Mr T Whittard v Gloucestershire Health and Care NHS Foundation Trust: 6000134/2022
EMPLOYMENT TRIBUNALS
Case No 6000134/2022
Between
Mr T WhittardClaimantGloucestershire Health & Care NHS Foundation TrustRespondent
Before
Employment Judge MidgleyIn person for claimantDate 2 August 2024
JUDGMENT
[1]The claims of direct perceived disability discrimination are struck out pursuant to Rule 37[3]The claims of harassment contrary to section 26 Equality Act 2010 are well founded and succeed. JUDGMENT having been sent to the parties on 2 August 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]By a claim form presented on 21 December 2022, the claimant brought claims of disability discrimination..[2]By a response presented on 27 February 2023, the respondent resisted the claims. Procedure, Hearing and Evidence[3]Following preliminary hearings on 20 August 2023 and 16 October 2023, the claims were clarified as complaints of harassment (and a complaint of direct discrimination was dismissed) and the case was listed for hearing.[4]We were provided with the following for the hearing: 4.1. A bundle of documents of 385 pages 4.2. A supplementary bundle (largely containing transcripts of recordings made by the claimant) of 144 pages 4.3. The following witness statements: 4.3.1. For the claimant: his statement (12 pages) 4.3.2. For the respondent statements of: 4.3.2.1. Charlotte Tucker (3 pages) 4.3.2.2. Gemma Hayward (7 pages) 4.3.2.3. Jonathan Thomas (5 pages)[5]We heard evidence from those witnesses before hearing submissions from the parties and taking time for deliberation. Mrs Hayward gave evidence remotely because of the existence of a restraining Order made against the claimant in respect of his conduct towards her.[6]We gave an extempore judgment on the final day of the hearing. The claimant subsequently requested written reasons. We apologise for the delay in their production, which has been caused by the pressure on judicial resources. We have endeavoured to keep the claimant informed of progress with their production and the anticipated date of their promulgation, although it has not always been possible to meet such expectations and revised dates have been given to the claimant. We are sorry for any frustration or anxiety caused by the delay.
The Issues
[7]On 4 June 2024, in response to an Order of Regional Employment Judge Pirani, the claimant for further information of his claims detailing the unwanted conduct relied upon for the purposes of the harassment complaint. The Judge has distilled the following issues from that response which arose for our determination (the respondent’s position is indicated by the text in square brackets): Harassment related to disability (Equality Act 2010 s. 26) 7.1. Did Mrs Hayward do the following things in order to ‘gaslight’ the claimant intending that it would heighten the claimant’s anxiety, knowing or believing that he was vulnerable to such anxiety because of his mental health condition of bipolar disorder: 7.1.1. In October 2021 Mrs Hayward informed the police that the claimant suffered from Bi-polar disorder and stated that he was psychotic. [The content of the statement is not disputed, its purpose or effect is disputed.] 7.1.2. On 7 October 2021 at 4.47pm Mrs Hayward sent the claimant a text message – the claimant alleges that the message was sent just before Mrs Hayward left work for the day to prevent the claimant from returning her call so as to heighten his anxiety and manipulate his mood state. [The fact of the message is admitted, the purpose or effect of the timing of the message is disputed] 7.1.3. On 17 November 2021 during a telephone call, Mrs Hayward repeatedly asked the claimant about his mental health state and said “Are you sure that you weren’t medically unfit to be practising?” seeking to lead the claimant to question his own mental state both at the time of the call and at the time of the disciplinary incident [The content and purpose or effect of the call is disputed] 7.1.4. On 7 December 2021, Mrs Hayward sent the claimant a text message in which she stated “I have tried to call you today”– the claimant alleges that she knew she had not in fact called the claimant, and timed the text to prevent him from returning her call to heighten his anxiety and manipulate his mood state. [The fact of that text is admitted, the purpose or effect is disputed] 7.1.5. On 8 December 2021, during a telephone call Mrs Hayward repeatedly asked the claimant how he was, sought to imply that he was isolated and withdrawn and was suffering delusion of grandeur and other symptoms indicative of a relapse of bipolar disorder seeking to induce the claimant to question his mental state. [The content of the call is admitted, the purpose or effect is disputed]. 7.1.6. On 24 December 2021, Mrs Hayward telephoned the claimant and implied that the claimant was experiencing delusions of grandeur and referred to the claimant’s forthcoming police interview, intending to cause the claimant anxiety. [The fact and content of the call is admitted, its purpose or effect is disputed]. 7.1.7. On 25 December 2021, Mrs Hayward sent the claimant a text message at 10:31am stating “Well done hunny that’s amazing” intending to flirt with the claimant or to coerce the claimant into considering an intimate relationship with Mrs Hayward as a means of resolving the internal disciplinary investigation. [The fact of the message is admitted, its purpose or effect is disputed.] 7.1.8. On 5 January 2022 Mrs Hayward sent the claimant a text message at 23:59 stating “Hola hunny how r u?” intending that the text message would disrupt the claimant’s sleep pattern, knowing or believing that that disruption would adversely affect his mental state as sleep patten disruption is a significant risk factor for those with bipolar disorder. 7.1.9. On 19 January 2022 in a telephone call, Mrs Hayward told the claimant that the Police had had access to his personnel, knew he had an underlying mental health condition, and had requested he underwent an examination by an Independent Medical Officer. [The fact and content of the call is admitted, its purpose or effect is disputed]. 7.2. If so, was that unwanted conduct? 7.3. Did it relate to a protected characteristic, namely disability? 7.4. Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 7.5. If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Factual Background[8]We make the following findings of fact in light of the evidence we heard and read on the balance of probabilities. Our findings were unanimous.[9]The claimant was employed by the respondent from 20 August 2004 until his resignation on 24 June 2023. He initially worked as a Healthcare Assistant before promotion to the role of a registered nurse in August 2008.[10]Mrs Gemma Hayward was assigned as the claimant’s preceptor. A preceptor is a mentor for newly qualified nurses. Mrs Hayward was responsible in her role as preceptor for assessing the claimant’s competence. She was an extremely experienced mental health practitioner. She had been appointed as a charge nurse in 2009 and promoted to the role of ward manager in 2014. She had 15 years’ experience as a manager at different levels within the NHS.[11]The claimant alleges that during the course of his preceptorship, Mrs Hayward made romantic advances towards him which he declined. His evidence was that that rejection caused their working relationship to break down, and subsequently he took the opportunity to transfer to a different ward.[12]Mrs Hayward denies those allegations. She avers that the claimant moved to a different ward because he struggled with the workload and the move was to a ward with less patients and a quieter workload so as to enable him to focus on his skills to pass his preceptorship.[13]It is unnecessary for the purposes of these claims to resolve that factual dispute, however, Mrs Hayward recorded during a keeping in touch session with the claimant on 27 September 2021 (as detailed in the factual background below) that the claimant referred to “concerns he [had] raised a number of years ago” when she was his “mentor when he was newly qualified” that she “wasn’t doing what was best to support him despite lots of evidence.”[14]At about the same time the claimant began lecturing at the University of the West of England, teaching third year student nurses.[15]In the summer of 2011 the claimant was diagnosed with Bi Polar Disorder (type 2). He was admitted to hospital care as a psychiatric in-patient. Upon his discharge, he was prescribed a mood stabiliser which he continued to take until 2018.[16]In 2014, a nurse from a different ward, who had been taught by the claimant at UWE, was suspended in relation to allegations that he had dragged a patient out of a chair before dragging them up a corridor. The nurse denied the allegations and confided in the claimant in relation to the circumstances of the incident, alleging that he had been targeted with a false accusation.[17]In late 2015 or early 2016 the claimant transferred to the Chestnut Ward. The claimant’s manager at that time was Mr Gary Sanders. Chestnut Ward is a 14 bed ward for patients with functional illnesses such as depression, psychosis and anxiety. The ward has one Consultant, a Ward Manager, three Charge Nurses, ten Staff Nurses, and several healthcare assistants. The staff are split into three teams headed by a Charge Nurse. The patients are split between the three teams. The staff work across three shifts, consisting of earlies, lates and nights.[18]In 2017 the claimant completed a diploma in Addiction Medicine with the University of British Columbia, Canada. In 2018 he began working as a visiting lecturer at the University of Worcester, teaching mental health nursing students on the subject of psychiatric assessment, focusing on mental state examination and risk assessment.[19]At about the same time, in 2018, the claimant’s health had improved sufficiently to accommodate the cessation of the mood stabilising drugs he had been prescribed.[20]In 2020 the claimant wrote and published a book, with a forward by Stephen Fry, entitled “Mental and Behavioural State Examination: Theory into PracticeA Nurse’s Perspective on Psychiatric Assessment.” The publication was subsequently included on an approved reading list for student nurses at a number of national and international universities. The claimant was awarded a TCK Publishing Readers’ Choice award for the volume in 2021. The claimant did not, however, whether in the lectures or in the book, refer to his own experience of mental health illness, or his period as a psychiatric patient.[21]We accepted the claimant’s evidence that the reason for that was because he found the process of his diagnosis and admission as a psychiatric patient extremely traumatic and distressing. Consequently, he did not enjoy talking about those matters, save for with his family, loved ones and extremely close friends.[22]The respondent accepts that between 2018 and 2021 the claimant was in good health, generally was in good mental health, and required no medication in respect of his mental health condition.[23]Between early 2020 and the summer of 2021, the claimant explored and pursued other interests in television production as a researcher/producer, whilst continuing to develop his teaching and mentoring role, taking on a post as a career mentor at Reading University, a lecturer at a University in the Philippines, and undertaking online lectures for nursing students. Throughout that period he continued to work for the respondent.[24]At or about the same time, Mrs Hayward was promoted to the position of Matron, working at the Charlton Lane Hospital.[25]In August 2021, Mr Sanders left his position as Ward Manager and the position remained vacant until 18 October 2021. Mrs Hayward therefore became the claimant’s de facto manager during that period. The claimant’s suspension[26]On 24 September 2021, when the claimant was working on the Chestnut ward, an incident occurred involving a patient, a health care assistant, Ms Amanda Balchin, and the claimant. It is important to note at this stage that both the resulting police investigation and the subsequent disciplinary investigation by the respondent found that there was no wrongdoing by the claimant, and he was exonerated. There was no referral to the Nursing and Midwifery Council (“NMC”) in respect of the care that he provided or the completion of his duties.[27]On 27 September 2021, Mrs Hayward was informed that it had been alleged that the during the incident the claimant had mocked a patient, made implicit threats to her, and had dragged her forcibly from her chair to her bedroom where it was alleged he restrained her with the healthcare assistant for 15 minutes. She therefore undertook a fact finding investigation. She required the witnesses, Ms Balchin, and two other members of staff (who had not seen the incident but were on shift) to produce witness statements when they attended work that day. She interviewed the patient who was a witness and produced a statement for them. The patient who was alleged to have been mistreated was not sufficiently well as a consequence of their underlying mental state to give a witness account.[28]Ms Balchin’s statement was typed by Mrs Hayward whilst she was present in Mrs Hayward’s office. The claimant maintains that Mrs Hayward manipulated the language in the statement to paint him in the worst possible light. Mrs Hayward asserts that she typed the account that was given to her by Ms Balchin. Some years later in May 2023, in a telephone conversation with the claimant, a transcript of which was provided to the tribunal, Miss Balchin stated that she did not “write” the statement, and that she had told the respondent during an internal investigation that Mrs Hayward wrote her statement because she was “not very good at writing.”[29]It is important to record that that account was given to the claimant(a) in circumstances in which the claimant had repeatedly suggested that he knew that the statement was not in Ms Balchin’s language and that he believed she had been pressured to write it in that form,(b) in circumstances where the claimant had repeatedly suggested that he had reported Mrs Hayward to the police in respect of her conduct and that she would likely be sent to prison, and(c) the allegation that she had written the account was not put directly to Mrs Hayward by the claimant in cross-examination.[30]On the same day, the 27 September 2021, Mrs Hayward then telephoned the claimant asking him for his account of the incident before asking him to return work to give a formal written statement. The claimant gave an account but was unable to return to the workplace, and so wrote his statement independently before submitting it to Mrs Hayward on 28 September. The claimant asserts that during that discussion Mrs Hayward pressed him to accept that he was experiencing a mental health episode at the time of the incident. Mrs Hayward asserts that she merely asked claimant whether he was well at the time of the incident, so as to understand whether his health played any part in what occurred. We resolve that conflict of evidence in our conclusions below.[31]When Mrs Hayward spoke to the claimant about the incident she had no concerns that he lacked capacity (within the meaning of the Mental Health Act).[32]In his initial account to Mrs Hayward over the telephone on 27 September (and in his formal statement to the investigation), the claimant asserted that he and Ms Balchin had deemed it necessary to remove the patient from the dining room, to prevent an escalating situation from developing into a serious incident, and so they escorted the patient to their bedroom. He accepted that it had been necessary to use a form of restraint whilst escorting them from the dining room and that he had not completed the necessary form to record the fact of that restraint, asserting that that was because of the busyness of the shift.[33]Mrs Hayward informed the claimant that he would be suspended. As the position of ward manager was then vacant, it was agreed (internally in the respondent) that Mrs Hayward would act as the supervising manager for the purposes of the respondent’s keeping in touch procedure. She advised the claimant of that fact, and it was agreed that the claimant’s preferred method of contact was by text, during working hours, unless there was a significant update to be provided. Mrs Hayward noted that on the respondent’s pro forma keeping in touch form.[34]As stated, Mrs Hayward completed a Keeping in Touch form, detailing her discussion with the claimant. In it she recorded that the claimant had raised concerns with her about the manner in which he alleged she had treated him when he was newly qualified when she was his mentor, noting “he had thoughts at this time that I wasn’t doing what was best to support him despite lots of evidence. We discussed this at length and Tim seem happier and more accepting that I was there to help him”[35]The claimant says that he agreed to give her the benefit of the doubt going forward. We note, however, that there is no reference to any discussion about the claimant’s health in that initial Keeping in Touch record.[36]Mrs Hayward then completed an incident report form on a template pro forma. On the form she recorded that: 36.1. It was extremely likely that the incident had occurred as described by the complainant. The basis of her conclusion, as she told the tribunal in evidence, was that the claimant’s account of the incident differed from that of Mrs Balchin and the other witness. 