Mr G Timothy v Dell Corporation Ltd: 4114755/2019 and 4107034/2020

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4114755/2019, 4107034/2020

Between

Mr G TimothyClaimant

Dell Corporation LtdRespondent

Before

Employment Judge Porter

Date 28 March 2023

JUDGMENT

It is the Judgment of the Employment Tribunal to allow the claimant’s amendment in these proceedings, under deletion of the claim of direct discrimination. INTRODUCTION

[1]In these proceedings the claimant claims disability discrimination. The claimant’s claims are defended and there was a Preliminary Hearing (“PH”) heard in the case on the 27th March 2020 at 2pm.

[2]In advance of the PH the claimant’s solicitor intimated a Minute of Amendment. At that PH Orders were made for the claimant to provide Further and Better Particulars of the claim, and a timeline was set out for the respondents’ ETZ4(WR) response thereto and for parties to provide their views on future procedure in this case. The Orders were duly complied with and the parties agreed that the case should be set down for a PH on the issue of Amendment, to be determined by written submissions only.

[3]The PH on amendment took place on the 15th September 2020. The PH was determined after having sight of(i) the claimant’s Minute of Amendment;

(ii) the claimant’s Further and Better Particulars;

(iii) the respondents’ response to the claimant’s Further and Better Particulars;

(iv) the claimant’s documents headed ‘Amendment to ET1’ and ‘Amendment to ET1 Further Submissions’;

(v) the respondents’ documents headed ‘The respondents’ objections to the claimant’s application for leave to amend the ET1’ and ‘The respondents’ responses to the claimant’s written submissions on the application for leave to amend the ET1.’ The Tribunal also had before it the ET1 and the ET3 together with the Note of the PH of the 27th March 2020, dated the 2nd April 2020. SUBMISSIONS

[4]The undernoted is a concise summary of the parties’ positions on the issue of amendment.

[5]The claimant seeks to introduce new claims of direct discrimination, victimisation and failure to make reasonable adjustments in the amendment procedure.

[6]In the document headed: “Amendment to ET1 Further Submissions” the claimant withdrew his claim of direct discrimination.

[7]Insofar as the claimant’s claims of victimisation are concerned, the claimant asserts by amendment that the respondents withdrew his sick pay subsequent to the commencement of these proceedings and, further, that he was subjected to a detriment because he done a protected act by the respondents’ failure to deal with his ethics complaint and failure to investigate their initial failure to deal with his ethics complaint.

[8]The claimant submits that these additional acts of victimisation should be viewed as a continuous act flowing from his existing claims of victimisation.

[9]The claimant’s additional claims of failure to make reasonable adjustments are based also around the withdrawal of his sick pay on the 6th of February 2020. The claimant alleges that the respondents’ failure to make reasonable adjustments should be viewed as a continuing act following on his existing allegations under s20 and s21 of the Equality Act 2010.

[10]The respondents’ position on the claimant’s Amendment are, in short, that the claimant is seeking to bring new, separate claims of victimisation and that there are no averments linking the original acts of victimisation as pled to the new claims of victimisation. The respondents state that the claim relating to the respondents’ cessation of sick pay is time barred and his claim of victimisation lacks specification insofar as the issue of the handling of his ethics complaint is concerned.

[11]Insofar as the insertion of new claims of failure to make reasonable adjustments are concerned, the respondents state that the claimant seeks to bring new, separate allegations of failure to make reasonable adjustments which are time barred and that there are no averments linking his existing claims of failure to make reasonable adjustments with his new claims inserted by amendment. The respondents also state that the claimant’s claim of failure to make reasonable adjustments lacks specification in that there is insufficient specification of the comparator group for the purposes of establishing substantial disadvantage and insufficient specification the reasonable adjustments the claimant states should have been made by the respondents.

[12]In short, the respondents’ position is that the balance of prejudice favours them as the allowance of the Amendment will necessitate substantial further inquiry on their part. The respondents submit that if the Amendment is refused the claimant will still be able to pursue his existing claims as formulated in the ET1. THE LAW

[13]In considering whether to allow the claimant’s Amendment the Tribunal had regard to the well known test set out in the case of Cocking v Sandhurst (Stationers) Ltd and anor

1974 ICR 650

NIRC as applied in the case of Selkent Bus Co Ltd v Moore

1996 ICR 836

, EAT. These cases are authority for the proposition that in exercising their discretion, tribunals must have regard to all the circumstances and in particular to any injustice or hardship which would result from the Amendment or a refusal to make it. In Selkent, the then President of the EAT, Mr Justice Mummery stated relevant factors would include the nature of the Amendment, the applicability of time limits and the timing and manner of the application.

[14]The Tribunal also had regard to the overriding objective to be found in Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1 and in particular the requirement to ensure that the parties are on an equal footing and the requirement to avoid unnecessary formality in proceedings. DISCUSSION AND DECISION

[15]The Tribunal commenced its deliberations by observing that it is now difficult to ascertain what the key facts are in this case. The Tribunal brings to the parties’ attention the words of the Employment Appeal Tribunal in the recent case of C v D

UKEAT/0132/19/RN

wherein it was observed: “Regrettably, I consider that some criticism must be levelled in this case at the manner in which the Claim and Response were set out. I am also well aware that the parties and representatives in this case have adopted a style many choose. A narrative style of Claim Form and Response appears to now be more the norm than the exception. I can understand where the temptation for adopting it has come from: a fear that a relevant fact might not be included and fear that a witness might be challenged in a hearing because a detail was not included within the claim. That can be managed: a document can make it clear that it sets out key facts; requests for further details of factual matters can be made; parties and representatives can remember that the purpose of the Claim Form and Response is not to exhaustively set out factual detail in the way a witness statement does, but to set out the claim” (para 14). With these words in mind, it is to be hoped that the parties will consolidate their pleadings in advance of the full Hearing in the Merits so that the key facts are apparent not only to the Employment Judge who has had conduct of this case throughout, but to the Members also.

[16]The Tribunal considered the Amendment and the parties’ submissions thereon with regard to the words of Mr Justice Mummery in Selkent. The Tribunal considered firstly the nature of the amendment. In this respect, the Tribunal observed that there appears to be little dispute that the Amendment does introduce entirely new factual allegations which change the basis of the existing claim.

[17]With this in mind, the Tribunal then proceeded to consider the applicable time limits. The Tribunal noted firstly that the additional claims of victimisation were timeously made as these claims were included in the Minute of Amendment presented on the 20th March 2020 and arose from actions of the respondents in February and March 2020. The Tribunal also concluded that the additional claims of failure to make reasonable adjustments were timeous, arising as they do from acts of the respondents in February 2020.

[18]In considering the issue of time limits, the Tribunal also observed that at the PH on the 27th March it was determined that the outstanding issue of time bar should be reserved for the full Hearing on the Merits.

[19]The Tribunal then proceeded to give consideration to the timing and manner of the application to amend. To this end the Tribunal observed that the Amendment was presented at an early stage in these proceedings, and was presented within a relatively short time frame from the occurrence of the acts that form the subject matter of the Amendment.

[20]The Tribunal has sympathy with the respondents in that the Amendment does, in certain respects, lack specification. However, it is the view of the Tribunal that the terms of the Amendment do provide fair notice to the respondents of the additional claims advanced. Should additional specification be required then it is always open to the respondents to seek an Order for Further and Better Particulars.

[21]Insofar as the all important issue of the balance of prejudice is concerned, the Tribunal considered that this is weighed in favour of the claimant. In reaching this conclusion, the Tribunal gave consideration to the fact that the claimant’s Amendment introduces claims that post date the ET1, and that there would be considerable prejudice were the claimant to be denied the right to pursue such claims. In these circumstances is the decision of the Tribunal that the prejudice to the claimant outweighs the prejudice to the respondents.

[22]It is for all these reasons that it is the decision of this Tribunal to allow the claimant’s Amendment, under deletion of the inclusion of the claim of direct discrimination. In reaching this decision the Tribunal had regard to the terms of the overriding objective and in particular the need to ensure that parties are on an equal footing. FUTURE PROCEDURE

[23]This case will be set down for a Preliminary Hearing on Case Management at the earliest available opportunity. At the PH future procedure will be set in the case, and to this end the parties are requested to attend with details of all witnesses’ availability and ability to participate in a Final Hearing via video conferencing, namely CVP/Kinly.

REASONS

[1]In these combined proceedings the claimant claims unfair dismissal and discrimination on the grounds of disability under sections 15, 19, 20/21 and 27 of the Equality Act 2010.

[2]Following a Preliminary Hearing on 15 January 2021 before Employment Judge Porter, the claimant submitted a document on 25 January 2021 in which he made an application to amend his claim. ETZ4(WR)

[3]That application was opposed by the respondent, and following further correspondence it was agreed by the parties that the application would be determined by the Tribunal on the basis of written submissions.

[4]In this Judgment, I set out the application, and the basis upon which it is made; the grounds upon which the application is opposed; the parties’ respective submissions; the relevant law, and the decision reached by the Tribunal. The Application

[5]The claimant set out his application to amend his claim based on three points:(a) Failure to properly investigate ethics complaint. (Adding other label for facts already pleaded).

(b) Upper management’s failure to properly investigate complaint regarding Ethics Committee’s failure to investigate original complaint properly. (Adding other labels for facts already pleaded).

(c) Adding the respondent’s anti-mental health discrimination initiatives/policy. (Adding factual details to existing allegations).

[6]The claimant requested that points (a) and (b), which fell under his existing victimisation claim, should be added to indirect discrimination, duty to make reasonable adjustments and discrimination arising from disability.

[7]He said that the reason why the claims were not included in the original ET1 was that the ethics complaint was ongoing and unresolved.

[8]The claimant then addressed the indirect discrimination claim, and set out his understanding of what he required to show. In particular he said that he had to show that the PCP was not a one off decision, and that he had to be able to show that the PCP was not specific to him, but dealt with a generic approach to the non-adherence of the Ethics Policy. He said he believed he would be able to show that the non-adherence to the Ethics Policy went wider than the specific department into the organisation as a whole as he considered that the evidence was there for him to do so. He observed that his complaint about Mr Galpin, his direct line manager, already sat within the indirect discrimination claim, and that the ethics complaint had common threads which bound it together with that complaint. The two common topics within each complaint were mental health and the ethics policy

[9]He considered that the relevant questions were: who had visibility of the complaints? How were these individuals obligated to respond? And in what way did they respond? He suggested that “this” dealt specifically with section 19(2)(b) of the 2010 Act. If he were not able to include this complaint about the ethics policy within his indirect discrimination claim, he maintained, that claim would be weakened and he would not be able to present a full and complete picture to the Tribunal.

[10]He argued that the respondent would not be disadvantaged were he permitted to add this complaint to the indirect discrimination claim, as the evidence which would be required for his victimisation claim would be the basis for his indirect discrimination claim. The defence open to the respondent would be the same for both claims.

[11]The claimant then referred to the claim under duty to make reasonable adjustments, pointing to section 6.2 of the Code of Practice as requiring employers to take positive steps to ensure that disabled people are able to access and progress in employment. He submitted that this element of the overall claim is fundamental and almost central to all other elements of the entire claim.

[12]He suggested that it would be an injustice to be able to argue disability discrimination but be prevented from asking the question – why were things done in that particular way by the employer, and why did they choose not to do the small things which would have made a difference? In particular, it is necessary to allow the claimant to pursue this claim when there is an obligation, he said, for the employer to treat a disabled person more favourably than others.

[13]He argued that the respondent would not be at any disadvantage if the claim were permitted to proceed in this way. The respondent’s argument is that they did not, nor could they reasonably be expected to, know that the claimant was a disabled person at the material time. As a result, no further action is required by the respondent to defend this additional aspect of the case, and so they would suffer no disadvantage.

[14]With regard to the section 15 claim, the claimant endeavoured to clarify the amendment sought. He maintained that the “something” referred to in section 15 would be “pursuing the ethics issue as persistently as I did and involving and pressing senior members of staff within the organisation”.

[15]He then said that the causal link was that for people like the claimant who have a mental health condition, the ethics policy and anti-mental health discrimination policies are so important, and he relies upon such policies in order to make him feel secure and safe. When such policies are not adhered to, it hits those suffering from a mental health condition much harder than it would people who do not suffer from such a condition. Trying to understand why that safety and security are not there becomes an obsessive matter. He argued that it would be an injustice to disallow this amendment as it dovetails into all other aspects of the claim and provides the Tribunal with a more complete picture of the grievances which have been raised.

[16]The claimant submitted that this claim already sits in the victimisation claim, and therefore that the respondent would not be at any disadvantage if the amendment were allowed. In addition, the respondent has already had access to all the evidence.

[17]With regard to “adding the respondent’s anti-mental health discrimination initiatives/policy”, the claimant submitted that he seeks to add this in order to avoid confusion or challenges that it is a new pleading when referred to in future. This particular “piece of evidence” is covered by the ET1 but without a title, and it is simply evidence which will be used to support the allegations of discrimination already made.

[18]He maintained that it would be an injustice for the amendment to be refused because irrefutable evidence would be presented at the final hearing which would show that it is impossible for the respondent to argue that they did not know that the anti-mental health discrimination policy/initiatives was a cornerstone of the organisational culture. It is therefore logical to say that the respondent has already taken this into account in the response to the claim they have submitted. There will be no disadvantage to the respondent in defending an argument which has already been presented in the ET1 on that basis.

[19]On 29 January 2021, the claimant submitted further and better particulars which he said were based on the Order issued by Employment Judge Porter.

[20]Firstly, the claimant set out his further particulars under the heading “Duty to Make Reasonable Adjustments”. He said the PCP was “Failure to consider the mental health of the applicant (sic) and adjust accordingly”. As to the substantial disadvantage, he said that where a person with anxiety or depression required to face a redundancy process, the impact was much worse than for others, and argued that symptoms could be worsened as a result.

[21]He then put forward a number of reasonable adjustments which he considered the respondent should have put in place for him, from 14 July 2020 until the confirmation of redundancy on 18 August 2020.

[22]For example, when the claimant received a letter on 14 July 2020 informing him that he was at risk of redundancy, he proposed that the respondent should have:• researched the employment status and history of the claimant before starting the process;

• enquired about the current health status of the claimant;

• enquired of the claimant how he would want the process to be handled given his mental health condition;

• enquired about the preferred method of consultation;

• arranged an initial call with the claimant to explain the process and answer any questions before commencing the consultation process; and

• offered counselling during and after the redundancy process.

[23]The claimant’s further particulars outlined a large number of adjustments which he considered should have been put in place at different stages in the process.

[24]Secondly, the claimant submitted that act of being selected for redundancy was an act of retaliatory victimisation in relation to the pressure applied by the claimant to the respondent to address mental health discrimination.

[25]He set out a list of 19 alleged protected acts upon which he sought to rely, from 3 May 2019 until 20 July 2020.

[26]He then asserted that the detriments to which he was subjected as a result were:• being selected for redundancy and his employment terminated;

• redundancy process not being carried out properly;

• no reasonable adjustments (as set out in the first part of his further particulars); and

• his employment being terminated.

[27]He alleged that between July 2020 and 31 August 2020, these detriments were applied to him by Mr Galpin, direct line manager; Mr Bowen, manager to Mr Galpin; and Ms Lisa Harvey, HR “Generalist”, the dismissing officer.

[28]On 4 February 2021, following a reminder by the respondent, the claimant submitted further and better particulars of his unfair dismissal claim, attaching a document which incorporated both those particulars and the particulars of his reasonable adjustments and victimisation claims.

[29]He stated that his claim for unfair dismissal was based on his claim that the respondent failed to adopt a proper redundancy process. Essentially, he asserted that there was no group consultation informing the staff that their jobs were at risk, prior to the letter of 14 July 2020 advising him that he was at risk of redundancy; that the letter of 14 July 2020 itself contained procedural flaws; that no consultation process actually took place; that at the end of the consultation process on 18 August 2020, no final consultation nor redundancy dismissal meeting took place; and that the respondent presented no evidence throughout that they made any effort to look for alternatives to redundancy.

[30]Finally, on 16 February 2021, the claimant sought to add a further paragraph to his amendment application, namely: (d) Adding email sent to former manager requesting HR investigate Mr Dave Mackie. (Adding factual details to existing allegations). The Respondent’s Opposition

[31]On 26 January 2021, the respondent’s solicitor, Ms Reynolds, wrote to the Tribunal to oppose the application to amend. She observed that the application was insufficiently clear so that the respondent did not understand properly what amendments the claimant wised to make.

[32]She also pointed out that it was clear from both ET1s presented by the claimant that he was aware that of his right not be discriminated against and that he had claims for discrimination. It was also clear from the claimant’s amendment to his claims, dealt with by written submissions on 15 September 2020, that he considered the Ethics complaint to be concluded (albeit not to his satisfaction). She asserted that he had delayed unreasonably in making this application. Submissions

[33]The terms of the claimant’s documents included within them submissions in support of his application. It appears that he also submitted to the Tribunal a copy of the respondent’s submitted objections with comments appended thereto, which have been taken into consideration.

[34]The respondent provided a detailed response to the application to amend the claim. A summary of that response now follows.

[35]Ms Reynolds submitted that the claimant sought to introduce new claims of indirect discrimination, duty to make reasonable adjustments and discrimination arising from disability, and adding factual details to existing allegations, which he intimated on 25 January 2021; and on 16 February 2021, adding a minor addition to the proposed amendment.

[36]Ms Reynolds went on to set out the claimant’s application to amend his first ET1 by intimating a “Minute of Amendment” on 20 March 2020, which averred, among other things, that the respondent failed to:• deal with his ethics complaint, which amounted to a detriment because he had alleged the respondent had contravened section 27(2)(d) of the Equality Act 2010; and

• investigate their initial failure to deal with his ethics complaint, which amounted to a detriment because he brought proceedings in terms of section 27(2)(a) and alleged that the respondent had contravened section 27(2)(d) of the 2010 Act.

[37]The claimant presented further particulars of the claim on 27 April 2020, and a Preliminary Hearing took place on 15 September 2020. The Tribunal determined that the application to amend should be granted, subject to deletion of the claim of direct discrimination.

[38]Ms Reynolds then noted that the claimant presented a second ET1 to the Tribunal on 4 November 2020, bringing claims of unfair dismissal and disability discrimination. The respondent did not dispute that the claimant was dismissed on 31 August 2020.

[39]The claimant then made an application to amend his second ET1 on 23 November 2020, averring that he had been selected for redundancy because he had done a protected act. The respondent did not oppose this application as it was brought timeously.

[40]Ms Reynolds then referred to the PH on 14 January 2021 following which the claimant was ordered to provide further and better particulars of his claim. In addition, the parties have been ordered to consolidate their pleadings.

[41]Having set out a concise summary of the law, Ms Reynolds then turned to her objections to each part of the proposed amendment.

[42]With regard to points (a) and (b) – the failure to properly investigate the ethics complaint and upper management’s failure to properly investigate the complaint regarding the Ethics Committee’s failure to investigate the original complaint properly – she pointed out that the claimant was very clear that this amounted to victimisation only. She maintained that the claimant was legally represented at that time.

[43]She submitted that the claimant does not aver in his amendment any new or additional factual allegations that at any time from presenting the second ET1 he had attempted to make contact with the respondent about his ethics complaint and that the respondent had failed to respond, or responded in an unsatisfactory way. She said that it therefore appeared that the claimant was saying that the respondent’s failure took place some time between 23 May 2019, when he made a complaint to the Ethics Committee, and approximately 12 March 2019 when the claimant asked for copies of the investigation report into the matter, and there was no response.

[44]Further she submitted that the claimant confirmed his understanding of the respondent’s position, that the matters pertaining to the claimant’s ethics complaint had been concluded. Thus, while the claimant may be unhappy with the handling of his ethics complaint, the process was nonetheless at an end in March 2019. It is therefore clear, she argued, that the claimant’s factual allegations remain unchanged from 12 March 2020 until 20 March 2021 when the claimant intimated his current amendment.

[45]As an observation at this stage, these parts of the respondent’s objections are difficult to follow: reference is made to both 12 March 2019 and 12 March 2020, and also to 20 March 2021 when the claimant intimated his current amendment, which of course was 25 January 2021 (20 March 2021 remaining a date in the future as this Judgment is being drafted).

[46]Ms Reynolds argued that if the less favourable treatment, failure to make reasonable adjustments and/or detriment arising from his ethics complaint did not take place until his dismissal on 31 August 2020, which she denied, the factual allegations remained unchanged from November 2020 when he submitted his second ET1, and 15 January 2021, when he confirmed to the Employment Judge at the PH that he was bringing a claim of unfair dismissal and section 20/21 and 27 claims under the 2010 Act.

[47]The respondent’s position is that the additional claims of indirect discrimination, failure to make reasonable adjustments and discrimination arising from disability are time-barred. The additional claims arise from the actions of the respondent prior to, and in or around 12 March 2019.

