately the Professional Standards Department (which would formally investigate any breach of the rules). The standard of proof applied internally is on the balance of probabilities (which contrasts with the higher standard applied in Police Scotland investigations).[25]The respondent had many policies in place and would communicate policies by email or issuing a bulletin on the intranet or by oral communication. Relevant policies were also placed on a notice board. Managers, including Sergeants, were responsible for ensuring direct reports read them. Training[26]Upon induction officers would undergo a period of intense training. Initial equality diversity and inclusion training takes place during induction which includes training on Code of Ethics, An introduction to the Equality Act, Equality Diversity and Inclusion Awareness, and Dignity at Work. Refreshers take place thereafter on an online platform which requires candidates to read slides and take a multiple choice test. Refresher sessions include sessions on equality, diversity and inclusion. Continuing professional development took place with some sessions being mandatory, most of which were done online. When the online questions were answered correctly, the candidate would pass the module. Managers, including Sergeants, were responsible for ensuring those staff for whom they were responsible completed the mandatory training. Records were kept in respect of the online sessions.[27]Training modules included an introduction to the Equality Act, 4 different equality diversity and inclusion awareness videos and dignity at work training. Some of the compulsory modules included diversity and equality. The time spent on the online modules varied depending upon how knowledgeable the officer is and can be completed within half an hour in some cases. Staff were notified quarterly of the mandatory training modules, with managers chasing their direct reports to ensure the mandatory training was completed. Managers had a responsibility to carry out the training and lead by example.[28]The refresher training considered each aspect of the Equality Act, in terms of the protected characteristics and unlawful discrimination. That included racism, homophobia and religious discrimination (including harassment). For those who retained knowledge of the key principles, the training could be completed within half an hour (if the principles and concepts were known). Sessions covered included religious prejudice and cultural issues and the differences within cultures and tensions. The generic courses did not focus on sectarianism per se but did cover religious discrimination and harassment.[29]Inspector Gilmartin for the period of 1 January 2019 to February 2022 completed 2 courses on autism and a module on the Equality Act 2010 (which took 21 minutes and 47 seconds) and watched an Equality Diversity and Inclusion Awareness Video.[30]Sergeant Wilson for the period 1 January 2019 to February 2022 completed a module on the Equality Act 2010 (which took 11 minutes 1 second), a module on an introduction to the Equality Act 2010 (which took 16 minutes 20 seconds) and watched an Equality Diversity and Inclusion Awareness Video.[31]Other offers would carry out similar refresher training (in addition to face to face training and diversity inputs). Persons involved[32]As a Sergeant, the claimant was responsible for managing a team of officers. He reported to Inspector Gilmartin, the Operational Unit Commander of the site in question. When he was absent, Inspector Wilson covered his duties. His duties included managing the officers and staff at the unit and ensuring operational requirements are met together with engaging with stakeholders. Inspector Gilmartin undertook welfare support in relation to the claimant working with him in relation to his welfare, sickness and career development. Critical incidents[33]A critical incident can be declared where the effectiveness of the police response is likely to have a significant impact on the confidence of the victim, their family or the community. Where this is declared certain actions follow and the matter is reviewed with meetings taking place and actions agreed. Background incidents[34]The claimant first had an issue with one of his fellow Sergeants, Sergeant Craig, in 2011 (4 years after the claimant joined the respondent). This occurred at a night out in a pub when those present had imbibed alcohol. Sergeant Craig had seemed angry and said to the claimant that he had heard the claimant did not like him because of his religion (which was believed by the claimant to be protestant). The claimant denied it and walked away.[35]In 2014/15 there was a disagreement between officers at a social event with a possible sectarian element.[36]In 2016/17 an issue arose as to a group of officers being allocated shifts by Mr Thomas with a possible sectarian element. Network launched[37]On 6 April 2017, the respondent launched an Equalities Consultative and Support Network, an arm’s length semi independent organisation with its own constitution, established to support the consultative engagement and human rights and equality impact assessment functions of the respondent. It was to support and promote ethics, diversity and inclusion. 2018 prejudice related incident[38]On 18 November 2018 a Prejudice Related Incident was reported. This incident arose from the belief from 3 officers based at Hunterston believed that they had been racially discriminated against in that they had been prevented from working together because they had come from Northern Ireland. They considered this to be unlawful racial discrimination. The report had been received from the then Federation Chair, Sergeant Craig.[39]The operational unit commander and divisional superintendent with the diversity manager decided that a comprehensive equality diversity and inclusion briefing should take place for all of the Hunterston workforces. Claimant’s grievance against colleague[40]On 28 December 2018, the claimant advised (then temporary) Inspector Gilmartin that he wished to pursue a formal grievance against Sergeant Craig. This related to an incident that had occurred on 22 December 2018. The claimant had initially wished to pursue matters informally but the claimant had considered matters and wished the matter to be dealt with formally. The claimant had an issue with how Sergeant Craig had dealt with an officer that the claimant had managed and what had been said. The claimant believed Sergeant Craig had alleged the claimant had lied to the other officer, bullied him and breached the Code of Ethics. The claimant sought a formal resolution of the dispute. The claimant felt Sergeant Craig had an issue with him in how he acted towards him.[41]Around this time the claimant had notified (then) Chief Superintendent Vance as to the issues he was encountering and that he believed he had been targetted due to his religion. The claimant had been advised to include relevant evidence in his grievance. Equality Act training with reference to religious bias[42]On 5 and 6 February 2019, Mr Mehmood, Diversity Manager, visited Hunterston and delivered Equality, Diversity and Inclusion sessions, dealing specifically with religious bias following the prejudice related incident that occurred in November. The diversity manager and divisional superintendent met with staff at the unit. The diversity manager spent 2 days at the site delivering equality diversity and inclusion sessions outlining dignity at work, the respondent’s expectations and the impact of religious bias on individuals, citing his own experiences in the context of the incident that occurred. This was a proactive session focussing on religious discrimination. Meeting to discuss prejudice related incident[43]On 6 February 2019 a meeting was held at Hunterston to resolve the Prejudice Related Incident, attended by Mr Mehmood. The meeting noted that there was a belief officers had been kept apart because of their Northern Irish background. This had happened following an out of work dispute in the past and it was agreed that the practice would cease. Those involved were reminded of the equality, diversity and inclusions requirements. Officers reminded of importance of respect and tolerance[44]On 6 March 2019 Temporary Superintendent Cole informed officers at Hunterston that sectarian behaviour would not be tolerated, that it would be dealt with robustly and that all officers were expected to challenge and report such behaviour. Claimant’s grievance heard[45]On 12 March 2019 the claimant’s grievance against Sergeant Craig was heard. The claimant explained that there had been previous unfounded allegations made against him and he had not had a good working relationship with Sergeant Craig. He said he believed Sergeant Craig had mispresented the position and that Sergeant Craig was “personally coming after him”. Second prejudice related incident[46]In March 2019 a prejudice related incident was raised by Mr McGarvie. He stated that having been on site for over 2 years it was recently brought to his attention that Sergeant Craig had been carrying out what Mr McGarvie believed to be a “personal vendetta” against him and his partner by making unfounded allegations and undermining him and his partner. He set out that he believed the conduct had been malicious and due to religion, Mr McGarvie and his partner being catholic. He said it had become a huge concern for him and wished it investigated as his position had become untenable and he had resigned from the respondent. Inspector Gilmartin meets Sergeant Craig[47]In June 2019 Inspector Gilmartin met with Sergeant Craig. The purpose of the meeting was to look for a resolution of the issues between Sergeant Craig and the claimant. Sergeant Craig had read out a pre-prepared statement at the meeting setting out historic details between the two sergeants going back a number of years. Mediation was offered (something the claimant had indicated he would consider) but Sergeant Craig did not see the point of this. Claimant’s comments on grievance issues[48]On 3 August 2019 the claimant sent additional comments in relation to the unfounded allegations of sectarianism raised against him on his grievance. The claimant noted that after the formal meeting Sergeant Craig had made another unfounded allegation about the claimant having said an Irish phrase (which some may regard as being linked to Catholicism). The claimant believed the allegation was made shortly after Sergeant Craig had attended his grievance meeting. Discussions with claimant and Sergeant Craig[49]Temporary Assistant Chief Constable Vance met with the claimant and Sergeant Craig separately in the course of August 2019 and had a “closed door meeting” during which it was noted that there were issues between those individuals and that professionalism was required. It was understood that there were personality conflicts in existence and senior staff were tasked with ensuring the officers remained aware of the professional standard requirements. Senior staff were aware of the personality conflicts and sought to ensure the issue was dealt with informally. Federation reminds officers of need for respect[50]On 9 August 2019, an email was sent by the Chief Executive of the Police Federation, advising all officers that he was committed to the eradication of any religious, political, racial, disability or age discrimination. He said: “It is then with increasing concern and disappointment that it has been brought to my attention once again by the Chief Officer team yesterday of reports of acts of sectarianism and bigotry that have been reported as occurring between Police Officers at the Hunterston unit. To be absolutely clear this practice has to stop forthwith. Failure to heed my advice will undoubtedly lead to the potential termination of employment or redeployment through the Police (Conduct) Regulations or redeployment. For the avoidance of doubt such acts of hatred and intolerance have no place in this or any other Police Service.” Outcome of claimant’s grievance[51]By letter dated 21 August 2019 Inspector Gilmartin informed the claimant that his grievances of bullying, abuse of position and oppressive behaviour were thoroughly investigated and that no evidence had been found to substantiate the allegations that had been made against the claimant, the outcome the claimant sought from his grievance. No action was taken against Sergeant Craig in respect of the unfounded allegation as the allegation had been raised by him pursuant to his role as Federation Representative with the matter having been reported to him. The respondent did not consider the allegation to have been malicious. There was no evidence to suggest malice. New Dignity at Work Policy and Equality Policy[52]In September 2019, the respondent adopted a new Dignity at Work Policy and Procedure, which was made accessible on the intranet.[53]On 4 December 2019 the respondent adopted an Equality, Diversity and Inclusion Policy and Procedure, which was a new policy and was accessible on the intranet. This noted that equality and diversity was “more than a legal obligation, it is fundamental to our operational effectiveness”. The policy required all staff to respect each other. It stated that “Equality, inclusivity and fairness is at the heart of everything we do”.[54]The procedure stated that there would be a range of activities led by senior managers but with all employees being responsible and accountable for their actions. The policy dealt with the Equality Act 2010, required behaviours, promoting equality and diversity, terms and conditions, cultural or religious requirements, work life balance, raising a grievance, and Governance. Reference was made to the dedicated Diversity Manager and ECS Network. Critical incident declared[55]On 12 February 2020 Chief Superintendent Vance declared a Critical Incident at Hunterston. This related to a complaint that a sectarian message had been left in an officer’s pigeon hole. While there had been no allegation of sectarianism per se, there had been “previous sectarian undertones” and as this had the potential to impact upon staffing, a critical incident was declared. It was noted that allegations of sectarianism were taken very seriously and any behaviour found to have fallen below the standards of expected behaviour would be subject to robust professional standards process. The diversity manager had been involved. A plan was put in place to deal with each of the concerns operationally. There were no issues to be raised with professional standards at that stage which would be kept under review.[56]These meetings were followed up with meetings on 14 February 2020 (noting that if any further sectarian issues arise the respondent should be ready to respond) and on 25 February 2020 when it was decided that there would be increased chief inspector cover for a sustained period to increase visibility and provide further support.[57]A further Critical Incident Meeting was held on 6 March 2020. It was noted that a health and safety investigation was being carried our and operational issues had been dealt with. Any sectarian undertones would be dealt with though professional standards. First incident – 1 June 2020 – Envelope in claimant’s pigeon hole[58]On 1 June 2020, the claimant found an envelope with “UDA No Surrender” written on it in his pigeonhole. The envelope was addressed to “PC 859 McCue” (and included a letter the claimant had been sent in 2018 with the message written on top of the letter). The writing that had “PC McCue” looked different to the writing with the message (which was in capital letters). By June 2020 the claimant was Sergeant McCue. This was recorded as a Prejudice Related Incident on 2 June 2020. It was noted that it had been some time since he had cleared his pigeon hole and he could not put a time frame on when the envelope could have been placed there. The claimant believed the envelope was from a letter over 2 years old which could have been when the message was written on it. It was possible the message was written before the recent interventions had taken place (and could have been written when the February 2020 incident had occurred).[59]The unit where the claimant was based is secure. A key code is needed to access the building and only authorised personnel can access. Staff who have access include officers and staff of the respondent (which accounts for 90% of those with access), with the remainder being personnel engaged by or reporting to the commercial entity that owns the facility. Cleaners have access and would spend around an hour or two carrying out their duties. There was some interaction between staff engaged by the respondent and those engaged by the owner of the facility which was mostly limited to pleasantries. There was no evidence of such individuals knowing of the claimant’s religion (which his colleagues knew).[60]The claimant’s pigeon hole was in the meeting room with the others, which was a room used as a briefing room with a large meeting table and chairs. Each pigeon hole was marked with the officer’s warrant number and was occasionally checked by the officer and was located in a place where those engaged by the respondent would meet.[61]The claimant reported the incident to another Sergeant who placed the note into an evidence bag. The claimant continued working. The matter was referred to Inspector Gilmartin who informed the Force Incident Manager (an operational manager with tactical responsibility for incidents who maintain an operational log and record incidents). He spoke with the claimant later that day who advised he could not say when he had last checked his pigeon hole.[62]On 2 June 2020 Inspector Gilmartin telephoned the claimant for a welfare check and the claimant was advised as to the involvement of the Diversity Manager and that a Prejudice Related Incident form would be considered. The claimant advised Inspector Gilmartin that he believe he was being “targetted by Sergeant Craig and his cronies” (around 3 known colleagues of Sergeant Craig). He stated that Sergeant Craig does not speak to him at work and that in the claimant’s view Sergeant Craig had “not been punished” and he was considering another grievance. Inspector Gilmartin telephoned the claimant later that day to confirm a prejudice related incident would be lodged.[63]On 3 June 2020 Inspector Gilmartin telephoned the claimant to discuss the incident further. The claimant stated that he did not wish to involve Police Scotland at that stage. He advised Inspector Gilmartin that he had been considering raising another grievance against Sergeant Craig but had decided not to do so and instead seek the advice of his Federation. It was noted that identifying who had left the message may be difficult given the different individuals who had access and the lack of CCTV or other means to identify those responsible.[64]On 5 June 2020 the Diversity manager spoke with Superintendent Jones, Detective Chief Inspector Pemberton and Inspector Gilmartin to discuss the incident and brief them about the Dignity at Work Policy and possible Equality Diversity and inclusion points to be included in briefings for the unit.[65]On 8 June 2020 Inspector Gilmartin spoke with the claimant for a welfare check. Inspector Gilmartin understood that the claimant did not wish to raise a grievance about this incident as the message could have been written some time ago. Mr Mehmood spoke to Ms Jones to support her visit and provide examples of unacceptable behaviour relating to religion and belief.[66]On 16 June 2020 the claimant submitted a “letter of concern” to Inspector Gilmartin regarding the incident that occurred on 1 June 2020. He stated that he believed it had been motivated by his religion. He acknowledged that during the discussion with Inspector Gilmartin it would be unlikely that the author of the comment would be identified. He indicated that the context of the incident was such that this was not isolated and there had been other malicious actions that created prejudice towards the claimant. He referred to the unfounded allegation made against him in 2019 (which he believed had been fabricated on the basis of his religion and could bolster sectarian prejudices against him). He said: “I now feel that a failure to tackle sectarian issues or take preventative action to avoid future incidents has left employees who harbour these prejudices undeterred”. He concluded that the days of treating such behaviour as minor to be tolerated should end. He stated that he had “not yet considered reporting this incident to Police Scotland” and hoped that this was the last time the issue needs to be raised.[67]On 16 June 2020 Superintendent Jones visited Hunterston and spoke to the claimant about the incident. Superintendent Jones understood that the claimant did not wish the matter referred to Police Scotland but advised him that if there were subsequent incidents that may be a decision the respondent took irrespective of the claimant’s position. The claimant also advised that he did not wish senior managers to address the unit with regard to the incident. The claimant was offered occupational health support.[68]Inspector Gilmartin had informally asked officers within the unit if they had any information relating to the incident but no one came forward. The management team had spoken to officers to seek information and to remind staff of the Code of Ethics/standards of professional behaviour. Steps were taken to remind staff of the seriousness of the conduct that led to the first incident and of the importance of equality and respect. Second incident – 17 August 2020 – Paper in claimant’s work jacket[69]On 17 August 2020 the claimant’s wife found a piece of paper with “UDA No Surrender” written on it in his work jacket which was in an inside pocket the claimant did not use.[70]The claimant only wore that jacket for work and had returned from leave on 26 July 2020 and had undertaken 3 sets of 2 day and 2 night shifts, wearing the jacket in question to and from work. When at work the claimant had hung his jacket on the outside of his locker in the male changing room, in open view of those present. The changing room was accessible by officers, staff and employees and contractors of the commercial entity that owns the building. The room is beyond the meeting room and kitchen. The claimant would access the locker room at the start and end of his shift to take items from his locker. Some locked their lockers and others did not. The locker had the officer’s name and warrant number on the front. The claimant believed the jacket had last been washed prior to 26 July 2020. Immediately following this the claimant telephoned the unit and spoke with a Sergeant[71]On 18 August 2020, Inspector Gilmartin had been briefed as to what had occurred and he spoke with the claimant to confirm the position. He then submitted a specific form reporting the incidents of 1 June 2020 and 17 August 2020 as misconduct to Professional Standards (in the event those responsible were identified). Inspector Gilmartin recorded the incident as a Prejudice Related Incident. The report noted that “there have been previous interventions within the past 18-24 months in relation to matters of a similar nature which this graffiti may have been an intended part of”. Claimant on sick leave[72]On 19 August 2020 the claimant commenced a period of sick leave (returning to work on 9 October 2020). The claimant advised Inspector Gilmartin that his mental health “was not great” and Inspector Gilmartin helped calm the claimant down and offered support.[73]The claimant chose not to raise an Employment Tribunal application with regard to the first and second incidents. He was aware of the time limits but wished to focus upon returning to work. The claimant’s mental health was adversely affected as a result of the harassment he suffered. His mental health deteriorated when he had to relive the acts of harassment suffered. The claimant wished to focus upon his return to work in the hope the issues would be resolved. Critical incident declared[74]On 19 August 2020 the incident of 17 August 2020 was recorded as a Critical Incident. This was to address deployability concerns “against the backdrop of potential sectarian undertones”. The report noted that thee had been “a history of concerns about sectarianism which had been subject to management intervention and review”. By March 2020 the respondent was satisfied the issued had been addressed by way of professional standards review and local management activities, including senior officer presence and engagement. While the previous critical incident had been closed, a further one was created as there was the “potential for sectarian undertones to reemerge”. Operational issues were addressed. Senior officer visibility was instructed with code of ethics messaging. The matter was to be referred to Police Scotland for investigation (which was progressed by Inspector Gilmartin). The Diversity Manager was to create an outline plan to address local diversity concerns which would have included bespoke training.[75]Between 21 and 23 August 2020, Chief Inspector Brotherston and other senior officers visited Hunterston to engage with officers and ensure there was high visibility of senior officers within the unit. Briefings took place with regard to Code of Ethics and management expectations. At the briefings all staff were advised as to their responsibilities as to equality and diversity in line with the Code of Ethics and of the need to treat people with respect. The sessions emphasised the importance of respect for religion and of the existence of the Equality Policy.[76]Between the 25 and 26 August 2020, Chief Superintendent Vance visited and spoke to officers on both day and night shift to maintain visibility of senior officers. He found those with whom he spoke to be friendly and welcoming and the demeanour within the unit to be cordial, friendly and welcoming.[77]On 26 August 2020, the claimant commenced therapy under the Employee Assistance Programme provided by the respondent.[78]On 28 August 2020 a further Critical Incident meeting was held with a review being undertaken as to steps taken and actions achieved. Support was to be maintained with the claimant and his family with regular welfare meetings to continue. The Diversity Manager was to create an outline plan to address local diversity concerns. Liaison with Police Scotland was to continue to seek the perpetrator. Senior officers continued to be visible and ensure officers were aware of the requirement to adhere to standards of professional behaviour.[79]On 4 September 2020 Chief Superintendent Vance declared the incident closed, but to be kept under review in light of the Police Scotland investigation and Professional Standards Department investigation. Claimant’s welfare considered[80]On 4 September 2020 Inspector Gilmartin contacted the claimant to check on his welfare. During the discussion a potential transfer to another unit was discussed. The claimant had indicated he would consider the position and the form for completion was sent to him. Specific details of such a move were not explored. Subsequently the claimant indicated that he did not wish to progress consideration of a transfer and the matter did not progress.[81]On 8 September 2020 a Case Management Discussion was held to discuss the claimant’s return to work. Discussion took place as to seeking to manage the claimant’s health.[82]On 10 October 2020 the claimant returned from sickness absence. The claimant felt the work atmosphere had improved and he believed there would be no further incidents. Police Scotland investigation closed[83]On 16 February 2021 Detective Inspector Allan of the Professional Standards Department of the respondent advised the Depute Chief Constable of the respondent that Police Scotland had contacted the claimant to advise that no fingerprints had been found on the document. Detective Inspector Allan sought the Depute Chief Constable’s approval to close the investigation as he concluded that there were “no further viable lines of enquiry” reserving the right to reopen the enquiry if new information came to light. He could have commenced an internal investigation (by speaking to potential witnesses) but chose not to do so. The respondent was aware that there were 4 officers who had differences with the claimant, whom the claimant considered were adverse to him on the grounds of his religion. New Equality Policy launched[84]On 5 March 2021 an updated Equality, Diversity and Inclusion Policy and Procedure was adopted (the original policy having been issued on December 2019). This emphasised the need for respect and value. It stated that the “commitment to equality and diversity is more than a legal obligation, it is fundamental to our operational effectiveness”. The Policy set out the position within the Equality Act 2010, required behaviours, promoting equality and diversity, religious requirements, grievances and governance. The policy made it clear that complaints of discrimination would be taken very seriously. Under the heading “Training” the policy stated that the respondent undertook to provide equal access to training and ensure all employees undertake equality and diversity training with managers being equipped with key equality diversity and inclusion skills with a comprehensive training programme delivered by the corporate leaning department. An intensive ongoing training programme was to be in place.[85]The Policy referred to equality support groups that had been established under the Equalities Consultative and Support Network to provide specific support for employees with protected characteristic. A link was provided for further information on the intranet. Support mechanisms were also set out. Third incident – 30 June 2021 – Claimant’s cup has sectarian message[86]On 30 June 2021 the claimant found the letters “FTP” having recently been written on the underside of his mug in the kitchen area having been away from the unit the previous week. He reported the incident to Police Scotland. “FTP” was shorthand for “fuck the pope”. The mug the claimant used referred to Celtic Football Club. The ink had not fully dried which suggested it had been written relatively recently. The mug had been stored in the kitchen cupboard which was unlocked. The mug was not in its usual location in the cupboard and had been moved to his section’s cupboard where it was located. The kitchen area was accessible by officers and staff and those engaged by the site owner. There was no CCTV in the vicinity (and as the building was not owned by the respondent they did not consider it practicable to extend CCTV).[87]The kitchen was adjacent to the meeting room. Access to the kitchen was via the meeting room or the corridor. Cups were found in a cupboard. There were cupboards marked for each of the sections and a general cupboard. The claimant usually stored his mug (which was personal to him) in the general cupboard. It would be clear for the claimant’s mug and its design that it belonged to a Celtic supporter (which in the west of Scotland could be associated with Catholicism). Cleaners would not wash officers’ mugs and were unlikely to know which officer had which mug whereas some officers knew which mug belonged to which officer.[88]The claimant reported the incident to a fellow Sergeant who was nearby. The claimant was upset and had to go home. Later that day Acting Inspector Wilson contacted the claimant and discussed the incident. He offered him access to the Employment Assistance Programme, which the claimant accepted. The claimant was unable to continue working that day and commenced a period of sick leave with work-related stress. The claimant received a call from the acting Inspector in Inspector Gilmartin’s absence who confirmed matters would progress. The claimant stated he would inform Police Scotland as a hate crime.[89]The professional standards team were formally advised of the incident and that it could potentially amount to gross misconduct.[90]On 1 July 2021, the incident of 30 June 2021 was recorded as a Critical Incident and weekly meetings were instituted. This was because while the previous critical incident had been closed, “there was the potential for sectarian undertones to remerge”. Actions were agreed to maintain operational effectiveness and deal with issues arising. That included updating the claimant and his family and completing a health and safety investigation. It was noted that if the professional standards investigation and health and safety investigation result in no further action, a local management plan would be needed to deal with the issues. Assistance was to be given to Police Scotland to assist with their enquires.[91]On 5 July 2021 a Health and Safety incident report was submitted on behalf of the claimant and a referral made to Occupational Health given the impact the incident had upon the claimant’s health and his unfitness for work. Prejudice related incident created[92]On 7 July 2021 the incident of 30 June 2021 was recorded as a Prejudice Related Incident and referred to the Diversity and Inclusion Manager. Later that day a Critical Incident meeting was held and it was agreed to conduct an investigation via professional standards. The investigation would proceed following the Police Scotland investigation. Welfare meetings with the claimant were to continue and senior officers were to maintain high visibility within the unit. Mr Mehmood noted that the outcome of the investigation would determine what steps were needed.[93]On 7 July 2021 the claimant advised Inspector Wilson by telephone that he had decided to report the incident to Police Scotland.[94]On 7 July 2021 Chief Inspector Brotherston visited the unit to maintain visibility of senior officers. On 9 July 2021 Inspector Wilson visited the unit and submitted an Occupational Health referral for the claimant.