36.2. The claimant had an underlying mental health condition that was managed by him and his medical team, which had not required medication for two years and the claimant had been generally well during that time. 36.3. She had discussed the claimant’s mental health with him and made a note of early warning signs for his condition, noting that she was told that “at times he has not recognised when he is unwell.” She further recorded that she had said that she would support him with the recognition of any deterioration in his mental health condition and gave him “my number as a point of contact for support, he says he has no one else he can speak to and his friends base is on the ward and he is currently not able to access this.”[37]On 28 September 2021, Mrs Hayward discussed the incident with the respondent’s Director of HR, Ms Keri Barrow, and Ms Amy Alexander, the respondent’s Deputy Service Director. They concluded that it was unnecessary to refer the incident to the claimant’s regulatory body, the Nursing and Midwifery Council (“NMC”) at that stage, but that it should be escalated to the Police, and that an internal disciplinary investigation should take place. Keeping in Touch – the harassment allegations.[38]As we have recorded above, the claimant was informed of the decision to suspend him by Mrs Hayward on 27 September 2021. In that discussion he was instructed not to contact any of the respondent’s employees during the period of his suspension. The claimant immediately removed all his colleagues from his social media accounts. Later that day, the claimant asserts that Mrs Hayward called him again, while he was having a bath. She reported that his colleagues had expressed concern for his well-being, given that he had suddenly disappeared from their social media contact.[39]There is a dispute as to what was then said. The claimant asserts that he was in the bath, and Mrs Hayward said “Where are you? I can hear water”, and he replied “I’m in the bath”, before she stated, “Oh, good - so you’re not drowning yourself?” Mrs Hayward vehemently disputes that she said anything of that sort. We resolve that dispute in so far as is necessary, given the allegations of harassment, in our conclusions below.[40]On 30 September 2021, Mrs Hayward texted the claimant her mobile number so that the claimant had someone to talk to and a source of support during the period of his suspension. (a) Mrs Hayward’s statement to the police[41]On 1 October 2021, PC Fern Dorling took a proof of evidence from Mrs Hayward. During that process, the officer asked about the claimant’s and Ms Balchin’s health. Mrs Hayward gave the following account which was recorded in the draft of her police statement; “I would say that he has had a mental illness throughout his career. This is a psychotic illness; when he is unwell he is very unwell and has been hospitalised in the past. I have never known him to be aggressive and in fact I would describe him as a gentle giant, I asked him specifically following this incident whether he was unwell and he said no. His previous manager told me that when he is ill he becomes erratic, grandiose and talks a lot more than usual.”[42]She did not report any health concerns in respect of Miss Balchin.[43]Mrs Hayward knew, in the circumstances where she was a very experienced matron in a mental health ward, that her reference to the claimant having a ‘psychotic’ illness would be treated as compelling evidence that the claimant had a condition which caused or could cause him to lose touch with reality, and to experience delusions and hallucinations. She did not check the claimant’s personnel file to ensure that the information she had given to the police officers about the claimant’s condition was accurate, notwithstanding that she knew it was to be included in her witness statement for the purposes of the police investigation. She did not tell the police that the claimant had not been taking medication in respect of the condition for two years and that he had been generally well during that period (as she had recorded in the suspension form). She was unable to provide the tribunal with any explanation for those omissions, notwithstanding that she accepted in her evidence that she recognised that they were relevant matters to have disclosed to the police.[44]In the event, the statement was not finalised until May 2022 as detailed below.[45]Mrs Hayward had a further text message exchange with the claimant on 3 October 2021 in which the claimant expressed a desire that the process should not be overly long.[46]On 6 October 2021, the claimant texted Mrs Hayward asking for an update. Mrs Hayward advised the claimant that she was due to receive an update from HR the following day and would call him once that had occurred. The claimant stated that he would only be available until 3 pm. (b) Text message 7 October 2021[47]On 7 October 2021 at 16:47, Mrs Hayward texted the claimant advising him that she would call him the following day as she had not received the news before 3pm. The claimant immediately replied stating “sounds like there’s some news!? I am able to talk now.… Happy to chat tomorrow if you prefer though.” Mrs Hayward did not respond.[48]The claimant asserts that Mrs Hayward deliberately delayed sending the text message until shortly before she was due to leave work so as to prevent the claimant from returning her call, with the intention that the resulting uncertainty would heighten his anxiety, leaving him to fester and ruminate on the possibilities overnight. As with other allegations, he asserts that in acting as he alleged, Mrs Hayward was aware that he was vulnerable to anxiety and stress as a consequence of his bipolar disorder and sought to weaponise the vulnerability inherent in his anxiety against him. Mrs Hayward asserts that she called the claimant back, as she recorded in the keeping in touch record, advising him that he would be required to attend a meeting relating to his suspension, and so would not need to be accompanied by a union representative. We resolve that dispute in our conclusions below.[49]On 11 October 2021 the claimant attended a meeting with Mrs Hayward and Mrs Alexander, during which the claimant was advised that the allegations had been referred to the police and that the respondent’s internal process would be suspended pending the conclusion of the police investigation. The claimant was advised that his suspension would be continued but would be reviewed. In a letter sent that day, Mrs Hayward confirmed the content of the discussion and listed various support organisations which the claimant could access during his suspension.[50]On 15 October 2021,the claimant was informed Mrs Barrow, an HR advisor, would be the liaison for the claimant during the police investigation.[51]On 16 October 2021, Mrs Susie Ford was appointed to the role of Ward Manager for the Chestnut ward. She therefore became the claimant’s line manager and his point of contact for the purposes of the pastoral element of the Keeping in Touch process. Mrs Hayward was aware of that appointment. It was her evidence that from that point her role in maintaining contact with the claimant was limited to the police investigation, although she would ‘naturally’ have asked him how he was when providing him with updates.[52]On 28 October, the claimant’s brother, who was a nurse working for the same NHS Trust, but in a different department, telephoned Mrs Hayward advising her that he had been made aware of the contents of the statement Ms Balchin had given to Mrs Hayward during the internal investigation. He provided specifics, identifying that she had alleged that the claimant was in a bad mood and not himself on the day of the incident in the statement. Mrs Hayward escalated the matter to HR and to Mrs Alexander, the Commissioning Manager.[53]The following day, 29 October 2021, the claimant texted Mrs Hayward asking for a telephone call because he had been made aware of gossip within the Trust relating to the investigation. She therefore called the claimant. During the discussion the claimant disputed that he was in any way not well or in a bad mood when he came on shift. Additionally, he complained that there had been a breach of confidentiality in relation to Ms Balchin’s statement. Mrs Hayward advised him to formalise his concerns in an email so that she could escalate them. The claimant sent an email immediately after the conversation in which he wrote; “it was good to talk and discuss the data breach in relation to the investigation. We discussed that I have been made aware that the statement of another witness has been leaked and is being discussed by trust staff who are not involved in the investigation. You indicated that you were also aware of this and had also informed HR of this data breach. You advised me to put my concerns in an email so that a formal complaint can be actioned about the leaked witness statement”[54]In the Keeping in Touch form, Mrs Hayward recorded that the claimant was “concerned by gossip going around that his brother has informed him of in relation to investigation, has heard that staff were saying he was not in a good way or mood when he came on shift.” She made no reference to a data breach, or to the fact that the statement of Ms Balchin had been seen and was being discussed by trust staff. Mrs Hayward did record that she had spoken to the teams across the hospital, reaffirming the need and importance to avoid discussing the incident. She recorded that she had advised him to record his concerns in an email.[55]Mrs Hayward contacted the claimant by text on 5 November, enquiring how he was; in the ensuing exchange she advised that she had checked emails but had received no update from the police in relation to the investigation. (c) 17 November 2021 telephone call[56]On 17 November 2021, the claimant texted Mrs Hayward asking if there was any further news in relation to the police investigation. Mrs Hayward returned the claimant’s call. There is a significant dispute about the content of the discussion.[57]In his witness statement the claimant suggests that Mrs Hayward said “do you think you’ll be in need of a noose?” To which he replied, “No Gemma, I am not suicidal!” Mrs Hayward responded, “I didn’t mean for suicide, I meant for capital punishment if you’re prosecuted!” He suggests that comment was made in false humour, and was intended to trivialise the situation and belittle him. We note that is the same allegation the claimant makes in relation to the call in September.[58]In detailing the allegation, both in the further and better particulars of his claim and his witness statement, the claimant alleges that during the ensuing discussion Mrs Hayward repeatedly asked him about his mental health, asking that question in different ways on more than ten occasions, and did not accept his responses that he was well. The claimant asserts “at one point she specifically asked “are you sure you weren’t medically unfit to be practising?” His case in these proceedings is that Mrs Hayward was deliberately seeking to undermine his mental health, by suggesting that he had not been well at the time of the incident, so as to undermine his account in relation to it.[59]Mrs Hayward vehemently denies that she made any reference to a noose, or that she repeatedly asked the claimant about his health, or that she did not accept the claimant’s account that he was well. In her statement she asserted that she would not have used the sort of terminology alleged in the comment “are you sure you weren’t medically unfit to be practicing.” Again, we resolve that dispute in our conclusions below.[60]Mrs Hayward completed the keeping in touch pro forma for that discussion, recording “Welfare check, no change, keeping busy, has lots on.”[61]Following that phone call, the claimant began to covertly record all calls that he had with Mrs Hayward and to save his text messages from her.[62]On 26 November 2021, the claimant texted Mrs Hayward asking for a further update. Neither Mrs Hayward nor the claimant addressed that discussion in their witness statements. The Keeping in Touch details conversation between the claimant and Mrs Hayward that day, reporting that Mrs Hawyard told the claimant that the police wished to interview him soon, that the claimant asked if he needed legal representation, and Mrs Hayward replied that she would speak to the respondent’s legal team to see what they advised. Mrs Hayward recorded on the form that the claimant repeated his account of what had happened on shift the before making the following entry; “states that he has never been well in himself all of the time but tries to manage this when he is unwell. At times during this shift he was stressed as it was busy. He feels given who he was on shift with he had more responsibility and had to do shift coordination and meds and was looking forward to a day off. He appeared settled and stable in MS with appropriate humour.”[63]The last sentence appears to be Mrs Hayward’s observation on the claimant’s his mental state. (d) 7 December timing of text message and false suggestion of a prior call[64]On 7 December at 16:45 Mrs Hayward sent a text message to the claimant, telling him that she had tried to call him that day. The claimant tried to call Mrs Hayward back immediately, but without success. He therefore texted her to say that he had tried to call her, but he received no further response.[65]The claimant alleges that that message was misleading, and that Mrs Hayward had not in fact tried to call him because he was available throughout the day, and that she deliberately called him shortly before leaving work to ensure that he could not call her back, knowing that would heighten his anxieties and affect his sleep. Mrs Hayward denies that. Again, we resolve that dispute in our conclusions below.[66]Mrs Hayward made a note on the Keeping in Touch proforma, recording “TC No Reply; Text: Text sent.” (e) 8 December 2021 – contents of telephone call[67]Mrs Hayward and the claimant spoke by telephone on 8 December 2021. The claimant covertly recorded the call and both a transcript and the recording were made available to the tribunal.[68]The claimant greeted Mrs Hayward and asked how she was. Mrs Hayward replied “Hi honey. I’m good. How are you?” The claimant confirmed that he was well. Mrs Hayward then informed the claimant that an officer, DC Amanda Meager, had been allocated the case and had spoken with Mrs Hayward. She told him that the officer would call him that day or on Thursday to introduce herself and make arrangements for his interview. Mrs Hayward suggested that once the police process was concluded the internal disciplinary investigation could begin, saying, “And that's just the next step. Hopefully. Let's get that bit done, and then we’ll be able to move on to the Trust bit, won’t we?”[69]The claimant replied “Yeah, yeah, yeah, yeah. Well, whatever. I mean, I'm in for the roller coaster. Let's see where we end up.”[70]Mrs Hayward laughed, in response to the claimant’s comment, and then said for the second time “How are you?” Before adding “Don’t say fine.”[71]The following exchange ensued: Tim Whittard [00:03:59] Well, I am honestly, Gemma. Gemma Hayward [00:04:00] Are you? Tim Whittard [00:04:01] Honestly, I'm absolutely fine. Gemma Hayward [00:04:03] Okay. Tim Whittard [00:04:04] Absolutely fine. You know, in many in many Gemma Hayward [00:04:08] Are you busy?[72]Mrs Hayward then asked for a fourth time “Are you well?” with the result that she had asked that question four times in less than two minutes, and three times in the space of 40 seconds.[73]The claimant’s response was, the tribunal found, having listened to the recording, marked in its defensiveness and its obvious unhappiness with the repetition of the question. He replied, “Yeah. Yeah, I'm well. Are you? Are you well? How are you doing?”[74]The claimant told us, and we accepted, that he was seeking to turn the tables on Mrs Hayward, by asking her the same questions she had asked him, three times in the space of a single response.[75]Mrs Hayward replied, again referring to the claimant as ‘honey’ (an informal form of address which she used during the exchange no less than four times during the eight minute call, including when she signed off).[76]During the course of the call, Mrs Hayward asked the claimant: 76.1. whether he had touched base with friends and had some support networks; that was in the context that Mrs Hayward had recorded in the suspension pro forma that the claimant’s friends’ base was on the ward, and that he had said he had no one he else could speak to as a result of his suspension and the claimant had cut all ties with his work colleagues on social media as a consequence of terms of his suspension. The claimant laughed and it is apparent from the recording that that was uneasy laughter. 76.2. What he was planning for Christmas; the claimant replied that he was with his family on Christmas Day but would be in London afterwards. The claimant then detailed the film and television projects that he was to be involved with at some length.[77]The claimant found the call alarming, humiliating, and felt exasperated and hopeless with the continual focus on his health and the challenge to the replies that he gave. In consequence he listened to the recording of the call several times afterwards, and concluded that Mrs Hayward may have been seeking to gaslight him by trying to undermine his own belief that he was well, and/or by questioning him about matters which might suggest that he was becoming socially withdrawn, which can be a symptom of bipolar disorder.