[48]Considering the timing and manner of the application to amend, it was made some 8 months after acts complained of took place and some 3 months after presenting the second ET1. While the claimant may not be happy about the handling of the ethics complaint he is complaining about acts which took place around 12 March 2019 or before. No reason has been given as to why the claimant has delayed in bringing his new claims.

[49]The claimant was legally represented when he submitted his application to amend in November 2020, and his claim was limited to victimisation only, and at the PH on 15 January 2021 he failed to mention the new claims, having been asked to confirm the discrimination claims he was bringing.

[50]She submitted that amendments (a) and (b) seek to introduce claims which pre-date the second ET1 and which do not contain the necessary averments to support the claim, which would cause considerable prejudice if the claimant were permitted to pursue such claims. Further and better particulars would be required. In any event, the averments in the current application are lacking in specification. She argued that the indirect discrimination claim does not specify a PCP, nor the group to which it applied, nor the disadvantage arising; the duty to make reasonable adjustments again fails to specify a PCP, the group to which it applies and the disadvantage arising; and the section 15 claim fails to specify what was the unfavourable treatment and the reasons arising from disability for that treatment, and how that reason arose from disability.

[51]The parties are not, she said, at an early stage in the proceedings. The respondent does not accept that there are common threads binding his amendments to existing claims. The respondent would also require to ask the Tribunal to vary its order to consolidate the pleadings.

[52]With regard to allegation (c), the respondent does not understand the amendment the claimant wishes to make. It is not known which facts the claimant intends to rely upon, nor which of his claims would be affected by his amendment. If the facts are not new, the claimant should have known of them by the time he presented his second ET1, and no reason is advanced as to why he has delayed in presenting this amendment.

[53]She said that if the claimant can provide further specification and no new claim is being sought, the respondent may not have any objection to it.

[54]Finally, Ms Reynolds confirmed that the respondent did not object to the introduction of amendment (d).

The Relevant Law

[55]It is appropriate to refer to the overriding objective of the Employment Tribunal, set out at Rule 2 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable –(a) ensuring that the parties are on an equal footing;

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

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

(e) saving expense.”

[56]There is a useful formulation of the types of amendment which are typically put forward by parties in Tribunal proceedings in Harvey in Industrial Relations and Employment Law, Division T at paragraph 311.03: “A distinction may be drawn between(i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;

(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and

(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.”

[57]An important authority in this area is Selkent Bus Co Ltd v Moore

1996 ICR 836

. At p.843, Mummery J, as he then was, said: “(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g. in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.

(c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision”.

[58]The Tribunal was also referred to Office of National Statistics v Ali

[2004] EWCA Civ 1363

. At paragraph 39, Lord Justice Waller states: “In my view the question whether an originating application contains a claim has to be judged by reference to the whole document. That means that although box 1 may contain a very general description of the complaint and a bare reference to the particulars to an event…, particularisation may make it clear that a particular claim for example for indirect discrimination is not being pursued. That may at first sight seem to favour the less particularised claim as in Dodd, but such a general claim cries out for particulars and those are particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states…”

[59]In paragraph 40, he went on: “One can conceive of circumstances in which, although no new claim is being brought, it would, in the circumstances, be contrary to the interests of justice to allow an amendment because the delay in asserting facts which have been known for many months makes it unjust to do so… There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time…” Discussion and Decision

[60]This case has a somewhat lengthy and complex history, involving two separate ET1 claim forms and a previous application to amend, in the first ET1 proceedings, which was, to a large extent granted. The claimant now seeks to amend his new claim, which is combined with his old claim, and that application is opposed.

[61]Before considering whether or not the application should be granted, it is worth saying that this is a case in which the pleadings have already spread into a very complex form, in respect of which Employment Judge Porter emphasized the need for clarity in the pleadings. Regrettably this amendment has succeeded in adding complexity to the case, and the claimant in particular should note that the Tribunal cannot permit the constant refining of the pleadings at each stage of the proceedings. There must be clarity and finality in the litigation. While it is understood that the claimant is not legally qualified and does not have the benefit of legal advice, I have considerable concerns about the ability of the parties, and particularly the Tribunal, to understand the precise shape of the case which will be brought before it.

[62]In any event, the claimant’s application, which was presented on 25 January 2021, seeks to add to the pleadings in the following way:(a) Failure to properly investigate ethics complaint. (Adding other label for facts already pleaded).

(b) Upper management’s failure to properly investigate complaint regarding Ethics Committee’s failure to investigate original complaint properly. (Adding other labels for facts already pleaded).

(c) Adding the respondent’s anti-mental health discrimination initiatives/policy. (Adding factual details to existing allegations).

(d) Adding email sent to former manager requesting HR investigate Mr Dave Mackie. (Adding factual details to existing allegations).

[63]The document in which the claimant set out his amendments proceeds to argue the basis upon which the amendment should be granted.

[64]In order to determine whether or not the application should be granted, it is appropriate, in my judgment, to consider the nature of the amendment sought first.

[65]As I understand it, the four paragraphs (a) to (d) seek to summarise the amendments sought. The significant new material appears to me to be found in (a) and (b). The claimant seeks to complain that the respondent failed to carry out a proper investigation of his ethics complaint, and that upper management of the respondent failed to investigate his complaint about the Ethics Committee’s failure to investigate the original complaint.

[66]The difficulty for the Tribunal is that the claims in these two paragraphs are now said to be claims of indirect discrimination, duty to make reasonable adjustments and discrimination arising from disability, but that no further specification of the claims is provided.

[67]If the claimant wishes these complaints to be categorised as indirect discrimination, he requires to set out much more detail as to the basis upon which he makes that claim: by specifying the PCP upon which he relies, the substantial disadvantage to which a group bearing his protected characteristic would be subjected by the application of that PCP, and the substantial disadvantage to which he was subjected by the application of that PCP.

[68]If he wishes these complaints to be categorised under the duty to make reasonable adjustments – and it is of importance to emphasize that his claim must specify not the duty but the alleged failure to comply with that duty – he must, again, set out the PCP, and the substantial disadvantage which occurs, as above.

[69]If he wishes these complaints to be categorised as a complaint of discrimination arising from disability, the claimant must identify the unfavourable treatment to which he has been subject, and the basis upon which he says that he was discriminated against because of something arising in consequence of his disability.

[70]His application makes a good deal of the reasons why the amendment should be allowed, as has been noted by the Tribunal, but it fails to set out a proper basis upon which the claims have been specified so as to allow the Tribunal to consider them, or to give fair notice to the respondent of the basis of the claims.

[71]In essence, the claimant has simply invited the Tribunal to reclassify his complaint about this ethics complaint under sections 19, 20/21 and 15 of the Equality Act 2010, without actually pleading claims under those sections in any meaningful way.

[72]The Tribunal acknowledges that the claimant, while an articulate and intelligent individual, lacks legal qualification and experience, albeit that he may have benefited from legal assistance in the past, but it is essential that, in the interests of justice, any claim which is brought before the Tribunal is set out in a way which is comprehensible to the Tribunal and to the respondent.

[73]The respondent has suggested that the claimant requires to provide further and better particulars of the amendment before it can be permitted. That is not a matter for me. What I require to determine is whether or not the application may be granted in the form in which it is presented. As I have already indicated, it concerns me that further detailed correspondence may be needed before the pleadings are finalised in this case, and the claimant should not assume that the Tribunal will grant any further applications to amend his claim.

[74]It is therefore my conclusion that the nature of the amendment sought in paragraphs (a) and (b) is so inspecific and unclear that it cannot be granted, as it does not, in its current form, amount to a meaningful development of the claim.

[75]Paragraphs (c) and (d) do not appear to me to amount to an application to amend his claim, but merely an indication that there are additional facts on which he will wish to rely in presenting his claim to the Tribunal at the final hearing. These are therefore matters which may be addressed by the Tribunal at that stage.

[76]Accordingly, it is my judgment that the claimant’s application to amend his claim dated 25 January and 16 February 2021 is refused, on the basis that the application does not adequately specify the claims which the claimant wishes to add.

[77]The claimant responded at 3.16pm in short email “Yes please raise this on my behalf. The grounds have been set out in the last email I sent you. As requested before, please can you communicate via post for the reasons I mentioned in the same email.” The claimant as above had not provided the detail he had previously set out in his lengthy email to Mr Galpin Friday 3 May 2019.

[78]The respondent did not resist investigating a grievance issued by the claimant at this time. The respondent, specifically Ms Di Ciccio, upon noting the claimant’s wish to progress a grievance set out the respondent process expressly set out that she could submit it on behalf of the claimant although to do so detail of the substance would be required, in her reference to evidence of the grounds. That statement was against the background of the limited information provided by the claimant on Wednesday 15 May 2019 in the context that the claimant had asserted a wider position that he had been victimised and bullied by Mr Galpin since Mr Galpin had taken on the role. It was an attempt to seek clarity of what information the claimant wished to rely on. Ms Di Ciccio factually described that managing such a process via post would be very difficult.

[79]On Friday 17 May 2019 Ms DiCiccio logged a Grievance on the respondent MYHR (the May 2019 Grievance) for the claimant which was allocated to Mr Norbert Macko UKI Advisor and HR Generalist. It was a copy of his email of 15 May 2019.

[80]On Thursday 23 May 2019 the claimant emailed the respondent’s Global Ethics & Compliance Team setting out that he was “reporting a violation of ethics as set out in the Dell Technologies Code of Conduct; specifically that there should be no retaliation for whistleblowing, or raising genuine concerns that people should “never bully, threaten, intimidate or hard another person” the May 2019 Ethics Complaint) describing that he had been off work since 29 April with work-related stress, anxiety and subsequent depression caused by a situation with Mr Galpin and Mr Bowne describing he felt that he had been victimised and bullied by Mr Galpin since he took on the role of as the claimant manager. The claimant set out that he wrote to Mr Galpin on 3 May providing examples of the bullying and victimisation, describing that Mr Galpin (in his view) retaliated via email on 8 May accusing the claimant of poor performance over many months and told him he would be placed on a performance plan; on 13 May Mr Galpin emailed him that commission payment would stopped if off work from than 4 weeks, on 15 May Mr Bowen emailed informed him Mr Bowen had been advising Mr Galpin throughout the process, claiming that there had been issues with the claimant’s performance, and “confirming that I will indeed be placed on a performance plan on my return”. The claimant further made reference to Mr Mackie referencing an event which he suggested took place on 13 February 2018 and described that fear of reporting Mr Mackie was discussed with Mr Bowen and Mr Mackie on 18 March 2019 where he set out that Mr Bowen “openly admitted that reprisal may be a possibility if” he choose to report Mr Mackie and described that Mr Mackie had “deliberately not invited him to an important territory review meeting“ and further described that at a meeting of 18 March 2019 there had been no mention of performance issues. The claimant set out what he believed was the health condition of Mr West and referencing what he suggested was a lack of support from Mr Bowen. The claimant set out that people did not require to be trained in mental health not to send the emails he complained of and concluded noting that in the UK the main cause of death for men under 50 is suicide. The claimant, unlike in his communication with Ms Di Ciccio, expressly referred to the claimant’s detailed letter of 3 May 2019.

[81]On Thursday 23 May 2019 Mr Norbert Macko the respondent’s UKI Advisor and HR Generalist acknowledged to the claimant by letter receipt of the May 2019 Grievance (which was submitted separately and without reference to the claimant’s complaint to the respondent’s Global Ethics & Compliance Team on 23 May) raised via Ms Di Ciccio on 15 May 2019 (that was reference to the claimant’s email of 15 May 2019). Mr Macko described that he was now seeking to arrange a meeting “which may enable us to resolve the issues you have raised against your manager Mark Galpin and his manager Richard Bowen based on the Grievance (Problem Solving) Policy, specifically on the base that you feel that you have been victimised and bullied by Mark Galpin since he took on the role.” It was described that the grievance would be heard by an independent and impartial manager of appropriate seniority and offered a meeting with Mr McGowan who was described as an Independent Manager and Mr Norbert on Monday 3 June 2019, via Skype. Mr Norbert noted that the claimant had requested communicating by post “May I please suggest that, in the interest of solving your grievance promptly and without unnecessary delay, we communicate for the purpose of your grievance via email… Many thank for confirming your availability to attend the meeting before 12 noon on Friday 21 May 2019.” There was no reference to the claimant’s detailed letter of 3 May 2019.

[82]On 27 May 2019 the respondent’s Global Ethics Team acknowledged the May 2019 Ethics Complaint saying that they had opened an investigation and would let the clamant know if they had any questions, they described that “please note that during the course of the investigation, the Ethics Team may work with colleagues from HR, Security and other groups, so various steps in the investigation may be handles by employees from one or more of those teams. If you have any more information you would like to share with us or have any questions” he should submit via link provide.

[83]On Thursday 30 May 2019 the claimant attended his private psychiatrist who provided a report to AXA-PPP copied to the claimant’s GP and recommended that GP sign him off work till June 2019 and further recommended that 20 to 40 sessions of psychological therapy were provided (the May 2019 Report).

[84]The May 2019 Report did not describe that the author had been asked to review the claimant’s GP records or other documentation nor that the author had reviewed same. It described that the author had met with the claimant on 22 and 30 May 2019 to complete a psychiatric and psychotherapeutic assessment, over 90 and 60-minute appointments.

[85]On Treatment History the May 2019 report described that the author was “slightly unclear in time scales, but understand a diagnosis of Depression and Anxiety was made in the last 2- 3 years, with Citalopram 20mg prescribed since. This has been increased by his GP to 30mg in response to the recent episode of persistent low mood and high anxiety and sick leave from work again with some benefit”.

[86]The May 2019 report did not describe that the author had any reviewed any emails or documented discussions with the respondent. The May 2019 report reflected the claimant’s description of matters to the psychiatrist.

[87]No comment in the May 2019 report was provided regarding proposed remote attendance by the claimant on Monday 9 June 2019 with the Independent Manager Mr McGowan.

[88]On Friday 31 May 2019 at 6.52 pm the claimant sent a short email to Mr Macko “Hi Norbert Please be advised I am still on sick leave” in response to Mr Macko’s email of Thursday 23 May 2019. The claimant did not respond to the request on his availability to attend a remote (skype) meeting on Monday 3 June 2019. The claimant did not set out that he was unable to attend the remote meeting. He did not refer to it at all. The claimant did not provide a report from his physician.

[89]In around June 2019 the respondent’s then consideration of a WFR to lose one SE from around November 2018 did not proceed further at that time.

[90]On Monday 3 June 2019 the claimant elected not attend what had been a proposed remote meeting with the Independent Manager Mr McGowan.

[91]On Monday 3 June 2019 Mr Macko, emailed the claimant in brief terms “Hi Grant, Thank you for advising. We’ll wait for you to return to proceed with the grievance investigation”. That was a response to the absence of the claimant’s confirmation of the claimant’s availability to attend remote (skype) meeting on Monday 3 June 2019 before 12 Noon on Friday 21 May 2019 accordingly, there was no remote meeting with the Independent Manager Mr McGowan on Monday 3 June 2021. The information available for the purpose of the May 2021 Grievance remained as summarised by Ms DiCiccio for the claimant on Friday 17 May 2019 as provided by the claimant to Ms DiCiccio. The respondent did not end the May 2019 Grievance at that time, rather they expressly set out that they would wait for the claimant to return to proceed with same.

[92]On Thursday 6 June 2019 the claimant emailed Ms DiCiccio provided a further Fit Note which extended his absence to 10 July, setting out that he had “looked over the Generali information and feel that I am getting the proper care from my current doctors so I won’t be proceeding with that”. The claimant set out that it was his decision and did not describe that it was on clinical advice.

[93]On Thursday 6 June 2019, Ms Di Ciccio acknowledged further fit note provided by the claimant via email and set out “please note that you can change your mind and engage with Generali in a later moment”.

[94]On Monday 10 June 2019, Mr Macko provided a further brief email the claimant setting out “Further to email” being his email of 3 June “below I understand your sick leave has now been extended for a further month until 10.07.19. Since, due to your absence, we have not been able to progress your grievance and our internal systems and process requires us to close such grievance with cases within the 30 day period, I will have to close you MyHR case (HRC0571184). You will be required to submit a new case upon your return to work at which point we will pick it up again. If you have any questions or require assistance with this when you return, please feel free to contact me directly.”

[95]The respondents had not been able to progress the grievance through their processes, reflecting the claimant’s decision not to respond to the request to confirm his availability to attend the remote meeting with the Independent Manager Mr McGowan on Monday 3 June 2019. The respondent’s process requiring closing such grievances following 30 days of inactivity was a practice which would be generally applied to the respondent employees. The claimant was in June 2019 capable of confirming his position on attending a remote meeting. The claimant was able to attend the remote meeting offered with the independent manager Mr McGowan. The inactivity did not arise from the claimant’s disability, it arose from the claimant’s decision not to respond.

[96]On Wednesday 19 June 2019, Ms Eleanor Smith respondent HR Advisor issued letter via post to the claimant, introducing herself as the point of contact during the claimant’s sickness absence, taking over from Ms DiCiccio who was based in Italy. Ms Smith described that she understood from Ms DiCiccio that he understood that the claimant’s preferred method of communication during his leave was post and confirmed the postal address of the office at which she was based. She asked “I wanted to confirm with you whether you would be comfortable in me sharing your postal address with Mr Bowen. This would be in order for him to maintain contact with you regarding your wellbeing and whether there is any further support which we can offer. Please let me know if you would be happy for this information to be shared with him for this purpose.” Ms Smith set out that she understood that the claimant did not wish to engage with the rehabilitation service offered through Generali and “just want to confirm that this provision is still available should you want to proceed with it. It can offer personalised rehabilitation as well as, once suitable, a return work plan to meet your needs. Please do not hesitate to contact me should you need any further information.” Ms Smith’s understanding of the claimant’s position at that date was correct.

[97]On Friday 21 June 2019, the claimant emailed Mr Norbert expressing disappointment that Mr Norbert “not been able to progress the grievance, because I am sick leave”, describing that the reason that he was on sick leave was, the claimant argued, was as a direct result of the behaviour of the two individuals reported in the grievance. “It appears that my case has not been investigated at all even though I pointed out in both emails to your colleague” Ms DiCiccio “on 17/05/2019 that you have all the information you need to substantiate the claim”. He did not describe that he had been unable to attend a remote meeting with the independent manager due to a disability. The claimant was incorrect in asserting that he had provided all the relevant information, he had not provided the detail to Ms Di Ciccio as part of the grievance as he had been requested, which he had set out in his lengthy email to Mr Galpin Friday 3 May 2019. The, then current position, further reflected the claimant’s decision not to attend what had been proposed as a remote meeting with the independent manager Mr McGowan.

[98]On Thursday 27 June 2019 at 8.33 am, Mr Macko on a return from leave, in response to the claimant’s email of 21 June, responded by email providing clarity as to the terms of his brief email of 10 June, describing that the claimant had been sent the grievance invitation letter by post on 24 May 2019 “where we sought to arrange a call with you to enable us to fully hear your grievance and obtain the necessary evidence to investigate the allegation you had made in your email of 15/05/2019. You replied after the deadline stating you were still on sick leave. I confirmed we would wait for your return to proceed with the grievance investigation as you did not indicate you wish for the grievance to be held in your absence or supplied any evidence. Despite the fact that we had requested that you provide the evidence you refer to in your grievance, to date you have not provided any emails/ communications to us. As per the attached grievance policy…, a copy of which was also enclosed with the grievance invitation letter, team member is required to cooperate with investigation by responding to all requests for documentation etc. It is imperative that the evidence supporting allegations is provided by you, to avoid any misunderstanding as to which emails you refer to, and also to make sure all the evidence you wish to be submitted is part of the grievance investigation. If you wish for your grievance to be heard in your absence, please provide any emails/ communications you refer to in your grievance and any additional evidence /statement you wish to be part of your grievance (In addition to the original grievance). If you wish for your grievance to be heard on your return from sick leave please advise. I look forward to hearing from you at the earliest convenience, confirming how you wish to proceed. If you have any questions in relation to your grievance, please do not hesitate to contact me.”

[99]On 27 June 2019 at 12.24 pm, the claimant issued a short email to Ms Smith thanking her for her letter of 19 June and describes “I am fine communicating with you via email and if you have read all emails between Ms DiCiccio and myself you will understand why. This leads me to be being a little confused as to why you would think I would want to hear from Mr Bowen if you indeed have read all those emails. I absolutely do NOT want to hear from Mr Bowen or Mr Galpin “until all internal investigations have been completed”. The claimant was responding to the suggestion that his home address be provided to Mr Bowen for contact purposes. The claimant did not offer to expressly identify what he emails he was referring to, nor provide same. He did not identify that he had separately submitted the May 2019 Ethics complaint. The reasonable reading of the claimant’s email of 27 June 2019 was simply that he did not wish to engage with either Mr Galpin or Mr Bowen, as he had complained about both.