[95]On 13 July 2021 a further Critical Incident meeting was held noting the police investigation was proceeding with regular updates given to the claimant and his family. Senior officer visibility was to continue to provide key code of ethics messaging. It was also noted that an extension to the claimant’s pay was being explored.[96]Contact details for the professional standards department were sent to Police Scotland that day, with the internal investigation held in abeyance pending the outcome of the criminal investigation.[97]On 15 July 2021 Inspector Wilson emailed all staff in an email headed “Message regarding recent incident”. He stated: “I am sure you are as upset as I am about the recent incidence of sectarianism which has occurred at our unit. This matter is now being investigated by Police Scotland/Professional Standards and full support is being given to the individual and their family… [The incidents] are deeply distasteful and go against our values and what we stand for. Sectarianism is also, quite rightly, a criminal offence. It will never be condoned, tolerated or brushed under the carpet by me and if it does occur I expect it to be challenged by everyone who works at Hunterston. You will have my full support in doing so. If anyone has been affected by the recent incident please feel free to come and talk to me.”[98]On 17 July 2021 Ms Wilson, Unit-Based Diversity Champion, and Mr Mehmood, Equality Disability and Inclusion Manager, emailed all at the unit. The email stated: “For your information, at present there has been a critical incident declared due to another alleged sectarian issue occurring at the unit. As the Unit Based Diversity Champion I would like to assure everybody that if any officer at all believes or witnesses any inappropriate matter or behaviour they should have the full confidence to report the matter to myself, their line manage or Mr Mehmood the Equality disability and inclusion manager directly. The matter will be taken seriously.” Staff were encouraged to report inappropriate behaviour in confidence.[99]On 20 July 2021 a further Critical Incident meeting was held. The Police Scotland investigation was continuing (with the internal investigation to follow once that investigation was concluded). Welfare support was to continue and senior officer visibility would continue also.[100]On 26 July 2021 all staff were notified that Equality, Diversity and Inclusion training would be carried out at the unit. Staff were told the session was mandatory and those absent would attend the course when it was rerun at a later date.[101]On 27 July 2021 a further Critical Incident meeting was held. The Police Scotland investigation was ongoing and a health and safety investigation would take place. Acting Inspector Wilson was tasked with arranging a programme of Equality, Diversity and Inclusion training at Hunterston, to be delivered by the Corporate Learning and Development Department. A number of staff (including those with whom the claimant had an issue) believed that the training resulted in their being considered bigots and they did not wish to attend. Those individuals were advised that the training sessions were for everyone and were mandatory. All staff attended,[102]On 4 August 2021 a further Critical Incident meeting was held confirming the Police Scotland investigation was progressing. The claimant’s wife had made a complaint but had not engaged further to allow the respondent to seek further information. Training was to commence the following day with senior staff to attend to show support. Face to face training takes place[103]Between 5 August 2021 and 6 October 2021 face to face Equality, Diversity and Inclusion training was undertaken. This was focused and specific training with regard to the impact of sectarianism with discussion and interaction.[104]This training was planned following a meeting of the senior team in August 2020 where the Diversity Manager was to consider local issues. The Diversity Manager considered the training had to be face to face to be more effective.[105]The training was similar to pre-existing training in terms of underlining the importance of respect and of the need to avoid discrimination but focused on religious discrimination specifically and with greater interaction. Further meetings[106]On 10 August 2021 a further Critical Incident meeting was held noting that the investigation was proceeding.[107]On 17 August 2021 a further Critical Incident meeting was held confirming the investigation was ongoing as was welfare support. The Diversity Manager undertook to review feedback following the training that was ongoing.[108]On 31 August 2021 Acting Inspector Wilson emailed all personnel requesting that anyone with information about the incident of 30 June 2021 should contact Police Scotland with details of the investigating officer being provided.[109]On 1 September 2021 another Critical Incident meeting was held. No further contact had been established with the claimant’s wife despite repeated attempts given her complaint and the issue would be considered without her input. The internal investigations were ongoing. The feedback from the training had been positive and was being considered. Further meetings[110]On 14 September 2021 a further Critical Incident meeting was held. Continued welfare meetings were taking place but the claimant had indicated that his stress and anxiety had increased and he was engaging with occupational health and would progress with cognitive behavioural therapy. Health and safety report[111]On 23 September 2021 a Health and Safety Incident Investigation Report was completed. This stated that the author believed the incident was work related given it dealt with relationships at work. With regard to the “underlying root cause” the report stated that: “Given that this is the third such incident the claimant has been victim of, it would be reasonable to suppose that there is an individual/individuals at the site who have a dislike for the claimant based around his religion and are using bigoted/sectarian phrases or acronyms to target him knowing it will cause him distress/mental health.”[112]Under the heading “likelihood of a recurrence and potential consequences” it stated: “This is the third incident the claimant has reported with a low likelihood of finding the perpetrator(s) because of the nature of the evidence left behind and lack of witnesses to the incidents. Due to this, when the claimant return to the workplace, reoccurrence is likely.”[113]Under “safe environment when interviewing staff” the report noted that all staff who were consulted ort interviewed regarding the incident were given a private room or phone to do so. With regard to previous reports, it was stated that the previous incidents were similar in that they used sectarian (in this case anti catholic) language which is often prevalent in the west of Scotland. No other sectarian incidents were identified.[114]Under the heading “Engage with HR to ascertain any instances of sectarianism” the report noted that other officers were spoken to and there had been anecdotal stories regarding accusations of sectarianism potentially made by officers who were leaving but there seemed to be no evidence to support that.[115]Under “risk control measures” it was noted that welfare meetings with the claimant were continuing, employee assistance programme was engaged, critical incidents were being dealt with, Police Scotland continued to investigate it as was professional standards, senior officers were visiting, funding was extended for cognitive behaviour therapy for the claimant and specific sectarian training was being rolled out.[116]Under “recommendations” the report stated that “further training for line managers to support them in identifying and dealing with sectarian behaviour” was recommended. CCTV was to be considered in relevant areas but it was noted that may be difficult given the nature of the operation. Meetings and investigation continue[117]On 28 September 2021 a further Critical Incident meeting was held noting the police Scotland report was awaited. The claimant had contacted the respondent as part of welfare support to state that he did not wish to engage with the organisation. The employee assistance programme was continuing. Support measures were to be put in place via a capability meeting.[118]On 2 October 2021 Police Scotland contacted Inspector Wilson advising that all lines of enquiry had been exhausted and they were closing the investigation. They indicated that no officer or staff member had come forward following the request. Police Scotland decided it was not proportionate to undertake any further enquiries. Post training report[119]The sectarian focused training concluded on 6 October 2021 and a “Report into the delivery of the Training” was delivered. This noted that the first session involved attendees exploring their values and how they saw the world which led to a discussion about prejudice discrimination and values. The unit commander and senior officers had been present and commented that the “pitch and tone of the session was spot on”. The report noted that “the overall feeling and comments from the majority of officers attending were that it was worthwhile, timely and necessary”.[120]The report noted that a “needs, concerns and expectations exercise” was conducted at the start of each session to gauge the group, their attitude and willingness to engage. Examples of “anecdotes and theories that arose during the week” included: “This is normal banter, someone is just not seeing at as such, these incidents are self inflicted, historically these incidents haven’t been dealt with, a concern that the site is perceived as a sectarian hotbed, this is a smokescreen to cover up bullying, we’re all being labelled the same”.[121]The report stated that the points were addressed. It stated: “We have the impression that these feelings can run deep and therefore the communication of any investigation and any outcomes are vital to re-establish trust.”[122]The report concluded: “Our impression of the unit and the officers based there is that it is not beset with sectarian issues. Rather there have been a few incidents, apparently from both sides, that could be considered isolated and not a reflection of the unit as a whole. Across the unit there are representatives of both communities as well as those that are not indigenous to the region. Most have stated that any references to either side were light hearted, good natured and received as such”.[123]Those who had not received the training were to receive a training session by the end of the year (and the claimant’s training could be dealt with upon his return to work). Further meetings[124]On 12 October 2021 a further Critical Incident meeting was held noting that in the absence of any evidence Police Scotland had closed their investigation and professional standards would review the position “expecting also to close out the investigation”. As the claimant’s wife had not engaged further, that complaint would not proceed. A capability meeting would proceed.[125]On 19 October 2021 a further Critical Incident meeting was held when it was noted the internal investigation was likely to be closed in the absence of any evidence. The health and safety investigation was also closed. Welfare meetings were to continue. Training would continue.[126]On 19 October 2021 Police Scotland formally informed the claimant that their enquiry had been concluded.[127]On 26 October 2021 a further Critical Incident meeting was held noting that the investigations had been concluded. Occupational health input was being progressed and the instructing letter was with the claimant’s GP.[128]On 1 November 2021 a Stage 1 capability meeting was held with the claimant to discuss ways in which a return to work can be arranged. Cognitive behavioural therapy sessions were being progressed to assist the claimant. The claimant did not feel he would be able to return to the unit.[129]On 2 November 2021 a further Critical Incident meeting was held noting the investigations had completed. The final meeting took place on 9 November 2021 at which the incident was closed by Superintendent Robinson, with each of the investigations having concluded. Observations on the evidence[130]This was not a case in which there were large numbers of material factual disputes for the purposes of the issues in this case with the majority of the factual matters not being in material dispute.[131]We were satisfied that each of the witnesses sought to provide evidence to the best of their recollection.[132]With regard to the issues where disputes arose, the first issue related to whether or not the claimant had told Inspector Gilmartin (and later Superintendent Jones) that he did not wish Police Scotland to be involved. The Tribunal concluded from the evidence that Inspector Gilmartin and Superintendent Jones both genuinely believed the claimant did not wish to involve the authorities at that stage. The claimant may have been undecided but we concluded that Inspector Gilmartin’s and Superintendent Jones’ genuine belief was that the claimant had decided against an intervention at that stage. The Tribunal did not consider Inspector Gilmartin or Superintendent Jones to have misrepresented the position.[133]The Tribunal considered the assertion (made by the claimant’s agent in submissions) that the respondent had been seeking to avoid dealing with matters (or “gas light” the claimant in the sense of not fully supporting the claimant and taking matters seriously). The Tribunal did not consider that to be a fair summary of the respondent’s approach in its attempt to support the claimant during relevant meetings, both formal and informal. The claimant was clearly under significant stress having been subject to harassment which caused him real offence. The respondent provided the claimant with support and sought to assist him in progressing with the issues in a manner that was acceptable to the claimant. The respondent was sympathetic and compassionate and took the allegations extremely seriously.[134]A dispute arose as to what had been discussed with regard to a potential transfer to another location. The Tribunal preferred the evidence of Inspector Gilmartin who believed the claimant had not wished to explore the issue of a transfer. Had the claimant wished to progress that matter, support would have been given. There was no evidence to suggest that such support would have been denied of the claimant. The respondent wished to be careful in not seeking to persuade the claimant to leave his base given the context.[135]A further and significant dispute that arose was whether or not there was a “sectarian problem” at Hunterston. Both parties addressed the Tribunal on this issue and it is necessary to make a number of observations about this issue. It is relevant since it sets the context of this case and in particular the factual matrix against which the reasonable steps defence is considered.[136]The respondent’s agent noted that prior to the three incidents which are the subject of the present proceedings, there were no proven incidents of sectarian discrimination at Hunterston. It was stated that such issues as had arisen fell into two categories: allegations of unfair treatment which were attributed by the alleged victim as being motivated by sectarian bias and allegations that others harboured sectarian prejudices.[137]It was also noted that in considering the extent of sectarian issues at Hunterston, it is critical to bear in mind that the case considers a large policing unit over a period of 15 years. In that time, the evidence indicates the claimant himself, having joined Hunterston in 2007 he did not experience any incidents until an isolated remark in the pub in 2011, where a colleague suggested the claimant had an issue with his religion (which the claimant denied). The claimant did not experience any noteworthy incidents for a further seven years until his grievance in December 2018. That grievance initially related to a complaint by the claimant that a colleague had exaggerated the concerns of another officer about the claimant’s allocation of overtime. The claimant accepted there was nothing explicitly sectarian about this.[138]During the grievance process, the claimant asked for a further matter to be investigated, namely an allegation that had been passed to his colleague in his capacity as Federation Representative that the clamant had used a nationalist Irish phrase. This was a hearsay allegation falling, an allegation against the claimant which was found to be unfounded.[139]The respondent’s agent argued that there was only evidence of three potentially sectarian incidents. Firstly in 2014 or 2015 there would appear to have been unspecified words exchanged at a social function outside of work. This was investigated and expectations in regard to behaviour at the unit were reinforced by the Divisional Superintendent and the Unit Commander. There would not appear to have been any repetition.[140]Secondly on 18 November 2018 Mr McGarvie raised a Prejudice Related Incident. This related to an allegation that Mr McGarvie’s partner had been displaying favouritism in the allocation of duties. There was nothing explicitly sectarian about this. However, Mr McGarvie sought to put a sectarian slant on this on the basis of a photograph of colleague on an Orange walk and a Facebook post in which a colleague was critical of the controversial policy of positive discrimination introduced in Northern Ireland. The suggestions appeared to be based on prejudicial thinking.[141]Finally it was submitted that Mr Thomas made similarly unfair assumptions on the basis of the Facebook material. There was no finding of sectarian discrimination and Mr Thomas left the Respondent in 2019.[142]Taken in the context of the size of Hunterston, the large number of officers working there, and the time period of 15 years, it was submitted that these isolated, low level and inconclusive incidents could not justify a finding of widespread problems of sectarianism. There were clearly some personal animosities and occasional allegations and counter-allegations, but no more.[143]It was argued that the imbalance between the lack of hard evidence of sectarian prejudice and the level of suspicion of the claimant (and Mr Thomas and Mr McGarvie) was striking. There appeared to be a readiness to see sectarianism behind ordinary tensions between colleagues, and an unfortunate readiness to attribute bigotry to others, sometimes without any justification.[144]In short it was submitted that taking into account the time-frame and small number of individuals involved, the evidence shows no general problem of widespread sectarianism at Hunterston. At most, it showed a small number of incidents involving a small number of individuals, which may or may not have had sectarian undertones. That was a view shared by the respondent’s witnesses and the trainers at the most recent training event.[145]The claimant’s agent argued that sectarianism can be covert or overt and the fact there had been unfounded or false complaints could have been motivated by sectarianism. The fact there was no overt sectarianism did not result in there being no sectarianism. The fact there were repeated unfounded complaints were made could be as a result of religion.[146]The Tribunal considered that there had been religious tensions in place amongst certain colleagues. It was clear, as the author of the health and safety report noted, that there was at least one person (or persons) who had a dislike of the claimant because of his religion. There had been previous disagreements that arose as a result of religion.[147]The trainers of the most recent training did not consider the respondent to be “beset” with sectarianism and did not consider the relatively few incidents (on both sides) to be reflective of the unit. The Tribunal has no doubt that this is correct bearing in mind the period of time involved and number of incidents.[148]Nevertheless, for the purposes of this case the discussion as to whether or not there was a “sectarian problem” or issue regarding religion was a semantic matter. There were a number of issues that had arisen as a result of religion. The claimant had been subject to 3 separate acts of religious harassment (and the acts were accepted by the respondent to amount to unlawful harassment). There were important equality issues that required to be dealt with (irrespective as to whether or not there was considered to be a “sectarian issue” or not) with personality conflicts which the respondent had to resolve. At least one member of staff wished to offend the claimant (and used his religion to do so). These were serious issues. Law Time limits[149]The time limit for Equality Act claims appears in section 123 as follows: “(1) Proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable … (2) … (3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it”.[150]A continuing course of conduct might amount to conduct extending over a period, in which case time runs from the last act in question. The case law on time limits to which we had regard included Hendricks –v- Commissioner of Police of the Metropolis 2003 IRLR 96 which deals with circumstances in which there will be an act extending over a period. In dealing with a case of alleged race and sex discrimination over a period, Mummery LJ said this at paragraph 52: “The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of "an act extending over a period." I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be side-tracked by focusing on whether a "policy" could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”[151]The focus in this area is on the substance of the complaints in question — as opposed to the existence of a policy or regime — to determine whether they can be said to be part of one continuing act by the employer.[152]Robinson v Surrey 2015 UKEAT 311 is authority for the proposition that separate types of discrimination claims can potentially be considered together as constituting conduct extending over a time.[153]The Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust 2006 EWCA Civ 1548 confirmed that the correct test in determining whether there is a continuing act of discrimination is that set out in Hendricks. Thus tribunals should look at the substance of the complaints in question — as opposed to the existence of a policy or regime — and determine whether they can be said to be part of one continuing act by the employer.[154]In South Western Ambulance Service NHS Foundation Trust v King EAT 0056/19, the Employment Appeal Tribunal observed that when a claimant wishes to show that there has been ‘conduct extending over a period’ if any of the acts relied upon are not established on the facts or are found not to be discriminatory, they cannot form part of the continuing act. Extending the time limit[155]Section 123 of the Equality Act 2010 requires that any complaint of discrimination within the Act must be brought within three months of the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable.[156]When considering whether it is just and equitable to hear a claim notwithstanding that it has not been brought within the requisite three month time period, the Employment Appeal Tribunal has said in the case of Chohan v Derby Law Centre 2004 IRLR 685 that a Tribunal should “have regard to” the Limitation Act 1980 checklist as modified in the case of British Coal Corporation v Keeble 1997 IRLR 336 which is as follows: - The Tribunal should have regard to the prejudice to each party. - The Tribunal should have regard to all the circumstances of the case which would include: o Length and reason for any delay o The extent to which cogency of evidence is likely to be affected o The cooperation of the respondent in the provision of information requested o The promptness with which the claimant acted once he knew of facts giving rise to the cause of action o Steps taken by the claimant to obtain advice once he knew of the possibility of taking action.[157]In Abertawe v Morgan 2018 IRLR 1050 the Court of Appeal clarified that there was no requirement to apply this or any other check list under the wide discretion afforded to Tribunals by section 123(1). The only requirement is not to leave a significant factor out of account. Further, there is no requirement that the Tribunal must be satisfied that there was a good reason for any delay; the absence of a reason or the nature of the reason are factors to take into account. A key issue is whether a fair hearing can take place.[158]In the case of Robertson v Bexley Community Services 2003 IRLR 434 the Court of Appeal stated that time limits are exercised strictly in employment law and there is no presumption, when exercising discretion on the just and equitable question, that time should be extended. This is a matter which is in the Tribunal’s discretion. The Court of Appeal in Chief Constable of Lincolnshire v Caston 2010 IRLR 327 observed that although time limits are to be enforced strictly, Tribunals have wide discretion.[159]In Rathakrishnan v Pizza Express (Restaurants) Ltd 2016 ICR 283 the Employment Appeal Tribunal held that in that case the balance of prejudice and potential merits of the reasonable adjustments claim were both relevant considerations and it was wrong of the Tribunal not to weigh those factors in the balance before reaching its conclusion on whether to extend time.[160]The Tribunal considered and applied the judgment of Underhill LJ in Lowri Beck Services v Brophy 2019 EWCA Civ 2490 and in particular at paragraph 14. Ultimately the Tribunal requires to make a judicial assessment from all the facts to determine whether to allow the claims to proceed and in particular assess the respective prejudice.[161]The Tribunal also applied the principles set out by the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5. The Court emphasised that it would be wrong to rigidly apply the “Keeble factors” since that would lead to a mechanistic approach to what is meant to be a very broad general discretion. The correct approach in considering the exercise of the discretion is to assess all the factors in the particular case that it considers relevant, including in particular the length of, and the reasons for, the delay. Reasonable steps defence[162]Section 109(1) of the Equality Act 2010 states that: ‘Anything done by a person(a) (A) in the course of A’s employment must be treated as also done by the employer’. The employer’s knowledge or approval of the act in question is not relevant (section 109(3)). The employer has a defence under section 109(4) which states: “In proceedings against A’s employer(b) (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A… (a) from doing that thing, or (b) from doing anything of that description.’ it can show that it took all reasonable steps to prevent A from doing that thing or from doing anything of that description.”[163]Thus, for an employer to be liable for the discriminatory conduct of one of its employees, three things must be established: that there is, or was at the relevant time, a relevant employment relationship between the employer and the alleged discriminator, that the conduct occurred ‘in the course’ of employment (as widely defined) that the employer failed to take all reasonable steps to prevent the conduct in question.[164]In Reynolds v CLFIS (UK) Ltd [2015] ICR 1010, Underhill LJ said at paragraph 36: “it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination”. The onus is on the claimant to establish this.[165]In Forbes v LHR Airport Ltd [2019] ICR 1558, Choudhury J surveyed the authorities which have considered the issue of whether an employee’s conduct is “in the course of employment”. He concluded at paragraph 25: “From these authorities, it can be seen that the main principle to be gleaned is that the question of whether conduct is or is not in the course of employment within the meaning of section 109 of the Equality Act 2010 is very much one of fact to be determined by the tribunal having regard to all the relevant circumstances. It can also be said that the words ‘in the course of employment’ are to be construed in the sense in which the lay person would understand them and that there is no clear dividing line between conduct that is in the course of employment and that which is not. Each case will depend on its own particular facts.” That wide interpretation of “course of employment” is supported by the Equality and Human Rights Commission Code of practice (at paragraph 10.46).[166]The Equality and Human Rights Commission Employment Code provides the following example at paragraph 10.50: ‘An employer ensures that all their workers are aware of their policy on harassment, and that harassment of workers related to any of the protected characteristics is unacceptable and will lead to disciplinary action. They also ensure that managers receive training in applying this policy. Following implementation of the policy, an employee makes anti-Semitic comments to a Jewish colleague, who is humiliated and offended by the comments. The employer then takes disciplinary action against the employee. In these circumstances the employer may avoid liability because their actions are likely to show that they took all reasonable steps to prevent the unlawful act’.[167]The onus rests firmly on the employer to establish the defence. An employer can do so by showing either that it attempted to prevent the particular act of discrimination or that it attempted to prevent that kind of act in general.[168]What amounts to ‘all reasonable steps’ will depend on the circumstances but examples might include providing supervision or training and/or implementing an equal opportunities policy. The Equality and Human Rights Commission Employment Code (at paragraph 10.52) suggests the following: implementing an equality policy, ensuring workers are aware of the policy, providing equal opportunities training, reviewing the policy as appropriate, and dealing effectively with employee complaints.[169]The Employment Appeal Tribunal issued guidance as to the approach tribunals should adopt when determining whether an employer has satisfied the ‘reasonable steps’ defence in Canniffe v East Riding of Yorkshire Council 2000 IRLR 555, when it held that the proper test of whether the employer has established the defence is to identify first, whether there were any preventative steps taken by the employer, and secondly, whether there were any further preventative steps that the employer could have taken that were reasonably practicable. The question as to whether such steps would in fact have been successful in preventing the act of discrimination in question was not determinative. The steps taken by the employer do not need to be successful in order for the defence to be made out. As Burton J said at paragraph 14: “The employer, if he takes steps which are reasonably practicable, will not be inculpated if those steps are not successful, indeed, the matter would not be before the court if the steps had been successful, and so the whole availability of the defence suggests the necessity that someone will have committed the act of discrimination, notwithstanding the taking of reasonable steps”.[170]The context is important, such as whether or not the employer knows of particular risks. Steps which require time, trouble and expense may not be reasonable steps if, on assessment, they are likely to achieve nothing (Croft v Royal Mail Group plc 2003 ICR 1425).[171]Equal opportunities training that is delivered long before the act of discrimination, and not followed up, is unlikely to meet the ‘reasonable steps’ defence. In Allay (UK) Ltd v Gehlen 2021 ICR 645, the Tribunal accepted that employees had received training that covered harassment but noted that the training had been delivered two years prior to the harassment and was ‘clearly stale’. A reasonable step would have been to provide refresher training. The Employment Appeal Tribunal found that the less effective the training is, the more quickly it becomes stale and that is necessary to consider not only when any training took place but how thorough and forceful it was (see paragraphs 35 and 37). The Tribunal concluded that the training had become stale not merely because one individual had made racist comments but because other colleagues and managers knew harassment was taking place but took no action in response to it (paragraphs 48 and 50).[172]The Employment Appeal Tribunal emphasised that in considering the defence, a Tribunal should identify the steps taken by the employer, consider whether they were reasonable and consider whether any other steps should reasonably have been taken. It is not generally sufficient to determine whether there has been training as the nature of the training should be considered and the extent to which it may be effective with a consideration as to what happened in practice. Rather than simply say the training was satisfactory (or unsatisfactory) findings should be made as to the policies and training that existed, and if the Tribunal considers it should be refreshed, when would it be reasonable to do so. The burden is firmly on the employer to establish the defence and the legislation encourages employers to take significant and effective action to combat discrimination in the workplace.[173]Generally speaking the defence is limited to steps taken before the discriminatory act occurred given the statutory wording (see Mahood v Irish Centre Housing Ltd EAT 0228/10) and it is not sufficient for an employer to show that the discrimination was promptly remedied (see, for example, Fox v Ocean City Recruitment Ltd EAT 0035/11). In Al-Azzawi v Haringey Council (Haringey Design Partnership Directorate of Technical and Environmental Services) EAT 0158/00 the Employment Appeal Tribunal held that the aim of the statutory provision is to prevent discrimination from occurring and so when considering whether an employer has made out the defence, the Tribunal must look at events that took place before the discriminatory incident. Subsequent events are relevant to the question whether the defence has been made out only in so far as they shed light on what occurred before the act complained of (such as by demonstrating that a policy that exists on paper was not in fact operated in practice).