[78]Mrs Hayward completed the Keeping in Touch form, recording “welfare check- no concerns, all going well for him and his personal ventures, very exciting for him. Updated re police. No concerns. Feels well mentally.” (f) 24 December 2021- contents of telephone call[79]Mrs Hayward subsequently phoned the claimant on Christmas Eve at 15:42. Again the claimant covertly recorded the discussion, and the transcript and the recording were made available to the Tribunal.[80]Mrs Hayward asked claimant what he had been up to, and the claimant explained that he had been undertaking television projects, relating to big cats. The following exchange then ensued: Gemma Hayward [00:00:11] You had a lot planned for when we spoke last time. Tim Whittard [00:00:14] Yeah. I mean, it's kind of gone a bit nuclear. I can't really talk about it too much because I've actually signed non-disclosure agreements with the network, so. Gemma Hayward [00:00:23] Oh, okay. Oh. Oh, it's. Exciting. [Mrs Hayward’s tone here, particularly when repeating the words ‘oh, oh’ was entirely unnatural, creating the impression that her remark that it was ‘exciting’ was disingenuous and false, or sarcastic] Tim Whittard [00:00:30] As it is. It is? Yeah. Yes. Gemma Hayward [00:00:33] Okay. Tim Whittard [00:00:35] Hey, how's everything with you guys? Gemma Hayward [00:00:36] What about your life in general, then? Aside from all of that, are you feeling okay? Are you seeing people? Tim Whittard [00:00:44] Yeah. Yeah, of course. I'm real busy at the moment. Real busy. Gemma Hayward [00:00:48] Okay, good.[81]Mrs Hayward then asked whether the police had been in touch. Mr Whittard responded as follows “Yeah, they did. Yeah. Yeah. They're not going to be able to see me until the New Year. And obviously they've got a backlog of stuff. I would have thought they would have told you that. But yeah, no, they're not gonna be able to see me until the New Year, so it just rumbles on.”[82]The claimant’s unease about Mrs Hayward’s question was apparent from the tone in which he stated “I would have thought that they would have told you that. But yeah…”[83]Mrs Hayward then again advised the claimant that once the police investigation had concluded “then the Trust can get on with it.” The claimant responded “Yeah, sure, yeah. I mean, whatever…. Yeah. I appreciate your contact and checking in on me like.”[84]Mrs Hayward then responded “Alright, honey, what are you doing over Christmas?” The claimant advised her, as he had before, that he would be seeing family and attending appointments in London to do with his television projects. The claimant explained that his projects were really taking off, and that he could not discuss the details because of non-disclosure agreements. Mrs Hayward stated that was “fine” then referred to the claimant as “honey” or “hun” four times in the next 40 seconds before concluding the call.[85]The claimant regarded Mrs Hayward’s comments that “you had a lot planned for when we last spoke” as implying that he was experiencing delusions of grandeur related to his television projects and, that by raising that implication, she was seeking to lead the claimant to question himself and his mental health condition, knowing that he would recognise that delusions of grandeur are a very common symptom of those with bipolar disorder when their mental state begins to decline.[86]At 18:39 the claimant sent Mrs Hayward a YouTube clip of a trailer for one of the programs he was proposing to bring to production. Mrs Hayward replied, stating that it was exciting, but she would be scared to walk the dog, indicating that she nonetheless she wanted to watch more than the trailer. The claimant replied that it was more of comedy, and that hopefully Mrs Hayward would be able to watch it on TV very soon. That exchange was mutually pleasant, but, we conclude, the claimant was seeking to demonstrate that his references to his television projects were not empty boasts, but projects with real prospects, so as to dispel the inference that he was experiencing delusions of grandeur.[87]Mrs Hayward noted on the Keeping in Touch record that the claimant had stated that life in general was good, he was making good use of his time, that the police have been in touch with him and would speak to him in the New Year and that he knew the process to be followed. She recorded that he was seeing friends and family over Christmas and had appointments at Christmas and New Year, and sounded bright and genuinely was. (g) 25 December 2021 – two text messages[88]On 25 December, Mrs Hayward sent the claimant a text message at 10:31am stating “well done hunny that’s amazing XXX.” Later that same day, just before midnight, she sent a message to all of her contacts stating, “Merry Christmas XXX.” The claimant was amongst her contacts, and received the message, although he did not know that it was not an individual message directed to him. The claimant and his girlfriend were particularly concerned by the overfamiliarity in the messages. The claimant believed that the kisses might represent an attempt to flirt with him, or possibly represent an attempt to coerce him to consider developing a more intimate relationship with Mrs Hayward as a means of trying to remedy his predicament. He felt that he was being placed in a trap, and felt extremely uneasy. As a consequence he did not reply to either message.[89]Mrs Hayward recorded the first text message but not the second (for the reasons that we have indicated) in the Keeping in Touch record. (h) 5 January 2022 – text message timing and content[90]On 5 January 2022 Mrs Hayward sent the claimant a text message at 23:59 stating “Hola honey how r u?” The message woke the claimant up and he was distressed by the informal and overfamiliar tone and the timing of the message. Once again the form of address of ‘honey’ led the claimant and his girlfriend to believe that Mrs Hayward might be trying to persuade the claimant that she was flirting with him, and that caused the claimant significant anxiety. He was unable to return to sleep.[91]In the event, he replied “very well thanks, yourself? You’re up late…” In her reply, Mrs Hayward wrote “ha didn’t realise the time apologies!!!” The claimant replied “LOL [with a smiley face emoji] no worries Gemma. Are you on a night shift?” Mrs Hayward replied as follows, “Omg I’m sorry!! Only at home watching the TV night shift [I will leave you and contact you at a more respectable hours next time!! Good night God bless Tim!”[92]The claimant told Mrs Hayward not worry, before a brief text exchange about what she was watching.[93]In the Keeping in Touch form Mrs Hayward recorded “welfare check-Tim says he was very well, commented I was up late, apologise for the lateness as I hadn’t realised. Said I would leave him at the late hour and contact him at a more reasonable hour. Humour evident.” (i) 19 January 2022 – telephone call; reference to personnel file[94]On 19 January 2022, Mrs Hayward sent the claimant a text message advising him that she had tried to call him with an update. In consequence, the two spoke at 3:47pm.[95]Mrs Hayward began the call, once again, by referring to the claimant as ‘honey.’ The tribunal was struck by the nature of the call, having listened to it several times. Mrs Hayward conducted herself in a manner ill befitting her role as a line manager conducting a keeping in touch call with an employee who was suspended in relation to an allegation of abusing a mental health patient in his care, and who was the subject of both a police investigation and an internal disciplinary investigation by the Trust. Her approach and manner were more consistent with a teenage girl with a crush; she repeatedly giggled and/or laughed inappropriately or excessively at comments made by the claimant during the call.[96]After an oddly long discussion about what the claimant was doing, the following exchange occurred; Mrs Hayward: So, I don't know if you've heard from the police yet, but she did come in last week just to get some things signed off. What her hopes were were to get everything signed off within a two-week period so that then she could speak to you. The one thing that she did say to me, and it's important that I let you know, because I don't know if she's said that yet, but what she will do first is send you an appointment just to see an independent medical person. Mr Whittard: Right. Mrs Hayward: Because obviously they've had your personnel file details, so they know that you had some past mental health history. So, what they have to do legally is, before they interview you, they need the okay to say that you're fit for interview. M: I see, yes. F: Okay. So, that's all that's about. The first time she mentioned it was last week. So, I said, 'Oh my God, I'll have to let Tim know about that,' because you hear it and you think what, but they're doing that on reflection of having your personnel file. M: Yes, that's fine. F: So, they just want to make sure that you're fit to interview, honey, that is all.[97]The claimant was alarmed that his confidential medical information, including details of his mental health condition, had been given to the police without his consent. He felt violated and feared that his medical condition had been weaponised against him by the organisation that he would need to approach for help in respect of his deteriorating mental health. Furthermore, he feared that his account in relation to the incident would be undermined and given less weight by the police as a result of the disclosure of his previous mental health episode.[98]Nevertheless, the claimant tried to ‘brave’ the conversation out. He explained that his intention was to return to work, but that he might seek to have a year’s sabbatical to explore his television projects. He brought the call to an end by saying “anyway, let you get on, if that’s everything. Just look out for a phone call from the police and wait and see where it goes.”[99]Mrs Hayward’s statement to the claimant that the police had had the claimant’s personnel file details was inaccurate. They had not seen or requested the personnel file, nor had they instigated the formal procedure for the release of medical records by sending a completed DP1 form to the respondent’s legal team as was required.[100]After the call, Mrs Hayward completed the Keeping in Touch record as follows (insofar as is relevant) Discussed police update re needing medical ex pre-interview, ok with this. Tim concerned that they know this information, explained that they will have applied for his file appropriately and would have this information, they will have asked about his health as well and been given the information to ensure he is protected.[101]That record was inaccurate: the claimant had not openly expressed concern that the police had his medical information, nor did Mrs Hayward inform the claimant that the police had (or would have) made an appropriate application for his file in order to obtain it. Her record implies that she told claimant that the police had asked someone other than her about the claimant’s health and that as a consequence that individual (or individuals) had given the police the information. None of that was accurate.[102]Later that day, Mrs Hayward emailed DC Meagre seeking an update on the date for the interviews for the claimant and Ms Balchin.[103]On 20 January 2022, the claimant consulted his union representative in relation to all aspects of the forthcoming police interview. As a consequence, he emailed Mrs Barrow, the respondent’s HR Manager, forwarding his email to Mrs Hayward in October 2021 in which he had raised concerns about the data breach relating to Ms Balchin’s statement having been seen and consequently discussed by the respondent’s staff.[104]On 21 January 2022, the claimant was approached at a local petrol station by member of the respondent’s staff who worked in a community-based Recovery Team. She advised the claimant that she had read the statements and accurately related details from the claimant’s statement to him to confirm that. Additionally, she told the claimant the name of the patient who had made the complaints, before challenging him about why Ms Balchin had given a different account of the incident to him. The claimant was unable to respond because at that stage he had no idea what Ms Balchin’s statement had said. He was subsequently told that in her statement Ms Balchin had alleged that he had dragged a patient out of their chair and up the corridor.[105]The combination of discovery that Ms Balchin had suggested that he had dragged the patient in that manner and that as a consequence the claimant was being judged by his peers to be guilty, based on what he viewed as a false account of events, led him to feel extremely humiliated and upset. He concluded that the statements had been leaked deliberately in order to cause significant damage to his reputation, not just within the Hospital but also within the Trust itself. His mental health deteriorated and he became reclusive and agoraphobic, and was too anxious to return to that petrol station or other areas where he was likely to see former colleagues. The thought of doing so could lead him to experience a severe panic attack. He had begun drinking more regularly as a coping mechanism.[106]Over the following weekend the claimant ruminated at home, and was deeply anxious and sick on occasion. He contemplated suicide, he experienced racing thoughts, could not sleep and experienced panic attacks. His stammer and stutter returned. He recognised that he was relapsing but, fearing that if he sought medical attention his medical information would be weaponised against him, he felt trapped; he contemplated suicide. In consequence on the evening of 22 January, he called the Samaritans. Through their assistance his suicidal ideation was averted.[107]On the morning of 24 January 2022, the claimant texted Mrs Hayward to advise her of the details of his experience at the petrol station. He stated he wished to speak to someone at a higher level of management to her, requesting details of her line manager and the police incident number for the investigation. He complained about the breach of confidentiality.[108]Mrs Hayward consequently called the claimant that day at 9:24am. Again the claimant covertly recorded the call and the transcript was available to the tribunal. During the call the claimant suggested that contents of all the investigation statements were being openly discussed amongst the Trusts staff, and that as the statements were only held by Mrs Hayward and HR, they must have been leaked. The claimant suggested that it could have been Mrs Hayward who had done so. Mrs Hayward reported that matter to Mrs Barrow.[109]Subsequently, on the same day, 24 January 2022, Mrs Barrow replied to the claimant’s email of 20 January, advising him that as a consequence of his initial email to Mrs Hayward the staff had been spoken to and reminded about the sensitive nature of the matter and the confidentiality of their statements. She noted that Mrs Hayward had failed to relay that information to the claimant. Mrs Morgan asked the claimant to put his account (from his text to Mrs Hayward) in an email, disclosing as many details as he felt comfortable to do so.[110]The claimant replied, demanding an urgent investigation into the data breach and requesting a new point of contact to replace Mrs Hayward, stating “particularly as she has been sending overfamiliar texts, sometimes at midnight and on one occasion with kisses, and she can often be condescending in phone calls. I feel absolutely violated and that any future return to work is being engineered to be completely untenable.” He reported that Mrs Hayward had informed him of the need for a psychiatric investigation, complaining that that felt discriminated against, alleging that she had apparently read his personnel file which would disclose a long-term diagnosis of bipolar disorder, and had chosen to disclose that information to the police.[111]On 27 January 2022, Mrs Hayward texted the claimant to advise him that Mr Steve Ireland, who was the new Deputy Director of the respondent, would be taking over the Commissioning Manager role (and therefore conduct of the disciplinary process), following the departure of Mrs Alexander, and would consider his complaints. She further advised him that the Police were looking to conduct interviews the week commencing 14 February. The claimant replied that he was intending to take annual leave for a month, and so the interview would need to be postponed until he returned from leave in March.[112]Mr Ireland had worked with the claimant previously, delivering lectures. The two were on friendly terms, and the claimant trusted him.[113]Following the text exchange, there was further text exchange between the claimant and Mrs Hayward, during which the claimant raised his concerns that he may have been discriminated against contrary to the Equality Act on the grounds of his disability, and raising concerns as to why, following Mrs Ford’s appointment, Mrs Hayward had continued to contact the claimant by text, sometimes after midnight and on one occasion sent a messages with kisses. He suggested that she was playing games. In one reply, Mrs Hayward wrote as follows: “If you recall when I told you about the medical review I said the police are entitled to your personnel file as part of the investigation.” Investigation of the claimant’s complaints[114]On 18 February, Mr Ireland emailed Mrs Hayward, requiring her to provide further information in respect of the following matters: 114.1. the information she shared with the police about the claimant’s health 114.2. the information she shared with the police about the health of other staff members 114.3. the context in which that information was shared and the reason for that; and 114.4. an explanation as to why, in the circumstances where Mrs Alexander was the Commissioning Manager and Susie Ford was the claimant’s Line Manager who was providing pastoral support, Mrs Hayward had continued to provide keeping in touch support.