[100]On 27 June 2019 at 5.12 pm Ms Smith responded by email to the claimant’s email that day thanking him for reaching out and thanked also “for confirming that you do not wish to be contacted by Mr Bowen in the interim. I acknowledge your feedback. My colleague Mr Macko has been the point of contact for your May 2019 Grievance and he will be able to discuss this with you in more detail should you wish. I will be working with him to ensure we are aligned on your guidance/ wishes. I'm pleased you're happy to communicate via e-mail it should be a more reliable method for us both. I am always concerned about letters not making it to their desired destination. Going forward, please do reach out to me with any changes in your situation, or if you receive a further doctor's certificate. I would like us to keep in contact during this period and then I can follow up on your well-being and see if there is any further support available. I am aware you have previously received details on the rehabilitation service offered through our permanent health insurance provider, Generali, and also details on the Employee Assistance Programme. I just wanted to reconfirm their availability should you want to meet use of them as tools to support your recovery. The employee assistance programme is available 24/7 and is totally confidential it can offer telephone and face to face counselling as well as advice and guidance articles it can be a valuable supplementary tool for recovery.” A web link was provided to both the Employee Assistance programme and to what was referred to as the EMEA specific portal. Ms Smith further set out that “The rehabilitation service on the other hand provides a review of your situation in order to offer a personalised guidance advice and return to work plan when suitable this would also advise whether there are any adjustments which may help your situation please let me know if you need any further guidance or information in the meantime”. While acknowledging that the claimant did not wish to be contacted by Mr Bowen, this was in the context that Ms Smith had proposed providing Mr Bowen with the claimant’s home address for contact which the claimant had declined referring to both Mr Galpin and Mr Bowen. The claimant had not identified to Ms Smith that he had issued the May 2019 Ethics Complaint.

[101]On Tuesday 2 July 2019, Ms Smith in email to the claimant identified to the claimant that he was reaching the end of the 10-week period for full company sick pay (CSP enhanced from SSP) and described that by completing accompany forms and reviewing attached letter she would be able to submit a Permanent Health Insurance claim. The letter described that 10-week absence would be reached on 9 July 2019 “which is the point we need to commence the process of submitting a claim under” the PHI insurance scheme provided by Generali “the purpose of this scheme is to provide team members with a regular income if they are unable to work due to long terms illness of injury... team members are not required to contribute to towards the cost.” It described that if unable to work for more than 26 weeks the claimant may be eligible for income protection and if a claim was made and accepted after 26 weeks it would pay at 67% of basic annual salary over the previous 12 months pus amount for fluctuating emoluments in the previous 3 years include bonus sales commission, overtime, shift pay, but excluding car and long term allowance. It requested that the Employee claim form be completed along with Declaration and Consent form and returned as soon as possible. It also set out detail of the Employee Assistance Programme.

[102]On Tuesday 9 July 2019 at 10.43 am, Ms Smith, as follow up to her email of 2 July, emailed the claimant noting that the then current Fit Note was due to expire the following day 10 July 2019 and commented “Have you received another certificate from your doctor at this stage or will you be meeting tomorrow? Alternatively, should you doctor not sign you off again, please let me know of any updated to your situation to allow us to support your return?”

[103]The claimant responded that day “My Doctor is intending to sign me off again and I will forward the fit for work certificate to you as before. As for the generali, both you and Ms DiCiccio have been very keen to sign me up to this . I have given this a lot of consideration and whilst I understand it’s merits for a lot of situations I don’t think it is applicable to my scenario. The main reason is that I am currently under the care of a very experienced and well respected psychiatrist. His treatment follows a very specific and tailed programme. I don’t believe the generali programme offers the same level of care but I would be obligated none the less to follow it which I think would do more damage than good for my situation. Additionally, I would have to agree to Dell having full access to my medical records and I am not comfortable with that intrusion of my privacy. The main thing is that I am getting the best medical care available which I hope Dell will be happy with and supportive of.” The claimant’s email was misleading in that he did not consider that the support offered would adversely impact on his condition, he had not been advised that it would, he simply did not wish to engage with the respondent’s offer of support.

[104]Ms Smith responded at 4.29pm that day to the claimant, thanking the claimant describing that she completely understood that he was happy with the support he was receiving from the health care professionals he was working with and set out “We are just trying to provide you with all the support available to team members who are facing medical issues. I also want to take the opportunity to provide some further detail on the forms you have received as the Generali details which have been shared comprise 2 elements. The initial documentation shared was relating to the rehabilitation offered through our Generali permanent health insurance. This service aims to offer detailed advice, rehabilitation guidance and a personalised return to work plan. As we are now approaching the 10 weeks absence mark, I provided some additional information and forms for you this is to begin the process of submitting your claim to Generali directly for the income protection insurance. Income protection/long term disability payments would begin after 26 weeks of absence, subject to the member satisfying the provider’s definition of incapacity. This would offer continuation of income for team members once company sick pay is no longer payable and towards the end of statutory sick pay. The claims process can take up to 13 weeks so the forms are sent now to avoid any delays in your case. I hope this provides more clarity on the forms which have been provided please let me know if anything is unclear and I am happy to provide any further guidance.” Ms Smith set out in clear terms two distinct processes:a. the first related to rehabilitation including a personalised return to work; and

b. the second related to the possible provision of income protection which would begin after 26 weeks of absence, subject to meeting the insurance providers definition of incapacity.

[105]The claimant did not wish to engage with either, he did not wish to seek rehabilitation for a return to work, nor did he wish to engage with a process of income protection.

[106]On Monday 15 July 2019 at 8.51 am the claimant emailed Ms Smith describing that he had an appointment with “my doctor at 3.40 today. I will forward the paperwork after that” Ms Smith responded briefly thanking the claimant for letting her know and described that she hoped the “appointment goes smoothly”.

[107]At 9.22 am the claimant emailed Ms Smith describing that he had come back from leave and set out that he “wanted to thank you for the offer of Generali. As stated before, I have taken third party help and consider myself in the best of care. If you feel I am not getting the best of care then I beleive you should state clearly your reasons why. As for income protection we're a long way off that and it is not something I'm thinking about. That said if I'm reading the documentation correctly the 26 week limit is not mandatory but more of a guidance guideline at the discretion of Dell. Therefore, given my particular circumstances and the reasons as to why I am ill and off work it would seem particularly harsh for that to be implemented: but that is of course up to Dell. I am happy to converse by email but please may I remind you as to the reasons why I'm off. Therefore, if communications get to a point where I feel it interferes with my mental health treatment then I will ask for it to be paused I hope you understand.” The claimant’s response of 15 July to Ms Smith reflected his position that did not wish to engage with or seek rehabilitation for a return to work, and nor did he wish to engage with a process of income protection which identified it was subject to a provider’s definition of incapacity. The claimant’s position did not reflect any medical advice he was receiving.

[108]On Monday 15 July 2019 at 10.11 am, the claimant replied, by email to Mr Macko’s email of 27 June 2020, apologising for his delay in doing as he had been on leave. The claimant set out criticism including that “it is clear that you have not read in detail all previous correspondence” without specifying same. The claimant continued that “I think I will leave this until I feel well enough to re-open the grievance before my return to work as per your rules. However I would like to highlight some points in response to your email,” setting out 6 bullet points:a. there had a recurring theme of no consideration as to the claimant’s assertion that that was on sick leave due to mental problems as a direct result of the two individuals he had raised a grievance about.

b. Mr Macko letter of 23 May indicated that Mr Macko had not realised that he was still on sick leave.

c. There was no deadline, the letter of 23 May 2019 merely asked the claimant to confirm his availability “which I did later that day. I received the letter on Wednesday 29th around mid-day. That gave me a day and half to decide if I was capable of such a meeting as to whether I should attend and collate any information I thought I would need to refer to. Given the reason I am off work. I would have thought the considerate thin to do would have been to first check if I felt up for such a meeting and then allowing me to choose a date rather than placing me under such time pressure.

d. In the same letter you did not ask for copies of the emails in advance of the meeting.

e. I have read the grievance policy and whilst I did not physically provide you with emails there was no ambiguity in my email to” Ms DiCiccio “It states exactly the emails that should be referred to.

f. Additionally, the grievance policy makes no reference of how things should be handled when a member of staff is off sick. It also makes no mention of how the procedure applies to staff with mental health problems or what provisions should be made if any.”

[109]The claimant concluded “I will reiterate as I did to your colleague” Ms Smith. “I am happy to converse via email but if I feel it interferes with my mental health communication then I will look to pause communication.”

[110]On Monday 15 July 2019 at 3.38 pm, Mr Macko issued reply by email which said “thank you for your email and confirming that you will advise us when you feel well enough to proceed with your grievance. Your grievance and the points raised below will be addressed when we reconvene the grievance process”.

[111]Mr Macko on 15 July expressly set out that the claimant’s grievance would be addressed when “we reconvene” the grievance process. At that stage Mr Macko did not know that the claimant would subsequently on 14 August 2019, impose as a condition of continuing with the claimant’s May 2019 Grievance that Mr Macko express his view on the merits and in particular whether Macko saw “any wrong doing” in the emails referred to in the claimant’s May 2019 Grievance.

[112]On Tuesday 16 July 2019, Ms Smith again emailed the claimant thanking him for coming back to her and set out that she “completed understand that you need to do what's best for your mental health and I'm pleased to hear you trust the support you are receiving. The provision of the Generali documents is to ensure you are aware of and have access to all the tools and resource Dell EMC make available for team members who are currently unable to work due to sickness. These are then available should you wish to utilise them at any point and they have been very valuable tools previously. The purpose of the long term disability insurance is to provide team members with a regular income if they are incapable of undertaking work because of long term illness or injury. General, the insurance provider would cover the ongoing provision of salary once the 26 week limit for Company Sick Pay (CSP) has been reached. The reasons the forms are sent early is that claims can take up to 13 weeks to be approved. This enables us to take to ensure any necessary transition between the CSP and the Long Term Disability Insurance is as smooth as possible for team members. The intention is not to send large numbers of forms for completion. Once we receive the doctor's certificate we can review our communication schedule to not interfere with your recovery. In addition to receiving certificates, I just want to check in now and again on your welfare and see her see if there are any changes to your situation. This will enable us to support you in the most effective way possible I hope this clarifies.” Ms Smith again identified two distinct processes:a. the first related to rehabilitation, previously identified on 2 July 2019 which included a personalised return to work; and

b. the second related to the possible provision of income protection which would begin after 26 weeks of absence, subject to meeting the insurance providers definition of incapacity.

[113]The claimant did not wish to engage with either, he did not wish to seek rehabilitation for a return to work, nor did he wish to engage with a process of income protection which identified it was subject to a provider’s definition of incapacity.

[114]On Tuesday 16 July 2019, the claimant in response, provided GP Fit Note to Ms Smith for the respondent, apologising that he had tried to send this the previous day but had only (then) realised that none of his sent emails had got through to anyone. The claimant offered no criticism of the two processes identified by Ms Smith nor indeed Ms Smith’s actions in relation to same.

[115]On Monday 22 July 2019, Ms Smith, further to her email of 2 and 16 July 2019 set out in letter form clarification of the respondent’s Sickness Absence Policy and the respondent expectations of team members, she described that the respondent offered a range of support mechanisms through third party providers and set out that “Under the Sickness Absence Policy, team members are expected to avail themselves of all support offered to assist with their own recovery”. She again described:a. the Rehabilitation, Service identified on 2 July 2019 which included a personalised return to work “to allow a connection between you and the Company to be maintained… This service is offered to team members following 4 weeks sickness absence and is intended to compliment support team members are already receiving”; and

b. the process, after 10 weeks of sickness absence where team members are provided with documents to enable them to begin the process of submitting a claim under the PHI scheme and reminded the claimant that the respondent offers up to 26 weeks of company sick pay additional to statutory sick pay, with the purpose of this process “is to provide continuing salary payments for reasonable period of time for those who are genuinely unable to work because of sickness/injury. Payment under the scheme are made at the Company’s discretion. DELL EMC reserves the right to withdraw payment should a team member fail to engage with the support provided-including by third parties”

[116]In her letter of 22 July, she further described that “Under the sickness absence policy the company requires regular communication to be maintained between the team member and their leader. The company acknowledges that you do not wish to communicate with your leader at this stage. It is vital, however, that reasonable communication exists between you and your leadership team, this is to enable them to check in on your welfare, understand your progress and best support your return to work. Therefore, a communication schedule should be agreed between yourself and Richard Bowen, Director, Systems Engineering. These calls should take place every two weeks. They should be pre-arranged to ensure both parties are able to attend. It is imperative for the company to hold welfare discussions and to enable them to best meet your support needs. In order to continue benefiting from CSP from 1st August 2019 please complete and return your rehabilitation service consent form and review the assessment brochure in advance of 31st July 2019. These documents were issued to you 15th May 2019. It is expected that by 31st July 2019 a communication schedule will be agreed between yourself and Richard Bowen. You should also complete a complete the Permanent Health Insurance Employee Claim form and the Declaration and Consent form to enable us to support to submit a claim on your behalf. These forms were sent to you on 2nd July 2019. This will allow you to avail all the tools the Company makes available to support a team member’s recovery during the period of sickness absence. I have enclosed a copy of the sickness absence policy for ease of reference. Please do not hesitate to contact me should you need any further information, or you would like me to resend any of the aforementioned forms.”

[117]In Ms Smith’s 22 July 2019 letter, she did not threaten to stop sick pay unless the claimant signed consent forms and agree to a meeting schedule with Mr Bowen. Ms Smith fairly described that contractual company sick pay, paid over and above SSP would come to an end. Ms Smith did not threaten the claimant with a sanction. She fairly described the process which would operate. The claimant did not refuse to sign consent forms due to outstanding questions. The claimant had failed to engage with the reasonable offer of a meeting with independent manager Mr McGowan. The claimant was not genuinely and reasonably fearful that the occupational health process would interfere with his then-current medical treatment. She set out that there was an expectation that by 31 July that a communication schedule be agreed between the claimant and Mr Bowen and set that a requirement, until the claimant responded on 26 July on same following upon which the expectation was withdrawn on 31 July 2009.

[118]On Wednesday 24 July 2019, the claimant emailed Ms Smith, in response “I received your letter I'm confused why you choose to write rather e-mail as you've been urging me to do; I will assume you just use e-mail going forward. That aside, I would like you to answer a question for me before I respond to the content of the letter. The tone of your correspondence has dramatically changed it has gone from supportive to adversarial. My question is this. Is this change in tone entirely your doing or you or are you being guided by someone else, your boss for example? If the latter, then please hand this over to that person alone let them introduce themselves and like to know who it is I'm dealing with.”

[119]On Thursday 25 July 2019, Ms Smith responded at 1.25pm professionally “Thanks for confirming receipt of the letter. I sent this letter to provide clarification on the sickness absence policy and the expected engagement with all aspects of it I continue to be your HR point of contact for topics during your period of sickness please let me know if you require any further information on any of the support provisions which have been provided alternatively as mentioned in the letter please let me know if you need any of the forms again”.

[120]The claimant issued his response at 2.40pm that day “Thank you for the carefully worded e-mail which fails to address any of the points in my last correspondence. The other concerns that remain to be addressed (re-stating policy does NOT address concerns) are detailed on emails dated: 27th June 12:23 9th July 12:16 15th July 9:22. Once you've addressed those these concerns we can move forward and why you've resorted to threatening me with removal of CSP (letter 22nd July)”

[121]Ms Smith had responded to the claimant’s email of 27 June on that day, to the claimant’s email of 9 July on that day and to the claimant’s email of 15 July on 16 July. The claimant did not identify what points he considered remained outstanding. The claimant did not consider there were any outstanding points.

[122]On Friday 26 July 2019, and while Ms Smith had responded to the claimant’s email of 27 June that day, to the claimant’s email of 9 July that day and to the claimant’s email of 15 July on 16 July, she again sought clarity as to what concerns he was suggesting he had, at 4.18pm “Please let me know what concerns you still have regarding the next steps. The letter outlines the support provisions made available for individuals during a period of sickness under the Sickness Absence Policy. It offers clarification regarding the expectations of team members during sickness absence. Team members are expected to engage with all support in order to assist their own recovery. The company reserves the right to withhold Company Sick pay should team members fail to engage with the support provided. Engagement with the services offered is actively encouraged in order to support in order to help support and guide team members during the sickness absence and assist with sustainable return to work programme, when appropriate.” Ms Smith factually and consistently set out the respondent’s expectation of engagement to seek to assist employee recovery. Ms Smith described the respondent’s requirements. Ms Smith did not threaten to withdraw sick pay to which the claimant was otherwise entitled.

[123]The claimant set out in response at 6.11pm “I think I may have to take a break here as your communication makes no sense and rather than help with my recovery it is not only impeding it but setting it back. You keep changing the language and the messaging. it is not consistent. For someone with my condition that causes huge amounts of stress. My concerns are clearly stated in my previous email and I even gave the specific emails to reference. Forgive me for saying this as it sounds harsh, but a person trained in HR should be able to recognise those concerns and address them accordingly. You haven't. What you choose to do instead was threatened my ability to provide for my family if I didn't comply to your demands by 31st of this month. How did you expect that would affect me? How do you expect me to speak intelligently to you if you refuse to address my valid concerns but threaten me instead? Now you've gone from deadlines to saying the 31st of this month the language of it is actively encouraged which is it? As for Richard Bowen, I am going to ask questions that I will expect an answer to… if you were off sick and held a manager partially responsible for that illness where there was an outstanding grievance complaint against that manager for the same reason, would you want to be forced to communicate with him every two weeks? I'm happy to talk to you personally every two weeks. I'm also happy to talk to Generali to understand exactly what they offer and how that may complement my current treatment but not interfere with my current structured healthcare but both options have never been presented are these really unreasonable requests ….my psychiatrist is on holiday and I'm due to see him on 13th August. Please let me talk to him and get guidance on how I should communicate. I'll be in touch on 14th of August. Please do not send any more emails until then all of this is extremely distressing for me. I thought you wanted to help... “.

[124]On Wednesday 31 July 2019, Ms Smith emailed the claimant in reasonable terms “I really appreciate you coming back to me during this. It is incredibly valuable to help me understand your situation and enable the company to help you in the best way possible. I acknowledge your request to suspend further communication communications to allow you to speak to your psychiatrist. Also, to confirm. I take onboard your concerns about being contacted by anyone in your direct leadership team. I am happy to remain your point of contact during your sickness absence. I just want to clarify a couple of points with you first, to help you to help provide more clarity in the background. The reason I reiterate the support provisions is that I want to ensure that you are aware of and have every opportunity to avail of all the support Dell offers to team members during sickness absence. Should you be unable to return to work during sickness absence after 26 weeks, the income protection insurance (provided by Generali) is intended to provide team members with a continued income. I don't want you to miss out on having this option. The income protection though, is time dependent and claims cannot be submitted retrospectively with great success. Additionally, it takes a number of weeks for these claims to be reviewed. I want to ensure you have access to all the support available to you under the Sickness Absence Policy. These support mechanisms also help me support you most effectively. I completely understand there's a lot of documentation connected to both rehabilitation services and the income protection. If this is too much at this stage, please let me know if you'd like me to work with a family member to help have these forms completed. Alternatively, you may want a family member to make enquiries with HCML (the rehabilitation provider) directly to understand the support they offer. This may provide further clarity import the provision includes. I await your update on 14th August. I look forward to hearing from you and I would hope by this stage you will be intending to avail with all the support provisions offered by Dell in order to support your recovery. I am keen to ensure you receive all the support available.” Ms Smith accepted expressly that there was no requirement to have contact with either Mr Bowen or Mr Galpin.

[125]On Wednesday 14 August 2019, the claimant emailed Ms Smith describing that he had his appointment with his psychiatrist and “we spoke about my situation. He too is concerned that I will be effectively handing over my care in the middle of over very structured programme where I MUST comply to all requests as stated in the terms and conditions and yet have no knowledge about what that would involve. You have not answered any of my questions and concerns regarding this, so on this basis I will not be signing the Generali forms. I would however like further clarification on HCML. I seem only to have an overview document for them. Are they affiliated or work in combination with Generali in anyway? All that aside I'm still extremely concerned about your letter dated 22nd July where you threatened me. I don't even know if I will receive any salary this month but have to assume that based on this letter I won’t. You're refusing to answer direct questions but continue to use evasive language instead. To date you've done far more damage than good and this begs another question which is this: is DellEMC’s HR department truly independent for ALL employees as the documentation suggests it is, or is it simply their to fundamentally protect the interests of the company? I would like an answer to that one too please. As agreed if you want to agree a schedule I would be happy to talk over the phone.” The clamant was not advised at or about this time that there was any clinical concern regarding any respondent processes. Ms Smith’s letter of 22 July did not threaten the claimant and could not be reasonably read as doing so, it set out the respondent company sick pay arrangements. Ms Smith had not been evasive in her communications with the claimant, she had sought to provide relevant information to the claimant. The claimant did not propose dates for or otherwise agree a communication schedule with Ms Smith.