[174]In Allay (UK) Ltd v Gehlen (above) the Employment Appeal Tribunal considered that the Tribunal was entitled to conclude that the training employees had received was stale, not only because racist comments had been made but also because a colleague who heard the racist comment did not report it, and two managers who had been informed about the racist remarks did not take any action either. Thus actions following the unlawful act can be taken into account to a limited extent. Submissions[175]Both parties had prepared written submissions and were given the chance to comment upon each other’s submissions in addition to making oral submissions. The Tribunal is grateful to both parties for taking the time to do so. The parties’ submissions were fully taken into account and the relevant submissions are set out below as appropriate when considering each issue. Discussion and decision[176]The Tribunal considered the parties’ submissions in detail together with the evidence that was provided to the Tribunal orally and in writing. The Tribunal was able to reach a unanimous decision in relation to each issue. We shall approach each issue in turn. First issue - who perpetrated the relevant acts?[177]The first issue is to determine whether or not the 3 acts (taken individually) were perpetrated by an employee or agent of the respondent. In this regard the Tribunal required to consider whether it was more likely than not (ie based on the balance of probabilities) that the person who was responsible for the conduct was someone for whose acts the respondent was liable (an employee (as widely defined) or agent.[178]The Tribunal did not consider it necessary the claimant prove the specific person responsible on the balance of probabilities. The Tribunal considered that it was sufficient if there was a greater than 50% chance the person responsible was someone for whose acts the respondent was responsible, since otherwise anonymous acts of harassment carried out by employees could never be established as unlawful. It was necessary for the Tribunal to be satisfied on the evidence that the persons responsible for each of the acts in question were more likely than not to be someone for whom the respondent is liable (rather than a particular person).[179]The first incident is that on 1 June 2020 when the claimant was clearing out his pigeon hole he found an envelope addressed to "PC 850 McCue" on which someone had written "UDA no surrender".[180]The claimant’s agent noted the perpetrator is unidentified and nobody is able to identify the person responsible. It was submitted that it is not necessary for the claimant to identify the specific individual responsible for this act of harassment. Rather it is for the claimant on the balance of probabilities to prove the person responsible was an employee or agent of the respondent. It was argued that if it was necessary to identify the specific individual responsible for the act of harassment this would mean an employer could never be responsible for an anonymous acts of an employee’s harassment which would severely limit the effectiveness of the law.[181]The claimant’s agent argued that around 90% of those with access to the unit were employees (or officers) of the respondent. The police station is an armed police station on a secure nuclear site. It is difficult to envisage a workplace with a higher level of security or limitation of access. Further, the respondent’s own witnesses conceded in evidence that the likelihood was that it was a member of police staff who perpetrated this act and it was just the precise identity of the individual responsible that was unknown.[182]It was submitted that the numbers alone should allow the Tribunal to make a finding that on balance of probabilities an employee or employees of the respondent were responsible. In addition to the numbers, there were a number of other factors which point to the fact that it was an employee of the respondent who was responsible. There was undisputed evidence that officers had very little interaction with cleaners. The claimant did not communicate extensively with non respondent individuals with access to the site. It was unlikely they would have known his religion and so it was unlikely they would have targeted him with a sectarian note. Further whilst they may have known his name, it is unlikely they would have known his warrant number and so they would not know which pigeon hole belonged to him. It was also unlikely a cleaner would have known the claimant’s rank.[183]It was also known that there had been ongoing disputes between officers on religious grounds with groups making allegations and counter allegations against one another. The claimant also had a personal disagreement with Sergeant Craig who had previously made allegations against the claimant, which resulted in the claimant raising a grievance against Sergeant Craig. This would explain possible motivation as to who left the note.[184]The respondent’s agent argued the claimant was unable to establish any of the incidents were perpetrated by an employee of the respondent. Despite the investigations undertaken internally and by Police Scotland, it had been impossible to identify the individual responsible and the claimant had accepted that he did not know, and was likely never to know.[185]The areas in which the incidents took place were accessible to individuals who are not the employees or agents of the respondent and non-respondent staff interacted with the respondent’s officer on a day to day basis.[186]It was submitted that the mere fact a majority of those with access to the relevant areas would have been police officers does not establish that the perpetrator was an officer. It was argued that there was simply no evidential basis for asserting any particular individual was responsible in circumstances where a large number of individuals might have been responsible and the identification of a perpetrator is inevitably a speculative exercise. Decision on first incident[187]The Tribunal considered the evidence led before it. The act in question occurred within the unit with the note being placed within his pigeon hole which had his warrant number (and not name) attached. There was a greater than 50% chance that the person who placed the note there was an employee or agent of the respondent. The Tribunal reached this conclusion for the following reasons.[188]Firstly around 90% of those with day to day access to the locus were those for whom the respondent was liable. There was no evidence before the Tribunal that suggested the 10% of those with access spent a greater time at the area in question. The evidence was that officers rarely checked their pigeon holes but the pigeon holes were located in the meeting room where the officers would meet. It was more likely than not that officers more than those not engaged by the respondent would spend more time there.[189]There was no evidence suggesting those who accessed the area who were not engaged by the respondent knew the claimant’s warrant number or his pigeon hole whereas each officer would be more likely to be so aware.[190]There had already been issues with religious overtones with other persons engaged by the respondent in connection with religion. This incident was of a similar nature to previous incidents which had been carried out by those for whom the respondent was liable. There was no evidence suggesting there were similar concerns or issues by the 10% staff.[191]The Tribunal accepted the claimant’s agent’s submissions in relation to this issue. The fact the respondent’s own witnesses concluded it was likely to have been someone for whom the respondent was responsible supported the Tribunal’s conclusion.[192]There was a greater than 50% chance that the person responsible for the first incident was employed or engaged by the respondent, for whose actions the respondent is liable.[193]Both agents made similar submissions in relation to the second incident which was the note found in the jacket the claimant wore to and from work.[194]The claimant’s agent submitted that as the jacket was left hanging on a peg within the male changing room, a cleaner would not likely to know what jacket belonged to the claimant and given the proximity to the first incident and the fact the note contained the same sectarian content, it was highly likely the same person was responsible. The respondent’s agent argued that it was not possible to identify who was responsible. Decision on second incident[195]The Tribunal considered the evidence and concluded that it was more likely than not that the person responsible for the second incident was the same person who had been responsible for the first incident. It was possible the incidents had occurred at the same time, with the claimant only discovering the material on different dates. The message was the same and the perpetrator wished to cause the claimant offence (given the religious overtone). It was more likely than not that the note was placed in the claimant’s pocket when his jacket was in the locker room. Those who accessed the room were more likely to be those for whom the respondent was liable. There had been a history of disagreements with staff for whom the respondent was liable (with no evidence of such disagreements having arisen with those not engaged by the respondent who had access to the jacket). The fact the respondent’s witnesses believed the incident to have been caused by someone for whom the respondent was liable supported this conclusion. Third incident[196]Both agents made similar submissions with regard to the third incident relating to the graffiti under the claimant’s mug. The claimant’s agent noted that the mug was left in the kitchen cupboard under the sink before he went on leave. When he returned from leave it was within the section cupboard. There were a number of sections and so it would be unlikely a cleaner would place the claimant’s mug back in the correct section cupboard. The individual responsible for the graffiti is more likely to have known which section the claimant was. Cleaners did not clean the kitchenware and so cleaners would not have been handling the mugs in the first place. The respondent’s agent argued there was no evidence to identify the perpetrator. Decision on third issue[197]This was not an easy matter to determine. The previous incidents had been directed at the claimant (and his name had been used). This occasion related to a cup clearly used by a Celtic supporter (which in the west of Scotland can be considered by some to be related to Catholicism). It was not obvious that the focus of the perpetrator had been the claimant, rather than the mug, and it was possible that the person responsible wished to offend the mug owner (and could have had no background knowledge as to the claimant).[198]Having assessed the evidence, the Tribunal concluded, that there was a greater than 50% chance that the person responsible had been engaged by the respondent for whose acts they are responsible. The incident occurred within an area more likely to be frequented by officers. It was where officers would take their breaks. There was no evidence that suggested those not engaged by the respondent who were present in the unit frequented the kitchen for any length of time whereas officers obviously did. The person responsible is more likely than not to have known whose mug it was given it was returned to the correct section. The claimant’s agent’s submissions are meritorious on this issue. There was no evidence suggesting any of those not engaged by the respondent had any reason to leave such graffiti (or had any history of doing so) unlike the position with regard to the respondent’s staff who had a history of matters with a sectarian overtone.[199]The Tribunal considered the fact that not every officer knew what their colleagues mugs were. Some officers knew what other officer’s mugs were. There was no evidence that those not engaged by the respondent (or for whose acts the respondent would be liable) knew which mug belonged to whom given the cleaners did not ordinarily clean the mugs. It was more likely than not that it was a colleague of the claimant who had applied the graffiti to his mug.[200]The Tribunal concluded that the claimant had shown, on the balance of probabilities, that the person responsible for each of the three incidents relied upon was someone for whom the respondent was liable. Second issue – Act done in course of employment or authority[201]Even if it was more likely than not that the act had been carried out by someone for whose acts the respondent was liable, the claimant requires to establish that it was more likely than not that each of the acts was done in the course of the relevant employee’s employment or within the relevant agent’s authority, such that the respondent is vicariously liable for their acts.[202]The respondent’s agent argued that the lack of evidence about when and how each of the incidents occurred meant that even if they were perpetrated by an employee of the respondent, it was not possible to undertake the factsensitive analysis required to determine whether such a person was acting in the course of their employment when perpetrating the relevant acts. For example, it is unknowable whether the individual was on duty at the relevant time or perpetrated in the workplace.[203]The claimant’s agent argued that if that was correct then an employer could never be responsible for an anonymous act of harassment perpetrated by an employee which would limit the protection by the Equality Act.[204]The Tribunal concluded that the claimant requires to show that those responsible were acting in the course of their employment (or authorised to act). It is sufficient the claimant establish this on the balance of probabilities. The Tribunal must be satisfied that it is more likely than not that the person responsible for each incident was acting in the course of their employment/authorised act at the relevant time. It may be possible to achieve this without proving precisely who was responsible or precisely when it occurred, but there requires to be evidence showing that there was more than a 50% chance it was done at a time by a relevant person when the respondent would be liable.[205]The claimant’s agent argued that there were sufficient – and agreed – facts available to determine whether the acts were in the course of employment, which is given a wide meaning, including acts in the workplace, construed in the sense in which a lay person would understand them.[206]With regard to the first incident the envelope with the graffiti was an old envelope – it contained a letter from 2018 inside it. It was more likely than not that this was within the workplace with the perpetrator writing on the envelope inside the workplace during working time. It was also submitted that the respondent’s witnesses considered this was an act which occurred within the workplace. It was submitted that the lay person would consider an act which takes place within the workplace and during working time as one which would have been carried out within the course of employment.[207]The Tribunal considered the evidence in relation to this issue. The issue is not whether the incident occurred at the workplace but rather whether the incident happened at a time when the person who was responsible for it (being someone for whom the respondent was liable) was acting in the course of their employment or otherwise during a time for which the respondent would be liable for their actions.[208]The first incident is more likely than not to have occurred at the pigeon hole. The act is more likely than not to have taken place within the unit. It is more likely than not that the perpetrator (whom the Tribunal found was more likely than not to be someone for whom the respondent was liable) carried out the act at a time when they were acting in the course of employment or otherwise at a time when the respondent would be vicariously liable. Even if the person did the act outwith their working hours, it was more likely than not to have been at a time when the respondent was liable, given the connection to the workplace and the fact the incident took place within the workplace. Having carefully assessed the evidence, the Tribunal concluded the first incident occurred at a time when the respondent would be liable.[209]The incident happened at the pigeon hole area which was an area frequented by those for whom the respondent was liable, who are more likely to be present in that area only when working (or when otherwise carrying out acts related to their employment).[210]The claimant’s agent submitted that the note was found within the claimant’s work jacket in the inside pocket, which was a jacket worn only to and from work. As the note was found within the inside pocket it would be impossible for the note to have been placed into the pocket whilst the claimant was wearing it. The claimant left the jacket unattended whilst at work within the male changing room hanging on a peg. This would be the only opportunity for anyone to place anything within the inside pocket in the workplace. On the balance of probabilities the note must have been place within the jacket pocket whilst in the workplace during working time, likely when the claimant was out of the police building on patrol. Further the respondent’s witnesses also considered that this was an act which occurred within the workplace.[211]The Tribunal considered the evidence. The incident occurred within the locker room. It was more than 50% likely that the act occurred at a time when the person was acting in the course of their employment or when the respondent would otherwise be liable for their actions. It occurred within the workplace. Even although it was possible staff would be at the locus before or after their shift, it was likely to have occurred at a time when the respondent would be vicariously liable for their actions given the context and circumstances. Third incident[212]The claimant’s agent noted that the graffiti was found on the bottom of the claimant’s mug following a period of leave. The claimant left the mug in the cupboard under the sink prior to going off on leave and found it within the section cupboard upon his return. The mug was unlikely to have left the workplace. The perpetrator is more likely than not to have taken the mug and written graffiti on it within the workplace, during working time. The respondent’s witnesses also considered that this was an act which occurred within the workplace.[213]The Tribunal prefers the claimant’s submissions in this regard and upholds them. The incident occurred within the kitchen. It was more likely than not to have been carried out a time when the respondent would be liable in law for the actions of the unknown perpetrator. This is due to the context and circumstances. The incident took place in the kitchen by someone who knew in which unit the claimant was based (and where his mug went). It is more than 50% likely the act was done at a time when the respondent would be liable in law for the perpetrator’s actions since there is unlikely to be a reason for the person to be present at the locus when not working. Third issue: Time limits[214]Given the Tribunal has found that the claimant has established that the actions were carried out by individuals for whom the respondent was liable, at a time when the respondent was liable, next issue is whether given the first 2 incidents occurred outwith the limitation period for raising a claim, the acts of discrimination relied upon by the claimant amount to an act continuing over a period.[215]The claimant’s agent accepted that the claims for the first incident (1 June 2020) and second incident (17 August 2020) were brought outwith the ordinary time limits. The time limit for bringing claims was therefore 31 August 2020 and 16 November 2020. The claimant contacted ACAS on 21 July 2021 lodging his claim on 9 September 2021.[216]The claimant’s position was that the three acts were a continuing act of discrimination and therefore that the ordinary time limit should be taken from the final incident, on 30 July 2021 (and no issue of time bar arises).[217]The question was whether the incidents were an act extending over a period, as distinct from a succession of unconnected or isolated specific acts, looking at whether or not the acts are part of a series and whether they are acts which are similar to one another. A relevant factor is whether the same individuals or different individuals were involved in the incidents. Although the precise identity of the perpetrators is unknown it was believed that the same group of officers were responsible for.[218]It was submitted by the claimant that the incidents formed part of a series of acts specifically targeting the claimant because of his religious beliefs. The acts are very similar, the first two in particular both featured the same delivery method (a note) and contained the same phrase. The third incident is similar with graffiti left on an object belonging to the claimant. This was not an isolated incident that is raised out of time; nor two incidents separated out over a long period of time. Instead there are three linked and related incidents happening over 12 months. It was submitted that the acts were perpetrated by the same person or a limited group of employees within 13 months of each other that are agreed to satisfy the definition of religious harassment. Accordingly, these are not stand-alone events. It was a continuing act.[219]The respondent’ agent argued that there was no evidence to suggest that the three incidents amounted to “conduct extending over a period”. It was argued that three isolated acts over a period of a minimum of 13 months cannot be characterised as a policy, practice, “ongoing situation” or “continuing state of affairs”, particularly where there is no evidence to establish any relevant link or coordination. Given the first message was written on an envelope addressed to “PC 850 McCue”, it is likely that the true overall timescale was significantly longer, and possibly as long as three years. The evidence of any wider issue of sectarianism was inconclusive and does not justify any finding of a concerted campaign against the claimant.[220]Finally, it was submitted that the third incident was different to the first two, and might well have been perpetrated by a different person and for a different motive, bearing in mind that the claimant’s mug celebrated a famous Celtic victory. It was just as possible that it was an offensive comment related to Celtic’s traditional association with Catholicism as directed against the claimant, particularly given that not everyone in the Unit would know which cup every officer had. Decision on act extending over a period[221]The Tribunal had no hesitation in concluding that the first two incidents were closely connected. They were not stand alone or isolated incidents but part of a series of acts, likely to have been carried out by the same person. The Tribunal considered the respondent’s submissions carefully with regard to the third incident and concluded that on balance it was likely that the third incident was part of a series of acts, an act extending over a period.[222]While it was possible that the third act was unconnected to the first two, the Tribunal considered it was more likely than not that the third act was connected to the first two. The mug had been placed back into the correct section, suggesting the person responsible had not simply been wishing to place the comment upon a mug, but rather place it upon the claimant’s mug and thereby cause the claimant offence (as had been done in relation to the previous 2 incidents). There was no evidence that any other person had been affected by reason of religion and the evidence suggested the focus was in relation to the claimant (and his religion).[223]The Tribunal also considered the time between the second and third act. The second act took place on 17 August 2020 and the third act on 30 July 2021. The claimant was absent from work from 18 August 2020 until 10 October 2020. While the time between the second and third incident was significant, the Tribunal considered that it was likely that the same person or persons were behind the incidents which amounted to a continuing act of religious harassment. The Tribunal looked at the substance of each of the acts (which are each accepted to be acts of unlawful harassment) and concluded that they did not amount to isolated and separate incidents but rather, on balance, amounted to part of one continuing act of harassment. On that basis the claims were lodged in time. Just and equitable[224]If the Tribunal was wrong in its conclusion that the three incidents amounted to an act extending over a period, the Tribunal considered whether the limitation period should be extended on the basis that it would be just and equitable to do so.[225]The claimant’s agent emphasised the wide discretion the Tribunal has and that if the Tribunal found the claim to be time barred and did not exercise discretion in the claimant’s favour, he would be denied a finding of discrimination whereby he was harassed on two previous occasions. He submitted that despite the passage of time there had been no obvious or apparent impact upon the preparation or conduct of the and nor upon the cogency of the evidence as the respondent was able to present a full defence of the claims and the events of the first two events would have formed part of the evidence in any event.[226]The key issue with regards to any failure to lodge the claim in time was the claimant’s mental health. While the claimant returned to work within the ordinary time limit, however it would, it was submitted, be an error to interpret his fitness for duty as evidence that his mental health had fully recovered.[227]The claimant’s agent argued that the claimant’s significant ill health was relevant and there would be a far greater prejudice to the claimant as opposed to the respondent if his claim could not proceed since the claimant would lose a good claim on its merits while the respondent suffered no prejudice in conducting its defence to the claim.[228]The respondent’s agent noted that the claimant accepted in evidence that he could have brought a claim after the first two incidents, but that he chose not to. It was submitted that, in those circumstances, it would not be just and equitable to extend time. The respondent’s agent noted that the onus is on the claimant to show why claims should be permitted to proceed out of time: and given the claimant took a conscious choice not to bring a claim, it would be unfair to the respondent and prejudicial to require it to meet stale claims, relating to events which took place almost two years ago.[229]The Tribunal considered the evidence led carefully and the recent Court of Appeal guidance in reaching a decision in this area. The key issue in determining whether or not it is just and equitable to allow the claims to proceed is the prejudice caused to both parties. The Tribunal concluded that, had it been necessary to do so, the Tribunal would have found that it would have been just and equitable for the claims to be allowed to proceed. Even if the final act was a standalone or isolated incident, the first two acts were clearly connected. While the claimant chose not to pursue the claims at that time, his mental health was adversely affected by the treatment he had received and the events that had happened, during his employment. His principal focus was to secure a return to work.[230]The Tribunal considered the prejudice to the respondent. While it was suggested that the cogency of evidence was affected as a result of the delay, the respondent was fully able to present its defence and there was no suggestion a fair hearing was not possible. While there were some disputes, these were not disputes that arose due to the passage of time but disputes that arose as a result of the perception as to what had been said or agreed. The same disputes were likely to arise had the hearing taken place sooner. The Tribunal did take into account the prejudice of having to defend a claim which was on its face out of time.[231]The Tribunal also took into account the fact the claimant was able to return to his role as a firearms officer (and did so without raising a claim). His mental health had an impact upon his health but equally he was able to carry out his role and return to work. That was an important factor the Tribunal placed in the balance. The Tribunal also took into account that the acts are accepted to amount to harassment per se.[232]The Tribunal balanced the length and reason for the delay in this case. The claimant had explained why he did not raise a claim when he did, with his mental health having been affected. The Tribunal balanced that against the fact the cogency of evidence was unaffected. A fair hearing was self evidently still possible and the respondent was in no way hampered by the passage of time (and there was no suggestion from any witness that the passage of time affected their ability to recall matters).[233]The claimant decided following the third incident to raise a claim given the impact of the third act of harassment upon him following upon the effect of the previous two incidents.[234]On balance the Tribunal considered the prejudice to the claimant in the circumstances of this case to be far greater in not being allowed to proceed with the claims, given his mental health and the context in which the issues arose balanced with the impact upon and prejudice to the respondent.[235]The Tribunal considered the evidence led and was satisfied that the claimant had persuaded the Tribunal that it was just and equitable to allow the claims to proceed, had this been required. Final issue: Reasonable steps defence[236]The final issue the Tribunal required to consider is whether the relevant acts are acts for which the respondent may be liable, the respondent took all reasonable steps within the meaning of Section 109(4) of the Equality Act 2010 to prevent employees from committing such acts, or committing acts of that description so that the respondent has a defence to the claims of harassment. In reaching its decision as to the defence in respect of the 3 incidents, the Tribunal carefully considered the principles set out in Allay, recognising that the purpose of the legalisation is to encourage employers to take significant and effective action to combat discrimination in the workplace and that the defence can only be sustained where the Tribunal is satisfied all reasonable steps have been shown to have been taken to prevent discrimination generally or the act in particular. The Tribunal carefully and in detail assessed the steps that were taken from the evidence led and their reasonableness and considered the context in which the incidents occurred.[237]The Tribunal requires to consider each incident individually and the steps that were taken and whether all reasonable steps were taken.[238]Both parties began their submissions with some general comments as to the policies and training position. The respondent’s agent submitted that the relevant policies were “living documents”. They were regularly updated and improved and reflected values and practices the respondent espoused. This was not a “tick box” approach.[239]It was submitted that making it mandatory for every officer to read every policy and for a register to be kept to ensure that every officer had done so would be wholly disproportionate. It was submitted that the respondent did at least as much as required in relation to policies by: regularly circulating updated policies, by email, communications and on the internet; having physical copies available on the notice board; updating and re-circulating policies annually, and consulting on them if appropriate; having a strong expectation that officers would keep themselves familiar with the policies; and ensuring engagement with the policies by having regular online testing on them.[240]The respondent’s commitment to equality was demonstrated by its setting up of the ECSN, the Equality Support Groups and the appointment of Unit-based Diversity Champions (including Ms Wilson at Hunterston) to apply these values across the organisation. Moreover, Mr Mehmood, the EDI Manager, had a high profile within the organisation and makes an effort to get out into the units and speak to officers.[241]Training was taken similarly seriously: It formed a significant element of induction training. It was regularly refreshed online, with a requirement to complete a test to ensure that it had been understood. It was supplemented by more informal briefings and reinforcement of the underlying values.[242]The respondent’s agent argued that the Tribunal should apply the general principles in this area. The question of reasonable steps must not be assessed with hindsight. The question is what would have been reasonable at the relevant time, not in the light of subsequent events. This is particularly important, where there is a series of events, which can only be seen as such in retrospect. For example, the first Incident could legitimately have been seen at the time as an isolated and historic incident directed to the claimant.[243]The requirement to take reasonable steps is not a counsel of perfection. The defence may be made out even if the Tribunal itself would have done things differently or perhaps better than (in its view) the employer has.[244]The evidence heard presented a very selective view of conditions at Hunterston. The claimant has been at the unit for 15 years, mostly without incident. In that time, there were a small number of relatively minor incidents.