[115]Mrs Hayward replied by email that day. She recorded that the police had asked if there were any health concerns relating to either the claimant or Ms Belkin. She stated that she had said, “I was aware of Tim’s having mental health problems as his previous manager had made me aware of EWS [early warning signs] when he left in relation to supporting him. I said this in the context of answering the question to the police and highlighting whether this may have been a contributory factor in relation to the incident.”[116]Additionally, she advised that she had told the police that two other members of staff (including Ms Balchin) were on sickness absence with “personal issues and anxiety/low mood.” She explained that as there was no manager in place at the time of the incident, she had communicated the suspensions and then continued with some contact in relation to the police as they had adopted her as the point of contact. She wrote “both [the claimant and Ms Balchin] continued to contact me during this time and I responded to questions for them.… The process was new for [me]”[117]On 21 February 2022, DC Meagre spoke to the claimant and Ms Balchin and emailed Mrs Hayward to confirm that their interviews would be conducted the week commencing 14 March.[118]On 24 March and 4 April 2022, Mrs Hayward chased the police for an update regarding those interviews. On 8 April DS Bernadette Harding replied explaining that DC Meagre had been absent due to illness and her work was being reallocated. DS Harding confirmed that the claimant would need to undergo a medical assessment “due to the disclosed mental health issues he has previously suffered with.” The grievance[119]Mr Ireland consequently appointed Mr Jonathan Thomas, the respondent’s Community Service Manager, to investigate the claimant’s grievance. Mr Thomas had not met the claimant before.[120]On 12 April Mr Thomas wrote to the claimant and Mrs Hayward inviting them to interviews.[121]Prior to the interviews occurring, on 5 May 2022, Mrs Hayward was visited by a police officer who concluded her witness statement. The reference to the claimant’s mental health (as detailed above) was unchanged and Mrs Hayward signed the statement of truth, which required her to confirm that she knew that if the statement were presented in evidence she would be liable to prosecution if she wilfully stated anything in it which she knew to be false or did not believe to be true.[122]The claimant and Mrs Hayward were subsequently interviewed by Mr Thomas on 10 and 30th May respectively. During the claimant’s interview he explained that he and Mrs Hayward had previously worked together when he was completing his preceptorship and that Mrs Hayward had refused to sign off certain of his competencies. He alleged that Mrs Hayward had made the comments which form the allegations in these proceedings relating to 17 November, albeit he could not recall when they had taken place beyond stating that it was at approximately the end of November 2021. He complained about the overfamiliarity of Mrs Hayward’s form address.[123]During her interview, Mrs Hayward stated that the message she had sent on 5 January was at a time when she was working late and had lost track of time. She denied that she had asked the claimant whether he was “drowning himself” when he was in the bath, or that she had said “do you think you’ll be in need of a noose.” She accepted that she had used ‘honey’ and similar forms of address when sending messages to the claimant, but suggested that she used that form the language with other staff. She provided two messages which she had sent to Miss Balchin (which were dated 12 January and 21 March 2022) in which she had referred to her as ‘honey.’[124]On 6 May 2022, the police made a formal request using the DP1 form to the respondent’s legal team for release of the claimant’s personnel file. The file was released to them on 20 July 2022.[125]On 22 June 2022 Mr Thomas wrote to the claimant, rejecting his grievance.[126]On 19 July 2022 the claimant appealed the grievance outcome. In the grounds of appeal the claimant strongly refuted the account Mrs Hayward had given to Mr Thomas that he had told her that he had a psychotic illness and he did not always recognise its symptoms. The claimant disputed that he had a psychosis, and said that he was fully aware of the early warning signs, and had spent many years working with a former care coordinator in the Recovery Team to identify them.[127]The claimant’s grievance appeal was heard at a meeting on 3 October 2022 which was chaired Mrs Charlotte Tucker, the respondent’s Service Director for Country Wide Services. The claimant was notified by letter dated 13 October 2022 that his appeal was rejected.
The Relevant Law
[128]The claimant brings two claims under the Equality Act 2010 that he was subjected to harassment relating to the protected characteristic of disability (contrary to section 26 EQA 2010).[129]The relevant law is contained in sections 39 and 26 EQA 2010 which provide respectively (in so far as is relevant) as follows: 39 – Employees and applicants (2) An employer(a) (A) must not discriminate against an employee of A’s (B)— (a) as to B’s terms of employment; (d) by subjecting B to any other detriment. s.26 Harassment (1) A person (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b). (3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and(c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. The reverse burden of proof[130]The statutory tests are subject to the reverse burden of proof in section[136]EQA 2010 which provides: (2) If there are facts on 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.131. The correct approach to the reverse burden of proof provisions in discrimination claims has been the subject of extensive judicial consideration. In every case the Tribunal has to determine the “reason why” the claimant was treated as he was (per Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 HL). This is “the crucial question.”132. It is for the claimant to prove the facts from which the Tribunal could conclude that there has been an unlawful act of discrimination (Igen Ltd and Ors v Wong [2005] IRLR 258 CA), i.e., that the alleged discriminator has treated the claimant less favourably or unfavourably and that the reason why it did so was on the grounds of (or related to if the claim is under s.26) the protected characteristic. That requires the Tribunal to consider the mental processes of the alleged discriminator (Advance Security UK Ltd v Musa [2008] UKEAT/0611/07).133. In conducting that analysis, the Tribunal should assess whether the burden of proof has shifted in relation to each allegation, and not take a blanket approach (see Essex County Council v Jarrett EAT 0045/15).134. In Igen the court proposed a two-stage approach to the burden of proof provisions. The first stage requires the claimant to prove primary facts from which a Tribunal properly directing itself could reasonably conclude that the reason for the treatment complained of was the protected characteristic. The claimant may do so both by their own evidence and by reliance on the evidence of the respondent. The respondent’s lack of an explanation should only be taken into account once the burden of proof has been shifted (see Efobi v Royal Mail Group Ltd [2021] ICR 1263, SC).135. If the claimant does so, the second stage requires the respondent to demonstrate that the protected characteristic was in no sense whatsoever connected to the treatment in question. That requires the Tribunal to assess not merely whether the respondent has proven an explanation, but that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question. If it cannot do so, then the claim succeeds. However, if the respondent shows that the unfavourable or less favourable treatment did not occur or that the reason for the treatment was not the protected characteristic the claim will fail. 136. Furthermore, it is not sufficient for the claimant simply to prove that there was a difference in status i.e. that the comparator did not share the protected characteristic relied upon by the claimant) and a difference in treatment. 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 act of discrimination (see Madarassy v Nomura International Plc [2007] ICR 867 CA at [56] ; Hewage v Grampian Health Board [2012] IRLR 870 SC and Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18.)[137]The explanation for the less favourable treatment advanced by the respondent does not have to be a ‘reasonable’ one; it may be that the employer has treated the claimant unreasonably. The mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one (London Borough of Islington v Ladele [2009] IRLR 154).[138]In Birmingham City Council and another v Millwood UKEAT/0564/11/DM the EAT considered the question of whether an inadequate explanation for treatment would cause the burden of proof to shift. Langstaff J said “[25]...We approach this question by remembering that the purpose of the provisions is to identify a proper claim of discrimination, recognising that it is highly unlikely in the real world that there will be any clear evidence that that has occurred. The inference will have to be drawn if a claim for discrimination is to succeed at all. Though a difference in race and a difference in treatment to the disadvantage of the complainant is insufficient and something more is required, Mr Beever was prepared to accept that where as part of the history that the tribunal was examining an employer had at the time of the alleged discriminatory treatment given an explanation for it which a tribunal was later to conclude was a lie, that might, coupled with the difference in race and treatment, justify a reversal of the burden of proof. We agree. [26] What is more problematic is the situation where there is an explanation that is not necessarily found expressly to be a lie but which is rejected as opposed to being one that is simply not regarded as sufficiently adequate. Realistically, it seems to us that, in any case in which an employer justifies treatment that has a differential effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted), there is sufficient to justify a shift of the burden of proof. Exactly that evidential position would have arisen in the days in which King v Great Britain-China Centre [1991] IRLR 513, [1992] ICR 516 was the leading authority in relation to the approach a tribunal should take to claims of discrimination. Although a tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular one that is disbelieved.”[139]The Tribunal does not have slavishly to follow the two-stage process in every case - in Laing v Manchester City Council and anor [2006] ICR 1519, EAT, Mr Justice Elias identified that ‘it might be sensible for a tribunal to go straight to the second stage… where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator — whether there is a prima facie case — is in practice often inextricably linked to the issue of what is the explanation for the treatment.” That approach was endorsed by the Court of Appeal in Stockton on Tees Borough Council v Aylott [2010] ICR 1278.[140]It is for the claimant to show that the hypothetical comparator in the same situation as the claimant would have been treated more favourably. It is still a matter for the claimant to ensure that the Tribunal is given the primary evidence from which the necessary inferences may be drawn (Balamoody v UK Central Council for Nursing Midwifery and Health Visiting [2002] IRLR 288). Harassment[141]The words ‘related to’ in S.26(1)(a) have a broad meaning; conduct that cannot be said to be ‘because of’ a particular protected characteristic may nonetheless be ‘related to’ it, what is required is some connection even if not directly causal between the conduct and the protected characteristic — Hartley v Foreign and Commonwealth Office Services 2016 ICR D17, EAT.[142]The EHRC Employment Code (“The Code”), states that the necessary connection with a protected characteristic can arise where ‘the unwanted conduct is related to the protected characteristic, but does not take place because of the protected characteristic’— para 7.10. A claimant does not need to prove that the conduct is related to a protected characteristic because that would be no different from the normal burden of proof. Nevertheless, in our view, he or she needs to adduce some evidence to suggest that the conduct could be so related. Evidence that he or she is being treated differently from other employees who do not share his or her protected characteristic may be useful in this regard.[143]In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 4951, per HHJ Auerbach, the EAT stressed that it is the conduct complained of which must be related to a protected characteristic (rather than the effect of the conduct). The conduct is, therefore, the focus of the initial analysis. "25. Nevertheless, there must be still, in any given case, be some feature 1 https://www.bailii.org/cgibin/format.cgi?doc=/uk/cases/UKEAT/2019/0039_19_2211.html&query=(tees)+AND+(esk) or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be."[144]The context in which unwanted conduct takes place is an important factor in determining whether it is related to a relevant protected characteristic— particularly in cases where the conduct cannot be described as ‘inherently’ racist, homophobic, etc. (see Warby v Wunda Group plc EAT 0434/11). It is not enough however that the conduct complained occurs ‘in the circumstances of’ a disability, it must be related to it.[145]Some key concepts set out in Dhaliwal and Grant v Land Registry [2011] ICR 1390 are as follows: 145.1. when assessing the effect of a remark, the context is always highly material. Context will also be relevant to deciding whether the response of the alleged victim is reasonable (Grant, para. 13); 145.2. tribunals must not “cheapen the significance” of the meaning of the words used in the statute (i.e. intimidating, hostile, degrading, etc.). They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. Being “upset” is far from attracting the epithets required to constitute harassment (Grant, para. 47); 145.3. it is not enough for an individual to feel uncomfortable for them to be said to have had their dignity violated, or the necessary environment created (Grant, para. 51); 146. if a tribunal finds that a claimant was unreasonably prone to take offence, then, even if he did genuinely feel his dignity to have been violated, there will be no harassment (Dhaliwal, para. 15). Underhill LJ held that: “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase..”[147]In Reed and anor v Stedman 1999 IRLR 299, EAT, the Court gave guidance as to how the ‘effect’ of unwanted conduct should be assessed where the claimant complained of a number of events, suggesting that tribunals should adopt a cumulative approach rather than measure the effect of each individual incident.[148]In Pemberton v Inwood 2018 ICR 1291, CA, Lord Justice Underhill, who had been the President of the EAT when hearing Dhaliwal, revised his guidance thus: ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances — sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so’ (original stress).[149]In Weeks v Newham College of Further Education [2012] UKEAT/0630/11/ZT Langstaff P said: “17....Thus, although we would entirely accept that a single act or a single passage of actions may be so significant that its effect is to create the proscribed environment, we also must recognise that it does not follow that in every case that a single act is in itself necessarily sufficient and requires such a finding. ...20. The fact that terms that are plainly related to gender, such as ‘girlie chat’, ‘power-dressed women’ and ‘harem’, are used only once in the course of a fairly lengthy period of time, again, would not prevent in an appropriate case, and with appropriate surrounding circumstances, those comments being seen to create the environment spoken of.21. However, it must be remembered that the word is ‘environment.’ An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staff-room concerned. We cannot say that the frequency of use of such words is irrelevant. For example, if the conclusion of the Tribunal here had been that the words were used all the time, in effect, in regular conversation, one would have expected the ultimate conclusion to be very different and to have required the Respondent as employer of the other staff concerned to have given some explanation as to its action or inaction about it.”[150]The Code notes that relevant circumstances can include those of the complainant, such as the claimant’s health, including mental health; mental capacity; cultural norms; and previous experience of harassment. It can also include the environment in which the conduct takes place (see para 7.18). Harassing comments[151]Before a Tribunal makes a finding that harassment occurred because of comments made, it must identify what comments it considers are harassing. See Quality Solicitors Cmht v Tunstall [2014] UKEAT 0105_14_2807 (28 July 2014). Discussion and Conclusions The credibility of the witnesses.