[126]On Wednesday 14 August 2019, the claimant emailed Mr Macko in a short email which read “Hi Norbert, I would like to reopen the grievance as discussed in the email of 15 July 2019. However, while I do not feel up to interviews I would like to ask in the interests of expediency and preparation if you could review my email to “Ms DiCiccio “and read the emails referred to and one answer one question before we move forward. Do you see any wrong doing in this emails? A simple yes or no will be fine and will determine if I move forward with the complaint.”

[127]While the claimant referred to “my email to” Ms DiCiccio, he did not set out which email he was referring to, nor did specify which emails Mr Macko should understood as being referred to. The claimant elected not to refer to his more comprehensive May 2019 Ethics Complaint. The claimant was referring to his email of Wednesday 15 May 2019 to Ms DiCiccio which referred to 3 emails. The claimant’s email set out a direction to that Mr Macko should confirm his view before the claimant would decide on whether to re-open and continue with his May 2019 Grievance. The claimant set out, not that he was seeking to continue with the May 2019 Grievance but rather, before he made a decision on same, he wanted Mr Macko’s opinion.

[128]On Thursday 15 August 2019, Mr Macko, in reasonable terms, set out that he would re-open the grievance “and investigate the concerns outlined in your email” to Ms DiCiccio. “I will, however, hold back on forming a view either way until I have had a chance to interview those involved and full reviewed the emails referred to in your grievance. I appreciate that you do not want to be interviewed and accept this, however this will mean we will form a view based on the limited information available. Please allow me some time to collate the information and I will respond to you in due course. If you have any questions in the meantime, please do not hesitate to contact me.”

[129]Mr Macko’s email of 15 August 2019, was a reasonable response to the direction set out in the claimant’s email of 14 August 2019. Mr Macko reasonably set out that, while the claimant wanted Mr Macko’s view before the claimant would decide on whether to re-open and continue with the May 2019 Grievance, Mr Macko would hold back at that stage from expressing any view; describing that Mr Macko would interview those involved the claimant’s email of 15 May 2019. Mr Macko, as requested by the claimant, did not interview the claimant and restricted his interviews accordingly to Mr Bowen and Galpin on the May 2019 Grievance having read the emails which were referenced therein and reported to the claimant on his finding on Wednesday 18 September 2019 on the matters within the May 2019 Grievance. As the claimant had declined to be interviewed there were no other reasonable steps for the respondent to have taken. There was no obligation on Mr Macko to identify the content or substance of the separate May 2019 Ethics Complaint which the claimant had consistently failed to identify to Mr Macko.

[130]On Thursday 15 August 2019, the claimant emailed Ms Smith stating “I would like to try to get this past one more time. I am not against Generali or signing up. I just need to better understand it. Someone had told me that insurance companies such as Generali will very rarely do anything else than expect you to adhere to the treatment being proposed by your own doctors. Is this the case? If so, then I am happy to sign up. Help me understand what’s involved. I am frightened they intervene, insist on a new psychiatrist, put me on new medication etc. These are all very real fears for me. I don’t know what else to say?”. The claimant did not hold and had not held as a genuine or reasonable belief the position he set out.

[131]On Friday 16 August 2019, Ms Smith responded after a short delay due to IT problems apologising for that delay and confirming that she was happy to arrange for the claimant to “speak to one of the team at HCML, the rehabilitation service. It will be a conversation with someone from the Clinical team. The rehabilitation service aims to work in partnership with the care you are receiving from your doctor’s. They will not override the advice and treatment you are already receiving. They cannot override your existing plan as any information they provide, will always be advice. For example they will often advise additional resource which may be helpful for individuals recovery or where to find additional support. While HCML’s rehabilitation services are provided through our relationship with Generali as this was not provision they could offer in house. They therefore had to engage with an external advisor”.

[132]Later that day the claimant responded “This makes much more sense to me. I would be happy to speak to someone from HCML and ask some questions. If what you state below is the case I see no reason to avoid signing the forms. Let me know when is suitable for a chat please.”

[133]On Friday 16 August 2019, Ms Smith thanked the claimant for coming back so quickly identified that she had contacted HCML and hoped to hear back early on the Tuesday (20 August) and asked “Would you be happy for me to share your personal email with her to enable her to reach out if necessary” to which the claimant responded at 9.13 pm “Of course”. Ms Smith made contact with (p577) HCML and described her understanding of the claimant’s expressed concern was that “the service will try to override feedback from his doctor psychiatrist and may force him to change medication or points of contact. I have reassured him that this is not the case and that your service aims to supplement the care he is already receiving”.

[134]On Monday 20 August 2019, Ms Smith confirmed to the claimant that she had shared his email with HCML. An Occupational Therapist at HCML at 9.54am emailed the claimant indicating that Ms Smith had given his email as he had a couple of queries with regard to HCML and “how we can support you”, a direct number was provided indicating “please feel free to call me at any point before 2pm today and we can discuss our process/service.. Look forward to speaking with you soon”. The claimant did not call until after 2.15pm and emailed at 3.08pm indicating that he tried calling but got her voice mail and he had “just noticed the small print about your working day ending at 2.15. Apologies for that. Please feel free to call when it is convenient for you”.

[135]On Thursday 22 August 2019, the claimant emailed Ms Smith advising that he had spoken with HCML who he indicated would send him additional information. HMCL on that day, having made contact with the claimant, (p560) provided the claimant with a brochure which included an example of face to face rehabilitation (p564) report they provide, the example report concludes with a general statement that HCML’s services are provided on a without prejudice basis, they are intended for treatment purposes only with a focused outcome to assist with recovery and return to work, their services are not provided or intended for medico legal purposes.

[136]On Friday 30 August 2019, Ms Smith emailed the claiamnt setting out that “under the sickness absence policy team members are offered a certain number of Sales Commission Payments (SCP) during their initial period of absence. These are offered on a sliding scale during the first, second and third months of absence. Upon following up with the Payroll team, they advised they had not processed any payments for Sales Commission during your absence. This had been due to the way the EMC SCP team calculates and shares owed commission with the Payroll teams for processing. I had asked the teams to review the figures and, in August payroll, the SCP for this period is due to have been paid to use an additional lump sum. Apologies for the delay in this payment and please let me know if you have any query questions. HR does not have access to the payslip so I may need to seek confirmation from the Payroll team.”

[137]The claimant responded that day that he didn’t know if he “was getting paid at all this month based on previous correspondence. It sounds as though I may and the commission would be most welcome well spotted.”

[138]On Tuesday 3 September 2019, Ms Smith emailed the claimant “I’m pleased to hear that your and” HMCL representative “spoke about the service HMCL offer. I understand she sent through some further information regarding the support that HCML provide to team members who are out due to sickness. Please let me know if you require the form for HCML engagement resend or whether you still have access to the forms previously sent.”

[139]On Wednesday 4 September 2019, the claimant replied requesting that Ms Smith resend the form to make sure he had the most up to date ones. Ms Smith responded that day as requested with the forms required to commence engaging with HCML’s early intervention service provided through Generali.

[140]On Thursday 5 September 2019 at 11.33 the claimant emailed Ms Smith “Please see attached form. Does this invoke income protection or is that a different set of forms?”.

[141]Ms Smith responded at 2.01pm “Thank you for returning this form. Are you able to confirm the best telephone number for HCML to contact you on? I will share this with them and also share your e-mail address. There is a separate set of forms for the income protection application. The rehabilitation/ early intervention service does not trigger any claim actions for income protection. I've attached the forms that to commence this process here for ease. These forms will enable us to support a claim on your behalf. Please also provide a copy of your ID for the claim application too. Generali require this with the claim submission. once again thanks for sending this through.”

[142]At 2.39pm the claimant emailed Ms Smith complaining about handling of occupational and employee insurance process, he opens with his mobile telephone number “As for the whole Generali thing. The whole issue has been extraordinarily stressful and detrimental for me and it needed have been had you or your extended HR team simply addressed my concerns when I brought them up weeks ago. I told you numerous occasions how this was affecting me and yet you did not address those concerns which has it turns out was very easy to do. Another point would be your letter dated 22nd July threatening me you and your staff have allowed me to suffer unnecessarily, whilst on sick leave for mental health problems, by allowing me to believe for a period of 40 days that I would not be paid anything. What reasonable person does that?? As stated, before my whole experience with each other has made matters much worse for me and you should know that. I will fill out the other forms and send them over.” The claimant did not set out what concerns he had. The claimant had no reasonable and genuine concerns that engagement with the respondent provided would have any adverse impact on treatment he was already receiving. The claimant was aware that CSP was due to expire in October. The claimant’s understanding of the expiry in October of CSP was the reason for the claimant’s change of approach on engagement.

[143]On Thursday 5 September 2019, the claimant signed both Generali forms Group Income Protection (PHI) and Early Intervention (HCML) forms – consenting to medical report being supplied to Generali that consent set out that medical records may be used for the purpose of occupational health and rehabilitation.

[144]On Friday 6 September 2019, Ms Smith set out response to the claimant “Thank you for coming back to me so quickly. I have shared your phone number with each HCML. They should make contact soon but please make let me know if you do not hear from them in the coming days and I will follow up. It would be great to be able to get you set up with that support as soon as possible. I'm sorry you that you felt your concerns were not addressed regarding Generali/HCML. We had regular communications in which I tried to outline their role in the process and the support they provide. As a result of the concerns you expressed, I then requested a specific discussion between you and HCML team directly to help you feel help you better understand the process. This is not something which is has previously been offered by HCML but I felt it would be valuable. I’m pleased you found it a productive discussion. Regarding the letter on 22nd July this was sent to outline sickness absence policy and expectations for team members under it. The more support a team can engage with, the better their support for their recovery. It was therefore a priority for the Company to get you engaged with HCML as soon as possible to provide you with that assistance and since this letter it has been our effort to have you engage with them. It was not sent to threaten you I appreciate you confirming that you will send through the additional forms.” Ms Smith reference to claimant concerns, were those concerns expressed, but not reasonably and genuinely held by the claimant, that engagement with the respondent processes would impact adversely on treatment he was already receiving.

[145]On Monday 9 September 2019, the claimant attended his GP who recorded at that time “work issues causing anxiety and depression, didn’t divulge what work issues were but ongoing and everything in hands of solicitor. Expecting everything to ‘kick off’ end Oct. and things to get worse for him.” The claimant was on Citalopram 30mg which allowed him to cope day to day but not “big hits”. The reference to end of October was a reference to when company sick pay was due to expire.

[146]On Friday 11 September 2019 the claimant liaised via telephone with HCML.

[147]On Wednesday 18 September 2019, Mr Macko set out further to the email of 15 and 14 August 2019 “I have now had the opportunity to both speak with” Mr Galpin and Mr Bowen “and fully review the emails referred to in your grievance. Based on the information available I find no evidence to support your view that you've been treated unfairly victimised or bullied or discriminated against. Whilst I appreciate that, given the circumstances you might have found emails from” Mr Galpin and Mr Bowen “you refer to in your grievance direct, I don't find the emails unreasonable or malicious in anyway. On the contrary, the emails clearly show that management wanted you to return to work as soon as you were fit enough and offered you a meeting to discuss your thoughts and concerns whilst supporting you in achieving a required level of performance in line with the company policy and processes. As per your request in the e-mail of 14th August 2019 I provided my views on the findings and information available. I'll await further instructions from you as to whether you wish to move forward with the complaint as stated in your e-mail. Please do not hesitate to contact me if you have any questions or require any assistance.”

[148]Mr Macko, as he described in his email, set out his honest and reasonable view. Mr Macko had been requested by the claimant to set out Mr Macko’s view, the claimant having intimated that the claimant would, thereafter, decide whether to proceed by re-opening his grievance. Mr Macko did not end the claimant’s grievance. What Mr Macko set out was not a concluded grievance, he set out what he had been requested to do by the claimant. What Mr Macko set out was his view. Mr Macko had been requested to respond with his view on the claimant’s May 2019 Grievance. Mr Macko did not have the content of the claimant’s May 2019 Ethics complaint nor the claimant’s email of 3 May 2019 neither of which the claimant had provided or identified to Mr Macko.

[149]The claimant asserts in his claim that the grievance had been outstanding since 15 May 2019. It was outstanding for a period of almost 3 months, it had been outstanding during that period as the claimant had declined, without reason the offered meeting with the independent manager Mr McGowan and had declined to be interviewed. Mr Macko’s email was his findings. There was no requirement to provide any separate document or report, the claimant had in any event had not requested same at the time.

[150]On Monday 23 September 2019, the claimant responded to Mr Macko setting out that he was not satisfied with the respondent’s finding regarding the grievance and described that “I do not believe that it would be possible for me to get a fair hearing if I move forward with the complaint. Therefore, I see no point in proceeding. …I believe it would be prudent for me to have this independently verified. Feel free to close the complaint”. That is to say, the claimant was exercising this choice he had identified he would take in his email of 14 August 2019. The grievance was not re-opened from its non- active position, it was withdrawn by the claimant. The claimant chose to withdraw on the basis that he had set a task for Mr Macko of confirming whether he saw any wrongdoing in (only) the emails identified in the May 2019 Grievance. The respondent did not fail to uphold the claimant’s grievance, nor did they end the May 2019 Grievance. The claimant ended his own grievance.

[151]On Friday 27 September 2019, the respondent wrote to the claimant confirming that his employment would transfer from EMC Compute Systems (UK) Ltd by reason of TUPE to Dell Corporation Ltd on 2 November 2019.

[152]On Tuesday 10 October 2019, the claimant’s private psychiatrist provided a report at the request of Generali, which report was copied to claimant’s GP (the October 2019 report). The October 2019 Report did not describe that the author had been asked to review the claimant’s GP records or other documentation nor that the author had reviewed same.

[153]The October 2019 Report reflecting the information provided by the claimant and described that the claimant’s the current symptoms were that he continued to “have sporadic episodes of high anxiety and panic largely associated with ruminative worry about his future security for his family and engaging with his employers. His mood, sleep, eating, anhedonia, anergia and general levels of anxiety have improved” confirming a diagnosis of ICD 11 code 6A73 and 6A71.C could also be considered appropriate describing that “Both episodes appear to be triggered by an unsupported interpersonal work culture in which Mr Timothy felt criticised and unfairly treated particularly by his manager” and continued that the claimant had “used 12 sessions of therapy well, making significant changes. He has also been compliant with anti-depressant medication. Although the prognosis for full recovery appears good based on response to medication and psychological treatment whilst on sick leave at home prognosis is also dependent on environmental triggers that may cause re occurrence in my view the prognosis would be less good should Mr Timothy returned to an interpersonal work environment in which he does not have sufficient trust that he would be treated fairly and reasonably.”

[154]The October 2019 Report, under heading Ability to Undertake Normal Daily Activities described that the claimant “is now able to return to most normal daily activities however he needs not to be burdened with too much responsibility until he has made further progress and rebuild his selfconfidence”.

[155]The October 2019 Report, on what was preventing the claimant from engaging in phased return to work with reasonable adaptations described the author’s “understanding is that interpersonal culture in his workplace is a central trigger for the two episodes of depression” the claimant had “experienced. In psychological terms, the reasonable adaptations that are required amount to ensuring” the claimant “has trust that he will be treated fairly and with consideration for his emotional needs as a person recovering from a mental health condition. His employers do not have appear do not appear to have earned his trust in the manner in which they have engaged with him since he left work on sick leave. Despite his improvement I can therefore not recommend that his return to work unless that trust is established, otherwise I believe it is likely to be detrimental and may cause deterioration”.

[156]The October 2019 Report did not describe that the author had any reviewed any emails or documented discussions with the respondent. The October 2019 does not describe that the GP records have been reviewed. The October 2019 Report reflected the claimant’s description of matters to the author. It described that the claimant would benefit from continued anti-depressant from a further 6 – 12 months and described that the claimant had at the date of the report responded very well to the three key aspects of treatment being sick leave from work, anti-depressant medication and psychological therapy and anticipated that the claimant would benefit from around 10 to 20 sessions of therapy to consolidate the progress and strengthen psychological treatment. The October 2019 Report did not suggest that the claimant was unable to take steps to keep his technical skills up to date by reason of disability. While it described that the claimant at that stage needed not to be burdened with too much responsibility until he had made further progress and rebuilt his selfconfidence it did not set out that the claimant would be unable to work after the 6 to 12 month period of recommended anti-depressant medication in any capacity other than in a self-employed capacity.

[157]On Tuesday 29 October 2019, the claimant’s entitlement to full company sick pay as advised above was due to run out.

[158]On Friday 1 November 2019, the PHI application made for the claimant was refused by Generali.

[159]On Saturday 2 November 2019, the claimant’s employment transferred by virtue of TUPE to the respondent.

[160]On Tuesday 5 November 2019, the respondent elected to extend Company Sick Pay.

[161]On Friday 8 November 2019, the respondent was provided with further GP Fit Note “anxiety with depression – work-related” for 10 weeks (i.e., to Friday 3 January 2020).

[162]On Monday 11 November 2019, Generali wrote to the respondent setting out that it had made the decision to decline liability. It set out that it had concluded that the claimant did “not have a medical condition of such severity that it should prevented him from performing the functional duties of the material and substantial duties of his own occupation throughout the material time of the claim. As such the claimant does not meet the definition of incapacity hence our decision to decline liability for the claim.”

[163]On Friday 29 November 2019, the claimant emailed Ms Raxter the respondent’s Global HR Services – senior Vice President, copied to Ms Smith and Mr Dan Grant Respondent UK & Ireland Head of HR and Ms McCarthy Respondent Head of HR for Europe, in which (under exclusion of reference to negotiations between the claimant solicitor and the respondent) he set out that he “I would like an explanation as to why your HR team continue to be consistently cruel towards me. Is it not enough that whilst on sick leave for mental health condition (because of their actions)” Mr Galpin and Mr Bowen “attacked me for by threatening a disciplinary procedure upon my return. Is it not enough that on 22nd July, while still on sick leave, your own HR department, under Dan Grant, went on to also attack me by threatening to stop my salary if I didn't sign a rehabilitation consent form. Is the damage you've done to my mental health and family really still not enough? It would appear not as you never even had the decency to inform me if I would receive a salary this month or not.... Is it really that difficult to understand what that kind of uncertainty stress and anxiety does to somebody with a mental health condition. How high do I have to go in this organisation to find somebody that will treat me with the care and respect that I'm entitled to?” Mr Galpin and Mr Bowen “initiated this situation. In my opinion the proper course of action would have been to immediately terminate the employment of” Mr Galpin and Mr Bowen “for gross misconduct. This would have been on the basis that there is no justifiable reason whatsoever to attack a man with a known mental health condition, with threats, while being on sick leave for the very same condition. Had you taken this correct approach apologised and offered any assistance required to eat in my recovery we would not be in this situation right now. That approach would have been defendable from any perspective. Instead, I'm being forced to go down a path I really shouldn't have to. I'm still an employee of Dell and I such would like an explanation for this latest act of cruelty”. The claimant set out in his email to the respondent’s Global HR Services – senior Vice President, the claimant’s position that the respondent should dismiss both Mr Galpin and Mr Bowen for gross misconduct for what the claimant inaccurately describes as attacks on himself as a person with a disability. That email was not issued in good faith, the claimant was aware that CSP had been due to expire and was aware that it had been extended as it had been paid on 28 November. The email was issued with the intention of bringing about the termination of employment of both Mr Galpin and Mr Bowen and not raising an allegation of contravention of the Equality Act 2010.

[164]On, or about Saturday 30 November 2019, the claimant was informed by his then representative that in the course of negotiations with the respondent the issue of CSP was raised. CSP had been due to expire in October, however the claimant was aware on this date that company sick pay had been extended as it had been paid on 28 November 2019. The claimant was advised 19 December 2019 that he would remain on pay in January 2020.

[165]On Tuesday 21 January 2020, the claimant was issued with a GP Fit Note from Friday 17 Jan 2020 “anxiety with depression” to Monday 16 March 2020, a period of around 9 weeks.

[166]On Thursday 30 January 2020, the claimant presented his 2020 ET1 to the Tribunal.

[167]On Sunday 31 January 2020, the extended period of CSP ceased. The extension was a one-off act. It was not a practice generally applied to the respondent employees.

[168]On Thursday 6 February 2020, Ms Smith emailed the claimant setting out that “I am just reaching out to provide you with additional clarity on the next steps regarding your compensation. As confirmed at the start of January the company had approved an exemption for full Company Sick Pay to be paid for the month. As you are, aware your entitlement to Company Sick Pay under the policy expired in November 2019. Unfortunately, the company will not be extending the Company Sick Pay in further and therefore no Company Sick Pay will be paid in February Payroll. I want I also want to confirm that as previously detailed Generali are unable to approve your Permanent Health Insurance claim based on the information available to them. In the mean time we continue to work towards your recovery and resolution suitable for all parties. I'm pleased you were able to have a face to face meeting with … HCML. They are a valuable resource and I’m pleased you are in agreement to continue with their support. Please let me know if you would like to discuss any of their feedback”.