[245]It was suggested that just as an employer may do too little to prevent discrimination, they can do too much. An overly aggressive or disproportionate response to the events in the present case would have been likely to strain relations. It is notable that there was an element of “backlash” to the steps that were taken. The claimant himself took objection to the Federation’s public anti-discrimination stance on 9 August 2019, and two officers objected to the additional training on the basis that they felt accused of sectarian bigotry.[246]Finally, the impact of the pandemic needs to be taken into account in considering the reasonableness of the respondent’s actions. The first Incident occurred shortly after the epidemic hit (in March 2020), in conditions of near total lockdown. The Tribunal was reminded that it is easy to forget how distracting and difficult conditions were initially, simply in terms of remaining operational. For much of the period with which the case is concerned, heavy restrictions remained in place and it often felt like normal life had come to a standstill. The speed of the respondent’s response must be judged in the light of the unprecedented conditions in which it was operating as an organisation at the relevant time. The resource constraints that apply to public sector bodies would have impacted even more acutely during the pandemic.[247]The respondent’s agent set out the 14 steps that had been taken prior to the 1 June 2020 incident which comprised adopting and updating a Dignity at Work Policy; adopting the fourth version of its Equality, Diversity and Inclusion Policy); launching the Equality Consultative and Support Network; setting up the Equality Support Groups, including a Multi Faith Network; Unit-based Diversity Champions volunteered and were selected. Version 6 of the Respondent’s Police Officer Misconduct Policy dated December 2019 (specifically specifying discrimination to be misconduct) was in place and the policies were circulated by email, available on the intranet; in some cases displayed prominently in hard copy on the notice board and the subject of discussion and training.[248]Equality, diversity and inclusion training formed a significant part of initial face to face training for all officers, comprising three modules and additional, compulsory refresher online training was undertaken regularly by all officers, requiring that an online test be completed to show full understanding.[249]On 5 and 6 February 2019, Mr Mehmood visited Hunterston and delivered EDI sessions focussing specifically on the impact of religious bias, and citing his own experiences and on 6 February 2019, a meeting was held at the unit to seek to resolve tensions arising from Mr Thomas’ misuse of the duty rota. On 6 March 2019, Temporary Superintendent Cole informed all officers that sectarian behaviour would not be tolerated, that it would be dealt with robustly and that all officers were expected to challenge and report such behaviour.[250]On 21 August 2019, the claimant’s grievance against Sergeant Craig was dealt with sensitively in accordance with his wishes as to the desired outcome by clearing him of all allegations;[251]On 12 February 2020, Chief Superintendent Vance declared a Critical Incident to address deployability concerns, with particular focus on identifying whether these had arisen from sectarian issues. Critical Incident meetings were held on 12 February 2020, 25 February 202 and 6 March 2020.[252]It was submitted that these steps should be considered in the round and show a proactive and sensitive approach by management to diversity, appropriate attention to the possibility of sectarian issues, and a culture which sought to address head on rather than brush under the carpet issues as they arose.[253]It was submitted that the respondent’s investigation was reasonable. There was no evidence as to who the perpetrators might have been. Each of the incidents occurred in circumstances where many individuals could have carried it out over a relatively prolonged period of time and with no witnesses.[254]Whilst Superintendent Allan gave consideration to installing covert CCTV cameras in the building, this was not realistic, nor a viable or practical option.[255]Inspector Gilmartin spoke widely with officers within the unit to see if anyone had any information as to who it might have been. No one did.[256]It was argued that it would have been wrong to have singled out officers to speak to. There was no evidence whatsoever to link any individual to any of the relevant incidents. The claimant himself never identified anyone as a potential suspect, either to the respondent or in his statements to Police Scotland. Any officer would have insisted on being interviewed under caution, with some justification, if they considered themselves to be under any suspicion at all. Given the adverse response to some being instructed merely to undertake EDI training, on the basis that some considered that to unfairly label them as a sectarian bigot, it is inevitable that such individuals would have reacted extremely adversely to any suggestion that he might have had been responsible for Incidents, particularly in the absence of any evidence against them. To have targeted him in this way, on the basis of no evidence whatsoever, would merely have raised the temperature and increased tension, for no conceivable benefit.[257]With regard to the argument training should have happened earlier, it would have been particularly difficult to roll out training earlier than it was in the light of the commencement of Covid lockdown in March 2020. As Mr Mehmood explained, additional video training would not have been viable at the outset and was in any event less impactful. The additional training given in August to October 2021 was not vastly different to training previously given. The basic principles and approach were the same, albeit there is always some benefit in reinforcement. Previous training and briefings specifically on sectarianism had been given.[258]It was submitted that the question of training must be looked at in the round. The following factors were said to be significant: all officers undertake face to face EDI training as a significant part of their induction training; all officers undertake regular face to face training; the respondent consistently messaged positively on EDI through circulating updated policies and procedures and having relevant institutional arrangements; there had been additional training and briefings on EDI in Hunterston, some of it focussing specifically on religious discrimination, before the first Incident occurred. Against that background, it would be counsel of perfection to suggest that section 109(4) required the Respondent to have rolled out the additional training programme earlier than it did, in the early stages of the Covid lockdown period.[259]The respondent had encouraged the claimant at an early stage to raise any concerns with the diversity manager being visible. The respondent’s policies sent a strong message about unacceptable behaviour and the respondent sought proactively to deal with any sectarian concerns head on, being helpful and supportive. The incidents were treated as extremely serious in nature with a comprehensive and robust response.[260]The claimant’s agent argued that the steps that were taken were ineffective in preventing the incidents. The employer must establish that they have taken all reasonable steps: a high threshold. It was the claimant’s position that the respondent had failed to take effective and significant action to combat discrimination and fell well short of the high threshold. The respondent is a large employer with significant resources.[261]The claimant’s agent argued that the respondent did not evidence that the policies relied upon were mandatory for staff to read and familiarise themselves with. There was a ‘general expectation’ staff would read these but it was not a requirement for them to read the policies. There were no records of which officers read the various policies or when they read the policies. It was submitted that it must be a reasonable step for an employer to require employees to read the policies and maintain a record of this.[262]No training material had been lodged in evidence and training records indicated annual training lasted a maximum of twenty minutes. Given the number of characteristics and types of discrimination that would need to be covered, the training could not have been very detailed. Training was on the Equality Act generally. Basic training which can be completed by clicking through slides and answering a few basic questions is ineffective.[263]The claimant’s agent also argued that the fact the incidents occurred showed the training was stale and ineffective. This is contrasted with the more recent training which was bespoke.[264]It was argued that steps taken after the incident cannot be relied upon in support of the defence to that incident. Subsequent events are relevant only so far as they shed light on what occurred before the act complained of.[265]In any event the claimant’s agent argued the respondent failed to treat allegations seriously. Tribunal’s decision as to defence regarding the first incident[266]The Tribunal considered the steps the respondent took prior to the first incident as set out above. The Tribunal also considered (and applied) each of the guiding principles and applicable law when considering this.[267]Applying the guidance from the Equality and Human Rights Commission Employment Code, the Tribunal considered that the policies the respondent had in this area were genuine and that a tick box approach was avoided. The respondent approached dignity at work seriously with a desire to avoid discrimination at work. The annual training that took place supplemented the initial training. Although there was a lack of precise detail included within the training packages, the Tribunal was satisfied that the approach taken to inform staff as to the guiding principles was reasonable. The policies were clear. While it would have been perfection for a system to be in place requiring all staff to consider each policy and for a record to be taken, it would not have been reasonable to do so in the context of this case. The fact it could have been done did not mean it was reasonable to do so.[268]Not only did the respondent devise a policy but it was implemented and workers were reminded of the existence of the policy and trained in relation to it. The training covered the policies and tested staff as appropriate. The policy was also reviewed and the respondent had in place a number of other initiatives to ensure diversity and equality was not academic but very much at the heart of what the respondent did. The policies were updated and reviewed as appropriate. Staff were aware of and reminded about the Policy in this area and refresher training took place that focused on the principles within the legislation. The Diversity Manager, local champions and groups and senior staff reminded staff as to the position. Briefings had also taken place.[269]The Tribunal considered the issue of training generally and in particular the claimant’s submission that there was a lack of evidence with regard to the specific training that had been given. The respondent’s agent argued while the respondent had not provided detailed notes of the training sessions or modules there was sufficient evidence given as to the content of the training sessions. The respondent’s agent submitted that a number of witnesses gave evidence about the nature of the training. Evidence was given as to the 3 modules covering the Equality Act (an introduction), Dignity at work and 4 Equality Diversity and Inclusion Awareness videos. The policy documents, which had been lodged, were covered in the training sessions (with the policy documents themselves referring to training).[270]With regard to the refresher training, the evidence showed that candidates read slides and answered a multiple choice test at the end. The training was run by a specific department supported by an HR team and diversity manager. Evidence was given as to how this covered the principles within the Equality Act, building upon the induction training, with staff having to answer questions correctly in order to pass. This was not a tick box approach but rather a genuine attempt to remind staff of the overarching principles of the Equality Act supported by clear and developing policies and a clear culture.[271]There was also further training provided on an informal basis in 2019 by Mr Mahmood who gave evidence about the matters covered, saying it included the impact of discrimination and his own experience with focus on sectarian issues. Finally details of the bespoke training that took place in 2021 can be gleaned from the report provided by the trainers.[272]In short, although the underlying materials with syllabus was not provided in evidence, the policies covered in the training were and the evidence of Mr Mehmood and other witnesses gave sufficient evidence of the nature of the sessions which were substantive sessions. The policies and training provided by the respondent underlined the respondent’s approach to an inclusive and diverse workforce, It had sought to be proactive in combatting discrimination in the workplace. The claimant accepted in cross examination that the respondent’s message to staff had been clear that religious discrimination was considered unacceptable. The respondent’s approach to discrimination in the workplace was not perfect but it was reasonable and robust. Staff were made fully aware of the seriousness of breach of the Equality Act and of the need for respect. The fact the respondent was a disciplined organisation with officers required to comply with the Code of Ethics and standards of professional behaviour underlined this approach.[273]The Tribunal considered the claimant’s submissions carefully together with the respondent’s response and the evidence led. The Tribunal was satisfied from the oral evidence heard as to the basis of the training and the topics covered that the training up to the first incident was suitable and reasonable. The respondent’s approach demonstrated a genuine engagement with diversity issues and an attempt to ensure all staff followed the policies. The training and support given to staff prior to the first incident was significant.[274]The Tribunal did not consider that the fact further acts of discrimination occurred showed there to be a need for further training. The respondent’s approach to the rules in this area were clear. There could be no doubt as to the respondent’s view of a breach of the Equality Act (the principles of which were understood by staff). It was clear that certain individuals disliked the claimant and used his religion as a way to offend him. The author of these acts would have been in no doubt as to the unlawful and unacceptable nature of their actions as a result of the respondent’s approach to equality and diversity in the workplace.[275]The Tribunal did not consider it would have been a reasonable step to require employees to read the policies and maintain a record of this. While that would have been perfection, the Tribunal considered the respondent’s approach went as far as was required, and was reasonable. The respondent was a disciplined force and the respondent communicated the position as to the respondent’s policies in these areas very widely and maintained a consistent and clear approach. There were no further steps that were reasonable.[276]The Tribunal did not consider it would have been reasonable to have introduced more detailed or more nuanced training at this stage (prior to the first incident). While a number of sectarian issues had been raised, there was no suggestion that there were specific issues or matters that required additional training. The respondent made their approach to such matters abundantly clear (that such behaviour was not tolerated). The briefings following the earlier incident had underlined this. This further incident by itself did not show that the previous briefings had become stale given it was possible the first incident had occurred at the same time as the incident that gave rise to the briefings. The Tribunal did not consider the training that had been provided to have become stale in any event.[277]The respondent was aware of personality differences within the unit and had sought to deal with these matters informally. The Tribunal did not consider the claimant’s agent’s submissions that the respondent had failed to take reasonable steps in relation to the first incident to be meritorious. It was not reasonable to have offered additional training to all employees prior to the first incident. The Tribunal was satisfied there were no other reasonable steps that should have been taken in relation to the first incident.[278]Managers were responsible for ensuring their direct reports carried out the online training. As a disciplined organisation, staff were required to follow instructions, which included completing the mandatory training and keeping up to date with relevant policies and procedures. The respondent’s approach in this regard was reasonable. The Tribunal did not uphold the claimant’s agent’s submissions that there were further reasonable steps in that regard.[279]The Tribunal was satisfied that complaints were dealt with effectively given the approach that had been taken up to the first incident within context. The Tribunal did not consider it to have been reasonable to have embarked on an investigation given the facts and context (and that it could have been an isolated event against the claimant with no likely evidence as to the perpetrator being available). The Tribunal did not consider that the steps relied upon by the claimant’s agent were reasonable on the facts.[280]The Tribunal upholds the respondent’s submissions with regard to its defence of the first incident. The respondent has discharged the onus and shown the respondent had taken all reasonable steps to prevent the act of harassment occurring or to prevent harassment occurring more generally.[281]The respondent’s agent set out the additional steps that had been taken prior to the 17 August 2020 incident. From 1 June 2020 Inspector Gilmartin was in regular contact with the claimant in support of him and his welfare. On 2 June 2020 the 17 August 2020 incident was recorded as a Prejudice Related Incident. On 5 June 2020 Mr Mehmood spoke with Superintendent Jones and others to discuss the incident and brief them about the Dignity at Work Policy and the content of briefings at the unit, including underlining harassment on grounds of religious belief. Mr Mehmood spoke to Ms Jones again on 8 June 2020 to support her visit to Hunterston and provide examples of unacceptable behaviour relating to religion and belief. Inspector Gilmartin informally asked around among officers in relation to any information on the incident and on 16 June 2020 Superintendent Jones visited the unit to speak to the claimant.[282]The respondent’s agent submitted that the respondent adopted a proportionate approach in that it respected the claimant’s wish that the matter should not be reported to Police Scotland, respected his wish that the Divisional Commander should not address the entire unit and made it clear that any further incidents would be treated robustly and that the decision as to how to proceed would be taken out of the claimant’s hands.[283]The claimant’s agent argued that the respondent’s response to the first incident was negligible. It was reported as a prejudice related incident but nothing further was done. That was nothing more than a reporting mechanism that records when an incident has occurred. It was disputed that the claimant did not want anything done further. The respondent should have taken the issue out of the claimant’s hand and investigated the matter and reported it to Police Scotland. Support offered to the claimant was minimal. The claimant’s agent argued the claimant “was gas lit” by Inspector Gilmartin who tried to blame a cleaner, rather than taking charge and instilling confidence in the claimant that the respondent would do everything they could.[284]It was argued that the respondent did the bare minimum in response to incident 1. The claimant argued training should have been provided between Incident 1 and 2 and fully investigated it. Tribunal’s decision in relation to defence to the second incident[285]The Tribunal considered the evidence that had been led and the parties’ submissions. The second incident occurred around 10 weeks following the first incident. The Tribunal noted that both incidents were very similar and it was entirely possible that the second incident had in fact occurred at a similar time to the first incident, and was not discovered by the claimant until later on (when his wife checked his jacket). There was a strong likelihood that both incidents had been carried out by the same person (who had a dislike of the claimant) around the same time, given the incidents were similar.[286]The respondent’s submissions have merit and are upheld. It was reasonable for the respondent to have considered the first incident to be an isolated act directed to the claimant. At that time there were no witnesses and it was highly unlikely that the perpetrator could be identified. The claimant’s wishes were respected in managing that issue and he was given support. Regular meetings took place with him. The steps the respondent took were reasonable and proportionate and there were no other reasonable steps at this time.[287]Applying the guidance from the Equality and Human Rights Commission Employment Code, as found in relation to the first incident, the Tribunal was satisfied the policy introduced and training that was in place was suitable and sufficient. The Tribunal was satisfied that the initial training that had been provided and policies in place demonstrated a meaningful and regular engagement with equality and diversity issues and showed a desire to eradicate unlawful discrimination in the workplace. The steps the respondent had taken were reasonable. It would not have been reasonable to have done any more than was done in this case prior to the second incident.[288]The Tribunal did not consider it would have been reasonable to have ignored the claimant’s desire not to take matters forward formally. The respondent supported the claimant. The steps the respondent took were not negligible but were proportionate and considered. The claimant’s submissions with regard to the defence in respect of the second incident are not upheld.[289]The Tribunal considered whether a reasonable step would have been to have introduced specific training in the period following the first incident. Taking account of all the facts and the circumstances of this case the Tribunal was satisfied that it would not have been reasonable to have done so. While it would have been a perfect response, the test is one of reasonableness. The training that had been provided was reasonable and the clear and consistent approach taken to diversity within the respondent showed how serious such issues were taken by the respondent. It was not a reasonable step to have carried out further training in the period between both incidents not least given the short period of time, context and background in which it occurred. The training that had been delivered had not become ‘stale’.[290]The Tribunal did not consider it fair to suggest the respondent had “gas lit” the claimant. The respondent supported the claimant and met with him. His decision not to involve Police Scotland had been respected and he was supported. There was no suggestion there were any requests the claimant had made which were not met. The Tribunal did not consider it would have been reasonable to have pursued a transfer for the claimant given it was not something he had wished to explore. If the claimant had wished to explore the transfer, assistance would have been given to him with regard to the administrative process but the claimant did not seek such assistance.[291]The Tribunal considered the failure to fully investigate the first incident. At that time there was no suggestion there was likely to be any repetition and steps had been taken to ask officers if anyone had any information to provide it. The absence of any evidence and the facts suggested that a full scale investigation was likely to be fruitless and the claimant had been supported in not informing Police Scotland and regular welfare meetings took place. While embarking upon an investigation as to the first incident would have been a perfect response, the Tribunal was satisfied it would not have been reasonable to do so and there were no reasonable steps that should have been taken leading up to the second incident. It was possible that the incident was isolated and an investigation would have limited effects.[292]The Tribunal takes account of its industrial expertise in reaching this conclusion and concluded that there were no further reasonable steps the respondent should have taken with regard to the second incident. The steps the respondent took in the lead up to the second incident were reasonable and there were no other steps that would have been reasonable on the facts. The respondent had discharged the onus and shown it had taken all steps as were reasonable to prevent the act occurring or harassment generally from occurring. The defence is successful in respect of the second incident. Incident 3[293]The respondent’s agent set out the steps taken prior to the 30 June 2021 incident. On 18 August 2020 a form was submitted reporting the first two incidents as gross misconduct. On 19 August 2020 Inspector Gilmartin reported the 17 August 2020 incident to Police Scotland for investigation and the 17 August 2020 incident was recorded as a Critical Incident and an extensive action plan put in place. Critical Incident meetings were held on 28 August 2020 and 4 September 2020. On 21 to 23 August 2020 Chief Inspector Brotherston visited to engage with officers and on 25 and 26 August 2020 Chief Superintendent Vance visited to speak to officers and on 4 September 2020 Inspector Gilmartin checked on the claimant’s welfare.[294]In March 2021 the Dignity at Work Policy was updated. On 5 March 2021, an updated version of the Equality, Diversity and Inclusion Policy was adopted which refers employees to the ECSN and ESGs, providing a link to the relevant material.[295]Taken cumulatively, it was argued that these steps showed a proactive, serious and appropriate response to the 17 August 2020 incident. No further incidents occurred in the nine months following the 17 August 2020 incident.[296]The respondent’s agent submitted that steps taken after the relevant acts of harassment are capable of being relevant to at least the second limb of section 109(4) of the 2010 Act, the question of whether the employer took reasonable steps to prevent employees from “committing acts of that description”.[297]The following additional steps were taken after the 30 June 2021 incident: On 1 July 2021 the 30 June 2021 incident was reported as a Critical Incident and an extensive action plan put in place. Critical Incident meetings took place weekly thereafter for several months and a form was submitted, with assessing the severity as gross misconduct. On 5 July 2021 a Health and Safety report was submitted on behalf of the claimant and on 7 July 2021 the 30 June 2021 Incident was recorded as a Prejudice Related Incident and referred to Mr Mehmood. On 7 July 2021 Chief Inspector Brotherston visited to speak to officers.[298]On 13 July 2021 contact details for the professional standards department were sent to Police Scotland and on 15 July 2021 Sergeant Wilson emailed all staff expressing solidarity with the victim, concern that a sectarian incident had taken place, inviting all officers to challenge such behaviour and asking anyone who has been affected by the incident to feel free to speak to him.[299]On 17 July 2021, the Unit Based Diversity Champion at Hunterston emailed all officers encouraging them to come forward in full confidence if they witnessed any inappropriate matters. Mr Mehmood endorsed and reinforced her message.[300]On 26 July 2021 all staff were notified that EDI training would be carried out. The training was delivered in August and October 2021. Sergeant Wilson spoke to individuals who did not wish to attend the training, who felt they had been labelled as bigots by being asked to undertake training, to reassure then and ensure that they undertook the training. All staff except the claimant completed the training.[301]On 31 August 2021 Sergeant Wilson emailed staff requesting that anyone with information about the incident of 30 June 2021 should contact Police Scotland.[302]It is submitted that these steps were an appropriate response to the 30 June 2021 and reflected a calibrated approach, whereby the response was escalated with each subsequent incident in a proportionate way. Ultimately, even the most diligent and committed employer cannot always eliminate all discriminatory conduct by its employees, particularly where the conduct is clandestine in nature and gives rise no relevant forensic evidence.[303]Overall, it was submitted that the steps taken demonstrated a genuine commitment to eliminating unlawful discrimination. The policies, training, procedures and institutions which had been established, developed and regularly updated reflected a serious and sustained effort to uphold its obligations under the 2010 Act. The defence is established provided that “reasonable steps” have been taken; not every conceivable step.[304]The claimant’s agent argued that the fact the respondent was explaining exactly what they have now done after the third incident to prevent harassment happening again fatally undermined their position that they have taken reasonable steps. There was nothing to prevent the respondent from having taken such steps sooner. A critical incident group was established, which was a command structure in order to co-ordinate the response. The fact it was established does not indicate action was taken; it is merely the vehicle which determines which action is taken and by whom.[305]It was submitted that the respondent again submitted a prejudice related incident to record the incident, and referred the matter to professional standards and Police Scotland but the respondent left the investigation to Police Scotland who were unable to investigate further once forensic results provided no information and no witnesses came forward voluntarily. The respondent closed their own investigation down immediately following the closure of the police Scotland investigation was complete. The respondent hid behind the Police Scotland investigation and Police Conduct Regulations as an excuse for their own inaction. The standard of proof for both investigations is different. Police Scotland require a higher standard of proof. A lack of evidence for Police Scotland does not automatically mean an internal investigation would not be able to proceed or yield a result. The claimant’s agent argued that the respondent could have spoken to individuals to obtain information. Instead they chose not to do so.[306]The issues of the claimant transferring was briefly discussed in response to incident 2. This was not taken forward because the claimant did not fill in the required paperwork which was due to his mental health.[307]The claimant’s agent argued that further training should have been provided and it should have been done sooner. The pandemic was said to be “a poor excuse” for not providing training before incident 3. It could and should have been done online. Tribunal’s decision as to defence of third incident[308]The Tribunal carefully considered the evidence led together with the parties’ submissions (and applied the principles set out by the respondent’s agent and applicable law) with regard to the third incident.[309]Applying the steps from the Equality and Human Rights Commission Employment Code, the Tribunal was satisfied, as set out above, that the respondent genuinely and meaningfully engaged with equality and diversity issues and it had a living equality policy which was implemented and updated. Workers were aware of the policy and the respondent made clear their robust approach to these issues. The policy was appropriately reviewed, communicated, applied and updated.[310]The Tribunal considered the position in relation to training in relation to the defence as to the third incident. The Tribunal considered the claimant’s agent’s submission that it would have been a reasonable step to have carried out the bespoke training session sooner (or online) to have merit. The respondent’s agent argued that the lockdown and associated issues were important factors as to why the training was delayed for the period it was delayed. That is taken into account but the onus was on the respondent to show why it was not reasonable to have carried out the training sooner. It was possible to have carried out the training sooner and the Diversity Manager confirmed in evidence that the session could have been arranged sooner. No specific explanation was given as to the specific impediments of having the training sooner, other than the existence of the pandemic.[311]The Tribunal took into account the delay that had occurred together with the reasons. The fact the training could have been introduced earlier did not necessarily mean it would have been reasonable to have done so given the context and unique circumstances the pandemic created. The Tribunal must avoid a counsel of perfection and consider the position from the evidence.