[152]Given the dispute of fact between the claimant and Mrs Hayward as to what happened on certain occasions, and the prevailing dispute in relation to all the allegations of harassment as to why the proven or admitted conduct occurred, it was necessary to consider the credibility of their respective evidence.[153]Largely, we found the claimant to be a credible witness who was accurate in his recollection of events (acknowledging that part of his consistency in relation to later events was the assistance he obtained from the recordings that he had made). In contrast, we had significant concerns about the accounts provided to us by Mrs Hayward. Those concerns arose from a number of factors and reasons which it is necessary, given the findings we have made, to set out in some detail.[154]Firstly, her accounts were often inconsistent, such as her accounts of the circumstances in which the Police came to have access to the claimant’s personnel file. That account varied between: 154.1. the Keeping in Touch form Mrs Hayward completed, 154.2. the claimant’s recording of his discussion with Mrs Hayward on 19 January 2022, 154.3. Mrs Hayward’s account to Mr Ireland in the initial grievance investigation meeting in which she said she raised issue relating to the claimant’s health in case his health condition had contributed to the incident, and 154.4. her account to Mr Thomas and later to the Tribunal in which she said she raised the issues about the claimant’s health because she was concerned about his health and wished to ensure that he was afforded the necessary and proper protections during his Police interviews.[155]Those accounts are not consistent.[156]Other examples of such inconsistent or contradictory evidence included: 156.1. Mrs Hayward’s account in evidence that it was Mr Sanders, the claimant’s previous line manager, who had told her that the claimant was psychotic. In evidence she said that the claimant had openly discussed his condition with her and colleagues on the ward. Yet Mrs Hayward did not offer either account to the Police when making her police statement; if either had occurred we could see no reason why Mrs Hayward would not have told the Police of that fact. Instead Mrs Hayward told the police that Mr Sanders had discussed the claimant’s early warning signals with her. 156.2. Mrs Hayward stated in evidence that she was unaware of the claimant’s concerns about their relationship prior the incident when she was his preceptor. That account was flatly contradicted by her own Keeping in Touch Record in September 2021 in which she made reference to the claimant reporting those concerns to her.[157]Secondly, Mrs Hayward’s evidence to the Tribunal on occasion led us to have real concerns that she was giving accounts which she had never given before and which were simply implausible or a cause of considerable concern in themselves. Examples of such evidence were:[158]Firstly, Mrs Hayward’s evidence that she believed that the claimant may have lacked capacity at the time of the incident on the ward, that that belief underpinned her concerns and led to her raising the claimant’s health condition with the Police. It is an extremely serious allegation for an experienced mental health practitioner to make that someone lacks mental capacity. As we raised with Mrs Hayward, and she accepted in evidence, the Mental Capacity Act 1983 and the Mental Health Act have clear and distinct definitions of capacity for specific purposes, and the presumption under both Acts is that an individual has capacity until the opposite is proved.[159]Mrs Hayward made the suggestion that she believed that the claimant lacked capacity as a throw away remark to the Tribunal in circumstances where, we concluded, there was no basis whatsoever for it. The explanation she gave to us for her concerns about the claimant’s capacity was because his account about the incident differed to that of Ms Balchin and the patient witness. Irrespective of whether the fact that one witnesses’ account of an incident differs from another’s of itself could ever form a sound, coherent or logical basis for suspecting a lack of capacity in one witness (which we unhesitatingly reject), Mrs Hayward’s account to us has to be viewed in the context that she interviewed Mr Whittard on 27 September (the same day as the incident) and had, as she told us, no concerns that Mr Whittard lacked capacity when she took an account from him for the purposes of her investigation. Additionally, the patient witness had a significant mental health condition, which was symptomatic at the time of events and was being treated by medication (which accounted for her presence in the ward).[160]Secondly, Mrs Hayward’s evidence that she could disclose an employee’s personnel file to a third party where she perceived that that employee posed a risk to a patient. That was an account which she offered for the first time in answer to the Tribunal’s questions. It was not included in her witness statement, notwithstanding that the allegation that she had disclosed the claimant’s personnel file and/or his confidential medical information to the police was identified in the claim form.[161]During her evidence Mrs Hayward confirmed that her view was that any incident that gave her cause to believe that there was a risk to a patient afforded her a discretion unilaterally to disclose medical information or personnel files. She clarified that in her view an incident which involved risk to a patient encapsulated any incident involving a patient. She suggested that that the right or discretion was conveyed upon her either through risk assessments or through her regulatory duties with the NMC.[162]We address each of those suggestions in turn. The Tribunal is familiar with the operation of risk assessments; the suggestion that the respondent’s risk assessments created the discretion that the claimant suggests is farfetched and neither Mrs Hayward nor the respondent offered any evidence to support the argument. Mr Stewart did not refer to Mrs Hayward’s argument on this point at all in his closing address to us. A risk assessment, in the collective experience of the Tribunal, is a record which, typically, identifies and evaluates foreseeable and known risks and the consequences if they materialise, and proposes methods by which they can be managed and mitigated to the lowest possible level. They do not habitually or typically provide for powers of disclosure for which she argues.[163]In relation to the duties imposed on those registered and subject to the scrutiny and management of the NMC, we accept that there is a duty of candour, but that largely relates to the requirement for those who are subject to the regulation of the NMC to disclose mistakes and errors in the care of patients. Although we accept the duty of candour extends to the need for openness and honesty in respect of third parties relating to notifiable safety incidents, we were not presented with any evidence to show that that obligation supersedes the legal obligations within the GDPR. It is because of those statutory requirements, it seems to us, that the Trust has specific policies and forms relating to the disclosure of such documents, the requirement of adherence to which are very strict: that includes the DP1 process for the release of an employee’s personnel file.[164]Mrs Hayward’s evidence relating to those points has to be assessed and weighed against Mrs Tuckers’. She confirmed that the Trust does not have any policy or process of the form that Mrs Hayward described which would permit or empower her to disclose staff personnel files outside of the DP1 process.[165]Therefore where there was a direct conflict between the accounts of Mrs Hayward and the claimant, we were likely to prefer the evidence of the claimant unless there was corroboratory evidence supporting Mrs Hayward’s account, in the form of a contemporaneous record or an account from a third party, or in circumstances where the claimant’s account was one which we could not accept. For the avoidance of doubt, we did not adopt the approach that as the claimant’s evidence was generally credible, and we had concerns about Mrs Hayward’s evidence, we would prefer the claimant’s account de facto across all allegations; we considered the matter separately for each allegation. Approach to the allegations[166]Our approach was to consider each allegation individually to resolve the factual disputes, then to consider whether the claimant perceived the conduct found proved to have the prescribed effect and, if so, whether: 166.1. The conduct was intended to have that effect, or, if not 166.2. Whether the claimant perceived it to have the effect and it was objectively reasonable in the circumstances for him to have formed that view. ‘Related to disability’[167]For each allegation we are required to consider whether the reason for Mrs Hayward’s proven conduct was one that related to a disability. As the evidence relied upon by the parties is largely the same for each allegation, we have considered the evidence which is consistent to each allegation here, rather than repeating our conclusions and their bases in respect of each allegation. However, where there are distinguishing features for a specific allegation, we have addressed them in our discussion of that allegation.[168]We were satisfied that the claimant has raised facts from which we could conclude, properly directing ourselves, that Mrs Haywards’s conduct related to the claimant’s mental health and her belief that was a disability. In particular, the claimant has been able to demonstrate that: 168.1. Mrs Hayward repeatedly asked him how he was, multiple times in a short period, both during the discussion on 17 November 2021 and in others (where he recorded those discussions); 168.2. that Mrs Hayward knew the claimant had a serious underlying mental health condition which had required medication and was managed by a mental team, which had early warning signs when its symptoms became acute which the claimant had at times been unable to identify himself when his condition was symptomatic (as she recorded in the incident report form); and 168.3. that Mrs Hayward told the Police that the claimant had a mental health condition throughout his career and that it was psychotic illness, and he had been hospitalised in respect of it in the past, and when he was unwell he was “very unwell”.[169]We concluded from those matters that Mrs Hayward believed the claimant’s mental health condition was a disability at the material time (i.e September 2021 to January 2022).[170]The burden therefore transferred to the respondent to demonstrate that the reason for the conduct did not relate to disability, whether the claimant’s underlying mental health condition or Mrs Hayward’s perception of that condition as disability, or mental health disabilities more generally. As detailed below, Mrs Hayward did not provide a cogent or coherent explanation for her conduct.[171]Where she did provide an explanation, such as in relation to her conduct on 17 November 2021, the explanation was linked to the claimant’s health – her explanation in relation to 17 November 2021 was that she was “making genuine enquiries about [the claimant’s] health as a concerned colleague.” We consider that explanation. As stated, she viewed the claimant as having a serious underlying mental health condition. It was not her evidence that she did not regard that condition as constituting a disability. Her explanation therefore links her conduct to the condition which she regarded as a one which had required medical treatment and hospitalisation disability previously.[172]The respondent has not therefore discharged the burden on it to show that Mrs Hayward’s conduct did not relate to disability. The allegations[173]It is helpful to remind ourselves of the nature of the dispute about each allegation before addressing our conclusions. We address therefore each issue in turn, applying that approach. Telephone call on 27 September 2021[174]The claimant had not included this event in the list of calls he detailed as harassment in the further information of his complaint that he provided in compliance with the Order of REJ Pirani. Given that the claimant alleges that Mrs Hayward said to him “Oh good - so you’re not drowning yourself?” when she heard running water and the claimant said he was in the bath, and his statement reported that the comment made him feel “uneasy, anxious, and continues to trouble me,” that is notable in the context of other conduct which the claimant does assert was harassment.[175]Mrs Hayward had not addressed the comment in her statement as she had not been alerted to the allegation prior to receipt of the claimant’s statement. The claimant was not questioned about it in consequence. 7.1.1 1 October 2021 – statement to the Police.[176]As the claimant did not discover the content of the statement until after it was finalised in May 2022, he was not aware of its contents at the time of other the conduct which he alleges constituted harassment.[177]The claimant alleges that the statement was produced to discredit his account about the incident on 27 September 2021, and further to delay the police and, consequently, the respondent’s investigation of that incident. That he says, undermined his dignity and created the prohibited environment. He argues the content was deliberately included. The respondent admits the fact of the content of the statement but denies that it was Mrs Hayward’s purpose to undermined the claimant’s dignity or to produce the prohibited environment.[178]Given that the content of the statement and the description of the claimant’s mental health condition as ‘psychotic,’ we are satisfied that the conduct related to a disability.[179]Similarly, we have no hesitation in accepting the claimant’s evidence that the conduct was unwanted. Given the inaccuracies and shortcomings in the account, which we have detailed above at paragraph 43 and Mrs Hayward’s failure to correct the account before the statement was finalised in May 2022, we are satisfied that claimant has established evidence from which we could conclude that it was Mrs Hayward’s purpose to undermine his dignity or create the prohibited environment, or that it was objectively reasonable for him to regard it as having that effect in the circumstances.[180]The burden therefore transfers to the respondent to demonstrate that that was not Mrs Hayward’s purpose or that the claimant could not reasonably have regarded her conduct as having that effect in the circumstances. As Mrs Hayward’s later actions when the statement was completed and she signed it are clearly relevant to that issue, we have addressed our conclusions on this issue at paragraphs 233 to 235 below.[181]It is sufficient to record here our conclusion that the respondent did not discharge the burden and the allegation is therefore well founded and succeeds. 7.1.2 Text message of 7 October 2021[182]The factual disputes are whether the text message was sent just before Mrs Hayward left the workplace and, if so, whether she did so intending that the claimant would experience heightened anxiety because he could not contact her, or whether that was the effect and it was reasonable in the circumstances for it to be regarded as having that effect on the claimant.[183]We accept the claimant’s evidence that the conduct was unwanted; his account that he was anxious to hear the news of the ‘update’, tried to call Mrs Hayward and could not speak to her, so became more anxious, and ruminated on the issues was not challenged.[184]However, the message was sent at 16:47. It is for the claimant to prove that that was just before Mrs Hayward left work but he did not adduce any evidence to demonstrate that. All the claimant could say was that he had tried to call Mrs Hayward but had been unable to get through. There are many possible reasons for that.[185]As the claimant has failed to prove the conduct which relies upon to establish the allegation, the allegation fails and it is dismissed. 7.1.3 Telephone call of 17 November 2021[186]The respondent disputes that the conversation occurred in the manner alleged. It follows from that that the respondent must either be arguing that the claimant has made up the account or he has simply misremembered the events. The claimant asserts that Mrs Hayward has simply been untruthful about what she said, knowing that she had been seeking to manipulate him to concede that he was medically unfit to be practicing, so as to use that concession against him.[187]We note that after the conversation on 17 November 2021, the claimant began to record the telephone calls and retain the text messages he received from Mrs Hayward. There was nothing, in our view, that had occurred prior to November 2021 which could reasonably have prompted the claimant to have felt the need to record the calls. There was no evidence of paranoia in the evidence before us so as to enable us to conclude that the claimant was seeing spectres in shadows, and that paranoia was the cause his decision to record the calls. Particularly, we had regard to the letter in the supplemental bundle (at page 142) from the mental health team which was treating the claimant that recorded that they observed no evidence of paranoia in the claimant at the time of this call.