[169]On Monday 10 February 2020, the claimant replied. “I would like to know who made that decision and why.”

[170]On Thursday 13 February 2020, Ms Smith in reply set out that entitlement to company sick pay exhausted in November 2019 “Since that point, as a gesture of goodwill, we have kept you on the Payroll for 3 months from November” 2019 to January 2020, “however, we’re not in a position to continue this any further. The current entitlement under the Sickness Absence Policy extended to 5th November. After that date, the only remaining entitlement would be statutory sick pay as Generali declined the claim. Our continued focus remains on supporting your recovery and working towards a resolution”. The respondent accurately described that they had, as a gesture of good will, extended to the Company Sick Pay, that is the enhancement over and above Statutory Sick Pay, from November 2020 to January 2020. The respondent’s decision to do so was a one-off act having extended the period of company sick pay. It was not a practice generally applied to its employees. Ms Smith accurately described that Generali had declined the claim.

[171]On Friday 14 February 2020, the claimant set out what while he considered continuing to pay sick pay after a skiing accident would be a goodwill gesture but that “when you are responsible for an injury to a person… and continue to pay” company sick pay “that is not called a goodwill gesture” and that Ms Smith had not answered his question on “who had made the decision to stop my pay and why”.

[172]On Wednesday 19 February 2020, Ms Smith responded that it was “not a matter of who made the decision. It is based on the Sickness Absence Policy. The entitlement to Company Sick Pay ended on 5th November 2019. Since then, the company extended as a goodwill gesture for November, December and January. We are unable to continue this any further.” She further described that the respondent was still working to support the claimant’s recovery although the respondent did not accept that it was responsible for the injury, she understood the claimant had a review with HCML earlier that week and the respondent would review to engage any support or feedback and concluded “Please let me know if there is anything else you would like to flag from your discussion with them”. The claimant did not respond with any feedback.

[173]On Friday 6 March 2020, the claimant issued an email setting out what he considered was an Ethics Violation which he asserted was perpetrated by the respondent’s Ethics Committee, which email he sent to the respondent’s US based Global Head of Ethics Mr McLaughlin. Neither Mr Galpin nor Mr Bowen were copied in, and neither were made aware of same.

[174]On Wednesday 11 March 2020, the claimant set out by email a complaint to the respondent’s European President, requesting that he investigate the conduct of the respondent Ethics Committee headed by the respondent’s Global Head of Ethics, regarding what the claimant regarded as a lack of response by the respondent’s Global Head of Ethics to an email the claimant described as having issued 3 March 2020. The claimant concluded with a request that Mr McDonald respond to the claimant’s personal email address as he was “still on sick leave and have only logged in to ensure you get this message”.

[175]On Thursday 12 March 2020, Ms Akbar respondent’s Legal Director Ethics and Compliance, EMEA offered her apology for the delay in writing to the claimant to close off the matter he raised with the Ethics Team, describing that when Mr Macko wrote in September 2019 that was letting the claimant know the outcome of what was described as joint HR and Ethics investigation and that the May 2019 Ethics complaint was closed in September 2019 after thorough investigation.

[176]On Thursday 12 March 2020, the claimant set out in email to Ms Akbar copied to Mr McDonald and Mr McLaughlin that there were two separate complaints and processes. He expected the matters to be fully investigated and set out that he would like to see copy of “the report that came out of this “thorough” investigation” by close of business that day.

[177]On Monday 16 March 2020, the claimant provided further GP Fit Note for a period of 2 months (the March 2020 Fit Note) to 16 May 2020 which would expire 16 May 2020.

[178]On that day the claimant also set out an email to the respondent’s European President Mr MacDonald, the claimant’s concern regarding the lack of response to his email of 11 March 2020 and made what is described as a Subject Access Request in relation to a complaint to the respondent’s Ethics Committee 29 March 2019. The claimant concluded with a request that Mr McDonald respond to the claimant’s personal email address as he was “still on sick leave and have only logged in to ensure you get this message”.

[179]On Tuesday 17 March 2020, Ms Akbar responded to the claimant and described that her “role is to assess the investigation into the grievance conducted by HR and to satisfy myself that there is no additional evidence of unethical conduct arising from that case. I followed and reviewed the case conducted by” Mr Macko “and I'm satisfied there is no evidence of unethical conduct. If you have any further queries on the above or any matter related to employment then for your convenience I recommend you maintain one point of contact Dell going forward I suggest you contact Dan Grant in HR as needed. Thank you.”.

[180]On Wednesday 18 March 2020, the claimant emailed Ms Akbar, copying in Mr McDonald in which the claimant raised a number of matters regarding the May 2019 Ethics complaint. The claimant did not set out an allegation that the respondent had contravened the Equality Act 2010.

[181]On Thursday 19 March 2020 Ms Akbar responded in a short email “Hi Grant, as mentioned in my earlier e-mail please address any queries related to your employment to your single point of contact at Dell,” Mr Grant.

[182]On that day the claimant responded in short email stating “No. I made the reasons clear my previous e-mail and you should not be asking me to do that”. The claimant did not provide any specification as to which emails he was referring to.

[183]On Wednesday 15 April 2020, the claimant sent a short email to Mr McDonald the respondent European President “You have yet to reply or even acknowledge me or my legitimate complaints. I would like an explanation please”.

[184]On Wednesday 13 May 2020, HMCL provided update Ms Smith describing that they had called the claimant without success on 6 April and emailing the claimant on 16 April without response and calling him again on 30 April and 12 May without answer.

[185]On Saturday 16 May 2020, then current existing fit note was due to expire, a further Fit Note was issued confirming the claims was not fit to attend work extending to 27 July 2020.

[186]On Tuesday 19 May 2020, HMCL called the claimant who couldn’t speak as it was his son’s birthday, a review call was arranged for 10.30 on Wednesday 20 May.

[187]On Tuesday 19 May 2020, the claimant sent a further short email to Mr McDonald “When will you reply to my complaint? Why are you not answering my emails?”.

[188]On Friday 22 May 2020, the claimant met with his doctor.

[189]On Monday 8 June 2020, Ms Smith in response to the claimant’s request provided a copy of his wage rise information, describing in response to request that appraisals for 2013 to 2016 were completed by the claimant leader and explaining that in relation to appraisals in 2017 and 2018, the respondent was undertaking a search for same.

[190]On Wednesday 10 June 2020, the claimant described as implausible a suggestion that appraisals could not be located as they were dealt with electronically.

[191]On Wednesday 1 July 2020, Ms Smith confirmed that appraisals issued to the claimant for the years 2017 and 2018 could not be located as they were “done offline when HR transitioned its tools”.

[192]In early July 2020 Dell was considering a WFR reducing the team from 11 to 10 with a consultation period to 17 August 2020.

[193]On Monday 13 July 2020, Mr Galpin, guided by Mr Bowen and respondent HR set out assessment for the selection pool ratings, weightings and points, in respect of the claimant no period of absence or sickness absence had been taken into account.

[194]The claimant scores were the lowest at 240 points whilst the next lowest score within the selection pool above the claimant was 330 points.

[195]As of this date the claimant did not have an active grievance, the claimant having withdrawn his May 2019 Grievance on 23 September 2019 and Ms Akbar having set out on 17 March 2020 that she was satisfied that there was no evidence of unethical conduct in response to the claimant’s May 2019 Ethics Complaint.

[196]On Tuesday 14 July 2020 Ms Harvey respondent HR Generalist emailed the claimant with a letter headed Role at Risk of Redundancy and described that she was writing regarding a business updated which impacted on the claimant’s role “Following a significant change in the business, we need to consider a change in the workforce. Dell Technologies is currently going through a reorganisation over account and district alignments in the one Dell Technologies organisation. This has results in a reduced Opex, resulting in reduced staff levels to support the new alignment plan. Your role is potentially affected by this proposal and your role is at risk of redundancy. I would like to meet with you virtually (Zoom call) to consult with you regarding the potential redundancy of your role. The meeting is scheduled for Friday 17th July 2020 at 10:30 am”. Attendees were listed as the claimant, Ms Harvey and Mr Bowen described as Director Systems Engineering. “The consultation process will give us the opportunity to explore ways to avoid redundancy and discuss other options, such as other suitable alternative employment in the company. It is also an opportunity for you to make suggestions or proposals as to how the redundancy could be avoided, as well as raising any other concerns or questions. Additionally, consultation is an important way for the Company to offer any support or assistance you may require. Please be assured the company that the Company will continue to explore the possibilities of avoiding your redundancy and you are encouraged to look for suitable alternative employment the Company. However, should your redundancy be confirmed and we are unable to offer a suitable alternative position then your employment will be terminated by recent redundancy and 31st of August 2020 in that situation you will be eligible to receive a statutory redundancy payment totalling £8,070 plus payment of £21,686 for pay in lieu of your notice. I would like to take this opportunity to stress at the stage you have not been dismissed, nor have you been given notice of termination of your employment. No decision as to whether or not you rule is redundant will be made until the end of the consultation process. In the meantime, should you any concerns or queries please do not hesitate contact me.” The claimant was not placed at a substantial disadvantage as compared with non-disabled employees, the claimant was able at all relevant times to engage with the redundancy process.

[197]On Wednesday 15 July 2020, in response to the notice of the Zoom consultation date, and in advance of same, the claimant sent an email to Ms Harvey “As you are aware, I am currently on sick leave” and inaccurately described that he was “therefore unable to attend the Zoom call”. The claimant provided no contemporaneous evidence that he had received any relevant medical advice that he was unable to take part in a remote video discussion of any nature. The claimant was able but elected not to attend to Zoom call on Friday 17 July 2020 at 10.30 am. The clamant in his email of 15 July 2020 set out what he considered were the relevant matters for the respondent being 6 questions to which he sought response from the respondent.a. The reasons for the proposals (he accepted that reasons had been provided but indicated that he wished to have more detail although did not give notice of what detail of reasons he considered he required); and

b. The numbers and descriptions of employees proposed to be dismissed; and

c. “The total number of such employees at the establishment”; and

d. The proposed method of selection; and

e. The proposed method of carrying out the dismissals; and

f. The proposed method of calculating any non-statutory redundancy calculation; and described that the 6 questions were not an exhaustive list, but gave not notice of what, if other questions he wished responses to. The claimant concluded “there should be no reason why you cannot sent that to me to study and any other documents you intend to rely upon during the Zoom call. You will already have this to hand so please send this to me by 5.30pm on 16 July”.

[198]The claimant while setting out what he considered were the respondent obligations in law in his email of 15 July 2019 including “proposed selection criteria” did not set out that he wished to see the selection criteria. Many employees do not ask for same. The claimant elected not to request sight of the selection criteria during the process. The claimant elected not to seek sight of his scores. The claimant did not make suggestions or proposals as to how the redundancy could be avoided nor did the claimant raise any other concerns or questions, the claimant did not object to Mr Bowen’s identified role.

[199]The claimant was able to engage in the consultation process at all time.

[200]Friday 17 July 2020 (at 10.30 am) was the date of the Zoom consultation meeting which had been offered on Tuesday 14 July 2020.

[201]The claimant did not attend but also on that date at 1.45pm (following the claimant’s nonattendance at that Zoom consultation earlier that day at which Ms Harvey would have provided responses to the 6 questions posed), Ms Harvey emailed the claimant setting out that objective selection criteria applied. In particular Ms Harvey on Friday 17 July at 1.45 responded to each of the 6 questions identified by the claimant in his email of 15 July 2020:a. This has been provided to you in the at risk letter. Dell Technologies is currently going through a reorganisation of our account and district alignments in the one Dell Technologies organisations. This has resulted in a reduced operation expenditure, resulting in a requirement to reduce staff levels to support the new alignment plan.

b. We have a pool of 11 Advisory Systems Engineers within the UK DPS presales organisation, with a proposal to reduce this by 1.

c. As per the above, there is a pool of 11 Advisory Systems Engineers with the UK DPS presales organisation.

d. Objective selection criteria have been applied based on critical skills, performance and future contribution to the business.

e. Through a redundancy process which we have started with you.

f. This is subject to someone entering into a settlement agreement.

[202]On Friday 31 July 2020 at 12.45 pm Ms Harvie emailed the claimant by email “I am writing to you in relation to the continuing consultation process. During the process I would encourage you to check the internal vacancies” providing a link and set out that the respondent “would like to offer you support through a company called Right management” providing their details describing that this was 3 months support programme “to help you find your next role should the role you are currently in become redundant. They will provide support with your CV, interview skills and coaching and applying for jobs. The consultation process will end on 17th August therefore please do let me know if you would like me to arrange a consultation meeting as I note you have declined the previous consultation meeting arranged for 17th July”

[203]The claimant replied that day at 1.23pm “Thank you for the update. I am sick leave and not well enough to apply for any role. For the purpose of clarity, I never declined the consultation process, only the zoom call. The consultation process can continue over email or letter as previously stated. You can consult with me anytime in this format.”

[204]While the claimant had provided fit notes which identified that his GP had confirmed that he was unfit to attend work, the claimant had at all relevant times capacity to consider which if any internal vacancies would be suitable if his current role became redundant. The claimant at all relevant times had capacity to engage with the redundancy process which he accepted could continue via email. The claimant had capacity to, but elected not to, respond offering any comments on the redundancy situation, how it could be avoided, alternatives to redundancy or other engagement with the process. The claimant did not set out any criticism of the respondent’s handling of the consultancy process, nor raise any possible challenge around the selection process. The claimant did not give notice that he wished to consider alternatives seeking to avoid redundancy during the entire process.

[205]On Tuesday 18 August 2020 Ms Harvey issued email confirming the end of the consultation period and next steps and included a letter dated 18 August 2020 which set out “I'm writing to you following from my previous correspondence in relation to redundancy consultation I confirmed redundancy consultation period ended on 17th August. Unfortunately, there have been no change to the business decision and we've not been able to identify any suitable alternative work for you. As a consequence, the businesses now confirming your redundancy. Your employment will terminate on 31st August you will not be required to work your notice and the organisation will make a payment in lieu of notice of £21,686. Due to your length of service, you are entitled to statutory redundancy payment of £8,070 which will be paid to you with your final pay instalment. You've accrued 19 days annual leave for 2020 which will be added to your final pay. You can appeal against the company decision to select you for redundancy. You should do so in writing, setting out the reasons for your appeal within 7 days from receipt of this letter to myself … you will then be invited to an appeal meeting so the basis of your appeal can be discussed and considered. If you've any further questions, please do not hesitate contact me. I know this may be an upsetting worrying time for you. I would encourage you to use support services available including the employee assistance programme and right management both of which I have attached the details of please accept my best wishes for your future”.

[206]The claimant did not appeal.

[207]On Monday 31 August 2020 the claimant’s employment was terminated by reason for redundancy.

[208]Monday 7 September 2020 claimant initiated ACAS Early Conciliation (EC) following the redudundancy.

[209]Wednesday 30 September 2020 second EC concluded.

[210]On Wednesday 4 November 2020 the claimant presented his 2020 ET1.

[211]On Wednesday 6 January 2021 Job Centre Plus/DWP wrote to GP noting that the claimant had been claiming Employment Support Allowance (EAS) they had had recently assessed the claimant’s ability to work using Work Capability Assessment, describing that those with potential capability for work enter the “Work Related Activity group whilst those who have limited or no capability for work-related activity. This patient meets or is treated as meeting the eligibility criteria for Employment Support Allowance [ Work related activity group/Support group]. You no longer need to issue an NHS medical certificate for this person’s claim to benefits… Proof of illness or disability nay still be required for… employers or insurance companies… If your patient makes another claim for benefits in the future, we will require medical certificates from the date of illness or disability”.

[212]As at Wednesday 6 January 2021 the DWP considered that the claimant would be capable of work at some time in the future, and considered the claimant was capable of taking steps at that stage towards moving into work, although the DWP did not at that time require the claimant to apply for a job or undertake work.

[213]On Tuesday 19 January 2021, the claimant attended his GP who noted the claimant stating to his GP that he was “No longer needing” Fit Not “cant go back to work for someone else” and that wants to understand why he feels like this, GP also recorded that claimant describing that he “previously felt he could take his own life because of work stress” “too dangerous for him” and they discussing waiting times for referral to psychology support.

[214]There is an active job market for employees including employees operating remotely with technical skills comparable to the claimant including in data protection and other areas of IT.

[215]Notwithstanding the October 2019 report and intimating of a recommendation of further period of 6 to 12 of anti-depressant medication the claimant made no subsequent efforts following the date of termination to find alternative employment have electing to spend the time post termination considering whether there was an opportunity to establish operate a self-employed business, in respect of which he had bought domains names on and subsequently created web sites with client examples but did not otherwise establish and or progress by the date of the conclusion of the final hearing.

[216]Subsequent to the termination of the claimant’s employment other employees including around 4 Systems Engineers have left employment through either redundancy or for other reasons. Conclusions on witness evidence

[217]The Tribunal heard evidence from the claimant.

[218]In addition, the Tribunal heard evidence from witnesses called by the respondent.

[219]The Tribunal heard evidence from Ms Akbar former Legal Director with the respondent who honestly spoke to documents provided including those of which she was author and accepted that she was unable to recall matters of specific detail to this claim substantially beyond those documents due to the passage of time.

[220]The Tribunal heard evidence from Mr Bowen currently the respondent’s Senior Director Pre Sales EMEA DPS and who has 8 leaders as direct reports that support the respondent across Europe, Middle East African Region, and whose evidence so far as relevant was straightforward and credible. While Mr Bowen’s recollection of the precise reasons for departures of employees who left employment subsequent to the process which culminated in the redundancy of the claimant was limited that did not undermine his honest and accurate recollection of matters specific to the claimant.

[221]The Tribunal accepted the evidence of Mr Galpin respondent Enterprise PreSales Manager UKI Enterprise as being wholly straightforward and honest. The Tribunal accepted the evidence of Mr Grant respondent Regional HR Director UK and Ireland as being wholly straightforward and honest. The Tribunal accepted the evidence of Ms Harvey respondent HR Generalist as being honest and straightforward. The Tribunal accepted the evidence of Mr Macko former respondent HR Generalist as being wholly credible and straightforward and honest. The Tribunal accepted the evidence of Ms Smith respondent Advisor HR Generalist as wholly credible straightforward and honest.

[222]Where the claimant’s evidence was contradicted by other witnesses the Tribunal does not accept the claimant’s evidence. Further where the claimant’s evidence was inconsistent with contemporaneous documentation, or otherwise unsupported by a contemporaneous record, the Tribunal does not accept the claimant’s evidence. The Tribunal would not wish these reasons to be misunderstood as implying a finding that he lied. The position is simply that, having heard the evidence of those witnesses the Tribunal did not accept the accuracy of the claimant’s honest, but it considers inaccurate, recall which the Tribunal considers has been impacted by claimant’s view of the respondent when compared to those who gave contradictory accounts. Submissions

[223]Neither party in their written submissions adopted the agreed list of issues. The claimant followed the model he had adopted in his consolidated pleadings of utilising heads of claims with subheadings of (dated) events. The respondent broadly followed the claimant approach of heads of claims although did not identify the dates of the event when it suggested the head of claim had occurred.

[224]It is considered unnecessary to set out the claimant submission in full. It is comprehensive extending to some 100 pages, set out in 14 sections over 321 paragraphs and addresses the relevant events relied upon by identify the date of the events complained of broadly in chronological order. In summary the claimant asserts that the claims pled and insisted upon in his submission should be upheld and he should be compensated for consequential loss.

[225]It is considered unnecessary to set out the respondent submission in full. It is lengthy extending to some 114 pages set out with headings including Introduction, Observations on Evidence, (proposed) Facts with subheadings, Relevant law and further set out their response on numbered events utilising the labelling system (although without dates) employed by the claimant in his consolidated pleadings. In summary the respondent argues as its primary position that each of the claims should be dismissed and that the claimant has no consequential losses in all the circumstances. Dismissal Relevant Law

Statutory Framework

[226]Section 94(1) of the Employment Rights Act 1996 (ERA 1996) provides: “An employee has the right not to be unfairly dismissed by his employer.”

[227]Section 98 ERA 1996 states:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. ……… (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[228]Section 139 ERA 1996 (Redundancy) provides: “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to-(a) the fact that his employer had ceased or intends to cease – (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in a place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish.

[229]In terms of the s1881(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 where an employer is proposing to dismiss at least 20 employees at an establishment within a period of 90 days or less, the employer must consult about the proposed dismissals, conversely where the proposal is to dismiss less than 20 employees there is no such statutory requirement. Dismissal Relevant Case Law

[230]In Polkey v AE Dayton Service Ltd

[1988] ICR 142

(Polkey) at 162 “… in the case of redundancy, the employer will not normally act reasonably unless he warns and consults any employees affected or the representatives, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation… It is quite a different matter if the tribunal is able to conclude that the employer himself at the time of dismissal acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile could not have altered the decision to dismiss and therefore could be dispensed with.”