[312]The Tribunal considered that following the second incident the respondent was essentially on notice that a person or persons wished to offend the claimant with particular reference to his religion. While it would not have been a reasonable step, in the Tribunal’s judgment, to have undertaken further training between the first and second incident, following the second incident, the Tribunal considered that a reasonable step would have been to implement the decision that was taken to deliver the bespoke sectarian training within around 6 months of the second incident. The time between deciding to embark upon the training and delivering it was about a year. While it is not disputed the pandemic would have resulted in some delays, the nature of the respondent’s organisation as such that officers required to attend the unit. It would have been reasonable to have accommodated the session within 6 months of discovery of the second incident.[313]There was no evidence showing why the pandemic prevented progressing the training within this reasonable timescale. Following the incident in November 2018 face to face sessions took place within 3 months. The Policy introduced in March 2021 also stated intensive training would take place. Mr Mehmood accepted the session could have been carried out sooner.[314]The pandemic and its impact is an important factor to be taken into account and a period of time would have been needed to adjust operations in light of the restrictions but absent any specific clear evidence supporting why a delay of 12 months was reasonable, the Tribunal concluded that the training should have been introduced sooner. It would have been reasonable to have done so within around 6 months within the context at the time.[315]It would have been preferential to have delivered the training face to face and that could have been done within around 6 months of the second session. The session could have been delivered online had there been specific issues or restrictions that would have prevented the sessions being delivered face to face. The fact it was accepted that the face to face training could have been delivered sooner was a significant concession by the Diversity Manager in evidence. It would have been reasonable to have done so.[316]The Tribunal also takes into account the fact that there was no evidence of any further sectarian incidents following the bespoke training. That suggests the bespoke training was effective. There is a good chance that had the session taken place within around 6 months of the second incident, the third incident could have been avoided. In so deciding, the Tribunal takes into account that there could be no doubt as to the message the respondent had issued to all its staff and its clear approach to emphasising that such conduct is not acceptable. The claimant accepted that the respondent had been clear in advising all staff that such conduct was totally unacceptable. That supported the respondent’s decision in not introducing the training prior to the second incident given the respondent’s approach to equality, diversity and inclusion but it would have been reasonable to have expedited the training and carried it out within around 6 months of the second incident.[317]The Tribunal applied its industrial expertise and concluded that on balance and in light of the context of the respondent’s actions, its approach to equality issues, the steps taken with regard to proactively setting out the position together with the pandemic (and the evidence before the Tribunal) it would have been a reasonable step to have carried out the training within around 6 months of discovery of the second incident.[318]The Tribunal also took into account the fact that there were a number of staff who resented further training, believing that suggested people were being identified as bigots. That supported the fact that such additional training was necessary to underline the approach to religious tolerance. Training is essential to ensure the issues are understood and the bespoke nature of the session was successful (given the absence of any further incidents). Failure to investigate[319]The Tribunal notes that one of the key steps required by the Equality and Human Rights Commission Code in considering the defence is dealing effectively with employee complaints. Dealing with complaints is important not least in providing a deterrent effect to show those who discriminate that complaints will be investigated internally, increasing the prospect of detection. That differs from police investigations (where the standard of proof is higher). Dealing with equality related complaints effectively can be an important step to prevent unlawful discrimination from occurring.[320]The Tribunal considered that a reasonable step would have been to have undertaken a proper internal investigation with regard to the first and second incident following the discovery of the second incident (as opposed to relying solely upon the Police Scotland investigation). By the time the second incident had occurred, it ought to have been clear that the incident in question was not an isolated or one off event and that someone wished to cause the claimant offence by reference to his religion in more than a one off or isolated way.[321]This is particularly so given the clear position set out by the claimant in his letter of concern where he advised the respondent that he believed this religion was the source of the conduct to which he had been subjected. While the first incident could have been a one off, by the time the second incident had occurred, it was clear that the claimant was correct in his assertions and action was needed which required formal discussion with relevant individuals who worked at the unit. While it would not have been reasonable to have investigated matters after the first incident, by the discovery of the second incident, a reasonable step would have been to have commenced an investigation shortly following the second incident.[322]The respondent referred matters to Police Scotland. The Professional Standards Department was tasked with investigating matters but they relied upon the Police Investigation. What was missing from the consideration was the benefit an internal investigation can have with regard to deterrence. Even if an employer does not consider an internal investigation is likely to yield further evidence, that is not something that is known until the investigation is carried out. The perpetrator might think twice about repetition if it is known that an internal investigation would take place (and reliance is not simply going to be placed upon the absence of evidence satisfying Police Scotland). It was significant that Inspector Allan accepted that such an investigation could have been undertaken but was not as reliance had been placed upon Police Scotland (which unsurprisingly found no forensic evidence).[323]The Tribunal took account of the various steps that were taken by the respondent, including asking staff to cooperate with the police and come forward if they had any information. That was an informal investigation and voluntary request. A reasonable step would have been to have gone further and launched a formal internal investigation. This would not be an “under caution” interview, in the sense of believing in officers’ guilt, but rather a standard approach to speaking to those who may be able to provide information, since when spoken to, persons may recall things that otherwise would have been missed. It would have been based on a lower standard of proof. It could also have yielded a better response, as opposed to relying upon individuals coming forward voluntarily. This shows that such a step could have prevented the harassment occurring or harassment generally from occurring.[324]The Tribunal took into account the potential deterrent effect of formally involving Police Scotland, which itself underlined the seriousness. The fact such an investigation relied upon the requirement for forensic evidence (with a higher standard of proof) was a key distinction. There was no evidence that a more thorough internal inquiry could not have been undertaken.[325]The Tribunal took into account the respondent’s agent’s submissions as to why it was considered such a step was not reasonable. The Tribunal did not uphold those submissions. The Tribunal did not consider that commencing a formal investigation was “singling officers out”. It would have ben an attempt fairly and reasonably identify what evidence there was given the absence of any forensic evidence. It was possible someone saw somebody placing something in the claimant’s jacket pocket or placing a note in the claimant’s pigeonhole (but did not want to come forward voluntarily). It is also entirely possible that someone heard discussion about such actions (or the potential for future actions) and again did not want to volunteer such information.[326]It was not correct to say that at no stage had the claimant identified potential authors of the action. He had told Inspector Gilmartin on 2 June 2020 that he believed he was being targetted by Sergeant Craig “and his cronies” (which was understood to mean known four known colleagues). The respondent knew the claimant believed he was being targetted because of his religion and it was affecting him. It would have been reasonable to have spoken to those four persons known by the respondent as potentially having relevant information given it was the individuals the claimant believed had targetted the claimant. That approach may have identified others to speak to.[327]Given the previous incidents that had arisen, a reasonable step, following the discovery of the second incident, would have been to have identified those who may be able to provide information and speak to those persons which included those with whom the claimant had an issue with regard to his religion. While it was not known when the incidents occurred, there were a small number of people whom the claimant believed could have been responsible, a fact known by the respondent. There were 4 individuals (including Sergeant Craig) whom the respondent knew had clashed with the claimant before. The fact that any officer being spoken to could consider themselves to be a potential suspect did not provide a reason not to reasonably investigate. The whole point of an investigation is to try and identify the responsible party. The fact some individuals might not wish the respondent to investigate the matter does not provide a good reason not to investigate. Just as such individuals did not wish to attend the training and were told they had to attend, it would have been reasonable to have undertaken a formal investigation into the first and second incidents. This was not targeting staff (or labelling or treating people as bigots) but rather would have amounted to a fair and reasonable attempt to understand what had happened and whether anyone could assist in identifying the culprit or provide further relevant information.[328]While the temperature in the unit may have been increased, that was likely to be because the culprits may have realised the respondent was taking these issues seriously and was not relying upon the existence of forensic evidence or a police investigation nor relying upon people coming forward voluntarily. The conceivable benefit to such an investigation was the potential deterrent effect in respect of repetition of such action but also the potential to identify information that could assist in identifying the responsible person or persons. That is what made the taking of this step, in addition to involving Police Scotland, reasonable. It was not solely relying upon forensic evidence.[329]The Tribunal took into account that the actions of the Unit Commander and senior staff (and the diversity manager) was significant. There was a clear signal sent as to how serious the issue was. The Tribunal also took account of the requests by senior staff for anyone with information to provide that voluntarily of their own accord, including during informal discussions. The step which was missing, which was a step the Tribunal considered reasonable following the discovery of the second incident, was the commencing of a formal investigation to ascertain what colleagues knew or what information they could provide. That was not interviews under caution but a proper investigation given the seriousness of the incidents which were accepted to be unlawful harassment (and treated as such).[330]The Tribunal did not consider such an approach would be ”inflammatory and counter productive” as was submitted. There was no evidence to suggest who was responsible per se but no formal discussions had taken place with staff who could potentially assist. The deterrent effect of such an investigation would be significant and given two incidents had occurred, it would have been reasonable to have progressed this following the second incident.[331]It would not have been necessary to have interviewed everyone within the unit but a proportionate investigation could be undertaken with those who could potentially assist, such as those with whom the claimant had previous issues (which he considered potentially to be related to his religion). That could potentially have included speaking to those not engaged by the respondent who had access to the relevant areas particularly if the respondent believed such individuals may have potentially useful information. It would not have been difficult to have identified a relatively small number of individuals who could have information that could assist.[332]While it was submitted such an investigation could have led to people believing they were being wrongly accused (as it did in relation to the mandatory training), such staff should have been comforted by the knowledge the purpose of the investigation was to ensure everyone understood the seriousness of the issues and that it was in everyone’s interest to identify the culprit and deal with them in accordance with the respondent’s policies. No one was being accused and the temperature was not being raised and instead a full and formal internal investigation was being carried out given the seriousness placed upon the issues. The absence of any evidence was not a reason by itself not to commence a formal investigation to ascertain what evidence there could be. Inspector Allan accepted such an investigation could have been carried out rather than relying upon Police Scotland.[333]It had been accepted by the respondent that such an investigation could have been initiated (and there was no evidence suggesting that it would not have been possible to have done). There was no evidence, for example, that such an investigation could not have been carried out during the Police Scotland investigation (or even shortly following its conclusion). While the prospect of an internal investigation yielding new material might have been considered low, that was not in itself a reason for not embarking upon such a move.[334]The Tribunal considered that a reasonable step would have been to formally have investigated the first and second incidents once the second incident occurred, which would have been an example of “taking complaints seriously” as set out in the Equality and Human Rights Commission’s Code. While it would not have been a reasonable step to have done so after the first incident, once the second incident came to the respondent’s attention, a formal internal investigation ought to have been expedited. It would only have been a reasonable step in respect of the third act of harassment. The Tribunal takes into account the fact that there was an ongoing police investigation and professional standards were considering matters from a formal perspective but that relied upon an entirely different issue – whether a crime had been committed rather than whether or not the respondent’s policies had been breached with regard to dignity at work.[335]The delegation of the internal investigation to Police Scotland and failure to formally speak with staff who could assist amounted to a failure to take a reasonable step of speaking to such individuals, whose identity was known to the respondent, to assess what such persons had seen or could say with regard to both incidents. That was likely to have a deterrent effect and the author of the first two incidents was significantly less likely to repeat their actions since he or she would have been aware of the respondent’s zero tolerance approach to such matters and of the fact an internal investigation, in addition to the Police Scotland investigation, would increase the prospect of detection. While the involvement of Police Scotland would have a deterrent effect, meeting with staff internally as part of a formal investigation (which is subject to a lesser burden of proof) would have had additional impact.[336]The Tribunal did not consider that the respondent had dealt effectively with the claimant’s complaints and that such a step would have been reasonable, avoiding a counsel of perfection, in respect of the third incident. No other steps would have been reasonable[337]The Tribunal did not consider pursuing a transfer with the claimant between the second and third incident to have been a reasonable step. The Tribunal was satisfied that at the time the issue was raised the claimant had decided not to pursue a transfer. Had he wished to have done so, he could have asked for assistance with regard to the paperwork. There was no evidence that suggested such support would not have been given. It was reasonable to assume that the claimant, a victim of harassment in the unit, did not want to move some distance away. The Tribunal did not consider the other steps argued by the claimant’s agent to have been reasonable on the facts.[338]The Tribunal applied the guidance from the Equality and Human Rights Commission Code, the principles set out by the respondent’s agent and the authorities in this area. The Tribunal was not satisfied that in relation to the third incident the respondent had discharge the burden of showing that it had taken all such steps as were reasonable to have prevented the harassment occurring or to have prevented harassment occurring generally. In reaching that conclusion the Tribunal carefully and fully took account of the steps the respondent had taken and the submissions of the respondent’s agent.[339]The Tribunal took a step back to consider whether the respondent had discharged the onus of showing that it took all reasonable steps to prevent the third incident from occurring (or harassment generally from occurring). It considered that the respondent had not done so as there were two steps which would have been reasonable for the respondent to have taken to have prevented the harassment occurring (or to have prevented harassment generally), taking into account what the respondent had done and the context, including the steps following the incident, as relevant. Firstly it would have been a reasonable step to have carried out the bespoke training within around 6 months of discovery of the second incident. Secondly it would have been a reasonable step to have commenced a formal internal investigation shortly following discovery of the second incident by meeting with individuals who could potentially provide information as to the perpetrator of the first two incidents (comprising speaking to the claimant, Sergeant Craig, the known individuals employed by the respondent with whom he socialised and others thought relevant to assist in identifying the perpetrator). The remainder of the claimant’s agent’s submissions were not upheld. Defence in relation to third incident not upheld[340]For those reasons the respondent’s defence in relation to the third incident is not upheld and the claimant’s claim that he had been subject to unlawful harassment for which the respondent is liable, is upheld in relation to the incident that occurred on 30 June 2021. A remedy hearing will be fixed to determine what remedy, if any, should be awarded. Observations[343]The Tribunal reiterate its thanks to both agents who assisted the Tribunal to comply with the overriding objective and for their professionalism.[1]By Judgment dated 12 April 2022 the Tribunal found that the claimant had been unlawfully discriminated against by reason of unlawful religious harassment following an incident on 30 June 2021. The other claims (that related to earlier incidents) were ill founded. This Hearing had been fixed to deal with remedy.[2]The only issue to be determined was what compensation should be awarded to reflect the losses sustained as a result of the unlawful act.[3]The hearing took place in person with the parties referring to facts as found by the Tribunal with the claimant giving additional evidence and evidence being given by Dr Moss (clinical consultant psychologist who is the respondent’s specialist clinical psychology and strategic lead for mental health (who examined the claimant), Ms Timms (Head of HR), Ms Ferguson (HR Business Partner), Chief Inspector Arnold (who managed the claimant during stage 1 meetings) and Sergeant Wilson (the claimant’s appointed welfare officer).[4]The parties had worked together to reach agreement on key facts which has assisted the Tribunal. Facts[5]The Tribunal’s judgment is referred to for the facts as found, as summarised below, supplemented by the evidence heard by the Tribunal at the Remedy Hearing.
Background
[6]The claimant is a 42 year old veteran. He served in the armed forces from 1995 until 2003.[7]He worked as an NHS auxiliary case assistance from 2004 until 2007.He carried out general duties.[8]On 17 May 2007, the claimant joined the respondent and in 2018 he was promoted to Sergeant. The claimant was based at Hunterston. He was engaged as an operational firearm officer.[9]His role with the respondent involved the claimant being entrusted with significant responsibility. He carried and operated firearms and was highly trained. The claimant had been operational firearms commander and had led simulated incidents and managed stressful situations and worked with different agencies and teams. As Sergeant he had significant management responsibilities. He is an articulate and intelligent individual. Policy documents[10]The capability management policy and procedure sets out the approach the respondent takes in managing absence. Absence is normally initially managed on an informal basis, which can involve exploring alternatives and adjustments. If the formal policy is engaged a capability management meeting will take place. A stage one capability management meeting will set out the purpose, which is to support the employee with a return to work and if this is not possible to consider other options. Individuals are to be informed that if having exhausted all other options a return to work is not possible dismissal may be considered as a final outcome. The individual would be given the opportunity to present their view on what is needed to secure a return to work and an action plan should be formulated. That could include a trial return, restricted duties, referral to a risk assessment panel or other interventions (including medical intervention). Following conclusion of the action plan a stage one review meeting should take place to determine the next stage which could involve completion, an extension to the action plan or progressing to a stage two capability meeting. If agreement is reached, it may be possible to proceed directly to stage two.[11]If a risk assessment panel is required, to consider a restriction (for example) to firearm operations, the action plan could include referral to the redeployment panel for consideration for alternative roles. Individuals have the right to appeal the outcome of a stage one capability meeting.[12]If there is no satisfactory or sustained improvement in line with the requirements of the action plan or subsequent meetings, a stage two meeting will be called. There may be more than one stage two meeting before a final capability meeting is held. If it is extremely unlikely that recovery or return to work within a reasonable period is likely a final capability meeting could be held.[13]At stage two a risk assessment panel and redeployment panel should consider matters before a final capability meeting is held. Those panels would look at alternative roles in light of the individual’s circumstances. Where appropriate ill health retirement options should be explored. The employee would be told the purpose of the meeting, including whether the action plan should be extended or if there are other options available or whether dismissal should be recommended to the Head of HR. Reasonable adjustments would be considered. The chair will ensure all alternative roles have been explored. The outcome will be to extend or amend the action plan or confirm that all options have been exhausted and to recommend dismissal (which would then be considered by the Head of HR who would review the full case to ensure they are satisfied all alternatives have been exhausted).[14]An individual has the right to appeal any formal decision.[15]The welfare support policy and procedure sets out the respondent’s approach to dealing with individuals who are not at the workplace, such as by reason of sickness. Welfare support should be given to such staff with regular keeping in touch days and the involvement of occupational health as required.[16]The extension to sick pay entitlement policy applies to employees approaching the end of full, half or pension rate sick leave. The policy sets out the circumstances when sick pay can be extended. The policy notes that the standard entitlement is to a maximum of 6 months full pay in any 12 month period, thereafter moving to half pay (subject to a maximum of 12 months absence in any four year period). When full or half pay limits have been reached eligible employees may be allowed sick pay at pension rate or half pay (whichever is less) if there was a reasonable prospect of a return to work supported by medical evidence. Sick pay at pension rate for more than 12 months will be permitted exceptionally where there is a reasonable prospect of return to work.[17]The policy sets out 3 circumstances when discretion can be exercised to extend pay. The first is where the employee is sick as a result of an industrial accident or disease. The second situation is where there is additional sickness and there is a relatively minor ailment, continuing treatment or debilitating side effects. A maximum of 56 days pay in a 12 month period may be permitted, potentially extending by a further 28 days. The final circumstance when sick pay can be extended is where there is a terminal or life threatening illness, where matters beyond the control of the individual have delayed the decision or resolution of matters or where extension of pay is considered a reasonable adjustment and time is needed to put reasonable adjustments in place. The policy notes that there are no restriction on the circumstances when discretion may be exercised to extend sick pay and matters will be reviewed on 3 monthly intervals, if not sooner.[18]The ill health retirement policy and procedure sets out the process in respect of termination of employment on grounds of ill health retirement, including requests for consideration of early payment of pension benefits under the scheme. The procedure may run in parallel with other management procedure, including capability management. It is the respondent’s responsibility to determine whether an individual’s employment should be considered for termination on medical grounds where no further adjustment can be made and it is not possible to find suitable work to redeploy. The criteria for ill health retirement and/or early payment of pension benefits is that the individual is prevented by ill health from discharging their duties and the ill health is likely to be permanent (that the individual on the balance of probability is not expected to carry out any reasonable alternative job before pension age). Individuals can make the application with medical evidence from occupational health and other professionals being obtained. It is possible for the respondent to commence the process (even if the individual does not consent). The respondents chief medical officer will assess the information and prepare a report with comments permitted from the GP and pension scheme manager.[19]There is also a process whereby an individual subject to certain incapabilities such that they cannot return to work may be entitled to a capability payment, amounting to potentially (in this case) up to £42,000 in this case upon termination of employment. That is subject to other rules. Absence and occupational health meetings[20]Between 11 February 2020 and 11 March 2020 the claimant was on sick leave due to work related stress and anxiety. This had stemmed from allegations in connection with his working environment.[21]On 14 February 2020 the claimant attended an occupational health meeting. The report noted that the claimant had allegations made against him in Summer 2019 by another officer which were found to be unfounded. He found the matter very stressful although he continued to work. He was affected but tried to keep going. The claimant experienced a number of stress related symptoms as he was concerned about the position. He was signed off work with stress and anxiety. He was offered medication by his GP but chose to deal with the symptoms himself. It was considered likely that the symptoms would ease as the investigation ended and the claimant would return to fitness. It was considered that his symptoms were considered to be caused by events at work and allegations from a colleague.[22]In March 2020 the claimant had another occupational health consultation. The claimant had returned to work. He reported that the stress had largely abated and his anxiety levels were in the normal range. The physician considered that the symptoms were caused by events occurring at work and related to previous allegations made against him. Incidents leading to the claim[23]On 1 June 2020 the claimant found an envelope with “UDA No Surrender” written on it in his pigeon hole.[24]On 17 August 2020 the claimant’s wife found a piece of paper with “UDA No Surrender” written on it in his work jacket.[25]On 19 August 2020 the claimant commenced period of sickness absence (because of stress at work) which lasted until 10 October 2020 when the claimant returned to work. Further absence and occupational health sessions[26]On 20 August 2020 the claimant attended another occupational health session. The claimant had self certified with stress at work. He had been attending his GP and undergoing counselling. The consulting physician’s view was that the claimant was likely to return to fitness in the longer term with appropriate support.[27]On 3 September 2020 the claimant attended an occupational health session. The claimant had been experiencing severe stress. Although prognosis was uncertain in the short term, longer term the prognosis was positive. This was also the position at an occupational health session on 16 September 2020. The consulting physician considered that the claimant experienced mild symptoms associated with stress and anxiety resulting from the incident on 17 August 2020. Prognosis would depend upon the support provided.[28]A further occupational session took place on 19 October 2020. The physician noted that when the claimant returns to the workplace, he would not use firearms until matters resolved. The claimant felt more positive about a return to work. The prognosis depended upon the outcome of the support the claimant received. Third incident[29]On 30 June 2021 the claimant found graffiti “FTP” on his mug in the kitchen area at Hunterston. The matter was reported to Police Scotland. On 30 June 2021 the claimant was offered access to the Employment Assistance Programme, which he accepted. On 30 June 2021 the claimant commenced sick leave with work-related stress. He has not returned to work. Further occupational health sessions[30]On 8 July 2021 the claimant attended a further occupational health session. The claimant reported that he was not sleeping, feels fed up, mistrustful, and moody. His anxiety levels were high. The graffiti on the mug incident had led the claimant to experience anxiety. The consulting physician believed that his illness was attributed to an incident at work rather than work activity per se. The claimant stated that he needed the issue (sectarianism) to be resolved and counselling before he could contemplate a return to work.[31]On 3 August 2021 the claimant attended another occupational health session. The claimant had commenced anti anxiety medication and was engaged with counselling. The physician considered that the claimant was significantly affected by the workplace incident that took place in July 2021 and that affected his sleep, concentration and motivation. It was considered likely that the claimant would recover albeit the timescales were uncertain. To reduce the risk of further issues at work addressing the underlying culture and behaviours at work was considered helpful. The consulting physician was of the opinion that with the full resolution of the underlying workplace issues future attendance at work was expected.[32]Between 5 August 2021 and 6 October 2021 equality, diversity and inclusion training took place at Hunterston.[33]On 18 August 2021 a further occupational health session took place at which the claimant continued to be significantly affected by the incident that led to his absence and remained very anxious. This continued at the occupational health session on 9 September 2021 where the claimant experienced low mood and was severely anxious which affected his concentration, motivation and demeanour. It was noted that the claimant would require to show 6 months of stability and be referred to the risk assessment panel before being considered for a return to firearm duties. The incident at work was considered the cause of the illness.[34]On 9 September 2021 the Tribunal claim was presented.