[188]Secondly, we took into account the claimant’s reaction to questions about his health after this discussion, particularly during the call on 8 December 2021 in which Mrs Hayward made four requests about the claimant’s health, and that she had made three of those requests in the space of 40 seconds. The fact that Mrs Hayward had acted in that way was supportive of the claimant’s argument that Mrs Hayward consistently acted in this manner at or about that time. Furthermore, the Tribunal noted the defensive response of the claimant when that occurred. That was consistent with his account that it had happened before, and therefore he was guarded and pointed when it happened again.[189]Weighing all of those matters in the balance together with our general view about the credibility of Mrs Hayward’s evidence when it was not supported by corroboratory evidence, we were satisfied that the claimant’s account was accurate in relation to the questions of his health and fitness to practice. We therefore find on the balance of probabilities that during the conversation on 17 November 2021 Mrs Hayward asked the claimant in excess of ten times whether he was well and, separately, asked him whether he was sure that he was not medically unfit to be practicing at the time of the incident. We note, in relation to the latter of those, that Mrs Hayward’s alleged conduct is consistent with the account she gave to the Police on 1 October that she had asked the claimant whether he was “unwell and he said no” at the time of the incident. It is plausible that having asked once whether the claimant was ‘unwell,’ which can only have been directed at his mental health, that she might have repeated that question in a later discussion. However, we rejected the claimant’s evidence that Mrs Hayward made reference to a noose or referenced suicide (as detailed at paragraph 57 above). That account was not contained in the claimant’s witness statement, and we not that when the claimant was interviewed by Mr Thomas he could not say when it had occurred with any specificity. The account was always denied in vehement terms by Mrs Hayward.[190]We have to assess whether that proven conduct constitutes ‘unwanted conduct’ within the definition of the Equality Act. We are satisfied in the circumstances of this case that it was; we accept the claimant’s evidence that the question as to his medical fitness for his role was a loaded one, and the repeated questioning of his state of health had the effect that claimant regarded its implication to be that Mrs Hayward regarded the claimant’s account that he was fit and well both at the time of the discussion and on the day of the incident, with suspicion if not disbelief. Any employee whose account was challenged in that manner would find it unwanted; in the context of the claimant’s previous mental health issues, which were known to Mrs Hayward, we have no hesitation in finding that they were unwanted.[191]We must next consider whether her conduct was intended to create the prohibited environment and, if not, whether it was objectively reasonable for the claimant to regard it as having that effect in the circumstances. The claimant argues that Mrs Hayward’s conduct was intentional because: 191.1. As an experienced mental health practitioner, she knew of the vulnerabilities of those with mental health conditions and specifically those with bi-polar disorder; 191.2. that in repeatedly asking whether someone with such a mental health condition was well in the manner she did and in the context of the power imbalance, she created a risk that the person of whom she asked the questions would begin to question their own belief that they were well and had been well at the time of the incident; and 191.3. her conduct formed part of a broader campaign of harassment and had to be judged in the context of her other conduct.[192]The respondent argues, as Mrs Hayward said, that her actions were not intended to cause distress but were no more than an expression of genuine concern for the claimant. We consider that explanation: it is possible that Mrs Hayward’s concern for the claimant’s health was genuine and that the reason for the repeated questions was clumsiness and awkwardness due to Mrs Hayward’s nervousness or inexperience in conducting keeping in touch discussions against the background of a criminal investigation. The difficulty for the respondent is that Mrs Hayward did not offer the detail of that explanation in her statement, and she flatly denied that she asked the claimant whether he was medically fit for practice on the day of the incident, which we have found she did.[193]Nevertheless, it is an explanation which remains open to us, having formed our own view of Mrs Hayward, her evidence, and having regard to the context of the conversation against the background of the criminal investigation.[194]The claimant did not challenge Mrs Hayward’s evidence that he had made no records of the incident in the patient’s handover notes, and had not completed a restraint form or arranged for a medical officer to review the patient within six hours of the restraint. Similarly, he did not challenge her evidence that when he was first asked about the incident he told her that nothing had happened, but that in the statement he produced for the purposes of the internal investigation he recorded that he had used a restraint and his failure to complete the necessary paperwork was an oversight. Those are all matters that might lead a reasonable Matron to ask the question whether the reason for those omissions was an known mental health condition, so serious were their nature. That supports a conclusion that these were matters of genuine concern.[195]Furthermore, it is material, when considering the circumstances of this comment, that on the claimant’s account on 27 September Mrs Hayward had asked the claimant “Oh good, you’re not drowning yourself?” but he has not argued that was harassment. It follows from that the he must have regarded that comment as a very awkward and ill-judged attempt at humour by Mrs Hayward, rather than as something intended to or which did cause offence. That supports a conclusion that her repeated questions about the claimant’s health and her question about his fitness to practice may have arisen from a genuine concern but, through a sense of awkwardness and clumsiness of expression, have been expressed in the way they were.[196]The claimant has not therefore persuaded us that the conduct was intended to have the effect alleged. We therefore consider whether objectively it was reasonable in the circumstances for the claimant to regard it as having that effect. It is important to consider the nature of the questions and the context: he was repeatedly asked whether he was well and he was asked whether he was fit to practice at the time of the incident. That is a loaded question whether or not it was intended to be; practising as a mental health professional at a time when you recognise you may not be fit to do so is inevitably a matter which may lead to the regulator, the NMC, to initiate a disciplinary investigation. It is also a matter which would be relevant to the criminal investigation and therefore should only have been asked under caution when the claimant had been told of his right to representation.[197]We must therefore consider whether the claimant considered that the conduct created an intimidating hostile, degrading, humiliating or offensive environment and whether it was objectively reasonable for him to have formed that view in the circumstances. In our view a reasonable employee would have found it humiliating and offensive to be asked whether they were fit to practice in circumstances where there was no symptomatic underlying mental health condition and no concerns were raised at the time about their health or fitness, and it was only the fact of the incident that had caused that to be questioned. In our view, asking a few times in a conservation how an employee was in light of the allegation would be reasonable; asking ten times is excessive and becomes oppressive and intimidating, moreso in the context of the question about fitness to practice.[198]The claimant did not at this time know what Mrs Hayward had told the Police about his condition and it can play no part in the assessment. Taking all of those matters into account, and reminding ourselves of the caution in Dhaliwal and Grant not to cheapen the significance of the statutory language, we concluded that this exchange only just met the threshold of harassment. It was very much borderline, and we have regarded its role primarily as being conduct which contributed to the cumulative effect of the comments and action complained of when we considered them as a whole to determine whether the test of harassment had been satisfied. 7.1.4 7 December 2021 – text message from Mrs Hayward “I tried to call you today”[199]The dispute is a simple factual one. The respondent asserts that the text message was factually accurate because Mrs Hayward had tried to call the claimant; the claimant alleges that she had not and she wrote the message knowing it to be untrue, and intending to cause him anxiety by timing it at a point when Mrs Hayward was leaving work and so could not be contacted by a return call.[200]The burden is on the claimant to show that there was no call. Mrs Hayward was adamant that she had made the call and could point to the Keeping in Touch Record for 7 December which records “TC no answer; Text: sent text.” It was put to the claimant that that was an accurate and truthful record, and the more probable version of events was that Mrs Hayward had tried to call the claimant and that as sometimes happens the call did not connect, and in consequence she had left him a message advising him that she had tried to call. The claimant could only say that he did not receive a call; he could adduce no evidence from which we could have concluded that she did not in fact call him.[201]We accepted Mrs Hayward’s evidence: it was supported by the Keeping in Touch record. We found it inherently implausible, given the lack of guile demonstrated in the records, that Mrs Hayward would have created this record on 7 December, knowing it to be false, simply to allow her to send a text message to the claimant suggesting that she had tried to call him to protect herself against a later accusation that she had not in fact called him. The claimant, therefore, did not persuade us that there was no call as he alleged.[202]We further accepted Mrs Hayward’s account that the police had contacted her on 7 December and that she had texted the claimant to advise him that she had an update as to the progress of the criminal investigation, and had tried to call him but could not get through. That was the conscious reason for her decision to call and text the claimant. The reason for both her call and subsequent text message did not therefore relate to the claimant’s mental health condition, or any disability, but to the call from the Police.[203]Whilst we accepted that subjectively, the claimant regarded the conduct as unwanted, the reason for the conduct was not related to disability.[204]If we have erred in that analysis, we have gone on to consider the claimant’s second point that Mrs Hayward’s text message at 16:45 was deliberately timed to prevent him from being able to contact her by telephone, intending that that would heighten his anxiety. As the claimant has not satisfied us that there was no call, it requires a greater cogency of evidence to persuade us that the text message sent afterwards was intended to have that effect: put simply, we have found that Mrs Hayward tried to call the claimant. Had her call connected the two would have spoken, as we infer Mrs Hayward intended. It is very difficult indeed in those circumstances for the claimant to demonstrate by a mere assertion that the ensuing text message was timed to cause him anxiety. The claimant was unable to speak to Mrs Hayward despite his efforts in response to the text, but that is a far cry from demonstrating that the timing of the text was intended to cause alarm or distress. We reject that argument.[205]The claimant therefore must persuade us on the evidence that the timing of the message alone created a hostile, degrading or intimidating, humiliating or offensive environment. Although the claimant describes experiencing ‘anxiety’ and ‘ruminating’ he does not suggest the text message was directly hostile or intimidating etc. It is all the more difficult therefore for him to demonstrate that objectively it was reasonable for him to regard it as having that effect in the circumstances. Whilst there was an earlier incident of harassment on 17 November it was of a different nature involving questions about the claimant’s health and has no bearing on this particular incident, some two weeks later.[206]We are not persuaded that it was reasonable in the circumstances for the claimant to regard the timing of the text message alone as constituting harassment. This instance, in our view, in the prevailing context involves an element of hypersensitivity by the claimant and any finding of harassment in the circumstances would cheapen the significance of the statutory test, as was cautioned against in Dhaliwal and Grant.[207]The allegation is therefore dismissed. 7.1.5 8 December 2021 telephone call.[208]The call was recorded. The claimant complains that Mrs Hayward once again repeatedly asked him how he was, and sought to imply that he was isolated and withdrawn and suffering from delusions of grandeur, which are symptoms indicative of a relapse of bipolar disorder. The respondent accepts the recording of the conversation as being an accurate record, but disputes the intent or effect alleged by the claimant.[209]Mrs Hayward’s evidence was that she had asked the claimant whether he was well several times as she was genuinely concerned and wanted to give the claimant a “second opportunity” to reveal his true state.[210]We accept the claimant’s evidence that the conduct was unwanted. That was apparent both from the recording (as we have indicated in our findings) and from the claimant’s account in his witness statement that he had listened to the recordings several times after the call, because of his concern about it. We further accept that the claimant regarded the conduct as creating a hostile, intimidating, humiliating and degrading environment.[211]It is therefore for the claimant to establish facts from which we could conclude, properly directing ourselves, that Mrs Hayward’s intent was to create a humiliating or degrading environment. We can consider Mrs Hayward’s evidence (as to what she did) but not why she did it (which forms her explanation for the acts) at this stage. The relevant facts are these: 211.1. On 1 October 2021, Mrs Hayward had informed the Police that the claimant had a ‘psychotic’ mental health illness in circumstances when she had taken no reasonable steps to check whether that statement was accurate, and did not provide the provide the police with relevant information regarding the illness. She knew that those matters were damaging to the claimant. 211.2. On 15 October 2021, Mrs Barrow was appointed at the HR manager with responsibility for overseeing the Police investigation and the Trust’s disciplinary process. 211.3. On 16 October 2021, Mrs Susie Ward had been appointed as Ward Manager, and therefore was the pastoral lead for the claimant. 211.4. On 17 November 2021, the claimant had been repeatedly asked whether he was well, and separately whether he was fit to practice because of an underlying medical condition by his manager. There was no need for Mrs Hayward to have called the claimant at all on that occasion since the only purpose was making a pastoral enquiry. 211.5. That exchange just met the threshold of harassment. 211.6. On 26 November 2021, Mrs Hayward assessed the claimant’s mental state as being settled and stable with appropriate humour having spoken to him. The call on the 8 December was the first time she had spoken to him since that discussion. The purpose of the call was to inform him of the appointment of DC Meagre and the forthcoming request for interview. 211.7. On 7 December the police had contacted Mrs Hayward to inform her of the appointment of DC Meagre and that the officer would soon contact the claimant to make arrangements for his interview. Mrs Hayward had therefore texted the claimant to advise him that she had an update as to the progress of the criminal investigation, and had tried to call him but could not get through. 211.8. The claimant had been hypersensitive to the resulting text message which Mrs Hayward had sent on 7 December 2021. 211.9. On 8 December 2021, Mrs Hayward questioned the claimant’s account that he was well, and her comment could reasonably be viewed as casting doubt on it - “don’t say fine.” She asked the same question 3 times in 40 seconds. 211.10. Mrs Hayward asked whether the claimant had friends and a support network, notwithstanding that she had recorded on the suspension form that the claimant’s friendship base was entirely on the ward, and knew that the effect of his suspension was to isolate him from that friendship group and its support mechanism. This discussion two months after the suspension. 211.11. In the exchanges with the claimant, particularly those in the recording of 8 December 2021, the claimant’s responses appear robust. 211.12. Mrs Hayward was a senior mental health practitioner with considerable experience of speaking to and managing those with mental health vulnerabilities.