[231]There is no ACAS statutory Code of Practice for redundancy equivalent to the ACAS Code of Practice on Disciplinary and Grievances which does not apply to redundancy dismissals.

[232]The term “redundancy” has a technical, legal definition whilst the term “reorganisation” simply means a change in working structures and has no legal meaning. In Corus and Regal Hotels plc v Wilkinson

[2004] UKEAT 0102/03

the EAT said “each case involving consideration of the question whether a business reorganisation has resulted in a redundancy situation must be decided on its own particular facts. The mere fact of reorganisation is not in itself conclusive of redundancy or, conversely, of an absence of redundancy”. It was recognised by the EAT in Barot v London Borough of Brent [2013]

UKEAT/0539/11

(Barot) that what is crucial is whether the restructuring essentially entails a reduction in the number of employees doing work of a particular kind as opposed to a mere repatterning or redistribution of the same work among different employees whose numbers nonetheless remain the same.

[233]The EAT in Safeway Stores plc v Burrell

[1997] ICR 523

(Burrell) described a three-stage approach for the Tribunal in assessing whether there was a redundancy: 1. was the employee dismissed? if so, 2. had the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish? if so, 3. was the dismissal of the employee caused wholly or mainly by the cessation or diminution.

[234]The EAT described that “There may be a number of underlying causes leading to a true redundancy situation; our stage 2. There may be a need for economies; a reorganisation in the interests of efficiency; a reduction in production requirements; unilateral changes in the employees' terms and conditions of employment. None of these factors are themselves determinative of the stage 2 question. The only question to be asked is: was there a diminution/cessation in the employer's requirement for employees to carry out work of a particular kind, or an expectation of such cessation/diminution in the future [redundancy]?”

[235]The test set out in Burrell was endorsed by the House of Lords in the case of Murray v Foyle Meats Ltd

[1999] ICR 827

(Murray).

[236]The EAT in Davies v Farnborough College of Technology

[2008] IRLR 14

(Davies) set out that an employee should be given sufficient information so they may understand the dismissal and be placed in a position to challenge the accuracy of their markings if they wish to do, correct them, and provide supplemental information, however this may be something short of disclosing actual marking to the employee. What the employer must disclose in order to have acted within the range of reasonable responses will turn on the facts of the case with factors of particular relevance being what the employee asked for and whether the employee challenged the scores awarded to them Camelot Group plc v Hogg [2011]

UKEAT/0019/10

(Hogg). EA 2010 Time Issue Statutory provisions and case law

[237]In terms of s123 of the EA 2010, where allegations of discrimination stretch over a period, only part of which falls within the primary limitation period the Tribunal requires to assess whether individual allegations together constitute an “act extending over a period” or else are to be treated as a series of discrete or isolated specific actions each with its own time limit.

[238]As set out above, any complaint about something that happened before Thursday 22 August 2019 was potentially brought out of time, so the Tribunal may not have jurisdiction to deal with it.

[239]Factors that are almost always relevant to an exercise of the discretion are the length of and the reasons for the delay, and whether the delay has prejudiced the respondent Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

(Abertawe) at paragraph 19. However: “There is no … requirement that the Tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the Tribunal ought to have regard (Abertawe at para 25)”, indeed a Tribunal doesn't require to operate to a checklist of factors given the terms of Section 123 of the Equality Act 2010, so long as it does not leave a significant factor out of account.

[240]If the claim has been brought outside the primary limitation period, the Tribunal has jurisdiction to consider the claim if it was brought within such other period as the Tribunal considers “just and equitable.”

[241]In Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

(Robertson), the Court of Appeal identified that for Tribunals considering the exercise of this discretion, “there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A Tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time, so the exercise of discretion is the exception rather than the rule.”

[242]More recently, the Court of Appeal in Adedeji v University Hospital Birmingham NHS Foundation Trust [2021] ICR D5 (Adedeji) reviewed case law around the extension of time in the context of s33 of the Limitation Act 1980. In that case, a surgeon resigned after a lengthy capability and conduct investigation. Having taken legal advice and been advised twice of the time limit, he presented his claim 3 days late. The Tribunal dismissed his claims as out of time. The EAT and Court of Appeal rejected his appeals. The Court reviewed several recent cases involving the list of Limitation Act factors cited in British Coal v Keeble, commenting: “The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) [Equality Act] is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular, "the length of, and the reasons for, the delay." If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.”

[243]The Tribunal has a broad discretion under the Equality Act 2010 to consider whether to allow a claim out of time.

[244]Having regard to whether the acts complained of were acts extending over a period, the Court of Appeal set out in Hendricks v Metropolitan Police Commissioner

[2002] ICR 530

CA (Hendricks) that the Tribunal should look at whether there is an ongoing situation or a continuing state of affairs in contrast to a succession of unconnected or isolated acts.

[245]Having regard to whether it is just and equitable to extend time the EAT in Robinson v Post Office

[2000] IRLR 804

(Robinson) (confirmed in the Court of Appeal Apelogun-Gabriels v Lambeth LBC

[2002] ICR 713

(Apelogun)) identified that delay pending the resolution of internal grievance procedures may not justify a delay. Burden of Proof Discrimination Claims

Relevant Law

[246]s136(1) to (3) of EA 2010 (the burden of proof provisions) set out: “(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[247]In Madarassy v Nomura International plc [2007] IRLR (Madarassy) Mummery LJ held at [57] that ‘could conclude’ [The EA 2010 uses the words ‘could decide’, but the meaning is the same] meant: ‘[…] that “a reasonable Tribunal could properly conclude” from all the evidence before it.’

[248]However, a simple difference of treatment is not enough to shift the burden of proof, something more is required: Madarassy per Mummery LJ at para 56: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.’ PCP Relevant case law

[249]In Ishola v Transport for London

[2020] IRLR 368

(Ishola) the Court of Appeal considered an appeal in relation to termination on grounds of medical incapacity. The former employee appealed, arguing that too narrow and technical an approach had been taken to the reasonable adjustments claim, in that the tribunals below should properly have found that the employer had a PCP of requiring the claimant to return to work without concluding a proper and fair investigation into grievances raised by him, which he said were not properly and fairly investigated prior to his dismissal. The Tribunal had held there was no PCP operated by the former employer because the alleged requirement was a one-off act in the course of dealings with one individual. The EAT upheld that conclusion. The claimant contended that an ongoing requirement or expectation that a person should behave in a certain manner (here, return to work despite the outstanding grievances) was a 'practice' within the meaning of s 20(3). At the Court of Appeal Simler LJ set out that: “37 In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP. 38 In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that 'practice' here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or 'practice' to have been applied to anyone else in fact. Something may be a practice or done 'in practice' if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one. 39 In that sense, the one-off decision treated as a PCP in Starmer is readily understandable as a decision that would have been applied in future to similarly situated employees. However, in the case of a oneoff decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to 'practice' as having something of the element of repetition about it. In the Nottingham case in contrast to Starmer, the PCP relied on was the application of the employer's disciplinary process as applied and (no doubt wrongly) understood by a particular individual; and in particular his failure to address issues that might have exonerated the employee or give credence to mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual's case and by inference, there was nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way.” EHRC Code of Practice The Statutory provisions

[250]s15 (4) of Equality Act 2006 provides that, the EHRC 2011 Statutory Code of Practice of, shall be taken into account, wherever it appears relevant to the Tribunal to do so. The Tribunal has taken into the account the EHRC 2011 Code of Practice where it appears relevant to do so.

[251]The Tribunal notes that the content of the former s.18B DDA1995 is now largely replicated by paragraph 6.23 onwards of EHRC Code of Practice:• Extent to which taking the step would prevent the effect in relation to which the duty is imposed

• Extent to which it is practicable for the employer to take the step

• The financial and other costs which would be incurred by the employer in taking the step and the extent to which it would disrupt any of his activities

• The extent of the employer’s financial and other resources

• The availability to the employer of financial or other assistance with respect to taking the step

• The nature of the employer’s activities and the size of his undertaking. Time Bar Discussion and decision

[252]The Tribunal concludes that aspects of the events complained of from 5 March 2019 to 22 August 2019 were not discrete and were instances constituting acts extending over the period, in that they reflected an ongoing situation or continuing state of affairs in that they related to the claimant’s engagement with his managers in March 2019 and his perception that those managers were acting in a discriminatory matter having regard to the claimant’s disability and which was followed by the claimant’s disability related absence.

[253]To the extent that aspects of the events complained of from 5 March 2019 to 22 August 2019 did not fall within an ongoing situation or continuing state of affairs, the Tribunal concludes having considered all the relevant evidence that the delay in presenting discrimination claims in the 2019 ET1, presented on 20 December 2019 arose in the first instance out of the claimant having initiated the May 2019 Grievance, which the claimant subsequently withdrew on 23 September 2019 and further then then ongoing May 2019 Ethics Complaint, the terms of which the respondent set out was not accepted in 17 March 2020.

[254]The claimant was employed by the respondent at the material time and had presented a Grievance and an Ethics Complaint which was more extensive than the May 2019 Grievance. The Tribunal does not consider that the claimant would have been entitled to exhaust both the Grievance and Ethics complaint process by awaiting the outcome of both, however the claimant did not await the outcome of the May 2019 Ethics complaint before presenting the December 2019 claim.

[255]In considering matters the Tribunal has considered the balance of prejudice including having regard to the more extensive nature of the May 2019 Ethics complaint. Further the Tribunal does not conclude that it was not possible to have a fair hearing in relation to the events complaints of occurring prior to 22 August 2019 (being the earliest date an event could be in time) specifically the events from 5 March 2019 to 22 August 2019 in all the circumstances, including having regard to the documentation available.

[256]In conclusion the Tribunal concludes that it has jurisdiction to consider the events complained of including on 5 March 2019. Disability Discrimination Claims Discussion and Decision

[257]The Tribunal has considered each of the separate heads of claim in chronological order in relation to alleged disability discrimination:

[258]In relation to the event on 5 March 2019, so far as relevant to the s19 EA respondent and which put the claimant at one of more particular disadvantages when compared with a non-disabled employee. The claimant’s reason for not attending the dinner was not disability related. The claimant’s reason for not attending the evening dinner was as set out in his WhatsApp message, he felt aggrieved at missing his goddaughter’s 21st party. The claimant elected not to provide that reason copying his manager in advance. The claimant was dissatisfied that Mr Galpin a former colleague had been promoted to the role of manager. This claim is dismissed.

[259]In relation to the event on 5 March 2019, so far as relevant to as relevant to the pled s 20 & 21 EA 2010, (reasonable adjustments claim). There was no relevant provision, criterion or practice which was generally applied or would be generally applied by the respondent, and which put the claimant at a substantial disadvantage when compared with a non-disabled employee. In circumstance where the claimant had elected to advise Mr Bowen only of his disability and directed that he should not share this information, which direction Mr Bowen followed, Mr Galpin could not reasonably have known that the claimant was disabled. This claim is dismissed.

[260]In relation to the event on 6 March 2019, so far as relevant to the s15 EA 2010 (discrimination arising) claim, the respondent’s treatment of the claimant was an oversight and did not arise in consequence of the claimant’s disability.

[261]In relation to the event on 6 March 2019, so far as relevant to the s19 EA respondent, and which put the claimant at one of more particular disadvantages when compared with a non-disabled employee. The claimant was not invited due to oversight which was rectified when identified. This claim is dismissed.

[262]In relation to the event on 6 March 2019, so far as relevant to as relevant to the pled s 20 & 21 EA 2010, (reasonable adjustments claim). The respondent could not reasonably be expected to know that the claimant was a person with a disability at the relevant time given that the claimant had elected to advise Mr Bowen only of his disability and directed that he should not share this information. There was no relevant provision, criterion or practice which was generally applied or would be generally applied by the respondent and which put the claimant at a substantial disadvantage when compared with a nondisabled employee. The claimant was not invited due to oversight, which was rectified when identified. In circumstance where the claimant had elected to advise Mr Bowen only of his disability and directed that he should not share this information. In any event he respondent could not have reasonably be expected to know that the claimant was likely to be placed at any disadvantage. This claim is dismissed.

[263]In relation to the event on 18 March 2019, so far as relevant to the s15 EA 2010 (discrimination arising) claim, the respondent’s treatment of the claimant, specifically in the context of the claimant raising the possibility of any responsive action from Mr Mackie Mr Bowen description that there shouldn't be, but seeking to be pragmatic set-out, in fact, there could be, in the sense that Mr Mackie could in response raise a grievance against the claimant for what was suggested (though denied by the claimant) as the language used by the claimant in engaging with Mr Mackie around a year earlier, did not arise in consequence of the claimant’s disability. This claim is

[264]In relation to the event on 18 March 2019, so far as relevant to the s19 EA respondent, and which put the claimant at one of more particular disadvantages when compared with a non-disabled employee. This claim is

[265]In relation to the event on 18 March 2019, so far as relevant to as relevant to the pled s 20 & 21 EA 2010, (reasonable adjustments claim). The claimant set out in terms of his detailed email of 8 March 2019 information from which Mr Galpin and the respondents generally could by the date of issue, though not before, be reasonably be expected to know that the claimant was a person with a disability. There, however, was no relevant provision, criterion or practice which was generally applied or would be generally applied by the respondent and which put the claimant at a substantial disadvantage when compared with a non-disabled employee, in relation to Mr Bowen’s comment. It was a one-off event. This claim is dismissed.

[266]In relation to the event on 29 April 2019, so far as relevant to the s15 EA 2010 (discrimination arising) claim, the respondent’s treatment of the claimant, specifically Mr Galpin raising areas of performance which he did not do in an aggressive manner, did not arise in consequence of the claimant’s disability. This claim is dismissed.

[267]In relation to the event on 26 April 2019, and so far, as relevant to the pled s19 EA 2010 (Indirect Discrimination) claim, the Tribunal does not accept that what was pled as PCP (Performance Management Practices- Not abiding by the ethics Policy and Anti Mental Health Discrimination Initiatives /policy. Exacerbation of mental health condition) amounts to a PCP generally applied by the respondent to its employees. The respondent concedes that its policy raising performance issues is a Provision Criterion or Practice, that is it was generally applied by the respondent to its employees. The respondent did so by Mr Galpin identifying to team members, on the information available to him, areas where he considered performance could be improved to meet expectations. The respondent applied that PCP to the claimant as of 26 April 2019. It applied that PCP to non-disabled team members. On the evidence before the Tribunal that PCP did not put other disabled persons at one or more particular disadvantages when compared with non-disabled employees and thus did not put the claimant at disadvantage. This claim is dismissed.

[268]In relation to the event on 26 April 2019, and so far, as relevant to the pled s 20 & 21 EA 2010, reasonable adjustments claim, the respondent’s policy of raising performance issues is a PCP, it was generally applied by the respondent to its employees. The respondent did so by Mr Galpin identifying to team members, on the information available to him, areas where he considered performance could be improved to meet expectations. That PCP did not put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons were not disabled at any relevant time.

[269]In relation to the event on 8 May 2019, and so far, as relevant to the s19 EA 2010 (Indirect discrimination) claim Mr Galpin’s email of 8 May 2019, did not described the implementation of a Performance Improvement Plan (known as a PIP) and would not reasonably be read as a threat to implement a PIP upon return from sick leave. Mr Galpin’s email of 8 May 2019 was not in contravention of the respondent’s policies including the respondent’s Global Improvement Plan. Mr Galpin’s email of 8 May 2019 did not arise in consequence of a disability. It set out genuine and reasonable expectations of the claimant’s manager unrelated to the claimant’s disability. This claim is

[270]In relation to the claimant’s email of 15 May 2019, so far as relevant to the pled s27 EA 2010 Victimisation complaint, issued to the respondent’s HR asserting that he would like to raise a formal grievance does not constitute the bringing of proceedings. While the claimant set in broad terms that he was victimised and bullied he does not set out an allegation that it was because of a disability. While he describes that he would be placed on a performance plan which the claimant argues was intended to be understood to be a (formal) Performance Improvement Plan, he did not describe it as such; he does not set out that any alleged performance issue arose out disability, he describes that he would be placed on same on his return to work and not while on any disability related absence, not because of disability. It was not a protected act.

[271]What was an inaccurate description in the email 15 May 2019 that commission payment to the claimant would stop if the claimant was off for more than 4 weeks amounted to a protected act within the meaning of s27(2) of EA 2010 in that it was an allegation that commission would stop because of a disability related absence. The respondent did not, however, subject the claimant to any detriment because of this protected act. The respondent did not terminate company sick pay nor select the claimant for redundancy and terminate his employment because of that protected act. Company sick pay had due to expire and while the respondent elected to extend sick pay for a limited period that extension came to an end, that ending was not because of the claimant’s disability nor because of the disability related absence.

[272]In relation to the claimant’s email of 23 May 2019 (the May 2019 Ethics Complaint), so far as relevant to the pled s27 EA 2010 Victimisation complaint and while the claimant deployed the term whistleblowing, victimisation and bullying, he did not set out an allegation that the respondent had contravened the Equality Act 2010. It was not a protected act.

[273]Both the claimant’s inaccurate allegations, that Mr Galpin retaliated against the claimant’s detailed complaint of 3 May and that commission payment to the claimant would stop if the claimant was off for more than 4 weeks amounted to a protected act within the meaning of s27(2) of EA 2010 in that they were allegations both occurred because of a disability related absence.

[274]The respondent did not, however, subject the claimant to any detriment as alleged because of this protected act. The respondent did not terminate CSP nor select the claimant for redundancy and terminate his employment because of that protected act.

[275]In relation to the event on 10 June 2019, and so far, as relevant to the s15 EA 2010 (Indirect discrimination) claim, the respondent’s communication did not arise in consequence of the claimant’s disability. It arose in circumstances where claimant was able, but elected not to, attend the remote meeting offered with the respondent independent manager Mr McGowan. The respondent communication of 10 June 2019, in any event, amounted to a proportionate means of allowing the claimant’s the claimant participation in relation to issues he raised within the May 2019 Grievance. This claim is

[276]In relation to the event on 10 June 2019, and so far, as relevant to the ss 20 & 21 EA 2010 (reasonable adjustment) claim, the respondent’s communication arose as the respondents had not been able to progress the grievance through their processes, reflecting the claimant’s decision not to respond to the request to confirm his availability to attend the remote meeting with the Independent Manager Mr McGowan on Monday 3 June 2019. It did not reflect the claimant’s disability. The claimant was in June 2019 capable of confirming his position on attending a remote meeting. There was no evidence that the claimant was unable to attend such a remote meeting, the Tribunal is satisfied that the claimant could have attended a remote with the independent manager Mr McGowan. The respondent process required to close within 30 days of inactivity was a PCP, was practice which would be generally applied to the respondent employees. The respondent applied that PCP to the claimant the material time. That PCP did not however place the claimant at a particular disadvantage in that he was able to attend the meeting with the independent manager. The respondent communication of 10 June 2019, in any event, amounted to a proportionate means of allowing the claimant’s the claimant participation in relation to issues he raised within the May 2019 Grievance. This claim is dismissed.

[277]In relation to the claimant’s email of 15 July 2019 to Mr Norbert Mackie HR Advisor regarding his handling of the May 2019 Grievance, so far as relevant to the pled s27 EA 2010 Victimisation complaint while the claimant asserted that he was on sick leave due to mental problems as a result of the two individuals he had raised a grievance about and criticised the respondent for their handling of his grievance, he did not set out an allegation that the 15 July 2019 was not a protected act within the meaning of s27(2) of EA 2010.

[278]In relation to Ms Smith’s letter of 22 July 2019 and so far, as relevant to the s15 EA 2010 (discrimination arising) claim, the respondent’s treatment of the claimant reflected the claimant having elected not to accept the offer of remote meeting with the independent manager Mr McGowan. The claimant elected not to provide the full detail of his complaint (that is as he described in the May 2019 Ethics complaint), despite having been requested to. The claimant’s absence arose in consequence of the claimant’s disability. The unfavourable treatment complained of was set out as.a. threat to stop sick pay unless the claimant sign consent forms. The Tribunal concludes however that the respondent to complete forms was a proportionate means of achieving a legitimate aim, namely continuation of company sick pay and insurance thereafter. This element of this claim is dismissed.

b. Setting an expectation that the claimant agrees a meeting schedule with Mr Bowen. The Tribunal concludes that the respondent, for a period of 10 days treated the claimant unfavourably in setting an expectation that the claimant agrees a meeting schedule with Mr Bowen because of claimant’s disability related absence. That request was not, in the circumstances of the claimant having raised a Grievance including against Mr Bowen, a proportionate means of achieving a legitimate aim. This element of this claim succeeds.