[35]On 29 September 2021 the claimant attended another occupational health meeting. He was to be referred for additional psychology therapy following his counselling. The claimant continued to be significantly affected by the sectarian incident that took place at work. While his mood had improved he remained severely anxious. It was hoped that a return to work was likely[36]On 25 October 2021 the claimant attended a further occupational health session having completed counselling. The medication he had been prescribed had not been well received. Psychological therapy was being explored. He had been experiencing severe anxiety and had expressed concerns about returning to his unit. Capability meetings[37]On 1 November 2021 a Stage 1 capability meeting was held with the claimant. This meeting was held to support the claimant in returning to work. The claimant explained that he had been subjected to harassment in the workplace which had impacted upon his mental health. The claimant said that he had been participating in counselling sessions and was exploring CBT. The claimant said that he was hopeful his health would thereafter improve sufficiently to facilitate a return to work. The claimant said that he would like to return to work but at that time could not see how his feelings about returning to Hunterston in relation to trusting personnel at the unit would change but he was willing to engage in trying to address the matter. He said he would consider alternative sites once he was feeling better. The claimant explained that as he was proceeding with a Tribunal he would not be comfortable at Hunterston. He said he would perhaps consider a permanent move (such as to Torness which may be acceptable given its location). The claimant said he wanted to focus on a return to health and then consider a return to work. He did want to return to work but was not able to make a decision at the time.[38]The claimant had stated that going through the Tribunal was stressful as he had to recollect and write about previous events. The claimant was told that he was not to worry about the Tribunal as he was being supported and the respondent would do its very best to support him back into the workplace. The claimant was grateful for that as the worry had added to the effect on his mental health. The claimant’s federation representative noted that a move to another unit (such as Torness) would be a new start and helpful for the claimant’s mindset.[39]On 4 November 2021 the claimant was issued with a letter confirming that an action plan was being issued to assist the claimant with regard to CBT sessions. A further capability meeting would be held thereafter to review progress and assess any further support the claimant needed. CBT commences[40]On 9 December 2021 the claimant commenced the first (of 6) CBT sessions. These were paused during the Tribunal process. Further occupational health sessions and capability meetings[41]On 14 January 2022 the claimant attended another occupational referral. The claimant was considered to be unfit for work experiencing severe anxiety as a result of the incident that took place in Summer 2021. At this stage he was not taking any medication and was receiving psychological therapy. The occupational health physician considered that the claimant remained “significantly affected by events”. He was unfit for work and a review planned for 9 February 2022.[42]On 11 February 2022 a one month extension to sick pay was approved.[43]On 25 February 2022 a second Stage 1 capability meeting was held. The claimant noted that 5 CBT sessions had taken place and more sessions had been sought. The claimant said that further sessions were needed as there had been a number of negative impact factors on his mental health, including the claimant’s financial situation and the legal situation. Another 6 sessions were needed after the initial 6 sessions. The claimant said he was feeling better but it was agreed to pause the CBT while the negative stressors (which included the Tribunal) were ongoing. It was agreed that the action plan and CBT would be paused until after the Tribunal and that 6 additional sessions would be confirmed. The claimant was advised by letter dated 18 March 2022 that the action plan would be paused until completion of the Tribunal after which a new 6 week plan would be issued with a further meeting arranged thereafter. Full sick pay was to be authorised.[44]Between 14 and 21 March 2022 the Liability Hearing took place before the Employment Tribunal[45]On 7 April 2022 the claimant’s full sick pay was extended to 13 May 2022.[46]On 13 April 2022 the Liability Judgment was sent to the parties[47]On 27 April 2022 a third stage 1 capability review meeting was held. The claimant did not attend as the claimant’s police federation representative was attending on his behalf and he did not consider matters to have materially changed. The claimant’s representative stated that 2 of the 6 additional sessions had taken place but the claimant was not able to determine how he felt about returning to work or when he would return or to what as his treatment was ongoing. It was agreed that the existing action plan would remain in place and a further meeting arranged to discuss a possible return to work and see what further support was needed.[48]On 27 May 2022 the respondent approved sick pay extension to 21 June 2022.[49]On 6 June 2022 a fourth stage 1 capability review meeting was held which the claimant attended with his federation representative. The claimant explained that he had 5 of the 6 CBT sessions but symptoms were still the same. He considered at this stage that a return to work was not viable. His anxiety had reduced but his depression had worsened. He would consider a move to another unit, such as Torness, but at that time his mental health was such he would not consider that just now. It was agreed to reconvene on 21 June 2022 to see how the claimant felt. An extension of pay had been agreed to 21 June 2022.[50]On 16 June 2022 a future management of capability case meeting was held where it was noted that the intention was to end stage one at 21 August 2022 and seek a report from a specialist. It had been agreed to extend by 4 weeks to allow a specialist report and engagement with Dr Moss to take place.[51]On 21 June 2022 a fifth stage 1 capability review meeting was held which the claimant attended with his representative. The claimant had one more CBT session left and had spoken to Dr Moss. The claimant was continuing to take his medication and did not consider himself fit to return to work as his mental health had not changed. Dr Moss had advised the claimant that Dr Moss would write to his GP to access NHS resources. It was agreed to extend the action plan to July to allow the sessions to conclude and for the medical report to be received. Stage 2 would be considered if no further action points rose.[52]On 21 June 2022 Dr Moss, the respondent’s consultant clinical psychologist, undertook a telephone assessment of the claimant. His health had not changed,[53]On 28 June 2022 Dr Moss wrote to the claimant’s GP recommending a review of his medication and referral to the Community Mental Health team. He noted that the self reported clinical measures suggested severe generalised anxiety and severe depressed mood. The claimant continued to experience panic attacks and anxiety. CBT had assisted to a degree but the claimant still experienced low mood. His medication ought to be reviewed as no change had been experienced after one month. The community mental health team and psychiatry assessment could assist, and that could be expedited via the NHS, particular as the claimant had formerly been in the armed forces. On 29 June 2022 the attended the last CBT session[55]On 14 July 2022 the claimant’s GP referred the claimant to the Community Mental Health team.[56]On 18 July 2022 the sixth stage 1 capability review meeting was held which the claimant attended with his representative. He explained that his CBT had finished and his therapist had recommended no further sessions, and that the claimant put the strategies that had been discussed into practice. There was no real change as to how the claimant was feeling regarding his stress anxiety and depression and he would progress his medication review with his GP. The claimant did not feel able to return to work at that time. It was agreed that matters would progress to stage 2 in the absence of any other steps at that time. Progress to stage 2 capability[57]On 25 July 2022 the claimant was advised in writing that matters would progress now to a stage 2 capability meeting to discuss the claimant’s status and what support can be offered to facilitate a return to work.[58]On 5 September 2022 a stage 2 capability meeting was held which the claimant attended with his federation representative. The claimant stated that since the conclusion of his CBT he felt his mental health has deteriorated. He had seen his GP and was diagnosed with severe anxiety and depression and had changed his medication. He did not feel able to return to work but his medication would take time to settle. As to other options, the claimant said he did not feel a return to his original site would be safe as he considered it detrimental to his health. He felt a move even to Torness would limit the support network he had. He felt he had lost trust in the respondent with the impact upon his mental health and personal life. The impact of changes to his pay had adversely affected his mental health. The claimant said a 3 month action plan was unlikely to be achievable. He believed the bullying and harassment had affected him. It was noted that a 3 to 6 month wait may provide some stability, with which the claimant agreed, noting, however that would not necessarily affect the trust that he had lost in the respondent. The claimant said he was willing to try returning to work but was concerned he would not feel safe.[59]The claimant was advised that the respondent would allow time for the medication to take effect and explore all options to assist the claimant, including in rebuilding trust. There were options that could be explored, including other roles. The claimant had changed his medication.[60]The claimant’s representative noted that the claimant had a concern that continuing his employment was making his health worse. His representative suggested that the claimant felt his career with the respondent was over and might have to consider applying for ill health retirement but was not sure if he would qualify. The claimant was advised that a return to work in some capacity was one option. Other options included resignation, dismissal on grounds of capability and ill health retirement. The capability process would need to conclude before ill health retirement could be explored. A 3 month action plan would allow time for medication to settle and allow ill health retirement to be considered. The claimant was unsure whether he wished to explore ill health retirement as he hoped to return to work at some stage. Options included capability, resignation, return to work or ill health retirement. The claimant did not want to resign and the claimant was advised that a return to work was being sought, with the respondent being flexible and supportive including rebuilding trust.[61]The claimant appreciated the support that was being offered and suggested time may be needed to allow the medication to settle and he would speak with his GP. A 3 month action plan would allow time to consider if a realistic return was possible, allows the claimant time to explore ill health retirement and other options. The claimant’s half pay extension was to be progressed.[62]On 6 September 2022 Dr Moss undertook an occupational health review with the claimant and his health had not materially changed.[63]On 8 September 2022 a four month half pay extension backdated to June 2022 was approved.[64]On 14 September 2022 the claimant was advised that the outcome of the stage 2 capability meeting was that a three month action plan would be issued with a 6 week review meeting to be arranged.[65]On 17 October 2022 a second stage 2 capability review meeting was held which the claimant attended with his federation representative. It was explained that the purpose of the meeting was to allow the claimant to have more time following his revised medication and to identify progress and to give the claimant time to identify his options, including a return to work, exit via capability or ill health retirement or resignation (albeit the claimant had said he did not wish to resign). The claimant said the only change was his health which had been assessed by the local NHS mental health team, including a discussion with the NHS psychologist panel. There was to be a gradual increase of the claimant’s medication, and he was awaiting his GP to progress that. He had been assigned a 24 hour key worker in respect of his severe anxiety and depression and there had been no change at the moment. Backdating of his pay had reduced his stress and anxiety. He was to be placed on pensionable pay from 13 October 2022 and had requested holidays until any extension had been approved. He was looking forward to working with the mental health team but did not feel he could carry a firearm nor travel to another unit and be away from his support network. An extension of half pay was being explored with a further review meeting to take place in 6 weeks to allow the claimant time to explore his options. The clamant did not wish to apply for ill health retirement as he considered that a “big statement for a victim” and he did not want to exit the organisation. As medication was changing, a further period would be given to allow matters to settle.[66]On 18 October 2022 Dr Moss conducted a further occupational health review with the claimant with no material change in his health noted.[67]On 24 October 2022 the claimant was advised in writing that a further stage 2 capability review meeting would take place in around 6 weeks, with the meeting having been set up for 5 December 2022. Claimant’s GP’s view[68]On 16 November 2022 the claimant’s GP provided a statement saying as follows: “The [claimant] has been having significant problems with anxiety and depression. These matters first came to our attention in February 2020 when he saw one of my colleagues and advised he had been suffering from stress at work for around 6 months with work related issues. It would seem the situation possibly improved between February and then around August 2020 there was a recurrence with the patient being seen by another of my colleagues on 21 August 2020… He felt he was unable to return to work and was certified off work until 16 October 2020. In July 2021 I spoke with him on the phone when he advised the work related stress had significantly flared up again and this has continued until the present time. He has been medically managed with appropriate treatments since July 2021 and currently is on Sertraline, an anti depressant and Pericyazine, a treatment for anxiety. There is no past history of mental health issues prior to these occurrences.”[69]Also on 16 November the claimant was advised by a specialist NHS occupational therapist that the claimant’s mental health assessment that had taken place on 8 September 2022 with the claimant had led to the claimant being given a key worker and it being recommended that the claimant speak with his GP to increase his medication.[70]The claimant found the financial position stressful and the discussion as to the changes in his pay, and the uncertainty in not knowing if the applications to exercise discretion would be granted, contributed to the claimant’s anxiety.[71]The Remedy Hearing took place on 21 and 22 November 2022. Earnings[72]In his current role the claimant earns a basic gross monthly salary of £3,544,75 (with net pay being £2,826.84). He would work overtime earning an additional £300 to £500 but there could be months where no overtime was payable. The pension contribution lost each month the claimant is absent amounted to around £300.[73]From June 2021 until June 2022 the claimant received his full salary. From June 2022 until October 2022 the claimant secured half pay. Back pay applications would be backdated if approved.[74]The claimant had accrued annual leave which enabled him to remain on half pay until 29 November 2022. Once annual leave is exhausted, the claimant’s sick pay will reduce to pension rate pay of £969.51.[75]The respondent operated a retention bonus scheme each year. This was paid to the claimant in 2021 in the sum of £3,000. The claimant has not received the bonus in 2022 but there was no evidence as to the reason why, nor in relation to other individuals (who also did not get the bonus). The position in respect of the claimant (and others) is under review and to be determined. There was no reason why the sum would not be paid to the claimant following the review. Summary of medical position[76]The claimant had been regularly managed via the respondent’s occupational health support team together with the respondent’s specialist clinical psychologist (who is also the strategic lead for mental health in the respondent). The psychologist had agreed to fund psychological treatment for the claimant. During the reviews by the psychologist the claimant’s health had not materially improved (which was the position by October 2022). He found the lack of improvement in the claimant’s mental health “puzzling”. In addition to the final graffiti incident (which contributed to the claimant’s illness) other potential contributing causes could be the litigation process itself (and the requirement to relive the behaviours) and the impact of previous periods of absence (and the situations that led to such absences). He stated that it was possible that the claimant has enduring and intractable issues with mood disorder. He believed that it is a reasonable assumption that the claimant would recover with time and treatment but the timescales are unknown. Future position[77]The claimant does not believe his mental health issues will be lifelong and expects a recovery and return to full health at some point. The claimant does not know when. He accepted that he is unlikely to be able to return to operational firearms duties in the short to medium term. His present desire is to return to work as a police officer. He finds the thoughts of redeployment to cause him anxiety and adversely affect his health.[78]The respondent had taken steps following the final incident to address the culture and approach that had existed prior to the claimant going absent. Training had been introduced which appeared to be successful with no further sectarian incidents arising.[79]The claimant becomes stressed when considering a return to his unit. He is fearful and anxious. At the moment he is unable to contemplate a return to any role for the respondent. He believes it is not a safe environment for him and is paranoid about suffering more harassment.[80]The respondent will continue to manage the claimant and seek to assist the claimant in securing some form of return to work, including looking at alternative roles. Alternative roles[81]It is common for vacancies to arise in the respondent, across their organisation. Such roles can include non firearm responsibilities, including project work (assisting the unit commander with required tasks) or in other roles in other sites. Training roles can also become available.[82]In the event of a firearms officer not being able to return to firearm duties the respondent’s approach is to exhaustively consider alternatives (which can take months, if not years to conclude). Their experience in securing alternatives, and avoiding dismissal, is excellent. Officers who are unable to return to firearm duties would be referred to a risk assessment panel for consideration which could result in a permanent restriction being offered. Thereafter the individual would be referred to a redeployment panel to consider other roles. Often roles are ringfenced to allow officers who require to be redeployed to be considered. Vacancies can also arise in learning and development and professional standards teams.[83]Ms Ferguson (HR Business Partner for the respondent) has experience in managing absence and long term absence and in dealing with redeployment situations. She had over 25 years experience as a senior HR professional. She has handled over 120 cases of redeployment and there were only 4 of those situations where a role was not found and dismissal was the outcome. The remaining 116 cases resulted in successful redeployment. The respondent seeks to work with individuals to secure a positive outcome, exhaustively looking at all options prior to dismissal. In her experience and view it is extremely unlikely that there would not be other roles available when the claimant is fit to return to work in light of the size of the respondent and vacancies that arise and are likely to arise.[84]If a role was not suitable ill health retirement would be explored failing which capability dismissal (with a potential capability exit payment). Each case is dealt with on its merits and there have been situations of long term absence lasting 2 years. All the available options are exhaustively considered prior to dismissal. It is possible to return an officer to full pay if the reason for a delay is in seeking an alternative role. Risk assessment panels meet monthly (or bimonthly) with redeployment panels meeting quarterly or sooner if required.[85]Once a recommendation for dismissal on grounds of capability is made, following a stage 2 capability management meeting, the matter is referred to the Head of HR who then considers whether there are no alternatives and all options have been exhausted which would include reviewing the redeployment position and ill health retirement and whether a capability payment should be sought. Causes of absence[86]The claimant first suffered work related stress around Summer 2019. He was then absent from work for around a month in early 2020 (prior to the issues that led to the Tribunal claim which took place on 1 June 2020, 17 August 2020 and 30 June 2021). The claimant was also absent by reason of sickness from August to October 2020 (which was as a result of the second incident in August 2020). The issues the claimant suffered which led to these absences had an impact upon the claimant’s mental health.[87]The final incident (the graffiti on the claimant’s cup) caused the claimant to become stressed and anxious. He became paranoid and upset. The stress and anxiety remain present. The claimant’s sleep was affected and he experienced panic attacks. The claimant has a sense of failure and low mood. The claimant has been prescribed different medication and the claimant hopes this will settle the symptoms he experiences. The key worker provided to the claimant and support from the NHS are providing the claimant with positive support mechanisms and will assist the claimant in his recovery.[88]The unlawful act was an important cause of the absence from 30 June 2021 and the adverse impact on the claimant’s mental health. The previous acts and behaviour the claimant faced also amounted to material causes of the claimant’s absence from 30 June 2021 and adverse impact upon his mental health. The Tribunal finds that the unlawful act was 70% responsible for the impact upon the claimant with the other causes 30%. The other causes include the prior 2 incidents together with the other matters that were affecting the claimant as set out above.[89]The providers of the CBT provided a report to the respondent and opined that the claimant was “feeling anxious and stressed due to ongoing issues within the workplace for a number of years … Gradual build up of symptoms which have worsened since June 2021”. In other words, it was clear that the claimant’s final absence was not solely caused by the third act but the third act was a cause alongside the other acts which had a significant impact upon the claimant. In assessing this, the Tribunal has carefully assessed the evidence. It was regrettable that there was no specialist medical evidence presented to assist the Tribunal on this key issue. The occupational health reports and the GP’s view are of limited value given their context. In reaching the decision the Tribunal assessed the evidence and considered what the reasons for his absence following the third incident were. Although that was a proximate cause, in the sense of the final straw, it was possible the claimant may have gone off work in any event absent the incident as a result of the effect of the previous incidents, which had a lasting impact upon the claimant.[90]The unlawful act was 70% responsible for the latest absence. Next steps[91]The next stage 2 meeting was to take place on 5 December 2022. The claimant finds the uncertainty around his continued employment stressful. He believes he will be dismissed and that considerably affects his anxiety and depression.[92]The claimant did not presently consider that he could move far away from his support unit which is based in Inverclyde.[93]The claimant’s normal place of work (near Inverclyde) is scheduled to close in 2025 (at which point, if he were able and willing) he would be able to work elsewhere for the respondent.[94]The claimant’s health had not changed materially and is unlikely to change prior to the meeting of 5 December 2022. It is likely that further time would be given to the claimant given the prevailing circumstances, namely the completion of the Tribunal process and the changes to the claimant’s medication (with the respondent working with the claimant to rebuild the relationship). It is likely that the claimant’s health would improve thereafter as the Tribunal process has a negative impact upon the claimant (and his being required to relive the behaviours that led to it: see paragraph 37 above). The claimant’s medication also requires time to settle to ensure the correct medication is identified, which should assist the claimant alongside the other support measures now in place. The improvement to the claimant’s health will also be facilitated by the fact the respondent has taken steps to deal with the issues that led to the behaviour the claimant faced that caused him to be absent.[95]It is virtually certain that the claimant will be given a further 9 month period to assess his next steps to determine whether he is able to consider a return to work in some capacity, including at a different unit (on a phased basis) and that by the end of that period the claimant would return to work.[96]It is unlikely that the claimant would seek (or that the respondent would seek) ill health retirement given the claimant’s health is likely to improve such that the claimant will be fit to return to work in some capacity.[97]It is virtually certain that the claimant would be fit to return to work in around 9 months, as a result of his medication settling, the Tribunal process completing, the respondent working with the claimant to rebuild trust (and show the claimant the change in culture) and his support mechanisms assisting him. It is highly unlikely he would be dismissed.[98]In the event the claimant is dismissed by reason of capability, a capability exit payment of around £42,000 would be secured by the claimant.[99]Given the claimant is likely to return to work in some capacity the claimant would not be entitled to ill health retirement (and he would not seek this). Future work[100]The claimant had given some thought to alternative roles but had not progressed matters beyond initial thoughts. He believed that it would not be possible to transfer into Police Scotland (as they are distinct bodies) but his skills and experience as Sergeant would undoubtedly be attractive and would likely allow the claimant to be successful in such a role. While the approach is different, the skills and experience the claimant acquired as a Sergeant and operational firearms commander with the respondent are transferrable and attractive to that organisation. The claimant would progress through that organisation quickly. It is highly likely the claimant would achieve a similar status to that he currently has within a 4 to 5 year period at most.[101]The first year salary for a police officer would be £28,074 rising to £33,019 and then in year 2 £34,991 and £36,069.[102]The claimant also considered security. To carry out such roles the claimant would require to undergo retraining. Income levels would be less than his current role. Observations on the evidence[103]There were no real factual disputes that the Tribunal required to resolve and each witness did their best to give evidence in a truthful and candid way. The issue for the Tribunal was assessing what might happen which it did from the evidence presented. As explained below the assessment the Tribunal requires to undertake was not assisted by the production of relevant independent medical expert evidence. That resulted in the Tribunal having to make assessments on the basis of the limited and vague evidence it had, using its experience as an industrial jury in light of the context and the evidence heard.
Law