[212]We concluded from those matters that the claimant had adduced evidence from which we could conclude that Mrs Hayward intended to create the prohibited environment. She was not the pastoral lead and there was no need for her to have pressed the claimant on his health, it was sufficient, if she addressed it at all, merely to ask him how he was. That conduct followed from other conduct, specifically the inaccurate information which Mrs Hayward had given to the police, which was capable of supporting an inference that she intended her actions to create a hostile or humiliation or degrading environment and/or to undermine the claimant’s dignity. The sheer number of the requests about the claimant’s health (ten times on 17 November, and four times on 8 December) and the speed with which the questions were repeated on 8 December again created a strong inference that they were asked deliberately in that manner.[213]The burden therefore transferred to the respondent to show, having regard to Mrs Hayward’s explanations for her conduct, that she should not be treated as having that intent. The only explanation she offered for the repeated questioning of the claimant’s health was that she was genuinely concerned about his health and asked the question to give him a ‘second opportunity’ to express his true state of health. We reject that explanation: she did not give a second opportunity, rather she directly and challenged the explanation he had given “Are you?” and “don’t say fine.” Furthermore, the Keeping in Touch record does not reflect any genuine concern that the claimant’s accounts of his wellbeing were not accurate. “No concerns; feels well mentally.” It is possible that Mrs Hayward had simply forgotten that the claimant had told her that his friendship group consisted almost entirely of work colleagues when she asked about that issue and his support networks, but that was not an explanation she offered in her statement or in her evidence.[214]In those circumstances, the respondent has not discharged the burden to show that it was not Mrs Hayward’s purpose to cause the effect we have described. The Tribunal finds accordingly, recognising the seriousness of the conclusion we have reached and reaching it with some hesitation in consequence.[215]In the event we have erred in our approach to the burden of proof in relation to the purpose for the conduct, we would have found that it was objectively reasonable for the claimant to have regarded the conduct as having that effect in the circumstances for the reasons we have given. 7.1.6 24 December 2021- contents of telephone call[216]The dispute between the parties is whether Mrs Hayward’s comments were intended to imply that the claimant was suffering from delusions of grandeur, and her reference to the forthcoming Police interview was intended to cause the claimant anxiety.[217]The respondent argues that comments and references were wholly innocuous. The claimant accepted in cross-examination that if the matter were judged solely on the words used, that was right. However, he argued that the words had to considered in their context, and he relied upon the paraverbal elements of the discussion to demonstrate that the conduct met the definition of harassment.[218]We considered that, in addition to those matters already detailed in relation to the call on 8 December and our conclusion that the Mrs Hayward’s conduct on that occasion had the purpose of causing the prohibited environment, the following evidence was relevant to the issue: 218.1. Notwithstanding that the 24 December was a Friday and a working day for the respondent, the context for the Keeping in Touch call was that it was made by a mental health specialist, Mrs Haward, who chose to call the claimant on Christmas Eve. It because it is well known to those in the mental health sector that Christmas can be a particularly lonely and consequently vulnerable period for those with mental health conditions. This point was therefore double edged; it could suggest empathy to the claimant’s situation or could be evidence of an intent to exploit its inherent vulnerability. Ultimately, in circumstances where the claimant had told the claimant that he was going to spend Christmas with his family, we concluded that the latter was more likely. That view was supported by the fact of the timing of the call, which was also a cause for concern, being made late in the afternoon, when there was no evidence of a good reason for the call to be made then. 218.2. Mrs Hayward’s asked whether the Police had been in touch with the claimant. Taken in isolation, there is nothing of concern in the question. However, there was no evidence before the Tribunal that Mrs Hayward had been told that the Police had been in contact with the claimant. If she did not know whether they had been in touch, there was no valid reason for Mrs Hayward to call the claimant at all (in her pseudo role as ‘police liaison’), and certainly no reason to call the claimant late in the afternoon of Christmas Eve, to ask if they had. If she did know the Police had been in contact, the call was more legitimate, but there was no reason to ask whether they had been in contact, because she already knew. Each scenario gave cause for concern as. 218.3. Mrs Hayward repeatedly addressed the claimant as ‘hunny,’ which was entirely inappropriate in the context. She used that form of address on four occasions, each of which seemed on our reading to have been after the claimant pushed back against Mrs Hayward, challenging her or the points she made. That tends to suggest that the use of the term was deliberate, and was more likely to support an inference that the conduct of the discussion as a whole was deliberate. 218.4. Mrs Hayward referred to the Trust’s disciplinary process, raising the spectre that even after the Police investigation had concluded, there was a further disciplinary process to commence. 218.5. Mrs Hayward asked the claimant what he was doing for Christmas notwithstanding that she had discussed that with the claimant on 8 December and had been told that he would be seeing family and attending appointments for his television projects. 218.6. All of those matters arose in the context of a call made on Christmas Eve, late in the afternoon, just as people might be preparing their Christmas dinner or wrapping presents or engaging in similar festive activities. The necessary effect of the call was to drag the claimant from the pleasure of the one, to push him towards the anxiety and worries related to the two investigations. At its worst, the claimant may have thought that if the criminal investigation resulted in a conviction, he may not be at liberty to celebrate Christmas the following year.[219]Those matters seemed to us to require an explanation to demonstrate that it was not Mrs Hayward’s purpose to create the prohibited environment, and/or to be relevant to an objective assessment of whether it was reasonable for the claimant to regard them as having that effect. Mrs Hayward offered no explanation for the call, its timing, or content in her witness statement or in her evidence. We therefore concluded that the respondent had failed to discharge the burden placed upon it to show that that it was not Mrs Hayward’s purpose to undermine the claimant’s dignity or created the prohibited environment.[220]If it were necessary to consider, we would have found that the conduct did have the effect of creating the prescribed environment, and that it was objectively reasonable for the claimant to have formed that view of it in the circumstances for the reasons we have set out above. 7.1.7 On 25 December 2021 a text message at 10:31am stating “Well done hunny that’s amazing xxx” and a second text message reading “Merry Christmas xxx[221]The claimant alleges that the messages were sent with an intention to flirt with him or to coerce him into considering an intimate relationship with Mrs Hayward as a means of resolving the internal disciplinary investigation. The respondent admits the fact of the message, but disputes its purpose or effect.[222]We are satisfied that Mrs Hayward’s message was a response to the claimant sending her a Youtube clip with trailer for one of his television projects. The only aspect of the message about which the claimant made complaint was the use of ‘honey’ and the ‘xxx’ at the end of it.[223]Mrs Hayward had used the term ‘honey’/’hunny’ previously, in circumstances where we found she had reacted where the claimant was pushing back. We concluded that the “xxx” had been added to the first text messages deliberately. Mrs Hayward was aware from 21 January 2022 that the claimant had alleged that she had sent over-familiar text message to him, and so had an opportunity to address the allegation and provide an explanation for her use ‘xxx’ in her interview by Mr Thomas and certainly at the time of the Tribunal hearing, but provided no explanation for the ‘xxx’ whether in her account to Mr Thomas or in her witness statement. She did, however, address her use of ‘hunny’ in her messages. She did not, for example, suggest that she had added the ‘xxx’ inadvertently because she was used to signing off her messages to friends and family in that way. There was no evidence before us that she had ever included ‘xxx’ in messages to Ms Balchin when keeping in touch with her: Mrs Hayward was able to produce two messages to Mrs Balchin using the term ‘hunny/honey’ but neither of them contained ‘xxx’. We were therefore persuaded that Mrs Hayward had a habit of using overfamiliar language in messages to staff, even in the context of disciplinary sanctions, and would in that context on occasion to use the term ‘honey’/’hunny.’[224]We concluded that the use of ‘xxx’ and, to a lesser extent, Mrs Hayward’s use of the term ‘honey’ was unwanted by the claimant. However, the claimant’s evidence was that their use was ‘concerning’ and that it made him feel ‘uneasy.’ He did not suggest that it undermined his dignity or created a humiliating, degrading or offensive environment. On reflection, reminding ourselves of the guidance in Dhaliwal and Grant, we concluded that this did not met the threshold of harassment, and the allegation is rejected. At its highest, it might contribute to a course of conduct which viewed cumulatively might meet the threshold of harassment. To this extent our written reasons differ from our extempore judgment (in which we concluded that the text message met the definition of harassment).[225]In relation to the second text message, we accepted Mrs Hayward’s evidence that that was a generic message sent to all her contacts in her telephone. That evidence was consistent with the Tribunal’s experience of such messages and was not challenged by Mr Whittard. It was not, we concluded, sent with the purpose of harassing the claimant, and in all the circumstances, it was not reasonable for the claimant to have regarded it as having that effect.[226]The allegation in respect of this second message is dismissed. 7.1.8 5 January 2022 a text message at 23:59 stating “Hola hunny how r u?”[227]The claimant argues that Mrs Hayward sent the text message intending that it would disrupt his sleep pattern, hoping that disruption would adversely affect his mental state. The respondent admitted the timing and content of the message, but asserted that it had been sent mistakenly at that time.[228]We accepted the claimant’s evidence that the message was unwanted (as we have recorded in our findings).[229]The claimant’s evidence relating to being woken by the message and his girlfriend challenging him about why Mrs Hayward would be messaging him in that way and why she referred to him as ‘hunny’ was unchallenged. We are satisfied that the message was offensive and intimidating because it was sent by the claimant’s line manager who was in a position of power over the claimant, moreso in the context of his suspension during the police investigation, and in circumstances where it had woken him from his sleep. It was offensive because Mrs Hayward’s diction implied a relationship which did not in fact exist. The claimant told us that his girlfriend had raised that implication, and challenged him as to why Mrs Hayward would have used that language if there was not a relationship, particularly in light of the earlier text message she had sent with ‘xxx’ at their end. We accepted that evidence. We noted that there was no reason for the text message to have been sent at all; Mrs Hayward was not providing an update in relation to either the criminal or the Trust’s investigation.[230]We were satisfied that the claimant had established facts from which we could concluded that harassment had occurred. The burden therefore transferred to the respondent to show either that Mrs Hayward did not intend the message to have that effect or it was not objectively reasonable in the circumstances for the claimant to have regarded it as having that effect. Mrs Hayward’s explanation for the timing of the message was contradictory and inconsistent. In her contemporaneous text message exchange with the claimant she stated that she had not realised the time and that she was at “home watching the TV night shift” (we understood to mean that she was at home, on call, and was watching television). In her account to Mr Thomas, she said that she working late and had not realised the time, because it was the end of the shift. That implies that she was at work or at the very least was working; that account was given after Mrs Hayward was aware that the claimant had raised concerns about the text messages and their timing.[231]In the circumstances, we were not persuaded that the respondent had discharged the burden on it. In particular, we thought it highly unlikely that Mrs Hayward would have sent a message so late in advertently; the message was sent just before midnight, not for example at the end of a day shift (i.e. 6/8pm) or a late shift. Indeed the respondent put no evidence before us to establish what shift or hours Mrs Hayward was working that day. It was therefore objectively reasonable for the claimant to have concluded that the message was sent deliberately. Given its timing and its effect on his sleep and Mrs Hayward’s knowledge of the importance of sleep hygiene for those with mental health conditions, it was reasonable for him to regard the message as creating a hostile environment and that Mrs Hayward intended it to have that effect.[232]Again, this incident of harassment is at lower end of the scale, and its role lies mainly in relation the cumulative effect of the conduct complained of by the claimant. 7.1.9 19 January 2022 telephone call in which the claimant was told that the Police had had access to his personnel file, knew he had an underlying mental health condition, and had requested he underwent an examination by an Independent Medical Officer.[233]The claimant asserts that Mrs Hayward gave the police access to his personnel file and suggested that he required assessment by an independent medical office (“IMO”) to undermine his account in relation to the incident and/or to delay the Police investigation to cause him distress. The respondent admits the fact and content of the call but disputes the alleged purpose or effect.[234]We accept the claimant’s account that the reference to his past mental health history and the suggestion of the Police’s possession of his personnel file was unwanted. We refer back to our conclusions in relation to Mrs Hayward’s initial statement to the Police regarding his health condition for our reasoning.[235]The claimant has proved matters from which we could conclude that the purpose of the remarks was to cause the prohibited environment, or that its effect was to do so, and it was objectively reasonable in the circumstances for the claimant to form that view. Specifically, the claimant had never publicised his mental health condition, particularly in circumstances where he had been symptom free for several years and had not required medication, and therefore the reference to the condition in the context of a police investigation concerning his conduct towards a vulnerable service user was alarming and humiliating, and undermined his dignity. For the claimant’s line manager, in her position as a senior mental health practitioner, to point inaccurately and incompletely to a past history of mental illness in that context would cause any reasonable employee to feel degraded, alarmed, humiliated and offended. It would undermine their dignity. Further that conduct must be viewed in the context of the earlier actions of Mrs Hayward which we have concluded either were or could contribute to a course of conduct which amounts to harassment.[236]The burden therefore transfers to the respondent to demonstrate that that was not Mrs Hayward’s purpose or it was not objectively reasonable for the claimant to regard her conduct as having that effect in the circumstances.[237]We therefore consider Mrs Hayward’s explanation for her conduct. The essential issue here is one of credibility. Mrs Hayward asserts that she called the claimant and told him the information above because of the conversation she had had with the police. However, as we have indicated previously, there are considerable and significant inconsistencies in Mrs Hayward’s explanation for her actions and her accounts in respect of them. 237.1. Her account to the claimant on the day was that the personnel file had been seen by the Police, and that she had decided to inform the claimant of that fact. She did not suggest that the Police had asked her about this health and that she had told them about his health condition, as detailed in his file, in consequence. In fact the Police had not seen the personnel file, or if they had, Mrs Hayward had shown it to them in breach of the strict DP1 procedure. 