[279]In relation to Ms Smith’s letter of 22 July 2019 and so far, as relevant to the s19 EA 2010 (indirect disability discrimination) claim, the Tribunal does not accept the claimant’s description of a PCP. The PCP was applying the respondent’s sick pay management practices. The process set out by Ms Smith was a PCP applied by the respondent to its workforce generally. It was applied to the claimant. The PCP of requiring the claimant to agree a communication schedule with Mr Bowen did not put the claimant and other disabled employees at one of more particular disadvantages when compared with non-disabled employees. The PCP of engaging with the respondent sick pay management practice was a proportionate means of achieving a legitimate aim of rehabilitating employees into work and potentially extending beyond the period covered by Company Sick Pay. This claim is dismissed.

[280]In relation to Ms Smith’s letter of 22 July 2019 and so far, as relevant to the ss 20 & 21 EA 2010 (reasonable adjustment) claim, Ms Smith was aware that the claimant was a person with a disability. The process set out by Ms Smith was a PCP applied by the respondent to its workforce generally. They did not put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who were not disabled at any relevant time, in seeking to support rehabilitation of employees and their return to work. This

[281]In relation to the claimant’s email of 26 July 2019 to Ms Smith in which the claimant pleads he objected to the threat made to withdraw Company Sick Pay, so far as relevant to the pled s27 EA 2010 Victimisation complaint, the claimant did not set out an allegation that the respondent had contravened the Equality Act 2010. While the email referred to a grievance, fairly read it did not set out that conduct on the part of Mr Bowen was discriminatory within terms of the Equality Act 2010. Beyond describing that he did not want to communicate with Mr Bowen because he held Mr Bowen partially responsible for “the illness”, the claimant did not otherwise describe, in this email, what the nature of the criticism in any complaint against Mr Bowen was or provide further clarity on same. The claimant’s email was unclear. The claimant opened by suggesting, inaccurately, that there had been change in the language adopted by Ms Smith. While the claimant did not set out, in this email, in what previous emails he had set out his concerns, those were as listed in his email at 2.40pm the preceding day, each of which had been addressed by Ms Smith. The claimant did not identify what, he considered was outstanding from the responses already provided by Ms Smith. He did not do so as Ms Smith had in fact already provided responses to them and he did not wish to accept them. The claimant described an effect of cessation of Company Sick Pay threatened his ability to provide for his family, he did not set out an allegation that the respondent had contravened the Equality Act 2010. The claimant’s email on 26 July 2019 was not a protected act within the meaning of s27(2) of EA 2010.

[282]In relation to the claimant’s email of 14 August 2019 to Mr Macko so far as relevant to the pled s27 EA 2010 Victimisation complaint, the claimant did not set out an allegation that the respondent had contravened the Equality Act 2010. The claimant’s email set out a direction to that Mr Macko should confirm his view before the claimant would decide on whether to re-open and continue with his May 2019 Grievance. The claimant’s email on 14 August 2019 was not a protected act within the meaning of s27(2) of EA 2010.

[283]In relation to the complaint on 16 August 2019 and so far, as relevant to the s15 EA 2010 (discrimination arising) claim, the claimant pleads, as unfavourable treatment that HR handling failed to address timeously legitimate concerns about occupational health interfering with his then current medical concerns (since 9 July). No relevant medical report was provided setting out that the claimant had any reasonable or genuine concern nor that any such concern was held by a treating physician. The respondent did not fail to address timeously any legitimate concerns around Occupational Health interfering with the claimant’s medical treatment at that time. The claimant did not have a genuine and reasonable belief that Occupational Health would interfere with the claimant’s treatment. The respondent responded in reasonable terms to the matters raised by the claimant. The Tribunal concludes that the claimant did not have such a genuine and reasonable fear. There was no unfavourable treatment. This claim is dismissed.

[284]In relation to the complaint on 16 August 2019 and so far, as relevant to the s19 EA 2010 (indirect discrimination) claim, the claimant pleads that HR handling failed to address timeously legitimate concerns about occupational health interfering with his then current medical concerns (since 9 July). The Tribunal concludes that the claimant did not have genuine and reasonable concerns. The PCP pled - grievance management practices- not abiding by the Ethics Policy and Anti Mental Health Discrimination initiatives/policy was not a provision, criterion or practice which was generally applied or would be generally applied by the respondent to it employees. No such PCP was applied to the claimant the relevant time. The PCP relied upon did not put the claimant at a particular disadvantage when compared with non-disabled employees at the relevant time. This claim is dismissed.

[285]In relation to the complaint on 16 August 2019 and so far, as relevant to the ss20 &21 EA 2010 (reasonable adjustments) claim, the claimant pleads that HR handling failed to address timeously legitimate concerns about occupational health interfering with his then current medical concerns (since 9 July). The Tribunal concludes that the claimant did not have genuine and reasonable concerns. The PCP pled - grievance management practices- not abiding by the Ethics Policy and Anti Mental Health Discrimination initiatives/policy was not a provision, criterion or practice which was generally applied or would be generally applied by the respondent to it employees. No such PCP was applied to the claimant the relevant time. The PCP relied upon did not put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with non-disabled employees at the relevant time. This

[286]In relation to the claimant’s email of 5 September 2019 to Ms Smith so far as describes as complaining about the handling of the occupational health and the employee income protection insurance process and how that affected his mental health, the claimant did not set out an allegation that the respondent had contravened the Equality Act 2010. The claimant’s email on 5 September 2019 was not a protected act within the meaning of s27(2) of EA 2010.

[287]In relation to the complaint on 18 September 2019 and so far, as relevant to the s19 EA 2010 (Indirect Discrimination) claim, the claimant pleads that HR ended his (May 2019) Grievance. The claimant asserts that the grievance had been outstanding since 15 May 2019. It was outstanding for a period of almost 3 months, it had been outstanding during that period as the claimant had declined, without reason the offered meeting with the independent manager Mr McGowan and had declined to be interviewed. Mr Macko’s email was his assessment. The claimant had tasked him to set out his assessment. There was no requirement to provide any separate document or report, the claimant had in any event not requested same at the time. Mr Macko and HR did not conclude the grievance. The claimant concluded his own grievance by withdrawing it on 23 September 2019. There was no PCP which the claimant at a particular disadvantage when compared with non-disabled employees at the relevant time. There was no relevant PCP. This claim is dismissed.

[288]In relation to the complaint on 18 September 2019 and so far, as relevant to the ss20 &21 EA 2010 (reasonable adjustments) claim the claimant pleads that HR ended his (May 2019) Grievance. HR did not end the claimant’s grievance. The claimant concluded his own grievance by withdrawing it on 23 September 2019. There was no PCP which put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with non-disabled employees at the relevant time. There was no relevant PCP. This claim is

[289]In relation to the claimant’s email of 23 September 2019 to Ms Smith so far as relevant to the pled s27 EA 2010 Victimisation complaint, which the claimant describes as objecting to the result of his alleged investigation finding no wrongdoing and his intention to have the situation independently verified. The claimant did not set out an allegation that the respondent had contravened the Equality Act 2010. The claimant’s email of 23 September 2019 was not a protected act within the meaning of s27(2) of EA 2010. This

[290]In relation to the claimant’s email of 29 November 2019 to Ms Raxter, and others including Ms Smith so far as relevant to the pled s27 EA 2010 Victimisation complaint, which the claimant describes as objecting to the overall ‘cruel’ treatment and the impact on my mental health detriment was not issued in good faith, while the claimant referenced CSP, which was due to expire in October he was aware that it had been paid for November on 28 November. The claimant set out in his that the respondent should dismiss both Mr Galpin and Mr Bowen for gross misconduct for what the claimant inaccurately describes as attacks on himself as a person with a disability. That email was not issued in good faith, the claimant was aware that CSP had been due to expire although the claimant was aware that it had been extended as it had been paid on 28 October, it was issued with the intention of bringing about the termination of employment of both Mr Galpin and Mr Bowen rather than setting out an allegation that the respondent had contravened the Equality Act 2010. It was not a protected act within the meaning of s27(2) of EA 2010.

[291]The claimant’s email of 29 November 2019 was not a protected act within the meaning of s27(2) of EA 2010.

[292]In relation to the complaint on 30 November 2019 and so far, as relevant to the s15 EA 2010 (discrimination arising) claim, the claimant pleads, as unfavourable treatment requests were made via his solicitor to understand if he would be paid in November 2019 and beyond. The claimant was aware that CSP had been extended as it had been paid on 28 November 2019. The claimant was advised 19 December 2019 that he would remain on pay in January 2020. On the available information the Tribunal conclude that any communication between the respondent and the claimant solicitor at or about this time which culminated in the claimant being advised that by his solicitor that requests were made via his solicitor to understand if he would be paid in November 2019 and beyond, related to negotiation, are inadmissible and cannot be founded upon a complaint. This claim is dismissed.

[293]In relation to the presentation of the claimant’s 2020 ET1 on 30 January 2020 so far as relevant to the pled s27 EA 2010 Victimisation complaint, in accordance with s27(2)a of EA 2010 the 2020 was the bringing of proceedings under the EA 2010. The presentation of the 2020 ET1 was a protected act.

[294]The respondent did not, however, subject the claimant to any detriment as alleged because of this protected act. The respondent did not terminate CSP nor select the claimant for redundancy and terminate his employment because of that protected act. The CSP which had been extended at the instance of the respondent as a one-off act.

[295]In relation to the complaint on 31 January 2020 and so far, as relevant to the ss20 & 21 EA 2010 (reasonable adjustments) claim the claimant pleads that Sick Pay was stopped even though he had produced evidence on multiple occasions showing why the respondent had exacerbated my condition and prevented him from returning to work. The PCP which applied was that CSP would expire in October, after 26 weeks absence. The company had extended the CSP, that was a one-off event and its expiry was also a one off event and was not a PCP. The was no relevant PCP. The claimant’s claim in terms of s20 & 21 EA 2010 in respect of event of 31 January 2020 does not succeed.

[296]In relation to the claimant’s email of 6 March 2020 to Mr McLaughlin so far as describes as reporting a further ethics violation in the form of the Ethics committee not investigating the original complain and a formal request was made to investigate, the claimant did not set out an allegation that the 6 March 2020 was not a protected act within the meaning of s27(2) of EA 2010.

[297]In relation to the claimant’s email of 11 March 2020 to Mr McDonald so far as describes as complaining of no response from Mr McLaughlin and to formally investigate the conduct of the Ethics committee, the claimant did not set out an allegation that the respondent had contravened the Equality Act 2010. The claimant’s email of 11 March 2020 was not a protected act within the meaning of s27(2) of EA 2010.

[298]In relation to the claimant’s email of 12 March 2020 to Ms Akbar, copied to Mr McDonald and Mr McLaughlin so far as relevant to the pled s27 EA 2010 Victimisation complaint, which the claimant describes as objecting to Ms Akbar's investigation explanation and in which a request was made to see a copy of the findings. The claimant did not set out an allegation that the 12 March 2020 was not a protected act within the meaning of s27(2) of EA 2010.

[299]In relation to the claimant’s email of 16 March 2020 to Mr McDonald so far as describes as a formal complaint and a request that he investigate the conduct of the respondent’s Ethics Committee, the claimant did not set out an allegation that the respondent had contravened the Equality Act 2010. The claimant’s email of 16 March 2020 was not a protected act within the meaning of s27(2) of EA 2010.

[300]In relation to the claimant’s email of 19 March 2020 to Ms Akbar so far as describes as pointing out that Ms Akbar should not be asking me to direct my complaints to Mr Grant and which referred to previous (unspecified) emails where it, the claiamnt argues, it was made clear HR were part of the May 2019 Ethics complaint, the claimant did not set out an allegation in his email of 18 March nor 19 March 2019 that the respondent had contravened the Equality Act 2010. The claimant’s email of 19 March 2020 was not a protected act within the meaning of s27(2) of EA 2010.

[301]In relation to the claimant’s email of 15 April 2020 to Mr McDonald so far as describes as requesting an explanation as to why he had not responded to a legitimate complaint, the claimant did not set out an allegation that the 15 April 2020 was not a protected act within the meaning of s27(2) of EA 2010.

[302]In relation to the claimant’s email of 19 May 2020 to Mr McDonald so far as describes as asking why he had not responded to my complaint and as to when he would, the claimant did not set out an allegation that the respondent had contravened the Equality Act 2010. The claimant’s email of 19 May (pled as April but corrected in the hearing) 2020 was not a protected act within the meaning of s27(2) of EA 2010.

[303]In relation to the complaint on 14 July 2020 and so far, as relevant to the ss20 & 21 EA 2010 (reasonable adjustments) claim the claimant pleads that he was informed that he was at risk of redundancy. The PCP which applied was the practice of notifying at risk employees including the provision of a zoom consultation meeting. That PCP did not put the claimant at a disadvantage in relation to a relevant matter in comparison with persons who were not disabled. The claimant was able to attend the Zoom consultation and participate in the consultation process. The claimant’s claim in terms of s20 & 21 EA 2010 in respect of event of 14 July 2020 does not succeed. This

[304]In relation to the complaint on 14 July 2020 and so far, as relevant to the ss20 & 21 EA 2010 (reasonable adjustments) claim the claimant pleads that he was only offered 3 days’ notice of the zoom meeting. The PCP which applied was the practice of offering 3 days’ notice of a zoom consultation meeting in that process. That PCP did not put the claimant at a disadvantage in relation to a relevant matter in comparison with persons who were not disabled. The claimant was able to attend the Zoom consultation and participate in the consultation process. The claimant’s claim in terms of s20 & 21 EA 2010 in respect of event of 14 July 2020 does not succeed. This claim is dismissed.

[305]In relation to the complaint on 15 July 2020 and so far, as relevant to the ss20 & 21 EA 2010 (reasonable adjustments) claim the claimant pleads that he sent an email requesting visibility of the documents that will be relied upon in order to prepare for the consultation. The claimants request was a one off act, however the respondent replied in full to the questions set by the claimant. The PCP which operated was the practice of providing information which was requested by at risk employees. The respondent provided the information requested. The claimant did not request his scores had he done so the respondent would have provided sufficient information as to permit him to challenge the scores. The operative PCP of providing responses to questions put to the respondent did not put the claimant at a disadvantage in relation to a relevant matter in comparison with persons who were not disabled. The claimant’s claim in terms of s20 & 21 EA 2010 in respect of event of 15 July 2020 does not succeed. This claim is dismissed.

[306]In relation to the complaint on 15 July 2020 and so far, as relevant to the ss20 & 21 EA 2010 (reasonable adjustments) claim the claimant pleads that he sent an email setting out what he asserted were the respondents’ responsibilities. The claimants request was a one off act, however the respondent replied in full to the questions set by the claimant. The PCP which operated was the practice of providing information which was requested by at risk employees. The respondent provided responses to the matters identified. The claimant did not request his scores had he done so the respondent would have provided sufficient information as to permit him to challenge the scores. The operative PCP of providing responses to questions put to the respondent did not put the claimant at a disadvantage in relation matter to a relevant in comparison with persons who were not disabled. The claimant’s claim in terms of s20 & 21 EA 2010 in respect of event of 15 July 2020 does not succeed. This claim is dismissed.

[307]In relation to the complaint on 31 July 2020 and so far, as relevant to the ss20 & 21 EA 2010 (reasonable adjustments) claim the claimant pleads that the respondent asked him to review internal vacancies for jobs that he would like to apply for. The PCP which operated was the practice of providing information to the employees to enable them to identify jobs that they would wish to apply for. The claimant was capable of doing so, although absent from work his disability did not impede him from review internal vacancies for jobs that he would like to apply for. The operative PCP did not put the claimant at a disadvantage in relation to a relevant matter in comparison with persons who were not disabled. The claimant’s claim in terms of s20 & 21 EA 2010 in respect of event of 15 July 2020 does not succeed. This claim is dismissed.

[308]In relation to the complaint on 31 July 2020 and so far, as relevant to the ss20 & 21 EA 2010 (reasonable adjustments) claim the claimant pleads that the respondent issued an email accusing the claimant of declining previous consultation meeting. The respondent’s email of 31 July factually set out that the claiamnt had declined the previous consultation meeting arranged for 17 July, that email was a one-off act. There was no operative PCP. The claimant was able to attend the previous zoom consultation notwithstanding his disability related absence from work. There was no operative PCP which put the claimant at a disadvantage in relation to a relevant matter in comparison with persons who were not disabled. The claimant’s claim in terms of s20 & 21 EA 2010 in respect of event of 31 July 2020 does not succeed. This claim is dismissed.

[309]In relation to the complaint on 18 August 2020 and so far, as relevant to the ss20 & 21 EA 2010 (reasonable adjustments) claim the claimant pleads that the respondent issued email confirming redundancy. The respondent’s email of 18 August 2020 factually set out that the consultation period had concluded and that the respondent was confirming the claimant’s redundancy. The respondent did so in the context that the claimant had not substantially engaged, he had not, despite being invited in the respondent letter of 14 July set out any suggestions or proposals as to how the redundancy could be avoided. While the claimant was absent from work his disability did not prevent him for effectively engaging in the redundancy process. The PCP was the practice of notifying employees who had been selected for redundancy that they had been so selected. The operative PCP did not put the claimant at a disadvantage in relation to a relevant matter in comparison with persons who were not disabled. The claimant’s claim in terms of s20 & 21 EA 2010 in respect of event of 18 July 2020 does not succeed. This claim is dismissed. Unfair Dismissal Discussion and decision.

[310]The respondent accepted it had dismissed the claimant and asserted the reason for the dismissal was redundancy (that is within s139 of ERA 1996) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held, in terms of section 98(1)(b) ERA 1996.

[311]The “substantial reason” was the workforce reduction which had taken place. The respondent warned and consulted the employees affected. There was not requirement for group consultation. The respondent in assessing the claimant excluding his period of disability related absence in its assessment of the matrix, adopted a fair basis on which to select for redundancy.

[312]The respondent took such steps as were reasonable to avoid or minimise redundancy by providing at risk letter 14 July 2020, inviting the claimant to engage and inviting the claimant’s suggestions and proposals on how redundancy could be avoided, inviting the claimant to a remote meeting on 17 July 2020 and further inviting the claimant to check for internal vacancies providing a link for same.

[313]The claimant was provided with sufficient information to understand the dismissal including setting that there was a significant change in the business, a requirement to consider change in the workforce, resulting in reduced staff levels in the respondent letter of 14 July 2020 and further in the respondent email of 17 July 2020 there was a reduced operation expenditure resulting in a requirement to reduce staff levels.

[314]The claimant was given sufficient information to understand the dismissal and while he was not provided with scores this was because the claimant elected not to request same. The claimant elected not to take part on the offered zoom meeting (p625), however he engaged in the process to the extent he wished to do so by setting out on 15 July 2020 (p630) what he described as the respondents’ legal responsibilities and to which the respondent responded on 17 July 2020. The claimant did not suggest during the process that he wished sight of his scores or otherwise information which would allow him to challenge the accuracy of the scoring attributed to him by the respondent.

[315]The respondent set out that in its response of 17 July 2020 that objective criteria had been applied based on the critical skills, performance, and future contribution to the business. While the claimant issued a short email on 31 July in which he described that he was on sick leave, not well enough to apply for any role within the respondent business and described that consultation could take place over email or letter he set out no request for information and provide no suggestions nor offered any proposals as to how redundancy could be avoided.

[316]Following the respondent’s email of 17 July 2020 the claimant took no action in the following period of around 1 month prior to the end of the consultation period on 17 August 2020 and his receipt of the respondent’s letter of 18 August 2020 confirming his employment would be terminated by reason of redundancy, to raise any request for his scores or otherwise seeking to suggest that he considered that the respondent was incorrect in its approach in any way. The claimant did not raise any issue of scoring by appeal; indeed, the claimant did not appeal at all.

[317]While the claimant’s 15 July 2020 setting out what the claimant described as the respondent legal responsibilities included the phrase “and any other documents you intend to rely upon during the Zoom call”, that statement would not be reasonably read to intimate that the claimant wished to challenge accuracy of scorings. He did not set out that he did so at that stage or in appeal that he wished to do so. Had the claimant intimated that he wished to challenge the accuracy of scoring he would have been placed in a position to challenge the accuracy of the markings, although that may not have required the respondent to disclose the actual markings to him.

[318]As set out in their letter of 18 August 2020 the respondent explored the possibility of avoiding the redundancy but had not been able to identify any suitable alternative work for him.

[319]The claimant was not selected for redundancy nor was his employment terminated for any of the events /act which were found to be protected acts.

[320]The respondent embarked on what it described as a workforce reduction process, that was a restructuring essentially entailing a reduction in the number of employees doing work of a particular kind as opposed to a mere repatterning or redistribution of the same work among different employees whose numbers nonetheless remain the same.

[321]The respondent took steps to exclude the claimant’s period of disability related absence from its assessment in the scoring system. By the date of the selection criteria being applied the claimant had withdrawn his May 2019 Grievance and the respondent had ended the May 2019 Ethics Complaint. The Tribunal accepts that Mr Galpin and Mr Bowen applied a fair assessment to the claimant’s scores.