[104]Section 124 of the Equality Act 2010 deals with compensation as a remedy for unlawful discrimination and states:(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation. (6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or the sheriff under section 119…….[105]Section 119 states: (3) The sheriff has the power to make any order which could be made by the Court of Session –(a) in proceedings for reparation(b) on a petition for judicial review. (4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis)…..”[106]In considering remedy the Tribunal should consider pecuniary and non pecuniary loss. This amounts to past and future loss (of money) and an award for injury to feelings. Injury to feelings[107]Three bands were set out for injury to feelings in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 in which the Court of Appeal gave guidance on the level of award that may be made noting that the award is compensating subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief and humiliation. The three bands were referred to as being lower, middle and upper, with the following explanation: “i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.”[108]In De Souza v Vinci Construction (UK) Ltd [2017] IRLR 844, the Court of Appeal suggested that it might be helpful for guidance to be provided by the Presidents as to how any inflationary uplift should be calculated in future cases. The Presidents of the Employment Tribunals in England and Wales and in Scotland thereafter issued joint Presidential Guidance updating the Vento bands for awards for injury to feelings, which is regularly updated. In respect of claims presented on or after 6 April 2021, the Vento bands include a lower band of £900 to £9,100, a middle band of £9,100 to £27,400 and a higher band of £27,400 to £45,600.[109]The higher band applies to “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment”, the middle band “for serious cases which do not merit an award in the highest band” and the lower band “for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”.[110]General principles that apply to assessing injury to feelings awards were given in Prison Service v Johnson 1997 IRLR 162 where it was noted that such awards are compensatory and should be just to both parties. They should compensate fully but not punish any party. Awards should not be too low to diminish the policy of the legislation. Awards should have some broad general similarity to the range of personal injury awards and Tribunal should d take into account the value in everyday life of the sums in question and the need for public respect for such awards.[111]In terms of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (made pursuant to section 139(1) of the Equality Act 2010) interest is simple and accrues from day to day. The judicial rate (fixed per the Sheriff Courts (Scotland) Extracts Act 1892) is presently 8%. Interest on an award for injury to feelings is awarded from the date of the act of discrimination until the date of calculation (Regulation 6(1)(a)). Pecuniary loss[112]In assessing compensation, the loss must be attributable to the specific act that has been held to constitute discrimination, and not to other acts (whether potentially discriminatory or not). Where loss has been caused by a combination of factors, including some which are not the unlawful discrimination complained of, the compensation awarded can be discounted by such percentage as reflects the appointment of that responsibility: see Thaine v LSE [2010] ICR 1422; and Olayemi v Athena Medical Centre [2016] ICR 1074. The Tribunal should, however, focus not on the divisibility of the causative contribution but on the divisibility of the harm, see Underhill LJ in BAE Systems (Operations) Ltd v Konczak [2017] IRLR 893: 'the question is whether the tribunal can identify, however broadly, a particular part of the suffering which is due to the wrong'. The Tribunal is thus trying to identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer's wrong and a part which is not so caused (for whatever reason).[113]In Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (No 2) C-271/91 [1993] IRLR 445 it was stated that the effect that compensation must enable the loss actually sustained to be made good in full. The ordinary principles of causation and qualification of damages in reparation in delict apply.[114]Harvey on Industrial Relations and Employment Law at paragraph 852 of Volume L provide a summary of the guiding principles which underpin the approach to compensation for all forms of unlawful discrimination. These include the following: — The measure of damages is the same as it would be before an ordinary court; — There is no upper limit on the amount of compensation that can be awarded; — Whether there are multiple claims or simply different heads of loss in one claim of unlawful discrimination, there should be no double recovery in the compensation awarded for loss suffered; — The Tribunal is not obliged to make an order for compensation if it does not consider it just and equitable to do so; but, having decided to make such an order, it must adopt the usual measure of damages: there is no jurisdiction to award only such as the Tribunal considers just and equitable in the circumstances (Hurley v Mustoe (No 2) [1983] ICR 422). — In effect, the claimant is to be put into the financial position they would have been but for the unlawful conduct of the employer (Ministry of Defence v Cannock [1994] IRLR 509). — Unlike the approach in reparation, however, there is no requirement that the loss suffered be 'reasonably foreseeable'; compensation can be awarded in respect of all harm that arises naturally and directly from the act of discrimination, at least in cases where the discrimination was deliberate and overt (Essa v Laing [2004] IRLR 313 and Abbey National plc and Hopkins v Chagger [2009] IRLR 86. — In calculating compensation according to ordinary delictual principles the Tribunal must take into account the chance that the respondent might have caused the same damage lawfully if it had not done so on discriminatory grounds. (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25).[115]The issue to be decided is not which is just and equitable to award but what figure compensates the claimant for the losses suffered that flow from the unlawful act, assessing the sum in the same way as damages for a delict (Hurley v Mustoe (No 2) [1983] ICR 422).[116]Compensation should be awarded on the basis that 'as best as money can do it, the claimant must be put into the position she would have been in but for the unlawful conduct of [her employer]' (Ministry of Defence v Cannock [1994] IRLR 509).[117]In assessing loss the Tribunal should ensure the total award of compensation is just and appropriate. In Ministry of Defence v Cannock [1994] IRLR 509.[118]In assessing the chances of matters happening in the future the Tribunal must base its decision on a realistic view of the future with reasons being given. Thus in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 the Tribunal was entitled to calculate loss of earnings on the basis that the claimant would have enjoyed a period of service of 21 years, retiring at age 55. The Tribunal was entitled to reach such a conclusion notwithstanding statistical evidence which showed that only 9% of women who had left the Force had served for more than 18 years. The situation of the claimant was different from most – she could not have any more children, and the reason why most women left the force was to have children. Also, the statistics related to past practice, and 'family friendly' employment policies indicated that these would make it more likely women would stay on. The award could not be attacked as perverse.[119]The 'eggshell skull' principle of the law of delict applies in cases of unlawful discrimination: a discriminator must take their victim as they are. That means that the wrong-doer takes the risk that the wronged may be very much affected by an act of sexual harassment, say, by reason of their own character and psychological temperament. Provided the losses claimed can be shown to be causally linked with the unlawful act, the respondent must meet them.[120]It is enough to show a causal link between the unlawful act and injury on the part of the victim and the test of reasonable foreseeability is not applicable to limit the wrongdoer's liability: Essa v Laing Ltd [2004] IRLR 313.[121]In assessing the financial loss sustained as a result of the unlawful act, the Tribunal should consider losses sustained to date (past loss) and assess the position in the future. Past loss[122]Past loss is that suffered by the claimant from the date of the discriminatory act to the date of assessment and may include full or partial loss of earnings (including any overtime), to be assessed net of tax, and also other benefits associated with the employment. Credit must be given for sums received by the claimant by way of mitigation of their losses Compensation may be decreased here not only by such sums as the claimant has actually received but also by such amount as that the claimant could reasonably have expected to receive had they taken all reasonable steps to mitigate their loss.[123]In assessing loss, consideration should be given to the possibility that the discriminatory act might not have been the only causative factor. As confirmed in Abbey National plc and Hopkins v Chagger [2009] IRLR 86 the general rule in assessing compensation is that damages are to place the claimant into the position they would have been in if the wrong had not been sustained.[124]In Wardle v Credit Agricole Corporate and Investment Bank [2011] IRLR 604 the Court of Appeal stated that if it is at least possible to conclude that the employee will, in time, find an equivalently remunerated job (which will be so in the vast majority of cases), loss should be assessed only up to the point where the employee would be likely to obtain an equivalent job, rather than on a career-long basis, and awarding damages until the point when the Tribunal is sure that the claimant would find an equivalent job is the wrong approach Future loss[125]In assessing future loss, the Tribunal has to make decisions about the chances that employment would have continued had the discrimination not taken place. It is important that this is done by reference to calculating the percentage probabilities, and not on a simple balance of probabilities. That approach was endorsed by the CA in Vento v Chief Constable of West Yorkshire Police (No 2) Ibid (see per Mummery LJ at [32]–[33]).[126]In Newsome v Sunderland City Council EAT/36/02 the claimant was held to have suffered unlawful discrimination when her employers failed to make reasonable adjustments and she was forced to take ill-health retirement at the age of 48. Compensation was based on the Tribunal's finding that she would (on the balance of probabilities) have remained in the employment until 65. The Employment Appeal Tribunal held that approach was fundamentally wrong as the Tribunal should have made an assessment of the chance she had of remaining in service until 65.[127]In Taylor v Dumfries and Galloway Citizens Advice Services (2004 Scot (D) 10/4) the Court of Session held in principle in discrimination cases it could be appropriate to assessed find there was a 10% chance that, but for the unlawful act, the employee would have retained his employment provided reasons are given for adopting such a figure.[128]The Employment Appeal Tribunal confirmed in Ministry of Defence v Cannock [1994] IRLR 509that it was wrong to assess loss in a situation where there had been a dismissal on grounds of pregnancy on the basis of what would have happened (judged on a balance of probabilities) had she not suffered unlawful discrimination. Instead, the calculation of loss should be dealt with as the evaluation of the loss of a chance. Interest on financial sums[129]Interest is awarded on financial losses as per the Employment Tribunal (Interest on Awards in Discrimination Cases) Regulations 1996 SI 1996/2803. Regulation 2(1) requires Tribunals to consider whether to award interest on compensation in discrimination cases. The interest is to be calculated as simple interest, which accrues daily at the rate fixed by section 9 of the Sheriff Courts (Scotland) Extracts Act 1892 (regulation 3(2)) which is currently 8 per cent.[130]Interest is awarded from the half way point between the date of the discriminatory act and the date of calculation.[131]The Tribunal retains a discretion, however, to award interest or not to do so and to calculate interest as it considers appropriate, having regard to whether, in any particular case, a 'serious injustice' would be caused if interest were to be awarded (regulation 6(3)). Taxation[132]The rules to be applied are those imported from the law of delict. The claimant is to be awarded the sum of money that will put them in the same position as they would have been in had the unlawful act not occurred which means that income tax should be taken into account in assessing damages for either actual or prospective loss of earnings.[133]Compensation for loss of income will need to be calculated on a net basis. For awards exceeding £30,000 the award is likely to be taxed in terms of the Income Tax (Earnings and Pensions) Act 2003 (see sections 401 and 403) and so the award should be 'grossed up' so that the claimant is not in a worse position (by effectively having paid tax twice on the same sum) after receiving the award. That is often called the Gourley principle.[134]The issue of how tax affects compensation for discrimination was expressly considered by the Employment Appeal Tribunal in Yorkshire Housing v Cuerden [2010] All ER (D) 52 (Sep), where the following guidance was given for the assessment of compensation for discrimination in which the Gourley principle would apply: 'injury to feelings and personal injury awards that related to an employer's discriminatory conduct pre-dating the termination of employment (in that case, a failure to make reasonable adjustments), are not termination payments and are therefore not taxable and, hence, not subject to grossing up; an award of compensation for loss of pension rights on termination of employment is not a payment to a beneficiary out of a pension scheme falling under section 407 ITEPA 2003 and therefore should not be grossed up.'[135]Compensation for injury to feelings counts towards the £30,000 and will be taxable to the extent that it exceeds this sum unless the compensation is for injury to feelings perpetrated during employment in which case it does not fall to be taxed either as an emolument of employment or as a termination payment under section 403. Submissions[136]Both agents had prepared detailed written submissions and had the opportunity to consider and comment upon each other’s submissions. Both agents were also able to address the Tribunal in relation to the key issues and answer relevant questions. The submissions were taken into account by the Tribunal in reaching its decision. The Tribunal breaks the matter down in the stages submitted by the parties, looking at causation, injury to feelings, past and future loss and pension loss. Claimant’s submission on causation[137]It was the claimant’s position that his losses arose from the third incident of harassment for which the respondent was liable. The claimant’s role was inherently stressful and previous absence and stress was not relevant to the current absence. It was submitted that there was no medical evidence to suggest that the claimant’s current absence has been caused by anything other than the third incident. Dr Moss conceded he did not know if there was a link but the occupational health physician was of the view that the absence was caused by the third incident. The Tribunal should only find that the Claimant’s current absence and mental health issues have been caused by the third incident, there is no evidence to the contrary[138]It was submitted that there was no basis to find that the Tribunal proceedings contributed to the claimant’s ill health and it was argued it was fanciful to suggest that upon receipt of the remedy hearing judgement the claimant will be “cured” of his mental health issues. Respondent’s submission on causation[139]Senior counsel for the respondent noted there was a fundamental disagreement of principle between the parties as to the basis on which compensation should be approached in this case. The claimant remains in the respondent’s employment. He has not been dismissed. He may well return to work and continue to work for the respondent in the long term. In these circumstances, it was submitted that there is on any view no basis for calculating compensation on the basis that the claimant has been or even is likely to be dismissed. This is because: — The present claim included no claim in respect of discriminatory dismissal, nor could it; — The claimant might have resigned and claimed constructive discriminatory dismissal, but has chosen not to do so; — The claimant remains in employment and there is no basis for assuming that his dismissal is inevitable or imminent. Once the Tribunal proceedings have concluded, there is every prospect that he will in due course return to work; — There is a long way to go under the respondent’s procedures before the claimant would approach dismissal. The stage 2 capability meetings are ongoing, with an Action Plan in place. If the claimant’s health improves, he has indicated that he is willing to consider a transfer to another site. Even if stage 2 of the capability procedure is not effective in assisting the claimant’s return to work, he would be subject to a Risk Assessment Panel and then a Redeployment Panel before dismissal. The Redeployment Panel has proved effective in other cases in securing officers’ return to work when they are no longer able to undertake firearm duties on medical grounds.[140]Senior counsel submitted that “most fundamentally, the Tribunal is being invited to engage in unrealistic speculation by the claimant by anticipating his supposedly imminent dismissal.” It was argued that the respondent was doing all it can in supporting the claimant in his return to work and is adopting a thorough and patient approach. The completion of the Tribunal process will no doubt remove a major stressor. There is no reason to assume that the claimant’s health will not improve in due course.[141]Senior counsel for the respondent argued that there were a series of events that took their toll upon the claimant and cumulatively led to him being off work. In other words the third act (the unlawful act) was not the only cause of the losses relied upon. Senior counsel used the analogy of felling a tree and there being 3 strikes. Each strike contributed to the fall of the tree and it would be wrong to say only the third strike caused the tree to fall. Had the first 2 acts being found unlawful but not the third, it would have been open to the claimant to say that but for the first 2 acts the third incident would not have had the impact that it did and so the loss after the third act is causally attributable to the first 2. That shows the one cannot artificially extract one of series events in assessing causation. The law requires consideration to be given to all causes of the loss and compensation is only due in respect of the losses caused (to the extent they were contributed by) the unlawful act. The Tribunal requires to make an assessment as to the extent to which the unlawful act contributed to the losses Decision on causation[142]This was not an easy issue to determine. The evidence before the Tribunal was very limited in this regard. There was no medical specialist who had examined the claimant and considered the position from a medical perspective with a view to assessing the prospects of his return to work or specifically to deal with the issues the Tribunal requires to determine.[143]The evidence the Tribunal had was from those who are examining and managing the claimant for the purposes of his ongoing employment or his GP (from a general perspective). It is unfortunate that the parties had not agreed a joint instruction of an appropriate and independent medical expert to assess the position and provide the Tribunal with an informed position in relation to the specific issues facing the Tribunal given the fundamental dispute in this case and the value of the sums in question. The Tribunal can only proceed with the evidence presented to it.[144]The first and second incidents occurred on 1 June and 17 August 2020. The claimant had a period of work related stress the preceding year and his GP confirmed that the claimant had managed mental health issues prior to the incidents in question. Those issues do not, however, by themselves support the argument that the absence following the third act (the unlawful act) are causes of the later absence.[145]The Tribunal did not consider the occupational health evidence (which was provided in written form only) to be determinative of the issue. It was not surprising in assessing the claimant following the third incident, immediately after which he is unable to work, to consider that the third act caused the absence. That equally by itself does not mean that earlier acts had no causal connection with the absence. The only medical specialist who gave evidence, Dr Moss, was of the view that it was possible earlier acts could have contributed to the claimant’s mental health that led to him being absent after the final act but given he was not involved at the time and was not consulted about that matter specifically, he was unable to say.[146]The Tribunal considered whether it was appropriate to delay determination until the parties had been given the chance of agreeing the referral of the claimant to an independent medical expert and to allow such evidence to be considered by both parties with submissions being made. We decided against this approach on the basis that both parties were legally represented by specialist employment lawyers and both parties had chosen to close their case on the basis of the information presented, knowing the medical information was limited and knowing the disputes in this case. It was also entirely possible that an independent medical expert reviewing matters may be in no better position to assess matters that the individuals who had already managed the issues the claimant encountered.[147]The Tribunal is therefore left with the challenging situation of there being no specialist medical evidence to guide the Tribunal in this key question. The Tribunal has considered the evidence that was led carefully. It is important in assessing this issue that the Tribunal considers the correct question. In applying delictual principles the wrongdoer must take the victim as they find him (which includes their mental and physical health). That is a different question, however, of assessing whether previous acts (whether discriminatory or otherwise) caused the loss relied upon or whether it was only the unlawful act that caused the loss. This is an important distinction.[148]The claimant was in a stressful role. He was a strong performer. It is common for individual employees to suffer stress and on occasion require periods away from work to recover. The claimant’s role was inherently stressful. He is an intelligent and capable individual. The previous work issues had an impact upon the claimant and had affected his mental health.[149]The earlier 2 incidents to which the claimant was subject had a material impact upon the claimant’s mental health. The evidence before the Tribunal was that these incidents had materially affected the claimant’s mental health. He did his best to maintain his resolve and continue working and sought to return to work, particularly following the second incident. There was a period of time between the second incident and third incident during which the claimant was able to return to work. When the third incident occurred, the effect upon the claimant’s mental health was serious. That was occasioned not just because of the third incident but also because the earlier incidents and the conduct (at work) to which the claimant had been subject. The third incident was not the only cause of the claimant’s absence on the facts.[150]In the absence of medical evidence on this issue the Tribunal can only do the best it can from the evidence presented to assess this issue. From the evidence presented the Tribunal finds that the unlawful act had a material bearing upon the claimant’s mental health but that such an act was not 100% the cause. From the evidence presented to both the liability and remedy hearing the Tribunal concludes that the unlawful act was 70% of the cause of the impact upon the claimant’s mental health that led to the losses relied upon (including his absence). In other words the Tribunal finds that there were other causes of the losses relied upon that were not unlawful and those causes contributed to the loss by a proportion of 30%, being careful to assess the cause of the claimant’s absence (and losses).[151]The other material factors which had an impact upon the losses sustained by the claimant were the 2 previous acts of harassment (which were not found to be unlawful). Those factors had a significant impact upon the claimant at the time. They were not, however, factors that disappeared from the claimant’s mind and were factors which, when taken together, materially and adversely affected the claimant’s mental health and caused the claimant’s absence following the third incident. The claimant noted his mood has been affected. The earlier acts were, in part, causes of the final absence.[152]Had the third act happened without the previous 2 incidents it is highly likely that the claimant’s mental health would not have been affected in the same way and his attendance at work may have been preserved. It is possible the claimant may still have gone off work when he did even if the third act had not happened as a consequence of the impact of the previous behaviours and the claimant’s mental health and surrounding factors.[153]The context of the acts and impact of the behaviour to which the claimant was subject caused the losses relied upon to an appreciable extent.[154]The Tribunal therefore concluded that the unlawful act (the unlawful harassment) caused the losses relied upon to the proportion of 70%, from its assessment of the facts and applying the legal test set out above. The unlawful act was not the sole cause of the losses. Claimant’s submissions on injury to feelings[155]The claimant’s agent argued the award made should be at the upper end of the middle Vento band. At paragraph 312 of the liability judgement the Tribunal concluded that “following the second incident the respondent was essentially on notice that a person or persons wished to offend the claimant with particular reference to his religion”. The respondent was on notice that the claimant had been the victim of harassment. The respondent had seen how the previous incidents had affected the Claimant, he had gone off sick with work related stress as a result. Thus, when it eventually came to the third incident, for which the Tribunal has found the respondent liable, the respondent ought to have the previous incidents in its contemplation and where it failed to manage the situation appropriately, they should be liable to the full extent of the third incident.[156]Just because an act of discrimination may be one off is not determinative nor provide the full picture as the Vento guidance is not a straightjacket. The question for the Tribunal is always what the particular effect on the individual complainant was.[157]In this claim the impact on the claimant has been severe. The claimant’s evidence in respect of the effects third incident had was compelling. It was submitted that the claimant has been off work for 16 months as a direct result of the third incident and has reported scores of severe anxiety and depression. He has undergone CBT and has now been assigned a mental health key worker. He experiences panic attacks and is now in receipt of medication to manage his mental health.[158]The effect on the claimant has been profound it has lasted for now 16 months and that effect is continuing, this is an exceptional case. Therefore an award at the top end of the middle Vento band would be appropriate. Respondent’s submissions on injury to feelings[159]Senior counsel for the respondent argued the award must be confined to the injury to feelings which arose specifically from the single incident of harassment. For the purposes of determining injury to feelings, historic events relating to sectarianism and difficult relationships at Hunterston must be left out of account. Similarly, the impact of the first two incidents must be left wholly out of account even although they plainly caused the claimant distress. The third incident must, for present purposes, be treated as a one off incident.[160]It was submitted that this is a case “close to the margin”. The Tribunal essentially found that the only reasons why the statutory defence was not made out in relation to the third incident were that the respondent implemented its bespoke training after about a year, when it would have been reasonable to do so within six months; and the respondent did not undertake its own independent investigation into the third incident at the time, relying instead on the Police Scotland investigation.[161]Far from being a case where management were involved or implicated in the discrimination, in this case it would appear that the incident was perpetrated by a rogue employee, whom it has not been possible to identify.[162]Far from condoning the discrimination, or displaying a complacent attitude, the respondent and its management have made it clear throughout that such harassment is wholly unacceptable and have been diligent in taking steps to prevent and mitigate such harassment (albeit, as the Tribunal found, not sufficiently to make out the statutory defence to the third incident).[163]For all these reasons, it was submitted that the third incident should be treated as a one off incident, albeit a serious one, in respect of which injury to feelings should be awarded at the higher end of the lower Vento band. The respondent suggested an award of £8,000. Decision on injury to feelings[164]The purpose of an award for injury to feelings is to compensate the claimant for the effect of the unlawful treatment. It is a compensatory award not a punitive award. In other words, the Tribunal must be careful to ensure the sum awarded properly compensate the claimant in respect of the impact the unlawful treatment had. The focus is therefore on the consequences of the unlawful act upon the claimant, assessing the actual injury suffered by the claimant and not the gravity of the acts of the respondent.[165]The effect of the third act of harassment was significant and substantial for the claimant. He has been absent from work for over 16 months and his mental health had been adversely affected. The Tribunal must consider the injury to the claimant following upon the unlawful act only.[166]The Tribunal is satisfied that this is a case which merits compensation for injury to feelings in the middle band. The Tribunal did not consider this to be a less serious case. This was a one off act of unlawful harassment but the impact of the harassment was severe. It is important that the sum awarded is not so low so as to diminish respect for anti discrimination legislation while avoiding excessive awards. There requires to be a degree of similarity to awards in personal injury cases bearing in mind the need for pubic respect for awards of this nature.[167]The effect upon the claimant’s mental health was serious. His mental health was affected with anxiety and depression a result.[168]Having considered the evidence before the Tribunal the Tribunal considers it fair and just to make an award in the lower end of the middle band in respect of the impact of all the acts upon the claimant in the sum of £20,000 in respect of the injury to feelings sustained by the claimant consequent upon the cumulative effect of the acts upon the claimant (which included the unlawful act).[169]The effect upon the claimant (and the injury to feelings) was not, however, 100% caused by the unlawful act. The impact upon the claimant was caused as a result of each of the causes found by the Tribunal from the facts. Having carefully assessed the evidence and context, the Tribunal found that the unlawful act was 70% to blame for the loss that was caused, which includes the injury to feelings sustained by the claimant, from the evidence before the Tribunal. The award in respect of injury to feelings flowing from the unlawful act is therefore £14,000.[170]Having taken a step back and assessed the impact of the unlawful act upon the claimant, £14,000 is a just and fair value in respect of the non-pecuniary loss sustained by the claimant flowing from the unlawful act.[171]Interest is awarded from the date of the discriminatory act to the date of calculation.[172]The act occurred on 30 June 2021 which is 519 days. Interest is at 8% and is therefore 519 x 0.08 x 1/365 x £14,000 which is £1,592.55. Claimant’s submissions on past loss[173]The claimant’s agent argued that the claimant should be compensated for the sums he would have received had he not been absent on sick leave since June 2021. The sum sought in respect of this is £8,669.47.[174]The claimant also sought a sum in respect of a retention bonus which the claimant received last year. It was submitted that this year’s retention bonus of £2,000 had already been paid to other officers.[175]Past losses should be compensated in full. His absence has not been caused by a multitude of factors; it was 100% caused by the third incident of June 2021 alone. Occupational health assessments confirmed this. Respondent’s submissions on past loss[176]Senior counsel for the respondent submitted that it would be wrong in principle to attribute all past loss to the act of discrimination. In reality, there would appear to have been a number of other causes of the claimant’s ill health:(a) events prior to the incidents (which led the claimant to be off sick with stress and anxiety from 11 February 2020 to 11 March 2020;(b) the effect of the first and second incidents (which led to the claimant being off sick with stress and anxiety from 19 August 2020 to 10 October 2020. Dr Moss noted that the Claimant may have enduring and intractable issues with mood disorder.[177]Senior counsel also noted that the CBT providers recorded that “Client feeling anxious and stressed due to ongoing issues within the workplace for a number of years … Gradual build up of symptoms which have worsened since June 2021”. It is submitted that this accurately reflects the true position. The Claimant’s mental health had been deteriorating for some time, first as result of incidents which pre-dated the harassment, and then as a result of the first and second incidents, for which the respondent is not liable. This is consistent with the claimant’s GP letter of 16 November 2022, which confirms that the claimant first went to see his GP with mental health issues in February 2020 (before any of the incidents), by which time he had already been suffering with stress for around 6 months.[178]It was argued that the claimant’s suggestion that all his difficulties arose from the single third act of harassment is not consistent with the factual history.[179]The respondent’s position was that only a portion of past loss should be awarded, to reflect the multiple factors in play. In reality, the claimant’s ill health would appear to have been building for a time before the third incident. He was off sick for a month with stress and anxiety in February to March 2020 and for nearly two months in August to October 2020. Although he had not had absence for mental health reasons prior to 2020, the issues would appear to have building at least from the summer of 2019. Moreover, the claimant had suffered a deterioration in his mental health whilst on sick leave which self-evidently cannot be attributed to any unlawful activity of the respondent.[180]It was submitted that taken in the round it would not be appropriate to attribute more than 30-40% of the claimant’s injury to the single act of harassment for which the respondent was found liable. The prior acts (for which the respondent was not found liable) plainly had a cumulative effect.[181]Senior counsel argued that the retention bonus should not be included as there was no evidence that the claimant would not receive this. It was a matter that was being considered and others had not received it. Decision on past loss[182]In assessing past loss, the Tribunal requires to compensate the claimant for the loss attributable to the unlawful act (and not losses caused by other factors or loss which was not caused by the unlawful act). If the loss was caused by a combination of factors, the Tribunal should award compensation that properly reflects the extent to which the unlawful discrimination contributed to the loss.[183]Having considered the evidence, the Tribunal was satisfied that the unlawful act was not the only cause of the losses. While the unlawful act was a material cause, the other acts to which the claimant was subject prior to the third act caused the losses to an extent.[184]The Tribunal is satisfied the unlawful act was 70% responsible for the losses relied upon. The Tribunal found that the other factors, particularly the first two incidents and the behaviour to which the claimant was subjected at work did cause the losses to be sustained. The absence was not caused 100% because of the last incident (as submitted by the claimant’s agent) but 70%.[185]The Tribunal heard no evidence around the issue of the retention bonus. During submissions it was stated that the bonus had not been finally determined and matters were ongoing. Although the claimant believed all other staff had received the bonus, that was not accepted. The bonus was a matter that was being considered and as such it was not a loss the claimant had sustained as the final decision had not been taken. On that basis that sum does not form part of the sums the claimant would have earned had he been working. It is likely that the sum would be paid following consideration.[186]The claimant stated (in his witness statement) that he regularly worked overtime. This was not challenged in evidence by the respondent. No detailed figures were produced in this regard and it was regrettable that the parties had not agreed the specific figures. The Tribunal takes a broad brush approach.