237.2. In the Keeping in Touch form, Mrs Hayward recorded that she told the claimant that “the Police will have applied for his file appropriately and would have this information” and that the purpose of sharing his medical information was to protect him. That implies that the file must have been obtained as result of a formal application; that was wrong: as we have indicated, the formal request was not made until May 2022 and the file was not provided until July 2022. 237.3. Later, however, when exchanging text messages with the claimant on 27 January 2022, she stated “I told you the Police were entitled to the file as part of the investigation”, suggesting either that that was part of a formal process that had been adopted, and/or that the Police were entitled to the file more generally. There was no suggestion that she had produced it as a result of a question being asked of her by the police. Again, there had been no DP1 submitted by the Police at that time. 237.4. In her account to Mr Thomas in her email on 18 February 2022, she stated that she had told the Police that the claimant and two other members of staff were absence with ill health, and made no reference to the Police requesting the claimant’s personnel file at all. Critically, in that email she suggested for the first time that she had referred to the health condition because she believed it may have been a factor which contributed to the incident. That was a new and distinct explanation. She did not suggest that she had raised the issue because she was concerned that there was a need to protect the claimant within the Police investigation process, whether because of his health or any concerns about the fairness of the process itself. 237.5. DS Harding recorded that the reason for the IMO was due to the ‘disclosed mental health issue’ which implies that Mrs Hayward had proactively disclosed the issue to the Police. 237.6. In her witness statement, Mrs Hayward suggested that she had been asked whether either Ms Balchin or the claimant had any health conditions which might necessitate further support during the process from the Police. That account was partially consistent with the account given to Mr Thomas.[238]Beyond the inconsistencies in Mrs Hayward’s accounts, we noted that she had told the Police that the claimant’s condition was psychotic in circumstances where there was no basis for that description. Furthermore, when providing that description she had omitted what she accepted to be relevant details, namely that the condition had not be symptomatic for several years and had not required medication and the claimant had been generally well. Additionally, Mrs Hayward’s account of how she learned of the claimant’s condition was ‘psychotic’ was not coherent or credible. She told us that Mr Sanders had told her the condition was psychotic, but that account was not recorded in the Suspension Checklist, and was not an account she gave to the Police; it was not recorded in her Police statement when she did record a discussion about the early warning signs for the claimant’s condition. When he was made aware of Mrs Hayward’s explanation during the grievance process, the claimant disputed that he had had such a discussion with Mr Sanders.[239]A further critical which gave rise to very significant concerns about Mrs Hayward’s explanation was that she signed her police statement, which contained a statement of truth, on the 5 May 2022, at a time when she was fully aware of the claimant’s complaint about the disclosure of confidential information. She made no attempt to correct the statement or to add in the details relating to the claimant’s mental health condition which she knew to be relevant, and yet she was aware at all times that the statement was likely to be used as part of a criminal investigation which could lead to the claimant being charged with criminal offences which might result in his imprisonment if he were convicted of them.[240]The last issue with Mrs Hayward’s explanation was that she told us in evidence that she had disclosed the information about the claimant’s health condition because she believed there was an issue as to the claimant’s capacity, within the definition in the Mental Capacity Act, connected to the incident. For the reasons we have given previously, that explanation was simply unworthy of belief, although it does demonstrate that her conduct related to a disability.[241]The respondent has not therefore discharged the burden, and the allegation succeeds. Conclusion in relation to the allegation of harassment[242]Looking at the events cumulatively, we concluded that the claimant has established (for the reasons we have given above) that he was subject to harassment by Mrs Hayward. The most serious allegation in the events seemed to us to be Mrs Hayward’s statement to the police. Time limits Conduct extending over a period[243]Section 123(3)(a) EqA 2010 provides that “conduct extending over a period is to be treated as done at the end of the period.”[244]An ‘act extending over a period’ (also known as a ‘continuing act’) may arise not solely from a policy, rule, scheme, regime or practice but also from ‘an ongoing situation or continuing state of affairs’ (Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 96, CA, paras 51-52 per Mummery LJ, approved by the Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548, CA).[245]In Coutts & Co plc v Cure [2005] ICR 1098, EAT, the Employment Appeal Tribunal (HHJ McMullen QC presiding), set out categories into which the factual circumstances of alleged discrimination may fall, and found (albeit obiter) that there are two types of situation in which alleged discrimination may constitute an ‘act extending over a period’: 245.1. where there is a discriminatory rule or policy, by reference to which decisions are made from time to time; and 245.2. where there have been a series of discriminatory acts, whether or not set against a background of a discriminatory policy.[246]In the former case, an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387).[247]In the latter case, the main issue for the Tribunal tends to be whether it is possible to identify some fact or feature linking the series of acts such that they may properly be regarded as amounting to a single continuing state of affairs rather than a series of unconnected or isolated acts (Hendricks). A single person being responsible for discriminatory acts is a relevant factor in deciding whether an act has extended over a period: Aziz v FDA [2010] EWCA Civ 304, CA.[248]Therefore, whether the acts complained of are linked so as to amount to a “continuing act” is essentially a question of fact for the tribunal to determine. The conduct does not have to be the same protected characteristic or the same type of prohibited conduct Worcestershire Health and Care NHS Trust v Allen 2024 EAT 40 The just and equitable discretion[249]While employment tribunals have a wide discretion to allow an extension of time under the ‘just and equitable’ test in S.123, it does not necessarily follow that exercise of the discretion is a foregone conclusion in a discrimination case. Indeed, the Court of Appeal made it clear in Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434, CA at para 25, that when employment tribunals consider exercising the discretion under what is now S.123(1)(b) EqA, ‘there is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule.' The onus is therefore on the claimant to convince the tribunal that it is just and equitable to extend the time limit.[250]These comments were endorsed in Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT and Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA. However, As Sedley LJ stated in Chief Constable of Lincolnshire Police v Caston at paragraphs 31 and 32: “In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. This has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should.”[251]Before the Employment Tribunal will extend time under section 123(1)(b) it will expect a claimant to be able to explain firstly why the initial time period was not met and secondly why, after that initial time period expired, the claim was not brought earlier than it was (Per Langstaff J in Abertawe Bro Morgannwg University Local Health Board v Morgan).[252]However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law does not require exceptional circumstances: it requires that an extension of time should be just and equitable - Pathan v South London Islamic Centre EAT 0312/13.[253]In exercising their discretion to allow out-of-time claims to proceed, tribunals may also have regard to the checklist contained in S.33 of the Limitation Act 1980 (as modified by the EAT in British Coal Corporation v Keeble and ors 1997 IRLR 336, EAT, at para 8). S.33 deals with the exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice that each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, in particular:(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had co-operated with any requests for information;(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and(e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.[254]However, although, in the context of the 'just and equitable' formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, 'provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion' (Southwark London Borough v Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at para 33, per Peter Gibson LJ).[255]In Department of Constitutional Affairs v Jones 2008 IRLR 128, CA, the Court of Appeal emphasised that these factors are a ‘valuable reminder' of what may be taken into account, but their relevance depends on the facts of the individual cases, and tribunals do not need to consider all the factors in each and every case. No one factor is determinative of the question as to how the Tribunal ought to exercise its wide discretion in deciding whether or not to extend time. However, a claimant’s failure to put forward any explanation for delay does not obviate the need to go on to consider the balance of prejudice.[256]A tribunal considering whether it is just and equitable to extend time is liable to err if it focuses solely on whether the claimant ought to have submitted his or her claim in time. Tribunals must weigh up the relative prejudice that extending time would cause to the respondent on the one hand and to the claimant on the other: Pathan v South London Islamic Centre EAT 0312/13 and also Szmidt v AC Produce Imports Ltd UKEAT 0291/14.[257]It is always necessary for tribunals, when exercising their discretion, to identify the cause of the claimant's failure to bring the claim in time (Accurist Watches Ltd v Wadher UKEAT/0102/09, [2009] All ER (D) 189 (Apr)). In Wadher Underhill J stated that, whilst it is always good practice, in any case where findings of fact need to be made for the purpose of a discretionary decision, for the parties to adduce evidence in the form of a witness statement, with the possibility of cross-examination where appropriate, it was not an absolute requirement of the rules that evidence should be adduced in this form.[258]A tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question, including an explanation for the failure to present a claim in time, and such material may include statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents.[259]A delay caused by a claimant invoking an internal grievance or disciplinary appeal procedure prior to commencing proceedings is just one factor to be taken into account by a tribunal when considering whether to extend time: Robinson v Post Office [2000] IRLR 804, EAT, approved by the Court of Appeal in Apelogun-Gabriels v London Borough of Lambeth [2002] ICR 713. As the EAT said in Robinson (para. 25, per Lindsay P): “as the law stands an employee who awaits the outcome of an internal appeal and delays the launching of an [ET1] must realise that he is running a real danger.” Conclusions on limitation.[260]We are satisfied that the conduct complained of was conduct extending over a period for the purposes of section 123 EqA 2010 because each allegations consisted of the acts of Mrs Hayward which arose from the incident at work, the consequent police and internal investigations, the claimant’s suspension in respect of those matters, and Mrs Hayward’s contact with the Police and the claimant in respect of them. She was the unifying thread that ran throughout each allegation.[261]As the last incident about which the claimant complained occurred on 19 January 2022, any claim had to be presented by 18 April 2022. The claim was not presented until 21 December 2022, some eight months later. The claimant cannot benefit from any extension of time pursuant to section 207B ERA 1996 given that he did not commence ACAS conciliation until after the preliminary time limit elapsed.[262]We must therefore consider the reasons the claimant advances for his late presentation of the claim. He identified three: his lack of knowledge of the time limits which applied to his rights, his deteriorating mental health and his use of the internal processes.[263]It is clear that the claimant knew of his right not be subject to discrimination in January 2022 because he openly referred to it in correspondence with the respondent at that time. The issue therefore is why he did not present his claims within time, including whether he knew of the time limit applicable to those rights.[264]It is material to note that in the period between January 2022 and the presentation of the claim in December 2022, and certainly during the period January to April 2022 when the primary time limit expired, the claimant was able to raise a grievance, he was able to appeal against that grievance outcome and he raised the matter with the Information Commissioner, notwithstanding his deteriorating mental health. Whilst, therefore we accept the fact of his poor health during the preliminary limitation period, it did not have the effect that he could not have presented the claim or researched the time limit applicable to it during it.[265]We have to consider whether the claimant’s evidence that he did not know of the applicable time limits under the EqA 2010 was genuine and, if so, whether it was objectively reasonable in the circumstances of the case. We accepted the claimant’s account that he did not know of the time limits was genuine: it was not put to the claimant by Mr Stewart that he knew of the limits and was being disingenuous or had lied in his account. What Mr Stewart suggested was that it was not reasonable for the claimant not to have known the time limits, given his ability to research relatively complex matters.[266]In the current digital age where a simple internet search will reveal that the Tribunal has jurisdiction in relation to complaints of discrimination in the work place and the time limits applicable to those rights, it is always a very difficult task for a claimant to demonstrate that ignorance of the rights or the time limits is reasonable. A scenario where such ignorance might be found to be reasonable might include where someone cannot speak English or has a learning disability preventing them from accessing or understanding the available information. That was not the case here.[267]We therefore concluded that the claimant’s ignorance of the time limits was not reasonable. He is a very bright and intelligent man, who can use IT readily. He could easily have researched the time limit; he simply did not.[268]However, our enquiry does not end there; we have to consider whether, in light of those reasons, it would be just and equitable to extend time to accept the claims. In determining that test we have to have regard to the prejudice caused to the parties. Here the prejudice to the claimant if time is not extended is straightforward: he will lose his ability to obtain a remedy in respect of claims which we have found to be well founded and which relate to very serious matters which have had a profound effect upon him.[269]We next consider the prejudice to the respondent if the claims were accepted. Mr Stewart very fairly accepted that there was no forensic prejudice to the respondent caused by the delay in the presentation of the claim. That was a fair and sensible concession given the respondent’s internal investigation of the events shortly after they occurred, which included contemporaneous accounts from Mrs Hayward. Critically and additionally in this case there were both transcripts and recordings of the vast majority of the calls and messages which formed the subject of the claims. Both the Respondent and the Tribunal were therefore able both to read what was said and to hear how it was said. That is the best possible evidence which a party could have to assess the allegations.[270]Considering all of those matters, although the matter was very finely balanced, we concluded that the balanced fell in the claimant’s favour. The respondent was able to advance its accounts fully and to call evidence from Mrs Hayward to provide her explanations for her actions. Conversely, the inability to obtain remedy for a valid claim would be a huge loss to the claimant and would be disproportionate to the degree of his fault in the delay, where we have accepted he was in poor health. We therefore concluded that it would be just and equitable to extend time so that the Tribunal had jurisdiction to hear the claim.