[322]The respondent genuinely applied its mind to the pool for selection as set out in the respondent email of 17 July 2020. The pool of 11 advisory systems engineers, including the claimant, adopted by the employers was one which a reasonable employer could have adopted. There was a diminution in the respondent’s requirement for advisory sales engineers to carry out work.

[323]The respondent acted reasonably in treating the redundancy as a sufficient reason for dismissal, in accordance with equity and the substantial merits of the case and the circumstances including the size and administrative resources of the employer’s undertaking, having regard to the claimant’s lack of engagement in the redundancy process including the absence of any suggestions or proposals as to how the redundancy could have been avoided.

[324]The claimant’s employment was terminated due to a fair redundancy process taking the redundancy process overall, the respondent’s reason was substantial and justified dismissal.

[325]The Tribunal does not accept that the claimant was selected for redundancy because of either what were argued a protected act, nor was the claimant selected for redundancy for any disability related reason.

[326]The departure of other respondent employees including Systems Engineers, subsequent to the redundancy process which culminated in the termination of the claimant’s employment does not impact on the fairness at the time of the process applied to the claimant.

[327]Had there been no redundancy the claimant would, in any event, not have returned to work until the respondent took the step outlined in his email of 29 November 2019 specifically dismiss both Mr Bowen and Mr Galpin for gross misconduct. Such a demand was unreasonable. The claimant would not have returned to work unless the respondent acceded to his unreasonable demand and his employment which was by then unpaid would have been fairly terminated for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held within terms of s98 (1)(b) of ERA 1996, effective imposition of an unreasonable barrier by the employee to his return to work.

[328]It was a matter accepted between the parties that the claimant was paid his statutory redundancy payment of £8,070. There are all the circumstances no further sums due by reason of the termination of employment.

[329]The claimant’s claim for unfair dismissal does not succeed and is dismissed.

[330]By 12 months after the October 2019 report, that is by around October 2020 the Tribunal is not satisfied that the claimant was unable to apply for any role using his IT skills. The Tribunal accepts that there is an active job market for employees including employees operating remotely with technical skills including in data protection and other areas of IT.

[331]However, and subsequent to the termination of employment the Tribunal accepts that it would have been reasonable, for the claimant to have sought to minimise his loss by establishing a self-employed business either utilising his many years of experience within IT offering a form of computer advice service via remote or otherwise in alternate self-employed endeavour.

[332]However, and following the termination of his employment beyond setting up a website the claimant took no steps to operate a business beyond informally exploring, over a period of in excess of 2 years to the date of the final hearing, the possibility of establishing such a self-employment business without actually operating any such business.

[333]The Tribunal does not accept that the claimant took reasonable steps to minimise his loss and had the Tribunal concluded that there had been a unfair dismissal any compensation which would have followed would have been reduced accordingly. In the circumstances the Tribunal does not require to make such an assessment, having concluded, as it has, that the claimant’s employment terminated due to a redundancy situation within the meaning of s139 of ERA 1996, the reason for dismissal was redundancy and the respondent acted fairly in consulting with the claimant.

Remedy

[334]The claimant’s claim in terms of s15 EA 2010 in relation to the respondent’s letter of 22 July 2019 succeeds insofar as it set an expectation that the claimant agrees a meeting schedule with Mr Bowen. The Tribunal concludes that the respondent, for a period of 10 days treated the claimant unfavourably in setting an expectation that the claimant agrees a meeting schedule with Mr Bowen because of claimant’s disability related absence.

[335]Having regard to s124(5)EA 2010 and s119(4) EA 2010 the Tribunal considers that the respondent’s treatment of the claimant for the 10 day period was on the facts in this case an isolated event and the Tribunal concludes gave rise to an transient injury to feeling in the context that the claimant was absent from work, was not otherwise required to work with Mr Bowen and had solely be directed to agree an undefined meeting schedule with Mr Bowen. In all the circumstances, including having regard to the respondent withdrawing the direction following upon on the claimant setting out his objection in response on 26 July 2019 and having regard to the distress caused to the claimant for the 10-day period when the direction was operative, the Tribunal concludes that an award within the lower Vento Band of £1,000 is appropriate.

[336]The Tribunal has considered interest in terms of Reg 6(1) (a) of the Industrial Tribunals (Interest on Awards in Discrimination Cases) regulations 1996 which provides that period over which interest accrues begins with the date of discrimination being 22 July 2019 and ends on the date the Tribunal calculates compensation with interest @ 8% as follows: Number of days from 22 July 2019 to 28 March 2023 = 1,333 days; Interest = 1,346 x 0.08 x 1/365 x £1,000 = £295.01.

Remedy

[1]Paragraph 278 (a) and (b) are both varied by substitution with a. threat to stop sick pay unless the claimant sign consent forms and agree to a meeting schedule with Mr Bowen. The Tribunal concludes there was no threat to stop sick pay as set out in paragraph 117 above. The respondent’s letter of 22 July 2022, so far as it related to the completion of forms, was in any event a proportionate means of achieving a legitimate aim, namely continuing company sick pay and insurance thereafter. This claim is dismissed.

[2]Paragraphs 334, 335 and 336 are varied by substitution with “The claimant’s claim in terms of s1 5 EA 2010 in relation to the respondent’s letter of 22 July 2019 does not succeed, as there was no threat to stop sick pay. ” (iii) While we have varied the Reasons for our original Judgment, it being in the interests of justice to do so, that Judgment is otherwise confirmed, without being further revoked or variation, and the claimant’s remaining claims in respect of s1 5 EA (discrimination arising) because of disability, s1 9 EA 2010 (indirect discrimination), ss20, 21 EA 2010 (reasonable adjustments) and unfair dismissal, are unaffected those claims did not succeed.

Remedy

[1]Following a hearing which took place on 9, 10, 11, 12, 16, 17 and 18 May 2022; 28 and 29 November 2022 & Members Meetings on 3 and 23 February 2023 (with members meeting on 3 and 23 February 2023) we handed down the Judgment dated 28 March 2023 issued to the parties on 29 March 2023, in terms of which we unanimously dismissed the complaints brought by the claimant except what was identified as claimant’s claim in respect s15 of the Equality Act 2010 (discrimination arising) in respect of the event complained of on 22 July 2019 (expectation of agreeing meeting schedule).

[2]On 1 1 April 2023, the respondent’s representative applied for reconsideration of the Judgment.

[3]The respondent’s application for reconsideration was submitted timeously in terms of Rule 71 of the Employment Tribunal Rules of Procedure 2013 (the 2013 Rules).

[4]The application was referred to the Employment Judge, who decided it should not be refused because there was no reasonable prospect of the original decision being varied or revoked. No provisional view was expressed on the application.

[5]The Tribunal invited parties’ views on whether the application could be determined without a Hearing and confirmed that any response to the application should be copied to the other parties. Parties were advised that should reconsideration take place without a hearing, they would be given an opportunity to provide written representations. Neither party requested a hearing.

[6]Having considered the parties respective positions, the Tribunal concluded that it would not be necessary, in the interests of justice, to appoint a party Hearing, and the panel was reconvened for a member meeting scheduled for Friday 26 May 2023, to consider the respondent’s application and parties were directed to provide Written submissions and, thereafter, if they wished, Further Written Submissions in response, all in advance of this notified reconsideration hearing.

[7]The respondent and claimant provided Written Submissions, and the respondent provided Further Written Submissions.

[8]This judgment sets out the Tribunal’s conclusions in relation to reconsideration. The application

[9]The respondent seeks reconsideration, referring to the event, as set out in the claimant’s March 2022 consolidated pleadings and identified in paragraph 22 of the Judgment, pled and insisted upon as a claim, being “Monday 22 July 2019 (p 549 bundle) HR threaten to stop sick pay unless sign consent forms and agree to a meeting schedule with Mr Bowen”, (emphasis added).

[10]The respondent contends that the claimant complains that he has been treated unfavourably by the respondent in one way only, that is, the threat to stop sick pay.

[11]The respondent argues that the claimant did not complain that setting an expectation that he agrees to a meeting schedule with Mr Bowen was unfavourable treatment.

[12]The respondent argues, the Judgment appears to identify two forms or types of unfavourable treatment:a. A. HR threatening to stop sick pay unless the claimant signs consent forms; and

b. B. setting an expectation that the claimant agrees a meeting schedule with Mr Bowen and has treated each as two different section 15 EA 2010 claims.

[13]The respondent argues the Tribunal cannot find that the claimant’s claim in respect of section 15 of the Equality Act 2010 in respect of the event complained of on 22 July 2019 (expectation of agreeing to a meeting schedule) succeeds on the ground that it was not pled as a section 15 claim in its own right.

[14]The respondent argues that the claimant’s pleadings set out the only unfavourable treatment complained of as the threat to stop sick pay.

[15]In summary respondent argues that the claimant’s pleadings (the consolidated pleadings) set out the only unfavourable treatment complained of as the threat to stop sick pay (such threat being made to require him to sign consent forms and agree to a meeting schedule). The claimant did not assert that an expectation to agree a meeting schedule was also unfavourable treatment.

[16]The respondent argues the Employment Tribunal cannot find that the claimant’s claim in respect of section 15 of the Equality Act 2010 in respect of the event complained of on 22 July 2019 (expectation of agreeing to meeting schedule) succeeds on the grounds that it was not pled as a section 1 5 claim in its own right. Procedural History

[17]The claimant, in his Written Submission, referenced the preliminary hearings, it being argued that the respondent had not previously raised this matter. The respondent in their Further Written Submission, referenced the ET1, Further and Better Particulars and Consolidated Pleadings.

[18]In these circumstances, it is considered appropriate, unusually, to set out some of the procedural history so far as it is relevant to this application.

[19]The paper apart to the claimant’s 2019 ET1, gave notice, in relation to sick pay and leave at (para 15), that the claimant argued that he had suffered discrimination in relation to the management of his sick pay and leave and (at para 16) referenced respondent letter of 22 July 2019 "advising that the company could withdraw sick pay if he failed to engage with the support provided and advising that he must return the consent form by 31 July in order to continue benefitting from sick pay. This was entirely inappropriate and discriminatory in the circumstances...”

[20]At Preliminary Hearing on 27 March 2020, after discussion, it was determined that Further and Better Particulars would be provided by the claimant.

[21]On 17 April 2020, Further and Better Particulars were provided. So far as material, those gave notice, in respect of s15 Equality Act 2010 Discrimination Arising from Disability, at para 46, that the claimant asserts he was treated unfavourably in the way the respondent’s HR department managed his sick pay and absence, giving notice at para 47 that the claimant was then arguing that he was treated unfavourably listing 5 acts:47.1 In the letter of 22 July 2019, the Respondent threatened to withdraw the Claimant’s company sick pay if he did not return the consent forms when he had raised reasonable concerns about the service interfering with his medical treatment;

47.2 the Respondent insisted that the Claimant set up regular contact with Mr Bowen when the Claimant had made the Respondent well aware that Mr Bowen’s actions contributed to his illness; 47.3.. . 47.4.. 47.5.. . It being argued that those 5 notified acts, were because of something arising in consequence of the claimant’s mental health.

[22]At Preliminary Hearing on 11 November 2020, it was noted that the parties agreed that the then two sets of proceedings should be conjoined and (at para 5 of the Note issued 16 November 2020) parties undertook to consolidate their pleadings.

[23]At Preliminary Hearing on 15 January 2021, at which the claimant represented himself, the Tribunal identified the need for clarity of pleadings.

[24]The Tribunal noted that while the claimant had, by that date, provided a twopage summary of his claims, it was identified that the claimant must set out the allegation in chronological order with dates, identifying the essential matters in respect of each allegation were(a) what was the unfavourable treatment?

(b) what was the reason ‘arising from disability’ forthat treatment?

(c) how did that reason arise from the disability? Further, it was determined that parties would lodge consolidated pleadings being a consolidation of all claims and an Order was issued accordingly.

[25]The claimant provided consolidated pleadings dated 21 February 2022. At para 28 of those February 2022 Consolidated Pleadings (dealing with s15 EA 2010 Discrimination Arising from Disability), the claimant gave notice of the relevant matter here relied upon for the final hearing as

[28]What was the unfavourable treatment? 22/07/2019 HR threaten to stop sick pay unless I sign consent forms and agree to a meeting schedule with Mr Bowen (manager I formally complained about). The claimant further gave notice what he said was the reason "arising from disability’ for that treatment and the way in which that reason arose the disability. 26. As set out in the Judgment, the claimant provided Consolidated Pleadings in March 2022 (as they are referred to in the Judgment, the Claimant Consolidated Pleadings March 2022). The March 2022 Consolidated Pleadings was a 23-page document organised primarily in order of claims (rather than dates) with what the claimant asserted were relevant (dated) events as subheadings set out in chronological order. At para 28 of the Claimant Consolidated Pleadings (which dealt with s15 EA 2010 Discrimination Arising from Disability), again claimant gives notice of the relevant matter relied upon for the final hearing as: 28. What was the unfavourable treatment? 22/07/2019 HR threaten to stop sick pay unless I sign consent forms and agree to a meeting schedule with Mr Bowen (manager I formally complained about). The claimant further stated what he said was the reason ‘arising from disability’ for that treatment, and the way in which it is said that reason arose from the disability. 27. The respondent in their Respondent’s Consolidated Pleadings addressing s1 5 EA 201 0 discrimination arising, denies treating the claimant unfavourably because of something arising in consequence of the claimant’s disability (so far as relevant) at 9.g: g. In the way the Respondent managed his sick pay and absence- The decision how to manage sick pay in relation to the Claimant was not because of something arising from his disability. The Respondent’s Sickness Absence Policy explains how sick pay and absence are to be dealt with and the Respondent did or did not do certain things in response to what the Claimant did or did not do. In relation to the sick pay, the Claimant received a greater number of weeks company sick pay to that which he was entitled to under the policy. 28. The agreed List of Issues does not specify the matters complained of.

[29]Following the Final Hearing, in written submissions, the claimant sets out his position at para 53 of his submissions “HR threaten to stop sick pay unless I sign consent forms and agree to a meeting schedule with Mr Bowen (manager I formally complained about).”

[30]In written submission following the final hearing, the respondent addresses its position at para 307, describing (what is listed as event 28) “that HR threatened to stop sick pay unless the claimant signed the consent forms and agreed a meeting schedule with Mr Bowen... we submit that Claimant’s treatment was not unfavourable”. Written Submissions for this Reconsideration. 31 . The respondent set out their Written Submission over 1 6 primary paragraphs. The claimant set out his Written Submission over 12 paragraphs. The respondent’s Further Written Submission is set out over 5 paragraphs. It is not considered necessary, in the interests of brevity, to set out the respondent or the claimant’s written submissions, nor the respondent’s submissions, although reference is made to those below where it is considered relevant to do so.

[32]Reconsideration of Judgments Rules of Procedure. The Tribunal has reminded itself of the terms of Rules 70 to 72 of the 2013 Rules of Procedure. It is not considered necessary to set those out at length. Rule 70 however sets out the principles to be applied when dealing with an application for reconsideration - “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. ”

[33]Case Law. The approach to be taken to applications for reconsideration was set out in Liddington v 2gether NHS Foundation Trust [2016]

UKEAT/0002/16

(Liddington) in the judgment of Simler P: The Tribunal is required to:(a) identify the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage;

(b) address each ground in turn and consider whether is anything in each of the particular grounds relied on that might lead ET to vary or revoke the decision; and

(c) give reasons for concluding that there is nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his decision.

[34]In paragraphs 34 and 35 of Liddington, Simler P included the following guidance: “A request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. Where ...a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application. ”

[35]The EAT has issued guidance including decisions that the interests of justice include the public interest in the finality of litigation in Flint v Eastern Electricity Board

[1975] ICR 395

(Flint) per Phillips J at 404G-405B: “it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry. ”

[36]Further, Underhill J in Council of the City of Newcastle upon Tyne v Marsden

[2010] ICR 743

(Marsden), having reviewed the relevant case law, said at [17]: “ ... the weight attached in many of the previous cases to the importance of finality in litigation - or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bit of the cherry- seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final ...”

[37]Judge Hand QC, considering the then new reconsideration jurisdiction under the 2013 ET Rules in the light of the previous case law, said in Serco Ltd v Wells

[2016] ICR 768

(Wells) at [43(a)]: “The draftsmen of both sets of Rules must be taken to have drafted them with the same universal principle in mind, namely what I have described as finality and certainty of decision and orders and the integrity of judicial decisions and orders; this principle, as the authorities in both jurisdictions illustrate, usually directs any challenge to an order towards an appeal to a tribunal of superior jurisdiction and discourages seeking the same judge or another judge of equivalent jurisdiction to look again at an order or decision, save in carefully defined circumstances.”;

[38]The Court of Appeal considered Rule 70 in Ministry of Justice v Burton

[2016] ICR 1128

(Burton). Elias LJ said at [21]: “An employment tribunal has a power to review a decision ‘where it is necessary in the interests of justice’: see rule 70 of the Employment Tribunals Rules of Procedure 2013. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J pointed out in Newcastle upon Tyne City Council v Marsden

[2010] ICR 743

, para 17 the discretion to act in the interests of justice is not open ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray & Vials

[1994] ICR 384

Mummery J held that the failure of a party’s representative to draw attention to a particular argument will not generally Justify granting a review.” Discussion and Decision

[39]The notes the respondent’s position set out in their Further Witten Submissions (para 1), in response to the claimant’s Written Submission, that the respondent “does not submit that the consolidated pleadings were not agreed upon”. The Tribunal, however, concludes that the March Consolidated Pleadings set out the claim for which notice was given and which was insisted upon for the Final Hearing.

[40]The Tribunal notes but does not accept the respondent’s position set out in Further Written Submissions that the pleadings throughout the ET1, Further and Better Particulars and Consolidated Pleadings on this issue, were consistent. The relevant unfavourable treatment for which notice was given in the ET1 is set out above. That was further clarified as two distinct unfavourable treatments in the Further Particulars again as set out above. However, the claimant elected to consolidate those two separately listed unfavourable treatments into one in his February and thereafter his March 2022 Consolidated Pleadings.

[41]The Tribunal recognises that the claimant is unrepresented. The Tribunal notes the claimant’s position as set out in his Written Submissions that (his) consolidated pleadings were agreed upon well before the hearing. The Tribunal notes that the claimant argues that the respondents did not raise this pleading issue at any preliminary hearing before the Final Hearing nor during the hearing. The Tribunal further notes that the claimant argues that Tribunal exercised common sense and dealt with both matters separately.

[42]While the argument as set out in the Consolidated Pleadings is articulated differently from that which preceded it, there was no requirement here for the respondent to raise what was a change in the claimant’s pled claim for which notice is given, before or during the Final Hearing. Changes in the pled case are not uncommon and indeed, in the course of the Final Hearing, aspects of the claim were withdrawn by the claimant as described at paragraph 22 (14) (2) and (3) of the judgment.

[43]Importantly, the claim for which notice is given for the Final Hearing was set out in the consolidated pleadings. It was not as previously set out in the Further Particulars as set out above as two unreasonable treatments. The natural reading of the Consolidated Pleadings describes one event occurring consequential unless two specific actions were taken. In seeking reconsideration, the respondent is not here seeking to relitigate matters, nor can it be said that this is a matter which had been fully ventilated.

[44]After anxious consideration, including reflecting on the presentation of the claim at the hearing, the Tribunal is satisfied it requires to vary its Judgment and Reasons in the interests of justice to reflect the s15 EA 2010 unreasonable treatment for which notice was given for the Final Hearing. In doing so the T ribunal requires to revoke Paragraph (1 ) of Judgment dated 28 March 2023 (the Judgment), which set out that (1) the claimant’s claim in respect s15 of the Equality Act 2010 2019 (expectation of agreeing meeting schedule) succeeds and the claimant is awarded £1,000 for injury to feelings in relation to that claim only together with interest in the sum of £295.01 ; and for that element of the decision to be taken again with unanimous Judgment now being (1) The claimant’s claim in respect of s15 of the Equality Act 2010 2019 does not succeed and is dismissed.

[45]The following variations of the Judgment also follow:

[2]Paragraphs 334, 335 and 336 are varied by substitution with “The claimant’s claim in terms ofs15EA2010 in relation to the respondent’s letter of 22 July 2019 does not succeed, as there was no threat to stop sick pay. ” Conclusions 46. While we have revoked paragraph (1) of the Judgment with that element of the judgment being again and varied as above Reasons for our original Judgment, it being in the interests of justice to do so, the Judgment is otherwise confirmed, without variation, and the claimant’s remaining claims in respect of s15 EA (discrimination arising) because of disability, s19 EA 2010 (indirect discrimination), ss20, 21 EA 2010 (reasonable adjustments) and unfair dismissal, are unaffected those claims did not succeed.