[187]The sum agreed in respect of past loss was £8,669.47. As the unlawful act was 70% responsible, compensation for past loss amounts to £6,068.63. Claimant’s submissions on future loss[188]In relation to future loss of earnings, a sum of £311,110.30 was sought. It was accepted that the assessment of future losses is an exercise in speculation as the claimant has not been dismissed role. The claimant should be put in a position that he would have been but for the unlawful conduct. The claimant should not lose out on potential loss of earnings just because that loss has not crystallised yet when that loss arises from the unlawful conduct. That would be perverse and not in the interests of justice.[189]The possibility that a loss will be suffered should be accounted for. The claimant’s agent submitted that unless the Tribunal concludes it is a certainty the claimant will not be dismissed then the possibility of dismissal must be considered on a percentage basis not on a simple balance of probabilities.[190]If the Tribunal considers that there to be a chance the claimant will not get dismissed the award should be discounted by the percentage possibility he is not dismissed.[191]The claimant had been absent for 16 months with mental health issues. He is in a specialised position, with no realistic chance of redeployment. There is no medical evidence to suggest his return is imminent or even possible. It is far from unrealistic speculation to conclude there is an inevitability, or virtual inevitability, that he will not be able to return to work. It would be wilful blindness to ignore the impending likelihood of a dismissal.[192]The claimant is coming to the end of his Stage 2 capability action plan. The capability process is not indefinite. There are other steps that require to be completed before a decision can be taken. If the claimant’s health does not improve, he cannot return to work. The timescale is unknown but these panels are held monthly. A decision could be taken on 5 December to refer him to the various panels. It is entirely possible that within 3 months the claimant is dismissed, or it could be longer. If the claimant is still unfit for work available vacancies would not be relevant as there is no prognosis on the claimant’s likely recovery. The claimant believes it will be some time before he is well enough to consider a return to work.[193]As the claimant’s mental health issues continue, it is his position that termination of his employment is a matter of if not when and future loss of earnings are appropriate. He is far closer to the end of the process than he is the beginning.[194]The claimant sought to apply his mind to what alternative roles he could reasonably obtain when dismissed as he is aware, he is unlikely to qualify for career long losses. He cannot transfer to Police Scotland and would have to work his way from the bottom if he were accepted for a role with them. There is no guarantee he would get accepted for a role. Working in security would lead to a significant reduction in pay compared to his current wage.[195]In any event the claimant is currently not in receipt of full pay. His half pay will run out and he would be in receipt of pensionable pay. The claimant should be awarded full losses for the period until he is fit for work. Respondent’s submissions on future loss[196]Senior counsel for the respondent argued that this head of loss is wholly speculative and should be rejected in its entirety. The claimant remains in employment. There is every prospect of him returning to work in due course and continuing his career with the respondent. This is not a “dismissal” case, yet the claimant is inviting the Tribunal to treat the case as if:(a) the claimant had already been dismissed; and(b) the dismissal was an act of discrimination for which the respondent should be held liable. Both of these premises are entirely false.[197]It was also argued that the sum claimed is wholly unrealistic and speculative, for the following reasons, among others: — Even if such loss were in principle recoverable, it would have to be substantially discounted to reflect the fact that there is a substantial possibility that the claimant will continue in employment. His health may improve, particularly after the Tribunal is over. Even if he continues to suffer with ill health, he may be redeployed, either to a different role or to another location. The evidence showed that of 120 ill health cases one HR Business Partner dealt with while working for the respondent over 10 years, only 4 have resulted in dismissal on grounds of capability. Some of those cases have involved absences of more than two years. As a percentage, this suggests that the claimant’s prospects of returning to work are 96.7%; — Such compensation would need to be further substantially discounted to reflect the fact that there are multiple causes of the claimant’s ill health, including matters for which the respondent is not liable. The claimant’s ill health would appear to have been building for a time before the third incident. Taken in the round, it is submitted that it would not be appropriate to attribute more than 30-40% of the claimant’s injury to the single act of harassment for which the respondent was found liable. The prior acts (for which the respondent was not found liable) plainly had a cumulative effect and materially contributed to his subsequent ill health; — There is no basis for the assumption that the claimant would have undertaken regular overtime with the respondent; — Even if the claimant were eventually to be dismissed, no allowance has been made for the prospect that he might obtain ill health retirement or obtain a capability payment on termination, both of which would reduce the financial impact of dismissal; — The claimant’s assumptions in respect of mitigation are unrealistic. There is no justification for assuming that the claimant would be unable to find alternative employment for 12 months after his dismissal or retirement (even assuming he will eventually be dismissed or retire). Any dismissal would be likely to take place at some distance in the future. It is likely that the claimant’s ill health will have improved by that time, in particular with the Tribunal proceedings having long before concluded. Moreover, there is nothing to prevent the claimant from applying for a range of jobs before any future dismissal so as to have a seamless transition to a new employer; — Given the claimant’s extensive experience as a Police Sergeant within the respondent, it is unduly pessimistic to assume that he would progress to the rank of sergeant only after 15 years with Police Scotland. Once would expect his experience and expertise to be recognised.[198]It was submitted that the claimant’s claim in respect of future losses is based on a series of factual premises which do not reflect the reality. He has not been dismissed, he remains an employee, and extensive efforts will be made to retain him, whether in his current job or a different one, and whether in his current location or another.[199]If the Tribunal were minded to award a period of future loss, it was submitted that should be limited to the loss which he may suffer whilst he continues to recover his mental health. Importantly, with Dr Moss’s assistance the claimant has now had his medication reviewed and has a key worker. The claimant stated he was “definitely” finding the ongoing support from the key worker helpful and has 24 hours contact and ongoing sessions with them. With the access to support and treatment having opened up, the claimant’s prospects of a recovery are significantly improved.[200]Senior counsel noted that the claimant agreed conclusion of the Tribunal proceedings would give him “closure” on the situation. As Dr Moss stated in his evidence, there are “inherent stresses in the ET process”, and “to have that resolved and know the outcomes” could have a positive impact on the claimant’s mental state.[201]The claimant also accepted that, if his mental health improves, he could return to Hunterston. Given that Hunterston is closing in 2025, moving to Torness or Sellafield remain valuable options. The claimant accepted these could be options in the future. Even if the claimant does not return to firearms duties, there are project roles, procurement, training, logistics and control centre roles which could be considered. There are always non-safety critical roles available. There can be no doubt the respondent will continue to show the patience, tenacity and sympathy in bringing the claimant back to work it has shown so far. In the circumstances, it is submitted that any future loss should be limited to a period of six months.[202]The respondent has an excellent track record of getting even those on longterm ill health back into the workplace. Other ill health cases have gone on for two years before resolution[203]Even if the claimant were eventually to go through a risk assessment and redeployment panel and still not be well enough to work in any capacity with the Respondent, the overwhelming likelihood is that he would be eligible either for ill-health retirement or for a capability payment. Were the claimant to receive a capability payment today, it would amount to £42,239. It would be likely to be higher if awarded at some date in the future. That sum would fall to be deducted from future loss.[204]It was submitted that overtime loss is speculative, since the claimant has no entitlement to overtime and in practice its availability was variable. Decision on future loss[205]The purpose of future loss is to ensure the claimant is put back to the position, so far as money can, he would have been in had there been no unlawful treatment. In this case that is a highly speculative exercise. This is not a discriminatory dismissal case. Nevertheless, the Tribunal’s job is to assess what would have happened had the unlawful act not occurred and ensure the claimant is compensated accordingly.[206]The authorities in this area direct that the assessment is to be on a percentage loss of chance basis, if possible to do so. The Tribunal is not to consider whether on the balance of probabilities he would be dismissed but rather assess the chance that his employment would continue or not and award compensation on that basis.[207]This is an unusual case given the circumstances. The Tribunal has to do 2 things. Firstly it needs to assess what would have happened had there been no unlawful treatment. Secondly the Tribunal requires to consider what will actually happen (and award compensation to reflect the losses the Tribunal considers the claimant would sustain as a consequence of the unlawful treatment). While that is a common exercise in assessing future loss in employment cases, the difficulty in this case is that the claimant has not been dismissed and might never be dismissed. There are a large number of events that could happen all of which significantly affect the position. The Tribunal assessed the evidence led and considered this matter in detail and at great length.[208]Firstly the Tribunal considered what was likely to have happened had the unlawful act not occurred. The Tribunal was satisfied the claimant would by and large have continued to carry out his duties. While there was evidence of intermittent absences and while the previous bad behaviour to which the claimant was subject had a material impact upon the claimant’s mental health, the steps he has taken to deal with those challenges are such that the claimant would in all probability either seek further assistance and manage the matter or deal with the issues himself such that he would remain in position. From the evidence before the Tribunal there is no basis to consider the claimant’s employment would have ended in the short to medium term (or within 5 years).[209]Secondly the Tribunal requires to assess what is likely to happen as a result of the unlawful conduct and assess the differential and make an award to reflect the loss (solely) sustained as a result of the unlawful act.[210]There are a large number of unknown variables in this case as noted by the respondent’s agent. It is entirely possible the claimant recovers to an extent that he is able to return to work for the respondent in some capacity (earning the sums he earned prior to his absence). It is also possible the claimant could remain unable to work for the respondent for potentially a number of months. During submissions the claimant’s agent conceded that the claimant would return to fitness to allow him to return to work certainly prior to 2025 when Hunterston was due to close. This is therefore not a career loss case. There is likely to be a period when the claimant will be fit to return to work.[211]The medical evidence before the Tribunal is regrettably very limited. It is clear that the claimant is presently unfit to return to work. It is also clear that the Tribunal process does have some negative impact upon the claimant (see paragraph 37) and closure of the Tribunal process is likely to have some positive effect, given the claimant will be awarded some form of compensation. While he said the initial judgment had a limited effect upon him, the closure the remedy judgment brings is highly likely to have a positive impact.[212]As the claimant is likely to return to work (or to be work ready) it is unlikely he would qualify for (or seek) early retirement. It is likely, however, if he were to be dismissed because of his incapability that he would receive a capability payment amounting to a year’s salary. The evidence was such that it was almost unheard of for an individual in that situation not to receive a payment where employment ended on capability grounds. There is no medical evidence to assist the Tribunal with regard to future loss. In cases such as this it is very common for there to be a specialist medical opinion to assist the Tribunal grapple with the assessment it has to carry out.[213]The evidence before the Tribunal shows that the respondent works extremely hard to avoid dismissal which seem to genuinely be a last resort where there is no alternative. It is very rare for the respondent to dismiss on capability grounds and the circumstances require to be exceptional.[214]In this case there are a number of potential alternatives to dismissal which would require to be explored before dismissal would occur. While the claimant’s agent argued such alternatives are irrelevant, that is so only when the claimant is unfit to work. The Tribunal considered that there are a number of factors which support a conclusion that the claimant would be fit to return to work.[215]It is highly likely (if not certain) that the claimant’s health will improve following conclusion of the Tribunal process, particularly where the respondent had taken steps to deal with the cultural issues which led to the claims arising (and can support the claimant with regard to a phased return to work and demonstrating its position to diversity) and given the additional medication and support measures in place for the claimant, which he accepted are having positive effects upon his health. Building trust in an employer is not an easy process but given the alternatives and given the claimant’s desire to progress, the Tribunal considers that there is an excellent prospect of a return to work in the short to medium term. It is also assumed that the claimant wishes genuinely to embrace in returning to work. There was no evidence from the claimant that he did not wish to do all he could to return to work and the assessment is made on the basis the claimant will look positively upon the changes in his life and in the respondent and work with them to facilitate the best possible outcome for him.[216]The respondent clearly wanted to work with the claimant and rebuild the trust the claimant had lost. That included showing the claimant the steps taken to deal with the sectarian issues the respondent had faced. The training that had taken place was significant and no further issues had arisen. Once the claimant is shown the change in approach and the seriousness with which the respondent takes the concerns the claimant had and sees the steps taken to address those concerns, with the support the respondent offers, the concerns the claimant had would reduce and disappear over time. The cultural issues perceived by the claimant created a serious limitation upon his ability to contemplate a return to work. The Tribunal considers the respondent would work with the claimant to address those issues and assist him in a return to work on the facts of this case.[217]The Tribunal also considered that the changes to the claimant’s medication and support mechanisms, including the support of a key worker and the surrounding context, are major factors in supporting the claimant to a return to work. He had a genuine desire to return to health and work and the changes in his support framework would facilitate that.[218]The Tribunal considers, from the evidence led and its careful assessment of the position that there is a virtually 100% chance the claimant would absent for a period of 9 months. While there is a chance the claimant returns to work sooner, in some capacity, to ensure the sum awarded is fair and just the Tribunal proceeds on the basis that he would not return to work during that period but focus on taking steps to become work ready, working with the respondent to reach that stage. Potentially he could take longer to return but on the facts the Tribunal considered there to be a virtually 100% chance he would return by 9 months. During the 9 month period it is likely that the support mechanisms the claimant has would allow him to return to fitness. The Tribunal considers the respondent would work with the claimant to demonstrate their learning from this case as to the approach to diversity and their approach to inclusivity (and the change in culture that has been effected). The medication the claimant is taking will have settled and the Tribunal process will, it is hoped, be complete with the claimant having received compensation for the impact the unlawful treatment had upon him. Those are important factors and provide a very strong foundation that is likely to support the claimant in his desire to return to fitness and to resume working in some capacity, which would assist his general mental and physical health.[219]It may be that he is able to return to work on a phased basis prior to the expiry of the 9 month period but the Tribunal can only assess matters on the basis of the chance things will happen and seek to achieve a fair and just outcome.[220]The Tribunal considers there to be 100% chance that the respondent maintains the claimant’s position during this time and does not dismiss. The Tribunal considers that from the evidence and context the respondent would not dismiss the claimant given the issues arising in this case, including the discrimination the claimant suffered and the potential for a return to work. The evidence the Tribunal heard was clear in that dismissal is genuinely a “final final” outcome and in this case it is unlikely that it would happen within the next 9 months.[221]The Tribunal considered whether it was likely the respondent would exercise its discretion and pay the claimant half pay during a final 6 month period. While this was a possibility, to ensure the sums awarded to the claimant properly compensated him for the losses sustained, the Tribunal concluded that it was not likely that half pay would be awarded. While pensionable pay would arise, the Tribunal considers it just to assess future loss on the basis that no payments would be made, thereby increasing the sums due to the claimant. The Tribunal considers, overall, that to be a fair way to deal with the losses that arise and ensure the compensation that is awarded is as accurate taking account of the unknown variables in the assessment.[222]The Tribunal considered very carefully the chance of the claimant being able to return to work following the 9 month period. The claimant’s position was he was unlikely to be fit. The respondent argued he would be fit. Having carefully assessed matters the Tribunal considers that it is likely the claimant would be fit to return to work in some capacity by the expiry of the 9 month period and virtually certain he would return by the expiry of 9 months. The claimant is not currently fit and does not consider himself to be fit. The medical evidence was unable to assist in assessing the position. However, the claimant’s position with regard to his medication and support now provided indicate that things will improve. The respondent’s supportive approach together with the claimant’s desire to return to work (when in a better state of mental health) support the Tribunal’s decision as set out above. The Tribunal had no evidence to suggest upon a return to work the claimant’s salary would be less than that he currently receives (working full time) – even if his role were to change.[223]From the evidence before the Tribunal, the Tribunal considers that there is a 100% chance the claimant would have secured an alternative role that suits him which would be at his current salary package following a 9 month period. This was not an easy assessment and the Tribunal considered whether it was just and fair to assess the loss of chance at less than 100%. The Tribunal did not consider it able to do so from the evidence before it and considered a fair and just assessment to be that he would return after 9 months and should be compensated accordingly. There are a number of reasons the Tribunal reached this decision.[224]Firstly there was no specialist independent medical evidence that supported the assertion that the claimant would be unfit to return to work following that period of time in light of the support given the claimant and changes afoot. The respondent’s medical evidence did not assist since the expert, Dr Moss, was “puzzled” as to why the claimant had not returned to fitness and could not say what the position would be. The Tribunal had to assess the position.[225]Secondly the evidence before the Tribunal was such that the Tribunal considered an improvement was virtually certain once the Tribunal had concluded and the claimant and respondent continued to work together with a focus on his return to work (with the attendant support mechanisms). It was clear the claimant loved his job and had and has a genuine desire to return to work. Once his medication and support mechanisms take effect combined with a concerted approach by the respondent to work with the claimant to show how they have overcome the issues that contributed to the claimant’s absence (which was the evidence before the Tribunal, with dismissal only being explored as a final resort), it is very likely the parties will realise it is in both their interests to facilitate a return to work.[226]Thirdly and finally the onus is on the claimant to establish his loss in evidence. Absent clear medical evidence the Tribunal could only assess matters using the evidence that was presented, which was vague. The Tribunal therefore assessed the evidence it had using its experience as an industrial jury to carry out the assessment exercise as best it could in those challenging circumstances and in context of the evidence led, making sure ultimately the sum awarded is just and fair in light of the unlawful act, with the sum being awarded properly reflecting what the Tribunal considers the losses to the claimant to be, so far as flowing from the unlawful act given the uncertainty and speculation.[227]The Tribunal found the assessment as to future loss challenging in the absence of clear medical evidence as to the position. It is entirely possible that the claimant’s losses are minimal as he secures a return to work, in which case the compensation awarded would be significantly above the sums the claimant has lost. It is also possible, however, that the claimant is off work for a longer period or fails to secure an alternative position at a comparable rate at the time the Tribunal determined in which case the sum awarded would be considerably less than the sum actually lost by the claimant. The claimant would receive a capability payment if he were to be dismissed and in the Tribunal’s view would likely secure alternative employment within a relatively short period of time given his transferable skills and experience (and could well secure a comparable role within a few years). The capability payment the claimant would receive would provide the claimant with financial assistance.[228]The Tribunal made a decision based on the evidence before it in light of the facts, recognising that this is not a dismissal case and there is no certainty the claimant will be dismissed, whilst applying the legal principles set out above. That has been taken into account in reaching our decision. The Tribunal concluded it was virtually certain the claimant will return to fitness by the end of a 9 month period. If the claimant were dismissed (contrary to what the Tribunal considers to be virtually certain) the normal remedies from someone in the claimant’s position exist and the claimant may not be without remedy.[229]This is a highly speculative decision that is based on limited evidence. It was regrettable that no specialist independent medical evidence was presented to assist the Tribunal nor evidence from experts within the industry as to available roles and progression. The Tribunal can only make a decision from the information that has been presented to it and did so carefully applying the legal principles above to the facts. Sums awarded by way of future loss[230]Had the unlawful act not occurred, it is likely that the claimant would have earned £3,000 a month net pay (which takes account of fluctuating overtime). That monthly amount would have continued each month for the remainder of the period in consideration. There was no evidence of any wage increase (or decrease) or any change forthcoming.[231]The Tribunal calculates loss on the basis that he would not receive half pay during the 9 month period when he is likely to be absent.[232]His net pay has fluctuated but a fair figure is £3,000 a month (representing the fact there may be months when no overtime is provided and some when overtime is provided). He is likely to receive no pay for 9 months.[233]His losses for this period would therefore be £27,000.[234]As the unlawful act was 70% responsible, the loss for this period is £18,900. Interest on financial sums[235]The total financial loss was £24,968.63 (past loss of £6.068.63 and future loss of £18,900). As the act occurred on 30 June 2021 which is 519 days ago interest on the pecuniary sums is calculated from the midpoint, 260 days ago, meaning interest is at 8% and is therefore 260 x 0.08 x 1/365 x £24,968.63 which is £1,422.87. Claimant’s submission on pension loss[236]The claimant sought £279,000 for pension loss as per an actuary report. The expert did not give evidence and the report was based upon a career ending loss, calculating loss of pension over 16.5 years.[237]The claimant’s agent argued that these losses stem from the unlawful act. Dismissal is a virtual certainty. The report notes that calculations could be revised if further information was known such as dismissal date, and details of new pension. However, these are unknown at this stage and the report acknowledges that the Tribunal may need to reduce the award by a ‘withdrawal factor’ and to consider the extent which loss might be mitigated by accrual of other pension rights obtained.[238]The claimant’s agent submitted that it is for the Tribunal to consider these factors and adjust the sum sought accordingly taking into account these factors. Respondent’s submissions on pension loss[239]It was submitted that the claim in respect of pension loss is based on a series of manifestly incorrect or unrealistic factual premises, and is even more speculative than the claim in respect of future loss of earnings: Even if such loss were in principle recoverable (which it is submitted it is not), it would again have to be substantially discounted to reflect the fact that there is a substantial possibility that the claimant will continue in employment, whether in his current role or a different role. Such compensation would again need to be further substantially discounted to reflect the fact that there are multiple causes of the claimant’s ill health, including matters for which the respondent is not liable;[240]The pension loss calculation was premised on the claimant being dismissed on 5 December 2022. There was no prospect of that happening. The claimant has a very long way to go with the capability procedure, and potentially with a subsequent Risk Assessment Panel and a Redeployment Panel, assuming that he does not come back to work before then.[241]Even if the claimant were eventually to be dismissed, no allowance has been made for the prospect that he might obtain ill health retirement or obtain a capability payment on termination. Plainly, an award of ill health retirement would substantially reduce his pension losses.[242]Critically, the sum claimed in respect of pension makes no allowance whatsoever in respect of the claimant’s likely mitigation of his losses. There is no reason to assume that the claimant would not obtain an equivalent pension if, for example, he obtained a position with Police Scotland.[243]The Joint Presidential Guidance on ‘Principles for Compensating Pension Loss’ is premised on the claimant having been dismissed. Under the section ‘The Principles: Key Concepts’ at paragraph (4), in describing the “simple” method, the Guidance states that “This method requires the tribunal to aggregate the contributions that, but for the dismissal, the employer would have made …”. Similarly, paragraph (5), in considering the “complex” method, note that it is appropriate in “career loss” cases.[244]The same point is clear from the Employment Tribunals Principles for Compensating Pension Loss 4th Edition (Third Revision) 2021, which contains the following provisions: — “When a person is dismissed, they usually suffer financial loss”; — “In the principles, we use the phrase “unlawful dismissal” to describe three scenarios …(a) Wrongful dismissal …;(b) Unfair dismissal ….;(c) Discriminatory dismissal” (para 1.1); — “When assessing compensation for a claimant’s pension loss, difficulties arise because the claimant has not lost money, as such, at the time of dismissal” (para 1.3).[245]These extracts served to underline the unreality of the claimant’s claim. He remains in employment, yet seeks to compensated as if he had been dismissed on discriminatory grounds. Decision on pension loss[246]This is an inherently speculative exercise given the absence of any clear evidence as to the position. Applying the reasoning from above, the Tribunal considers that it is not appropriate to adopt the method of calculation set out by the claimant’s agent, which is based upon a career ending situation and covers almost 17 years of loss. In this case the Tribunal considers that an appropriate and fair way to compensate for pension loss would be to award the claimant a sum representing the contributions likely to be lost for the 9 month period. The contributions lost appear to be £300 per month (which is what the Tribunal gleaned from the papers submitted in the absence of any agreement on this matter). The claimant is likely to lose 9 months worth of contribution valued at £2,700. The unlawful act was 70% to blame which led to a value of £1,890.[247]Interest should be added to the lost pension contributions part of future loss. The financial loss was £1,890. As the discriminatory act occurred on 30 June 2021 which is 519 days ago interest on the pension loss is calculated from the midpoint, 260 days ago, meaning interest is at 8% and is therefore 260 x 0.08 x 1/365 x £1,890 which is £107.71. Taking a step back[248]The Tribunal once it concluded its deliberations took a step back to assess the decision it had reached to ensure that the sum awarded was properly attributable to the losses sustained by the unlawful act. The Tribunal recognises this is not a science nor an arithmetical exercise which is why it has made certain assumptions and used the sums it has and taken the approach it has taken.[249]The Tribunal was careful in reaching its conclusions as to loss of chance that the assessment was based upon the evidence. There was limited evidence available. While it is rare for a Tribunal to be 100% certain that things will occur, on the facts of this case and after careful and lengthy deliberations given the surrounding facts and context the assessment carried out was fair and reasonable in all the circumstances applying the legal principles summarised above. It was as accurate an assessment as to future loss that the Tribunal was able to achieve from the evidence before it to ensure the claimant is put into the position that would have occurred, so far as money can do so, had the unlawful act not occurred.[250]Taking a step back the Tribunal is satisfied that the total sums awarded fully compensate the claimant for the losses he sustained as a result of the unlawful act from the evidence presented to the Tribunal. Grossing up[251]As the sums awarded are less than £30,000 grossing up is not required. This is because the award in respect of injury to feelings is not in respect of termination of employment but a discriminatory act that occurred during employment.
Summary
[252]The Tribunal has unanimously found that the following sums flow directly from the unlawful act of discrimination and should be paid to the claimant: Injury to feelings: £14,000 Interest on injury to feelings: £1,592.55 Past loss: £6068.63 Future loss: £18,900 Interest: £1,422.87 Pension loss: £1,890 Interest: £107.71 Observations[253]Finally the Tribunal wishes to thank both agents for their assistance and working together to ensure the overriding objective was achieved and matters were dealt with fairly and justly. It is hoped that the claimant can now work with the respondent and move forward and continue to build upon his successes to date.